The questions involved in this case we regard of sufficient importance to warrant an explanation of the reasons for our dissent.
One of the grounds assigned as error by the plaintiff in error is that the court below committed material error in instructing that the burden of proof was on the defendant below and plaintiff in error in this appeal, under the allegations of his answer. This is an action by the seller for damages for a breach of contract of sale and refusal, by the buyer, to accept goods sold, to wit, something over 4,000 bushels of blue grass seed. This seed was produced by the seller, and at the time of sale was stored in a couple of bins on the defendant in error's farm. The defendant in error alleged that the seed was sold to the plaintiff in error after inspection and acceptance by the plaintiff in error.
Upon the question of where rests the burden of proof, it becomes necessary to view the terms of the contract of sale as set forth in the answer of the defendant below and plaintiff in error herein. The plaintiff in error states that he undertook to inspect the said seed, but found it impracticable to do so; and then alleges such a condition as to the manner such seed was stored as made it impracticable for him to inspect the seed. The law does not hold the buyer to any extraordinary effort in making an inspection. See paragraph (c) 35 Cyc., pages 411, 412. Also in this connection see Hyatt v. Boyle (Md.) 25 Am. Dec. 276. Upon the proposition that only ordinary inspection is required, see 105 Ga. 384, 31 S.E. 110; 67 *Page 40 N.W. (Minn.) 352; 87 S.W. (Mo. [K. C. Ct. App.]) 602. The second case is a Minnesota case and has a strong analogy to the case at bar, and holds that under the circumstances an inspection was impracticable. The difficulties of inspecting over 4,000 bushels of blue grass seed, stored as the defendant says it was, is, as we view it, manifestly impracticable.
It is laid down as a rule in the sale of personal property that manufacturers and producers selling their goods and products are held to more implied warranties as to the quality and condition of their goods than are other sellers; and one of the implied warranties in the sale of seed, by the producer, is that such seed is free from foreign matter. See 35 Cyc., page 409, par. 9. One of the allegations of the plaintiff in error was that the seed purchased was not clean and that the cleaning of the same would reduce the quantity from 50 to 30 per cent.
It is true that where the buyer inspects, he waives implied warranties, except as to latent defects, but if an attempted inspection is made and is what is contemplated in law as impracticable, then there would be no waiver of implied warranties.
We contend that the defense, set up by the plaintiff in error, is not an affirmative defense and such as shifts the burden upon the one affirming it until the plaintiff has first proved his theory of the contract, whereupon the burden shifts to the one who affirms the contract to be different; and if he produces evidence of equal weight with that of the first prover, he should win; that is, if his proof of his theory of the contract is sufficient to counter-balance any preponderance in favor of plaintiff's theory of the contract, defendant is entitled to the verdict. In other words, the plaintiff must prove his case by a preponderance of all the evidence.
The allegations of the plaintiff in error's answer do not show a collateral or independent contract, and hence not a special warranty, but it is a part of and arises out of the main contract. It was not necessary for the defendant to allege his theory of the contract, and, since he saw fit to do so, it was gratuitous and surplusage and he could have made the proof under a general denial.
The following is from Knapp v. Roche, 94 N.Y. 333:
"It is always competent to prove under a general denial any facts tending to controvert the material affirmative allegations of a complaint." Following the rule laid down in Booth v. Powers, 56 N.Y. 33, and Quin v. Lloyd, 41 N.Y. 349.
See 35 Cyc., par. 3, page 374, quoting:
"In cases where the law implies a warranty, a party cannot secure the benefits of an express warranty by the use of words expressly stating the obligations which the law implies without such words."
See, also, Brown v. Baird, 5 Okla. 133; Heath Dry Gas Co. v. Hurd (N.Y.,) 86 N.E. 18; Reed v. Randall, 29 N.Y. 358, 86 Am. Dec. 305; Garlord Manufacturing Co. v. Allen, 53 N.Y. 515 -518.
A reading of these cases shows the principle to be this: That to bind a seller to special warranties or to such warranties as are not implied in law and hence do not arise from the contract of sale itself, there must be a collateral agreement of the seller to the buyer obligating himself under such special warranty to what he would not otherwise be bound in law to do. And when such special warranties are pleaded the burden of proving them, of course, is upon the pleader, their nature being such that they extend over and beyond the main contract.
It should be borne in mind that, the claim of the plaintiff below and defendant in error being unliquidated and based on an unexecuted contract, it was the duty of the defendant in error to plead the contract and that he had delivered the property and of the kind and quality contracted for, or his willingness so to do, and the refusal of the defendant to receive same and his damages resulting from such refusal. It was also necessary for him to make proof of those allegations. See 35 Cyc. 589, under the head of "Burden of Proof," relating to actions by seller against buyer for breach of sale contract. We are unable to see the force of the reasoning that holds that the burden of proof shifts because the defendant in his answer denies the terms of the contract as alleged by the plaintiff and sets up a different contract or a differing material term of said contract.
