Woodridge v. . Brown

CoNNOR, J., after stating the ease: Plaintiff insists tliat the assignment of error, in respect to the charge, is too indefinite, coming within the definition of a “broad side exception” -which the Court has uniformly held insufficient. In view of the fact that his Honor instructed the jury to find for the plaintiff upon the whole evidence, we think the exception well taken as to form. It seems that, upon cross-examination of plaintiff’s representative who took the order for the coal, defendants were permitted to show that defendants’ testator'told him that he was buying the coal to burn brick, and that the witness told him that this grade of coal would do so and that it was used for that purpose. Plaintiff objected, but the testimony was'admitted. After the evidence was concluded his Honor struck it out. It was clearly incompetent to show a warranty, because no warranty was alleged in the answer, and for the further reason that, taken as true, it did not show that the quality of the coal was warranted, or that the grade of coal ordered would burn brick. While it is true, as uniformly held, that no specific form of words is necessary to constitute a warranty of soundness, yet there must be evidence that the seller, by some appropriate language, intended to make, and that the buyer understood that a warranty was being given. Again, it is not alleged that there was any fraud or deceit on the part of plaintiff, either in respect to the grade of the coal or its quality; nor did the rejected testimony tend to show any such element in the transaction. We are thus brought to consider the question whether, if alleged and proven,' the fact that plaintiff knew the purpose for which the coal was to be used', entitled the defendant to a reduction in the price by reason of its being of an inferior quality. The exact question was presented and decided by this Court in Dickson v. Jordan, 33 N. C., 166. The defendants, who • *303 were tbe owners of a ferry, purchased, by order, “seine rope” of' plaintiff, informing them that it was to be used at their fishery. The rope sent was of the size and kind known as “seine rope.” Defendants used it, but it proved to be of an inferior quality, repeatedly broke in drawing the seine and was unfit for use for fishing purposes. Pearson, J., said: “It is a principle of the common law that no warranty of quality is implied in the sale of goods. Oaveal emptor. In the absence of fraud, if the article be of bad quality, the purchaser lias no redress unless he has taken the precaution to require a warranty.” Further discussing the exceptions, he says: “His Honor was of the opinion that, in this case, there were two facts which furnished a sufficient ground for making an exception to the general rule. The plaintiffs knew the purpose for which the rope was intended and it ivas not present to be judged by the defendants. One, or both, of these facts might have been a very sufficient reason for requiring a warranty .... But we do not see how they can furnish a ground for the law to imply a warranty in favor of. the defendants, when they neglected to take one for themselves.” The learned Justice notes the further fact that the defendants did not have an opportunity to discover the inferior quality of the rope until they had used it and rejects the argument made by counsel that, from this fact, a warranty would be implied. The facts in that case strikingly illustrate the principle applicable here. The decision has been cited with approval. If the defendants had alleged that a grade of coal different from that contracted for had been sent, the plaintiff would have failed in his action upon an express contract for a stipulated price, and, if the coal had been used by defendant, would have been driven to sue as for a quantum valebat on the “common count,” when defendant would have been entitled to show the real value of the coal. Waldo v. Halsey, 48 N. C., 107. In Guano Co. v. Tillery, 110 N. C., 29, the plaintiff contracted to sell defendant “Peruvian Guano.” *304 Defendant, not knowing that the article was not so, used it. The Court held that he was only liable for the actual value of the article sold and used. In Lewis v. Rountree, 78 N. C., 323, defendant sold plaintiff “strained resin.” It turned out that the resin delivered was not “strained,” this being a well-known grade of resin in the market. Held, that defendant was liable. When, an article is manufactured for a specific purpose, the law will imply a warranty that it is fit for such purpose. Thomas v. Simpson, 80 N. C., 4. In Love v. Miller, 104 N. C., 582, the contract was to sell cotton to be of “average grade of low middling,” etc. Held, a warranty that it would come up to the description. In Reiger v. Worth, 130 N. C., 268, the contract was to sell “good seed rice.” Held, a Avarranty. Critcher v. Porter McNeal Co., 135 N. C., 542; Allen v. Tompkins, 136 N. C., 208. The only defence set up in this case, and the only one which the testimony tended .to shoAv, was that the coal ivas of inferior quality. This can only be guarded against by a Avarranty. His Honor therefore correctly rejected the testimony and instructed the jury. We haAre discussed the defendants7 appeal as if the proper allegations'were made. In no point of vieAV can the exceptions be sustained. We do not pass on plaintiff’s exception to defendants’ withdraAval of their counterclaim. It is not presented. There is No error.