McPherson v. Gullett Gin Co.

100 So. 16 | Miss. | 1924

Sykes, P. J.,

delivered the opinion of the court.

This is an attachment suit in the chancery court, instituted by the appellant, McPherson, as complainant, against the Gullett Gin Company and others. In his bill McPherson seeks to recover damages against the appellee Gullett Gin Company for the burning of a lot of cotton alleged to have been caused by the negligence of the gin company in the improper construction and assembling of a gin. The bill alleges that appellant purchased of appellee two gins on or about the 11th day of October, 1920; that the gin company, in constructing and assembling the gins, carelessly and negligently so arranged the saws and ribs as to cause the saws to come in contact with the ribs, thereby producing friction and heat, resulting repeatedly in setting fire to cotton that was being ginned; that, beginning soon after the gins were installed, cotton being ginned was frequently set on fire, which fact was usually discovered in time to prevent loss and damage; that appellant was not able to discover the cause of the fire; that on November 4,1921, while the gins were being properly operated, cotton was set on fire which resulted in the burning up of the cotton here sued for. The written agreement of purchase of this gin, signed by both purchaser and seller, is made an exhibit to the bill. The following warranty constitutes a part of this agreement:

“Said machinery is warranted to be of good material and to perform well, if properly operated by competent persons. Upon starting, if the purchaser at any time within ten days is unable to make same operate well, telegraph or written notice stating where it fails to conform to the warranty is to be given by the purchaser to the Gullett Gin Company, at Amite, La. (and not verbally to any of its traveling men), and reasonable time shall be given the Gullett Gin Company to remedy the defect, the purchaser rendering all necessary and friendly assistance ; and, in case trouble be caused from a clearly defined original defect in the machine itself, the Gullett Gin Company reserved the right to replace any defective parts, without charge, but such defective parts, or part, shall not condemn the machine to which it belongs. If on trial the machine cannot be made to fulfill the warranty, and the default is in the machine itself, the amount of the purchase price of the same is to be credited on the notes pro rata, or money paid thereon, refund pro rata; the purchaser in such case to have nor make any claim for any damages of any nature or character whatsoever against the Gullett Gin Company by reason of the failure of said machine to fulfill the warranty, but the pro rata diminution of purchase price aforesaid to be the sole and only element of damage for breach of this warranty. Failure of any article named herein to comply with this aforesaid warranty shall in no way effect this contract, nor the notes and chattel mortgage and trust deed given in accordance therewith as to the other articles named therein. Failure to make such, trial, or to give such notice, or use after 'ten days without such notice, or use for any ten days without notice, shall be conclusive evidence of the fulfillment of the warranty. The Gullett Gin Company shall, at the request of the purchaser, render assistance of any kind in operating* said machine, or any part thereof, or in remedying any defects at any time said assistance shall in no case be deemed an acknowledgment on its part of a breach by it of this warranty, or a waiver of or excuse* for any failure of the purchaser to fully keep and perform the conditions of this warranty.

‘‘ The purchaser agrees to properly put up and operate the machinery according to the directions furnished by the Gullett Gin Company, and that, if the fault be traceable to not putting up or operating according to directions, ■ purchaser agrees to pay all expenses incurred in rectifying it.

“Any failure on the part of the purchaser to comply with this contract releases this warranty entirely.”

There was a demurrer interposed to this bill. Among other grounds therein alleged is one which states that the bill does not state any cause of action. This demurrer was sustained, complainant declined to amend, and a final decree was entered dismissing the bill, from which decree this appeal is here prosecuted.

It is the contention of the appellant that this is an action in tort for damages for the negligent act of the defendant in selling him machinery defectively manufactured or assembled, which was the proximate cause of the fire; that appellant can maintain this suit, regardless of the terms of the contract; that the cause of action is not for a breach of the warranty or contract; that where the thing manufactured or sold is not necessarily and patently a dangerous instrumentality, but only becomes such by reason of the defect, the manufacturer is not usually liable to persons other-than the purchaser, but is liable to the purchaser, because the negligence of the manufacturer is held to be the proximate cause of the damage, whereas to other persons the negligence is regarded as remote; that in all oases where the manufacturer or seller has been held liable to third persons it would have been liable to the purchaser.

Appellant cites cases where the manufacturer of automobiles was held liable to third persons for defects in the construction of the automobile. MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440; Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S. W. 1047, 37 L. R. A. (N. S.) 560, Ann. Cas. 1913B, 689.

In the MacPherson Case, the New York court rests the liability upon the following proposition: “If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.”

