| Ill. | Jan 25, 1889
delivered the opinion of the Court:
During the progress of the trial, appellants’ counsel proposed to prove, but was denied the right to do so by the trial court, that had more stone been delivered during a time named, it could have been sold. The court informed the counsel that he was at liberty to prove “that there was a strong demand during that time, and whether defendants were able to supply that demand.” This ruling is now insisted upon as ground of reversal. We think the trial court was right. What could have been sold is purely conjectural. The inquiry should have been limited to the facts, the extent of the demand at the time, and the ability of the defendants, with the rock that was delivered to them, to meet that demand.
It is next objected, that the court erred in its second instruction, in telling the jury, in effect, that if the defendants accepted the stone after an opportunity to inspect them, they are bound by that acceptance. The objection is not tenable. The instruction, under the evidence before the jury, could not have prejudiced appellants’ rights. The contract between the parties being in writing, we must look to the writing alone for its terms. On doing so, we find that the contract is for the sale of “rubble stone, to be delivered at a future day, from appellee’s quarry.” From this it is assumed, manifestly, that the quality of that stone was as well known to appellants as to appellee, for it is an existing article specifically described by the parties; and it was, moreover, expressly testified by appellants’ managing partner, añd contradicted by no one, that appellants had previously dealt in this stone. To enable the purchaser, under such a contract, to recover damages for the inferior quality of the article delivered, there must be proof either of an express warranty or of fraud, neither of which was claimed on the trial. There was no implied warranty of the quality, and the rule caveat emptor applies. Towelles et al. v. Gatewood, 2 Scam. 22; Misner v. Granger, 4 Gilm. 74; 2 Kent’s Com. (8th ed.) 618, *478, et seq.; 1 Smith’s Lead. Cases, part 1, p. 308, et seq.; Benjamin on Sales, (1st Am. ed.) 442, et seq.; Biddle on Warranties, see. 141. If the quality delivered did not correspond with the stipulation of the contract, the objection should have been made known at the time, and this not having been done, the objection is deemed to be waived. Dutchess County v. Harding, 49 N. Y. 323; Thompson v. Libby, 35 Minn. 443" date_filed="1886-07-15" court="Minn." case_name="Thompson v. Libby">35 Minn. 443; 2 Kent’s Com. (8th Am. ed.) 622, *480.
In Babcock v. Trice, 18 Ill. 420" date_filed="1857-04-15" court="Ill." case_name="Babcock v. Trice">18 Ill. 420, the sale was of corn, generally. The seller knew, from the character of the transaction, that merchantable corn was expected, and the purchaser could not know what corn would be delivered. In Thorne v. McVeagh et al. 75 Ill. 81" date_filed="1874-09-15" court="Ill." case_name="Thorne v. McVeagh">75 Ill. 81, there was no opportunity to inspect the quality of the hams when purchased, and there was an express warranty of their quality.
There is no support in the evidence for the position that this rubble stone was for a particular use, knowledge whereof was communicated to appellee at or before the making of the contract, so as to make Crabtree v. Kile, 21 Ill. 180" date_filed="1859-01-15" court="Ill." case_name="Crabtree v. Kile">21 Ill. 180, Illinois Central Railroad Co. v. Cobb, Christy & Co. 64 id. 141, and other cases announcing like rulings, cited by counsel for appellants, applicable.
The only remaining objection presenting any question of law is, that the court erred in refusing appellants’ fifth instruction, to the effect that appellee was not entitled to recover interest. Since the court instructed the jury “that after having ascertained, from the evidence, what the stone which was actually delivered amounts to, and deduct from such amount the damages sustained by the defendant, if any, you will return a verdict for the plaintiff for the balance due plaintiff,” and they are nowhere told that plaintiff is entitled to recover interest, it is manifest that this instruction was wholly unnecessary, and its refusal did no harm.
The judgment must be affirmed.
Judgment affirmed.