May 12, 1941. Suggestion of Error Overruled May 26, 1941.
On executed sale of existing article by seller who is neither manufacturer nor dealer possessed of expert knowledge, either actual or pretended in regard thereto, there is no "implied warranty" in the absence of seller's fraud, unless defects complained of are latent and seller knows that buyer has not relied on his own judgment, but on that of seller, who knew or might have known of existence of defects.
APPEAL from the circuit court of Sharkey county, HON. R.B. ANDERSON, Judge.
John B. Gee, of Rolling Fork, for appellants.
Where there is a fraud practiced upon one party to a suit by another, such fraud is not cured by any instrument, or contract of sale.
If the modern conveniences and appliances now constantly coming into use are to be purchased under any degree of safety and devoted to a profitable use, the public must of necessity rely upon the expert knowledge and assurance of the seller in many instances as to their suitability for the purposes intended.
When such reliance is known to the seller, the assurances and representations for a particular purpose should be made good.
Magee Laundry Cleaner v. Harwell Co., 184 Miss. 435, 443.
It is clear from the record that the appellants here fully relied upon the seller, Saik, not only to provide them with a pump or compression unit that was reasonably new, and sufficient to do the work of constantly keeping a temperature in the display case, but that in addition to this reliance, known to the seller, the seller further assured appellants that he would so furnish a pump, or compression unit, that should last "ten of fifteen years." Instead he furnished one that wore completely out in six or seven months and was so worthless that it was discarded. All of which was a fact or a series of facts for the jury to decide, and the cause should have been submitted to the jury on appropriate instructions for their guidance in the many elements of the cause.
Clements Clements, of Rolling Fork, and Howie, Howie McGowan, of Jackson, for appellee.
The conditional sales contract by its terms excluded warranties. The court properly excluded any evidence of an implied warranty, because the property was understood by all parties to be used equipment and second hand. Nobody denies this. Furthermore, there is nothing in the record to show any expressed warranty of any nature was ever made or contemplated between the parties. In fact, Saik never owned anything except the box, and states he procured the unit and the meat slicing machine from other sources as a favor to appellant Christenberry. Furthermore, the appellant Christenberry sent his own man Worley, an experienced meat market man, to look the equipment over before he bought it. Worley came to Jackson, and if there was any one who figured in the transaction in the capacity of an expert, it certainly was Worley on this mission to inspect the equipment before Christenberry bought it.
It is not permissible under the law to retain property in one's possession and use for a long period of time and then attempt to throw it back upon the seller.
Stillwell, Bierce Smith Vaile Co. v. Biloxi Canning Co., 78 Miss. 779, 29 So. 513.
There can be no implied warranty in the sale of used chattels.
Argued orally by John B. Gee, for appellant, and by M.M. McGowan, for appellee.
In an executed sale of an existing article, of which the seller is not the manufacturer, nor is a dealer possessed of expert knowledge, either actual or pretended in regard thereto, there is no implied warranty in the absence of fraud on the part of the seller, unless the defects complained of are latent, and the seller knows that the buyer has not relied on his own judgment, but on that of the seller, who knew or might have known of the existence of the defects. In the case at bar the buyer had an experienced Frigidaire mechanic, as his own agent for the purpose, examine the second-hand Frigidaire in question before its acceptance by him from the seller, who was not a manufacturer or dealer. Therefore, the cases of Fay Egan Co. v. Cohn Bros., 158 Miss. 733, 130 So. 290; Viking Refgr. Co. v. Farrell, 180 Miss. 181, 176 So. 910; and Magee Laundry Cleaners v. Harwell Co., 184 Miss. 435, 185 So. 571, are not applicable on the issue here involved.
The peremptory instruction granted to the plaintiff on the question of liability was proper under all of the evidence in the case, a review of which would serve no useful purpose here.