صور الصفحة
PDF
النشر الإلكتروني

IN

NOTES OF CASES.

C. B. 544; Somerville v. Hawkins, 10 id. 583; Odgers on Libel and Slander, by Bigelow, 202, 218, 225; Klinck v. Colby, 46 N. Y. 433. The communication had its origin in the confidential relation ex

Rae v. Mayor, etc., 51 Mich. 526, it was held that where the charter of a city requires the common council to take measures for the preserva-isting between the parties, and emanated from one

tion of the public health, a nurse employed by the council to take care of small-pox patients is entitled to compensation from the city, although the patient himself is of sufficient ability to pay for the service, and a statute makes the cost of services so rendered an individual liability. The court said: "The duty to guard the public health and prevent the spread of contagion was imperative, and the power of the common council was commensurate with the duty. Neither the power nor the obligation could be lessened by the failure to designate a sub-agency." * * * "In providing that what is done shall be at the charge of individuals, it is not intended to exempt the public from immediate liability. It would be impossible under such a regulation to effectuate the general object. Individuals would not be willing to provide necessaries, and serve as nurses and assistants at the instance of the public if compelled to collect their pay of the patients or their relatives. The public is first and immediately responsible, and the intent of the statute is to enable the public to obtain reimbursement from those who ought to sustain the expense. The plaintiff hired herself to the city. She trusted the city and no one else. The occasion was a public one. It was an emergency to which the duty and authority of the common council attached under the power of police, and the right and duty to act depended in no manner on the pecuniary ability of the persons who were sick or infected. The great object was to stay the contagion, and the proper and humane care of the individuals was a righteous incident. The question is not affected by any of the other provisions. We are satisfied that the council was fully authorized to employ the plaintiff, and that the city is liable." To the same effect, Labrie v. Manchester, 59 N. H. 120; S. C., 47 Am. Rep. 179; 29 Alb. Law Jour. 43.

In Keane v. Sprague, New York City Court, the court, by McAdam, J., held as follows: "The defendant, the manager of the St. James Hotel, was informed by a guest that the plaintiff, a domestic employed in the hotel, had stolen a diamond pin from his room, whereupon the defendant sent for the plaintiff and told her what the guest had said, and in the presence of the chambermaid charged the plaintiff with the offense. For this the plaintiff sues the defendant, and the question arises whether, under the circumstances stated, the communication, apparently slanderous per se, was privileged. I hold that it was. The relation of master and servant existed, in legal effect, between the parties, and the occasion, in law, repels all idea of malice, and justified the defendant in repeating the charge which his guest made. See Townshend on Libel and Slander, §§ 209, 244; Manly v. Witt, 18

[ocr errors]

whom the defendant, under the circumstances, had the right to believe. Privileged communications comprehend all statements made bona fide in the performance of a duty, or with a fair and reasonable purpose of protecting the interest of the person making them. The communication made by the defendant comes within the protection of this rule. What the defendant said was in performance of a duty he owed, not only to the guest, but to the good reputation and management of the hotel under his charge. Numerous illustrations of the rule will be found in the authorities above cited, and the recent case of Billings v. Fairbanks (Sup. Ct. of Mass., Dec., 1883) shows that it controls the disposition of this case. The communication being privileged, the legal inference of malice is repelled, and the onus of proving its existence, beyond the mere falsity of the charge, was in consequence thrown upon the plaintiff. Lewis v. Chapman, 16 N. Y. 373. There being no affirmative proof of actual malice it follows that the complaint must be dismissed."

In Pomeroy v. State, 94 Ind. 96, the accused, a patient believed to be suffering from a disease of physician, while examining the person of a female

the womb, had carnal connection with her. There was no evidence of consent upon her part, obtained by fraud or otherwise. Held that the accused was tends to show that the appellant, as a physician, inguilty of rape. The court said: "The evidence

formed Rebecca and her mother that the former losing her mind. If the jury believed, as they was suffering from a terrible womb disease, and was might well have done under the evidence, that the appellant, as a physician, obtained possession and control of Rebecca's person, under her mother's command, for the purpose of making a further examination of her alleged disease of the womb, and not for the purpose of sexual intercourse, and that she never in fact gave her consent, through fraud or otherwise, to the sexual connection, then, it seems to us, that the case in hand falls fairly within the doctrine declared in Queen v. Flatery, 2 Q. B. D. 410, decided in 1877, and that the appellant was lawfully convicted of the crime of rape. In the case cited, as in this, the defendant professed to give medical and surgical advice for money. The prosecutrix, a girl of nineteen, like the prosecutrix in this case, was subject to fits,' and she and her mother consulted the defendant in regard to her case, and informed him of her condition. The defendant, as in this case, made an examination of the person of the prosecutrix, and advised that a surgical operation be performed, and under the pretense of performing it, had carnal connection with her. It was held by the court that the prisoner was guilty of rape. Kelly, C. B., said:

