Rhynas v. Keck
| Decision Date | 19 February 1917 |
| Docket Number | 30434 |
| Citation | 161 N.W. 486,179 Iowa 422 |
| Parties | J. W. RHYNAS, Appellant, v. J. H. KECK, Appellee |
| Court | Iowa Supreme Court |
Appeal from Van Buren District Court.--D. M. ANDERSON, Judge.
THE petition declares that damages are due because, upon the matters alleged, defendant should be charged with and to have breached an implied warranty that hogs sold by him were fit for the use he knew plaintiff would put them to. From sustaining a demurrer to this petition, plaintiff appeals.
Affirmed.
Starr & Jordan, for appellant.
Work & Irish, for appellee.
I.
The second count of a second amendment to petition to which demurrer was sustained discloses this:
On the 26th of September, 1913, defendant contracted with plaintiff to sell and deliver to plaintiff, at Stockport, 28 head of hogs, to average about 120 pounds. The price was agreed to and the hogs were to be weighed, paid for and delivered. Plaintiff did not see the hogs, and had no opportunity to see and examine same before delivery. At the time of the delivery, he had no opportunity to examine to ascertain if the hogs were diseased, and when they were weighed and turned into the stock pens, there was nothing about their appearance to indicate, "on the slight examination that was or could be made of them at that time," that they were diseased.
There are allegations, in effect, that defendant knew that plaintiff was buying the hogs for human consumption, and to be shipped to a named packing house at Ottumwa, Iowa, there to be slaughtered and prepared for meat for such consumption.
It is true that, in the first count of the first amended and substituted petition, there is an allegation that plaintiff was not aware the hogs were infected with the germs of hog cholera. But we do not find such an allegation in any Count 2, including the original one to which another demurrer was sustained, a ruling not complained of on this appeal.
There are allegations, in the nature of legal conclusions, that defendant, by selling the hogs with knowledge of what plaintiff intended to do with them, impliedly warranted the hogs to be reasonably fit for the purpose for which he knew plaintiff was buying them; and that there was a breach of warranty at the time of the sale to plaintiff, in that the hogs were not reasonably fit for such purpose, on account of having a contagious disease; all to his damage, by being compelled to sell the same for less than he would have obtained had they been free from such disease.
It may be said now, for whatever bearing it has on the ultimate decision, that, on the trial upon Count 1, the jury found specially that defendant did not know, when he sold the hogs, that they were infected with a contagious disease.
The demurrer asserts: (1) There was no implied warranty against any disease in hogs, much less one against latent disease; (2) there is no allegation that defendant had knowledge of any disease; (3) there is no allegation that the contract of the sale was an executory contract. This demurrer was sustained; hence this appeal.
In argument, we are told that the error complained of is holding that there was no implied warranty of the condition of the hogs that they were free from disease and fit for the purposes for which defendant knew plaintiff was buying them; that the sole question presented by the appeal is whether, in the absence of inspection on part of the buyer, there was an implied warranty that the hogs were free from latent defects that would render them unfit for the purpose for which defendant knew plaintiff was buying them.
II. It is urged that, if we hold here was no implied warranty, it must be on the theory that acceptance and payment operated to waive an implied warranty. And it is rightly claimed that Babcock v. Trice, 18 Ill. 420, Checkrower v. Bradley, 105 Iowa 537, at 547, 75 N.W. 369, hold that acceptance and delivery do not constitute such waiver. Our own investigation has found cases in Georgia, Maine, Massachusetts, Missouri, North Carolina and elsewhere, to the like effect. We may add that such is the holding also of Kohl v. Lindley, 39 Ill. 195. Using these before it is found that there was an implied warranty is a begging of the question. That certain things do or do not operate to waive a warranty does not prove that one existed.
