Heilbruner & Co. v. Wayte

The opinion of the court was delivered, by Agnbw, J. We discover no substantial error in the charge of the court below. It is true the judge omitted in his statement material facts bearing upon the ease ; but this was prejudicial to the plaintiff and not to the defendant. The proof is clear and without contradiction that the note in question was given by Heilbruner & Co. upon the purchase of the timber, and by their bargain -was to be endorsed by them. They were the purchasers of the timber, and were to pay for it by getting Kelso’s note — and did so; and at the time of the transaction he was expressly told by them he would have no trouble. They endorsed it and delivered it to Wayte, and it was only when it became necessary to negotiate it, that Wayte afterwards [261] endorsed it above Heilbruner & Co.’s name. In their letter^to Kelso, Heilbruner & Co. afterwards acknowledge the debt as their own, tell him he shall have no trouble, and say they will pay Wayte any day if he takes off the amount of the rotten timber. The facts clearly sustain the instruction of the court, and although not mentioned fully, it is very clear the judge did not intend to ignore them. Had there been an omission of facts material to the defence, and giving to it greater effect, and the court had grounded their instruction upon those only which made in favour of the plaintiff, the defendant would have had a just cause of complaint. But there was nothing of this. The instruction referred to in the second assignment of error conforms to the decisions in this state. There being no fraud alleged, it was necessary to show a warranty in order to defend, on the ground that the timber was of bad quality. This point is expressly decided in Eagan v. Call, 10 Casey 236, to which may be added Carson & McKnight v. Baillee, 7 Harris 375 ; Wetherill v. Nelson, 8 Harris 448 ; and Weismer v. Clement, 1 Wright 148. There is nothing in the remaining assignment of error, and the judgment is therefore affirmed.