Citation Numbers: 139 N.E. 576, 235 N.Y. 468, 27 A.L.R. 1533
Judges: McLaughlin
Filed Date: 4/17/1923
Status: Precedential
Modified Date: 10/19/2024
The plaintiff was employed as a waitress in a lunch room run by one Abraham, for which she was paid thirty dollars a week and furnished board *Page 471 and lodging. On the 4th of May, 1918, she received from her employer, as part of her lunch, a piece of cake which had been made and sold to him by defendant. While she was eating it a nail, baked into the cake in such a way that it could not be discovered by inspection, stuck in her gum, which became so infected as to necessitate the removal of three of her teeth. She brought this action against the maker of the cake to recover the damages alleged to have been sustained, upon the theory it was liable to her, since it had impliedly warranted, when the cake was sold, that it was fit for human consumption and that such implied warranty inured to her benefit. This was the cause of action alleged in the complaint, as amplified by the bill of particulars, and this was the theory upon which the action was tried and submitted to the jury. She had a verdict and the judgment entered thereon was unanimously affirmed by the Appellate Division. Appeal to this court followed.
In Race v. Krum (
If there be any liability, therefore, it must be under this section and the jury was so instructed.
In Rinaldi v. Mohican (
Under the section of the Personal Property Law referred to and the Rinaldi case, an action may be maintained to recover damages caused by the breach of an implied warranty in the sale of food to a consumer for immediate consumption. Whether this warranty extends to a wholesaler was expressly reserved in theRinaldi case, but is now squarely presented.
The plaintiff received the cake from her employer. By reason of its condition it was not fit for human consumption. Her employer bought the cake from the defendant. Is it liable to the plaintiff for the injury sustained? We do not think so. If there were an implied warranty which inured to the benefit of the plaintiff it must be because there was some contractual relation between her and the defendant and there was no such contract. She never saw the defendant, and so far as appears, did not know from whom her employer purchased the cake. The general rule is that a manufacturer or seller of food, or other articles of personal property, is not liable to third persons, under an implied warranty, who have no contractual relations with him. The reason for this rule is that privity of contract does not exist between the seller and such third persons, and unless there be privity of contract, there can be no implied warranty. The benefit of a warranty, either *Page 473 express or implied, does not run with a chattel on its resale, and in this respect is unlike a covenant running with the land so as to give a subsequent purchaser a right of action against the original seller on a warranty.
It may be assumed that under certain facts and conditions the manufacturer of an article would be liable to a third person, even though no contractual relation existed between them, if the article sold were negligently prepared or manufactured. (MacPherson v. Buick Motor Co.,
The judgments appealed from, therefore, should be reversed and the complaint dismissed, with costs in all courts.
HISCOCK, Ch. J., CARDOZO, POUND, CRANE and ANDREWS, JJ., concur; HOGAN, J., dissents.
Judgments accordingly. *Page 474
Jacob E. Decker & Sons, Inc. v. Capps , 139 Tex. 609 ( 1942 )
E. I. Du Pont De Nemours & Co. v. Baridon , 73 F.2d 26 ( 1934 )
Sevits v. McKiernan-Terry Corporation , 264 F. Supp. 810 ( 1966 )
Crystal Coca-Cola Bottling Co. v. Cathey , 83 Ariz. 163 ( 1957 )
Dunn v. Texas Coca-Cola Bottling Co. , 84 S.W.2d 545 ( 1935 )