47 Pa. Super. 647 | Pa. Super. Ct. | 1911
Opinion by
This case is before us on appeal from judgment n. o. v. under the Act of April 22, 1905, P. L. 286. In determining as to the correctness of the judgment, the test is whether binding direction for the defendant would have been proper at the close of the trial: Dalmas v. Kemble, 215 Pa. 410; Shannon v. McHenry, 219 Pa. 267. In applying the test the plaintiff must be given the benefit of every fact, and inference of fact, pertinent to the issue, which the jury could legitimately find from the evidence before them. Although there were some conflicts of evidence, the jury, by resolving the conflicts in favor of the plaintiff, could have found the facts substantially as follows: The plaintiff, having a horse needing medical treatment, was directed by a veterinary surgeon to administer raw linseed oil as a physic. Accordingly, he sent his brother to the defendant’s store to obtain twenty-five cents’ worth; — about three pints — of raw linseed oil. Upon arriving at the store, the brother found the defendant’s clerk, who was his son, in charge, and, producing the two bottles he had brought for the purpose, asked the latter for the desired quantity of raw .linseed oil. What occurred is thus described by this witness: “I went in and told Mr. Hawthorne I wanted 25 cents’ worth of raw linseed oil; I says ‘I want the raw now; I want to give it to a horse to physic him out.’ He says ‘Gee, I would say you were going to give him a hell of a physic.’ ” The'clerk, in view of the plaintiff’s brother, drew the required quantity of oil from one of two cans marked, respectively, B and R, and delivered it to the latter; but it proved to be, not raw, but boiled linseed oil, and, in consequence of its being administered to the horse, the horse died. Raw linseed oil is commonly used as a physic for horses, but the article known commercially as boiled linseed oil is rated as a poison. The difference between the two kinds of oil-can be detected by experts and those familiar with the use of both kinds, but is not readily apparent to other persons. Although the plaintiff’s brother on previous occasions had bought
The plaintiff contends that there was an implied warranty that the linseed oil delivered corresponded, in species, with the linseed oil ordered, and that there was a breach of the warranty. The defendant contends that the subject of sale was the oil the plaintiff’s brother saw drawn from the can, and that, as this was the identical article delivered, the case is within the general rule that where goods are sold on inspection, or with reasonable opportunity for inspection, there is no standard but identity, and no warranty implied other than that the identical goods sold, and no others, shall be delivered. As already pointed out, although the plaintiff’s brother saw the oil being drawn, he was in no better position, so far as determining whether it was of one kind or the other, than if he had not seen it drawn and it had been delivered to him in a covered and sealed package; at least, the jury could have so found. The logical conclusion to which the argument of defendant’s counsel leads is, that this makes no difference; it was still a sale on inspection and is governed by the rule applicable to ordinary transactions of that kind. The trial judge, as well as the counsel on both sides, has reviewed and discussed learnedly and with painstaking fullness the leading Pennsylvania cases bearing upon the question of the extent to which the law implies a warranty in the sale of chattels. But after an examination of them and other cases, we feel warranted in affirming that if the case of Lord v. Grow, 39 Pa. 88, does not sustain the defendant’s position, there is no well-considered decision of binding authority that
It will be observed that the decision was predicated of the purchase of an article on inspection, “of which the vendor’s means of knowledge were no greater than those of the vendee,” and that the general rule was conceded to
In concluding this opinion, although not necessary in the determination of the case, it is appropriate to say a word with regard to the following clause of our opinion in Joseph v. Richardson, 2 Pa. Superior Ct. 208: ‘All of the authorities agree that there is an implied warranty that the article delivered shall correspond in species with the commodity sold, unless there are facts and circumstances to show that the purchaser took upon himself the task of determining not only the quality of the article but the kind he purchased.” As to sales by sample or of property not present, which the seller knows the purchaser has not seen, but which he buys upon the representation of the seller, this is a sufficiently accurate statement of the law. But as a broad, general statement of the entire law upon the subject of implied warranty of species, it is open to the criticism that it does not specifically and with sufficient clearness exclude cases, coming within the general rule as to sales on inspection, in the proper sense of that term. We have endeavored to show, however, that even with that qualification of the general rule as stated by us, the special facts of this case, taken as a connected whole, are sufficient to raise an implied warranty, or, as some writers define it, a condition, for the breach of which the plaintiff was entitled to recover.
The judgment is reversed, and the record is remitted to the court below with direction to enter judgment on the verdict.