Ashford v. H. C. Schrader Co

• Decision Date: 14 October 1914
• Docket Number: (No. 161.)
• Citation: 83 S.E. 29,167 N.C. 45
• Parties: ASHFORD et al. v. H. C. SCHRADER CO.
• Court: North Carolina Supreme Court

83 S.E. 29

167 N.C. 45

ASHFORD et al.

v.H. C. SCHRADER CO.

(No. 161.)

Supreme Court of North Carolina.

Oct. 14, 1914.

Appeal from Superior Court, Craven County; Daniels, Judge.

Action by T. P. Ashford and another against the H. C. Schrader Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

This is an action to recover damages for an alleged breach of an implied warranty in the sale of 600 boxes of oranges. Both the plaintiff and the defendant are dealers in oranges, plaintiff doing business at Newbern and the defendant in Florida. The contract was to sell 600 boxes of oranges at a price agreed on, without further description, and the right was given to the plaintiff, who was the purchaser of the oranges, to inspect. The oranges were shipped to Newbern to the order of the defendant, with draft upon plaintiff and bill of lading attached. There was evidence offered upon the part of the plaintiff that he exercised ordinary care in the inspection of the oranges, and did not discover any defect therein, and that he then paid the purchase price, and it was afterwards discovered that one-third of the oranges were rotten and unfit for sale. His honor charged the jury, among other tilings, as follows:

"Now, under these circumstances, there was what in law, is called an implied warranty that the oranges should be merchantable, that is, salable; not that they should be of first quality, but that they should be salable. And I charge you that if you believe all the evidence to be true as testified to by the parties, plaintiff anddefendant, you will answer the first issue, 'Yes.' That is, there was a warranty in the sale of the oranges to the plaintiff by the defendant, not an express warranty—I have excluded that, the plaintiff having failed to establish an express warranty by his evidence—but what in law is called an implied warranty; that is, a warranty that the goods should be salable; so I say if you find the facts to he as testified to by the witnesses, you will answer, 'Yes'; if you do not, you will answer the issue, 'No.'

"The burden is upon the plaintiff on this issue to satisfy you by the greater weight of the evidence that there was any warranty in the sale of the goods. If he has so satisfied you, you will answer the issue 'Yes'; if he has not, you will answer 'No.'

"The next issue for your consideration is: 'If so, was there a breach of said warranty?' The plaintiff alleges there was, and the burden is upon him to satisfy you of the truth of his contention. The breach of warranty, as he contends, consists in the fact that the oranges were not merchantable or salable, and as evidence of that they testify as to the condition of the oranges after they came in their store. The plaintiff testified that he had made an examination and inspection of them at the depot, and they seemed to be all right, and they were then taken to their store. You will remember what they said in their testimony; and after a few days they found, upon examination, that the oranges were one-third to one-half rotten. The defendant would be liable, if you find them liable at all, for such damage or deterioration in the oranges as existed at the time of their delivery to the plaintiff and his assignee, by the railroad company, to the' plaintiff, but would not be liable for any damage or deterioration by reason of some cause after the oranges came into the possession of the plaintiff, if they were merchantable and salable when delivered here in Newbern. The defendant contends that oranges are of a perishable nature; that they were left at the depot before taken out by the plaintiffs; that they were then delivered to the plaintiff and his assignee, and then remained in their place of business for several days before their condition was discovered; and the defendant argues that if they were in a damaged condition when they arrived here, and when the plaintiff took them from the railroad company, with the inspection they made of the fruit they would have discovered any damage or deterioration, if any existed, and that you ought to find that the damage complained of by the plaintiff came from some cause arising in their places of business, and that there never was any breach of warranty by the defendant.

"You will take all the evidence bearing on that point, and say whether or not there was any breach of warranty. If you are satisfied by the greater weight of the evidence that at the time the oranges were delivered to the plaintiff they were not in a merchantable or salable condition, then your answer to this issue would be, 'Yes'; if you are not so satisfied, then your answer would be, 'No.' If you find there was a warranty, and that there was a breach of such warranty, then you will consider the third issue: 'If so, did the plaintiffs waive such warranty?' You will remember that the goods were shipped.subject to the inspection of the plaintiff. They were not to accept the goods, the oranges, unless, after inspection, they were found to be merchantable or salable; and they had the right to reject them if, upon inspection, they found them not to be up to the warranty, if you find there was a warranty: and they had that right to inspect before they accepted and received them. It was the duty of the plaintiff, under this order permitting inspection when these oranges came here, to exercise the care of a reasonably prudent man, and to give them a reasonable inspection in order to determine whether or not they were merchantable or salable. If you find that they did exercise the care of a man of ordinary prudence, reasonable care, in making the inspection, and that they were unable, in the exercise of such care, to discover that the fruit was in bad condition, that is, of course, if you find it was in bad condition at the time of the inspection, then the plaintiff would have performed his duty in respect to that inspection, and would not have waived the warranty, if there was a warranty, and in that event, you would answer the issue, 'No.' But if you find that the plaintiff failed to exercise such care, and thereby failed to discover that the fruit was in bad condition, if it was in bad condition, and accepted and used the oranges, or some of them, then you would answer the issue, 'Yes, ' because in that event, there would have been a waiver of any warranty made. The defendant would be liable if a warranty was a part of the contract, and it was a part of the contract that the plaintiff could go to the car and make a reasonable inspection of the fruit, if the plaintiff failed to make such an inspection, and by reason of such failure did not find out the bad condition of the fruit, and under these circumstances accepted and used some of the fruit, then there would be an acceptance after an inspection, and that would be a waiver of any warranty, and you should answer the issue. 'Yes.' "

The defendant excepted to that part of the charge holding that there was an implied warranty that the oranges should be salable, and also to the part of the...