*1 120 353 & v. RIVERS BUILDERS MASONRY THREE
SPENCE SUPPLY, INC. Findings Nonjury Appeal of Trial Court— Case — and Error — 1. Evidence. nonjury in case that a certain individual Findings of trial purchasing in employee of de- agent or not the constructing cottage, in of lake used walls blocks fective cinder an- blocks constituted breach of the defects the purposes warranty fitness for the sold as their evidence, used, competent no. supported by and that being warranty had been made defendant express Court, testimony does not binding upon Supreme the where are way (CL 1948, §440.15). other preponderate the Appearance—Merchantable Quality Blocks — 2. Sales —Cinder and Fitness. safety durability, well as structural Appearance, as determining quality the merchantable important factor (CL. cottage of a lake blocks walls fitness of cinder used 1948, 440.15). § Against Manufacturer —Contracts—Torts. 3. Same —Action basically involved in an action- notion contractual to a for breach of against largely to the of trade has do with in the course product sold against party bring he seeks right party of a his action suffered, injury idea hold, regardless of the while tort right nothing do with whatever to has care lack 440.15). (CL 1948, bring recovery affect the action § [5] [7] [3] [3, [1] 8] 46 Am 3 Am 12 Am Am Am Jur, Appeal Jur, Jur, Jur, Jur, References Sales 711 Sales Contracts Torts § § and Error et 723 et § 96. § 273. seq. seq. Points §§ 900. Headnotes Thebe Rivers in Manufacture of Goods. 4. Same —Care only degree sales, one of care is, There law of may reasonably of care required standard which expected given situation, all the under circumstances of arising whether *2 1948, building (CL in the of manufacture food or materials 440.15). § Implied Warranty Negligence—Pleading. of 5. Same —Breach — implied warranty by An for of an action breach a manufacturer is, analysis, produet of a the last bottomed on and by pleaded plaintiff. so should be a 6. Courts —Rule of Law —Precedents. A of rule law that was laid down in former times is without proper present grounds foundation for application, where the upon whieh it was laid have vanished. down Implied Warranty Injuries— of —Personal 7. Sales —Breach Property Damage Privity. —Lack of person injury personal property A who either has suffered damage by reason of breach of a manufacturer’s warranty negligent product of manufacture recover, notwithstanding happened lack there to be a of injured of and the contract between person. Implied Warranty Privity — of Contract. 8. Same —Breach general necessary asserted rule that it was there purchaser plaintiff, the ultimate contract between by product defendant and sold in the manufactured general trade, for course of in order to hold defendant liable (CL longer breach of is no the rule in this State 1948, 440.15). § Dethmers, J., Kelly, JJ., dissenting. C. and Carr and from Appeal (Mark S.), St. Andrews J- Joseph; (Docket January 8, Submitted 1958. No. Calen- 47,106.) Rehearing dar No. 12, 1958. Decided June July 15, 1958. denied
Action Helen Three Rivers by W. against and Builders cor- Masonry Supply, Inc., Michigan for from breach ex- poration, damages arising cinder- press respect and warranties block material. for defendant. building Judgment Plaintiff and remanded. appeals. Reversed
122' plaintiff. for Jones, B. Carroll counsel Howard, & R. Lloyd Fayling (Howard rehearing), application for defendant. cottages a, Plaintiff owned several J. Voelker, was built from one of which area, resort lakeside building- and sold manufactured cinder blocks after the purposes A few months the defendant. many cottage chip to crack, the blocks started built popping pit explode into a and, also, flak- followed numerous craters, of minute series unsight- exuding ings powdery deposits and ly yellow travelling- known “bleed- stains red ing.” phenomena strange were occurred and These cottage, apparent both inside outside forming wall surface. most of interior blocks by plaintiff made to cor- efforts were Some fruitless finally brought suit for situation, rect the and she *3 damages against of the cinder grounding upon an ex- her claim of breach blocks, press warranty warranty upon of an also, breach
and, qual- the of that blocks were merchantable ity the under statute hereafter cited. jury.
