Melby v. D. M. Osborne & Co.

35 Minn. 387 | Minn. | 1886

Berry, J.

As to the making and breach of the original contract of warranty, and consequent damage to plaintiff, the evidence' was ample. As to the quantum of damage it is not so ample, nor in all respects so completely satisfactory, but we are nevertheless of opinion that there was enough to support the finding of the jury.

There is no foundation for the instruction requested and refused in reference to the effect of Exhibit B. There is nothing whatever to show that it was accepted as a new contract to take the place of the original warranty, or that it was given for any other purpose than, as plaintiff testifies, “to pacify” him, or that it was founded upon any consideration upon either side.

Exhibit D was properly excluded. It was a letter purporting to have been written by plaintiff’s attorneys, before the commencement of this action, to defendant, and, irrespective of the fact that it had no tendency to prove anything material, it was a mere proposal for a compromise of a claim, which proposal, it may be added, was, so far as the evidence shows, never accepted, nor attempted or offered to be accepted, by defendant. West v. Smith, 101 U. S. 263; Daniels v. Town of Woonsocket, 11 R. I. 4; Draper v. Hatfield, 124 Mass. 53; Gay v. Bates, 99 Mass. 263; Barker v. Bushnell, 15 Ill. 220.

The charge was clear and fair, and we see no reason to disturb the verdict.

Order affirmed.