Wilcox, Gribbs & Co. v. Henderson , 64 Ala. 535 ( 1879 )

STONE, J.

The note sued on shows, on its face, that its consideration was Wilcox, Gibbs & Go.’s manipulated guano, sold by plaintiffs, through their agent, to the defendant. The ingredients, of which this fertilizer was compounded, and the proportions of the several ingredients, together with chemical analyses of the compound, were published in circulars, and displayed in posters to the public, at and before the sale and purchase out of which this action grew. These, we think, were legitimate instruments of evidence, and tend to show that the seller contracted and held himself bound by such representations of fact, as were thus, as we may presume, made part of the stipulations and inducement of the contract. To hold the seller to a less accountability than this, would be a license to perpetrate the grossest frauds. But this rule is limited to representations of fact, and not of opinion. — Sledge v. Scott, 56 Ala. 202; Perry v. Johnson, 59 Ala. 648. To constitute expressed opinion a ground, or instrument of fraud, it must be knowingly false, made with intent to deceive, and must be accepted and relied on as true. — Einstein v. Marshall, 58 Ala. 153.

Three main questions of fact were controverted in the court-below : First, whether the commodity sold as manipulated guano, was what the circulars and posters represented it to be; second, whether Murphree, the agent making the sale, warranted its quality; and, third, whether the representations and warranty were false. The circulars were offered in evidence by the defendant, the plaintiffs objecting, because they bore date and were circulated in a former year, and not in the year of this sale — 1871. The portion of the circulars thus' offered and objected to was the tables of the chemists, showing the analysis of the manipulated guano, as compounded by Wilcox, Gibbs & Go. It is no where claimed or shown, in this record, that the constituents or quantities of the ingredients composing the fertilizer known as manipulated- guano, sold by these plaintiffs, had been changed. There was no-error in receiving this evidence. Neither did the Circuit Court err in allowing the defendant to testify that Murphree-, the agent, in making the sale, “ told defendant that he (Murphree) had authority from plaintiffs to warrant theirs to be good guano and that thereupon defendant made the purchase. This was competent evidence. Its effect we will consider hereafter.

We think the court erred in excluding the evidence of Felix Walker, James Davidson, and others. The theory, on which the circulars of 1867 were receivable in evidence, is, that manipulated guano, as prepared and sold by these plaintiffs, was compounded after a certain formula. If this was not the rule, and the manipulated guano was manufactured in various-ways, or composed of varying ingredients, that fact could have been shown, either for or against the defendant; and, in this way, the effect of the circular, as evidence, might have-been materially changed. If other planters, in 1871, had purchased and used this manipulated guano, sold by Murphree as agent, without profit, or with little profit, we think Henderson should have been allowed to prove that fact, as evidence tending to show the guano, or fertilizer, was not what it was represented to be. Eor the same reason, the plaintiffs should have been allowed to prove that their manipulated guano of 1871 was a good guano, or good fertilizer; and the witnesses could have no better foundation for their judgment, than that furnished by their own experiment and trial. This is not the case of proving the quality of one manufactured article, by proof of another similar article, the handiwork of the same mechanic. It is rather proving the quality of a compounded mass, by showing the. quality and usefulness of different parcels of it. Just as a chemist would proclaim the analysis of a bulk, when he had, in fact, subjected only fragmentary parts, promiscuously chosen, to scientific tests.

The testimony of Pony Henderson was objected to only as a whole. Much of it was unexceptionable, and we will not dissect it in search of error, not specially brought to our attention by specific exception.

We have held above, that the testimony of the defendant, Henderson, that Murphree, the agent, in making the_ sale, represented the fertilizer as good guano, was competent evir dence. Being parol testimony, however, and not very complete and explicit, it did not, as matter of law, amount to a warranty, nor, if believed, did it necessarily amount to a defense to the action. It may have been merely the opinion of the agent, without any thought of a warranty. If so, then Iit would not afford matter of defense, unless Murphree stated what he knew or believed to be untrue, and was in fact untrue, or unless he stated it as fact, wdien he had no knowledge, or well-founded belief it was true, and it turned out to be false. Agents, in making sales, are not permitted to indulge in reckless assertion, and thus deceive and defraud others. — Perry v. Johnson, supra.

The charge to the jury, that if they believed, from the evidence, “ that Murphree, the agent of the plaintiffs, represented to defendant that the guano was a good guano, and that from the application and tests of its utility made by the defendant, they believed it was not a good guano, then they must find for the defendant,” is objectionable. It assumes, as matter of law, that such representation by the agent would amount to a warranty. It was only evidence to be submitted to the jury, and to be weighed by them, in determining whether or not there was a warranty of the fertilizing qualities of the guano. Moreover, the guano may not have been, in strict sense, good, and yet the defendant may have derived some benefit from it. Tlie second paragraph of the charge is also objectionable, in assuming that such representation was, in itself, and necessarily, a warranty.

Of the charges asked by plaintiffs, the first was rightly refused; because, if the testimony was equally balanced, the verdict should have been for the defendant. When the note was read in evidence, this made a prima facie case for the plaintiffs, and shifted the burden to the defendants of proving their defense. If the charge asked' had been, “ If you find the evidence equally balanced on the question of warranty, or on the question whether the guano was such as it was warranted to be, then you must find for the plaintiffs,” it would have asserted a correct legal proposition. The second charge asked was calculated to mislead, and was rightly refused on that account. The third, fourth, and fifth charges were rightly refused. Reasonable conviction, or satisfaction of the mind, is the proper measure of proof in civil causes. Clearly convinced, lays down too exacting a rule. The explanatory charge to number 3 is faulty, for the reason stated above, in commenting on the first charge given. The postulate of the sixth charge asked, does not necessarily cut off defendant’s right of defense. It only presented circumstances for the jury to weigh, in determining whether or not there was, in fact, a failure of the guano to come up to the representation, and whether or not Henderson, when he made the partial payment, was satisfied with the fertilizer. This charge was rightly refused. The first, second, third, and fifth charges, asked by defendant and given by the court, are each faulty, for the reasons stated above.

Reversed and remanded.