Pease & Dwyer Co. v. Somers Planting Co., 93 So. 673

Pease & Dwyer Co. v. Somers Planting Co.

93 So. 673 | Miss. | 1922

Anderson, J.,

delivered the opinion of the court.

Appellee, Somers Planting Company, sued out, in the chancery court of Coahoma county, a foreign attachment against appellant, Pease & Dwyer Company, for damages suffered by appellee in the death of two of its mules, alleged to have been caused by unsound hay fed to them, which hay was purchased by J. E. Somers & Co. from appellant, and resold by the former to appellee. The attachment was sued out under section 536, Code of 1906 (Hemingway’s Code, section 293). Appellant was a non-resident of the state, residing in Memphis, in the State of Tennessee, and engaged in the sale of stock feedstuffs, including alfalfa hay. Appellee, Somers Planting Company, was engaged in planting in this state. J. E. Somers & Co. was a mercantile partnership, doing business in this state. The latter, and other parties, were made resident defendants, in the nature of equitable garnishees.

The bill alleges that said resident defendants were indebted to appellant, which indebtedness the bill sought to impound and subject to the payment of appellee’s said claim against appellant.

The cause was heard on bill, answer, and proof, and final decree was rendered in favor of appellee for the damages proven, resulting from the loss of its mules, and certain indebtedness admitted by the resident defendants in. their answers to be due by them to appellant, amounting to largely more than the sum for which the decree was rendered, was subjected to the payment of said decree. From that decree appellant prosecutes this appeal.

The theory on which appellee based its claim against appellant was that the hay in question was sold with an express warranty of soundness and fitness for stock feed. The express warranty relied on by appellee is set out in its bill in this language:

*154“Complaints charge that under the terms and stipulations of the agreement the hay was to be No. 2 alfalfa hay, sound'and'wholesome.”

Appellant contends that, even though there went with the sale of the hay an express warranty by appellant of fitness for stock feed, still, there is no liability on such warranty to appellee, because the hay in question was not sold to appellee, and that, conceding that such express warranty went to the first purchaser, still appellee, the sub-purchaser, took the property unaccompanied by such warranty, arid therefore had no rights thereunder; that, if appellee has any cause of action, it is against said J. E. Somers & Co., and not against appellant.

There is no controversy about the controlling facts of the case. They are stated in appellee’s bill, which expressly charges that ajjpellee, Somers Planting Company, was a partnership composed of J. E. Somers and M. J. Somers, and that said J. E. Somers & Co. was a mercantile partnership, doing business in this state,‘composed of said J. E. Somers and M. J. Somers, and, also, Lang Allen; that therefore each of said two firms had two partners in common, while the said J. E. Somers & Co. had one partner, Lang Allen, who was not a member of appellee’s firm. It is distinctly charged in the bill that said J. E. Somers & Co. bought the carload of hay in question from appellant, with directions to appellant to ship the same to appellee, its customer, which was done; that the hay was sold under an express warranty that it was “No 2 alfalfa hay, sound and wholesome,” when, in truth and in fact, it was not No. 2 alfalfa hay, sound and wholesome, but was rotten and poisonous; that appellee fed said hay to its mules, and by reason of its unsoundness it caused the death of two of them. The evidence showed that the hay in question was bought, not by appellee from appellant, but by the said J. E. Somers & Co. who resold the same to appellee.

There seems to be no division among the authorities that a warranty by the seller of the quality of personal property *155sold is addressed alone to the first purchaser; that such warranty does not run with the title to the property, and subpurchasers cannot avail themselves of such warranty as against the original seller. Some of the reasons for the rule are that there is no contractual relation existing between the original seller, the warrantor, and a subpurchaser. They are unknown to each other in the transaction. The seller who warrants does so alone for the benefit of his purchaser. He receives the purchase price as the consideration for the property and the warranty going with it. The sale of an article by the purchaser to whom it is warranted does not mean that he intends to part with any right of action he may have against his seller growing out of a breach of such warranty. It is to be presumed that, when a resale is made, if the warranty has been breached, the warrantee intends to retain whatever right he may have growing out of such breach. One who purchases goods with an express warranty, of course, may assign any right of action which may have accrued to him, growing out of a breach of such warranty; but he cannot enlarge such warranty so as to make it extend to subpurchasers.. Williston on Sales, section 244, p. 327; 35 Cyc.. p. 370.

Appellee’s attorneys contend, however, that appellee, Somers Planting Company, and the purchaser of said hay from appellant, the said J. E. Somers & Co., are one and the same concern. Appellee is precluded from making that contention because in its bill it expressly avers that said J. E. Somers & Co. is one partnership, composed of J. E. Somers, M. J. Somers, and Lang Allen, while appellee is another partnership, engaged in a different business, composed of the said J. E. Somers and M. J. Somers. It appears, therefore, that each of said firms had two partners in common, but that J. E. Somers & Co. had a partner who was not a member of appellee’s firm. It seems useless to cite authorities to show that the liability of two such partnerships is entirely distinct and. independent; that neither, as a partnership, is liable for the debts of the other; nor *156can the firm assets of either be subjected primarily to the payment of the obligations of the other. Therefore the purchase of the hay in question by the said J. E. Somers & Co. was not a purchase by appellee.

But it is argued in behalf of appellee that this question cannot now be raised, because appellant answered appellee’s bill, instead of testing the legal sufficiency thereof by demurrer; that, having failed to demur, appellant is es-topped to assert that the appellee’s bill stated no cause of action against appellant. If the defect in the bill complained of were a mere formal defect, the principle contended for would be sound. It is not a mere formal defect, however. The bill simply states no cause of action whatever in favor of appellee against appellant. On the contrary, by express averment, it is shown in the bill that the alleged warranty of soundness of the hay relied on by appellee was a warranty addressed alone to the said J. E. Somers & Co., the purchaser of the hay from appellant, and that appellee was simply a subpurchaser from the said J. E. Somers & Co., without any right to the benefit of such warranty. Where a bill in equity states no cause of action against the defendant, the latter may take advantage of it on appeal, whether the question is raised in the court below or not. This may be done even where, a decree fro oonfesso is taken against the defendant, or where the defendant expressly admits in his answer the truth of the allegations of the bill. Where the bill states no cause of action, a final decree on such bill amounts to nothing. It is void. George v. Soloman, 71 Miss. 168, 14 So. 531; Garland v. Hull, 13 Smedes & M. 76, 51 Am. Dec. 140; Belew v. Jones, 56 Miss. 342.

Reversed, and judgment here for appellant, dismissing appellee’s bill.

Reversed.