January 16, 1939. Suggestion of Error Overruled February 27, 1939.
"Air condition" as used in salesman's assurance that unit would "air condition" buyer's office would be understood to mean that office would be rendered reasonably comfortable to the extent usually experienced in "air conditioned" hotels, offices and other buildings.
2. APPEAL AND ERROR.
County court's finding of fact that unit was purchased on salesman's assurance that it would properly "air condition" office would not be disturbed on appeal unless manifestly erroneous.
Buyer who had been assured by trained salesman that unit would "air condition" office and relied on judgment and assurance of salesman was not liable on note for balance of purchase price where unit proved wholly inadequate.
APPEAL from the circuit court of Hinds county; HON. J.P. ALEXANDER, Judge.
Robertson Robertson, of Jackson, for appellant.
The appellee, speaking through its duly authorized agent, Pritchard, represented to appellant that it would install a machine in appellant's office which would air condition that office and make it comfortable to work in. The term "air condition," as to any one seeing or hearing the word, has a clear meaning all its own.
In common every day parlance, the appellee speaking through Pritchard told appellant that the unit sold would make the office comfortable and pleasant to work in so far as heat and humidity were concerned, and if the air conditioning unit sent to appellant by appellee did not accomplish this result, then it was worse than useless and merely in the way.
The case at bar, in which the appellant was induced by the salesman for the appellee to purchase an air conditioning machine to "air condition" his office and about which machine appellant knew nothing but relied solely upon the representations, expert knowledge and judgment of the appellee, is very similar to the case of J.A. Fay Egan Co. v. Louis Cohn Bros., 130 So. 290, 158 Miss. 733.
Where goods are purchased on material representations of the seller, and not upon the purchaser's own judgment, and the representations are false, and induced the purchaser to make the bargain, the contract cannot stand, regardless of whether the seller had an actual fraudulent intent or not. Putting it differently, if the seller makes material representations of fact without knowing whether they are true or false, this is fraud in law, and the seller must make his statement good.
Hall v. Thompson, 1 S. M. 443; Oswald v. McGehee, 28 Miss. 340; Rimer v. Dugan, 39 Miss. 483, 77 Am. Dec. 687; Lindsey v. Lindsey, 34 Miss. 432; Alexander v. Meek, 132 Miss. 298, 96 So. 101; Lumbermen's Supply Co. v. Poplarville Sawmill Co., 78 So. 157, 117 Miss. 274.
Where the seller delivers machinery which is defective for the purposes for which it is sold, and the agents of the seller attempt to make it operate and then and there discover that it is not the kind and character the seller agreed to deliver, and thereafter attempt at different times to make it work, without success, and the buyer holds the machine and urges the agents of the seller to fix it, and upon being informed that no further work will be done on it by the seller, he may, upon returning it in its original condition, with notice that he will not accept it, demand of the seller the purchase price paid.
J.E. Case Threshing Mach. Co. v. Walter, 197 Ky. 348, 246 S.W. 831.
The circuit court erred in holding that there was no latent defect. The latent defect, discoverable only when really hot weather set in which came after the appellant had signed the note, was that the air-conditioning unit sent out by appellee just couldn't air-condition and make comfortable appellant's office.
A defect which reasonably careful inspection will not reveal is a "latent defect."
The circuit court erred in holding that there was no failure of consideration.
The circuit court erred in reversing the judgment of the county court and rendering judgment for the appellee.
Laws of 1932, Chapter 140, sec. 1.
The county court passed on the facts, and found that there was a warranty and a breach thereof in that there was a latent defect, to-wit: the complete inability to carry the heat load when the weather grew warmer, that the appellant did rely on the false representations of the seller and not on his own judgment. The county court having found these things, the circuit court sitting as an appellate tribunal could not substitute its judgment for that of the county court which sat as judge and jury and found the facts.
