Walker v. Pue

57 Md. 155, 1881 Md. LEXIS 17

Opinion

Grasos, J.,

delivered the opinion of the Court.

The record of this case shows that the appellee, in the year iBlS, purchased of the Atlantic and Virginia Fertilizing Company, who were manufacturers of a fertilizer, known in the market as “Eureka,” three tons of-said fertilizin’. The purchase was made from W. G. Carr, the local agent of the company, for Howard County. Joshua Walker, the appellant, being the agent of the company for the States of Maryland and Pennsylvania. The fertilizer so purchased in the fall of 1876, was used upon the wheat crop of the appellee that fall, and the result was so satisfactory .to him, that in August, 1877, he gave a certificate to the appellant, as agent of the company, which was published in their general circular, and in which he stated that he had applied 200 to 250 lbs. of the “Eureka” to his wheat the preceding fall, and that the yield was eighteen and one-half bushels to the acre, which was the best yield he had had for ten years. ■ In the fall of 1877, he purchased of the agent Carr, three tons more of “Eureka,” which was applied to his crop of wheat that fall. After it was received and used upon the wheat, which was early in the month of October, the appellee, on the first day of November, 1877, gave a note to Oarr for $138, the price of the “ Eureka,” payable with interest, twelve months after its date. This note was assigned to the appellant, and this suit was brought upon it, and the appellee relied upon failure of consideration, and a breach of an alleged warranty given him- at the time of the purchase of the fertilizer, said warranty being that the “Eureka” would keep up to its former standard in analysis and preparation for drilling, and that, as the agent was about to take the appellee’s order, the latter said to him, that he did not want the fertilizer unless it would drill all right, and that the agent replied, “you need not fear, it will do that.”

During the trial below, several exceptions were taken by the appellant to the rulings of the Court, with reference to the admissibility of evidence. 'The first four of these were taken to the rulings of the Court below, in admitting in evidence certain letters of the company, its agents and the appellee relating to the sale and purchase of “ Eureka,” and of parol evidence of the contents of other letters written by the same parties, with reference to the same subject-matter, notice having been first given the opposite party to produce tliem, -which notice was not complied with. There was no error in these rulings. The fifth exception was taken to the admission of the testimony of the defendant, as to the contract between himself and Carr, with reference to the sale and purchase of the “Eureka,” for which the note was given, and what was said by each of them, with respect to the standard of analysis and drilling qualities of the fertilizer to he delivered by the agent to the appellee. This evidence was clearly admissible.

The sixth exception was taken to the admission of proof by the defendant, of the kind of crops he got from the land to which he had applied the “ Eureka,” in the fall of 1877. This evidence, that the “Eureka” did not produce good crops on the appellee’s land, was offered in connection with the other evidence, in the cause to prove a breach of warranty; as well as a failure of the consideration for which the note was given. This evidence was objected to, and the objection ought to have been sustained.

The appellee did not purchase an article of fertilizer, which was unknown to him. It was an article well known to him and on the market, and he himself had used it, and tested its qualities, and he purchased the specific article “Eureka,” well knowing what it was. It was sold to him and he pui’chased this specific article, as the one which he wished to apply to his crops. All that lie required, was that it should be up to the standard of analysis of that specific article, and in its preparation for drilling. Ho did not ask any guaranty that the article should produce a good crop, nor was any such warranty given. Nor will the law imply a warranty, where a party selects a specific article, that it will answer the purpose for which it is bought. In 1 Parsons on Contracts, 588 marg., it is said: “This principle (of implied warranty,) has been carried very far. It must, however, be limited to cases where a thing is ordered for a special purpose, and not applied to those where a special thing is ordered, although this be intended for a special purpose. For, if the thing is itself specifically selected and ordered, there the purchaser takes upon himself the risk of its effecting its purpose.” And again it is said, on the same page, “If the thing were not ordered and sold for a special purpose, .evidence is inadmissible to show that the buyer, in fact,, bought it, intending to apply it to a special purpose, and found it unfit.” To the same effect, are the authorities cited in the appellant’s brief on this point, and also the case of Rice vs. Forsyth, 41 Md., 403 and 404.

