67 Tenn. 159 | Tenn. | 1874
delivered the opinion of the court.
Plaintiff sued defendant for balance due for price of corn in sacks, sold and delivered to him in the
Plaintiff replied that she did not represent the corn in the carriage-house as No. 1, sound, merchantable corn; that it was not damaged when taken from the same; that the defendant took the said corn at his own risk, and no deception was practiced on him; and that there was no damage from any misrepresentation, etc. / '
On this replication issue wa?y taken, and the case went to the jury, and they fjOund in favor of the de
Upon these pleadings, the fact of plaintiff having represented the corn as No. 1 merchantable corn is put in issue first, and second, whether the corn was damaged at the time it was taken from the house; third, whether the defendant took the corn at his own risk, which last proposition, however, is involved in the first, as to whether he took it on the faith of the representations made by plaintiff.
On looking at the testimony, the proof well warrants the jury in finding that such representations were substantially made, and that the corn was in the condition stated by the plea of defendant.
The case must be affirmed, unless there is error affecting the result in the charge of the court. However, a preliminary question is made that the bill of exceptions states that the charge was not excepted to at the trial, and for that reason no objection can be taken to it here.
This is an erroneous view of the question. No exception is required to be taken to the charge of the court below further than to embody it in the record, and present it for revision in this court. Such the rule laid down in the case of Weakly, etc., v. Pearce, 5 Heis., 424, and we have no doubt of its correctness.
With reference to the question of misrepresentation of the character and condition of the article sold, the rules of the law are well “stated in the case of Hogg & Belcher v. Cardwell, 4 Sneed, 157, substantially as
It is insisted that as there is shown to have been a memorandum of the terms of the trade reduced to writing, that this must alone be looked to, and no parol evidence of representations could be shown, and that said memorandum contained no warranty, therefore none could be shown outside of it.
In the case from which we have quoted above the very question here raised was presented, and the court held the party entitled to recoup his damages, the result of misrepresentation of the quality of the tobacco sold. The court say: “ The fact that this was not inserted in the written contract can make no difference. It was not a part of the contract of sale, but the inducement to it. It was a distinct collateral matter on which liabilities arise that may-, be enforced.” See p. 157.
This is conclusive of all the questions really pre