
    F. A. PIPER CO. v. OPPENHEIMER et al.
    (Court of Civil Appeals of Texas. San Antonio.
    June 11, 1913.
    Rehearing Denied June 28, 1913.)
    1. Sales (§ 411) — Actions tor Breach — Petition — Construction.-
    Where the petition, in an action for damages suffered by the buyer on a car load of corn chops because of inferior condition, alleged that it was understood between the buyer and seller that the chops should and would be used as food for live stock, such averment, in the absence of a special exception, sufficiently alleges an implied contract that the chops should he fit for stock food.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1161-1164; Dec. Dig. § 411.]
    2. Appeal and Error (§ 719) — Assignments oe Error — Necessity.
    In an action by a buyer of corn chops for damages for their defective condition, he cannot complain on appeal that the court erred in holding the petition insufficient to charge an implied warranty of fitness for stock food, where the only assignment of error was' that the court erred in not holding' the petition sufficient to charge on implied contract of merchantability and soundness.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    3. Sales (§ 437) — Actions by Buyer — Petition — Sueeiciency.
    In an action by a buyer of grain for damages for the inferior quality of a car of corn chops, a petition, merely alleging a known purpose to use the chops as stock food, is insufficient to set up an implied warranty of soundness or merchantability.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1248-1257; Dec. Dig. § 437.]
    4. Sales (§ 274) — Implied Warranty.
    Where one dealer sells stock food to another merely as an article of merchandise, there is no implied warranty that it is fit for use as stock food.
    [Ed. Note. — For other ca^es, see Sales, Cent. Dig. §§ 777-779; Dec. Dig. § 274.]
    Appeal from Bexar County Court for Civil Cases; Ira P. Hildebrand, Special Judge.
    Action by the F. A. Piper Company against M. L. Oppenheimer and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Davis & Williams, of San Antonio, for appellant. Hertzberg, Barrett & Kercheville, of San Antonio, for appellees.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   MOTJRSTJND, J.

Appellant sued appellees to recover damages, alleged to have been suffered by appellant on a car load of corn chops purchased from appellees; the portion of the petition describing the cause of action being as follows: “That heretofore, to wit, on or about the 31st day of January, 1910, plaintiff agreed to purchase from defendants, and the defendants agreed to sell and deliver to plaintiff at Uvalde,'Tex., in Uvalde county, one ear load of 30,000 pounds of pure corn chops, at a price of $1.55 per cwt., said defendants contracting and warranting that the chops to be so delivered would be sound, pure, not spoiled, and in a merchantable condition,- and fit food for live stock, it being understood between plaintiff and defendants that said chops should and would be used as food for live stock when delivered to plaintiff; that, in violation of the agreements and warranties aforesaid, the defendants shipped to plaintiff at Uvalde, Tex., one car containing 300 sacks of corn chops, each sack weighing 100 pounds, which were impure, spoiled, and not in a merchantable condition when they arrived at Uvalde, á large part of said chops being spoiled and wholly unfit for food for live stock, and all of said chops being so impure and spoiled, at the time of their arrival at Uvalde and at all times thereafter, as to render then unmer-chantable, and that their reasonable market value at Uvalde, Tex., was $300 less than their market value would have been had the defendants complied with their contract and delivered to plaintiff at Uvalde, Tex., pure corn chops in a good condition, as agreed.” The defendants answered by general denial and spepial pleas not necessary to be stated. Upon a trial before the court judgment was first rendered for plaintiff, but the same was set aside and judgment rendered for defendants, from which plaintiff appealed.

The trial court’s findings of fact read as follows:

