Pritchard v. Hall

• Decision Date: 27 April 1936
• Docket Number: 32032
• Citation: 167 So. 629,175 Miss. 588
• Court: Mississippi Supreme Court
• Parties: PRITCHARD v. HALL

167 So. 629

175 Miss. 588

PRITCHARD v. HALL

No. 32032

Supreme Court of Mississippi

April 27, 1936

Division A

Suggestion Of Error Overruled, June 8, 1936.

APPEAL from circuit court of Lafayette county HON. TAYLOR H MCELROY, Judge.

Suit by D. A. Pritchard against James H. Hall. From a judgment for defendant, plaintiff appeals. Reversed and rendered for plaintiff.

Reversed, and judgment here for appellant.

Jas. Stone & Sons, C. A. Bratton and Samuel V. Pack, all of Oxford, for appellant.

The defense relied on by appellee to this suit of appellant on a promissory note was failure of consideration. Appellee contended that this failure of consideration arose through the breach of a warranty made by appellant to appellee. Appellant and appellee embodied the terms of their transaction into a written contract of conditional sale. The law presumes that this instrument was intended to become, and-did become, the contract of the parties.

Porter Hardware Co. v. Peacock, 129 Miss. 129; Bradley v. Howell, 161 Miss. 346, 133 So. 660; 58 A. L. R., note on pages 1182, 1183.

By expressly contracting that he accepted the automobile "in its present condition," appellee waived all defects, latent and patent.

Washington & L. R. Co. v. Southern Iron & Equipment Co., 28 Ga.App. 684, 112 S.E. 905; Bellville Supply Co. v. Dacey, 141 Miss. 569, 106 So. 818; Gerard Motor Co. v. McEachern, 150 Miss. 437, 116 So. 816.

A warranty, in addition to being incidental to a contract, is itself a contract, and the rules applicable to contracts generally apply to a warranty. We submit that it is elementary law that among these rules is the requirement that there must be a valid consideration for the promise of warranty.

55 C. J. 656, sec. 671.

The law supplies no means nor affords any remedy to compel the performance of an agreement made without consideration. Such an agreement is nudum pactum ex quo non oritur actio.

13 C. J. 312, sec. 145.

It is a fundamental principle of the common law that a warranty, after the sale is complete, is not valid without a new consideration.

Morehouse v. Gomstock, 42 Wis. 626; Summers v. Vaughan, 35 Ind. 323; Towell v. Gatewood, 3 Ill. 22; Bloss v. Kittridge, 5 Vt. 28; 13 L. R. A. 679; 24 R. C. L., page 154; 55 C. J. 671, sec. 680; Edrington v. Stephens, 148 Miss. 583, 114 So, 387.

It is a general rule that the burden of proving a breach of warranty is on the buyer.

24 R. C. L. 162.

It is settled that the burden of proof is on the party holding the affirmative.

Mask v. Allen, 17 So. 82; Cain v. Moyse, 71 Miss. 653, 15 So. 115; 13 C. J. 756, sec. 927.

Viewing the record as a whole, we respectfully submit that it is clearly apparent that the court erred in overruling appellant's motion for a directed verdict at the conclusion of the appellee's evidence. Appellee relied upon breach of warranty as his defense. If there was a warranty, it must have been either implied or express. It could not have been implied, because the law of this jurisdiction implies no warranty in such a transaction as took place between appellant and appellee.

Bellville Supply Co. v. Dacey, 141. Miss. 569; Gerard Motor Co. v. McEachern, 150 Miss. 437.

If it was an express warranty it must have been made before, contemporaneous with, or after the sale. It could not have been made before or contemporaneous with the sale, because the written contract between the parties not only did not contain any mention of such a warranty, but expressly denied such; appellee did not even attempt to prove an express warranty made before or contemporaneous with the sale. Upon no theory whatsoever can the defense which appellee relied on be availed of.

Falkner & Falkner, of Oxford, for appellee.

Conceding for the sake of argument that there was no implied warranty as to the automobile at the time of the execution of the contract, there still remains the fact that an express warranty was made after the execution, and a further agreement that Pritchard and Hollowell would make the car stand up for the usual ninety days service or deliver to the appellee in its stead a new car. This promise was made after the execution of the contract and note.

155 Miss. 422.

Certain v the parties could make additional agreements after the execution of the written contract which could become as binding as the original contract.

Certainly it is well settled that one party may make an offer and the other party after the offer is made may act in reliance on that offer and the contract then becomes binding on the first party.

13 C. J. 311, sec. 144; Magee v. Catching, 33 Miss. 672.

The law says: "Loss or injury to one of the parties, or benefit to the other" is consideration. The testimony shows that the appellee was a rural mail carrier and that when the car was delivered into the possession of the appellant in reliance on his promise, that the appellant kept the car in his possession so long that the appellee was forced to buy another car to carry on his business. Is not that a loss or detriment moving to the promisee because of his reliance on the statement of the promisor?

Bankerson v. Hill, 98 So. 689.

Argued orally by C. A. Bratton, for appellant.

OPINION

McGowen, J.

Appellant, Pritchard, brought suit against appellee, Hall, to recover three hundred dollars, balance due on a promissory note for five hundred forty dollars, payable on its face to Pritchard & Hollowell, and by them assigned or endorsed, with recourse, to the C. I. T. Corporation, which, in turn, for value indorsed it to Pritchard, successor to the firm.

The evidence having been heard, the case was submitted to the jury. It returned a verdict for Hall. Judgment was entered accordingly, and Pritchard prosecutes an appeal here.

Attached to the declaration as exhibits were a copy of the note and conditional sales contract, and these exhibits were offered in the evidence.

Pritchard testified that the note was for the balance due on a sales contract for an automobile, and was payable in twelve monthly installments of forty-five dollars each. Two payments had been made thereon, or ninety dollars. He also testified that the C. I. T. Corporation repossessed the car, sold it, under the sales contract, for one hundred fifty dollars, which, when credited on the note, left the balance sued for. The sales contract, among other things, provided that the purchaser, Hall, had examined said chattel (referring to the, automobile) and accepted same in its present condition.

Hall pleaded, as a defense to the action, the general issue and notice of special matter thereunder as follows: "The plaintiff will take notice that the defendant will introduce evidence to show and will attempt to prove that there was a failure of consideration for the note sued on by the plaintiff. That the note sued on was given as part purchase price of an automobile, which said automobile was guaranteed to be free from mechanical defects by Pritchard & Hollowell. That the automobile was, in fact, defective when delivered to the defendant. That after having the automobile in his possession for a few days, during which time the said automobile failed to perform and operate properly, the defendant returned same to Pritchard & Hollowell and informed them of the defect. That Pritchard & Hollowell accepted the automobile and later tendered it back to the defendant, informing him that the defect had been corrected, but, upon examination, defendant found the car to be still defective, and refused to accept it. That the automobile was never offered to the defendant free from defects, and that defendan...