Eastern Ice Co. v. King

Citations

• 86 Va. 97
• 9 S.E. 506
• 1889 Va. LEXIS 14

Syllabus

<p>1. Sale—Construction—Instructions—Case at bar.—Defendant sold plaintiff a certain quantity of ice of the “best quality harvested in Penobscott river” during five years, unless by reason of the elements it should be impossible to harvest the ice by reasonable effort from the fields controlled by defendant: held, the furnishing of an average quality of ice, or “just as it run,’> was not a compliance with the contract, and instructions to such effect were properly rejected.</p> <p>2. Idem—Breach of warranty—Notice—Rule.—The true rule is that -where goods delivered to buyer are inferior in quality to 'what was warranted by seller, buyer may sue at once for the breach of the warranty without returning the goods or giving any notice to seller.</p> <p>3. Idem—Measure of damages.—Where the article has not been returned the measure of damages will be the difference between its value with the defect warranted against and the value it would have borne without defect.</p> <p>4. Appellate practice—Two verdicts—Evidence certified—Rule of Decision.— The opinion of Lewis, P., for the rule of decision in this court under Code 1887, sec. 3484, where there have been two trials and two verdicts, the first being for defendant, which is set aside as contrary to the evidence on the motion of plaintiff, to which defendant excepts, and the evidence (not the facts) is certified; the second being for the plaintiff, upon which judgment is entered, and defendant brings up the case on writ of error.</p> <p>5. Idem— Case at bar.—From the evidence certified in this case, under sec. 3484 there was no error in the circuit court’s setting aside the first verdict or in its refusing to set aside the second verdict and entering judgment thereon.</p>