Whitaker v. McCormick

• Decision Date: 04 June 1878
• Citation: 6 Mo.App. 114
• Parties: BENJAMIN D. WHITAKER, Appellant, v. R. S. MCCORMICK ET AL., Respondents.
• Court: Missouri Court of Appeals

6 Mo.App. 114

BENJAMIN D. WHITAKER, Appellant,

v.R. S. MCCORMICK ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jun. 4, 1878.

1. Where the article sold is not present, and the purchaser has never seen it, if the vendor sell it by a specific description, whose meaning is a matter of common understanding between the parties, there is always an implied guaranty that the article sold, when delivered, shall be of the particular description.

2. Where one is bound to protect another from a liability, he is bound by the result of a litigation to which such other is a party, provided he had notice of the litigation, and power to control and manage it.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

G. M. STEWART and H. E. MILLS, for appellant, cited: Strong v. Insurance Co., 62 Mo. 289.

HENRY T. KENT, for respondents: There can be no implied warranty in this case, from the fact that where a party examines, or has an opportunity to examine, the quality or condition of a chattel in existence, the rule of caveatemptor does not admit of exception, and there can be no implied warranty under such circumstances.--Benj. on Sales (2d Am. ed), sect. 644; 1 Pars. on Con. (6th ed.) 582; McCormick v. Lawson, 45 N. Y. 265; Dennison v. Foster, 42 N. H. 165; Hart v. Wright, 17 Wend. 277; Humphreys v. Comline, 8 Blackf. 516; Kohl v. Lindley, 39 Ill. 204; Salisbury v. Stainer, 19 Wend. 159; Wilson v. Shackle-ford, 4 Rand. 7; Lindsay v. Davis, 30 Mo. 406.

LEWIS, P. J., delivered the opinion of the court.

On June 13, 1873, defendants were proprietors of the Advance Elevator, in East St. Louis, and sold to plaintiff, at the Merchants' Exchange in the city of St. Louis, five car-loads of “No. 2 white mixed corn,” then stored in the elevator. On the same day plaintiff sold the same corn, by the same name and description, to Scott, Collins & Co., on whose account it was shipped to Savannah, Georgia. Upon arrival at Savannah the corn was found to be in a damaged condition, which necessitated its sale by auction at a loss. Scott, Collins & Co. sued and obtained judgment against the plaintiff in this suit for breach of warranty as to the soundness and quality of the corn. Plaintiff paid off the judgment, and instituted this proceeding to obtain indemnity from his vendors. The verdict of a jury in the Circuit Court was for the defendants.

An important preliminary question is, whether in either or both of the sales there was a warranty of soundness or good quality in the article sold. Nothing appears to have been said about a warranty. While it may be true that in Missouri a warranty of grade or quality is not to be inferred from the price received by the vendor, yet when the article sold is not present, and the purchaser has never seen it, if the vendor sell it by a specific description, whose meaning is a matter of common understanding between the parties, there is always an implied guaranty that the article, when delivered, shall be of that particular description, and not of a different one. The testimony in this case tended to show that the term “No. 2 white mixed corn” was specifically descriptive. It identified a particular grade or degree of soundness and of fitness for shipping, which could not be mistaken for any other. If that grade or degree was wanting at the time of the sale and delivery, there was a breach of the guaranty. There was testimony from which the jury might find a guaranty and a breach in either transaction.

The material question in the present controversy is, whether the defendants were concluded by the judgment obtained by Scott, Collins & Co. against the plaintiff. The Circuit Court admitted the record in evidence, but in the giving and refusing of instructions directed the exclusive attention of the jury to the inquiry whether the corn was in fact within the description represented at the time of the sale by defendants to the plaintiff. This was manifestly erroneous.

It appeared from the testimony that immediately upon the receipt of notice by the plaintiff of the unsound condition of the corn,...