Love v. . Miller

Shepherd, J. This appeal presents for our consideration the following questions: 1. Was there a warranty as to the quality of the cotton? The defendants contracted to sell and deliver to the plaintiffs’ order one hundred bales of cotton “to be of the average grade of middling and nice, good stains or tinges, and not more than one bale in four to be as low as that.” That this is a warranty is well settled by the case of Lewis v. Rountree, 78 N. C., 323, in which the following language of Miller, J., in Jones v. Just, L. R. 3 Q. B., 197, was approved. “ In general, on the sale of goods by a particular description, *587 whether the vendee is able to inspect them or not, it is an implied term of the contract that they shall reasonably answer such description, and if they do not it is unnecessary to put any other question to the jury.” “It is not meant,” says the Court, “ that words of description are always a warranty. But the cases in which that is held have something special to take them out of the rule and to show that in those cases it was not so intended.” There are no such exceptional circumstances in this case, and we have no hesitation in declaring that there was a warranty that the cotton should be of the quality described by the terms of sale. 2. Did the warranty extend to latent defects, or was it only to the effect that the cotton was to be of a certain grade by the usual mode of inspection ? In Lewis v. Rountree, supra, the contract was for the sale of “ strained rosin,” and the purchaser was permitted to make his selection of 517 barrels out of a lot containing more than two thousand. He had implements with which to cut in and inspect the barrels, and he did inspect and select about twenty samples. After sale and shipment it was found, upon inspection in New York, that the lot did not correspond with the samples and that all of it was not strained rosin. The Court said the fact “that plaintiffs had an opportunity to inspect the rosin before or when it was delivered, and did in fact select the particular barrels out of a large number, did not amount to a waiver of the warranty that it should be of the specific description. This is reasonable. It is almost impossible, or at least very difficult, to tell from any inspection of a barrel of rosin, short of breaking it up into fragments, whether it contains dross — that is chips, dust, &c. — or not. And to break it up makes it unfit for transportation and unmarketable ” These remarks are applicable to the examination of cotton when baled, and this view is sustained by the testimony of the witness Phifer, who said “ that a sample of the cotton drawn from the bale in the usual way was *588 not a fair specimen of the inside of the bale, and that its true character could only be discovered by opening the bale.” Our case is even stronger than the one we have cited, as here the plaintiff had no opportunity to inspect the cotton until after the delivery. The warranty was not that the cotton should be of good middling grade according to any particular method of inspection, but that it was -in fact to be of that quality. The principles declared in Rountree’s case are fully sustained by a recent decision of the Supreme Court of Georgia in Miller et al v. Moore et al., Vol. 10, No. 12 S. E. Rep. The action was for a breach of warranty in the sale of several car-loads of corn. Bleokly, C. J., says: “ The descriptive words by which the sale was made were ‘No. 2 white mixed corn, bulk.’ These words comprehend quality as well as variety, and import a warranty on the part of the seller as to both. Corbin’s note 24 to Benj. Sales, 844; Gould, v. Stein (Mass.), 22 N. E. Rep., 47; Whitaker v. McCormick, 6 Mo. App., 114; Woolcott v. Mount, 36 N. J. Law, 496; Bridge v. Wayne, 1 Starkie, 504. Nor will inspection by the buyer before acceptance deprive him of the protection of the warranty as to latent defects.” 3. The remaining question as to the waiver of the breach of warranty by not offering to return the cotton, is also settled by the case first mentioned. We are unable upon a perusal of the record to find any error. Affirmed.