Baer & Co. v. Mobile Cooperage & Box Mfg. Co.

49 So. 92, 159 Ala. 491, 1909 Ala. LEXIS 697

• Court: Supreme Court of Alabama
• Decided: February 4, 1909
• Status: Published

Opinion

ANDERSON, J.

While the obligation to sell the culls was binding only on the defendants, it being optional with the plaintiffs to order or not as they saw fit, and would, be wanting in mutuality, if'this clause was. the entire contract, or was in no way dependent upon or collateral to the lease, in which it was incorporated, they were both embodied in the same instrument, and the agreement to supply the culls was no doubt an inducement to the plaintiff to lease the property, and the obligation to pay rent therefor was a valuable consideration, not only for the use of the plant, but for the obligation on the part of the defendant to supply the culls. —Christian & Craft Co. v. Bienville Water Co., 106 Ala. 124, 17 South. 352; Merrett v. Coffin 152 Ala. 474, 44 South. 622; Hawralty v. Warren, 18 N. J. Eq. 126, 90 Am. Dec. 613; 26 Am. & Eng. Ency. Law, 30.

Where goods are sold by description, and not by the buyer’s selection or order, and without any opportunity for inspection (inspection before purchase), there is ordinarily an implied warranty, not only that they conform to the description in kind and specie, but also that they are “merchantable” — not that they are of the first-quality, or of the second quality, but that they are not so inferior as to be unsalable among merchants or dealers in the article; i. e., that they are. free from any remarkable defect. In such sales the doctrine of caveat emptor does not apply. This is especially true when the vendor is the manufacturer, or the sale is executory for future delivery. — Benj. on Sales (7th Ed.) 685, and authorities cited in note 15; Gachet v. Warren & Burch, 72 Ala. 288. It is also settled law that, when there is a breach of warranty, in the sale of goods, the buyer may rescind the sale by refusing the goods, etc., or he may accept the goods and bring an action for breach of warranty, or he may recoup by way of counterclaim damages for breach of warranty in the vendor’s action for the price. — Eagan Co. v. Johnson, 82 Ala. 233, 2 South. 302; Frith v. Hollan, 133 Ala. 583, 32 South. 494, 91 Am. St. Rep. 54; Brown v. Freeman, 79 Ala. 410. Nor does the mere fact of acceptance and use of the goods, even after knowledge of the defect, prevent a resort to an action upon a warranty or for fraud. The warranty survives the acceptance. It has been said: “The buyer need not return the goods, nor offer to do so, nor give any notice, in order to sue upon- his warranty.” While this rule does not obtain in England, it does in a majority of the American states, and has not only been adhered to by recent authorities in Alabama, but was followed in the early cases of Cozzins’ v. Whitaker, 3 Stew. & P. 322, and Milton v. Rowland, 11 Ala. 732. As is said by Mr. Benjamin, in his valuable work on Sales (7th Ed., p. 961) : “No doubt a failure to return the goods, or notify the vendor of the defect, after sufficient opportunity to examine them, may be some evidence that no defect existed, but it is not a condition precedent to the action, nor in law a waiver of the warranty, though some states seem to hold it so, especially in executory contracts and where the defect is apparent.” As an original proposition, the writer would adhere to the exception as being conducive of prompt and fair dealings between buyer and seller; but the rule has been too well established in this and other states to' depart from it at this late day. The trial court did not err in sustaining the demurrer to special pleas 5 and 7.

The contract, in the case at bar, was plain and unambiguous in so far as setting out the obligation of the defendants. They were to deliver not exceeding 1,500,000 feet of culls, “shipping culls at flO per thousand and mill culls at $5 per thousand.” The defendants, therefore, complied with their contract if they delivered either shipping or mill culls which were merchantable and could be used for the purposes for which they were ordered, as the defendants were the manufacturers and knew at the time of making the contract the use to which the plaintiffs desired to put them. It would, therefore, matter not whether they were green or dry, or thick or thin, if they were mill culls or shipping culls and were merchantable and adaptable to the uses for which they were ordered. The plaintiffs could show that they were not mill or shipping culls, were unmerchantable or unfit for the use for which they were ordered, but could not fasten, by proof of custom, a warranty not implied by law from the terms of the contract. The defendants did not undertake to deliver culls of the customary or standard size or quality, but to deliver merchantable mill and shipping culls and such that could be used in the plaintiffs’ factory. The defendants did undertake however, to furnish “mill culls” and “shipping culls,” and there was an implied warranty that, when they delivered shipping culls as shipping culls, they would not deliver mill culls and collect for shipping culls. The terms “mills culls” and “shipping culls” are technical, and* not commonly known to courts and juries, and there was considerable controversy as to the kind of culls delivered, whether mill or shipping culls. It was therefore permissible for the plaintiffs to show, by expert mill men, the meaning of these terms in the customary and ordinary parlance of mill men, in order to enable the jury to classfy and differentiate mill culls from shipping culls— to determine how many of each were delivered, and whether or not any of them were unmerchantable ór unfit to be used by tbe plaintiff for the manufacture of boxes, etc. — McClure v. Cox & Co., 32 Ala. 617, 70 Am. Dec. 552.

