Cook, J.,
delivered the opinion of the court.
The appellee, It. L. Everett, filed an attachment suit in the chancery court of Simpson county against the appellant, Orgill Bros. & Co., seeking to recover damages to the amount of one thousand seven hundred twenty-three dollars and twelve cents for the alleged breach of an express and implied warranty covering the sale by appellant to appellee of a pair of cotton scales to be used by the appellee in his business as a cotton buyer.
Appellee alleged in his bill of complaint that he was en - gaged in the general mercantile business at Magee, Miss., and in connection with this business that he bought and sold cotton; that the appellant was engaged at Memphis, Term., in the business of a dealer in hardware, and among other things sold cotton scales; that on the 21st day of August, 1922, a traveling salesman of the appellant called on the appellee for the purpose of selling to him goods, wares, and merchandise; that appellee made known to this salesman his need of a pair of cotton scales for the purpose of weighing cotton during the season of 1922; that the appellant through its salesman sold him a pair of Smith cotton scales, at and for the price of seventy-five dollars and sixty cents; that the scales were delivered
to him, and thereupon the appellee proceeded to buy cotton from the trade in his territory, weighing the same on said scales, and paying for it’by these weights; that some time during the latter part of September, 1922, he discovered that the scales were inaccurate and were over-weighing on each five hundred-pound bale of cotton, and that, as a consequence of this overweighing, he lost the sum of one thousand seven hundred twenty-three dollars and twelve cents for the recovery of which the suit was brought. The bill further alleged that the appellant knew the purpose for which the scale was purchased and the necessity for accuracy in the scale, and that there was an express and an implied warranty on the part of the appellant that the scale would weigh accurately and was reasonably fit for the purpose for which it was bought, and, because of the alleged inaccuracy in weighing, the warranty had been breached.
The appellant filed an answer and crossbill; the answer averring that it was engaged as a dealer in such scales and not as a manufacturer, which was known to appellee; thát it sold the scales to appellee, f. o. b. Memphis, Tenn., and the scales were accurate in every respect when delivered to the express company at Memphis, and were broken in transportation for which the appellant was not liable; that the appellee undertook to repair the scales himself, without notifying appellant of his purpose so to do, and without appellant’s consent, and if any inaccuracies were found in said scale, they were produced by reason of appellant’s own negligence in attempting to have the same repaired; that, if there was any defect in the same, it was a defect that could not be discovered by a reasonable inspection, and that appellee could not recover of it because, after discovering the alleged inaccuracies of said scale, the appellee continued to use the same, and refused to return or offer to return said scale, after another had been shipped to him. In its cross-bill appellant alleged that the appellee was indebted to it in the sum of two hundred seventy-nine
dollars and fifteen cents for other merchandise sold to appellee, and also in the sum of one hundred fifty-one dollars and twenty cents for two scales, making a total of four hundred thirty dollars and thirty-five cents, for which sum it prayed a recovery.
The appellee’s answer to the cross-bill admitted that the appellant was a dealer in scales purchased from scale manufacturers, and averred that the agent of the appellant represented to him that the scales were accurately tested at the factory, and that the scales would weigh his cotton accurately. The answer further denied that the broken part of the scale, which he had repaired, was improperly repaired, or that it had anything to do with the accuracy or the scales; denied that he continued to use the inaccurate scales after receiving from appellant another scale; denied that he had accepted the first scale, but averred that he had retained this scale for use as evidence in court; denied that the defect in the scale and weights was a hidden one, but charged that, if the defect was unknown to appellant, it was guilty of negligence in complying with the implied warranty in the sale thereof. The answer denied liability for the purchase price of two scales, hut admitted that appellee was due the sum of two hundred seventy-nine dollars and fifteen cents for merchandise, and also seventy-five dollars and sixty cents, the purchase price of one scale, making a total of three hundred fifty-four dollars and seventy-five, cents.
The only testimony in the record in reference to an express warranty of the scales, or upon which it can he claimed that there was
any
express warranty, is that of the appellee, B. L. Everett, as follows:
“About the 15th of August I bought a pair of scales from Mr. Boadwee, a representative of Orgill Bros, of Memphis, Tenn., and when I was talking to him about the scales he told me that he sold Smith cotton scales, and I asked him about the correctness, and he said that he had sold lots of these^scales and had no complaint,
and that the scales were always tested before they left the factory.”
There is no testimony whatever that the appellant had ever had any previous complaints about the correctness of scales sold by them, and the testimony is positive and undisputed that the scales sold to the appellee were correctly and accurately tested at the factory in accordance with the United States government test and requirements, and that this scale was accurate when it was packed and shipped from the factory.
