116 So. 816 | Miss. | 1928
We think the testimony fails to sustain the allegations of the declaration as to an express warranty of the quality of the automobile, and it wholly fails to show that the "seller knew the buyer did not rely on his own judgment, in accepting the automobile, but on that of the seller, who knew or might have known the existence of the defects," and, this being true, the doctrine announced in the case of Bellville Supply Co. v.Dacey,
"The sale here in question was not of an article by sample or description, without an opportunity of inspection by the buyer until after delivery, . . . but was a present executed sale of an existing article, of which the seller was not the manufacturer, then open to examination and inspection by the purchaser, in which character of sale there is no implied warranty of the quality of the article sold, in the absence of fraud on the *441 part of the seller, unless the defects therein are latent, and `the seller knew the buyer did not rely on his own judgment (in accepting the article), but on that of the seller, who knew or might have known the existence of the defects.'"
It follows, from the foregoing views, that the judgment of the court below should have been in favor of the appellant, and therefore the judgment will be reversed and judgment will be entered here for the appellant.
Reversed, and judgment here for appellant.