Orgill Bros. & Co. v. Everett

• Decision Date: 03 January 1925
• Docket Number: 24188
• Citation: 138 Miss. 213,103 So. 82
• Parties: ORGILL BROS. & CO. v. EVERETT. [*]
• Court: Mississippi Supreme Court

103 So. 82

138 Miss. 213

ORGILL BROS. & CO. v. EVERETT. ^[*]

No. 24188

Supreme Court of Mississippi

January 3, 1925

Division B

1 SALES. Representation held not to constitute "express warranty that scales would weigh accurately.

Representation by seller of scales that scales were always tested before leaving the factory, and that seller had not had any complaints of inaccuracy of scales previously sold, held not an express warranty that scales sold to buyer would weigh accurately or correctly.

2 SALES. Seller held not to have impliedly warranted freedom of cotton scales from defect.

Seller of cotton scales who was a dealer, and not a manufacturer and who in good faith sold scales of established trade-name which had previously given satisfaction to trade, and were always tested at factory, without knowledge of defect which could not have been ascertained by reasonable inspection, did not impliedly warrant to buyer, who did not rely on seller's judgment in purchase of scales, that scales were free from such defect.

HON. T. P. DALE, Chancellor.

APPEAL from chancery court of Simpson county, HON. T. P. DALE, Chancellor.

Suit by R. L. Everett against Orgill Bros. & Co. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.

Decree reversed.

J. R. Anderson, for appellant.

I. The only testimony with reference to any express warranty is that in which the appellee said that in talking to the traveling salesman of appellant with reference to buying a pair of Smith scales the following was said between them: "And I asked him about the correctness and he said that he had sold lots of these scales and had no complaint and that the scales were tested before they left the factory."

Appellant's salesman certainly did not warrant the scales to be correct because in answer to appellee's question as to whether or not they were correct and accurate scales, replied that he had sold lots of these scales and had had no complaint and they were always tested before they left the factory. Certainly there was no direct, positive affirmation that the scales were correct or that they would be tested before they left the factory or that they would weigh accurately on arrival at Magee. An express warranty is a direct and positive affirmation or assertion made by the seller as a part of the contract of sale, relating to some matter of fact respecting the quality, character or condition of the thing sold, under such circumstances that it may fairly be regarded by the buyer as the promise or undertaking on the part of the seller that the fact is as he so affirms or asserts, and on which the buyer relies. Mechem on Sales, sec. 1235.

II. Was there an implied warranty that the scales in question would accurately weigh the cotton? A. Testimony showed that the appellant was a dealer and not a manufacturer and that this fact was known to the appellee when he purchased the scales. Upon an executory sale by a dealer, and not a manufacturer, there is no implied warranty that the goods sold shall be fit for the purpose intended, but all that is required is the exercise of good faith and fair dealing. Herley-Mason Co. v. Stevins, et al., 79 Wash. 366, 140 P. 381, 1915-B L. R. A. 1131, 1916-A Ann Cas. 948; 2 Mechem on Sales, sec. 1345.

B. If we are wrong in our contention that there was an implied warranty as to the fitness of these scales for the purpose of weighing cotton then we contend that in view of the fact that all the testimony in this case including that of the defendant showed that the defect in the scales was such that it could not have been discovered upon a reasonable inspection and, therefore, the appellant is not liable.

We believe that the majority of the courts in the country hold that in the case of dealer, as distinguished from a manufacturer, there is no implied warranty that the goods the dealer sells shall be free from hidden or latent defect. Otts v. Alderson, 10 S. & M. 476.

In all the following cases courts hold that the seller is not liable where the defects are hidden and he knew nothing of them. Briggs v. Hunton, 87 Me. 145, 47 Am. St. Rep. 318; Quo v. Sandon, 21 N.Y. 552, 78 Am. Dec. 163; Bragg v. Morriff, 49 Vt. 45, 24 Am. St. Rep. 102; Hoyt v. Hainesworth Motor Co., 192 P. 918; Herley-Mason Co. v. Stevins, supra; Reynolds v. Elec. Co., 141 F. 551, 73 C. C. A. 23; Reynolds v. Meyer, etc., 91 N.Y. 106, 35 Cyc. 412, Note 10; 35 Cyc. 402, Note 43; Bragg v. Maryland, 24 Am. St. Rep. 102.

Longino, Hilton & Hilton, for appellee.

I. Was there an express warranty? See, 2 Mechem on Sales, 1237; Stone v. Denny, 4 Metc. (Mass. ) 151. In the case at bar, the salesman of appellant was asked about the correctness of these scales, positively and directly by appellee. We think the court below correctly held that the statement by appellant's agent that there had never been any complaint about these scales, about them having been tested and his knowledge of their intended use was a sufficient affirmative response to the question put to him to make an express warranty. Appellee accepted and intended his answer so to be; this answer led to the purchase of the scales. We do not think that it could be fairly said that this statement on the part of appellant's agent did not reasonably authorize the inference that appellee understood that these scales were expressly warranted to be correct.

II. Was there an implied warranty? See, 2 Mechem on Sales, par. 1344. In the case at bar it clearly appears that the appellee stated his needs to the appellant's agent and relied upon the appellant's agent to supply his need. Otts v. Alderson, 10 S. & M. 476.

Counsel for appellant makes the contention that in the case at bar this was a latent defect which the seller did not know of and, therefore, there could be no liability on the part of the seller. We fail to find this exception to the rule holding the seller liable when the needs of the purchaser are made known to him and the seller undertakes to supply these needs. Analysis of the authorities cited as supporting this contention in the brief of appellant shows all to be distinguishable.

The trouble with able counsel for appellant is that he is placing the sale in the case at bar under the head of executory contract of sale rather than an executed contract of sale. Counsel cites authority dealing with the liability of a seller in executory contracts in cases of latent defects. None of these authorities, nor this contention, has any place in this case. See, 9 Cyc. 244, C; 35 Cyc. 289, E.

There is not a single condition to this sale nor a circumstance attending it which makes the sale at bar, an executory sale. This being true all the authorities on this point cited by counsel in his brief are not in point. Neither is the contention applicable to the case at bar, that if the scales were defective it was a latent defect and the seller could not be chargeable therewith. This contention is of no avail here for the reason that no case raises the question except in cases of executory contract of sale. This being an executed contract of sale the authorities are unanimous in holding that the seller is liable for defects in articles which he undertakes to supply to fill the purchaser's needs.

Argued orally by Jno. R. Anderson, for appellant, and R. T. Hilton, for appellee.

OPINION

COOK, J.

The appellee, R. L. Everett, filed an attachment suit in the chancery court of Simpson county against the appellant, Orgill Bros. & Co., seeking to recover damages to the amount of one thousand seven hundred twenty-three dollars and twelve cents for the alleged breach of an express and implied warranty covering the sale by appellant to appellee of a pair of cotton scales to be used by the appellee in his business as a cotton buyer.

Appellee alleged in his bill of complaint that he was engaged in the general mercantile business at Magee, Miss., and in connection with this business that he bought and sold cotton that the appellant was engaged at Memphis, Tenn., in the business of a dealer in hardware, and among other things sold cotton scales; that on the 21st day of August, 1922, a traveling salesman of the appellant called on the appellee for the purpose of selling to him goods, wares, and merchandise; that appellee made known to this salesman his need of a pair of cotton scales for the purpose...