Opinion
No. 34521.
April 14, 1941.
1. SALES.
Where purchaser of mule and farm implements executed one note for purchase price and purchaser did not offer to return the implements when he offered to return the mule for alleged breach of warranty, purchaser was not in a position to treat the sale as having been rescinded and hence was left to his remedy of suing for damages for breach of warranty as to fitness of the mule.
2. SALES.
Whether purchaser of mule which was sold under assurance that it was a "good working mule" was entitled to damages for breach of warranty because mule could not be induced to work was for jury.
3. PRINCIPAL AND AGENT.
Proof of usual custom was not necessary in order to establish that agent authorized to sell mules was vested with authority to bind his principal when answering inquiry whether agent would guarantee the mule to work, since representations which are usually incident to such transaction are held to have been made with authority by agent entrusted with sale of an animal, although without authority or apparent authority to give a warranty in regard thereto.
4. PRINCIPAL AND AGENT.
Authority will be implied for the agent to make representations about matters in regard to which principal should reasonably anticipate purchaser would desire to be informed.
5. PRINCIPAL AND AGENT.
The question whether or not a particular statement by agent is reasonably pertinent to transaction is for triers of fact when inquiry is whether principal has reason to anticipate that representations would be made.
6. SALES.
A purchaser of mule was not precluded from recovering for breach of warranty that it was a working mule because purchaser selected mule in preference to either of other three in the lot before representation was made, where completed transaction including purchase of farm implements and execution of note for total purchase price as well as delivery of all of the property transpired subsequent to representation.
APPEAL from the circuit court of Coahoma county, HON. WM. A. ALCORN, Judge.
Dan C. Brewer, of Clarksdale, for appellant.
Any direct and positive affirmation of a matter of fact, as distinguished from a mere matter of opinion or judgment, made by the seller during a treaty of sale, and as a part of the contract, designed by him to induce the action of the purchaser, and actually, to some extent at least, relied upon by the latter in making the purchase will be deemed to be a warranty.
24 R.C.L. 176; Meecham on Sales, Secs. 1235, 1269.
Authority conferred upon an agent, whether general or special, to sell personal property carries with it, in the absence of countervailing circumstances, implied power to make in the name of the principal such a warranty of the quality and condition of the property sold as is usual and ordinarily made in like sales of similar property at that time and place.
Meecham on Sales, Sec. 1281 et seq.
The buyer of a mule under a warranty from an agent who misrepresented the mule as his own and concealed the fact of agency and obtained the buyer's note payable to his son of the same name, which buyer believed to be the name of the agent, and the son, the principal, negotiated the note to an innocent purchaser for value before maturity, and the buyer was compelled to pay the note. Upon a breach of the warranty the buyer had a right of action for such breach against the father, as agent, and the son, as principal, or both.
Kelly v. Guess, 157 Miss. 157, et seq.
Where a mule is sold under a warranty which fails and it develops that the mule is absolutely worthless for the purpose sold, the measure of damage to the buyer is the amount paid for the mule, together with the reasonable expense of its keep from the time the mule is returned, or tendered back to the seller.
Hammerick v. Wilkins, 65 Miss. 18; Williston on Sales, Sec. 614; McKee v. Jones, 67 Miss. 405; Sapp v. Broadfield (Ky.), 136 A.S.R. 291; 2 Meecham on Sales, Secs. 1817, 1821, 1828.
Maynard, Fitzgerald Maynard, and W.W. Venable, all of Clarksdale, for appellees.
There was no rescission of the contract for the reason that tender was not made or any effort made to restore the status quo ante and the property was not tendered or redelivered to the defendants. The sole question is whether or not the plaintiff has made out a case for the jury for breach of warranty.
It will be noted that the warranty is an express one. Authority to give an express warranty is not implied from authority to sell, and evidence is necessary either of actual authority or that the practice of giving a warranty in the sale of the sort in question was so usual that a reasonable man would have understood that the power was granted.
Herring v. Scaggs, 62 Ala. 180, 34 Am. Rep. 4; Bryant v. Moore, 26 Me. 84, 45 A.D. 96; Moorhead v. Minneapolis Seed Co., 139 Minn. 11, 165 N.W. 484, L.R.A., 1918C, 391; Pioneer Electric Co. v. McCurdy, 151 Minn. 304, 186 N.W. 776; Decker v. Fredericks, 47 N.J.L. 469; Bierman v. City Mills Co., 151 N.Y. 482, 37 L.R.A. 779; Larson v. Aultman Taylor Co., 86 Wis. 281, 39 A.S.R. 893.
