Brooks v. McDonnell, 41 Wis. 139

Brooks v. McDonnell

41 Wis. 139 | Wis. | 1876

Cole, J.

There are two questions in this case necessary to be considered: (1) as to the extent of the warranty; and (2) in regard to the admission of evidence relating to the crop of 1875. ,

The defendants claimed, on the motions for a nonsuit and for a new trial, that the language of Donahoe, as stated in the plaintiff’s testimony, was a qualified warranty, that the roots were sound, healthy roots and would grow; and that it ¡did not extend to cover any defect in the quality of the roots, or imply that they would produce a crop. The question as to the extent of the warranty is the main one to be considered. And the learned circuit court fairly submitted it to the jury, upon the evidence, to say whether the defendants only represented the hop roots to be sound and such as would grow, or whether the representations made were such as to amount to a warranty that the roots would produce hops of the ordinary quality and yield. It seems to us there was no error in leaving it to the jury to find, from all the facts and circumstances, what the parties intended by the words, the roots are £f all right and will grow;” whether this language amounts to a warranty of - the quality of the roots, their power or ability to produce hops, or whether the warranty only related to the vitality of the roots and that they would grow. The words are sufficiently broad in their meaning to include quality; and it was for the jury to say, under the circumstances, in what sense they were understood and used by the parties. It is *143said that the growing quality was all the parties talked about or had in mind, and that whatever was said should he construed as referring to that one thing. But it seems to us the question whether or not the statement or representation made by Donahoe amounted to a warranty, and, if so, what was included in it, was a proper matter for the determination of the jury. In the analogous case of Tuttle v. Brown, 4 Gray, 457, whether the statement made by the vendor of a cow, that “ she is all right,” was a warranty of soundness, was held to be a question for the jury. In Smith v. Justice, 13 Wis., 601, where a vendee bought a horse for a particular use, which was known to the vendor, and the latter said “the horse is all right,” this representation, as a matter of law, was deemed a warranty that the horse was reasonably fit for the use for which it was desired by the vendee. See also Hawkins v. Pemberton, 51 N. Y., 198; Austin v. Nickerson, 21 Wis., 543. We therefore think there was no error in submitting the question as to the meaning of the language used to the jury. The jury found, under the charge of the court, that they amounted to a warranty, not only that the roots would grow, but that they would produce hops of the ordinary quality.

The evidence as to the crop produced in 1875, as it was restricted, it seems to us was competent. It was offered solely and only for the purpose of confirming the truth of plaintiff’s claim that the roots were of an inferior quality and were wild or male roots. Ho claim whatever was made for a failure of the crop of 1875, but only for the loss of the crop of 1874. It appeared that, with the same soil and cultivation, three-fourths of an acre of other roots produced a good crop in 1875, while half an acre set with the roots in question produced a much less quantity relatively, because, as the witnesses said, these latter roots were wild or male roots. The nature or quality of the roots would affect the crop one year as well as another. Their character did not change, and if they pro*144duced small, fuzzy and -worthless hops in 1875, they would produce a like quality in 1874. This would he a natural inference. And as the evidence was offered only to prove the extent of the damages for a short crop of 1874 by comparison, we think it was admissible for that purpose.

No exception was taken to the charge of the court in respect to the measure of damages, and consequently that question is not before us. The point li tigated was, whether the representations were sufficiently broad and general to amount to a warranty that the roots would grow and were proper roots for the purpose for which they were purchased. The jury have found that question against the defendants, and we therefore think the judgment must be affirmed.

By the Court. — The judgment of the circuit court is affirmed.