Pease & Dwyer Co. v. Somers Planting Co.

• Decision Date: 23 October 1922
• Docket Number: 22774
• Citation: Pease & Dwyer Co. v. Somers Planting Co., 130 Miss. 147, 93 So. 673 (Miss. 1922)
• Parties: PEASE & DWYER CO. v. SOMERS PLANTING CO
• Court: Mississippi Supreme Court

93 So. 673

130 Miss. 147

PEASE & DWYER CO. v. SOMERS PLANTING CO

No. 22774

Supreme Court of Mississippi

October 23, 1922

1 SALES. Warranty of quality available to purchaser only, and not subpurchaser.

The sale of personal property with warranty of quality by the seller is addressed to and for the benefit of the purchaser alone, and therefore cannot be taken advantage of by a subpurchaser.

2 SALES. Retail dealer's customer could not sue wholesale dealer on warranty of quality.

Where a wholesale dealer in stock feedstuffs sold to a retail dealer therein a carload of hay, warranting it to be No. 2 alfalfa hay, sound and fit for stock feed, and such retailer sold it to his customer, who fed it to his mules, which were killed as the result of said hay being rotten and poisonous, under the principle above referred to there is no liability on the part of such wholesaler on his warranty to the subpurchaser for the loss of the latter's mules.

3 PARTNERSHIP. Two firms with two partners in common, and with a partner in one not common to both firms, are distinct partnerships.

Although two partnerships have two partners in common, still, if there be a partner in one not common to both firms, they are two separate and distinct partnerships, and as such neither is liable for the obligations of the other.

4. APPEAL AND ERROR. Defendant may question legal sufficiency of bill though question not raised below.

A defendant in a bill in equity which states no cause of action, who answers such bill without testing its legal sufficiency by demurrer, may nevertheless, on appeal, for the first time raise the question of its legal sufficiency.

HON. G E. WILLIAMS, Chancellor.

APPEAL from chancery court of Coahoma county, HON. G. E. WILLIAMS Chancellor.

Suit by the Somers Planting Company against the Pease & Dwyer Company and others. Decree for plaintiff, and named defendant appeals. Reversed, and judgment rendered dismissing bill.

Judgment reversed.

No brief found in the record for appellee.

Franklin & McGehee, for appellant.

Replying briefly to the brief filed in behalf of the appellee we most respectfully submit that this is not a case of the breach of an express warranty in the sale of the hay in question. There was no contract whatsoever between the appellant and appellee. The appellant, Pease & Dwyer Company, sold the hay in question to the J. E. Somers & Company, a partnership composed of three individuals, and doing business in Coahoma county, Mississippi. The appellee, Somers Planting Company composed of only two individuals, is an entirely different partnership, and is engaged in a plantation business, in Sunflower county, Mississippi. There was no privity of contract between the appellant and the appellee in the transaction, and the proposition does not admit of argument that the appellant could not be liable to a customer of its vendee, J. E. Somers & Company, on any alleged expressed warranty that may have been made by the appellant to said vendee.

