Byrne v. Jansen

50 Cal. 624 | Cal. | 1875

By the Court:

1. It is apparent that defendant made no express warranty as to the quality or condition of the wool in question. The conversation had between the defendant and the plaintiff’s agent, O’Connell, did not amount to a warranty. O’Connell- had dealt in wool in the county of San Bernardino for a number of years. He kneAv the defendant’s sheep and the range on which they ran. He evidently had an opinion of his own, founded upon his personal knowledge of the defendant’s business, as to the quality of defendant’s wool, and he stated at the trial that the defendant’s wool “was supposed to be as good as any in the county.” There is nothing in the circumstance that the defendant expressed a somewhat favorable opinion of his wool, that he indulged an opinion that, while Mr. Conn’s wool might be a little finer than his own, his was fully as profitable as Conn’s for manufacturing purposes. This was mere praise of his own property—the simplex commendatio which is allowable in making a trade, and is not held, by the rule of the common law, to amount to a warranty.

2. Nor do we think that the court below erred in holding that under the circumstances attending the sale there was no implied warranty of the quality or condition of the wool. Some of these circumstances have been adverted to already. The defendant, when the contract of sale was in progress, invited O’Connell to go and inspect the sheep; he declined; said he knew something of them; said “he would make the bargain anyhow, without seeing them.” Again, when the wool was subsequently delivered, the plaintiff had an opportunity to inspect it, but did not avail himself of it. It was delivered at the plaintiff’s store in sacks. The plaintiff might have examined the wool then. That it might have been inconvenient for him to do so is unimportant. Had he done so, the inferior quality of the article would have appeared. Under such circumstances, no artifice having been resorted to by the defendant to prevent the examination, the maxim caveat emptor applies.

3. There is nothing in the supposed errors of law requir- ■ ing particular notice. All of them, save one, seem to have been abandoned by the appellant’s counsel. That one concerns the action of the court in refusing to permit the plaintiff to explain why he had so long delayed the bringing of the action. But as it is conceded by the counsel that the testimony of Lee and Christy furnishes the desired explanation of the delay, the ruling becomes unimportant. Judgment and order affirmed.