Cook v. Moseley, 13 Wend. 277

Cook v. Moseley

13 Wend. 277 | N.Y. Sup. Ct. | 1835

By the Court,

Sutherland, J.

Whether what was said by the defendant was intended as a warranty or not, was a question of fact to be decided by the jury, or, in this case, by the justice before whom the cause was tried. The defendant affirmed positively that the mare was not lame. It was not the mere expression of an opinion ; and he accompanied it by the declaration that he should not be afraid to warrant her. I think enough was said to amount to a warranty. It is not necessary that the term warrant should be used. 19 Johns. R. 280, 484. 2 Cowen, 484. 10 Wendell, 413. The *279evidence was contradictory upon the question whether the mare was in fact lame at the time of the sale. There certainly was some evidence to show that she was. This was a pure matter of fact. The justice gave judgment for the plaintiff for $10, and the court of common pleas of Oneida county, upon certiorari, affirmed the judgment. We cannot say that there was any error, in point of law, in the decisions of the justice or the common pleas; and their decisions upon questions of fact are not the subject of review upon writ of error. Whitney v. Sutton, 10 Wendell, 411. The declaration, I think, was obviously intended to be upon a warranty.

2. The former suit, brought by Cook against Moseley for a part of the price of the mare, was no bar to this suit. Moseley could not have set off his damages for a breach of the warranty in that action. The amount was not liquidated, or capable of being ascertained by calculation, 2 R. S. 234, § 50, sub, 3; and those demands only are barred which might have been set off, 2 R. S. 236, § 57. Conceding that the breach of warranty or fraud might have been given in evidence in the former suit in diminution of damages, the party was not bound to do if, not was he prejudiced by the omission. Read v. M’Alister, 8 Wendell, 115.

3. It would have been more technical and formal to have set out the certiorari in the record, instead of reciting the fact that the cause had been removed by certiorari into the court of common pleas ; but it is not a substantial objection, and may therefore be disregarded.

The statute, 2 R. S. 210, § 16, is applicable to a case like this, and dispenses with the necessity ofenteringcontinuances upon the record from term to term.

As to the signing of the record : if the officer signing it had not authority, the defendant should have moved to set it aside. 2 R. S. 282, § 35, 37. There is no foundation for the writ of error, if the record is not signed by a competent officer. It is not a question to be entertained and decided on error.

Judgment affirmed.