If it should be contended that warranties of quality are usual in the sale of mules and horses, a thing which is denied by us, we call the court's attention to the fact that what is usual and ordinary is a question of fact to be determined by the jury and that the burden is on the plaintiff in proving the authority of the agent to show what the usage is and that it is the usage to give the warranty in the particular kind of sale.
Herring v. Scaggs, 62 Ala. 180, 34 Am. Rep. 4; Samuel v. Bartee, 53 Mo. App. 587; Westburn v. Page, 94 Wis. 251.
An agent of a private individual or a special agent has no implied authority to warrant a horse.
Brady v. Todd, 9 C.B. (N.S.) 592; Cooley v. Perrin, 41 N.J.L. 322, 32 Am. Rep. 210; Court v. Snyder, 2 Ind. App. 440, 50 A.S.R. 247; Brier v. Lamkey, 47 Ind. App. 7.
The measure of damages would be the difference in the value of the mule as it actually was and as warranted.
J.B. Colt Co. v. Mazingo, 141 Miss. 402; Christian Brough Co. v. Goodman Garrett, 132 Miss. 786; Colt v. Fuller, 144 Miss. 490.
There is no evidence in the record or attempt to prove what the market value of the mule was as a balky mule, and, therefore, there was a complete failure to prove damages.
As to the claim for feed, it will not be necessary to argue the point further than to point out that the mule, being the mule of plaintiff, he was certainly under an obligation to feed his own animal. In short, not having rescinded, the mule was and is the mule of the plaintiff. Certainly, there is no obligation upon the defendants to feed the plaintiff's mule. Had there been a rescission for breach of warranty it would have become the mule of the defendants and the plaintiff would have expended certain money in caring for defendant's mule. That this is true is shown by the fact that he had kept the mule for a year until the time of the suit and may keep him for fifteen years, all the time feeding him, and on the theory upon which the plaintiff proceeds he can recover for the feed bill, notwithstanding the length of time and his duty to minimize damages.
The record discloses that the plaintiff selected the mule he desired, and he testified that it was afterwards that he asked Mr. Max Friedman whether or not it was a good work mule. According to this testimony of the plaintiff the sale was completed, the price had been agreed upon, and title had passed before any warranty was given, and there is no proof to show that he relied upon the alleged warranty in the purchase of the mule.
It is settled law that in order that an averment may constitute a warranty it must be received by the buyer as a statement of fact respecting the property and relied on as such in making the purchase. That is, the averment asserted as a warranty must have been operative in causing the sale, and must have been understood by the buyer as being intended as part of the contract.
55 C.J. 695; Montreal Bank v. Thayer, 7 Fed. 662; Landman v. Blumer, 23 So. 25; Battles v. Wheatley, 82 So. 573.
The question here involved is whether the circuit court was in error in affirming the action of the county court, whereby a peremptory instruction had been granted in favor of the appellees at the conclusion of the testimony offered by the appellant in support of his claim for damages on account of a breach of warranty in connection with the sale of a mule to him by the appellee, Max Friedman, acting as agent for his son, the appellee Morris Friedman, an undisclosed principal.
The price agreed to be paid for the mule was the sum of $100, but there was included in the sale certain farm implements valued at $90, and for all of which consideration a promissory note was then executed in the aggregate amount of $190, payable to Morris Friedman, who the purchaser thought was the same person as Max Friedman, assuming as he did that "Max" was a nickname, since nothing had been said during the negotiations about the property belonging to anyone other than the person making the sale.
While enroute from the mule barn to the implement shed, after the appellant had selected the mule in question in preference to any of the others shown him, and before he had inspected the farm implements and agreed upon the execution of the note to cover the total purchase price as a single completed transaction, and consequently before there had been a delivery of any of the property, he asked the appellee Max Friedman if he would guarantee that mule to work. His reply was "Yes, sir, every one of my mules are good working mules." Naturally, it was necessary for the purchaser to rely upon this assurance, because one cannot look at a mule and form an intelligent conclusion and judgment as to whether he will work, and the assurance did constitute an inducement.