But, aside from the question as to whether the defendant did or did not set up affirmative matter in his answer, we contend that even if it is held that his allegations do constitute affirmative matter, still that would not relieve the plaintiff of the burden of making his proofs of the necessary allegations of his petition. In the case of Robinson et al. v. Peru Plow Wheel Co., 1 Okla. 140, we find the following:
"It is a well-settled rule of Code pleading that the defendant under the general denial may controvert, by evidence, every fact which the plaintiff is bound to prove in order to recover in the action."
The following is from vol. 5, Am. Eng. Encyc. of Law, page 27: *Page 41
"But where, under special rules of pleading, a defendant is allowed to answer, setting up affirmative defenses in addition to a general denial of the plaintiffs allegations, this is held not an admission of the plaintiff's claim, and hence does not relieve the plaintiff of the burden of establishing a case which he assumed at the beginning."
In addition to the above assignment of error the plaintiff in error assigned five other errors. One of which was that the court erred in overruling defendant's demurrer to plaintiff's evidence, and such contention was based upon the fact that the seller failed to comply with the provision as to delivery. Another assignment was that the court committed error in refusing to give four instructions requested by the defendant below, plaintiff in error herein. Another assignment was that the court erred in giving the jury the instructions Nos. 2, 4, 5, 6, 8, 9, 10, 11, 14, and 16. The plaintiff in error based his contention upon the ground that the court, in those instructions, instructed upon all the elements of fraud and deceit and placed the burden upon the defendant to prove same by preponderance of the evidence. Another assignment of error was that the court erred in giving instruction No. 5, covering the question of rescission of contracts. Another assignment of error was in giving to the jury instruction No. 16, which was upon the measure of damages, and which the plaintiff in error contends did not follow the statute. All of the various assignments are presented in the brief of the plaintiff in error, and argued with considerable force, and are supported by citation of authority.
We think that the court committed error upon at least two of the additional assignments.
We think that the question of deceit and fraud is not involved in this case, and that the elaborate instructions of the court upon the various phases of fraud, wherein he told the jury that the burden was on the defendant below, plaintiff in error herein, to establish those elements by preponderance of the proof, should not have been given and that they were confusing and misleading to the jury. It is not necessary for a party, to prove a breach of warranty, to prove the elements of fraud. A warranty may attach without there being any intention to cheat or to defraud. The following quotation is from Woolsey v. Zieglar, 32 Okla. 715, 123 P. 167:
"If, therefore, the defendant made representations to the plaintiff upon which he relied, concerning the quality or character of the cow, intended by him to induce the purchase and which representations were relied upon by plaintiff, such direct and positive affirmations in law constitute a warranty. In 30 Am. Eng. En. L. 136, it is said: 'Any distinct assertion or affirmation as to the quality or character of the thing to be sold, made by the seller during the negotiations for the sale, which it may reasonably be supposed was intended to induce the purchase and was relied on by the purchaser, will be regarded as a warranty unless accompanied by an express statement that it is not intended as such. If the affirmation was made in good faith, it is still a warranty. If made with a knowledge of its falsity, it is none the less a warranty, though it is also a fraud.' * * * In order that a warranty should attach to the language used by defendant, it was not necessary that the seller intended to cheat or defraud the purchaser."
Upon the question raised by the plaintiff in error, as to the instructions given by the court below, upon the measure of damages, the court failed to quote the statutes of Oklahoma upon this phase of the question, which statutes are as follows, being sections of the Revised Laws of Oklahoma, 1910:
Section 2862:
"The detriment caused by the breach of a buyer's agreement to accept and pay for personal property, the title of which is vested in him, is deemed to be the contract price."
Section 2863 is as follows:
"The detriment caused by the breach of a buyer's agreement to accept and pay for personal property, the title of which is not vested in him, is deemed to be:
"First. If the property has been resold, pursuant to section 3850, the excess, if any, of the amount due from the buyer under the contract, over the net proceeds of the resale; or,
"Second. If the property has not been resold in the manner prescribed by section 3850, the excess, if any, of the amount due from the buyer, under the contract over the value to the seller together with the excess, if any, of the expenses properly incurred in carrying the property to market, over those which would have been incurred for the carriage thereof, if the buyer had accepted it."
Section 3850, referred to above, reads as follows:
"One who sells personal property has a special lien thereon, dependent on possession for its price, if it is in his possession, when the price becomes payable; and may enforce his lien in like manner as if the property was pledged to him for the price."
