Swank v. Battaglia

• Decision Date: 01 May 1917
• Citation: 84 Or. 159,164 P. 705
• Parties: SWANK v. BATTAGLIA.
• Court: Oregon Supreme Court

164 P. 705

84 Or. 159

SWANK v. BATTAGLIA.

Supreme Court of Oregon

May 1, 1917

In Banc.

Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.

Action by W. I. Swank against A. Battaglia. Judgment for plaintiff in part, and plaintiff appeals. Reversed, and judgment entered.

Charles M. Hodges, of Portland, for appellant. Johnson &amp Mathews, of Portland, for respondent.

This is an action to recover the purchase price of 100 sacks of potatoes sold to the defendant at the agreed price of $1.13 a sack. The answer admits the sale and delivery of the goods, but alleges that both the plaintiff and defendant are dealers engaged in selling fruit and vegetables; that the potatoes were sold to defendant for the purpose of resale as food to the citizens of Portland; that the potatoes were infected with dry rot and unfit for food, a fact of which defendant was ignorant when he purchased them, and that they were inspected by the food inspector of the city of Portland and found to be unfit for human food and condemned; that the portion which defendant had sold was returned to him and he was compelled to make good the purchase price to his customers; and that the quantity remaining on hand was sold for $18.50 for hog feed. The case being put at issue by appropriate denials, the court made the following findings of fact:

"(1) That on or about the 23d day of May, 1916, at Portland, Multnomah county, Or., the plaintiff sold and delivered to defendant, at his special instance and request 100 sacks of potatoes, at the agreed price of $1.13 per sack for the purpose of use as human food; (2) that the contract sale price of 100 sacks of potatoes based on the agreed price of $1.13 per sack amounted in the aggregate to $113, no part of which has been paid; (3) that said potatoes so sold and delivered were affected by the disease known as 'fusarium wilt' or dry rot, and by reason thereof were unfit for human food; (4) that said defect was not apparent upon casual inspection, but became apparent only upon cutting or cooking said potatoes, and was not discovered until after said sale and delivery; (5) that about five days after said sale and delivery said potatoes were condemned by the market inspector of the city of Portland, Or., and by the inspector of the state horticultural bureau of the state of Oregon, as being affected with fusarium wilt or dry rot and unfit for human food, notice thereof being given by said officers to both plaintiff and defendant; (6) that said defendant prior to such condemnation had sold 30 sacks of said potatoes for purposes of human food; that all but a few sacks of said potatoes so sold were returned to defendant by his customers as unfit for human food, and the purchase price refunded by defendant to such customers; (7) that the condemned potatoes and the potatoes returned to defendant were, by permission of said inspectors, sold as hog feed that the total sum realized by defendant from such sale and from those not returned to him was $31."

As a conclusion of law the court found that there was an implied warranty that the potatoes were fit for human food and that plaintiff was entitled to judgment for only $31, the price received for potatoes sold to customers and not returned plus the amount received for those sold for hog feed. There was a judgment for plaintiff upon these findings for the sum of $31, from which he appeals.

McBRIDE, C.J. (after stating the facts as above).

There is but one question in this case, namely whether there is any implied warranty of the quality of the goods sold under the circumstances disclosed here; no actual warranty being pleaded or proved. So far as the quality of goods purchased is concerned, the rule of caveat emptor usually applies, unless there is deceit or misrepresentation, which is not the case here. The external appearance of the potatoes indicated soundness and good quality. It was only when they were sliced for cooking that the defect became visible, and there is nothing in the evidence indicating that plaintiff knew of their unsoundness. The defendant testified: "They looked pretty good; they looked pretty nice from looking at them." So the case simmers down to this: The plaintiff sold the potatoes to defendant and defendant purchased them, each supposing them to be sound and having reason to believe they were so. There is authority for the holding that, where provisions are sold to a customer at retail for immediate use, there is an implied warranty that they are reasonably fit for food. Benjamin on Sales (7th Ed.) p. 661, and cases there cited. But in sales to dealers the rule is different. In such instances the rule of caveat emptor is applied. Howard v. Emerson, 110 Mass. 320, 14 Am. Rep. 608; Wiedeman v. Keller, 171 Ill. 93, 49 N.E. 210; Giroux v. Stedman, 145 Mass. 439, 14 N.E. 538, 1 Am. St. Rep. 472; Ryder v. Neitge, 21 Minn. 70; Moses v. Mead, 1 Denio (N. Y.) 378, 43 Am. Dec. 676; Warren v. Buck, 71 Vt. 44, 42 A. 979, 76 Am. St. Rep. 754; Hanson v. Hartse, 70 Minn. 282, 73 N.W. 163, 68 Am. St. Rep. 527; Humphreys v. Comline, 8 Blackf. (Ind.) 516. The case of Howard v. Emerson, supra, is typical of all those above cited. In that case Howard, a farmer, had sold to Emerson, a butcher and dealer in provisions, a cow which Emerson purchased for the purpose of butchering and retailing to his customers. The flesh was found unfit for food, and the purchaser refused to pay for her, and suit was brought to recover the purchase price. The court said:

"The general rule of the common law is that, upon a sale of goods, if there is no express warranty of the quality of the goods sold, and no fraud, the maxim caveat emptor applies, and no warranty is implied by law. Winsor v Lombard, 18 Pick. [ Mass.] 57; Mixer v. Coburn, 11 Metc. (Mass.) 559 ; French v. Vining, 102 Mass.

132 . The defendants contend that when articles of food are sold for immediate domestic use there is an implied warranty or representation that they are sound and fit for food, and that the case at bar falls within this exception to the general rule. Van Bracklin v. Fonda, 12 Johns. [ N. Y.] 468 . But we think that this exception, if established, does not extend beyond the case of a dealer who sells provisions directly to the consumer for domestic use. In such cases it may be reasonable to infer a tacit understanding, which enters into the contract, that the provisions are sound. The relation of the buyer to the seller and the circumstances of the sale may raise the presumption that the seller impliedly represents them to be sound. But the same reasons are not applicable to the case of one dealer selling to another dealer; and we think the rule is settled that in the sale of provisions, in the course of general commercial transactions, the maxim caveat emptor applies, and there is no implied warranty or representation of quality or fitness. Emerson v. Brigham, 10 Mass. 197 ; Winsor v. Lombard, 18 Pick. [ Mass.] 57; Hart v. Wright, 17 Wend. [ N. Y.] 267; Wright v. Hart, 18 Wend. [ N. Y.] 449; Moses v. Mead. 1 Denio [N. Y.] 378 ; Burnby v. Bollett, 16 M. & W.

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