Dulaney v. Jones & Rogers

McLean, J., delivered the opinion of the court. Appellees brought suit against appellants, on an open account, for goods, wares, and merchandise before that time sold and delivered, claiming a balance of three thousand, one' hundred and ninety-one dollars. There is annexed to the declaration the account, which shows that the goods sold were feed stuffs for animals. The second plea of the defendants was, in substance, that the account sued on was for feed stuff for animals of defendants ; that said feed stuff was sold to defendants to feed to his mules, with the belief that the same was sound, wholesome feed; that said feed stuffs were not wholesome, sound, etc., but were decayed, rotten, unfit, and 'unwholesome feed for said mules, and were in such rotten condition as, when fed to said mules, they made said mules sick, causing the death of six of them, etc. Wherefore defendants pray that they be allowed to recoup the .amount of said damage, totaling three thousand, eight hundred dollars, against the account sued for. The third plea of defendants set out that the feed stuffs were not sound and wholesome feed for their animals, but, “on the other hand, were so decayed, damaged, and rotten as to be unfit for the purpose for which same were sold, [840] unfit to be fed to said mules, and unfit to be fed at all, and were worthless and of no value.” The plaintiffs demurred to said pleas, and, the demurrer being sustained, defendants declined to answer, and a judgment was rendered for plaintiffs. It is argued with much ability, by the appellees, that an implied warranty of soundness arises only in cases where the food sold is for human consumption. After a careful consideration of the question, our conclusion is that, according to the weight of authority in this country, there is an implied warranty of soundness in the case of the sale of provisions intended for human food, but with food for other purposes there is no implied warranty of soundness. This is put upon the grounds of public policy, the controlling reason being the regard for human life and for human health. See authorities cited in brief of counsel for appellees. As to the third plea, we construe that plea to mean that its averment as to the feed stuff having been sold' under an implied warranty that the same was sound and wholesome for mules of the defendants is a mere conclusion of law, and not a statement of- fact, and is alleged in the plea as a mere matter of inducement. The plea alleges that the feed stuff was “worthless and of no value.” We do not know of any law, and counsel have failed to cite us to any authority, that holds that a person is liable when he buys articles that are worthless and of no value.’ The law does not imply a promise upon the part of the purchaser to pay for goods that are worthless and of no value. In such eases there is a total failure of consideration. We construe the plea to 'be equivalent to a plea of total failure of consideration. If the articles purchased are worthless and of no value at all, the purchaser is not required even to return or to offer to return them. This principle, of course, is not applicable in a case where a person buys “a pig in [841] a bag or a cat in a sack.” In suck cases lie must stand upon bis contract; but where he purchases things for consumption, either for human food or for use of live stock, he cannot be made to pay for those things which are worthless and of no value. No question of estoppel arises upon the record in this case. We do not know what defendants did with the articles purchased. We decide this case simply on the allegations in the plea that the article was- worthless. The demurrer to the third plea should not have been sustained, but plaintiffs should have replied thereto. Reversed. Suggestion of error filed and overruled.