Hood v. Bloch 1

• Decision Date: 25 November 1890
• Citation: 11 S.E. 910,28 W.Va. 244
• Parties: Hood. v. Bloch et al.1
• Court: West Virginia Supreme Court

11 S.E. 910

28 W.Va. 244)

Hood.

v.Bloch et al.¹

Supreme Court of Appeals of West Virginia.

Nov. 25, 1890.

Sale—Warranty—Caveat Emptor — Demurrer.

1. Where a declaration contains two or more counts, and there is a demurrer to each count, some of the counts are bad, and the demurrer is over ruled as to all, the evidence is all certified, and the case is brought to this court on a writ of error, held, notwithstanding it was error to overrule the demurrer to the bad counts, still, if this court is satisfied that all the plaintiff's evidence was admissible under the good counts, it will not reverse the judgment of the trial court for such error.

2. Whether a sale of personal property Is complete or only executory is to be determined from the intent of the parties as gathered from the contract, the situation of the thing sold, and the circumstances surrounding the sale.

3. It was error to instruct the jury that the title to the property therein mentioned vested in the buyer upon the signing and delivery of a contract of the following purport: "I have this day sold to B. all my Swiss cheese now in my cellars, between 80 and 90 loaves, (this does not include cracked or second-class cheese,) at 12 1/2 cents per lb; the cheese to be paid for when received; the second-grade cheese to be at 10 1/4 cents per lb; B. to pay 1/2 freight from F., and to have all out of the cellars before Jan'y 1, 1885;" and the contract is dated and was delivered October 27, 1884.

4. In an action upon such a contract it is error to instruct the jury that there was no implied contract that the cheese should he merchantable or salable

5. The maxim, caveat emptor, does not apply to a sale of goods where the buyer has no opportunity for inspection.

6. But where the sale is of a definite, existing chattel, specifically described, the actual condition of which is capable of being ascertained by either party, there is no implied warranty.

7. Where a manufacturer undertakes to supply goods manufactured by himself, or in which he deals, hut which the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article.

(Syllabus by the Court)

Error to circuit court, Ohio county.

Caldwell & Caldwell, for plaintiffs in error.

G. R. T. Allen and R. G. Barr, for defendant in error.

Snyder, J. Assumpsit brought February 19, 1885, in the circuit court of Ohio county by William Hood against Samuel S. Bloch and Aaron Bloch, partners composing the firm of Bloch Bros., to recover $510.93, the price of cheese sold by the plaintiff to the defendants. The declaration contains the common counts and also a special count setting forth the contract for the sale of the cheese, and the acceptance of it by the defendants. There was a demurrer to each count of the declaration, which the court overruled. The defendants pleaded non assumpsit, and afterwards paid into court $306.14, and pleaded non assumpsit as to the residue of the plaintiff's account. The plaintiff accepted the $306.14 in part satisfaction of his claim, and replied generally to the defendants' plea. A trial was had by jury, and a verdict returned infavorof the plaintiff for $201.29, which the deiendants moved the court to set aside, but the court overruled the motion, and on May 30, 1885, entered judgment for the plaintiff for the amount of the verdict. During the trial, the testimony was taken down and written out in full by a stenographer. At the instance of the defendants all the evidence was embraced in the bill of exceptions, which also shows the exceptions of the defendants to questions and answers of witnesses as well their exceptions tothe giving and rejection ol certain instructions. To review the rulings ol the court as shown by said bill of exceptions, the defendants have brought this writ of error.

