Ex parte A.Z. Bailey Grocery Co.

• Decision Date: 28 June 1917
• Docket Number: 8 Div. 30
• Parties: Ex parte A.Z. BAILEY GROCERY CO.
• Court: Alabama Supreme Court

77 So. 373

201 Ala. 79

Ex parte A.Z. BAILEY GROCERY CO.

8 Div. 30

Supreme Court of Alabama

June 28, 1917

On Rehearing, December 20, 1917

Certiorari to Court of Appeals.

Action by the A.Z. Bailey Grocery Company against the H.C. Schrader Company, substitute defendant. From judgment for plaintiff defendant appealed to the Court of Appeals, which reversed and remanded (74 So. 749), and plaintiff petitions for certiorari. Certiorari denied.

Anderson C.J., and McClellan and Thomas, JJ., dissenting.

E.W Godbey, of Decatur, for appellant.

G.O. Chenault, of Albany, for appellee.

SAYRE J.

This court holds that the opinion of the Court of Appeals (74 So. 749) has correctly stated the law of interpleader under the Code. However, the Court of Appeals, making concrete application of its ascertained law to the case before it, tests the right of the original defendant to interplead, by the facts stated in the affidavit which it sets out in verbis in its opinion, and the writer, looking to the affidavit, but looking no further, because, in the first place, the method of review adopted by this court in such cases will not permit him to look further, and because, in the second place, the question appears to have been determined on the face of the affidavit, is unable to see that the interpleading bank was guilty of any wrong which should have been allowed to cut it off from an interpleader. It does not appear in the affidavit, so far as I can see, that the bank breached any duty it owed the drawer of the draft by withholding the remittance of its proceeds at the plaintiff's request. I would therefore award the writ.

In view of the conclusion reached by the Court of Appeals to the effect that the Schrader Company could not, over its objection, be brought into the case by interpleader, its determination on that ground to reverse the judgment of the trial court and the concurrence of a majority of this court, it may be suggested that what else the Court of Appeals had to say needs no consideration. But the Court of Appeals at the conclusion of its opinion said that the appellant, the Schrader Company, was entitled to the general affirmative charge. Considering the conclusion in connection with the statement by the Court of Appeals of the tendencies of the evidence on which it was based, a majority of this court, consisting of MAYFIELD, SOMERVILLE, GARDNER, and THOMAS, JJ., and the writer, is of the opinion that in this matter the Court of Appeals was in error, and that, in view of what will be the peculiar posture of the case on its return to the trial court, we, the majority last aforesaid, think the reasons for our opinion on this point should be briefly stated.

The Court of Appeals, after stating the evidence and its tendencies, says that, by accepting the shipment after inspection, the purchaser waived noncompliance on the part of the seller with his warranty, and in lieu thereof accepted the assurance of Lyle, the broker, that the seller would adjust the matter, and further, says the Court of Appeals:

"On the undisputed evidence, Lyle was without authority to bind the seller, and though his assurance of adjustment afforded the purchaser no indemnity, it could not hinder appellant's recovery."

It is true, of course, that if the purchaser accepted the rotten oranges as a compliance with the contract between himself and the seller, he could not recover the purchase money which he had paid to the bank. But the receipt of goods in a case of this sort does not necessarily amount to an acceptance. It must be borne in mind that, as there may be an acceptance without any actual receipt, so there may be a receipt without an acceptance, and that, so long as the buyer can, without self-contradiction, say that the goods have not been taken in fulfillment of the contract of sale, he has not accepted them (Benjamin on Sales [7th Ed.] pp. 140, 736, 737), and so long as there is no acceptance of the goods, such as will complete the execution of the contract of sale, the failure of the goods to conform to the description by which they are sold constitutes a breach of an implied condition precedent (Tiedeman on Sales,§ 197; Benjamin on Sales, § 645). According to Prof. Wharton, where there has been a delivery, the condition precedent becomes a warranty by implication. He says (Whart. Contr. § 564):

"A substantial, though partial (defective) performance of a condition precedent, followed by acceptance on the other side, transmutes the condition precedent into a representation (implying warranty) not barring a suit on the contract, though leaving ground for a cross-action for damages."

In the case before us the plaintiff was suing to recover the money he had paid for rotten oranges, whereas he had contracted for good merchantable oranges. In McCaa v. Elam Drug Co., 114...