Schmieg v. Wold ( 1875 )

Opinion by

Wingard, Associate Justice.

This is a civil action brought to recover damages for an alleged breach of a contract of warranty, in the sale of hops by the Wolds to Schmieg.

The complaint sets up a sale of the hops by sample, and alleges an express warranty as to the quality of the same, and that the vendors were growers of the hops, and hence there was an implied warranty that they were merchantable.

The defendant, below, answers and denies a sale by sample, and that there was an express warranty, and alleges that the sale and purchase of the hops was on inspection, and not by sample,- and the defendants, Wold, admit that they were the growers of the hops, and aver that the same were sound and good at the time- of the sale and delivery.

Here, then, were the issues to be determined by the jury, from the evidence, and under the instruction of the court as to the law of the case.

The jury found a verdict of $50 dollars for plaintiff, and after a motion for a new trial, which was refused by the lower court, the cause is brought here for examination, on eight assignments of error.

The first and second ^errors are abandoned, and whether insisted upon or not, we see no error in the court in suppressing the interrogations 13 and 14, and the answers in the deposition of witness, Meis, which is assigned for the third .error.

The fourth error, that the courtrefused to give to the jury the third instruction asked for by plaintiff, we think is not well assigned, as said instruction is an abstract proposition and assumes that its premises are found in the facts proven in this ease.

The court below gave to the jury the third instruction asked for by defendants, “ that in order to entitle the plaintiff to recover, he .must show, either a sale by sample, and that the bulk did not correspond with the sample, or that there was an express warranty of quality or fraud on the part of the vendor,” and the giving of this instruction is assigned for the fifth error, but we think it was properly given.

We can not say that the court erred in stating in the charge to the jury as follows; “ It is claimed in this case that there is a sale by sample, (that is the important point in this case, the only point in the cause)” because taken with what follows in the charge, and particularly that portion of the charge which is made in the seventh assignment of error, we .think the jury could not have been misled.as to the scope of .their investigation.

There was much evidence in the case, and much which demanded reconciliation and discrimination, and whether the verdict was just or unjust, we find no error in the “ overruling of the plaintiff’s motion for a new trial.” .

■ Let the judgment of the District court be affirmed.