'It is plain that the girl only submitted to the defendant's touching her person in consequence of the fraud and false pretenses of the prisoner, and that the only thing that she consented to was the performance of the surgical operation. Up to the time when she and the prisoner went into the room alone, it is clearly found on the case that the only thing contemplated, either by the girl or her mother, was the operation which had been advised; sexual connection was never thought of by either of them. And after she was in the room alone with the prisoner, what the case expressly states is that the girl made but feeble resistance, believing that she was being treated medically, and that what was taking place was a surgical operation. In other words, she submitted to a surgical operation, and nothing else. It is said however, that having regard to the age of the prosecutrix, she must have known the nature of sexual connection. I know of no ground in law for such a proposition. And even if she had such knowledge she might suppose that penetration was being effected with. the hand or with an instrument. The case is therefore not within the authority of those cases which have been decided, decisions which I regret, that where a man by fraud induces a woman to submit to sexual connection, it is not rape.' In the same case, Mellor, J., also said: 'It is said that submission is equivalent to consent, and that here there was submission. But submission to what? Not to carnal connection. The case is exactly within the words of Wilde, C. J., in Reg. v. Case, 1 Den. C. C., at page 582: She consented to one thing, he did another materially different, on which she had been prevented by his fraud, from exercising her judgment.' In People v. Crosswell, 13 Mich. 427, after citing some decisions both in England and in this country, to the effect that if the woman's consent is obtained by fraud the crime of rape is not committed, Cooley, J., said: 'But there are some cases in this country to the contrary, and they seem to us to stand upon much the better reason, and to be more in accordance with the general rules of criminal law. People v. Medcalf, 1 Whart. C. C. 378, and note 381; State v. Shepherd, 7 Conn. 54. And in England where a medical practitioner had knowledge of the person or a weak-minded patient, on pretense of medical treatment, the offense was held to be rape. Reg. v. Stanton, 1 C. & K. 415. The outrage upon the woman, and the injury to society, is just as great in these cases as if actual force had been employed, and we have been unable to satisfy ourselves that the act can be said to be any less against the will of the woman, when her consent is obtained by fraud, than when it is extorted by threats or force.'" But in Don Moran v. People, 25 Mich. 356; S. C., 12 Am. Rep. 283, the jury having been instructed that they might convict if they found that the defendant procured the woman to have connection with him by fraudulent representations, which she believed, that it was a necessary part of his medical treatment of her, and to save the necessity of a dangerous operation, held,

error, because it did not recognize force as an essential element. See note, 12 Am. Rep. 290. See also Oleson v. State, 11 Neb. 276; S. C., 38 Am. Rep. 366; Whittaker v. State, 50 Wis. 518; S. C., 36 Am. Rep. 856, and note, 860.

SOME CHARACTERISTICS OF CHARLES JAMES FOLGER.

IN

N looking over my letters from Judge Folger it has occurred to me that some passages would be of great interest to the legal profession and to the public, as illustrative of his mental characteristics and habits, and his opinions, and would display him in a familiar and pleasant light to those who did not intimately know him. For example, I know it is generally supposed that he died of political disappointment. This is a natural inference, perhaps, but it is a mistaken one, I believe. He was too strong for that, and he was a very sick man long before he went to Washington. How he really felt about his defeat in 1882 is shown in the following, of November 15, 1882, in answer to mine remarking that election day had proved a "cold day for the Republican party:" You seem to think that Mr. Cleveland's election is one of the 'frozen facts' that we have heard of lately. Several of the anonymous letters I received during the canvass promised to make it hot' for me. Whence this inconsistency? For I fancy the writers hug themselves with the notion that they kept their promise. Considering the tone and action of the Republicans, 'lukewarm' might be the better word. But cold, or hot, or tepid, it has passed, and I am content if the people are." The next day he wrote: "Your having forsworn politics may have saved you from some evil things; it ought not to debar you from some good things; so I send you this. I have a note by mail, anonymous, as follows: 'Accept the best wishes and appreciation, in this day of your defeat, from a political opponent.

