Somerville v. Gullett Gin Co.

• Decision Date: 20 April 1917
• Citation: 194 S.W. 576,137 Tenn. 509
• Parties: SOMERVILLE ET AL. v. GULLETT GIN CO.
• Court: Tennessee Supreme Court

194 S.W. 576

137 Tenn. 509

SOMERVILLE ET AL. v. GULLETT GIN CO.

Supreme Court of Tennessee.

April 20, 1917

Certiorari to Court of Civil Appeals.

Action by W. G. Somerville and another against the Gullett Gin Company. On certiorari by both parties to review judgment of the Court of Civil Appeals reversing judgment for defendant. Judgment of Court of Civil Appeals reversed, and judgment of circuit court affirmed.

GREEN J.

This suit was brought by Somerville & Somerville, a firm of cotton planters, to recover damages from the Gullett Gin Company on account of the failure of certain cotton gins to work and gin plaintiffs' crop, and plaintiffs sued for the amount alleged to have been lost by reason of delay and missing a favorable market. The trial judge, after excluding most of plaintiffs' proof directed a verdict in favor of the defendants, and plaintiffs took the case to the Court of Civil Appeals. That court reversed the action of the trial judge and remanded the case for trial. Both parties filed petitions for certiorari, and both petitions have been granted and the case argued here.

It appears that the plaintiffs were Mississippi planters and grew on their place a peculiar variety of long staple cotton. In the spring of 1913 they purchased fom the defendants certain cotton gins to be installed on plaintiffs' plantation. The gins were set up before the cotton was picked. The negotiations prior to the contract were had between the plaintiffs and an agent of defendants, one Barrett, and a written contract was entered into as follows:

"Gullett Gin Co., Amite, La.:

You will please send to point named below on or about--as soon as possible--1913, or as soon thereafter as possible the machinery herein described, upon the terms and conditions expressed. [ Shipping directions then follow with the terms of purchase.]

3-70 saw R. H. MB Huller, Double Ribb gin.

1-11"' Overflow Telescope Pipe & Leather Joint

30 1/2' 8"' Leather Belt.

One Idler for Main Drive Belt.

4' of Distributer Box with Belt.

Extra Huller Rollers for Gins.

Machinery is sold subject to warranty expressed on back hereof, and no other.

This order is subject to the approval of the Gullett Gin Company at its principal office in Amite, La., and when accepted it will not be subject to countermand without their written consent; and in event of such consent the purchaser agrees to pay in consideration thereof an amount equal to one-fifth of the purchase price herein stipulated, which sum shall at once be due and payable.

No agreement, verbal or otherwise, other than set forth herein forms any part of this contract.

Witness my (or our) signature this 23d day of May, 1913.

Somerville & Somerville,

By Wm G. Somerville.

Accepted at Amite, La., May 24, 1913.

Gullett Gin Company,

By E. H. Bostick, Sect."

The warranty expressed on the back of this contract was in these words:

"This machinery is fully warranted to be of good material and well made, and with proper management to perform what is claimed for it in printed circulars.

But, if, upon a full and fair trial, it should not satisfactorily do its work, then immediate notice must be given in writing to Gullett Gin Company, at Amite, La., and to the agent from whom it was purchased, and reasonable time and friendly assistance given to remedy the defect; and in case the trouble be caused from a clearly defined original defect in the machine itself, then the Gullett Gin Company will furnish the defective part without charge; defect in any part not to condemn other parts.

And if, on trial, the machine cannot be made to perform the work of a capacity for which it was sold, as per this order, then the Gullett Gin Company agrees to take said defective machinery back and refund so much of cash payment and notes as applies to the defective machinery.

The purchaser agrees to properly put up and operate machinery according to the plans furnished by the Gullett Gin Company, and that, if the fault be traceable to not putting up by these plans or operating according to directions, purchaser agrees to pay all expenses incurred in rectifying it.

Ten days' use of same will be conclusive evidence of fulfillment of warranty and acceptance.

Any failure on the part of purchaser to comply with his contract releases this warranty entirely."

The plaintiffs insist that Mr. Barrett, defendants' agent, gave them a parol warranty in respect to the gins at the time they were ordered, that he represented them as being peculiarly adapted to the long staple cotton which plaintiffs grew, and they base their suit partially on a breach of the said warranty, which is not a part of the written contract.

We are of opinion that the plaintiffs cannot recover on this alleged verbal warranty, for two reasons: First, because it was beyond the apparent scope of the agent's authority to have made such a warranty; and, second, because the evidence tending to show that such a warranty was made must be held inadmissible in view of the written contract.

Referring recently to the power of a selling agent to make waranties, this court said that an agent might make such warranties as the law would imply had the sale been made by the principal direct, and also that an agent had "implied authority to make in the name of the principal such warranty of the quality and condition of the property sold as is usually and customarily made in like sales of similar property at that time and place." Nixon Mining Drill Co. v. Burk, 132 Tenn. 481, 178 S.W. 1116, L. R. A. 1916C, 411.

There is no proof in this record as to what is usual and customary in the sale of cotton gins, but we pass this.

The agent of the defendants in the case before us was supplied with blank order forms, one of which, heretofore set out, the plaintiffs signed and forwarded to the defendants. As appears above, it was stipulated in this order that "no agreement verbal or otherwise, other than set forth herein, forms any part of this contract." It was further stipulated that the machinery was sold "subject to the warranty expressed on the back hereof and no other."

This order, containing these representations, signed by the purchasers, went on to the sellers for acceptance, before the contract was consummated.

The Supreme Court of Washington has said:

"While an agent's authority can hardly be limited by the form of blanks he carries, that circumstance and the nature of the business should put a purchaser on inquiry." Johns v. Jaycox, 67 Wash. 403, 121 P. 854, 39 L. R. A. (N. S.) 1151, Anno. Cas. 1913D, 471.

"Evidence that the authority of the agent to warrant was limited to the giving of a printed warranty only furnished him by his principal is not admissible unless it be also shown that the purchaser had knowledge of the limitation; but where the purchaser has knowledge that such a warranty was furnished, he cannot accept an oral warranty from the agent different in its terms and require the principal to comply with such oral warranty." Mechem on Sales, § 1288 citing Wood Mowing & Reaping Co. v. Crow, 70 Iowa, 340, 30 N.W. 609; ...