Haltiwanger v. Tanner

• Citation: 29 S.E. 965,103 Ga. 314
• Parties: HALTIWANGER v. TANNER et al.
• Decision Date: 20 January 1898
• Court: Georgia Supreme Court

29 S.E. 965

103 Ga. 314

HALTIWANGER v. TANNER et al.

Supreme Court of Georgia

January 20, 1898

Syllabus by the Court.

1. One who purchases, for the purpose of resale (this purpose being known to the seller), goods expressly warranted as to quality, is not bound to examine the same, with a view to detecting latent defects, before making a resale, but may do so on the faith of the warranty under which he bought. (a) It was therefore, in the present case, error to charge, in effect, that it was incumbent on the defendant to exercise ordinary care in discovering the alleged latent defects in the goods which he had purchased from the plaintiffs, before selling the same to others.

2. Except as to the matter above ruled upon, there was no substantial error in the charges complained of in the motion for a new trial.

Error from city court of Atlanta; J. D. Berry, Judge.

Action by Tanner & Co. against A. J. Haltiwanger. Verdict for plaintiff. New trial denied, and defendant brings error. Reversed.

Candler & Thomson, for plaintiff in error.

W. H. & E. R. Black, for defendants in error.

LITTLE J.

Haltiwanger having previously purchased linseed oil of Tanner & Co. forwarded by letter on June 15, 1889, an order to Tanner & Co. for three barrels of linseed oil, raw, pure, and two barrels of linseed oil, boiled, pure; adding in such letter containing the order that there was an enterprising drug house in the city in which Haltiwanger resided who was having Haltiwanger & Co.'s oil analyzed by the state chemist and for that reason Tanner & Co. were requested to send no oil but that which was pure. To this latter Tanner & Co. replied, in substance, that they were not manufacturers of linseed oil, but that they promised the exact oil which Haltiwanger had been previously getting from them, whereupon Haltiwanger wired Tanner & Co., "If same as last, fill the order to-day." Upon receipt of this telegram, the oil went forward; and after considerable correspondence between the sellers and purchasers relative to the quality of the oil, and the payment of the price agreed to be paid therefor, Tanner & Co. Sued Haltiwanger for the purchase price, to which action the latter pleaded: (1) That the oil which plaintiff's furnished was not in accordance with the contract made with the defendant, but was of a quality for inferior to, and of much less value than, that contracted for,--so much so that the consideration has failed. (2) That the defendant agreed to buy three barrels of raw and two barrels of boiled linseed oil of plaintiffs, at prices stated, and of the quality previously furnished him; that no such oil was ever furnished him, but, instead thereof, greatly inferior oil was furnished him, and he, relying upon his contract, and believing he had gotten the quality of oil contracted for, sold it as the best quality, and so warranted it; that it proved to be worthless, and he has been compelled to make good his warranty, whereby he has been damaged over $150; that relying upon the contract plaintiff's made with him, that said oil was of the best quality, he made no examination of it, but sold it as being of the best quality, and so warranted; and that by reason of such warranty he had been damaged in certain stated sums. The trial having resulted in a verdict for the plaintiffs for the amount sued for, the defendant made a motion for a new trial, which was overruled, and exceptions taken thereto; and this court is now to consider the errors alleged to have been committed by the court below in overruling said motion.

1. It is contended by the plaintiff in error, in his motion for a new trial, that the court erred in charging the jury, in effect, that if the defendant discovered the inferior quality of the oil before he used it, or could by the exercise of ordinary care have discovered that it was inferior, then he could not recover. In this contention we concur, and think the charge complained of erroneous. At common law, with respect to sales of this character, the doctrine of caveat emptor applies. In the absence of a warranty or fraud, the purchaser takes the risk of quality and condition. 1 Pars Cont.(8th Ed.) *577; Paul v. Hadley, 23 Barb. 521; Dean v. Mason, 4 Conn. 428; Kellogg v. Denslow, 14 Conn....