Morse v. Union Stock Yard Co.

Decision Date17 November 1891
Citation28 P. 2,21 Or. 289
PartiesMORSE v. UNION STOCK-YARD CO.
CourtOregon Supreme Court

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

Action by Bert Morse against the Union Stock-Yard Company for breach of warranty in the sale of cattle. Judgment for plaintiff. Defendant appeals. Affirmed.

(Syllabus by the Court.)

Where goods or chattels are sold by description, there is an implied condition that the goods or chattels delivered shall correspond to that description. By some authorities this is treated as a condition precedent; by others, as an implied warranty.

When the sale becomes in part executed or consummated, the same facts which before constituted conditions precedent then become warranties.

In the sales of goods or chattels by description, when the buyer has not inspected the goods, there is, in addition to the condition precedent that the goods or chattels shall answer the description, an implied warranty that they shall be fit for the particular purpose to which they are to be applied when that purpose is known to the vendor.

When a dealer undertakes to supply goods or chattels in which he deals that are to be applied to a particular purpose, and the buyer necessarily trusts to the judgment of the dealer, there is an implied warranty that they shall be reasonably fit for the purpose for which they are intended.

Gilbert & Snow, for appellant.

Glenn O. Holman, for respondent.

LORD J.

This was an action brought by the plaintiff against the defendant to recover damages for a breach of an implied warranty in the sale of a lot of cattle. The contract consisted of an order contained in a letter directing the defendant to "get two car-loads of good beef cattle," and to "consign them to Centralia," and "to draw on Wooding & Co. for the amount." The cattle not being of the quality ordered, or fit for the purpose intended, the defendant was notified upon their delivery, but, refusing to take any action in the premises, this action was brought, which resulted in a verdict and judgment for the plaintiff. The contention for the defendant is that, upon the facts of the transaction, there was no implied warranty that the cattle shipped upon the order were good beef cattle, and fit for the purpose intended, as asserted by the charge of the court. There can be no doubt but that the general rule of law is that, upon the sale of any article of merchandise, the seller does not become responsible for the quality of the article sold, unless he expressly warranted the quality, or made some false and fraudulent representation in regard to it. "No principle of the common law," said Mr. Justice DAVIS, [1] "has been better established or more often affirmed, both in this country and in England than that the sales of personal property, in the absence of an express warranty, where the buyer has an opportunity to inspect the goods, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the article he sells, the maxim caveat emptor applies." This maxim, under the exceptions and limitations which the law has fastened upon it, furnishes a just and equitable rule for the transaction of business. It proceeds upon the hypothesis that, where the purchaser has had an opportunity of inspecting the goods or chattels, and their defects could have been discovered by him, he is bound to exercise his judgment, and take all reasonable precautions to protect his interests. In cases of this sort, where the purchaser has had the opportunity of inspecting and selecting the goods or chattels, the presumption is that he relies upon his own judgment, and takes upon himself the risk of their answering his purpose; otherwise he would have secured himself against loss by requiring an express warranty of them. But when the purchaser has not had an equal opportunity of inspecting such goods or chattels with the seller, or, under the circumstances, he has been compelled to rely upon his judgment, the maxim can have no application, and an implied warranty of their quality, or of their being marketable, or of their fitness for the purpose intended, when such purpose is known to the seller, is raised or recognized in his behalf. It is where the facts fall within the principle of exceptions of this sort that the reason of the maxim fails, and an implied warranty of the goods sold is recognized in favor of the buyer. When, then, the question is whether or not, in a given case, an implied warranty exists, it can only be determined by a full consideration of all the facts.

The evidence shows that the plaintiff was a butcher, and that he used beef cattle for retail in his market; that he gave an order to the defendant for two carloads of "good beef cattle," who accepted it, and selected and shipped the cattle to the place designated; that the plaintiff paid for the cattle before delivery by draft drawn on him by the defendant; that the plaintiff was not present to inspect the cattle, nor had any opportunity to examine them until their arrival; that the defendant knew what the business of plaintiff was, and the purpose for which he wanted good beef cattle; that the cattle were not good beef cattle, or beef cattle, but only stock cattle, and not fit for the purpose intended; that as soon as plaintiff saw the cattle he notified the defendant of their not being the quality and kind of cattle he ordered, and unfit for his business purposes, but at the same time made a proposition as to part of them, which the defendant refused to accept, claiming that the cattle shipped fully complied with the order.

The relation which the defendant as seller, and the plaintiff as buyer, bear to these acts, when analyzed, is that the defendant undertook to supply cattle of the description ordered, knowing the particular purpose for which they were to be used, with full opportunity of inspecting them, and discovering their defects, or of ascertaining that they were not beef cattle, and fit for the particular purpose for which they were ordered; that the plaintiff was not present to inspect them, nor did he know, or have any opportunity of knowing, their defects, or ascertaining that they were not beef cattle, and not fit for the purpose for which they were intended, until after the cattle were delivered and paid for. In applying the law to this state of facts, the trial court asserted, in effect, by its charge, that there was an implied warranty on the part of the defendant that the cattle should be of the quality or answer the description ordered, and when so ordered, for a particular purpose, known to the defendant, that it, by undertaking to furnish the cattle impliedly undertook that they should be reasonably fit for the purpose for which they were intended. The principle is stated that, where goods are sold by description or particular designation, there is always an implied condition that the article or goods delivered shall correspond strictly with that description or designation. This is regarded by some of the authorities, especially in the United States, as an implied warranty that the article sold is of that description, and by others as a condition precedent. But the facts in this case obviate the consideration of that aspect of the question. The defendant had received the full consideration for the cattle, and consequently the contract had become in part executed when the cattle were delivered, and repudiation by the plaintiff of the contract, for non-compliance with its terms in not furnishing good beef cattle, had become impossible. The language of DEPUE, J., in Wolcott v. Mount, 36 N.J.Law, 262, goes to this point: "The right to repudiate the purchase," he says, "for non-conformity of the article delivered to the description under which it was sold, is universally conceded. That right is founded on the engagement of the vendor, by such description, that the article delivered shall correspond with the description. The obligation rests upon the contract. Substantially the description is warranted. It will comport with sound legal principles to treat such engagements as conditions in order to afford the purchaser a more enlarged remedy by rescission than he would have on a simple warranty; but when his situation has been changed, and the remedy by repudiation has become impossible, no reason supported by principle can be adduced why he should not have upon his contract such redress as is practical under the circumstances. In that situation of affairs, the only available means of redress is a legal action for damages. Whether the action shall be technically considered an action on a warranty or an action for the non-performance of a contract is entirely immaterial." Reversing the order, he further says: "But in a number of instances it has been held that statements descriptive of the subject-matter, if intended as a substantive part of the contract, will be regarded in the first instance as conditions, on the failure of which the other party may repudiate in toto, by a refusal to accept or return the article, if that be practicable; or if a part of the consideration has been received, and rescission has become impossible, such representations change their character as conditions, and become warranties, for the breach of which an action will lie to recover damages." As has been suggested, strictly speaking, the conditions do not become warranties, but, the sale having become consummated, the same facts which before constituted...

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