2 N.Y.S. 5 | Superior Court of Buffalo | 1888
This cause was originally tried before Judge Smith, who took from the consideration of the jury every question except the one of damages. The verdict of the jury was set aside by the general term of this court, on the ground that whether the transaction at the time of the sale of the seed to the plaintiffs, as related by the witnesses, taken in connection with the printed notices, was a warranty that the seed was of the variety named, was a question of fact for the jury, and the trial court should have submitted it, instead of taking it from the jury. 10 N. Y. St. Rep. 276. On the last trial the whole case was submitted to the jury, and the verdict is in effect a finding that there was an express warranty that the seed was Yellow Danver onion seed. We must adhere to our former decision that it is a question for the jury to determine; and unless the court, in the trial of the case, committed some error, the verdict of the jury must stand.
The first exception taken by the defendants’ counsel relates to the offer of the defendants to show the general custom among seed-dealers that they do not warrant seeds sold. After the defendant Harvey had testified that it had not been their custom to warrant seeds sold by them, he was asked whether this custom was not the general custom among seed-dealers. The court ruled out the evidence, and the defendants excepted to the ruling. The object of proving a general custom is to charge the purchaser with notice that he is dealing with the seller with such custom in view, and that it enters into and forms a part of the contract, in the absence of an express warranty; but the parties are competent to enter into a contract, and make such stipulations
While the onions were being harvested, Mr. Manly, a clerk in the employ of the defendants, was sent by them to the plaintiffs’ premises to examine the crop. The witness Smith, who was called for the plaintiffs, testified that he went out with Manly to look at the onions, and had some conversation with him. He was asked to give the conversation he had with Manly after he had finished looking at them. This was objected to, and the court ruled that the witness might answer. He then gave a conversation had with Manly before he looked at the onions. This was not responsive to the plaintiffs’ question, and no objection was made to the answer. The only portion of the witness’ statement that was responsive to the question was that, while coming down the road, he said: “What would be likely to be the damage of these onions, what they would have been if they had been Yellow Danvers?” Independently of the fact that he was the agent of the defendants to make the examination, it does not seem that this portion of the answer was at all material, or bore upon the main question in the case, or could have in any way affected the verdict; and that portion of the answer not responsive to the question cannot now be objected to. The court fully instructed the jury on the question raised by the defendants’ counsel’s request to charge, and was not called upon to restate the law to the jury. Thedefendants have no reason to complain of the charge, as it was as favorable to them as the evidence warranted. The order appealed from must be affirmed, with costs.
Hatch, J., did not sit in this case.