Haynor Mfg. Co. v. Davis

Decision Date01 April 1908
Citation61 S.E. 54,147 N.C. 267
PartiesHAYNOR MFG. CO. v. DAVIS.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Nash County; Neal, Judge.

Action by the Haynor Manufacturing Company against E. L. Davis. From a judgment for plaintiff, defendant appeals. Reversed.

A manufacturer selling through an agent a beverage for resale by one not having a license to sell intoxicating beverages impliedly warrants that the beverage can be lawfully sold by the buyer, and is liable on a breach of warranty for the liquor license tax required from the buyer.

Austin & Grantham, for appellant.

Jacob Battle, for appellee.

CLARK C.J.

Action begun before justice of the peace to recover value of goods sold. The defendant set up orally a counterclaim or payment as follows, which presents the only question before us: "The defendant denied that he owed the plaintiff anything, and pleaded payment in full of all accounts, and set up as a reason, among other things that the goods for which the account was made was in part 'Buchu Tonic,' and that at the time that he purchased it from the plaintiff the plaintiff's salesman, R. D Guy, had represented the said 'Buchu Tonic' to the defendant as nonalcoholic and not subject to any privilege or license tax of any kind, either federal or state, and guaranteed the defendant when he purchased the said 'Buchu Tonic' of the said salesman that, if defendant should ever be required to pay any taxes of any kind for the privilege of selling the same in his store at South Rocky Mount, the plaintiff company would make good to the defendant any such license tax paid by him; that after having sold at retail the said 'Buchu Tonic,' relying upon the representations and warranties of the said Guy, general salesman for the said company, he had been called upon and required to pay a federal license tax of $37.50 because of the fact that the said 'Buchu Tonic' was a beverage and highly intoxicating, and contained about 32 per cent. alcohol. The defendant contends that he is entitled to a credit in this transaction against the account of plaintiff for the $37.50 paid as a federal license tax, and that he, upon being required to pay such tax, returned to the plaintiff all the Buchu Tonic which he had on hand, deducted the $37.50 and sent the plaintiff a check for the excess of the account over and above the $37.50 and demanded that he be credited with the $37.50." On the trial in the superior court the defendant's testimony was to said purport. Mr. W. M. Allen, the pure food chemist for the state, testified that he had analyzed the "Buchu Tonic" manufactured by plaintiff on several occasions; that it usually ran about 32 per cent. alcohol, and was highly intoxicating; and that license tax was collectible on beverages containing one-half of 1 per cent. alcohol or upwards. At the close of the evidence the court directed a verdict in favor of the plaintiff for $37.50.

As this is equivalent to a nonsuit against the defendant upon his counterclaim, it is irrelevant to consider the evidence in reply introduced by the plaintiff. There was no controversy that the defendant owed plaintiff a balance of $37.50, unless he were entitled to this counterclaim. The defendant was entitled to have his counterclaim submitted to the jury; and, if the facts were found in accordance with his testimony, it was a valid counterclaim.

1. There was the express warrant of the...

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7 cases
  • Hodson v. Wells & Dickey Co.
    • United States
    • North Dakota Supreme Court
    • July 2, 1915
    ... ... 448, 54 N.W. 486; ... Parker v. Moulton, 114 Mass. 99, 19 Am. Rep. 315; ... Davis v. Reynolds, 107 Me. 61, 77 A. 409; ... Armstrong v. White, Ind.App. , 34 N.E. 847; Lake ... v ... 409, 103 N.W. 632, 8 Ann. Cas. 1057; Heyrock v ... Surerus, 9 N.D. 28, 81 N.W. 36; Dowagiac Mfg. Co. v ... Mahon, 13 N.D. 516, 101 N.W. 905 ...          Where a ... vendee has ... Civ. App ... , 159 S.W. 366; Kleine Bros. v. Gidcomb, Tex. Civ ... App. , 152 S.W. 462; Haynor Mfg. Co. v. Davis, 147 N.C ... 267, 17 L.R.A.(N.S.) 193, 61 S.E. 54 ...          Weese ... ...
  • International Harvester Co. v. Lawyer
    • United States
    • Oklahoma Supreme Court
    • February 1, 1916
    ... ... Adair (Ky.) 58 S.W. 697; Ellison ... v. Simmons, 6 Pennewill (Del.) 200, 65 A. 591; ... Haynor Mfg. Co. v. Davis, 147 N.C. 267, 61 S.E. 54, ... 17 L. R. A. (N. S.) 193; Laumeier v. Dolph, 145 ... ...
  • Hunsucker v. Corbitt
    • United States
    • North Carolina Supreme Court
    • April 2, 1924
    ... ... Page on the Law ... of Contracts (2d Ed.) vol. 3, p. 6004; Haynor Mfg. Co. v ... Davis, 147 N.C. 267, 61 S.E. 54, 17 L. R. A. (N. S.) ... 193. As to implied ... ...
  • Unitype Co. v. Ashcraft Bros.
    • United States
    • North Carolina Supreme Court
    • April 26, 1911
    ... ... can commit fraud with impunity." In Manufacturing ... Co. v. Davis, 147 N.C. 267, 61 S.E. 54, 17 L. R. A. (N ... S.) 193, the present Chief Justice says: "The ... ...
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