Crocker Wholesale Grocer Co. v. Evans

• Decision Date: 13 May 1925
• Docket Number: No. 3595.,3595.
• Citation: 272 S.W. 1017
• Parties: CROCKER WHOLESALE GROCER CO. v. EVANS.
• Court: Missouri Court of Appeals

272 S.W. 1017

CROCKER WHOLESALE GROCER CO. v. EVANS.

No. 3595.

Springfield Court of Appeals. Missouri.

May 13, 1925.

Appeal from Circuit Court, Laclede County; W. E. Barton, Judge.

Action by the Crocker Wholesale Grocer Company against H. D. Evans. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Seth V. Conrad, of Marshfield, and Phil M. Donnelly, of Lebanon, for appellant.

I. W. Mayfield & Son, of Lebanon, for respondent.

COX, P. J.

Action for damages resulting from the purchase of certain canned tomatoes; trial by jury; verdict and judgment for defendant; plaintiff appealed.

We do not deem it necessary to make a detailed statement of all the facts in this case. Suffice it to say that plaintiff is a wholesale grocer located at Crocker, Mo. Defendant canned tomatoes that were grown in 1920, and in February of 1921 sold 200 cases to plaintiff. These tomatoes were shipped to plaintiff by defendant from Stoutland, Mo., and bill of lading with draft attached was sent to a bank at Crocker. Plaintiff paid the draft, and the bill of lading was then delivered to it. The car was opened, and some of plaintiff's customers supplied direct from the car. The remainder of the tomatoes were unloaded, and plaintiff alleges that soon thereafter the discovery was made that the tomatoes were unfit for use as food and became a total loss. This suit was to recover damages based on the ground that the tomatoes were not in merchantable condition when bought. Evidence for plaintiff tended to show that the tomatoes were in bad condition, and that plaintiff lost the greater part of them. The evidence for defendant tended to show that the tomatoes were in good condition. Some testimony was introduced tending to show a custom among canners and buyers of their products as to the time a warranty of quality should extend. This was afterward withdrawn from the consideration of the jury by an instruction. Defendant claimed the sale was made on the open market for cash, and that no warranty was either given or implied.

Error is alleged in the withdrawal from the consideration of the jury the evidence of a custom. In this the court was clearly right. There were no facts shown in connection with this transaction that would call for the application of the terms of any custom, if any existed. It was a plain case of a manufacturer or preserver of food for hump use selling to a wholesaler to be by him resold, and finally to be used for food. In the absence of an express agreement to the contrary, the law would carry with the selling an implied warranty of fitness for human food. St. Louis Brewing Ass'n v. McEnroe, 80 Mo. App. 429, L. R. A. 1917F, p. 472 (note).

The effort of defendant to escape liability on the ground that the sale was on the open market and hence no implied warranty attached was also futile. The only evidence of a sale on the open market was the fact that the sale was for cash and the goods paid for on delivery. This was not sufficient to relieve defendant of liability under his implied warranty.

For plaintiff the court instructed the jury that, if the...