274 F. 397 | S.D.N.Y. | 1921
The Sales of Goods Act (article 5 of the Personal Property Law of New York [Consol. Laws, c. 41]) does not change the general rule of the common law that sales of chattels prima facie are made caveat emptor (section 96). It does provide (section 93) that “any affirmation of fact or any promise by the seller relating to the goods is an express warranty,” when reasonably relied on, unless it concern their value or the seller’s opinion of them.
Section 96 of the Sales of Goods Act governs warranties of quality. It provides:
“There is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied * * * except as follows.”
Of the six following subdivisions only two, subdivisions 2 and 4, can possibly be considered relevant. Subdivision 2 reads as follows:
*399 “Whore the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not) there is an implied warranty that the goods shall be of merchantable quality.”
Subdivision 4 reads:
“In the case of a contract to sell or a sale of a specified article under its patent or other trade-name, there is no implied warranty as to its fitness for any particular purpose.”
I have not been able to find any case exactly in point. Dounce v. Dow, 64 N. Y. 411, went off on the question of waiver, and the court expressly declined to pas's upon the question raised here. In Taylor v. Dalton, 3 F. & F. 263, a nisi prius ruling of Baron Martin, the case was very closely in point to that at bar, and the ruling in the present defendant’s favor. Still it is not exactly on all fours with it. In Lindsborg, etc., Co. v. Danzero, 189 Mo. App. 154, 161, 174 S. W. 459, 461, there is a suggestion obiter that the delivery must come up to “the standard of its class,” but it cannot be taken even as a dictum to that effect. Such a dictum occurs in Polly v. Arony (App. T.) 172 N. Y. Supp. 305, 306.
Subdivision 4 has clearly nothing to do with the question; it touches only the warranty of fitness defined in subdivision 1, and that, too, when the sale is of a “specified” article. The warranty here is of merchantability, and the two are not to be confused. Where the buyer specifies what he wants, he can, of course, not rely upon any superior knowledge of the seller that it will serve his purposes. If he did, he must give the seller some latitude of selection. But he may still insist that it must lie of a quality which will pass in the market under that description, and he may rightly rely upon the seller to secure him such a quality.
The supposed insufficiency of the allegation of reasonable notice would seem to me immaterial. Apparently it is only when the buyer demands a rescission under section 150 (3) that he must give notice.
Demurrer sustained. Judgment respondeat ouster within 20 days.
Determination modified by First Appellate Division, and as so modified affirmed (188 App. Div. 886, 175 N. Y. Supp. 917).
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