32 Ind. 355 | Ind. | 1869
The appellee sold to the appellants a quantity of kiln-dried corn-meal, of his own manufacture, for
The court instructed the jury, that if the meal was sold for shipment to a southern market, a warranty would be implied that it was properly packed and fit for such shipment, and such as was contemplated by the purchase, but not that it would continue sound for any particular or definite length of time. .The appellants’ counsel suggests that that part of the instruction put above in italics contravenes the rule of law as held in Brenton v. Davis, 8 Blackf. 317, and the authorities thei-e cited. The argument is, that under the instruction the jury would understand that they must find for the defendant in the' absence of positive proof that the meal was unsound and spoiled when delivered. We do not so understand the instruction, and do not see how the jury could so understand it. It is plain, in the nature of things, and was made plain by the evidence, that the period during which corn-meal properly dried and packed, and reasonably fit for shipment to Hew Orleans, will remain sound, is not definite and certain, but depends greatly upon Unforeseen contingencies, such as the season, whether unusually wet or dry, the degree of exposure, and the manner of storage during the voyage. The implied warranty would not cover these contingencies.
Affirmed, with costs.