The case was tried the court without before testimony, pro hearing con, After and the express found that there was no and fur- ther. found that while blocks were indeed defec- of an tive and constituted ranty, breach war- against plaintiff held nevertheless because privity plaintiff of lack of of contract between and appeals manufacturer. Plaintiff here defendant any claiming that in event that there was and despite any her she was entitled maintain action privity. lack question in this out of arose disputed
the fact that one Forrest degree Cook was plaintiff capacity and active on behalf of ' Three Rivers purchase of the defective blocks and in the build- cottage. ing Both Cook testified (Cook by deposition Florida) taken in below he was
merely agent employee ordering her erecting cottage, the blocks and urges now wrong finding that therefore the court was holding priv- that there in fact was lack of ity her between and defendant. Defendant for its part testimony tending and offered claims below employee agent show that Cook was not such an independent building was an but himself contractor who had purchased the blocks from defendant, thus liability insulating plaintiff. all the latter from urges regardless any priv- further Defendant ity it, or lack of law under there can be recovery by plaintiff against it in these circum- stances. proofs
Plaintiff offered that the below blocks were defective indicated but that none such defects apparent they were to her or to when Cook were cottage. to her delivered erected into the She tes- cottage tified that on one side alone she count- pitted imperfections ed over 1,200 in the blocks measuring from of an inch to 3 inches, besides 1/4 many dispute smaller ones. There is no serious although that the blocks were defective, as claimed, dispute the defendant does the extent and conse- quences thereof. Proofs were also offered adequately defendant failed to test and examine the properly that went materials inspect into the blocks or completed or test the blocks. expert testimony
There offered on behalf plaintiff by engineering department the head of the *4 university aof Midwest that “before-and-after” in- spection could and should have been made of the and of blocks the materials that went into that them; internally; of about the blocks were cracked 25% largely and that the deterioration was internal and (cid:127) trial court sustained progressive in character. by expert objection opinion this an to a defense long it and how the'rapidity deterioration to open because of wall would be the take before would the defects. gen- witness defense cross-examination
On company that manager testified of defendant eral company against supply a claim made defendant (which for cinder had furnished materials in turn proper by it) failing ma- furnish to made blocks company (defendant his thereafter and that terials, stopped making here) blocks. cinder that the cinder court found the trial noted, As that this constituted were defective blocks breach of warranty goods the were that an contrary quality, subsection of merchantable § (CL 1948, 440.15 uniform sales act section 15 the 19.255]) creating § [Stat certain circum- Ann under goods sold shall stances quality; also, that it never- and, be of merchantable against the lack theless because found privity. applied trial In other words the “general a manufac- the so-called rule” that this case to a otherwise turer not liable for con- with whom had no direct remote vendee relations. tractual competent conflicting appears if
There tes- timony finding record sustain court’s employee agent that Forrest Cook purchasing blocks; that there was the no by plaintiff;
express warranty made defendant to that the as claimed. "We blocks were defective say testimony preponderates the oth- cannot way and we therefore think we are bound those er By findings. token we think we factual same finding likewise bound are court’s in the constituted a breach an im- defects plied blocks purposes warranty as their for the fitness *5 Three Rivers by sold used. Whether we are also to be bound holding plaintiff the court’s that the is barred from by her action lack of contract with de- major fendant will constitute the concern of the opinion. balance of this plain opinion
It is from the record and the of the court below that it would have doubtless found for plaintiff the privity. if it had not also a fatal an found lack of intervening- view
Under its the fact that person (Cook) bought the blocks from defendant completely served to insulate the defendant from any liability to the lack of because of con- rapport. tractual we find that our
Thus in is classic its sim- plicity plaintiff only gone yet : near and far; was if so she had bought through or herself blocks unquestioned agent employee or she would doubt- finding recovered; less have but the on dis- court’s puted testimony instead, that Cook a contrac- was, recovery privity. tor barred her for fatal lack Despite oblique by suggestion here made defend- plaintiff might ant that have or that sued Cook Cook plaintiff’s should have the fact it, sued is that dilem- complete: ma is her cannot she now turn around and sue Cook; man is oath she committed under on that past point (moreover far of no he one return Florida); in nor can Cook sue defendant; aside from presumable nicely his lack of interest he likewise deposition he his below that committed was mere- plaintiff’s ly employee agent purchasing why all this reason blocks. While is likewise no she prevail, appear plain rather would should appeal her must lose both chance being squarely whole of ever made unless we hold wrong holding the court was law that below necessary condition of contract was recovery present- shall these circumstances. We doing ly so shall de- consider that before issue, considering some other paragraph vote related issues. no,
