McQuaid v. Ross

• Decision Date: 21 June 1893
• Citation: 85 Wis. 492,55 N.W. 705
• Parties: MCQUAID v. ROSS ET AL.
• Court: Wisconsin Supreme Court

85 Wis. 492

55 N.W. 705

MCQUAID

v.ROSS ET AL.

Supreme Court of Wisconsin.

June 21, 1893.

Appeal from circuit court, Columbia county; R. G. Siebecker, Judge.

Action by Patrick F. McQuaid against William Ross and others for breach of warranty. Plaintiff was nonsuited, and appeals. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

This case was before this court on a former appeal, (77 Wis. 470, 46 N. W. Rep. 892,) where the claims of the plaintiff are stated. Upon the new trial awarded the plaintiff sought to maintain that there was an implied warranty upon the sale by the defendants to the plaintiff of the bull in question, that he was in all respects fit, suitable, and competent to perform the service for which he was purchased, namely, to generate his kind; and the plaintiff produced evidence to show that when he bought the bull he desired him for breeding purposes; that the defendants were breeders of short horn Durham cattle, and knew the purpose for which the plaintiff desired and bought the animal; that he paid the full price of such an animal for breeding purposes, $125, and examined him at the time of the purchase; that, except for such purposes, the animal would not be worth to exceed $30. The plaintiff ascertained afterwards and in course of time that the bull was incompetent, impotent, and unable to generate his kind, and was useless for the purposes for which he was purchased, and he returned the bull to the defendants at their farm for this reason; but there was no proof tending to show that they accepted him. Evidence was given to show the plaintiff's damages. The circuit court held that there was no implied warranty of the procreative powers of the bull, and granted a judgment of nonsuit against the plaintiff, from which he appealed.W. J. Hooper and Spensley & McIlleon, for appellant.

Orton & Osborn and J. M. Smith, for respondents.

PINNEY, J., (after stating the facts.)

There is no ground for contending that the plaintiff in purchasing the animal in question either asked the opinion or judgment of the vendors in respect to its procreative capacity, nor is there any reasonable or rational ground for imputing to them any information or knowledge on that subject not possessed by the plaintiff, although they had raised the bull, and were stock breeders. The plaintiff saw and inspected the animal before he made the purchase, and it was of the kind he desired to purchase. It is a well-understood principle of the common law in England, and almost universal in this country, that in sales of personal property, in the absence of express warranty, where the buyer has an opportunity to inspect the commodity or thing sold, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the thing he sells, the maxim caveat emptor applies. This is the rule laid down in Benj. Sales, § 644; Barnard v. Kellogg, 10 Wall. 388; Jones v. Just, L. R. 3 Q. B. 202. In Eagen v. Call, 34 Pa. St. 236, it was held that where the buyer has had opportunity of examining the thing sold there is no implied warranty by the seller against latent defects unknown alike to himself and to the purchaser. The doctrine of implied warranty appears to be founded on an actual or presumed knowledge by the vendor, as manufacturer, grower, or producer, of the qualities and fitness of the thing sold for...