“(1) That on January 31, 1910, plaintiff agreed to purchase from the defendants, and the defendants agreed to sell and deliver to plaintiff at Uvalde, Tex., one car. load of 30,000 pounds of pure corn chops'at a price of $1.55 per cwt., and that the defendants expressly contracted and expressly warranted that the chops to be so delivered would be pure corn chops, and that this was the only express warranty agreed to by the parties. That the defendants shipped to plaintiff at Uvalde, Tex., one car containing 300 sacks of pure corn chops, each sack weighing 100 pounds, and that said chops were pure corn chops, and did comply with the express warranty as to being ‘pure corn chops. That said chops were not adulterated with any foreign substance such as Kaffir corn, etc., and were made purely from corn and nothing else, and were pure corn chops.
“(2) That when said car of chops arrived at Uvalde on the 14th day of Februáry, 1910, the chops were moist, but not heated, which moist condition was a condition that could have been discovered by plaintiff upon a reasonable examination or inspection.
“(3) That said chops were delivered to plaintiff, and plaintiff accepted same, and were forthwith unloaded Into the warehouse of plaintiff without objection or complaint on the part of plaintiff until February 26, 1910, when plaintiff notified the defendants by letter that the chops were then hot, which were afterwards sold for the best price obtainable.
“(4) That said chops were handled and stored after being unloaded by plaintiff from tbe car, and because of not being properly aired, but closely stacked, by plaintiff after unloading same from tbe car, partly caused tbe chops afterwards to beat.
“(5) That at tbe time said chops arrived in Uvalde the moisture contained in them could have been removed if it bad been discovered at such time at an expense of $50, and that tbe reasonable market value of said ch'ops at tbe time and place of delivery, and in tbe condition they were at that time, was $415. That tbe reasonable market value of same at said time and place, if free from moisture and perfectly dry, and as ordered by plaintiff, would have been $465. That plaintiff was not negligent in failing to sooner discover tbe heated condition of such chops.
“(6) That said chops were afterwards sold by plaintiff, but tbe sfiles were made after tbe chops bad become heated and bad deteriorated in value since tbe time of delivery to plaintiff, but that plaintiff sold them within a reasonable time after discovering tbe heated condition.
“(7) There was no direct evidence showing tbe condition of tbe chops upon day of arrival at Uvalde, and plaintiff offered no evidence showing tbe chops were heated on arrival at Uvalde.
“(8) That tbe plaintiff had opportunities of inspecting tbe car of chops after it was opened, and that a reasonable inspection would have disclosed tbe moisture in tbe chops.
“(9) That tbe defendants never saw tbe chops until after they were unloaded into tbe warehouse of plaintiff at Uvalde.
“(10) That tbe car was shipped draft with bill of lading attached, and no inspection was allowed before payment of draft, and that plaintiff paid such draft and freight charges on the car of chops before the same were delivered to it.
“(11) That both plaintiff and defendants were dealers at the time of this transaction.”

His conclusion of law was: “That plaintiff is not entitled to recover of defendants on the express warranty as to pure corn chops because pure corn chops were delivered to plaintiff. That plaintiff is not entitled to recover of defendants on any implied warranty as to soundness, merchantability, or fitness for live stock food, because no implied warranties are pleaded by plaintiff on which to base a judgment, and a judgment based on an implied warranty in this cause would be a variance from the plaintiff’s pleadings. Therefore X conclude that judgment should be rendered for the defendants.”

Appellant contends that his petition was sufficient to support proof of an implied warranty of the soundness and merchantability of the corn chops, and that the court erred in holding that it declared only upon an express contract.

The petition cannot be construed as alleging an implied warranty of merchantability, as there are no allegations that plaintiff is a merchant and bought the chops for resale, and that defendant knew they were being bought by plaintiff for such purpose. In fact, there is only one allegation contained in the pleadings from which a warranty by implication arises, and that is the allegation that it was understood between plaintiff and defendant that said chops should and would be used as food for live stock when delivered to plaintiff. The word “understood,” as used in this connection, should not be construed to mean “agreed,” because it would be very unreasonable that parties should make the future use of goods by the buyer a subject for specific agreement. The word was evidently used to convey the idea that the seller understood or knew that the chops were to be used as food for live stock when delivered to plaintiff. This allegation, in the absence of a special exception, must be given the benefit of every reasonable intendment, and when so construed sufficiently alleges an implied contract that the chops should be fit food for live stock.

However, the assignments of error make no point that the court erred in holding that no implied warranty of fitness for stock food had been alleged, but merely that the court erred in not holding the petition sufficient to charge on implied contract of merchantability and soundness.

An allegation of known purpose to use chops for stock food only raises the implication that the chops shall be reasonably fit and appropriate fQr the purpose of feeding stock, and does not include any other or further warranties. We conclude that the court did not err in holding that no implied warranty of soundness or merchantability was alleged.

We are also of the opinion that no implied warranty of fitness for stock food can be asserted in this case, because the transaction was between a grain broker who had never seen the corn and a grain dealer who bought, not for the purpose of using the same as food for live stock, but for the purpose of selling the same at retail. Battaglia v. Thomas, 5 Tex. Civ. App. 565, 23 S. W. 385, 1118; Houck v. Berg, 105 S. W. 1176.

It appears there was no evidence that the chops were heated, when delivered to plaintiff, but were merely moist, and there is no evidence that they were unfit for stock food at that time, but became so by reason of being closely stacked by plaintiff in their moist condition. It further appears from uncon-tradicted testimony . that the trade term “pure chops” meant chops which had not been kiln dried, and that moisture was inherent in such chops.

We are of the opinion that the judgment of the trial court was correct. The evidence failed to sustain express warranties of merchantability, soundness, and suitableness for stock food having been made, and there was no allegation of any implied warranty except that of suitableness for stock food, which was not proven to have existed or to have been breached had it existed.

The judgment is therefore affirmed.  