Concurring with the chief judge, I also think that the argument in behalf of the defendants that if the plaintiff had believed that he had their express warranty that *Page 94 the ancient letter was genuine, he would not have asked for a letter from Mr. F.S. Ellis to the effect that, in his opinion, it was genuine, loses much of its force when we consider that the opinion of this expert might be of greater value than any warranty could be. For, if the ancient letter was really shown to be genuine, then its value would be established, a value not only considerable in money, but in the mental satisfaction of the purchaser. Mr. F.S. Ellis' letter tended to establish such genuineness, not as a fact, but to the satisfaction of the owner, while the defendants' warranty only promised money damages if the document should prove to be spurious. Hence, there was no inconsistency between insisting upon the warranty and asking for Mr. F.S. Ellis' opinion, and, therefore, that letter was irrelevant to the question of warranty. The letter being hearsay and incompetent upon the real question, but from its very terms being one which the jury would regard as pertinent to it, they would naturally treat the judge's attempt to exclude its contents from their consideration as a perfunctory instruction, given in pursuance of some technical rule, unless the instructions to disregard it should be so clear and explicit as not only to amount to a command but to a fair counterpoise to their natural convictions. If the court had stricken out the letter the case would be clearer, but as it did not, but elsewhere said that every letter received in evidence could be read, it remains doubtful whether they felt bound to disregard the letter. Mr. F.S. Ellis' letter was very important. The plaintiff had testified that he had very great respect for the opinion of that gentleman. After his purchase assaults upon the genuineness of the ancient document shook his faith. He confessed that Mr. F.S. Ellis' favorable opinion would greatly assure him and the defendants procured it. Would not the jury, following the lead of skillful counsel, agree that the plaintiff got what he, in effect, said would satisfy him? If he wanted anything more satisfactory why did he not ask for it? Notwithstanding what the trial judge said, the jury would find it hard to go counter to their own convictions. *Page 95
As to the warranty, the test of its existence is the impression the defendant Ellis intended to produce, and did produce, by his representations in the mind of the plaintiff as to the positiveness of the defendants' assurance to him that the ancient letter was genuine. The conversation lasted an hour. Mr. Ellis came to it fully prepared. The plaintiff had had no previous notice that he was to be exposed to such solicitation. The result was the plaintiff paid nine hundred pounds for this document. Mr. Ellis thus accomplished his purpose. The evidence of the conversation should be considered in the light of these facts, and probably the jury did so consider it, but the letter of Mr. F.S. Ellis was to the effect that the warranty was not broken, and hence the plaintiff failed to recover.