88 So. 740 | Ala. | 1921
This appeal is from an order granting motion for a new trial, the plaintiffs (appellants) having been awarded verdict and judgment against the defendant, appellee. The subject of the special contract involved, the breach of which is declared on, was oranges and grapefruit that were grown or to be grown in the state of Florida. The plaintiff firm, domiciled in that state, the sellers, were dealers in, or producers of, such fruit. The defendant corporation, the buyer, was a wholesale dealer in fruits, with its place of business in Montgomery, Ala. The places of delivery of ordered quantities (of the larger quantity engaged) were "loading stations in Florida," the effected deliveries to the carriers — in response to shipping orders communicated during the stipulated season by the buyer — being in legal effect deliveries to the buyer, the defendant. Capehart v. Furman Imp. Co.,
"That defendant has failed and refused to pay plaintiffs a balance of $3,981.65 due on the purchase price of the said fruit actually delivered, and has failed and refused to pay plaintiffs the damages sustained by plaintiffs by reason of defendant's refusal to take and pay for the remainder of said fruit contracted for, the said damages for defendant's failure and refusal to take said remainder amounting to $5,056.02."
In addition to general traverse of the complaint the defendant's special pleas 8, 9, 10, and 11 defined the issues in the cause. The report of the appeal will reproduce these pleas. Their sufficiency does not appear to have been tested by demurrer. The first two (8 and 9) are avowedly pleas of accord and satisfaction. Plea 10 proceeds upon the theory of a breach in respect of plaintiffs' contractual obligation to deliver merchantable fruit, having knowledge of defendant's purpose to buy and ship with a view to its resale to its trade. This plea might well have more distinctly defined the obligation averred, viz. whether it was expressly assumed, or whether it resulted from implication, an implied warranty (McCaa v. Elam,
Plea 11 is of the like general character as plea 10, embracing, however, additional allegations of material import.
In view of our conclusion that the action of the court in granting a new trial cannot be disturbed, for the reason to be stated, it may further be observed that since the complaint declared upon separable breaches by defendant, viz. (a) for failure to pay for the fruit actually delivered, and (b) for failure or refusal to accept future deliveries in averred fulfillment of the contract, the special matters of set-off and recoupment should be distinctly referred in the averments of the pleas to the appropriate assignment of separate breach. This would materially contribute to a satisfactory definition of the issues that are properly litigable between these parties.
The plaintiffs (sellers) impliedly warranted that at the time of contemplated delivery "at loading stations in Florida" of the perishable commodity contracted for it would be properly packed, would be fit for shipment and merchantable, reasonably fit for the purpose of resale by defendant in the ordinary course of its business, a purpose, including shipment, of which the plaintiffs were aware at all stages; the defendant (buyer) having no opportunity to inspect the fruit until its arrival at directed destination on the lines of the carriers, and relying upon the judgment and skill of the sellers to supply the commodity engaged. Gachet v. Warren,
In the absence of evidence going to show that the parties contemplated the assumption by the seller of the risk of the commodity's deterioration in transit (beyond the place of stipulated delivery) otherwise than in consequence of or resulting from improper packing or unfitness at the place of delivery for shipment, there is no implied warranty binding the seller to assure the buyer against deterioration of the commodity pending its transportation from the place of stipulated delivery to the place whereat its resale or use is to be accomplished by the buyer. 2 Mechem on Sales, supra; Benj. on Sales, supra; 24 R. C. L. supra; Freeman's Annotation, supra. The time, the place at which the satisfaction by the seller of the enumerated implied warranties, is the time and place the commodity leaves the possession of the seller. Benj. on Sales, § 659; 2 Mechem on Sales, § 1298; 24 R. C. L. p. 191. Evidence of the subsequent appearing or developing condition of the perishable commodity is, of course, serviceable to show what the condition was at the time and place the possession passed from the seller, and hence to contribute to the solution of the issue whether the warranties enumerated were in fact satisfied.
In Ashford v. Shrader Co.,
The unqualified approval given the instruction refused defendant (buyer) in Truschel v. Dean,
The recent pronouncement of this court in Philip Olim Co. v. Watson,
"That this action is founded on a contract for the sale of 400 barrels of apples sold by plaintiff to defendant by correspondence and sample. That there was an implied contract that the apples when delivered should be sound and merchantableand of the quality to keep a reasonable time until disposed ofby defendant to the retail trade. That plaintiff disregarded its duty in this behalf, and attempted to deliver apples that were not sound and merchantable, which defendants declined to accept." (Italics supplied.)
The court found in the evidence support for the italicized feature of the quoted plea. In the concrete that case and this may be also otherwise discriminated.
It is evident, we think, that the defendant was not entitled to the general affirmative charge on the theory that there was no evidence whatsoever of a breach or breaches of the contract, or that the breaches were waived by the plaintiffs.
Upon the issue whether the fruit actually shipped was effected with inherent, yet latent, later developing defect or disease, the evidence was in conflict. The ruling granting the motion for new trial may be referred to the ground presenting for review by the trial court the question whether the evidence was sufficient to justify the verdict in that material respect. On review here of the action of the trial court in such circumstances the rule is that the action taken will not be disturbed on appeal unless the effect of the whole evidence is manifestly and palpably in favor of the verdict. Woodroof v. Hall,
For the reason stated, the judgment granting the new trial is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.