Love v. Miller

• Decision Date: 14 January 1890
• Citation: 10 S.E. 685,104 N.C. 582
• Court: North Carolina Supreme Court
• Parties: Love v. Miller.

10 S.E. 685

(104 N.C. 582)

Love

v.Miller.

Supreme Court of North Carolina.

Jan. 14, 1890.

Sale—Warranty—Latent Defects.

1. A contract of sale of cotton, "to be of the average grade of middling and nice, good stains or tinges, and not more than one bale in four to be as low as that, " constitutes a warrauty.

2. As the true quality of cotton cannot be ascertained by inspection of a sample drawn from a bale, and as the purchaser had no opportunity toinspect it before delivery, the warranty will be deemed to have extended to latent defects, and not to have been merely for a certain grade according to a particular mode of inspection.

Appeal from superior court, Gaston county; Clark, Judge.

R. W. Sandifer, for appellant. G. F. Bason and Jones & Tillett, for appellee.

Shepherd, J. This appeal presents for our consideration the following questions:

1. Was there a warranty as to the quality of the cotton? The defendants contracted to sell and deliver to the plaintiff's order 100 bales of cotton, " to be of the average grade of middling and nice, good stains or tinges, and not more than one bale in four to be as low as that." That this is a warranty is well settled by the case of Lewis v. Rountree, 78 N. C. 323, in which the following language of Mellor, J., in Jones v. Just, L. R. 3 Q. B. 197, is approved: " In general, on the sale of goods by a particular description, whether the vendee is able to inspect them or not, it is an implied term of the contract that they shall reasonably answer such description, and if they do not, it is unnecessary to put any other question to the jury." "It is not meant, " says the court, "that words of description are always a warranty; but the cases in which that is held have all something special to take them out of the rule, and to show that in those cases it was not so intended." There are no such exceptional circumstances in this case, and we have no hesitation in declaring that there was a warranty that the cotton should be of the quality described by the terms of sale.

2. Did the warranty extend to latent defects, or was it only to the effect that the cotton was to be of a certain grade by the usual mode of inspection? In Lewis v. Rountree, supra, the contract was for the sale of "strained rosin, "and the purchaser was permitted to make his selection of 517 barrels out of a lot containing more than 2, 000. He had implements with which to cut in and inspect the barrels, and he did inspect and select about 20 samples. After sale and shipment, it was found, upon inspection in New York, that the lot did not correspond with the samples, and that all of it was not strained rosin. The court said: " That plaintiffs had an opportunity to...