Missouri Bag Co. v. Chemical Delinting Co.

• Decision Date: 14 April 1952
• Docket Number: No. 38321,38321
• Citation: 58 So.2d 71,33 A.L.R.2d 501,214 Miss. 13
• Parties: , 33 A.L.R.2d 501 MISSOURI BAG CO. v. CHEMICAL DELINTING CO.
• Court: Mississippi Supreme Court

Page 71

58 So.2d 71

214 Miss. 13, 33 A.L.R.2d 501

MISSOURI BAG CO. v. CHEMICAL DELINTING CO.

No. 38321.

Supreme Court of Mississippi.

April 14, 1952.

Sams & Jolly, Columbus, for appellant.

W. J. Threadgill, John H. Holloman, and H. T. Carter, all of Columbus, for appellee.

KYLE, Justice.

The Missouri Bag Company, a nonresident corporation as plaintiff, sued the Chemical Delinting Company, defendant, in the Circuit Court of Lowndes County for a balance of $2,712.13 alleged to be due and owing to the plaintiff by the defendant on the purchase price of 17,000 Osnaburg bags sold and delivered by the plaintiff to the defendant during the month of December 1949. The defendant, in its answer to the plaintiff's declaration, admitted liability for the amount alleged to be due for the four shipments of bags referred to in the plaintiff's declaration, but alleged by way of recoupment and offset against the plaintiff's claim, that the defendant was entitled to a credit of an amount equal to the balance alleged to be due in the plaintiff's declaration as damages for a breach of warranty of quality on account of the shipment to the plaintiff of 19,000 bags during the preceding February, which were found to be defective in quality and in part unfit for use. The case was tried before a jury and a verdict was returned for the defendant and judgment entered thereon. From that judgment the plaintiff prosecutes this appeal.

The Sales Contract, under which the bags were delivered, was dated August 13, 1948, and provided for the sale by the plaintiff to the defendant of 50,000 bleached and filled Osnaburg bags to be shipped from September through December 1948 from the plaintiff's warehouse at St. Louis, Missouri. The price to be paid for the merchandise was $252.75 per thousand. The contract provided that certain printing should be done on the bags in three colors, subject to quantity differentials; shipments were made under the contract from time to time over a period extending through December 1949 and payments were made for all bags delivered prior to the dates of delivery of the 17,000 bags mentioned in the plaintiff's declaration. The total invoice price of the 17,000 bags delivered in December 1949 was $4,902.31. The account attached to the declaration showed a memorandum credit of $190 and a payment on the account of $2,000 leaving a balance due of $2,712.31.

J. H. Pollyea, the vice president of the Missouri Bag Company, plaintiff, testified as the only witness for the plaintiff. Pollyea testified that the plaintiff received shipping instructions from the defendant during the month of December 1949 for the shipment of the 17,000 bags and that the bags were immediately manufactured and shipped to the defendant; that the last shipment under the December 1949 order was made on December 17, 1949; that the account became due on December 27, 1949; that one payment in the amount of $2,000 had been made on the account on May 31, 1950; and that the additional credit of $190 had been allowed in an effort to make an adjustment of the controversy involved in the claim for recoupment set out in the defendant's answer.

Pollyea testified that the only complaint that he had received concerning the defective condition of the bags shipped to the defendant during the month of February 1949, was a verbal complaint which had been relayed to him by one Milton Yawitz, who was interested in the Chemical Delinting Company, and who told him that Mr. Edgington, the president of the company, was dissatisfied with some of the bags that had been shipped to the defendant; that he had finally talked to Mr. Edgington on the telephone, and had agreed to make an allowance in settlement of the claim, and that pursuant to that agreement he had entered a credit of $190 on the account for the bags shipped to the defendant in December 1949. The bags which defendant claimed were defective had been shipped during the month of February 1949, and had been paid for on March 10, 1949.

