This action was brought by Harley Odom, a Darlington County farmer, against the Ford Motor Company to recover damages for alleged breach of warranty of soundness and fitness of a tractor for agricultural purposes. The tractor was manufactured by Ford and sold to its Charlotte dis *323 tributar, Carolina Ford Tractor, Inc., which in turn sold it to the Darlington dealer, Sansbury Tractor Co., Inc., from which it was purchased by Odom on August 1, 1953.
The complaint is based on an oral express warranty as to quality and adaptability claimed to have been made by Sans-bury Tractor, Inc., as the agent of Ford, and also on an implied warranty by the manufacturer as to the fitness and adaptability of the tractor for agricultural purposes. It was alleged in the complaint that the tractor was “not capable of doing general farm work because of a defective lift.” It was further alleged in Paragraph 5:
“That because of the defective lift on said tractor, and the resulting inefficiency for general farm use, plaintiff’s valuable crops were materially damaged as he was unable to perform the tasks designed for the said tractor to do; that plaintiff was put to great additional expense in his farming operations by reason of the aforesaid defects which directly caused and occasioned loss and damage to plaintiff in the sum of Three Thousand ($3,000.00) Dollars.”
The first defense of Ford was in effect a general denial. As a second defense, it set up an express written warranty wherein it limited its obligation to the replacement, for a period of ninety days from date of delivery, of any parts found defective. It was further stipulated: “This warranty is in lieu of any other warranty express or implied and any other obligation or liability on the part of Ford Motor Company.” As a third defense, it was alleged that if said tractor had a defective lift, such could have been discovered by reasonable inspection or examination and that by accepting said tractor and keeping same for a period in excess of ninety days without making any complaint, the purchaser had waived any right to assert that it was defective.
At the commencement of the trial defendant moved to require the plaintiff to elect whether he would proceed upon an express warranty or an implied warranty. The Judge reserved his ruling and proceeded to take the testimony. That of plaintiff was to the effect that shortly after purchasing *324 the tractor it developed that the lift, described in the testimony as a hydraulic system which “raises, lowers and controls the implement”, would not function properly; that such defect was called to the attention of the Darlington dealer and Charlotte distributor but was not remedied; that because of the inability of the plaintiff to use the tractor on his farm he was delayed in planting his 1954 cotton crop, causing a considerable loss in production and necessitating purchasing mules to do the work which should have been done by the tractor. According to the testimony of the defendant, no complaint was made to it as to any parts being defective for almost a year after the tractor was purchased and the alleged defective lift was corrected and new parts installed in March and June, 1955, without any expense to the plaintiff. ■ • ■ ■
At the conclusion of the testimony it was conceded that there was no testimony showing that Sansbury Tractor Co., Inc., was the agent of Ford or that said dealer had any authority to bind Ford by any representation or warranty. Respondent then elected to proceed on an implied warranty by the manufacturer of the fitness and adaptability of the tractor for the purposes for which it was sold. During the course of the trial timely motions were made by the defendant for a nonsuit and a directed verdict. These motions were refused and the case submitted to the jury solely on the theory of an implied warranty. A verdict was returned for plaintiff in the sum of $3,000.00. Defendant made a motion for judgment non obstante veredicto or in the alternative for a new trial, which was refused. This appeal followed.
There are numerous exceptions but we need only consider the contention that this action may not be maintained against Ford on an implied warranty because of lack of privity of contract. We may disregard the written warranty set up in Ford’s answer limiting its liability to the replacement during a certain stipulated period of any defective parts, since under the instructions of the Court the jury necessarily found that this warranty was not binding on respondent be
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cause it was never brought to his attention.
