180 Iowa 833 | Iowa | 1917
Defendant honored plaintiff’s order, and shipped the goods to the points designated in the several orders. The goods were consigned to defendant’s own order, and bills of lading for each car were issued to defendant’s order, with the notation, “Notify W. H. Hoopes & Co.” As plaintiff did its banking business at Muscatine, defendant drew its three drafts for the purchase price of the apples, attached bills of lading thereto, and forwarded them to the Muscatine State Bank for collection. Representing that it wished to inspect the apples before paying for them, plaintiff induced the bank, without the knowledge of defendant, to surrender the bills of lading to the plaintiff, but the drafts were not paid until afterward. The draft for the Ironwood car was paid November 14, 1914, and the drafts for the other two cars were paid on the day this action was commenced, when the amount thereof was turned over to the bank; but the bank was immediately garnished upon an attachment issued in.this case, and defendant has never received the money. The first car was ■shipped to Ironwood, Michigan. The apples were there inspected by one Lobb, a local broker, acting for plaintiff, and sold and delivered to a customer at that point. As the customer claimed they were not as represented, they were finally sold to it at 90c per hundredweight, f. o. b.
“Muscatine, Iowa, Oct. 31, 1914.
“F. H. Simpson Fruit Co., Flora Ill. Gentlemen: C. B. & Q. car No. 112863 ivas rejected at Ironwood, Mich., and we are having same sold on commission. Our people report very inferior stock with considerable- rottage. We did not write you at the time of this rejection, thinking car would be better after they got into it.
' “We yesterday received rejection on Illinois Central car 399984, and our customer sen! us a sample of the apples by parcel post, which certainly are a bad lot. Our people at Darlington advised it would be hard to find a perfect apple in the whole car, and that nearly every apple is specked. Now we settled with our Sigourney people on car received there and took quite a loss, and our Sigourney customer was up to call on us, and told the writer that the car had a heavy shrinkage from, rottage and specks. We expected a car of good orchard run apples, to be sound and free from rots.
“Car No. 6714 to Eyota, Minn., was rejected, and we sold same to Elkton, S. D., and don’t know how we will come out on the new sale.
“These rejections from such widely separated parties would indicate that this stock must be very poor, and that rottage complained of by all parties must be in the car, and that your loaders have been running in some drops and rots, possibly in your absence, as we do not think you would countenance any such loading if you were present. We have asked our people to let us have full report on cars and will do what is right with them and will submit to you. We are working on a very close margin of 5c to 10c per cwt.
“Yours truly, W. H. Hoopes & Sons.'”
The car shipped to Eyota, Plainview, Minnesota, was
There was sufficient testimony to take the case to the jury on the proposition that defendant misrepresented the character of the apples, or that there was a breach of warranty made before the sale, and that plaintiff suffered some damage on account thereof. But it is argued, first, that the court erred in not permitting defendant to show how and for what purpose plaintiff got the bills of lading without paying the drafts attached. During the trial, defendant offered to show that the bills of lading were surrendered by the bank to the plaintiff for the purpose of making an inspection of the apples, and that, pursuant thereto, an inspection was made by plaintiff, or its agent, before any complaint was made. We think this testimony ■should have been received.
The testimony shows that the bills of lading were turned over by the bank so that the apples could be inspected, and that plaintiff then guaranteed payment of the drafts; but there is no definite showing that the apples were immediately inspected, and defendant was deprived of the right to show that they were immediately inspected. The record also shows that plaintiff did not pay for the goods until long after it knew they were not as represented.
We understand the law to be well settled that, when goods are tendered by the seller in performance of an executory contract of sale, and accepted by the buyer after opportunity of inspection, without objection, the purchaser is liable for the price agreed upon, unless there be warranty intended to survive the acceptance. Allison v. Vaughan, 40 Iowa 421; Hirshhorn v. Stewart, 49 Iowa 418; Mackey v. Swartz, 60 Iowa 710.
The,, same doctrine applies where there is a breach of an implied warranty. See Berthold v. Seevers Mfg. Co.. 89 Iowa 506. Of course, there may be a warranty which will survive the sale, and which may be enforced after delivery and acceptance of the property. But this usually applies to property subject to inspection, or definitely ascertained property which is the subject of sale.
Here there were no words of warranty, and no particular apples were the subject of a sale. Any which would answer the description could have been furnished by the seller, and plaintiff was not bound to accept any which were tendered him in performance of the agreement unless they complied with the description given of the apples. Davidson v. Smith, 143 Iowa 124, involved a specific car of melons to be delivered to the buyer at Ties Moines for shipment to Webster City. No right of inspection was involved in that case, and the sale was treated as an executed one on delivery of the property to the carrier. In most of the
II. Defendant asked instructions along the lines heretofore suggested, which the court refused to give, and also excepted to the instructions because this issue Avas not submitted to the jury. While the testimony, by reason of the court’s rulings, was not strong on this point, we think there Avas error both in the giving and in the refusal to give the instructions referred to.
III. Some reference is made to the fact that the trial court submitted the case as if there were both an express and an implied Avarranty, and that this Avas error. We find no exceptions Avhich properly raise this question, and need give it no further attention than to say that the so-called implied warranty Avas stated to be practically the same as the express one, so that no prejudice resulted to defendant in any eA-ent. Borne confusion is found in the argument in the use of terms. It is suggested that an express warranty necessarily means a Avritten one. Of course, this is not true. An express contract of any kind may be
Other matters need not be noticed, as they • are not likely to arise on a retrial. For the errors pointed out, the judgment must be, and it is, — Reversed.
The foregoing opinion was prepared by Justice Deemer, now deceased, and is adopted as the opinion of the court.