Miller & Co. v. Moore, Sims & Co. , 83 Ga. 684 ( 1889 )

BOOKLET, Chief Justice.

1. The descriptive words by which the sale was made wére, “No. 2 white mixed corn, bulk.” These words comprehend quality as well as variety, and import a warranty on the part of the seller as to both. Corbin’s note 24 to 2 Benj. Sales, 844; Gould v. Stein (Mass.), 22 N. E. Rep. 47; Whitaker v. McCormick, 6 Mo. App. 114; Wolcott v. Mount, 86 N. J. L. 268, s. c. 38 N. J. L. 496; Bridge v. Wayne, 1 Starkie N. P. 504. Nor will inspection by the buyer before acceptance deprive him of the protection of the-warranty as to latent defects. Miller on Cond. Sales, 87, 94; Biddle on Warranty, §§111, 141; Meickley v. Parsons, 66 Iowa, 63, s. c. 55 Am. Rep. 261; Jones v. George, 61 Tex. 345, s. c. 48 Am. Rep. 280 ; Gould v. Stein, supra. Whether Hight v. Bacon, 126 Mass. 10, and Barnard v. Kellogg, 10 Wall. 383, are consistent with this rule, we need not inquire, since we are quite certain that the rule prevails in Georgia, however it may be in some other States. Atkins v. Cobb, 56 Ga. 86.

2. Three of the car-loads of corn inspected, accepted and paid for were, as the evidence pretty clearly shows, “ false packed.” Upon the surface the corn was sound and came up to the description, but beneath, beginning at a depth of some two feet, the corn was musty and “blue-eyed.” The inspection actually made penetrated the mass a foot or more below the surface, and the defective corn was not discovered; and it does not appear that the inspection which ought to have been made was different from that which was in fact made. This being so, the musty and “ blue-eyed” corn packed beneath that which was sound should be classed with reference to the whole car-load as a latent defect. The difference between patent and latent is that one is open to observation by ordinary inspection, and the other is not.

3. It was not competent to vary the general law of the State, raising a warranty in favor of the purchasers, by showing a local usage in Augusta operating upon the corn trade to the effect that the acceptance of corn in bulk, and paying for if after inspection, were considered as waiving or releasing all claim upon the seller to answer for any defects of quality. Doubtless the custom is binding upon those who have recognized it in their own transactions, and thus adopted it for their own dealings, but persons who have not done so are entitled to stand upon the general law. Jones on Com. and Trade Contracts, §§122, 123; Hatcher v. Comer, 73 Ga. 418 ; Thompson v. Ashton, 14 John. 316; Barnard v. Kellogg, 10 Wall. 383 (supra); Yates v. Pim, 6 Taunt. 446. A vigorous and learned opinion to the contrary was delivered in Snowden v. Warder, 3 Rawl. 101, in which case Chief Justice Gibson dissented.

4. A defect of quality in the three car-loads of corn did not, under the circumstances, entitle the purchasers to reject the ten car-loads subsequently tendered and found, upon inspection, to come up to the terms of the contract. The whole purchase embraced thirty carloads to be delivered in Augusta by instalments, and these ten were a part of the thirty. Neither before nor after the defect was discovered in the three carloads was there any intention on the part of the buyers or the sellers to abandon or rescind the contract. On the contrary, even after the ten car-loads were rejected, both parties went forward in the performance of the contract, and its full performance on both sides seems to have been completed. The right to rescind was neither claimed nor exercised as to any part of the contract. The subject will be found discussed with more or less breadth in the following authorities : Leake On Contracts, 654, 655 ; 2 Benj. on Sales, 787, note 26 ; Norrington v. Wright, 115 U. S., 188; 21 Am. L. Reg. 398 (notes) ; Cahen v. Platt, 69 N. Y. 348, s. c. 25 Am. Rep. 203 ; Notes to Gill v. Benjamin, 54 Am. Rep. 624; Blackburn v. Reilly, 47 N. J. Law, 290; Myer v. Wheeler (Iowa), 21 N. W. Rep. 692; Mersey, etc. v. Naylor, L. R. 9 App. C. 434. And see Ga. Refining Co. v. Augusta Oil Co., 74 Ga. 497. In the present case there was no fraud on the part of the sellers. The false packing was not their work, nor was it known to them. They had purchased the corn as they sold it, packed in the same cars.

5. With the law properly applied to the evidence in this case, as we understand it, the plaintiffs in error are entitled to recover for the breach of warranty their damages, properly measured, for the defect in quality of the damaged corn in the three cars which they accepted and paid for; and the defendants in error (the plaintiffs below) are entitled to recover their damages, properly measured, for the refusal of the purchasers to accept the ten cars of corn which ought to have been accepted, but were rejected without good cause. Whichever party has the largest claim on this basis should prevail when the case is tried again, unless the evidence should be mateidally different from that which is now in the record before us.

6. When the broker who sold the ten cars was under cross-examination, it was competent to ask him not only to disclose the amount of his commissions, but whether they had been paid or not. These commissions were sued for in the action which was on trial, and though they could be recovered if there was a real liability to pay them incurred by the plaintiffs below, the payment or non-payment might throw light upon whether that liability was absolute or dependent upon a recovery in this case. If the witness as broker had an interest in the recovery that would go to his.credit. At all events, he was under cross-examination, and the right to sift is very broad. 1 Thomp. on Trials. §406 et seq.

The court erred in not granting a now trial.

Judgment reversed.