Tomlinson & Co. v. Morgan

• Decision Date: 23 September 1914
• Docket Number: 60.
• Citation: Tomlinson & Co. v. Morgan, 166 N.C. 557, 82 S.E. 953 (N.C. 1914)
• Parties: TOMLINSON & CO. v. MORGAN.
• Court: North Carolina Supreme Court

82 S.E. 953

166 N.C. 557

TOMLINSON & CO. v. MORGAN.

No. 60.

Supreme Court of North Carolina

September 23, 1914

Appeal from Superior Court, Robeson County; Bond, Judge.

Action by Tomlinson & Co. against H. M. Morgan. From a judgment for plaintiff for an insufficient amount, it appeals. Affirmed.

Facts proved held to justify award of damages sustained from diminution in crop as damages for breach of warranty of fertilizer used on the crop.

The action was to recover the contract price of certain fertilizers, sold by plaintiff to defendant in 1907, for use on defendant's farm for that year, and to foreclose a mortgage on certain personal property to secure the debt. Defendant, admitting the amount and the execution of mortgage, set up a counterclaim and offered evidence tending to show that the guano in question was sold by plaintiff to defendant in 1907 for use on defendant's tobacco crop for that year, and was so sold to defendant as "Dunnington Special," a high-grade fertilizer, specially suited to tobacco, and known as "8. 3. 3. goods"; that defendant used good plants, and same were properly put in and worked, and there was a marked diminution of his crop arising from lack of proper manure; that the guano sold to defendant under said representation was off grade or improperly mixed; that defendant's crop for that year was thereby seriously injured; and that the amount of damage done, attributable to this default, was from $400 to $500 etc.

Omitting the issues as to value of property secured by the mortgage which are irrelevant to any question presented, the jury rendered verdict on the claim and counterclaim as follows:

"First. Is the defendant indebted unto the plaintiff, and if so, in what amount? Answer: Yes, $274.55 (answered by the court by consent). * * *

Fourth. Did the plaintiffs contract to sell to the defendant a fertilizer suitable for the cultivation of tobacco? Answer Yes (answered by the court by consent).

Fifth. Was the guano sold by the plaintiffs to the defendant suitable for the growth of tobacco? Answer: No.

Sixth. Did the guano so sold contain the percentage of phosphoric acid and potash as represented? Answer: No.

Seventh. Was the defendant damaged by the use of said fertilizer, and if so, in what amount? Answer: $187.50."

There was judgment for plaintiff for amount of debt, less the counterclaim, and plaintiff, having duly excepted, appealed.

H. G. Connor, Jr., and W. A. Finch, both of Wilson, for appellant.

HOKE J.

In Wren v. Morgan, 148 N.C. 101, 104, 61 S.E. 641, 642, the court said:

"It is accepted law that to hold a bargainor in a sale responsible for a warranty it is not necessary that this should be given in express terms, but that an affirmation of a material fact, made by a seller at the time of the sale and as an inducement thereto and accepted and relied on by the buyer, will amount to a warranty" (citing Tiffany on Sales, p. 162; McKinnon v. McIntosh, 98 N.C. 89, 3 S.E. 840; Horton v. Greene, 66 N.C. 596).

And the court further quoted from the opinion of Davis, Judge, in McKinnon v. McIntosh, as follows:

"If the vendor represents an article as possessing a value which, upon proof, it does not possess, he is liable as on a warranty, express or implied, although he may not have known such an affirmation to be false, if such representation was intended, not as a mere expression of opinion, but in the positive assertion of a fact, upon which the purchaser acts, and this is a question for the jury" (citing Thompson v. Tate, 5 N. C. 97, 3 Am. Dec. 378; Inge v. Bond, 10 N.C. 101; Foggart v. Blackweller, 26 N.C. 238; Bell v. Jeffreys, 35 N.C. 356; Henson v. King, 48 N.C. 419; Lewis v. Rountree, 78 N.C. 323; Baum v. Stevens, 24 N.C. 411)."

And, in Reiger v. Worth, 130 N.C. 268, 41 S.E. 377, 89 Am. St. Rep. 865, it was held that a purchase of rice, under the assurances that it was excellent seed rice, amounted to a warranty. Applying the principles sustained by these authorities and others of like import, the verdict of the jury on the fifth issue, taken in connection with the pleading and evidence, establishes a warranty, made by plaintiff, that the guano sold in this instance, known as Dunnington Special, was a high-grade fertilizer, known as "8. 3. 3. goods" and specially suitable for tobacco. There is nothing in the case of Woodridge v. Brown, 149 N.C. 299, 62 S.E. 1076, that in any way militates against this position. In that case the record shows that the breach of warranty, as a counterclaim, was expressly withdrawn, nor does it appear that there was any assertion of a material fact relied on as an inducement to the sale.

The court does not understand that plaintiff seriously contends that a warranty has not been established by the verdict, but it is chiefly urged for error that there is no proper evidence tending to show a breach of the warranty, i. e that the guano sold was off grade, and, second, that, under our decisions, a loss claimed in diminution of the crop is too remote and uncertain to be made the basis for an award of damages. Undoubtedly, a counterclaim of this character presents such an inviting field for litigation and is so liable to abuse that it should not be entertained unless it is clearly established that there has been a definite breach of the warranty and satisfactory evidence is offered that the loss claimed is directly attributable to the breach and the amount can be ascertained with a reasonable degree of certainty. While the court should always be careful to see that these rules are not transgressed to the injury of a litigant, when the facts in evidence clearly meet the requirements, authority, in this state, is to the effect that the loss suffered in diminution of a given crop, when it is clearly attributable to a definite breach of warranty, as to the quality of a fertilizer, that it is within the contemplation of the parties and capable of being ascertained with a reasonable degree of certainty, may be made the basis for an award of damages. Herring v. Armwood, 130 N.C. 177, 41 S.E. 96, 57 L. R. A. 958; Spencer v. Hamilton, 113 N.C. 49, 18 S.E....