Brigg v. Hilton

There is no pretense that the plaintiffs were guilty of any fraud. The learned counsel for the defendants disclaimed it upon the trial and stated that the claim was “ for a breach of warranty.’.’ The law of the case as stated without objection by the trial judge will not allow the sale to be treated as one by sample, and the first point made by the appellants is “ that there was no evidence of a warranty.” Of

“ ETbw York, March 6th, 1880.

“ Order from Messrs. A. T. Stewart & Co.

„ tt To Brigg, Entz & Co.

“ 10 pieces fancy cloakings, 1,311, @ $3.20.”

(Followed by other similar items but of different numbers.) “10 “ “ “ 1,246, @ $3.25.”

Also followed by similar items, making in all “ 120 pcs.”

“ Delivery 1-2 in J une,

1-2 in July.

“BEIGG, EHTZ & CO.”

It was conceded that the goods referred to therein as “$3.25,” were the goods in question, and the plaintiffs having put the paper in evidence, “ objected to any oral testimony tending to set up a warranty with regard to the sale of these goods, on the ground that it contains the contract between the parties in relation to them.” We think the instrument cannot be so construed. It acknowledges an order for certain articles, a period of delivery and a price. It is an admission of these things by the party signing it, and not at all the contract of both —a mere memorandum to show what had been ordered, that one party might know what they were to supply, and the other what they were to receive, and so avoid a double order. It contains no promise nor undertaking. It does not sell the goods nor does it assume to do so. It was not intended to be a contract. “ It went to Europe,” E. says, “ to the manufacturer,” a copy was entered in the plaintiffs’ book and a copy given to the defendants. It afforded information by which each of these parties might be guided, and can at the utmost be considered as the recital of things which had been agreed upon, not as an agreement in itself. (Union Trust Co. v. Whiton, 97 N. Y. 172 .) But even an agreement may be valid although only a part is in writing, and while as to that part the writing is conclusive, paroi evidence may be used to show the rest. (Chopin v. Dobson, 78 N. Y. 74 .) , We think, therefore, no error was committed by the trial court in receiving the paroi testimony, and under it and the verdict of the jury,

It was proved that the goods were delivered in August and September, and paid for in October and November. The defendants, therefore, had ample opportunity to examine them, and had they done so it is conceded that the defects now complained of would have been discovered. These circumstances are also relied upon by the plaintiffs as an answer to the defendants’ counter-claim. But where a sale is made in good faith, with a warranty of quality as.part of the contract, it is sometimes said to be not even voidable (Pollock’s Princ. of Cont. 422; Voorhees v. Earl, 2 Hill, 288 , where the English cases and others are examined), and at other times that the vendee is not bound to rescind the contract, but may, if he elects, use the article and rely upon the warranty. The first part of this proposition was thought by Pkckham, J. (Day v. Pool, 52 N. Y. 416 ), to be regarded as settled in this State, but it is not material here. The defendants stand, if at all, on the last alternative, and are supported by Muller v. Eno ( 14 N. Y. 597 ), a case very much like the present. The goods there in question had indeed been manufactured, but at the time of sale were in the bonded warehouse unopened and were thence delivered to the purchaser in the original packages. I do not see that this circumstance at all affects the principle on which the rights of the parties depend. In the case cited the sale was by sample, with warranty that the goods corresponded with it. In the case before us specimens of cloths were exhibited to the purchaser with a warranty that those to be furnished should be of like quality. In both the articles shown, were sound goods. It is difficult to see why in one case as in the other the party promising should not perform his engagement, or failing to do so, render just compensation-to him who relied upon the promise. Nor can it be material whether the liability for breach of warranty is enforced by a direct action for damages, or by way of counter-claim, or when sued for the price as in Muller v. Eno (supra), by way of recoupment. In that case it is said the claim is not barred by the continued

In Day v. Pool ( 63 Barb. 506 ; affirmed in this court, 52 N. Y. 416 ), the circumstances were in a more literal sense like those before us. The action was for an alleged breach of warranty in an executory contract for the sale and delivery of rock-candy syrup. The defendants were dealers in syrups in the city of New York, and the plaintiffs were wine makers in Chautauqua county. It appears that at the time of sale the syrup was not manufactured, but was subsequently to be procured "by the defendants of the manufacturers' in Boston. A sample was exhibited and an order given for syrup of that description.

