45 Kan. 334 | Kan. | 1891
The opinion of the court was delivered by
This was an action brought before a justice of the peace of Cowley county on January 31, 1887, by G. B. Shaw & Company againt Yates Smith and James W. McClellen, for the recovery of $12 and interest, upon the following instrument in writing, to wit:
“Cambridge, April 30, 1886.
“On or before the first day of October, 1886, we promise to pay to the order of G. B. Shaw & Co., at their office in Cambridge, twelve dollars, for value received, with interest after maturity, at the rate of 10 per cent, per annum, until paid.
- “This note is given in part consideration of the sale to Y. Smith of eight bushels flax seed, by said G. B. Shaw & Co., and as a further consideration therefor, we agree to plant fourteen acres with said seed, to cultivate, harvest and clean the same in proper and careful manner, and deliver to G. B. Shaw & Co., at Cambridge, Kansas, on or before the first day of December, 1886, the whole crop raised therefrom, at a price mentioned below per bushel of fifty-six lbs., for pure and prime flax seed. Flax seed not pure and prime to be inspected and graded subject to the rules of the St. Louis Merchants’ Exchange ; and should we sell or trade, or attempt to offer to sell or trade such crop to any other person or persons than said G. B. Shaw & Co., or order, then the note hereto attached shall immediately become due and payable; and the said G. B. Shaw & Co., or their assigns, are hereby authorized to enter any building or premises without any legal process whatever, and seize and remove such crop whatsoever (and in whosoever’s possession ) the same may be found; and to pay me the balance on demand, after the amount due upon said note has*336 been deducted, together with all costs and expense incurred, ■where seizure is necessary.
“Price to be paid per bushel on basis of pure, to be 35 cents less than St. Louis market price on day of delivery.
Yates Smith.
James W. McClellen.”
Afterward the case was taken on appeal to the district court, where the case was tried before the court and a jury, with the result hereafter stated. The plaintiff’s bill of particulars simply set up the foregoing instrument, and asked judgment thereon for $12, and interest at the rate of 10 per cent, per annum from October 1, 1886. The defendants’ amended answer thereto and cross-petition alleged that the flax seed for which the instrument sued on was given was purchased by Smith for the purpose of sowing it and raising a crop; that it was warranted by the plaintiffs to be good, but that it was worthless; that he (Smith) sowed it, but that it did not germinate; and that he lost his time, labor, and use of his ground; and that he was damaged thereby in the sum of $150, and he asked judgment for that amount and costs of suit. The trial resulted in a verdict in favor of the defendants and against the plaintiffs for the sum of $90, and judgment was rendered accordingly, and the plaintiffs, as plaintiffs in error, bring the case to this court for review.
It appears from the evidence that the facts of the case are substantially as follows: The plaintiffs, G. B. Shaw & Co., were dealers in flax seed, at Cambridge, in said Cowley county. Smith went to their place of business about April 20, 1886, and found Joseph Fraley, their agent, in charge. Shaw & Co. did not have any flax seed on hand, but they were about to order some. Smith told Fraley to order eight bushels for him for the purpose of sowing it and raising a crop. Fraley told Smith that they would furnish the flax seed upon the conditions substantially as set forth in the foregoing instrument. Afterward the flax seed arrived and Fraley gave notice to Smith. Smith then, on April 30, 1886, went to Cambridge and received the seed, about eight bushels in
The maxim of the common law, caveat emplor, is the general rule applicable to purchases and sales of personal property so far as the quality of the property is concerned; and under such maxim, the buyer, in the absence of fraud, purchases at his own risk, unless the seller gives him an express warranty, or unless, from the circumstances of the sale, a warranty may be implied. In the present case no express warranty was given, and the question then arises, Was there any implied warranty? At the time when the contract for the purchase and sale of the flax seed was entered into, such seed was not present so that it could be inspected by the purchaser, and when it arrived and was delivered to him the defect in the seed was not apparent, and was probably not discoverable by any ordinary means of inspection, and it was not discovered until after it was sowed and when it failed to germinate. When the original contract for the purchase and
We also think that the purchaser may recover damages from the seller for all the losses necessarily sustained by the purchaser by reason of the worthlessness of the flax seed furnished by the seller. See the authorities above cited, and also the following: Passinger v. Thorburn, 34 N. Y. 634; same case, 90 Am. Dec. 753; Flick v. Wetherbee, 20 Wis. 392; Ferris v. Comstock, 33 Conn. 513; Randall v. Raper, El. B. & E. 84. And it is not claimed that the purchaser in the
No other questions are presented.
We think no material error was committed in the case, and the judgment of the court below will be affirmed.
It is understood that the same questions of law and fact are involved in the case of G. B. Shaw & Co. v. T. L. Jones, from Cowley district court, that are involved in the ease of Shaw v. Smith, just decided, and the judgment of the court below in this case will be affirmed upon the authority of that case.