This appeal is from an order granting motion for a new trial, the plaintiffs (appellants) having been awarded verdict and judgment against the defendant, appellee. The subject of the special contract involved, the breach of which is declared on, was oranges and grapefruit that were grown or to be grown in the state of Florida. The plaintiff firm, domiciled in that state, the sellers, were dealers in, or producers of, such fruit. The defendant corporation, the buyer, was a wholesale dealer in fruits, with its place of business in Montgomery, Ala. The places of delivery of ordered quantities (of the larger quantity engaged) were "loading stations in Florida," the effected deliveries to the carriers — in response to shipping orders communicated during the stipulated season by the buyer — being in legal effect deliveries to the buyer, the defendant. Capehart v. Furman Imp. Co., 103 Ala. 671, 674, 675,16 So. 627, 49 Am. St. Rep. 60, among others. The deliveries *Page 575 of a part of the fruit and receipt thereof by the buyer were admitted. There was evidence going to show that the buyer (defendant) advised the sellers (plaintiffs) of its refusal to receive the remainder of the fruit then undelivered, with directions to the sellers to discontinue shipments under the contract. It is averred in the complaint, in assertion of the damages claimed, as follows:
"That defendant has failed and refused to pay plaintiffs a balance of $3,981.65 due on the purchase price of the said fruit actually delivered, and has failed and refused to pay plaintiffs the damages sustained by plaintiffs by reason of defendant's refusal to take and pay for the remainder of said fruit contracted for, the said damages for defendant's failure and refusal to take said remainder amounting to $5,056.02."
In addition to general traverse of the complaint the defendant's special pleas 8, 9, 10, and 11 defined the issues in the cause. The report of the appeal will reproduce these pleas. Their sufficiency does not appear to have been tested by demurrer. The first two (8 and 9) are avowedly pleas of accord and satisfaction. Plea 10 proceeds upon the theory of a breach in respect of plaintiffs' contractual obligation to deliver merchantable fruit, having knowledge of defendant's purpose to buy and ship with a view to its resale to its trade. This plea might well have more distinctly defined the obligation averred, viz. whether it was expressly assumed, or whether it resulted from implication, an implied warranty (McCaa v. Elam, 114 Ala. 74,86, 21 So. 479, 62 Am. St. Rep. 88), and, also, if the pleader's object was to assert a breach elsewhere than at the place of delivery alleged in the complaint, viz. "loading stations in Florida," this plea's structure might well have precluded possible doubt in this particular.
Plea 11 is of the like general character as plea 10, embracing, however, additional allegations of material import.
In view of our conclusion that the action of the court in granting a new trial cannot be disturbed, for the reason to be stated, it may further be observed that since the complaint declared upon separable breaches by defendant, viz. (a) for failure to pay for the fruit actually delivered, and (b) for failure or refusal to accept future deliveries in averred fulfillment of the contract, the special matters of set-off and recoupment should be distinctly referred in the averments of the pleas to the appropriate assignment of separate breach. This would materially contribute to a satisfactory definition of the issues that are properly litigable between these parties.
The plaintiffs (sellers) impliedly warranted that at the time of contemplated delivery "at loading stations in Florida" of the perishable commodity contracted for it would be properly packed, would be fit for shipment and merchantable, reasonably fit for the purpose of resale by defendant in the ordinary course of its business, a purpose, including shipment, of which the plaintiffs were aware at all stages; the defendant (buyer) having no opportunity to inspect the fruit until its arrival at directed destination on the lines of the carriers, and relying upon the judgment and skill of the sellers to supply the commodity engaged. Gachet v. Warren, 72 Ala. 288, 292; Frith v. Hollan, 133 Ala. 583, 32 So. 494, 91 Am. St. Rep. 54; Baer v. Mobile Mfg. Co., 159 Ala. 491, 498, 49 So. 92; 2 Mechem on Sales, §§ 1265, 1298, and notes; Benjamin on Sales (3d. Am. Ed.) § 659; Freeman's Annotation, 102 Am. St. Rep. pp. 611, 612; 35 Cyc. p. 399; 24 R. C. L. p. 191; 15 Am. Eng. Ency. Law, pp. 1229, 1930.
