88 N. J. L.

McCormack v. Williams.

for themselves. They gave inherent evidence of validity. Because all the individual witnesses who testified gave evidence tending to show their invalidity, no matter how strong that evidence, it raised, in effect, a conflict of testimony; and conflicting testimony is always for the jury. Dickinson v. Erie Railroad Co., 85 Id. 586. In that case it was held in this court that a trial judge is only justified in granting a nonsuit or directing a verdict upon a court question arising from the admitted or uncontroverted facts of a case. See, also, Clark v. Public Service Electric Co., 86 Id. 144; Schmidt v. Marconi Wireless Telephone Co., Id. 183.

Nor is the situation any different because it was contended that the plaintiff procured the notes after maturity. At maturity promissory notes become subject to certain defences which previously did not exist, and in section 28 of our Negotiable Instrument act (supra), it is expressly provided that the absence or failure of consideration shall be matter of defence as against any person not a holder in due course, that is, not a holder before maturity without notice of any invalidity in the instruments. This defence does not speak for itself, it has to be interposed and proved.

In our opinion the trial judge should have submitted the issue in this case to the jury for their determination and, because he directed a verdict for the defendant, he erred.

Let the judgment be reversed to the end that a venire de novo may issue.

For affirmance-BERGEN, BLACK, HEPPENHEIMER, WILLIAMS, JJ. 4.

For reversal-THE CHANCELLOR, CHIEF JUSTICE, GARRISON, SWAYZE, TRENCHARD, PARKER, MINTURN, KALISCH, VREDENBURGH, TERHUNE, TAYLOR, JJ. 11.

Quemahoning Coal Co. v. San. Earth. Spec. Co. 88 N. J. L.

QUEMAHONING COAL COMPANY, PLAINTIFF-APPELLANT, v. SANITARY EARTHENWARE SPECIALTY COMPANY, A CORPORATION, DEFENDANT-RESPONDENT.

Submitted July 6, 1915-Decided November 15, 1915.

By written contract defendant agreed to purchase from plaintiff a quantity of a certain kind of coal got from certain mines and known by the trade name of "Ralphton Smokeless Coal." Held, that there was no implied warranty as to the quality of the coal. Section 15, subdivision 4, of the "Sales act" (Comp. Stat., p. 4647), applies. Ivans v. Laury, 67 N. J. L. 153, approved and applied.

On appeal from the Supreme Court.

For the appellant, Vroom, Dickinson & Bodine.

For the respondent, James J. McGoogan.

The opinion of the court was delivered by

WALKER, CHANCELLOR. By a written contract between the parties the defendant agreed to purchase from the plaintiff certain carloads of "Ralphton Smokeless Coal," and the latter sued the former in the Supreme Court for a certain amount due for shipments of such coal, which defendant received and part of which it used, tendering back the unused part. The defence was that plaintiff represented that the coal could be used with good results in firing defendant's pottery kilns, and that defendant, relying upon such representations, used the coal in firing certain of its kilns, and that, by reason of the poor quality of the coal so used, pottery ware in the kilns was damaged. Defendant counter-claimed for damages to the ware in the kilns fired with the coal mentioned, and for expenses incurred in refiring the kilns with other coal, and offered to set off its damages against the amount due plaintiff, and demanded judgment for such balance as might be found due to it. The jury rendered a verdict of no cause of action, and the plaintiff appealed to this court.

88 N. J. L. Quemahoning Coal Co. v. San. Earth. Spec. Co.

The testimony showed that the coal shipped was a certain kind of coal got from certain mines. It was known by the trade name of "Ralphton Smokeless Coal," and was the kind of coal contracted to be bought and sold in this case.

The sole question to be determined upon this appeal is whether, when coal is sold by a written contract under a specific trade name, as "Ralphton Smokeless Coal," there is an implied warranty as to quality because the purpose for which it was to be used was communicated by the buyer to the seller.

