Glanzer v. Shepard,

CourtNew York Court of Appeals
Writing for the CourtCARDOZO
Citation233 N.Y. 236,135 N.E. 275
PartiesGLANZER et al. v. SHEPARD et al.
Decision Date18 April 1922

233 N.Y. 236
135 N.E. 275

GLANZER et al.
v.
SHEPARD et al.

Court of Appeals of New York.

April 18, 1922.


Action by Abraham Glanzer and others against Levi Shepard and another. A judgment of the City Court, entered upon a verdict in favor of the plaintiff, was reversed by the Appellate Term (182 N. Y. Supp. 178), which in turn was reversed by the Appellate Division (194 App. Div. 693,186 N. Y. Supp. 88), and defendant appeal by permission.

Affirmed.

Hogan, J., dissenting.


[233 N.Y. 236]Appeal from Supreme Court, Appellate Division, First department.

[233 N.Y. 237]Bernard P. Ryan and Adolph E. Gutgsell, both of New York City, for appellants.

I. Maurice Wormser and I. Gainsburg, both of New York City, for respondents.


CARDOZO, J.

Plaintiffs bought of Bech, Van Siclen & Co., a corporation, 905 bags of beans. The beans [233 N.Y. 238]were to be paid for in accordance with weight sheets certified by public weighers. Bech, Van Siclen & Co., the seller, requested the defendants, who are engaged in business as public weighers, to make return of the weight and furnish the buyers with a copy. A letter to the weighers, dated July 20, 1918, informed them that the bags were on the dock, that the beans had been sold to Glanzer Bros., the plaintiffs, who would accept delivery Tuesday, July 23, and that the defendants were to communicate with the plaintiffs, and ascertain whether it would ‘be in order’ to be on the pier Tuesday morning to weigh the beans before delivery. The defendants did as bidden. They certified the weight of the 905 bags to be 228,380 pounds, and were paid for the service by the seller. Their return recites that it has been made ‘by order of’ Bech, Van Siclen & Co., ‘for G. Bros.’ One copy of the return they sent to the seller, and a duplicate to the buyers. Later, 17 bags, containing 4,136 pounds, were withdrawn from the shipment. The others were accepted and paid for on the faith of the certificates. The plaintiffs, upon attempting a resale, found that the actual weight was less by 11,854 pounds than the weight as certified in the return. Upon learning this, they brought suit against the defendants in the City Court of New York for $1,261.26, the amount overpaid. The trial judge, upon motions made by each side for the direction of a verdict, ordered judgment for the plaintiffs. The Appellate Term reversed upon the ground that the plaintiffs had no contract with the defendants, and must seek their remedy against the seller. The Appellate Division reversed the Appellate Term, and reinstated the verdict. The defendants are the appellants here.

[1] We think the law imposes a duty toward buyer as well as seller in the situation here disclosed. The plaintiffs' use of the certificates was not an indirect or collateral consequence of the action of the weighers. It was a consequence which, to the weighers' knowledge, was the end [233 N.Y. 239]and aim of the transaction. Bech, Van Siclen & Co. ordered, but Glanzer Brothers were to use. The defendants held themselves out to the public as

[135 N.E. 276]

skilled and careful in their calling. They knew that the beans had been sold, and that on the faith of their certificate payment would be made. They sent a copy to the plaintiffs for the very purpose of inducing action. All this they admit. In such circumstances, assumption of the task of weighing was the assumption of a duty to weigh carefully for the benefit of all whose conduct was to be governed. We do not need to state the duty in terms of contract or of privity. Growing out of a contract, it has none the less an origin not exclusively contractual. Given the contract and the relation, the duty is imposed by law. Cf. MacPherson v. Buick Motor Co., 217 N. Y. 382, 390,111 N. E. 1050, Ann. Cas. 1916C, 440, L. R. A. 1916F, 696.

[2] There is nothing new here in principle. If there is novelty, it is in the instance only. One who follows a common calling may come under a duty to another whom he serves, though a third may give the order or make the payment. 1 Street, Foundations of Legal Liability, pp. 187, 188; Bohlen, Affirmative Obligations in the Law of Torts, 44 Am. Law Reg. (N. S.) 209, 218, 293, 294; 3 Holdsworth, History of English Law, p. 332. ‘It is the duty of every artificer to exercise his art rightly and truly as he ought.’ Fitzherbert Abr., Trespass sue le Case, 94d, quoted by Bohlen, supra, p. 293. The surgeon who unskillfully sets the wounded arm of a child is liable for his negligence, though the father pays the bill. Gladwell v. Steggall, 5 Bing. (N. C.) 733; Pippin v. Sheppard, 11 Price,...

