Philbrick v. Kendall

• Decision Date: 22 October 1913
• Citation: 111 Me. 198,88 A. 540
• Parties: PHILBRICK v. KENDALL et al.
• Court: Maine Supreme Court

88 A. 540

111 Me. 198

PHILBRICK

v. KENDALL et al.

Supreme Judicial Court of Maine.

Oct. 22, 1913.

Motion and exceptions from Supreme Judicial Court, Penobscot County, at Law.

Action by Wayland J. Philbrick against William B. Kendall and others. There was a verdict for plaintiff, and defendants excepted, and moved for a new trial. Exceptions sustained, and new trial granted.

Argued before SAVAGE, C. J., and KING, BIRD, and HANSON, JJ.

Hudson & Hudson, of Guilford, for plaintiff.

Williamson, Burleigh & McLean, of Augusta, B. L. Fletcher, of New York City, and Charles P. Conners, of Bangor, for defendants.

BIRD, J. This action is brought for the recovery of damages for breach of contract for the sale of fertilizer. The jury found for plaintiff. The case is before this court upon numerous exceptions and a general motion for new trial.

In the spring of 1909 the plaintiff, a farmer, ordered of defendants, manufacturers of fertilizers, eleven tons of fertilizer. The order was transmitted through the selling agent of the defendants, who manufactured as adapted to the growth of potatoes four fertilizers known as "4—6—10," "3—6—10." "Special Potato," and "Aroostook." They also manufactured six other brands of fertilizer, two for corn, two for grass and grain, one for general purposes, and another, the purpose of which does not appear. The expression 4—6—10 indicated that the fertilizer so described contained as chemical constituents 4 per cent. ammonia, 3.29 per cent. nitrogen, 6 per cent. phosphoric acid, and 10 per cent. actual potash, together with a certain amount of filler, consisting of inert substances. The plaintiff purchased of defendants a quantity of 4—6—10 fertilizer in 1907 or 1908, which he used upon the potatoes raised by him in 1908, evidently to his satisfaction. In making his purchase of 4—6—10 fertilizer to be applied to the crop of 1909, it does not appear from the record that he made any statement to the agent of defendants of the purpose for which he desired it. Plaintiff applied the fertilizer so purchased in 1909 to a field of potatoes adjoining the acreage upon which the crop of 1908 was raised. The yield was very markedly less than that of the preceding year, and there was evidence tending to prove that the fertilizer purchased by plaintiff in 1909 did not contain the chemical constituents in the proportion indicated, and that this defect was latent.

Among other things, the jury were instructed by the justice presiding:

"I cannot give you the instruction that, when a man buys a fertilizer as this plaintiff bought it in the market by name, 4—C—10 for instance, that there is no accompanying implied warranty that that fertilizer will fertilize. * * * There may be an express warranty with those brands which contain the preparation of the three different elements, the tag or stamp on them; but there is also going along with them, I instruct you, an implied contract that they are reasonably fit and suitable for the use to which they are to be put, and to which the seller knows they are to be put. * * *

"In this case, if you find that the defendants knew that this fertilizer was to be used for fertilizing potatoes, and that their customers throughout the state would buy it for that purpose, then it was ordered by the buyers for a special purpose known to the seller, and, if so, there is an implied warranty that it was reasonably fit and suitable for the purpose for which it was ordered or sold. * * *

"It is not confined to a guarantee of just such a per cent. of one element, and such of another, and such of another; but there is an implied warranty that the whole mixture as a mixture is reasonably adapted to its purpose."

In support of the exceptions to these instructions, the defendants urge that there can be no implied warranty, because "the words 4—6—10," by which description the goods were ordered and sold, constitute an express warranty, invoking the familiar rule that, where there is an express warranty, the law will imply no other warranty of the same kind; that is, that an express warranty of quality will exclude any other warranty of quality by implication.

It is undoubted law that, where an express warranty of quality is made upon a sale, no other warranty touching quality will be implied. Lombard Co. v. Paper Co., 101 Me. 114, 120, 63 Atl. 555, 6 L R. A. (N. S.) 180; Deming v. Poster, 42 N. H. 165, 175; Dewitt v. Berry, 134 U. S. 306, 313, 314, 10 Sup. Ct 536, 33 L Ed. 896. It is also true that words in a contract of sale descriptive of the subject-matter of the contract have been held to be express warranties (Henshaw v. Robins, 9 Mete. [Mass.] 83, 87, 88, 43 Am. Dec. 367; Edwards v. Marcy, 2 Allen [Mass.] 486, 489; Borrekins v. Bevans, 3 Rawle [Pa.] 23, 43, 23 Am. Dec. 85. See, also, Morse v. Moore, 83 Me. 473, 479, 489, 22 Atl. 362, 13 L R. A. 224, 23 Am. St. Rep. 783), while other authorities hold them implied warranties (Wolcott et al. v. Mount, 36 N. J. Law, 262, 266, 13 Am. Rep. 438; Jones v. George, 61 Tex. 345, 349, 48 Am. Rep. 280; Catchings v. Hacke, 15 Mo. App. 51, 53. See, also, White v. Miller, 71 N. Y. 118, 129-131, 27 Am. Rep. 13). Strictly, however, such words do not constitute a warranty, either express or implied. They are evidence of no undertaking collateral to a contract. They constitute the contract itself, and without them there would be no contract. See Warner v. Arctic Ice Co., 74 Me. 475, 478; Chanter v. Hopkins, 4 M. & W. 399, 404; Bagley v. Cleveland, etc., Co. (C. C.) 21 Fed. 159, 162. Difference in terms can make no changes in the principles of law, and, whether held a condition precedent or an express warranty, such words do not prevent the annexation to the contract of sale of warranties implied by law as, in the case of goods ordered of the manufacturer, without opportunity of inspection, or where there is a defect in the goods not discoverable by inspection, that the described goods are merchantable. See Hoe v. Sanborn, 21 N. Y. 552, 566, 78 Am. Dec. 163; Randall v. Newson, 2 Q. B. D. 102; Swett v. Shumway, 102 Mass. 365, 3 Am. Rep. 471.

The inquiry is, therefore, Was there, under the circumstances and terms of the contract of sale, an implied warranty of the fitness of the described article? It is also well established that, where a manufacturer or dealer contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, the law implies a promise on his part that the article so made and sold by him for a specific purpose, and to be used in a particular way, is reasonably fit and proper...