Standard Underground Cable Co. v. Denver Consol. Electric Co.

DALLAS, Circuit Judge. The plaintiff below (defendant in error) sued to recover for breach of an alleged warranty by defendant respecting certain merchandise alleged to have been sold by the defendant to the plaintiff. The defense mainly relied upon was alternatively presented. It was that the plaintiff was a stranger to the contract of sale to which the warranty was claimed to have been col [425] lateral, or that, even if the plaintiff was a party to the sale, yet it could not recover because no contract of warranty was in fact coupled with. it. The issues thus arising were admittedly for determination by the jury, unless, as the defendant insisted, no evidence had been adduced upon which a finding thereon in favor of the plaintiff could reasonably be based. The trial judge, being of opinion that there was such evidence respecting both questions, submitted them, under properly guarded instructions, to the jury, and it is (his action of the court which is complained of in the first three specifications of error. The circumstances of the case were peculiar, and the evidence, oral and documentary, as to warranty, and as to who were the real parties to the sale, and to the warranty if there was a warranty, was somewhat complicated; but that there was sufficient evidence upon these issues to support a verdict for the plaintiff our examination of the record has fully satisfied us. This being so, it follows that a refusal to allow the jury to pass upon (hem could not have been justified, and that the learned judge was therefore right in declining to affirm the first three points of the defendant below, and in requiring the jury to ascertain from the evidence the truth as to the facts which by those points was assumed to have been conclusively established in accordance with the defendant’s contention. The fourth specification rests upon the postulate that there was no contract of sale between these parties, and if this hypothesis could be accepted the question presented would be a serious one, for we do not doubt that a warranty, if independently given, and not as collateral to a contract of sale, does require a distinctive consideration for its support. But where the warranty shown is, as in this case, part of a transaction of Side, no separate consideration is necessary. Morris v. Fertilizer Co., 12 C. C. A. 34, 64 Fed. 55. The fifth specification of error is not sustained. The evidence of the defendant's acquiescence in the laying of the electric line in question without the defendant’s supervision, precluded the court from charging as was requested by the fifth point submitted on behalf of the defendant. The sixth and last specification has been sufficiently disposed of by what has been said with especial reference to those which precede it. The judgment is affirmed.