Milburn v. . Belloni
New York Court of Appeals
This was an action to recover damages for breach of a warran-tee in tbe sale of a quantity of coal-dust, tbe warrantee being that the dust was free from the dust of soft-coal. At the time of the purchase the Plaintiff was a manufacturer of brick, and purchased the dust in question to be used in combination with other materials in that manufacture.
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This was an action to recover damages for breach of a warran-tee in tbe sale of a quantity of coal-dust, tbe warrantee being that the dust was free from the dust of soft-coal. At the time of the purchase the Plaintiff was a manufacturer of brick, and purchased the dust in question to be used in combination with other materials in that manufacture. The referee finds that, at the time of the sale, the Plaintiff inquired if it was free from soft-dust; stated that he would not have it if there was any such intermixture in it, saying that if it had, it would damage or destroy his brick. He also…
1Opinion of the Court
Hunt, Ch.J.
The order reversing the report of the referee does not state that it was reversed on the ground of error in fact. It must therefore be held to have been reversed upon questions of law merely (Code, §272).
In such case, it is settled by numerous decisions, that in its consideration in this Court all facts not expressly stated are to be assumed iu support of the report, and that any fact, the reverse of which is not found by the report, may be invoked in its aid (22 N. Y. 323).
There is fair evidence upon which the referee must have found that the vendor warranted the dust as fit for…
2Cases cited2 opinions
- Passinger v. . ThorburnNew York Court of Appeals · 1866
- Grant v. . MorseNew York Court of Appeals · 1860
3Cited by17 opinions
- White v. . MillerNew York Court of Appeals · 1877
- Jones v. GeorgeTexas Supreme Court · 1884
- Doyle v. Fuerst & Kraemer, Ltd.Supreme Court of Louisiana · 1911
- Parks v. . Morris Ax and Tool Co.New York Court of Appeals · 1874
- Estell v. MyersMississippi Supreme Court · 1876
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