'Multis ille bonis flebilis occidit,
Nulli flebilior quam mihi.'
'Consulque non unius anni
Sed quoties bonus atque fidus.'

The first couplet is from the ode of Horace, addressed to Virgil on the death of Quinctilius Varus (Lib. 1, ode xxiv). My friend has substituted mihi for tibi, and omitted Virgili. He (perhaps you will think) would have been as apt in quotation if he had written to me the last two lines of the ode:

'Durum, sed levius fit patientia Quicquid corrigere est nefas!' (It is hard; but borne with patience, even that which cannot be remedied, becomes more tolerable.) Where my Democratic mourner gets his other couplet, I have not yet found." I am inclined to believe that he was more annoyed at his inability to ascertain the authorship of that couplet than by his defeat.

He did not love politics, and he heartily despised the insincerity and faithlessness of politicians. I

once asked his advice as to taking editorial charge of a political newspaper. He replied: "Answering at once, I will say, no. The newspaper business of the country is a great business. But it is the pro prietor, and not the editor, who skims the pan and takes the cream. I think your nature would revolt at the subterfuges that you would find forced upon you in the position of editor of a party organ. You could not with heart, or even with show of heart, justify and defend that which your instincts and your judgment saw was wrong, and you would often be called upon to do it, or to offend partisans. * * * The mental strain, too, must be great. The daily demand must be met daily. The unexpected event must not be treated as if unexpected, but the profound reflection must come forth, fresh and sparkling, at the smiting of the rock. I doubt not that you have the rod of Moses with which to smite, but you could grow weary. However, don't. be influenced by the doubts of a pessimist."

His classical learning and accuracy are illustrated by the following, of July 2, 1882: "I write to make to you a correction in my letter to the judges, which appears in the 84th New York. There is an error, not of my making, but of the compositor and proof-reader, in the Latin quotation or rather, two errors. First, it should not be one line; second, it should not be ‘Loetor nam,' but ‘Loetus sum.' 'Loetus sum

Laudari me abs te, pater, laudato viro.' That is the correct rendering from a play, 'Hector,' by Cneus Naevius. I have seen it freely rendered thus:

'My spirits, sire, are raised

Thus to be praised by one the world has praised.' It is the same sentiment as that in Lord Mansfield's letter to Chief Justice McKean, to be found in preface to first volume Dallas (Penn.) Reports - 'That sensibility which praise from the praiseworthy never fails to give — ' Laus est laudari a te.' I did not wish your classical acumen to consider me careless in the use of a quotation, so I write to you to correct the proof, that is, to correct it in your mind. It is too late to correct it in the volume."

He was singularly exact in the use of language. I once wrote him that I sometimes flirted with my first love, literature. He answered: "Permit me to say that you do not mean that you 'flirt' with your first love. You 'dally' with her. 'Flirt ' has come to mean 'a trifling with.' 'Dalliance' is a tenderer word, implying a longing for and a satisfaction with. 'Flirt has an evil sense now-adays."

His love of horses and of philology is shown in the following: "In your last number (23, vol. 13) of the ALBANY LAW JOURNAL, at page 244, you cite Comly v. Hillgar, Pennsylvania Supreme Court, that a trial of speed of horses for a premium is a horse race for a wager. Perhaps my love of horses, and fondness for the sport of a trotting contest has warped my judgment, but in Harris v. White, of which I have just read the proof for 81st New York, the Court of Appeals, New York, are in conflict

[blocks in formation]

Referring to this case again, he wrote: "I see that you 'took' some of the phrases in Harris v. White. When I penned them, I wondered whether any one would. It has chanced to me several times to find an appreciative reader of an opinion, in some of its minor features, like this I am speaking of, and it gratifies me to have it so, more than to receive expressions of satisfaction with the closeness and force of the logic, or the profundity of the reasoning, or the breadth of the learning."

Something of his taste in literature may be gleaned from the following: "I am fond of lamb; especially of that which (or who) is written with a capital (L), and the Christian name of Charles before it. The essays of Elia are my recourse when the spirits droop and the heart grows sad, as is too often the case in the latter years. 'The Convalescent' is a favorite with me. I have read it often, and now read it again on receiving your letter." This was written in 1881.

