Polhemus v. Heiman
Synopsis
Vebdiot of Jtjbt.—The affidavits of the jurymen who rendered a verdict, that they misunderstood its effect, cannot he received to impeach or defeat it.
Wakrantx in Conteact.—If one party contracts to deliver to the other wool, “in good order,” and the latter agrees to accept and pay for it, the clause, “in good order,” is an express warranty.
Evidence oe a Custom to Change Conteact.—If a contract for the delivery of wool contains an express warranty that it is to he delivered in good order, evidence of a custom which would relieve the warrantor from liability under it is not admissible.
Account Stated.—The rule that acquiescence in an account after its delivery, by failing to make objections thereto within a reasonable time, makes it an account stated, does not apply where a party renders an account under a mistake -or misapprehension.
By the Court: In this State the affidavits of jurymen cannot be received to impeach or defeat their verdict. The prohibition extends beyond cases of willful misconduct on the part of jurors, and to every case in which the affidavits are attempted to be used as ground for setting aside a verdict because of a misunderstanding of its effect by some or all of the jurors who united in its rendition. The only exceptions to this rule are those in which the Legislature has by express enactment authorized such attack upon the verdict by those who rendered it, and it is not pretended that the present case is within any such exception. (Boyce v. Cal. Stage Company, 25 Cal. 474.)
The provision in the contract referred to in the answer, to the effect that the wool should be “in good order” was a warranty. (Polhemus v. Heiman, 45 Cal. 573.) As the contract contained an express warranty, evidence might properly have been rejected of a custom, which was sought to be incorporated into the contract, and the effect of which, if any, would be to relieve the plaintiff of liability incurred by reason of the breach of his express warranty. The authorities cited by appellant do not sustain the propositions contained in the fourth and fifth instructions to the jury asked by him.
We have been enabled to find no substantial error in the rulings or charge of the court below, and the judgment and order are affirmed.
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