Opinion
May, 1914.
Upon the motion for reargument the defendant first argues that the admission in the answer of the warranty alleged in the complaint was not intended as an admission of an express warranty, but was intended simply as an admission of an implied warranty. Whatever construction might otherwise be given to the pleadings, it was evidently assumed upon the trial, as is claimed by the defendant, and the construction given to the pleadings upon the trial, both by the court and by counsel, should be the construction which this court will adopt in determining the appeal. It is further urged that an admission in a pleading of an implied warranty is not binding upon the defendant because it is an admission of a legal conclusion. To this proposition we also agree. The motion for reargument should be denied, however, because the majority of the court were of opinion that as matter of law, upon the sale of the ice cream by the defendant, there was an implied warranty that it was fit for consumption; upon this assumption the majority of the court were further of the opinion that there was sufficient evidence to sustain the verdict of the jury and, therefore, that the judgment should be affirmed. Motion denied, without costs. All concurred.