Ryan v. Progressive Grocery Stores, Inc.

• Decision Date: 10 February 1931
• Parties: RYAN v. PROGRESSIVE GROCERY STORES, Inc.
• Court: New York Court of Appeals Court of Appeals

255 N.Y. 388

175 N.E. 105

RYAN

v.PROGRESSIVE GROCERY STORES, Inc.

Court of Appeals of New York.

Feb. 10, 1931.

Action by Patrick Ryan against the Progressive Grocery Stores, Inc. From a judgment of the Appellate Division (230 App. Div. 792, 244 N. Y. S. 919) affirming a judgment of the City Court of the city of White Plains for plaintiff, defendant appeals by permission.

Affirmed.

Appeal from Supreme Court, Appellate Division, Second Department.

Walter L. Glenney, of New York City, for appellant.

William L. Rumsey, of White Plains, for respondent.

CARDOZO, C. J.

The action is for breach of warranty. Plaintiff through his wife, who acted as his agent, bought a loaf of broad at the defendant's grocery. The loaf had concealed in it a pin, which hurt the plaintiff's mouth. There has been a judgment for the damage.

1. ‘Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.’ Personal Property Law; Consol. Laws, c. 41, § 96, subd. 1.

The plaintiff did not rely on the seller's skill or judgment. His wife stated to the salesman that she wished to have a loaf of ‘Ward's bread.’ The salesman gave her what she asked for, wrapped in a sealed package as it had come from the Ward Baking Company, the baker. She made her own choice, and used her own judgment.

The leading case in this state as to the meaning of the statute quoted is Rinaldi v. Mohican Co., 225 N. Y. 70, 121 N. E. 471. The sale was one of pork, which turned out to be diseased. He held that reliance on the seller's skill and judgment might be gathered from the purchase as a reasonable inference. We left the question open whether a like inference would be drawn upon a sale in the original package as bought by the vendor from others.

Since Rinaldi v. Mohican Co., the scope of the implied warranty upon a sale of food in sealed containers has been discussed in other courts. There are decisions to the effect that even in such circumstances an implied warranty ensues if the seller's judgment has been trusted for the selection of the brand or make. Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 90, 93, 120 N. E. 225, 226, 5 A. L. R. 242;Ireland v. Louis K. Liggett Co., 243 Mass. 243, 137 N. E. 371;Lieberman v. Sheffield Farms-Slawson-Decker Co. (App. Term) 117 Misc. Rep. 531, 191 N. Y. S. 593; Williston, Sales, vol. 1, §§ 242, 242-a. We assume for present purposes that so the rule should be declared. Invariably, however, the limitation has been added that there can be no inference of reliance where the buyer selects the brand and gets what he selects. The customer will be taken to confide in ‘the skill and experience of the seller in determining the kind of canned goods which he will purchase, unless he demands goods of a definite brand or trade-name.’ Ward v. Great Atlantic & Pacific Tea Co., supra. The statute is then explicit. ‘In the case of * * * a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.’ Personal Property Law, § 96, subd. 4. There is no room for a holding that choice shall be imputed to the seller when the transaction shows upon its face that the judgment of the seller was superseded, and choice determined by the buyer.

The award of damages, if it is to be upheld, must rest upon some other basis than the imputation of reliance.

2. ‘Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.’ Personal Property Law, § 96, subd. 2.

The facts excluding a warranty under subdivision 1, we are to inquire whether there is a warranty under subdivision 2.

Under the common-law rule long in force in this state, the warranty of merchantable quality was limited to sales by a manufacturer or grower. Hargous v. Stone, 5 N. Y. 73;Hoe v. Sanborn, 21 N. Y. 552, 78 Am. Dec. 163;Bartlett v. Hoppock, 34 N. Y. 118, 88 Am. Dec. 428;Carleton v. Lombard, Ayres Co., 149 N. Y. 137, 43 N. E. 422;Bierman v. City Mills Co., 151 N. Y. 482, 45 N. E. 856,37 L. R. A. 799, 56 Am. St. Rep. 635;Howard Iron Works v. Buffalo Elevating Co., 113 App. Div. 562, 99 N. Y. S. 163;Id., 188 N. Y. 619, 81 N. E. 1166; Williston, Sales, vol. 1, §§ 232, 233. All this has been changed since the coming of the Sales Law. Williston, supra. Dealer as well as manufacturer or grower affirms as to anything he sells, if purchased by description, that it is of merchantable quality. The burden may be heavy. It is one of the hazards of the business.

