October 10, 1921. The opinion of the Court was delivered by Action for $3,000 damages for alleged breach of a contract for, and for fraud and misrepresentation in, the sale of a tractor for the defendant to the plaintiff on July 25, 1918. The case was tried at February term. 1920, before Judge McIver and a jury, at Columbia. Verdict for defendant. Plaintiff appeals. *Page 399
The complaint states two causes of action, and the "case" contains the foregoing statement that the action was for (1) fraud and misrepresentation, and (2) breach of contract of sale, though in neither alleged cause of action do we find the necessary allegations of either fraud or misrepresentations. In the first cause of action it is alleged that the defendants "represented that they would furnish and sell to the plaintiff a machine" of certain described character, and that after the machine had been furnished it was ascertained that those representations were untrue for certain specified reasons. A representation that the seller would do a certain thing is nothing more than a promise, not the representation of a fact as existing; and the failure to make good that representation is nothing more than the breach of a promise. There is therefore practically no difference between the two alleged causes of action; the sole grievance of the plaintiff being a breach of the contract of sale in the warranty of the machine. There is no hint in the complaint of fraud upon the part of the defendant, unless it be in reliance upon the allegation that the defendant promised to furnish a machine of certain character and did not do so, which is entirely insufficient to raise the issue of fraud. The charge of fraud was therefore entirely too favorable to the plaintiff in submitting this issue to the jury.
The main issue is whether the contract of sale contains an express warranty which excludes all other warranties, express or implied, and by terms of which the plaintiff is bound.
The contract of sale is evidenced by the following described instrument of writing: On July 25, 1918, the plaintiff signed a written order, directed to Reid Hardware Company, a corporation at Lincolnton, N.C., of which the defendant is the successor, for a certain tractor and plow, the price of which was $1,653.30, payable cash on *Page 400 delivery, together with freight from the factory at Charles City, Iowa, "subject to the warranty of the manufacturer as below." This warranty was that the machine was "well made, of good material and workmanship," guaranteed to operate with kerosene oil, and was accompanied by the following conditions:
The batteries, spark plugs and other electrical equipment were excepted from all warranty; new parts would be furnished free of charge by the manufacturer, if the breaks in the machinery should be caused by faulty material or workmanship and the broken parts be sent to the factory for inspection and proof of defect within one year from date of delivery, the purchaser paying freight both ways. "The purchaser agrees that retention or possession for more than six days after first day's use of said machinery purchased herein shall be construed as conclusive evidence that the warranty has been fulfilled, and that the manufacturer is hereby released from all further warranty, except as to defective parts."
The machine was duly delivered to the plaintiff, who paid the purchase price. It was set up for work on October 16th, a representative of the defendant assisting the plaintiff, and for a day himself operating the machine. At first, the plaintiff testified, "it operated very well"; "it operated as long as the defendant's representative was in charge, as all right as long as Mullarky was on it." Later on trouble developed and plaintiff wired defendant to send a man to straighten it out. Defendant wrote that unless plaintiff wired to the contrary they would have a man there on November 9th, but that, if the trouble did not appear to be mechanical, the plaintiff would have to bear the expense of the man. He wired not to send the expert, that the machine was then operating all right.
The troubles of the plaintiff with the machine increased until finally he abandoned it as utterly worthless, testifying *Page 401 to and offering other testimony to prove various defects in material and workmanship, which are enumerated and described in detail.
The testimony for the defendant tended to show that the machine was a new one, in perfect condition, and that the troubles of the plaintiff with it were due to faulty operation.
The Circuit Judge submitted all of the issues raised in the pleadings in a fair, clear, and able charge, which was indeed more favorable to the plaintiff than he was entitled to, and the jury found a verdict in favor of the defendant.
The following is an epitome of the assignment of error:
(1) Exclusion of the testimony of the witnesses Langford, Taylor, and Dunning to prove that machines of the same make operated by them respectively were impracticable, incapable of, and not adapted to, the purposes of a farm tractor. Exceptions 1, 2, and 3.
(2) Error in charging that one who knowingly buys a defective or unsound commodity cannot complain. Exception 4.
(3) Error in charging the law as to puffing statements by a seller. Exception 6.
(4) Error in charging on the facts. Exception 7.
(5) Error in charging that the plaintiff was bound by the provision in the warranty relating to the retaining of possession for six days constituting a release of the warranty. Exceptions 5 and 8.
(6) Error in refusing to give the plaintiff's fifth request. Exception 9.
(7) Error in refusing motion for a new trial. Exception 10. *Page 402
The exceptions will be reported in full.
