142 Ga. 464 | Ga. | 1914
We will first consider the general demurrer to the petition. The John A. Boebling’s Sons Company, by a writing dated in New York City, May 28, 1906, and addressed to the Southern -Power Company, Charlotte, N. 0., stated: “We beg leave to quote you on approximately 730,000 lbs., of Solid and Stranded hard drawn and Semi-hard drawn Copper wire, as follows.” Then followed seven kinds, stating the size, the number of’ wires, the
By the Civil Code (1910), § 4135, referring to sales of personalty, it is declared: “If there is no express covenant of warranty, the purchaser must -exercise caution in detecting defects; the seller, however, in all cases (unless expressly or from the nature of the transaction excepted) warrants—(1) that he has a valid title and right to sell; (2) that the article sold is merchantable, and reasonably suited to the use intended; (3) that he knows of no latent defects undisclosed.” This would seem on its face to be plain: In the absence of an express warranty it places upon the purchaser the duty of using caution in detecting defects, but it declares that “in all cases (unless expressly or from the nature of the transaction excepted) ” there is a warranty declared by law to be implied in the respects mentioned. So that such implied warranty arises unless there is an express exception of it, or unless from the nature of the transaction it is excepted. This section was contained in the first Civil Code of this State, which was adopted in 1861, but went into effect on January 1, 1863; and this has been the law of Georgia ever since. It can not be repealed by decisions of courts. If a contract expressly declares that there shall be no other warranties than those expressed, no difficulty can arise. Th'e only possibility of difference is as to whether the nature of the transaction under investigation is such as to exclude the implied warranties, or any of them, declared in the section of the code. In some of the decisions, both in this and in other States, broad language has sometimes been used to the effect that an express warranty excludes an implied warranty; but such expressions are to be considered in connection with the question involved in the cases in which they were used. It would seem to be wholly illogical and unreasonable to say that if in the sale of goods the title was expressly warranted, this excluded all implied warranty of merchantability or of the absence of latent defects ; or, on the other hand, that if there was an express warranty that goods were of a certain character or quality, it excluded an implied warranty that the seller had a valid title to them. There is no conflict between the two, and one does not overlap or exclude the other. If a merchant ordered coffee warranted to be equal to a given sample, he certainly would not mean that he waived any ques
We are not contending that terms can be added to a written contract by parol testimony; but that where the parties make a written contract, the law may make certain implications in regard to the subject-matter, and that one of the things which it implies in a sale of personalty is a warranty of certain things, unless that warranty is excluded by reason of the terms of the contract itself or by reason of the nature of the transaction. This is an implication which the law itself imposes, except under the circumstances mentioned; and it is an entirely different matter from endeavoring to superadd to a written contract parol agreements.
In Austin & Ellis v. Cox, 60 Ga. 520, where a note given for the price of a commercial fertilizer declared that “This fertilizer is sold under the inspection and analysis of Dr. A. Means, inspector at Savannah, and the Department of Agriculture at Atlanta,” it was held that this did not-preclude the maker, when sued upon the note, from setting up a warranty of quality, express or implied, and urging a total failure of consideration in that the article sold was not a fertilizer, had no fertilizing properties, and was wholly worthless. In the opinion Bleckley, J., said: “Suppose it were true that the article had been inspected and analyzed by the aggregate scientific skill of the universe, and that nevertheless it was not a fertilizer, had no fertilizing property, and was wholly worthless, would the inspection and analysis make the article ’merchantable, and reasonably suited to the use intended’ ? . . We can see no reason for treating, all questions as to its quality closed.”
