Pacific Guano Co. v. Mullen , 66 Ala. 582 ( 1880 )

STONE, J.

The second plea of defendant, as amended, presented a good defense to the action, and the Circuit Court did not err in overruling the demurrer to it.—Woods v. Armstrong, 54 Ala. 150; Pacific Guano Co. v. Dawkins, 57 Ala. 115.

Neither did the Circuit Court err in receiving in evidence the act of the legislature of Massachusetts, incorporating the “Pacific Guano Company,” exemplified as. it was under the great seal of that State. — 1 Greenl. Ev. § 489. One of the purposes of that corporation, as expressed in the charter, was the manufacture of fertilizers. It is common knowledge, that guano, in its varied manipulated forms, is a fertilizer. The present suit was 'brought in the name of the Pacific Guano Company, and there was evidence that “pacific guano” was the consideration of the note sued on. We think these facts amounted to sufficient evidence to justify the court in submitting to the jury the inquiry, whether the fertilizer named was the consideration of the note, and whether it was manufactured and sold by plaintiff as a fertilizer.

A manufacturer of articles, for a special purpose, is, when the article is sold for such purpose, to be held to have stipu^ lated that it is useful, and adapted to that purpose. If the article so manufactured and sold is worthless, then the vendor-manufacturer has broken his contract, and the purchaser may renounce the contract, and refuse to receive the article ; ■ or, if he has received it, and afterwards learned its worthlessness, may refuse to pay for it. — Benjamin on Sales, edition by Perkins, §§ 661, et seq.; Herring v. Skaggs, 62 Ala. 180.

_ The fact that the trial, which tested the quality of the fertilizer, rendered it impossible to restore it to the seller, takes this case out of the rule, which, ordinarily, requires of a purchaser, claiming a rescisión, that he put the vendor in statu quo. The court did not err in giving the first part of the general charge excepted to.

Neither did the Circuit Court erf iu the second charge given. If part of the consideration of the note was “pacific guano,” imported and sold without inspection, while our inspection statute was in force, then there could be no recovery on the note. — Addison on Contracts, Morgan’s Ed., vol. 1, § BOO, note K; Bozeman v. Allen, 48 Ala. 512; Rand v. Mather, 11 Cush. 1; 1 Brick. Dig. 382, § 116. There could be a recovery on the common count, for that part of tbe guano which was sold after the repeal of the inspection statute, provided there was no other valid defense. This the charge did not deny.

The evidence that defendant had made skillful application of the fertilizer, and found it worthless, was clearly admissible.—Young v. O’Neal, 57 Ala. 566; Claghorn v. Lingo, 62 Ala. 230.

Affirmed.