21 Ill. 180 | Ill. | 1859
That the credit of a witness for veracity may be impeached by general evidence, is one of the well established rules of law. But in impeaching the credit of a witness, the examination must be confined to his general reputation, and not be permitted as to particular facts. The regular mode of examining into his general reputation is to inquire of the witness, whether he knows of the general reputation of the person in question among his neighbors, and what that reputation is. The practice in the English courts is to further inquire, whether from such knowledge he would believe that person upon his oath. The inquiry must be made as to his general character, where he is best known. It is not enough that the impeaching witness merely states what he has heard “ others say,” for they may be few. He must be able to state what is generally said of the person by those among whom he associates, and by whom he is known ; for it is this only that constitutes his general reputation or character. And it is error to permit the impeaphing witness to speak to the character of the person unless he is acquainted with such general character. In this case, neither of the witnesses, Dole and Wright, state that they knew what Lacy’s general character was, and consequently their evidence in regard to his character for truth and veracity, was improper, and should have been excluded by the court, when asked by defendant.
The inquiry also arises as to the right of defendant to recover damages on this warranty, and whether they may be set off in this suit, and as well as the measure of damages on a breach of warranty on the sale of these cattle. The rule is laid down by Chitty that, “ It is not necessary to offer to return the goods previous to an action for the breach of an express warranty, or at any other time. The purchaser may resell, and declare specially for the loss, or difference; nor is there any occasion even to give notice of the breach of warranty to the seller; but the not giving such notice will be a strong presumption against the buyer that the goods, at the time of the sale, had not the defect complained of, and will make the proof much more difficult. If there has been no offer to return the goods, the measure of damage is merely the difference between the sum given and the real value, although there has been no resale by the vendee.” Chit. Cont. 362. And the same rule is laid down by Story, in his work on Sales, 393, and it is believed to be the true rule. And, “ where the vendor of a warranted chattel, whether it is a specific chattel or not, sues for the price or value, it is competent to the defendant, the purchaser, in all cases, to prove the breach of warranty in reduction of the damages; although the goods were sold at a fixed price and have not been returned, or have been resold by the defendant, the vendee.” Chit. Cont. 363.
These authorities seem to proceed upon the ground that when the vendor has title and sells with warranty as to quality, and the purchase money is paid, or notes or bills given, and possession taken, and nothing farther remains to complete the sale, that the title passes, and the vendee must then rely on the contract of warranty to cover any loss resulting from defects covered by the warranty. And that he, by no subsequent act of his, without the concurrence of the vendor, can rescind the contract and revest the title to the property in the seller. And for that reason a notice of a defect, or an offer to return the property, is not necessary. The rule may be different in cases of a breach of warranty of title, which is not necessary to be determined in this case. And in case of fraudulent sales, as the purchaser upon discovering the defect has the right to rescind, it may be that he should give notice or offer to return before he can recover back the purchase money. We cannot perceive any reason why the party, when he has received the property with the warranty, that he should be required to give notice, or to return the property, before he may maintain an action for a breach of the warranty. The sale is not conditional, that the title shall only pass in the event that the contract of warranty is not broken. And if it is a complete cause of action without offering to return, or of giving notice of a breach of the warranty, the damages may be set off in this case, notwithstanding they are not liquidated, as they grow out of the contract sued upon. Nickolls v. Ruckells, 3 Scam. R. 300. Or they may be given in reduction of damages, when the suit is for the purchase money.
The ordinary remedy on a breach of warranty of this kind, where the price has been paid, is by an action upon the warranty. In such an action he may recover the difference between the price paid and the actual value of the property at the time and place of delivery, with all its defects and vices. So, also, if he sustain other additional injury which is the immediate result of the breach of warranty, or a natural incident thereto, he may recover damages therefor. Story on Sales, sec. 454. The measure of damages in this case would, therefore, be the difference in the contract price and the value of the cattle at the time of their delivery in their then diseased condition, together with any other immediate injury resulting from the breach of warranty. These cattle were purchased to be put immediately into the New York market, for beef, and this the defendant in error knew when he made the warranty of soundness. They were not purchased for feeding purposes, nor as cattle diseased with the milk-sickness, to be treated and cured on speculation. And their value at the time of their purchase and delivery must be fixed with reference to the purposes for which they were purchased, and not with reference to other objects not contemplated by the parties at the time. The plaintiff in error had no knowledge of the cattle being diseased until after he had removed them, nor is there any evidence in the case that such cattle could have been sold to persons with a knowledge of their diseased condition. The plaintiff in error had the undoubted right to rely upon the warranty, and to act in good faith upon the supposition that they were sound, until the disease manifested itself; and then he had a right to sell them for the best price he could obtain for such cattle. He was not bound to change his purposes and delay his trip for weeks, months, or even longer, to see if those attacked with disease would recover, nor was he bound to find a speculator and dealer in diseased cattle, affected with milk sickness. If he acted in good faith and with prudence in freighting the cattle, he had a right to recover the expenses incurred on those that died or manifested disease, which they had when purchased, before reaching New York. But after discovering that they were diseased, it became his duty to dispose of them without incurring further expense, and if he did so, such expense would not be the proximate and natural consequence of the breach of warranty, and would not be recoverable. .
If there was fraud in this case, then, to have rendered the sellers liable for the costs of keeping the cattle left on the way, notice should have been given to them of the intention to rescind the contract. But in this case there was no such notice, nor was it urged that any fraud was committed in making the sale of the cattle.
We are of the opinion that the judgment of the Circuit Court should be reversed and the cause remanded.
Judgment reversed.
