Lexington Grocery Co. v. Vernay

• Citation: 83 S.E. 567,167 N.C. 427
• Decision Date: 25 November 1914
• Docket Number: 373.
• Parties: LEXINGTON GROCERY CO. v. VERNAY.
• Court: North Carolina Supreme Court

83 S.E. 567

167 N.C. 427

LEXINGTON GROCERY CO. v. VERNAY.

No. 373.

Supreme Court of North Carolina

November 25, 1914

Appeal from Superior Court, Davidson County; Devin, Judge.

Action by the Lexington Grocery Company against F. S. Vernay. From a judgment for plaintiff, defendant appeals. Affirmed.

This is a civil action upon this issue:

Is defendant indebted to the plaintiff, and, if so, in what amount? Answer: Yes; $350.

Clark C.J., dissenting.

In an action for breach of a warranty, two issues should be submitted to the jury, one as to the warranty, and the other as to damages.

L. M Swink, of Winston-Salem, and Walser & Walser, of Lexington for appellant.

Emery E. Raper and McCrary & McCrary, all of Lexington, for appellee.

BROWN J.

We do not altogether approve of the form of the issue in this case although it is not excepted to. The action is brought to recover damages for a breach of warranty in the sale of a lot of red marrow beans. In such cases, it is better to have two issues; one relating to the warranty, and the other to the damages.

The evidence for the plaintiff tends to prove that he purchased from the defendant and paid for in November, 1912, a car load of red marrow beans; that on arrival he inspected them, and found them to be apparently in good condition, so far as could be ascertained on the outside. The plaintiff sold 77 bags of the beans out of the whole shipment of 150 bags. The merchants to whom he sold these beans returned them with the complaint that they were not salable. There is evidence tending to prove that the red marrow bean is a fine salable vegetable used exclusively for table use, with a soft texture, and cooks easily, and will not keep as well during the summer as some beans.

The evidence tends to prove that, while this shipment of beans looked hard and natural, they could not be cooked, and, after being cooked for four or five hours, remained as hard as before, so much so that they would "rattle in the plate," and that these beans now, after the lapse of years, are still hard, contrary to their nature; that the seasons have had no effect on them, whereas the normal and perfect red marrow bean in its natural state cannot be carried over summer without becoming rotten.

The defendant excepts to evidence tending to prove that good red marrow beans would mould and rot and get wormy over summer when kept from one season to the other, and that these particular beans had not been affected that way, but still remained very hard and looked natural. We think this evidence was competent to show that the beans sold the plaintiff were not of an edible quality, and were not the kind of beans which he purchased from the defendant.

The only other assignment of error relates to the refusal to nonsuit the plaintiff, upon the ground that there is no implied warranty. This contention cannot be maintained. It is well settled by repeated decisions that, on a sale of goods by name, there is a condition implied that they shall be merchantable and salable under that name, and it is of no consequence whether the seller is the manufacturer or not, or whether...