21 N.Y.S. 390 | N.Y. Sup. Ct. | 1892
The appellants, on the 19th of August, 1887, purchased 501 Panama hides of the respondents, at 14£ cents per pound. The contract between the parties is evidenced by Exhibit A, which is as follows:
“Pickard & Andreson. Brokers in Hides and Skins,
69 Gold Street, P. O. Box 808.
“New York, August 19, 1887.
“Sold for a/c. Messrs. Isaac Brandon & Bros.
“To Messrs. A. Healy & Sons.
“509 Panama hides, ex Newport, at pier 43, H. R., at 14|c. pr, lb.; cash, less 1%; to be weighed up as they are. Pickard & Andreson, Brokers. ”
It appears from the evidence in the case that, after this contract had been made, the plaintiffs received from' the defendants certain articles purporting to be “hides,” but which the plaintiffs now allege were not “hides,” as that term is known and used in the tanning and leather trade. The goods were duly weighed, as provided by the broker’s note or contract, and the following receipt was signed by the plaintiffs:
“New York, Aug. 19, 1887,
“Messrs. A. Healy & Sons, 5 Perry St.,
“To Isaac Brandon & Bros., 35 Broadway. Dr.
“Terms: Net cash this day.
N. To 501 hides, weighing 12,692lbs., at 14|c.............. $1,840 34
ex S. S. Lessl% for cash...................................... 18 40
Newport, -
Aug. 12/87 “E. & O. E.
“Received payment, 23/8/87.
$1,821 94
Isaac Brandon & Bros. ”
It also appears that there was a- difference of eight skins in the amount delivered and the amount called for by the contract; but no point is made of this; and the shortage is not material in the disposition of the case. It is alleged in the complaint that all genuine hides possess certain inherent qualities, which enable them to be converted into merchantable leather, and it was only such hides that, “at the time herein mentioned, the defendants professed to sell, no other hides having any
Most of the exceptions which were taken to the rulings of the justice at circuit relate to questions which were propounded for the purpose of establishing that the articles in question were not hides; and, if those exceptions are not well founded, it follows that the case was properly disposed of at the circuit. It is now perfectly well settled that, in order to constitute a warranty upon a sale, it is not necessary that the representations should have been intended by the vendor as a warranty; and that if the representation is clear and positive, and not a mere expres
“The article sold, if it was known at all in the market, was known by another ■name. It had only from seventeen to twenty-five per cent, of blue vitriol in it. It was not an inferior article of blue vitriol, but a different substance, with a •small admixture of blue vitriol. ”
So, too, in the case of White v. Miller, Andrews, J., in delivering the ■opinion of the court, says, (at pages 129 and 130 :)
“We think the modern doctrine upon the subject is reasonable, and proceeds upon a just interpretation of the contract of sale. A dealer who sells an article describing it by the name of an article of commerce, the identity of which is not known to the purchaser, must understand that the latter relies upon the description as a representation by the seller that it is the thing described; and this constitutes a warranty. ”
Applying the principles enunciated in these cases to the case at bar, we think the rulings of the justice at circuit were correct. It is alleged by the plaintiffs in their complaint, and assumed on this argument, that the defendants were ignorant of the fact that the articles delivered were not hides. No offer was madeto show that the articles in question were not “Panama hides,” which was what the brokers’ sold note called for, (see Exhibit A,) nor was it offered lo show that they were not “ex Newport, at pier No. 42, North river.” There is no evidence in the case, and none was offered, to show that the defendants were guilty of fraud or deception. The defendants were not manufacturers of the article sold, and they delivered exactly that which they contracted to sell, to wit, the articles purporting to be Panama hides, from the Newport, at pier 42, North river. Without attempting to reconcile all the decisions which have been rendered in the courts in this state upon the subject of implied warranties upon the sale of goods, we think that the decision of the court of appeals in the case of Dounce v. Dow, 64 N. Y. 411, lays down the legal principle which controls this case, and sustains the view .adopted by the learned justice before whom the cause was tried. In that case the defendant ordered of the plaintiff, a dealer, in, but not a manufacturer of, iron, 10 tons of “XX pipe iron,” to be used in the manufacture of castings for farm implements, which required soft, tougli iron. Plaintiffs forwarded iron of the brand specified, and billed it as
“There was no fraud. Both parties supposed, doubtless, that the iron was first quality for the purpose for which it was intended. But it is not enough that the plaintiff knew such purpose. The defendant should have exacted a specific warranty, and then both parties would have acted understandingly. * * * Here both parties acted in good faith. The defendant ordered simply * XX pipe iron,’ supposing that such iron was always tough and soft. The plaintiff forwarded the iron under the same impression. The iron proved to be brittle and hard, and the question is, which party is to bear the loss? The plaintiff (in the absence of fraud) was only bound by his contract, which was to deliver‘XX pipe iron,’ and we are now assuming that such iron was delivered. If so, he was released from liability."”
In the case at bar both parties supposed the articles to be hides. The contract called for Panama hides. As already stated, there was no evidence offered to show that in point of fact the articles were not Panama hides. We think, therefore, that the defendants delivered, and the plaintiffs received, the articles which the one had sold and thes other had purchased; and that under Bounce v. Bow, supra, no recovery could be had by the plaintiffs for the damages alleged to have been sustained by them. Again, even assuming that there was an implied warranty that the articles in question were suitable for the purpose for which the plaintiffs say they designed them, the fact that upon a sale at auction, in open market, the goods which were purchased for $1,840.34 brought the sum of $794.09, nine months after the original sale, goes far to show that the article could not be said, under any circumstances, to be entirely unmerchantable. However that may be, we are of the opinion that the rule of caveat emptor here applies, and, there having been no fraud and no expressed warranty, the plaintiffs, after acceptance of the article, cannot be heard to say that they were not the articles which the plaintiffs contracted to purchase, and which the defendants contracted to sell. Almost all of the exceptions taken to the rulings of the court at circuit relate to evidence offered to show that the goods in question were not hides; and it necessarily results, from the view which we have expressed, that these exceptions are of no avail to the plaintiffs.
There was a further exception, at folio 66 of the case, to the ruling of the court striking out the answer of the witness Healy to the question “whether or not any skins are called ‘hides’ in the trade, or known as such, which have not this quality of being converted into leather by the