55 Mo. App. 621 | Mo. Ct. App. | 1894
This is an ’ action for damages on an alleged warranty in the sale of certain young hogs, sold by defendant to plaintiff, December 10, 1891. The evidence discloses about the following state of fact: Defendant Ing, when about moving from his farm in Saline county, on November 20, 1891, posted
The ease was submitted to the court, sitting as a jury, on the following declaration of law, given at the plaintiff’s instance: “That,if the court sitting as aforesaid believes from the evidence that defendant had a public sale of personal property on the tenth day of December, 1891, and that he advertised the same by printed handbills describing the property to be sold; when and where it was to be sold, and afterwards postponed said sale to the tenth of December, 1891, and that in said printed handbills was advertised to be sold with other property forty-five shoats and that said handbills contained the statement of and concerning said shoats, that all were in good health and condition ; then said statement of and concerning said shoats
There was a finding and judgment for the plaintiff and defendant appealed.
Prom the foregoing instruction it appears that the case was tried on a misconception of the law, and for that reason the judgment must be reversed. The theory embodied in this declaration by the court is, that where the vendor in an auction sale shall in the antecedent printed notice state the quality of the chattel, then such statement shall be deemed a warranty to those purchasing at the sale, thereafter made, regardless of what may be said by the vendor at the time of such sale.
’ This is not the law. In the first place the court is not justified in declaring that a mere assertion of quality or condition of a chattel at the time of sale is, as matter of law, a warranty. It may be regarded as evidence tending to establish a warranty, but can hardly be denominated such as matter of law. The question is, as in other cases of contract, what was the intention of the parties. “This intention is a question of fact for the jury, to be inferred from the nature of the sale and the circumstances of the particular case. Benjamin on Sales, sec. 613. The important and difficult
The instruction has, however, a more serious vice than the one just noticed. It declared that because the handbills, posted by the defendant some three weeks prior to the sale, contained the statement that said “forty-five shoats were in good health and condition,” then such statement was a warranty that said hogs were at the time of their sale free from disease. This was manifestly erroneous. A warranty, though called a collateral undertaking, yet forms a part of the contract by agreement of the parties. “It follows, therefore, that antecedent representations, made by the vendor as an inducement to the buyer, but not forming part of the contract when concluded, are not .warranties.” Benjamin on Sales, sec. 610.
Now this handbill, advertising a future sale of • defendant’s hogs, could, at most, only amount to an antecedent representation of the quality and' condition of the shoats as they, were when the bills were circulated; and this statement could not be construed as any part of the contract subsequently entered into between plaintiff and defendant, unless expressly made so at the time of sale. 1 Lawson om Rights and Remedies, sec. 212; Ashcom v. Smith, 2 Penr. & Watts (Pa.), 211; Riddle on Warranty in Sale of Chattels, sec. 37-39.
The office of such advertisement is simply to induce the buyer to attend the future sale, and any representation as to quality of the goods to be sold contained in the published notice, will not be considered
Now as to whether or not there was a warranty of the hogs when they were actually sold at auction, the evidence is conflicting, — that of the plaintiff tending to prove an intention, on defendant’s part, to warrant the shoats to be free from disease, while that of the defendant tended to prove the contrary. That conflict must be settled;by the triers of the facts.
The judgment must be reversed and the cause remanded for a new trial.