Dr. Shoop Family Med. Co v. Davenport

• Decision Date: 15 October 1913
• Citation: 163 N. C. 294,79 S.E. 602
• Court: North Carolina Supreme Court
• Parties: DR. SHOOP FAMILY MEDICINE CO. v. DAVENPORT.

79 S.E. 602

(163 N. C. 294)

DR. SHOOP FAMILY MEDICINE CO.

v.DAVENPORT.

Supreme Court of North Carolina.

Oct. 15, 1913.

1. Evidence (§ 441*)—Parol Evidence-Written Contract.

Where defendant purchased certain medicines under a written contract containing no provision for the return thereof and declaring that there was no other agreement written or oral than that stated in the writing, parol evidence that it was agreed between defendant and plaintiff's agent that the goods might be returned if unsatisfactory was inadmissible.

[Ed. Note—For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-17G3, 1765-1845, 2030-2047; Dec. Dig. § 441.*]

2. Sales (§ 272*)—Implied Warranty—Mer-chantableness.

A sale of goods by a manufacturer for resale imports an implied warranty that the goods are merchantable.

[Ed. Note.—For other cases, see Sales. Cent. Dig. § 747; Dec. Dig. § 272.*]

3. Sales (§ 284*)—Implied Warranty—Mer-chantableness—Return.

A buyer may return goods, if they are unsalable and worthless, for breach of an implied warranty of merchantable character.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 803-805: Dec. Dig. § 284.*]

4. Sales (§ 287*)—Merchantableness—Implied Warranty—Breach—Action fob Price—Retention of Part of Goods.

Where a seller accepted a return of a part of goods sold for alleged breach of warranty of merchantable character, it could not recover a balance of the contract price.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 811-816; Dec. Dig. § 287.*]

5. Interest (| 150*)—Costs (5 42*) — Suspen-sion—Continuing Tender.

A plea of tender was insufficient to stop interest and costs where the tender was not kept good and defendant did not produce the money and pay it into court.

[Ed. Note.—For other cases, see Interest. Cent Dig. § 114; Dec. Dig. § 50;* Costs. Cent. Dig. §§ 137-164; Dec. Dig. § 42.*]

6. Costs (§ 42*)—Offer of Judgment—Statutes—Application.

Revisal 1905, § 860, providing that defendant may serve an offer in writing to allow judgment to be taken against him in a specified sum, with costs, and, if plaintiff does not accept the offer and does not obtain a more favorable judg-ment, he cannot recover costs, has no application to a tender of a specified sum by check, which tender was not kept good by continued readiness to pay and payment of the money into court.

[Ed. Note.—For other cases, see Costs, Cent. Dig. §§ 137-164; Dec. Dig. § 42.*]

Appeal from Superior Court, Pitt County; Allen, Judge.

Action by the Dr. Shoop Family Medicine Company against J. R. Davenport. Judgment for plaintiff for less than the relief demanded, and it appeals. Modified.

This is an action to recover the price of certain medicines alleged to have been sold and delivered to the defendant. The indebtedness is denied by him. It appears that plaintiff sold and shipped the goods to defendant, who sold some of them to different customers, amounting to $8.45; and, finding that the medicines were worthless, he refunded the money to some of his customers who had bought from him and returned the rest of the medicines by freight to plaintiff, with a bill of lading for same and a check for the $8.45. Plaintiff returned the check but kept the goods and the bill of lading. There was evidence that the goods were worthless. Defendant offered to show that the agent, at the time of the sale, agreed that he could return the goods if they were not satisfactory, but this evidence was excluded by the court, as the contract was in writing, and it is stated therein that there is no other agreement, written or oral, than the one stated in the writing. Defendant tendered payment of the $8.45, which was refused upon the ground that the tender should have been of the whole amount which is justly due the plaintiff and claimed by him, but he did not allege or show continual readiness to pay or a payment into court. Judgment for $8.45 and costs in justice's court, where tender was first made and refused, and appeal by defendant.

Albion Dunn, of Greenville, for appellant.

Harry Skinner, of Greenville, and Lewis G. Cooper, of Henderson, for appellee.

