Pemberton v. Dean

• Court: Minnesota Supreme Court
• Writing for the Court: BROWN, J.
• Citation: Pemberton v. Dean, 88 Minn. 60, 92 N.W. 478 (Minn. 1902)
• Decision Date: 12 December 1902
• Docket Number: 13,202 - (170)
• Parties: C. L. PEMBERTON v. WILLIAM B. DEAN and Others

92 N.W. 478

88 Minn. 60

C. L. PEMBERTON v. WILLIAM B. DEAN and Others

Nos. 13,202 - (170)

Supreme Court of Minnesota

December 12, 1902

Action in the district court for Ramsey county to recover $5,000 damages for breach of warranty on the sale of an emery wheel. The case was tried before Otis, J., who dismissed the action upon the close of plaintiff's testimony. From an order denying a motion for a new trial, plaintiff appealed. Affirmed.

SYLLABUS

Warranty of Goods by Maker.

Defendants wholesale and retail dealers in hardware, purchased from the manufacturer thereof an emery wheel, upon which the manufacturer had placed a placard, which it is assumed constituted a warranty as to the speed capacity of the wheel. Defendants placed it in their stock, and sold it to plaintiff in the same condition it was when received from the manufacturer, but without any express representation as to its capacity or otherwise. Held, that defendants, by such sale, did not adopt the warranty of the manufacturer as their own.

Humphrey Barton and John E. Samuelson, for plaintiff.

Stringer & Seymour, for respondents.

The case of Schubert v. J.R. Clark Co., 49 Minn. 331, is decisive of the case at bar. Appellant pleads an express warranty, and there is no other warranty or representation or statement suggested in the evidence than the placard attached to the wheel. Appellant must, therefore, recover upon such express warranty, or none, it being a well-recognized principle of law that an express warranty precludes an implied warranty. Case v. Niles, 90 Wis. 590. The wheel was sold in absolute good faith, with absolutely no knowledge upon respondents' part that any defect existed if, in fact, any defect did exist. Under such conditions, even if the question of implied warranty could be considered, respondents could not be held under any implied warranty, as seems to be claimed by appellant in his brief. McKinnon v. Alpena, 102 Mich. 221.

There is no implied warranty as to a latent defect in the sale of chattels where the purchaser has the same opportunity of discovering such latent defect as the vendor, even where the seller is the manufacturer. White v. Stelloh, 74 Wis. 435; Eagan v. Call, 34 Pa. St. 236; Brantley v. Thomas, 22 Tex. 270; Stevens v. Smith, 21 Vt. 90; Gentilli v. Starace, 133 N.Y. 140; Livingston v. Stevenson, 163 Pa. St. 262; Doane v. Dunham, 79 Ill. 131; Armstrong v. Bufford, 51 Ala. 410. Implied warranty never arises except where the article purchased is known to the dealer to be intended for a specific and particular purpose, and where the buyer trusts to the judgment or skill of the dealer. Torkelson v. Jorgenson, 28 Minn. 383; Morris v. Bradley F. Co., 64 F. 56; Milwaukee v. Duncan, 87 Wis. 120. Where no fraud is charged, nor existed, and the buyer was allowed his time to exercise his judgment and to approve of the subject of the transaction of sale, the acceptance and retention of the goods concluded him, and there was neither warranty nor agreement by the seller which survived the transaction. Gentilli v. Starace, supra; Sprague v. Blake, 20 Wend. 61.

When the vendor is not the manufacturer, and the purchaser knows this fact, the former is not responsible for latent defects in the absence of proof of an express warranty or of fraud and deceit upon the part of the seller. Otts v. Alderson, 10 Smedes & M. 476; American v. Brady, 4 A.D. 95.

OPINION

BROWN, J.

Action to recover damages for the breach of a warranty alleged to have been given on the sale by defendants to plaintiff of a certain emery wheel. The court below dismissed the action at the trial, and plaintiff appealed from an order denying a new trial.

The facts are as follows: At the time stated in the complaint, and for a number of years prior thereto, plaintiff was, and had been, engaged in the business of blacksmithing in and about which business it was necessary to make use of an emery wheel for the purpose of sharpening tools. On October 1, 1901, he purchased of defendants such a wheel, and removed it to his place of business, and there made use of it. About October 30 of the same year, when engaged in operating the wheel in sharpening tools, the same broke, and a piece therefrom struck plaintiff, and severely injured his person. The complaint alleges that defendants represented and warranted, at the time of the sale of the wheel, that the same was well made, of good material, and capable of making eighteen hundred revolutions per minute; and that plaintiff relied upon such representations and warranty in making the purchase. This action was brought for damages, on the theory that the injury to plaintiff was the direct result of a defect in the wheel, and that de...