Unland v. Garton

• Decision Date: 21 April 1896
• Docket Number: 6508
• Citation: 66 N.W. 1130,48 Neb. 202
• Parties: JOHN H. UNLAND v. JOHN G. GARTON
• Court: Nebraska Supreme Court

66 N.W. 1130

48 Neb. 202

JOHN H. UNLAND v. JOHN G. GARTON

No. 6508

Supreme Court of Nebraska

April 21, 1896

ERROR from the district court of Saline county. Tried below before HASTINGS, J.

AFFIRMED.

J. H Grimm and E. W. Metcalfe, for plaintiff in error.

Hastings & McGintie, contra.

OPINION

RAGAN C. J.

John H Unland sued John G. Garton at law in the district court of Saline county on a promissory note. Garton had a verdict and judgment, and Unland brings the case here for review.

1. The first assignment of error argued is that the court erred in permitting Garton to introduce any evidence, as the facts stated in his answer constituted no defense to the action. The execution and delivery of the note was admitted, but Garton pleaded as a defense thereto that the only consideration for the note was a corn-sheller sold by a copartnership, of which Unland was a member, to him, Garton that the corn-sheller was warranted and that the warranty had failed. The warranty pleaded was as follows: "That at the time of said purchase said Unland & Heller represented and warranted to these defendants that said sheller was as good as new; that it would do as good work as any corn-sheller; and that it would do first-class work in every particular." Counsel for plaintiff in error now insist that this language did not amount to a warranty, and that it was merely a recommendation of the machine, or an expression of opinion by the seller as to its merits. In Halliday v. Briggs, 15 Neb. 219, 18 N.W. 55, the warranty relied on was in this language: "All right, sound, and free from disease." It was held that a court would not be justified in holding this language to be a warranty against the finding of a jury to the contrary. It was further held in that case that if the evidence left the matter in doubt as to whether or not the seller intended to make an affirmation or to express an opinion merely, the matter should be submitted to the jury. In Erskine v. Swanson, 45 Neb. 767, 64 N.W. 216, the warranty was in this language: "'You needn't be afraid of that lameness. I guaranty that horse. In a few weeks you won't notice it.' 'Why, the horse will be all right. I guaranty to you it will be all right.' 'He is a good, sure horse.'" And it was there held: "To constitute a warranty it is not necessary that the word 'warranty' should be used. It is sufficient if the language used by the vendor amounts to an undertaking or...