The trial, had upon counts 2, 3, and 4, resulted in verdict and judgment in favor of the plaintiff. Count 1 was eliminated by the charge of the court.
The sufficiency of count 2 wg,s challеnged by demurrer, on the ground that it does not appear that defendants knew at the time they made said alleged false and fraudulent representations thаt said cotton seed meal contained only 4.84 per centum of ammonia, instead of 7 per centum, and only 24.84 per centum of protein, instead of 36 per centum. Thus is raised the question of sufficiency of the count as for deceit in sale of chattels. Distinction must be observed between a count for a brеach of warranty, express or implied, in a contract of sale of chattels,, and that for deceit therein. In the former the good faith of the sellеr in making the contract is immaterial, the inquiry being: Was there a contract of warranty and has it been breached? In the latter the good faith of the seller in mаking the representation is material. When count 2 is duly tested by demurrer, it fails to aver that the plaintiffs were induced to act to their prejudice; there was еrror in overruling the same.
Oount 3 declared for a breach of warranty in the sale of 30 tons of cotton seed meal by the defendants to plaintiff as containing percentages of ammonia and protein therein indicated, and contained the averment that, in fact, said cotton seed meal did not contain such percentage, but a greatly less percentage, and the statement of the damages was;
“And the said meal of the latter grade at the time of said sale to plaintiffs by defendants was worth $20 per ton less than the former grade.”
We are of opinion that count 3, in substance, is in code form (seсtion 5382, form 22); and there was no error in overruling demurrer thereto.
Assignment of error challenged the correctness of the ruling of the trial court in sustaining demurrer to рleas 2 and 3, whereby defendants sought to set up as a defense that plaintiff had sustained no damage or injury. Upon the introduction of evidence, defendаnts sought to show that plaintiffs as merchants had sustained no damage in respects indicated, and a statement in the oral charge, to the effect that the fact that plaintiff had sustained no loss did not affect the right of recovery, was reserved by exception. The same question was raised by the refusal of writtеn charge No. 16 requested by defendants. It is desirable that these several rulings and exceptions pertaining to this attempted defense by defendants be cоnsidered together. There was no error in sustaining demurrer to plea 3 and the attempted defense showing .that the
cotton
seed meal was sold to plaintiff as merсhants for resale; that the 350 sacks thereof were
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resold to customers by, and without loss to, iffaintiff, and the balance was substituted by defendants for a like quantity or number of sacks of meal containing the percentages of ammonia and protein warranted in the sale. This is the justice and the law of damages in actions of assumpsit and fraud (Lowery v. Mutual Loan Soc.,
“Fraud, withоut damage, gives no cause of action; but when these two do concur, and meet together, there an action lieth.” Overdeer v. Wiley, Banks & Co.,30 Ala. 709 , 711.
The foregoing rule as to liability, or the extent thereof, is not the measure of damages where the action is for breach of a warranty, express or implied, inherеnt in the contract. In an action therefor the measure of “buyers’ damages for breach of warranty as to quality, suitability, and serviceability * * * [by manufacturers] wаs the difference between the actual value [of the chattel] * * * at the time of delivery to buyers or carriers for their account and its value if it had сoi’responded to the warranty, with interest on such difference from the date of such breach to the time of the trial; the price received by buyers оn a subsequent resale being immaterial.” Chapman & Co. v. Dowling Hdw. Co.,
The evidence shows that the car of cotton seed meal in question was sold by Attalla Oil & Fertilizer Company, a corporation (which manufacturеd same), to the Gadsden Brokerage Company, brokers who procured same to be shipped to Goddard Bros., partners doing a general mercantile business at Oneonta, and who sold 350 sacks of same. The brokerage company selling the meal to Goddard Bros, drew a sight draft on them, with bill of lading attachеd, for the purchase price thereof, which was paid by last purchaser. The car was unloaded and received in the store of Goddard Bros., who disposed of it in due course of their mercantile business. The invoice read:
“Gadsden Brokerage Company, Gadsden, Ala. 4/18/19. In account with Goddard Bros., Oneontа, Ala. Terms: S/D B/L.”
We take judicial knowledge that this abbreviation means “sight draft — bill of lading attached.” Cochran v. State,
The president of the Gadsden Brokerage Company testified that his corporation ordered the meal from Attalla Oil & Fertilizer Company, with which it had contracted to ship “order notify”; that it was not a brokerage, but of sale and payment made to the former corporation by Attalla Oil & Fertilizer Company in due course, the invoice being:
“Attalla Oil & Fertilizer Co. Golden Rod Brands, Gadsden, Ala. 4/18/1919. Sold to Gadsden Brokeragе Co.; address, Gadsden, Ala. Ship to Goddard Bros.; address, Oneonta, Ala. Terms, draft due 4/39/19, car No. & initial NH8G4S0. 400 Bags 7 per cent Meal CS at 855.20. $1,104.00. Interest 12 days $3.00, $1,107.00.”
The respective invоices are on wholly different terms, the former being sight draft with bill of lading attached, the latter shipped to “order notify” by authority of Gadsden Brokerage Compаny, after being sold to them on terms due April 4, 1920, interest for 12 days, etc. This shows a contract of sale by Attalla Oil & Fertilizer Company to Gadsden Brokerage Company, and not a contract of brokerage.
Unless-there was a privity of contract between defendants Attalla Oil & Fertilizer Company, a corporation, and plaintiff Goddard Bros., a partnership, the former corporation was not liable to Goddard Bros, on a breach of warranty. That is to say, the mеre fact that Attalla Oil & Fertilizer Company placed tags on the sacks of meal that it sold Gadsden Brokerage Company, containing the statement thаt it was 7 per cent., etc., and that the meal was resold by the brokerage corporation to Goddard Bros, as merchants, for resale by that partnership, without more, did not render the manufacturer liable to Goddard Bros, on warranty of its quality, in the absence of contract or privity of contract with Goddard Bros. The inquiry then is: Were parts of the oral charge to which exception was reserved, as to duty and liability of Attalla Oil & Fertilizer Company on the warranty to Goddard Bros, free from error when considered with other given instructions?
In Jones v. Gulf States Steel Co.,
The judgment is reversed, and the cause is remanded.
Reversed and remanded.