Industrial Finance Corp. v. Wheat , 142 Miss. 536 ( 1926 )

^* Corpus Juris-Cyc. References: Bills and Notes, 8 C.J., p. 384, n. 28 New. Sales, 35 Cyc, pp. 370, n. 18; 397, n. 22; 411, n. 1; 412, n. 7; Definition and nature of implied warranty in sale of personal property, see 24 R.C.L., p. 178; 4 R.C.L. Supp., p. 1531; 5 R.C.L. Supp., p. 1276. The appellee purchased from the Newsom Sales Company a Studebaker automobile. He paid a part of the purchase price thereof and executed a note for the remainder, agreeing therein to pay the note in monthly installments. The contract of the sale, which is in writing, contains no warranty of quality, but reserves the title of the automobile in the seller until paid for, and, among other things, provides that —

"This agreement constitutes the entire contract and no waivers or modification shall be valid unless written upon or attached to this contract, and said motor vehicle is accepted without any express or implied warranties unless expressly contained herein."

The contract of sale and the note secured thereby were afterwards assigned for value by the Newsom Sales Company to the appellant, a corporation. One of the provisions of this assignment, which is in writing, is:

"And for the purpose of inducing said corporation to discount or purchase the note referred to in said contract and accept this assignment, the undersigned warrant that the motor vehicle is new and unused."

The appellee, after having made several payments on the note, declined to make further payments thereon, claiming that the car purchased was defective, and that the payments made by him thereon were sufficient to cover its real value. The Newsom Sales Company sells but does not manufacture automobiles. The sale and delivery of the automobile, which was open to the inspection of the appellee, were contemporaneous. The automobile contained a latent defect which developed shortly after the appellee commenced to use it. When the appellee refused to make further payments on the note for the automobile, the appellant instituted this action of replevin for the recovery of the automobile under the provisions of the contract of sale, and from an adverse judgment has brought the case to this court.

One of the assignments of error is the refusal of the court below to instruct the jury to find for the plaintiff and assess the value of the automobile. One of the questions presented for decision, and which lies at the threshold of this case, is, whether there was an implied warranty on the part of the Newsom Sales Company of the quality of the automobile, which question must be answered in the negative for two reasons: First, the contract of sale expressly negatives any such warranty; and, second, there is no implied warranty of quality in "a present executed sale of an existing article, of which the seller was not the manufacturer, then open to examination and inspection by the purchaser, . . . in the absence of fraud on the part of the seller, unless the defects therein are latent and the ``seller knew the buyer did not rely on his own judgment (in accepting the article), but on that of the seller, who knew or might have known of the existence of the defects.'" Bellville Supply Co. v.John Dacey, 106 So. 818; Otts v. Alderson, 10 Smedes M. 476; Simmons v. Cutreer, 12 Smedes M. 584; Joslin v.Cauglin, 26 Miss. 134; 1 Williston on Sales (2 Ed.), section 228 et seq.; 2 Mechem on Sales, section 1311 et seq.; 24 R.C.L., p. 178, section 451 et seq.

The main contention of counsel for the appellee seems to be that the Newsom Sales Company warranted the automobile to be new and unused, and that the defect therein demonstrates that it was neither. There can be no merit in this contention for two reasons; First, the warranty that the automobile was new and unused is not contained in the contract of sale, but in the assignment to the appellant; and, second, the defect in the automobile was not of such character as to indicate that it was not new or that it had been used.

Reversed and remanded.