1 N.D. 325 | N.D. | 1891
This was an action to recover damages for a breach of warranty in the sale of certain seed wheat. At the close of plaintiff’s testimony, and again when the testimony was all in, appellant moved the court to take the case from the jury, and direct a verdict for defendant, for the reason “that the sale mentioned in the complaint was not a sale with a warranty; that it was only an executory contract for subsequent sale and delivery of wheat; and that the subsequent acceptance of the wheat, with opportunity for examination, bars any action for recovery by reason of the wheat not being as contracted for.” The adverse ruling on this motion raises the first question in the case. The contract was made at a distance of several miles from the wheat. Plaintiff was represented by her husband, who acted as her agent. The amount, price, terms of payment, and security to be given were agreed upon, and, as plaintiff claims, the warranty was given. Plaintiff not being present to execute the note and mortgage, the papers were prepared, and taken to plaintiff, who signed them, and returned them the following day by her husband, who delivered them to an agent of the defendant, and received an order for the wheat. At that time the wheat was in the possession of another agent of defendant, and was an unseparated portion of a much larger quantity of wheat of substantially the same quality. Plaintiff sent her son, a young man nineteen years of age, after the wheat, and' it was
The case of Osborn v. Gantz, 60 N. Y. 540, cited by appellant, was a case where the purchaser refused to accept the goods. In executory contracts for the sale of personal property, the acceptance of the property by the vendee, with full opportunities for inspection, and where he is not induced to refrain from inspection through any fraud or artifice of the vendor, is generally regarded as an admission that the property corresponds with the terms of the contract of sale. Reed v. Randall, 29 N. Y. 358; Dutches Co. v. Harding, 49 N. Y. 321. But this rule does not cover latent defects, or defects not readily discernible on inspection. It is entirely competent, however, for the vendor, in an executory contract of sale, to make an absolute warranty of the quality of the goods. It is purely a question of intent. If he intend to extend the warranty beyond the delivery, and make himself responsible for any damages that may result in case the goods are not as represented, and if the other party so understand it, he is bound. In this respect the law is the same whether the contract of sale be executory or in prcesenii. Patent defects are not within the warranty in either case. And in either case, where defects are discovered after delivery, the vendee is not bound to’ return or offer to return the goods, but may retain and use the same, and bring his action upon the warranty. In Day v. Pool, 52 N. Y, 416, Peckham, J., delivering the opinion of the court, says: “In addition to the mere contract of sale in an executory as well as on a sale in
The fourth assignment of error is closely allied to the foregoing. Appellant asked an instruction, which was refused, covering the thought that if plaintiff accepted the wheat, and retained and used it without objection, the presumption was conclusive that the property conformed to the contract, and that such acceptance barred all claims for compensation on account of any defect shown by subsequent inspection. The authorities already cited show that such is not the law. The defect claimed in this case was that the wheat had been heated
It is assigned as error that the verdict is against the charge of the court, because the court charged the jury that in order to find a verdict for respondent they must find certain propositions sustained by a clear preponderance of evidence, and it is claimed that the preponderance of the evidence is against each of these propositions. But it must be evident that we can never disturb the judgment on this assignment until we are willing to substitute the views of this court as to the weight of testimony for those of the jury. It needs no citation of authorities to show that we cannot do that where there is any substantial conflict in the testimony, as there certainly is in this case. Appellant had testified that he did not care to sell wheat to respondent, and was asked by his counsel to explain why. Under objections, the appellant was not permitted to explain. The
Another witness for appellant, who had been engaged in farming for many years, was asked this question: “Did yon ever hear of any farmer asking another to guaranty to him the quality of wheat?” An objection to the question was sustained, and we think rightfully so. The competency of the question is not apparent, and the record does not show that appellant stated for what purpose he asked it, or what he proposed to prove. In the absence of such showing, we cannot presume error. Mordhorst v. Telephone Co., (Neb.) 44 N. W. Rep. 469. The remaining assignments of error are entirely within the foregoing rule. We find nothing in the record that requires a reversal of the judgment below, and it is accordingly affirmed.