Defendant defects suggests that, privity do not safeness inhabita- impair in the blocks have noted bility We cottage. *6 even
testimony plaintiff, granting but disputed by position correctness of defendant’s disre- (and fact, here that the widowed garding ap- that make her in part living great to at least of pears the care sweepstakes: and American competitive not hesitate to of we do housing migrant tourists) in aside) issue these circum- (the hold of privity and in as well age stances this day appearance important is an safety durability as structural quality in the merchantable factor determining in of these as used this products fitness particular in expert testimony case. Moreover there is internal that the deterioration the blocks is record at some undefined future and will progressive the structure. As de- endanger time probably ap- contention that nevertheless fendant’s renting “bleeding” to her cot- pears hy proofs be no defense at that would still good rates, be tage factor whatever (privity again aside), the merits or possible the determination be might properly to face up We now mitigation damages. proceed of privity issue in this case: Should lack to big action a matter law? bar this correctly observed, there is lit- As the below our has for the most tle doubt Court past rule” and “general followed the been devotedly part “not in person privity” a third permit reluctant from a on a theory manufacturer negli- recover correspond- or And it has implied warranty. gence recovery beyond been to extend reluctant ingly — involving- termed “food” cases loosely what other defective re- injuries- products, personal —to injuries they personal whether involved gardless ' v. Three Rivers injuries property. (Smolenski Libby, Mc- Libby, 329.) Neill & 280 Mich past In fact, in these situations we have only severely not tended limit the factual area of recovery equally ready have shown an dis- position adopt dreary and embrace the whole le- gal apparatus long employed and. rhetoric so prevent any recovery these situations to narrow or ' open at phrases all. Some of these sesame are: whether there -was the defect was latent or or the lack it;of whether
patent; whether or not the offending product original package; was sold in the vague requirement “higher degree whether a of a might application care” sometimes alter the of “the rule;” product or whether the defective did did or “inherently imminently danger- contain ous” article or substance harmful to humans.' We do equally not exhaust the list. There are im- other pressive catch-phrases, and ominous and awesome bogs negotiated by have been some of the semantic *7 appellate particularly ours and other courts when in they attempted by harsh cases have such artificial n “exceptions” get imposed by to around the barrier equally “general their own bility.' artificial rule” of nonlia- have Sometimes even we been to inconstant “the' occasionally rule;” even we have faltered our rev erence for the doctrine of hallowed Smolenski long the Damm, line of related cases. Thus- in Bosch v. strayed Mich far we so from the paths approve recovery of virtue toas below in an by action of a remote vendee company against fire householder and his insurance refrigerator the manufacturer of a defective which managed, quickly a however, caused fire. We to flirtation with atone for our brief modern doctrine departure temper past by our heretical from the grounds.' judgment other, vacating the on Thus, Michigan (which notably exceptions dis- be few lightning legal heat as occasional flashes missed attempt any genuine the trou- than to clear rather pretty atmosphere) in this much we have area bled repeat le- of the old to most continued embrace and day. right present gal This formulas down to the censure; single to our own for undue not out Court paraphrase days, old title the in earlier to the it;” song, “everybody doing writer would was himself; the at time done it doubtless one have question presently is whether before the Court going an obso- are to hobbled such continue be exceptions. swarming progeny lete rule and fleeting departure Thus if from another brave Co., 310 norm occurred in Ebers v. General Chemical ap- (17 660), decision Mich 261 proved NS where our NCCA recovery by remote vendee the notion of against the insecticide manufacturer of defective peach proofs where trees showed adequately product his manufacturer had tested It will that this was trees. be observed recovery inju- anot food nor restricted person. hopeful to the for- ries This was stride again ward, but there we showed an unfortunate (while disposition circumventing to bow the notion of it); again compelled there we felt repeat many mystical platitudes old phrases long ritualistic our decisions have so cluttered Ebers, this area. That however right away did not clear the confusion result, may perhaps best shown result in this trial years again case, later, dozen-odd when once some obliged expensive litigants are trek to make unpredictable imposition Lansing because of the the old rule. *8 hair-splitting with doctrine and its Saddled such surprising exceptions, that while few it is not illusory passing afforded comfort decisions have our v. Three Rivers certainty been afforded to none. The all, to has lacking simple: a clear un- A court reason is scarcely own can be ex- rule of its derstandable impart Legal pected inevitably it to confusion has to others. Aggrieved plaintiffs have
