Nisky v. Childs Co.

Decision Date31 January 1927
Docket NumberNo. 49.,49.
Citation135 A. 805
PartiesNISKY et al. v. CHILDS CO.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Appeal from Circuit Court, Hudson County.

Action by Mary Nisky and husband against the Childs Company. From a judgment of nonsuit, plaintiffs appeal. Affirmed.

Collins & Corbin, of Jersey City, for appellants.

Walter L. Glenney, of Plainfield, for respondent.

LLOYD, J. The Childs Company (respondent here) operates a restaurant at 158 Market street, in the city of Newark. On the 19th of October, 1923, at the conclusion of a theater party, Mary Nisky, one of the appellants, and two friends entered the restaurant of the respondent for the purpose of obtaining something to eat. They all ordered clam chowder. After this was eaten Mrs. Nisky ordered half a dozen oysters fried in egg and cracker crumbs, of which she ate three. When she placed the third one in her mouth it tasted bitter ("like gaul") but she ate it, and immediately felt so badly in the throat that she could not eat the remaining three. Calling a waiter she complained of the oysters, and was given a cup of coffee to take away the bitter taste. The taste remained, however, and she became shaky, chilly, feverish, and nauseated. She went home, and a doctor was called who removed the contents of her stomach by a pump, but a more or less serious illness resulted. For the damages thus occasioned an action was instituted in the Hudson county circuit court by Mrs. Nisky for her sufferings, and by her husband for loss of the wife's services and expenses of effecting a cure.

The pleadings as filed alleged in the first count breach of warranty generally; in the second, negligence in the preparation and service of the food; and, in the third, breach of warranty under the Sale of Goods Act of 1907 (P. L. 1907, p. 311, § 15, subd. 1; 4 Comp. St. 1910, p. 4650, § 15, subd. 1).

At the trial and on this appeal the count for negligence was abandoned, and the case rested wholly upon the counts for breach of warranty; appellant's brief stating that "the ease was tried on the first and third counts of the complaint," and that the trial judge erroneously decided "that there was no implied warranty." At the conclusion of the plaintiffs evidence a motion of defendant's counsel for a nonsuit was granted by the learned trial judge, and it is this ruling that is now complained of as the sole ground of appeal.

It is urged by appellant, first, that a meal served at a restaurant carried with it under the common law a warranty that the ingredients of the meal are fit for human consumption; and, second, that even if this be not so, such obligation exists by virtue of paragraph 15, subd. 1, of the Act of 1907 (page 316), entitled, "An act concerning the sale of goods and to make uniform the law relating thereto."

Neither the research of counsel nor our own examination discovered that the question has ever been presented to or decided by the courts of this state, and this alone should give us pause before attaching to the transaction the obligation of a warranty as part of our unwritten law.

At common law, in the absence of express warranty or representation from which a warranty could be inferred, the mere sale of goods without more did not warrant the quality of the article sold (Beninger v. Corwin, 24 N. J. Law, 257), and such is the universal rule (35 Cyc. 397). When, however, the seller is informed by the buyer of the purposes for which the goods are purchased, there is an implied warranty that the thing sold is fit for the intended purpose. This also is a rule of which there is universal acceptance. 35 Cyc. 399, and cases cited.

It may be fairly assumed that the appellant in the present case by implication appraised the respondent that the oysters were to be eaten, and if the transaction constituted a sale of the oysters within the purview of either the common or statute law, then there would seem to have been a warranty, and the respondent would be liable. From the earliest times, however, a distinction has been drawn between a sale of an article and the furnishing of food at an eating house, hotel or restaurant; the latter partaking rather of the character of service, in which case the standard of liability is the failure to use that reasonable care which the circumstances require. As was said many years ago in Parker v. Flint, reported in 12 Mod. 1303, "An innkeeper * * * docs not sell but utters his provisions," and by Professor Beale in his treatise on Innkeepers, § 169, "As an innkeeper does not lease his room, he does not sell the food he supplies to his guests. It is his duty to supply such food as the guest needs, and the corresponding right of the guest to consume the food he needs and to take no more. Having finished his meal he has no right to take food from the table, even the uneaten portion of the food supplied him. Nor can he claim a certain portion of the food as his own to be handed over to another in case he chooses not to consume it himself."

The authorities distinguishing the transaction from a sale recognize that while the food served constitutes, of course, an essential part, yet serving it cannot be regarded as a sale of goods, and this we think the common understanding. A customer at an eating place seeks not to make a purchase but to be served with food to such reasonable extent as his present needs require. With the service go a place, more or less attractive, in which to eat it, a table, dishes, linen, silver, waiters, and sometimes music as an accompaniment, all tending to render more agreeable and palatable that which he eats. The food he obtains is then and there consumed; he does not eat the portion he can comfortably devour and place the remainder in his pockets or other receptacle, to be stored away for future needs. So one who purchases a steamship ticket, or one who registers at a hotel, does not conceive the transaction as a sale of goods when, as part of his passage in the one case, and as a guest in the other, he is supplied with meals; nor does one who enters a restaurant to be supplied with a meal or any portion thereof so regard the supplying of his food. This attitude of the public mind is Indicated...

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34 cases
  • Burton v. Artery Co., Inc.
    • United States
    • Maryland Court of Appeals
    • January 6, 1977
    ...'The Uniform Commercial Code in N.J.S. 12A:2-314(1), has put to rest the widely criticized holding of Nisky v. Childs Co., 103 N.J.L. 464, 135 A. 805, 50 A.L.R. 227 (E. & A.1927), that the serving of food or drink in a restaurant amounts to a 'service' and not a 'sale' and bears no warranty......
  • Stanfield v. F.W. Woolworth Co.
    • United States
    • Kansas Supreme Court
    • January 25, 1936
    ...Co., 103 N.J.Law, 464, 135 A. 805, 806, 50 A.L.R. 227. The reasoning of these authorities may be best set forth in a quotation from Nisky v. Childs Co., supra, as "At common law, in the absence of express warranty or representation from which a warranty could be inferred, the mere sale of g......
  • Sofman v. Denham Food Service, Inc.
    • United States
    • New Jersey Supreme Court
    • May 7, 1962
    ...is fit for human consumption. Denham argues that the rule regarding a restaurateur's liability, as set forth in Nisky v. Childs Co., 103 N.J.L. 464, 50 A.L.R. 227 (E. & A. 1927), is dispositive here. There, a plaintiff sought damages for injuries caused by eating unwholesome fried oysters p......
  • Jackson v. Muhlenberg Hospital
    • United States
    • New Jersey Superior Court
    • July 13, 1967
    ...Commercial Code, in N.J.S. 12A:2--314(1), N.J.S.A. has put to rest the widely criticized holding of Nisky v. Childs Co., 103 N.J.L. 464, 135 A. 805, 50 A.L.R. 227 (E. & A. 1927), that the serving of food or drink in a restaurant amounts to a 'service' and not a 'sale' and bears no warranty ......
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