Alig v. Lackey

• Decision Date: 14 May 1917
• Docket Number: 19178
• Citation: 75 So. 139,114 Miss. 392
• Court: Mississippi Supreme Court
• Parties: ALIG v. LACKEY

75 So. 139

114 Miss. 392

ALIG v. LACKEY

No. 19178

Supreme Court of Mississippi

May 14, 1917

Division B

APPEAL from the circuit court of Rankin county, HON. J. D. CARR Judge.

Suit by George Alig against H. C. Lackey. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and cause remanded.

Louis C. Hallam, for appellant.

In this state of the record the court below gave for the appellee defendant there, the following instruction, being the only instruction given for appellee on the trial, to wit:

"If you believe from a preponderance of the testimony that plaintiff warranted the machinery involved in this litigation to be sound and in good working order at the time of the purchase by defendant, and if you further believe that the valve, slide and other parts of the machinery were not sound and in good working order and that these defects, if you believe they existed, were not known by defendant, then it is your duty to return the following verdict; 'We, the jury find for the defendant.'"

In other words, the jury were told that if there was any breach of warranty on the part of the plaintiff, no matter how slight, and no matter what the real value of the saw mill and machinery was, the plaintiff could recover nothing. This is not law. Commission Co. v. Crook, 87 Miss. 451; Stilwell Co. v. Biloxi Co., 78 Miss. 786; Auto Co. v. Sturgis, 107 Miss. 850; Westmoreland v. Walker et al., 25 Miss. 77; Carver Gin Co. v. Gaddy, 62 Miss. 203. For this error, the judgment of the lower court must be reversed.

The letters written by appellee to the bank at Jackson and to appellant's attorney, above quoted, were pleaded by appellant in the court below as a full and complete waiver by appellee of any alleged breach of warranty. Under our statute they constituted new promissory notes, and the action, therefore, was based on these letters, so far as the breach of warranty was concerned, as much as on the original note.

I find no authority directly bearing on the question in this state, but it has been held elsewhere that the giving of a promissory note, or the making of a promise to pay, with knowledge of defects constituting a breach of warranty is a waiver of the breach. Osborne Co. v. Birdsall, 57 A.D. 41; Harder v. Carter, 97 Ga. 273; American Car Co. v. Atlanta, etc., 100 Ga. 254; Lunsford v. Malsby, 101 Ga. 39; Thomas v. Sexton, 15 S.C. 93; Vanderbeck v. Francis, 75 Conn. 467.

The principle of estoppel here contended for is upheld by this court in a very recent decision, in which this court speaking through Justice SYKES, said, in part:

"However, leaving out of consideration the testimony of the plaintiffs in this case, the defendants are estopped by their conduct to plead any such breach of warranty; on the contrary, we have their solemn admissions, made upon three different occasions, that the machinery was satisfactory in so far as the written warranties were concerned. It therefore follows that the court below erred in failing to give the peremptory instruction asked by plaintiff in the court below. Reversed and judgment here for the appellant in accordance with this opinion." Case Threshing Mach. Co. v. McCoy, 72 So. 139.

For the reasons indicated, it is respectfully urged that the judgment of the lower court be reversed, and that judgment be entered here for the appellant.

A. J. McLaurin, for appellee.

The issues in this case are three. 1. -- Was there an express warranty of the machinery? Appellee testified at page three of the record that he purchased said machinery on the warranty of appellant, the warranty being that appellant would "guarantee" said machinery to be all right. This is a warranty. If the language of the vendor amounts to an affirmation that the property is sound, it is a good warranty, although the word "warranty" be not used. Kinley v. Fitzpatrick, 4 H. 59, 34 Am. Dec. 108; Collins v. McCargo, 6 S. & M. 128.

2. If so, was there a breach? There is no testimony in the record as to that, but granted there was a warranty, it was not breached. On the contrary all the testimony goes to show that the machinery was not all right at the time of the purchase and warranty, but was in bad shape, containing defects which could not be observed without tearing the machinery to pieces.

3. If there was a warranty and breach, was appellee damaged and how much?

There is no conflict as to this issue. Appellee testifies it cost him three hundred dollars to make the machinery all right and as it should be. But the measure of damages is the difference between what the saw mill was worth in good order and in such shape as the warranty said it was, and what it actually was at the time of the warranty. Stilwell Co. v. Biloxi Co., 78 Miss. 786, near the bottom of the page; Benjiman on Sale, Pt. 2.

There is no conflict in the testimony as to what that difference was. The only testimony in regard to this is that of appellee when he says that it was only worth one hundred dollars in the condition he took it, which condition was not found out by him until after he had purchased the mill, moved it and set it up to run.

Appellee and witnesses Owen and Seany testified as to what constituted the breach of warranty, which testimony is not disputed. Appellant contends that even though there was a breach that appellee had waived the same by setting up the machinery and running it for a certain length of time. This is not a waiver of the breach.

Counsel for appellant confuses the waiver of a breach of warranty as effecting acceptance of the thing and waiver of a breach of warranty as affecting the right of the purchaser to sue for the breach or recoup his damages where he is sued for the purchase price.

The purchaser by his conduct waived his right to refuse acceptance on account of a breach of warranty,...