The Nixa Canning Company v. The Lehmann-Higginson Grocer Company

• Decision Date: 07 January 1905
• Docket Number: 13,908
• Parties: THE NIXA CANNING COMPANY v. THE LEHMANN-HIGGINSON GROCER COMPANY
• Court: Kansas Supreme Court

79 P. 141

70 Kan. 664

THE NIXA CANNING COMPANY v. THE LEHMANN-HIGGINSON GROCER COMPANY

No. 13,908

Supreme Court of Kansas

January 7, 1905

Decided January, 1905.

Error from Sedgwick district court; DAVID M. DALE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. SALE OF PERSONAL PROPERTY--Warranty. Where goods are sold by sample and the seller is also the manufacturer, there is an implied warranty on his part that they are free from any latent defects that could not be discovered upon ordinary examination.

2. SALE OF PERSONAL PROPERTY--Manufacturer. One engaged in putting up apples in cans for sale is a manufacturer, within the meaning of the rule stated.

3. SALE OF PERSONAL PROPERTY--Worthless Canned Fruit--Liable on Implied Warranty. Where one sells to a merchant canned apples of his own packing, the sale being made by sample, and by reason of a defect due to the method employed in their preparation, which could not be discovered upon an inspection of the opened sample cans, the goods sold become worthless before they can be resold in the ordinary course of trade, the seller is liable to the buyer for a breach of an implied warranty against such defect.

S. B. Amidon, J. L. Dyer, and Gideon & Gideon, for plaintiff in error.

O. A. Keach, for defendant in error.

MASON J. All the Justices concurring.

OPINION

MASON, J.

The Lehmann-Higginson Grocer Company sued the Nixa Canning Company on a claim that a quantity of canned apples purchased by the former from the latter under an implied warranty of merchantability had proved worthless. Plaintiff recovered a judgment which defendant seeks by this proceeding to reverse. The trial court made detailed findings of fact, which generally tended to support the plaintiff's claim, and held the defendant liable for a breach of warranty.

The principal question presented on review is whether, under the findings, the law implied a warranty that the goods sold were suitable for food. So far as necessary to the determination of this question, the facts found were as follows: The apples were put up in cans by the defendant for the purpose of selling them to merchants, and were bought by plaintiff, as defendant knew, to be resold to its customers. The sale was made by sample, the sample cans being opened and examined by the plaintiffs before the purchase. The samples were apparently sound and fit, and were not in fact subject to any defect that could have been discovered by any reasonable examination. The goods sold were in all respects like the sample, but by reason of the character of certain substances that had been employed in the canning process they spoiled and became unmerchantable within a few months, and before they could have been disposed of in the usual course of trade.

Plaintiff in error contends that where goods are sold by sample there is, in effect, an express warranty of conformity to the sample, and no other warranty as to quality can be implied. This may be granted to be the ordinary rule as to transactions between merchants, but where the seller is also the manufacturer, there is an implied warranty that the sample and goods sold are alike free from latent defects not discoverable upon ordinary examination. (15 A. & E Encycl. of L., 2d ed., 1227; 2 Mech. Sales, §§ 1329, 1331, 1346; Price v. Kohn, 99 Ill.App. 115.) This exception to the general rule is not denied; but it is argued that the defendant was not a manufacturer; that the business of putting up apples in cans for sale is not one of manufacturing anything. There is a lack of harmony in the judicial decisions as to just what constitutes "manufacturing." This is abundantly demonstrated by the note to Williams v. Warren, 64 L.R.A. 33, in which the cases are collected and reviewed. But it is wholly unnecessary to consider whether the term "manufacturing" could be aptly applied to the business of defendant in any other connection than that here presented. The...