We are asked in this case to reverse the judgment of the court below, because the verdict is supposed to be against the weight of the evidence. There is in the case a conflict between the statements of witnesses in regard to some of the material facts, and it was for the jury, from all of the surrounding circumstances, to reconcile them if they could; and if that could not be done, then to give weight to such portions as they deemed worthy of credit, and reject such portion as was not. They have the best opportunity to determine this, as they see the manner of the witness, his intelligence, his opportunity of knowing the facts of which he testifies, and his fairness in giving his evidence. The jury have determined which they should and which they should not believe, and we are not disposed, from the evidence in the case, to find fault with that determination. Prom the evidence in the case, it does not appear that the finding was clearly and palpably against the weight of evidence, and unless it were so, we would not be justified in disturbing it; and we are of the opinion that the evidence did justify the verdict.
It was urged that the court erred in giving plaintiffs’ instructions. It is the well-established doctrine, that where the vendor of manufactured articles is himself the manufacturer, there is an implied warranty that they are executed in a workmanlike manner; otherwise, if he is the seller only. And upon a sale of chattels, where there is neither a warranty nor fraud, the vendee purchases at his peril, and can maintain no action for a defect of quality. Hilliard on Sales, 230, 224 ; 2 Oromp. M. & R. 550 ; Texas v. Wood, 2 Cain R. 48; Perry v. Aaron, 1 John R. 120; Defrees v. Trumper, 1 John R. 274; 2 Blk. Com. 451. But where the seller is the manufacturer, the law implies a warranty that it is reasonably fit for the use for which it is intended. Hilliard on Sales, 230 ; Ohitty on Oont. 356.
The jury were told by the first of plaintiffs’ instructions, that if defendant agreed to the manner in which the machinery was constructed, and took the same as so made, that it did not matter whether the cylinder was a good one or not. There was evidence in the case that defendant directed how the cylinder should be made, and if the workmen followed his directions, he was the manufacturer, and the plaintiffs should not be liable for the insufficiency of the machine; and this instruction so directs the jury.
The second charges the jury, that if plaintiffs did not manufacture the cylinder, but sent to St. Louis for it, at defendant’s request, there was no implied warranty of its quality.
The evidence did tend to show that plaintiffs sent to St. Louis for it, at defendant’s request, and if that was the fact, we have seen that the plaintiffs thereby incurred no liability, as they were only acting as sellers by so doing.
By the third, the jury were charged that if they believed, from the evidence, that defendant took away the cylinder, and said he would put on bands himself, (if needed,) and that it was defective for the want of bands only, that would not be the fault of the plaintiffs, and they were not liable for such defect.
There was evidence that when defendant took the cylinder he said he would put bands on it if they were needed : and there was evidence also tending to show that it was only for want of such bands that it was defective. It cannot be insisted that plaintiffs should be liable for the failure of defendant to put on these bands as he agreed. And for his failure to do so, he should alone be responsible.
The fourth charged the jury that a person who sells an article is not responsible for its defective operation, unless he is the manufacturer of the same. This instruction is fully sustained by the authorities referred to above, and the evidence tended to show that plaintiffs were not the manufacturers of the portion of the machine which proved defective, and this instruction was properly given.
The fifth contained the same propositions that were contained in the former instructions, and was therefore unobjectionable.
By the sixth the jury were charged “ that a servant or workman of a party* has no authority to warrant work of any description, whether manufactured by the party or not, unless the jury shall believe, from the evidence, he was authorized to warrant by his employer.” This instruction, though not very carefully worded, is not erroneous; it left it to the jury to find whether plaintiffs’ workman had warranted the cylinder, and if so, whether he had authority from them. It did not indicate how the authority should be established, but left the jury to deter*mine that question from all of the evidence in the case.
It was urged that the court erred in not permitting witness Pye to give his opinion as to the sufficiency of this machine to thresh grain. He had already testified to facts that left no doubt of its insufficiency; and it was not disputed by plaintiffs. Its insufficiency was not a question in dispute, and his giving an opinion on that point could not have been of any benefit to defendant. It would not have had the slightest tendency to have changed the result of the case, and as no injury resulted to defendant by the exclusion of this evidence, he has no right to complain. On the whole record we are unable to discover any error for which the judgment should be reversed. The judgment of the court below is therefore affirmed.
Judgment affirmed.