211 A.D. 21 | N.Y. App. Div. | 1924
This action is brought to recover on two causes of action damages alleged to have been sustained by the plaintiff by reason of the breach of warranty on the part of the defendants as to the quality of a quantity of condensed milk sold by the defendants to the plaintiff for export.
The defendants are wholesale grocers in the city of New York of many years business standing. On September 17, 1917, the plaintiff confirmed the purchase from defendants of 1,000 cases of sweetened condensed milk expressly guaranteed to be of United States government standard, at seven dollars and twenty-five cents
The second cause of action was to recover also for breach of warranty on the sale and delivery of a second order of 2,000 cases of the sweetened condensed milk at the price of seven dollars per case F. A. S. New York, which was also to conform to the United States government standard and to be packed in wooden cases
A large amount of evidence was given as to the condition of this milk on its arrival in France. This evidence was by way of depositions taken in France and is uncontradicted by the defense. There was also an abundance of expert testimony offered on the part of the plaintiff showing that the cause of the faulty condition of the milk did not arise after its purchase by the plaintiff, but was due to improper fabrication; that when the milk was received in New York the defects were latent and undiseoverable except by a chemical analysis; that the gaseous condition arising from the improper sterilization would increase and finally all of the cans would burst from the presence of carbonic acid gas. An attempt was made on the part of the defense to show that the condition of the milk might be attributed to heat or other conditions prevailing during the long time which elapsed from the time of shipment at the port of New York to arrival at France, but I think the evidence clearly preponderated in favor of the plaintiff's contention that the whole difficulty was with the improper fabrication of the milk.
The main question presented upon this appeal is whether there was an implied warranty on the part of the defendants, sellers, that the milk which concededly was for human consumption, was wholesome and fit for the use for which it was intended. The appellants urge that the courts have never gone to the extent of holding a seller, other than a retailer, liable upon an implied warranty. While it is true that most of the cases upon the subject, and notably Rinaldi v. Mohican Co. (225 N. Y. 70); Race v. Krum (222 id. 410); Chysky v. Drake Bros. Co. (235 id. 468) and Moses v.
Notwithstanding that the question as to whether an implied warranty extended to the defendant wholesaler in that case was squarely presented, as stated in the opinion, the Court of Appeals does not seem to have decided the question, but merely held that there could be no recovery by the consumer- in that case because there was no contractual relation between her and the defendant, who had manufactured the cake and sold it to plaintiff’s employer. Such being the law as settled by the Court of Appeals, there would be no cause of action on the part of the plaintiff in the case at bar for breach of warranty against the Bridgeton Condensed. Milk Company, which manufactured the milk. In the case at bar the question is squarely presented whether a wholesaler or middle
An abundance of evidence was offered in the case showing the various steps properly taken' in the manufacture of condensed milk, and evidence was also given showing that the fabricators of the milk in question were careless and did not observe the proper care in the manufacture of the goods in question. If we were to hold that there was no implied warranty as between the middleman, the defendants here, and the plaintiff, then the plaintiff would be without remedy, as the plaintiff would have no cause of action against the manufacturer of the milk because of the non-existence of any contractual relation with such manufacturer. (Chysky v. Drake Bros. Co., 235 N. Y. 468.) If that were to be established as the law, then any manufacturer of foodstuffs could put upon the market inferior or even poisonous goods and, if sold through a middleman to a customer, the consumer would have no remedy whatever against any one.
It is also claimed by the appellants that as a part of the contract there was a provision that any claim for inferiority of the goods sold must be made within three months from delivery under the contract. There was no such provision in the original contract, but there was indorsed upon the invoice a provision thus limiting the liability of the seller. I do not think that as matter of law that was any part of the contract. As to the first cause of action, the goods were purchased by the plaintiff verbally and confirmed by the plaintiff’s written order which contained no reference to any such limitation, and immediately .the goods were delivered by delivery of the documents and the goods themselves to the purchaser. As to the second order, acknowledgment was made in
Claim is also made by the appellants that special damages were improperly allowed to be passed upon by the jury. The case was here on a foimer appeal and a reversal was had mainly upon the ground that no special damages were alleged in the complaint. (205 App. Div. 358.) Since the reversal of the former appeal the complaint was amended, and apparently the objection raised by this court upon that appeal was met and cured by such amendment.
The judgment and order appealed from should be affirmed, with costs.
Judgment and order affirmed, with costs.