184 A.D. 302 | N.Y. App. Div. | 1918
Defendant, a farmer, purchased of plaintiff, the manufacturer, a mechanical cow-milking apparatus consisting of one No. 2 pumping outfit and three single mechanical milker units with fifty-pound pails, for $320. These were shipped by plaintiff from its factory in Bloomfield, N. J., and received by defendant at his farm and installed and put into use by
Before the purchase defendant had seen and examined one of plaintiff’s catalogues which contained a complete description of the mechanical milker which it manufactured. He had also seen and examined the catalogues of two other rival manufacturers. He communicated with plaintiff and plaintiff sent one of its traveling salesmen to see him and while there a contract was made on one of plaintiff’s printed forms by which he agreed to purchase of plaintiff and sell in the territory adjoining his residence the “ Empire Mechanical Milker ” of plaintiff’s manufacture upon certain terms and conditions stated for a period of one year. These Empire mechanical milkers are described in detail in this contract as consisting of: (1) “ Empire Mechanical Milker Units; ” and (2) “ Empire Mechanical Milker Pumping Outfit.” By this contract defendant was to receive a certain discount from plaintiff’s list prices. On the same day he signed and delivered to plaintiff’s representative a written order for one of these outfits intended for his own use on a printed blank form furnished by' plaintiff,' by which he requested plaintiff to ship to him at once, terms as per contract, one No. 2 pump and three single units with fifty-pound pails. In connection with this contract and order the agent gave defendant a writing to the effect that defendant was not bound by the terms of the contract “ to purchase any further milker, or to spend any time, in trying to sell milkers, unless he so desires.”
It was the claim of plaintiff’s counsel at the trial and is his claim here that defendant’s purchase was of a specified article under its trade name, and that, hence, there was no implied warranty as to its fitness for any particular purpose.
There was no proof at the trial of any specific defect in the machine or any of its parts, nor that it differed in any respect from the standard form of machine described in plaintiff’s catalogue, or that it was made from defective material or that there were latent defects which affected its operation. The machine did milk the cows and did work as it was planned to work; the only complaint was that defendant could not make it milk one cow as quickly as he could milk the cow by hand, and that the cows did not give as much milk as when milked by hand, and that it raised ridges on their teats.
It was plaintiff’s contention that these troubles did not arise from any defect in the machine but were due either to defendant’s having an engine of too little power and, during part of the time, a temporary pulley of his own construction which was unfit, or to his lack of skill and experience in operating the machine, or his failure to use it a sufficient length of time so that the cows became accustomed to it.
Plaintiff called two farmers of the vicinity who owned and had used Empire mechanical milkers, who testified that their machines operated satisfactorily, producing as much or more milk than by hand-milking, in less time, and that the cows’ teats were not injured.
Professor Mechem in his work on Sales (Vol. 2, § 1349) formulates the rule as follows: “ The implied warranty of fitness is not to be extended to cases which lack the necessary conditions upon which it depends. The essence of the rule is, that the contract is executory; that the particular article is not designated by the buyer; that only his need is known; that he does not undertake or is not able to determine what will best supply his need, and, therefore, necessarily, leaves the seller to make the determination and take the risk; and if these elements are wanting, the rule does not apply. If, therefore, a known, described and defined article is agreed
This doctrine is supported by the following cases: Davis Calyx Drill Co. v. Mallory (137 Fed. Rep. 332), where Judge Sanborn in the Circuit Court of Appeals states and cites the authorities for another rule which would apply in this case if there was an implied warranty, namely: “An implied warranty of the fitness of a machine to do a particular work does not include a warranty that it will do the work as rapidly or economically as some other specified machine.” (La Crosse Plow Co. v. Brooks, 142 Wis. 640.) And see, also, cases cited in the comprehensive notes to the case of Springfield Shingle Co. v. Edgecomb Mill Co. (52 Wash. 620: 35 L. R. A. [N. S.]258).
Some of the English cases are not entirely in harmony with our own. (Gillespie Bros. & Co. v. Cheney, Eggar & Co., L. R. [1896] 2 Q. B. Div. 59; Bristol Tramways, etc., Carriage Co., Ltd., v. Fiat Motors, Ltd., L. R. [1910] 2 K. B. Div. 831.)
But defendant’s counsel contends that without regard to whether or not the purchase was by a trade name, there was an implied warranty that the milker would answer to the description and be merchantable and'free from any remarkable defect. For this he relies upon subdivision 2 of section 96 of the Personal Property Law (as added by Laws of 1911,. chap. 571), which provides as follows: “ 2. Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.” Of this it is sufficient to say that no such question was left to the jury, nor did defendant’s counsel request it to be submitted.
The word “ merchantable ” as used in this connection is defined in Howard v. Hoey (23 Wend. 350) as meaning “ at least of medium quality or goodness.” But I think subdivision 2 has no application to a case of the sale of a specified article by its trade name which falls under subdivision 4.
If I am right in the foregoing, then plaintiff’s request to so charge the jury should have been granted, and it is not neces
The judgment and order must be reversed and a new trial ordered, with costs to the appellant to abide the event.
All concurred; Htjbbs, J., not sitting.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.