Brown v. Burhans
New York Supreme Court
Appear from a judgment in favor of the plaintiff, entered upon the report of a referee. The plaintiff brought the action as the receiver of the property of Varner D. Perry, to recover a balance claimed to be due Perry for pine lumber sold to defendant. The referee found that, in the fall of 1869, Perry delivered to defendant, in Roxbury, Delaware county, 12,000 feet of pine lumber, for which defendant paid him thirty-live dollars per thousand.
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Appear from a judgment in favor of the plaintiff, entered upon the report of a referee. The plaintiff brought the action as the receiver of the property of Varner D. Perry, to recover a balance claimed to be due Perry for pine lumber sold to defendant. The referee found that, in the fall of 1869, Perry delivered to defendant, in Roxbury, Delaware county, 12,000 feet of pine lumber, for which defendant paid him thirty-live dollars per thousand. This lumber was good; called first and second qualities. After the delivery of this quantity, Perry entered into another contract with defendant, by…
1Opinion of the Court
Boardman, J.:
I think the judgment should be affirmed. In my judgment there is no warranty. The language used in making the contract was simply descriptive. It would have been the same if Perry had said, I will sell you 100,000 feet of first and second quality of lumber, and delivered the same lumber in performance. In such a case, Reed v. Randall* would control.
But if it can be said that there' is a warranty, still a warranty does not apply to open and visible defects. The principle expressed in Parks v. The Morris Axe Co. † is, that a warranty may exist and be enforced in the case of an…
2Cases cited6 opinions
- Reed v. . RandallNew York Court of Appeals · 1864
- Jennings v. Chenango Mutual InsuranceNew York Supreme Court · 1846
- Parks v. . Morris Ax and Tool Co.New York Court of Appeals · 1874
- Rust v. . EcklerNew York Court of Appeals · 1869
- Birdseye v. FrostNew York Supreme Court · 1860
1 more not listed; retrieve them via the Exa API.