Garner v. S & S Livestock Dealers, Inc., 46256
| Decision Date | 31 May 1971 |
| Docket Number | No. 46256,46256 |
| Citation | 248 So.2d 783 |
| Parties | 9 UCC Rep.Serv. 418 Clyde GARNER v. S & S LIVESTOCK DEALERS, INC. and George L. Beam. |
| Court | Mississippi Supreme Court |
Farese, Farese, Jones & Farese, Ashland, for appellant.
Lumpkin, Holland & Ray, Robert Upchurch, Tupelo, for appellees.
Clyde Garner (plaintiff) sued S & S Livestock Dealers, Inc. and George Beam (defendants) to recover losses resulting from the sale by defendants to plaintiff of pigs infected with hog cholera. The jury found for plaintiff in the sum of $6,144.95. The trial judge sustained the defendants' motion for judgment notwithstanding the verdict and dismissed the suit. Plaintiff appealed. We reverse and remand for a new trial.
The declaration alleged that on October 24, 1968, plaintiff bought from defendants eleven swine 'for the purpose of taking them to his hog ranch to feed them and resell them when they gained sufficient weight.' In other words, he bought the swine as 'feeder pigs.' The following day one of the pigs died, and in the succeeding days other of the pigs died of hog cholera. Then plaintiff's other swine began to die of hog cholera. In all, six of the swine purchased from defendants, and sixty-three of plaintiff's other hogs died of cholera. Plaintiff claimed damages of $8,500 for the alleged 'breach of implied warranty of fitness for the purpose for which these pigs were to be used.'
Plaintiff had a small hog farm which he had developed in the eight years he had been a hog farmer, having purchased only two swine (for breeding purposes) in recent years. He had never had a hog infected with hog cholera until he purchased the feeder pigs from defendants. On the day of the purchase, he took a load of hogs he had raised to market. After selling his hogs he saw a pen of feeder size pigs belonging to defendant, S & S Livestock Dealers, Inc., a merchant with respect to livestock. Plaintiff inquired if the pigs in the pen were for sale, and defendant Beam advised him they were. Plaintiff then selected or picked out eleven of the pigs and purchased them. The proof is undisputed that these pigs or some of them were infected with hog cholera, and that they infected other swine belonging to plaintiff, resulting in loss to plaintiff.
(1) Unless excluded or modified, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
(2) Goods to be merchantable must be at least such as * * *.
(c) are fit for the ordinary purposes for which such goods are used; and * * *.
and Section 41A:2-315,
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.
1. The plaintiff assigns as error the action of the trial court in sustaining the motion for judgment notwithstanding the verdict.
The trial court submitted the case to the jury under Section 41A:2-315, which provides for an implied warranty of fitness for a particular purpose. In order for the plaintiff to recover under the implied warranty of fitness for a particular purpose, the evidence must be sufficient for the jury to find (1) the seller at the time of the contracting had reason to know the particular purpose for which the goods were required; (2) the reliance by the plaintiff as buyer upon the skill or judgment of the seller to select suitable goods, and (3) the goods were unfit for the particular purpose. There may be cases where the two warranties of merchantability under Section 41A:2-314 and fitness for a particular purpose under Section 41A:2-315 arise at the same time and in the particular sale involved, but this is not such a case. Bender's Uniform Commercial Code Service, Deusenberg-King § 7.02(3) (1969). The warranty of fitness for a particular purpose does not arise unless there is reliance on the seller by the buyer, and the seller selects goods which are unfit for the particular purpose. The evidence did not justify the submission of this case to the jury on the...
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