J. B. Colt Co. v. McCullough

• Decision Date: 02 November 1925
• Docket Number: 25085
• Citation: 141 Miss. 328,105 So. 744
• Court: Mississippi Supreme Court
• Parties: J. B. COLT CO. v. MCCULLOUGH. [*]

105 So. 744

141 Miss. 328

J. B. COLT CO. v. MCCULLOUGH. ^[*]

No. 25085

Supreme Court of Mississippi

November 2, 1925

Division B

(Division B.).

1. EVIDENCE,.. If written contract contains warranties, evidence of oral warranties, not made subsequent thereto for additional consideration, are inadmissible.

Where a contract in writing contains stipulated warranties, evidence of oral warranties, not made subsequent to the execution of the contract for additional consideration, are inadmissible.

2 EVIDENCE. Terms of written contract, negotiated by agent stipulating that no representation by agent had been made other than those in contract, cannot be varied by showing other representations made at time of signing.

Where a written contract was negotiated by an agent, and contained a written stipulation that no agent had made any representation other than those embraced in the contract, and such contract shows on its face that it was to be sent to the principal at its home office for acceptance or rejection, the terms of the contract cannot be varied by showing other representations made at the time of the signing of the contract by the first party as the contract is the sole repository of its terms. J B. Colt Co. v. Odom, 136 Miss. 651, 101 So. 853, cited.

3 SALES. Buyer of lighting plant, not promptly tendering it back on discovering "defects," held entitled to recover only difference between purchase price and actual value of plant.

Where a lighting plant contract contained a warranty as to material and workmanship, and the plant is installed and accepted by the buyer, and is not wholly worthless, and is not promptly tendered back to the seller on discovering "defects," the buyer can only recover for defects; i. e., the difference between the purchase price and the actual value of the plant as installed.

HON. T. L. LAMB, Judge.

APPEAL from circuit court of Choctaw county, HON. T. L. LAMB, Judge.

Action by the J. B. Colt Company against Sam T. McCullough. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

J. D. Guyton, for appellant.

Our statute, section 744, Code of 1906, narrows the scope of the general issue and requires that notice must be given of any new matter intended to be relied on as a defense. If such notice is not given, proof cannot be made of any such fact relied on at the trial in defense. Tittle v. Bonner, 53 Miss. 578; Grayson v. Brooks, Neeley Co., 64 Miss. 417, 1 So. 482; Alliance Trust Co. v. Nettleton Hdw. Co., 74 Miss. 593, 21 So. 399; Y. & M. V. R. R. Co. v. Grant, 86 Miss. 569, 38 So. 502.

Narrowed down to its real meaning and tersely stating its purpose and effect, the plea of defendant is twofold: (1) That there was a breach of the warranty or guarantee to the effect that the apparatus would give "perfect satisfaction" and failed to do so. (2) That the apparatus was worthless; in other words, there was a total failure of consideration.

It will be noted that partial failure of consideration is not pleaded and proof thereof cannot be made under the general issue. 8 C. J., Bills and Notes, section 1265; Brewer v. Harris, 2 S. & M. 84. Mrs. McCullough testified that she gave the plant all attention, recharged it, etc.; and that for six or seven months it worked pretty well, and after it was fixed once or twice, it would work all right for two or three weeks and get out of fix again. And the letters she wrote for the defendant show that the only complaint the defendant or his wife, as its operator, has to make was that it used too much carbide. All this testimony shows clearly that this plant was not a failure at all, that it was not worthless even as a light plant, and that all it needed was keeping the joints painted so the carbide gas would not leak out. It is clear that there was not a total failure of consideration. Since it is clear that there was not a total failure of consideration, then it follows that the plaintiff's requested instruction to find for it in the total amount sued for, as shown on the face of the note, should have been given.

Proof of partial failure of consideration will not justify an instruction on the hypothesis of total failure. 8 C. J., Bills and Notes, section 1397, page 1078, citing Curry v. Harden, 109 Mo.App. 678. And a note thereunder says that it is error to give an instruction which fails to distinguish between total and partial failure of consideration. In addition, the defendant signed the report of the installer of this plant, under the heading of "Purchaser's Statement," saving: "The installation is complete and satisfactory."

It is submitted that the plea of defendant does not put in issue an implied warranty of fitness for purpose intended. The written order clearly states that it is the entire contract between the parties and contains an express warranty that the apparatus sold is a thoroughly durable, galvanized acetylene generator, automatic in action, and of good workmanship and material. This express warranty excludes any implied warranty of fitness. 35 Cyc. 392; 35 Cyc. 447, 448 and 451.

This case must be reversed.

Allen & Morgan, for appellee.

The appellant relies on the doctrine of "caveat emptor," which, of course would not apply in this case. The issue was fully joined on a warranty, a guaranty and a misrepresentation of quality and performance. The court fully instructed the jury in the case and the jury on hearing the facts and with the law as its guide, then found for the defendant.

Appellee bought from appellant a light plant, giving the note here in question as part of the purchase price for the same. He received no light plant, but only a pile of junk, worthless and useless, and neither this court nor the lower court is warranted in dealing with conjectures as to the value of the stuff delivered to the appellee by appellant.

The pleadings clearly put the warranty in issue, the notice pleads it and the reply makes the order which embraces the warranty, even so thin, a part of the issue, and on that very lead he tried to evade responsibility and avoid the breach of the warranty of the plant. We submit, therefore, that there was no error prejudicial to the appellant committed in the record.

OPINION

ETHRIDGE, J.

The appellant sued the appellee upon a promissory note dated June 2, 1919, and payable one year after date. The defendant pleaded the general issue, and gave notice under the general issue that...