Royal Feed & Milling Co. v. Thorn

• Decision Date: 08 March 1926
• Docket Number: 25489
• Citation: 142 Miss. 92,107 So. 282
• Parties: ROYAL FEED & MILLING CO. v. THORN. [*]
• Court: Mississippi Supreme Court

107 So. 282

142 Miss. 92

ROYAL FEED & MILLING CO. v. THORN. ^[*]

No. 25489

Supreme Court of Mississippi

March 8, 1926

Division B

1. SALES. There is no implied warranty as to soundness of food stuff for animals.

There is no implied warranty as to the soundness of food stuff for animals under the law of this state.

2. PRINCIPAL AND AGENT. All persons dealing with agent must take notice of his authority to bind his principal; in absence of authority, agent has no power to warrant soundness of animal foods for any given period of time, especially where orders are transmitted to principal for approval.

All persons dealing with an agent must take notice of the extent of the power and authority of the agent to bind his principal. In the absence of authority, the agent has no power to warrant the soundness of animal foods for any given period of time, especially where the orders are transmitted to the principal for approval.

3 SALES. Express warranty as to quality of products to dealer does not extend to purchaser from dealer.

It is the settled law of this state that, where a person warrants the soundness of his products to a dealer under an express warranty as to quality, such warranty does not extend to a purchaser from the dealer. Pease & Dwyer v. Somers Planting Co., 93 So. 673, 130 Miss. 147, cited.

HON. G E. WILSON, Judge.

APPEAL from circuit court of Scott county, HON. G. E. WILSON, Judge.

Action by T. R. Thorn against the Royal Feed & Milling Company for the loss of animals. Judgment for the plaintiff, and defendant appeals. Reversed, and a judgment entered for the defendant.

Judgment reversed.

Currie & Amis, for appellant.

It is well settled in Mississippi that there can be no recovery in a case such as this on an implied warranty. Dulaney v Jones & Rogers, 100 Miss. 835, settled this question, which case was followed by Dunnagin-Whitaker Co. v. Montgomery, 117 Miss. 666. As to whether or not Thompson had any authority under the facts in this case to make any warranty to Thorn that would be binding upon the Royal Feed & Milling Company, the record shows that Thompson was a traveling salesman employed for the purpose of selling the feeds manufactured by the Royal Feed & Milling Company. He had no other duties and any contracts that he might make were subject to confirmation by LaCour, the manager of the Royal Feed & Milling Company. Thompson had no authority whatever to make any guaranties of contracts, and all contracts for the sale of feed made by him had to be confirmed by Mr. LaCour. For facts similar to this case, a traveling salesman not having the authority to bind his principal, either under an express or implied power, see Becker Co. v. Clardy, 91 Miss. 301, in which the court held that the salesman had no power, express or implied, to make a contract of sale binding upon his principal; and if Thompson had no authority to make a contract of sale binding upon the Royal Feed & Milling Company, then, of course, he had no authority to make any warranty with reference to any contract that would be binding upon the company either. The only theory under which there might possibly have been any implied power for Thompson to have made any warranty is that there must have been an established custom in the sale of mixed feeds to warrant the feeds sold, as was claimed to have been by Thompson. The record here on the part of the plaintiff not only shows that there was no such custom, but on the part of the defendant the record shows it was not the custom of the Royal Feed & Milling Company, nor is it the custom of any company manufacturing mixed feeds to give any warranty for the feed for any designated period of time. See also Robert Johns v. Jaycox, 39 L. R. A. (N. S.) 1151; Dunham v. Salmon, 109 N.W. 959.

Assuming that Thompson made the guaranty contended for by Mr. Thorn and assuming further, which we do not think to be the law, that Thompson being a traveling salesman had the implied authority to make such guaranty, Thorn could still not recover against the defendant here, the Royal Feed & Milling Company. He could certainly not recover because of any warranty that might have been made to the Stuart Company. Before there can be recovery on a warranty, as we understand the law, there must be a privity of contract; and where there is no privity of contract, there can be no warranty. 24 R. C. L. 158, sec. 431. It has also been held by this court in Pease & Dwyer v. Somers Planting Co., 93 So. 673, that the customer of a retail dealer could not successfully sue a wholesale dealer on a warranty of quality.

Furthermore, there must be a consideration for a warranty and none is here shown. See Continental Supply Co. v. Stevens, 188 S.E. 527; 24 R. C. L., sec. 426, p. 154, 35 Cyc., p. 371. There can be no warranty where there is no privity of contract. See Roberts v. Anheuser-Busch Brewing Ass'n, 98 N.E. 95.

The judgment of the lower court should be reversed and judgment entered here for appellant.

Eastland & Mize and E. O. Sykes, for appellee.

The complaint made by the appellant is that it was entitled to a peremptory instruction.

We are not attempting to recover on an implied warranty. The cases of Dulaney v. Jones & Rogers and the Dunagan-Whitaker Company case cited for appellant hold that there is no implied warranty in a sale of stock feed. The facts and circumstances, as well as the testimony, show that the agent Thompson was authorized to make representations and warranties as to the quality and soundness of the stock feed. He was furnished samples to show prospective customers. He was the representative of the appellant to visit Morton. He made the original contract with Stuart for the sale of this feed. He was sent by his house to see what the trouble was and try to adjust it. He certainly had the apparent authority to make the express warranty, and we believe from the record that a jury was justified in finding that he had the real authority. He was not only the traveling salesman, but he was the adjuster of troubles for his house. In the tripartite conversation, he was the agent and representative of the appellant.

The only question really presented is whether the ultimate consumer to whom an express warranty has been made by the manufacturer of the soundness of goods can maintain a suit for a breach of this warranty or a suit in tort for negligence growing out of the breach of the express warranty. There is no case in Mississippi, so far as we have been able to find which decides this precise question. Peace & Dwyer Co. v. Somers Planting Co., 93 So. 673, only decides that where an express warranty is made by the seller alone to the buyer, then the ultimate consumer who purchased from the buyer cannot maintain a suit on the express warranty, because there is no privity of contract between this ultimate consumer and the original seller. The difference between that case and the instant one is that here the express warranty was made to the ultimate consumer. The doctrine of the Pease case is that there is no privity of contract. We submit in the present case that there is a privity of contract.

Boiled down this expressed warranty in this case simply means this. The appellant said to Thorn, "I have a contract with Stuart to sell him more feed stuff, you are buying my feed stuff from Stuart. Because of your dissatisfaction with it you are threatening to quit buying and Stuart for that reason is threatening to cancel his contract with me because my feed stuff is not sound. Therefore, if you will continue to buy my feed stuff from Stuart and Stuart will not cancel...