103 Ark. 307 | Ark. | 1912
(after stating the facts.) The court gave to the jury the following instruction:
“1. First, you are instructed that if you find that the defendants, or either of them, sold to the plaintiff, Henry Thielman, two of the Owens pumps, and that they, or either of them, warranted that said pumps would furnish 600 gallons of water per minute for the pumping season of 1909 for the purpose of irrigating plaintiff’s rice crop, and you. believe that said pumps were imperfectly constructed and would not furnish the water which. they were warranted to furnish, which failure was not on account of any fault of plaintiff, and that the plaintiff notified the defendants, or either of them, of the failure of the pumps to furnish the water which they warranted to furnish, and demanded of them to take the pumps back, or repair them, so that they would furnish the water they were warranted to furnish, and that the defendants refused to take the pumps back; and you .further believe that the plaintiff demanded of them, or either of them, the purchase price of the pumps, and that they or either of them refused to pay the purchase money which the plaintiff had paid for the pumps, then the defendants would be liable to the plaintiff for whatever purchase money he .paid to the defendants on the pumps, or either of them, or both of them, and 6 per cent, interest thereon, and all expenses the plaintiff was out in trying to operate said pumps.”
It is insisted by the appellant that the insertion in the instruction of the words, “which failure was not on account of any fault of- the plaintiff,” which appear in italics, renders the instruction erroneous.
The evidence shows that the plaintiff installed the pump on his farm, and that his servants operated it. It may be conceded that the undisputed evidence shows that the pump was properly installed, and that the ball bearings became hot through no fault of the plaintiff or his servants in operating the pump, and still we do not think the added words, “which failure was not on account of any fault of the plaintiff,” could have worked any prejudice to the rights of appellant. While it is the duty of the court in giving instructions to the jury to eliminate matters in dispute, yet it is manifest to us that the added words could not have had the effect of prejudicing the plaintiff. The pleadings, the proof and the instructions asked by both parties show that this was a suit for an alleged breach of warranty, and that issue was fully and fairly presented to the jury in the instruction of which complaint is made. There was a direct and irreconcilable conflict in the testimony on this point. The whole trend a,nd scope of the instruction was directed to this issue; and if we credit the jury with common sense, there can be no doubt that its verdict was based on it.
2. Counsel for plaintiff assign as error the action of the court in refusing to allow one of their witnesses to answer a question asked him in regard to what the defendants said about warranting the pumps, but the court almost immediately afterwards permitted witness to answer a question in almost the identical form as the one refused.
3. Counsel for plaintiff assign as error the action of the court in refusing to give instruction No. 2 asked by them; but in regard to this it is sufficient to say that counsel have failed to abstract the instruction, and, under our rules of practice, we can not consider this -alleged assignment of error.
4. Counsel also urge that the court erred in refusing instructions numbered 3 and 4 asked by them; but they failed in their motion for a new trial to assign as error the action of the court in this respect, and, under a familiar rule of practice, they will be deemed to have abandoned or waived any assignment of error in this respect, and we can not now consider it.
5. The court gave the following instruction: “If you find that defendants did not warrant said pump, you will bring in a verdict for whatever amount you may find to be due defendants on the purchase price of said pumps.”
Counsel for plaintiff say that the court erred in giving this instruction because the defendants were the manufacturers of the pumps, and that there was an implied warranty that they would be suitable for the purpose for which the plaintiff purchased them. The evidence for the defendants shows that the pumps in question were inspected and tested by the agent of the plaintiff before they were purchased. They were a new and untried invention, and only a few of them had been manufactured. They had not yet been used when the purchase was made, and defendants say that plaintiff’s agent knew as much about them as they did, and the brother of the plaintiff, who was his agent in purchasing the pumps, was a machinist of twenty years’ experience, and made the purchase wholly upon the faith of his knowledge acquired at the test which was had for that very purpose.
Under such circumstances, it can not be said that there was an implied warranty. Curtis & Co. Mfg. Co. v. Williams, 48 Ark. 330; J. I. Case Threshing Machine Co. v. Bailey, 89 Ark. 108.
Moreover, no issue of implied warranty was made under the pleadings. The complaint, answer, the evidence, and the instructions asked and given, all show that the suit was based on an express warranty, and that issue alone was submitted to the jury. '
6. Finally, the plaintiff complains that the court sustained a demurrer to that paragraph of his complaint in which he pleaded special damages. For the reason that the verdict of the jury was against him on the issue of whether he sustained any damages, the action of the court'in this regard was not prejudicial to him, even if erroneous, and it is well settled that this court will only reverse a judgment for errors that are prejudicial to the rights of the party appealing.
It follows that the judgment must be affirmed.