P. D. Bellville Supply Co. v. Dacey , 141 Miss. 569 ( 1926 )

^* Corpus Juris-Cyc. References; Sales, 35 Cyc., pp. 397, n. 22; 409, n. 95; 411, n. 1; 412, n. 10. The appellee purchased from the appellant, a dealer, a Chrysler automobile without an express warranty of the quality thereof. The contract of sale was not executory, but was executed by the delivery and acceptance of the automobile at the time the sale was made. The use of the automobile by the appellee disclosed that one of the pistons thereof was defective, necessitating an expenditure by him of one hundred thirteen dollars and thirty-two cents in remedying the defect. This defect in the automobile, we will assume, was latent. The appellee, claiming an implied warranty on the part of the appellant against defects in the automobile, brought this suit to recover from the appellant the money expended by him in remedying the defect therein. He recovered a judgment in the court below, and the appellant has brought the case to this court.

One of the assignments of error is that the court below should have granted the appellant's request for a directed verdict in its favor.

The sale here in question was not of an article by sample or description, without an opportunity of inspection by the buyer until after delivery, as was the case in Commission Co. v.Crook, 87 Miss. 445, 40 So. 20, 1006; Mobile Auto Co. v.Sturges, 107 Miss. 848, 66 So. 205; Lumbermen's Supply Co. v.Poplarville Sawmill Co., 117 Miss. 274, 78 So. 157; Sharp v.Brookhaven Brick Co., 120 Miss. 850, 83 So. 274, but was 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 which character of sale there is no implied warranty of the quality of the article sold, 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 the existence of the defects."Otts v. Alderson, 10 Smedes M. 476; Simmons v. Cutreer, 12 Smedes M. 584; Joslin v. Caughlin, 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.

While it does not appear from the record of the case ofLumbermen's Supply Co. v. Poplarville Sawmill Co., 117 Miss. 274, 78 So. 157, relied on by the appellee, an examination of the original record therein discloses that the belt therein involved was purchased from a manufacturer, to be thereafter manufactured and delivered.

Orgill Brothers Co. v. Everett, 138 Miss. 213,103 So. 82, is not without value here. The sale there, though for future delivery, was, as here, of an article by its well-established trade-name. I Williston on Sales (2 Ed.), sections 236 and 237.

It follows from the foregoing facts that the court below should have directed a verdict for the appellant.

Reversed, and judgment here for the appellant.

Reversed.