Most of the sales of defective foodstuffs have been dealt with by the courts as if subdivision 1 of the section defining warranties gave the exclusive rule to be applied. In some instances the goods were not purchased by description. In others, the courts may have been unmindful of the fact that the warranty of merchantable quality is no longer confined to manufacturers or growers. Innovations of this order are slow to make their way. Gradually, however, as the statute has become better known, the bearing of subdivision 2 upon sales of food in sealed containers has been perceived by court and counsel. The nature of the transaction must determine in each instance the rule to be applied. There are times when a warranty of fitness has no relation to a warranty of merchantable quality. This is so, for example, when machinery competently wrought is still inadequate for the use to which the buyer has given notice that it is likely to be applied. There are times, on the other hand, when the warranties coexist, in which event a recovery may be founded upon either. ‘Fitness for a particular purpose may be merely the equivalent of merchantability.’ Williston, Sales, vol. 1, § 235, and cases there cited.

A dual warranty is thus possible for foodstuffs as for anything else. Both in this court and in others the possibility is recognized. Aron & Co. v. Sills, 240 N. Y. 588, 589, 148 N. E. 717, was an action for breach of warranty by retailer against wholesaler upon a sale of condensed milk. At the Appellate Division (211 App. Div. 21, 206 N. Y. S. 695), the warranty was treated as governed by subdivision 1. When the case came to us, we put that subdivision aside, holding that there was no necessity of deciding whether there was sufficient evidence of reliance, and placed our affirmance of the judgment upon subdivision 2. ‘Whether under the circumstances of this particular purchase any inference is possible that the buyer relied upon the seller's skill or judgment we need not decide. For even were the trial court in error as to the existence of an implied warranty that the goods in question were fit for human consumption, bought as they were by description from one who dealt in them, there was a warranty that they were of merchantable quality. If condensed milk is unfit for consumption, clearly it does not comply with this warranty.’ 240 N. Y. 588, 589, 148 N. E. 717.

A like rule has been declared in Massachusetts and in the federal courts; at all events in controversies between the dealer and the maker. Inter State Grocer Co. v. George William Bentley Co., 214 Mass. 227, 101 N. E. 147 (sale of sardines); Parker v. S. G. Shaghalian & Co., 244 Mass. 19, 138 N. E. 236 (sale of candy); McNeil & Higgins Co. v. Czarnikow-Rienda Co. (D. C.) 274 F. 397, 400 (sale of sugar).

‘Where the buyer specifies what he wants, he can, of course, not rely upon any superior knowledge of the seller that it will serve his purposes. If he did, he must give the seller some latitude of selection. But he may still insist that it must be of a quality which will pass in the market under that description, and he may rightly rely upon the seller to secure him such a quality.’ L. Hand, J., in McNeil & Higgins Co. v. Czarnikow-Rienda Co., supra.

The result has not been different in cases where the consumer rather than another dealer has been the victim of the wrong.

Thus, in Wren v. Holt, [1903] 1 K. B. 610, the plaintiff was made ill through the presence of arsenic in beer, which he had bought from the defendant, who was not the manufacturer. In buying the beer, he asked for the product of a particular firm of brewers. A recovery was upheld for breach of an implied warranty of merchantable quality as upon a purchase by description, and this though there had been no reliance on the skill and judgment of the seller. Again, in Morelli v. Fitch, [1928] 2 K. B. 636, there was a recovery for breach of a like warranty upon a sale of a bottle of ginger ale by the keeper of a public house. The customer had asked for ale of a particular make, trusting to his own judgment rather than to the experience of the seller. Even so, the warranty of merchantable quality was held to be a sufficient basis for the recovery of damages.

Loaves baked with pins in them are not of merchantable quality....