Englehardt v. Clanton, 83 Ala. 336

83 Ala. 336 | Ala. | 1887

CLOPTON, J.

— When a suit is brought on a joint contract against two or more defendants as partners, and, during the progress of the trial, the proof discloses that one of the defendants is not a partner, the complaint may be amended to meet the state of the evidence, and to remedy the misjoinder. In such case, an amendment, striking out the party shown not to be a partner, and correcting the description of the partnership, does not work a discontinuance of the entire action. — Jones v. Englehardt, 78 Ala. 505.

The suit is brought by appellee against appellant, to recover the price paid for painting the roof of her house, the defendant furnishing a paint known as “The Mott Eire-Proof Paint.” The complaint contains two counts — one for money had and received, and the other on an express warranty against leaking for the term of five years. The defendant, denying an express warranty, or representation of a fact, relies on the special defense, that he had no personal knowledge of the paint, and so stated, and merely gave an expression of opinion as to its value, based on the statements of his vendor. If the jury should find, on the evidence, that there was either an express or implied warranty of the utility and fitness of the paint for the purpose to which it was to be applied, and that it was worthless and unfit for such purpose, there can be no question of plaintiff’s right to recover. For the purpose of showing an express warranty," or representation of facts from which a warranty may be implied, it is admissible to prove that the defendant, at the time of making a contract with one person, to paint the roof of his house with a particular kind of paint, in which he was dealing, represented that it was valuable for closing up and stopping leaks of roofs, and also represented and guaranteed that the roofs of houses painted therewith would last without leaking for five years; and that the same person, as the agent of the plaintiff, shortly thereafter made a contract with the defendant to paint the roof of plaintiff’s house with the same paint, in the same way, at an increased price. The admissibility of the evidence rests on the principle, that when a representation as to the fitness of an article for a particular purpose, made by a dealer to one person, in respect to a sale for such purpose, is communicated to a third person, who, acting upon it,' makes a subsequent purchase of the same article, such communication being known to the dealer, and he remains silent, it will be treated as if directly made by him to such third person. — Crocker v. Lewis, 3 Sumner, 1. From the facts above stated, if found by the jury to' be true, the inference may be reasonably drawn, that the representations and warranties, on the faith of which the first contract was made, were, in the absence of countervailing proof, contemplated by the parties, and constituted the ground on which the plaintiff entered into the subsequent contract.

The charge requested by the defendant, as to what is essential to create an implied warranty, asserts a correct proposition in ordinary sales of personal chattels. As a general rule, there must be an affirmation of a fact, as distinguished from a mere expression of opinion. Puffs of commodities offered for sale, merely commendatory words, such as are usual, are not regarded as contractual, nor imposing a liability. But charges should be framed and given in reference to the evidence, and its tendencies to establish or disprove any or all of the grounds, within the issues made by the pleadings, on which plaintiff claims a right to recover. When so considered and construed, the charge is abstract, there being no evidence that mere words of praise or commendation were used, and it ignores all reference to the evidence tending to show an express or implied warranty and representation of facts. — Thorne v. McVeagh, 75 Ill. 81.

At the request of the plaintiff, the court instructed the "jury, that if the defendant was dealing in the paint, and the agent of plaintiff, in making the contract, relied upon the judgment and skill of the defendant as to the paint, then there was an implied warranty that the paint should be reasonably fit for the purpose to which it was to be applied. An implied warranty may arise from the relation which the seller sustains to the article, its sale for a particular purpose known to him, and the reliance of the purchaser on his skill or judgment to furnish what is fitted for the purpose. When a manufacturer of articles, intended for a special purpose, contracts to sell those of his own manufacture, he will be held to a stipulation, in the absence of an express warranty, that they shall be reasonably fit for the purpose for which manufactured. — Snow v. Shoemacher Man. Co., 69 Ala. 111; Pacific Guano Co. v. Mullen, 66 Ala. 682. The same rule extends to dealers in articles sold for a special use or purpose. It is stated by Mr. Benjamin as follows: “ When a manufacturer, or a dealer, contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer there is in that case an implied term of warranty that it shall be reasonably fit for the purpose to which it is to be applied.” — 2 Benj. on Sales, §§ 988, 995; Perry v. Johnston, 59 Ala. 648. The doctrine is especially applicable when the manufacturer or dealer not only supplies the article, but also makes the intended application. In contracts of purchase and sale, when an examination is impracticable from the nature of the article, and it is evident that the purchaser necessarily relies on the judgment or skill of the dealer, the implied warranty extends to defects unknown to him. In such case, the law devolves on him the duty and obligation to ascertain and judge of the fitness of the article for the particular use or purpose for which he agrees to furnish it. — 2 Benj. on Sales, § 994; Rogers v. Niles, 11 Ohio St. 48. The circumstances requisite to an implied warranty in such case are, that the seller shall be a manufacturer or dealer, shall have information of the particular use for which the article is intended, and the purchaser trusts to the judgment or skill of the manufacturer or dealer from necessity or other sufficient causes, and not on his own judgment. If a person orders a specified article for a special purpose, and the dealer informs him that he has no personal knowledge of the article or of its fitness, it can not be said that the purchaser relies on the judgment or skill of the dealer. He purchases, under such circumstances, on his own judgment, and at his own risk. The doctrine of caveat emptor applies. The charge withdraws from the consideration of the jury, whose prerogative it is to pass on the credibility of the testimony, the evidence of the defendant in respect to the statements which he testifies he made to the agent of plaintiff.

Charge number two requested by plaintiff invaded the province of the jury. It assumes as a fact that representations were made to the agent of plaintiff, the ascertainment of which should have been left to the jury, and bases her right to recover on the hypothesis, that the agent relied on the representations without reference to their character, and that the paint was worthless.

Beversed and remanded.

Stone, C. J., qot sitting.