The opinion of the court was delivered by: Moss, Justice.
This is an action for breach of an express oral warranty. On October 16, 1950, the Spartanburg Hotel Corporation, the respondent herein, which operates the Cleveland Hotel in the City of Spartanburg, South Carolina, upon the solicitation of an authorized representative of Alexander Smith, Inc., the appellant herein, placed an order for a large quantity of green carpeting, known as "Graethorne", for use in said hotel. It is also asserted that at the time of the placing of said order that the appellant, as a part of the transaction, gave an express oral warranty that this carpeting so ordered was of first quality and colorfast and would not fade, and such was suitable for the needs of the respondent. It is further asserted that representation and warranty were made by the appellant direct to the respondent, and that in purchasing said carpeting the respondent relied upon such representation and warranty. Testimony shows that during the course of the placing of the order for the carpeting, that the appellant could not sell direct to the respondent but would have to bill the respondent for the purchase price of the carpeting through some one in Spartanburg, and such representative suggested the furniture firm of Hammond-Brown-Jennings Co. It should be here stated that the order as placed by the respondent was signed by J. Mason Alexander, the manager thereof, and delivered to the representative of the appellant. It is undisputed in the testimony that the respondent did not buy through the local furniture company, had no contract with it, and did not even know any representative of the local furniture company.
The record shows that the carpeting was shipped direct by the appellant to the respondent and that on January 6, 1951, Hammond-Brown-Jennings Co. billed the respondent for $2,740.92, the purchase price of said carpeting. Payment of said invoice was made by the respondent to the Spartanburg furniture firm and it deducted a 5% commission, remitting to the appellant $2,603.87.
The respondent alleges a breach of the appellant's express oral warranty to it, it being asserted that the carpeting began to fade, that the colors were not fast and it was wholly unsuitable for the needs and purposes of the respondent. Testimony of the respondent is that the color of the carpeting began to fade approximately six months after it was received, and it took until about two years for all of it to go bad.
It further appears by the testimony of the manager of respondent that complaint was made by the respondent to the appellant of the defective carpeting and as a result a representative of the appellant inspected the carpeting and found that the color of the carpeting was fading and was told "Take it up, we have had that trouble, and the company will do the right thing; they will adjust it, you will hear from the company." Thereafter, the appellant sent two checks totalling $682.50, payable jointly to Hammond-Brown-Jennings Co. and the Cleveland Hotel. These checks were endorsed by Hammond-Brown-Jennings and delivered to the Cleveland Hotel, it being asserted by the appellant that such checks were given in full and complete satisfaction and settlement of the claim of the respondent for the alleged defects in the carpeting. J. Mason Alexander, manager of the respondent's hotel, testified upon receipt of the checks for $682.50, he immediately contacted a representative of the appellant and that it was agreed that in accepting the checks it was not a complete and full settlement of the respondent's claim for damages for the defects in the carpeting.
He testified that after depositing the checks, and at the request of the appellant, he sent a sample of the defective carpeting, together with a sample of the cleaning fluid used by the hotel to clean its rugs and carpeting to C.H. Masland & Sons, the manufacturer, according to the answer of the appellant, of the carpeting sold to respondent.
The appellant, by its answer, denied any breach of warranty or that the carpeting was defective as alleged in the complaint. It further defends on the ground that the carpeting referred to in the complaint was purchased by the respondent from Hammond-Brown-Jennings Co. and not from the appellant, and accordingly there was no privity of contract between the respondent and appellant. The appellant asserts there being no privity of contract, no right of action exists in favor of the respondent against the appellant. The appellant also alleges, by way of defense, that the payment by it to the respondent of the sum of $682.50 was in full and complete settlement and satisfaction of the respondent's claim for the alleged defects in the carpeting, and that the same constitutes an accord and satisfaction, and bars respondent's action.
This case was tried before Honorable G. Duncan Bellinger, Presiding Judge, and a jury, and resulted in a verdict for the plaintiff for the sum of $1,775.30 and $319.56 interest.
At appropriate stages of the trial the appellant made motions for a nonsuit, directed verdict, judgment non obstante veredicto, and alternatively, for a new trial. All of which said motions were refused.
In the case of Stevenson v. B.B. Kirkland Seed Co., 176 S.C. 345, 180 S.E. 197, 200, a warranty was defined in the following language:
"A warranty is a statement or representative made by the seller of goods, contemporaneously with and as part of the contract of sale, having reference to the character, quality, kind, variety, or title of the goods. A warranty is express when the seller makes an affirmation with respect to the article to be sold, pending the contract of sale, upon which it is intended that the buyer shall rely in making the purchase. A warranty is implied when the law derives it by implication or inference from the nature of the transaction. In order for an express warranty to exist, there must be something positive and unequivocal concerning the thing sold, which the vendee relies upon, and which is understood by the parties, as an absolute assertion concerning the thing sold, and not the mere expression of an opinion; representations which merely express the vendor's opinion, belief, judgment, or estimate do not constitute a warranty. It is not always easy to determine whether certain language does or does not amount to a warranty. The language used is sufficient to constitute an express warranty if the words used import an undertaking that the property is what it is represented to be, or an equivalent to such undertaking. 55 C.J. 673."
The appellant asserts that the contract of purchase and sale here involved was between Hammond-Brown-Jennings Co. and the respondent and not between the appellant and respondent. It is urged that since there was no privity of contract between the respondent and appellant, that an action ...