There was no warranty in this case. The whole transaction except the giving of the note was oral, and the only evidence introduced in regard to the warranty was that of defendant's manager, who testified that the salesman told him that it would air condition his office. This statement was too general to constitute a warranty. When questioned as to what degree the office was to be cooled, he testified that nothing was said about how cool, or what the difference was to be between the temperature of the office and the temperature outside.
Of course, we recognize the law that an agent may be given expressed power to warrant articles in behalf of his principal, but we submit that no such authority has been shown. In selling the agent must adhere to what is usual and customary. If a warranty is a usual incident to the sale of a particular article, and the agent in effecting a sale may bind his principal by a warranty of title, quality or condition of the thing sold, but unless sanctioned by custom, an agent will not be deemed to have power to incorporate a warranty as a term of the contract of sale.
21 R.C.L., page 858, sec. 36, and page 866; Elliott on Contracts, sec. 129; 35 Cyc. 410.
If a specific article or one known, defined and described is ordered and furnished, there is no implied warranty of fitness for particular purpose, although the seller is informed of such purpose, for the reason that an undertaking as to fitness is not implied when the buyer gets what he bargained for. So, too, there is no implied warranty that the article is as suitable for the purpose as other articles of the same kind.
The evidence in this case shows that the air conditioning machine was placed in defendant's office on May 12, 1937, where it remained until June 4, 1937, on trial, and on said date of June 4th, the defendant purchased the machine, paying part cash, and executing the note here sued on for the balance, and kept and used the machine all during the season of 1937 — that is, until about the maturity date of the note in September, when, for the first time, the defendant wanted to rescind the contract and return the machine. If the machine was warranted as contended by the defendant, and there was a breach of warranty, in order to rescind the contract, the defendant would have had to act promptly. Where the purchaser is dissatisfied with the property and wishes to rescind, he must return within a reasonable time, and will waive the right to do so by subsequent use.
Ware v. Houghton, 41 Miss. 370; Carver Gin Co. v. Gaddy, 62 Miss. 201; Stillwell, Bierce Smith, Vaile Co. v. Biloxi Canning Co., 78 Miss. 779, 29 So. 513; Benjamin Sales (6 Am. Ed. by Bennett) sec. 703; Lumbermen's Supply Co. v. Poplarville Saw Mill Co., 117 Miss. 274; J.C. Colt Co. v. Fuller, 144 Miss. 490; Holcomb Hoke Mfg. Co. v. Osterberg, 72 A.L.R. 722.
We respectfully submit that the learned circuit judge did not err in reversing the judgment of the county court, and in rendering judgment for the appellee here. He was doing nothing more than rendering such judgment as should have been rendered under the law and the facts of the case in the county court. Let us assume that the case had been tried in either the circuit court or the county court before a jury; under the evidence of the case only one instruction would have been proper, and that would have been to find for the plaintiff. It would have been a question of law; there would have been no material controverted facts to submit to the jury.
Argued orally by Stokes V. Robertson, for appellant, and by Thos. S. Bratton, for appellee.
This case originated in the county court of Hinds County, where the appellee sued appellant on a note evidencing the balance on the purchase price of an air conditioning unit bought for the purpose of "air conditioning" the office of appellant. There was a plea of the general issue and, under notice of affirmative matter, a breach of implied warranty and a total failure of consideration was alleged; and there were offers to return the unit and forego reimbursement for the cash payment made thereon.
The county court, where the judge determined from the testimony all of the facts and the law without the intervention of a jury, rendered judgment in favor of the appellant. Thereupon, appellee appealed to the circuit court of said county, where the judgment of the county court was reversed and a judgment rendered in behalf of the appellee. From this judgment the appellant has prosecuted this appeal.
