or implied warranty, but is a responsibility imposed by statute, (p) that they shall make good any damage caused by their sale of unwholesome food. Emmerton v. Matthews, therefore, when applying the maxim of caveat emptor to the sale of an article of food, even when the vendor is a general dealer, if the buyer has bought on his own judgment, without express warranty, does not seem to be at all in contradiction with the earlier authorities, as explained in Buruby v. Bollett, by Parke, B. [And the correctness of the decision has been since confirmed by the Common Pleas Division. (g) Sale of food 1875. § 1009. An instance of such a statutory responsibility is that imposed upon sellers of food by the 38 and 39 Vict., c. 63 (sale of food and drugs act, 1875), which, by the 6th sec- and drugs act, tion, inflicts a penalty upon any person who sells, to the prejudice of the purchaser, any article of food or any drug which is not of the nature, substance or quality of the article demanded by such purchaser; and, by the 27th section, makes it a misdemeanor to give false warranties in writing or to supply false labels on the sale cf food or drugs. (r)] Implied war marks on packages. ranty from 25 and 26 Vict., c. 88. Sec. 19. § 1010. An implied warranty has been imposed on the vendor in certain sales by the "Merchandise Marks Act, 1862" (25 and 26 Vict., c. 88,) of which the 19th and 20th sections are in the following language:"In every case in which at any time after the thirty-first day of December, one thousand eight hundred and sixty-three, any person shall sell, or contract to sell (whether by writing or not), to any other person any chattel or article with any trade mark thereon, or upon any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing together with which such chattel or article shall be sold or contracted to be sold, the sale or contract to sell shall in every such case be deemed to have been made with a warranty or contract by the vendor to or with the vendee that every trade mark upon such chattel or article, or upon any (p) All the old statutes referred to by Parke, B., and many others of a similar kind, were swept away by the repealing act, 7 and 8 Vict., c. 24. such some of the decisions under the principal act: Barnes v. Chipp, 3 Ex. D. 176; Rook v. Hopley, Id. 209; Francis v. Maas, 3 Q. B. D. 341; Sandys v. Small, Id. 449; (q) See Smith v. Baker, 40 L. T. (N. Hoyle v. Hitchman, 4 Q. B. D. 233; 8.) 261. (r) The statute is amended by the 42 and 43 Vict., c. 30. The following are Webb v. Knight, 26 W. R. 14; Horder v. cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing as aforesaid, was genuine and true, and not forged or counterfeit, and not wrongfully used, unless the contrary shall be expressed in some writing signed by or on behalf of the vendor, and delivered to and accepted by the vendee. Sect. 20. § 1011. "In every case in which at any time after the thirty-first day of December, one thousand eight hundred and sixty-three, any person shall sell or contract to sell (whether by writing or not), to any other person any chattel or article upon which, or upon any cask, bottle, stopper, vessel, case, cover, wrapper, band, reel, ticket, label, or other thing, together with which such chattel or article shall be sold, or contracted to be sold, any description, statement, or other indication of or respecting the number, quantity, measure, or weight of such chattel or article, or the place or country in which such chattel or article shall have been made, manufactured, or produced, the sale or contract to sell shall in every such case be deemed to have been made with a warranty or contract by the vendor to or with the vendee that no such description, statement, or other indication was in any material respect false or untrue, unless the contrary shall be expressed in some writing signed by or on behalf of the vendor, and delivered to and accepted by the vendee." § 1012. [In America, upon the question of implied warranty on the sale of provisions, it has been laid down, in the State of Law in New York, that to render a vendor liable they must be sold for domestic use or immediate consumption. The ground given for this implied warranty is, that it is a "principle not only salutary 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. (s) 44 (8) Van Bracklin v. Fonda, 12 Johns. 468; Divine v. McCormick, 50 Barb. 116. See, however, the limits of the implication laid down by Bronson, C. J., in Moses v. Mead, 1 Den., at p 387; by Shaw, C. J., in a case in the Supreme Court of Massachusetts, Winsor v. Lombard, 35 Mass., at p. 61; and by Morton, J., in Howard v. Emerson, 110 Mass. 321. 44. On a Sale of Provisions to the Consumer, there is an Implied Warranty that they are Wholesome.-In Van Bracklin v. Fonda, 12 Johns. 468, the court said on the authority of Blackstone: "In the sale of provisions for domestic use, the vendor is bound to know that they are sound and wholesome at his peril." This was recognized in Moses v. Mead, 1 Den. 386, and followed in Divine v. McCormick, 50 Barb. 116. In Burch v. Spencer, 15 Hun 504, the court extended the principle to a case where the sale was to a dealer, but it was not needed for the decision, there having been deceit in the In other respects the law as to implied warranty of quality seems to be the same in America as in England. (t)] case. In Hoover v. Peters, 18 Mich. 51, 55, the court held that the warranty was implied though the seller was a wholesale dealer. "The doctrine seems to be that any purchase for domestic consumption is protected." Per Campbell, J. See McNaughton v. Joy, 1 Weekly Notes of Cases (Phila.) 