There was no express warranty that the article purchased by the appellee would produce a good crop, nor as. we have said, will the law imply such a warranty under the peculiar circumstances of this case, when the appellee selected a specific article, which was well known to him and the risk of its effecting the object for which he bought it, he therefore took upon himself. The only warranty was that it should be of the standard analysis of previous years, and of standard preparation for drilling. No evidence whatever was offered by the appellee tending to prove a different standard of analysis, but it was proved by the parties engaged in its manufacture that “ Eureka ” •is invariably made by the same formula and of the same proportions of each ingredient, and that these ingredients are invariably mixed by the same process and in uniform manner. We think there was clearly error in admitting the evidence set out in the sixth exception. We think there was also error in granting the appellee’s two prayers,, and in refusing the appellant’s second, third, fourth, fifth and eighth prayers. We have already stated that the proof of the bad crop made by the appellee on the land to which “Eureka” had been applied was improperly admitted for the purpose of showing that the article purchased by him and so applied, was not up to the standard of “Eureka” of previous years. This proof being out of the case, there was no evidence tending to prove that the article so purchased was not up to the standard of “Eureka” of previous years, so far as its analysis was concerned. The defendant’s first prayer was therefore erroneous, because it submitted to the jury the question whether the article delivered to the appellee, did or did not correspond in ingredients and preparation for drilling with “Eureka” sold the previous years, but was different therefrom and inferior thereto in said particulars or either of them. But this prayer as well as the appellee’s second should have been refused, and the third, fifth and eighth prayers of the appellant ought to have been granted for other reasons. The fertilizer for which the note was given, was delivered to and used by the appellee early in the month of October, 1877. The note itself was executed and delivered to the appellant early in November, nearly, if not quite a month after the appellee had full knowledge that the “ Eureka,” so delivered to him, was damp and filthy, and consequently difficult to drill. Yet with such knowledge, he gave the note for the purchase money, without saying anything about the condition of the fertilizer. The following summer or fall he applied to Walker, the company’s agent, not to let the note go to protest, and for an extension of the time for payment, who told him that he would arrange so that the note should not be protested; but that he must apply to the company for an extension of time. Accordingly, on the 30th October, 1878, one year lacking a few days from the time the note was given, he wrote to Crenshaw, the president of the company, stating that it would be impossible to meet the note at its maturity, owing to the. fearful hail storm which had visited his locality in the latter part of April or first of May of the preceding year, which had destroyed his wheat crop, and placed him in an embarrassing condition ; otherwise his note would .have been paid before maturity, as was his practice. He also stated that he had used nine and three-quarters tons of phosphate, and reaped hut 350 bushels of wheat, and then came off better than some others included in the belt of the storm, some of whose losses were total'; and closed his letter with the assurance that he would pay the note as soon as he could make the money. Not one word was in this letter intimating that there had been any breach of warranty or inferiority in the fertilizer delivered to him by Carr, either as to standard of analysis or preparation for drilling. He also testified as a witness, that he knew the bad condition of the fertilizer when he signed the note, but made no objection to signing it, and intended to pay it, but made up his mind not to pay it when he received a letter from Walker refusing his offer of a compromise, though he had not made up his mind whether or not to pay it at the time the note matured. He further testified that shortly before the note matured, he had asked Oarr if he could get him three or four months’ time ; not'to let the note go to protest; that he could not pay it then, because he had lost his crops, but would pay it at the end of three or four months. He further testified that he had thrashed and sold his crop of wheat at the time he promised to pay the note. All this evidence was before the jury, and from it they were at liberty to find either that no defect in the drilling qualities of the fertilizer existed, or if it did exist, that the appellee had waived all objection to it. Story on Sales, 554, 556, and the authorities there cited. The appellant’s third and eighth prayers ought to have been granted. But if the jury should find that the appellee had removed such presumption by proof, he was entitled to only such deduction from the amount of the note of such sum as the jury should find would be a fair compensation for the extra labor, expense and loss as he had sustained by reason of the had condition of the fertilizer for drilling. The appellant’s fourth prayer should therefore have been granted.

(Decided 1st July, 1881.)

There was error in rejecting the appellant’s second prayer. It asked the Court for an instruction, that there was no evidence in the cause legally sufficient to enable the jury to find that the fertilizer sold to the defendant in 1877, was not the same in analysis as that which was sold to him in 1876, if the jury should find such sales in 1876 and 1877. Striking out of the case the evidence as to the short crop of wheat from the land to which the fertilizer was applied in 1877, which we have said was erroneously admitted, there was no evidence tending to prove that the fertilizer furnished the appellee in 1877, was not of the same standard of analysis as that sold him in 1876. On the contrary, the uncontradicted proof given by the parties who manufactured it, showed, that it was.

There was no error in refusing the sixth, seventh and ninth prayers of the appellant. There being error in the rulings of the Court below, in admitting the evidence set out in the sixth exception, and in granting the two prayers of the appellee, and in refusing to grant the second, third, fourth, fifth and eighth prayers of the appellant, the judgment appealed from will be reversed, and a new trial awarded.

Judgment reversed, and neto trial anoarded.