Lumbrazo v. Woodruff

• Decision Date: 24 March 1931
• Parties: LUMBRAZO v. WOODRUFF et al.
• Court: New York Court of Appeals Court of Appeals

256 N.Y. 92

175 N.E. 525

LUMBRAZO

v.WOODRUFF et al.

Court of Appeals of New York.

March 24, 1931.

Action by Theodore Lumbrazo against S. D. Woodruff and others. From a judgment of the Appellate Division (229 App. Div. 407, 242 N. Y. S. 335) affirming a judgment of the Trial Term entered upon a verdict of jury in favor of plaintiff, defendants by permission appeal.

Judgments of the Appellate Division and Trial Term reversed, and complaint dismissed.Heber E. Griffith, of Utica, and R. J. Woodruff, of New Haven, Conn., for appellants.

R. R. Calli, of Utica, and R. D. Woolsey, of Canastota, for respondent.

CRANE, J.

The plaintiff is a farmer living in Canastota, N. Y., and the defendants are growers of, and dealers in, seeds in the state of Connecticut.

On May 14, 1926, the defendants sold to the plaintiff 300 bushels of Japanese onion sets at $3.50 per bushel. The sales contract contained a disclaimer of warranty clause reading: ‘We give no warranty, express or implied, as to description, quality, productiveness, or any other matter, of any seeds sent out, and will be in no way responsible for the crop, and the purchaser hereby waives the right of refusal and return of goods which is usually connected with the non-warranty.’

The peculiarity of the Japanese onion sets is that under favorable conditions they produce a very large crop. The year previous, out of a purchase from the same defendants of one hundred bushels of Japanese onion sets, the plaintiff had raised twenty-two hundred bushels. While the Japanese onion may be of a somewhat better quality than others, ‘its productive ability is the greatest characteristic.’ The small bulb onion, or set, about one-half inch in diameter, has no distinguishing features which from inspection will indicate its vitality. From the fact that the planting of these three hundred bushels of sets produced about 80 per cent. of seed stalks, and only one thousand bushels of onions, the conclusion has been reached that the sets could not have been Japanese onion sets, but those of an inferior grade or quality. The plaintiff has brought this suit for breach of warranty, in which he has recovered a judgment of $661.58. The Appellate Division, in affirming, has certified that a question of law is involved which should be reviewed by this court. The question is the validity and scope of the disclaimer of warranty clause.

Prior to the Uniform Sales Act, adopted in this state September 1, 1911, article 5 (section 82 et seq.) of the Personal Property Law (Cons. Laws, c. 41), a sale by description was supposed to be an inherent part of the contract separate and distinct from any agreement, express or implied, amounting to a warranty. If the goods purchased were not of the kind ordered, it was the buyer's duty to return them within a reasonable time, and no cause of action for damages survived acceptance. In Reed v. Randall, 29 N. Y. 358, page 362,86 Am. Dec. 305, this rule was stated in the following language: ‘In cases of executory contracts for the sale and delivery of personal property, the remedy of the vendee to recover damages, on the ground that the article furnished does not correspond with the contract, does not survive the acceptance of the property by the vendee, after opportunity to ascertain the defect, unless notice has been given to the vendor, or the vendee offers to return the property; the retention of the property by the vendee is an assent, on his part, that the contract has been performed.’

Where the defendants purchased No. 1 extra foundry pig iron of the Coplay Iron Company, Limited, make and received iron of a different make and inferior quality, but failed to return or offer to return the delivery after the facts became known, this court said: ‘Here there was no collateral warranty or agreement as to the quality of the iron. The representation as to the kind and quality of iron was part of the contract of sale itself, descriptive simply of the article to be delivered in the future; and clearly, within the cases cited, an acceptance of the property by the defendants, without any offer to return the same at any time, deprives them of any right to make complaintof its inferior quality.’ Coplay Iron Co. v. Pope, 108 N. Y. 232, 236,15 N. E. 335, 336.

The words of description or of identification of a kind of class of property purchased have been considered not as warranties, but conditions precedent to any obligation on the part of the vendee, since the existence of the qualities indicated by descriptive words, being part of the description of the things sold, becomes essential to its identity, and the vendee cannot be obliged to receive and pay for a thing different from that for which he contracted. Carleton v. Lombard, Ayres & Co., 149 N. Y. 137, page 148,43 N. E. 422; Williston, Sales, §§ 179, 180, 205, 224.

The distinction between a description amounting to a condition in the contract, or an essential part of the article sold, and a warranty, was quite important. As stated, when description was a condition, no right of recovery survived acceptance, whereas, for breach of warranty the buyer could retain the goods and sue to get his damage. Some confusion in the use of these terms arose, as is evident by the language of the opinion in White v. Miller, 71 N. Y. 118, 129,27 Am. Rep. 13. The plaintiffs, who were market gardeners, purchased of the defendants market cabbage seeds of a variety known as ‘Large Bristol Cabbage.’ The seeds were impure and of different variety, so that the plants raised therefrom were worthless. This court said: ‘A dealer who sells an article, describing it by the name of an article of commerce, the identity of which is not known to the purchaser, must understand that the latter relies upon the description as a representation by the seller that it is the thing described; and this constitutes a warranty.’

In my judgment, the sounder view, however, was later expressed in the opinion by placing the decision upon the further ground that there always was an implied warranty that the thing sold was free from any latent defect arising from the mode of cultivation or the manner of manufacture, citing Hoe v. Sanborn, 21 N. Y. 552, 78 Am. Dec. 163.With cabbage seed no inspection could have disclosed its kind or purity so as to permit the purchaser to return the article under the condition...