
    MATILDA BADEWITZ et al., Plaintiffs and Respondents, v. NEIL McCALLUM, Defendant and Appellant.
    Breach op warranty of title—Agreement to indemnify.
    Appeal from a judgment of the general term of the city court from a judgment entered on the verdict of a jury at trial term, and from an order of the general term of that court affirming an order denying a new trial.
   Per Cdriam.

The action was brought to recover damages for a breach of warranty of title to a McICay Sewing Machine purchased by Badewitz & Weisman, in May, 1888, At the time of the sale and warranty of title the appellant was carrying on business at No. 19 Spruce street, in this city. He had a son of the same name, who had an independent business, and also transacted business for his father at the same place. In September, 1884, this machine was seized and taken from the plaintiff by the sheriff, in an action brought by the McKay Sewing Machine Association, claiming it as owners. The plaintiffs immediately notified McCallum the younger that the machine had been taken away, and he said he would get it back in a short time or give back the money; and he also employed counsel to defend the action. The machine was not returned, and hence this action for damages.

The question litigated in the court below was whether or not the transaction including the warranty was made by McCallum the younger as agent for his father, or on his own behalf. This question was fairly presented to the jury by the court, in a charge to which the defendant did not except. The evidence before the jury was quite sufficient to sustain their verdict, and we cannot interfere with it. Appellant now claims that there was no evidence to show that the plaintiffs have finally lost the machine, as there is no evidence that there was a final judgment in the action in which the machine was taken away from the plaintiffs.

We think this is not essential under the terms of the instrument, which the jury, by their verdict, found was binding upon the defendant, as it was an express warranty, not only of title, but also an agreement to indemnify plaintiffs against all suits, claims and demands whatsoever, by reason of the ownership, possession or use of the machine; and also because the defendant, after the machine had been taken away, agreed to get back the same within a short time or to return the money.

The judgment and order should be affirmed, with costs.  