resulted. scarcely to or fraud or known whether sue in deceit indeed or breach of —or all. worthwhile to sue at whether it was perhaps towering legal un uttered the
Our Court
(1924)
year
in Hertzler
derstatement of the
when
case),
(a poison flour
Manshum,
Consider way privity. This ais around care” there our beguiling unable find ourselves but we notion, by judicial why imposition fiat of a discover magically degree mystical higher dis care should privity, just in Herts asserted solve the need Why lack of ? Either so ler. should this be always cases, or it never in these be a defense should priv basically notion The contractual be. should right ity largely do with has this context person against he party bring action his of a injury regardless suffered. hold, seeks to nothing what of it the lack has of care or tort idea subject, though indeed ever to do recovery. lot do with have a *9 Michigan 353 logic can also reason in We find sound law why recovery in these situations should be confined injuries persons property, not and or al- to lowed
in all food and related cases denied in why Nor, all, can we our Court others. should ever have least divine compelled, generally felt in the it re- narrow where has allowed circumstances covery split up duty into at the eso- all, to care though high, degrees of as care teric low or medium, chancy fluctuating conduct barometer of were depending of our or fell on the state which rose livers. calling it does not increase or diminish
Care concept of think the abstract reason- names. We quite enough grapple difficult care itself able is gratu- apply our our courts with law without upon itously honorary degrees conferring it. There only degree and that is the of care in law, one reasonably required may which be of care standard given expected aof all the circumstances under arising of of in the manufacture whether situation, confusion or cinder blocks. Such canned beans care only bad in in these cases yet, inevitably tends to maim but, itself worse muddy larger up contracts field of law both and torts. to make defendant seeks observe—and We present the declaration in of the fact—that
much upon negligence grounded not in terms action is although proofs, al- as defendant, certain neg- clearly ready to show indicated, tend rather ligence. find that We also —whatever authority elsewhere—there is rule upon implied treating based war- this kind actions of though they ranty by were ex- the manufacturer upon negligence. grounded plicitly Three Rivers v. in Hertzler Manshum, we said Thus 228 Mich (although we limited our remarks to food- stuffs) : warranty, reaching so-called, from “The pur- the ultimate of foodstuffs consumption inis the nature for immediate chaser degree highest representation of care duty in- a breach such has been exercised and flicting *10 personal injury wrong in the nature is tort and breach of contract to be count- not a mere Except assumpsit. to ed in in name and establish on and the ultimate the manufacturer between thing negligence. the same as Plain- consumer is analysis, negli- in last is bottomed on case, tiff’s added.)” gence. (Italics
Again Co., Mich Chemical 310 in v. General Ebers recovery by (in countenancing 261, we stated 275, against of a de a remote vendee “Although plain peach trees), for insecticide fective warranty, implied theory of an tiff claims under the question or not defendant is whether the real quote approving proceeded negligent.” ly then We just quoted language from Hertzler. only confusion or notion adds to the this Whether reasoning legal oth- than some is sounder may past things in area in the we have said er dispute, open solemn- if we have thus to some suing ly litigants for and their counsel that told warranty implied in effect tanta- of an breach mount (one negligence might suing think, proof might thing, in some that the burden one cases be situation) plaintiff on the in the latter onerous more to banish this lack the heart we trustingly took at our us because she in this case suggest that, however, in the future, word. We where warranted such dec- circumstances, explicitly negligence in should larations sound warranty. as for claimed breach well 132
