50 Barb. 116 | N.Y. Sup. Ct. | 1867
By the Court,
I do not share in the apprehension expressed by Justice Bronson in Moses v. Mead (1 Denio, 386,).lest a new inroad should be made upon the doctrine of “caveat ©motor,” by implying, a warranty of
1. The fair, inference is, from the undisputed evidence, (not contradicted by the defendant, who was sworn as a witness,) that the heifer in question, (whose diseased and unfit condition for food is not denied,) was sold for immediate consumption. The plaintiff’s testimony is that he bought the heifer, two or three years old, for See/, and told the defendant he was going to kill it the next day, which he did. It nowhere appears that the plaintiff was a butcher, or was. buying to
. 2. It is a fair, (and almost irresistible,) inference from the testimony of Stewart, Cochran, Leach, and the defendant, that the defendant was aware ofj or had great reason to suspect, the unsound and unwholsome condition of the- heifer, when he sold, her to the plaintiff. If so he was bound to disclose it. Although there may be some question whether this last testimony was admissible under the pleadings, yet being received without objection and considered, it may be referred to to uphold the judgment of the county court, which I think rightfully reversed the judgment of the justice, founded upon the remarkable verdict of the jury in favor of the defendant. Under the facts developed in the case it is satisfactory to be able to pronounce in favor of the affirmance of the judgment of the county court.
Peckham, Ingalls, and Hogeboom, Justices.]