Meagley v. Hoyt

• Decision Date: 24 February 1891
• Citation: 26 N.E. 719,125 N.Y. 771
• Parties: MEAGLEY v. HOYT.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 771

26 N.E. 719

MEAGLEY

v.HOYT.

Court of Appeals of New York.

Feb. 24, 1891.

Appeal from supreme court, general term, fourth department.

Homer Weston, for appellant.

Mr. Clark, for respondent.

RUGER, C. J.

This was an action to recover damages for a breach of warranty alleged to have been made on sales of tallow by the defendants to plaintiff's testator. No evidence was given by the defendants on the trial, and the questions arise upon a motion to nonsuit, and exceptions taken by defendants to the charge of the judge upon uncontroverted evidence. It appears therefrom that the plaintiff's testator was a manufacturer of soap, residing at Binghampton, and in prosecution of his business consumed large quantities of tallow; that the defendants were manufacturers of that article, doing business at Syracuse. The alleged breach consisted in the mixture of silica, or said, with the tallow; and, although it did not impair the quality of the tallow, it substituted to a certain extent another substance in the place of that intended to be purchased. The defendants were a newly-established firm, and between November 16, 1883, and March 13, 1884, a period of about four months, sold the plaintiff about 230 barrels, containing about 67,000 pounds, of tallow, which were duly shipped to the plaintiff, and were received and accepted by him in due course of transportation. About 30 different orders were given at irregular intervals during this period, and they were all filled by the delivery of tallow, which was received, accepted, and made use of by the plaintiff in his business, without notice to the defendants of any defects therein, and without any offer to return the same, or any part thereof. The terms of the sale were cash on delivery, and the tallow was all paid for except the last three shipments of March 11th, 12th, and 13th, amounting to 20 barrels, or 5,575 pounds, and valued at $404.18. On the receipt of the first five barrels ordered, the plaintiff inspected the tallow, and found it to be in every way satisfactory. From this time to March 12th thereafter the plaintiff received and accepted 122 barrels without inspecting or testing the same, and used their contents in his business, without any knowledge or suspicion of defects or impurities. On March 12th the plaintiff had on hand 83 barrels of defendant's tallow, and subsequently received 20 more, which were used by him without inspection or objection, except as hereinafter stated, and without knowledge as to impurities therein, if any. The manner in which the alleged adulteration is claimed to have been discovered was through the character of the sediment found in the kettles in which the soap was manufactured. The soap was made in two kettles of the diameter of about 8 feet each and a depth of 8 1/2 feet, with a capacity of about 20,000 pounds each. These kettles are first partially filled with lye and soap, into which tallow is shoveled until they are filled. The substance is then boiled until soap is produced, which, rising to the top, is dipped out of the kettles, until a sediment is reached. This sediment is then left on the bottom of the kettle, and is, and in the course of plaintiff's business was, usually cleaned out every three or four months. The kettles had been cleaned out in February, long after the use of defendants' tallow had commenced, and were then found to be free from any unusual sediment or impurities. In March, however, the plaintiff's servants discovered a difficulty in getting sufficient heat on the kettles, and were induced to clean them out for the purpose of discovering the cause of the disturbance. On this occasion they discovered more than the usual quantity of sediment, and it was of a different character from that usually found; consisting, as claimed, of sand, or marble dust, to the extent of nearly one-third of the refuse material. The fact that somebody's tallow was being adulterated was thus made clear, but it was still unknown who the vendors of the adulterated tallow were, as the plaintiff had been using, indiscriminately, the tallow of a number of different manufacturers. In order...