Appellee is engaged in selling appliances, including air conditioning units manufactured by the York Factory at York, Pennsylvania, and had in its employ a salesman who had received the equivalent of a three-years' college course in air conditioning and commercial refrigeration at the factory. This salesman assured the appellant that the unit in question would "air condition" its office. Appellant knew nothing of the size or type of unit that would serve the purpose desired, and relied solely upon the judgment and assurance of the salesman to the effect that the unit in question would serve the purpose intended. Mr. Harwell of the appellee Harwell Appliance Company testified that the salesman "knew how to figure the load," and it was shown that a suitable unit should have capacity to reduce the temperature from ten to twelve degrees on the inside as compared with that on the outside of a room or building. The county judge, as such trier of the facts, found from the testimony that appellant was assured that this unit would properly "air condition" the office. No guarantee or warranty was made that it would reduce the temperature any particular number of degrees, but naturally the term "air condition" would be understood to mean that the office would be rendered reasonably comfortable to the extent usually experienced in "air conditioned" hotels, offices and other buildings.
The unit was installed on May 12, 1937, and the salesman testified that: "At that time of the year the weather was not exceptionally warm, and as summer came on the weather got exceptionally warmer." The unit functioned fairly well at first, and on June 4, 1937, the sale was concluded by appellant making a cash payment and executing the note sued on for the balance of the purchase price. As the weather became warmer it was ascertained that the unit was wholly inadequate to provide the proper temperature to render the office comfortable. It would only reduce the temperature from four to five degrees. This fact was not disputed and the salesman and appellee's mechanic and witness both conceded in their testimony that the unit was too small to serve the purpose for which it had been purchased. It is contended however by the appellee that when the negotiations began three different size units were shown, and that the salesman then recommended to the appellant that a larger unit be purchased. However the finding of the county court was to the effect that the particular unit in question was purchased on the assurance of the salesman that it would properly "air condition" the office, and that this assurance was given after a survey had been made of the office by the salesman. Under the familiar and well settled rule this finding of fact should not be disturbed on appeal unless manifestly erroneous. We are unable to say that such was the case.
After it was discovered that the unit did not serve the purpose desired, the salesman and another representative of the appellee recommended that the office be insulated, at considerable expense to appellant, or that he purchase a larger unit. Appellant was unwilling to incur this additional expense, and it was then suggested that he place an electric fan in the office to aid the unit in producing the proper temperature. This method was tried, but due to the fact that the windows of the office were to be kept closed while the air conditioning unit was in operation it was found that the suggested remedy was likewise ineffective.
Appellee contends that these negotiations and experiments transpired prior to the execution of the note and final acceptance of the purchase, and that all objections were thereby waived. On the contrary, the appellant testified that this occurred some time after the execution of the note, and that thereafter he continually informed the appellee from time to time that he could not use the appliance and repeatedly offered to return it. The county court likewise found in favor of the appellant on this conflict in the testimony.
The circuit court was of the opinion that the consideration for the note would fail under the facts in this case only if there was a latent defect in the unit. Also, that where a purchaser relies upon the superior knowledge and judgment of the seller there is no warranty except as against latent defects. This view, in our opinion, is in conflict with the decision in the case of J.A. Fay Egan Company v. Louis Cohn Brothers, 158 Miss. 733, 130 So. 290. In that case the seller sold the purchaser a machine to be used in connection with a portable sawmill which was "too frail and light to render the service for which it was sold" and which the seller had represented that it would perform. The purchaser received the kind, size and type of machine that he purchased and the objection thereto was not on account of any latent defect. The purchaser had been assured that it would serve the purpose for which the seller was informed he intended to use it, and the assurance proved to be untrue. Numerous authorities could be cited and reviewed on the question here involved, but we are of the opinion that the facts in the present case are such that the decision is fully controlled here by the case above referred to and the authorities therein cited. Reference is here made to the facts in that case, and to the principles of law therein announced, which are, in our opinion, clearly applicable to the issue here involved.
If the modern conveniences and appliances now constantly coming into use are to be purchased with 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 purpose intended. When such reliance is known to the seller the assurances and representations of fitness for a particular purpose should be made good, when they can be shown by competent evidence to have brought about the sale. Since the decision of the county court on the facts is supported by the testimony, the judgment of the circuit court must be reversed and the judgment of the county court affirmed and reinstated.
Reversed and judgment here for appellant.