Sec 223

Selling by a merchant in the ordinary course of business implies that the goods are of the character designated, and are merchantable.1 "The fundamental understanding is, property grounds, or because thereby the estate of either party is affected; but for reasons of public policy, for the preservation of life and health, the law deems it wise that he who engages in the business of selling provisions for domestic use should himself examine and know their fitness for such use, and be liable for a lack of such knowledge. One may not place poison where it is likely to be taken by one ignorant of its qualities. Regard for human life compels this; no more may he sell food unfit to be eaten to a man who he knows is buying it to eat. The same reason controls, to wit, regard for life and health. But this, it will be remembered, is an exception to the general rule of the common law, and the exception should not be extended beyond the reach of the reasons upon which it is based.

"If the preservation of human life and health be, as we think it is, the foundation of this exception, then it should not be extended to cases in which human life and health are in no wise endangered. Now the claim of the plaintiff is simply of a property loss, that his estate has been diminished, and that alone is his cause of action. His injury is similar to that which he would have sustained if he had purchased from a wagon-maker a defective wheel, and thereby his wagon had broken down. No matter of life or health of himself or family is involved. We think, therefore, that no recovery can be had under the principles of this third exception.

"Still further, it may be remarked that bran comes very nearly within the description given by some of the witnesses of it as the mere refuse or offal of the mill. It is true the jury call it in their verdict a secondary product resulting from the manufacture of flour. It certainly is not the principal product of the grinding of wheat, nor that for which the mill is worked. It is that which is left after the flour has been manufactured. It is no uncommon thing in manufacturing establishments, after the principal product is manufactured, that there remains a refuse which is of some value, and which is disposed of by the manufacturer as refuse, and for whatever it will bring. Now it would seem to enlarge very broadly the doctrine of implied warranty, to extend it to this refuse. It is not that for the manufacture of which the manufacturer engages in business, it is not that to which he devotes his special attention and care, it is always of inferior value. This all parties understand; they deal upon that basis, and to hold that the manufacturer warrants the quality of this refuse would seem to cast an unnecessary burden upon its disposal."

1 Infra, sec 905, 919 et seq.; Leake, 2d ed. 407; Benj. on Sales, 3d Am. ed. sec 657, 661, 806, 857; Laing v. Fidgeon, 6 Taunt. 108; Josling v. Kingsford, 13 C. B. N. S. 447; Jones v. Just, L. R. 3 Q. B. 197; Bigge v. Parkinson, 7 H. & N. 955; Thrall v. Newell, 19 Vt. 202; Henshaw v. Robins, 9 Met. 87; Gay-lord Man. Co. v. Allen, 53 N. Y. 515; Borrekins v. Bevan, 3 Rawle, 23; Edwards p. Hathaway, 1 Phila. 547; Bat-turs v. Sellers, 6 Har. & J. 249; Hyatt v. Boyle, 5 Gill & J. 110; Rodgers v. Niles, 11 Oh. St. 48; McClung v. Kelly, 21 Iowa, 508; Mann v. Evason, 32 Ind. 355; Merriam v. Field, 24 Wis. 640; Hanks v. McKee, 2 Litt. 227; Howie v.

Selling by merchant implies merchantability.

Rea, 70 N. C. 559. See notes to Chan-deler v. Lopus, 1 Smith's L. C. 7th Am. ed. 299 et seq.

1 Per cur. in Randall v. Newson, L. R. 2 Q. B. D. 109, adopted in Leake, 2d ed. 408. In Gossler v. Sugar Refinery, 103 Mass. 331, it was held that a sale, by an importer, of "Manilla sugar" to refiners, would sustain a suit for the price agreed on, although the article delivered contained more impurities than is usual with articles of that class. And this rule applies generally in cases where the distinctive character of the article is not affected. See Swett v. Shumway, 102 Mas3. 365;.

Whitney v. Boardman, 118 Mass. 242; Jennings v. Gratz, 3 Rawle, 168; Weth-erill v. Neilson, 20 Penn. St. 448. Elaborate notes on this topic will be found in Benj. on Sales, 3d Am. ed. sec 600, 661.

2 Benj. on Sales, 3d Am. ed. sec 657, citing Chanter v. Hopkins, 4 M. & W. 399, discussed infra, sec 905; and see notes to Chandeler v. Lopus, 1 Smith's L. C. 7th Am. ed. 299 et seq.

3 As to conditions precedent, see infra, sec 560.

4 Gardiner v. Gray, 4 Camp. 144; adopted in Benj. on Sales, 3d Am. ed. sec 656.

1 On this point Judge Bennett refers, in a note as to sales of packed cotton, to Boorman v. Jenkins, 12 Wend. 566; Beebe v. Robert, id. 413; Oneida Man. Co. v. Lawrence, 4 Cow. 444; Waring v. Mason, 18 Wend. 425; Salisbury v. Stamer, 19 id. 159; as to canned fruit or vegetables, to Boyd v. Wilson, 83 Penn. St. 319; S. P., Whitaker v. McCormick, 6 Mo. Ap. 114.

2 Jones v. Just, L. R. 3 Q. B. 197.

3 Emmerton v. Matthews, 7 H. & N. 586.

4 Barr v. Gibson, 3 M. & W. 390.

5 Chanter v. Hopkins, 4 M. & W. 399: Ollivant v. Bayley, 5 Q. B. 288, cited in prior section.

6 Supra, sec 219. That a representation may operate as an estoppel, see infra, sec 226; that a sale "with all faults" excludes warranty, infra, 229; and that a warranty of title is implied in a sale, infra, sec 230. - We have already seen that in Johnson v. Raylton, L. R. 7 Q. B. D. 438, it was held by a majority of the court of appeal (see more fully supra,.