Drew v. Edmunds

60 Vt. 401 | Vt. | 1888

The opinion of the court was delivered by

Veazey, J.

When the plaintiffs got word that there was difficulty with the governor they made a proposition to furnish another with all the fittings, etc., and take back the old one, at a difference of $45. The defendants accepted the offer without objection or condition'. Whatever might have been the right of the defendants independent of this arrangement, we hold that having gone into it they must stand by it. The plaintiffs had the right to undersfand, by the acceptance of their offer without notice of other claim, that the acceptance was according to the terms of the offer.

The plaintiffs are therefore entitled to recover the item of $45, with interest thereon since April 1, 1881.

The plaintiffs insist that the defendants cannot maintain their claim in offset for several reasons. First, that there was no warranty in the sale of the engine and boiler. The referee finds there was a warranty, and bases that finding on the statement in the printed slip (taken in connection with other findings) , that the engine had been overhauled and put in good working order and was in good order and complete in all its parts. It is further found that this description and representation constituted the basis of the purchase-by the defendants and were relied upon by them as the plaintiffs well knew, and that they knew nothing about such property as to its value or quality, and had then-had no experience in using it, and it did not appear that either of the defendants examined the engine and boiler before the purchase.

Tbe findings are explicit that the defendant Edmunds, who made the purchase, told the plaintiffs that he had no knowledge of such property, and if he bought this engine and boiler he should rely upon the plaintiffs’ description of them; and that he also told the plaintiffs for what purpose he wanted them, which was the sawing of logs into lumber in a saw-mill. The plaintiffs were dealers in engines and boilers in Manchester, N. H.

In Hogins v. Plympton, 11 Pick. 99, Shaw, Ch. J., said: “There is no doubt that, in a contract of sale, words of description are held to constitute a warranty, that the articles sold are of the species and quality so described.” Again in Winsor v. Lombard, 18 Pick. 60, the same learned judge said: “It is now held that, without express warranty or actual fraud, every person who sells goods of certain denomination or description, undertakes, as part of his .contract, that the thing delivered corresponds to the description, and is in fact an article of the species, kind and quality thus expressed in the contract of sale.”

This doctrine has been reasserted in many cases in Massachusetts and elsewhere. In this state in Beals v. Olmstead, 24 Vt. 114, it was held that when the vendor’s statements form the sole basis of the sale, his declarations are ordinarily to be regarded as a warranty.

The referee finds that the engine was not in good order and complete in all its parts, nor had it been put in good working order, according to. the printed description. There was therefore the positive affirmation that the article had certain qualities which the referee finds it did not have, and this affirmation was relied upon as the basis of the sale and was so understood by the vendors. In Pasley v. Freeman, 3 T. R. 57, Buller, J., referring to the early cases of Cross v. Gardner, Carthew 90; 3 Mod. 261, and Medina v. Stoughton, 1 Lord Raymond, 593; Salk. 220, said: “It was rightly held by Holt, Ch. J., and has been uniformly adopted ever since, that an affirmation at the time of a sale is a warranty, provided it appear in evidence to have been so intended.” In determining whether it was so intended, Benjamin, in his work on Sales, s. 613, says : “A decisive test is whether the vendor assumes to assert a fact of which the buyer- is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion, and to exercise his judgment. In the former case there is a warranty, in the latter, not.”

In view of all the facts in the report we think it impossible to predicate error in the conclusion of the referee that there was a warranty.

It is further claimed that the breach found by the referee is in respect to a latent defect. An express warranty covers a latent defect. But we do not think the defect in the steam chest as found by the referee was a latent defect. It was readily discoverable, on taking off the cover, that the chest had been badly eaten by steam, and had been fixed up with red lead or putty. It would seem that such a defect could not escape observation in overhauling an engine, as the plaintiffs said they had done. The defendants could not discover the defect, because not visible until the cover was removed, and they would have no occasion to take it off if in good order. They had the right to rely on the representation.

It is further claimed that the offset did not accrue to both defendants, and so must fall.

We see no good ground for severing the deal. It ran through several months and -the plaintiffs always treated it as a deal with both defendants, and made their writ and specifications against both. They are in no situation to deny a counter-claim in the law suit in behalf of both.

Judgment reversed; and judgment for the defendants for $28.44, without costs.