It is urged by counsel for appellee that the appellant is precluded from trying the case on one issue in the court below and on another issue in the court here. Replying to this position of counsel, we submit, most respectfully, that the appellee sued the appellant in an action of tort and the case was tried in the court below on the alleged negligence of the appellant in that it did in total disregard of its duty, either negligently or wilfully, and without due care, shipped unwholesome hay, etc," and no contention was made that there was privity of contract between the appellant and the appellee, and no express warranty was alleged in the bill of complaint or sued on in the case. Yet, on appeal, we find the appellee basing his right of recovery solely on the alleged breach of a contract of express warranty. Had the appellant been sued on contract for breach of warranty, either express or implied, we agree with counsel that our defense should have been set up by demurrer. If on express warranty, we could have successfully interposed our demurrer on the ground that the pleadings disclose that the appellant sold the hay in question to the J. E. Somers & Company, an entirely different concern than appellee, and that the appellant had not contracted with the appellee at all. If the suit had been on an implied warranty of soundness, we concede that we should have demurred to the bill on the ground that as a matter of law there is no implied warranty in case of food for the consumption of animals. But the suit being one in tort, and not on contract, the allegations were sufficient, if sustained by the proof, to state a case against the appellant. This being considered the nature of the suit, we did not see any grounds of demurrer, but filed our answer denying the allegations of the bill. Our contention on the trial in the court below was and is now that the proof wholly failed to show that the appellant failed to use due and ordinary care in regard to the shipment of hay in question, or that the defendant negligently or wilfully or knowingly shipped unwholesome hay to appellee. Our discussion of the question of there being no liability on an implied warranty, contained in our original brief, was merely for the purpose of making clear our position that there is no liability on any possible theory in the case at bar; first, by showing that the law recognized no implied warranty in the sale of food for live stock as decided by this court in the Dunagin-Whitaker v. Montgomery case, 78 So. 580, and the case of Dulaney et al. v. Jones & Rogers, 57 So. 225; and second, that there was no liability on the theory of negligence, because in the Dunagin-Whitaker v. Montgomery case, supra, our court held that the only hypothesis on which a recovery could be had in tort was that the seller knowingly sold poisoned feed. We did not discuss the question of whether there was liability on an express warranty in the case at bar, in submitting our original brief, because we had no information until we received and read appellee's brief in reply to ours that recovery was sought on a breach of an express warranty, and because both the pleadings and the evidence showed that the appellant did not sell the hay in question to the appellee. And we now respectfully submit that had the appellant made an express warranty to J. E. Somers & Company, at Clarksdale, with reference to the soundness or unsoundness of the hay sold to it, then and in such event the appellee, Somers Planting Company, an entirely different partnership at Ruleville, Mississippi, could not recover for a breach of such express warranty, not having purchased the hay from appellant.

Counsel for appellee say in their statement of facts, contained in their brief, that the Somers Hardware Company purchased the hay from appellant, but this is an oversight on their part. The Somers Hardware Company is a corporation, at Clarksdale, as disclosed by the pleadings, and as to who the stockholders are therein is not shown. This corporation was not in any manner connected with the transaction. The J. E. Somers & Company, a partnership, composed of three individuals, was the purchaser of the hay, as alleged in the pleadings and shown by the evidence, while the Somers Planting Company, the appellee, was another partnership composed of only two individuals, and merely the consignee of the hay or customer of the vendee. There is no dispute as to who was the buyer of the hay in question. The J. E. Somers & Company admits an indebtedness for the purchase price of certain hay and pleads as an off-set against the same, in its answer as garnishee in the case at bar, the price paid by it to appellant for the hay which is alleged to have caused the damage complained of in this case, claiming such off-set on the ground of a failure of consideration.

Referring to the many authorities cited by counsel on the question of liability on an express warranty, and on what facts are sufficient to constitute an express warranty, we do not take issue as to the correctness of the law announced in the authorities cited, but we merely desire to emphasize the fact that they have no application here, because if we should concede that there was an express warranty in the sale made by appellant to the J. E. Somers & Company surely the Somers Planting Company, appellee, herein, cannot sue or recover on such express warranty.

There being no liability on either an express or implied warranty under the law and the facts of this case, then the only issue to be singled out and discussed, as we see it, is whether or not the appellant committed a tort against the appellee by wilfully, negligently or knowingly selling poisoned hay and that this directly and proximately caused the damages sued for. The court held in the Dunagin-Whitaker v. Montgomery case, supra, that to render the seller liable it is necessary that he should knowingly sell poisoned feed for the purpose of being fed to animals, in the absence of an express warranty made to the owner of such animals. And this is not a case where the principle is applicable that a manufacturer of an article is liable to the ultimate consumer on the theory that he has a better opportunity to discover any defects in the article. In the case at bar the appellant was not the manufacturer but purchased the hay on the open market in bales, and not being required in the exercise of ordinary care to open and re-bale the hay, to discover its internal condition,...