Wallace v. Clark

• Decision Date: 21 May 1918
• Docket Number: Case Number: 8601
• Citation: 74 Okla. 208,174 P. 557,1918 OK 293
• Parties: WALLACE v. L. D. CLARK & SON et al.
• Court: Oklahoma Supreme Court

1918 OK 293

174 P. 557

74 Okla. 208

WALLACE v. L. D. CLARK & SON et al.

Case Number: 8601

Supreme Court of Oklahoma

Decided: May 21, 1918

Syllabus

¶0 1. Sales--Contract--Merchantable Goods.

In the absence of an agreement as to quality, the seller is not required to furnish to his buyer goods of the best quality; yet he cannot fulfill his contract by supplying articles of a poor grade, but must furnish articles of a fair average grade and such as are merchantable.

2. Same--Acceptance of Goods--Knowledge of Defects.

Where the law implies a warranty, the acceptance of the goods, with knowledge of the defects, will not bar an action for damages on account of a defect in the quality; but in such a case the warranty will survive the acceptance.

3. Same--Action for Price--Question for Jury.

Evidence examined, and held to present a question for the jury to determine as to the merchantability of the goods sold, and it was error for the court to have directed a verdict.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.

Action by E. F. Wallace, doing business as the Wallace Brokerage Company, against L. D. Clark & Son and others. Judgment for plaintiff in justice court, and on appeal to the district court judgment directed for defendants, and plaintiff brings error. Reversed and remanded.

Bernstein & Spiers, for plaintiff in error.

Fulton, Shirk & Danner, for defendants in error.

HOOKER, C.

¶1 When the transaction involved here transpired, Wallace was a broker in Oklahoma City, and Clark & Son were manufacturers or canners of sardines engaged in business in Maine. In September, 1915, Clark & Son offered in writing to sell Wallace some sardines, as follows:

"Offer one or two mixed cars Keyless Oils, three-quarters mustard $ 2 f. o. b. prompt shipment."

¶2 And on September 12, 1915, Wallace accepted the offer as follows:

"Eleventh. Ship latter part next week Seaboard Rock Island, six hundred fifty oils two hundred three-quarters mustards. "

¶3 And on September 20, 1915, Wallace requested oils increased 100 and mustards decreased 100. On October 7, 1915, the shipment arrived in Oklahoma City, and Wallace advised defendant in error by wire:

"Mustards satisfactory customers reject oils account too large, don't contain enough oil, only run about four fish to can," etc.

¶4 After some correspondence between the parties, wherein Wallace was at all times objecting to the quality of the oils and demanding a reduction of the price on account thereof, and Clark & Son were contending the shipment was all the market afforded and in every way satisfactory, Clark & Son refused to reduce the price and requested Wallace to divert the shipment, but Wallace declined to do so, and received the shipment by paying the draft to the collecting bank, and thereupon he instituted suit against Clark & Son in the justice court and garnished the money in the possession of the collecting bank, and in the petition filed in said action it is alleged:

"That for a valuable consideration the plaintiff purchased of the defendants, L. D. Clark & Son, 750 cases one-fourth oils, Banquet brand sardines, which sardines were to be standard sardines; that when the sardines arrived in Oklahoma City, and were inspected by this plaintiff they were found not to be up to standard, but that they were of a much inferior grade, the fish large and not the kind that the plaintiff purchased of the defendants, and which defendants were to ship to plaintiff; that the sardines were billed to plaintiff at $ 2 per case; that the sardines sent to plaintiff being of an interior grade were not worth more than $ 1.75 per case, or 25 cents less on each case; that the plaintiff's damage was 25 cents per case on the 750 cases, or the sum of $ 187.50, for which judgment was prayed."

¶5 No answer was filed in the justice court, and on the trial a judgment was ordered therein in favor of plaintiff in error; but an appeal was taken to the district court, where the cause was tried anew upon the same pleadings, and, after the introduction of all the evidence, the court directed a verdict in favor of the defendant in error, from which, after motion for a new trial was duly filed and overruled the plaintiff in error has appealed to this court.

