Welshausen v. Charles Parker Co.

• Decision Date: 14 June 1910
• Citation: 83 Conn. 231,76 A. 271
• Parties: WELSHAUSEN v. CHARLES PARKER CO.
• Court: Connecticut Supreme Court

76 A. 271

83 Conn. 231

WELSHAUSEN

v. CHARLES PARKER CO.

Supreme Court of Errors of Connecticut.

June 14, 1910.

Appeal from Superior Court, New Haven Comity; Edwin B. Cager, Judge.

Action by William Welshausen against the Charles Parker Company. From a judgment refusing to vacate a judgment of nonsuit, plaintiff appeals. Affirmed.

Charles S. Hamilton, for appellant.

William W. Hyde and Arthur L. Shipman, for appellee.

THAYER, J. The complaint alleges that the plaintiff purchased of the defendants a gun of their own manufacture with an express warranty by their agent that the same was sound, of best quality, and fit to stand the strain of proper and ordinary use, and that the barrels thereof were of the best Damascus steel. It also alleges negligence on the part of the defendants in manufacturing the gun and putting it on the market and allowing it to go into the hands of customers without proper supervision and inspection in the manufacture of the same and during and after its manufacture before it was sold, and that the gun was weak, insufficient, badly constructed, and of poor quality of steel, and that because of such defect the left barrel burst when the plaintiff was using it in the ordinary manner and with due care, and injured him. In compliance with an order of the court, the complaint was so amended as to show wherein the gun was defective, weak, and badly constructed. There is no allegation expressly stating a breach of the warranty. Upon the motion to set aside the nonsuit the plaintiff claimed that there was evidence from which the jury could find the express warranty or an implied warranty that the gun was fit for the purposes for which it was sold, and the breach of such warranty, also that there was sufficient evidence that the gun was defective in the respects alleged, and the defendants' negligence in putting it upon the market in that condition to warrant a verdict upon that ground.

To sustain a finding that there was a breach of warranty express or implied, there must have been evidence of a contract between the parties, for without a contract there could be no warranty. There was no evidence which would justify the jury in finding any contract between the parties. The evidence did not show that the plaintiff purchased the gun from the defendants. On the contrary, it showed that they sold the gun to the Simmons Hardware Company, by whom it was sold to one Koenig, who sold it to the plaintiff. The evidence of this was so clear...