A careful consideration, however, of the decisions of this court
In Johnson v. Latimer, 71 Ga. 470, Latimer sued Johnson on an open account for the first payment on a “Monarch separator.” The
In Malsby v. Young, 104 Ga. 205 (30 S. E. 854), a steam engine and sawmill were sold. The machinery was expressly warranted to be of good material and durable, and, with good care and proper usage, to' do as good work as any made in the United States, of similar style and like amount of use, and to be in good fair condition. It was provided, that, if it did not meet the above warranty after a trial of ten days, written notice should be immediately given to the vendors, stating wherein it failed to satisfy the warranty, and'a reasonable time should be given to them to send a competent person to remedy the difficulty; that the vendors reserved the right to replace any defective parts; and that if then the machinery could not be made to fill the warranty, it was to be returned by the purchaser to the place where it was received, and another machine was to be substituted therefor that should fill the warranty, or the notes and money should be immediately returned and the contract canceled, neither party in such case to make or have any claim against the other. It was still further declared: "All warranties to be invalid in case the machinery is not settled for when delivered, or if this warranty is changed, whether by erasure, addition, or waiver, or if the purchaser shall in any respect have failed to comply therewith.” It will readily be seen that this warranty on its face covered the entire ground as to being reasonably suited to the use intended, and necessarily excluded an implied warranty on that subject. The trial judge charged, that, whether there was an express warranty or not, the law would make the seller warrant the machinery to be reasonably suited to the use intended. This was held to be error. In discussing the question, Little, J., said: "Much would depend upon the nature and extent of the warranty, where it was express, whether any implied warranty would exist in connection with what was expressed; and as an express warranty was made a part of the written contract on which the suit was founded, and by the contract the defendants received the machinery subject to the conditions of the warranty printed therein, the rights of the parties as to the nature and character of the articles sold are to be measured by the representations and warranties therein contained; and as such express warranty covered the conditions as to title, make, capacity,
In National Computing Scale Co. v. Eaves, 116 Ga. 511 (43 S. E. 783), suit was brought for the price of a set of computing scales. The defendants pleaded failure of consideration, and that the scales were not reasonably suited to the use intended. The written contract in regard to the sale contained a guaranty that if the scales should get out of order at any time within two years from date of shipment, with ordinary use (not dropped or broken), the vendor was to quickly repair them free ,of charge, the purchaser paying transportation charges to and from the factory. It was held that this guaranty did not exclude an implied warranty that the articles sold were reasonably suited to the use intended; but that the purchaser could not defeat an action brought to recover the purchase-money, on the ground that the articles were not so suited, unless it appeared that when sold they were so defective as not to be reasonably suited to the use intended; or unless they became defective after the sale and the seller had failed and refused to repair them within a reasonable time; or unless the defect thus arising was of such a character that it could not have been remedied even if the articles had been returned. In the opinion Justice Cobb said: “While there is no express warranty in the contract, other than the warranty that the plaintiff will repair any defects when not brought about in a given wajr, still there is nothing in the contract which excludes the implied warranty of the law, nor is the transaction one of such a nature as that such warranty would be excluded.” See also a discussion of the subject in Elgin Jewelry Co. v. Estes, 122 Ga. 807 (50 S. E. 939).
In Bullard v. Brewer, 118 Ga. 918 (45 S. E. 711), suit was brought on a promissory note given for the purchase-mcsney of a horse. The note contained the following: “This note having been given to said S. S. Brewer, as per contract for one black horse
In Holcomb v. Cable Co., 119 Ga. 466 (46 S. E. 671), suit was brought on a promissory note given for the purchase-price of a piano. It contained the following, among other things: “If said instrument be defective, such defect shall be reported to the Cable Company or their agent within- da}rs of the date of this obligation; and should I fail to make complaint within said time, it shall be held as conclusive evidence that no defect exists, or the same is waived if existing; and I hereby agree not to set up any such plea in defense of this obligation, if not reported within said time.” The defendants pleaded that, contemporaneously with the execution of the note, two written warranties had been given. One of them was signed by the vendor through its salesman, and was as follows: “'This certifies that Cable Piano, Style N Mah. No. 38985, is fully warranted for five years from date of its manufacture; and if within that time, with proper care and usage, it proves defective in material or workmanship, we hereby agree to place it in good repair or exchange it for another of same style at our expense. Exposure- to dampness and sudden changes of temperature will check varnish, and cause other damage to the best piano; and against such exposure, ill-use, neglect, ordinary wear, accidents, and tuning, we will not be responsible.” The other agreement was made by the agent in his own name, with reference to taking back the piano- in part payment for another. It was held that this latter paper was not binding on the principal. In the answer of the defendants it was further set up that the vendor’s agent represented
In Henderson Elevator Co. v. North Ga. Milling Co., 126 Ga. 279 (55 S. E. 50), suit was brought for a breach of contract in regard to the purchase of certain corn. The defendant pleaded, among other things, breach of warranty, in that the plaintiff agreed to sell-to it “20,000 bushels of number 2 white corn, bulk,” and that the corn shipped was not of that character or quality; that grinding some of it produced sour meal; and that defendant refused to accept further shipments. It was held, that, in a contract for the sale of goods, words descriptive of the subject-matter of sale and the time of shipment are ordinarily to be regarded as a warranty. No question of implied warranty was involved, or whether such descriptive words would exclude the implied warranty of the law in other respects. Some courts have preferred to treat descriptive words of this character in a contract rather as being a term of the contract or part of the agreement than as a warranty strictly speaking, which is usually a collateral agreement. But, for the purposes of the present discussion, we need not enter into that subject.
