4 Daly 277 | New York Court of Common Pleas | 1872
—This verdict cannot be disturbed. The judge told the jury that “ where there is some confusion or misunderstanding between the parties as to whether the property was warranted as a certain thing, or of a certain quality, the undertaking of the parties, or the intent, must be left to the jury and that they are to say as to whether there was a warranty of the goods as fit for a certain purpose, or as of a certain quality.” After this general observation he left it to the jury to say whether the lamp-black was warranted as fit to be used for printers’ ink or not, and as they found for the defendant, we must assume, in support of their verdict,
Ho particular words are necessary to constitute a warranty. A representation or any positive affirmation of the state, quality, condition or fitness of the thing sold, which may be supposed -to have entered into the consideration of the sale, showing an intention to warrant, and which was so understood and relied upon by the purchaser, will amount to a warranty. This is of course distinguishable from a mere recommendation of the article, or the expression of an opinion respecting it, or the innumerable things that a vendor will say to enhance the value of •his commodity and induce the sale of it, such as its cheapness, ■excellence, &c., for then the buyer understands that he must examine and judge for himself and not that he is buying upon an express undertaking upon the part of the seller that the article is of a certain kind, or fit for a certain use, and that he will be responsible for any loss or injury that may arise if it ■should not be. (See the cases collected in Hilliard on Sales, p. 341, 3d ed.) Whether what passed between the parties amounted to a warranty, or was merely a recommendation, or an expression of opinion, is a matter for the determination of the jury, unless the language used has a fixed or technical meaning. This has been repeatedly held (Duffee v. Mason, 8 Cow. 26; Whitney v. Sutton, 10 Wend. 413; Blakeman v. Mackay, 1 Hilt. 266; Rogers v. Ackerman, 22 Barb. 134), and it is especially for the jury, in cases like the present, where the point is doubtful or uncertain.
The plaintiff’s agent, who is a broker, had sold the defendants some lamp-black, which proved to be very good. He came
The broker testified that he did not guarantee it, that he was not asked to; that he knew nothing of lamp-black, or whether it was good for any purpose or not; that he knew the business that the defendant was in ; knew that the defendant wanted it for printers’ ink, that that was implied of course; that the defendant told him that he wanted it to make printers’ ink of; and that he sold it to him for that purpose. The fol
All that is ordinarily implied by the exhibition of a sample is that it has been fairly taken from the bulk, and in a sale made-simply by the exhibition of a sample, the vendor is not responsible for latent defects. Having taken the sample fairly from the bulk, the buyer is assumed to be as competent as the seller to judge of the merits, quality or value of the article, and if, under such circumstances, he buys simply upon the inspection of the sample, he takes the risk, and can make no reclamation thereafter upon the buyer. But in this case there was something more. The defendant wanted a sample from every cask, but the broker brought but one, declaring that it was all the same ; that it would come up to that sample, and the defendant, as he testified, bought it according to that sample, saying in addition that the broker, as he believed, sold it to him on that sample, as. being all the same. This places the transaction in a very different aspect, for any representation or express affirmation, as was said by Paige, J., in Hargous v. Stone, 2 Seld. 85, that the bulk of the commodity sold is equal in quality to the sample exhibited, or that the sample is a true specimen of the bulk, presents the question of an express warranty, and it is very plain upon the evidence, that there was a warranty that the bulk of the commodity was equal to the sample, which it certainly was not, the evidence upon that point being clear and conclusive.
If this were all there was in the warranty, the verdict could not be sustained, for the parties subsequently modified the contract in this respect. A week or ten days after the delivery of the twenty-one barrels of lamp-black, a cursory examination of them was made by a person in the defendants’
This was represented to the plaintiff; a proposition was made to him by the defendant to make a reduction of four cents a pound upon seven of the barrels, to which he assented, and a new bill was made out in which this deduction was allowed. This must be regarded as an agreement to abrogate the warranty, that the bulk corresponded with the sample, in consideration of the reduction made in the price of the seven barrels; but it did not necessarily abrogate the additional warranty that the commodity sold would make printers’ ink, or (as we must assume the jury found under the judge’s charge) that it was fit for that purpose, if there were such a warranty.
This, upon the evidence, was much more doubtful. It is, perhaps, questionable whether what was said upon the subject amounted to anything more than the expression of an opinion. The broker said that the parties knew better than he did, and that it was recommended from them as black for making printers’ ink; but when that is taken in connection with the defendant’s statement to the broker, that he must be very particular in having black that would make printers’ ink; that black for carriage work would be of no use; that he must have lamp-black for printing ink; that the broker knew that he was a manufacturer of printers’ ink ; that he told the broker that that was the very purpose for which he bought the lamp-black, and his statement that the broker sold it to him to make printers’ ink of it, coupled with the broker’s own statement that he sold it for printers’ ink as he understood it; that the plaintiff was a dealer in the article, and was for twenty years a judge of lamp-black; that to open and' examine the barrels thoroughly from bottom to top would have involved trouble and expense, and as the defendant did not want to use it for two months, would have injured it, as in such case it would accumulate matter; and finally, that there are qualities that cannot be ascertained by prior examination, or known,
The jury have found that there was such a warranty, and this conclusion on their part is final, and cannot be reviewed. When the agreement was made to deduct a certain sum from the price of seven barrels, because what was delivered was not equal to the sample, the fact was not known, that the article was not fit to make printers’ ink. As the defendant apprised the broker when he bought it, that he had no occasion to use it for two months, it was not for the plaintiff to complain that that length of time transpired before the defendant ascertained its unfitness when he attempted to use it. Moreover, if there was a warranty of this nature, he was under no obligation to examine and return the lamp-black within a reasonable time.He might do so if he thought proper, and by so doing discharge himself from the payment of the price; or he might keep the property, and have his remedy by an action for the breach of the warranty, or recoup his damages in an action brought for the price (Stroud v. Pierce, 6 Allen, 413; Fielder v. Starkin, 1 H. Bl. 17; Buchanan v. Parnshow, 2 T. R. 745; Fisher v. Samuda, 1 Camp. 190; Dukes v. Nelson, 27 Ga. 457; Hilliard on Sales, 374, 3d ed.). There was no waiver, therefore, of this warranty, by agreeing to abrogate the warranty that the bulk corresponded with the sample, as the defendant did not then know that there was or would be any
That it was not fit to make printers’ ink was sufficiently established by the defendant’s evidence. Indeed, there was no-contradiction in the testimony upon that point. The manufacturing chemist employed in the defendant’s factory testified that it could not be made into printers’ ink, and was worth nothing for that pv/rpose. That he had to use three times as much of it as of the lamp-black previously used, and then the ink was thin, had not the same body, and the color was bad. That, in grinding it, a great deal of grit was found in it, so that what was ordinarily done in four hours, took the whole day. Some of the ink made from it was sent to a printer who used a great deal of ink, and it proved to be so bad and did so much injury to the printer, that the defendant lost his custom; in addition to which, the defendant sustained considerable damage by the loss of labor and by the loss of the materials compounded with it. In fact, the evidence established that for the. purpose for which the defendant bought it, it was to him of no-
¡Numerous exceptions were taken by the plaintiff to the admission and rejection of testimony and to certain parts of the judge’s charge. I have gone over all of them, and do not find any error that would entitle the plaintiff to a new trial. The broker had power to sell, and as it was not shown that he was under any restriction, he might sell with a warranty as to the quality of the article, or as to its fitness for a particular use (An&rews v. Kneeland, 6 Cow. 354). The judgment should be affirmed.
Judgment affirmed.
Present, Daly, Ch. J., and Laeremorb, J.