21 S.E. 917 | N.C. | 1895
This is an action for damages upon an alleged false warranty in the sale of a steam engine in which plaintiff recovered and defendants appeal, and file 44 exceptions to the ruling of the court. We do not expect to take up and discuss these exceptions seriatim, but only to discuss such of them as will dispose of the case on appeal, as many of them will in all probability not arise again.
The defendants moved to discuss the action for want of due service. This motion had been made and passed upon some terms ago, upon affidavit, as to whether the defendants Brem McDowell were agents of the other defendant in making the sale complained of. And if there had been any reason for doubting the correctness of the finding of the court at that time (and we do not see that there was), there certainly is none now, when this question has been submitted to a jury and found that they were the agents of the Watertown Steam Engine (802) Company. This motion overruled.
Defendants then moved for judgment on the findings of the jury (non obstante, we suppose). This exception was not argued and we suppose was virtually abandoned. But if it was not, we see no ground upon which it can be sustained, and it is overruled.
Exhibit 5 contains the contract for the sale of the engine, which in our opinion shows that Brem McDowell acted as agents of the Watertown company in making the sale. And that it also constitutes a sale with warranty.Thomas v. Simpson,
The defendants insist that they were entitled to their first issue as to whether there was a sale or not. And ordinarily it seems to us that this would be so. But in this case it seems not to be denied that there was a sale of an engine by Brem McDowell to the plaintiff. And we suppose defendants insisted on this issue upon the ground that Brem McDowell were not the agents of the Watertown company. And as this was submitted as a distinct issue and found that they were, we think this supplies any apparent necessity for this issue. There was been much discussion (to be found in our reports) as to what are proper issues. But we think it has been finally settled that if the issues as submitted embrace the substantial contention of the parties, in such manner as not to deprive either party of the benefit of a substantial right, this is sufficient. And applying this rule we do not see that defendants were prejudiced on account of the court's not submitting this issue, and must overrule this exception.
Defendants contend that plaintiff's action is barred by the statute of limitations. And as to the defendants Brem McDowell, we would hold this to be so, under the cases of Blount v. Parker,
This brings us to the consideration of his Honor's charge upon the statute of limitations. The question of the statute of limitations is a mixed question of fact and law. And it is true, as stated by his Honor, if there is no dispute as to facts, then it becomes a question of law and the court should instruct the jury as to their verdict. But where there are disputed facts, as to when it started to run, (805) then it is the duty of the court to submit that question to the jury. In this case it depended (as to Brem McDowell) as to when plaintiff first had knowledge that the engine sold it was not a 150 H. P. engine. It was in evidence that plaintiff more than three years before the commencement of this action, had in its possession a catalogue of the Watertown company, which tended to show that the engine sold plaintiff was not a 150 H. P. engine. What Ward said about it, and other evidence which tended to show knowledge, was, at least, enough to make it a disputed question of fact. And this being so we think it was error in the court to instruct the jury that from all the evidence in the case they should find that the statute of limitations had not run. We also think there was error in his charge upon the *469
question of damages. Plaintiff gave in evidence the cost of transportation and putting down both engines. And defendants contend that under his Honor's instructions the jury charged them with this expense for both engines. If this is so, it seems to us it is clearly wrong. If plaintiff had gotten the last engine first, it would have been compelled to have borne this expense. Why then charge it to defendants? If defendants are liable, it should only be for the expense of the defective engine. It may be the defendants were not charged for both by the jury. But we have examined his Honor's charge, and can nowhere find that they were instructed as to this matter. And as the evidence was allowed and they were not instructed as to it, we think it probable, indeed most likely, that the jury did charge defendants with both. We also think there were other errors in his Honor's charge upon the question of damages. It was too broad. The rule in cases like this, as we understand it, is to allow such damages as naturally arise from the false warranty, but not for everything that may result therefrom.Ashe v. DeRosset,
There are other exceptions in the case, which we do not think necessary to pass upon now, as they will likely not arise on a new trial. But for the errors pointed out we are of the opinion there should be a new trial.
New Trial.
Cited: Ricks v. Stancill,
(807)