9 Daly 469 | New York Court of Common Pleas | 1881
[After stating the facts as above.] There was no implied warranty that the meat was sound. It was not sold to a consumer but to a dealer, to be sold again (Hyland v. Sherman, 2 E. D. Smith, 238). There was no fraud on the part of the vendor, and no warranty, and the sale was executed. In such cases the buyer takes all the risks if he have an opportunity to inspect the goods. If he would be protected against latent defects he should require a warranty (Waring v. Mason, 18 Wend. 425; Wright v. Hart, Id. 449, 453; Swett v. Colgate, 20 Johns. 196; Moses v. Mead, 1 Denio, 378; Beirne v. Dord, 5 N. Y. 95-98 ; Hyland v. Sherman, supra; Goldrich
In this case the defect in the goods was latent. It could only be discovered by dissection. The buyer did not require a warranty from the seller, but contented himself with the inspection of the calves which he personally made at the defendants’ stand. He and they had equal knowledge and means of knowledge of the condition of the calves at the time. The rule of caveat emjptor applies. The plaintiff here, as in the case of Hyland v. Sherman, made all the examination he deemed necessary, before purchasing, but took no warranty against what he could not discover, and was therefore without remedy. In Goldrich v. Rya/n, it was shown that the defect could not be discovered until the cattle were slaughtered, just as in this case the defect could not be discovered until the carcasses were dissected ; yet the buyer had no remedy.
Where the article appears to both vendor and vendee to be sound, and both have equal knowledge on the subject, no warranty against latent defects can be claimed unless such a contract be proposed to and entered into by the vendor. “ If the purchaser wants an undertaking that the goods are sound or merchantable, he asks for it; and then the vendor decides for himself whether he will make such a contract or let it alone ” (Bronson, Ch. J., in Moses v. Mead, above).
The judgment should be reversed, with costs.
Charles P. Halt, Ch. J., and Van Hoesen, J., concurred.
Judgment reversed, with costs.
