C. Aultman & Co. v. Ginn, 1 N.D. 402

C. Aultman & Co. v. Ginn

1 N.D. 402 | N.D. | 1891

Corliss, C. J.

Under the pleadings the defendant in effect became plaintiff. He admitted plaintiff’s cause of action, and sought to recoup damages for breach of warranty on sale of a self-binding harvester for which the notes sued upon were given. So far as the machine was concerned, the measure of defendant’s damages on breach of warranty was the difference between the value of the machine had it been as warranted and its actual value at the time of delivery. Comp. Laws, §4593. There being no evidence to the contrary, the presumption is that the property would have been worth the contract price had it been as warranted. In receiving evidence as to its actual value, the court erred in allowing this question to be answered: “I will ask *404you wbat a self-binder is worth, that fails to be useful as a machine of that character, if it is no use as a binder or harvester?” The question was properly objected to, and over this objection the witness was allowed to answer: “It ain’t worth anything.” The answer was very damaging. There was nothing in the case to warrant such an inquiry. There was no trouble except with the binder, and a careful examination of the plaintiff’s own testimony on cross-examination discloses the fact that the defect in the binder was not a very serious one. He said that there was no trouble in cutting or elevating the grain; that the only difficulty was in binding, and the breaking of sway-bars; that it would not bind over half of the grain. The hypothetical question that we have quoted assumed a state of facts not only unwarranted, but in direct opposition to the evidence as it fell from the plaintiff’s own lips. For this error the judgment must be reversed, and a new trial ordered. No other question will be considered, because the respondent has failed to file any brief in support of his judgment.

All concur.