Jones v. George

• Decision Date: 25 March 1884
• Docket Number: Case No. 1756.
• Citation: 61 Tex. 345
• Court: Texas Supreme Court
• Parties: W. J. JONES v. R. F. GEORGE.

61 Tex. 345

W. J. JONES

v.R. F. GEORGE.

Case No. 1756.

Supreme Court of Texas.

Mar. 25, 1884.

APPEAL from Galveston. Tried below before the Hon. W. H. Stewart.

W. J. Jones brought suit against R. F. George to recover on a breach of warranty. The petition alleged that, in the year 1873, appellant was a farmer, engaged in growing Sea Island cotton on his farm, in the county of Galveston; that he had planted and cultivated about one hundred and sixty acres of land in cotton on his farm; that about the month of July, 1873, his cotton was clear of grass and weeds and in a high state of cultivation, and heavily fruited with bolls and blooms, when the cotton worm began to make its appearance in the same; that appellee George was a druggist, engaged in that business in the city of Galveston. That appellant had been informed by appellee and others that the cotton worm might be destroyed and cotton saved by the use of “Royall's Patent or Receipt for Killing Worms,” the principal ingredient of which was “Paris green;” that appellee informed him that he had the pure Paris green; that appellant, with a view of experimenting with Paris green to ascertain its effects upon the cotton plant, in the month of June, 1873, purchased of appellee a small quantity of what he, appellee, represented as Paris green, and applied it to the growing plant on his farm, and became satisfied that its application would not injure it; that this experiment was made long before the cotton worm made its appearance; that appellant, immediately after that experiment, applied to appellee for Paris green for the purpose of using the same in destroying the cotton worm, and so informed the appellee at the time of the purchase; that appellee sold to appellant one hundred and twenty-four pounds of an article or drug which he warranted to be genuine Paris green, but which was not Paris green, but some other harmless drug; that in July, 1873, the cotton worms made their appearance in appellant's said cotton, and, before they had done any damage, appellant, at great trouble and expense of labor and material, to wit, in the sum of $218.60, applied the article sold as Paris green to the growing cotton and worms on his farm, in accordance with Royall's patent or receipt. That appellant applied it to one hundred and twenty-four acres of his cotton in such a manner, to wit, according to Royall's patent or receipt, as would have destroyed the cotton worms and saved the cotton if the article sold him by appellee had been genuine Paris green; that the article was not Paris green, but some other harmless drug, and that it wholly failed to destroy the cotton worm; and that, notwithstanding its application, one hundred and twenty-four acres of appellant's cotton was wholly destroyed by the cotton worms; that the cotton was of the value of $125 per acre at the time of its destruction; that appellant was a farmer, wholly unacquainted with drugs, and particularly Paris green, and in his purchase relied entirely on the representations of appellee as to the genuineness of the article sold him; that if the article sold by appellee had been genuine Paris green, it would have destroyed the cotton worm without injury to the cotton; that it was not Paris green; that, by reason of all of which, appellant lost one hundred and twenty-four acres of his said cotton, worth $125 per acre. Appellant sues for $20,000 damages.

The appellee filed general and special demurrers, which were sustained by the court below, the cause appealed to the supreme court, and at its Galveston term, 1882, the case was reversed and remanded. See Jones v. George, 56 Tex., 149. The appellee filed general and special denial. Verdict and judgment for plaintiff for $393.25, the same being for the bill of $218.60 for labor and material, with interest.

The following was assigned as error:

2. That the court erred in giving the following charge asked by the defendant: “Seventh. Plaintiff is not entitled to recover what would have been the value of his crop had not the worm destroyed it, nor its value at or before its destruction.”

