Giroux v. Stedman

• Decision Date: 04 January 1888
• Citation: 14 N.E. 538,145 Mass. 439
• Parties: GIROUX v. STEDMAN et al., (three cases.) PECORD v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 439

14 N.E. 538

GIROUX

v.STEDMAN et al., (three cases.)

PECORD

v.SAME.

Supreme Judicial Court of Massachusetts, Hampden.

January 4, 1888.

Exceptions from superior court, Hampden county; ALDRICH, Judge.

These were actions brought by Richard Giroux, Mary Giroux, Joseph Pecord, and Mary Giroux, (by her next friend,) against Phineas Stedman and another, to recover damages for torts committed by them in selling to the plaintiffs pork unfit for food. The plaintiffs claimed to have purchased from the defendants certain provisions, to-wit, certain quantities of dressed pork; that said pork was tainted, and unfit for food; that they ate of said pork, and were made sick thereby. At the trial in the superior court, the evidence showed that the defendants were farmers carrying on a farm in Chicopee, and jointly interested in raising pigs; that about the middle of September, 1885, the defendants found that an infectious disease, known as “hog cholera,” existed upon their farm, and that their entire herd had been exposed to the disease; that on October 3, 1885, the defendants killed two of their hogs, dressed them, and sold one-half of one of them to the plaintiff Richard Giroux, and one-half of the other hog to the plaintiff Joseph Pecord; that on October 5th the defendants killed and dressed two other hogs, one of which was sold to the plaintiff Pecord. The evidence showed, further, that, at the time of the several sales to the plaintiffs, no representations as to the quality of the meat were made, and no notice given to the plaintiffs, at the times of the sales, of the existence of the disease among the herds owned by the defendants; but it appeared that the defendants knew, at the time of the several sales to the several plaintiffs, that the meat so sold by them to the plaintiff was to be used by the plaintiff for provisions. The presiding judge instructed the jury in terms, the substance of which appears in the opinion. The jury returned a verdict for the defendants, and the plaintiffs alleged exceptions.

W.W. McClench, for plaintiffs.

The defendants sold the pork knowing that it was to be used for provisions. They sold it “as farmers.” Can the mere circumstance that they did not keep a shop, or put up a sign, or run an ordinary butcher's wagon exempt them from the responsibility which would attach to a market-man? If so, then farmers may peddle out potatoes tainted with paris green, or sell to their neighborsthe meat of a cow found dead in the pasture, with impunity. The plaintiffs deny that such is the law, and claim that the true doctrine is that any purchase of food for domestic consumption is protected, and that a warranty arises from all such sales. Sufficient authority for such claim is found in the books. 3 Bl.Comm. 165; 2 Kent, Comm. 478; Add.Cont. § 621; Hil. Sales, 278; Hare, Cont. 535. The same doctrine appears in numerous decisions; among which, the following appear to be leading: Burch v. Spencer, 15 Hun, 504; Van Bracklin v. Fonda, 12 Johns. 468;Hoover v. Peters, 18 Mich. 51;Divine v. McCormick, 50 Barb. 116;Hart v. Wright, 17 Wend. 272;Moses v. Mead, 1 Denio, 378;Emerson v. Brigham, 10 Mass. 197;Winsor v. Lombard, 18 Pick. 62. The plaintiffs were not bound to prove more than was necessary to make out their case; the rule in actions of tort being that the plaintiff is not bound to prove allegations not essentially descriptive, or so connected with material averments that they cannot be separated. Lyons v. Merrick, 105 Mass. 71;McDonald v. Snelling, 14 Allen, 290.

Ely Bros. and E.W. Chapin, for defendants.

The judge's instruction to the jury was explicit that “the plaintiffs are not entitled to prevail in these cases if they have failed to prove the allegations in their declarations that the defendants knew the meat sold by them to the plaintiffs was unwholesome, and improper meat to be used as provisions.” The scienter is not only a material, but a vital, part of the case. French v. Vining, 102 Mass. 136. Reasonable cause to know is not the same thing as knowledge. Carroll v. Hayward, 124 Mass. 120. There was no implied warranty in the sale made by the plaintiffs that the meat was fit for food, and, under all the circumstances of the case, the maxim of caveat emptor applies. Howard v. Emerson, 110 Mass. 320;Emerson v. Brigham, 10 Mass. 197. The exception to the general rule as to the implied warranty does not apply to the present case, because of the pleadings; and, even if a wrong reason was given in the instruction to the jury, the plaintiff was not injured by the same. Fuller v. Ruby, 10 Gray, 285;Burke v. Savage, 13 Allen, 408. If the instructions as a whole were not erroneous, the plaintiffs cannot succeed in their exceptions, although a single passage of the instructions, if taken abstractly, may be erroneous. Jackman v. Bowker, 4 Metc. 236. As “full instructions” were given, it does not appear but that plaintiffs' rights were fully protected under them. Woods v. Woods, 127 Mass. 141.

DEVENS, J.

It was known to the defendants that the plaintiffs purchased the meat to be used as provisions, but, in order that they should recover, it was held by the presiding judge that they must prove the allegations in their declaration that the defendants knew the meat sold by them was unwholesome, and improper to be used as provisions. He instructed the jury that, at common law, the general rule is that where personal property is sold in the presence of buyer and seller, each having an opportunity to see the property, and there is nothing said as to the quality, the only implied warranty on the part of the seller is that he has a valid title in, or has a right to sell, the chattel. He added that there is an exception to this general rule, where a provision dealer or market-man sells provisions, as meat and vegetables, to his customers for immediate use; and that in such case there would be an implied warranty that they were fit for use, and wholesome. Whether this exception exists or not it is not important, in the case at bar, to inquire, as it cannot be, and was not claimed, that the defendants were...