Petty v. Fish

Appellate Terms of the Supreme Court of New York

Petty v. Fish

31 Misc. 739, 63 N.Y.S. 192

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 15, 1900

StatusPublished

This text of 31 Misc. 739 (Petty v. Fish) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Petty v. Fish, 31 Misc. 739, 63 N.Y.S. 192 (N.Y. Ct. App. 1900).

Pincite

Opinion

Per Curiam.

This is an appeal.from a judgment of the General Term of the Oity Court, affirming a judgment in favor of the plaintiff. Prior to March 1, 1893, the defendant and one William J. Howden were engaged in business as copartners. The plaintiff bought out the interest of the defendant in said copartnership, and continued the' business with Howden, the firm name being Howden & Petty. Plaintiff’s agreement to purchase defendant’s interest, in the firm was embodied in a written instrument, which involved an express guarantee as to the cost price of the stock of goods on hand, and what is claimed to be a guarantee as to the amount of the liabilities of the firm. It is for the breach of these guarantees that the action is brought. We think that although the agreement did not contain the words “ warrant ” or “ guarantee,” with reference to the debts, it was in fact as to these debts a guarantee that they did not exceed the sum stated in the agreement. No particular phraseology is necessary to constitute a warranty, if it be an assertion upon which the vendee relies and which is designed to be a positive assertion and not the expression of an opinion. Fairbank Canning Co. v. Metzger, 118 N. Y. 265. The other exceptions taken by appellant present no question requiring the reversal of the judgment.

Present: Teuax, P. J., Scott and Dugbo, JJ.

Judgment and order affirmed, with costs.

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Per Curiam.

This is an appeal.from a judgment of the General Term of the Oity Court, affirming a judgment in favor of the plaintiff. Prior to March 1, 1893, the defendant and one William J. Howden were engaged in business as copartners. The plaintiff bought out the interest of the defendant in said copartnership, and continued the' business with Howden, the firm name being Howden & Petty. Plaintiff’s agreement to purchase defendant’s interest, in the firm was embodied in a written instrument, which involved an express guarantee as to the cost price of the stock of goods on hand, and what is claimed to be a guarantee as to the amount of the liabilities of the firm. It is for the breach of these guarantees that the action is brought. We think that although the agreement did not contain the words “ warrant ” or “ guarantee,” with reference to the debts, it was in fact as to these debts a guarantee that they did not exceed the sum stated in the agreement. No particular phraseology is necessary to constitute a warranty, if it be an assertion upon which the vendee relies and which is designed to be a positive assertion and not the expression of an opinion. Fairbank Canning Co. v. Metzger, 118 N. Y. 265. The other exceptions taken by appellant present no question requiring the reversal of the judgment.

Present: Teuax, P. J., Scott and Dugbo, JJ.

Judgment and order affirmed, with costs.

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Bluebook (online)

31 Misc. 739, 63 N.Y.S. 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petty-v-fish-nyappterm-1900.

Opinion

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