Tabor v. Peters.

57 Miss. 759; s. c., 34 Am. Rep. 494; P., W. and B. R. Co. v. Quigley, 21 How. 202. We feel constrained upon this point to depart from the decision first referred to in Owsley v. M. and W. P. R. Co., 37 Ala. 560. This conclusion is decisive of the case, as now presented; and we purposely abstain from any discussion of the facts and circumstances which must concur to fix upon a corporation liability for tortious acts of its servants or agents.

The Circuit Court erred in sustaining the demurrers to the complaint upon the specific ground that an action on the case for malicious prosecution will not lie against a corporation.

On the sale of a patent right to a churn, manufactured by the seller, he exhibited a sample of it, stating that it would produce butter in from three to five minutes; could be operated by a child five or six years old; that it was made of juniper wood, and that the dasher was nickel-plated; whereas in fact it would not produce butter in less than ten minutes, was too heavy for children to work it, was made of white pine and painted, and the dasher was of polished iron. Held, a valid warranty, and that the court could not pronounce the discrepancies so plain and obvious as to avoid it.

A

CTION on notes. The opinion states the case. had judgment below.

D. T. Castleberry, for appellant.

Bowdon & Knox, contra.

The defendant

SOMERVILLE, J. The suit is on certain promissory notes, given by defendants to plaintiff for an interest in a patent right to what was alleged to be an improved churn, the territory included in the purchase being confined to the county of St. Clair, in this State. The defense set up is based on certain statements made by the plaintiff, as inducements to the purchase, relating to the qualities and capacities of the patented article, which are alleged to have

Tabor v. Peters.

been false, and fraudulently made; and want of consideration and failure of consideration are also pleaded.

It is shown that the plaintiff, Tabor, was himself engaged in the manufacture of these churns, and at the time of the negotiation he made this fact known to the defendants, and exhibited to them a sample or specimen of his patented invention. The representations

alleged to have been made by him at the time are, that the churn would produce butter in from three to five minutes; that it was made of juniper wood; that the plunger-rod was nickel-plated, and would not corrode or discolor the milk and butter; and that a child, five or six years old, could operate it with ease. The evidence tended to show that these statements were untrue that it would not produce butter in less than ten minutes; that the body of the churn was made of white pine, and the top of poplar wood; that it was too heavy for use by women or children, requiring the strength of a man to operate it; and that the rod was not nickel-plated, but was made of polished iron, and would corrode or discolor the milk and butter, to such extent as to render the invention entirely worthless. The sample churn exhibited by plaintiff was painted on the outside, and was inspected by one of the defendants.

[Omitting minor questions.]

The settled rule as to the nature of the representations which will avoid a contract of sale is well stated in the case of Sledge v. Scott, 56 Ala. 202. The rule as there announced is, that "a misrepresentation by a vendor of chattels, of a material fact, made at the time of, or pending the negotiation for the sale, on which the purchaser has the right to rely, and in fact relies, is a fraud, furnishing a cause of action to the purchaser, or a ground of defense to an action for the purchase-money. Benj. Sales (3d ed.), § 454; Story Sales, § 165.

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No particular words are essential to constitute a warranty. As a general rule, there must be the affirmation of some fact, as distinguished from the mere expression of an opinion. Words of praise or commendation by a vendor, such as are ordinarily used by honest tradesmen, as arts of persuasion to induce purchase, are deemed insufficient. They fall within the maxim, simplex commendatio non obligat, and however extravagant, they do not in law impose a liability, either in the nature of contract or of tort. Farrow v. Andrews, 69 Ala. 96; 1 Pars. Cont. *579-581; 2 Brick. Dig., p. 408, 88 75-78. A false statement, however, when deliberately made,

Tabor v. Peters.

although in the shape of an opinion, as to the quality, quantity or condition of the article sold, may often be construed to be a warranty, if it be so intended and understood by the parties. 1 WhartCont., § 259; Barnett v. Stanton, 2 Ala. 181. In Wilcox v. Henderson, 64 Ala. 535, it was said that "to constitute expressed opinion a ground, or instrument of fraud, it must be knowingly false, made with intent to deceive, and must be accepted and relied on as true.” In determining the question of intention, which is generally one for the jury, at least in cases of doubt, a decisive test is, as suggested by Mr. Benjamin, "whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment, upon a matter of which the vendor has no special knowledge and on which the buyer may be expected also to have an opinion, and to exercise a judgment. In the former case there is a warranty, in the latter not." Benj. Sales (3d ed.), § 613; Kenner v. Harding, 85 Ill. 264; s. c., 28 Am. Rep. 615. And "what would be matter of opinion," says Mr. Wharton, "when spoken by a nonspecialist, may be a matter of fact when spoken by a specialist." 1 Whart. Cont., §§ 259-260.

