Swift & Co. v. Aydlett

• Decision Date: 20 October 1926
• Docket Number: 11.
• Citation: 135 S.E. 141,192 N.C. 330
• Parties: SWIFT & CO. et al. v. AYDLETT.
• Court: North Carolina Supreme Court

135 S.E. 141

192 N.C. 330

SWIFT & CO. et al. v. AYDLETT.

No. 11.

Supreme Court of North Carolina

October 20, 1926

Appeal from Superior Court, Pasquotank County; Grady, Judge.

Action by Swift & Company and others against Albin Aydlett. From a judgment for plaintiffs for part only of the recovery sought both parties appeal. No error in plaintiffs' appeal error in defendant's appeal, and cause remanded.

Where personal property is sold by name which, in itself represents that it is merchantable or salable, the law implies a warranty that the representations are true.

Civil action on note for $220.50, payable to order of plaintiffs Swift & Company, dated May 13, 1922, and due on or before September 1, 1922. Said note was executed by defendant for value received in fertilizers and contains the following clause:

"The consideration of this note is commercial fertilizers sold to the undersigned without any warranty as to results from its use or otherwise. Said fertilizers have been inspected, tagged, and branded under and in accordance with the laws of this state."

Defendant, in his answer, admits the execution of the note sued on, and in defense of plaintiffs' action thereon, pleads total failure of consideration, first, in that the fertilizers delivered by plaintiffs were absolutely worthless and of no value or benefit to the crop under which they were used by him; and, second, in that said fertilizers did not contain the proper ingredients to produce good potatoes and to produce them for the early market, as represented by plaintiffs.

Defendant offered evidence tending to show that the commercial fertilizers which he bought of plaintiffs in 1922 were the kind which he had bought of plaintiffs and had used under his potato crop during previous years; it was Swift's 8-3-3, and, when used during said years on the same land as that on which defendant planted potatoes in 1922, produced good potatoes for the early market; that defendant planted and cultivated his potato crop in 1922 in the same manner, and by the same methods that he had used in the previous years; that the weather conditions and growing season for his crop in 1922 were good; that he sowed the fertilizers delivered to him by plaintiffs in 1922 in the same quantity per acre and by the same method that he had sowed in previous years, when he made good crops; that in 1922 his potatoes never got fit to dig; that he dug them and put them on the market, but got nothing for them because they were strings; that the land, without any fertilizers, would have produced such potatoes as he made in 1922; that defendant is a farmer, and has been raising sweet potatoes in Currituck county, where the land upon which he made his crop in 1922 is situate, for 20 years; that plaintiffs knew that he bought the fertilizers-Swift's 8-3-3-for sweet potatoes; that it is the kind of fertilizers adapted to sweet potatoes, and always used by defendant for that crop.

There was evidence that defendant planted his potato sprouts in 1922, about May 1; that the fertilizers which plaintiffs delivered to him were sowed when the sprouts were planted; that potato sprouts, when the seasons are good, usually start off well, and do not show any effect of fertilizers sowed under them until two or three weeks after they are planted; that, if no fertilizers are used, they then begin to turn yellow and do not thrive; that, if commercial fertilizers are used when the sprouts are set out, at the end of two or three weeks they begin to grow, and soon thrive; that about the last of May or the first of June, 1922, when the effect of fertilizers, such as defendant had bought of plaintiffs would ordinarily have first been observed, defendant's plants began to fail; that from then until the potatoes were dug about the first of August, defendant's crop did not show any effect from the fertilizers used under the plants; that from the time the sprouts were set out until defendant signed the note, the plants were growing satisfactorily; that sweet potato sprouts will grow, for the first week or two after they are planted, better without fertilizers than they will with fertilizers.

Plaintiff, in apt time, objected to all testimony offered as evidence as to the results of the use of Swift's 8-3-3 under crops grown on defendant's land during years previous to 1922, and to all testimony as to the result of the fertilizers delivered to defendant of the crop of 1922; upon their appeal, they assign as error the admission of this testimony as evidence upon the first issue.

No chemical analysis of the fertilizers delivered by plaintiff to defendant was offered as evidence by defendant; it is admitted in the pleadings that no chemical analysis of said fertilizers, showing a deficiency of ingredients, was made, under the provisions of C. S. § 4697, at the instance of either plaintiffs or defendant.