We regard the case of Ivans v. Laury, 67 N. J. L. 153, as controlling the case at bar. In that case, Mr. Justice Gummere, now Chief Justice, speaking for the Supreme Court, said (at p. 155):

"The cement which was the subject-matter of the sale, in the present case, was purchased by its known designation, i. e., as 'Atlas-Portland Cement,' and, consequently, there was no implied warranty of its quality."

The case of Ivans v. Laury was decided in 1901. Afterwards, and in the year 1907, the legislature passed "An act concerning the sale of goods and to make uniform the law relating thereto." Comp. Stat., p. 4647. This statute, known as the "Sales act," does not change the law from that enunciated in Ivans v. Laury. Section 15 of that act reads as follows:

"Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows."

Then follows certain subdivisions, one of which applies, as will be hereafter shown.

The learned trial judge charged that there was testimony in the case to the effect that the agent of the plaintiff was familiar with, and informed of, the purpose for which the coal was to be used, but very properly instructed the jury not to consider the representations respecting the coal and its quality made by the agent of the plaintiff, as the written agreement between the parties alone could speak as to the contract. made by them; but he went on and charged that the law

Quemahoning Coal Co. v. San. Earth. Spec. Co. 88 N. J. L.

implied a warranty from that state of facts, and, further, that he could see no reason why an implied warranty should not be inserted in the written paper where the warranty itself was not incorporated in it. To this the plaintiff took exception.

The learned trial judge had in mind the first subdivision of section 15 of the Sales act, which reads:

"(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods. are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose," as he expressly mentioned it in his charge to the jury.

This subdivision, however, apparently contemplates the case of goods other than those sold under a patent or other trade. name. Certainly there was no reliance on the seller's "skill or judgment" in this case.

Subdivision 4 of section 15 of the Sales act, which reads as follows:

"(4) In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose," was the law applicable to the contract before the court, and should have been given controlling effect by the trial judge. In charging, in effect, that the case came under subdivision 1 instead of subdivision 4, he erred; and for this error, besides the charge that the law implied a warranty from the facts of the case, the judgment must be reversed to the end that a venire de novo may be awarded.

For affirmance-None.

For reversal-THE CHANCELLOR, CHIEF JUSTICE, GARRISON, SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, BLACK, VREDENBURGH, WHITE, TERHUNE, HEPPENHEIMER, WILLIAMS, TAYLOR, JJ. 16.

88 N. J. L.

Vecsy v. Central R. R. Co.

JULIA VECSY AND LADISLAUS VECSY, HER HUSBAND, APPELLANTS, v. THE CENTRAL RAILROAD COMPANY OF NEW JERSEY, RESPONDENT.

Argued June 25, 1915-Decided November 15, 1915.

Plaintiff attempted to signal a train of defendant railroad company by pulling down a handle which raised a semaphore or signal board, supported on a post located in front of a station. A man assisted her by tying a wire, which was attached to a cross-bar of the post, around the handle to relieve the plaintiff from the necessity of holding it down. The wire was in two pieces looped together, and parted when plaintiff let go of the handle, which flew up, striking her in the face and causing her injury. There was no evidence to show that the defendant had installed the wire or that its defective condition had been brought home to it, or that that condition had existed for such length of time as to charge it with notice. Held, that no case of negligence on the part of the defendant was established, and that, therefore, a verdict for defendant was rightly directed. Held, further, that the doctrine of res ipsa loquitur did not apply.

On appeal from the Union Circuit Court.

For the appellants, Clarence D. Meyer and Jeremiah A. Kiernan.

For the respondent, George Holmes and Frederick J. Faulks.

The opinion of the court was delivered by

WALKER, CHANCELLOR. The question presented by this appeal is whether the trial judge erred in directing a verdict. in favor of the defendant on the ground that no actionable negligence on its part had been established. The facts were as follows:

On July 25th, 1914, the date of the accident, and for some time prior, the defendant company maintained at Tremley, a village in the county of Union, on its Long Branch division, a passenger station at which no ticket agent or other repreVOL. LXXXVIII.

12