Charles Baumbach Co. v. Gessler

LyoN, C. J. The bill of exceptions is not certified to contain all., the testimony; hence we cannot review the testimony on this appeal, but must assume that it supports the verdict and all statements of fact in the instructions given the jury. This is a complete answer to all exceptions to the instructions save one. After stating to the jury that the law permits one who purchases goods and finds them unfit for the uses intended, to retain the goods and recoup his damages against the price, or to return, or offer to return, them to the vendor, the learned trial judge said: uMr. Gessler, the defendant in this case, therefore did perfectly right in notifying Mr. Baumbach, or the Baumlaeh Compaviy, the plaintiff in this case, that he refused to 'accept these goods, and notified them that they were subject to their order.” Immediately thereafter the judge submitted to the jury the question whether the wafers were suitable for the purpose intended,— the plaintiff knowing what that purpose was. It is maintained on behalf of plaintiff that in the sentence above quoted the judge took the whole question from the jury. If the sentence stood alone, there would be force in the claim. But it does not stand alone. It is perfectly obvious from what precedes and follows'it that the judge said what he did hypothetically; that is, he told the jury, in effect, that if the wafers were not suitable for the use intended the defendant had the right to return, or offer to return, them to the plaintiff. There is no error in this. [233] Counsel for plaintiff objected to numerous items in the proposed bill of costs, but the clerk overruled such objections. Counsel thereupon appealed, and t'he court affirmed the taxation. In a written opinion the judge statés at considerable length his reasons for overruling the objections to the taxation. Those reasons are satisfactory to us. The only objection here urged is that costs are allowed for travel and attendance of witnesses for defendant wTho were not sworn on the trial. The attendance of such witnesses having been regularly proved, the objection is not well taken. By the Court.— The judgment of the superior court is affirmed.