Nichols v. Guibor

Breese, J. All the points raised in this cause must be decided against the appellant. The agent, Linton, was a competent witness on general principles for all purposes. His interest in this particular case, if he had any, was released on trial, and all objection removed. To make the party liable under this proof, the seller was under no necessity of demanding* a return of the article. It was the business of the purchaser to return it so soon as he discovered it did not suit his purposes. There was no warranty of quality, and, therefore, it was not competent for the purchaser to prove the article was worthless ; “ his eyes were his chap he was his own judge of the article, without any warranty, express or implied. The express agreement to return it if it did not suit, excludes any implied warranty. The case does not show the property was damaged while in the possession of the agent, Linton, so as to make him responsible in an action. No release, therefore, was necessary on this account; but the case did not depend on Linton’s testimony. William Phillips testifies that Nichols told him he was not obliged to keep the plow, if he did not like it, but was to return the plow if it did not suit him. He should have returned it at the earliest practicable moment. Not having done so, he is justly chargeable with the price. Judgment affirmed.