Herman v. Brinker

Per Curiam, We think the learned court below was right in holding that the plaintiff’s cause of action as alleged in his pleadings was the breach of an express warranty. The really important question therefore arising upon this appeal is whether it was the duty of the court to declare as matter of law that if the • defendant stated at the time of the sale that the cow was all right, this was a warranty of soundness. The general doctrine of the Pennsylvania cases is, that though to constitute a warranty no particular form of words is required, the naked averment of a fact without more is not a warranty. “In connection with other circumstances it certainly may be taken in consideration, but the jury must be satisfied from the whole that the vendor actually, and not constructively, consented to be bound for the truth of his representation. Should he have used expressions partly importing a willingness to be thus bound, it would furnish a reason to infer that he had intentionally induced the vendee to treat on that basis; but a naked affirmation is not to be dealt with as a warranty, merely because the vendee had gratuitously relied on it: ” McFarland v. Newman, 9 W. 55. It is not necessary to refer to all the numerous cases in which this statement of the law has been recognized ; it is sufficient to refer to the recent cases of Holmes v. Tyson, 147 Pa. 305, Houston v. Cook, 153 Pa. 48, and Mahaffey v. Ferguson, 156 Pa. 156, and to add that none of the Pennsylvania cases cited by appellant’s counsel teaches a different doctrine. The plaintiff certainly has no just cause to complain of the submission of the question of warranty to the jury; nor after a perusal of the charge, can we say that he has any reason to complain of the manner in which -it was submitted. With regard to the case of Brinser v. Longenecker, 169 Pa. 51, relied upon by appellant’s counsel, we remark that the verdict was in favor, of the defendant, and that upon the question of warranty the case is only authority for the proposition that the plaintiff there had no reason to complain of the instructions to the jury. As to the fourth, fifth and sixth assignments of error we remark that this was not an action to recover back the purchase money paid upon a sale made in violation of the act of assembly [180] but an action to recover damages for tbe breach of a warranty, and, as the learned judge properly held, was governed by the principles of law relating thereto. The rule, caveat emptor, applied in the absence of fraud or warranty. Fraud was not alleged, and the jury after a fair submission of the question to them have found that there was no warranty. Therefore it is unnecessary to pass upon or discuss the question as to the proper measure of damages if there had been a warranty. All the assignments of error are overruled and the judgment is affirmed.