Farrell v. Manhattan Market Co.

• Decision Date: 02 April 1908
• Citation: 84 N.E. 481,198 Mass. 271
• Parties: FARRELL v. MANHATTAN MARKET CO. (three cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

198 Mass. 271

84 N.E. 481

FARRELL v. MANHATTAN MARKET CO. (three cases).

Supreme Judicial Court of Massachusetts, Middlesex.

April 2, 1908

COUNSEL

Coakley Coakley & Sherman and M. A. Sullivan, for plaintiffs.

H. T Richardson, for defendant.

OPINION

LORING J.

This case comes up on an exception to a ruling directing a verdict for the defendant.

The plaintiff in the third case (whom we shall speak of as the plaintiff) was the mother of those in the other two. The defendant is a corporation engaged in carrying on a retail market and provision store. The jury were warranted in finding the following to be the facts in the case:

On a Saturday evening in July the plaintiff, in the words of the bill of exceptions, 'purchased a chicken from one of the salesmen' of the defendant. She asked the salesman if it was a cold storage fowl, and he answered: 'Don't you know a good thing when you see it? Its strictly fresh.' She paid 12 1/2 cents a pound, the price 'having been reduced from 25 cents per pound, which was the defendant's custom on Saturday night in several of its departments.'

The next morning at 10 o'clock she removed the entrails washed the fowl, wiped, boiled and then roasted it, and at 4 o'clock she and the other two plaintiffs ate a portion of it and were made sick; what they suffered from was ptomaine poisoning.

The plaintiff introduced expert evidence that if the chicken was not fit for food there would be a discoloration 'from the neck down the length of the backbone; that if no such discoloration were visible the chicken was fit for food, unless it had eaten some poisonous substance, which might be shown by an examination of the crop, if the meat itself were diseased; all of which could be ascertained upon inspection by any one familiar with the examination of chickens.' She testified 'that she noticed no such discoloration at any time.'

It appeared 'that the defendant requested its customers not to handle fowl before purchasing, which was known to the plaintiff Mary, but that nothing was said to her in this particular at the time of the sale, and that this request was frequently ignored by customers, which fact was not known to her.'

At the conclusion of the evidence the plaintiffs requested the court to rule 'that a retail dealer in provisions selling chicken under the circumstances in this case impliedly warranted the chicken fit for food,' also 'that it was a question of fact for the jury to say whether or not the chicken was fit for food, whether or not the plaintiffs were injured by eating of diseased chicken, and whether or not the defendant was negligent in failure to make a sufficient and proper examination of the chicken before selling it to the plaintiff for consumption. The court declined to give the plaintiffs' requests, saying that it did not feel called upon to make such ruling, and ruled that there was not sufficient evidence that would warrant the jury in finding a verdict for the plaintiffs, and ordered a verdict for the defendant in all three cases.'

1. It was held in Norton v. Doherty, 3 Gray, 372, 63 Am. Dec. 758, on the authority of Williamson v. Allison, 2 East, 446, that tort for a false warranty as well as an action of contract lies in case a chattel is sold with warranty and the warranty is broken. A number of earlier English cases to the same effect are collected by Holmes, J., in Nash v. Minnesota Title Ins. Co., 163 Mass. 574, 587, 40 N.E. 1039, 28 L. R. A. 753, 47 Am. St. Rep. 489, and the proposition is there repeated. To the same effect see Emmons v. Alvord, 177 Mass. 466, 470, 59 N.E. 126, and Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 237, 59 N.E. 657, 51 L. R. A. 781, 86 Am. St. Rep. 478. In tort for a false warranty, the scienter need not be alleged, and if alleged it need not be proved. Shaw, C.J., in Norton v. Doherty, 3 Gray, 372, 373, 63 Am. Dec. 758; Holmes, C.J., in Nash v. Minnesota Title Ins. Co. and Emmons v. Alvord, ubi supra.

We assume therefore that an action of tort may be maintained for breach of a warranty. In the case at bar the plaintiff has alleged that the defendants sold the fowl to the plaintiff with the implied warranty that it was fit for food. The principal question in the case is whether that allegation has been made out.

In Howard v. Emerson, 110 Mass. 320. 14 Am. Rep. 608, it was decided that in the sale of a cow by a farmer to a butcher to be cut up for meat there was no implied warranty that it was fit for that purpose. After stating the general rule to be that in a sale of goods the maxim caveat emptor applies and that the defendant contended that articles of food sold for immediate domestic use are an exception, Morton, J., said: 'But we think that this exception, if established, does not extend beyond the case of a dealer who sells provisions directly to the consumer for domestic use.'

