214 Mass. 227 | Mass. | 1913
This is an action of contract to recover damages for an alleged breach of an implied condition of warranty that
On October 25, 1907, the brokers, Goodlett and Bolles, wrote to the plaintiff: “Your order for a car of sardines to be shipped December 1st is still somewhat up in the air and it is a many cornered deal. While the packers advise us that they have the goods, they have to go through a middleman in Boston.” The goods were shipped and an invoice was sent in the name of the defendant to the plaintiff, and payment was made by the plaintiff to the defendant, which credited it on its account against the packing company. There was testimony from which it might have been found that the goods were not merchantable when delivered to the plaintiff. The sale here in question occurred before Janu
Upon the sale of goods, by name or description, in the absence of some other controlling stipulation in the contract, a condition is implied that the goods shall be merchantable under that name. They must be goods known in the market and among those familiar with that kind of trade by that description, and of such quality as to have value. This is not a warranty of quality. It does not require any particular grade. It is a requirement of identity between the thing which is described as the subject of the trade and the thing proffered in performance of it. The buyer is entitled to receive goods fairly answerable to the description contained in his contract of sale. It does not matter whether the deleterious characteristic is latent or obvious, provided it goes to the extent of changing the nature of the goods, so that they have no value in the market under the designation contained in the contract of sale. This is a general rule applicable alike to all, whether they be manufacturers or dealers or merely sellers. It was declared early in this Commonwealth, and has been adhered to consistently. Mixer v. Coburn, 11 Met. 559, Gossler v. Eagle Sugar Refinery, 103 Mass. 331, Murchie v. Cornell, 155 Mass. 60, Alden v. Hart, 161 Mass. 576, 580, Fullam v. Wright & Colton Wire Cloth Co. 196 Mass. 474, Hanson & Parker v. Wittenberg, 205 Mass. 319, illustrate the principle in its application to sales by dealers, and Whitmore v. South Boston Iron Co. 2 Allen, 52, Swett v. Shumway, 102 Mass. 365, Wilson v. Lawrence, 139 Mass. 318, Leavitt v. Fiberloid Co. 196 Mass. 440, 452, to sales by manufacturers.
This being the governing principle, it is of no consequence whether the seller is a manufacturer or hot, or whether the defect is hidden or discoverable by inspection. Upon a sale even by a casual owner of sardines, he is bound to deliver something which .answers that description in the trade. If he does not, he does not perform his contract. Gardner v. Lane, 9 Allen, 492. Randall v. Newson, 2 Q. B. D. 102,109. Frost v. Aylesbury Dairy Co. [1905] 1 K. B. 608, 613. Jones v. Just, L. R. 3 Q. B. 197. Mody v. Gregson, L. R. 4 Ex. 49, 55, 56.
This rule is quite apart from instances where the sale is of specifically defined goods, whether open to the inspection of the parties
This case does not raise any question as to obligation of inspection upon receipt, or waiver by acceptance or recognition of goods in satisfaction of the contract, West End Manuf. Co. v. Warren Co. 198 Mass. 320, 325, and it is not necessary to discuss these points.
The character of the title of the vendor in this respect is immaterial. If he acts as vendor he is subject to the ordinary incidents of that relation. There is nothing inconsistent with this in Baker v. Arnot, 67 N. Y. 448. The sale in that case was made by the pledgor, to the knowledge of all parties to the transaction. The pledgee simply released his pledge, and transferred possession “in pursuance of a sale made by” his pledgor. He was not
While the substance of the defendant’s ninth and tenth requests well might have been amplified in the charge, the refusal to give them was not error. The jury must have understood that the plaintiff, in order to prevail, was bound to prove that the goods were not merchantable at the time they were delivered to the buyer. This again was concise and correct, and cannot be said to have been inadequate. ;t
The exception to the charge must be overruled. The chief, ground argued in support of the exception to the charge is that the portion to the effect that the jury were “warranted in finding that-the ” defendant and the plaintiff “ were the contracting parties,” was too favorable to the plaintiff. It has been shown already that it could not have been ruled that the defendant was pledgee rather than vendor. The defendant held the warehouse receipt in its own name. This was at least the equivalent of possession of the goods. Other exercise of dominion over the property by the defendant, such as issuing shipping directions and the rendition of a bill in its own name to the plaintiff, were enough to support a finding that the defendant acted as owner in making transfer of the title to the plaintiff in such a way as to warrant the plaintiff in treating the defendant as owner. The defendant fails to show any harmful inaccuracy in the charge as a whole.
Exceptions overruled.