Hight v. Bacon, 126 Mass. 10

Hight v. Bacon

126 Mass. 10 | Mass. | 1878

Colt, J.

The judge before whom this case was tried found as a fact that there was no express warranty by the plaintiffs of the quality of the leather sold to the defendants; and ruled, as matter of law, that, on the evidence stated in the bill of exceptions, there could be no implied warranty binding upon the plaintiffs.

There was nothing at the time of the sale said by either party of the purpose for which the leather was bought; and the evidence that the defendants were manufacturers of boots and shoes, and at the time of the sale asked the plaintiffs if the leather would crimp, is not sufficient to prove an implied warranty on the part of the plaintiffs, that the leather was suitable for the purpose of being manufactured into boots and shoes, even if the plaintiffs supposed it was bought for that purpose.

It is said that when a manufacturer or dealer contracts to supply an article which he manufactures, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is, "in that case, an implied warranty that the article is reasonably fit for the purpose to which it is to be applied. French v. Vining, 102 Mass. 132, 135. Jones v. Just, L. R. 3 Q. B. 197. But where the purchaser inspects for himself the specific goods sold, and there is no express warranty, and the seller is guilty of no fraud, and is not himself the manufacturer of the goods sold, the doctrine of caveat emptor applies. Barnard v. Kellogg, 10 Wall. 383. Cunningham v. Hall, 4 Allen, 268. Dounce v. Dow, 64 N. Y. 411.

The case at bar is an action upon an executed sale by one dealer to another of a specific quantity of leather, which the seller did not manufacture, and as to the quality of which he had no superior information. The parties stood on an equal footing; the buyer had full opportunity to examine the goods in the store of the plaintiffs, and did, in fact, examine two rolls, which were fail *13samples of the lot. There was no fraud practised. The leather appeared to be good, and both parties believed it to be good and suitable for the purpose of being manufactured into boots and shoes. It is plain that the buyer inspected and selected the leather himself, without relying on the skill and judgment of the seller. The particular use which was to be made of it was not made known by the buyer at the time of the sale, in such a way as to indicate a purpose to put upon the seller the responsibility of furnishing an article reasonably fit for the purpose to which it was to be applied. The defect complained of was a latent defect. Howard v. Emerson, 110 Mass. 320. Deming v. Foster, 42 N. H. 165.

The defendants offered to prove a usage of the trade, which gives the buyer a right to revoke the contract where leather which appears to be good is sold as good, but turns out to be rotten and nearly worthless. But this defence is not open under the answer in this ease. The answer does not allege' that the sale had been revoked by - the defendants. It is unnecessary to consider whether the usage offered to be proved is a valid usage.

Exceptions overruled