There was also on the part of the vendors an express warranty as to quality.- The syrup was delivered in different lots. The evidence warranted a finding, and it was'not eonti*overted by the plaintiffs, that the quality of the syrup could be detected on examination before using, and that it was in fact discovered and known to them at the time they used it, but although found not to correspond either in kind or quality with that agreed to be sent, it was not returned but used and paid for. At the trial the plaintiffs were nonsuited upon the ground that the agreement being executory, and the syrup delivered and received under it with knowledge of its quality, and converted by the plaintiffs to their own use, without notice to the defendants that they would not receive-the same upon the contract, or any offer to return it, they could not recover. The nonsuit was set aside and a new trial granted by the Supreme Court, Fourth Department, after a careful examination of earlier decisions. Upon appeal by the defendant

In Parks v. Morris Axe and Tool Co. ( 54 N. Y. 586 ), after referring to Muller v. Eno and Day v. Pool, the court held in a ease properly calling for .such decision, that a warranty might accompany an executory contract and be enforced as such. Indeed, the principles of law applicable to either case should now be deemed well settled. If the sale is of existing? and specific goods, with or without warranty of quality, the title at once passes to the purchaser, and where there is an express warranty, it is, if untrue, at once broken, and the vendor becomes liable in damages, but the purchaser cannot for that reason either refuse to accept the goods, or return them. If the contract is executory, and the goods yet to be manufactured, no title can pass until delivery or some equivalent act to which both parties assent, and when offered, the vendee may reject the goods as not answering the bargain, but if the sale was with warranty, he may receive the goods and then the same consequences attach as in the fomer case, and among , others, the right to compensation if the warranty is broken. j

It would seem, therefore, that the learned trial judge com

It was not suggested that there was no evidence upon which the jury might answer the question, nor that it was not within the issue. It is, however, unnecessary to discuss the exception, because the jury found specifically that there was an express warranty of quality, and no fault was found with, nor exception taken to the instructions that in such a case the defendants were neither bound to return the goods, nor give

The appellants make a further objection that the verdict was irregular and improper. In form it 'is unusual. It is quite likely it expresses some of the reasoning by which the jury reached their conclusion. The defendants asked to be allowed $7,269.53, or besides canceling the plaintiffs’ demand, $5,299.53, with interest. The jury by their verdict say they allow the defendants $6,404.53, or deducting the plaintiff’s claim, $1,286.50. It is less than the evidence would have warranted. They show, also, how they arrived at this sum, and indicate an expectation or opinion, or, as the appellants construe the verdict, “ recommended ” that the damaged goods “ be returned.” The objection is to this clause. It should have been urged at the time the verdict came in and before it was recorded. The jury might then have been sent back to reconsider and correct it as they saw fit, either in form or substance. (Warner v. N. Y. C. R. R. Co., 52 N. Y. 437 .) The plaintiffs, however, were silent. But they had another opportunity. Judgment was entered. It recited in due form the trial of the issues and a general verdict for the defendants for the sum above stated, viz. : $4,286.53, and judgment accordingly. If the “recommendation” of the jury was of any significance or meaning, it was for the advantage of the plaintiffs, and could have been insisted upon by them. They were entitled to have the judgment conform to the verdict. So, also, it could be waived. W ith notice of the judgment in the form stated, they made no complaint of variance between it and the verdict, nor did they move to make it conform to the verdict. They should have done so. (Williams v. Thorn, 81 N. Y. 382 ; De Lavallette v. Wendt, 75 id. 579.) The clause, however, was properly treated by the court as surplus-age, and in the judgment they corrected the verdict by dropping the superfluous parts, yet literally followed the finding which gave the sum stated “ for the defendants.” Thus both

In Taylor v. Willes (3 Croke, 219), an action of assumpsit, the jury found for the plaintiff and “ assessed for damages thirty-three pounds, six shillings, eight pence, to be paid in dyeing, if by law it may be.” The judgment given was that he should recover the sum stated for damages assessed by the jury. Upon error brought, the court held the assessment of damages good, “but that which is found after, void,” and therefore the judgment was affirmed.

This is but an instance of the general rule that if juries find matter not submitted to them and not pertinent to the issue joined, it may be regarded as surplusage. (Richmond v. Tallmadge, 16 Johns. 312 .) Within this rule we think the court below properly dealt with the question.

The exceptions to evidence have been examined. They seem unimportant and have been sufficiently considered by the General Term. We agree, therefore, in the conclusion reached by that court, and think the judgment and order appealed from should be affirmed.

All concur except Buger, Ch. J., not voting.

Judgment affirmed.