Waite v. Borne

• Decision Date: 02 December 1890
• Citation: 25 N.E. 1053,123 N.Y. 592
• Parties: WAITE et al. v. BORNE et al.
• Court: New York Court of Appeals Court of Appeals

123 N.Y. 592

25 N.E. 1053

WAITE et al.

v.BORNE et al.

Court of Appeals of New York.

Dec. 2, 1890.

Appeal from supreme court, general term, fifth department.

Action by William Waite and others against John E. Borne and others. Defendants appeal.

James L. Bishop and C. W. West, for appellants.

Wm. F. Cogswell and W. E. Hughitt, for respondents.

PECKHAM, J.

This action was brought by the plaintiffs for the purpose of recovering damages alleged to have been sustained by them by reason of the breach of an alleged warranty made by the defendants in the sale of certain oil to the plaintiffs. The plaintiffs had a verdict at the circuit, which, upon motion made upon the trial judge's minutes, was by him set aside, and a new trial granted. On appeal from that order to the general term, that court set aside the order granting the new trial, and ordered judgment upon the verdict for the plaintiffs. 5 N. Y. Supp. 168. Pursuant to that order, judgment was duly entered in favor of the plaintiffs and against the defendants, and from that judgment the defendants have appealed here.

The plaintiffs allege in their complaint that they were, and for a long time prior to the spring of 1884 had been, partners in business, engaged in the manufacture and sale of carpets at Auburn, in the state of New York; that in February, 1884, the defendants' agent came to plaintiffs' factory in Auburn with a sample of so-called ‘Breton wool oil,’ and that the agent of defendants then represented to plaintiffs that this oil was manufactured only by them, and by a newly-discovered process; that it was a much more valuable oil than the oils commonly used in manufacturing carpets, and required a much less quantity and the use of much less other materials in value and amount, and much less labor to accomplish the same results; and that it was better in other respects than the other oils used in manufacturing carpets. The agent further stated that if the plaintiffs would use the oil in their factory and in manufacturing their carpets, the defendants would guaranty the above facts, and would pay all loss and damage to the plaintiffs resulting from its use. The answer set up several defenses, unnecessary to state more particularly. Upon the trial the plaintiffs proved that Mr. Tucker came into their office, and alleged that he was the agent of the defendants, and that he was introducing wool oil, which was a new process of manufacture, and was sold only by the defendants; that it was a very efficient oil, and cheaper than the oil which the plaintiffs were then using; and that it was equal to the Elaine, or any other animal oil, and that he would guaranty the oil to be equal to any oil in the market, Elaine or any other oil, and that the defendants would guaranty the plaintiffs from any trouble in its use. This was the testimony of Mr. Mye, one of the plaintiffs. Mr. Waite, the other plaintiff, was sworn, and testified substantially to the same thing, so far as the guaranty was concerned. He testified that Tucker said the defendants would guaranty the oil equal to any animal wool oil; that it would go as far on the wool, and remain as long on the wool, and scour out easier; and that the defendants would guaranty the plaintiffs against any damage to their goods arising from its use. The plaintiffs then ordered a barrel, and said if it worked well they would order more. When asked why they ordered but one barrel, Mr. Nye said: ‘To see if it would work. If there was nothing the matter with it, we would order more.’ Mr. Waite says: ‘We ordered one barrel at first to see if there was anything that we should find in any way that we did not like, we would not order more. We wanted to satisfied. There could be no guaranty great enough if the oil was bad, and we knew it. We bought one barrel to try it,-in that sense.’ This was all the evidence offered on the part of the plaintiffs as to what the contract of guaranty really was. This barrel was ordered in February, 1884, but was not shipped from the city of New York, where the defendants had their place of business, until the 4th of March, 1884. On the 28th of March the plaintiffs ordered five barrels more of the oil by letter, as follows: ‘Nye & Waite, Carpet Manufacturers, Auburn, N. Y., March 28, 1884. Messrs. Borne, Scrymer & Co., 224 Front street, N. Y.-Gentlemen: You may ship us, via N. Y. C. & H. R. R., five barrels ‘Breton,’ same as we had of you March 4. Yours, truly, NYE & WAITE.' This oil was shipped about April 8, 1884. On the 6th of May, 1884, the plaintiffs ordered five barrels more by letter, as follows: ‘Nye & Waite, Carpet Manufacturers, Auburn, N. Y., May 6, 1884. Messrs Borne, Scrymer & Co.-Gentlemen: Please ship us, via N. Y. C. & H. R. R., 5 barrels Breton wool oil. Yours truly, NYE & WAITE.’

