Manufacturing Co. v. . Davis , 147 N.C. 267 ( 1908 )

This action was begun before a justice of the peace to recover the value of goods sold. The defendant sets up orally a counterclaim, or payment, as follows, which presents the only question before us: "The defendant denied that he owed the plaintiff anything and pleaded payment in full of all accounts, and set up as a reason, among other things, that the goods for which the account was made was, in part, `Buchu Tonic,' and that at the time he purchased it from the plaintiff the plaintiff's salesman, R. D. Guy, had represented the said `Buchu Tonic' to the defendant as nonalcoholic and not subject to any privilege or license tax of any kind, either Federal or State, and guaranteed the defendant when he purchased the said `Buchu Tonic' of the said salesman that if defendant should ever be required to pay any taxes of any kind for the privilege of selling the same in his store at South Rocky Mount the plaintiff company would make good to the defendant any such license tax paid by him; that after having sold at retail the said `Buchu Tonic,' relying upon the representations and warranties of the said Guy. general salesman for the said company, he had been called (269) upon and required to pay a Federal license tax of $37.50 because of the fact that the said `Buchu Tonic' was a beverage and highly intoxicating and contained about 32 per cent alchohol [alcohol]. The defendant contends that he is entitled to a credit in this transaction against the account of plaintiff for the $37.50 paid as a Federal license tax, and that he, upon being required to pay such tax, returned to the plaintiff all the `Buchu Tonic' which he had on hand, deducted the $37.50 and sent the plaintiff a check for the excess of the account over and above the $37.50 and demanded that he be credited with the $37.50."

On the trial in the Superior Court the defendant's testimony was to said purport. Mr. W. M. Allen, the pure food chemist for the State, testified that he had analyzed the "Buchu Tonic" manufactured by plaintiffs, on several occasions; that it usually ran about 32 per cent alcohol, was highly intoxicating, and that a license tax was collectible on beverages containing one-half of 1 per cent alcohol or upwards.

At the close of the evidence the court directed a verdict in favor of the plaintiff for $37.50. As this is equivalent to a nonsuit against the defendant upon his counterclaim, it is irrelevant to consider the evidence in reply introduced by the plaintiff. There was no controversy that the defendant owed plaintiff a balance of $37.50 unless he were entitled to this counterclaim.

The defendant was entitled to have his counterclaim submitted to the jury, and if the facts were found in accordance with his testimony it was a valid counterclaim.

1. There was the express warranty of the plaintiff company through its agent to sell the goods. "As a general rule an agent authorized to sell property, in the absence of express limitation of his powers, is authorized to bind his principal by warranty." 30 A. E., 164. "An agent authorized to sell is authorized to make a warranty." Alpha Mills v.Engine Co., 116 N.C. 802; Davis v. Burnett, 49 N.C. 72; Hunterv. Jameson, 28 N.C. 252. Even though such agent exceeds (270) his authority, he binds his principal. Lane v. Dudley, 6 N.C. 119.

2. There was an implied warranty arising because the manufacturer of the article knew that it was alcoholic and subject to tax, and because also this was a latent quality which the defendant could not have detected by ordinary observation. Without reference to any authority in the agent to make an express warranty, the manufacturer in selling through Guy warranted against latent defects, that the aticle [article] is merchantable and can be lawfully sold by the purchaser if bought for resale. McQuaid v. Ross, 22 L.R.A., note at p. 190 et seq.; Bierman v. Mills Co., 37 L.R.A., 800.

The plaintiff would be responsible for such damages as were the natural and direct consequence of the breach of such warranty. And what could be more direct than the license tax required by the Government for the shortest period for which license is issued to sell said alcoholic beverage?

3. The plaintiff company is liable for the fraudulent representations of its salesman and agent which were made to defendant to induce the trade and acted upon by defendant to his injury. This would be so whether the agency of Guy were general or special. Hunter v. Matthias,90 N.C. 105; Peebles v. Patapsco Co., 77 N.C. 233; 1 A. E. Enc. (2 Ed.), 1143. The president of the company testified that when the sale was reported he knew where defendant was and engaged in what business, and he must have known that a general merchant could not sell "highly intoxicating liquor, running usually 32 per cent alchohol [alcohol]" (for this evidence of the State chemist must be taken as true on the nonsuit), and subsequently thereto he shipped the "Buchu Tonic" to the defendant. The company therefore assumed full responsibility for the act of its agent, for the knowledge of the agent that the defendant bought (271) and was induced to buy by his representations and promise that the company would pay the license tax if liability therefore was incurred was the knowledge of the company, and in its subsequent shipment it was fixed with such knowledge, even though it had not authorized the express warranty. Lane v. Dudley, 6 N.C. 119.

Error.

Cited: Unitype Co. v. Ashcraft, 155 N.C. 69; Briggs v. Ins. Co., ib., 76; Machine Co. v. McKay, 161 N.C. 588; Grocery Co. v. Vernoy, 167 N.C. 428.