Harrington v. Smith

Devens, J. It is important to observe, in considering the exceptions in the case at bar, that the plaintiff does not, in either of the three counts of the declaration upon which he relied, allege the engine to be a Putnam engine, rated at a certain horse power, or one properly described as a thirty horse power Putnam engine. The first two counts, which are for breach of warranty, aver that the plaintiff sold the defendant a Putnam engine, and warranted the same to be of thirty-five horse power and capable of making and yielding thirty-five horse power; and that it was not of thirty-five horse power and capable of making and yielding such power. The third count avers that the Putnam engine sold to him was falsely represented by the defendant to be an engine of thirty-five horse power, by which we must understand capable of yielding that power; and that, relying upon this representation, the plaintiff bought the same. — 97 — When, therefore, the plaintiff sought to show that there was a difference between the rated or indicated power of an engine and its effective force, and that manufacturers rated their engines differently, so that an engine rated by the Putnam Company as of twenty horse power was in fact of much higher effective force, he was endeavoring to introduce a cause of action different from that which he had declared on in either count in his declaration. A horse power is a definite amount of mechanical force. The breach of warranty and false representation alleged by him were in regard to an engine possessing a certain mechanical force defined by the number of such powers, and not in regard to an engine which had been thus rated upon some artificial system understood between buyers and sellers, and from which rating the buyer had a right to understand that its effective force was much greater. The question put by the plaintiff to an expert was properly excluded, for several reasons. The sale was not made upon the advertisement, but upon the personal examination which after-wards took place; and the object of the advertisement was only to call attention to the fact that; there was an engine for sale. While also a term may acquire by commercial usage a peculiar meaning, which, when it is employed by those familiar with the subject, may be shown, yet this inquiry is different from that of the meaning which the trade may attribute to an advertisement. The more important reason for its rejection, however, is that its object was to show what was the proper rating of the engine, in connection with evidence that the commercial or manufacturers’ ratings were always below the effective, reasonable running power of the engine; and this was irrelevant, as the plaintiff had not declared for any misrepresentation in this, but only in the effective capacity of the engine. This consideration disposes of the first exception to the refusal of the presiding judge to give the ruling requested. The plaintiff urges that the instruction given was in effect a ruling “ that the phrase ‘ thirty horse power Putnam engine ’ was not a unity, a single phrase with a meaning understood by the parties, and held out as such by the defendant in his advertisement and throughout the bargain.” The plaintiff had not called it such in either count of his declaration, or used this phrase as a — 98 — term descriptive of it, but a Putnam engine of thirty horse power or capable of yielding thirty horse power. That it was a Putnam engine, that is, made by the manufacturing company of that name, was not in dispute. When, therefore, the jury were instructed that they must be satisfied “ that the engine sold by the defendant to the plaintiff was a practical thirty horse power engine, that is, capable of furnishing thirty horse power without being strained or injured in its parts as a machine,” the instruction was appropriate to the plaintiff’s declaration, and all that he had a right under it to ask. The plaintiff also contends, — in view of the fact that one ground of his action set forth in the pleadings was for a breach of warranty, and his claim that, if the jury found that the representations made were as claimed by him, and amounted to a warranty, such warranty was a part of the contract, —that it need not be shown that he was influenced by such representations to make the purchase; and that the instructions were defective in thus stating to the jury. No evidence is set forth by the exceptions tending tó show that there was any warranty in terms. Any affirmation as to the essential qualities of an article of personal property, made at the time of the sale thereof, is a warranty, and becomes a part of the contract, if the purchaser relies on it, and is thereby materially induced to make the purchase. The instructions permitted the plaintiff to recover, if such affirmations were proved and such reliance placed upon them. Without doubt, there may be a special warranty where a purchaser buys upon his own judgment, and yet for his own protection desires and obtains the benefit of it. Even if, in his own judgment, the article is not what it is represented, he may see fit to purchase it, and rely upon a special warranty that it is so. But such warranty must be made in explicit terms. To give force to the warranty that is inferrible from affirmation as to the essential qualities of the article sold, it is necessary that the truth of the thing affirmed should be relied upon to an appreciable extent. To this effect were the instructions given by the court. They did not distinguish carefully between the rules of law applicable to the case where an action is sought to be maintained upon the ground of false representations in tort and in contract for breach of warranty. This cannot have injured the — 99 — plaintiff, as they held the defendant to a responsibility for false or mere erroneous representations as high certainly as that to which he has ever been subjected. Exceptions overruled.