Moses & Moses v. Mead , 5 Denio 617 ( 1846 )

Senators Weight and Porter delivered written opinions in favor of affirming the judgment, upon substantially the same reasons contained in the opinion of Chief Justice Bronson, recognizing the distinction between the application of the rule of an implied warranty to provisions sold for consumption by the purchaser, and those sold as merchandise.

Senators Hard and Barlow delivered written opinions for reversal, upon the ground that the exception to the rule of caveat emptor is applicable to the sale of all articles of food for mankind, in whatever quantities, from motives of safety to the public health.

Senators Lott and J. B. Smith also delivered written opinions for affirmance, and Senators Williams, Johnson and Folsom for reversal.

Senator Hand delivered an oral opinion for reversal.

Upon the question being put, “ Shall this judgment be reversed?” the members of the court voted as follows :

For reversal: Senators Barlow, Denniston, Emmons, Folsom, Hand, Hard, Johnson, Scovil, Wheeler, Williams—10.

For affirmance: The President, and Senators Burnham, Deyo, Lester, Lott, Mitchell, Porter, J. B. Smith, Talcott, Wright—10.

Judgment affirmed.