Imagini ale paginilor
PDF
ePub

*

City Lump Coal' in the contract, raised an implied warranty of the quality of the coal. These words designated a certain kind of coal known in commercial trade and with which appellant was familiar, as it had used it prior thereto. Therefore, it having contracted for that kind of coal, if it received what it contracted for there was no implied warranty. The common law is tersely stated in the English 'Sale of Goods Act,' under Rule 14, 'that in the case of a contract for the sale of a specific article under its patent or other trade name,' there is no implied contract as to its fitness for any particular purpose for the reason, as stated in the authorities that 'an undertaking as to fitness is not implied where the buyer gets what he bargained for.' (Citing cases.)"

Question 304: State the facts, the question presented, the Court's decision in the above case and the reasons therefor.

Case 305. Wiedeman v. Keller, 171 Ill. 93.

Facts: Defendant is a retail dealer in meats. Plaintiff called at his place of business and purchased a quantity of pork to be used in her family. The pork turned out to be unwholesome and unfit for use, making plaintiff and her family sick. Defendant did not know that the meat was unwholesome. Plaintiff sues for damages.

Point Involved: Whether in a sale of goods by a dealer for purposes of immediate consumption, there is a warranty that it is fit for consumption.

MR. JUSTICE CRAIG delivered the opinion of the Court: "As a general rule, we think the decided weight of authority in the United States is, that in all sales of meats or provisions for immediate domestic use by a retail dealer there is an implied warranty of fitness and wholesomeness for consumption. In this case

the appellee was a regular retail dealer, and as such he sold the meat to appellant for domestic use, and under the law as it seems to be settled in this country, as the meat turned out to be unwholesome, he was liable,

although he was not aware that it was diseased when he sold it to appellant.

"In an ordinary sale of goods the rule of caveat emptor applies, unless the purchaser exacts of the vendor a warranty. Where, however, articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound article may be so serious and may prove so disastrous to the health and life of the consumer that public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound and fit for the use for which it was purchased. It may be said that the rule is a harsh one; but, as a general rule, in the sale of provisions the vendor has so many more facilities for ascertaining the soundness or unsoundness of the article offered for sale than are possessed by the purchaser, that it is much safer to hold the vendor liable than it would be to compel the purchaser to assume the risk.

[ocr errors]

Question 305: What is the rule where a dealer in food sells same to a consumer as to dealer's undertaking as to quality?

(2) A, not a dealer in meats, was leading a cow down the street to pasture. B made an offer for the animal. A accepted and B led the cow away. A knew that B wanted the cow to butcher, but did not know the cow was diseased, which turned out to be the fact, so that the meat had to be thrown away. A sues for the price of the cow. Has B any defense?

Case 306. Nixa Canning Co. v. Lehman, etc., Grocer Co., 70 Kan. 664.

Facts: The Canning Co. sold the Grocer Co. a quantity of canned apples. The apples were put up in cans by the Canning Co. for the purpose of selling them to merchants. The sale to this Grocer Co. was by sample, the sample cans being opened and examined by the buyer before the purchase. The samples were apparently sound and fit and were not in fact subject to any defect that could have been discovered by reasonable examination. By reason of certain substances employed in the

canning process the apples purchased quickly spoiled The Grocer Co. sued the Canning Co. for damages.

Point Involved: Whether a manufacturer impliedly warrants that goods sold by him are merchantable.

MASON, J., delivered the opinion of the Court: "The Canning Co. contends that, where goods are sold by sample, there is, in effect an express warranty of conformity to the sample and no other warranty as to quality can be implied. This may be granted to be the ordinary rule as to transactions between merchants, but where the seller is also the manufacturer, there is an implied warranty that the sample and goods sold are alike free from latent defects not discoverable upon ordinary examination. The Court then quotes from Kellogg Bridge Co. v. Hamilton, 110 U. S. 108: "In ordinary sales the buyer has an opportunity of inspecting the article sold; and, the seller not being the maker, and therefore having no special or technical knowledge of the mode in which it was made, the parties stand upon grounds of substantial equality. But when the seller is the maker or manufacturer of the thing sold, the fair presumption is that he understood the process of its manufacture, and was cognizant of any latent defect caused by such process and against which reasonable diligence might have guarded. the defendant by implication warranted that the process it employed did not involve the use of any deleterious substance the presence of which could not be detected by any reasonable examination, but which would in a short time render the fruit unfit for food, unmerchantable and worthless."