In the absence of evidence going to show that the parties contemplated the assumption by the seller of the risk of the commodity's deterioration in transit (beyond the place of stipulated delivery) otherwise than in consequence of or resulting from improper packing or unfitness at the place of delivery for shipment, there is no implied warranty binding the seller to assure the buyer against deterioration of the commodity pending its transportation from the place of stipulated delivery to the place whereat its resale or use is to be accomplished by the buyer. 2 Mechem on Sales, supra; Benj. on Sales, supra; 24 R. C. L. supra; Freeman's Annotation, supra. The time, the place at which the satisfaction by the seller of the enumerated implied warranties, is the time and place the commodity leaves the possession of the seller. Benj. on Sales, § 659; 2 Mechem on Sales, § 1298; 24 R. C. L. p. 191. Evidence of the subsequent appearing or developing condition of the perishable commodity is, of course, serviceable to show what the condition was at the time and place the possession passed from the seller, and hence to contribute to the solution of the issue whether the warranties enumerated were in fact satisfied.
In Ashford v. Shrader Co., 167 N.C. 45, 83 S.E. 29, the action was by the buyer against the seller; and it is not clear from the opinion or the report of the case whether the place of delivery of the oranges to the buyer was some point in Florida or at Newbern, North Carolina, a factor of material importance in that case as in this. From the trial court's instruction of the jury it would appear that the Florida dealer engaged to deliver the oranges in North Carolina, thereby binding the seller through an implied warranty of merchantability to be ascertained at Newbern, N.C., quite different in this particular from the case here under review, where the place of delivery was in Florida for shipment elsewhere. *Page 576
The unqualified approval given the instruction refused defendant (buyer) in Truschel v. Dean, 77 Ark. 546,92 S.W. 781, concluded the seller (plaintiff) by an implied warranty so extensive as to bind the seller, who was to deliver grapes, f. o. b. Portland, N.Y., for shipment to defendant at Ft. Smith, Ark., to the "merchantable condition" of the grapes "upon arrival at Ft. Smith, Ark." This declaration of implied obligation goes beyond the sounder doctrine hereinabove stated; and hence that decision is not acceptable. As we read them, the authorities cited in the Truschel-Dean Case do not sustain the unqualified approval the mentioned (refused) instruction was accorded, and upon which the reversal was rested.
The recent pronouncement of this court in Philip Olim Co. v. Watson, 204 Ala. 179, 85 So. 460, affirms nothing to the contrary of the doctrine we approved. Recourse to the original transcript confirms the conclusion there given effect. It is pointed out in the opinion that special plea 2 was not tested by demurrer. Its averments were as follows:
"That this action is founded on a contract for the sale of 400 barrels of apples sold by plaintiff to defendant by correspondence and sample. That there was an implied contract that the apples when delivered should be sound and merchantableand of the quality to keep a reasonable time until disposed ofby defendant to the retail trade. That plaintiff disregarded its duty in this behalf, and attempted to deliver apples that were not sound and merchantable, which defendants declined to accept." (Italics supplied.)
The court found in the evidence support for the italicized feature of the quoted plea. In the concrete that case and this may be also otherwise discriminated.
It is evident, we think, that the defendant was not entitled to the general affirmative charge on the theory that there was no evidence whatsoever of a breach or breaches of the contract, or that the breaches were waived by the plaintiffs.
Upon the issue whether the fruit actually shipped was effected with inherent, yet latent, later developing defect or disease, the evidence was in conflict. The ruling granting the motion for new trial may be referred to the ground presenting for review by the trial court the question whether the evidence was sufficient to justify the verdict in that material respect. On review here of the action of the trial court in such circumstances the rule is that the action taken will not be disturbed on appeal unless the effect of the whole evidence is manifestly and palpably in favor of the verdict. Woodroof v. Hall, 157 Ala. 416, 47 So. 570, among others. In view of the retrial likely to occur, we forbear further comment other than to say that, without intimating an opinion on the relative weight of the conflicting evidence bearing upon this issue, it cannot be affirmed on this appeal that the evidence was so palpably in favor of the verdict as to forbid the trial court's annulling the verdict in response to the motion.
For the reason stated, the judgment granting the new trial is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.