McElroy v. Long, 12419.

• Citation: 170 F.2d 345
• Decision Date: 06 November 1948
• Docket Number: No. 12419.,12419.
• Parties: McELROY v. LONG et al.
• Court: U.S. Court of Appeals — Fifth Circuit

170 F.2d 345 (1948)

McELROY v. LONG et al.

No. 12419.

United States Court of Appeals Fifth Circuit.

November 6, 1948.

Young H. Fraser and H. Fred Gober, both of Atlanta, Ga., for appellant.

Estes Doremus, of Atlanta, Ga., and Marshall T. Adams and S. H. Long, both of Tupelo, Miss., for appellees.

Before SIBLEY, WALLER, and LEE, Circuit Judges.

LEE, Circuit Judge.

In this proceeding we are called upon to determine whether, under Mississippi law, there existed an implied warranty of good condition in connection with livestock sold to appellant at auction.

The appellees, as plaintiffs below, sued the appellant in assumpsit on an open account for $3443.00, the price of 24 cows purchased by appellant at an auction conducted by appellees on March 5, 1947, in Tupelo, Mississippi. Defendant denied any liability and, by counterclaim, sought to recover from appellees the sum of $6193.88, representing the purchase price and expenses incurred in connection with cows purchased on that date, and on two previous occasions, which had died of a disease known as hemorrhagic septicemia, less the amount claimed by appellees. The defendant alleged that the plaintiffs expressly and impliedly warranted that the cows were sound, normal, and healthy at the time of sale. In answer to the counterclaim, plaintiffs averred that, purchasing at auction, defendant bought at his own risk and that the bill of sale was a contract in writing, the terms of which could not be varied by parole proof. At the close of the testimony, upon motion of the plaintiffs, the court below directed the jury to return a verdict for the plaintiffs. From the judgment entered upon that verdict defendant appealed.

In this court appellant contends (1) that the evidence was in conflict with respect to an express warranty that the cows were sound and healthy when they were sold, and that, therefore, the existence of an express warranty should have been submitted to the jury for determination; and (2) that the court erred in holding that there was no implied warranty under Mississippi law in sales of this character and that the rule of caveat emptor applied.

The evidence in the main was without dispute and briefly is to the effect that the appellees, three partners, were engaged in the auction business in Tupelo and Corinth, Miss., under the name of Huey Long Commission Co. At the auctions, the company sold, generally, cows belonging to farmers, dealers, and cow traders; it billed a purchaser immediately after accepting his bid; and the purchaser paid the amount upon taking possession of the cows he had bought. The appellant was in the dairy business in DeKalb County, Georgia. He testified that three times he bought cattle at the Commission Company auctions, suffering losses on each purchase: On November 20, 1946, he bought and paid for 24 cows; 3 of these cows died from hemorrhagic septicemia soon after reaching his dairy in Georgia. On January 29, 1947, he purchased 45 cows; 21 died from the same disease soon after reaching his dairy. On March 5, 1947, he purchased 24 cows; 11 of these died from the disease within a week after reaching his dairy. When he discovered that one of the cows among the last group purchased was sick, he stopped payment of the check which he had given to cover his purchase on that date.

The account of sale given the appellant by the Commission Company on March 5, 1947, had printed across the top of it the legend, "No guarantee against sickness or death. We act as agents only. * * *" This statement is printed on a large sign behind the auctioneer and opposite the seats of the buyers. Appellant testified that prior to the hour of the auction on March 5, he approached Mr. Long and brought to his attention the loss he had sustained from death among the cows he had purchased in November, 1946, and in January, 1947; that he stated to Mr. Long that he thought he was entitled to some consideration with respect to the cows which had died; and that Mr. Long replied, "* * * go ahead and buy what you want out of the sale ring, and whatever is right about it, we will do it."

Before the trial court directed a verdict, it inquired of the appellant's attorney whether he was insisting upon an express warranty or relying on an implied warranty, and the attorney replied, "We have to limit our cross-claim to the implied warranty." This statement in itself cannot be taken for less than an acknowledgment that there was no evidence to support an allegation of express warranty and that recovery under express warranty had been abandoned. The cause was thus rested squarely upon implied warranty.

It is clear from the evidence that appellees in the conduct of their auction business sold cattle for a large number of owners; and that the auctioneer did not, at the auction, disclose the name of his principal. It is the rule, generally, that an...