Giroux v. Stedman, 145 Mass. 439, 14 N.E. 538, 1 Am. St. Rep. 472, was a similar decision. There the defendants, who were farmers, killed two hogs and sold them to the plaintiffs to be eaten. The presiding judge instructed the jury as to the general rule laid down in Howard v. Emerson; next he tole them that there was an exception in case of the sale of provisions by a dealer (although that had been left open in Howard v. Emerson), but he added that that exception did not apply to a sale by a farmer, and left the case to the jury on the defendants' knowledge of the condition of the hogs. In disposing of an exception to this instruction Devens, J., said: 'Whether this exception exists or not, it is not important in the case at bar to inquire, as it cannot be, and was not, contended that the defendants were brought within it.'

It becomes necessary in the case at bar to consider the question left open in these two cases, and to decide whether there is such an exception to the general rule which obtains in the sale of chattels.

The first case of importance on this subject is Bigge v. Parkinson, 7 H. & N. 955, decided by the Exchequer Chamber in 1862.

Before that case was decided the law on the subject was not in a satisfactory condition.

It was laid down in a number of cases in the year books, collected in Burnby v. Bollett, 16 M. & W. 644, that the keeper of a tavern is liable for furnishing bad food or bad wine to his guests. The case in Year Book 9 Henry VI, 53, may be taken as an example. It is there said: 'If I come into a tavern to eat and he gives and sells to me beer and flesh which are corrupt by which I am put into a great sickness, I shall have against him my action on the case clearly, even although he made no guaranty to me.'

Mr. Justice Blackstone had laid it down without citing any authorities that: 'In contracts for provisions it is always implied that they are wholesome.' 3 Bl. Com. 165.

In Burnby v. Bollett, 16 M. & W. 644 (decided in 1847), it had been decided that in the sale of the carcass of a pig by one not a dealer where the carcass was inspected by the buyer, there was no implied warranty of soundness. Parke, B., in delivering the opinion of the Court of Exchequer in that case suggested that the cases in the year books depended on statutes repealed before the sale then in question making it an offense for victualers, butchers and other common dealers in victuals to sell corrupt victuals.

In Emmerton v. Mathews, decided by the Court of Exchequer in the same year and reported in the same volume (7 H. & N. 586) as Bigge v. Parkinson, it was held that in the sale of a carcass of meat by one who sold meat on commission for his consignors there was no implied warranty of soundness. This case, as reported in 7 H. & N. 586, would seem to go on the ground that one who sells meat as a factor for others is not a dealer. But in the report of this case in 5 L. T. (N. S.) 681, Pollock, C. B., is reported to have said that 'the plaintiff bought on his own inspection,' and in Jones v. Just, L. R. 3 Q. B. 197, 202. The decision in Emmerton v. Mathews was stated to have been made on the ground that the plaintiff selected the meat.

This was the state of the law on the subject when Bigge v. Parkinson came up for decision. Bigge v. Parkinson was a case where the plaintiffs, being ship owners, had chartered a ship to the East India Company to carry troops from London to Bombay. They had made a contract with the defendant, who was a provision merchant, by which the defendant agreed to supply the ship with provisions and stores for the troops at so much a head. Under this contract the defendant had supplied provisions and stores which were unsound and unwholesome, and it was held that he was liable on an implied warranty that the provisions and stores supplied should be fit to be eaten.

The ground on which this conclusion was reached is thus stated by Cockburn, C.J., who delivered the opinion of the Court of Exchequer Chamber after time had been taken for consideration: 'The principle of law is correctly stated in the passage cited from Chitty on Contracts (6th Ed.) p. 399. Where a buyer buys a specific article, the maxim 'Caveat emptor' applies; but where the buyer orders goods to be supplied, and trusts to the judgment of the seller to select goods which shall be applicable to the purpose for which they are ordered, there is an implied warranty that they shall be reasonably fit for that purpose; and I see no reason why the same warranty should not be comprehended in a contract for the sale of provisions.'

The rule thus laid down by Cockburn, C.J., in Bigge v. Parkinson, has been followed in all subsequent cases and is now established as the law in England on the question now before us.

The first proposition laid down in Bigge v. Parkinson is that there is no difference between a sale of provisions...