There are many adjudged cases illustrating these principles in their application to the sale of patented rights and inventions. It has been said generally, that statements made by vendors, as to the utility of such patents, are considered matters of opinion, while those having reference to their practical capacity and characteristics are deemed matters of fact. 1 Whart. Cont., § 259. A proposition which cannot be taken to be universally accurate, many cases being dependent upon their own peculiar surroundings. It has been held in an English case that a statement to a farmer by a vendor, who was the patentee's agent for the sale of an agricultural machine, known as "Wood's Patent Reaper," that it would "cut wheat, barley, etc., efficiently," was not a warranty but a recommendation. Chalmers v. Harding,

17 L. T. (N. S.) 571. In Elkins v. Kenyon, 34 Wis. 93, the. assertion by the vendor of a patented machine for elevating hay, that it would work "in all kinds of hay, grain, straw and other grass," and was "in all respects fit for the use intended," was: decided to be a warranty. In Nelson v. Wood, 62 Ala. 175, where the subject of sale was the right to use a patented process for tanning leather, representations made by the vendor as to the time it would take, and the quality of the leather produced, were held

Tabor v. Peters.

sufficient to vitiate the contract of sale on proof being made that they were false, and that the process was of no value.

The case of Bigler v. Thickinger, 55 Penn. St. 279, was strikingly similar to the one in hand, being a suit on a note given for a patent right for a churn. The representation made was that it would make butter in from seven to ten minutes. One of the defenses set up being misrepresentation and fraud, the court. said: "The representation of what the churn would do proved utterly false; and although this was not a warranty in itself, yet it was for the jury to say, under all the circumstances, whether it was not a false representation knowingly and fraudulently made. The parties were not in a position of perfect equality to judge of the article, and hence the representation of the seller, if falsely made, would avoid the contract. The jury found the falsity of the representations, and the worthlessness of the article, and this. established a good defense.

In Rose v. Harley, 39 Ind. 77, a false assertion made by the vendor of a patent as to what improvements were covered by it, was held to vitiate the sale of an interest in the patent right. So in Allen v. Hart, 72 Ill. 104, false assertions as to the value of the territory covered by the patent, to be included in the purchase, based upon the statement of matters of fact within the knowledge of the vendor and not of the purchaser, were decided to be a good ground of action to recover back the consideration paid for an interest in the patent right.

The charges given by the court below, in reference to the representations made by the plaintiff Tabor, were correct, being in full accord with the principles above stated.

It is further contended however that the defendant cannot set up fraud as a defense to this action, based on the falsity of these: representations, because he inspected the specimen or sample churn exhibited to him by plaintiff, and it corresponded with those manufactured by the vendor, and subsequently ordered by the defendant for sale in his purchased territory.

The rule is generally stated to be that neither a general nor an implied warranty will cover defects, which being external and visible, are "plain and obvious to the purchaser" upon mere inspection with the eye. Livingston v. Arrington, 28 Ala. 424; Benj. Sales (3d ed.), § 617; 1 Whart. Cont., § 225. It is said by Mr. Parsons that "if there be an express warranty, an examination of

samples is no waiver of the warranty; nor is any inquiry or examination into the character or quality of the things sold; for a man has a right to protect himself by such inquiry, and also by a warranty." 1 Par. Cont. (6th ed.) *586. Mr. Wharton observes that warranties may be found to extend to patent defects, unless the statement made is "glaringly inconsistent" with the visible condition of things. 1 Whart. Cont., § 245. A warranty that a horse has both eyes, when he is manifestly blind, would not, it is apprehended, impose any liability. 1 Add. Cont., § 628. And as held in an old case, "if one sells purple to another and saith to him, this is scarlet,' the warranty is to no purpose." It was said that to "warrant a thing that may be perceived at sight is not good." Baily v. Merrell, 3 Bulstr. 95; Benj. Sales (3d ed.), § 617. But as observed by Chancellor Kent, "if the vendor says or does any thing whatever with an intention to divert the eye or obscure the observation of the buyer, even in relation to open defects, he would be guilty of an act of fraud." 2 Kent. Com. *484-85.

It does not appear that the defects in the patented churn shown to the defendant by plaintiff at the time of their negotiation were of this obvious character. The churn was painted on the outside, thus concealing the nature of the material of which it was constructed; and we cannot say, without proof, that the appearance of white pine and juniper wood is so different as to be glaringly obvious to the eye when inspected under such circumstances. The same is true as to the handle or rod, and the representations which were made touching it.

The parties to the sale moreover were not in a condition of relative equality touching their knowledge or ability to judge accurately of the thing sold. The plaintiff was a specialist or expert, being a manufacturer of such articles; and was therefore possessed of a knowledge of facts in reference to their nature, capacity and structure, of which the defendant was both actually and professedly ignorant. In such cases the misrepresentations of the seller will the more readily avoid the contract, and many statements when made by him will be deemed affirmations in the nature of fact, although they might be construed conjectural, or matters of opinion, had they emanated from one not enjoying such opportunities of information. Such is the rule at least when such assertions are shown to have been falsely made, and were material inducements to the contract. Bigler v. Flickinger, 55 Penn. St. 279-283; 1 Pars. Cont. *580; 1 Whart. Cont., §§ 259-60.