6 Barb. 557 | N.Y. Sup. Ct. | 1849
The referee has found that the flour in question was purchased by the plaintiff, without having been examined or seen by ‘him; that it was purchased for superfine flour, Michigan mills, upon the representation of the defendant that it was in quality superfine, or extra superfine, and worth a shilling a barrel more than common. The testimony fully warrants the referee in so finding; and it was received without objection. The representation made by the defendant to Miller, the plaintiff’s agent, was a warranty of the quality of the flour, within the decision in Chapman v. March, (19 John. 290.) The representation was express and direct, and the plaintiff’s agent was assured that he might rely upon it.
This case is distinguishable from Seixas v Woods, (2 Caines’ Rep. 48,) and Sweet v. Colgate, (20 John. 196.) In those cases the purchaser saw and examined the articles, and had as good means of knowing their qualities as the vendor. Both parties were equally ignorant of the defects. There being neither fraud nor warranty, the maxim caveat emptor was held applicable,
As the conclusion which the referee has drawn according to section 222 and 227 of the code of 1848, is a just deduction from the facts found, and as those facts were proved without objection, there does not appear to be any ground to disturb the report, upon a case. The 227th section of the code contemplates that the decision of a referee may be reviewed in the same manner as the decision of the court when trying a question of fact without a jury. (§ 222.) This mode of review is prescribed by section 223. It allows a decision on a matter of law, arising upon such trial, to be the subject of an exception, in the same manner and with the same effect, as upon a trial by jury. And it provides for a review upon the evidence appearing on the trial, either of the questions of fact or of law, upon a case containing so much of the evidence as may be material to the question to be raised. The latter mode is the one adopted on the present occasion.
It has already been intimated that there is no ground to disturb the report, as being against evidence. And it has also been seen that no question of law arose as to the admissibility of the evidence under the pleadings. At the close of the testimony it was insisted by the defendant’s counsel, before the referee, that the plaintiff was not entitled to recover, for the reason, among others, that the complainant did not state facts sufficient to constitute a cause of action. That question has been repeated in
This gives rise to two questions; first, as to the sufficiency of the complaint; and second, as to the time and manner of taking advantage of the insufficiency, if it be insufficient.
I. The complaint does not state a cause of action in fraud, because it fails to aver that the defendant knew that the flour was of a different quality from that which he professed to sell. Upon a warranty a party is bound to accountability for any defect, whether he knew it or not; upon a representation merely, it is incumbent on the plaintiff to aver that the defendant knew the representation to be false; otherwise he is not liable for damages. (Per Savage, Ch. J. in Case v. Boughton, 11 Wend. 108.)
II. The complaint does not state a cause of action upon a warranty. It sets out no warranty either in terms, or by equivalent words. It does not alledge that the defendant represented the flour to be of a particular quality, or that the plaintiff confided in any assurances of the defendant with respect to its quality. It has already been shown what representations amount to a warranty; and in short, that the representations proved before the referee in this action, were of that character. Nevertheless, the complaint does not contain any form of words which can be tortured into a warranty. It has been repeatedly decided that selling an article as of a particular character, is neither a warranty nor a representation. (Seixas v. Woods, 2 Caines, 48. Sweet v. Colgate, 20 John. 196.) A different rule would abrogate the maxim of caveat emptor, which is the rule followed in this state. The principle of the rule is that the vendor has it in his power to guard against any latent defect or deception in the article purchased, by exacting a warranty from the vendor; but if instead of taking this precaution, he will trust to his own sagacity and judgment, he should bear the loss. The principle assumes that both parties are equally innocent, and it throws the loss upon him who omits to exact that which would have afforded him ample protection, the exacting of which would have apprized the opposite party of the necessity of tak
HI. The complaint thus being radically bad in substance, it remains to inquire at what time and in what manner the defendant can take advantage of the defect. The code of 1848, under which this pleading was drawn, (§ 122,) allows a defendant to demur, for six causes therein stated, the last of which is, that the complaint does not state facts sufficient to constitute a cause of action. Subsequent sections require the demurrer to point out distinctly the objections to the pleading, and allow the plaintiff to amend of course and without costs. Even after a decision of the court upon the demurrer, leave may be granted to the plaintiff to amend, or to the defendant to withdraw the demurrer. By section 127 it is provided that if the objection to the complaint, appearing on the face of the pleading, be not taken by demurrer, the defendant shall be deemed to have waived it, excepting only the objection to the jurisdiction of the court over the subject of the action; and the objection that the complaint does not state facts sufficient to constitute a cause of action. By omitting to demur the defendant deprived the plaintiff of the right of amendment of course, and without costs, but did not waive the objection in question. But the code is silent as to the time and manner in which the defendant, after failing to demur to the complaint, can be permitted to insist that it contains no cause of action. In determining this question we must be governed by the analogy of the former practice. (1.) The defendant might have objected to the plaintiff’s proving any material fact not contained in the pleading. This would have enabled the court or referee to dispose of the question at once; or if need be, have permitted the plaintiff to apply for leave to amend. But the defendant raised no objection to the proof when it was offered; and thus, a good cause of action was proved, under a complaint containing none. The defendant could not have moyed for a nonsuit on the ground of the insufficiency of the complaint. (Kelly v. Kelly, 3 Barb. Sup. Court Rep. 419.) (2.) Under the former practice a motion in arrest of judgment might have been made, within the first four days
We think the question as to the sufficiency of the complaint is not properly before us at this time. The defendant having failed to demur, or object to the evidence, or to except to the decision of the referee in giving judgment for the plaintiff, has waived his right to impeach the complaint.
Motion to set aside report of referee denied.