Fairbank Canning Co. v. Metzger

• Decision Date: 14 January 1890
• Citation: 23 N.E. 372,118 N.Y. 260
• Parties: FAIRBANK CANNING CO. v. METZGER et al.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 260

23 N.E. 372

FAIRBANK CANNING CO.

v.METZGER et al.¹

Court of Appeals of New York, Second Division.

Jan. 14, 1890.

Appeal from a judgment of the general term, fourth department, affirming a judgment entered upon the report of a referee.

The action was brought to recover the contract price of a car-load of dressed beef. The answer averred, by way of counterclaim, a warranty that the meat should be clean, well dressed, and in first class condition, not heated before being killed, and a breach thereof by reason of which defendant sustained damage. The plaintiff is a corporation engaged in buying and slaughtering cattle, and selling fresh dressed beef, in Chicago. The defendants are copartners, engaged in wholesaling and retailing meat. In February, 1883, the plaintiff, by letter, solicited the defendants to purchase from it what dressed beef they required. It resulted in a contract, made entirely by correspondence, for meat to be wholesaled from the car by defendants' agent, from Dunkirk to Elmira, the portion remaining unsold when the car should reach Elmira to be retailed by the defendants. The defendants ordered, at different times, four car-loads of fresh beef, and pursuant to their agreement, on receipt of the bill for the second and third car-loads, and before the arrival of the goods, paid the plaintiff therefor by a draft on New York. The referee found as facts that the plaintiff was to deliver the beef on board of the cars at Chicago, which was a delivery to the defendants, and the same then and there became the property of the defendants; that by the agreement made between the parties the plaintiff represented and agreed to furnish the defendants beef that had not been heated before being killed; that should be thoroughly chilled before being loaded on the cars; that it should be in first-class condition in every respect, and merchantable; that a portion of the meat furnished, including all of the fourth car-load, had been heated before being killed, and was not in first-class condition or merchantable when shipped at Chicago; that as to the fourth car-load the ‘defendants did all they could to dispose of it, and save what they could from it, after the car had been opened several times on different days between Dunkirk and Elmira; and, finding they could not use it, they shipped back to plaintiff 12,991 pounds, and notified plaintiff by wire of the same, and plaintiff immediately wired back that they would not receive it, whereupon the defendants ordered the same back to Elmira.’ The referee found, as a matter of law, that there was no warranty, and directed a judgment to be entered in favor of the plaintiff for the contract price.

Gabriel L. Smith, for appellants.

Henry S. Redfield, for respondent.

PARKER, J., ( after stating the facts as above.)

In the absence of a warranty as to quality and a breach, the defendant's claim for damages could not have survived the use of the property; for in such case vendees are bound to rescind the contract, and return, or offer to return, the goods. If they omit to do so, they will be conclusively presumed to have acquiesced in their quality. Iron Co. v. Pope, 108 N. Y. 232, 15 N. E. Rep. 335. Therefore, if the referee was right in holding that there was no warranty as to quality, collateral to the contract of sale, we need not inquire further, as the judgment must be affirmed. The referee has found the facts, and this court may properly review his legal conclusion as to whether they amounted to a warranty. ‘A warranty is an express or implied statement of something which a party undertakes shall be a part of a contract, and, though part of the contract, collateral to the expressed object of it.’ 2 Schouler, Pers. Prop. (2d Ed.) § All contracts of sale with warranty, therefore, must contain two independent stipulations: First, an agreement for the transfer of title and possession from the vendor to the vendee; second, a further agreement that the subject of the sale has certain qualities and conditions. It is not necessary that in the collateral agreement the word ‘warranty’ should be used. No particular phraseology is requisite to constitute a warranty. ‘It must be a representation which the vendee relies on, and which is understood by the parties as an absolute assertion, and not the expression of an opinion.’ Society v. Lawrence. 4 Cow. 440. It is not necessary that the vendor should have intended the representation to constitute a warranty. It the writing contains that which amounts to a warranty, the vendor will not be permitted to say that he did not intend what his language clearly and explicitly declares. Hawkins v. Pemberton, 51 N. Y. 198. In that case the defendants purchased at auction an article, relying upon the representation of the auctioneer that it was ‘blue vitriol.’ It was in fact ‘Salzburger vitriol,’ an article much less valuable. In an action brought against the purchaser, the trial court directed a verdict for the plaintiff. This was held to be error, because the representation at the sale amounted to a warranty. Judge EARL, in delivering the opinion of the court, after collating and discussing the authorities upon the subject of warranty, said: ‘The more recent cases hold that a positive affirmation, understood and relied upon as such by the vendee, is an express warranty.’ In Kent v. Friedman, 17 Wkly. Dig. 484, Judge LEARNED in his opinion says: ‘There cna be no difference between an executory contract to sell and deliver goods of such and such a quality and an executory contract to sell and deliver goods which the vendor warrants to be of such and such a quality. The former is as much a warranty as the later.’ The court of appeals subsequently affirmed the judgment of the general term, (101 N. Y. 616, 3 N. E. Rep. 905.) In White v. Miller, 71 N. Y. 118, frequently referred to as the ‘Bristol Cabbage Seed Case,’ the court say: ‘The case of Hawkins v. Pemberton, 51 N. Y. 198, adopts, as the law in this state, the doctrine upon this subject now prevailing elsewhere, that a sale of a chattel by a particular description is a warranty that the article sold is of a kind specified.’ So, too, a sale by sample imports a warranty that the quality of the goods shall be equal in every respect to the sample. Brigg v. Hilton, 99 N. Y. 517, 3 N. E. Rep. 51, and cases cited.

Now, in the case before us, the defendants undertook to purchase of the plaintiff...