Poovey v. International Sugar Feed No. Two Co.
133 S.E. 12
N.C.
1926
Check Treatment
Brogden, J.

The merit of this ease involves two questions:

(1) Is there an implied warranty in the sale of feed for cattle and the nature thereof?

(2) Is there sufficient evidence of a breach thereof to be submitted to a jury?

“The authorities are numerous that there is an implied warranty that runs with the sale of food for human consumption, that it is fit for food- and is not dangerous and deleterious.” Ward v. Sea Food Co., 171 N. C., 33.

However, it has been held that this principle does not apply to sales of feed for cattle. For instance, in Lukens v. Freiund, 27 Kan., 664, the late Justice Brewer reasoned thus: “Upon what ground is an implied warranty rested in the case of the sale of provisions, which does not exist in the case of a sale of other articles ? Obviously it is not upon any property grounds, or because thereby the estate of either party is affected; but for reasons of public policy, for the preservation of life and health, the law deems it wise that he who engages in the business of selling provisions for domestic use should himself examine and know their fitness for such use, and be liable for a lack of such knowledge. . . . Kegard for human life compels this. If the preservation of human life and health be, as we think it is, the foundation of this exception, then it should not be extended to cases in which human life and health are in no wise endangered.”

*725 Tbe Luken’s case grew out of tbe fact tbat a farmer bought a sack of bran. In some way two copper clasps bad gotten in tbe sack of bran. One of plaintiff’s cows swallowed tbe clasps which poisoned and killed her.

Tbe identical principle is held to be tbe law in Dulaney et al. v. Jones, 100 Miss., 835: “It is argued'with much ability, by tbe appellees, tbat an implied warranty of soundness arises only in eases where tbe food sold is for human consumption. After a careful consideration of tbe question, our conclusion is tbat, according to tbe weight of authority in this country, there is an implied warranty of soundness in tbe case of tbe sale of provisions intended for human food, but with food for other purposes there is no implied warranty of soundness. This is put upon tbe grounds of public policy, tbe controlling reason being tbe regard for human life and for human health.”

Tbe facts in tbe Dulaney case, supra, were tbat tbe plaintiff sold certain feed stuff for tbe defendant’s mules, and tbat said feed stuff was decayed, rotten, unfit and unwholesome, causing sickness among tbe mules and tbe death of six of them. National Oil Co. v. Young, 85 S. W., 92 (cows killed by eating cotton-seed bulls containing nails and pieces of wire); Newell v. Reid, 189 Mich., 174 (cows killed by eating bran which contained arsenic); Coyle v. Baum, 3 Okla., 695; Houk v. Byrd, 105 S. W., 1176; Piper Co. v. Oppenheimer, 158 S. W., 777, L. R. A., 1917-F-475; Ann. Cas., 1918-B, 24 R. C. L., 469.

We think tbat tbe correct rule of liability governing such cases is thus expressed in tbe case of Swift & Co. v. Redhead, 122 N. W., 140 (Iowa), which involved a sale of cattle feed: “Tbe jury might well have found tbat tbe purchase of tbe blood meal for a particular use known to tbe seller, and for which tbe latter assured tbe buyer it was suitable, and tbat tbe buyer relied thereon, and, if so, this amounted to a warranty tbat tbe article in question was reasonably fit for tbe use both contemplated.” Reiger v. Worth, 130 N. C., 268; Ashford v. Shrader, 167 N. C., 45; Grocery Co. v. Vernoy, 167 N. C., 427; Furniture Co. v. Mfg. Co., 169 N. C., 41; Register Co. v. Bradshaw, 174 N. C., 414; Farquehar Co. v. Hardware Co., 174 N. C., 369; Swift v. Etheridge, 190 N. C., 162.

In addition to tbe implied warranty growing out of such sales, there is also a statutory warranty created by tbe provisions of C. S., 4724-4726-4731. So that a seller of “commercial feeding stuffs,” as defined by law, must supply a product reasonably fit for tbe use contemplated by tbe parties, and also such a product as will measure up to tbe requirements of tbe statute.

Therefore, tbe rules of liability in such cases having been established, tbe vital question to be considered is whether or not, in this particular *726 case, there was sufficient evidence of a breach of the implied or statutory warranty. The evidence tends to show that in this particular case there were about 400 bags of feed; that plaintiff sold a large portion of the feed to other cattle men, who fed it to their cattle. Some of the cattle in some of the herds, after feeding, showed signs of sickness. In other herds no ill effect was discovered. The plaintiff testified that he began feeding his herd, consisting of about forty head of cattle, about the 15th or 16th day of December, and fed it to all of his cattle. He also testified: “It was some time the last of December or the first of January when I first noticed the cattle showing symptoms of sickness. I can’t tell you the exact date.” He further testified, referring to the two cows that died, “I also fed them some wheat straw and some roughness.” After the cows died the feed then remaining was taken up by the defendant and examined by the feed inspector of the Department of Agriculture of North Carolina. He testified that he found nothing wrong with the bags or with the feed, and that “the analysis agreed with the analysis on the tag.” Thereafter a chemical analysis was made and the result thereof described by the witness as follows: “I did not find any poison or deleterious matter in it. As far as the chemical analysis goes the substances that I actually found were entirely all right. I did not find anything that has been found to be injurious to cattle.”

The conclusion from the testimony is irresistible that the only evidence of a breach of warranty was the fact that after feeding the product for ten days or more two of plaintiff’s cows died from what was diagnosed as ptomaine poisoning. No analysis of the stomach of the dead cows was made, and it appears from the record that the particular cows that died were also fed with “wheat straw and roughness.” The mere sickness and death of the cows is not sufficient evidence in itself to establish a prima facie case of breach of warranty. The doctrine of "res ipsa loquitur’’’ does not apply to a breach of warranty. Oregon Auto-Dispatch v. Portland Cordage Co., 95 Pac., 499.

There is no more reason to conclude that the cows died from this particular feed than that there was some deleterious or injurious substance in the “wheat straw or roughness” that was fed to them at the same time. “The rule is well settled that if there be no evidence, or if the evidence be so slight as not reasonably to warrant the inference of the fact in issue or furnish more than materials for a mere conjecture, the Court will not leave the issue to be passed on by the jury.” Brown v. Kinsey, 81 N. C., 244; Liquor Co. v. Johnson, 161 N. C., 77; S. v. Prince, 182 N. C., 790; S. v. Martin, ante, 404. This rule is both just and sound. Any other interpretation of the law would unloose a jury to wander aimlessly in the fields of speculation.

*727 ¥e bold, therefore, that the evidence of the breach of warranty was not sufficient to be submitted to the jury, and that the motion for non-suit should have been allowed.

We are not inadvertent to the contention of the plaintiff that the letter written by the defendant, after the feed had been delivered, advising “there was nothing wrong with the feed ... go ahead and feed it,” constituted an express warranty. Conceding that this amounted to a warranty, it was not made contemporaneously with the sale, and there was neither allegation nor proof of a consideration to support it. Hence, such a contention is not available in this case. Underwood v. Car Co., 166 N. C., 458.

Error.