On October 27, 1884, the following written sale and purchase contracts were entered into by plaintiff, Hood, and the defendants, Bloch Bros., respectively, in the city of Wheeling. The first is signed by the plaintiff and the second by the defendants: No. 1. "I have this day sold to Bloch Bros, all my Swiss cheese which I now have in my cellars, being between 80 and 90 loaves, (this does not include the cracked or second-class cheese,) at 12 and one-quarter cents per lb, (12 1/4;) the cheese to be paid for when received; the second-grade cheese to be at 10 1/4 cents per lb; Bloch Bros, to pay 1/2 freight from Fairmont. Must be shipped before January 1, 1885. Shinnston, Harrison Co., W. Va." No. 2. "We have this day bought of Wm. Hood all of his Swiss cheese (between 80 and 90 loaves) that he has now in his cellar, at 12% (twelve and quarter) cents per lb; this does not include the cracked or second-class cheese, for which we are to pay him 10 1/2 cts. We to pay 1/2 freight from Fairmont, and to have it all out of his cellar before January 1, 1885." By the written request of the defendants, the cheese was not delivered to the defendants in Wheeling until about February 15, instead of January 1, 1885, as specified in the contracts of sale. The sale was made in Wheeling, and at that time the cheese was in the cellars of the plaintiff, at or near Shinnston, in Harrison county, this state, and it was not seen or inspected by the defendants until it was delivered in February, as above stated. On the same day this sale was made, the plaintiff had sold and delivered to the defendants another lot of cheese which the plaintiff's testimony tended to prove was of a grade inferior to that embraced in the said written contract; but the defendants evidence tended to prove that some of the cheese delivered in February was at that time inferior to any of the lot delivered in October, and that part of the former was unmerchantable and unsalable. To the introduction of any evidence to show that any of the cheese delivered in February was at that time unmerchantable, the plaintiff objected, the court sustained the objection, and the defendants excepted. The defendants also excepted to the refusal of the court to permit them to produce one of said cheese before the jury on the trial of the case.

It appeared that the defendants were dealers in cheese in the city of Wheeling, and that the plaintiff was a farmer and manufacturer of Swiss cheese, but did not personally attend to the manufacture, and had no special knowledge of the business of manufacturing cheese; that the man employed by him, and who made this cheese, had been engaged in cheese making about 24 years. All the cheese was delivered at the store of the defendants in Wheeling, where they separated it, and refused to take or pny for that part of it for which the jury gave their verdict in this cause. The ground on which this refusal was based, according to the defendants' evidence, was that said cheese fell below second-class cheese, and was unmarketable, while the plaintiff's evidence tended to show it was because it was not first-class cheese, the defendants contending they had bought first-class cheese only. The defendants also introduced evidence tending to prove that the contract of sale was procured by the misrepresentation and fraud of the plaintiff, and the plaintiff's evidence tended to contradict this, and show that there was neither fraud nor misrepresentation, and that the sale was fair in all respects. There was also evidence on both sides as to the condition of the cheese, and as to what classes cracked or rat-eaten cheese belongs, and whether or not it is merchantable. After all the evidence had been introduced, the court, at the instance of the plaintiff, instructed the jury as follows: "No. 1. The jury is instructed that the cheese, for the price of which this suit is brought, became the property of the defendants as soon as the written contract was signed and delivered by the parties. No. 2. The jury is instructed that there was no implied warranty by the plaintiff that the cheese should be merchantable. No. 3. The jury is instructed that, the cheese being the property of the defendants from and after the 27th day of October, 1884, the plaintiff was bound to use such care in keeping the cheese as an ordinary prudent man would use in caring for his own property. No. 4. The jury is instructed that, in considering the question of fraud or misrepresentation in the procurement of the contract of sale, you must first find the condition of the cheese on the 27th day of October, 1884, as compared with the lot then sold to the defendants by plaintiff. * * * No. 7. If you find that the contract for the cheese was not fraudulently procured, then you must find for the plaintiff, and fix the value of the cheese delivered by finding how much of it was to be paid for at 12 1/4 cents per pound, and how much to be paid for at 10 1/4 cents per pound. No. 8. In the absence of fraud, the written contract dated October 27, 1884, is the only evidence to be considered in determining the terms of the agreement between the plaintiff and defendants as to the goods sold, and the price to be paid." To the giving of any and each of said instructions, the defendants objected, and, their objections being overruled, they excepted. * The defendants then asked the court to instruct the jury as follows: " No. 1. The jury is instructed that, to entitle the plaintiff to recover for any of the cheese sold at 12 1/4 cents per pound, he must prove that it was better than cracked or second-class cheese, and, to entitle him to recover for any of the cheese sold 19 1/4 cents per pound, he must prove that it was cracked or second-class cheese. No. 2. The plaintiff cannot recover for second-class cheese, if any was delivered by him to Bloch Bros., unless such second-class cheese was of merchantable quality of that class. No. 3. In determining who was to deliver the cheese under the contract of sale of the same, the Jury are entitled to consider any and all circumstances in evidence surrounding theparties when they...