Ryan v. Ulmer

Mr. Justice Gordon delivered the opinion of the court, March 23d, 1885. The action in this case was in assumpsit on an implied warranty of goods sold by the defendants below to the plaintiff. The sale was of 140 tierces sweet piclded pork shoulders, deliverable on board the cars at Dubuque, and was negotiated through R. W. Roloson, a provision broker in the city of Chicago, who acted as the common agent of both parties. Both plaintiff and defendants were packers and dealers in pork; the place of business of the latter was at Dubuque, and that of the former in Pottsville of this state. The transaction, then, in brief, stands thus: Ulmer ordered the goods, as above stated, from Ryan & Son, and they were shipped without inspection or opportunity of inspection by him. It is true, an inspection was ordered by Roloson, but as that inspection was made by the defendants .themselves through one of their employees, it was, of course, not conclusive on Ulmer. Shortly after the meat arrived at Pottsville it was found to be spoiled, so much so" that it was not merchantable as human food. During the trial, a number of exceptions were taken to the evidence offered and admitted on. part of the plaintiff. But as it was all pertinent to prove the probable condition of the meat when shipped at Dubuque, we cannot say that it was inadmissible. The plaintiff had no opportunity of directly testing or knowing its quality when delivered on the cars, he was therefore obliged to do the best he could by proving its bad quality when received, and showing by experts, and the means used for its preservation, that if good when shipped it ought not to have spoiled by the way. If, indeed, the sale itself raised no implied warranty of the quality of the goods delivered, the evidence was inadmissible, for in that case there could in any event be no recovery under the present state of the pleadings however bad the character of the meat when shipped. This, however, is the main point of the ease, and is raised by the 13th, 14th, and 15th assignments of error. With reference to this point the court charged, that under the terms of the contract, the defendants were bound to furnish meat that was sweet, sound and in a fit condition to be sold in the trade. We have no hesitation in saying, that at all events, this was carrying the doctrine of implied warranty too far. No rule that we know of carries the doctrine quite to the length here stated. Under the English decisions, as they now stand, where the vendee has had no opportunity of inspecting the commodity, he has a right to require a salable article, but nothing more, and he cannot insist that it shall be of any particular quality or fineness: Wharton’s Law of Contracts, Sec., 223. When, therefore, the learned judge of the [338] court below informed the jury that tbe meat, when delivered, must have been not only salable, but also sweet and sound, he made a statement not sustained by any authority recognized in this state, for even an express warranty could not have gone beyond what was thus stated. For this, however, we cannot reverse since it has not been assigned for error. The question then, recurs, do the facts of this case raise a warranty of any kind or degree? We think they do not. In the way of conditions of sale we' have but the order of the broker on his correspondents for the shipment, to his own order, of two car loads of sweet pickled shoulders, Nee on board the cars at Dubuque, and the invoice forwarded by him to Ulmer setting forth the shipment, on his account, of 140 tierces S. P. shoulders. When Ulmer received this meat it was apparently in good condition; an inspection showed nothing wrong except that the pickle was not as pure as it should have been, and it was not until some hours of smoking that its bad quality was developed. How it was when shipped at Dubuque is impossible to say, and, of course, under the charge, the finding of the jury does not help us. It may have been at that time good for present use, and yet not fit for shipping, or it may have been entirely sound and deteriorated through neglect on the way. At all events, there is no evidence that the defendants knew that it was not good when put on board the cars. Under these circumstances, we are satisfied that had the rule established by this court been followed the plaintiff would not have been permitted to recover. The case of Wetherill v. Neilson, 8 Har., 448, is directly in point, and would have to be overruled were we to sustain the court below. There the bill of sale was of “ 35 casks of soda ash, 48 per cent.” The offer of proof on part of the defence was, inter alia, that the ash was below 48 per cent, strength; that it was not marketable, but valueless and useless, not being in fact the article it was sold for. The court below refused to entertain the offer, and ordered judgment on the ground that the defendant had shown neither an express warranty nor fraudulent representation, and that nothing short of this could prevent the plaintiff’s recovery. In this case, like that in hand, there was neither inspection of the goods nor opportunity for such inspection, so that they are in all particulars similar. A like case is that of Warren v. The Philadelphia Coal Company, 2 Nor., 437, in which Mr. Justice Woodward affirms that there is no rule more firmly imbedded in our jurisprudence than that which governs the rights of vendors and purchasers in an ordinary contract of •sale of personal property. “ In such a contract the vendor is subject to no implication of a warranty of the quality of the [339] article sold.” He also adds; “ The doctrine of the common law, as it was settled in Chandelor v. Lopus, Cro. Jac., 4, has been constantly and uniformly applied.” The same doctrine is held by Mr. Justice Mercur in Whitaker v. Eastwick, 25 P. F. S., 229, and also in Eagan v. Call, 10 Ca., 236. As has been said, this is the common law doctrine and is found in the ease of Chandelor v. Lopus, in which case the declaration set forth, that the defendant, a goldsmith, having skill, in precious stones, “had a stone which he affirmed to Lopus to be a bezoar stone, and sold it to Mm for a hundred pounds; ubi revera, it was not a bezoar stone.” Under the pleadings judgment was given for the plaintiff in the King’s Bench, but was reversed in the Exchequer Chamber on the ground that the bare affirmation that the stone was a bezoar, without warranty, was no cause of action. This is perhaps, an extreme case, for here the article was not even M specie what it was sold for, nevertheless, as we have seen, it was literally followed in Wetherill v. Neilson, supra, as it was in Seixas v. Woods, 2 Caines, 48; and the latter was followed in New York in Holden v. Dakin, 4 John., 421. We understand, indeed, that both in England and New York there has been to some extent a departure from the rulings of the above cited cases, but in Pennsylvania there has been a steady adherence to the common law doctrine without any greater qualification than that found in Borrekins v. Bevan, 3 Rawle, 37, where it was held that the goods sold must be the same M kind as those mentioned in the contract of sale. For the reasons here given we reverse the judgment of the court below, and order a new venire. Trunkey and Sterrett, JJ., dissented.