Bunch v. Weil Bros. & Bauer
Decision Date | 09 April 1904 |
Citation | 80 S.W. 582 |
Parties | BUNCH v. WEIL BROS. & BAUER. |
Court | Arkansas Supreme Court |
Appeal from Circuit Court, Pulaski County; Joseph W. Martin, Judge.
Action by Weil Bros. & Bauer against T. H. Bunch. Judgment for plaintiffs. Defendant appeals. Affirmed.
Morris M. Cohn, for appellant. John M. Moore and W. B. Smith, for appellees.
The appellee, 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 plaintiff, said invoice price being the sum of $709.50, or $5.50 per barrel; and also the difference between said invoice price of 41 other barrels of same flour, which plaintiff 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 plaintiff company 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 plaintiff, 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 plaintiff 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 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 plaintiff's said customers to plaintiff, and Bunch was notified of the same at once. In the meantime plaintiff endeavored to sell the flour, and did sell some, but at a greatly reduced price from the invoice price, but could only dispose of 41 barrels in all, including the barrels he 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 41 barrels, which was refused by Bunch.
The motion for a new trial was based on 11 separate grounds, but they all may be included in three propositions, as formulated in appellee's brief, to wit: 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 caveat emptor does not apply;" for, says Mr. Benjamin in his work on Sales (7th Ed.) § 645, "But 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 plaintiff's 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 appellee's brief, in delivering his opinion, Lord Ellenborough said, So the witness in the case at bar describes...
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