Sharp v. Brookhaven Pressed Brick Co.

• Decision Date: 22 December 1919
• Docket Number: 20897
• Court: Mississippi Supreme Court
• Parties: SHARP v. BROOKHAVEN PRESSED BRICK CO

83 So. 274

120 Miss. 850

SHARP v. BROOKHAVEN PRESSED BRICK CO

No. 20897

Supreme Court of Mississippi

December 22, 1919

SALES. Implied warranty of quality not lost by acceptance.

Where bricks were shipped to a purchaser by the manufacturer with draft and bill of lading attached and he had to pay the draft before receiving the bill of lading or the brick represented thereby, in such case the implied warranty of quality of the brick was not destroyed by the acceptance of the brick by the purchaser.

HON. D M. MILLER, Judge.

APPEAL from the circuit court of Lincoln county, HON. D. M. MILLER Judge.

Suit by J. P. Sharp, against the Brookhaven Pressed Brick and Manufacturing Company. From a judgment for the defendant, the plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Brady &amp Dean, for appellant.

Appellee itself practically admits that the contentions presented by it are trash, by the statement on page 5 of its brief. The sole and only question, in the main, which is involved, and the item upon which the jurisdiction of the circuit court was invoked, is whether or not if there was an implied warranty of quality, this warranty would survive acceptance."

After making its argument upon this question, it then undertakes to sum it up in the enunciation quoted as "VI" on the first page hereof. It will not, therefore, be necessary for us to answer these propositions separately, since they are really one and the same.

At the very beginning of that part of its brief marked "Brief," page 5 thereof, appellee seeks, by a sweep of wild words, to clear out of the record everything that in any way hinders the progress of its proposed argument. The plan would be good if worth anything. Let us correct the eliminations so calmly stated. We say: The record in this case in effect does show a case of sale by sample; very positively does show a case of an article to be manufactured according to some specification; even shows a case of the fitness of the thing sold for the use to which it was to be put (although that is not an item of damage); and does show a case of warranty; it does not show a case of an article for resale, nor a case involving the question of latent defects not discoverable by inspection.

It is because of the confusion that has developed in its mind over the issues here that causes appellee to see apparent confusion in the decisions of the supreme court of Mississippi. All of our own decisions, and most of those from other jurisdictions, readily fall into readily distinguishable lines. Because our own decisions are so clear, we shall not again discuss the cases cited from other states.

The Mississippi rule is stated clearly in the case of Hall Commission Company v. Crook, 40 So. 20, applied in numerous other cases and clearly re-announced in Register Company v. Hude, 80 So. 378, as follows: . . Plaintiffs had two courses open to them; they could have rejected the grain and sued for damages for breach of the contract, or they could pay the contract price, take the grain and recover the difference between its value and the value of grain of the qualify named in the contract. Plaintiffs elected to pursue the latter course, and the right of action accrued upon the payment of the draft and the receipt of the inferior grain."

The oats were ordered, by what specifications does not appear the cars were sent with bills of lading attached; consignees accepted the drafts but were allowed to inspect two cars before payment; found the oats inferior and secured an adjustment; the third car on inspection was found to contain inferior oats, and plaintiff was allowed to recover the difference.

Here, brick was ordered by certain specifications, the cars were shipped with bills of lading attached, which consignee Mr. Sharp, appellant, paid and on inspection thereafter found inferior goods. He sues, and appellee says he cannot recover because he accepted the brick. So did plaintiff accept the oats. The court says one so damaged can accept and sue, or reject and sue. Appellee says one must either accept or reject.

In the cases of Stillwell etc. Company v. Biloxi Canning Company, 29 So. 553, and Hoop Company v. Searles, 93 Miss, 1, the buyers undertook both to reject and accept. The canning company rejected, then took the property and used; it was forced to keep it, but was allowed to recover on its warranty. Searles rejected short weight, ties, thus ending his contract; he could then have sued for breach of contract; after rejection, however he proceeded to appropriate them; he was not protected as was the canning company, and was allowed no right of recover, having really sustained no damage.

In the face of these decisions, appellee announces its truly amazing rule that: "He must reject, first, and he can then take the rejected articles as the property of the seller and either sell it after notice to the seller, or appropriate it and sue for damages for breach of contract."