The representation that the scales were, always tested before leaving the factory, and that the seller had not had any complaints of inaccuracy of scales previously sold, is in no sense an express warranty that.the scales sold to appellee would weigh accurately or correctly. In Mechem on Sales, par. 1234, an express warranty is defined
as
— “a direct and positive affirmation or assertion made by the seller, as part of the contract of sale, relating to some matter of fact respecting the title, quality, character, or condition of the thing sold, under such circumstances that it may fairly be regarded by the buyer as a promise or undertaking on the part of the seller that the fact is as he affirms or asserts, and which the buyer relies upon as such in making the purchase.”
The only facts represented were that scales of the particular trade-name previously sold by appellant had proven satisfactory, and that these scales were always tested before leaving the factory. There was no testimony whatever that any of these scales previously sold by appellant had proven to be inaccurate or unsatisfactory, while the undisputed proof is that the scales were always tested before leaving the factory, and that the particular scale sold to appellee was so tested.
The next question that arises is whether or not there was an implied warranty of accuracy, or that the scales would weigh cotton correctly.
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Cook, J.,
delivered the opinion of the court.
The appellee, It. L. Everett, filed an attachment suit in the chancery court of Simpson county against the appellant, Orgill Bros. & Co., seeking to recover damages to the amount of one thousand seven hundred twenty-three dollars and twelve cents for the alleged breach of an express and implied warranty covering the sale by appellant to appellee of a pair of cotton scales to be used by the appellee in his business as a cotton buyer.
Appellee alleged in his bill of complaint that he was en - gaged in the general mercantile business at Magee, Miss., and in connection with this business that he bought and sold cotton; that the appellant was engaged at Memphis, Term., in the business of a dealer in hardware, and among other things sold cotton scales; that on the 21st day of August, 1922, a traveling salesman of the appellant called on the appellee for the purpose of selling to him goods, wares, and merchandise; that appellee made known to this salesman his need of a pair of cotton scales for the purpose of weighing cotton during the season of 1922; that the appellant through its salesman sold him a pair of Smith cotton scales, at and for the price of seventy-five dollars and sixty cents; that the scales were delivered
to him, and thereupon the appellee proceeded to buy cotton from the trade in his territory, weighing the same on said scales, and paying for it’by these weights; that some time during the latter part of September, 1922, he discovered that the scales were inaccurate and were over-weighing on each five hundred-pound bale of cotton, and that, as a consequence of this overweighing, he lost the sum of one thousand seven hundred twenty-three dollars and twelve cents for the recovery of which the suit was brought. The bill further alleged that the appellant knew the purpose for which the scale was purchased and the necessity for accuracy in the scale, and that there was an express and an implied warranty on the part of the appellant that the scale would weigh accurately and was reasonably fit for the purpose for which it was bought, and, because of the alleged inaccuracy in weighing, the warranty had been breached.
The appellant filed an answer and crossbill; the answer averring that it was engaged as a dealer in such scales and not as a manufacturer, which was known to appellee; thát it sold the scales to appellee, f. o. b. Memphis, Tenn., and the scales were accurate in every respect when delivered to the express company at Memphis, and were broken in transportation for which the appellant was not liable; that the appellee undertook to repair the scales himself, without notifying appellant of his purpose so to do, and without appellant’s consent, and if any inaccuracies were found in said scale, they were produced by reason of appellant’s own negligence in attempting to have the same repaired; that, if there was any defect in the same, it was a defect that could not be discovered by a reasonable inspection, and that appellee could not recover of it because, after discovering the alleged inaccuracies of said scale, the appellee continued to use the same, and refused to return or offer to return said scale, after another had been shipped to him. In its cross-bill appellant alleged that the appellee was indebted to it in the sum of two hundred seventy-nine
dollars and fifteen cents for other merchandise sold to appellee, and also in the sum of one hundred fifty-one dollars and twenty cents for two scales, making a total of four hundred thirty dollars and thirty-five cents, for which sum it prayed a recovery.
