Hampton Guano Co. v. Hill Live Stock Co.

• Decision Date: 24 March 1915
• Docket Number: 252.
• Citation: 84 S.E. 774,168 N.C. 442
• Parties: HAMPTON GUANO CO. v. HILL LIVE STOCK CO.
• Court: North Carolina Supreme Court

84 S.E. 774

168 N.C. 442

HAMPTON GUANO CO. v. HILL LIVE STOCK CO.

No. 252.

Supreme Court of North Carolina

March 24, 1915

Appeal from Superior Court, Franklin County; Whedbee, Judge.

Action by the Hampton Guano Company against the Hill Live Stock Company. Judgment for defendant, and plaintiff appeals. New trial ordered.

The measure of damages for breach of warranty of personal property is the difference between the actual value of the property at the time of sale and what its value would have been if it had complied with the warranty.

This civil action was tried before Whedbee, judge, and a jury, at November term, 1914, of Franklin superior court.

Plaintiff is a manufacturer of fertilizers, and defendant a merchant of Louisburg, who deals in fertilizers, selling them on credit to farmers. On January 31, 1913, defendant purchased fertilizers from plaintiff under a written contract; the provisions thereof, material to this case, being as follows:

"And it is further understood and agreed that the fertilizer named is furnished with the guaranty of analysis printed on the sack, but not of results from its use. Verbal promises that conflict with the terms of this contract are unauthorized, and will not be recognized by this company."

Under this contract, in the spring of 1913, plaintiff shipped and delivered to defendant 80 tons of 8-2-2 fertilizer. On July 1, 1913, in payment therefor, defendant executed to plaintiff notes aggregating $1,050.75, which said notes were indorsed by K. P. and J. P. Hill, and were payable in January and February, 1914. Upon maturity of said notes, and long after the crops, under which the fertilizer was used, had been harvested, defendant wrote plaintiff several times and promised to pay the notes, as will appear from letters written from January to May, 1914, and set out in the record. In January, 1914, defendant sought to renew its contract with plaintiff, and to purchase 250 tons of the same fertilizer (being over three times as much as it had purchased in 1913) under a contract identical with the first one, but plaintiff refused to ship the goods because defendant had not paid for those purchased under the contract above referred to. At no time prior to the institution of this action did defendants ever claim or contend that the fertilizer delivered in 1913 was defective in quality or otherwise, or that they had any defense against said notes; on the other hand, they recognized their liability upon said notes and promised to pay the same, expressing regret that a scarcity of money had prevented them from making payment at maturity. Defendants failing to comply with their promises to pay said notes, this action was instituted on June 18, 1914, to recover the amount due thereon. Defendants answered, admitting the execution and nonpayment of the notes, but pleading as a counterclaim that it had sold the fertilizer to its customers under warranties that the goods were in every respect highly efficient suitable and fit for the fertilization of the crops for which they were recommended; that their customers complained to them that the goods were not fit or suitable and did not measure up to the standard and quality warranted; and that defendant had suffered damage thereby.

Upon the trial defendant, over the objection of plaintiff, offered evidence from persons who had used fertilizers purchased from defendant in 1913, tending to show that the fertilizer so purchased was in bad mechanical condition, being lumpy and off color; that it did not assimilate or was not taken up by the soil and did not fertilize the crops; that they had used it under their crops with poor results and made bad crops and that in their opinion the fertilizer was not worth as much as they were charged for it. Plaintiff objected to all this evidence, repeating the objections, until the court ruled that all such testimony should be considered as objected to. It was objected to: First, because the effect thereof was to vary the written contract between the parties which expressly provides that the plaintiff did not in any way guarantee the effect or results from the use of the fertilizer; second, because said testimony tended to set up a new contract guaranteeing results from its use, whereas the written contract expressly limited the warranty to the analysis appearing on the sacks; third, because said testimony in no way tended to show that the fertilizer did not contain the constituents in the quantities guaranteed by the analysis; fourth, because there was no evidence of any chemical analysis by the state chemist or other person, and that, until such analysis was offered, evidence as to its effect upon crops was incompetent and inadmissible; and, fifth, because Revisal, §§ 3949-3951, as amended by Public Laws of 1911, c. 96, provides that the analysis therein referred to is the best evidence of the contents of said fertilizers. There were some other specific grounds, not necessary to be stated. The contract between the parties was introduced in evidence, and shows that the fertilizer was guaranteed to contain the ingredients and in the proportion stated on the certificate of analysis printed on the sack, before the sale by plaintiffs, which shows the contents to be 8 per cent. of phosphoric acid, 2 per cent. of ammonia, and 2 per cent. of potash. Plaintiff demurred ore tenus to the answer and counterclaim, upon the following grounds:

