Dulaney v. Jones
Decision Date | 18 December 1911 |
Docket Number | 15,188 3/4 |
Parties | C. L. DULANEY ET AL v. JONES & ROGERS |
Court | Mississippi Supreme Court |
APPEAL from the circuit court of Washington county. Hon. A. J. ROSE Special Judge.
Suit by Jones & Rogers against C. L. Dulaney et al. From a judgment for plaintiffs, defendants appeal.
The facts are sufficiently stated in the opinion of the court.
Judgment reversed.
Hugh C Watson, for appellants.
The rule of law involved in this case is that a vendor of feed stuff sold for the purpose of being fed to the animals of the vendee is held to impliedly warrant the soundness and wholesomness of the articles so sold.
It will be kept in mind that the vendor in this case was a dealer and the vendee was a consumer. That this is not a case between dealers.
It is contended by the appellees that this rule is applicable when the articles sold are intended for consumption by man, but that there is no implied warranty where the grain is to be consumed by animals. We think that the sounder and more humane reasoning is with our contention, and we cite the following cases in point: Houk v. Berg, 105 S.W. (Tex.), 1176; French v. Vining, 3 Am. Rep. (Mass.) 440.
In Hauk v. Berg, the appellee bought the grain from the appellant, a grain dealer, who had purchased it from another, a milling company. Says the court: This was a case where rotten food stuff had been sold by the vendor to the consumer and by the latter fed to his horse and mule which caused the death of the horse and the sickness of the mule. Held, that an action for damages against the vendor would lie.
French v. Vining was a case where hay, which had been accidently poisoned, was sold for cow feed. Says the court: "It is perfectly well settled that there is an implied warranty in reference to manufactured articles purchased for a particular use, which is made known to the vendor; that they are reasonably fit for the use for which they are purchased."
It was laid down firmly, early in the history of the law, that in contracts for provisions it is implied that they are wholesome, and that if they are not wholesome, an action on the case lies for deceit against the vendor. 3 Blackstone page 105.
Some of the leading cases on this subject in which the law is carefully reviewed are Tomlinson v. Armour & Co., 19 L. R. A. (N. S.) 923 (N. J.); McKibbins v. Box, 13 L. R. A. (N. S.) 646; Craft v. Parker, 21 L. R. A. 139 (Mich.); Darks v. Sudders-Gayles Gro. Co., 130 S.W. 434. The fact that the decisions of the courts on this subject were not ample to protect the public from the vendor of adulterated, unwholesome and unhealthy food, has necessitated federal and state legislation on this subject.
It seems to us that for the courts to apply this humane rule to protect dumb brutes and the owners thereof from the vendors of unwholesome, unhealthy and rotten food stuffs would be a salutary step that would be fraught with much good.
Shields & Boddie, for appellees.
The implied warranty as to food intended for human use is not extended to food stuff for animals. In the case of Lukens v. Friend, 27 Kan. 664, reported in 41 Am. Rep. 429, Judge Brewer, in delivering the opinion, says:
This doctrine has been approved in the following sases ...
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