Divine v. McCormick , 1867 N.Y. App. Div. LEXIS 203 ( 1867 )

By the Court,

Hogeboom, J.

I do not share in the apprehension expressed by Justice Bronson in Moses v. Mead (1 Denio, 386,).lest a new inroad should be made upon the doctrine of “caveat ©motor,” by implying, a warranty of soundness on the sale of provisions ; nor concur in the statement made by him in the same case, (p. 388,) that “ where provisions are not sold for immediate consumption, there is no more reason for implying a warranty of soundness than there is in relation to sales of other articles of merchandize.” On the contrary, I am of opinion that sound policy and a proper regard to the public health would dictate an enlargement of the exception to the general rule, rather than otherwise. But we must take the law as it is, which in this state is fairly expressed in the leading case of Van Bracklin v. Fonda, (12 John. 408,) as follows : “In the sale of provisions for domestic use, the vendor is bound to know that they are sound and wholesome, at his peril. This is a principle not only salutary but necessary to the preservation of health and life.” Judge Bronson, in the case before cited, (1 Denio, 387,) expresses the substance of the doctrine in this form: “ Although the doctrine of Blacks tone, (that on a sale of provisions there is an implied warranty that they are wholesome, 3 Black. Gom. 164, 165,) cannot be supported in its whole extent, I am not disposed to" deny that on a sale of provisions for immediate consumption the vendor may be held responsible in some form for the sound and wholesome condition of the articles which he sells.” Assuming such to be this law of the state, to wit, that to render the vendor liable bn an implied warranty in the sale, of provisions they must be sold for domestic use, or immediate consumption, I am nevertheless of opinion that this judgment should be affirmed.

1. The fair, inference is, from the undisputed evidence, (not contradicted by the defendant, who was sworn as a witness,) that the heifer in question, (whose diseased and unfit condition for food is not denied,) was sold for immediate consumption. The plaintiff’s testimony is that he bought the heifer, two or three years old, for See/, and told the defendant he was going to kill it the next day, which he did. It nowhere appears that the plaintiff was a butcher, or was. buying to sell again; and I think we ought not—especially in a case of this kind—to infer that such was the fact. If I am right in this position, it follows that the judgment should be affirmed.

[Albany General Term, May 6, 1867.

. 2. It is a fair, (and almost irresistible,) inference from the testimony of Stewart, Cochran, Leach, and the defendant, that the defendant was aware ofj or had great reason to suspect, the unsound and unwholsome condition of the- heifer, when he sold, her to the plaintiff. If so he was bound to disclose it. Although there may be some question whether this last testimony was admissible under the pleadings, yet being received without objection and considered, it may be referred to to uphold the judgment of the county court, which I think rightfully reversed the judgment of the justice, founded upon the remarkable verdict of the jury in favor of the defendant. Under the facts developed in the case it is satisfactory to be able to pronounce in favor of the affirmance of the judgment of the county court.

Peckham, Ingalls, and Hogeboom, Justices.]