9 Mont. 191 | Mont. | 1890
This is an appeal from the order of the court below, in granting the motion of the respondents (who were the defendants in the action), for a new trial. The questions to be investigated may be readily understood by stating the substance of the pleadings.
The complaint alleges that the defendants were merchants in 1887, and that plaintiff purchased, through their “ duly-author
The answer denies that plaintiff purchased any seed wheat, and alleges that he bought a quantity of wheat which was kept and sold as “ chicken feed,” and that plaintiff was informed of the character and quality thereof at the times alleged in the complaint; denies that the agents or clerks of the defendants represented or warranted to plaintiff that said wheat was spring wheat, and says that the clerks and agents of defendants told plaintiff that they did not know whether the grain was spring or winter wheat; denies that the agents or clerks of defendants made any representations to plaintiff by which plaintiff was misled or deceived as to the kind or character of said wheat; alleges that said clerks and agents told plaintiff, at the time and before he bought the wheat, that they did not know whether it was winter or spring wheat, and that defendants had bought and sold said wheat for feed, and no other purpose, and defendants could not warrant the wheat in any manner as suitable for seed; and denies that plaintiff was misled, or deceived, or damaged by any representations of the clerks or agents of defendants.
The replication denies the averments of the answer.
The testimony at the trial tended generally to prove the allegations of the respective parties in their pleadings, and was conflicting. The jury found for the appellant, who is the plaintiff in the action.
It is admitted that the respondents were dealers in general merchandise at the times which are mentioned in the pleadings; that one Tompkins was employed by them as clerk and salesman, and was in charge of their business when the wheat was delivered to the appellant; that the grain was subject to the inspection of the appellant, -who bought the same in the belief that it was suitable for seed in the spring of 1887; that no person can ascertain by inspection the difference between spring and winter wheat; that this grain was winter wheat; and that the appellant suffered damages through the total failure of his crop.
We shall assume, for the púrposés of thé discu'ssioti, that the testimony of the appellant is a narration of the fácts, and can thereby distinguish some of the cases which have been cited by counsel as authority from that at bar. Kircher testified that, in the fall of 1886, he looked at some wheat in the store of the respondents, and asked what kind it was. Tonipkins said he didn’t know, and that he sold it for chicken feed. Kircher then said that if he knew it was spring wheat he would buy sixty or seventy bushéls; and Tompkins replied: “ If you want to búy that much, we can find out.” Kircher said: “ If yóu cáh do that, fiud out;” and Tompkins told him “he would write and find out.” That Tompkins then took Kircher back to Flager, in his office. That Flager, one of the respondents, told Kircher “ he would write and find out.” That afterwards Flager told Kircher “ he did not have an answer, but expected one in a short time.” That at another time Flager said “ he did not have an answer yet, but expected one every day.” That in
Did Tompkins, under these circumstances, and by virtue of his employment, have the authority to make this warranty that the grain, which was purchased by the appellant, was spring wheat? This court has adopted the rule, which is not disputed, and has held that the principal is responsible for the acts of his agent when they have been done within the scope of his authority, and that this liability will not be enlarged. (Herbert v. King, 1 Mont. 475; Bank of Deer Lodge v. Hope Mining Co. 3 Mont. 146; 35 Am. Rep. 458; Bank of Billings v. Hall, 8 Mont. 341.)
The power of Tompkins is also defined in the following authorities: In Upton v. Suffolk County Mills, 11 Cush. 586; 59 Am. Dec. 163, Mr. Justice Metcalf says: “A general agent is not, by virtue of his commission, permitted to depart from the usual manner of effecting what he is employed to effect. (3 Chit. Law of Com. & Man. 199.) When one authorizes another to sell goods, he is presumed to authorize him to sell in the usual manner, and only in the usual manner in which goods or things of that sort are sold. (Story on Agency, § 60. See, also, Shaw v. Stone, 1 Cush. 228.) The usage of the business in which a general agent is employed furnishes the rule by which his authority is measured.” Mr. Benjamin, in his treatise on Sales, says: “The general rule is, as to all contracts including sales, that the agent is authorized to do whatever is usual to carry out the object of his agency, aud it is a question for the jury to determine what is usual.” (Vol. 2 [3d Eng. ed.], § 945. See, also, Pickert v. Marston, 68 Wis. 465; 60 Am. Rep. 877; Smith v. Tracy, 36 N. Y. 79; Palmer v. Hatch, 46 Mo. 585; Stewart v. Woodward, 50 Vt. 78; 23 Am. Rep. 488; McCormick v. Kelly, 28 Minn. 135; 2 Addison on Contracts, 988.)
