Bunch v. Weil

• Decision Date: 09 April 1904
• Citation: 80 S.W. 582,72 Ark. 343
• Parties: BUNCH v. WEIL
• Court: Arkansas Supreme Court

80 S.W. 582

72 Ark. 343

BUNCH v. WEIL

Supreme Court of Arkansas

April 9, 1904

Appeal from Pulaski Circuit Court, JOSEPH W. MARTIN, Judge.

Action by Weil Bros. & Bauer against T. H. Bunch. Judgment for plaintiffs, from which defendant has appealed. Affirmed.

Judgment affirmed.

Morris M. Cohn, for appellant.

A mere presentation of a chattel sold is not a warranty. 45 Ark 284; 14 Ark. 21. One who professes to be an agent cannot, by any statement made known to the principal, establish the fact of the agency. 46 Ark. 222; 29 Ark. 512; 24 Ark. 12; Mechem Agency, § 100. The court erred in permitting letters pertaining to other transactions to go before the jury. 58 Ark. 125; 59 Ark. 105; 34 Am. Dec. 554; 30 Ia. 455; 32 Mich 204; 4 Col. 270; 38 Cal. 171; 39 Ark. 273. The plaintiffs had no right to rescind the contract. 38 Ark. 351; 1 Benj. Sales, §§ 675, 676, 623. In a sale of goods by sample the vendor warrants the quality of the goods to be equal to the sample.,2 Benj. Sales, § 969.

John M. Moore and W. B. Smith, for appellees.

Where goods are ordered for a particular purpose known to the seller, the latter impliedly undertakes that they shall be reasonably fit for the use for which they were intended. Benj. Sales, §§ 851, 852, 871; 4 Camp. 144; 120 U.S. 630; 110 U.S. 108; 57 F. 454; 56 Am. Rep. 570; 9 Wend. 20; 21 Ia. 508; 18 Am. Dec. 323; 122 Pa.St. 7. If the article selected and forwarded is not the kind ordered, or is not merchantable in quality, the buyer may refuse to accept it, and give notice to the seller. 24 Wis. 640; 42 Wis. 626; 18 Ill. 420; 14 L. R. A. 157; 155 Mass. 60; 10 Am. & Eng. Enc. Law, 91; Story, Sales, § 359; 1 Pars. Contracts, 602, 625, 626; 48 Ark. 330; 53 Ark. 160. It was competent for the plaintiffs to notify the agent of appellant of the unfitness of the flour, and demand that the purchase price be returned. 1 Benj. Sales, §§ 893-4; 1 Pars. Cont. 636, 637; 38 Ark. 342.

Morris M. Cohn, for appellant in reply.

Weil had no authority to bind appellant by anything he did before or after the sale. Mechem, Agency, § 950; 46 Ark. 210.

BUNN, C. J., WOOD, J., did not participate.

OPINION

BUNN, C. J.

The appellees, a company of general merchants, doing business in the city of Alexandria, in the state of Louisiana, brought this action in the second division of the Pulaski circuit court, on the 11th day of June, 1899, against T. H. Bunch, a wholesale dealer doing business in the city of Little Rock, Ark., to rescind the sale of 129 barrels of flour, and for the invoice price thereof which had been paid the defendant by plaintiffs, said invoice price being the sum of $ 709.50, or $ 5.50 per barrel; and also the difference between said invoice price of forty-one other barrels of same flour, which plaintiffs had been enabled to sell at a reduced price. This latter item of the claim was waived before the determination of the suit. Judgment in favor of plaintiffs for the said sum of $ 709.50, and defendant excepted and appealed to this court.

This litigation grew out of the following state of facts, to-wit: The Ben Weil Commission Company of mercantile brokers, acting at the time and for some time previously as brokers for said T. H. Bunch, on the 11th day of May, 1899, sold to the plaintiffs, at Alexandria, 170 barrels of "Capital Brand" flour, warranted to grade as "extra fancy," which "extra fancy" graded as third grade pure flour in the market, for the sum and price of $ 935, or at the rate of $ 5.50 per barrel, to be thereafter shipped from said city of Little Rock and delivered to plaintiffs at the city of Alexandria. The flour was shipped by Bunch to his said brokers, and draft for the said sum, with bill of lading, was forwarded, and on direction of said brokers, the plaintiffs paid the draft, and took possession of the flour, and at once began to sell the same to their customers. As soon as these custom purchasers opened the same for use, it was discovered that the flour was not as represented, "extra fancy," but it was a blended flour; that is, flour mixed with corn meal, about half and half, of a dark color, and of a peculiar odor. The flour thus sold was returned by plaintiffs' said customers to plaintiffs, and Bunch was notified of the same at once. In the meantime plaintiffs endeavored to sell the flour, and did sell some, but at a greatly reduced price from the invoice price, but could only dispose of forty-one barrels in all, including the barrels they had sold before observing the defect, and then demanded a rescission of the sale of the remaining 129 barrels, and the difference between the invoice price and the price of sale of the forty-one barrels, which was refused by Bunch.

