Davis v. Oakland Chemical Co.

Appellate Division of the Supreme Court of New York

Davis v. Oakland Chemical Co.

121 A.D. 242, 105 N.Y.S. 693, 1907 N.Y. App. Div. LEXIS 1745

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 23, 1907

StatusPublished

Cited by1 cases

This text of 121 A.D. 242 (Davis v. Oakland Chemical Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davis v. Oakland Chemical Co., 121 A.D. 242, 105 N.Y.S. 693, 1907 N.Y. App. Div. LEXIS 1745 (N.Y. Ct. App. 1907).

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Opinions

Hooker, J.:

.The plaintiffs have had.a judgment for damages because of the defendant’s breach of an implied warranty on the sale by it of three [243]*243barrels of a bleaching liquid sold under the trade name of Perozone. A large quantity of fine silk and cotton texture, known as mull, was treated by the plaintiffs with the Perozone and ruined. At the trial the plaintiffs claimed the fault lay in the liquid; the defendant contended it lay in the manner of its use. After the damage the plaintiffs delivered to the defendant samples of unbleached mull, such as had been injured, and the defendant’s president testified that in its laboratory the samples were bleached with no difficulty whatever by following the ‘directions that had been given to the plaintiffs. He continued.: “We used Perozone for the bleach. -It came from the same source that Davis & Quick’s (the plaintiffs) goods came from,- our regular factory stuff. By the Court: Q. -Hot out of. the same hatch that they did ? A. Ho, sir ; that is, not likely to be ; may have been.” The defendant’s counsel then asked the witness the following questions, which were objected to, although the ground of the objection does not appear; the objections were sustained, and the defendant excepted, namely : “ Q. What can you say about the uniformity of various batches ? ” “ Q. Had you any reason to suspect or believe that there was any difference in the preparation of the batches ? ” and “ Q. Do you know of any reason why the three barrels of Perozone sold them differed' from the others in your warehouse % ”

While the last two of the questions are doubtless open to criticism as to form, the three questions addressed themselves to a phase of the controversy which was material to the issue. The plaintiffs claimed that because of some ingredient of the Perozone the goods were spoiled; to meet that claim the defendant showed that it bleached some of the same goods with Perozone without injurious-effects, and should have been- allowed, if it could,.to meet the evidence adduced by the .question of the court to show that the re-agent used in the test by the defendant did not differ from that sold to the plaintiffs. The exclusion of the evidence was, therefore, error.

The witness Dr. Frederick E. Liclite was in the dye stuff and chemical business, and was a practical bleacher. While he was in the act of testifying that he had by the usé of Perozone bleached mull similar to that destroyed with good results, the court interrupted the examination with- this statement: “ It is admitted that the material has ordinarily done its work properly. I will- not let [244]*244you accumulate evidence on that point. ■ Í am going to confine the plaintiffs to the. proof that, this particular lot was^ bad. You certainly can see that it is idle to multiply evidence on that branch of the case, vfhen your adversary has conceded it, and I have told you that X will so charge the jttry.” To this r.uling. the' defendant excepted. This was error. "We search the record in vain, for any-stipulation or concession by the plaintiffs that Perozone would bleach cotton and silk mull. The concession seemed to go no.farther than this-language of the plaintiffs’ attorney: “We concede that it can, under some circumstances, bleach a-certain class .of goods.” To rebut the plaintiffs’, contention that the Perozone was at fault,.it' was, of course, material for the defendant to show, if it could, that' fabric of the same character had been successfully treated by the witness with Perozone, it then being probably important for the defendant to show that the Perozone used by the witness was of the same chemical'composition with tharisold to the plaintiffs.

-There were Other errors' alleged to have been committed by the learned trial court during the progress of the trial, but inasmuch as similar situations.may-not arise upon the new trial, it'is-unnecessary to discuss them here. For the errors pointed out the judgment and order must be reversed and a new trial granted, costs to abide the event. '

Hirschberg, P. J., Rich and Miller, JJ., concurred; Gaynor, J., dissented, in opinion.

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Hooker, J.:

.The plaintiffs have had.a judgment for damages because of the defendant’s breach of an implied warranty on the sale by it of three [243]*243barrels of a bleaching liquid sold under the trade name of Perozone. A large quantity of fine silk and cotton texture, known as mull, was treated by the plaintiffs with the Perozone and ruined. At the trial the plaintiffs claimed the fault lay in the liquid; the defendant contended it lay in the manner of its use. After the damage the plaintiffs delivered to the defendant samples of unbleached mull, such as had been injured, and the defendant’s president testified that in its laboratory the samples were bleached with no difficulty whatever by following the ‘directions that had been given to the plaintiffs. He continued.: “We used Perozone for the bleach. -It came from the same source that Davis & Quick’s (the plaintiffs) goods came from,- our regular factory stuff. By the Court: Q. -Hot out of. the same hatch that they did ? A. Ho, sir ; that is, not likely to be ; may have been.” The defendant’s counsel then asked the witness the following questions, which were objected to, although the ground of the objection does not appear; the objections were sustained, and the defendant excepted, namely : “ Q. What can you say about the uniformity of various batches ? ” “ Q. Had you any reason to suspect or believe that there was any difference in the preparation of the batches ? ” and “ Q. Do you know of any reason why the three barrels of Perozone sold them differed' from the others in your warehouse % ”

While the last two of the questions are doubtless open to criticism as to form, the three questions addressed themselves to a phase of the controversy which was material to the issue. The plaintiffs claimed that because of some ingredient of the Perozone the goods were spoiled; to meet that claim the defendant showed that it bleached some of the same goods with Perozone without injurious-effects, and should have been- allowed, if it could,.to meet the evidence adduced by the .question of the court to show that the re-agent used in the test by the defendant did not differ from that sold to the plaintiffs. The exclusion of the evidence was, therefore, error.

The witness Dr. Frederick E. Liclite was in the dye stuff and chemical business, and was a practical bleacher. While he was in the act of testifying that he had by the usé of Perozone bleached mull similar to that destroyed with good results, the court interrupted the examination with- this statement: “ It is admitted that the material has ordinarily done its work properly. I will- not let [244]*244you accumulate evidence on that point. ■ Í am going to confine the plaintiffs to the. proof that, this particular lot was^ bad. You certainly can see that it is idle to multiply evidence on that branch of the case, vfhen your adversary has conceded it, and I have told you that X will so charge the jttry.” To this r.uling. the' defendant excepted. This was error. "We search the record in vain, for any-stipulation or concession by the plaintiffs that Perozone would bleach cotton and silk mull. The concession seemed to go no.farther than this-language of the plaintiffs’ attorney: “We concede that it can, under some circumstances, bleach a-certain class .of goods.” To rebut the plaintiffs’, contention that the Perozone was at fault,.it' was, of course, material for the defendant to show, if it could, that' fabric of the same character had been successfully treated by the witness with Perozone, it then being probably important for the defendant to show that the Perozone used by the witness was of the same chemical'composition with tharisold to the plaintiffs.

-There were Other errors' alleged to have been committed by the learned trial court during the progress of the trial, but inasmuch as similar situations.may-not arise upon the new trial, it'is-unnecessary to discuss them here. For the errors pointed out the judgment and order must be reversed and a new trial granted, costs to abide the event. '

Hirschberg, P. J., Rich and Miller, JJ., concurred; Gaynor, J., dissented, in opinion.

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Bluebook (online)

121 A.D. 242, 105 N.Y.S. 693, 1907 N.Y. App. Div. LEXIS 1745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-oakland-chemical-co-nyappdiv-1907.

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