Crenshaw v. Slye

Irving, J., delivered the opinion of the Court. The suit, in which this appeal was taken, was instituted upon a promissory note of the appellee’ to the appellants, for one hundred and twenty-three dollars. The narr. contained the ordinary money counts, with a special count setting out the promissory note. The appellee pleaded non assumpsit, and under the general issue proved that the note was given for two and one-half tons of a fertilizer called “ Eureka,” of which the plaintiffs were manufacturers, and offered evidence tending to prove certain representations at the time of the sale, respecting the value of the fertilizer, which were claimed to amount to a warranty, and upon which the appellee relied in the purchase.

The main question is, did the Court, in the instructions given the jury, in lieu of the instructions asked by the respective parties, correctly instruct the jury as to what they must find to entitle the appellants to recover? In other words, were the elements of evidence necessary to ¹⁴⁶ make a warranty from representations sufficiently stated in the instructions. No question of the admissibility of evidence under the pleadings, or of its legal sufficiency to support the instructions is before us under the record. The rule of law is, that any affirmation of the quality of the artiole, made at the time of the sale, intended as an assurance of the fact stated, and relied on and acted on by the purchaser, will constitute an express warranty.

This rule all the authorities" lay down, and it is not thought necessary to make special citations. Whether such representations were made with the intention of securing a sale, and were relied on by the purchaser, is for the jury, to he inferred from the nature of the sale and the circumstances of the particular case. Benjamin on Sales, 409 and 500. The simple question is, then, did the Court sufficiently instruct the jury as to what they must find to constitute a warranty P By the first instruction the Court said “ If the jury find from the evidence in this case, that the note, upon which this