Hoffman v. Dixon

• Decision Date: 09 January 1900
• Citation: 105 Wis. 315,81 N.W. 491
• Parties: HOFFMAN v. DIXON.
• Court: Wisconsin Supreme Court

105 Wis. 315

81 N.W. 491

HOFFMAN

v.DIXON.

Supreme Court of Wisconsin.

Jan. 9, 1900.

Syllabus by the Judge.

1. A customer applied at a store for rape seed, and in response to an inquiry as to whether such seed was there kept for sale was informed in the affirmative by the person in charge, who produced seed as being of the kind called for, whereupon such customer purchased some of such seed, acting wholly on the faith of the representations thus made as to its character. Held, that the conduct of the merchant was in effect an affirmation of fact as to the character of the article offered for sale and an express warranty in that regard, whether he knew the truth in that regard or not.

2. If a person offer an article for sale, accompanying such offer with an affirmation of fact, or acts equivalent to such affirmation, as to the identity of such article, for the purpose of making a sale thereof to another, and such other, relying on such affirmation, purchase such article, and such affirmation be false to the injury of the purchaser, he may hold the vendor liable for damages for breach of warranty or actionable fraud, without regard to whether such vendor made the affirmation knowing it to be false or not.

Appeal from circuit court, Kenosha county; Frank M. Fish, Judge.

Action by Martin L. Hoffman against Robert M. Dixon. Judgment for defendant. Plaintiff appeals. Reversed.

Action to recover damages for breach of warranty on the following facts: Plaintiff, a farmer, by Martin L. Hoffman, Jr., his son, who was duly authorized thereto, applied to the defendant, a country merchant who kept seeds for sale, among other things, to buy some rape seed. The business on the part of defendant was done by one of his regular clerks. Mr. Hoffman asked the clerk if they had rape seed for sale. He replied in the affirmative, whereupon Mr. Hoffman said he would take 25 pounds. The clerk thereupon produced a sack of seed and weighed out the desired amount in Hoffman's presence. Neither Hoffman, the clerk, the defendant, nor plaintiff knew rape seed from wild mustard seed, and each was wholly unaware of the ignorance of the others. Hoffman purchased the seed relying upon the fact that it was produced by the clerk and sold to him as what he called for. The seed was delivered at plaintiff's farm and was there, either by him or by his authority, sowed upon his land. He did not examine the seed, and would not have been wiser if he had, as he was entirely unacquainted with the appearance of rape seed, as before indicated. He used the seed relying upon the fact that it was sold as rape seed. The seed was in fact wild mustard seed. It befouled plaintiff's land to his injury. The facts stated were established by evidence, as was the damage to plaintiff, sufficiently to enable the jury, under proper instructions, to determine the truth in regard to plaintiff's recoverable loss. A motion was made for a nonsuit at the close of the evidence, which was granted, and judgment was rendered accordingly. Plaintiff appealed.Peter Fisher and O'Connor, Hammel & Schmitz, for appellant.

Quarles, Spence & Quarles, for respondent.

MARSHALL, J. (after stating the facts).

The learned circuit judge, in granting the nonsuit, followed Seixas v. Wood, 2 Caines, 48, and a few other authorities in this country in harmony therewith, most of such authorities being decisions of the supreme court of Pennsylvania to the effect that, in the sale of an article, with opportunity on the part of the vendee to inspect it before purchasing, the vendor being neither the manufacturer nor producer of such article, the maxim caveat emptor applies both as to the quality and identity thereof. The Seixas Case was decided in 1804. Kent, J., who wrote the opinion, grounded the decision on Chandelor v. Lopus, Cro. Jac. 4, decided in 1603, where it was held that if a person sell a thing for what it is not, falsely but innocently misrepresenting its species, no action will lie against him to make good his representations. The case was this: The plaintiff sold a jewel, affirming as a fact, in order to make the sale, that it was a bezoar stone, which it was not. It will be noted that the doctrine of that case is directly contrary to the modern rule that he who falsely affirms the existence of a material fact in regard to an article offered by him for sale, for the purpose of making a sale thereof, which affirmation is relied upon without negligence by the purchaser, to his damage, is guilty of an actionable fraud. As was said by this court in effect, in Cotzhausen v. Simon, 47 Wis. 103, 1 N. W. 473, if representations by a vendor be material and false, and the vendee rely upon them to his injury, he may recover of the vendor on the ground of fraud the damages he sustains thereby which are the natural and proximate results of the wrong; and such is the case whether the falsehood be willful or not, for a vendor has no right to make even a mistake in facts material to a contract except under penalty of responding in damages. The law is quite well settled in this state contrary to the ancient rule upon which the Seixas Case was decided, on the subject of whether the positive assertion of a fact, made to induce a sale, may constitute a warranty, as that it may an actionable fraud, regardless of any element of intentional wrong. Austin v. Nickerson, 21 Wis. 542.

This opinion might be extended to great length by a review of the cases on the subject under consideration, but we-shall forego any long discussion of the matter. The Seixas Case was overruled in Hawkins v. Pemberton, 51 N. Y. 198. The law as there stated has been since followed in New York. White v. Miller, 71 N. Y. 118. In...