The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-01-29

wARRASTY-LIABILITY OF MEMBERS FOR THE
REPRESENTATIONS OF BROKERS MADE AT THE SALE.
SUPREME CoURT--GENERAL TERM.
Before Judges Mitchell Morris and Clerke.
JAN. 27-John H. Brolcer Co., Leois &c Sterling.
in this the plaintiffs merchants OF this city,
and the 9th of October 1s49 sold to defendants
chants Of Philadelphia eighty five bales Of repacked cot
tons amounting to s2,742 The sale was made through
cotton broker, who sold the same by sample It ap.
pears that large number of the bales did
pond with the samples exhibited. The defendants paid
the plaintiffs the amount they deemed the cottons
worth, and in this action, which brought to reco
the balance of the purchase money up in de-
fence breach of the warranty, and claimed set OF
the difference between the actual value Of the tons
and the value based upon tie samples from which they
sold
The case was tried before Judge Roosevelt and under
his ruling the jury disagreed. The afterwards
tried before Judge EdmoDde, and he directed the jury
to bring in verdict for the whole OF the plaintiffs
claim, the ground that rcpacked cotton da.
mayed article and that the rules Of law touching sale
by sample did not apply 10 such sale The defendants
appealed The Court reversed the judgment of the Court
below, and ordered new trial:
Mitchell, 1.-THE Judge, after being. requested to
and directed the jury to find verdict for the plaintiffs
for the whole amount claimed This Withdrew every
question from the jury and could not be correct fhere
were any FLASHING Of testimony a material point
The Judge stated the ground Of mis- decision be- that
repacked cotton was damaged article, and that the
such a sale. The DEFENDANTS excepted. If cotton Is
damaged, and II is sold by sample. that sample should
be lair specimen of the whole of the bad well the
good and II the seller chooses to warrant that the
whole corresponds with the sample, he s liable IL It
turn out different, although it was also sold da
mayed article
one witness said that Nabie the broker, for the sell
lers assured him thar tie samples were fairly and no.
nesty drawn and that he might depend upon their
ing out when opened equal TO the samples and that It
was clearly Understood between him and Matbe that
the ttons to prove equal to the samples If this
not conclusive evidence Of agreement IN war
rant, was enough to to the jury that question
samples fairly drawn and If there was any fraud the
defendants would have to the plaintiffs and
he also rays the cotton sold by sample. Another
witness says Nstble gave me his unqualified assuraDcs
that the cotton would equal to the SAMPLES the
word warranty or guarantee was used and the word
sample
The cotton, instead of answering the sample, bad In
ach bale $40 pounds Of refuse-consistng Of oyster
hels, small stones and sand, according Witness
or $50 pounds Of trash, 30 another.
If this refuse were in mass, no. casually ad-
herring 10 the cotton, without warranty the de-
PENDANTS could not be called to pay for IT, pur
chase Of cotton by the pound the buyer not pay
oyster shells and stones by the pound
If the jury had believed Witness and him alone
as the Judge perhaps cid that repealed cotton meant
look out tor All sorts of stuff and this stuff includes
foreign stuff also stones the verdict might have been
right But other witnesses gave to those words differ
emit meaning. One said it meant wet cotton dried and
means, sometimes a merchantabe article, sometimes
unmerchanabe; It cotton rebaled after
ccent has occurred to break damage the original
article; but that dirt sticks are never intro
duced into the bales repackng except when the OBJ
ect was 10 oeiraud Inc purchaser or consumer Ano-
Their witness saysft has definite sgnifcat which
is that the cotton is may be damaged that II or
mixed qualities.
If the jury believed these last witnesses they could
not find that there could be warranty OF repacked
cotton.
1.-THE broker had auth GRITTY 10 sell by sample,
which not shown at the trial, still the PLAINTIFF
cannot affirm the sale made by him, and yet an in
creased price on account OF the warranty made b. him
and keep and say they did not the warranty
IL will answer the defendant. wen IL they disafrm
the contract msde and claim only 50 much
the cotton would have been worth, II sold without
warranty the suppositon that sold with warranty
II would bring the price agreed no.
The objection raised by the plaintiffs that the
sale note the only legal evidence Of the terms OF sale,
not raised the trial II raised, IL mign. have
possibly been obvated In not necessary TO pass
on that objection.
There should be new trial; the costs 20 abide the
event.