Gentilli v. Starace

• Decision Date: 12 April 1892
• Citation: 30 N.E. 660,133 N.Y. 140
• Parties: GENTILLI v. STARACE.
• Court: New York Court of Appeals Court of Appeals

133 N.Y. 140

30 N.E. 660

GENTILLI

v.STARACE.

Court of Appeals of New York.

April 12, 1892.

Appeal from superior court of New York city, general term.

Action by Max Gentilli against Achille Starace. From a judgment of the general term reversing a judgment for defendant entered on the report of a referee, defendant appeals. Affirmed.

Coudert Bros. and John N. Lewis, for appellant.

Wm. J. Weldon, for respondent.

GRAY, J.

The plaintiff, who was a commission merchant in New York city, sold to the defendant, who was engaged in the same business, certain wines, through a broker, whose note of the sale stated it to be of ‘169 cases Prosperi's Chianti wine, just arrived per S. S. Trinacria, at the prices and terms hereinafter mentioned, to-wit, [giving quantities and prices.] All to be in good merchantable order. Delivery on steamer's dock. The said goods to be approved by buyer within three days after delivery. Terms: Payment by notes, for one-half the amount each, at 60 and 90 days, respectively. * * *’ The first note was paid, and the present action is to recover upon the second note. This recovery is sought to be defeated by the defense of a failure of consideration, in that the wine, some time after the sale was completed, was discovered to be imperiect and unsound, and hence, as it is contended, an express warranty that the wine was intrinsically sound and free from latent defects was broken. This warranty, the appellant argues, was conveyed by these words in the broker's note of sale: ‘All to be in good merchantable order.’ We think his appeal must fail, for the reason that the contract of sale nowhere expresses, nor imports, any agreement on the seller's part that the wine should be of any particular quality, or that any rights should survive to the buyer, after his acceptance, as against the seller, which would authorize him to attack the sale for defects in the condition of the wine subsequently discovered. The wine was on the dock when sold, and the complaint as to its unsoundness was made some three months afterwards. It was justified by a chemical analysis of the wine, made by a chemist, who gave it as his opinion that the wine had been bottled while in a state of secondary fermentation. This condition, though possibly latent to the casual or ordinary taste at times, is, nevertheless, it was said, discoverable always by chemical tests. For the court to hold that upon this sale, so effected, there was conveyed a warranty to the seller, in the language used, that, at any and all times subsequent to the acceptance of the wine, it should, upon examination or test, be found a desirable article, free from latent defects or unsoundness, would, in my opinion, be an extreme and unwarranted application of the doctrine upon which the rights of purchasers are made to depend. It is the general rule in such cases that the existence of a warranty is to be determined by the circumstances of the particular case. That is the rule where a warranty is sought to be implied. Where application is sought...