Leopold v. Van Kirk

27 Wis. 152 | Wis. | 1870

DixoN, C. J.

What was the meaning of the express contract that the defendants would pack the hams in their usual good style and in a proper manner for the Lake Superior trade, as testified by the defendant Rodáis, or of the warranty, as testified by the plaintiff Leopold, that, knowing the hams were purchased for that trade, the defendants warranted them ? Did the express contract or the warranty mean, ordinary and proj>er care being observed in their shipment and transportation, that the hams should in every other event be in a sound condition and fit for use when they reached their place of destination on Lake Superior ? Was it the intention that the defendants should assume this responsibility, or were they to be responsible only that the hams were in a sound and suitable condition for the voyage at the commencement of it, or at the time of delivery to the plaintiffs 1 There is or may be a most material difference in the effect of these obligations, or the extent of the liability incurred by them. It is not impossible in the nature of things that, even with the utmost care and watchfulness for their safety and preservation, causes might have intervened after delivery to the plaintiffs, and pending the transit, which rendered the hams unwholesome and unfit for use; and those causes may not have been traceable to, or may have been wholly unconnected with, any defect existing in the quality of the hams or in the manner of packing and cure at the time of delivery. It may be said, and may be true, that the intervention of such causes was quite improbable; but it is enough to illustrate and sustain the materiality and truth of the proposition, if by possibility such causes might have existed, and might have produced the injuries complained of. The operations of nature in such cases are often most hidden and mysterious, and we cannot assume that no such causes could have intervened; nor can we know what the jury would have said, had the question been submitted to them upon the testimony which was before them, but is not before us. It is material, therefore, to inquire into the construction and true meaning of the contract or warranty in this respect, or whether it related to the quality and condition of the hams at the time of delivery to the plaintiffs, or at the time, they should arrive at the port of destination on Lake Superior; for upon this the correctness of the instructions of the court below to the jury principally depends. And in determining this question we are to be guided by the language of the contract, or what was said between the parties, alone, as no usage of trade or custom of dealers in such cases, by which the contract is to be governed or interpreted, was shown.

Our opinion is, that the express contract or warranty, if it be properly so called, is the very same which the law would have implied, or did imply, under the same circumstances, unless it was modified by the fact that the plaintiffs knew the hams were freshly packed, and therefore received them subject to any risks or defects arising from that cause, a point not necessary now to be decided, and which we do not decide. The general rule of law with respect to implied warranties is well settled, that when the manufacturer of an article sells it for a particular purpose, the purchaser making known to him at the time the purpose for which he buys it, the seller thereby warrants it fit and proper for such purpose, and free from latent defects. This rule has been applied to cases like the present, where the article sold was provisions designed for a foreign market, and the purpose of the buyer was made known to the seller at the time. It was so applied in Pease v. Sabin, 38 Vt. 432, where the sale was of a quantity of cheese by the party who manufactured it, and he was informed that such was the purpose of the buyer. The court held, and we think correctly, that upon a sale under such circumstances, for a round price, and without examination by the purchaser, and especially where the article sold was subject to latent defects which could not be discovered by him, the law would imply a warranty that the article was fit for the special purpose for which it was bought. And see also, Bigge v. Parkinson, 7 Hurlstone & Norman (Exch.), 954. And the same rule applies here. The defendants were engaged in the preparation or manufacture and sale of an article of provisions which required skill and experience in its production, and which was subject to certain latent defects; and when applied to by the plaintiffs to furnish or sell them the article for a specified purpose, the law implied that they warranted it to be as fit and suitable, for the purpose named, as any good, sound, well prepared article of its kind would be, except, perhaps, so far as they may have informed the plaintiffs to the contrary. But this warranty related to the condition of the article at that time, and did not cover any future condition of unsoundness proceeding from any cause or defect not then existing, or which afterwards supervened. It did not have reference to the condition of the article at the end of the voyage, or in the foreign market, provided it became damaged or unsound from any cause or defect originating after the sale and delivery. To show a breach, therefore, of such warranty, the jury should be satisfied from the evidence that it was defective at the time of sale, and should be instructed that they must so find.

And this, we think, was the precise character of the warranty shown or claimed to have been made between these parties It had relation to the condition of the hams at the time of sale, and not to their condition at the place to which they were to be transported, unless such latter'condition originated in defects existing and unknown to the plaintiffs when the sale took place.

The court below, among other things, instructed the jury as follows: “ I shall direct you, gentlemen, on the question of law in this suit, that is, as I understand the law, that if Mr. Leopold went to Mr. Rodáis, and informed him that he desired to purchase 121 tierces of hams for the Lake Superior trade, and the reply of Mr. Rodáis was, that he would furnish them, and put them up in his usual good style and manner, there was an implied warranty there, that the articles furnished should be such as the warranty called for, and that would be good merchantable articles, and fit for the Lake Superior trade. If you are satisfied from the evidence that such an implied warranty is sustained by the proof, then how the hams became injured or spoiled is not a question for your consideration.” This instruction was excepted to by the defendants, and the last sentence or proposition was clearly erroneous according to the views above taken. The evidence, so far as the bill of exceptions discloses it, related to the spoiled and unsound condition of the hams after they arrived at Lake Superior; and whilst it may be true that the jury might or would have found that this proceeded from defects existing at the time of delivery to the plaintiffs, yet the instruction took from them the consideration of that question. It also took from them the consideration of the other question, intimately connected with that, and which in reality amounts to the same thing, that is to say, whether the hams might not have been injured from some cause arising after they came into the possession of the vendees. The jury were told, if they found the facts from which the warranty was implied, then how the hams became injured or spoiled was not a question for their consideration. It was, as we have seen,, a most important and material question to be considered and determined by the jury; and for this error the judgment must be reversed, and a venire de novo awarded.

By the Court. — Let judgment he so entered.