Rust v. . Eckler

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 490 The warranty which, under the evidence, the jury must have found, was made by the defendant, related to a present sale, and not to an executory contract for the future sale and delivery of cheese of a particular quality. The sale was of the defendant's dairy of cheese, which at that time consisted of an ascertained and identified collection of cheeses, and it was as to those, that the evidence tended to show the warranty was made. This circumstance distinguishes the present from those cases in which the actions were brought for the breach of executing contracts for the future sale and delivery of personal property. In the latter class of contracts, any articles of the quality contracted for will answer the requirements of the contracts. And for that reason, it has been held that the party receiving the property waives his right to insist that the article delivered is inferior in quality from that which by the terms of the agreement he was entitled to receive, where he accepts and retains the property. In the one instance, the seller agrees to deliver to the buyer articles of a particular quality in the performance of the contract, while in the other, the agreement is, that the particular article actually delivered possesses the quality stipulated for. The contract in the latter, relates to the specific thing delivered, forming the identical subject of the agreement. And if it proves to be unperformed, the right of the buyer to maintain an action upon it for the recovery of the damages sustained by the breach, is not lost by the circumstance that he may have received and retained the article sold. This is now very well settled law in the courts of this State. (Muller v. Eno, 14 N.Y., 597; Gillespie v. Torrance, 25 N.Y., 306;Wilber v. Cartright, 44 Barb., 536.) It is also well settled, that the principal may maintain an *Page 492 action upon a contract, made on his behalf by a duly authorized agent, though the fact, that this relation existed, may have been, at the time, unknown to the other contracting party. The motion which was made, for a nonsuit, on these grounds, was therefore properly denied. The commission, under which the depositions were taken, which were objected to and received in evidence upon the trial, is not contained in the case, and was not handed up with it; and it cannot, therefore, be determined whether each sheet of the depositions was or was not subscribed by the commissioner, as the statute requires. It must be assumed that they were, because there is nothing in the papers showing they were not, and the presumption of the law is in favor of the validity of the proceedings. The other objections to the depositions, are conceded by the respondent's brief, to have been well founded upon the papers. The first of these is, that the commission was addressed to William Ogle, and was returned executed by Williams Ogle. As there was nothing shown from which it could be supposed that the person executing it, was different from the one to whom it was directed, this objection was properly overruled. The names were so nearly alike, that it may well be presumed that they represented the same person. The second objection was, that the witnesses appeared to have been sworn, and the commission executed by the commissioner, under the description of himself, as an alderman. This was no reason for rejecting the depositions, because he could not act as alderman under the commission, without, at the same time, also, acting as the commissioner appointed by it. The term was a mere description of himself, which had no effect upon the legal capacity in which, for the time being, he was acting. He discharged the duties and exercised the authority conferred by the commission, and necessarily acted under it in doing so. It was of no consequence, therefore, what he was pleased to call himself while doing it. The third and remaining objection was, that the commission and depositions were returned, addressed to L. Enos Greene, instead of Zenos Greene. The *Page 493 statute does not require the name of the clerk to be contained in the address. It simply requires that the commission and depositions shall be addressed to the clerk of the court, from which the commission issued, or to the clerk of the county, in which the venire in the action shall be laid, as the one or the other may be proper. There is no pretence that this was not done, and the fact that a wrong name was given to the clerk, furnished no ground for rejecting the evidence. The answer to the question propounded to the witness, McCready, concerning the quality of the defendant's cheese, was properly excluded, because it did not relate to the cheese in controversy. The quality of the other cheese made by the defendant, was a subject entirely immaterial to the controversy then upon trial. The plaintiff's witness, Hopkins, who was a dealer in cheese described the cellar in which those purchased from the defendant were placed. He then stated that he had stored a good deal of cheese in cellars for several years. And he was thereupon asked, whether he saw anything in the condition of this cellar, or in its surroundings, that rendered it an improper and unfit place to put cheese in. This was objected to, on the ground that the witness could not give his opinion, but that he must state facts. The court permitted the witness to answer, and the defendant excepted. The witness answered that he did not. This question did not require the witness to give his opinion upon the condition of the cellar, or whether it was a proper or suitable place for storing or keeping cheese, but it required him to testify to a matter of fact; and that was, whether he saw anything rendering it an unfit or improper place to keep cheese. That is, whether any circumstance fell under his observation, indicating that to be the case; not, whether it was or was not a proper place for that purpose, from the facts he had discovered. The witness, as a dealer in cheese, may very well be presumed, as a matter of experience, to know what kind of a place was necessary for the proper preservation of cheese. *Page 494 That was a peculiar kind of knowledge, depending upon the skill and experience of a person familiar with the business, and the circumstances from which cheese would be liable to injury. And his judgment, upon that subject, could properly be submitted, for the guidance and consideration of the jury. It was within the rule, permitting the judgment or opinion of a skillful witness to be given in evidence. (Price v. Powell, 3 Com., 323-3-6;Dewitt v. Barley, 5 Seld., 371, 375; Moore v. Westervelt,27 N.Y., 234, 238; Corn v. Rogers, 7 Metcalf, 504.) As no other reason is relied upon for the reversal of the judgment, it follows that it should be affirmed, with costs.