Clark v. Holmes

Headnote

Where one of makes a'h’spel cial ^ warranty, goods, the purchaser may maintain his action against who made^the warranty,without joining the other partner.

IN error, on certiorari. The plaintiff below, declared agamst the .defendant below, on a warranty, in the sale of pork. The plaintiff alleged, "that he purchased of the defendant, one hundred pounds of pork, for which he paid him 10 dollars ; and that the defendant, at the time of the sale, warranted the pork to be good and wholesome> when, in fact, it was bad and unwholesome, and totally unfit for use; and that the plaintiff, immediately, after he had examined the pork,- at home, returned it to the defendant, and demanded the 10 dollars, and the charges of transportation. The defendant below, pleaded in abatement, that the pork sold to the plaintiff, belonged to him and one Hyde, and that Hyde and the defendant, were partners in trade, under the firm of Hyde Clark, and that the action ought to have been brought against both partners. The plaintiff demurred, alleging, that he bought the pork of Clark only, and that Hyde lived out of the county. The justice overruled the plea in abatement, and the defendant pleaded the general issue. The plain*

tiff’s declaration, as to the sale, warranty, and breach, were fully proved, and the jury found a verdict for the plaintiff.