87 Me. 145 | Me. | 1895
Two questions are presented :
I. Does a contract for the service of a stallion for breeding, contain an implied warranty that the animal is free from disease that may be transmitted to offspring? The element of deceit, that might result from the concealment of disease known to the owner of the animal, must be eliminated from the consideration of this question, as that element might be cause for a remedy differing from that sought here. It does not pertain to this case.
In the sale of chattels, without express warranty of quality, and without fraud, caveat emptor applies, and no warranty is implied by law. Kingsbury v. Taylor, 29 Maine, 508; Winsor v. Lombard, 18 Pick. 57; Mixer v. Coburn, 11 Met. 559; French v. Vining, 102 Mass. 132; Howard v. Emerson, 110 Mass. 320. If, however, the sale be by description, without opportunity for inspection, the article must not only meet the description, but be salable or marketable, of the kind described. Said Lord Ellenborough : " The purchaser cannot be supposed to buy goods to lay them on the dunghill.” Gardiner v. Gray, 4 Camp. 144; Warner v. Arctic Ice Co. 74 Maine, 475.
In the sale of provisions, other than to the consumer, it seems settled that the rule of caveat emptor applies. Howard v. Emerson, supra; Giroux v. Stedman, 145 Mass. 439; Moses v. Mead, 1 Denio, 378; Humphries v. Comline, 8 Blackf. 516; Ryder v. Neitge, 21 Minn. 70. But some authorities except sales of provisions to the consumer for domestic use from the rule. Van Bracklin v. Fonda, 12 Johns. 468; Hoover v. Peters, 18 Mich. 51; Sinclair v. Hathaway, 57 Mich. 60; Copas v. A. A. Provision Co. 73 Mich. 541. Other cases are sometimes cited to the same point, but in these the defect ivas known, as it was in the leading case, Van Bracklin v. Fonda, supra.
In the case at bar, the owner sold the services of his stallion for breeding purposes. Had he known the stallion to have been diseased, and concealed the fact, it would have been fraud. Not knowing this, upon what ground, or from what principle of law, can warranty be implied? Why not apply the rule of caveat emptor The purchaser had the same field of inquiry open to him as the seller.
In Kingsbury v. Taylor, 29 Maine, 508, winter rye was innocently sold for seed spring-rye, whereby the purchaser lost his crop, and the court held no deceit, and in effect say there was no warranty implied.
In Howard v. Emerson, 110 Mass. 320, a cow was sold by a farmer to retail butchers, and it was held that there was no implied warranty that she was fit for food.
In Giroux v. Stedman, 145 Mass. 439, a farmer killed a hog and sold the flesh, knowing that the purchaser intended to eat it, and the court said there was no warranty that it was fit for food.
If a warranty is to be implied in the case at bar, it must arise from the principle of sale for specific use. There ivas no sale of a chattel, but the sale of the use of a chattel. No authority has been cited that any implied warranty arises from the contract of letting that the thing let is fit for the use intended where the selection is made by the lessee.
In Deming v. Foster, 42 N. H. 165, a particular yoke of oxen were sold to work on a farm, and the court held there was no implied warranty of their fitness. The court illustrates by quoting from Keates v. Cadogan, 10 C. B. 591, 2 E. L. & E. 320, and shows the difference between : " Sell me a horse fit to cany me,”and "Sell me that gray horse to ride.” In the case at bar, the plaintiff did not sell the service of a stallion fit to beget offspring; but the service of "Sir William.” He knew no reason why he was not fit for the purpose, and the law does not imply a warranty that he was.
II. Can the price of service fora stallion be recovered when the animal has not been registered, as required by B. S., c. 38, § 61 ? That statute provides : " The owner or keeper of any stallion for breeding purposes, before advertising, by written or printed notices, the service thereof, shall file a certificate [describing the animal]. Whoever neglects to make and file such certificate shall recover no compensation for said services,” and is subjected to the penalty for knowingly filing a false one.
The statute manifestly applies to animals kept for public use, because being applied to the use of the public, it is proper enough to require a truthful description and pedigree to lie
In this case, the owner of the stallion had not advertised him, had not held him out for public use, and therefore might enjoy the fruits of his service in such way as he might choose to do. He might breed his own mares to him. He might breed his neighbors’ mares to him, orto the mares of a stranger, without violating any law. Contracts for such service would be valid and binding upon the makers of them.
Exceptions overruled.
