192 S.W.2d 759 | Ark. | 1946
Appellants brought this suit against appellee to recover $488.90, the purchase price of two shipments of liquid roof coating sold and delivered by appellants to appellee. Appellee answered, denying generally all allegations of the complaint, and also set up a counter-claim for damages alleged to have been sustained by him on account of defective condition of the roofing material. *783
The case was tried to a jury, who returned a verdict, not allowing appellee any damages, but disallowing appellants' claim for purchase price of the roofing material. From judgment entered on this verdict appellants have appealed, and for reversal urge:
I. That under the contract of sale appellee was to apply the material and that the failure to stop the leaks was caused by improper method of application of the roofing material.
II. That there was no implied warranty of the fitness of the roofing material, because, (a) appellee had an opportunity to inspect the merchandise bought, and (b) that there was no evidence that appellants are manufacturers.
III. That the Act of the General Assembly of Arkansas (Uniform Sales Law, Act No. 428, approved March 31, 1941) is unconstitutional in that it impairs the obligation of the contract sued on by adding thereto, as a burden on appellants, the provision for implied warranty of fitness.
IV. That because there was an express warranty contained in the "bond" sent to appellee by appellants, appellee was limited to the relief afforded by the terms of this "bond."
V. That appellee is estopped from asserting any defense to appellants' cause of action by his conduct in placing a second order, for an increased amount of material, after the first shipment had proved ineffectual to stop the leaks.
VI. That since the agreement was formed by the acceptance by appellants at Dallas, Texas, of appellee's written order, it thereby became a Texas contract, subject to the laws of Texas; and that for this reason the Arkansas Uniform Sales Law, supra, and decisions of this court, did not apply in the interpretation and enforcement of the contract. *784
Appellants cannot consistently urge that it was not proved that they were manufacturers, because they introduced in evidence a letter written by them to appellee in which they stated in so many words that they were manufacturers of roofing material.
Furthermore, the testimony shows that after the application of the original shipment of roof coating had proved ineffectual appellee did call upon appellants for more of the roofing material which, though properly applied, failed to prove water-tight.
In support of their contention that appellee was limited to the relief provided by the terms of the "bond," appellants cite the case of Primrose Petroleum Co. v. Allen,
The undisputed testimony shows that appellee, a merchant in Nashville, Arkansas, desiring to repair the roof of his store building, consulted appellants' salesman, showed the salesman the roof, and told him to make out an order for the amount of proper material necessary to repair the roof; that the salesman did this and sent a mechanic from Texarkana to apply the material for appellee; that this man made application in the manner directed by appellants; that after application of one shipment failed to stop the leaks another lot was ordered and applied in the same manner and with like unsatisfactory *787 results; and that appellee was finally forced to tear off the roof and replace it entirely. This testimony was sufficient to show that the material was not reasonably fit for the purpose for which it was sold.
We have been referred by appellants to no decision of any Texas appellate court under which it is held that there is no implied warranty of fitness in the sale of personal property. On the contrary, under the Texas decisions, where the vendee purchases an article from the manufacturer for a specific purpose, the article not being present, the law implies a warranty that the article is reasonably fit for the purpose for which it was sold.
In the case of Houk v. Berg,
Since the undisputed testimony showed that the roofing material sold by appellants to appellee was not reasonably fit for the purpose for which it was sold, there was breach of the implied warranty of fitness, whether the contract be construed under the Uniform Sales Act of Arkansas, or under the common law rule in force in this state prior to enactment of said Act, or under the law as declared by the courts of Texas.
No error appearing, the judgment of the lower court is affirmed. *788