It may be true that, when the contract for the sale of a thing is silent as to time of payment, the law will ordinarily presume that it was for cash; yet this is not conclusive, and if the parties, by their conduct, treat it otherwise, they have the right to do so, and are bound by the mutual interpretation or construction given the matter. The plaintiffs, therefore, had the right to show that throughout their dealings with the defendants they had not been demanding or collecting the cash upon delivery, but had a fixed custom of striking balances and collecting 60 days after the respective deliveries. Moreover, the default assigned by the defendants in the letter of April 17,1907, as a breach in failing to pay an invoice of April 11, 1907, was subsequent to the year covered by the complaint,' to wit, from the 3d of February, 1906, and ending February 2, 1907. A breach made by the plaintiffs during a subsequent year would not excuse a default by the defendants for the previous year. The contract did not provide for any specified amount of mill or shipping culls, but only for an aggregate numbel of feet, consisting of both grades. The defendants, however, contracted to deliver mill culls at $5 per thousand, and if they fraudulently deliver them as shipping culls, and collected $10 per thousand, they breached the contract in collecting $10 for the thing they agreed to sell for $5 per thousand. It is true the evidence was not definite as to the exact number of mill culls that were passed off for shipping culls, but estimates were given, which furnished some data for the jury to assess damages; and charges E and H, requested by the defendants, were properly refused. Moreover, if the plaintiffs showed a. commingling of the culls by the defendant's for a fraudulent purpose, it was incumbent on them to show the number of shipping culls, and, failing to do so the loss should fall upon them.

The only insistence of error, as to Shertzer’s testimony. of what he wrote defendants, is because no predicate was established for the introduction of parol evidence. Notice was. served on counsel, and one of the defendants was present ¿t the tidal, to produce the original. Ids receipt or possession was not denied. Preliminary proof of the acts regarded as necessarily precedent to the right to introduce secondary evidence of the contents of papers and documents is addressed largely to the discretion of the trial court. — 2 Elliott on Ev. § 1420. It is true an abuse of the discretion would be revisable; but we are not prepared to say that it was abused in the present instances.

There was no error in permitting the plaintiffs to show a noncompliance by the defendants with the subsequent agreement to deliver 200,000 feet of culls. It is irue the action is on the original contract; but there was proof that through subsequent negotiations plain-till's were willing to accept a delivery of said 200,000 feet as a substitute for the amount then in default, and a failure to deliver said 200,000 feet showed a noncompliance with what it was understood would be a comp! iance with the original contract.

The general rule is that, in order to impeach a 'witness by proof of bad character, the predicate is a knowledge of his character in the community or neighborhood in which he resides ; but the term “community” or “neighborhood'-’ is not susceptible of exact geographical definition, but means in a general way where the person is well known and has established a reputation. The inquiry is not necessarily confined to the domicile of the witness, but may extend to any community or society in which he has a welllmown or established reputation. It. is a matter of common knowledge that many men have their domicile at one point and business at another, spend much of their time at the latter, and in fact have a better established reputation there than at the place of their actual domicile. — McQueen v. State, 108 Ala. 54, 18 South. 843. The proof showed that, while Baer resided in Baltimore, he had an established business in Mobile, and spent much of his time there, and it was permissible for the witness to testify as to a knowledge of his character in Mobile.

The trial court did not commit reversible error in refusing charge 7 requested by the defendants. — Morris v. McClellan, 154 Ala. 639, 45 South. 641; Scott v. State, 133 Ala. 117, 32 South. 623; Davis v. State, 152 Ala. 25, 44 South. 561.

We are not prepared to say that the verdict of the jury was manifestly or palpably excessive, or that it was not supported bv the evidence. There was proof that the defendants were short in delivery 324,000 feet, and that the price had gone up from $2 to $4 per thousand. There was also evidence that plaintiffs’ plant was shut down about 40 days, 30 days of said shut-down being caused by want of material, and at a loss of $15 per day. There was a discrepancy in the inspection of Childs, which, considered with the foregoing items, supplied data from which the jury could assess over $1,500 damages; and this estimate as to the discrepancy in the inspection is upon the basis that the inspection was conclusive on the-plaintiffs, when as matter of law it was but an evidential or presumptive fact of the extent of the discripancy. There was also proof that more than 400,000 feet of uninspected culls had been delivered and charged for as shipping culls, when in fact they contained a large percentage of mill culls. (One witness said the percentage was very large, and another said at least three-fourts of what' was delivered as shipping culls were mill culls.) There was also evidence from which the jury could infer that they were so confused or mixed under the direction of the defendants and for a fraudulent purpose. We think it a sound proposition of law that, when a vendor so commingles or confuses one quality of goods with another, for a fraudulent purpose and in such a manner that they cannot be classified or separated by the jury, they will be warranted in holding all to be of the inferior grade. — 6 Am. & Eng. Ency. Law, 571; 8 Cyc. 594; Alley v. Adams, 44 Ala. 610; Burns v. Campbell, 71 Ala 288. Conceding, however, that the jury should have assessed only three-fourths of the uninspécted culls, which were delivered as shipping culls, as mill culls, this would have afforded data of damage exceeding $1,500, which, added to the other items, would justify the ver diet.

The trial court did not err in refusing the motion for a new trial, and, no reversible error having been committed during the trial, the judgment of the circuit court must be affirmed.

Affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ„ con-concur.