If the testimony had shown that the machine operated by these witnesses had been practically the same as the machine sold to the plaintiff, and the transaction had been attacked for fraud, it would possibly have been admissible as evidence of guilty knowledge and fraudulent intent; but neither of these elements appearing, the testimony was properly excluded for the reason assigned by the Circuit Judge, which will be reported. KauffmanMilling Co. v. Stuckey, 37 S.C. 7, 16 S.E. 192; SharplesSeparator Co. v. Skinner, 251 Fed. 25, 163 C.C.A. 275;Lynn v. Thompson, 17 S.C. 129; Hand v. Power Co.,90 S.C. 271, 73 S.E. 187; Southern Ry. Co. v. Howell,79 S.C. 281, 288; 60 S.E. 677; Puryear v. Ould,81 S.C. 456, 459, 62 S.E. 863; Gilliam v. So. Ry. Co.,108 S.C. 195, 198, 93 S.E. 865; Rookard v. Railway Co.,84 S.C. 190, 65 S.E. 1047, 27 L.R.A. (N.S.) 435, 137 Am. St. Rep. 839; Osborne Co. v. Simmerson,73 Iowa, 509, 35 N.W. 615; Murray v. Brooks, 41 Iowa, 45;Byrne v. Elfreth, 41 Pa. Super. 572; Osborne Co.v. Bell, 62 Mich. 214, 28 N.W. 841; Second NationalBank v. Wheeler, 75 Mich. 546, 42 N.W. 963; Watkinsv. Phelps, 165 Mich. 180, 130 N.W. 618; Fox v. HarvesterWorks, 83 Cal. 333, 23 P. 295; Illinois SuretyCo. v. Frankfort Heating Co., 178 Ind. 208,97 N.E. 158; Watson v. Bigelow Co., 77 Conn. 124, 58 A. 741;Brunnett v. Nemo Heater Co., 177 Mass. 480, 59 N.E. 58.
2. There was some testimony to the effect that the plaintiff made a careful examination of the machine before buying, and he testified that the defects of which he now complains were plainly discernible. The charge was relevant to the case.
3. The Court merely told the jury that, when statements by the vendor only amount to expressions of opinion in the praise of his goods, such statements *Page 403 do not constitute fraud; and then he followed this proposition with the further statement that "any distinct affirmation as to the quality or condition of a thing sold by the owner *** is an express warranty." We fail to see how the jury could possibly have been confused by the portion of the charge referred to.
4. The charge was clear and fair to the plaintiff, and correctly states the law. It was in no sense a charge upon the facts.
5. This raises the main issue in the case. The contract shows that the machine was sold "subject to the warranty of the manufacturer as below." That warranty has been fully explained above. The plaintiff contends that it was supplementary to, and not exclusive of, the implied warranty of the dealer, who bought from the manufacturer outright.
It will be observed that the instrument in question is entitled "Customer's Order," and is addressed to the defendant, "Reid Hdwe. Co., Lincolnton, N.C.," and begins, "Please enter my order for one new Hart-Parr tractor." It is signed by the plaintiff, and below the plaintiff's signature is written "Accepted July 25, 1918. Reid Hdwe. Co., Dealer." The plaintiff himself testified that on July 25, 1918, "I entered into a contract with Reid Hardware Company on that date for what is called a New Hart-Parr tractor through Mr. H.E. Reid," etc., and he himself introduced the contract in evidence. The testimony is uncontradicted, therefore, that the contract was between the plaintiff and the Reid Hardware Company. In the contract the purchaser (plaintiff) says: "I agree to receive the above machinery, * * * subject to the warranty of the manufacturer, as below." Since his contract, by his own testimony, was with the Reid Hardware Company, the dealer, and not with the manufacturer, his agreement to receive the machinery "subject to the *Page 404 warranty of the manufacturer" was meaningless, unless, as the Court held, the dealer had adopted the warranty as its own and made it a part of the contract between the parties. The defendant was not obliged to give any warranty at all, if it chose to so contract and the plaintiff agreed. Not being so obliged, it had the right to contract for a limited warranty and, in making the warranty of the manufacturer the warranty of its contract with the plaintiff, it did no more than it had the right to do. An express warranty excludes the implied warranty of soundness or adaptability.
Under the cases of Threshing Co. v. Dyches, 108 S.C. 411,94 S.E. 1051, and Westinghouse v. Glencoe, 106 S.C. 133,90 S.E. 526, the Circuit Judge was entirely correct in charging as complained of in Exception 8.
6. This request was not read to the jury, and not charged. At the conclusion of the charge the Circuit Judge stated, "Now, gentlemen, are there any matters that I have overlooked, and any matters that you want to call specially to my attention?" to which counsel for the plaintiff responded, "I think your Honor has covered the ground." If he deemed the request of sufficient importance, he should then have called the attention of the Court to the omission.
7. The exception to refusal of motion for new trial is disposed of by the foregoing conclusions.
The judgment of this Court is that the judgment of the Circuit Court be affirmed.