"(1) It failed to state or allege wherein the defendants, or either of them, had been damaged. (2) It fails to allege or state, except in general terms, that defendants, or either of them, have suffered any damage whatever, actual or special. (3) It fails to specify or allege any grounds upon which defendants base their claim for damages. (4) It fails to specify wherein defendants, or either of them, have been damaged in any manner whatsoever, even if the fertilizer was not as guaranteed in the contract. (5) It fails to allege that any chemical analysis has been made by the agricultural department, or any one else, and any of the ingredients found to be deficient. (6) It admits the execution of the contract containing an express warranty as to analysis as shown on the sacks, and no implied warranty as to results can be set up or considered."

The demurrer was overruled, and plaintiff excepted.

The jury returned the following verdict:

"(1) Are the defendants indebted to the plaintiff on account of the notes sued on, and, if so, in what sum? Answer: $1,060.28, with 6 per cent. interest on $525 from January 15, 1914, until paid, and 6 per cent. interest on $525.75 from February 14, 1914, until paid, and interest on $9.53 from May 4, 1914, until paid.

(2) Did the plaintiff warrant the fertilizer to contain 8 per cent. available phosphoric acid, 2 per cent. ammonia, and 2 per cent. potash, and suitable for use as a fertilizer of crops? Answer: Yes.

(3) If yes, was said fertilizer, when delivered to defendant, as warranted? Answer: No.

(4) What damages, if any, are defendants entitled to recover of plaintiff? Answer: $1,061.25."

The court gave the following instructions upon the second and third issues, to which exception was taken:

"The contract itself says that it is guaranteed, and warrants the purchaser that it contains 8 per cent. phosphoric acid, 2 per cent. ammonia, and 2 per cent. potash; and the law says, in addition, that it is suitable for the purpose for which it is sold."

"If you believe this evidence, I charge you, as a matter of fact, to answer this issue, 'Yes,' that the plaintiff did warrant the fertilizer to contain 8 per cent. phosphoric acid, 2 per cent. ammonia, and 2 per cent. potash, and that it was suitable for use as a fertilizer of crops."

"If the evidence satisfies you by its greater weight that it did not contain 8 per cent. phosphoric acid, 2 per cent. ammonia, and 2 per cent. potash, or that it was unfit for use as a fertilizer, and you are satisfied of either of these facts by the greater weight of the evidence, I charge you to answer the third issue, 'No.' "

Plaintiff excepted to the judgment, which was entered upon the verdict, and appealed.

A. C. & J. P. Zollicoffer, of Henderson, and McIntyre, Lawrence & Proctor, of Lumberton, for appellant.

W. H. Yarborough, Jr., B. T. Holden, William H. Ruffin, and W. M. Person, all of Louisburg, for appellee.

WALKER, J. (after stating the facts as above).

When a person buys an article of personal property, he can require an express warranty as to its quality, or he may rely upon the warranty which the law implies in certain sales; but it has been well said that:

"When he takes an express warranty, it will exclude an implied warranty on the same or a closely related subject. Thus an express warranty of quality will exclude an implied warranty of fitness for the purpose intended, but an express warranty on one subject does not exclude an implied warranty on an entirely different subject"

--an illustration of the latter being that an express warranty of title will not exclude an implied warranty of soundness or merchantability. 35 Cyc. 392.

It was held in the early case of Lanier v. Auld, 5 N. C. 138, 3 Am. Dec. 680:

"That the law will not imply what is not expressed, where there is a formal contract (Evans' Essay, 32; 1 Fonbl. 364; 6 Term, 606; Doug. 654), and an express warranty as to soundness and age excludes any implied warranty as to other qualities."

What was said by Justice Brown in Piano Co. v. Kennedy, 152 N.C. 196, 67 S.E. 488, is very pertinent here:

"We have recognized the principle that there can be no implied warranty of quality in the sale of personal property where there is an express warranty, and that, where a party sets up and relies upon a written warranty, he...