Warren v. Granger

• Decision Date: 23 January 1922
• Docket Number: 105
• Citation: 236 S.W. 607,151 Ark. 453
• Parties: WARREN v. GRANGER
• Court: Arkansas Supreme Court

236 S.W. 607

151 Ark. 453

WARREN v. GRANGER

No. 105

Supreme Court of Arkansas

January 23, 1922

Appeal from Columbia Circuit Court; Charles W. Smith, Judge affirmed.

Judgment affirmed.

McKay & Smith, for appellant.

The court erred in instructing the jury that they should find for the defendant as to the ice-box if it was worthless, or if it was not fit for the purpose for which it was used. Appellee had used the box and knew of its condition. There was no fraud or misreprensation alleged or proved. The doctrine of caveat emptor applies. 19 L.Ed. (U. S.) 987; 45 Ark 254; 70 Ark. 61. The jury were not permitted to consider the terms of the contract under the instruction given.

There is no implied warranty in sales of personal property. 108 Ark. 254; 104 Ark. 573; 11 C. J. 44.

No brief filed for appellee.

OPINION

SMITH, J.

Warren sold Granger a butcher shop outfit, and has sued to recover the alleged purchase price. The parties differ as to the amount and value of certain meats included in the sale; but this difference was properly submitted to the jury.

Among other articles included in the sale was an icebox or a meat-box, and the instruction to the jury on that subject reads as follows: "Among other things was a meat-box, or ice-box, on which defendant claims there was no definite price, and plaintiff states that the price was agreed on definitely, and that is a question that you must decide; and if you find there was a definite price, you will find for the plaintiff, and if you find that the price was not agreed on then for its reasonable worth or its market value; and if the ice-box was not worth anything, or was not fit for the purpose for which it was used, then you will find for the defendant as to that particular item. And as to any other item that plaintiff claims he sold and delivered to defendant and defendant claims he did not buy, that is a question for you to pass on, and you must find for the plaintiff all such articles that were sold and delivered to defendant, and you will find for the defendant all such articles that were not delivered to him, and for all items that were worthless."

The present appeal involves the correctness of this instruction, as the record recites that Warren specifically excepted to that part of the instruction which instructed the jury that if the ice-box wasn't worth anything, or wasn't fit for the purpose for which it was used, then they should "find for the defendant as to that particular item." And he also excepted to that part of the instruction which told the jury to find for the defendant "all items that were worthless." The only item to which the language of the court refers is the ice-box.

It will be observed that, while the record shows that Warren specifically objected to the portions of the instruction set out above, he did not state the ground of his objections, and his objections must therefore be treated as general objections to specific parts of the instruction.

There was a verdict and judgment for Granger, and Warren has appealed.

It is now objected that the instruction was based upon the theory that there was a warranty of quality in the sale of the ice-box, and that the question whether there was an express warranty was not submitted to the jury. Warren did not ask that this question be submitted to the jury unless his objection to the instruction set out above is treated as asking that that question be submitted to the jury; and we do not think his objection should be so treated.

Only four witnesses testified in the case, and of these only Warren testified in his own behalf. He testified in detail as to the articles sold and the prices agreed upon, and according to his testimony, there was due him the amount sued for, and the instructions would have...