Kelly v. Bernheimer
New York Supreme Court
Appeal from judgment and from order denying motion for new trial. On the question of what constituted warranty, cited Mills agt. Selwood (61 Barb., 238); Messenger agt. Pratt (3 Lansing, 234). A positive affirmance of a fact is a warranty, Sweet agt. Bradley (24 Barb., 549); Roberts agt. Morgan (2 Cow., 438); Chapman agt. March (19 John,., 290); Duffee agt. Mason (8 Cow., 25); Carley agt. Wilkins, (6 Barb., 557); Edick agt. Crim (10 Barb., 445); Mason agt.
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Appeal from judgment and from order denying motion for new trial. On the question of what constituted warranty, cited Mills agt. Selwood (61 Barb., 238); Messenger agt. Pratt (3 Lansing, 234). A positive affirmance of a fact is a warranty, Sweet agt. Bradley (24 Barb., 549); Roberts agt. Morgan (2 Cow., 438); Chapman agt. March (19 John,., 290); Duffee agt. Mason (8 Cow., 25); Carley agt. Wilkins, (6 Barb., 557); Edick agt. Crim (10 Barb., 445); Mason agt. Lord (40 N. Y. 476). As to the election of actions required by the court, Quintard, agt. Newton (5 Robt., 72); Harsen agt. Bayard (5 Duer,…
1Opinion of the Court
Daniels,
J.—This action was brought to recover the price of barley sold and delivered by the plaintiffs to the defendants. The defenses relied upon at the trial were, that the barley by the terms of the sale was warranted to be of a quality that it proved much inferior to, and that the defendants were induced to purchase it by means of fraudulent representations made by a person having charge of its sale for the plaintiffs. After the defendants had rested their defense, the court, upon the application of the plaintiffs, compelled them to elect upon which of their two defenses they would…
2Cited by1 opinion
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