Geo. P. Finlay, for appellant, cited: Ev. W. C. Jones, p. 47; Ev. W. J. Jones, p. 52; Dunklin's Ev., p. 53; Godsey's Ev., p. 52; Tanner's Ev., p. 56; Seymour's Ev., p. 58; Mucklevoy's Ev., p. 60; Cook's Ev., p. 62; Harvin's Ev., p. 65; Patchett's Ev., p. 78; Royall's Ev., p. 71; Jones v. George, 56 Tex., 149; S. & E. T. Railway Co. v. Joachimi, 58 Tex., 452;Texas & St. Louis R. Co. v. Young, Tyler term, 1883 (60 Tex., 201);Texas & Pacific R'y Co. v. Durrett, 57 Tex., 53.C. L. Cleveland, for appellee, cited: 2 Kent's Com., 478; 1 Hilliard on Con., sec. 42, p. 92, and sec. 49, p. 99; 1 Pars. on Con., 577, 584 and notes; Chandler v. Lopuz, 2 Crooke, p. 27; Barnard v. Kellogg, 10 Wall., 359; Deming v. Foster, 42 N. H., 165;Brantley v. Thomas, 22 Tex., 270;McClung v. Kelly, 21 Iowa, 508; Port Carbon Co. v. Graves, 68 Pa. St., 149; Omerod v. Hutto, 13 M. & W.; Cooper v. Newman, 45 N. H., 339; Sedgwick on Damages, p. 71; S. & E. T. R'y v. Joachimi, 58 Tex., 459; T. & T. R'y Co. v. Durrett, 57 Tex., 53;Texas & St. Louis R. Co. v. Young, Tyler term, 1883 (60 Tex., 201);Wright v. Davenport, 44 Tex., 164;Calvit v. McFadden, 13 Tex., 324; De la Zerda v. Korn, 25 Tex. Sup., 188; Scranton v. Tilley, 16 Tex., 185.

STAYTON, ASSOCIATE JUSTICE.

It is not pretended that the seller warranted the article sold to be such a substance as would accomplish the purpose desired by the buyer; but it is certainly true that he sold and delivered it as and for “Paris green;” that it was for this the parties mutually contracted, and that the delivery of something else was not a compliance with the contract, it not being shown that the purchaser bought the substance delivered, taking upon himself not only the risk of quality, which is the matter to which warranty applies, but also of kind. It is evident that the buyer relied on and trusted the representation of the seller.

If the article delivered had been “Paris green,” but of an inferior quality, then the question would arise, the seller knowing for what purpose it was bought, whether there was an implied warranty in the sale of such an article, for such a known purpose, that the article delivered should be of a quality necessary to accomplish the purpose which a good quality of “Paris green” would accomplish, in the matter in which the buyer intended to use it.

That, however, is not this case. The appellant contracted to buy, and the appellee contracted to sell and deliver, “Paris green,” and not some other substance; but “chrome green,” a substance not having the properties of “Paris green,” though resembling it in appearance, was delivered.

In such cases, technically, no warranty arises, but there is an implied contract that the thing sold and delivered is of the kind which the parties contract with reference to.

Speaking upon this subject an elementary writer says: “A good deal of confusion has arisen in many of the cases upon this subject from the unfortunate use of the word warranty. Two things have been confounded together. A warranty is an express or implied statement of something which a party undertakes shall be part of a contract, and, though part of the contract, collateral to the express object of it.

But in many of the cases the circumstance of a party selling a particular thing by its proper description has been called a warranty, and the breach of such a contract a breach of warranty; but it would be better to distinguish such cases as a non-compliance with a contract which a party has engaged to fulfil; as if a man offers to buy peas of another and he sends him beans, he does not perform his contract; but that is not a warranty; there is no warranty that he should sell him peas; the contract is to sell peas; and if he sells him anything else in their stead it is a non-performance of it.” Benjamin on Sales, 600, and cases cited in notes; Pollock's Principles of Contracts, 465; Story on Contracts, 1079, and cases cited; 2 Sutherland on Damages, 411, and cases cited in note 1.

While the rights of parties who buy under an express or implied warranty as to quality of thing sold, and of those persons who contract for one thing and another is delivered to them, in reference to remedy in some respects may differ, yet, when rescission has become impracticable, when the thing delivered has been consumed in testing it, it would seem, whether the action be on a warranty or breach of contract, the relief would be the same.

The liability of the appellee, under the facts in evidence, is as broad as though he had warranted the substance delivered to be “Paris green.” The measure of that liability, and the extent to which it might be affected by the failure of the appellant to use due care to avoid injury to himself from the appellee's breach of contract, are matters for after consideration.

In Wolcott, Johnson & Co. v. Mount, 36 N. J. Law, 266, the rule is thus stated: “The right to repudiate the purchase for the nonconformity of the article delivered to the description under which it was sold is universally conceded. That right is founded on the engagement of the vendor by such description that the article delivered shall correspond with the description. The obligation rests upon the contract. Substantially the description is warranted. It will comport with sound legal principles to treat such engagements as conditions in order to afford the purchaser a more enlarged remedy by rescission than he would have on a simple warranty; but when his situation has been changed, and the remedy, by repudiation, has become impossible, no reason supported by principle can be adduced why he should not have upon his contract such redress as is practicable under the circumstances. In that situation of affairs the only available means of redress is by an action for damages. Whether the action shall be technically considered an action on the warranty, or an...