Truschel v. Dean , 77 Ark. 546 ( 1906 )

McCulloch, J.,

(after stating the facts.) In sales of goods where the purchaser has had no opportunity to inspect them, there is an implied warranty that they are reasonably fit for the purposes for which they are ordinarily used; and when they are, under such circumstances, purchased for a particular purpose known to the seller, there is an implied warranty that they are fit for that purpose. Bunch v. Weil, 72 Ark. 343; Curtis & Co. Mfg. Co. v. Williams, 48 Ark. 330; Benjamin on Sales, § § 645, 656; 2 Mechem on Sales, § 1358.

The facts of this case fall squarely within the rule stated. The grapes were purchased for resale in Fort Smith, and this purpose was known to the seller. Therefore, the seller impliedly warranted that the grapes were in proper condition to stand shipment to Fort Smith by the means of transportation afforded, and remain in a merchantable condition, so that the purchaser could have an opportunity to resell them. It could not have been in contemplation of the parties that fruit should be shipped which would be worthless when it reached Fort Smith, and, "the seller only having had an opportunity of inspection and selection, he must be deemed to have warranted the fruit to be such as would, under the means of transportation afforded, reach Fort Smith in a salable condition.

The instruction asked by the defendant embodied this view of the law, and should have been given.

It is insisted by counsel for appellee that the instruction by. the court of its own motion conveys the same idea, and that there is no substantial difference in meaning between that and the instruction asked by appellant. We do not think so. The court' in this instruction said that, in determining whether the grapes were in merchantable condition when loaded into the car at Portland, the jury might consider the condition of the grapes at that time, the length of time grapes in such condition will keep when properly loaded, etc., but the court did not say that the grapes must have been in condition to stand shipment, and then be fit for sale at Fort Smith. The instruction, it is true, permitted the jury to consider the condition of the grapes when loaded on cars at Portland, the length of timé grapes will under ordinary means of transit keep, the manner in which they were loaded, etc.; but only for the purpose of determining whether the grapes were in merchantable condition when loaded. The court should have gone further, and told the jury, as asked by defendant, that the test of merchantability in Portland was whether the condition of the grapes was such as to stand shipment to Fort Smith and reach the latter place in condition for sale. The instruction of the court, without the further definition contained in the refused instruction, was uncertain and misleading. The jury might well have understood from it that their sole duty was to determine whether the. grapes were in salable condition when delivered to the carrier at Portland, and that the other matters recited in the instruction were to be considered only for the purpose of reaching a conclusion on that point.

It is contended that the refusal to give the instruction was not prejudicial, for the alleged reason that under the evidence the verdict must have been for the plaintiff any way. It is true that a witness for plaintiff testified that the grapes when loaded at Portland were in proper condition to stand shipment to Fort Smith and reach there in salable condition, if the car was kept thoroughly iced, and no accident occurred in transit. This was not contradicted by direct evidence, and there was no direct testimony as to whether the car was iced after it left Portland. But it was shown that the car was iced at Portland, and instructions given to ice it again at Bellevue, O., and to keep it heavily iced en route; that the car in due time reached Fort Smith at a proper temperature and with ice in the bunkers; and that the grapes were in such poor condition that they could not, if the car was kept iced, have been in proper condition when loaded at Portland. At least, a witness of experience in handling fruit testified to that effect, and gave it as his opinion that, from the condition he found it in after arrival at Fort Smith, it could not, if the car was kept iced, have been in proper condition when loaded. The jury might have inferred from these facts that the fruit was not in proper condition to stand shipment, and that there was a breach of the warranty in that regard. Notwithstanding there was no direct proof that the ice bunkers of the car were filled en route, the jury might have inferred, from the fact that they were filled at the start, and that instructions were given to the carrier to refill them and keep them full, and that the car reached Fort Smith in due time at proper temperature and with ice in the bunkers, that the worthless condition of the grapes was due to the fact that they were not in good condition when shipped, rather than to some accident or failure to keep the car properly iced en route. Appellant was, therefore, entitled to have the question submitted to the jury upon proper instructions.

Reversed and remanded for new trial.