McCaa v. Elam Drug Co.

• Decision Date: 04 February 1897
• Citation: 114 Ala. 74,21 So. 479
• Parties: MCCAA v. ELAM DRUG CO.
• Court: Alabama Supreme Court

21 So. 479

114 Ala. 74

MCCAA v. ELAM DRUG CO.

Supreme Court of Alabama

February 4, 1897

Appeal from city court of Anniston; James W. Lapsley, Judge.

Action by Addie N. McCaa against the Elam Drug Company. From a judgment sustaining demurrers to the complaint, plaintiff appeals. Reversed.

The complaint contained three counts, which, exclusive of the claim for special damages, which is stated in the opinion are as follows: "(1) The plaintiff claims of the defendant the sum of five hundred dollars for this: That on or about the 31st day of October, 1894, plaintiff, being the owner and occupier of a frame dwelling house in the city of Anniston, Ala., applied to the defendant, which was then a dealer in paints, oils, and painters' materials, to furnish suitable paints and oils for the painting of said house; that defendant, being, as aforesaid, a dealer in paints, oils, and painters' materials, and knowing the purpose for which plaintiff desired said paints and oils undertook and agreed with plaintiff to supply her with suitable paints and oils, to be used and applied in the painting of said house, and that plaintiff paid defendant the sum of sixty-four 50/100 dollars for the paints and oils so supplied; that plaintiff employed painters of reasonable skill and care to mix and apply said paints and oils to said house, and that said painters mixed and applied said paints and oils with skill and care to said house; that the oil supplied by defendant to plaintiff for the purpose aforesaid and so used by plaintiff, was not reasonably fit for the purpose for which it was supplied, and that, it consequence the paint upon said house did not dry out in a reasonable time, but remained soft and sticky for a long time, to wit, eight months, and that, since said paint has begun to dry, the color thereof has changed, so that said house is in a worse condition than before it was painted, as above set out, and that the slats in the blinds to the windows of said house, which were painted with said paints and oils, have become so gummy as to be fixed and immovable, utterly destroying their value as blinds of that character; that the paints and oils so furnished by defendant to plaintiff, after being mixed, were utterly worthless and unsuitable for the purpose for which they were supplied, in consequence of the unsuitable quality of said oils. (2) The plaintiff claims of the defendant the sum of five hundred dollars, for this: That on or about the 31st day of October, 1894, plaintiff, being the owner and occupier of a frame dwelling house in the city of Anniston, Ala., applied to the defendant, which was then a dealer in paints, oils, and painters' materials, to furnish suitable paints and oils for the painting of said house; that defendant, being, as aforesaid, a dealer in paints, oils, and painters' materials, and knowing the purpose for which plaintiff desired said paints and oils, undertook and agreed with plaintiff to supply her with suitable paints and oils, to be used and applied in the painting of said house, and that plaintiff paid defendant the sum of sixty-four 50/100 dollars for the paints and oils so supplied, and that, an examination of the paints and oils so supplied being impracticable from the nature of said articles, plaintiff relied upon the skill and judgment of defendant to furnish such articles of suitable quality to be used for the purpose aforesaid; that plaintiff employed painters of reasonable skill and care to mix and apply said paints and oils to said house, and that said painters mixed and applied said paints and oils with skill and care to said house; that the oil supplied by defendant to plaintiff was not reasonably fit for the purpose for which it was supplied, and that, in consequence thereof, the paint upon said house did not dry out in a reasonable time, but remained soft and sticky for a long time thereafter, to wit, eight months, and that, since said paint has begun to dry out, the color thereof has changed, so that said house is in a worse condition than before it was painted, as above set out, and that the slats in the blinds to the windows of said house, which were painted with said paints and oils, have become so gummy as to be fixed and immovable, utterly destroying their value as blinds of that character; that the paints and oils so furnished by defendant to plaintiff, after being mixed, were utterly worthless and unsuitable for the purpose for which they were supplied, in consequence of the unsuitable quality of the oils. (3) The plaintiff claims of the defendant the further sum of five hundred dollars, for this: That on or about the 31st day of October, 1894, plaintiff, being the owner and occupier of a frame dwelling house in the city of Anniston, Ala., applied to the defendant, which was then a dealer in paints, oils, and painters' materials, to furnish the paints, painters' materials, and pure raw linseed oil, to be used in the painting of said house; that defendant, being, as aforesaid, a dealer is paints, oils, and painters' materials, and knowing the purpose for which plaintiff desired said paints, painters' materials, and pure raw linseed oil, undertook and agreed with plaintiff to furnish her with said paints, painters' materials, and pure raw linseed oil, to be used and applied in the painting of said house, and, before the delivery of said material and oil to plaintiff, she paid to defendant the sum of sixty-four 50/100 dollars, the amount of defendant's bill therefor; that, an examination of the oil so furnished by defendant to plaintiff being impracticable from the nature of the article, plaintiff relied upon the skill and judgment of defendant to supply her with pure raw linseed oil for the purpose aforesaid; that, after such payment, defendant did supply to plaintiff an oil for the purpose aforesaid, but said oil so supplied was not pure raw linseed oil, as defendant had contracted as above to furnish to plaintiff; that plaintiff employed painters of reasonable skill and care to mix and apply the paints and oil so furnished as aforesaid by defendant to plaintiff for the purpose of painting said house, and that said painters mixed and applied said paints and oils with reasonable skill and care to said house; that said oil so supplied by defendant to plaintiff, not being pure raw linseed oil, as defendant had undertaken and agreed to supply plaintiff as aforesaid, when mixed and applied with the paints to said house as aforesaid, the paint did not dry out in a reasonable time, but remained soft and sticky for a long time thereafter, to wit, eight months, and that, since said paint has begun to dry out, the color thereof has changed, so that said house is in a worse condition than before it was painted, as above set out, and that the slats in the blinds to the windows of said house, which were painted with said paints and oils, have become so gummy as to be fixed and immovable, utterly destroying their value as blinds of that character; that, in consequence of the oil aforesaid not being pure raw linseed oil, the paints and other material with which it was mixed for the purpose of painting said house were rendered worthless and unsuitable for said purpose."

