Bird v. Mayer

By the Court, Smith, J. This was an action for goods sold by the defendants in error to the plaintiffs in error, viz: A quantity of varnish for the manufacture and finishing of wagons, carriages, &c., to the amount of %253 38 ; to which the defendants answered that the plaintiffs at the time the goods were sold warranted them to be of good and perfect quality, and well adapted to the purpose for which they were manufactured and purchased; that the said articles were not of good and perfect quality nor adapted to the purpose for for which they were manufactured and purchased; that the same were re-delivered to the plaintiffs, &c. The case was tried by a jury, and on the trial a number of exceptions were taken to the evidence offered by the defendants below; all of which have reference to the question of variance between the [367] proof offered and the pleadings under which the same was offered. It is unnecessary to consider these exceptions in detail, for they all depend on the same question, viz: Whether the answer of the defendants sets out an express warranty, or whether it is a mere statement of the warranty implied by law in the sale of manufactured articles. We have no doubt that the latter is the case. This was a sale of manufactured articles, designed for a particular purpose by the manufacturer, and the law implies a warranty that the articles so manufactured and sold should be adequate to the purpose for which they were sold and purchased. Walton vs. Cody, 1 Wis. Rep., 420. This is the warranty which the law implies in such cases; and the statement of the legal implication in the answer does not make the warranty an express one, unless the statement of the terms of the warranty goes further and alleges other matters which the law does not imply. This was not done in the answer filed in this case. It was a simple statement of the legal implication. In Walton vs. Cody the law was correctly stated and applied. There was an express contract alleged beyond the legal implication; and the proof failing to support the contract as alleged, the defence failed. As the whole theory of the trial in the court below was based upon the hypothesis that the contract set up in the answer was an express one ; and as we are satisfied that the court eired in some important points in excluding evidence, as well as in the the charge to the jury, it follows that the ruling of the court below was erroneous. Good pleading requires that a promise which the law implies should be stated. If it does not go beyond the legal implication it does not become an express contract. We do not think that the defendants below transcended this rule. [368] They purchased a specific, manufactured article, for a particular purpose. The law implied, that it was well adapted to the purpose for which it was manufactured and sold. The defendants below so alleged in their answer, as they, by law, were entitled to do. They did not go beyond this rule of law. They alleged only such a promise or warranty as the law implied, and were entitled to introduce their proof to sustain their allegations. In this case the legal maxim applies: uExpressio eorum, quse taciti insunt, nihil operator It follows that the court erred in excluding the proof offered by the defendants below as to the quality of the varnish, and also in the instruction given to the jury. Judgment reversed; venire de novo awarded.