Moses & Moses v. Mead — 5 Denio 617

Majority

p. 617

Moses & Moses vs. Mead & Mead.

Headnote

Where provisions are sold as merchandise, and not for immediate consumption by the purchaser, there is no implied warranty of their soundness.

On error from the supreme court. The cause originated in the superior court of the city of New-York, where the plaintiffs sued the defendants upon an implied warranty on the sale of 194 barrels of mess beef, that it was good, sound and merchantable, when it proved to be sour, tainted and unwholesome. It appeared by a special verdict, that the vendor did not know of the defect in the beef, and that it ivas purchased by the plaintiffs, as provision merchants, to sell again, and not for their own consumption. The superior court gave judgment for the defendants on the special verdict, and the judgment was affirmed by the supreme court upon writ of error. The argument of the counsel and the reasons of the supreme court will be found in 1 Denio, 378 . The case was argued here by

G. Wood & H. P. Hastings, for plaintiffs in error.

A. P. Man, for defendants in error.

p. 618

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.