The motion for a new trial was based on eleven separate grounds, but they all may be included in three propositions, as formulated in appellee's brief, to-wit: "(1) Whether there is an implied warranty that goods sold to be delivered are merchantable and reasonably fit for the purpose of trade for which they were purchased. (2) Whether the purchaser, having disposed of a part of the goods before discovering the inferior quality, may, upon making such discovery, rescind the contract of sale by tendering back the goods undisposed of. (3) Whether Bunch sold the goods to plaintiffs or his broker, the Ben Weil Commission Company."

The first proposition involves the common law doctrine of caveat emptor, or, rather, the consideration of some of the exceptions to the rule growing out of that doctrine, which is stated generally: "When the purchaser has had no opportunity to inspect the goods purchased, to ascertain whether or not they be of the quality represented by the act of putting them in the trade, then the doctrine of caveat emptor does not apply;" for, says Mr. Benjamin, in his work on Sales (7th Ed.), § 645: "When a chattel is to be made or supplied to the order of the purchaser, there is an implied warranty that it is reasonably fit for the purposes for which it is ordinarily used." The purpose of plaintiffs' purchase of the flour in this case, and the use to which it was to be put, admit of no question.

In the English case of Gardner v. Gray, 4 Campbell 144, cited in appellees' brief, in delivering his opinion, Lord Ellenborough said, "I think the plaintiff cannot recover on the count alleging that the silk should correspond with the sample. The written contract containing no such stipulation. I cannot allow it to be superadded by parol testimony. This was not a sale by sample. The sample was not produced as a warranty that the bulk correspond with it, but to enable the purchaser to form a reasonable judgment of the commodity. I am of opinion, however, that under such circumstances the purchaser has a right to expect a salable article answering the description in the contract. Without any particular warranty, this is an implied term in every such contract. When there is no opportunity to inspect the commodity, the maxim of caveat emptor does not apply. He cannot, without a warranty, insist that it shall be of any particular quality or fineness, but the intention of both parties must be taken to be that it shall be salable in the market under the denomination mentioned in the contract between them. The purchaser cannot be supposed to buy goods to lay them on a dunghill. The question then is, whether the commodity purchased by the plaintiff be of such a quality as can be reasonably brought into the market to be sold as waste silk. The witnesses describe it as unfit for the purposes of waste silk, and of such a quality that it cannot be sold under that denomination." So the witness in the case at bar describes the "blended flour" actually sold to plaintiffs by the defendant as unfit for the purposes of what was known in the trade as "Capital Brand" flour, or "extra fine" flour, and which was of the "third grade" of pure flour, and that it was of such a quality that it could not be sold under that denomination, but on the contrary it was, if flour at all in the true sense, of a very inferior grade, and could not be sold except far below the invoice price at which it was sold to plaintiffs by defendant.

The appellees' counsel cite a long list of cases applicable to the state of facts which without further comment, we cite for convenience of reference to those who may have occasion hereafter to refer to this opinion. Benjamin on Sales, cited above; Dushane v. Benedict, 120 U.S. 630 30 L.Ed. 810, 7 S.Ct. 696; Kellogg Bridge Co. v. Hamilton, 110 U.S. 108, 28 L.Ed. 86, 3 S.Ct. 537; English v. Spokane Com. Co., 57 F. 451; Best v. Flint, 58 Vt. 543, 56 Am. Rep. 570; Gerst v. Jones, 73 Va. 518, 34 Am. Rep. 773; Gallagher v. Waring, 9 Wend. 20; McClung v. Kelley, 21 Iowa 508; Osgood v. Lewis, 2 H. & G. 495, 18 Am. Dec. 317; Fogel v. Brubaker, 122 Pa. 7, 15 A. 692; Merriam v. Field, 24 Wis. 640; Morehouse v. Comstock, 42 Wis. 626; Babcock v. Trice, 18 Ill. 420; Morse v. Union Stock Yards, 21 Ore....