Majority
p. 137THE SONOMA VALLEY WINE AND BRANDY CO., Appellant, v. THEODORE LAX, Respondent. Before Sedgwick and Freedman, JJ. Decided April 5, 1880.
Headnote
Sale ly sample—Mi Hence.Upon the trial, the action being for the value of goods sold, the sample by which the sale was made was not produced in court, and the evidence as to it was very vague. The plaintiff offered to read from the deposition of plaintiff’s agent the answer to the question: “From what sample of wine did you take your order from said Lax ?” which answer was excluded.
Held, error, for which a new trial must be granted.
Appeal from judgment. The facts appear in the opinion.
Edward S. Hatch, for appellant.
Jerolorman & Arrowsmith, for respondent.
The defense was that there had been a breach of a warranty, that the goods, for the price of which the action was brought, would be of a quality equal to a sample shown to defendant. The deposition of plaintiff’s agent, who negotiated the sale, had been taken. The plaintiff read from it the question: “From what sample of wine did you take your order for said wine, to said Lax?” The question was objected to as immaterial. The court excluded it. The sample had not been produced in court. The evidence in respect of it had been very vague. The defendant’s witnesses had given but a general description, and the plaintiff had a right to a
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full and exact statement of what its quality and quantity were, and from what it had been taken. For the exclusion of this question the judgment should be reversed, without passing upon the other exceptions.
Judgment reversed, and new trial ordered, with costs to appellant to abide event.
Freedman, J., concurred. •'