It was about a month after the sale before the weather afforded the purchaser an opportunity to ascertain whether the mule would work to a plow, or was a "good working mule" as represented. Upon learning that the animal could not be coerced to work under any circumstances, the appellant called to see Max Friedman and offered to return the mule to him. This offer was promptly declined and no explanation was given or denial made by the said agent in regard to the contention then being made by the appellant that the mule had proven to be wholly unfit for the use for which it had been purchased. His only response was, "When you signed the note, that ended the matter, and the mule is yours." Thereupon, it appears that the undisclosed principal did not unduly delay the negotiation of the note to an innocent purchaser for value before its early maturity, thereby compelling the maker to later pay the same in full to the holder thereof.
There was no offer to return the farm implements when the proposal was made to return the mule, and hence the appellant was not in a position when bringing this suit nearly a year later to treat the sale as having been rescinded, and he was therefore left to his remedy of suing for damages for the breach of warranty as to the fitness of the animal for use.
The proof further discloses without dispute that after repeated efforts by the appellant and other persons to induce this mule to work, he wholly failed and refused to do so. Wherefore, the appellant contends that he was wholly worthless, and that he had no market value unless appellant had been willing to fraudulently withhold from a prospective purchaser the facts which he would be under a duty to disclose. Wherefore, he sued for the recovery of damages in the sum of $100, representing the purchase price paid, and also for the expenses which he had incurred over a period of nearly a year and up to the time of trial for his necessary upkeep, during all of which time the animal not only didn't choose to work, but could not be compelled to do so.
We are of the opinion that since the proof clearly shows that the mule would not work, and was therefore wholly worthless, in view of the fact that no one has yet discovered any useful purpose a mule on a farm or elsewhere is suitable for unless he will work, the case should have been submitted to the jury under proper instructions for the assessment of the damages thus shown. We express no opinion as to whether the appellant would be entitled to recover the expenses incurred for feeding the mule for nearly a year, where there was no rescission, or offer to rescind the purchase in its entirety, and where the proof fails to disclose that the purchaser ever attempted to reduce the damages claimed by giving the mule away or by abandoning him in some remote community where he would have been unable to find his way back home.
It is urged on behalf of the appellees (1) that the agent was without authority to make the alleged warranty in the absence of proof that it was usual and customary in that section to make such a warranty in connection with this kind of a sale; and (2) that the proof fails to show that the purchaser relied upon the representation, since he selected the mule in the exercise of his own judgment before the alleged representation was made.
On the first proposition, we are of the opinion that no proof of the usual custom was necessary in order to establish that one authorized to sell personal property is vested with authority to bind his principal when answering such a pertinent inquiry as that here shown to have been made of him in regard to the fitness of the thing sold for the use and purpose for which it is being bought. Representations which are usually incident to such a transaction are held to have been made with authority by an agent entrusted with the sale of an animal, although without authority or apparent authority to give a warranty in regard thereto, since such authority may be reasonably inferred by the purchaser. Authority will be implied for the agent to make representations about matters in regard to which the principal should reasonably anticipate the purchaser would desire to be informed. Section 258. Rest. Agency. The question of whether or not a particular statement is reasonably pertinent to the transaction is for the triers of fact when the inquiry is whether the principal has reason to anticipate that the representations would be made. Under Section 258, supra, is contained the following illustration and is used where an agent is authorized to sell real estate: "A, agent of P, sells P's land to T, misrepresenting that the land does not overflow. A has no authority to make this kind of a statement. T purchases the land relying upon this statement. P. is subject to liability to T in deceit as for his own statement." We see no good reason why the same rule should not be applied under authority to sell personal property such as that here involved, since a purchaser of a mule would be as likely to want to know whether he would work as a purchaser of land would want to know whether or not it is subject to overflow.
Responding to the second contention above stated, the proof discloses, as hereinbefore mentioned, that while the appellant had selected this particular mule in preference to either of the other three in the lot before the representation was made, the completed transaction, including the purchase of the farm implements and the execution of the note for the total purchase price, as well as the delivery of all of the property, transpired subsequent to the representation that the animal was a good work mule.
In the absence of other testimony, the proof submitted would have entitled the appellant to recover damages.
Reversed and remanded.