Pemberton v. Dean

BROWN, J. Action to recover damages for the breach of a warranty alleged to have been given on the sale by defendants to plaintiff of a certain emery wheel. The court below dismissed the action at the trial, and plaintiff appealed from an order denying a new trial. [62] The facts are as follows: At the time stated in the complaint, and for a number of years prior thereto, plaintiff was, and had been, engaged in the business of blacksmithing, in and about which business it was necessary to make use of an emery wheel for the purpose of sharpening tools. On October 1, 1901, he purchased of defendants such a wheel, and removed it to his place of business, and there made use of it. About October 30 of the same year, when engaged in operating the wheel in sharpening tools, the same broke, and a piece therefrom struck plaintiff, and severely injured his person. The complaint alleges that defendants represented and warranted, at the time of the sale of the wheel, that the same was well made, of good material, and capable of making eighteen hundred revolutions per minute; and that plaintiff relied upon such representations and warranty in making the purchase. This action was brought for damages, on the theory that the injury to plaintiff was the direct result of a defect in the wheel, and that defendants were liable as for a breach of the alleged warranty. The only question we deem necessary to consider is whether the evidence establishes the allegations of the complaint that defendants warranted the wheel at the time of the sale. It was not manufactured by defendants, who were wholesale and retail dealers in heavy hardware, and kept wheels of the kind in slock for sale to the trade; but was manufactured by the Northampton Emery Wheel Company, of Massachusetts, from which company defendants purchased it, with others, in the usual course of trade. A printed card was placed by the manufacturers upon the face of the wheel, which contained the words “Northampton Emery Wheel Co.,” the word “Speed,” and opposite thereto the figures “1,800,” indicating, as claimed by plaintiff, that the wheel was capable of being safely operated at the rate of eighteen hundred revolutions per minute. There were other words upon the card, together with the word “Warranted.” This card was upon the wheel at the time it was purchased by plaintiff, and the contention 'of plaintiff is that the same constituted and amounted to a warranty on the part of defendants in respect to its quality and speed capacity; that, although it may have been placed upon the wheel by the manufac [63] turers, defendants adopted it as their own by making the sale without removing it therefrom. Conceding that the printed matter upon the face of the wheel was sufficient to constitute a warranty, we are unable to concur in the contention that it was the warranty of defendants. A warranty consists 'in representations and statements of and concerning the condition and quality of personal property, the subject of sale, made by the person making the sale to induce and bring it about. So far as the evidence in the case at bar shows, nothing whatever was said between the plaintiff and defendants concerning the condition or quality of this wheel, whether it was capable •of making eighteen hundred revolutions per minute, or any other number of revolutions, or as to whether it was fit and suitable for .any particular purpose. Attention was not called by either party to the alleged printed warranty, and, for aught that appears from the record, the same was not noticed by either at the time of the sale. Clearly, under such circumstances, the placard cannot be held to be the warranty of defendants, and to hold that they .adopted the representations purporting to be thus made would be going far beyond any case to which our attention has been called. "Whether the manufacturers would be liable to plaintiff upon this warranty, either upon the ground of neglect in the manufacture of the wheel or for a breach of warranty, is wholly irrelevant to the question. If it be granted that the manufacturers would not be liable, it by no means follows that defendants are. We are clear that the mere sale of the wheel by defendants with the printed matter pasted thereon, without other act or ceremony, did not amount to an express warranty on their part. The allegations of the complaint are not, therefore, sustained by the evi•dence, and the court correctly dismissed the action. Neither can plaintiff recover upon the theory of an implied warranty. It may be, and doubtless is, true that there is an implied warranty in all cases where an article is manufactured and sold for a specific purpose that such article is fit and suitable for the purposes intended for it. .But that rule can have no application to the case at bar, for plaintiff relies in his complaint, not [64] upon an implied, but upon an express warranty; and, besides, defendants were not tbe manufacturers of tbe wheel. The order appealed from is affirmed.