In another place in this opinion the New York court is careful to say that it is dealing with the liability of the manufacturer of the finished product who puts it on the market to be used without inspection by his customers.

In the Shaffer Case, supra, the court states that the liability of a manufacturer to third persons in cases of this kind is put upon the ground of a public duty owed to every person using the article, which duty is to construct this article so that it will not be unsafe and dangerous. The rule of liability of a manufacturer to third persons is thus well stated in this opinion:

He is held liable “ (1) when he is negligent in the manufacture and- sale of an article intrinsically or inherently dangerous to health, limb or life; (2) when the maker sells an article for general use which he knows to he imminently dangerous and unsafe and conceals from the purchaser defects in its construction, from which injury might reasonably be expected to happen to those using it. ”

Under the first class are such articles as poisons and drugs.

The liability of the manufacturer in these cases is rested upon his public duty because of the danger to life and limb in the negligent manufacture of automobiles. There was no contract between the parties in those cases.

The rule is thus stated in 29 Oyc. 478:

“The liability of a vendor or manufacturer for negligence, except as regulated by contract, must arise from breach of a duty which he owes to the public. ’ ’

“The general rule is that a contractor, manufacturer, vendor, or furnisher of an article is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture, or sale of such article.” 2 Cooley on Torts (3d Ed.), p. 1486.

One of the exceptions to this rule as stated by Mr. Cooley is that — “A person who knowingly sells or furnishes an article which, by reason of defective construction or otherwise, is imminently dangerous to life 'or property, without notice or warning of the defect or danger, is liable to third persons who suffer therefrom. ’ ’

An interesting case on this subject is Huset v. Threshing Mach. Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303. In the opinion in that case it is said that: “Actions for negligence are for breaches of duty. Actions on contracts are for breaches of agreements.” See, also, Heizer v. Mfg. Co., 110 Mo. 605, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 482.

These cases while instructive upon the duty of a manufacturer to the ultimate purchaser of his article, are not directly in point. In this case there was a contract for the purchase of the gins between the parties to this suit. The undertakings of each party are ’stipulated thereon. Their rights and liabilities are therein fully stated. There was no necessity for making this • contract. No public duty nor public policy required it to be made. It is simply a private contract between private parties that neither was compelled to make. This contract provides that the seller warrants the machinery to be of good material and to perform well. The bill in effect alleges a breach of this agreement, in that the machinery did not perform well. Had it performed well it would not, of course, have set fire to the cotton. This then was a breach of the contract on the part of the manufacturer. The contract, however, further provides that if the machinery does not operate well the buyer must notify the seller within ten days of this fact. The bill alleges that soon after the gins were installed cotton was frequently set on fire. It does not state whether this happened during the first ten days of the operation of the gin; but, taking the allegations of the bill most strongly against the pleader, it is our duty to assume that these fires started within that time. Under this contract it therefore became the duty of the purchaser to at once inform the seller of this breach of the contract. The buyer failed to do so, but operated the gins without complaint during the ginning seasons for over one year. Under this contract it became t-he duty of the purchaser to notify the seller as soon as he could of this breach of the contract. By failing to do so the purchaser thereby breached his obligation under the contract. The contract further provides what is to be done by each party in case there is a failure of the warranty in connection with the machinery. In such case their rights and liabilities are measured by this contract. The contract further provides that failure to give this notice after ten days ’ use shall be conclusive evidence of the fulfillment of the warranty. No such notice was given, and the purchaser by this contract is now estopped from claiming a breach of the warranty. Threshing Machine Co. v. McCoy, 111 Miss. 715, 72 So. 138.

In case of a private contract of this kind where the duties and liabilities of the parties are both stipulated in the contract, there is no implied or other duty owed by either party, but all of these duties and liabilities are contained, measured, and governed by the contract. It is said that the suit is an action of tort. The relation, however, between these parties arises from the contract; it is a suit necessarily based upon the breach of a contract. The bill shows that there has been no breach of the contract, or rather that by the terms of the contract the plaintiff is estopped to claim a breach. There then can be no liability on the part of the defendant. The contract precludes any recovery. The case nearest in point cited by counsel is that of Birdsinger v. McCormick Harvester Mach. Co., 183 N. Y. 487, 76 N. E. 611, 3 L. R. A. (N. S.) 1047, 5 Ann. Cas. 586. In this case, however, it becomes unnecessary to discuss the question of whether or not the damages here sued for are proximate or remote.

The decree of the lower court is affirmed.

Affirmed.