Magee Laundry & Cleaners, Inc. v. Harwell Appliance Co., Inc.

• Citation: 185 So. 571,184 Miss. 435
• Decision Date: 16 January 1939
• Docket Number: 33473
• Parties: MAGEE LAUNDRY & CLEANERS, Inc., v. HARWELL APPLIANCE CO., INC
• Court: Mississippi Supreme Court

185 So. 571

184 Miss. 435

MAGEE LAUNDRY & CLEANERS, Inc., v. HARWELL APPLIANCE CO., INC

No. 33473

Supreme Court of Mississippi, Division B

January 16, 1939

Suggestion Of Error Overruled February 27, 1939.

APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.

Action by the Harwell Appliance Company, Inc., against the Magee Laundry & Cleaners, Inc., on a note. Judgment of the county court for defendant was reversed by the circuit court and judgment rendered for plaintiff, and defendant appeals. Reversed and rendered.

Reversed and judgment here for appellant.

Robertson & Robertson, of Jackson, for appellant.

The appellee, speaking through its duly authorized agent Pritchard, represented to appellant that it would install a machine in appellant's office which would air condition that office and make it comfortable to work in. The term "air condition, " as to any one seeing or hearing the word, has a clear meaning all its own.

In common every day parlance, the appellee speaking through Pritchard told appellant that the unit sold would make the office comfortable and pleasant to work in so far as heat and humidity were concerned, and if the air conditioning unit sent to appellant by appellee did not accomplish this result then it was worse than useless and merely in the way.

The case at bar, in which the appellant was induced by the salesman for the appellee to purchase an air conditioning machine to "air condition" his office and about which machine appellant knew nothing but relied solely upon the representations, expert knowledge and judgment of the appellee, is very similar to the case of J. A. Fay & Egan Co. v. Louis Cohn & Bros., 130 So. 290, 158 Miss. 733.

Where goods are purchased on material representations of the seller, and not upon the purchaser's own judgment, and the representations are false, and induced the purchaser to make the bargain, the contract cannot stand, regardless of whether the seller had an actual fraudulent intent or not. Putting it differently, if the seller makes material representations of fact without knowing whether they are true or false, this is fraud in law, and the seller must make his statement good.

Hall v. Thompson, 1 S. & M. 443; Oswald v. McGehee, 28 Miss. 340; Rimer v. Dugan, 39 Miss. 483, 77 Am. Dec. 687; Lindsey v. Lindsey, 34 Miss. 432; Alexander v. Meek, 132 Miss. 298, 96 So. 101; Lumbermen's Supply Co. v. Poplarville Sawmill Co., 78 So. 157, 117 Miss. 274.

Where the seller delivers machinery which is defective for the purposes for which it is sold, and the agents of the seller attempt to make it operate and then and there discover that it is not the kind and character the seller agreed to deliver, and thereafter attempt at different times to make it work, without success, and the buyer holds the machine and urges the agents of the seller to fix it, and upon being informed that no further work will be done on it by the seller, he may, upon returning it in its original condition, with notice that he will not accept it, demand of the seller the purchase price paid.

J. E. Case Threshing Mach. Co. v. Walter, 197 Ky. 348, 246 S.W. 831.

The circuit court erred in holding that there was no latent defect. The latent defect, discoverable only when really hot weather set in which came after the appellant had signed the note, was that the air-conditioning unit sent out by appellee just couldn't air-condition and make comfortable appellant's office.

A defect which reasonably careful inspection will not reveal is a "latent defect."

Schaff v. Ellison, 255 S.W. 680; L. McManus Co. v. Drexel Furniture Co., 68 S.E. 859, 8 Ga.App. 158; Viking Refrigerators, Inc. v. Farrell, 176 So. 910, 189 Miss. 181.

The circuit court erred in holding that there was no failure of consideration.

The circuit court erred in reversing the judgment of the county court and rendering judgment for the appellee. Laws of 1932, Chapter 140, sec. 1.

The county court passed on the facts, and found that there was a warranty and a breach thereof in that there was a latent defect, to-wit: the complete inability to carry the heat load when the weather grew warmer, that the appellant did rely on the false representations of the seller and not on his own judgment. The county court having found these things, the circuit court sitting as an appellate tribunal could not substitute its judgment for that of the county court which sat as judge and jury and found the facts.

Miss. Cent. R. Co. v. Roberts, 160 So. 604, 173 Miss. 487.

Thos. S. Bratton, of Jackson, for appellee.

There was no warranty in this case. The whole transaction except the giving of the note was oral, and the only evidence introduced in regard to the warranty was that of defendant's manager, who testified that the salesman told him that it would air condition his office. This statement was too general to constitute a warranty. When questioned as to what degree the office was to be cooled, he testified that nothing was said about how cool, or what the difference was to be between the temperature of the office and the temperature outside.

Of course, we recognize the law that an agent may be given expressed power to warrant articles in behalf of his principal, but we submit that no such authority has been shown. In selling the agent must adhere to what is usual and customary. If a warranty is a usual incident to the sale of a particular article, and the agent in effecting a sale may bind his principal by a warranty of title, quality or condition of the thing sold, but unless sanctioned by custom, an agent will not be deemed to have power to incorporate a warranty as a term of the contract of sale.

21 R. C. L., page 858, sec. 36, and page 866; Elliott on Contracts, sec. 129; 35 Cyc. 410.

If a specific article or one known, defined and described is ordered and furnished, there is no implied warranty of fitness for particular purpose, although the seller is informed of such purpose, for the reason that an undertaking as to fitness is not implied when the buyer gets what he bargained for. So, too, there is no implied warranty that the article is as suitable for the purpose as other articles of the same kind.

35 Cyc. 400-401; Girard Motor Co. v. McEachern, 150 Miss. 437; 55 C. J. pages 717 and 757; Seitz v. Brewers Refrigerating Machine Co., 141 U.S. 510, 35 L.Ed. 837. The evidence in this case shows that the air conditioning machine was placed in defendant's office on May 12, 1937, where it remained until June 4, 1937, on trial, and on said date of June 4th, the defendant purchased the machine, paying part cash, and executing the note here sued on for the balance, and kept and used the machine all during the season of 1937--that is, until about the maturity date of the note in September, when, for the first time, the defendant wanted to rescind the contract and return the machine. If the machine was warranted as contended by the defendant, and there was a breach of warranty, in order to rescind the contract, the defendant would have had to act promptly. Where the purchaser is dissatisfied with the property and wishes to rescind, he must return within a reasonable time, and will waive the right to do so by subsequent use.

Ware v. Houghton, 41 Miss. 370; Carver Gin Co. v. Gaddy, 62 Miss. 201; Stillwell, Bierce & Smith, Vaile Co. v. Biloxi Canning Co., 78 Miss. 779, 29 So. 513; Benjamin Sales (6 Am. Ed. by Bennett) sec. 703; Lumbermen's Supply Co. v. Poplarville Saw Mill Co., 117 Miss. 274; J. C. Colt Co. v. Fuller, 144 Miss. 490; Holcomb & Hoke Mfg. Co. v. Osterberg, 72 A.L.R. 722.

We respectfully submit that the learned circuit judge did not err in reversing the judgment of the county court,...