Schley v. Zalis Ex Rel. Krelow

Shehan, J., delivered the opinion of the Court. This appeal is from a judgment of the Court of Common Pleas of Baltimore City. Joe Zalis for the use of Melvern R. Krelow, appellee, sued Samuel R. Schley, trading as Schley Bros., the appellant. These parties were traders in vegetables and farm produce.

Joe Zalis negotiated with Phil Prince, acting for Samuel R. Sdhley, for the purchase of 300 lugs of green tomatoes. While ³³⁸ these negotiations were in progress, a question arose as to whether the tomatoes had been frozen, which, if true, would destroy their commercial value. Zalis was concerned about the condition of these vegetables and declined to purchase them without assurances that they were not frozen. Phil Prince, the salesman of Schley Bros., who had been, called as a witness for the plaintiff, testified that “Mr. Zalis asked me if the tomatoes were frozen and I said, ‘No, they aren’t frozen because they don’t look frozen to me,’ and he said, T will like to buy them provided you tell me they aren’t frozen.’ And I said, ‘Joe, look again.

I am positive they aren’t.’ And he opened up a couple more boxes and green tomatoes- are hard to tell that they are frozen, and Joe bought three hundred boxes. He was afraid to buy the whole lot.” This evidence was supplemented by the testimony of Joe Zalis, Avho stated, without contradiction, that “Mr. Prince promised me they were not frozen * * *. If they are frozen I will give you your money back * * *. Mr. Prince says, T guarantee they aren’t frozen.’ ” The legal effect of this testimony is the question here presented.

If it constitutes a warranty or guaranty, and there is evidence of both, the doctrine of caveat emptor, as urged by the appellant, does not apply, even though samples of the tomatoes were inspected by the appellee before the alleged purchase. The evidence clearly shows that the tomatoes had been frozen before the sale and were of little or no value. If the above testimony constitutes evidence of a warranty, either express or implied, then the trial court committed no error in refusing to grant the prayers of the defendant to withdraw the case from the consideration of the jury. The doctrine is stated in Corpus Juris, vol. 55, folio 652, in this language: Warranty is a statement or representation made by the the seller of goods, contemporaneously with and as a part of the contract of sale, although collateral to the express object of it, by reference to the character, quality or title of the goods, and;' by which he promises or undertakes to insure that certain facts are or shall be as he ³³⁹ then represents them.

A warranty is express when the seller makes an affirmation with respect to the article to be sold, pending the treaty of sale, upon which it is intended that the buyer shall rely in making the purchase.” For the proper construction of the testimony, we must first examine the Sales Act, Code, art. 83, sec. 33, which provides that, “Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller’s opinion only shall be construed as a warranty.” Generally speaking, this section is declaratory of a principle of the common law as recognized by this court. Rittenhouse, Winterson Auto Co. v. Kissner, 129 Md. 102,