No. 13274 | Cal. | Mar 1, 1890
Action to recover damages for breach of contract of sale by defendant of two harvesting machines. Verdict and judgment for plaintiffs. Appeal by defendant from the judgment, and order denying its motion for a new trial.
Several points have been discussed by counsel, which have to be determined.
We are of opinion that the court did not err in its ruling in excluding the papers, copies of which are annexed to defendant's answer, when offered the second time. They had been already offered and admitted; We cannot see that because they were read in evidence as a part of the cross-examination of other witnesses, therefore they were not in the ease for all purposes for which they were admissible. The papers having been already put in evidence, the court did not err in refusing to allow them to be put in the second time. Nor does it make any difference that they were excluded when offered a second time for a reason not legally tenable. They w'ere, as said above, already in for all purposes. Though the ground of their exclusion on the second offer may have been untenable, that was not equivalent, when they were already in, to a ruling that they were not evidence at all. We see no error in the ruling of the court which would justify a reversal.
The refusal of the court to allow evidence that other machines made on the same pattern and of like materials did good work is not error. It involved an inquiry into the working of other machines on an outside issue. The other machines may have worked well, and still those in question may have failed to do so. The conditions may not have been the same in both cases. The machines may have been better constructed than those involved in this case.
We think the instructions 1, 3, and 5 were properly given. They were applicable to the evidence. Instruction 5 was in accordance with the testimony as to representations referred to in it, which were properly submitted to the jury, to determine whether or not they were intended by defendants as warranties.
We perceive no such variance between the averments in the complaint and the evidence as to render any of the instructions erroneous.
The averments in the complaint are sufficient to embrace such warranties.
There was no error in the instruction given-as to the return of the machines in the spring of 1885. The averments of the complaint were sufficient to include it.
Instruction B, requested by defendant, was properly refused, for the reason that it had already been given at the request of defendant in instruction 3.
The court did not err in allowing the question respectively put to Fox and Tilton.
The evidence is sufficient to justify the verdict.
McFakland, J., and Shabpstein, J., concurred.
Hearing in Bank denied.