Roseboom v. Vermillion

Mr. Justice Wright delivered the opinion of the court. This was a suit in assumpsit by appellee against appellants to recover for a breach of an alleged contract of warranty that certain broom corn seed purchased by appellee of appellants was of the quality known as Tennessee Evergreen, and which it was claimed it was not. A trial by jury resulted in a verdict and judgment against appellants for $287.50, to reverse which they bring this appeal, insisting as reasons for such reversal, the court erred in the admission of evidence, the damages are excessive, the verdict is not supported bv the^evidence, the court misdirected the jury, and refused instructions that ought to have been given. The evidence proved that appellee purchased broom corn seed of appellants, and tended to prove that appellants warranted it to be Tennessee Evergreen, although upon the question of warranty the evidence was conflicting and formed a vital issue in the case, requiring the rulings of the court affecting it, in respect to the admission of evidence and instructions to the jury, to be accurate. Over the objection of the appellants the court admitted evidence of the statements or representations made by defendants to Shea concerning broom corn seed being Tennessee Evergreen. This, we think, was misleading and prejudicial error. It was not pertinent to the issue, nor was it claimed that the seed was sold to Shea for the particular kind of seed in question, for he purchased seed elsewhere; and even if the statement were true, it would prove nothing material affecting the alleged contract of warranty with appellee. The only inference that could be drawn from such evidence by the jury would be, that having made the statement to Shea, it was probable it was also made to appellee, and herein was the misleading quality of the evidence. It is no answer to this objection that the evidence was competent as an impeachment of Eoseboom, because in the first place it was introduced in chief, without any foundation for it to rest upon, and, secondly, it contradicted nothing material the witness stated afterward. The court also, against the objection of appellants, allowed appellee to state as a witness on the trial that he relied upon the statements of Eoseboom as to the kind of seed it was. It was material in determining whether a contract of warranty existed to know if such contract was intended by appellants and accepted by appellee. It was not material whether appellee relied upon certain representation or not, as it might have been if the action was for fraud. Besides, if the inquiry was material it would be for the jury to say from the whole evidence whether there was such reliance, and not for the witness to give his conclusion merely, so that in whatever aspect the subject is considered, it would seem the evidence was improper and misleading, and we are constrained to hold the admission of it prejudicial error. The first and sixth instructions given to the jury at the request of appellee, we think, are justly subject to the criticisms put upon them. They plainly omit, as we think, the essential element of a contract that it must have been intended by appellants that the assertion of the quality respecting the seed was intended as a proposition to warrant it to be such, and that defendant accepted and acted on it as such. . The general rule, which we think is too familiar to need the citation of authorities in support of it, is that in order for representations to constitute a contract of warranty, the vendor must so intend them, and the vendee accept and act upon the faith of them as such. In truth, such is the initial point in every verbal contract of sale, that the minds of the contracting parties must meet in proffering and accepting a proposition; and while this may be done in various forms and ways, and may be proved even by circumstances, still the one element of intention by one and acceptance by the other, is always material to be determined, and if wanting in the mind of either there is no contract; and without this evidence of intention no representations as to the character or quality of the thing sold would amount to a contract; and so we are constrained to believe the instructions in this respect were faulty and misleading, and thereby produced prejudicial error. This same principle was included in some of the refused instructions requested by appellant, and it follows from what we have already said, such instructions should have been given, and it was prejudicial error to refuse them. It is also argued by counsel for appellant that because under his contract of renting with his landlord, which is the fact, appellee was to pay one-third of the crop as rent, that the court erred in permitting a recovery in excess of two-thirds of the loss to the crop in consequence of the alleged breach of warranty respecting the seed. We are referred to no authority upon this point, except O. & M. Ry. Co. v. Hoeltman, 34 Ill. App. 431, which merely holds that where the landlord is prevented from receiving his rent by a wrongdoer by reason of a destruction of the crop, he may have his action therefor. Such principle would seem elementary, but is incapable of application to the case being considered. This is an action ex contractu^ and there is no privity between appellee’s landlord and appellants’, and it would not be contended, we think, the landlord could have his action against appellants for any loss consequent upon the supposed breach of warranty. In Home Ins. Co. v. P. & P. U. Ry. Co., 78 Ill. App. 137, it was held that a bailee might insure property in its care in its own name to its full value, for the satisfaction of its own claim first, and hold the residue for the owner of the property. The principle here is the same, only of different application. The tenant claims to have exacted a warranty from the vendor of the seed, primarily for his own benefit, but no reason is perceived if the insurer of property may recover for the owner’s interest, why a tenant may not do the same for the benefit of the landlord. Heither the owner of the insured property, nor the landlord, would have any right of action upon the special contracts, and it is therefore of no interest to the makers of such contracts that the persons with whom the contracts are made are permitted to recover the full indemnity which it ■was the object of the contract to secure. Such contracts, when made, inure to the benefit .of the owner of the insured property in the one case, and to the landlord in the other. We are disposed to hold such principle applicable to the case presented, and believe its effect will meet the requirements of justice. Inasmuch as the cause is to be remanded we refrain from a discussion of the evidence. For the errors indicated the judgment of the City Court will be reversed and the cause remanded for trial. Beversed and remanded.