Thompson v. Ashton

14 Johns. 316 | N.Y. Sup. Ct. | 1817

Per Curiam.

It does not appear, from the case, whether the action is founded upon a warranty, or fraud, in the sale of the crockery. The plea is stated to have been not guilty, from which it would seem that fraud was the ground on which the action was intended to be supported. But the plaintiff has entirely failed in making out fraud. There is some appearance of contradiction in the account which the defendant gave, as to the place where, or the persons from whom he procured the goods; but nothing which could be considered as making eut a fraud in the defendant, or charging him with any knowledge of the quality of the crockery sold to the plaintiff. The evidence offered of a usage, or custom, in re]ation to the sale of crockery ware, was properly rejected. Nacustom in the sale of any particular description of goods can be admitted to control the general rules of law. Such a principle would be ex-ti~emely pernicious in its consequences, and render vague and uncertain all the rules of law on the sale of chattels. Besides, in this case, the evidence ofFered was to show a custom that a sale, under the circumstances of the present case, amounted to a warranty. The action, therefore, should have been founded on the warranty, and not on the fraud. But the evidence would not be admissible under any form of action. The motion to set aside the nonsuit must, accordingly, be denied.^(a)

Motion denied.

(a) Vide Holden v. Daken, 4 Johns Rep. 421, (2d ed.) 422. n (a.) Sands & Croup v. Taylor & Levett, 5 Johns. Rep. 395. 411 (2d ed.) n. (d) Executors of Evertson v. Miles, 6 Johns. Rep. 138.