To each count of the complaint the defendant interposed the following grounds of demurrer: (1) For that the allegations of the complaint show no cause of action against the defendant. (2) For that it sufficiently appears that the defendant is not a manufacturer, but is a merchant, and sold the oils or paints or materials alleged to have been purchased by the plaintiff in the regular course of business. (3) For that it is not alleged that the defendant warranted that the oils, paints, or materials were fit or suitable for the particular purpose for which the plaintiff desired to use them. (4) For that it does not appear but that the defendant, in good faith, delivered to the plaintiff the oils and paints purchased by her, and that the same were accepted and received by her. (5) For that it sufficiently appears from the allegations of the complaint that the defendant did deliver to the plaintiff the oils or paints or materials purchased by her, and the same were accepted by the plaintiff without any warranty on defendant's part as to the quality or suitableness of such material. (6) For that the damages claimed in the complaint are too remote. (7) And for that it is alleged as a conclusion that it was impracticable for the plaintiff to inspect the paints and oils purchased of the defendant, but no sufficient facts are stated to enable the court to say whether or not an inspection was impracticable. The court sustained the demurrers, and to this ruling the plaintiff separately excepted.

Cassady, Blackwell & Keith, for appellant.

Knox, Bowie & Pelham, for appellee.

COLEMAN J.

The plaintiff (appellant) purchased paints and oils from the defendant drug company, a dealer in such articles of merchandise, to be used by her in painting her dwelling house, the defendant knowing the use for which said articles were purchased. The articles were delivered to plaintiff paid for, and used. Afterwards the plaintiff discovered, as averred, that the paints and oils were worthless, and proved an injury to the building, instead of a benefit. She sued to recover damages, claiming, as special damages, the purchase money paid for the oils and paints, the amount paid to workmen for painting the house, and damage done to the building by reason of the inferior material. The liability of the defendant, as set up in the complaint, was...