Earl M. Edgington, president of the Chemical Delinting Company, testified that 17,000 bags shipped to the Chemical Delinting Company during the month of December 1949 were received by the Chemical Delinting Company pursuant to the contract entered into on August 13, 1948, and that the 17,000 bags received during the month of December were entirely satisfactory. The complaint of the Chemical Delinting Company related entirely to the defective condition of the 19,000 bags which had been shipped to the Chemical Delinting Company during the month of February 1949. The bags were shipped in bales of approxmiately 1,000 bags each; and the 19,000 bags received during the month of February were paid for without any inspection being made of the bags at that time. Edgington stated that one bale was opened during the month of April 1949, and that he found that the bags had holes in them; that while he was in St. Louis during the early part of June he told Mr. Pollyea that he had discovered holes in the bags; and that Pollyea expressed the opinion that the other bags which had been included in the February shipments would be found to be satisfactory. Edgington stated that the remaining 18,000 bags contained in the February shipment were not opened or examined until the following December or January; and that he then discovered that the bags were mixed in the bales, and that the bags had holes in them.

Edgington admitted that he never wrote any letter to the Missouri Bag Company concerning the defects in the bags, until after the lapse of more than a year from the date of receipt of the bags, and that he never offered to return any of the bags. He was asked whether all of the bags were serviceable, and in answer to that question he said: 'Well, we used them. * * * We used them to ship seed in.' He stated that some seed were lost in the handling and transportation of the seed to their customers, but could not say what the loss amounted to. He stated that many complaints were received from their customers on account of the defects in the bags, and stated that 94,000 pounds of seed were returned to him during the 1950 delinting season, and he estimated that one-half of that total amount had been returned because of the defective condition of the bags. In a letter addressed to the Missouri Bag Company on June 12, 1950, which was introduced in evidence, Edgington said: 'We have paid several small claims for weight shortages since these shipments, and never in the history of our business have we had such complaints before.' Edgington was permitted to state to the jury that he felt that he had paid to the plaintiff everything that he owed the plaintiff.

The defendant's office manager testified that she discovered the latter part of February 1949 that the bags which they were receiving at that time had holes in them. She testified that numerous complaints were received by the defendant from its customers during the following winter after the bags had been used, and she estimated that approximately 100,000 pounds of seed were actually returned to the defendant by dissatisfied customers. On cross-examination she stated that when she discovered that seed were being shipped in bags that had holes in them she reported the matter of Mr. Edgington. The defendant's foreman testified that the bags which he observed had holes in them, and in the bags returned there had been a loss of five, ten or fifteen pounds of seed per bag. He stated that he had repaired some of the defective bags, but did not know how many. On cross-examination he stated that he had noticed that there were holes in the bags during the spring of 1949, and that he reported that fact to Mr. Edgington, but he continued to use the bags. He stated that he repaired the large holes, but not the small holes. Two of the defendant's salesmen testified that they had received numerous complaints from their customers in 1950 about the holes in the bags in which seed had been shipped.

The appellant's attorneys argue four main points on this appeal: (1) That the defendant was not entitled to recover damages on account of the defective quality of the 19,000 bags received during the month of February 1949, for the reason that the defendant had accepted the bags and paid for the same with full knowledge of their condition and had thereby waived its right to allege a breach of implied warranty of quality, and for the reason that the defendant had never offered to return the bags to the plaintiff after the defendant had discovered the alleged defects in the bags, but had continued to use the bags with full knowledge of their condition; (2) that the damages which the defendant sought to recoup were not proximately caused by the alleged defects in the bags, but by the defendant's own negligence in continuing to use the bags after the defendant had discovered that the bags had holes in them; and (3) that the damages sought to be recovered were so indefinite, uncertain and speculative that they could not be ascertained with any reasonable degree of certainty, and that the appellee made no effort to mitigate the damages. The appellant's attorneys also contend that there were reversible errors in the instructions, which will be referred to later.

There was no express warranty in the written contract for the sale of the bags, but there was an implied warranty on the part of the appellant, the manufacturer, that the bags would reasonably perform the services for which they were manufactured and sold.

A manufacturer who sells goods of his own manufacture impliedly warrants that they are free from any latent defects growing out of the process of the manufacture. 46 Am.Jur. p. 542, Sales, Sec. 356.

Where an article to be manufactured by the seller is ordered for a particular purpose disclosed to him, there is an implied warranty that the article is free from defects arising out of defective material selected by him as well as defective workmanship...