11 Daly 335 | New York Court of Common Pleas | 1883
[After stating the facts as — Upon an executory sale of goods, there may be an express warranty of quality, and the vendee may recover damages for breach of the warranty without returning the goods. An express agreement that the goods to be manufactured shall be equal in quality and characteristic in every respect to other goods exhibited at the time, is a warranty, and collateral to the contract of sale.
The presiding judge correctly held, therefore, that the testimony of defendants’ witness, Bull, established the warranty, and left to the jury the question of fact as to whether his testimony or Entz’s was to be credited. ■ As the jury found there was a warranty, defendants were entitled to their damages, although they had retained the goods (Day v. Pool, 52 N. Y. 416).
The question as to whether the acceptance of the goods was induced by a false representation of the vendor, is of no importance on this appeal, as it was of no consequence unless there was no warranty; for it is advanced as a reason for taking this case out of the rule as to executory sales, and for excusing a prompt examination and return of the unmerchantable goods delivered (see opinion General Term in this case, 10 Daly 292).
There was no error in the rulings on the trial calling for a reversal of the judgment. The plaintiffs excepted to allowing Mr. Bull to answer the question, whether the goods were of any value as cloakings, on the ground that there was no warranty that the goods were fit for cloakings. The evidence of plaintiffs themselves, however, was that the goods were intended for ladies’ cloakings, and were sold as fancy cloakings and invoiced as such. The evidence was
Plaintiffs excepted to the court’s refusal to allow them to ask Mr. Bull, on cross-examination, what he said to Mr. Entz after the delivery of the goods, and two or three weeks before the trial, when Mr. Entz went up to defendant’s place to look at the damaged goods. This question was properly disallowed. It was not proper in cross-examination, as Mr. Bull had not been examined on that point on his examination in chief. It was not admissible against defendants as an admission, because he was not a party to the action. If the object was to impeach his testimony, the proper question was not put. He should have been asked whether he made a particular statement, specifying what it was. But the error, if any, was cured, for plaintiffs had the benefit of the proof afterwards, when Mr. Entz went on the stand and stated all that then occurred between Bull and himself.
The exceptions to the ruling allowing Mr. Graffikin, a witness for defendants, to compare the goods delivered with the sample cards sent just prior to such delivery, are not well taken. The evidence was pertinent on the question of alleged false representations to induce acceptance of the goods.
The exception to the disallowance of plaintiffs’ question to their own witness, Brigg, as to the cost of the goods on the other side, is not well taken. It was not competent on. the question of value, and could not affect any other issue.
As to the verdict: the jury, in bringing in their verdict, stated that the goods in question should be returned. This was mere surplusage, and could be disregarded. The amount of the verdict was within the evidence. The jury allowed for 1,970-|- yards as wholly worthless out of 2,877-| yards sold. The testimony of the experts, Muller, Tiedeman and Maxwell, showed'a greater damage.
Van Brunt, J., concurred.
Beach, J., dissented.
Judgment and order affirmed, with costs.