Assuming the truth of the evidence on the part of the plaintiffs as to what took place at the time of the sale of the first barrel of oil in February, 1884, between themselves and Mr. Tucker, the agent of the defendants, the question arises as to the construction to be given to the contract of guaranty therein related. Upon this subject the learned judge at the trial charged the jury that it was for them, in view of all the circumstances of the case, to say whether the guaranty, if made, was intended by Mr. Tucker, and was received by the plaintiffs, as bearing not only upon that barrel of oil then bought, but as bearing upon oil subsequently bought as a result of the conversation which introduced the oil to the plaintiffs; that, so far as the immediate contract between Tucker and the plaintiffs was concerned, it was finished when the barrel of oil was delivered to the plaintiffs; but he submitted to the jury, as bearing upon the question of damages, whether it was intended then by Tucker, in the further carrying out of the power vested in him, to introduce the oil, and to induce people to buy it, and use it permanently in their business, to guaranty not only the barrel then sold, but such oil as they should subsequently buy of the defendants, and whether it was understood by the plaintiffs that that guaranty was intended to be made. If the contract was simply that Tucker agreed to guaranty this one barrel, and they said they would take that barrel, and, if they liked it, would buy more, and they intended to rely on their own judgment in buying more, the jury might properly find that the only damages the defendants must pay are the damages from the use of the first barrel; but if the jury find there was a guaranty, and it was intended by Tucker and understood by the plaintiffs that the guaranty was intended to induce them to introduce the oil and to continue to use it, the jury would have a right to find that the contract of guaranty was to include the oil subsequently purchased, and so to charge the defendants with the damages occasioned not only by the first barrel of oil, but by that subsequently purchased.

Although there was no exception in strictness to this portion of the charge of the learned judge, the counsel for the defendants did request him to charge ‘that there is no evidence of any express warranty from defendants to plaintiffs, except as to the use by plaintiffs of the first barrel of ‘Breton’ sent them by defendants.' This was declined, and the defendants excepted. Upon the coming in of the verdict, the defendants made a motion for a new trial, among other grounds, upon exceptions taken during the course of the trial; and the learned judge, upon a review of his charge, held that he erred in submitting to the jury the construction to be given to the contract testified to on the part of the plaintiffs, and he said: ‘Upon consideration, I am inclined to think that that statement cannot be construed to bind the defendants to a warranty of all the oil which they might ever sell afterwards, and I can see no place where the warranty can stop short of that, if it is construed beyond the sale by Tucker. His object of introducing the oil was accomplished by a sale of one barrel, if it proved satisfactory, and it is not necessary to extend the contract to give force to that word. But I do not think the statement that he was introducing the oil has any force in construing the contract. The subject of the contract was the oil then sold. The warranty applied to that. With that sale, it was at an end, and the parties had no longer any relations with each other. As applied to the sale then made, the warranty is plain, clear, and unambiguous. It was fully satisfied by confining it to that sale; and, to allow the jury to extend it to all the oil, was error.’

We agree with the learned judge in the views expressed by him in his more mature consideration of the subject. The transaction between Mr. Tucker and the plaintiffs resulted simply in the sale of one barrel of oil, and, upon the plaintiffs' account of what took place at the interview, that sale was accompanied with an express guaranty in regard to the oil then sold. There was nothing in the language of Mr. Tucker, as testified to by the plaintiffs, from which any inference could appropriately be drawn that the guaranty which he gave in regard to the oil which he then sold was to apply to other oil which the plaintiffs might possibly decide to buy at some future time of the defendants directly. Both the plaintiffs admitted that they purchased the small quantity of one barrel for the very purpose of seeing how its use would result, and that, if it were satisfactory, then they...