Nichols v. Lea
| Decision Date | 09 January 1950 |
| Docket Number | No. 4-9033,4-9033 |
| Citation | 216 Ark. 388,225 S.W.2d 684 |
| Parties | NICHOLS et al. v. LEA et al. |
| Court | Arkansas Supreme Court |
Bob Bailey and Bob Bailey, Jr., Russellville, for appellants.
J. H. Brock, Clarksville, George F. Hartje, Conway, for appellees.
In December, 1947, appellants, J. R. and H. A. Nichols, brothers, and residents of Texas, sold and delivered (from their trailer truck) to appellees, Lea and Hogan, partners operating a gasoline station in Conway, Arkansas, $975.00 worth of anti-freeze in sealed one gallon containers. The evidence shows that at the time of the sale, appellants represented to appellees that the anti-freeze was as good as Prestone, a well-known, standard anti-freeze, that it had the same base (Ethylene Glycol) as Prestone, would mix with other anti-freeze then on the market, and was suitable and fit for the use intended.
Relying on these representations, appellees purchased the anti-freeze and shortly thereafter, and before any sale had been made by appellees, they became suspicious of the quality and fitness of the anti-freeze and of appellants' representations, and took one of the sealed gallon containers to the Laboratory of the Arkansas State Teachers College, where a chemical analysis was made which showed, in effect, that the product was not of a Prestone base, but contained five pounds of calcium chloride per gallon, which when coming in contact with iron and other metals caused them to disintegrate, corrode and slough off, and was unsuited for use in automobiles, the intended use.
Following this information, appellees filed suit to recover from appellants the purchase price, $975.00, alleging that the warranties above noted were made by appellants that they were false, that the anti-freeze was unfit and unsuitable for use in automobiles, was not as good as Prestone, did not possess the same base and would not mix with other anti-freeze, that it was totally worthless for any use, and after filing bond, caused appellants' truck to be attached.
Appellants later filed a forthcoming bond, retained possession of the truck, and removed it to Texas.
Appellees, B. H. and L. F. Ray, also in December, 1947, filed a separate suit against appellants, containing similar allegations, to recover $320.00 for anti-freeze which they had purchased from appellants. They also caused an attachment to be issued against appellants' trailer truck. Appellants also filed a forthcoming bond in this suit.
The facts in each case were practically identical and they were consolidated for trial, the only factual difference being that in the Ray case, appellants had made an additional representation that the anti-freeze in appellants' delivery truck at the time of the sale to the Rays was the same as that in the gallon containers and gave them a sample thereof from their truck. A chemical analysis of this sample was made which showed that it was of good quality but that it was not the same as the anti-freeze contained in the gallon containers sold to appellees, which was analyzed and shown to have a base twenty-eight to thirty per cent calcium chloride.
Appellants' answers were a general denial and in cross-complaints sought judgments for damages. The causes were submitted to the jury under proper instructions, verdicts were returned in favor of appellees for the full amounts claimed, and from these judgments is this appeal.
--(1)--
Appellants first question the sufficiency of the evidence.
The evidence appears to be in the sharpest conflict. However, when viewed in the light most favorable to appellees, as we must, we cannot say that there was no substantial evidence to warrant findings by the jury that appellants, in inducing the sales, had made false statements amounting to warranties as to the quality and fitness of the anti-freeze for the purpose and use intended, and that appellees should recover.
'To constitute an express warranty, it is not necessary that the word 'warrant' be used, but may be based on the statements of the seller as to the quantity or condition of the chattel he is selling. * * * The court then quoted with approval from 24 R.C.L. (Sales) § 437, as follows: 'To constitute an express warranty the term 'warrant' need not be used; no technical set of words are required, and it may be inferred from the affirmation of a fact that which induces the purchase and on which the buyer...
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