80 N.Y.S. 34 | N.Y. App. Div. | 1902
The plaintiff’s exceptions should be sustained and a new trial granted, with costs to plaintiff to abide event.
The action was brought to recover damages for breach of warranty upon the sale of seed oats. The case has been in this court before upon an appeal from a judgment for plaintiff entered upon the verdict of a jury. That judgment was reversed, and a new trial granted (see 68 App. Div. 531). Upon a second trial the court, without permitting a cross-examination of most of the plaintiff’s witnesses, and without waiting for the defendant to put in any evidence whatever, invited a motion for nonsuit and granted it at
Upon the first trial the evidence showed that the plaintiff at the time he received the oats, and before he sowed any of them, took the card found in the oats and read it. Ho suggestion was then made that he did not read the whole of its contents. On the second trial he testified that he did not at that time observe or read the part of the card near the bottom, and in smaller type, and that he knew nothing of that until long after the oats were all sowed. Upon the first trial the evidence showed little or no examination by the plaintiff of the oats when he received them and before they were sowed, merely that he took some up in his hand, and let them run off into the bag. On the second trial, both he and his witnesses testified in great detail to the care used by them in examining the oats before they were sowed. On the first trial it appeared that the most casual examination of the oats would disclose the presence of the foreign seeds therein. Upon the second tidal it was shown that they were not discovered until nearly all the plaintiff’s oats had been sowed, though very carefully examined by the plaintiff and his witnesses. So that while the facts, as stated in our former opinion, were that the card in the oats was read by the plaintiff when he received the oats, and the foreign seeds could have been discovered before the oats were sowed, by the most ordinary and casual examina
It is said, however, as to the fine pz-int upon the cards found in the oats, that it was there and the plaintiff was bound to read it and to know what it was. The claim znade by the plaintiff is that he did not know or understand that this fine print upon the bottom of the card was designed to be a contract binding upon the parties, containing the terms and conditions upon which the oats were to be accepted by him and sowed. If the fine print matter was to be regarded as such a contract, it must have been assented to by the plaintiff, otherwise the minds of the parties did not meet, and under all the circumstances it could hardly be held as a matter of law that he was bound to know or understand that it was intended as such a contract and to read or know its contents.
It was very likely a question for the jury whether, coming to him as it did, he was bound to read it and know its contents, and that receiving it and accepting the oats without objection amounted to an assent to the terms thereof as a contract under which the oats were accepted and sowed. (Blossom v. Dodd, 43 N. Y. 265.)
We cannot, therefore, upon this motion regard the fine print upon this card as a part of the contract between the parties as we did do on the former appeal.
We must determine this motion then upon the revised statement of fact indicated by the foregoing suggestions, and the question now involved may accordingly be stated as follows : The oats having been purchased for sowing, having contained a considerable quantity of mustard seed, which could not be discovered by an ordinary inspection or examination before sowing, more than an ordinary inspection and examination having been made by the plaintiff before sowing the same, and he not having discovered the presence of the mustard seeds, the seeds having been discovered after most of the oats had been sowed, but not even then known to be mustard seeds, the remainder of the oats having been sowed, and the discovery that they were mustard seeds not having been made
In the absence of the printed matter upon the card, however, and considering the matter in the catalogue alone, it can hardly be said that this warranty covered the defect here complained of, the presence of mustard seeds in the oats. Hone of these words, used as they were, fairly implied that the defendant referred to the purity of the seeds, the freedom from noxious seeds, as the language upon the card clearly did. The words used in the catalogue were, at best, of doubtful meaning, and could not be regarded as notifying the plaintiff that they had so limited defendant’s liability as to require the plaintiff to look specially for the presence of noxious seeds, or else lose all right to redress for the presence thereof in the oats, except to have his order refilled. The express warranty in the catalogue, and the redress provided for a breach thereof, did
The views hereinbefore expressed lead us to conclude that the plaintiff’s exceptions should be sustained and the motion for a new trial granted, with costs to the plaintiff to abide event.
Adams, P. J., McLennan, Spring and Hiscook, JJ., concurred.
Plaintiff’s exceptions sustained and motion for new trial granted, with costs to the plaintiff to abide event.