Adler v. Robert Portner Brewing Co.

Bryan, J., delivered the opinion of the Court. The appellee sued the appellant to recover the price of certain machinery. The defendant relied on an alleged breach of warranty. It appeared that the machinery was sold by one Robert Portner, to the firm of Adler & Mulhauser, of which the defendant was a member, and that the cause of action was assigned to the plaintiff, a body politic and corporate.

The defendant testified that in September, 1882, he purchased the machine in question in the City of Baltimore, from Robert Portner; that the price was $1200; no time of payment was mentioned ; nothing was then said about notes ; that Portner warranted the machine to do all the work Adler wanted to do; that he bought only on Portner’s warranty; that Mulhauser, defendant’s partner, went over to Alexandria a week or two afterwards to look at the machine that was to be shipped, and that the machine came on, and was received by the defendant about the beginning of October. This testimony is contradicted by Portner and Mulhauser, who testify that the purchase was made by Mulhauser in Alexandria, and that there was no warranty; Portner testifying that Mulhauser knew the machine, and had ³² seen it work for four or five years when he was in Portner’s employment, and on visits to Portner’s brewery. Another witness also testified that Mulhauser looked at the machine at the time of the purchase and that it was known to him. Mulhauser testified that he had seen the machine often, and.that he examined it when at work at the time of the purchase.

Adler testified to breaches of the warranty. Notwithstanding the contradiction to Adler’s testimony, it was necessary that it should be considered by the jury, and if they found according to it, the Court was required to give to their finding its legal effect. Adler testified to an express warranty, and if this were broken, it was not material whether it were fraudulently made or not. This point was. decided in Osgood vs. Lewis, 2 Harris & Gill, 495, and is considered as fully settled.

The fourth prayer of the plaintiff did not correctly state the law, when it required the jury to find the warranty, “fraudulently untrue,” before they could deduct damages for the breach of it, from the amount of the purchase money. The alleged contract for the purchase of the machine was oral, nothing was given by way of earnest to bind the bargain and no payment was made in whole, or in part. In this condition it was within the Statute of Frauds, but when the delivery afterwards took place, it became valid and binding. If there were no other features in the case, we should reverse the judgment.

We must however consider the other incidents of the trial. There was evidence tending to show that one-half of the purchase money was to be paid in three months, and the other half in four months; and that in November, Mulhauser asked for an extension of credit until May, and it was granted by