Whitney v. Houghton
Massachusetts Supreme Judicial Court
Contract for breach of warranty in the sale of a cow. The declaration alleged that the defendant undertook and promised that the cow was “ well, sound and all right.” Answer, a general denial.
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Contract for breach of warranty in the sale of a cow. The declaration alleged that the defendant undertook and promised that the cow was “ well, sound and all right.” Answer, a general denial. At the trial in the Superior Court, before Dewey, J., the plaintiff, in support of the allegation of warranty, offered the evidence of his agent who bought the cow, and he testified as follows: “ The cow coughed, and I asked the defendant what made her, and he said it was nothing; I said, 1 She ought not to cough. Does she eat well ? ’ The defendant said, 1 She eats well and is well.’ ” The plaintiff…
1Opinion of the CourtMorton, J.
The warranty alleged in the declaration is that the cow was “ well, sound and all right.” That proved at the trial was, that the cow “ eats well and is well.” It is difficult to hold that these two statements are equivalents. A representation that an animal is “ well, sound and all right,” may import more than a representation that it is “ well.” But the variance is a technical one, which could have been cured by an amendment, and undoubtedly would have been cured if the court had ruled that it was a variance. It is clear that the variance does not affect the merits of the case, and that an…
2Cases cited2 opinions
- Peck v. WatersMassachusetts Supreme Judicial Court · 1870
- Keller v. WebbMassachusetts Supreme Judicial Court · 1879
3Cited by18 opinions
- Pizer v. HuntMassachusetts Supreme Judicial Court · 1925
- Refrigeration Discount Corp. v. CatinoMassachusetts Supreme Judicial Court · 1953
- Warner v. FullerMassachusetts Supreme Judicial Court · 1923
- Merriweather v. CommonwealthCourt of Appeals of Kentucky · 1904
- New England Foundation Co. v. Elliott & Watrous, Inc.Massachusetts Supreme Judicial Court · 1940
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