Opinion
No. 33699.
May 8, 1939.
1. SALES.
In action on notes given in renewal of notes which had been given for price of bottles purchased by maker wherein defendant filed plea of breach of guaranty of quality, instruction that, if maker knew or should have known of failure of consideration before he executed renewal note, jury should find for plaintiff even though bottles were defective, was not error.
2. SALES.
In action on notes given in renewal of other notes which had been given by maker for price of bottles purchased by maker wherein maker filed plea of breach of guaranty of quality, instruction to find for plaintiff if circumstances were such that reasonably prudent person could have made inquiry which would have led to full knowledge of defect in bottles and maker failed to make inquiry before executing renewal note, was not error.
3. SALES.
In action on notes given in renewal of other notes which had been given by maker for price of bottles, wherein maker filed plea of breach of guaranty of quality, instruction that, if there was such proportionate amount of bottles below first class as to amount to face amount of notes sued on, jury should find for defendant provided that defendant did not discover or by ordinary care could not have discovered defects before execution of renewal notes, was not error.
APPEAL from circuit court of Jones county; HON.W.J. PACK, J.
F.B. Collins, of Laurel, for appellant.
We have always understood where there was no conflict in the testimony; that is, in the face of undisputed positive testimony on a certain issue that it is the duty of the court to direct a verdict upon that issue. In this case there was no conflict in the positive testimony offered by appellant to the effect that the appellee guaranteed the bottles to be first class; that they were not first class; and that appellant did not discover that they were not first class until after he executed the renewal notes; and that appellant then refused to pay the balance due on the purchase price; and further, that appellant paid appellee all that the bottles were worth. Appellee introduced not one word or syllable of testimony to contradict this. If appellant was not entitled to a directed verdict under this state of the case then we have misconstrued the holding of this court.
Board of Mississippi Levee Com. v. Montgomery, 110 So. 845; Thigpen v. Miss. Central R.R. Co., 32 Miss. 347; Carrere v. Jackson, 115 So. 196, 149 Miss. 105; M. O.R.R. Co. v. Clay, 125 So. 819, 156 Miss. 463; Walters v. State, 122 So. 189.
Beard Pack, of Laurel, for appellee.
Let it be borne in mind that the burden was upon appellant, who raised the affirmative issue, to show that there was a breach of warranty whereby the consideration failed. Instead of his evidence meeting this burden, it showed that, if there was such a breach of warranty, appellant had waived and precluded himself from asserting such defense by executing the renewal notes after he knew, or by the exercise of ordinary care should have known of the alleged breach of warranty.
If from the evidence the questions in issue might be reasonably answered either in the affirmative or the negative, then such questions are for the jury.
Sovereign Camp, W.O.W., v. Banks, 177 Miss. 279, 170 So. 654; Pitts v. Miss. Power Light Co., 177 Miss. 288, 170 So. 817.
We confidently submit that this court will not override the verdict of the jury. We have in this case the purchase by a local concern of a carload of bottles from a corporation in Texas. We have a payment for a portion of the bottles, a request from the buyer for additional time to pay the remainder, the seller's consent to that request, and the buyer's execution of renewal notes. We have a default in the payment of these notes. We have no complaint from the buyer as to the quality of the bottles until the seller has filed his suit in court. During all these months they have been used and commingled with other bottles. It is too late now for the seller or his attorneys to examine them to determine if they are defective as alleged. By delaying until he is sued before asserting they were defective, the buyer has precluded the seller from learning their true condition, has effectually prevented his ever being able to present to a jury its evidence as to their quality. In instructions for both appellant and appellee, the jury was told that the buyer may not now raise the question to the quality of the bottles unless the jury should find that he did not know of their alleged inferiority before executing the renewal notes or could not have known by exercise of ordinary care.
The jury did not so find in this case. On the contrary, it found from the testimony of appellant himself and his own employees that appellant knew of the alleged defects or by ordinary care should have known.
A.D. Anderson, trading or doing business under the trade name, Nehi Bottling Company, ordered a carload of bottles from the First Securities Company, of Longview, Texas, to be used in bottling his products. This purchase seems to have been made in June, 1934, the bottles to be guaranteed of first quality, and to be delivered f.o.b. cars at Ellisville, Mississippi. The carload of bottles arrived, the cash payment of $275 was made, and three obligations or acceptances for $133.33 were executed, due, one in two months, one in three months, and one in four months from date.
