83 W. Va. 727 | W. Va. | 1919
The plaintiff is a dealer in automobiles at Middlebourne, .in Tyler county, West Virginia-, and the defendant is a dentist practicing at New Martinsville, in Wetzell county. In the month of April,-1913, after some negotiations in regard thereto, the defendant purchased from the plaintiff a five passenger Mitchell automobile. He claims that at the time-of the purchase the plaintiff explained to him-that this car was superior to any other car selling at the same price, and advised him that it was the only one that he would warrant to run satisfactorily, and that he did at the time
Upon the trial of the ease the defendant filed his notice of recoupment claiming that by reason of the plaintiff’s failure to deliver him a ear in accordance with his contract he was damaged in an amount equal to the amount sued for, and for that reason that the plaintiff was not entitled to recover, and further filed an offset for an amount which he claimed the plaintiff owed him for dental work done by him. Upon the trial of the case the jury found a verdict in favor of the plaintiff for the sum of four hundred dollars, and upon this
A great deal of argument is indulged in by counsel as to the nature of the -warranty ma.de by the plaintiff, if there was any warranty in this case. The plaintiff’s counsel contends that inasmuch as the defendant admits that he purchased a five passenger Mitchell automobile of the 1913 model, that there could not be any express warranty of quality of this machine. This does not necessarily follow at all. It is ordinarily true that where an article is sold under an execu-tory contract by description, or by a certain trade name, there is an implied warranty that it will be a merchantable article of the kind described, but this implied -warranty of merchantability will not ordinarily arise where there is an express warranty of quality. Meehem on Sales, § 1342. In this particular case we have an executory contract for the sale of a particular kind of automobile, according to the defen-ant’s contention, with an express warranty as to its quality, and, according to the plaintiff’s contention, with only an implied warranty that it would be a merchantable article of the bind bought. As to which of the parties is correct depends upon how the jury will find the facts as between them. If they find that there was an express warranty as contended for-by the defendant, then reliance must be had thereon. If, however, they find there was no such express -warranty, then the recoupment asked for by the defendant must be based upon the implied warranty or condition that the automobile furnished would be a merchantable one of the kind purchased. So far as the merits of this controversy go it can make little difference which party’s contention is correct. It is proved beyond doubt, in fact it is not sought to be denied,
The action of the court in refusing to give a number of instructions offered by the defendant is assigned as error. It would serve no-useful purpose to take these instructions up and discuss them in detail. What we have said sufficiently indicates the proper rule to be followed in determining the rights of the parties in this case, and will afford a sufficient guide to the lower court upon a retrial thereof.
We reverse the judgment of the circuit court complained of, set aside the verdict of the jury, and remand the cause for a new trial.
Reversed and remanded.