Richardson v. Bouck , 42 Iowa 185 ( 1875 )

Miller, Ch. J.

i. vendok and vendee: warranty. The evidence shows, without conflict, that the defendant ordered nursery stock of plaintiffs, who resided and carried on the nursery business at Geneva, New York; that they shipped the stock in pursuance of defendant’s orders, consigned to him at Independence, Iowa; that the stock was properly packed and shipped in good order, and was of the quality ordered: that there was no . , . , ,. , . . , warranty made or given to tlie plaintiffs as to the quality or condition of the stock ordered, and there is no evh dence of fraud or misrepresentation, or bad faith in any respect, on the part of plaintiffs. There was, therefore, no ground upon which the Circuit Court could legally deduct anything from the claims of the plaintiffs. There is an entire failure of proof as to the alleged warranty. The receipt of the nursery stock alleged to have been sold and delivered is admitted; that the defendant ordered just what he is charged for is admitted. It was shipped in good condition without warranty or fraud.

The entire defense is based upon the alleged warranty. There is no proof of that, and the defense has failed. The judgment should have been for plaintiffs for the amount of both bills, with interest and costs.

Reversed.