Warren v. Buck

• Decision Date: 05 December 1898
• Citation: 71 Vt. 44,42 A. 979
• Parties: WARREN v. BUCK.
• Court: Vermont Supreme Court

42 A. 979

71 Vt. 44

WARREN

v. BUCK.

Supreme Court of Vermont. Lamoille.

Dec. 5, 1898.

Assumpsit by J. H. Warren against Murray Buck. There was a judgment for defendant, and plaintiff excepted. Affirmed.

The defendant, a farmer, sold the plaintiff, a butcher, seven hogs, on inspection, at the full market price per pound, live weight, knowing that they were to be killed and cut up for sale in the usual course of the plaintiff's business, as they afterwards were. Two of the hogs had tuberculosis, a latent defect which rendered them unfit for food and dangerous to the health of the consumer.

G. M. Powers, for plaintiff.

R. W. Hulburd, for defendant.

TYLER, J. The general rule of the common law is, as stated in Bryant v. Pember, 45 Vt. 487, that upon the sale of goods and chattels, if there is no express warranty of their quality, and no fraud, the maxim, "Caveat emptor," applies, and no warranty is implied by law; and the exception in respect to provisions does not extend beyond the case of a dealer who sells them directly to the consumer for domestic use. Benj. Sales (Ed. 1888) 639; 2 Kent, Comm. (13th Ed.) 478, and notes. In Bragg v. Morrill, 49 Vt. 47, the court, referring to this subject, said: "Generally, in all sales of provisions, there is a like implied warranty that they are wholesome. 1 Pars. Cont. 470, and notes. But this doctrine has exceptions, and is held applicable only when the vendor is the producer, or when he exposes them for sale for domestic use as a provision dealer." American and English cases are cited in support of the rule. By the term "producer" the court evidently had reference to articles manufactured by the vendor. The term may also be applied to certain products of the farm, as was held in Beals v. Olmstead, 24 Vt. 114, where the plaintiff bought a quantity of hay of the defendant for a particular use, and the defendant knew the plaintiff would not buy an inferior article for that use. Held, that a warranty was implied. But in that case the defendant professed, and was supposed to have, knowledge in respect to the quality of the commodity sold. In Pease v. Sabin, 38 Vt. 432, the contract was for a sale of a quantity of cheese manufactured by the seller, and which the purchaser had no opportunity to inspect. There a warranty was implied against the latent defect, afterwards discovered, upon the ground that the defect arose from the defendant's want of care and skill in the manufacture of the cheese. The case of Best v. Flint, 58 Vt. 543, 5 Atl. 192, is distinguishable from the present one. There both the plaintiff and the defendants were engaged in the business of buying hogs for market, and the defendants engaged the plaintiff to furnish nine hogs to fill their car for shipment, they to pay the highest ruling price for prime, marketable hogs. The plaintiff knew the quality required, and that the defendants were paying the price for that quality, and that the defendants relied upon his judgment to select and furnish hogs of the required quality. It was not a sale of hogs which the plaintiff had on hand, but of hogs to be selected and supplied by him without inspection by the defendants. It was held that there was an implied warranty that the hogs were suitable for the use intended. The contract was executory, and there was no undertaking by the plaintiff that they were of any...