We take this to mean that if the seller sells under this section, he must give the notice required under the provisions as to pledges. Section 4515, chapter on Pledges, reads as follows: *Page 42
"A pledgee must give actual notice to the pledgor of the time and place at which the property pledged will be sold, at such reasonable time before the sale as will enable the pledgor to attend."
We take it that compliance with the above requirements of notice by seller and a sale thereunder becomes conclusive as to the buyer who has breached his contract of sale, and that he has no come-back as against the seller for failure to get reasonable value for the property. See White Walnut Coal Co. v. Crescent Coal Mining Co., 254 Ill. 368, 98 N.E. 669, and given in 42 L. R. A. (N. S.) page 669. See, in connection with the last citation, extensive notes. See, also, case of Dill v. Mumford et al. (Ind.) 49 N.E. 861.
In the first case cited above, in note (B) discussing resales according to statute of Code, page 689, 42 L. R. A. (N. S.), we find the following:
"Where by Code, provision is made for a resale, the price received upon a resale is conclusive, if the sale is made according to the terms of the code" — citing a number of authorities.
In the same note we quote the following:
"But a resale need not be made according to the Code. If, however, it is so made, the price realized therefrom is conclusive as to the value of the property, while if the property is not sold in this manner, the vendor must prove the value thereof" — citing Hughes v. Germain Fruit Co., 106 Cal. 441, 39 P. 853.
From the above it would appear that a sale without statutory notice would place the burden upon the seller to prove that he had received the reasonable value of said property, but we are not deciding that proposition finally.
We think that the court erred in giving the instruction that he did. The instruction given by the court was in words and figures as follows:
"For the breach of an obligation arising from contract, the measure of damages is the amount which will comp nsate the party aggrieved for all the detriment proximately caused thereby or which, in the ordinary course of things, would be likely to result therefrom. No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature or origin. And if you find the issue in this case in favor of the plaintiff and against the defendant, you may award him such damages as you think him entitled to recover against the defendant not to exceed the amount claimed and sued for by the plaintiff in his petition herein, $1,530.49, by reason of the expense that the plaintiff was necessarily put to by way of freight payments and in handling said stripped bluegrass seed caused by the failure of the defendant to comply with his contract in receiving and paying for said seed, and the expense, if any be shown, in storing and holding over said seed until the year 1917, and the loss, if any, sustained by the plaintiff in selling said seed at a price less than that agreed upon to be paid him by the defendant in his contract of purchase from the plaintiff."
We think that the great sin of the above instruction consists in the fact that the court did not anywhere in his instructions define what he meant by the following language, wherein he told the jury that if they found "the issue in this case in favor of the plaintiff and against the defendant." It is uncertain as to what the court meant by the word "issue." If he meant by "issue" that if the jury found that the defendant had breached his contract by failing to pay for the seed, the title of which had been vested in him by delivery pursuant to the contract, or if he meant to tell the jury that if they found that the defendant had breached a contract of sale, without legal cause, of goods not delivered to him, or if delivered to him were repossessed by the plaintiff, then the court was putting an issue to the jury which it was the duty of the court himself to find, and after its determination it was his duty to instruct them on the question of damage under the statute that was applicable. We think that his failure to do this was error and confused and misled the jury. We think, however, that under the facts as shown in the record section 2863 is the statute that applies to the case at bar. We think that there was no delivery of these goods, and even if there was a delivery, they were repossessed by the defendant in error, plaintiff below, and hence that the measure of damage applicable comes under said section 2863. We are borne out in this theory by the case of Dill v. Mumford, heretofore cited, as discussed on page 862.
There is not any dispute as to what the provision of the contract was as to how the goods were to be delivered. Neither is there any dispute as to what was done by the seller and the parties hereto and touching the question of delivery. It was therefore up to the court to determine in whom title lay and in whose possession said property was at the time of the breach and what rule of damages under the statute was applicable.
The following is from Mansur-Tebbetts v. Willet,10 Okla. 383:
"The amount of damages that the plaintiff is entitled to recover is governed by statute, and the parties cannot change the rule by fixing an agreed amount." *Page 43
If the parties cannot by agreement change the rule fixed by statute, neither can the court add to or take from the measure of damages fixed by the statute. The cautious rule for the court below to have pursued was to have given either the specific language of the statute on measure of damages that was applicable or given it in substance. The court did not do this, however, but gave a general instruction some of which was applicable and some of which was not.
It might be contended that the instruction comes within the second subdivision of section 2863. We think said instruction does not come within that subdivision, and is too broad, and permitted of the recovery of items of damage not contemplated by the provisions of said subdivision. It is very doubtful whether said subdivision would cover the item of costs of reshipment, the item of cost of storage, and the item of cost of insurance, and the item of unloading and reloading.
We therefore conclude that this cause should be reversed and remanded for a new trial.