Globe Liquor Co. v. San Roman

• Decision Date: 14 April 1947
• Docket Number: No. 9146.,9146.
• Citation: 160 F.2d 800
• Parties: GLOBE LIQUOR CO., Inc., v. SAN ROMAN et al.
• Court: U.S. Court of Appeals — Seventh Circuit

160 F.2d 800 (1947)

GLOBE LIQUOR CO., Inc., v. SAN ROMAN et al.

No. 9146.

Circuit Court of Appeals, Seventh Circuit.

February 14, 1947.

Rehearing Denied April 14, 1947.

Nat M. Kahn, of Chicago, Ill., for appellants.

Ben W. Heineman, of Chicago, Ill. (Joseph D. Block and Swiren Heineman & Antonow, all of Chicago, Ill., of counsel), for appellee.

Before SPARKS, MAJOR, and MINTON, Circuit Judges.

MINTON, Circuit Judge.

The plaintiff-appellee, a corporation of Delaware, sued the defendants-appellants, a partnership whose members reside in and are citizens of Illinois, for breach of an express warranty. It is alleged in the complaint that the plaintiff agreed to purchase from the defendants and the defendants agreed to sell and deliver to the plaintiff 750 cases of Mexican tequila, described as "Mariachi Tequila Gold, in good merchantable condition, fit for human consumption," and that the defendants failed and refused to deliver the tequila to the plaintiff "in good merchantable condition fit for human consumption in violation of their agreement so to do."

The plaintiff exhibited with its complaint and introduced in evidence an order for the tequila made out on an improvised order blank in the handwriting of the plaintiff's vice president. Some letters and memoranda that had passed between the parties were also exhibited with the complaint and introduced in evidence. No written definitive contract was entered into between the parties covering the transaction.

The defendants in their amended answer alleged that at the time the order was taken by their salesman, the plaintiff was informed by him that the order was subject to acceptance and confirmation by the shipper in Mexico, and that the defendants were not to be responsible for the quality of the liquor but such responsibility was to be that of the shipper in Mexico.

The case was tried before a jury, and at the conclusion of all the evidence each party made a motion for a directed verdict. The court overruled the defendants' motion and sustained the plaintiff's motion, entering judgment for the plaintiff for the purchase price paid for the tequila, plus certain expenses incurred, including freight from Laredo, Texas. The defendants filed a motion for a new trial which was overruled. From the judgment of the court sustaining the plaintiff's motion for a directed verdict and awarding damages, the defendants have appealed.

As we have pointed out, the plaintiff alleged and relied upon an express warranty by the defendants. There is not one word or syllable in the written exhibits or in the oral testimony that the defendants ever agreed to deliver tequila "in good merchantable condition, fit for human consumption." In this state of total failure to prove an express warranty as alleged in the complaint, the court directed a verdict for the plaintiff. This was error.

Not only was it error to grant the motion of the plaintiff for a directed verdict. It also was error to refuse to grant the motion of the defendants for a directed verdict, because there was a total failure of proof on the question of express warranty, upon which the plaintiff had relied. The court was right in one respect. It was right in directing a verdict, but it directed the verdict for the wrong party. In this situation, we are at liberty to dispose of the case here. West Virginia Pulp & Paper Co. v. Cone, 4 Cir., 153 F.2d 576, 581, 582; United States v. Halliday, 4 Cir., 116 F.2d 812, 815, 816; Berry v. United States, 2 Cir., 111 F.2d 615; Conway v. O'Brien, 2 Cir., 111 F.2d 611, 613.

The judgment of the District Court is reversed, and the cause is remanded with directions to overrule the motion of the plaintiff for a directed verdict, sustain the motion of the defendants for a directed verdict, and enter judgment for the defendants.

On Petition for Rehearing.

The plaintiff-appellee has filed a petition for rehearing in which it states that even if there was a failure to prove an express warranty as alleged in the complaint, the goods were sold by description and therefore an implied warranty arose, and that we should have considered the pleadings amended to conform to the proof of an implied warranty. No such view was taken in the briefs or in the argument. After the argument the plaintiff filed what it termed a supplemental memorandum in which it seemed to take this position for the first time. Of course, where on the trial evidence is admitted without objection which proves a case different from that alleged in the complaint, we may consider the pleadings amended to conform to the evidence thus introduced. Federal Rules of Civil Procedure, rule 15(b), 28 U.S.C.A. following section 723c.

The Uniform Sales Act of Illinois, which the parties agree shall control, provides that no implied warranty shall arise except: "Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality." Ill.Rev. Stat., Chap. 121½, Sec. 15(2) (1945). The evidence shows that the goods were sold by description, but the plaintiff had the burden also to show that the goods were bought from a seller who deals in goods of that description. There was no evidence in the record of any such dealings by the defendants. Realizing the necessity for such evidence, counsel for the plaintiff cited us the testimony by deposition of the defendants' salesman who had sold the goods. This evidence was first cited in the so-called supplemental memorandum after the argument. The trouble with this evidence is that is it not in the record and was kept out on the objection of the plaintiff. No part of the deposition was ever read or...