Swift & Co. v. Etheridge

• Decision Date: 30 September 1925
• Docket Number: 16.
• Citation: 129 S.E. 453,190 N.C. 162
• Parties: SWIFT & CO. ET AL. v. ETHERIDGE.
• Court: North Carolina Supreme Court

129 S.E. 453

190 N.C. 162

SWIFT & CO. ET AL. v. ETHERIDGE.

No. 16.

Supreme Court of North Carolina

September 30, 1925

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

Action by Swift & Company and others against H. Etheridge.Judgment for defendant, and plaintiffs appeal.New trial.

Chemical analysis of fertilizer not necessary to prove failure of consideration.

Action upon note, dated at Harbinger, N. C., May 13, 1922, executed by defendant, payable to order of plaintiff, for value received in fertilizers.Execution and delivery of the note is admitted in the answer.

As a defense to plaintiff's cause of action upon said note defendant, in his answer, says:

"That the note set out in the complaint is without consideration that the fertilizer which defendant purchased of the plaintiff, Swift & Co., and its agent set out above, is worthless, that the defendant purchased it, had his lands well prepared for potatoes, had obtained good seed potatoes, and placed the fertilizer on the lands in proper condition, and properly placed and cultivated the potatoes thereon; that the said fertilizer was absolutely worthless and of no value or benefit to the crop; that the said fertilizer was sold to defendant for potato fertilizer, and such that would be suitable for the potatoes, and with the representation that it had the proper ingredients to produce good potatoes and to produce them for early market; that in truth and in fact the fertilizer did not have these ingredients; that it did not produce the potatoes nor advance them for the early market; and that the consideration for the note as aforesaid was nothing except the said fertilizer, and that the defendant owes to the plaintiff nothing by reason thereof."

As a counterclaim to plaintiff's cause of action on said note, defendant avers that he purchased from plaintiff, during the spring of 1922, fertilizers; that he executed his note payable to plaintiff, in the sum of $351, for the purchase price of said fertilizers, as set out in the complaint; that plaintiffs represented to defendant that said fertilizers were good fertilizers and suitable for potatoes; that it had the proper ingredients and would produce potatoes at an early date; that said fertilizers were not as represented, and that by reason thereof defendant was damaged in the sum of $351.

Plaintiffs, in reply to the counterclaim, deny that they made representations with respect to the fertilizer sold to defendant, as alleged by defendant, and rely upon the contract as set out in the note.The issues tendered by defendant and submitted by the court to the jury were as follows:

"(1) Was the fertilizer, the consideration of the note, worthless?

(2) What amount, if any, are plaintiffs entitled to recover?"

The jury answered the first issue "Yes," and, having so answered same, under the instructions of the court, did not answer the second issue.Plaintiffs moved that the verdict be set aside for errors.Motion denied, and plaintiffs excepted.Plaintiffs then moved for judgment on the pleadings and non obstante veredicto.Motion denied, and plaintiffs excepted.Judgment was thereupon rendered that plaintiffs take nothing by their action, and that defendant go without day and recover of plaintiffs his costs to be taxed by the clerk.Plaintiffs, having excepted to this judgment, appealed to the Supreme Court.Assignments of error appear in the opinion.

Ehringhaus & Hall, of Elizabeth City, for appellants.

Aydlett & Simpson, of Elizabeth City, for appellee.

CONNOR J.

Defendant did not insist upon the counterclaim as set up in his answer at the trial of this action.He tendered no issues involving the matters relied upon in support of his counterclaim.There was neither allegation nor proof that the fertilizers purchased by defendant of the plaintiffs had been subjected to a chemical analysis showing a deficiency of ingredients, which is made, by statute, a prerequisite to a suit for damages resulting from the use of the fertilizers.C. S. § 4697.Defendant could not, therefore, have maintained an action to recover such damages.Jones v. Union Guano Co.,183 N.C. 338, 111 S.E. 612;Id., 264 U.S. 171, 44 S.Ct. 280, 68 L.Ed. 623.Nor could he, without such allegation and proof, have maintained a counterclaim for such damages.American Fertilizing Co. v. Thomas,181 N.C. 274, 106 S.E. 835;Pearsall v. Eakins,184 N.C. 291, 114 S.E. 291.There is no provision in the contract between the parties to this action abrogating the statutory requirement.Defendant was therefore well advised when he did not insist upon the counterclaim.

The only defense relied upon by defendant is failure of consideration for the note sued upon.He admitted the execution of the note as set out in the complaint, but alleged that the fertilizers delivered to him pursuant to the contract of sale, which were the consideration for the note, were worthless.This note contains a clause in words as follows:

"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."

By these words, included in the note signed by him, defendant admits that there was no express warranty by plaintiffs as to results from the use of the fertilizers or otherwise.He is thereby precluded from alleging or contending that there was any express warranty for the breach of which he is entitled to damages.Indeed, upon the trial he made no such contention.

The rule of caveat emptor, as applied at common law in the sale of articles of personal property, is not applicable to the sale of commercial fertilizers in this state."By the common law, the vendor is not bound to answer to the vendee for the quality or goodness of the articles sold, unless he expressly warrants them to be sound and good, or unless he knew them to be otherwise, or unless they turn out to be different from what he represents them to the buyer; in other words, there must be either an express warranty or fraud, to make the vendor answerable for the quality or goodness of the articles sold."11 C.J. 43, note b. In this jurisdiction, however, the harshness of the rule of caveat emptor, when strictly applied, is modified and mitigated by the doctrine of implied warranties, which is based upon the presumption that men who receive something of value in commercial transactions intend to give, in return, something of value."It is well settled," says Justice Brown, in Grocery Co. v. Vernoy,167 N.C. 427, 83 S.E. 567, "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."Justice Allen, in Ashford v. Shrader,167 N.C. 45, 83 S.E. 29, and Justice Walker in Medicine Co. v. Davenport,163 N.C. 297, 79 S.E. 602, approve the principle as stated in Benjamin on Sales, §§ 683and686, in the following words:

"If a man sell an article, he thereby warrants that it is merchantable; that is, fit for some purpose.If he sells it for a particular purpose, he thereby warrants it to be fit for that purpose."

It is contended, however. that the words, "or otherwise," negative, not only an express warranty by contract between the parties, but also any warranty implied by law, in accordance with the principle above stated.This contention does not commend itself to us as consistent with the honesty of purpose with which plaintiffs are entitled to be credited in their dealings with their customers.The law presumes an honest purpose on the part of plaintiffs in the conduct of their business in this state as manufacturers and sellers of commercial fertilizers.It will not presume a purpose to collect from customers the contract price for articles sold regardless as to whether they are worthless or not.Plaintiffs sold and contracted to deliver to defendant commercial fertilizers; they seek in this action to recover the purchase price for the articles delivered pursuant to this contract.Plaintiffs did not guarantee the results from the use of the fertilizers, nor did they guarantee the quality or goodness of the articles sold.It was the duty of plaintiffs, however, to deliver to defendant, pursuant to the contract, commercial fertilizers.The law implies an undertaking by the plaintiffs to perform this duty.Plaintiffs will not be heard, when seeking to enforce rights under the contract, to say that they absolved themselves from the performance of the duty which the law imposed...