Evening star. [volume] (Washington, D.C.) 1854-1972, 1868-01-06
THE COURTS.
CIRCUIT CoURT-Jastiee Wylie.

THE GuANO CASE.
Saturday, after onr report closed in tins
court, in the case of Robert Turner against Bar
tholow, the Court sand: This is an action of
assumpsit brought by Robert Turner against J.
q. Bartholow for the recovery of the value of
an article of merchandise sold and delivered.
There are some principles of law the Court
must instruct you upon. Many prayers have
been offered, and the shortest and most salts
factory solution Of the difficulty is to reject
them all. About fifty tons No. Peruvian
guano plaintiff sold and delivered to defendant
in this city at SO per ton. Defendant denies
that he owes anything, and has put in plea Of
seton, but my instructions are you must dis
regard il altogether; You might find verdict
for defendant for the expenses he was put to In
transporting it here from Philadelphia and his
expenses in analysis Of the article. The de-
Tense Is that this article was worthless. If the
defendant bought the guano solely upon his
own judgment, without any warranty, or fraud,
OF deceit to induce him TO buy, then the defend
ant must pay what he agreed to pay, and what
has teen proved. But if il was warranted
pure, dry No. Peruvian guanO, and it did not
come up TO IL, then you must consider what
loss defendant sustained, and allow him for IT,:
and if he the defendant) offered to return il,
and ii was refused, he has done all he could do;
and If he sold IL for value afterwards, then you
must allow whatever the value in the market
was AT mat tme-that Is, upon the ground OF
warranty.
There is another way in which the contract
may be- avoided, That the plaintiff used
fraud and deceit to induce defendant to pur-
chase and he lost thereby, then he is bound the
same as If he had made a special warranty, and
he is estopped by his fraud, it is for you to con-
slider upon the facts in this case: 1st. Whether
there was a warranty that this article should
BE- pure, dry No. Peruvian guano, and the de-
ftndant's presence in Philadelphia, and his ex-
animation OF the article, is no waver of the
warranty; I'd. That if any deceit or misrepre-
sentatiOn, intended 70 mIslead and did mis- lead,
II has the same effect as a warranty. The Court
Is OF the opinion that this a contract to fur
nish No. Peruvian guano, and if not fur
nished, ii is failure of contract on the part of
the plaintiff, and be cannot recover. Every
man Is bound, when he agrees TO furnish an
article. he must furnish the article of the kind
he contracts for, and the No. Peruvian guano
Is not No. 2 and this contract is specially de-
clared on and set forth, and bound to take it
BACK and If they are in the way and he SELL he
must pay not what he got for them, but what
was the market value of the goods at the time
There is evidence showing that the guano
smelt unusual strong, and that would have
been a good test, but there are tricks in this
trade as well As others. There is no very strong
evidence 10 show that the plaintiff in this case
was guilty Of adulteration, but some other man
fIom whom he purchased. 1t is for you TO Judge
whether the plaintiff had any knowledge of
this fact. Ii 50 he is TO be charged with that
knowledge; if he was guiltless of any fraud
even the loss necessarily fell upon him, for he
induced DEFENDANT to purchase and he has
brought this suit, and he must show a clear
right to recover; and if he is innocent then the
burden must remain where it is, for of two
equally innocent parties the law allows the
shift the responsibility to some one else. There
are several counts in this declaration, and al
though this article was not No guano, if any
value, at all the plaintiff is entitled to recover
that value, but il must be guano. Defendant
is entitled to set off to value of the freight
and the analysis of the article.
Mr. Dayidge reserved an exception to the re-
fusal OF the Court TO grant the prayers of the
plaintiff. Mr.. Harris, for defendant, alsD did
the same TO be safe If the case should go TO a
higher tribunal.
nh
prayers subject to the qualifications in his in
structions
The argument TO the jury was then postponed
until Monday, and the Court adjourned.
To-ddy.-Mr Davidge asked for the explana.
tons in regard TO several points in the Judges
charge on Saturday, in regard to where sale is
made TO man and examination is had by an
expert, then he buys with less risk than man
who purchases ignorant of the quality of the
article. The Court so stated, and also in regard
to the letter TO Barthalow, he held il to be an
express warranty; but as there was mixed evil
dence in the case, written and verbal, it was all
for the jury to decide upon.
Court ruled that if the purchase was made
upon the declarations contained in the letter to
Bartholow, unconnected with his personal ex-
animation of the article, then it is a positive
warranty, and you are and so the jury are to
consider Il.
Mr.. Ivy opened upon the part of the plaintiff
in an able and exhaustive argument to the
jury, which was still going Oh when our re-
port closed.
CRIMINAL COURT, Justice DIN.
Agnes White, heretofore found guilty of petit
arceny, was sentenced to Jail for twenty days
Philip Lucas, petit larceny; guilty-Iail two
months: forfeiture ofrecognizance RENTED
John NJ. Smith, alias Slim Jim; RoUe pros.
George A. Perrie, convicted of vending lot
terry tickets, moved a new trial and in arrest OF
Judgment.
Robert Jones, petit larceny; verdict guilty.
Julius Wallace, assault and battery; verdict,
guilty of assault only: sentenced TO pay Il fine
in iail