Adler v. Robert Portner Brewing Co.

Bryan, J., delivered the opinion of the Court. The appellee sued the appellant to recover the price of certain machinery. The defendant relied on an alleged breach of warranty. It appeared that the machinery was sold by one Robert Portner, to the firm of Adler & Mulhauser, of which the defendant was a member, and that the cause of action was assigned to the plaintiff, a body politic and corporate. The defendant testified that in September, 1882, he purchased the machine in question in the City of Baltimore, from Robert Portner; that the price was $1200; no time of payment was mentioned ; nothing was then said about notes ; that Portner warranted the machine to do all the work Adler wanted to do; that he bought only on Portner’s warranty; that Mulhauser, defendant’s partner, went over to Alexandria a week or two afterwards to look at the machine that was to be shipped, and that the machine came on, and was received by the defendant about the beginning of October. This testimony is contradicted by Portner and Mulhauser, who testify that the purchase was made by Mulhauser in Alexandria, and that there was no warranty; Portner testifying that Mulhauser knew the machine, and had [32] seen it work for four or five years when he was in Portner’s employment, and on visits to Portner’s brewery. Another witness also testified that Mulhauser looked at the machine at the time of the purchase and that it was known to him. Mulhauser testified that he had seen the machine often, and.that he examined it when at work at the time of the purchase. Adler testified to breaches of the warranty. Notwithstanding the contradiction to Adler’s testimony, it was necessary that it should be considered by the jury, and if they found according to it, the Court was required to give to their finding its legal effect. Adler testified to an express warranty, and if this were broken, it was not material whether it were fraudulently made or not. This point was. decided in Osgood vs. Lewis, 2 Harris & Gill, 495, and is considered as fully settled. The fourth prayer of the plaintiff did not correctly state the law, when it required the jury to find the warranty, “fraudulently untrue,” before they could deduct damages for the breach of it, from the amount of the purchase money. The alleged contract for the purchase of the machine was oral, nothing was given by way of earnest to bind the bargain and no payment was made in whole, or in part. In this condition it was within the Statute of Frauds, but when the delivery afterwards took place, it became valid and binding. If there were no other features in the case, we should reverse the judgment. We must however consider the other incidents of the trial. There was evidence tending to show that one-half of the purchase money was to be paid in three months, and the other half in four months; and that in November, Mulhauser asked for an extension of credit until May, and it was granted by Portner; that frequent demands were made for the notes, and that in May, Adler sent his .book-keeper over to Alexandria, and that it was agreed that he should send three notes for the purchase money, with interest, and that they [33] should, be endorsed, or secured by bill of sale of the machine; that when Adler’s clerk was in Alexandria in May, Portner offered to take the machine back, as he had another purchaser, but his offer was refused, and that the notes were given, but were returned to Adler because they did not bear interest, and were not secured by indorsement or bill of sale. Adler testified as follows, we quote the words of the transcript: “that he gave his notes in May, 1883, because Portner was threatening to sue him," and he did not want to be sued; he wanted time to test the machine; he could find out whether the machine would work or not by the time the first note would mature (four months,) and if it would not work he would not pay the notes.” Facts which a party to a suit admits, of course need not be .submitted to the jury, if the adverse party is willing to accept the admission. It appears from this admission that the defendant after having had possession of the machine for about eight months, gave to the seller his notes for the purchase money. If there was a breach of warranty, he knew it at that time; or at least, he had had the most ample opportunity of ascertaining it. According to his statement no time for the payment of the price was mentioned in the contract of purchase; it was therefore due on the delivery of the machine. After eight months he seeks to obtain a further credit by giving notes. Some significance must be attributed to the giving of a note. In good faith it imports that the maker will pay it at maturity. If the defendant did not intend to pay these notes because of some matter which had then occurred; or if he intended to refuse payment in some contingency which he did not make known to his creditor; in either of these cases, he was contemplating a fraud. We can give to the defendant’s conduct no interpretation consistent with good faith, except that he had no purpose of refusing to pay these notes at maturity. This clearly implied that he would make no objections to [34] the amount claimed to be due as the purchase money of the machine. After this the defence arising from an alleged breach of warranty, or from any other cause, could not in good faith be set up in bar of a suit on this account. We think, therefore, that the Court would have been justified in refusing to submit such question to the jury; and as a matter of course, the plaintiff in his fourth prayer, took upon himself a greater burden than he was 'required to bear, inasmuch as on the hypothesis therein stated, the defendant was to be allowed a deduction for a breach of warranty. We think that-the instruction given by the Court proposed the true inquiry to the jury. (Decided 30th March, 1886.) Judgment affirmed.