54 Vt. 226 | Vt. | 1881
The opinion of the court was delivered by
Where there is a warranty as to quality, in a sale of chattels, though on inspection at the time of sale, if the property sold does not answer the warranty, it may still be retained by the vendee and the sale affirmed, and he may sue upon the warranty. Houghton v. Carpenter, 40 Vt. 588. An exception is noticed in some cases where the defect was known to the purchaser or readily discoverable. Henshaw v. Robbins, 9 Met. 83; Vandewalker v. Osmer, 65 Barb. 556 ; Benjamin on Sales, s. 616. Where no exception applies, the warranty is, an independent contract and may be sued on when broken, like any other violated contract. Gilson v. Bingham, 43 Vt. 410.
These rules were the basis of the charge to the jury to which exception was taken. On the 20th of October, 1879, the contract of sale of the hops in question was fully made, and they were delivered on the 4th of November following, on inspection of the plaintiff’s agent, he then believing they were grown in the years 1878 and 1879, as the defendant had represented. The case was tried upon the question whether there was a warranty that the hops were respectively of the growth of those years. The hops were sold by samples; and the defendant’s counsel requested the County Court, in substance,- to instruct the jury that if the plaintiff examined and accepted them when delivered, it was a waiver of any claim on account of any warranty. This the County Court refused, and charged that the acceptance did not defeat the right to maintain this action on the warranty. The defendant’s counsel make the same claim here as below, and that the warranty as to age was not a material warranty; that it was simply a representation or description of the hops in an immaterial respect. The answer is that the statements in the bill of exception show the materiality of the representation ; and the verdict, under a-satis
The representation as to the growth of the hops was'false, they having been grown previous years, which appeal’s to have diminished their value materially; yet the plaintiff’s agent believed when he made the examination on delivery at the depot, that they were grown the years represented. If the age of the hops could .be determined on inspection it does not appear that he examined them with reference to age, but relied on the representation. We think the County Court was correct, under the circumstances disclosed, in holding that the acceptance was not a waiver of the warranty, or rights under it. Upon the facts stated in the bill of exceptions there is no ground for making any distinction between this warranty as. to the age of the hops and the usual warranty as to quality. It was the age that affected the quality.
Judgment affirmed.