181 Ind. 8 | Ind. | 1914
Action by appellee against appellant, for
The only questions presented by appellant’s brief depend on the alleged insufficiency of the evidence. No witness testified in relation to the value of the hay, if it had been as warranted, and appellant contends that inasmuch as the measure of damages is the difference between the actual value (which was proven) and that of hay of the warranted quality, the evidence fails to disclose one of the necessary facts to use as a basis of assessing damages. It is a settled rule, in such cases, that the sale price is prima facie evidence of the value of the warranted chattel, had it possessed the requisite quality. Hege v. Newsom (1884), 96 Ind. 426, 431, and cases cited; 35 Cyc. 465, 471.
It is further contended that the warranty here was not a continuing one, and only warranted the quality at the time of sale; and that the only evidence of defective quality related to a time some months afterwards. Appellee claims the evidence shows a continuing warranty. Hitz v. Warner (1911), 47 Ind. App. 612, 93 N. E. 1005; 35 Cyc. 369. The hay was cut and put in appellant’s barn in June, 1904. Afterwards, but before sale, some timothy hay was placed on top of it. Appellee rented the farm the first of August, 1904, and at that time purchased the clover hay. Appellee did not attempt 'to feed or bale
Appellant asserts that it is shown by certain evidence that the contract of sale was in writing, and consequently there can be no recovery where the complaint declares on an oral warranty. If the fact be conceded, the legal conclusion follows. Johnson v. McCabe (1871), 37 Ind. 535. However, as appellant’s counsel has not deemed the asserted evidence of the written contract (a chattel mortgage from appellee to appellant) of sufficient importance to justify him in setting it out in his brief, or stating therein its substance, we must deem a consideration thereof as waived. Clause 5, Rule 22 of this court.
The record discloses no reversible error. Judgment affirmed.
Spencer, J., not participating.
Note. — Reported in 103 N. E. 796. See, also, under (2) 35 Cyc. 415; (3) 35 Cyc. 381, 464; (5) 35 Cyc. 454; (6) 2 Cyc. 1013; (7) 8 Cyc. 538; (8) 3 Cyc. 360. As to implied warranty of quality on salo of personalty, see 55 Am. Dec. 328; 102 Am. St. 607. As to law of accounts stated, see 136 Am. St. 37.