Opinion
Argued January 6th
Decided May 1st, 1871
William Henry Arnoux, for the appellant.
J.B. Bullock and Samuel Hand, for the respondent.
No error was committed in sustaining the objection to the question as to how much the beans sold were worth. The true inquiry was as to their value compared with the sample by which they were sold. They may have been worth much less than the price paid for them and yet fairly represented by the sample. The first exception to the charge was founded upon a misapprehension of what the charge was. It seems to have been founded upon the idea that the judge intended to instruct the jury that the principles concerning sales by samples was inapplicable to this case, whereas it was the reverse, and the illustration of the judge shows it to be so. If the second exception had been founded upon any fact stated by the judge, it would have given the plaintiff, and not the defendant, cause of complaint. A peremptory charge to deduct seventy-three barrels was what the defendant exacted and the plaintiff did not want. The third exception, as the same is stated, is an exception to a statement of the truth. The notice of rejection was given on the 8th November. Judgment must be affirmed.
This is an action to recover the balance of the purchase price of a quantity of beans, sold in October, 1862. The defence alleges a sale by sample, and that a part of the bulk was not equal to the sample, claiming damages therefor. The principal question upon the trial, was as to the nature of the warranty made on the sale. The defendant insisted that it was an ordinary sale by sample. The plaintiffs insisted that it was a sale by sample, with a warranty simply that the average of the bulk should be equal to the average of the sample. The sample was formed by selecting beans of various kinds and of various qualities from twenty different boxes, and mixing them into one mass. Of these specimens some were much more valuable than could be bought for the price given on this sale. Some were of an inferior quality, while still others were in a bad state of preservation. The average thus created, constituted an article which was sold at the price of $2.25 per bushel. The jury, I conclude, held the bargain to be as claimed by the plaintiff. The whole purchase price amounted to $8,655.35, of which $8,000 had been paid. The jury allowed the defendants for the value of five barrels of the beans, as not equal to the average and deducting their value from $655.35 gave the plaintiff a verdict for the balance with interest.
The first objection argued by the appellants arose upon the testimony of Mr. Goff, who testified as follows: "I took a sample on Thursday last of those beans from every package, and put together the entire sample. This is it. I saw the entire lot of those beans, 4,600, barrels. Q. What are the condition of those beans, upon an average, as compared with the sample that was given? A. As a whole they would not come up to the sample. I remember the particular barrels of beans spoken of that came from my place; there were considerable many that we would call blighted beans, they were sound but blighted, some of them would and some of them would not equal the sample, as a whole they would not. Those that came from our place would not equal the sample of Leonard Gray. Q. How much are those goods worth as they were? Question objected to by plaintiff. Objection overruled and defendant excepts." Grammatically taken this question refers to the goods that "came from our place." It would not be contended, I think, that this question was competent. I presume, however, that the defendant's counsel intended the question to apply to the entire lot, to wit, the 4,600 barrels, and wished to show that they were worth less than the price agreed to be paid for them. Assuming this, and assuming that the samples which he took "from every package," made a fair average of the packages, which he does not state, still the evidence was not competent. The question was not, what was the value of the beans purchased, but what was the difference in value between the article as furnished and the article as agreed to be furnished? The witness having stated that he was acquainted with the character of the samples, and had examined the articles delivered, and that the latter did not come up to the sample, the proper evidence then to be given, should have been of the difference in the value of the two articles. This was not to be determined by the value of the goods as delivered. The defendants might have made a very good bargain. If so they were entitled to the benefit of it. They could not be deprived of the advantage of the warranty, nor of their damages for its breach, by the fact that they had made an advantageous purchase. Neither are they thus to be lifted out of it, if they had made a poor bargain. The point to be determined was, not that of the then actual value, but of the difference in value. If the defendants had offered this proof in connection with the statement that it was purposed also to prove the value of the sample and to claim the difference in value, the case would have been different. They made no such offer, gave no intimation of such an intention, but apparently assumed that the real value of the article should be proved to the jury. They took a ruling upon the naked offer to prove the value of the article delivered, unconnected with the idea of proving also the value of the sample. ( Muller v. Eno, 14 N YR., 597.)
Neither was this evidence competent in the defendants' view of the case. The defendants claimed in their answer, that a part of the beans were not equal to the sample. Their efforts on the trial were directed to the precise point of proving the inferiority of seventy-three barrels. They did not claim in their answer, that taking the whole 4,600 barrels together, it was not on the average equal to the sample; that is, that if the whole 4,600 barrels had been thrown into one mass and thoroughly mixed, the average value would have been less than that of the sample. Such was their theory of the case by their answer, and as practically conceded on the trial. They denied the sale of an average sample, but claimed a sale by sample strictly. By this rule every barrel must have been equal to the sample. Conceding that 4,527 barrels were equal to the sample, they insisted that seventy-three barrels were inferior. The question on this theory would have been the difference in value between the seventy-three barrels and the sample as shown. The evidence had already shown that five barrels were claimed to have been musty, and below the average. The jury adopted the plaintiffs view, that the sale was by an average, and deducting the five barrels, as not up to the average allowing nothing in their value gave a verdict for the price of the residue.
In any aspect, this evidence was not competent.
As to the law applicable to this subject generally, see Muller v. Eno ( 14 N.Y., 597); Gillespie v. Torrance ( 34 N Y, 634); Hoe v. Sanborn (34 ib., 634).
Various objections are made to the charge of the judge, which do not require consideration. Some of them are founded upon a misunderstanding of the language of the judge, and none of them contain any error to the prejudice of the defendant.
The judgment should be affirmed, with costs.
All for affirmance, except LEONARD, C., not sitting.
Judgment affirmed with costs.