Then, overruling Hall Commission Company v. Crook 40 So. 20; Mobile Auto Co. v. Struges, 66 So. 205; Rosenbaum's Sons v. Davis & Andrews, 71 So. 388; Bowers v. Music Co., 74 So. 774, and Cash Register Company v. Hude, 80 So. 378, it further reiterates that the buyer cannot accept and appropriate the property to his own use, with knowledge of the patent defects, or even the latent defects, and then repudiate his acts when called upon to pay, or sue for damages.

Appellee undertakes to read into Mr. Sharp's use of the word "accept" an intentional waiver and release of every claim held by him for appellee's admitted wilful violation of its contract; this is the same contention made in each of the cited cases. What Mr. Sharp did was to keep the brick for which he had already paid and use them in his building. This court, in announcing the two courses open to an injured person used the words "take," "receipt," retain," "acceptance;" and in the sense that he took, received and retained the inferior brick, Mr. Sharp accepted it. So were the bad oats, the unsatisfactory automobile, the unmerchantable chops, the "groan box" and the cash register accepted.

In conclusion, we repeat that this court has repeatedly stated that a buyer has two remedies, while in this instance appellee and the lower court would hold Mr. Sharp to only one remedy. Therefore the judgment of the lower court must be by this court reversed.

H. Cassedy, for appellee.

The record in this case does not disclose a case of sale by sample; nor a case of an article to be manufactured according to some specification nor a case of the fitness of the thing sold for the use, to which it was to be put; nor a case of an article for resale; nor a case involving the question of latent defects not discoverable by inspection, nor a case of express warranty, or as to that matter any warranty at all. The sole and only question, in the main, which is involved and the item upon which the jurisdiction of the circuit court was invoked, is whether or not, if there was an implied warranty of equality this warranty would survive acceptance.

The position of the appellant and the position of the appellee, as shown by the brief of appellant and his wonder that the learned circuit judge could have arrived at the conclusion that he did, has proceeded along parallel lines which can never cross, and if the appellant's contention is adopted, the law as laid down by the supreme court of this state in a number of decisions will be left hopelessly in conflict. Teidman on Sales, 187.

"The general rules of the English and American Law look to the fostering of self reliance in the individual for the vindication or protection of his interests if the individual can, by the exercise of reasonable prudence, protect himself. Hence the cardinal rule of the law of sales is embodied in the maxim caveat emptor; and it provides that there is ordinarily no warranty for the quality unless one is expressly demanded or given."

As far back as Anderson v. Burnett, 6 Miss. 165; 5 S. & M. the Mississippi court, by TROTTER, J. says: "The true rule appears to be, that the seller is liable to an action of deceit if he fraudulently misrepresents the quality or condition of the thing sold in some particular of which the buyer has no equal means of knowledge with himself. 2 Kent 382. But it is believed to be a well-settled principle of the law, that if the defect complained of was open equally to the observation of both parties, it is not embraced by a warranty even against all defects, nor any representation of the vendor. It was upon this ground held, that if a horse is warranted sound, and yet has some visible, palpable defect, which can readily be discovered by a prudent vigilance and attention, the buyer cannot ground an action upon the warranty on account of such defect . . . These principles fully authorized the first instruction which the court was asked to give the jury, that if they believed that the defendant had a full knowledge of the condition or situation of the town in regard to the subject of the representation that he could not complain if it was false." "Surely a man cannot complain of a false representation, unless it has been the means of deciving him. It was therefore, as we conceive, error in the court to refuse the charge." See, also, Sharpley v. Reese, 1. Miss. Dec. 523 and notes; Reed v. Randall, 29 N.Y. 358, 86 Am. Dec. 305, Lbr. & Box Co. v. Ritter Lumber Company, 82 C. C A. 527.

In Steuder v. Bleistein (N. Y.) 5 L. R. A. 702, the case of Reed v. Randal, is re-affirmed, and the New York cases on the same subject are discussed in the opinion. The case of Stilwell etc. v. Biloxi etc., 78 Miss. 779, while dealing with an express warranty as to capacity, adopts the...