Sec 222

There has been much discussion on the question whether there is an implied warranty of whole-someness in sales of provisions. We have the high authority of Blackstone1 to this effect; and in Chitty on Contracts the same position is broadly affirmed.2 We have numerous authorities in this country tending in the same direction, so far as concerns articles sold for domestic use;3 and this view is strengthened by the rulings in Selling meat for human food implies fitness.

1 Com. iii. p. 166.

2 Op. cit. 9th ed. 420.

3 Infra, sec 912; see citations in Benj. on Sales, 3d Am. ed. sec 671, including Winsor v. Lombard, 18 Pick. 57; French v. Vining, 102 Mass. 132; How ard v. Emerson, 110 Mass. 321; Van Bracklin v. Fonda, 12 John. 468; Hart v. Wright, 17 Wend. 267; Goldrich P. Ryan, 3 E. D. Smith, 324; Moses v. Mead, 1 Denio, 378; Osgood v. Lewis, 2 H. & Gill, 498; Humphreys v. Comcriminal prosecutions that it is an indictable oftence to expose for human food articles known to be unfit for such food.1 In England, however, it is now held that there is no general implied warranty on sales of food, except in cases of "victuallers, butchers, and other common dealers in victuals, under the statute 51 Henry III.;"2 and Mr. Benjamin asserts that "the responsibility of a victualler, vintner, brewer, butcher, or cook, for selling unwholesome food, does not arise out of any contract or implied warranty, but is a responsibility imposed by statute, that they shall make good any damage caused by their sale of unwholesome food."3 line, 8 Blaekf. 516; Davis v. Murphy, 14 Ind. 158; and see notes to Chandeler v. Lopus, 1 Smith, L. C. 7th Am. ed. 299.

1 Wh. Cr. L. 8th ed. sec 1434 et seq. See Ward v. Hobbs, L. R. 3 Q. B. D. 150, L. R. 4 Ap. Cas. 13; holding that sending infected pigs to market is not a deceit at common law. See this case noted infra, sec 229, 251, and see French v. Vining, 102 Mass. 135, cited infra, sec 249.

2 Burnby v. Bollett, 16 M. & W. 644.

3 Op. cit. sec 672; Emmerton v. Matthews, 7 H.& N. 586, where the plaintiff, a butcher, bought of a general dealer (the plaintiff not buying for domestic use) a carcase of meat consigned to the defendant, which turned out not to be fit for consumption, but which the plaintiff, an expert in such matters, bought on his own inspection. It was held there was no implied warranty. In Burnby v. Bollett, 16 M. & W. 644, it was held there was no implied warranty, on the ground that the vendor was not a dealer in meat. See infra, sec 912.

In Lukens v. Freiund, Sup. Ct. Kan. 1882, 25 Alb. L. J. 392, F., the plaintiff below, a farmer, bought of L., the defendant below, a miller, a bag of bran for the purpose of feeding his cows. Accidentally and without any negligence on the part of L., but before removal from the mill, two copper clasps fell into the bran, were thereafter swallowed by one of F.'s cows, and lodging, one in her paunch and one in her stomach, poisoned and killed her. The bran was not manufactured for F. or upon any contract with him, but was simply sold out of a quantity then on hand belonging to L., and could have been inspected by F. at the time of purchase if he had desired. It was held by the supreme court, after a careful analysis of the authorities, that in the absence of express warranty, F. could not recover for the loss of his cow. After recognizing the position that fitness is implied in sales for human food, Brewer, J., went on to say: "Now the application of this exception to the case at bar is denied; it is said that the principle upon which the exception rests does not apply where the articles sold are not intended for consumption by man but only for use as food for cattle. No authorities have been found by counsel on either side of this question. We are left, therefore, to determine it upon general principles. Upon what ground is an implied warranty rested in the case of the sale of provisions which does not exist in the case of a sale of other articles ? Obviously it is not upon any that the article offered or delivered shall answer the description of it contained in the contract. If the subject-matter be merely the commercial article or commodity, the undertaking is, that the thing offered or delivered shall answer that description, that is to say, shall be that article or commodity, salable or merchantable. If the subject-matter be an article or commodity to be used for a particular purpose, the thing offered or delivered must answer that description, that is to say, it must be that article or commodity, and reasonably fit for the particular purpose."1 But as will be hereafter seen more fully, when an article is ordered as such from a manufacturer, "if the known, defined, and described thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer."2 - It has just been stated that not only is it a condition precedent that goods sold should be substantially what they are described to be,3 but there is an implied warranty, in cases where there is no opportunity for inspection, that they should be salable. The rule is thus definitely expressed by Lord Ellenborough:4 "Under such circumstances (i e., sale without opportunity of inspection), the purchaser has a right to expect a salable article, answering the description in the contract. Without any particular warranty, this is an implied term in every such contract. Where there is no opportunity to inspect the commodity, the maxim of caveat emptor does not apply.1 He cannot, without a warranty, insist that it shall be of any particular quality or fineness, but the intention of both parties must be taken to be that it shall be salable in the market under the denomination mentioned in the contract between them." - In 1868, after a series of intermediate approvals, this rule was finally reaffirmed by the Queen's Bench, where the following distinctions Were taken:2 First, where there is an opportunity of inspection by the purchaser, and no fraud, there is no implied warranty, even though the defects are latent and the goods not merchantable;3 second, nor is there an implied warranty as to an article even when specifically described, "the actual condition of which is capable of being ascertained by either party;"4 thirdly, there is no implied warranty as to an article ordered from a manufacturer, and delivered as described by the purchaser.5 - It has been already seen, that a warranty need not be in any particular words.6