470. Whether this implied warranty applies to food for animals is doubtful. In French v. Vining, 102 Mass. 132, white lead was spilled on a quantity of hay. The owner removed it as well as he could and sold the hay. It poisoned a cow of the buyer, and the seller was held liable on the theory of a warranty of wholesomeness, and also on the theory that concealment under such circumstances was equivalent to deceit. But in Lukens v. Freiund, 27 Kan. 664, bran was bought from a mill for food for cows. By accident two copper clasps used about the mill fell into the bran. These were swallowed by one of the buyer's cows and caused her death. It was held that there was no warranty on which the miller was liable. The presence of the clasps in the bran was not known to him. There is no Implied Warranty of the Soundness of Provisions Sold Unless Bought for Domestic Use. This was held after a full discussion of the subject in Moses v. Mead, 1 Denio 378. Bronson, J., said: "When provisions are not sold for immediate consumption there is no more reason for implying a warranty of soundness than there is in relation to sales of other articles of merchandise." This was affirmed by an equally divided court. 5 Denio 617. See Miller v. Scherder, 2 N. Y. 262, 267. Moses v. Mead was followed in Ryder v. Neitge, 21 Minn. 70, 75. In Winsor v. Lombard, 18 Pick. 57, 62, Shaw, C. J., said: "In a case of provisions it will readily be presumed that the vendor intended to represent them as sound and wholesome, because the very offer of articles of food implies this, and it may readily be presumed that a common vendor of articles of food, from the nature of his calling, knows whether they are unwholesome and unsound or not. But these reasons do not apply to the case of provisions packed, inspected, and prepared for exportation in large quantities as merchandise." See Emerson v. Brigham, 10 Mass. 197; Mattoon v. Rice, 102 Mass. 236; Howard v. Emerson, 110 Mass. 320. (t) Story on Sales, % 366, et seg. § 1013. After the contract of sale has been completed, the chief and immediate duty of the vendor, in the absence of contrary stipulations, is to deliver the goods to the purchaser as soon as the latter has complied with the conditions precedent, if any, incumbent on him. Vendor's first duty is delivery. Different the word "de There is no branch of the law of sale more confusing to the student than that of delivery. This results from the fact that the senses in which word is unfortunately used in very different senses, and livery" is used. unless these different significations are carefully borne in mind, the decisions would furnish no clue to a clear perception of principles. § 1014. First. The word delivery is sometimes used with reference to the passing of the property in the chattel, (a) sometimes to the change of the possession of the chattel: in a word, it is used in turn to denote transfer of title, or transfer of possession. Secondly. Even where "delivery" is used to signify the transfer of possession, it will be found that it is employed in two distinct classes of cases, one having reference to the formation of the contract; the other to the performance of the contract. When questions arise as to the "actual receipt" which is necessary to give validity to a parol contract for the sale of chattels exceeding £10 in value, the judges constantly use the word "delivery" as the correlative of that "actual receipt." After the sale has been proven to exist, by delivery and actual receipt, there may arise a second and distinct controversy upon the point whether the vendor has performed his completed bargain by delivery of possession of the bulk to the purchaser. Thirdly. Even when the subject under consideration is the vendor's delivery of possession in performance of his contract, there arises a fresh source of confusion in the different meanings attached to the word "possession." In general it would be perfectly proper, and even technical, to speak of the buyer of goods on credit as being in possession of them, although the actual custody may have been left with the vendor. The buyer owns the goods, has the right of possession, may take them away, sell or dispose of them at his pleasure, and maintain trover for them. Yet, if he become insolvent, the vendor is said to have retained possession. Again, if the vendor has delivered the goods to a carrier for conveyance to the purchaser, he is said to have lost his lien, because the goods are in the buyer's possession, the carrier being the agent of the buyer; but if the vendor claim to exercise the right of stoppage in transitu, while the carrier is conveying them, the goods are said to be only in the constructive, not in the actual possession of the buyer. 1 § 1015. Delivery in the sense of a transfer of title has been considered ante Book II., Of the Effect of the Contract. Delivery of possession, as required under the statute of frauds, as the correlative of the buyer's "actual receipt" in order to prove the (a) As for instance, in the opinion of Parke, J., in Dixon v. Yeats, 5 B. & Ad., at p. 340. 1. The effect upon the passing of property, of the seller's agreement to deliver, was considered ante ? 325, et seq. In some states a sale is held fraudulent and void as against a subsequent vendee, or attaching creditor of the seller until delivery. See ante & 740, note 60. |