In addition observe modern trend in jurisdictions permit recovery by other remote against vendees tion the manufacturer whether the ac- on an sounds page or both. Thus at 53 in the 1957 cumulative supplement p § to 46 Jur, Am Sales, 825, supplemental text recover reads as follows: “To damages injury goods purchased, for an from rely upon may upon negligence an alone or implied warranty, may plead negligence re- implied warranty, upon pleading cover or, waive tort both, warranty.” and recover on the thorough thumbnail sketch of succinct but A liability history development of this doctrine of appears in the a manufacturer to a remote vendee of 1957 pp § supplement 812, at Sales, 46 Am Jur, large appears to a in turn to be based which 47-49, ALR 569. extent on supplementary annotation a similar non- the doctrine of text traces how liability crept law from a casual dictum into our (which, English add to the decided *11 irony, delightful a not even involve manufactur did quickly many er), fell courts American how “gen up upon it into dictum and blew this ancient liability; all of eral rule” to relieve manufacturers of how our a bizarre grafted gradually upon courts then “exceptions,” of which we some cluster of wondrously grew already which noted, have constric g’rew the boa in all truth —much like until, exceptions swallowing devoured itself—the tor sensibly English in due course rule; how dependence old dictum on this their earlier scuttled tena many courts remained our American of while many, in to the old in their devotion cious “rule”— deci historic after Cardozo’s deed, even Justice Company, 217 Motor Buick v. in MacPherson sion Three Rivers (111 NE Ann LRA1916F, 696, NY 382 1916C, 1050, Cas 440). tacitly suggests text of Am the unchar Jnr possibly popularity notion that the increased
itable of lack of as a in the doctrine defense jurisdictions these cases was some motivated as inspired challenge disturbing answer to the Contemplating the MacPherson Case itself. such a borrowing state affairs one cannot from resist opinion City Justice Black’s recent Dearborn quotes Bacila, 353 v. tice Holmes lows Mich where he from 99, 112, Jus (Collected Legal 187) Papers, p as fol :
“ revolting ‘It have no better reason for a rule of law than that so it was laid down time Henry revolting It IY. is still more if the grounds upon which it was laid down have vanished long simply persists since, and the rule from blind ” past.’ imitation of the leading noted,
As there is annotation on this subject throughout whole in 164 ALR cited already reference made to Jur, Am but we shall giving here content ourselves few ex- p supplement, tracts from 48 in cited Am Jur quote which we without further ado: “In other words, under the modern law, where the negligence, not manufacturer is held is excused liable for he liability from on doctrines of the law foreseeability, negli- torts; lack of or want of actual gence, injury proximate- fact that the was not ly caused conduct, his is the true basis of nonlia- bility. The manufacturer excused under the merely happened modern law because there to be a any lack of of contract between him and the injured person; such an artificial and anachronistic liability longer, basis for relief from tort the final can no analysis, be asserted. *12 “Under the modern doctrine there is little doubt person re- has had no direct contractual who
that a may nevertheless re- a manufacturer with lations cover erty damages prop- for manufacturer from such negligence of the manufacturer caused or manner such a remote vendee the same inju- personal person can for third recover other ries.” again: And danger danger ‘inherently phrases as of such “The use ‘intrinsically dangerous/ ‘imminently ous/ ous/ attempting of a the bounds to fix cetera, in et negligence, liability has led to manufacturer’s and the in the authorities, confusion considerable retention seems ‘exceptions’ ‘general rule’ and of the enlarged, diminished, not to have and to have way simplest problems out The of the courts. difficulty route charted to take the would be of the Yardley & Carter the Massachusetts 559)] (64 [319 164 ALR NE2d Co. abandon Mass ‘general attempts preserve rule’ of all excep away by nonliability eaten which has been princi negligence, based If the suit is in tions. nonliability particular liability in a ples of tort, ordinary by applications of ascertained can be regard to
principles without notions law, of tort ‘general ‘privity the old contract.’ Even if about rule’ liability repudiated, a manufacturer’s is purely negligence predicated nonliability dispelling simply no torts, law of on the necessity contract, is obvi about tions ous many great instances if he liable. But is excused held be will liability, will be because there he excused from case against him law of re under the —a logical, compatible fair, which is mod sult relationships.” ern social and economic Yardley Case, above, cited contains an excel- history “general leading rule” and is a lent in this field. It also contains a citation modern case *13 135 Rivers Three v. subject. on articles many review and law texts appears at 164 the case text full noted, As Yardley long opinion Case The 559. ALR simply: very concludes recognize that for us has come “The time princi- longer In general exists. rule asserted unjust produce re-
ple It tended to it unsound. weight great abandoned It has been sults. authority it in this now abandon elsewhere. We Commonwealth.” amen. utter fervent
To these sentiments appears of due that there was a lack In this Merely happened what care. describe enough showing on that score—but blocks should be inspected tested here the admitted it or defendant raw nor the finished blocks. neither the materials Granting the trial understandable learned court’s past under our we think it bewilderment decisions, permitted recovery theory have either on a should negligence should also proceeded proofs plain- have to take such further damages may necessary. tiff’s as have been There- judgment fore the for defendant below is set aside (cid:127) proceedings and the cause remanded for further con- opinion, including taking sistent with such proofs may necessary, further as costs to ,- appellant. , JJ., con- Smith, Black, Edwards, Kavanagh, J. with Voelker, curred (dissenting). writing I am J. a dissent Kelly, opinion (hereinafter this case