On the arrival of the bottles at Ellisville an employe of Anderson's, in charge of the bottling business, secured the assistance of a number of boys in unloading the bottles, some of which were placed in the back of the plant, stacked, not in cases, but in the manner in which they were shipped in the cars, stacked on each other, instead of in cartons or boxes. The Nehi plant at Ellisville used some of the bottles when they were received, and no complaint of the bottles then used was made. In the meantime one of the trade acceptances had been paid, and others becoming due, the time was extended, on Anderson's application, and they were renewed.
In the spring of 1935, in the months of March and April, Anderson again began using the bottles, the ones which had been stored in the rear of the plant. And he then claimed that he discovered for the first time that these bottles were not of the first quality, and that because of this fact they would break in the process of filling in the machine used for that purpose, and they had to be junked. Anderson claimed that as soon as this was discovered, in the spring of 1935, he notified the appellee, plaintiff in the court below, but a refund was refused.
On the 14th of January, 1938, the First Securities Company filed suit against Anderson in the county court. There was a plea of the general issue filed to the declaration, and a special plea which alleged that the notes were given in consideration of a carload of bottles which had been sold to the defendant, Anderson, under a guaranty as to quality and material, further alleging that the bottles were not first class in either make or material, and were unfit for use; but that the defendant did not discover the condition of said bottles until after execution of the notes. That there was a breach of guaranty as to the quality of the bottles, and plaintiff was not entitled to recover. The plaintiff joined issue on this plea, and on trial introduced the notes in evidence.
The defendant's testimony was to the effect that when the bottles came some small boys were employed to unload the bottles from the car, and stack them in the rear of the plant; that the bottles first unloaded, from the front end of the car, were all right. The bottles stacked in the rear of the plant were not used until the following spring, after the defendant had executed the renewal notes the preceding fall.
The cause was submitted to the jury in the county court on the following instructions for the plaintiff: "The court instructs the jury for the plaintiff that if you believe from the preponderance of the evidence, that the defendant knew, or by the exercise of ordinary care should have known, of the failure of consideration before he executed the renewal notes, then you shall find in favor of the plaintiff, even though you may believe the bottles were defective." And again: "The court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence that the facts and circumstances in this case as presented by the evidence in their case are such that a reasonably prudent person, judged by normal standards, would or should have made inquiry, which inquiry, if reasonably pursued and with ordinary diligence, would have led to full knowledge of defects, if any, in the bottles, then it became the duty of the defendant to make such inquiry or investigation before executing the notes herein sued upon, and if he fails to do so he is as much bound as if he had actual knowledge of all the facts and you should find for the plaintiff." And on the following instruction for the defendant: "The court instructs the jury for the defendant that if you believe from the evidence in this case that there was such a proportionate amount of the carload of bottles in question below first class and worthless as to amount to the face amount of the notes here sued upon, then it is your sworn duty to find for defendant, provided you further believe that the defendant did not discover or by the exercise of the same care that an ordinary prudent man would have exercised to discover said defects, if any, before executing the renewal notes in question."
On appeal the Circuit Judge held that the issues in the case had been properly submitted to the jury by these instructions, and that as the jury had found for the plaintiff, the judgment should be affirmed.
We are of the opinion that the Circuit Judge was clearly correct, under the authorities cited in his opinion, namely, Tallahatchie Home Bank v. Aldridge, 169 Miss. 597, 153 So. 818; J.B. Colt Co. v. Kelly et al., 142 Miss. 617, 107 So. 757; Gay et al. v. First Nat. Bank, 172 Miss. 681, 160 So. 904; Brewer et al. v. Automobile Sales Co., 147 Miss. 603, 111 So. 578; Nelson Sons v. Wilkins Parks, 151 Miss. 492, 118 So. 436; Memphis Automatic Music Co. v. Chadwick et al., 164 Miss. 635, 146 So. 137; J.B. Colt Co. v. Speight (Miss.), 120 So. 216.
The judgment of the court below is accordingly affirmed.
Affirmed.