The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-02-05

'endant
N warranty folio ws.-The substantial and main ques
lion In this case, gentlemen. Is whether there was
warranty and as the amount claimed Is very large Eek
csedng $40 00o II Is important TO tho partirs that YOU
should give 70 the consideration Of thai question under
the direction OF the Court, all the inheritance It de-
mands In OF the consequences 10 either the plain
til or defendant OF the conclusion You should
a. say that that Ii the main question In this case
and cay SO because IL Is answered in the negative
there Va end to the but II Ia the Affirmative
then there other quesnns resulting from that con-
sequence Frs whether the article delivered equal
or amount or ths difference: and. second. whether
she parties finally adjusted their dherence and agreed
upon settlement 10 discharge Of all claims IN brasch
OF the warranty Now the first question that arises IL
question Of Law - To what 10 warranty: for very
important that You should have very clear snd distinct
question Of this kind which Is Isft 70 You upon the
evidence. Whea purchase 10 made OF goods that are
in condition 70 DO transferred physically and delivered
with the contract OF sale, II the
duty OF the buyer N the article aud see thai
is OF the kind quality that he means 10 purchase.
substantially in our vernacular this -"Let the buyer
look 70 Il that the goods Of the quality or kind he
means 70 parchas and he does not the consequences
are upon him " II be does not wish 70 exercise this
right OF examination for his own protection, he may
exact "a seller 10 willing give II. what Is called in
gagemsnt on the part OF the sser that the article is
what In represented 10 be- and that he will be
able for the consequences turns out 70 be otherwise
be different from Whist il s represented 70 be Now
II not every representation which settler makes In
disposng OF article that Ia the Judgment OF the
natural course Of things that ne who has something 10
dispose OF cndeavcrs 70 get the best price for that he
can, and tho who anxious 70 buy II tries 70 get u
at the least price that he and this struggle Of con-
1icng interests ends as usual, In agreement upon
the price which he purchased and II is usually
accompanied by a representation upon part cxang
the merit Of the article about to be disposed Of and on
the other suggesting OF conduct that will secure
the purchase Of 1t at the least possible price say this
all Of
dealers and buyers. know u 70 be the natural
OF human nature in the conflict which takes place
between buyer and seller and therefore the words
used speaking Of the merchaniable character Of the
goods OF the exceences OF their condition or other
general words OF recommendation and merit do
not amount TO a warranty. A warranty is some
thing notwithstanding distinct; something
in the nature OF specific engagement that
the article exacted by the buyer and cancelled by tho
sellers that the article Ii particular known quality or
kind, and he makes a sale upon the engagement and
condition that II Il proves not to be So he will as said
BEFORE be answerable for the consequences Now, to
illustrate thisH buys horse and nothing,
but pleased with his appearance and pace, he takes
Tor better for but If no exacts warranty and
the owner Of The horse gives him writing that the
horse It's sound and KIND in harness. Ia the usual
terms and It turns out that the animal has defect Is
lame otherwise imperfect aud II Is vicious and
manageable. whatever the consequence may be 70 the
buyer by the horse turning out different from what
represented he entitled u recover that difference IN
action for breach OF a warranty. Now, what
have now said applies To warranty that IL con-
tompornneous with contract or sale; but where
article ~ not IN CONDITION 70 De examined
by the buyer where Il is be manufactured and de-
vered at future dav or ct future place. but every
thing except the more oct OF delivery Is arranged
between the parties takes the form Of contract that
called in the law "executory contract " because II
70 be executed in that particular BY delivery Of an
And there is some distinction 10 reference this kind
of warranty between warranty that would be given
where buyer is about TO have article delivered 70
him and nay price and warranty with respect 70
an article which ID 10 be manufactured and delivered Ut
some future day Now, gentlemen, the rale OF law on
svvs Sas a. % essaue The
ana may yet have o . fshsos,sd and therefore Inc
or sscsrsains whether i L The article hs ordered Or
e 1s ana = ss @ Ss
article There has been delivery, bst not that accept
which law requires and which the statute OF
suffers that length Of time 70 pass % regarded an
acqucscencc on bis part that the article delivered b In
with the contract and the matter is thero
fore accomplished and the selI0r entitled 70 bis price,
Now tho reason. good sense and usnese Of this rule
win be apparent 70 you by presenting u in one point Of
thsss foisscd upon him which s dissnt . what Be-
Intended TO purchase IL Affords the seller opportunity
70 reotiy any mistake 4 there 3 dinsssoe. q opin
any In the fabrication Of Il in what has been delivered
what IL to be delivered under continuance Of contract
mistake and therefore, there 10 great justnsss and
propr'ety 10 having rule OF that kisd. Now. tho d
Guilty with respect 70 contract OF this nature ouGgc0toQ
bv this action because hero the contract cxecutosy
This was agreement for q quality Of flannel; the
Of the flannel and the price agreed up0n but
tho delivery at future period and the dculty In
Of that kind 10 IN determning whethsr the ineu
ton OF tho parties was simply that there should BE- either
general right OF inspection the part Of the buyer
whom the property delivered IL the successive
Of its delivery or whether doss not amount 70 this
positive eagssesnt on the part q the sslsr Aas sadr
Ill circumstances and Ct al risks this article shall b
what he warranted II 70 be-. and II b
not no will ansvee for the Consequences
Il b important because while % + L have
already ruled The courss OF the casse d entirely
compstent for parties entering into execut0ry
tract Of this nature TO make superadded contract OF
warranty. To make IL condition Of either contrast
b Important that In such case the jury ought 70 b
we'll satisfied that that intention did exist thai was
10 be the ordinary In inspecting the article %
delivery and the retaining OF Il Was the article
contracted for but that was 70 be positive engage.
msnt the par! OF the seller AAt there 70 Be
question about the future examination the part OF the
buyer taking II back anything Of that kind; but
that II failed 70 be what represented to be- and
what the buyer had bound himself Il should turn
be- that he would answer FOR the CONSCIOUSNESS say
10 very important with respect 70 contract OF that
nature that there should Be very satisfactory couclu
sion upon the minds OF the jury that that the nten
ton Of the parties Tho jury returned verdict for
plaintiff OF $1,000 4A.E sss asN s.
COURT cAleHoAR-Tins nAY.