Bonwit, Teller & Co. v. Kinlen

Page, J. This action was brought by the plaintiff, a corporation engaged in business as a retail merchant dealing in ladies’ wearing apparel, to recover for goods sold and delivered to the defendant’s wife and for certain alterations made in said goods. The purchase by the defendant’s wife of a suit, a waist and certain alterations in the suit, all for the agreed price set forth in the complaint and bill of particulars, was conceded. The waist was soiled when purchased and when washed, prior to being worn, pink spots appeared upon it. Mrs. Kinlen on discovering this condition returned the waist to plaintiff, claiming that these spots showed latent defects in the material of the waist. She wore the suit but three or four times when what are described as ‘ ‘ pulls and tears ’ ’ showed in the suit. An expert in the manufacture of silk testified that these “ pulls and tears ” were the result of defects in the manufacture of the goods, and that by reason thereof the goods were not of' the quality that would be made up into a suit selling at the price charged in this instance. The plaintiff’s witnesses testified that these goods were examined prior to sale and that the defects were not discovered. As the law was in this state prior to the passage of the “ Sales of Goods Act ” (Laws of 1911, chap. 571 ; Pers. Prop. Law, §§ 82-158) there would have been no implied warranty against latent defects in the goods, the plaintiff not being a manufacturer. Hargous v. Stone, 5 N. Y. 73, 87 ; Hoe v. Sandborn, 21 id. 552 ; Bartlett v. Hoppock, 34 id. 118 ; Whitman v. Jacobson, 119 N. Y. Supp. 246 ; Strauss v. Salzer, 58 Misc. Rep. 573. But this rule of law has been changed by the Sales of Goods Act, supra. “ Section 96. Implied Warranties of Quality: Subject to the provisions of this article and any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose [64] of goods supplied under a contract to sell or a sale, except as follows: “ 1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.” Thus the rule that theretofore obtained in this state as to purchase from growers or manufacturers has been extended to cover purchases from those who are merely merchants and not manufacturers. The reason for the rule seems to be that a. here the manufacturer or grower sells an article of his own production not alone is he deemed to have means of knowledge as to the quality and fitness of the article for its intended use but the buyer relies upon the superior skill and judgment of the manufacturer or grower, and likewise where a dealer in a particular article offers it for sale for a specified purpose, the buyer relies upon the skill and judgment of the seller and a warranty upon the part of the seller is implied that the article shall be reasonably fit for the purpose for which it is to be applied. The buyer trusts the judgment of the dealer and not his own. This is a radical departure from the law on this subject that has heretofore obtained in this state, and shows the legislative intent to bring our law into harmony, in this regard, with the common law of England, as developed and extended by the courts of that country within the last hundred years and codified and declared in the Sales of Goods Act of 1893 which is the foundation of our statute. In my judgment the courts should give full scope and effect to the act of the legislature and should not seek [65] to limit its application and confine its effect by those rules and principles laid down by the courts which have heretofore existed, but which the legislature has expressly changed or abolished. I am of the opinion that the case comes fairly within the terms of the statute. The defendant’s wife purchased from the plaintiff a suit for $110. By implication she makes known that the particular purpose for which the goods were required was personal wear and she relied upon the skill or judgment of the seller in selecting this suit and offering it for sale and he impliedly warrants that the suit is reasonably fit for such purpose. This implied warranty was broken when it appeared, after wearing three or four times, that the material of which the suit was made was giving way and becoming disintegrated through latent defects due to improper manufacture and that the waist became spotted through careless or improper manufacture. Having promptly returned the goods the defendant could defend on that ground an action to recover the purchase price and was not required to keep the goods and counterclaim the damage." The judgment should be affirmed, with costs. Bijur, J., concurs.