25 Misc. 380 | New York County Courts | 1898
No question of fraud upon the part of the plaintiff is raised by defendant in this action, and neither is there any definite claim of an express warranty by plaintiff that the cow in
It is also conceded that neither appellant nor respondent had at that time any notice or knowledge of the diseased condition of the cow, nor does it appear that there was any way in which her condition at that time could have been detected or learned, the disease not having progressed to a stage where it had become apparent by observation of the living animal. Under these circumstances respondent in answer to an action brought by appellant for the agreed purchase price of the animal contends that the law imposes upon the transaction an implied warranty by the vendor that the animal was fit and suitable for food.
A careful examination of the authorities convinces me that this claim is not well founded. While it is true that it was understood at the time that the animal was to be thereafter converted into meat and sold for food, yet, as between these parties, she was the same as an article of merchandise, and in the absence of fraud, direct or express warranty, the maxim of caveat emptor, must apply.
The exceptions from the application of this maxim are but few, and the policy of our law is to sustain the doctrine whenever possible. It has been held, and with reason, that it does not applv in the case of goods sold upon sample or in the case of goods sold
A careful examination of all the authorities which have been submitted, and which I have been able to discover upon independent search, reveals but one case which in any way tends to disturb the rule laid down by the cases just above cited. Divine v. McCormick, 50 Barb. 116.
Counsel for appellant seeks to distinguish this case from the case at bar, and to a certain extent it is distinguishable; but I am still of the opinion that its holding is directly contrary to the conclusion of the cases to which I have previously referred. I am convinced, however, that it does not correctly state the rule of law, and is in effect overruled by the number, weight and reasoning of the other authorities.
The judgment herein is also attacked because of alleged errors in fact, but in view of the conclusion at which I have arrived upon the main question in the case, it becomes unnecessary for me to pass upon the alleged errors.
Judgment reversed, with, costs.