Louis Pizitz Dry Goods Co. v. House of Van Praag, Inc.

• Decision Date: 04 April 1929
• Docket Number: 6 Div. 199.
• Citation: 121 So. 701,219 Ala. 183
• Parties: LOUIS PIZITZ DRY GOODS CO. v. HOUSE OF VAN PRAAG, INC.
• Court: Alabama Supreme Court

121 So. 701

219 Ala. 183

LOUIS PIZITZ DRY GOODS CO. v. HOUSE OF VAN PRAAG, INC.

6 Div. 199.

Supreme Court of Alabama

April 4, 1929

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action in common assumpsit by the House of Van Praag, Incorporated against the Louis Pizitz Dry Goods Company. Judgment for plaintiff and defendant appeals. Affirmed.

Leader & Ullman, of Birmingham, for appellant.

Ritter Wynn & Carmichael, of Birmingham, for appellee.

THOMAS J.

The suit was for the purchase price of refrigerators sold to appellant in New York. The complaint was on the common counts, and the pleas were general issue and special pleas 2 and 3. Demurrers were overruled as to the plea of express warranty (plea 2), and sustained to plea 3. The case was tried by the court without a jury; there was no special finding of fact demanded or had; and the judgment was for plaintiff.

The judgment of the court was equivalent to the verdict of a jury that the appellate court will not disturb, unless the conclusion reached by the judgment appealed from is contrary to the weight of the evidence, or there is no evidence to support the judgment. Pinckard v. Cassels, 195 Ala 353, 70 So. 153; Benton Merc. Co. v. Owensboro Wagon Co., 207 Ala. 49, 91 So. 784; Odom v. County Coal Co., 212 Ala. 374, 103 So. 42; Acts of 1915, p. 824; Ann. Code of 1928, § 9498, Marsh v. Elba Bank, 205 Ala. 425, 88 So. 423; Bowling v. State, 204 Ala 405, 85 So. 500. See, also, Bookmiller v. Jones, 216 Ala. 298, 113 So. 32; Hall v. Brooks, 209 Ala. 486, 96 So. 341; Hackett v. Cash, 196 Ala. 403, 72 So. 52.

We have examined the evidence; it was conflicting, and has the effect of a verdict of a jury. Shows v. Jackson, 215 Ala. 256, 110 So. 273; Bookmiller v. Jones, supra. It is shown that the goods were purchased by appellant, after an inspection by the agent, from a dealer and not a manufacturer, and there was no express or implied warranty of quality or soundness. Moore v. Barber Asphalt Co., 118 Ala. 563, 23 So. 798; Herring v. Skaggs, 62 Ala. 180, 34 Am. Rep. 4. See other authorities collected in Gulf Electric Co. v. Fried, 119 So. 691, 692, in this court. In New York the rule is the same, Whitman v. Jacobson (Sup.) 119 N.Y.S. 246; Piller v. Piser, 67 Misc. 445, 123 N.Y.S. 105; and in federal courts, Bernard v. Kellogg, 77 U.S. (10 Wall.) 383, 19 L.Ed. 987; Slaughter v. Gerson, 80 U.S. (13 Wall.) 379, 20 L.Ed. 627. In the case of Snow v. Schomacker Mfg. Co., 69 Ala. 111, 44 Am. Rep. 509, the sale was by a "manufacturer" rather than a "dealer"; and in Franklin Motor Car Co. v. Ratliff, 207 Ala. 341, 92 So. 449, the declaration was that the automobile dealer impliedly warranted that the car was reasonably fit for use as of that kind and class, and that it would not be damaged between sale and delivery. See, also, Troy Groc. Co. v. Potter & Wrightington, 139 Ala. 359, 36 So. 12.

There was no reversible error in refusing to allow the witness Moser to say it was not such an ice "box that Louis Pizitz Dry Goods Company could conscientiously sell to the public and represent as being a merchantable box," or whether it was "a box that you could sell with a warranty that it was merchantable." It called for the mental and moral status of that witness, rather than the fact of intrinsic worth and physical composition of the subject-matter.

The witness was immediately permitted to state that these boxes are not reasonably adapted to the purpose for which they were sold, were not merchantable, and that a box of that description, made as that box was made, has no market value to-day: that "that box should not retail at the outside over $25.00. It shouldn't wholesale over $14.00 or $15.00 at the outside;" that in a standard "ice box the outside material is made either of wood or metal"; that the subject of said purchase was not so constructed and not that kind of a box.

There was conflict in the evidence as to the terms of sale after inspection by appellant's agent. Plaintiff's witness, Stillman, stated that Mendelsohn and Goldsmith were present and conducted the negotiations for defendant, inspecting and examining the refrigerators for a period variantly stated as one-half or three-quarters of an hour, and that "the sale was made by" witness, and that "the goods were sold as are." This tendency of the evidence was supported by Goldsmith, that they inspected the articles "less than half an hour"; that "a portion were open to inspection"; that those in "frame boards" could be seen "fronts and backs"; that it was stated that the same were sold originally to Gimble Department Store and rejected "because they arrived too late"; that there was some defect about the hardware, and was so stated before purchase; and this witness did not state the boxes were represented or warranted as "standard boxes."

Defendant's evidence by Mendelsohn was to the effect that "Mr. Solomon told me these ice boxes were sold to Gimble Brothers but arrived too late and they refused to accept them, and that he would let me have them at a special price. He said these boxes were manufactured by a standard manufacturer, were of standard make and had solid sides and solid cork lined tops; and he said they were worth $39.50, and that I could buy them at a price, and the only thing that was wrong with them was that the handles on the doors were a little bit off, and that could be easily fixed."

"Q. Did you see the ice boxes and examine them? Tell in detail just what kind of boxes they were; what examination you made of them, and in what respects they measure up to the representation made by Mr. Solomon. A. I only saw one ice box. Mr. Solomon opened the door and showed me it was porcelain lined, and he showed me that the hinge on the door was the only thing that was the matter with the ice box. He said the rest of the boxes were of standard make, make by a standard manufacturer, and that they were solid cork lined tops and sides. That was all."

Witness further stated that he called Mr. Pizitz by telephone and related to him...