The action was brought to recover the amount of a bill for certain hogs, sold and delivered by plaintiffs to defendants. The only defense interposed was, that in the sale the plaintiffs warranted the hogs "to be hard or corn fed hogs, and suitable for the New York city market." The jury found a verdict for the plaintiffs on this issue, and an examination of the testimony shows that the alleged warranty is wholly unsupported by any evidence. Nay, it is expressly negatived by the only witness the defendants relied upon to prove it, Dorman, their agent, who purchased the hogs of the plaintiffs for the defendants.
If there has been no error committed in the admission or exclusion of evidence, no ground is presented for disturbing the judgment. It is claimed on the part of the defendants, that the court erred in overruling testimony offered by defendants to show the object for which they purchased the hogs. This was unquestionably correct. Their purpose, object or intent in making the purchase in no way tended to make out a warranty on the part of the plaintiffs in the sale. The question was, what the plaintiffs said or did, and it was of no moment to show what the object of the defendants was in making the purchase, or whether or not the plaintiffs had any knowledge of such object. A warranty on their part could not be established by such evidence.
So it was entirely immaterial to ascertain the quality of the hogs after they were slaughtered. If the warranty had been proven, then and then only was it material to inquire into the quality of the hogs after slaughtering to show that *Page 126 there had been a breach of the warranty. But as there was an entire failure to make out the allegation of the answer, that the hogs had been warranted to be hard or corn fed hogs, it was of no moment that they proved after slaughtering to be soft hogs, and not corn fed.
It is also objected that the testimony offered by defendants of a conversation between the parties, after the hogs were ascertained to be soft, was improperly excluded. The judge allowed the witness to state any conversation which related to what took place at the time of the sale, or during the negotiation which led to it. Anything which occurred subsequent was wholly immaterial. If there was no warranty, it had no relevancy, and what occurred after the sale and delivery had no tendency to show that a warranty had been given at the time of the sale. All conversation which related to what took place at the sale, or during the negotiation which led to it, was pertinent on the issue whether or not there was a warranty, and any other conversation was irrelevant.
It was of no importance to ascertain what was the usual warranty on the sale of hogs. It had no tendency to solve the inquiry whether or not there was a warranty upon this particular sale of hogs. The usual warranty on other sales was entirely irrelevant, and properly excluded. These suggestions apply to other offers of the defendants to put in evidence other conversations of the parties about the hogs, not relating to the question of warranty. It was of no moment what was the condition of the hogs, hard or soft, or whether or not the defendants only intended to buy hard hogs, if there was no warranty that the hogs sold were of the particular quality claimed.
It was of no importance also that the court admitted conversations between Dorman, the defendants' agent, and other persons after the sale, tending to show Dorman's knowledge of the actual condition of the hogs, upon the question of warranty or no warranty. But such conversations and knowledge of Dorman were important as tending to impeach his credibility, and in this view were clearly admissible. He *Page 127 had testified that he would not have bought the hogs if one of the plaintiffs, Miles, had said they were trash or scallawags; that he had heard no comment about the hogs from any western drover. The testimony, therefore, as to such conversations, was properly admitted.
I see no force in any of the exceptions taken by the defendants to the admission or exclusion of testimony, and as no other question is presented for our consideration, the judgment appealed from must be affirmed.
All the judges concurring,
Judgment affirmed. *Page 128