deceit may, indeed, be maintained in such cases upon proof of knowledge by the seller,' but no warranty exists. § 1358. Other circumstances raising warranty.Other circumstances may, however, exist upon which a warranty may be founded. Thus, where the contract is executory and the buyer has had no opportunity for inspection, a warranty that the goods are merchantable will arise, and a warranty of merchantability must in many cases certainly be tantamount to a warranty that the goods are fit for food. So tion was for damages to the buyers by being made sick. The court below held that there could be no recovery unless the sellers knew that the meat was not wholesome, and the supreme court affirmed the judgment, saying: “In the case at bar, the defendants were not common dealers in provis ions or market-men. They were farmers selling a portion of the produce of their farms. No representation of the quality of the meat sold was made by them. In making casual sales from a farm of its products, to hold the owner to the duty of ascertaining at his peril the condition of the articles sold, and of impliedly warranting, if sold with the knowledge that they are to be used as food, that they are fit for the purpose, imposes a larger liability than should be placed upon one who may often have no better means of knowledge than the purchaser." The court relied upon Howard v. Emerson, supra, and Burnby v. Bollett, 16 Mees. & Wels. 644. Van Bracklin v. Fonda, 12 Johns. (N. Y.) 468, 7 Am. Dec. 339, was distinguished, as the seller there had knowledge. Hoover v. Peters, 18 Mich. 51, supra, was denied, and French v. Vining, 102 Mass. 132, 3 Am. R. 440, was distinguished. No warranty is implied when the article is sold between dealers as merchandise and not for immediate consumption by the buyer. Hanson v. Hartse (1897), 70 Minn. 282, 73 N. W. R. 163, 68 Am. St. R. 527 (sale by a farmer to a butcher of a fat steer); Ryder v. Neitge, 21 Minn. 70 (venison); Humphreys v. Comline, 8 Blackf. (Ind.) 516 (molasses); Jones v. Murray, 3T. B. Mon. (Ky.) 83 (pork and bacon); Hyland v. Sherman, 2 E. D. Smith (N. Y.), 234 (onions); Goldrich v. Ryan, 3 E. D. Smith, 324 (cattle); Rinchler v. Jeliffe, 9 Daly (N. Y.), 469 (meat); Miller v. Scherder, 2 N. Y. 262 (beef); Moses v. Mead, 1 Denio (N. Y.), 378, 43 Am. Dec. 676 (beef); Hart v. Wright, 17 Wend. (N. Y.) 267 (flour); Wright v. Hart, 18 Wend. 449 (flour); Winsor v. Lombard, 18 Pick (Mass.) 57 (mackerel). 1 Van Bracklin v. Fonda, 12 Johns. (N. Y.) 468, 7 Am. Dec. 339; Moses v. Mead, 1 Denio (N. Y.), 378, 43 Am. Dec. 676; French v. Vining, 102 Mass. 132, 3 Am. R. 440; Divine v. McCormick, 50 Barb. (N. Y.) 116; Burch v. Spencer, 15 Hun (N. Y.), 504; Joplin Water Co. v. Bathe, 41 Mo. App. 285. 2 See ante, § 1340: Copas v. Provision Co., supra, 73 Mich. 541, 41 N. W. R. 690. On a sale by sample of canned lobster, there is an implied warranty where the seller's judgment is relied upon to determine what the goods may be, a warranty that they will be fit for a disclosed purpose, that is, for food, may be implied as in other cases falling under a like reason.1 § 1359. No implied warranty of purity of water furnished by water company. On the other hand, it has been held by the court in Wisconsin, though that court also announced doctrines opposed to the implied warranty in the case of food, that there is no implied warranty of the purity of water supplied for domestic use by a water company. Said the court: "It is not a commodity kept for sale in the strict sense of the term, but is free to every one, in nature's reservoirs, like light and air. It is taken directly or indirectly from a common source of supply. The immediate source, as in this case, is usually selected in advance and fixed by contract, leaving the mere service of a carrier to be performed, of taking the water from such source and distributing it to the consumers. To say that the person or corporation performing that service shall be burdened with an implied warranty of the quality of the thing carried and distributed would be treating the transaction as a sale, strictly so called, and then applying an exception to the doctrine of caveat emptor not supported by good reason, or any authority we are able to find, or any to which our attention has been called. It would burden such public service in a way that would be destructive of private enterprise in that line, and render public enterprise in the same direction so attended with dangers as to discourage a service that has become a necessity in all communities of any considerable size, and which that it is merchantable and fit for food. Leggett v. Young (1888), 29 New Bruns. 675. 1 See ante, § 1344; Beer v. Walker, 46 L. J. C. P. 677, where there was a contract by a wholesale provision dealer to keep a local dealer in another town supplied by rail weekly with rabbits. It was held that there 1178 was an implied warranty that the rabbits so furnished should be fit for food. See also Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. R 372, 16 Am. St. R. 753. 2 Green v. Ashland Water Co. (1898), 101 Wis. 258, 77 N. W. R. 722, 70 Am. St. R. 911, 43 L. R. A. 117. promotes to a high degree the welfare and happiness of individuals in communities great or small. If distributors of water under public franchises be held strictly accountable for the exercise of ordinary care not to place before their customers an unwholesome article under circumstances liable to induce persons, in the exercise of ordinary care, to use it for drinking or other domestic purposes in ignorance of the dangers attending the use, and held liable for deceit in such transactions, and the law be firmly administered along those lines, the safety of individuals, as affected by public water service, will be as well promoted as is consistent with the continuance of such service, whether performed by strictly public or by quasi-public agencies." $1360. There may undoubtedly, however, be cases in which the sale of water for drinking and similar uses would properly be put upon the same ground as the sale of articles of food for consumption by the buyer and would be subject to the same implied warranty. CHAPTER VI. OF PERFORMANCE BY THE PURCHASER. § 1361. In general. 1362. How subjects classified. § 1361. In general.- Having now considered what duties in the way of performance the contract and the law impose upon the seller, it next becomes material to determine what duties in the line of performance are imposed upon the buyer. Certain of these will be found to be mere correlatives of the duties imposed upon the seller; others will be new and original. § 1362. How classified. The duties of the buyer are chiefly two, namely: 1. To accept the goods; and 2. To pay the price. Each of these will be made the subject of a separate chapter. 1180 |