Hanes v. Shapiro & Smith
| Citation | 84 S.E. 33,168 N.C. 24 |
| Decision Date | 13 January 1915 |
| Docket Number | 329. |
| Parties | HANES v. SHAPIRO & SMITH. |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Forsyth County; Harding, Judge.
Action by W. M. Hanes against Shapiro & Smith. From a judgment for plaintiff, defendants appeal. Reversed and remanded.
The plaintiff alleges that he purchased a lot of furniture from the defendants with a warranty for 12 months against defects as to workmanship and material. Among this furniture was a sideboard, for which he paid about $177. The furniture was delivered, and about 30 days after its receipt, and before the defects appeared, the plaintiff paid the purchase price for all of the furniture. Within a year, however, defects both as to workmanship and material, did appear in one piece of the furniture purchased, viz., the sideboard. The defendants were notified of these defects, and demand was made upon them to make the sideboard conform with their warranty. The defendants requested the plaintiff to ship the sideboard to their factory at Norfolk, Va., where it could be repaired. In accordance with their request, the sideboard was shipped to them, in order to give them an opportunity to remedy the defects, and, while they were at work on the furniture to remedy the same, their place of business together with the sideboard, was totally destroyed by fire. The plaintiff then made demand upon them for his property, or that they should pay him back the amount of money which he had paid them for this defective piece of furniture. This demand was refused, and the plaintiff brought this action for money had and received to his use. He contends that this furniture was bought with express warranty as to workmanship and material; that there was a breach of the warranty, in that this sideboard was defective, both as to workmanship and material; that the defendants, upon his notice to them of the defects and the demand of plaintiff that it be repaired requested that the sideboard be returned to them in order that they might have an opportunity to remedy these defects and make good their warranty, and while it was in their possession it was destroyed by fire. Upon these facts he contends that he had his election to sue in tort, or to waive the tort and sue on contract for money had and received. He elected to sue on the warranty, and alleges that the defendant is indebted to him for money had and received to his use to the amount which he had paid for this sideboard. He says that the contract of warranty was a collateral undertaking on the part of the seller as to the quality of the subject of sale, and upon a breach of this collateral undertaking a cause of action arose to the plaintiff, and when the property was returned to the defendants, in compliance with plaintiff's demand and at their request in order to permit them to comply with their contract and to make good their warranty, the plaintiff did not in any wise waive his rights to sue on the warranty, or, at his election to sue for money had and received.
A buyer, having elected to allow a seller to make good his warranty by repairing defective furniture, cannot after the destruction of the article sue upon the warranty.
The following issues were tendered by the defendants, as the proper and only ones arising in the case:
The court declined to submit these issues, and defendants excepted. The jury rendered the following verdict upon the issues submitted by the court, and to which defendants duly excepted:
Judgment and appeal by defendants.
Alexander, Parrish & Korner, of Winston-Salem, for appellants.
P. Frank Hanes and L. M. Swink, both of Winston-Salem, for appellee.
WALKER, J. (after stating the facts as above).
The case was tried below upon the wrong theory. When the sideboard was found to be defective in construction and material, the plaintiff could have stood upon his right, under the warranty, and recovered his damages. But it was a question of election, and he chose to waive his right to sue upon the express covenant of warranty, and to allow this defendant to make good his warranty and to satisfy any damages that might have been recovered thereon, by repairing or restoring the sideboard so as to make it correspond with the thing warranted. It is such a manifest principle of justice and right, that a man, even in the ordinary affairs of life, should not be allowed to blow hot and cold in the same breath and to avail himself of inconsistent rights, that the attempt to establish the truth of the proposition would be worse than useless. To use a very suggestive phrase of Herbert: "Wouldst thou both eat thy cake and have it?" You cannot take two chances, hoping that if you lose the one you may gain the other. The moral law forbids it, and the technical law (as it is sometimes flippantly called) is also prohibitive of such a course. He cannot give up his warranty for a consideration, and afterwards take it back. Where a person has presented to him an election of inconsistent remedies, he must, once for all, choose between them, and is bound by his choice so made. When the plaintiff sent the sideboard to defendant for reparation, so that it should be made to answer the warranty, he thereby waived all right to sue upon the covenant, provided however, that defendant, being entitled to a reasonably sufficient time and opportunity to do the work and return the article, so as to discharge himself from blame, had really used due diligence and care, under the circumstances of the case, to comply with his undertaking to restore the sideboard to such a state that it would fulfill his contract. Plaintiff contends that there was no waiver of his right to sue upon the warranty by returning the sideboard for repairs; but we think that it is such a clear and unmistakable waiver, upon the conceded facts, as to require no further argument from us to establish this position. He received the sideboard, paid for it, and the title passed thereby from defendants to him. It was not revested in defendants by the return of the sideboard for the purpose of restoration, and we think the learned and able counsel of plaintiff virtually submitted to this view of the transaction, when asked the question if such a change of title had taken place. If he did not, it is, in law, correct, and must, by reason and authority, be so, and could not well be otherwise. But how does the law stand? We will attempt briefly to review it, with special reference to the facts of this case.
According to the classification of the civil law, "bailments" are of six kinds: (1) "Depositum," which is a delivery of goods to be kept for the bailor without recompense. (2) "Mandatum," which is a delivery of goods to have some service performed about them by the bailee without recompense. (3) "Commodatum," which is a gratuitous loan of goods to be temporarily used by the bailee, and returned in specie. (4) "Mutuum," which is a delivery of goods, not to be returned in specie, but to be replaced by other goods of the same kind. At common law, such a transaction is regarded as a sale or exchange, and not a bailment. (5) "Pignus." A pignus, pledge, or pawn, is a delivery of goods as security for some debt or engagement, accompanied by a power of sale in case of default. (6) "Locatio." A locatio, or hiring, is a bailment for reward, and may be of four kinds: (a) "Locatio rei," or the hiring of a chattel for use. (b) "Locatio operis faciendi," or the hiring of work and labor. (c) "Locatio custodiæ," or the hiring of care and services to be bestowed on the thing delivered. (d) "Locatio operis mercium vehendarum," or the hiring of the transportation of goods. The above classification is unnecessarily refined. The rights and liabilities of the parties to a bailment, as we shall see, depend primarily upon which one is to receive the benefits of the transaction. The law justly imposes a stricter liability upon the one who is to receive the whole benefit of the bailment than upon one who entered into it solely out of good will, and for the accommodation of the other party. Accordingly, bailments may be divided with reference to the party who is to receive the benefit into three classes, which will include all the principles of the law of bailments. The various kinds of bailments in the Roman classification group themselves naturally under these three heads, and it may be convenient to sometimes use the Roman terms to indicate subdivisions. The classification we adopt is:
The rights and liabilities of the parties to a bailment, as we have said, depend primarily upon which party the bailment is intended to benefit. Bailments may therefore fall within these divisions:
(a) Bailments for the bailor's sole benefit, including (1) depositum and (2) mandatum.
(b) Bailments for the bailee's sole benefit, including (1) commodatum.
(c) Bailments for mutual benefit, including (1) pignus, and (2) locatio.
These views are well supported by the authorities, and especially by Hale on Bailments, pp. 36 and 37.
The transaction in this case more nearly resembles the locatio custodiæ of the civil law, or the hiring of care and services to be bestowed on the thing delivered, and comes under the head of locatio in the last classification given above.
The rights and liabilities of the...
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