French v. Vining

Ames, J.

The only warranty implied by law in the sale of personal property is simply that the vendor has good right to make the sale; and if the buyer desires to have the benefit of any further assurance, as to the property sold, he must protect himself by insisting upon such specific warranties as he may consider necessary for that purpose. The law does not undertake to make contracts for the parties, but usually leaves them, if the buyer should choose to act upon his own judgment, to the operation of the maxim caveat emplor. It is sometimes rather loosely said that mere silence, on the part of the vendor, as to a known defect, does not amount to a fraud. But this is far from being universally true. Deceit ma_> sometimes take a negative form, and there may be circumstances in which silence would have all the legal characteristics of actual misrepresentation. There are cases in which it is laid down that in the sale of provisions for domestic use there is an implied warranty of their wholesomeness. Van Bracklin v. Fonda, 12 Johns. 468 . Emerson v. Brigham, 10 Mass. 197 . Winsor v. Lombard, 18 Pick. 57 , 62. And it is perfectly well settled that there is an implied warranty, in regard to manufactured articles purchased for a particular use, which is made known at the time of the sale to the vendor, that they are reasonably fit for the use for which they are purchased.

*136 It may perhaps be more accurate to say, that, independently of any express and formal stipulation, the relation of the buyer to the seller may be of such a character as to impose a duty upon the seller, differing very little from a warranty. The circumstances attending the sale may be equivalent to a distinct affirmation on his part as to the quality of the thing sold. A grocer, for instance, who sells at retail, may be presumed to have some general notion of the uses which his customers will probably make of the articles which they buy of him. If they purchase flour or sugar or other articles of daily domestic use for their families, or grain or meal for their cattle, the act of selling to them under such circumstances is equivalent to an affirmation that the things sold are at least wholesome, and reasonably fit for use; and proof that he knew, at the time of the sale, that they were not wholesome and reasonably fit for use, would be enough to sustain an action against him for deceit, if he had not disclosed the true state of the facts. The buyer has a right to suppose that the thing which he buys, under such circumstances, is what it appears to be, and such purchases are usually made with a reliance upon the supposed skill or actual knowledge of the vendor. In the case at bar, the'plaintiff bought the' hay in small quantities, and the defendant must be considered as knowing generally the kind of use to which it was to be applied. The act of sale under such circumstances was equivalent to an express assurance that the hay was suitable for such use. If he knew that the hay had a defect about it, or had met with an accident, that rendered it not only unsuitable for that use, but dangerous or poisonous, it would plainly be a violation of good faith, and an illegal .act, to sell it to the plaintiff without disclosing its condition. Silence in such a ease would be deceit. Langridge v. Levy, 2 M. & W. 519. Thomas v. Winchester, 2 Selden, 397. McDonald v. Snelling, 14 Allen, 290 , 295, and cases cited.

The declaration charges that at the time of the sale the defendant knew the condition of the hay. The scienter is not only a material, but a vital part of the case. It appears that he knew that paint, containing white lead, had been spilt upon the hay *137 and he must be taken to have known that hay in that condition was unwholesome and dangerous. He endeavored carefully to separate the damaged part from the rest, and supposed that he had been entirely successful in that endeavor. But after making all allowances in his favor, the fact remains that he sold, as food for cattle, an article which he knew had been exposed to poison, and which he had taken no effectual means to separate and purify from that poison. His knowledge of the accident was certain and positive; his belief of the success of his remedy for that accident was conjectural, uncertain, and proved to be wholly mistaken. It appears to us that, in venturing to sell the hay, under such circumstances, on his own judgment that it was safe to do so, he took the risk upon himself, and sold at his peril; and that the charge in the declaration, that he knew the condition of the hay when he sold it, is satisfied by showing that be knew what had happened to it; that he did not and could not know that the effect of the accident had been removed; and that he had in fact taken no effectual means to remove it. The ruling of the presiding judge appears upon this point to have been correct.

With regard to the duty incumbent on the plaintiff after the cow was found to be sick, the ruling was also correct, and as favorable to the defendant as he had any right to expect. There is nothing in the bill of exceptions to show that the plaintiff’ was informed of the fact that there was a competent veterinary surgeon within reach, or upon what terms his services could have been obtained, or whether any cure for the sickness was possible, and therefore the general instructions that were given appear to have been all that the case, in that respect, required.

Exceptions overruled.