Troy Grocery Co. v. Potter & Wrightington

• Decision Date: 21 January 1904
• Parties: TROY GROCERY CO. v. POTTER & WRIGHTINGTON.
• Court: Alabama Supreme Court

36 So. 12

139 Ala. 359

TROY GROCERY CO. v. POTTER & WRIGHTINGTON.

Supreme Court of Alabama

January 21, 1904

Appeal from Circuit Court, Pike County; John C. Anderson, Judge.

Action for goods sold and delivered by Henry S. Potter and Charles W. Wrightington as copartners, etc., against the Troy Grocery Company. From a judgment for plaintiffs, defendants appeal. Reversed.

In plea No. 4 it was averred that the suit was founded upon a verbal contract for the purchase of a lot of fish by the defendants from the plaintiffs, through the latter's agent and traveling salesman, one James Faussett; that as such salesman the said Faussett represented to the defendants that the 175 kits of fish proposed to be purchased by them would contain about 10 pounds each of fish; that, relying upon said representation as to the weights of such kits of fish, the defendants gave to said Faussett, as the agent of said plaintiffs, an order for 175 kits of fish; that, instead of shipping kits that contained about 10 pounds of fish each the plaintiffs shipped to the defendants 100 kits containing 6 pounds of fish each and 75 kits containing 8 pounds of fish each; that as soon as the defendants discovered this difference they reported the shortage to the plaintiffs, and offered to pay them for the fish less the shortage; that some of the kits of fish had been sold by the defendants, and others had been broken and consumed by the defendants, before they discovered the difference in the kits received and those ordered; that thereupon the defendants offered to pay the plaintiffs for the kits that had been sold, broken, consumed or shipped, and to return the balance to the plaintiffs which was declined by the plaintiffs; that thereupon, the plaintiffs refusing to accept this proposition, the defendants paid the plaintiffs for such as had been sold broken, or used, and notified the plaintiffs that the balance were in their possession, subject to their order, and offered to return the same. The fifth plea, after reciting that the suit was for the fish mentioned in the fourth plea, then alleged that in making the sale to the defendants the said James Faussett, as agent and salesman for the plaintiffs, and as an inducement to secure the order from the defendants warranted said fish to keep good and sound from the time of their packing, and that they would be packed immediately upon receipt of said order by the plaintiffs; that the defendants relied upon said warranty, and gave the plaintiffs the order through said Faussett; that by reason of being carelessly or defectively packed, or for other causes unknown to defendants, said fish became damaged and spoiled within about three months after they were so packed and shipped to the defendants, and were entirely worthless and valueless, and this notwithstanding the defendants gave them all necessary and proper care and attention; that the defendants have paid the plaintiffs for all of said fish that were not worthless, and that the remainder of said fish were not merchantable, and were of no value whatever, even before the expiration of the 12 months they were warranted to keep and that by reason of the breach of said warranty defendants owe the plaintiffs nothing. In the sixth plea, the defendants averred that at the time of the purchase of said fish by them the plaintiffs were packers and wholesale dealers in fish, and in the sale of said fish to the defendants they impliedly warranted them to be properly packed, so that they would keep in a safe and sound condition for a reasonable length of time, which reasonable length of time, when fish are properly packed, is from 12 to 18 months; that the defendants bought said fish for resale, and not for mere use, which fact was known to plaintiffs; that said fish were not properly packed, but, on the contrary, were so carelessly, recklessly, or defectively packed by plaintiffs that they became damaged, spoiled, and rotten within three months after they were packed, and thereby became entirely worthless, and of no value; that the plaintiffs packed said fish to fill their order, and for the purpose of being resold by the defendants; that the fish did not become spoiled or damaged on account of any negligence or fault on the part of the defendants; that, when properly packed and cared for, fish will keep sound and in a merchantable condition for from 12 to 18 months; that, therefore, plaintiffs impliedly warranted said fish to keep sound and in a merchantable condition for such length of time, and that, notwithstanding such implied warranty, within about 3 months after they were shipped to the defendants the said fish became so spoiled and damaged as to be entirely worthless, and of no value whatever; that the defendants have paid plaintiffs for all fish that were merchantable and of any value; and that by reason of the breach of the implied warranty, herein set out, they owe the plaintiffs nothing.

To these special pleas the plaintiffs demurred as follows:

To the fourth plea the plaintiffs demurred upon the following grounds: (1) That said plea does not show loss or damage to defendants by reason of said shortage. (2) The plea does not show that plaintiffs failed to fill the order as sent in by defendants. (3) That said plea shows that the representations that the kits would contain about 10 pounds of fish is the mere expression of opinion. (4) Said plea shows that defendants accepted said fish by exercising acts of ownership over them, and estopped...