Provost v. Cook, 184 Mass. 315

184 Mass. 315 | Mass. | 1903

Hammond, J.

While the evidence was conflicting and a verdict for the defendants might reasonably have been expected, still we think that it would have warranted a finding that paris green was kept at times by the defendants upon the shelf upon the east wall of the room in which the oats were kept, and sometimes packages of it more or less broken were allowed to be in other parts of the room; that it was so kept and scattered about the room at the time of the fire, and that by reason of the fire, the water used in extinguishing it and the attendant confusion, the oats in the room, of which those sold to the plaintiff were a part, were exposed to this poison and to a liability to be impregnated with it to such an extent as to be poisonous as food for animals, and that all this was known to the defendants. There was evidence tending to show also that the buyer bought the oats to be fed to her horses and cattle, that this was known to the defendants, that the oats were poisonous, and that the horses died from the effects of the poison.

If such were the facts, then the case is within the rules laid down in French v. Vining, 102 Mass. 132 , and the plaintiff is entitled to recover, unless a distinction is to be made between the two cases upon the ground that here the oats were known to be somewhat damaged and were bought as such. It is strongly insisted by the defendants that the rule of French v. Vining is not applicable to the case where the goods sold are known to be damaged. But in this case the damage which the parties had in contemplation was that which arose from dampness and other similar causes, and it cannot be assumed that either party supposed that the difference in price was due to the existence of a deadly poison in the' oats. Although the oats were in some respects unsound, still it was in the contemplation of the parties that they should be fed to the buyer’s animals, and under such circumstances the reason for the application of the rule is as strong as in the case of oats sound in all other respects.

Exceptions sustained.