White v. Stelloh

Cassoday, J. The only cause of action alleged in the complaint is the breach of an express warranty made by the defendant at the time of the sale, to the effect that the animal in question was a bull-calf fit for breeding purposes in every respect; and that the plaintiff, relying upon such warranty, purchased him and paid the price mentioned. The defense was a general denial. Several exceptions rvere taken to the charge. Some of these relate to accurate statements of the issue. Among the statements in the charge to which exception is taken, is this: “ The question is simply, was there an express warranty made, and what was that warranty, and has there been a breach of it ? If so, what is the measure of the plaintiff’s damages?” Certainly this is no ground for exception. Nor was it error for the court to charge the jury in effect that a mere statement bj^ the seller, óf his own opinion and belief, not amounting to a positive affirmation or statement of fact, and upon a matter concerning [438] which the purchaser is to exercise his own judgment, does not amount to a warranty. Tenney v. Cowles, 67 Wis. 594. This is especially so where the court in the same connection, as here, charged the jury as follows: “ An express warranty is an express statement which the party undertakes shall be a part of a contract, and, though part of a contract, yet collateral to the express object of it. Any assertion or averment by the seller to the purchaser during the negotiations to effect a sale, respecting the quality of the article or the efficiency of the property sold, will be regarded as a warranty, if relied upon by the purchaser in making the purchase. So I instruct you, gentlemen, that you must take into consideration, under all the evidence in the case, what was said by the parties at the time of the negotiations of this sale; what was their relation and understanding at that time; what did both parties fairly understand by the language that was used at the time of the sale. If you find that the defendant made an express warranty that the bull-calf would be a sure stock-getter, in order to induce the plaintiff to purchase him, and that the plaintiff relied upon such statement of the defendant, and at the time of such warranty or statement there existed a defect or unsoundness in the calf which -would result in his being sterile or not a sure stock-getter, and that such was the result, then you should find for the plaintiff.” These instructions are within the rules sanctioned by this court in the cases cited by the counsel for the appellant. Neave v. Arntz, 56 Wis. 176, and cases there cited. But counsel strenuously contend that the court erroneously took from the jury all consideration of an implied warranty. It is true that the charge is confined to the causo of action alleged in the complaint, which is clearly the breach of an express warranty. Counsel 'requested no instruction respecting an implied warranty. The charge is simply silent respecting such a warranty. It might perhaps [439] be inferred from the oral argument of counsel that the undisputed evidence makes the defendant liable as upon an implied warranty. But the calf was only three months old at the time of the purchase. It is conceded that to all appearances he was free from any defects at that time. The only evidence of any defect is that it transpired some two years after the purchase that he then lacked the power of procreation. The calf was present to the view of the purchaser as well as the seller at the time of the purchase. If the alleged defect existed at that time, as a matter of fact, then the plaintiff had the same opportunity l'or discovering it as the defendant. It has been held that where the buyer has had an opportunity of examining the article sold, there is no implied warranty by the seller against latent defects unknown alike to himself and to the purchaser. Eagan v. Call, 34 Pa. St. 236, 75 Am. Dec. 653; Brantley v. Thomas, 73 Am. Dec. 264. Certainly we cannot hold, as a matter of law, upon the record in this case, that the supposed defect existed at the time of the purchase, and that there was an implied warranty that the calf would, at maturity, possess the power of procreation. By the Court.— The judgment of the superior court of Milwaukee county is affirmed.