Attalla Oil & Fertilizer Co. v. Goddard

• Decision Date: 06 April 1922
• Docket Number: 7 Div. 293.
• Citation: 207 Ala. 287,92 So. 794
• Parties: ATTALLA OIL & FERTILIZER CO. ET AL. v. GODDARD ET AL.
• Court: Alabama Supreme Court

92 So. 794

207 Ala. 287

ATTALLA OIL & FERTILIZER CO. ET AL. v. GODDARD ET AL.

7 Div. 293.

Supreme Court of Alabama

April 6, 1922

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Action by the individuals composing the firm of Goddard Bros against the Attalla Oil & Fertilizer Company and others, for damages for deceit in the sale of articles, breach of warranty, etc. There was judgment for the plaintiff, and the defendants appeal. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Reversed and remanded.

Hood &amp Murphree, of Gadsden, for appellants.

Russell & Johnson, of Oneonta, for appellees.

THOMAS J.

The trial, had upon counts 2, 3, and 4, resulted in verdict and judgment in favor of the plaintiff. Count 1 was eliminated by the charge of the court.

The sufficiency of count 2 was challenged by demurrer, on the ground that it does not appear that defendants knew at the time they made said alleged false and fraudulent representations that said cotton seed meal contained only 4.84 per centum of ammonia, instead of 7 per centum, and only 24.84 per centum of protein, instead of 36 per centum. Thus is raised the question of sufficiency of the count as for deceit in sale of chattels. Distinction must be observed between a count for a breach of warranty, express or implied, in a contract of sale of chattels, and that for deceit therein. In the former the good faith of the seller in making the contract is immaterial, the inquiry being: Was there a contract of warranty and has it been breached? In the latter the good faith of the seller in making the representation is material. When count 2 is duly tested by demurrer, it fails to aver that the plaintiffs were induced to act to their prejudice; there was error in overruling the same.

Count 3 declared for a breach of warranty in the sale of 30 tons of cotton seed meal by the defendants to plaintiff as containing percentages of ammonia and protein therein indicated, and contained the averment that, in fact, said cotton seed meal did not contain such percentage, but a greatly less percentage, and the statement of the damages was:

"And the said meal of the latter grade at the time of said sale to plaintiffs by defendants was worth $20 per ton less than the former grade."

We are of opinion that count 3, in substance, is in code form (section 5382, form 22); and there was no error in overruling demurrer thereto.

Assignment of error challenged the correctness of the ruling of the trial court in sustaining demurrer to pleas 2 and 3, whereby defendants sought to set up as a defense that plaintiff had sustained no damage or injury. Upon the introduction of evidence, defendants sought to show that plaintiffs as merchants had sustained no damage in respects indicated, and a statement in the oral charge, to the effect that the fact that plaintiff had sustained no loss did not affect the right of recovery, was reserved by exception. The same question was raised by the refusal of written charge No. 16 requested by defendants. It is desirable that these several rulings and exceptions pertaining to this attempted defense by defendants be considered together. There was no error in sustaining demurrer to plea 3 and the attempted defense showing that the cotton seed meal was sold to plaintiff as merchants for resale; that the 350 sacks thereof were resold to customers by, and without loss to, plaintiff, and the balance was substituted by defendants for a like quantity or number of sacks of meal containing the percentages of ammonia and protein warranted in the sale. This is the justice and the law of damages in actions of assumpsit and fraud (Lowery v. Mutual Loan Soc., 202 Ala. 51, 79 So. 389, assumpsit; Baker v. Lehman, Weil & Co., 186 Ala. 493, 65 So. 321, assumpsit; Bomar v. Rosser, 131 Ala. 215, 31 So. 430, action on promissory note) where the rulings have been rested on the general statement that-

"Fraud, without damage, gives no cause of action; but when these two do concur, and meet together, there an action lieth." Overdeer v. Wiley, Banks & Co., 30 Ala. 709, 711.

The foregoing rule as to liability, or the extent thereof, is not the measure of damages where the action is for breach of a warranty, express or implied, inherent in the contract. In an action therefor the measure of "buyers' damages for breach of warranty as to quality, suitability, and serviceability *** [by manufacturers] was the difference between the actual value [of the chattel] *** at the time of delivery to buyers or carriers for their account and its value if it had corresponded to the warranty, with interest on such difference from the date of such breach to the time of the trial; the price received by buyers on a subsequent resale being immaterial." Chapman & Co. v. Dowling Hdw. Co., 205 Ala. 586, 88 So. 748; Stewart v. Riley & Johnson, 189 Ala. 519, 521, 66 So. 488; L. & N. v. Smith, 163 Ala. 141, 158, 50 So. 241. There was no error in the several rulings as to the measure of damage under count 3 for breach of warranty.

The evidence shows that the car of cotton seed meal in question was sold by Attalla Oil & Fertilizer Company, a corporation (which manufactured same), to the Gadsden Brokerage Company brokers who procured same to be shipped to Goddard Bros., partners doing...