Troy Grocery Co. v. Potter & Wrightington

SHARPE, J. Error is not shown in the rulings which sustained demurrers to pleas. Plea 4 does not show that the fish for the price of which the suit was brought were not supplied in accordance with the contract, under which they were purchased, nor does it show that defendants sustained any damage from the fact that the fish were supplied in six and eight pound kits instead of in kits heavier in accordance with the alleged representations of plaintiff’s agent. This plea neither shows a rescission of the contract of purchase or ground for abating purchase price. Plea 5 was open to the first if to no other ground of the objections taken by demurrer. It does not follow from the mere fact that Faussett was plaintiff’s traveling salesman and had authority to take defendants’ order for the fish that he had authority to hind plaintiffs by warranting in their behalf, that the fish would keep sound for twelve months, or for three months, from the time they were packed. — Herring v. Skaggs, 62 Ala. 186; s. c. 73 Ala. 446. A warranty in the sale of a chattel may under some [368] circumstances, exist' without any express stipulation therefor, as where the sale is a manufacturer of an article he makes and supplies for a special purpose upon {lie vendee’s trust that it will be suitable for such purpose. In such case there is ordinarily an implied warranty that the article will be reasonably so suitable. Kennebrew v. Southern, etc. Co., 106 Ala. 377; Snow v. Schomacker Mfg. Co., 69 Ala. 111. Likewise vendors, other than manufacturers, may be subject to implications of warranty, from the character of the chattel, the purpose and terms of the purchase, and the situation of the parties. Tn '2 Benj. on Bales, § 998, it is said: “When the buyer orders goods to be supplied, and trusts to the judgment of the seller to select the goods which shall be applicable for the purpose for which they are intended, which is known ty both the parties, there .is an implied warranty that they are fit for that purpose.” For decisions involving this doctrine, see Frith v. Hollan, 133 Ala. 583; Best v. Flint, 58 Vt. 443; 56 Am. Rep. 570; Omaha etc. Co. v. Fay, 37 Neb. 68; 55 N. W. 211; Barnard v. Kellogg, 77 U. S. 383. It may be that the packing of .fish for the wholesale market involves such necessity for the use of skill and judgment with reference to the preservation of the commodity as that, the packer, who puts his own produce on the market, if relied on to employ such skill and judgment, can upon principles like those referred to, be held as upon an implied warranty that the packing lias been properly done. Idea 6, however, does not bring the attempted defense within those principles. For that pur pose the averment to the effect that there was such warranty being but the averment of a conclusion of law, is not sufficient, and the fads averred are not sufficient to support the conclusion. For all that appears in this plea, the plaintiff may not have undertaken and may not have been relied on to sell or pack the fish otherwise than in the condition in which they were sold to defendants, and the latter may upon their own judgment have agreed to buy them in that condition after having' full opportunity for inspection. A sale does not necessarily imply a [369] 'warranty as to condition. — Perry v. Johnson, 59 Ala. 648; Barnard v. Kellogg, supra. In the striking of plea “A” from the record, there was error for which the judgment must he reversed. The plea was not frivolous, and the striking cannot be sustained on the ground that it was substantially the same as plea 6. Its object was not only to set up a defense similar to that attempted in plea G, but unlike the latter plea it is framed for recoupment, and shows.by way of recital and averment, facts not .shown in plea 6, including the fact that the fish was unsoud when packed, and other facts to show the existence and breach of a custom in respect of the mode of packing. It fails to show that the contract was made with reference to that custom, and is subject to other defects similar to those of plea 6, but the defects should have been left for plaintiffs to point out by demnurrer, since, under our practice, the insufficiency of the plea could not otherwise have been properly tested.— Brooks v. Continental Ins. Co., 125 Ala. 615. ■ Reversed and remanded.