The issues submitted to the jury, with answers thereto, are as follows:

"(1) Did the plaintiffs fail to deliver to defendant commercial fertilizers of the analysis guaranteed on the bags, in accordance with their contract? Answer. Yes.

"(2) If so, what was the value of the fertilizers that were delivered to defendant? Answer. 33 1/3 per cent. ($73.50).

"(3) In what amount, if anything, is the defendant indebted to plaintiff? Answer. $73.50."

Defendant excepted to the submission of the second and third issues, and, upon appeal, assigns same as error.

From judgment upon the verdict that plaintiffs recover of defendant the sum of $73.50, with interest and costs, both plaintiffs and defendant appealed to the Supreme Court.

Ehringhaus & Hall, of Elizabeth City, and R. C. Lawrence, of Lumberton, for plaintiffs.

Aydlett & Simpson, of Elizabeth City, for defendant.

CONNOR J.

The note sued upon in this action is identical in form with the note upon which plaintiffs sought to recover of defendant in Swift v. Etheridge, 190 N.C. 162, 129 S.E. 453. The defense in that action was the same as that pleaded in this action. The defense in each action is absence or failure of consideration for the note executed by defendant and payable to the order of plaintiff.

With respect to negotiable instruments, it is provided by statute in this state that:

"Absence or failure of consideration is matter of defense as against any person not a holder in due course, and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise." C. S. § 3008; Uniform Neg. Ins. Act, § 28.

This defense is available to the defendant in an action to recover upon a note, in form a negotiable instrument, the consideration for which, as recited therein, is commercial fertilizers sold by plaintiff to defendant. The fact that the consideration, as appears in the face of the note, is commercial fertilizers sold to the maker, cannot be held to deprive defendant, the vendee, of matters of defense which, by statute, are available in an action upon a negotiable instrument. It was held by this court in the opinion written by Clark, C.J., in Continental Jewelry Co. v. Stanfield, 183 N.C. 10, 110 S.E. 585, that, if goods delivered by the vendor to the vendee were worthless and unmerchantable, the provisions in the contract of sale that vendee might return any of the goods and receive from the vendor other articles of the same grade was no warranty at all except in form; that there was a total failure of consideration for the contract to pay the purchase price of the goods sold; and such failure was a good defense in an action by the vendor to recover of the vendee the purchase price of the goods. It was further held that the goods having been sold without opportunity for inspection, there was an implied warranty that they should, at least, be merchantable, citing in support of the decision Main v. Field, 144 N.C. 310, 56 S.E. 943, 11 L. R. A. (N. S.) 245, 119 Am. St. Rep. 956; Dr. Shoop Family Medicine Co. v. Davenport, 163 N.C. 294, 79 S.E. 602; Ashford v. Shrader, 167 N.C. 45, 83 S.E. 29.

It is immaterial that defendant, vendee, gave to plaintiff, vendor, a note, in form negotiable, for the purchase price of the goods sold; the defense of failure of consideration is available to defendant, maker of the note, as against any person not a holder in due course. Plaintiff, Swift & Company, is the payee, and not holder in due course. C. S. § 3033.

The doctrine of implied warranty in the sale of personal property is too well established in this jurisdiction now to be drawn in question. It should be extended rather than restricted. Poovey v. Sugar Feed Co., 191 N.C. 722, 133 S.E. 12; Swift v. Etheridge, supra. The harshness of the common-law rule of caveat emptor, when strictly applied, makes it inconsistent with the principles upon which modern trade and commerce are conducted; the doctrine of implied warranty is more in accord with the principle that "honesty is the best policy" and that both vendor and vendee, by fair exchange of values, profit by a sale. In Lexington Grocery Co. v. Vernoy, 167 N.C. 427, 83 S.E. 567, the late Justice Brown says:

"It is well settled by repeated decisions that on a sale of goods by name there is a condition implied that they shall be merchantable and salable under that name; and it is of no consequence whether the seller is the manufacturer or not or whether the defect is hidden or might possibly be discoverable by inspection."

In Hall Furniture Co. v. Crane Mfg. Co., 169 N.C. 41 85 S.E. 35, L. R. A. 1915E, 428, in the opinion of Justice Allen, it is held that, although there is no implied warranty as to quality in the sale of personal property, the seller is held to the duty of furnishing property in compliance with the contract of sale-that is,...