Bel v. Adler

Eelton, J. (After stating the. foregoing facts.) 1. Construing the petition most strongly against petitioner, it is a purported suit for damages for a breach of an express or implied warranty of goods manufactured by a reputable manufacturer, sold by a retailer in an original, perfect-appearing package, of a suit based on negligence. No wilfulness or intention to deceive is alleged. The suit is not predicated upon the contention that there was a breach of an implied warranty that the goods were manufactured by a reputable manufacturer. It appears from the petition as construed against the plaintiff that the goods sold -were in the original unbroken package, and that they were in a perfect-appearing package, and that it was impossible in the practical use of the package in the retail trade to discover hidden imperfection without breaking the package, and that the dealer had no positive knowledge or notice amounting to imputed knowledge. In such a case ordinary care does not require the dealer to open the package or analyze the goods. In the absence of an allegation that the goods were put up *477 or manufactured by the defendants, or that they were manufactured by a manufacturer who was not reputable, no cause of action based on negligence was set out. Howard v. Jacobs Pharmacy Co., 55 Ga. App. 163 (189 S. E. 373); West v. Emanuel, 198 Pa. 180 (47 Atl. 965, 53 L. R. A. 329); 2 Restatement of the Law of Torts, 1089, § 403. The decision in Davis v. Williams, 58 Ga. App. 274 (198 S. E. 357) is not contrary to this ruling, because in that case the dealer could have discovered the imperfection by the use of ordinary care. 3. The petition did not set out a cause of action for breach of an implied warranty. There is no implied warranty by a dealer that an article or goods in a perfect-appearing original package, manufactured by a reputable manufacturer, which in practical use in retail trade can not be examined for imperfections, is suitable for the purposes intended. The only warranty by the dealer, in such circumstances, is that the goods are manufactured by a reputable manufacturer. The petition did not set out a cause of action for breach of express warranty. The words used by the dealer in this case are not to be construed as an express warranty, but as a recommendation of the goods, any more than that the dealer recommended the goods upon the strength of the manufacturer’s implied warranty to the purchaser that the goods were suitable for the purposes intended. In order to charge the dealer with an express warranty in such a case, the circumstances must be sufficient to show, not only that the purchaser relied on the dealer’s statements as being an express warranty, but that the dealer intended them as such, and knew that the purchaser was so relying, or would be justified in so doing. The recommendation of manufactured goods sold by a dealer, under the circumstances here, amount to no more than a warranty that they were manufactured by a reputable manufacturer. 2 Restatement of the Law of Torts, 1088, § 401. It was held in Ray v. Burbank, 61 Ga. 505 (34 Am. R. 103), that, in the absence of bad faith, the recommendation of the preparation or prescription of another, in language equally as strong as that used in this case, was no more than a recommendation, and that the dealer was not liable; and in that case the dealer filled the prescription. The court did not err in sustaining the general demurrer to the petition as amended. Judgment affirmed. Sutton, J., concurs.