205 S.W. 512 | Tex. App. | 1918
This suit was brought by Joe Lee Ferguson, appellant, against B. M. Johnson, appellee, to recover damages for an alleged breach of warranty of the quality of a carload of millet seed alleged to have been sold by Johnson to Ferguson. It was alleged that Johnson agreed to sell and deliver to Ferguson at a specified time and place one carload of good, merchantable millet seed; that a car of said seed was delivered and paid for, but on examination *513 proved to contain a large quantity of trash and other seeds, thus not complying with the contract. Recovery of the difference between the value of the seed as delivered and such seed as contracted for was sought. The defendant denied that he contracted or sold to Ferguson a carload of seed, but claimed that he agreed to sell him what seed he had on hand, and that two other persons also sold Ferguson seed, and that all of these sales together made the car, defendant's seed constituting about one-sixth thereof. Johnson's version of the contract was that he simply sold Ferguson the millet seed he had on hand, it being understood that "the seed would come straight from the thrasher," and that he had nothing to do with the sale of the seed by the other parties. He claimed that his seed filled the contract, though there were "some weed seed in the millet seed delivered." Evidence was offered in support of the issues thus made between the plaintiff and the defendant. We think the charge sufficiently presents the issues made as stated, and overrule the first and second assignments.
If the pleadings were sufficient to have sustained a recovery by plaintiff, on the theory that, if it should be found by the jury that the defendant agreed to furnish the plaintiff any quantity of good, merchantable millet seed, and the seed furnished were not of such quality, although it should be found that the contract for quantity was as claimed by defendant, the evidence was not in such condition as to warrant the submission of such issue to the jury, because the evidence as to the condition of the seed and damage thereto on account of such condition applies to the whole car, and there is no evidence from which it might be determined to what extent the particular seed delivered by defendant was responsible for the trash and foreign matter found in the entire car. So that there was no error in the charge given, to the effect that the verdict should be for the defendant unless the jury should find that the defendant agreed to sell the carload of seed as alleged by plaintiff, and we overrule the assignment complaining of this part of the main charge. Fundamental error is suggested, in that there is a conflict between this charge of the court and a special charge given at plaintiff's request, which specifically authorized the recovery on a finding that the defendant agreed to furnish any quantity of good, merchantable seed, and the seed furnished were not of such quality. This charge, under the circumstances, was erroneous; and, as it was given at the appellant's request and the error and conflict thus invited, he cannot complain. I. G. N. Ry. Co. v. Parish,
Ferguson accepted and paid for the seed without inspection, though the evidence is sufficient to warrant the conclusion that he had a fair opportunity of inspection. No claim of failure of the seed to meet the quality provided for in the contract was made until some time afterward, when it was reported from Dallas, to which place the seed had been shipped, that they were not of such quality. The court, in this connection, instructed the jury that the plaintiff could not recover if it should be found that at the time of the delivery of the seed the plaintiff had a reasonable and fair opportunity to inspect the same before acceptance. The appellant complains of this charge, on the ground that if his theory that the contract provided for the sale and delivery of good, merchantable millet seed is correct this would constitute an express warranty that would survive acceptance and a breach of which would support recovery, although the seed had been accepted after inspection or a reasonable opportunity to inspect. We do not think this description of the quality of the millet seed contracted to be sold is properly an express warranty. Parks v. O'Conner,
The authorities do agree that an express warranty, being collateral to the agreement, is not discharged by delivery and acceptance under the contract, although such acceptance is made after inspection. In such cases the goods may be accepted and suit brought for breach of the warranty of quality, But there is much conflict and confusion as to whether a particular description or the quality is to be construed as a warranty, and, even if it is not, as to what are the rights of the purchaser upon a discovery subsequent to *514 acceptance that the quality does not conform to the specifications of the contract. Our Supreme Court seems to have recognized a rule which may be stated as follows: A contract merely descriptive of the quality of the goods to be delivered imposes, of course, an obligation on the seller to deliver goods of that description. If the goods tendered in discharge of the contract do not meet its requirements, they may be rejected and the seller sued for breach of his contract to sell and deliver the goods of the specific quality. Ordinarily, however, where the goods are accepted after inspection or opportunity to inspect, and in the absence of fraud, the contract is discharged, and the purchaser may not thereafter assert that the goods do not fulfill its terms.
There are some exceptions to this rule — where there is no opportunity of inspection, where inspection is prevented by fraud, or where the inspection would not disclose the defect, and perhaps others not necessary to here mention. In such exceptional cases the right of the purchaser, "when rescission has become impracticable, are practically the same as on breach of warranty." Jones v. George,
"When a purchaser, under an executory contract for the sale and delivery of personal property, inspects the same before delivery, he is estopped to set up that it is not such as the seller has agreed to deliver so far as all visible defects are concerned."
As to the second defense, the rule we have stated was applied. When we consider the two assignments which the court was considering in discussing the latter question, and remember that in the cases where the exception applies the remedy of the purchaser is the same as if the suit was on breach of warranty, the concluding language of the opinion, used in concluding the discussion of this phase of the case, which the court, in the case of Ellis v. Riddick,
The record does not show that harm probably resulted from the rulings complained of by the sixth and seventh assignments, and, even if they were erroneous, which we do not hold, they would not require a reversal of the case.
Affirmed.
HUFF, C.J., not sitting, being absent in Austin, sitting with Committee of Judges.