WALKER, J. [1] The court properly rejected the evidence as to the parol agreement of the plaintiff's agent. The contract could not be contradicted or varied in this way. Medicine Co. v. Mizell, 148 N. C. 384, 62 S. E. 511, and cases cited.

But defendant relies upon the principle that, when the plaintiff sold the goods to him it impliedly represented that they were fit for the use for which they were intended, or that they were merchantable, and that this representation turned out to be untrue, for they were not only not merchantable but worthless, to the knowledge of the plaintiff. Mr. Benjamin states the rule on this subject in substance to be that in all sales by sample there is an implied warranty that the bulk shall be of equal quality to the sample. Where goods are sold without an opportunity for inspection, there is also an implied warranty that they shall be at least "merchantable, " not that they are of the first quality, or even of the second, but that they are not so inferior as to be unsalable among dealers in the article. This is especially true where, as in this case, the vendor is the manufacturer of the articles sold. Benjamin on Sales, 683, 686, and cases cited in notes. "If a man sells an article, he thereby warrants that it is merchantable; that is, that it is fit for some purpose. If he sells it for a particular purpose, he thereby warrants it to be fit for that purpose." Jones v. Bright, 5 Bing. 544. The principle was clearly expressed by Lord El-lenborough in Gardiner v. Gray, 4 Campbell, 143, where he denied the application of the rule as to sales by sample: "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. Where 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." See, also, McClung v. Kelley, 21 Iowa, 508; Gaylord Manufacturing Co. v. Allen, 53 N. Y. 518. The principle, as stated, has been recognized and the above authorities approved in Main v. Field, 144 N. C. 307, 56 S. E. 943, 11 L. R. A. (N. S.) 245, 119 Am. St. Rep. 956. See, also, Manufacturing Co. v. Davis, 147 N. C. 267, 61 S. E. 54, 17 L. R. A. (N. S.) 193; Rodgers v. Niles, 11 Ohio St. 48, 78 Am. Dec. 290; Fitch v. Archibald, 29 N. J. Law, 160; Murchie v. Cornell, 155 Mass. 60, 29 N. E. 207, 14 L. R. A. 492, 31 Am. St. Rep. 526; Tiffany on Sales, p. 260.

Defendant, therefore, had the right to return the goods if they were unsalable and worthless.

But it appears that the plaintiff received and kept that part of the goods re-shipped to him by the defendant There was ample evidence of this fact (35 Cyc. pp. 193 and 321) which the court fairly submitted to the jury, and they have found with the defendant. Surely it is not just that plaintiff should retain the goods and recover theirvalue from the defendant. If he had refused to receive the goods or had returned them after discovering what they were, a different case might be presented, upon which, though, we express no opinion.

We do not think there was a sufficient tender of the $8.45 to stop interest and costs. To have this effect, the tender must be kept good by being always ready to pay and by producing the money and paying It into court. Bissell v. Heyward, 96 U. S. 580, 24 L. Ed. 678. In a recent case Justice Allen, referring to this plea of tender and its sufficiency, says: "The plea of tender Is defective in that, in addition to alleging that he tendered the amount due, the defendant fails to allege that he has at all times since the tender been ready, able, and willing to pay, and in failing to accompany the plea by payment of the money into court; and the evidence In support of the plea is equally defective." Lee v. Manley, 154 N. C. 247, 70 S. E. 386. And again, quoting with approval Dixon v. Clark, 57 E. C. L. 376: "The principle of the plea of tender, In our apprehension, is that the defendant has been always ready (toujours prist) to perform entirely the contract on which the action Is founded, and that he did perform it, as far as he was able, by tendering the requisite money; the plaintiff himself precluding a complete performance by refusing to receive it. And as, in ordinary cases, the debt is not discharged by such tender and refusal, the plea must not only go on to allege that the defendant is still ready (uncore prist) but must be accompanied by a profert in curiam of the money tendered"—citing, also, Bank v. Davidson, 70 N. C. 122. In Soper v. Jones, 56 Md. 503, it was held that "a plea of tender, not accompanied by profert in curiam, is bad." The same was said in De Bruhl v. Hood, 156 N. C. 52, 72...