Horner v. Parkhurst, 71 Md. 110

71 Md. 110 | Md. | 1889

Robinson, J.,

delivered the opinion of the Court.

The plaintiff's were dealers in benzine and petroleum, and the defendant was a manufacturer of fertilizers, and sometimes used benzine in the process of manufacture. This is an action to recover the contract price of a cargo of benzine sold and delivered to the defendant. According to the plaintiffs’ testimony, Mitchell, the defendant’s agent, came to the office of' the plaintiffs to buy a cargo of benzine, and said he wanted a very light benzine, but did not say for what purpose the defendant wanted it. The plaintiffs told him they were getting a lot of benzine under a contract with Chase & Company, of Smith’s Perry, a western district, where they produced no other kind than light benzine; that plaintiffs had agreed to sell it to one Nicolai, but supposed they could make an arrangement with him to let the defendant have a cargo. Mitchell thereupon agreed to take it. Plaintiffs did not agree or warrant it should be sixty-eight degrees gravity. Several days after its delivery Mitchell came back to plaintiffs with a sample of the benzine and requested them to test it. This was done and it was found to be sixty-five degrees gravity. No complaint was made at that time in regard to its quality, nor was there any offer to return it till long after the sale and delivery. Precisely how long the witness does not say. So much, then, for the plaintiffs’ testimony.

Mitchell on the other hand testifies he told the plaintiffs that the defendant could not use in his business benzine of less than sixty-eight degrees gravity, and that they agreed to warrant that the benzine should be at least sixty-eight degrees, and it was upon this warranty that it was bought; that a few days after its delivery the defendant found he could not use it in the manufacture of his fertilizers, that it was in fact worthless to him, and that the witness by the direction of the defendant took a sample of it back to the plaintiffs and told them that it did not come up to the guarantee; that it was of no use to the defendant, and requested the plaintiffs to take it away.

N ow upon this testimony, there are, it seems to us, but two questions, — 1st. Whether the benzine was -sold by the plaintiffs on a warranty that it should be of sixty-eight degrees gravity; — and 2ndly, if so, did the defendant offer to return it within a reasonable time after he found it was of an inferior quality?

The testimony in regard to both of these questions, .was conflicting, but in granting the plaintiffs’ third and the defendant’s first prayer, the law as applicable to these questions was fully and plainly submitted to the jury. If there was an express warranty that the benzine should be sixty-eight degrees specific gravity, and it turned out to be of an inferior quality, then, to entitle the defendant to a rescission of the contract, it was incumbent on him to return, or to offer to return it to the plaintiffs within a reasonable time after he discovered its quality, and if he failed to do so, the plaintiffs were entitled to recover the market value of the benzine. In other words, they were entitled to recover the contract price of the benzine, less the difference, if any, between the market value of the benzine delivered, and benzine of sixty-eight degrees gravity, as warranted by the plaintiffs.

The doctrine of implied warranty has not, it seems to us, any application to the facts in this case. "Where the buyer has an opportunity of examining the thing sold, there is no implied warranty, in the absence of fraud or express loarranty, that it shall be fit for the purpose for which it was bought. In such cases the rule caveat emptor applies, by which is meant, that unless the buyer sees fit to require a warranty, he takes upon himself the risk as to quality. Osgood vs. Lewis, 2 H. & G., 518; Hyatt vs. Boyle, 5 G. & J., 110; Rice vs. Forsyth, 41 Md., 389.

So, in this case, if the defendant had an opportunity of inspecting and testing the benzine before he used it, then, in the absence off fraud or express warranty, it was no defence to the action that it turned out to be inferior in quality to what he supposed it to be or what he wanted. There was. no error therefore in granting the plaintiffs’ second prayer. The special objection to this prayer on the ground that the question whether the plaintiffs warranted the benzine to be. of sixty-eight degrees gravity was a question of law, and ought not to have been submitted to the finding of the jury is not well taken. Where the contract of saléis in writing, the Court must, it is true, decide whether the language used amounts to an express warranty; but when the sale is by word of mouth, the question whether the representations made by the buyer are to be considered as merely the expression of opinion or belief in regard to a matter, as to which the buyer is to exercise his own judgment, or the positive affirmation of a fact made for the purpose of assuring the buyer of the truth of the fact so affirmed, may in many cases be a question of intention, the finding of which ought to be left with the jury. It was so decided in the early case of Osgood vs. Lewis, 2 H. & G., 58: and affirmed repeatedly in subsequent cases.

(Decided 11th June. 1889.)

The plaintiffs' first prayer is, it seems to us, free from objection. If they delivered to the defendant benzine of the character and quality represented by them at the time of making the sale, and that is the plain meaning of the prayer, they were entitled to recover the contract price, even though it proved to be unsuitable for the defendant's use. This is a familiar principle which lies at the bottom, of all sales of personal property.

Aror do we see how the defendant was in any manner prejudiced by the refusal of his second prayer. His first prayer, which was granted, covered the whole law of the case. In other words, if the plaintiff's guarantied the benzine to be sixty-eight- degrees, and it turned out to be but sixty-four degrees, and was therefore useless to the defendant, and that within a reasonable time after he discovered it to be of an inferior quality, he offered to return it. and the plaintiff's refused to accept it, then the plaintiff's were not entitled to recover. These facts, if found by the jury, amounted to a rescission of the contract, and if so, the prayer granted by the Court covered the entire defence set up by the defendant.

Judgment affirmed.