In Springer v. Indianapolis Brewing Co., 126 Ga. 321 (55 S. E. 53), it was said that from the evidence it appeared that both the buyer and séller understood that the shipment of beer, for the pur
In Fay & Eagan Co. v. Dudley, 129 Ga. 314 (58 S. E. 826), suit was brought for the purchase-price of a machine known as “double end tenoner.” The contract of sale, which was signed by both parties, used the descriptive words: “No 6 Double Upper and Lower Tenoning head bits, upper and lower cope heads and bits left off, but with cope spindles.” It also described the borer, “with bits to mortise and bore 5/16" mortise and hole, and to be suitable for small stationary slats, if necessary, as small as 7/8" x 3/32" mortise;” and saw mandrel of a particular kind, and a sash sticker with a boring attachment of a particular sort. There were provisions “that this contract is not modified or added to by any agreement not expressly stated herein; and that a retention of the property forwarded, after thirty days from date of shipment, shall constitute a trial and acceptance, be a conclusive admission of the truth of all representations made by or for the consignor, and void all its contracts of warranty express and implied.” The defendants, among other things, sought to set up that the plaintiff sold the machine' and warranted it to be the latest improved double-headed tenoner suited for the purposes intended, such purpose being the manufacture of doors, sashes, blinds, and furniture; and that this was known to the plaintiff. It was held that the express contract excluded the implied warranty of suitability for the particular purpose intended by the buyer. It seems quite clear that the very terms of the contract sought to exclude such implied warranty. It was accordingly held that it was error to admit in evidence representations as to the work which the machine would do, made by the
Counsel for plaintiff in error rely with much earnestness upon certain expressions used by this court in deciding cases in which it was held that the express warranty was such as to cover the entire subject-matter, and to exclude implied warranties; and we have at some length reviewed most of the decisions of this court bearing on that subject, for the purpose of showing that, when certain general expressions are considered in connection with the facts of the cases in which they are used, there is really no substantial conflict in the rulings of this court. Counsel also cited cases decided by the Court of Appeals of this State. A discussion of the subject will be found in Hawley Furnace Co. v. Van Winkle Gin Works, 4 Ga. App. 85
It was further contended that the present case must be decided by the common law, as the contract was neither made in Georgia nor to be executed here; and that this court has held, that, in the absence of proof as to what the law of another State is, it will be presumed that the common law is there in force (possibly with the exception in those States in which the civil law is the foundation of their laws); and that this court would determine for itself what was the common law on the subject. Accordingly we will consider some of the many, and not wholly reconcilable, decisions in England and in this country on the subject in hand. It may be well at the outset, however, to remark that the section of our code on the subject of implied warranties did not originate in a separate legislative act, but in a codification of what the codifiers deemed to be the general law on the subject, and was embodied in the code which was subsequently adopted by the legislature.
It has sometimes been broadly declared that in the purchase of particular articles, the rule of caveat emptor applies at common law, but this was subject to exception. Originally cases of implied warranty were brought as actions on the case, alleging fraud, though there might be no actual fraud. Doubtless this theory rested on the idea that the person was supposed to know whether he had title to the personalty sold by him, or that he did not properly manufacture articles for another; and it was deemed that fraud might be implied or imputed from the circumstances. But in time this fictitious form of action gave way to an action of assumpsit, on the ground that a warranty might be implied from the nature of the circumstances of the case; and the tendency has since been of approximating the rule of the Roman law, which implies a warranty that the goods are merchantable 'and fit for the purposes for which they are known to be bought. 2 Story on Contracts (5th ed.), § 1060. At a later period a sales act was passed in England.
In Jones v. Just, L. R. 3 Q. B. 197, 37 L. J. (Q. B.) 89 (decided in 1868), the subject of express and implied warranties was quite fully discussed by Mellor, J. He classified the cases under five heads as follows: (1) Where goods are in esse and may be in
In Gardiner v. Gray, 4 Campb. 144 (decided in 1815), the suit contained several counts. The first stated that the defendant undertook that 12 bags of waste silk, purchased of him by the plaintiff, should be equal to a sample produced at the time of the sale. Other counts stated the defendant’s promise to be that the silk should be waste silk of a good and merchantable quality. The silk
In Shepherd v. Pybus, 3 Mann. & Gran. 452, a boat and barge dealer sold a barge which had been built by him, and which was nearly finished and was afloat on his premises, where it was after-wards rigged and fitted up according to the agreement and was removed by the plaintiff, but, upon trial, was found to be so defectively built as to let in considerable quantities of water. Suit was brought for the breach of an implied warranty, and was sustained, notwithstanding there was a written contract describing the barge as that lying at the builder’s wharf. A distinction was made between a warranty that the barge was reasonably fit for use and the contention that it was not fit for the special purpose for which the builder knew that it was designed to be used. In the opinion Tindal, C. J., said: “But in the case now before the court, the subject of the purchase was a barge built by the seller himself; and the purchaser had had no opportunity of inspecting it in its progress, and the defects which were afterwards discovered were not apparent upon inspection, and could only be detected upon trial,” and therefore he declared that the ruling in a case in which there had been a full opportunity for inspection did not apply.