The complaint does not allege that Tompkins or the respondents have been guilty of fraudulent conduct, and the gist of the action is the warranty by the agents of the respondents that the grain referred to was spring wheat.
No form of words is essential to constitute an express warranty in the sale of chattels. There is no controversy relating to these principles.
Do the conditions which have been presented subject the appellant to the rule of caveat emptor? The case of Lord v. Grow, 39 Pa. St. 88; 80 Am. Dec. 504, is on all fours with that set forth in the pleadings of the appellant. A portion of the statement of facts is as follows: “On the 9th of April, 1859, the plaintiff went to the defendants, who are dealers in grain, for the purpose of purchasing some seed spring wheat for sowing. Ho asked F. P. Grow, one of the defendants, whether he had any good seed spring wheat. Mr. Grow answered in the affirmative.The plaintiff took the wheat, which he and the miller thought was spring wheat (there being both kinds in the mill), and sowed it; but it proved to be winter wheat.” Mr. Justice Strong, in the opinion, says: “We have here the bald question whether, in sales of personal property on inspection, without express warranty, the law presumes an engagement on the part of the vendor that the article sold is of the species contemplated by the parties.The tendency of the modern cases has also been to the doctrine that, in sales of arti-
The authorities hold that it is the duty of the buyer to make an inspection of goods, and the consequence of any omission so to do must be suffered by him. In Barnard v. Kellogg, 10 Wall. 383, Mr. Justice Davis says: “ No principle of the common law has been better established, or more often affirmed, both in this country and in England, than that in sales of personal property, in the absence of express warranty, where the buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the article he sells, the maxim of caveat emptor applies. Such a rule, requiring the purchaser to take care of his own interest, has been found best adapted to the wants of trade in the business transactions of life. And there is no hardship in it, because, if the purchaser distrusts his judgment, he can require of the seller a warranty that the quality or condition of the goods he desires to buy corresponds with the sample exhibited.” . (See, also, Reynolds v. Palmer, 21 Fed. Rep. 433, note by Lawson, 439; Lindley v. Hunt, 22 Fed. Rep. 52; 1
The case of Lord v. Grow, supra, is doubted by Mr. Biddle, in his work on Warranties, and the American editor of the work on Sales by Mr. Benjamin. (Biddle on Warranties, § 125; 2 Benjamin on Sales [6th Am. ’ed.], 843, n. 23.) But other text-writers have cited it with approval, and the same court has reiterated its doctrine in the recent case of Shisler v. Baxter, 109 Pa. St. 443; 58 Am. Rep. 738. It appeared that Shisler purchased of Baxter what both parties called “Wakefield cabbage” seeds, which cannot be distinguished by their appearance. After referring to Lord v. Grow, supra, Chief Justice Mercur says: “ The vendee had just as much knowledge in regard to the kind and quality of the seed as they (the vendors) had. In such case, in the absence of express warranty, the exemption of liability of the vendor is too well settled to need any further citation of author ties.” The application of these principles to the evidence of the appellant is sufficient to justify the court below in sustaining the motion for a new trial, and virtually disposes of the action, unless additional facts are shown.
While the form of the warranty is unimportant, the circumstances attending it must be critically examined. Professor Parsons expounds the law on this subject, and writes: “AH warranties, however expressed, are open to such construction from surrounding circumstances, and the general character of the transaction, and the established usage in similar cases, as will make the engagement of warranty conform to the intention and understanding of the parties; •provided, however, that the words of warranty are neither extended nor contracted in their significance beyond their fair and rational meaning. For these words of warranty are usually subjected to a careful, if not a precise and stringent, interpretation, as it is the fault of the buyer who asks for or receives a warranty if it does not cover as much ground and give him as effectual protection as he intended.” (1 Parsons on Contracts [5th ed.], 576.) When the evidence of the appellant is subjected to this test, it is difficult to say that Tompkins made a warranty in any form which would be recognized by the courts. It was the duty of the
It is therefore adjudged that the order appealed from be affirmed, with costs.