Mills v. W. Supply Co.
| Decision Date | 18 January 1916 |
| Docket Number | Case Number: 6672 |
| Parties | ST. LOUIS CORDAGE MILLS v. WESTERN SUPPLY CO. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEARANCE--General Appearance--Motion to Dismiss. Where defendant seeks to enter special appearance in a cause by motion and sets forth therein both jurisdictional and nonjurisdictional grounds for dismissal, the filing of such motion amounts to a general appearance, and the fact that he denominates it a special appearance avails him nothing.
2. GARNISHMENT--Bond to Discharge Garnishee-- Liability of Obligors. Section 4838, Rev. Laws 1910, being section 5727, Comp. Law 1909, provides: "The defendant may, at any time after the garnishment affidavit is filed, and before judgment, file with the clerk of the court an undertaking executed by at least two securities, resident freeholders of the state, to the effect that they will, on demand, pay to the plaintiff the amount of the judgment that may be recovered against such defendant in the action, with all costs not exceeding a sum specified, which sum shall not be less than double the amount demanded by the complaint on file, or in such less sum as the court, upon application direct." And sections 4839 and 5728, respectively, of the same statutes, contain the following: Held, that the execution, filing, and approval of a bond in compliance with these statutes, estops the defendant from questioning the regularity of the garnishment proceedings, and renders the obligors on the bond absolutely liable for the amount of any judgment the plaintiff may recover in the action, without regard to whether the garnishment proceedings were regular or not.
3. SALES--"Warranty"--Representations by Seller. No particular words or form of expression are necessary to create a warranty, nor need the word "warranty" be used. If the representation is positive and relates to a matter of fact, and not to an expression of opinion, and the other party receives the statement as true, and relies and acts on it in making a trade, such representation will constitute a "warranty."
4. PRINCIPAL AND AGENT--Power of Agent--Sales--Warranty of Quality. General authority given by a principal to an agent to sell personal property carries with it, by necessary implication, the power to warrant the quality of the property so as to bind the owner.
5. SAME-- Authority of Agent--Question for Jury. The apparent authority of an agent is to be gathered from all the facts and circumstances in evidence and is a question of fact for the jury.
R. W. Kellough and Lee Daniel, for plaintiff in error.
Bell & Fellows, for defendant in error.
¶1 This action was brought in the county court of Tulsa county on the 19th day of April, 1913. The petition alleges that plaintiff is a domestic, and the defendant a foreign corporation; that in October, 1912, plaintiff purchased from defendant two Trojan cables, for which it paid the sum of $ 925.53; that said purchase and sale was made under the express representation and warranty of defendant that said cables were first-class cables, of superior quality, and suitable for the use to which such cables were ordinarily put, viz., drilling, repairing, and operating oil and gas wells; that plaintiff relied on said warranty, and believed said representations and warranty to be true, and was induced thereby to make purchase thereof; but said cables were not of the quality represented, and were of an inferior grade and quality, and by much less than ordinary use they became stranded and drew, and unfit for the use and purpose for which they were purchased by plaintiff. Plaintiff further alleges that it sold said cables in its regular course of retail business, and, because of the inferior grade and quality thereof, it was compelled to pay to its vendee the sum of $ 300, which was a just and fair difference in the price paid to defendant for said cables and the actual value thereof, and by reason thereof plaintiff was damaged in the sum of $ 300, for which he prays judgment. The parties will be designated plaintiff and defendant herein, the same as below. After the commencement of the suit, plaintiff instituted garnishment proceedings against the Oklahoma Iron Works, a local corporation. The defendant attempted to question the jurisdiction of the court, because of irregularities in the praecipe for, as well as the issuance and service of, summons; but we find that all these objections were waived by the appearance of the defendant, at different times, and seeking to call into power the affirmative action of the court. The motion of defendant to set aside and quash the summons, and service thereof, for the reason that the defendant had not been properly named, filed on the 23d day of May, 1913, does not raise or question the jurisdiction of the court, and especially is this true where the motion is not supported by affidavit or other offer of proof. On the same day and before the motion to quash had been passed on, the defendant filed a motion to discharge the garnishee, on the grounds: "(a) That the affidavit of garnishment was insufficient in law; (b) no bond for garnishment had been given." All defects in the garnishment proceedings were waived by the defendant filing a bond, approved by the court, providing for the payment of the judgment and costs which might be rendered against it in such action. On the 1st day of July, 1913, the court entered an order discharging the garnishee in pursuance of said bond. Section 4838, Rev. Laws 1910, provides that the garnishee may be discharged on giving bond for payment of the judgment. This statute was taken from Kansas, and, before its adoption in Oklahoma, the Supreme Court of that state, in Washer v. Campbell, 40 Kan. 747, 21 P. 671, said:
"Now, if the defendants in error in this case had a right, or would have had a right if said bond had not been given, in any manner to keep alive or preserve their garnishment proceedings so as to make them effective in satisfying the judgment which might finally be rendered in their favor 'on final hearing of this case' in the court in which the case might eventually be on such 'final hearing,' as they undoubtedly had such right, and if they gave up this right, as they undoubtedly did, for no other reason than merely the giving of the bond sued on in this case, then there was certainly a sufficient consideration for the giving of the bond, in whatever way it may be construed."
¶2 Our own court, in an attachment proceeding, in Moffitt v. Garrett, 23 Okla. 398, 100 P. 533, 32 L. R. A. (N. S.) 401, 138 Am. St. Rep. 818, says:
"An obligor on a bond to discharge an attachment, under the provisions of section 4404, Wilson's Rev. & Ann. St. Okla. 1903, conditioned that the defendant will perform the judgment of the court in the action in which the attachment is issued, is absolutely liable in an action against him on the bond for the amount recovered in the action in which the bond was given, without reference to the question whether the attachment was rightfully or wrongfully issued, and the defendant is precluded by such bond from controverting the grounds of the...
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