Cunningham v. C. R. Pease House Furnishing Co.

• Decision Date: 04 February 1908
• Citation: 74 N.H. 435,69 A. 120
• Parties: CUNNINGHAM v. C. R. PEASE HOUSE FURNISHING CO.
• Court: New Hampshire Supreme Court

69 A. 120

74 N.H. 435

CUNNINGHAM

v. C. R. PEASE HOUSE FURNISHING CO.

Supreme Court of New Hampshire. Hillsborough.

Feb. 4, 1908.

Exceptions from Superior Court, Hillsborough County; Pike, Judge.

Action by Mary E. Cunningham against the C. R. Pease House Furnishing Company. Plaintiff excepted to the direction of a nonsuit. Exception sustained.

Case for personal injuries caused by an explosion of stove blacking. The declaration contained a count under sections 26, 28, c. 126, Pub. St. 1901, and a count in negligence. A demurrer to the first count was sustained, and the question of the correctness of the ruling was reserved. There was a trial by jury upon the common-law count. At the close of the plaintiff's evidence a nonsuit was ordered upon the defendants' motion, and the plaintiff excepted.

The plaintiff's evidence tended to prove that the manufacturers of a stove blacking advertised it in Nashua, stating that it was for sale by the defendants. The plaintiff's mother saw the advertisement, called at the defendants' store, and asked a clerk if the blacking they were advertising was intended for stovepipes or for stoves. He replied that it was intended for stoves, and said that "the warmer the stove the better it works." She replied: "Won't that be fine! I can black my stove without letting my fire go out." Relying upon the representation that the blacking could be safely used on a hot stove, the mother bought a can. Two days later the plaintiff, a member of her mother's family, used some of the blacking on a hot stove, and an explosion resulted, causing the injuries complained of. The plaintiff and her mother were blamelessly ignorant of the fact that the blacking contained naphtha.

Doyle & Lucier, for plaintiff. Burnham, Brown, Jones & Warren, for defendants.

YOUNG, J. The defendants' position is like that of one who "puts destructive * * * materials in situations where they are likely to produce mischief." Ricker v. Freeman, 50 N. H. 420, 432, 9 Am. Rep. 267. Such a person must respond in damages to those who are injured because of his acts, if he either knew or ought to have known that the materials were dangerous, and that the persons injured might come in contact with them. Hobbs v. Company, 74 N. H. 116, 65 Atl. 382; Scott v. Shepherd, 3 Wils. 403; s. c. 2 W. Bl. 892: Cool. Torts, 78.

Although the defendants probably did not have the plaintiff in mind when they sold the blacking to her mother, they knew the mother bought it to use on her stove, and that other members of the family were likely to use it. Consequently the plaintiff can recover, if her mother could have recovered had she been injured instead of the plaintiff. The defendants will not be prejudiced by the assumption that the plaintiff cannot recover if her mother could not, and by the omission to consider whether the situation might not be such that recovery might be had against both the mother and the defendants. Ricker v. Freeman, 50 N. H. 420, 432, 9 Am. Rep. 267. The case, therefore, is considered as though it were an action by the mother. The declaration does not sound in either assumpsit or deceit. Whether she could maintain an action for a breach of warranty need not be considered; and whether she could recover for deceit will be considered only so far as is necessary to distinguish between facts constituting an intentional injury and those constituting a negligent one.

The common law imposes upon the seller the duty to refrain from falsely representing material facts for the purpose of misleading the buyer. The seller may praise the good qualities of his wares as much as he pleases, and is not bound to disclose their defects to the buyer, even if he knows of them, and is aware that the buyer believes he is purchasing sound goods. But if, for the purpose of inducing the prospective buyer to change his position, the seller sees fit to make any representation, either express or implied, in respect to facts which are material to the subject-matter of the sale, he must tell the truth. Shackett v. Bickford, 74 N. H. 57, 65 Atl. 252; Spead v. Tomlinson, 73 N. H. 46, 61, 59 Atl. 376, 68 L. R. A. 432; Stewart v. Stearns, 63 N. H. 99, 56 Am. Rep. 496; Rowell v. Chase, 61 N. H. 135; Springfield v. Drake, 58 N. H. 19; Pettigrew v. Chellis, 41 N. H. 95; Hanson v. Edgerly, 29 N. H. 343; Mahurin v. Harding, 28 N. H. 128, 59 Am. Dec. 401.

The defendants admit their liability for an intentionally false statement of fact, but contend that they are not liable for a false statement honestly believed to be true, though negligently made. Although there are authorities which sustain that position (Derry T. Peek, 14 App. Cas. 337; Angus v. Clifford [1891] 2 Ch. 449, 470), it is not the view which obtains in this jurisdiction. In this state a person who acts upon a false representation made for the purpose of inducing him to change his position may recover the damages he sustains in an action of deceit, when the maker of the statement knew it to be false, and in an action of negligence when he ought to have known it to be so. Shackett v. Bickford, supra; Hewett v. Association, 73 N. H. 556, 64 Atl. 190, 71 L. R. A. (N. S.) 496; Pittsfield, etc., Co. v. Shoe Co., 71 N. H. 522. 53 Atl. 807, 60 L. R. A. 116; Edwards v. Lamb, 09 N. H. 599, 45 Atl. 480, 50 L. R. A. 160; Judge Jeremiah Smith in 14 Harv. Law Rev. 184.

If, therefore, the defendants' false representation that it was...