Stevenson v. B. B. Kirkland Seed Co.,
176 S. C. 345,
At the outset we are met with respondent’s argument that the question of lack of privity between the parties cannot be considered because it was not included in the grounds of the motions for nonsuit and directed verdict. While privity of contract was not mentioned eo nomine, appellant’s position throughout the trial was that the only liability assumed by it was under the written warranty set up in the answer and if there was any other warranty made at the time of the purchase of the tractor, it was the sole obligation of Sansbury Tractor Company which was not its agent and was without authority to bind it in any manner whatsoever. After careful consideration of the grounds of the motion for nonsuit and directed verdict, it is our conclusion that they are broad enough to raise the question of whether an action could be maintained against appellant on an implied warranty. It was not necessary for appellant to “brief” the point. It should be further stated that the element of privity of contract was specifically mentioned and argued on appellant’s motion for judgment non obstante veredicto and it appears that respondent’s counsel participated in the argument of this question without reservation or objection. Evidently they then thought that it was properly before the Court. In the order denying the motion, the Court held that lack of privity of contract between appellant and respondent would not bar the maintenance of an action on an implied warranty.
The general rule is that privity of contract is required in an action for breach of an implied warranty and that there is no such privity between a manufacturer and one who has purchased the manufactured article from a dealer or is otherwise a remote vendee.
Collum v. Pope & Talbot, Inc.,
135 C. A. (2d) 653,
The foregoing rule is followed in this jurisdiction. In
Mauldin v. Milford,
127 S. C. 508,
Among the exceptions developed by many courts to the foregoing rule is that a manufacturer or seller is liable to a third person in the preparation or sale of an article or product “inherently” dangerous to human safety, such as firearms, explosives, etc. Another exception excluded foodstuffs and beverages, it being held that an implied warranty of fitness for human consumption runs from the manufacturer to the ultimate consumer regardless of privity of contract.
In the celebrated case of
MacPherson v. Buick Motor Co.,
It will be noted that liability under the theory discussed in the preceding paragraph is not based on the breach of an implied warranty but upon the view that the failure of the manufacturer to exercise reasonable care in the making of an article which if negligently made is likely to cause injury to the person using it sounds in tort, and that recovery must rest upon negligence. In
Carter v. Yardley & Co., Ltd., supra,
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The cases in this State holding a manufacturer liable to a remote vendee have generally been in tort. In
Mauldin v. Milford, supra,
127 S. C. 508,
We think it is clear under the foregoing authorities that any liability on the theory of implied warranty is confined to Sansbury Tractor Company from which respondent purchased the tractor, and that an action on such a warranty cannot be maintained against Ford with which there was no privity of contract.
Respondent - claims that privity of contract is established by a pamphlet published by Ford and introduced in evidence in which there is discussed at length the construction and various uses that can be made of this tractor, and its superior features emphasized. It is argued that through representations made in this advertising material for the promotion of sales, Ford has assumed a direct contractual liability to anyone purchasing a tractor from a dealer.
There are cases where recovery has been allowed on the theory of express warranty without a showing of privity where the purchaser of an article relied on representations made by the manufacturer in advertising material .But the instant action was neither brought nor tried on this theory. There is no reference to the Ford pamphlet in the complaint nor to any representation made in this pamphlet. Respondent elected to proceed on a warranty implied by law and the case was submitted to the jury solely on this theory.
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It is also contended that by replacing parts and correcting the defect in the lift, Ford recognized a contractual obligation. Doubtless this was done by Ford under its agreement in the warranty to replace any defective parts. But even if done gratuitously, it would not be evidence of the assumption of a legal obligation. As said in
International Harvester Co. of America v. Law,
105 S. C. 520,
Respondent strongly relies on
Baxter v. Ford Motor Co.,
In conclusion, it may not be amiss to state that even in the State of Washington and other jurisdictions which permit a remote vendee to recover under certain circumstances on an implied warranty, this action could not be maintained because it does not fall within any of the exception recognized by those courts.
Murphy v. Plymouth Motor Corp.,
3 Wash. (2d) 180,
The Court erred in refusing appellant’s motion for a directed verdict. Judgment reversed and case remanded for entry of judgment in favor of appellant under Rule 27.