III. It is part of the rule, rather than an exception to it, that there is no implied warranty of quality if the goods may be inspected by the buyer, and the demurrer admits the hogs did not appear to be diseased "on the slight examination that was or could be made." The cases do attach importance to lack of opportunity to inspect--upon which, and upon the inadequacy of such inspection as was or could be made, appellant argues that, even under the general rule, an implied warranty of fitness and merchantability arises. If that be sound, the rule that there is ordinarily no such warranty as to latent defects would be operative only under conditions which never exist. The rule is, in effect, that there is no implied warranty of soundness where unsoundness is hidden, is unknown to the seller, and difficult to discover. The rule exists because the discovery is difficult. Appellant's construction of it is that it does not operate when discovery is difficult. We think the element of opportunity to inspect amounts to just this: If there be opportunity to make an inspection which, if made, will discover defects, and none is made, the buyer may not complain. If the seller prevents, he warrants against what was not discovered. If inspection would have been ineffective, though made, lack of opportunity or failure to make it is not material. Hyatt v. Boyle, (Md.) 25 Am. Dec. 276, is illuminative. It holds that failure to inspect is material only where inspection is not made, say, when a sale is made before the goods have arrived.
Related is the argument that, if a warranty be not implied in the case at bar, the buyer will or may suffer great hardship. That is to say, a general buyer of live stock can hardly find time or adequate opportunity, even if he had the skill, to make such examination, either at the time of buying or before accepting and paying, as would develop that latent disease was present. It is a ready answer that the owners of stock must sell to someone, and that, if buyers came to an understanding that they would not buy live stock likely to have latent diseases unless the seller gave express warranty, the question we now have would cease to be a possible one. If this be a cogent argument for the appellant, something can be said on the hardship to the seller. When and just before the seller here sold or delivered, no inspection on his part would in reason have developed that latent hog cholera was present; and he has no way of showing whether it was then present or not. He delivered 28 head. The buyer took control and shipped them, and it transpired that, out of the 28, but 21 developed the disease.
We may take judicial notice that, in many cases, hogs bought from one seller would, for the purpose of being shipped to the packing house, be by the buyer put into cars with those purchased of other sellers. And that only a part of those sold here developed the disease tends to indicate either the remarkable theory that only 21 out of 28 hogs kept together on one farm had the disease latently, or that the hogs sold were separated, and part shipped with others that were in condition to communicate the disease. There is no way appellee can demonstrate which is the fact, if, indeed, there is any way of doing so. And the theory of the appellant would put the seller in the position of turning over property apparently sound, having the buyer handle it in his own way, innocently mix it with diseased animals, and then assert, when it later develops that part of the hogs sold have cholera, that the seller must pay him his loss.
It is said that, as this was latent disease, appellant could not discover it by ordinary inspection. The same difficulty confronts the seller. And it has been held as to flour, concerning which it could not be shown by an inspection that it was of grown wheat, the fact that it is difficult to ascertain this upon inspection does not make it result that there is a warranty by implication (Hart v. Wright, 17 Wend. [N.Y.] 267); and somewhat bearing upon the same thought is Salisbury v. Stainer, 19 Wend. (N.Y.) 159. And this part of the controversy is, in a sense, within the rule that no warranty goes beyond the time of delivery, and no implied warranty is that the perishable property sold will continue sound for a definite period, or any period after delivery. See Bull v. Robison, 10 Exch. (1854) 342; Cushman v. Holyoke, 34 Me. 289; Mann v. Everston, 32 Ind. 355; Leopold v. Van Kirk, 27 Wis. 152.
IV. Cases too numerous to cite declare this to be the rule applicable to this case: If goods which are the subject of sale are in existence and may be inspected by the buyer, and there is no fraud on part of the seller, the maxim "caveat emptor" applies, even though the defects are latent and not discoverable upon examination. We say, in McClung v. Kelley, 21 Iowa 508, that, as to a completed contract:
"It is a general rule that, unless there has been a warranty, false representation or fraudulent concealment, the purchaser must take the property regardless of its defects, and the seller is without liability therefor."
The appellant must prevail, if at all, by invoking some exception to the rule. We have been led into an examination, with result that we find that some things that were once exceptions are not such now, and that others are exceptions that have no place in this...
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