Balmer v. Long

The opinion of the court was delivered by Burch, J.: The action was one for damages for false representations which induced the plaintiff to purchase from the defendants book accounts arising from conduct of á mercantile business, the stock and fixtures of which plaintiff also purchased. The plaintiff was defeated, and appeals. The assignments of error relate to instructions given and refused. No transcript of the evidence has been prepared, no evidence has been abstracted, and this court has no means of determining the importance of any assignment of error. Besides that, the jury returned special findings which negatived existence of the facts which were necessary to recovery by the plaintiff. None of the. instructions complained of could have influenced the jury in making its findings, unless it be the instruction relating to burden of proof. If the evidence were here, the court might be able to say the burden of proof was not of much consequence. The plaintiff asserts the instructions eliminated the subject of implied warranty. Implied warranty was not pleaded, and no instructions appropriate to that subject were requested. [43] The plaintiff pleaded false representations. Treating the representations as amounting to a warranty, the warranty was express, and the jury found none was given. The judgment of the district court is affirmed.