111 Me. 198 | Me. | 1913
This action is brought for the recovery of damages for breach of contract for the sale of fertilizer. The jury found for plaintiff. The case is before this court upon numerous exceptions and a general motion for new trial.
In the spring of 1909, the plaintiff, a farmer, ordered of defendants, manufacturers of fertilizers, eleven tons of fertilizer. The order was transmitted through the selling agent of the defendants, who manufactured as adapted to the growth of potatoes four fertilizers known as “4-6-10,” “3-6-10,” “Special Potato” and “Aroostook.” They also manufactured six other brands of fertilizer, two for corn, two for grass and grain, one for general purposes and another, the purpose of which does not appear. The expression 4-6-10 indicated that the fertilizer so described, contained as chemical constituents 4 per cent ammonia, 3.29 per cent nitrogen, 6 per cent phosphoric acid and 10 per cent actual potash, together with a certain amount of filler consisting of inert substances. The plaintiff purchased of defendants a quantity of 4-6-10 fertilizer in 1907 or 1908 which he used upon the potatoes raised by him in 1908 evidently to his satisfaction. In making his purchase of 4-6-10 fertilizer to be applied to the crop of 1909, it does not appear from the record that he made any statement to the agent of defendants of the purpose for which he desired it. Plaintiff applied the fertilizer so purchásed in 1909 to a field of potatoes adjoining the acreage upon which the crop of 1908 was raised. The yield was very markedly less than that of the preceding year and there was evidence tending to prove that the fertilizer purchased by plaintiff in 1909 did not contain the chemical constituents in the proportion indicated and that this defect was latent.
Among other things the jury were instructed by the Justice presiding, “I cannot give you the instruction that when a man buys a fertilizer as this plaintiff bought it in the market by name, 4-6-10 for instance, that there is no accompanying implied warranty that that fertilizer will fertilize . . . There may be an express warranty with those brands which contain the preparation of the three different elements, the tag or stamp on them, but there is also going along with them, I instruct you, an implied contract that they are
“In this case, if you find that the defendants knew that this fertilizer was to be used for fertilizing potatoes, and that their customers throughout the State would buy it for that purpose, then it was ordered by the buyers for a special purpose known to the sellers, and if so, there is an implied warranty that it was reasonably fit and suitable for the purpose for which it was ordered or sold . . .
“It is not confined to a guarantee of just such a per cent of one element, and such of another, and such of another, but there is an implied warranty that the whole mixture as a mixture is reasonably adapted to the purpose.”
In support of the exceptions to these instructions, the defendants urge that there can be no implied warranty because “the words 4-6-10,” by which description the goods were ordered and sold, constitute an express warranty, invoking the familiar rule that where there is an express warranty the law will imply no other warranty of the same kind, that is, that an express warranty of quality will exclude any other warranty of quality by implication.
It is undoubted law that where an express warranty of quality is made upon a sale, no other warranty touching quality will be implied: Lombard Co. v. Paper Co., 101 Maine, 114, 120; Deming v. Foster, 42 N. H., 165, 175; DeWitt v. Berry, 134 U. S., 306, 313, 314. It is also true that words in a contract of sale descriptive of the subject matter of the contract have been held to be express warranties : Henshaw v. Robins, 9 Met., 83, 87, 88; Edwards v. Marcy, 2 Allen, 486, 489; Borrekins v. Bevans, 3 Rawle, 23, 43; see also Morse v. Moore, 83 Maine, 473, 479, 489, while other authorities hold them implied warranties; Walcott et als. v. Mount, 36 N. J. L., 262, 266; Jones v. George, 61 Tex., 345, 349; Catchings v. Hacke, 15 Mo. App., 51, 53; see also White v. Miller, 71 N. Y., 118, 129-131. Strictly, however, such words do not constitute a warranty, either express or implied. They are evidence of no undertaking collateral to a contract. They constitute the contract itself and without them there would be no contract. See Warner v. Arctic Ice Co., 74 Maine, 475, 478; Chanter v. Hopkins, 4 M. & W., 399, 404; Bagley v. Cleveland etc. Co., 21 Fed., 159, 162. Difference in terms can make no change in the principles of law and whether held a condition pre
The inquiry is, therefore, was there under the circumstances and terms of the contract of sale, an implied warranty of the fitness of the described article. It is also well established that where a manufacturer or dealer contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, the law implies a promise on his part that the article so made and sold by him for a specific purpose, and to be used in a particular way, is reasonably fit and proper for the purpose to which it is to be applied, but where a known, described and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still if the known, defined and described thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer. In the latter case the purchaser relies upon his own judgment in making the selection, and not upon that of the manufacturer or dealer: Lombard v. Paper Co., 101 Maine, 114, 120; Seitz v. Brewers’ Refrigerating Co., 141 U. S., 510, 518, 519. In the case before us there is no evidence that defendants or their agent were informed that the fertilizer bought of defendants by its descriptive name was ordered for a specific purpose and to be used in a particular way. See West End Mfg. Co. v. Warren Co., 198 Mass., 320, 325.
But there is a further familiar rule of law that where a manufacturer or dealer undertakes to supply a known and described article manufactured by himself or in which he deals, but which the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article. That is, not only must the goods answer the specific description but they must also be salable or marketable under that description. Warner v. Arctic Ice Co., (Symonds, J.) 74 Maine, 475, 478, 479: And in this case the court cites with approval “The fundamental under
The court is of the opinion that the language of the instructions excepted to may have been susceptible of an understanding of the law by the jury not conformable to established principles in that the instructions were appropriate to the sale of an article for a specific purpose to be used in a particular manner, in reliance upon the judgment of the seller, rather than to a sale by the manufacturer of a known and described article by name, as in the present case. See Walker v. Pue, 57 Md., 155, 167; Rasin v. Conley, 58 Md., 59, 65, 66.
The rule of damages, whether the breach of contract shown be a failure to furnish goods reasonably fit for a specific purpose, or to deliver goods of a certain description, no opportunity for effective inspection being afforded, or to perform a contract of carriage as in Hadley v. Baxendale, 9 Ex., 341, is that adopted and recognized by this court, namely, that the damages “should be such as may fairly be considered either arising naturally, i. e. according to the usual course of things from such breach of contract itself, or such as may be reasonably supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of
As the exceptions first considered are sustained, it is unnecessary to consider the other exceptions or the motion.
Exceptions sustained.
New trial granted