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Hagee and Another v. Grossman.

the quality of the flour or purchased it upon their own judgment. The flour was left with them for examination for ten or twelve days, and they used one sack from among the lot; and although there is evidence that the flour from the sack used made good bread, and that from the other sacks did not, when used at a subsequent time, make bread fit for sale, still the jury might fairly find from the evidence in the case, that the flour was all of one quality when sold, being but one lot of flour, from the same lot of wheat, and ground at the same time, the sacks being filled from the mill.

We cannot disturb a finding for either party upon such evidence.

It is objected, that the court refused to permit the flour in question to be examined by the jury, that each juryman might personally test its odor.

The witnesses for the appellant stated, that it gave out a stronger smell when offered in evidence than when purchased, and it might be somewhat difficult by a bill of exceptions to introduce such evidence into this court. It was properly excluded from the jury.

The appellant objects that the following instruction is not pertinent to the case as made by the evidence, and is ambiguous. It was given at the request of the appellee..

“If you find that the flour in question, at the time of the sale, was not good, sound, merchantable flour; that the defendant at or before the sale represented to the plaintiffs that it was of that quality, knowing that such representation was false; yet the plaintiffs cannot recover, if you find that in the purchase of the flour they did not rely upon such representations of the defendant and were not deceived thereby.” If this be construed to mean that the defendant represented the flour as not sound, the appellants could not be injured. If, as it clearly intends, the flour was represented as sound when it was not, but the representa-

VOL. XXXI.-15

Hagee and Another v. Grossman.

tion did not deceive the appellants, the instruction is both pertinent and correct.

This instruction was also given to the jury: “If the jury find that the flour in question was left in the possession of the plaintiffs, for the purpose of being tested by their baker as the agent of the plaintiffs, as to its quality for the purpose for which they wanted it, and the defendant was not guilty of making any false or fraudulent representations or acts at the time, which the plaintiffs relied on as true, by which they were prevented from making such test, and after such test under such circumstances, the plaintiffs, relying upon the judgment of their baker as to the quality of the flour, purchased of the defendant, they cannot recover, although it be true that the defendant had previously made false representations as to the quality of the flour.”

If by no act or word of the defendant the baker was prevented from testing the flour, and if the plaintiffs relied upon that test in making their purchase, they could not have rested upon the statements of the defendant, and he could not be liable for deceit.

The appellants asked the court to instruct the jury, that an offer to sell provisions for domestic use is an implied warranty of their soundness. As the complaint was for deceit, and not upon a warranty, either express or implied, the instruction was correctly refused. The court, however, gave the instruction, with the qualification, that the purchaser did not examine and rely upon such examination of the quality of the article sold.

The second instruction asked by the appellants omits to limit the recovery of damages to the injury resulting from deceit, but holds the appellee liable for concealment of defects, without requiring that the appellants should have relied at all upon the conduct or statements of the appellee. It was properly refused.

The sixth instruction given by the court informed the jury, that if “the plaintiff's relied exclusively upon” false representations made by the defendant, they were entitled

Gwaltney, Guardian, v. Cannon.

to recover, This certainly was correct. In such a case the plaintiffs should certainly recover. The instruction did not, however, limit the recovery to this state of facts. ·

The other instructions embraced in the abstract relate to the measure of damages upon a recovery by the appellants, and the event of the trial has rendered them unimportant.

Judgment affirmed, with costs.
J. M. Wilson and O. Blake, for appellants.
N. O. Ross and R. P. Efinger, for appellee.

GWALTNEY, Guardian, v. CANNON.

PLEADING.-- Complaint.-Promise.- Guardian and Ward. A complaint against

a guardian, to recover for maintaining and providing for his ward, did not contain any averment of a request or promise made by the defendant, or any allegation that he had failed to provide, within the means in his hands

as guardian, for the reasonable wants of his ward. Held, that the complaint was bad on demurrer for want of sufficient facts.

APPEAL from the Gibson Common Pleas.

RAY, J.-Complaint by the appellee against the appellant for maintaining and providing for the wards of the latter.

The question is upon the sufficiency of the complaint, which is as follows:

“Edward Cannon complains of James Gwaltney, and says that heretofore, to wit, on the day of — 186—, the defendant was, by the Warrick Court of Common Pleas, duly appointed guardian of the persons and estates of Lafayette Gwaltney, John H. Gwaltney, Anna Gwaltney, and Noah Gwaltney, minor heirs of Noah Gwaltney, late of Warrick county, deceased; that said defendant qualified and took upon himself the burden of said trust as such guardian.

Gwaltney, Guardian, v. Cannon.

And plaintiff further says that said defendant, as such guardian, is indebted to the plaintiff in the sum of six hundred and seventy-nine dollars, for keeping, boarding, and clothing his said wards, and for money paid and expended for medical attendance on said wards, for three years, to wit, from the month of March, 1864, to the month of March, 1867; that said sum of six hundred and seventy-nine dollars is wholly unpaid. Wherefore, plaintiff asks judgment for the sum of six hundred and seventy-nine dollars, and other proper relief.”

The defendant demurred to the complaint, for the following grounds of objection:

“1. That the complaint does not state facts sufficient to constitute a cause of action.

“2. That there is a defect of parties defendant."

The demurrer was overruled by the court, and exception was taken by the appellant at the time.

It is objected by appellant, that there is no averment that the expenditure for clothing, and medical attendance, and the boarding of the wards, was at the request of the appellant, or upon any promise made by him to pay for the same. In answer to this objection, we are referred to the forms given by the statute, numbered 10 and 11, 2 G. & H. 376. These forms upon actions for goods sold and delivered, and materials furnished to the defendant, and work and labor done for the defendant, do not require an allegation that the defendant promised to pay. But in all these instances the law implies the promise from the facts stated; and our statute simply requires the statement of facts, and if upon these facts the law implies a promise, the complaint will be good. But where the action is against one for goods sold to another, there the law does not imply a request or promise, and that averment must be made.

The case before us does not state facts which at law impose any obligation upon the guardian. There is no averment that he failed to provide, within the means in his hands as guardian, for the reasonable wants of his wards,

Cavanaugh v. The State.

and under such circumstances a volunteer cannot render himself the creditor of the guardian.

The demurrer should have been sustained to the complaint.

Judgment reversed, with costs; and the cause remanded, for further proceedings.

W. Aydelotte, for appellant.
W. M. Land, for appellee.

CAVANAUGH V. THE STATE.

PRACTICE.—Supreme Court.-Assignment of Errors.-- Criminal Law. In the

assignment of errors on an appeal by the defendant in a criminal action, the only errors assigned were, that the finding was contrary to law and

to the evidence given on the trial. Held, that no question was properly presented for the decision of this court.

APPEAL from the Warren Circuit Court.

ELLIOTT, C. J.-Cavanaugh, the appellant, was tried and convicted on an indictment for selling intoxicating liquor to a minor, and fined five dollars and costs.

The only errors assigned are, that the finding was contrary to law and to the evidence given on the trial.

A new trial was asked for the same reasons, which was overruled; but overruling the motion for a new trial is not assigned for error, and under repeated rulings of this court, the errors assigned do not properly present any question for the decision of this court. The judgment must, therefore, be affirmed.

Judgment affirmed, with costs.
J. McCabe, for appellant.

R. B. F. Peirce and D. E. Williamson, Attorney General, for the State.

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