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573 practice notes
  • Garcia v. Superior Court, No. S004813
    • United States
    • United States State Supreme Court (California)
    • May 3, 1990
    ...Torts (5th ed. 1984) § 28, p. 161.) Negligent misrepresentation was not actionable in this country until 1922 (Glanzer v. Shepard (1922) 233 N.Y. 236, 135 N.E. 275) and in England until 1963 (Hedley Byrne & Co. v. Heller & Partners Ltd. [1964] App.Cas. 465). The tort of negligence was desig......
  • Williams Ford, Inc. v. Hartford Courant Co., No. 14937
    • United States
    • Supreme Court of Connecticut
    • April 11, 1995
    ...or communicating the information.' See also Ultramares Corporation v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931); Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922); W. [232 Conn. 576] Prosser & W.P. Keeton, [supra,] § 107, p. 745." (Internal quotation marks omitted.) D'Ulisse-Cupo v. Boa......
  • Merriman v. Am. Guarantee & Liab. Ins. Co., No. 33929-7-III
    • United States
    • Court of Appeals of Washington
    • April 11, 2017
    ...subject to the duty of acting carefully, if he acts at all.' " 35 Wash.App. 1, 4, 664 P.2d 1299, (1983) (quoting Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, (1922) ). The principle applies in voluntary rescue cases. Brown v. MacPherson's, Inc., 86 Wash.2d 293, 299, 545 P.2d 13 (197......
  • Kellermann v. McDonough, Record No. 081718
    • United States
    • Virginia Supreme Court of Virginia
    • November 5, 2009
    ...duty of acting carefully, if he acts at all." Nolde Bros. v. Wray, 221 Va. 25, 28, 266 S.E.2d 882, 884 (1980) (quoting Glanzer v. Shepard, 135 N.E. 275, 276 (N.Y. 1922)). We recently restated this principle in Fruiterman v. Granata, 276 Va. 629, 645, 668 S.E.2d 127, 136 (2008) and Didato v.......
  • Request a trial to view additional results
573 cases
  • Garcia v. Superior Court, No. S004813
    • United States
    • United States State Supreme Court (California)
    • May 3, 1990
    ...Torts (5th ed. 1984) § 28, p. 161.) Negligent misrepresentation was not actionable in this country until 1922 (Glanzer v. Shepard (1922) 233 N.Y. 236, 135 N.E. 275) and in England until 1963 (Hedley Byrne & Co. v. Heller & Partners Ltd. [1964] App.Cas. 465). The tort of negligence was desig......
  • Williams Ford, Inc. v. Hartford Courant Co., No. 14937
    • United States
    • Supreme Court of Connecticut
    • April 11, 1995
    ...or communicating the information.' See also Ultramares Corporation v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931); Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922); W. [232 Conn. 576] Prosser & W.P. Keeton, [supra,] § 107, p. 745." (Internal quotation marks omitted.) D'Ulisse-Cupo v. Boa......
  • Merriman v. Am. Guarantee & Liab. Ins. Co., No. 33929-7-III
    • United States
    • Court of Appeals of Washington
    • April 11, 2017
    ...subject to the duty of acting carefully, if he acts at all.' " 35 Wash.App. 1, 4, 664 P.2d 1299, (1983) (quoting Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, (1922) ). The principle applies in voluntary rescue cases. Brown v. MacPherson's, Inc., 86 Wash.2d 293, 299, 545 P.2d 13 (197......
  • Kellermann v. McDonough, Record No. 081718
    • United States
    • Virginia Supreme Court of Virginia
    • November 5, 2009
    ...duty of acting carefully, if he acts at all." Nolde Bros. v. Wray, 221 Va. 25, 28, 266 S.E.2d 882, 884 (1980) (quoting Glanzer v. Shepard, 135 N.E. 275, 276 (N.Y. 1922)). We recently restated this principle in Fruiterman v. Granata, 276 Va. 629, 645, 668 S.E.2d 127, 136 (2008) and Didato v.......
  • Request a trial to view additional results

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