Royal Feed & Milling Co. v. Thorn , 142 Miss. 92 ( 1926 )

^* Corpus Juris-Cyc. References: Agency, 2 C.J., pp. 562, n. 81; 602, n. 63. Sales, 35 Cyc., pp. 370, n. 20; 408, n. 74. The appellant, Royal Feed Milling Company, is engaged in the manufacture of mixed foods for animals, and has a general office at Meridian, Miss., in charge of its general manager. It also employed a traveling salesman to sell its products to the trade, and said salesman made a contract with one Stuart, a local dealer at Morton, Miss., for the sale of its food stuff. Stuart sold this food stuff to appellee, Thorn, for use in feeding his horses and mules, and Thorn filed suit against appellant and Stuart for the loss of his animals alleged to have been killed by eating poisoned or damaged food manufactured by the Royal Feed Milling Company and sold to him by Stuart. There was a directed verdict in favor of Stuart in the court below from which no appeal is prosecuted. The case was submitted to the jury as to four of appellee's animals valued at one hundred fifty dollars each, and the jury returned a verdict in favor of plaintiff against defendant, Royal Feed Milling Company.

The testimony for the plaintiff was that he had bought the food stuff from Stuart and fed it to his animals; that some of them had died from the use of this food; that he had decided not to use appellant's food stuff again, but that the traveling salesman representing appellant in a conversation with Thorn (appellee) told him that, if he would continue to use appellant's products, he would guarantee such food stuff to be sound and wholesome for a period of thirty days from date of shipment; that after this conversation Stuart ordered another carload of appellant's food stuff, a portion of which was purchased by Thorn (appellee) and which was fed to his animals, resulting in the death of four of appellee's animals. Plaintiff also introduced evidence of other consumers or purchasers of appellant's food stuffs who testified that they lost horses and mules from feeding them the products of appellant at about the same time that Thorn's animals died.

Appellant's testimony was to the effect that its traveling salesman had no authority to make any guaranties with reference to the food stuff manufactured by it; that it was the universal custom of manufacturers of this kind of prepared food stuff to sell same on inspection; that all orders had been approved by the manager at Meridian before the contract was accepted; that the material used in the preparation of the food stuff here in litigation was sound and wholesome and properly manufactured, and that said food stuff was sound and wholesome when loaded into the cars and shipped; that under certain conditions this food stuff might become heated and spoil. Appellant also introduced testimony to show that no complaints had been received from other purchasers of food stuff manufactured and shipped by it at the same time as the shipments here in question were shipped, and that no manufactured food stuff was kept on hand by it. There was no sale made by the appellant to the appellee direct.

At the conclusion of the plaintiff's testimony the appellant moved for a directed verdict, and also moved for the same at the conclusion of the full evidence, but its motions were overruled. We think that under the facts of this record the motions should have been sustained.

This court has held that there is no implied warranty under the laws of this state of soundness in the sale of animal foods.Dulaney v. Jones Rogers, 57 So. 225, 100 Miss. 835;Dunnagin-Whitaker Co. v. Montgomery, 78 So. 580, 117 Miss. 666, All persons dealing with an agent must take notice of the extent of the power and authority of the agent to bind the principal. On the facts contained in this record there is insufficient evidence to show that the agent, Thompson, had any authority or power to make an express warranty relied upon by the appellee in this case. Becker Co. v. Clardy, 51 So. 211,96 Miss. 301, Ann. Cas. 1912B, 355. The testimony is undisputed that Thompson had no authority to make such warranty.

It is settled law in this state that, where a person warrants the soundness of his products to a dealer under the express warranty, it does not extend to the purchasers from such dealer. In Pease Dwyer v. Somers Planting Co., 93 So. 673,130 Miss. 147, it was held that the customer of retail dealers could not successfully sue a wholesale dealer on a warranty of quality. Judge ANDERSON, speaking for the court in that case, said:

"There seems to be no division among the authorities that a warranty by the seller of the quality of personal property sold is addressed alone to the first purchaser; that such warranty does not run with the title to the property, and subpurchasers cannot avail themselves of such warranty as against the original seller. Some of the reasons for the rule are that there is no contractual relation existing between the original seller, the warrantor, and a subpurchaser. They are unknown to each other in the transaction. The seller who warrants does so alone for the benefit of his purchaser. He receives the purchase price as the consideration for the property and the warranty going with it."

The judgment will therefore be reversed, and judgment entered here for appellant.

Reversed, and judgment here.