*

* *

* * *

Question 306: (1) State the facts, the question presented and the Court's decision in this case.

(2) The A Automobile Co., a manufacturer of automobiles, bought an automobile in exchange for one of its own make. It then sold the second-hand machine to plaintiff. The crank shaft broke shortly thereafter from a latent defect. Plaintiff sues for damages and claims that defendant impliedly warranted the merchantability of the car. Can he recover? Why?

Case 307. Ward v. Great Atlantic & Pacific Tea Co., 231 Massachusetts Reports, 90; 120 Northeastern Reports, 225.

Facts: Ward sues for breach of implied warranty as to proper condition of goods sold. The defendant conducted a retail grocery at Ipswich, Massachusetts. It had for sale beans in sealed cans bearing this label:

"Grandmother's Brand A. & P. Beans and Pork with sauce, contents 2 lbs. 1 oz." "Remove contents of this can as soon as opened and place in earthenware dish." "The Great Atlantic & Pacific Tea Co., Incorporated, Distributors, N. J., U. S. A.”

These cans of beans were purchased by defendant from a canning company after canning. Defendant furnished the labels. Defendant had no supervision over the process of canning and no knowledge or means of knowledge that any foreign substance was in the cans. The Canning Co. was a reputable, independent concern. The can bought by plaintiff contained a small pebble and he bit upon it and broke off his tooth.

Point Involved: Whether a dealer selling goods canned by others of whose contents the dealer can make no inspection impliedly warrants that the contents are fit for the purpose for which purchased.

RUGG, C. J.: There appears to us to be no sound reason for ingrafting an exception on the general rule because the subject of the sale is canned goods, not open to the immediate inspection of the dealer, who is not the manufacturer, any more than of the buyer. It doubtless still remains true that the dealer is in a better position to know and ascertain the responsibility and reliability of the manufacturer than is the retail purchaser. Simply because it [the general rule] may work apparent hardship in certain instances is no reason for changing it to fit particular cases. It is a salutary principle. It has become wrought into the fabric of the law as the result of long experience. It may be assumed that the affairs of mankind have become adjusted to it. It has been recently adopted by the legislature in

*

codifying the law as to sales. It imposes liability in the absence of an express contract between the parties governing the subject. It places responsibility upon the party to the contract best able to protect himself against original wrong of his kind, and to recoup himself in case of loss, because he knows or comes in touch with the manufacturer. In the case at bar the plaintiff had no means of ascertaining the manufacturer from inspection of the goods bought. The retail purchaser in cases of this sort ordinarily would be at some disadvantage if his only remedy were against the manufacturer.

Question 307: If a seller is a dealer who buys from a reputable manufacturer, goods which are canned, and such goods are defective for some reason, is the dealer liable to a consumer who is injured by the use of such goods? Are there differences of view on this subject?

(Note: On this point the authorities are not in entire accord. There was a dissenting opinion in the above case. But the case is believed to express the sounder and growing view.)

§ 338. (Sales, Sec. 51.) Warranties do not run with personal property.

(Note: A sells to B and B sells to C, B being independent, intermediate party and not an agent of A. C has no rights of contract against A, for he has not dealt in contract with A. If he fastens a liability on A it must be in tort for negligence, fraud, etc. A suit on a warranty is in contract. Hence C has no right against A for breach of warranty. Some cases have indeed recognized such a right but they seem difficult to sustain on principle. It is also true that A, as manufacturer, may even though he markets through independent dealer, make announcements and warranties that are intended to become legally obligatory upon him when acted upon by the purchaser.)

§ 339. (Sales, Sec. 52.) Right of remote purchaser to sue in tort.

Case 308. Lebourdais v. Vitrified Wheel Co., 194 Mass. 341.

Facts: This was an action by Lebourdais for personal injuries sustained by him on account of the bursting of

« ÎnapoiContinuă »