Wiedeman v. Keller

Decision Date22 December 1897
Citation49 N.E. 210,171 Ill. 93
CourtIllinois Supreme Court


Appeal from appellate court, First district.

Action by Anna Wiedeman against Henry Keller to recover on an alleged warranty in the sale of certain meats. A judgment for defendant was affirmed by the appellate court (58 Ill. App. 382), and plaintiff appeals. Reversed.

Rufus King, for appellant.

Prussing & McCulloch and Catharine Waugh McCulloch, for appellee.

This was an action brought by Anna Wiedeman against Henry Keller to recover on an alleged warranty in the sale of certain meats for domestic use. It is averred in the declaration that the defendant was engaged in the business of buying, and selling at retail, provisions, meat, and other food, and then and there kept a market for the sale to the inhabitants of said city of meats and other articles of food for domestic use, and for immediate consumption; and on said 11th day of July, 1886, at the said defendant's said market, plaintiff purchased of the defendant, and paid him for the same, certain meats, which plaintiff then and there purchased for immediate consumption by herself and her family, which purpose was then known to the defendant; and defendant assured plaintiff, and warranted, that the said meats so sold to the plaintiff by defendant were good, sound, healthy, wholesome meats, free from every defect, and healthy and fit to be eaten; and plaintiff, relying upon the assurance and warranty of the defendant, cooked the said meats, and the same were thereupon on said day eaten by the plaintiff and her family, and by reason of eating the same the plaintiff and her said family were made ill, disordered, and diseased, etc. The court refused the following instructions asked by plaintiff: ‘No. 2. The law makes the seller of articles of food sold for immediate consumption a warrantor that the articles he sells for immediate consumption are wholesome, and free from all defects that may injure the health of the purchaser; and if the defendant sold to the plaintiff meat for immediate consumption that was diseased, or infected with anything unwholesome, and which rendered it unwholesome as food, and which could not be perceived by the plaintiff, and that by reason of such defect the plaintiff, from eating such food, was made ill, then the defendant is bound by law to compensate the plaintiff for all of the direct and necessary damage she suffered by reason of eating the said food.’ The court gave the following instruction asked by the defendant: ‘No. 15. The court instructs the jury that the defendant is required by law to use ordinary and reasonable care in the selection and sale of meat, and must honestly disclose any defects in the meat he sells, so far as he knows any, or could by the exercise of ordinary and reasonable care discover them; but he is not required to know or warrant against defects which are wholly secret in their nature, and not discoverable by such reasonable and ordinary care.’

CRAIG, J. (after stating the facts).

The question of law raised by the decision of the court in giving, refusing, and modifying instructions involved in this case is whether a retail dealer in meats and provisions for consumption is to be regarded as a warrantor that the goods he sells for immediate consumption are sound, wholesome, and free from all defects that may injure the health of the purchaser, or is the vendor relieved of responsibility where he has no knowledge of the defective character of the articles sold, and has use reasonable and ordinary care to guard against the selection or purchase of defective or unwholesome articles for sale to his customers? The question is one not free from difficulty, and one upon which text writers and courts are not harmonious. In 3 Bl. Comm. 165, that distinguished author lays down the following proposition: ‘That, in contracts for provisions, it is always implied that they are wholesome; and, if they are not, case lies, to recover damages for the deceit.’ In Chit. Cont. 452, the author, in the discussion of the question, among other things, says: ‘It seems that, in contracts for provisions, there is always an implied warranty that they are wholesome.’ Story, Sales (4th Ed.) § 373, speaking of warranty on the sale of personal property, says: ‘Under this head, also, is included the implied warranty which is raised in the sale of provisions, where they are sold for immediate domestic use by dealers and common traders in provisions,-that they are sound and wholesome,-on the ground that such a warranty is necessary for the preservation of health and life.’ In Long, Sales, c. 4, ‘Of Warrantors,’ the author lays down substantially the same doctrine. 2 Benj. Sales, 111, § 1007, after reviewing a number of authorities on the question, says: ‘The notion of an implied warranty in such cases appears to be an untenable inference from the old statutes, which make the sale of unwholesome food punishable.’ But in section 1012 he also says: ‘In America, upon the question of implied warranty on the sale of provisions, it has been laid down in the state of New York that, to render a vendor liable, they must be sold for domestic use, or immediate consumption.’ The ground given for the implied warranty is that it is a principle not only statutory, but necessary to the preservation of health and life. The warranty will only be implied where the vendor is a dealer or trader in provisions, who sells directly to the consumer for domestic use. In other respects the law as to implied warranty of quality seems to be the same in America as in England. In the discussion of the question in 2 Schouler, Pers. Prop. 348, it...

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