On January 24, 1882, he sent me some extracts from his common-place book, with the following: "Your note of the 19th, and the case in the JOURNAL, page 52, from Lackawanna Common Pleas, impelled me to look at my Common-Place Book, with the lengthy result above drawn out. It may amuse you. It may do more. Some time when the devil insatiate calls for 'copy,' and tired brain and hand have none to give him, you may throw the above as a sop to Cerberus, and cheaply buy respite for a while. It has amused me to turn the leaves where are written some rich, quaint things, and extract the above. It would have interested me more could I have gone to the library shelves and taken down the books cited, and read again."

He was not a believer in codification. He wrote: "I cannot help thinking that a code is the beginning of construction and interpretation, to the increase of the litigation, the expense of suitors, and the burden of the courts. It is a sorry comment on the success of codification that the task of interpreting the one we have was never ended, aud that the code itself was found needful of codification with the glosses of the courts. Again: "I have never had great faith in codes, either of procedure or of the body of the law."

It is quite amusing to note that he thought himself lazy. He once wrote: "I am a lazy man by nature and inclination, and work only as the spur of necessity hæret in latere." Again he wrote: "I have Coffin blood in me, but much diluted with that of the Pinkhams, Mitchells, Starbucks, et cætera, and a prevailing strain of Folger, by the token that the old ode, descriptive of the characteristics of the Nantucket families, sets down that family as 'the knowing Folgers, lazy." Once more he speaks of "a growing and decidely bothersome (to self and others) habit of procrastination, taking the shape of putting off forever things that may be

666

[ocr errors]

I. B.

done at once, but need not be done till by and by." memory not with a "misty and vaporous halo," but Then dropping into philology, he continues: | with a lasting crown - the crown awarded for duty 'Bothered,' Prest. Aithen says, is 'BOTHEARED.' He wisely, constantly and modestly done. is wrong, though seldom so in such matters. It is from 'pothered,' 'pother,' and that from 'poudre,' powder, dust, as of the highway. Prest. A.'s derivation is fanciful only; both ears occupied by the tale or droning of a bore."

One of the most characteristic of his letters is the following, without date, but written while he was in the Treasury: "I saw this to-day (Sunday), and I thought you would relish it; so I copied it for you. I don't know that it is genuine or an imitation. Be it either, it seemeth unto me good. I can't say what the word 'bin' in the second lines of the first and third verses means. The last two line of the third verse are to my sensibilities capital. Read them aloud, and read them 'sof,' and see if they do not strike you so. The word "gloomerin,' in the third line of the first verse is a coinage, I take it, but it is from pure metal, and clear cut die. And is there not a bit of keen satire in it?" Then follows the poem:

De massa ob de sheepfol'

Dat guards de sheepfol' bin,
Look out in de gloomerin' meadows
Whar de long night-rain begin -
So he call to de hirelin' shepa'd,

Is my sheep is dey all come in?

O den says de hirelin' shepa'd,

Dey's some; dey's black and thin,
And some, dey's po' ol' wedda's,

But de rest, dey's all brung in,
But de rest, dey's all brung in.

Den de massa ob de sheepfol'

Dat guards de sheepfol' bin,
Go's down to de gloomerin' meadows
Whar de long night-rain begin;
He le' down de bars ob de sheepfol',
Callin' sof' -"come in, come in!"
Callin' sof'"come in, come in!"
Den up t'ro' de gloomerin' meadows

T'ro' de col' night-rain and win',
And up t'ro' de gloomerin' rain-puf',
Wid de sleet-fa' pie'cin thin,
De po' los' sheep ob de sheepfol'
Dey all com' gadderin' in,
De po' los' sheep ob de sheepfol'

Dey all com' gadderin' in.

In April, 1882, he wrote: "There are some of my opinions in the 85th - New York Reports" and

the halo with which I went below the horizon in the 86th, Cutting v. Cutting. In parenthesis, a halo is no halo unless it is somewhat misty and vaporous, so I am not assumptious in using the word."

His heart yearned to the last for his old place on the bench. On the 17th of May last he wrote: "I was in Albany for two hours the other day, regretful that the judges had left. I wished to see them in their silks. I did see their fine new room. can they help but write ornate opinions?"

