Opinion
1 Div. 34.
April 18, 1918.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Vincent F. Kilborn, of Mobile, for appellant. Palmer Pillans and William Buck Taylor, both of Mobile, for appellee.
The complaint charges, in counts 1 and 2, that the defendant shipped a different kind and size machine from the one the defendant offered to sell him, and in fact a different machine from the one he purchased. The pleas, while averring that the sale was to be made upon inspection by the buyer, do not seek to avoid a warranty as to the kind of machine in the event there was no inspection, but relies upon the fact that the defendant was misled by the conduct of the plaintiff into shipping the machine; in other words, they set up that the plaintiff, who had the right to inspect and to whom the defendant had contracted to sell as per inspection, informed the defendant, in effect, that his man was that day leaving to inspect the engine, and that the next advice that defendant received was an order, six days later, to ship the machine; that the defendant therefore had the right to assume, when shipping the machine, that the plaintiff had had the same inspected before ordering same, and that when he ordered it, six days later, he was doing so upon the strength of the inspection, and was not relying upon any previous representations of the defendant descriptive of the machine, and, as averred, the difference contended for by the plaintiff was readily susceptible upon inspection. We think that these pleas exclude all idea that the defendant shipped the machine under any warranty or representations, but was induced by the plaintiff's conduct to believe that he was purchasing upon inspection, and not upon warranty or representations of the defendant.
The plaintiff having led the defendant to believe that the machine was inspected, and that he knew what he was getting when ordering the same shipped, and, the difference complained of being discoverable upon inspection, he is now estopped from claiming that the defendant shipped the same under any warranty or fraudulent representations calculated to deceive, and the trial court did not err in overruling the demurrers to the amended pleas. It may be that a failure to inspect would not of itself relieve the defendant of an obligation to ship the kind of machine he offered for sale, although it was offered as per buyer's inspection, but if the plaintiff, who was to inspect, led the defendant to believe that he had so inspected it, whether he did so or not, and the defendant shipped the machine upon the strength of this belief, the plaintiff is estopped from claiming any difference between the kind he got and the one offered, if the said difference was so open to ordinary observation as to have been detected upon an inspection. If the plaintiff represented to the defendant a material fact, or by conduct led him to believe the existence of certain material facts or conditions, upon which he had the right to rely and upon which he acted, he is estopped from setting up the nonexistence of said facts or conditions to the prejudice of the defendant, who acted upon same. 16 Cyc. 722; Adler v. Pin, 80 Ala. 351; Knowles v. Street, 87 Ala. 357, 6 So. 273; Nelson v. Kelly, 91 Ala. 569, 8 So. 690; United States v. Leftwich, 132 Ala. 131, 31 So. 474; Sellers v. Commercial Fire Ins. Co., 105 Ala. 282, 16 So. 798. The authorities relied upon by the appellant's counsel are not only not in conflict with this holding, but such of them as are apt recognize the foregoing principle of estoppel.
It is true the pleas do not aver that "Geohegan" was leaving to inspect for the plaintiff, or that he was the plaintiff's agent, but the only rational inference to be drawn from the information that he was leaving to inspect was that he was doing so at the instance of, or for the benefit of the plaintiff, who was negotiating with the defendant. It is not the question of "Geohegan's" agency or authority; for, if it was of the essence of the defense, the pleas would have to set it up, and no inference would be drawn in favor of same upon demurrer to said pleas, as the question is not one of agency or authority, but what did the plaintiff mean by giving the defendant this information, and then subsequently ordering the machine shipped without informing the defendant that an inspection had not been made. It matters not whether "Geohegan" did or did not inspect the machine, or whether or not he was acting for the plaintiff, as the defendant had the right to rely upon the acts and conduct of the plaintiff, and he could have reasonably inferred from said acts and conduct that the inspection was being made by or for the plaintiff, and that the order to ship was upon the strength of the inspection, and not upon a reliance of the defendant's description or representations as to the kind, character, or quality of the machine. The trial court did not err in overruling the demurrer to amended plea 2 to counts 1 and 2 and amended plea 2 to counts 4 and 5 of the complaint.
While the authorities are not entirely harmonious on the subject, we think that the agreement alleged that the appellant should inspect the engine before shipment, and, if he should not, seller's inspection should be final, applied at most to excuse defects of quality, or condition, and such agreement did not permit the seller to send the buyer a different kind and size. Whitney v. Boardman, 118 Mass. 242. See note to case of Springfield Shingle Co. v. Edgecomb Mill Co., 35 L.R.A. (N.S.) 258; Gachet v. Warren, 72 Ala. 288. A representation as to the kind or description of the article offered for sale, where the buyer has not inspected same, is in the nature of a condition precedent and the seller must, of course, deliver the article offered. Benjamin on Sales, § 656. The sale by inspection did not contemplate that unless there was an inspection by the buyer, who ordered the article without inspection, the seller could send him a different article from the one offered, and the failure to inspect would be binding on him as to defects in the quality or condition rather than kind or description. If the vendor offers a certain kind of machine, and the vendee accepts it without inspection, the meeting of the minds was as to the kind of article offered, and not one of a different kind and description. A vendor cannot offer to sell a six-horse wagon and ship a one-horse one, or a cart, and compel the vendee to accept and pay for same, simply because he was to inspect the same and failed to do so. The vendee may by failure to inspect excuse all defects as to quality and condition, but he has a right to waive this warranty and order the article offered him expecting to get the kind described in the offer. Of course, if he inspects the goods and the difference, not only as to the defects and condition, but as to the description and kind, is obvious and apparent, and, he then buys them, he waives the condition precedent as well as the defects or condition. This upon the theory that the vendee did not rely upon the description or warranty. 35 Cyc. 376.
It matters not that the defendant was not the manufacturer of the machine, or did not have the same in stock, and that the parties were negotiating for a particular one at "Toinette," Ala.; the complaint charges that defendant represented it as "1 6x10 double cylinder, double drum hoisting engine, with boiler, complete with all fittings and about 1,000 feet of 3/4 inch cable on drums of engine," and that the machine shipped was different in kind or description, and was not the same purchased but was an "8x10 log skidder." The plaintiff was not required to accept the same unless he had inspected same before he ordered it shipped or had led the defendant to believe that he had inspected and was ordering from his own knowledge instead of from the defendant's description of same.
It is suggested in brief of appellee that the machines described in the complaint are in fact practically the same, but we cannot take judicial knowledge of this fact, and the pleas do not aver it. In fact, the complaint avers that they were different. The trial court erred in not sustaining the plaintiff's demurrer to pleas 3 and 4 to counts 1 and 2 and plea 3 to the fourth and fifth counts.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.