Ryder v. Neitge

The plaintiff contends that the court below erred in instructing the jury that there was no question of" warranty in this case, and that the action was founded on-deceit, which must be shown to entitle him to recover ; and also, in refusing to instruct that he was entitled to recover,, upon proof of either warranty or deceit. As it is clear that the complaint states a cause of action for deceit, it is not. important, in the view which we take, to enquire whether it. also declares for a breach of warranty. If there was no-evidence in the case tending to make out a Avarranty, as-claimed to be alleged in the complaint, and a breach thereof,, the errors complained of Avere errors in the abstract, if at. all, and as they could not work any practical injury, they are to be disregarded. It is true that the return does not. contain all the testimony received below; but as the burden is upon the appellant to show jM’ejudice, it is for him to-bring up so much of the testimony as he deems necessary to show that the instructions and refusals complained of,, were prejudicial.

We have, therefore, to enquire whether it appears, from the testimony returned, that there was any eAddence in the-case tending to establish the warranty claimed to be set up in the complaint, and a breach of the same. As to the sad-*75dies of venison first purchased, the representations claimed to amount to a warranty, were, that the same were properly dressed and prepared for shipment to the Eastern markets ; that the defendant had fattened the deer from which the same were cut; and that, for these reasons, the same were of extra quality. As to each of these representations, an examination of the testimony returned will show one or both of two things: viz., that the alleged rejwesentation is not proved to have been made, or that it is not proved to have been false. So far, then, as the first purchase of venison was concerned, defendant fails to show prejudice from the instructions and refusals which he deems erroneous.

As to the second purchase of venison, even if it be admitted that the representations alleged to have been made by defendant would have amounted to a warranty, under any state of facts, the testimony of the plaintiff himself shows that the purchase was not made upon the basis of a warranty; in other words, that defendant’s proposal to warrant was not accepted, but, on the contrary, was expressly declined, the plaintiff undertaking to pay the agreed price, “ if they (the saddles) wore merchantable,” and opening and inspecting* the same for himself, as far as he desired, or as was necessary, and rejecting such as he deemed unmerchantable, and, in addition, having as yet paid nothing on account of said second purchase. As to this cause of action, also, the plaintiff' therefore fails to show that he was prejudiced by the instructions and refusals of which he complains.

It is urged by the plaintiff that these were sales of provisions, as to which the law implies a warranty that they are wholesome and fit for consumption. But the warranty referred to, if implied at all, (see Benjamin on Sales, 550,) is implied only where the provisions are sold for consumption, or immediate domestic use by the vendee, and not as merchandise, as in this case. 1 Parsons Cont. 588, note c; Moses v. Mead, 1 Denio, 378.

The complaint admitted a counter-claim in favor of defendant, to the amount of $157.05, while the jury brought *76in a verdict in his favor for $131.04 only. As the evidence is only partially reported, we are not in possession of the data upon which the jury reached their conclusion. For aught that appears, the reduction of the counter-claim may have resulted from a finding that the seven saddles of venison, (part of the last purchase,) which plaintiff had testified to be in bad order, were worth less (by half ) than ten cents a pound, (the price which the plaintiff testifies that he agreed to pay, if they were merchantable,) and the jury may have made a reduction accordingly. Certainly, the state of the pleadings is not such as to warrant the plaintiff’s counsel in contending that, because the jury allowed part of the amount claimed by plaintiff, they should have allowed the whole of the same.

Order denying new trial affirmed.