The appellee’s answer to the cross-bill admitted that the appellant was a dealer in scales purchased from scale manufacturers, and averred that the agent of the appellant represented to him that the scales were accurately tested at the factory, and that the scales would weigh his cotton accurately. The answer further denied that the broken part of the scale, which he had repaired, was improperly repaired, or that it had anything to do with the accuracy or the scales; denied that he continued to use the inaccurate scales after receiving from appellant another scale; denied that he had accepted the first scale, but averred that he had retained this scale for use as evidence in court; denied that the defect in the scale and weights was a hidden one, but charged that, if the defect was unknown to appellant, it was guilty of negligence in complying with the implied warranty in the sale thereof. The answer denied liability for the purchase price of two scales, hut admitted that appellee was due the sum of two hundred seventy-nine dollars and fifteen cents for merchandise, and also seventy-five dollars and sixty cents, the purchase price of one scale, making a total of three hundred fifty-four dollars and seventy-five, cents.
The only testimony in the record in reference to an express warranty of the scales, or upon which it can he claimed that there was
any
express warranty, is that of the appellee, B. L. Everett, as follows:
“About the 15th of August I bought a pair of scales from Mr. Boadwee, a representative of Orgill Bros, of Memphis, Tenn., and when I was talking to him about the scales he told me that he sold Smith cotton scales, and I asked him about the correctness, and he said that he had sold lots of these^scales and had no complaint,
and that the scales were always tested before they left the factory.”
There is no testimony whatever that the appellant had ever had any previous complaints about the correctness of scales sold by them, and the testimony is positive and undisputed that the scales sold to the appellee were correctly and accurately tested at the factory in accordance with the United States government test and requirements, and that this scale was accurate when it was packed and shipped from the factory.
The representation that the scales were, always tested before leaving the factory, and that the seller had not had any complaints of inaccuracy of scales previously sold, is in no sense an express warranty that.the scales sold to appellee would weigh accurately or correctly. In Mechem on Sales, par. 1234, an express warranty is defined
as
— “a direct and positive affirmation or assertion made by the seller, as part of the contract of sale, relating to some matter of fact respecting the title, quality, character, or condition of the thing sold, under such circumstances that it may fairly be regarded by the buyer as a promise or undertaking on the part of the seller that the fact is as he affirms or asserts, and which the buyer relies upon as such in making the purchase.”
The only facts represented were that scales of the particular trade-name previously sold by appellant had proven satisfactory, and that these scales were always tested before leaving the factory. There was no testimony whatever that any of these scales previously sold by appellant had proven to be inaccurate or unsatisfactory, while the undisputed proof is that the scales were always tested before leaving the factory, and that the particular scale sold to appellee was so tested.
The next question that arises is whether or not there was an implied warranty of accuracy, or that the scales would weigh cotton correctly.
The testimony for the appellee was that the defect in the scale in question was such as could not be detected
by a reasonable inspection, while the testimony for the appellant was to the effect that, if the scale was in fact defective, the defect was such that it could only be discovered by a test, and that there was no way to-ascertain the cause of inaccuracies in a scale of this kind,- except at a place equipped for testing the scale in accordance with the government test. In the case of
Otts
v.
Alderson, 1
0 Smedes
&
M. 476, it was held that:
“A warranty is implied against all latent defects in two eases: (1) "Where the seller knew the buyer did not rely on his own judgment, but on that of the seller, who knew or might have known the existence of the defects; and (2) where a manufacturer or producer undertakes to furnish articles of his manufacture or produce in answer to an order.”
In the present case there is no evidence that the buyer relied on the judgment of the seller in the purchase of the scale. The buyer knew that the seller was a dealer and not a manufacturer. He was informed that the dealer sold a cotton'scale of an established trade-name, which had previously given satisfaction to the trade, and that these scales were' always tested at the factory. Upon the record before us the truth of these representations is established, and there is absolutely no testimony to show that the seller knew the buyer did not rely- on his own judgment, and none to show that the buyer did not in fact rely on his own judgment. The fact that the buyer informed the agent- of the appellee that he desired to purchase scales for the purpose of weighing cotton is of no importance under the facts in this record. A mere application to purchase cotton scales would presumably inform the seller that the scales were desired for the purpose of weighing cotton, and that accurate weighing was desired. The record does not challenge the good faith of the dealer, and it establishes the fact that the defect, if any, was such that the seller did not know of it, and could not have ascertained that it existed by a reasonable inspection. The appellee purchased a known
and definite article of a recognized and established make and trade-name, and the evidence fails to show that be relied on the judgment of the seller, and we do not think that, under the facts in this record, there was an implied warranty on the part of the dealer that the scales in question were accurate. Consequently, the decree of the court below will be reversed, and decree will be entered here for the appellant for the sum of three hundred fifty-four dollars and seventy-five cents the amount admitted by the appellee to be due for goods, wares, and merchandise purchased from the appellant.
Reversed and decree for appellant.