Mast & Co. v. Pearce & Cowan

OPINION ON REHEARING.

Beck, J.

At a former term a rehearing was ordered in this cause and it has been again argued.

Counsel for. defendants insist that the rule announced in the foregoing opinion, to the effect that the parol evidence of a warranty wras erroneously admitted by the court below, is in conflaict with authorities which they cite, in support of their position.* We have examined all of them and find but one, Chapin et al. v. Dobson, 78 N. Y., 64, which may *583fairly be claimed-to recognize the doctrine contended for by-counsel. Prior New York decisions are in harmony with the rule we adopt. See Ostrander et al. v. Reed, 1. Wend., 424. Munford et al. v. McPherson et al., 1 Johns., 414.

Scott v. Sweet et al., 2 G. Greene, 224, is relied upon by defendants’ counsel. It is held therein .that in an action upon a promissory note, it is competent to show as a defense that the note was given under a parol contract for the right to make fanning mills, which plaintiff warranted to do good business. The court rightly held the evidence competent to show a failure of consideration of the note. Put it is remarked in the opinion that “if the contract was shown to .be in writing, we think it was competent for defendants to show by parol evidence that the plaintiff independently of the written transfer, had warranted the mill to work well,” etc. The fact upon which this observation is based was not in the case, for, as we have before stated, the contract, the breach of which was set up in the answer, rested in parol. It was not necessary for the decision of the case to announce -the doctrine of the quotation which, therefore, must be regarded as dictum.

An examination of the other cases, cited by defendants’ counsel, reveals the fact to be that they are not applicable to the question under consideration.

In support of our decision in the case, see authorities cited by Parsons &' Penjamin in the pages referred to in the foregoing opinion. See, also, Jolliff et al. v. Collins et al., 20 Mo., 338; Reed v. Wood, 9 Vt., 285; Lamb v. Croffs, 12 Met., 353. See, as bearing upon this point, Shepherd v. Gilroy et al., 46 Iowa, 193.

2. INSTRUCTION: exception: appeal: practice. II. The defendants in their answer not only relied upon a parol warranty of the cultivator, but in a seperate count set up an implied ivarranty, on the ground that plaintiffs were the manufacturers of the machines . . which defendants had no opportunity to inspect prior to the purchase. The Circuit Court instructed the jury *584that the warranty relied upon by defendants “must have been expressly made” and that “there is no warranty implied from the transaction in evidence.” They now insist that the verdict and judgment may be supported upon the facts and rules of law relied upon in the count of the answers just mentioned.

But the instruction if wrong must be regai’ded as the law of the case, and if the jury found such an implied contract their verdict cannot be sustained, for it would be in conflict with the instruction. As defendants did not object tothe instruction, and have not appealed, they cannot now complain of it. We are therefore not permitted to inquire as to the correctness of the instruction and we surely cannot sustain the judgment on the ground that the verdict, though contrary to the instruction, is in accord with the correct rule of law.

Besides all this, we will presume that the jury did not disregard this instruction, but found for defendants upon the counts of the answer setting up a parol warranty. We cannot upon this appeal determine whether the law raised an implied wax'ranty of the quality of the machines purchased of plaintiff.

The fox-egoing opinion will be adhered to and the decision of this court reversing the judgment .of the coxxx-ts below will stand.

Scott v. Sweet, 2 G. Greene, 224; Chapin v. Dobson, 78 N. Y., 74; Koop et al. v. Hand et al., 41 Barb., 454; Powlton Coal Co. v. McShain, 75 Pa. St., 238; Merriam v. Field, 24 Wis., 640; Hahn v. Doolittle, 18 Wis., 196; Lewis v. Seaburry. 74 N. Y., 410; Chalfant v. Williams. 35 Pa. St., 212; Miller v. Fletcher, 31 Pa. St., 252; Unger et al. v. Jacobs, 7 Hun., 220; Herman v. Oxley, 22 Wis., 519; Pearson & Brent v. The Bank of Metropolis, 1 Pet., 89; Baker v. Prentiss, 6 Mass., 430; Davenport v. Mason, 16 Mass., 82; Christ v. Diffenback, 1 S. & R., 464; Stoops v. Smith, 100 Mass., 63.