Gachet v. Warren

72 Ala. 288 | Ala. | 1882

BRICKELL, C. J.

The assignments of error present no other question, than the correctness of the instructions given the jury at the instance of the defendants, on the trial in the court below. Six of these instructions assert, in varying language, and by reference to particular facts in evidence, that if the contract between the parties was for the sale and delivery of seed-oats, of the species known in the market as “ rust-proof oats,” and the oats delivered were of that species, there is no liability upon the sellers, although the product of the oats •rusted, and they knew the purchaser was buying for the purpose of sowing and raising a crop. One or more of the instructions, also, affirm that the burden of proof rested upon the purchaser, to show that the oats delivered were not of the species known as “ rust-proof oats.”

In the absence of fraud, the general rule of the common law, as applicable to sales, so far as quality is concerned, is embodied in the maxim, Caveat emptor. The buyer takes the'goods at his own risk, if there be not an express warranty by the seller,* or unless, from the nature and circumstances of the sale, a warranty is implied.—Ricks v. Dillahunty, 8 Port. 130; Barnett v. Stanton, 2 Ala. 181. When goods are sold by description, and the buyer has not the opportunity of inspecting them, it is a part of the contract — it is of the very essence of the undertaking — that the goods delivered shall answer to the description ; otherwise, the buyer could contract for one thing, and the seller deliver another and different thing. In such case, there is also an implied warranty, that the thing delivered shall not only answer the description, but that as such thing it shall be salable or merchantable. — Benjamin on Sales, § 656. The purchaser can not insist that the thing shall be of any particular quality or fineness, but he has the right to demand that it shall be a merchantable article, answering to the description of the contract. If it be not, though it may bear the denomination, it does not answer to the description — it is not in fact the thing sold.

“Where a manufacturer, or a dealer, contracts to supply an article 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.” Pacific Guano Co. v. Mullen, 66 Ala. 582; Benjamin on Sales, § 151. But, if a manufacturer, or dealer, contracts to sell a known and described thing, although he may know the purchaser intends it for a specific use, if he delivers the thing sold, there is no implied warranty, that it will answer, or is suitable tor the specific use, to which the purchaser intends applying it. Chanter v. Hopkins, 4 Mees. & Wels. 399; Hoe v. Sanbone, 21 N. Y. 552; Bartlett v. Hoppock, 34 N. Y. 118; Dounce v. Dow, 64 N. Y. 411; Port Carbon Iron Co. v. Grove, 68 Penn. 149; Gossler v. Eagle Sugar Refinery, 103 Mass. 331; 1 Pars. Contr. 586.

These are all recognized principles of the law of sales, and the several instructions to the jury we are considering, in effect, affirm them. Whether the sale was of the oats known in the market as “rust-proof oats” and whether the oats delivered corresponded to that description, were facts fairly submitted for the determination of the jury. If these facts were found affirmatively by the jury, though the sellers were dealers in oats, and knew the purpose to which the buyer intended to apply them, there can not be said to be any express stipulation by them, that the oats were suitable for that particular use; nor any implied warranty, that for it they were reasonably fit. The kind of oats suitable for his use, the purchaser selects — he does not rely on the judgment or skill of the seller to select for him. • The judgment or skill of the seller is trusted only to providing oats of a designated species. When oats of that species were furnished, not unsalable, unmerchantable, the contract was performed by the sellers. And if there was a warranty, or representation by them, that the oats were of that species, the warranty or representation was not broken. The ■oats may not have produced as the buyer expected; his expectations were capable of disappointment, though the sellers kept the contract, made no false representations, and no warranty which was broken.

The affirmative facts essential to the plaintiff’s recovery, in the aspect of the case presented by the instructions, were, that the defendants had delivered oats not corresponding to the oats sold; or had made a warranty or representation of the quality ■of the oats, which was broken, or untrue. The burden of proving these facts necessarily rested upon him, and could not be discharged, unless of the truth of the facts the jury were satisfied. This is the substance of the instructions, and there is no reason for doubting their correctness.—Harris v. Bell, 27 Ala. 520; Jarrell v. Lillie, 40 Ala. 271. In all actions upon warranties, it is necessary for the plaintiff to prove clearly and positively the breach thereof.—Chitty on Contracts, 402 a.

The seventh instruction affirms no more than that, if the sale was by sample, and the oats delivered corresponded to the sample, there was no right of recovery in the plaintiff. Upon a sale by sample, all that the vendor warrants is, that the bulk of the goods delivered shall correspond, or be equal to the sample. Benjamin on Sales, § 648. The burden of proving that they do not, must rest upon the buyer, who accepts and uses the goods as equal to the sample.

Affirmed.