Courtesy Flour Co. v. Westbrook
| Decision Date | 08 November 1920 |
| Docket Number | 224 |
| Citation | 225 S.W. 3,146 Ark. 17 |
| Parties | COURTESY FLOUR COMPANY v. WESTBROOK |
| Court | Arkansas Supreme Court |
Appeal from Jefferson Circuit Court; W. B. Sorrells, Judge reversed.
Judgment affirmed.
Reinberger & Reinberger, for appellant.
1. The question presented is, did appellant waive its right to the warranty of soundness of two cars of meal by trying to dispose of same, or was it compelled to elect whether it would rescind the sale, or keep the meal and sue for damages for the meal purchased for resale and human consumption, and upon inspection found to be unsound for the purpose intended? The court's instructions were erroneous. Appellant having paid for the two cars of meal, had the right to retain it after ascertaining the bad condition thereof and sue for the difference in the purchase price of said cars and the amount he received from the damaged meal, including the expense of handling same. 76 Ark. 66. He had the right after he had paid for the meal to rescind the contract or keep the property and sue for damages. 110 Ark. 215. The sixteenth instruction given was error. 79 Id. 68; Benjamin on Sales (7 ed.), 893; 104 Ark. 573; 110 Id. 215.
2. The court erred in refusing to give instruction No. 5, asked by appellant, that if there was no express warranty there was an implied one that the meal was fit for the use intended. 76 Ark. 352; 113 Id. 169; 53 Id. 155. Also in giving the instruction on its own motion. 79 Ark. 66.
Harry T. Wooldridge, for appellee.
The acceptance of goods after an opportunity of inspection precludes the buyer from making any claim as to defects in quality. 104 N.W. 179; 63 N.E. 57; 105 N.W. 945; 66 A. 366; 175 P. 18; 257 F. 369; 172 N.W. 500; 221 S.W. 519. There is no error in the instructions.
This is an action to recover damages resulting from the breach of an alleged contract for the sale of two car loads of meal. Appellee was engaged in the grain and milling business in Pine Bluff and sold two car loads of meal to appellant, a dealer in Vicksburg, the two car loads being sold separately f. o. b. Pine Bluff and shipped under bills of lading to the shipper's order and attached to drafts drawn by appellee on appellant. The sales were made through a broker in Vicksburg, and the drafts to which the bills of lading were attached permitted inspection by the purchaser before acceptance. The shipments were about a week apart, and when they reached destination appellant paid the drafts and proceeded to unload the cars and found, according to the testimony which he adduced at the trial, that the meal was hot and musty and was caked, to the extent that a considerable part of it was unsalable and unwholesome. When the condition of the meal in the first car was discovered by appellant, he advised the broker through whom he had made the purchase and the latter communicated the information to appellee, who immediately sent to appellant a telegram of instructions in the following words: "Unload car, advise extent, nature damage, give plenty of air."
This occurred on March 20, 1918, and appellant finished unloading the first car, and when the second car arrived, finding it in the same condition, he unloaded that, too. He caused the meal to be taken care of by separating the good from the bad and giving it plenty of air in accordance with the instructions and proceeded to sell it to local merchants in Vicksburg. Much of it was found to be unfit for human consumption and was returned. The damaged portion of the two cars aggregated the price of $ 2,949.28, according to the invoices, and of this enough was sold to realize the sum of $ 1,322.52, leaving a balance claimed by way of damages, including interest, commission and handling charges of $ 1,823.93, the amount sought to be recovered. According to the undisputed evidence appellant made no report to appellee until May 4, 1918, when a statement of the amount of damages was furnished. A trial of the issues before a jury resulted in a verdict in favor of appellee.
Several errors of the court are assigned in giving certain instructions, but as the material facts in the case are undisputed it is unnecessary to discuss the instructions of the court.
There was no express warranty of the quality of the meal sold, but there was an implied warranty that the commodity sold was of the kind and quality specified and was wholesome and reasonably fit for use. Under the terms of the shipment appellant had the opportunity to inspect the meal before he accepted it, and he did in fact inspect it immediately after the payment of the draft, and he then discovered that it was not in accordance with the specifications and was unfit for use.
The law on the subject is that where chattels are purchased under express warranty as to quality, the purchaser may rescind on discovering the inferior quality of the article sold, but is not bound to do so, and, on the contrary, may retain the articles purchased and sue on the warranty or recoup the damages when sued for the price. In case, however, the contract is to deliver goods of a particular description or quality without express warranty, and the purchaser accepts them after inspection and discovery of the inferior quality, or after having had a fair opportunity to make such inspection, he waives the right to claim damages for defects or inferiority of the goods sold.
The case of Dana v. Boyd, 2 J.J. Marsh. 587 one of the early cases on the subject in this country, after stating the rule that a purchaser who receives goods under those circumstances waives the defects, states the following exceptions to that rule: ...
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