Woolsey v. Zieglar

• Decision Date: 09 April 1912
• Parties: WOOLSEY v. ZIEGLAR.
• Court: Oklahoma Supreme Court

123 P. 164

32 Okla. 715, 1912 OK 303

WOOLSEY v. ZIEGLAR.

Supreme Court of Oklahoma

April 9, 1912

Syllabus by the Court.

In order to constitute an express warranty, no particular language is necessary. It is not required that it shall be in writing, or be made in specific terms; and it is not at all necessary that the word "warrant" or "warranty" shall be used. Any direct and positive affirmation of a matter of fact, as distinguished from a mere matter of opinion or judgment, made by the seller during the sale negotiations and as a part of the contract, designed by him to induce the action of the purchaser, and actually relied upon by the latter in making the purchase, will be deemed to be a warranty.

A warranty arising from representations made by the seller at the time of sale that a cow is a first-class No. 1 milk cow implies the absence of any defect or disease which impairs or in its progress will impair the animal's natural usefulness for the purpose for which it is purchased, and is breached by any defects which render it permanently less serviceable, although the defect may not be fully developed at the time of the sale.

Where during a trial it was discovered that certain depositions theretofore on file were missing, no charge of misconduct being made, and where after search said depositions could not be found, and the trial was proceeded with, no objection at the time being made, held not error to overrule a motion for a new trial supported by said depositions afterwards found, on the ground of abuse of discretion in the trial court, and on account of accident or surprise, which ordinary prudence could not have guarded against.

It is only where the verdict of a jury cannot be justified upon any hypothesis presented by the evidence that it should be set aside on the ground that it is a compromise verdict.

Commissioners' Opinion, Division No. 1. Error from the Kay County Court Claude Duval, Judge.

Action by H. M. Zieglar against A. B. Woolsey. Judgment for plaintiff, and defendant brings error. Affirmed.

G. A Chappell, of Newkirk, for plaintiff in error.

Sam K Sullivan and H. S. Braucht, both of Newkirk, for defendant in error.

SHARP C.

Plaintiff sued defendant for damages growing out of an alleged breach of warranty in the purchase of a milk cow. The contract of sale was verbal. The testimony of the plaintiff tended to show that he had advertised in a newspaper for a first-class milk cow; that the defendant represented he had such a cow as the plaintiff wanted, claiming that his cow was a first-class No. 1 Jersey; that the plaintiff went out to defendant's farm and saw the cow, and that she looked to be a first-class cow, and that plaintiff at the time remarked that she ought to be milked, but was advised to the contrary by defendant, and that at the time the animal looked as if she was in misery; that plaintiff thought she was a good cow, and informed defendant that, if she was as represented, he would purchase her at a price which was afterwards agreed upon; that defendant represented the cow to be as good as he had ever seen, and that her outward appearance bore out this representation, but that the purchase was made upon the representation of defendant that she was in fact a good milk cow, and that it was upon the representation made, and not the personal inspection of the cow, that plaintiff relied, and upon which the trade was finally consummated. It developed shortly afterwards that the cow was not as it was alleged was represented, and, instead of being a good milk cow, was of little or no value, and that thereby plaintiff was damaged to the extent of his judgment. The testimony of the defendant tended to deny any warranty.

The first objection urged is to the action of the court in overruling the demurrer to the plaintiff's evidence. "The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence that has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn therefrom, there is enough competent evidence to reasonably sustain a verdict, should the jury find in accordance therewith." Moore v. First Nat. Bank of Iowa City, 121 P. 626; Solts v. Southwestern Cotton Oil Co., 28 Okl. 706, 115 P. 776. Measured by this proper requirement, it was not error for the court to overrule the demurrer, as there was testimony directly tending to support the verdict of the jury.

It is next urged that the court erred in giving instructions numbered 3 and 4. These instructions submitted to the jury the law of warranty applicable to the testimony.

In order to constitute an express warranty, no particular language is necessary. It is not required that it shall be in writing or be made in specific terms; and it is not at all necessary that the word "warrant" or "warranty" shall be used. Any direct and positive affirmation of a matter of fact as distinguished from a mere matter of opinion or judgment, made by the seller during the sale negotiations, and as a part of the contract, designed by him to induce the action of the purchaser, and actually, to some extent at least, relied upon by the latter in making the purchase, will be deemed to be a warranty. Mechem on Sales, § 1235; Tiffany on Sales, p. 162; Beach on Contracts, § 259; Parsons on Contracts (9th Ed.) p. 579; Hawkins v Pemberton, 51 N.Y. 200, 10 Am. Rep. 595; Id., 44 How. Prac. (N. Y.) 102; Fairbank Canning Co. v. Metzger, 118 N.Y. 260, 23 N.E. 372, 16 Am. St. Rep. 753; Reed v. Hastings, 61 Ill. 266; Robinson et al. v. Harvey, 82 Ill. 58; Erskine v. Swanson et al., 45 Neb. 767, 64 N.W. 216; Austin v. Nickerson, 21 Wis. 549; Jack et al. v. D. M. & F. D. R. Co., 53 Iowa, 399, 5 N.W. 537; Henshaw et al. v. Robins, 9 Metc. (Mass.) 83, 43 Am. Dec. 367; Smith v. Borden, 160 Ind. 223, 66 N.E. 683. If, therefore, the defendant made representations to the plaintiff upon which he relied, concerning the quality or character of the cow, intended by him to induce the purchase, and which representations were relied upon by the plaintiff, such direct and positive affirmations in law constitute a warranty. In 30 Am. & Eng. Enc. L. 136, it is said: "Any distinct assertion or affirmation as to the quality or character of the thing...