
    The American Writing Machine Company, App’lt, v. Elbert E. Bushnell, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed August 1, 1894.)
    
    1. Sale—Warranty.
    No particular words are required to constitute a warranty of quality.
    2. Same—Question of fact.
    Whether or not the words used are to be viewed as a warranty, is a question of fact.
    3. Same—Rescission.
    For a breach of such warranty, the vendee may avoid liability for the price by rescission of the sale and return of the goods.
    
      4. Appeal—Evidence.
    Evidence, received without objection, is to be considered in determining the issues.
    Appeal from a judgment of the district court in the city of New York for the first judicial district, rendered by the justice without a jury, in favor of the defendant. Action for goods sold and delivered, the defense relied upon breach of warranty.
    
      Charles C. Miller, for app’lt; L. M. Simpson, for resp’t.
   Bischoff, J

No exceptions to rulings upon the trial were taken by appellent and the argument for a reversal is based entirely upon the facts. The sole issue was as to whether or not there had been a breach of warranty upon the sale of the typewriting machine in question to the defendant, and the justice’s finding that there were such a breach is to be supported upon the evidence. The sale and delivery of the goods were admitted and it was upon the affirmative defense noted that trial was had. It appears that in the course of bargaining, after defendant had refused to purchase at the price set by plaintiff, attention was called by the latter’s agent to the fact that the machine was of a certain numerical designation which imported to the trade and to these parties, who were versed in matters pertaining to the construction of type writing machines, a greater value to the machine than would a lesser figure, and this because the machines numbered the higher were the later of manufacture and therefore embodied certain valuable improvements of recent date. Defendant thereupon completed the purchase. From the evidence given by defendant it appears that the machine was not as represented in this regard, being in fact of an early date of manufacture and bearing a number which had been altered. That the representation as to this question of trade designation was material in inducing the sale, and that it was in fact erroneous, appears from the evidence received, and the judgment finds ample support upon the record. There is no force in the contention that the evidence given with reference to the falsity of the representation was not the best evidence, because dealing merely with the construction of the machine and not expressly with the alteration of the number, this evidence having been received without objection is to be considered in determining the issues. Crane v. Powell, 139 N. Y. 379, 384; 54 St. Rep. 659. The effect of this evidence was to establish the fact that in purchasing the defendant had been misled by a material representation the falsity of which was, according to the testimony, by no means obvious to the purchaser and which was of a nature entitling the defendant to rescind the sale upon his discovery of the true state of facts. There is no question to be raised as to the diligence with which defendant acted in electing to rescind. No particular words are required to constitute a warranty of quality. Any distinct assertion in that regard made by the seller as an inducement to purchase, and relied on by the buyer, may be properly the ground for finding such a warranty. Hawkins v. Pemberton, 51 N. Y. 198; Wilbur v. Cartwright, 44 Barb. 536; Warren v. Van Pelt, 4 E. D. Smith,

Bookstaver, J., concurs.

202 ; Blakeman v Mackay, 1 Hilt. 266; Chapman v. March, 19 Johns. 290. Whether or not the words used are to be viewed as a warranty is a question of fact, Blakeman v. Mackay, supra; Rogers v. Ackerman, 22 Barb. 134; Whitney v. Sutton, 10 Wend. 412; and that for a breach of the warranty the purchaser may avoid liability for the price by rescission of the sale and return of the goods is clear beyond dispute. Norton v. Dreyfuss, 106 N. Y. 90 ; 8 St. Rep. 570. We are well content to support the justice’s finding upon the' evidence. Judgment affirmed with costs.  