Van Bracklin v. Fonda — 12 Johns. 468

Majority

p. 468

Van Bracklin against Fonda.

Headnote

intte sale domestic, use,-the veedor, at his pern, is 1)0unci to know soundthanu ar0 wholesome! and jf they are not to’o^aetion^on suft'oftteUndee* "

"IN ERROR, on certiorari to a justice’s court.:

Fonda, the plaintiff in the court below,

declared against Van ' . Braeklin, for that he had -sold him a quarter of beef, as good . .'X ■ ■ 7 o. - an^ sound; that-it was not good and sound; but bad and unwholesome. ■ ' . • •

t It' appeared in-, evidence, that Fonda purchased óf Van Bracklin quarter of beef,.; for- tils own use-.; that the cow had eaten, shortly before she was killed", a very -large quantity of peas and oats, and that she was slaughtered for fear she would die in consequence of her having eaten them ; and it was proved, also, that those who até , of the beef were-generally ,made very .sick, and that one of:Fonda’s servants was' sick for two. weeks -from eating it. The jury found a verdict for the plaintiff-below, for five dollars damages. " • '

The verdict settles the facts* .that the~, b'e:ef

•sold- 'was ‘Unsound and -unwholesome, and. -that the defendant' below knew the animal to be diseased, and did not communicate -that "fact when be sold the-beef to the plaintiff below,

> In 3 Black. Com. 165., it is stated as a sound and elementary proposition, Jhat -in contracts'1-"for provisions., it -is always implied that" they are-wholesorne.; and if they are not,, case lies tb recover damages for the deceit. ; " "

In the sale of provisions foi 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 heqessary tp the preservation' of health and. life. . - :

In the present, case, the concealment of. the fact that the animal was diseased, is equivalent-to .the suggestion of a falsehood that she-was.stiuntl. " ■ , -

Judgment affirmed.