143 N.Y.S. 587 | N.Y. App. Div. | 1913
In 1911 the plaintiff was a dealer in grain at Pawling, N. Y., and as a part of his business he sold oats to farmers for planting purposes. The defendant, a corporation, was engaged in the general business of selling grain at wholesale, generally in carload lots. It had an agent, one Merriam, who went about soliciting orders. In January of that year Merriam called upon the plaintiff and obtained an oral order' for a carload of oats, which order was given by the plaintiff in manner as follows (using his own words): “I asked Mr. Merriam
The general rule as to an implied warranty in the sale of goods is that, unless the vendor is the producer or manufacturer of the articles, there is no implied warranty against latent defects, even if the vendor knows the purposes for which the goods are bought. (Bartlett v. Hoppock, 34 N. Y. 118; Dounce v. Dow, 64 id. 411; American Forcite Powder Mfg. Co. v. Brady, 4 App. Div. 95; Cafre v. Lockwood, 22 id. 11; Reynolds v. Mayor, Lane & Co., 39 id. 218; Carleton v. Lombard, Ayres & Go., 149 N. Y. 137.) There are several authorities in this State relative to the question of an implied warranty in the sale of seeds, but all of these, so far as an implied warranty as to the quality of the seeds was declared,
There is, of course, an implied warranty on the part of every seller, whether manufacturer or not, to the extent that the article sold is identical with the article bought, as was held in Hawkins v. Pemberton (51 N. Y. 198), where one who sold an article as “ blue vitriol,” which was in fact not “blue vitriol” but a substance known as “ saltzburger ” or mixed vitriol, and which contained but a small portion of blue vitriol, was held liable on a breach of implied warranty as to identity, but not as to quality. In Allan v. Lake (18 A. & E. [N. S.] 560) one who had sold turnip seed as “ Skirving’s Swedes ” was held for a breach of an implied warranty on proof that the seed sold was not “ Skirving’s Swedes.” A similar case is that of Van Wyck v. Allen (69 N. Y. 61), where one who had sold cabbage seed as “Van Wycklin’s flat Dutch, raised at New Lots, Long Island,” was held liable for a breach of implied warranty on proof that the seed delivered was not “ Van Wycklin’s flat Dutch,” which was a well-known and specially valuable brand of cabbage seed; but here again the breach was as to an implied warranty of identity between the thing sold and delivered and the thing bought. The most recent authority on this point is Depew v. Peck Hardware Co. (121 App. Div. 28). There. a farmer bought seed as pure alfalfa seed. After it was planted, it turned out that the seed was "mostly trefoil and dodder, both useless weeds, with but a very small mixture of alfalfa. The seller was held liable for breach of an implied contract because the seed was not alfalfa, even impure alfalfa, although there was a small proportion of the latter present. The court, however, was careful to point out that, “ If the alfalfa seed had been defective, not up to the standard in quality, there would have been no implied warranty.” There the seller was not the producer of the seeds, but a mere middleman. Now, in the case at bar the defendant was a middleman; it did not raise the oats, nor was it in the business of selling seeds for planting purposes. It had no knowledge, actual or constructive, of any latent defects in the oats in question. It did deliver
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Jenks, P. J., Thomas, Stapleton and Putnam, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.