18 Mich. 51 | Mich. | 1869
Lead Opinion
To a suit for the balance remaining unpaid on the price of the carcases of three hogs sold by Peters to defendants' below to be used as food in their lumber camp, they set up, by way of recoupment, that one of the carcases was unsound and unfit for use. The purchase was made from the son of Peters, who was informed, at the time, of the purpose for which they were bought.
The Court refused to charge that, if such facts existed, Peters could not recover for the unsound article, and was liable on an implied warranty of soundness, but on the other hand instructed the jury that where a person, as in this case, sells goods in open market, there is no such implied warranty, and no liability for faults in the absence of deceit, fraud or special warranty.
It seems to be settled by many authorities that no implied warranty of soundness arises where such articles are purchased by a dealer to sell again.
Whether this rule arises from the fact that any injury from the use of the articles is likely to be remote and not readily traced out, or because, where his purpose in buying is merely speculative, one commodity is not to be distinguished from another in its incidents as merchandize, or what special reasons have led to it, cannot easily be deter
But where property is. bought for a particular purpose, and only because of its supposed fitness for that, there are many cases in which a warranty is implied, unless the purchaser has seen fit to act upon- his own responsibility and judgment. And where articles' of food are bought for consumption, and the vendor sells them for that express purpose, the consequences of unsoundness are so dangerous to health and life, and the failure of consideration is so complete, that we think the rule which has often been recognized, that such sales are warranted, is not only reasonable but essential to public safety. There may be sellers who are not much skilled, and there may be „ purchasers able to judge for themselves, but in sales of provisions the seller is generally so much better able than the buyer to judge of quality and condition, that if a general rule is to be adopted, it is safer to hold the vendor to a strict accountability than to throw the risk on .the purchaser. The reason given by the New York authorities,'in favor of health and personal safety, is much more satisfactory than the purely commercial considerations which take no account of these important interests. While the question has not perhaps been very often decided, the; principle has been generally accepted among the legal writers, and we feel no disposition to recede from it. We have been pointed to no distinction between sales in one market or añother, and can conceive of no special reason for regarding one sale for this purpose as differing in its incidents from any other. The doctrine seems to be that any purchase for domestic consumption is protected.
We think, therefore, that for this reason the judgment should be reversed, ’ and a new trial granted. The other points seem to have been presented properly.
Concurrence Opinion
If, in addition to what appears in this case, it had further appeared that the plaintiff below, when he sold the property, lcnew it to be diseased, or had it appeared that he was the keeper of a meat market or butcher’s shop and was engaged in the business of selling meat for food, and therefore bound or presumed to know whether it was fit for that purpose, I should have concurred in the opinion my brethren have expressed. But as the case does not show that plaintiff knew any thing more of the condition of the property than the purchasers, who seem to have had the same opportunity to judge for themselves, and plaintiff is not shown to have been engaged in a business which would authorize any presumption of knowledge, I do not think that in making this casual sale he was under any obligation of ascertaining at his peril the condition of the property in this respect.
In such a case the maxim of caveat em,ptor should, I think, apply. I therefore concur in the opinion of the Circuit Judge who tried the cause, as in my view founded on the better reasoxr, and supported by the greater weight of authority.