Justice Voelker’s opinion”). as referred to “the Justice Voelker grounds for reversal on the writes the trial permitted recovery, should have .either on a theory implied warranty. Michigan
136 present opinion action is “the states that upon negligence grounded defend in terms “authority find in that we ant,” but upon war treating this kind based actions of though they ranty were ex support upon negligence,” grounded plicitly Manshum, 228 Hertzler v. cites statement of such Mich Co., 310 Mich General Chemical 416; Ebers v. 660); Damm, (17 and Bosch NS NCCA Mich 522. *14 plaintiffs claimed in of the cases cited all 3 In negligent, pleadings were that defendants
their sustaining opinion claim the in the no case cited litigants have or counsel courts that been plea the of into a that misled belief though warranty it were treated as is and should be upon negligence.” “explicitly grounded difficult It is present why ac- in the case we should to understand plea cept opinion the of breach of hold that the negligence, plea and, contained the opinion, litigants and their counsel caution the same that in the future
“such declarations should sound explicitly for claimed breach as well as warranty.” plead her of action or base cause Plaintiff did upon express negligence, or rather on failing warranty. err in The trial court did not negligence. plaintiff find for because defendant’s major question opinion The states “plaintiff lack is barred from her action whether privity;” “that the must lose both her appeal any being chance of ever made whole un- squarely wrong that the hold court below less holding privity in necessary law in of contract was a recovery in condition to these circum- big ;” stances that “the issue” this case is: privity “Should lack of bar this action as matter of law.” v. Three Rivers
The pur- lower court found that did not chase the blocks from defendant; that said blocks purchased by agent were ployee one who was not the or em- plaintiff. opinion The that we states finding regard are bound lower court’s in this say testimony preponderates as “we cannot way.” the other general
The lower court held that the “that rule is privity required of contract is in an action for breach express implied warranty of either or that there original is' no between the seller and sub- sequent purchaser way party who is in original sale.” opinion challenge The does not fact that the. properly applied the law of as it this State many years opinion past.
has existed for Supreme one fails cite case from the Court judgment State, other where a State, express implied warranty without was sustained opinion of contract. The calls to attention Yardley (64 Co.,Ltd., Carter v. & 319Mass 92 NE2d 559) 164 ALR 693, tains an and states that this “con- case history ‘general excellent rule’ and leading is a modern in this field.” *15 Yardley To establish the fact that in the Case privity Massachusetts court held of contract necessary express upon an action was sustain an implied warranty, quote opinion or we from said 96): (p follows question “The main in this case whether the to be denied relief tort action negligence merely because she had no contrac- privity
tual or relation of contract with de- fendant. in an contract, as an “Of course action of such upon express warranty,
action want Colby of contract would be a v. defense. (29 First National 252 NE2d Stores, Inc., 307 Mass 138 353 920); Pearl v. Co., Wm. Filene’s Sons 317 Mass 529, (58 825); Hampson 531 NE2d 530, Larkin, v. 318 (63 888); 716
Mass
NE2d
Pearlman v. Garrod Shoe
(11
718);
Inc.,
Co.,
276NY 172 NE2d
v.
Chanin Chev
(111
1235);
rolet Motor Co., 89 F2d 889
ALR
Rach
Libby-Owens-Ford
lin v.
96 F2d
Co.,
Glass
597.”
principle
requiring privity
of law
of contract
express
warranty
to sustain actions for
principle
unique
is not an obsolete
of law
to Mich-
igan,
opinion.
as is inferred in
recent deci-
A
supreme
April,
(decided
sion of the
court of Ohio
1953),
Co.,
Wood v. General Electric
159 Ohio St
(112
8),
279
273,
NE2d
states:
“Although
subpurchaser
inherently
.
of an
dan
gerous
may
article
from
recover
its manufacturer
negligence,
making
furnishing
in the
of the
fqr_
causing
subpurchaser
article,
harm to the
or his
property
be maintained
from a latent defect
no action
therein,
against
such manufacturer
such
subpurchaser
upon implied
such harm,
based
purchased.
of fitness of the article so
46
§§
pp
Am Jur, Sales,
810, 812,
2
934, 937; Restate
Birming
§§
497;
ment
Law of
395
Torts,
Bottling
ham-Chero-Cola
Clark,
v.Co.
205 Ala 678
(89
667);
Dupont,
ALR
64,17
So
Pelletier v.
124 Me
(128
972)
Independ
Kentucky
;
269
A 186, 39 ALR
Ky
(271
ent
Admr.,
Oil Co. v. Schnitzler,
208
507
SW
979) ; Chysky
ALR
570, 39
v. Drake
Co.,
Brothers
(139
1533);
Inc.,
liable to who under third no have contractual with relations him. The reason for this rule contract does persons, not exist between the seller and such third and unless there be of contract, there can be implied warranty.” Privity required of contract is in an action- n express implied warranty. breach of either No proof such introduced case. trial finding court did not err in that in the absence proof Judg- such could not recover. ment should be affirmed.
Dethmers, C. J., Carr, J., concurred J. Kelly,