How

Is not this a beautiful picture which the great jurist and statesman has unconsciously drawn of his own wisdom, learning, steadfastness, tenderness and sportiveness? The citizens of our State, and I think, those of other States, have invested his

REMEDIES FOR DEFECTIVE QUALITY ON EX-
ECUTORY CONTRACTS OF SALE OR
MANUFACTURE.

IT

T is suggested by Mr. Corbin in his very valuable edition of Benjamin on Sales at pp. 1158 and 1159, that the New York decisions on this subject are not easily reconciled with each other, and that Reed v. Randall, 29 N. Y. 358; McCormack v. Sarson, 45 id. 265; and Gaylord Manuf. Co. v. Allen, 53 id. 515, are "practically overruled " by Day v. Pool, 52 N. Y. 416; Parks v. Morris, etc., Co., 54 id. 587; and Gurney v. Railroad what are the fundamental distinctions underlying the Co., 58 id. 358. Is this criticism well founded? If not,

cases in this State?

Laying out of view, as not involved in the cases cited supra, the implied warranty of a manufacturer or grower against latent defects arising out of the process of manufacture or mode of cultivation, the New York decisions relating to the remedies of the buyer for defective quality or unfitness on executory contracts of sale or manufacture may be divided into the following four classes:

1. Where there is no express term of quality or fit

ness.

2. Where there is an express agreement as to quality or fitness, creating merely an obligation which the law would imply in the absence of such agreement.

3. Where there is an express agreement as to quality or fitness importing a greater obligation than the law would imply in the absence of such agreement.

4. Where a certain quality or fitness for a particular purpose, whether intra or ultra the legal implication, is warranted in express terms.

A critical examination of these decisions will, it is believed, disclose the following to be the distinctive principles running through them: In class 1, represent. ing all cases where there is an implied term of merchantable quality or fitness for a special purpose, the principle is that such implied term operates, not as a warranty, but as a condition merely, and is waived by acceptance; class 2 is controlled by the principle that the expression in a contract of an obligation which the law implies, does not change the nature or extent of the obligation or the remedy upon it, and therefore the express term of quality or fitness has the same operation as the implied term in class 1, and no other; in classes 3 and 4 the express contract operates, not only as a condition before acceptance, but also as a warranty after acceptance.

Class 1. Where there is no express term of quality or fitness.

On an executory contract for the sale of a chattel the law implies that the article when furnished shall be of a merchantable quality (Reed v. Randall, 29 N. Y. 358; Hamilton v. Ganyard, 34 Barb. 204; 2 Abb. Ct. App. Dec. 314) "at least of medium quality or goodness” (Howard v. Hoey, 23 Wend. 350; Hargous v. Stone, 1 Seld.73, 86), but not of first quality. Swett v. Shumway, 102 Mass. 365.

So on an executory contract for the manufacture of a chattel there is an implied term in the contract that the article shall be merchantable. Gaylord Manuf. Co. v. Allen, 53 N. Y. 515; Jones v. Just, L. R., 3 Q. B. 197.

Where a known, defined and described article is ordered of and supplied by a manufacturer (e. g., “your smoke-consuming furnace," Chanterv Hopkins, 4 M.

& W. 399, or a "two-color printing machine on my patent principle " (Ollivant v. Bayley, 5 Ad. & El. [N.S.] 288), or a dealer (e. g., "xx pipe iron," Dounce v. Dow, 64 N. Y. 411) the law does not imply an agreement that it shall answer the particular purpose for which it is required by the buyer, although such purpose is stated to the manufacturer or dealer (id.; Jones v. Just, L. R., 3 Q. B. 197; Charlotte, etc., R. Co. v. Jessup, 44 How. Pr. 447; 1 Pars. Con. [5th ed.] 588, note 3; Draper v. Sweet, 66 Barb. 147), for the buyer purchases on his own judgment. Hoe v. Sanborn, 21 N. Y. 552, 563.

On the other hand, where a manufacturer or dealer contracts to supply an article which he manufactures or deals in, to be applied to a particular purpose, so that the buyer necessarily trusts to the skill or judgment of the manufacturer or dealer, the law implies that it shall be reasonably fit for the purpose to which it is to be applied. Jones v. Just, supra; Gaylord Manuf. Co. v. Allen, 53 N. Y. 515; Charlotte, etc., Co. v. Jessup, supra; see also cases collected in Bragg v. Morrill, 24 Am. Rep. 104, note, and Emerson v. Brigham, 6 Am. Dec. 115, note.

