105 Wis. 315 | Wis. | 1900
The learned circuit judge, in granting the nonsuit, followed Seixas v. Woods, 2 Caines, 48, and a few other authorities in this country in harmony therewith, most of such authorities being decisions of the supreme court of Pennsylvania to the effect that, in the sale of an article, wTith opportunity on the party of the vendee to inspect it before purchasing, the vendor being neither' the manufacturer nor producer of such article, the maxim caveat emptor applies both as to the quality and identity thereof. The Seixas Case was decided in 1S04. Kent, J., who wrote the opinion, grounded the decision on Chandelor v. Lopus, Cro. Jac. 4, decided in 1603, where it was held that if a person sell a thing for what it is not, falsely but innocently
This opinion might be extended to great length by a review of the cases on the subject under consideration, but we shall forego any long discussion of the matter. The Seixas Case was overruled in Hawkins v. Pemberton, 51 N. Y. 198. The law as there stated has been since followed in New York. White v. Miller, 71 N. Y. 118. In the Hawkins Case it was said that the court in Seixas v. Woods, followed Chandelor v. Lopus, Cro. Jac. 4, the doctrine of which being that a mere affirmation as to the character or quality of goods sold will not constitute a warranty, and that such doctrine has
'With but few exceptions, which we shall not take time or space to refer to specifically, the judicial authorities and the text writers as well are in harmony with the foregoing. Biddle, Warranties, § 108. That rule is just. It holds a dealer responsible for breach of contract when he sells a thing as being of a particular kind, if it does not answer the
Applying the principle stated to the fact’s of this case, Vhat was the contract between the parties ? Upon what did their minds meet? The answer must-be, that the defendant would sell to the plaintiff rape seed and that the seed delivered was of that kind. Opportunity on the part, of the plaintiff to inspect does not militate against his right to insist upon the condition of the contract as to the identity -of the article delivered being made good,, since he relied wholly on his contract, not knowing- whether the article he-received answered such condition or not, and not being chargeable with negligence because he did not know. In-such a case the doctrine of implied warranty does not apply,, but the doctrine of express warranty does. No particular form of expression or words is necessary to make an express-contract of warranty. The word “ warranty ” is not necessary to it. An affirmation of the fact as to the kind or quality of an article offered for sale, of which the vendee is ignorant but upon which he relies in purchasing such article, is as much a binding contract of warranty as a formal agreement using the plainest and most unequivocal language on the subject. In Benj. Sales (6th ed.), 623, 625, as conclusions from a review of authorities in this country and England, including the New York cases overruling Seixas v. Woods, it is sard: “ All agree that any positive affirmation.
It follows from the foregoing that the decision of the trial court that the doctrine of caveat emrptor applies to the facts of this case, and that the evidence does not justify a finding that the defendant warranted the seed to plaintiff to be rape seed and that he was entitled to recover for a breach of it, was erroneous, and the nonsuit was improperly granted. ,
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.