Noble v. Fagnant

| Mass. | Oct 19, 1894

Knowlton, J.

1. The statements of Bronson in regard to the proper mode of using the cement were rightly excluded. The plaintiff Noble and his clerk testified that Bronson had no connection with the plaintiffs, and the defendant also testified that the plaintiffs never referred him to Bronson, and that in his interviews with them they always represented Bronson to be the agent and representative of the manufacturers, J. B. King and Company, and not of themselves.

2. No error appears in the admission of the circular as a whole on the plaintiffs’ offer after a part of it had been put in by the defendant. The bill of exceptions does not show what part was introduced by the defendant, and what was subsequently put in by the plaintiffs. As a general rule, when a part of a document is introduced by one party, the other is entitled to put in the remainder of it.

3. The judge rightly ruled that the defendant by his tender acknowledged the cause of action, and that he could not afterward avail himself of the defence that in making the sales the plaintiffs were only acting as agents of J. B. King and Company. Hubbard v. Knous, 7 Cush. 556. Bacon v. Charlton, 7 Cush. 581. Hosmer v. Warner, 7 Gray, 186. Bouvé v. Cottle, 143 Mass. 310" court="Mass." date_filed="1887-01-08" href="https://app.midpage.ai/document/bouvé-v-cottle-6422284?utm_source=webapp" opinion_id="6422284">143 Mass. 310.

4. The instructions in regard to the warranty were correct. If the defendant relied on a breach of warranty of the quality of the article sold, the burden of proof was on him to establish the warranty and the breach of it. Dorr v. Fisher, 1 Cush. 271. Lothrop v. Otis, 7 Allen, 435. The rule of damages to be allowed for a breach of a warranty, both in ordinary cases and when the goods are sold for a particular use, was rightly given. Without considering in detail the instructions requested by the defendant, we are of opinion that, so far as the propositions of law contained in them were correct and pertained to the case, they were covered by the charge, and that there was no.error in the refusal to give them as presented.

Upon the testimony of the defendant, as well as upon that of the plaintiffs, there was no occasion to point out the difference between an express warranty and an implied warranty, as the defendant requested the judge to do at the close of the charge.

Exceptions overruled-