Boit & McKenzie v. Whitehead

McCay, Judge. The plaintiffs were the original payees of the note. True, as it seems, they were not, in fact, the owners, and yet it ivas with them, in their own name, that the defendant contracted. We think it very far-fetched to set up that they are innocent purchasers. They bought with their eyes open; they knew what the note was given for; they knew there was an express [78] warranty; they were the agents, according to their own showing, in the whole matter, and in taking the note they contracted in their own name. They must take the fate of their principal. We can hardly see, even if the note was not payable to the plaintiffs, they could be innocent purchasers, since the defendant has nothing to do with the manufacturer, except through them. They were the means by which the defendants were imposed on, if they were imposed on. We think the plaintiffs too clearly mixed up with the sale and warranty, and with the note itself, to become innocent holders of the note. They are charged with the duty to see to it that the warranty made by themselves has not failed. We see no error in the charge or verdict. True, it is not conclusive of a bad article that it did no good in a particular case, nor is it conclusive of a good article that another lot of the same brand is good. It is, in each case, a question of fact, to be determined by the jury, as other facts, from the proof. The evidence in this case seems very strong that this was a bad article. Even the agent could see no difference. If the guano is properly used, and the season is not such as to destroy the effect, it would seem that if there is a failure to get any benefit, there is pretty strong proof of a bad article. Whilst we have no sympathy with a defendant who sets up his own mismanagement or the influence of the season against the payment of a just debt for manure, we have as little for those who impose their worthless dirt upon the honest farmer, who, if the article be bad, not only fails to get benefit, but loses his pains and labor of hauling and distributing an inert substance. Judgment affirmed.