¶6 It is asserted by the defendants in error that the sardines in question were sold by description, subject to inspection, and, being sold by description, the question of warranty does not enter into the contract between the parties, and that, if the sardines as delivered did not comply with the description, it was simply a breach of contract on the part of the seller, and in no state of the case a breach of any warranty; and that the plaintiff in error after inspection, with full knowledge of the alleged defects, accepted the shipment of sardines and paid for them; that he is now estopped to claim damages, as an acceptance of the goods constitutes a waiver of any alleged breach on the part of the seller. In support of the doctrine announced by the defendant in error, the following authorities are cited: Brown v. Baird, 5 Okla. 133, 48 P. 180; Brown v. Davidson, 42 Okla. 598, 142 P. 387; Talley v. Harrison, 60 Okla. 110, 159 P. 366; Springfield Shingle Co. v. Edgecomb, 52 Wash. 620, 101 P. 233, 35 L.R.A. (N. S.) 258; 35 Cyc. pp. 397-410, 605; Teedman on Sales, § 187; 24 Enc. Law 1157; Fla. Athletic Club v. Hope Lbr. Co., 18 Tex. Civ. App. 161, 44 S.W. 10; Armstrong v. Latimer, 165 Pa. 398, 30 A. 990; Darby v. Hall, 3 Penne. 25, 50 A. 64; Matthews v. Smith, 67 N.C. 374; and other cases.

¶7 By reference to the letters and telegrams which constitute the contract between these parties with reference to the sale and delivery of the sardines in question, we find that the contract only called for 650 oils, 200 three-fourths mustards, which was afterwards modified to 750 oils and 100 three-fourths mustards. This constitutes the only description of the sardines. It must be borne in mind that the defendants in error were manufacturers or canners of these sardines, and that the plaintiff in error was in the brokerage business, engaged in the sale thereof to their customers in their locality. These letters and telegrams do not provide what qualifications these sardines should possess, nor do they furnish any description by which we can determine what kind of sardines were to be shipped or what was contemplated by the parties, other than so many oils and so many three-quarters mustard; and as said in 35 Cyc. p. 214:

"Although, in the absence of a definite agreement as to quality, no particular quality will be implied, and the seller is not bound to furnish goods of the best quality, yet he cannot fulfill his contract by furnishing articles of the poorest quality, but must at least furnish articles of a fair average quality, and such as are merchantable. The mere fact that the value of the goods is not equal to the price paid is immaterial."

¶8 By the term "merchantable" we mean sardines of a quality such as is generally sold in the market and suitable for the purpose for which they are intended, although not of the best quality (see 35 Cyc. p. 219); and in 35 Cyc. p. 220, it is said:

"Generally, an article to be good or merchantable quality must be suitable for the purpose for which it is intended and the fact that the goods were not to be of the best quality does not change the rule. * * *"

¶9 This court, in the case of Standard Sewing Mach. Co. v. New State Shirt & O. Co., 42 Okla. 554, 141 P. 1111, held:

"In the absence of contract which negatives the same, there is an implied warranty in the sale of sewing machines that they are suitable to perform the ordinary work for which they are made."

¶10 And also in Nettograph Mach. Co. v. Brown et al., 28 Okla. 436, 114 P. 1102, 34 L.R.A. (N. S.) 737, it is held:

"The law implies a warranty in a contract for the sale of patented machines that they are reasonably adapted to the purpose for which they are made."

¶11 And in Williston on Sales, § 232, it is said:

"Where the seller manufactured the goods which he sold, a warranty that the goods are merchantable is implied both in England and in this country, unless something in the terms of the bargain indicates a contrary intention, or unless the buyer had opportunity to inspect the goods and this inspection would have disclosed the defect. If the seller holds himself out to the buyer as the manufacturer of the subject-matter of the bargain, the case is governed by the principles applicable to sales by manufacturers. * * *"

¶12 And in section 243 thereof, speaking of the meaning of the word "merchantable," it is said:

"The requirement when it exists that goods shall be merchantable does not require that the goods shall be of first quality, or even that they shall be as good as the average of goods of the sort. In some cases it is indeed said that goods must be of 'medium quality,' but this seems to go too far. On the one hand, it is not enough that the article is such as would in ordinary parlance be called by the name which the buyer and seller used to describe it, but, on the other hand, if there is no warranty of fitness for a particular purpose, the buyer cannot claim more than that the goods with their defects known shall be salable as goods of the general kind which they were described or supposed to be when bought."

¶13 And in Benjamin on Sales. vol. 11, p. 843, it is said:

"But where a chattel is to be made or supplied to the order of the purchaser, there is an implied warranty that it is reasonably fit for the purpose for which it is ordinarily used, or that it is fit for the special purpose intended by the buyer, if that purpose be communicated to the vendor when the order is given. * * *"

¶14 In Murchie v. Cornell, 155 Mass. 60, 29 N.E. 207, 14 L.R.A. 492, 31 Am. St. Rep. 526, it is said:

"In an executory contract for the sale of merchandise, it is an implied condition that it shall be of merchantable quality.' Hamilton v. Ganyard, 34 Barb. (N.Y.)

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