Under the New York rule each of the above implied engagements on the part of the dealer or manufacturer as to merchantable quality or fitness for a special purpose is part of the contract of sale itself, operating as a condition, the performance of which is precedent to any obligation upon the vendee under the contract, because the existence of such quality or fitness is essential to the identity of the thing sold. See Reed v. Randall, 29 N. Y. 358, 363; Gaylord Manuf. Co. v. Allen, 53 id. 515, 519. Such implied engagements do not operate as warranties or agreements collateral to the sale. Id.; Dutchess Company v. Harding, 49 N. Y. 321, 323, 324; Gurney v. Railroad Co., 58 id. 358, 364. To term them "implied warranties" is therefore under the New York rule a manifest misnomer; treating them as implied warranties instead of conditions is, with deference, the error on which is founded Mr. Corbin's criticism above cited of the New York cases.

Accordingly the vendee may reject the article furnished if not within the implied term as to quality or fitness, because it is not the thing he agreed to purchase (Hargous v. Stone, 1 Seld. 73, 86), and the default of the vendor is "not a breach of warranty, but a mere non-compliance with the contract that the defendant had agreed to fulfill." Reed v. Randall, 29 N.Y. 362.

Whether the implied obligation of the dealer (Reed v. Randall, supra; Hargous v. Stone, supra; Holden v. Clancy, 58 Barb. 590; Leavenworth v. Packer, 52 id. 132; Weaver v. Wisner, 51 id. 638; Dounce v. Dow, 64 N. Y. 411; Dutchess Company v. Harding, 49 id. 321) or manufacturer (Neaffie v. Hart, 4 Lans. 4; Provenzano v. Manuf. Co., 9 Daly 90) require a merchantable quality or (Gaylord Manuf. Co. v. Allen, 53 N. Y. 515) fitness for a special purpose, the vendee, on receipt of the article furnished, is bound, after a reasonable opportunity for examination, to reject it, in case it does not correspond with the implied condition as to quality or fitness; otherwise he will be held to have accepted the article as in compliance with the contract, and thus to have waived such implied term whether as a ground of action by him for damages for such defective quality or unfitness (id.), or as a defense to an action for the price. Pomeroy v. Shaw, Ct. App., 4 Alb. L. J. 15; affirming S. C., 2 Daly, 267; Sprague v. Blake, 20 Wend. 61.

Class 2. Where there is an express agreement as to quality or fitness importing merely an obligation which the law would imply in the absence of such agreement.

Of this class Reed v. Randall, 29 N. Y. 358, and Gaylord Manuf. Co. v. Allen, 53 id. 515, are types. The former case was recognized in Day v. Pool, 52 N. Y.

416; Parks v. Morris, etc., Co., 54 id. 586; and Dounce v. Dow. 57 id. 16; S. C., 64 id. 411, and both the former and the latter were cited as law in Gurney v. Railroad Co., 58 id. 358.

Upon such a contract a warranty cannot be predicated, the express term having the same operation as the implied term in class 1, and no other, i. e., as a condition merely.

The principle here is that superadding to the terms of a "contract words expressing an obligation that the law implies, does not change the nature or extent of the obligation or the remedy upon it." Reed v. Randall, supra; Gaylord Manuf. Co. v. Allen, supra; Wells v. Sellwood, 61 Barb. 238, 245.

Thus in Reed v. Randall the contract was executory for the sale of a growing crop of tobacco, "well cured and in good condition." Here was an executory contract of sale by description as to quality, but intra the legal implication, i. e., merchantable quality. The court said: "In an executory contract for the sale of personal property the law implies that the article, when furnished, shall be of merchantable quality. And if the tobacco, when delivered, was not well cured and in good condition, but was wet, sweaty and rotten, it was not merchantable. In legal effect therefore the agreement was the same as the law would imply, in the absence of words of express contract."

The court then applied the principle above stated, and accordingly held that as the express terms that the tobacco should be well cured and in good condition were included in the implied term of merchantable quality, in legal contemplation the contract amounted to nothing more than "the sale of a particular thing by its proper description merely," i. e., without an express term of quality (Reed v. Randall, 29 N. Y. 362 top, explained in Dounce v. Dow, 57 id. 21; