Landman, Halsey & Co. v. Bloomer, Wolf & Michael

BKECKELL, C. J. Appellants, who were jobbers in meats at Huntsville, Ala., purchased, by telegram, from appellees, wholesale merchants and dealers in meats at Quincy, Illinois, 5,000 pounds of hams at 11 1-2 cents [316] per pound. About forty days after the receipt' of-^the hams, and ten days after they had paid for them, appellants. discovered that a large number of the hams, aggregating in value $200 at the invoiced price, were spoiled, and offered to return them to appellees, which offer being refused, and the damaged hams being valueless, they were thrown away. • The loss to appellants thus incurred they sought to set off in this action brought by appellees to recover on an account for goods subsequently sold to appellants. In answer to a direct interrogatory propounded to him, J. J. Michael, a witness for plaintiffs, whose deposition was read in evidence, said : “We warrant our goods thirty days after the date of the invoice. This is the rule prevalent generally in the trade at Quincy and, so far as I know, elsewhere in the United States. I attach a copy of our printed'rules marked Exhibit E, and make it a part of my deposition.” Another witness for plaintiff also testified to the existence of this usage of the trade among dealers generally throughout the United States. The bill of exceptions states that plaintiffs offered in evidence section 2 of the printed rules referred to by the witness Michael, which reads: “Sec. 2. We guarantee our goods thirty days after date of invoice. Customers ordering more goods than they can reasonably sell in that length of time will be obliged to hold them at their own risk. On receiving smoked meats they must be unpacked and hung in a cool place, and if any are found unsound, they must be returned at once in good order, or they will under no circumstances be taken back by us.” Defendants objected to the introduction of said printed rule, but no ground of objection was stated. The objection was overruled and the evidence admitted, and no motion "to exclude it, or to limit ■ its effect, was made at any time during the trial. No objection having been made to the answer of Michael as to the existence of this rule, the printed rule itself, even if otherwise incompetent, was admissible to corroborate the answer, and also in connection with the testimony that a copy of the rule was usually attached to invoices sent to purchasers. If it was inadmissible for any other purpose, defendant should have requested that it be limited to the purpose for which it was legally competent. It was also clearly admissible as evidence of an express warranty, which [317] always excludes the application of the doctrine of implied warranty, if followed up, at any time during the trial, by evidence that defendants bought with knowledge of the rule. If no such evidence was offered, then, if otherwise inadmissible, a motion should have been made to exclude it, or to limit its effect as above stated. Being prima facie admissible, the court did not err in overruling the general objection. In view of the fact that plaintiffs introduced evidence tending to show a general usage among dealers in products of this kind throughout the United States, to warrant their products for thirty days, it was competent for defendants to show a like -usage to warrant them for twelve months, and the court erred in' excluding the evidence offered tending to show such usage. The evidence shows that defendants had no knowledge of the rule of the plaintiffs with respect to the warranty of their hams, and fails to show any express warranty. Both of the defendants testify that there was no such express warranty. Charges 1 and 4 were, therefore, properly given. Charge 2 correctly places the burden of proof with respect to compliance with the conditions of a conditional warranty. Measured by the evidence in the case it was abstract, but not a ground of reversal on that account. Charge 3 should have been refused for the reason that the evidence shows without conflict that the damaged hams were worthless and valueless, and their value in good condition, the invoice price, was therefore the measure of damages to which defendants would have been entitled, if they were entitled to any. Krebs Mfg. Co. v. Brown, 108 Ala. 508. The charge was so misleading as to be clearly injurious to the defendant, and should have been refused notwithstanding an explanatory charge might have been asked. For the errors pointed out, let the judgment be reversed and the cause remanded. Reversed and remanded.