In Carleton v. Lombard, Ayres & Co., 149 N. Y. 137 (43 N. E.
In Bucy v. Pitts Agricultural Works, 89 Iowa, 464 (56 N. W. 451), Given, J., said: “There are authorities holding that where there is an express warranty, none will be implied, upon the theory that by the express warranty the parties have stated, in words, that by which they agreed to be. bound. It is held, in this and many other States, that this rule does not extend to the exclusion of warranties implied by law, where they are not excluded by the terms of the contract. ‘A warranty will not be implied in conflict with the express terms of the contract.’ Blackmore v. Fairbanks. Morse & Co., 79 Iowa, 282 [44 N. W. 548]. The rule deducible from the authorities is that an implied and an express warranty may exist under the same contract, as when the expressed does not relate to the obligations created by the implied; but when the expressed warranty does provide as to the same obligation, it excludes the implied. In other words, the law will not imply anything as to matters about which the parties have expressly agreed.” See also Boothby v. Scales, 27 Wis. 626.
In Kellogg Bridge Co. v. Hamilton, 110 U. S. 108 (3 Sup. Ct. 537, 28 L. ed. 86), a bridge company, having partially executed a contract for the construction of a bridge, entered into a written agreement whereby a subcontractor undertook, for a named sum and within a specified time, to complete its erection. The subcontractor agreed to assume and pay for all work done and material furnished up to that time by 'the company. Assuming this work to have
In DeWitt v. Berry, 134 U. S. 306 (10 Sup. Ct. 536, 33 L. ed. 896), a quantity of varnish was sold under a written contract containing the following express warranty as to quality: "these goods to be exactly the same quality as we make for the DeWitt Wire Cloth Company of New York, and as per sample bbls. delivered.” “Turpentine copal varnish, at 65 <¡¡. per gallon. Turpentine Japan dryer, at 55 ‡. per gallon.”. There was no evidence that the goods were not of the same quality as those made for the DeWitt Wire Cloth Company, nor that they did not conform to the sample. It was accordingly -held that this language fixed a definite standard for the determination of the quality of the goods, and excluded an
In Seitz v. Brewers’ Refrigerating Machine Co., supra, the refrigerating company sued Seitz for the purchase-price of a refrigerating machine under a written contract which specified that the vendor agreed to supply Seitz with a number 2 size refrigerating machine as constructed by the refrigerating company, which was to be put up in the brewery of Seitz under the superintendence of a competent man furnished by the company. Among other things, the defendant pleaded, that the plaintiff represented that the machine was capacitated to cool certain rooms in the brewery which had been examined by the plaintiff, but that when set up and operated it was not so capacitated and failed to perform the work for which, upon the representations of the plaintiff, the machine had been contracted for by the defendant; that the defendant contracted to purchase the machine upon the guarantee by the plaintiff that it would cool certain rooms, and upon the representation that the No. 2 machine was capable of cooling a space of 150,000 cubic feet of air continuously to a temperature sufficiently low for the purpose of brewing or manufacturing beer; but that the plaintiff knew that these representátions were false and unfounded. Mr. Chief Justice Fuller in delivering the opinion said, that there was no evidence to sustain the allegations of fraud, but that it was contended that under the amended answer the defendant was entitled to avail himself of the breach of the contract of warranty or guaranty collateral to the contract of purchase and sale or of the implied warranty that the machine should be fit to accomplish a certain result; 'and that, assuming the sufficiency of the pleading on this question, there was no error on the part of the trial judge in directing a verdict in favor of the plaintiff. It was held that as the contract specifically called for a No. 2 size refrigerating machine, the plaintiff was entitled to such a machine, and that there was no implied warranty that it would cool a given space; in other words, that it would “answer the particular purpose intended by the buyer.” A careful examination of that case will show, however, that while there was no implied warranty that the number 2 refrigerating machine would cool 150,000 cubic feet of atmosphere to 40 degrees Fahrenheit, it was not held that a refriger
In the case at bar it was alleged, that the vendor was a manufacturer of copper wires; that the vendee purchased wires for the purpose of using them for the transmission of electric power, with the knowledge of the vendor; that the purchaser did not have the opportunity for examination in advance, and, in effect, that there were latent defects in the construction of the wire which rendered it unsuited for the purpose for which it was manufactured and furnished. The mere fact that the size and conductivity of the wire were specified in the contract did not cover the entire subject of its qualities and suitability for use in the transmission of electric power, nor did it exclude the implied warranty on that subject. This is an entirely different thing from attempting to set up addi
From what has been said, it will be seen that the general demurrer was properly overruled. The rulings in the other headnotes need no elaboration.
Judgment reversed.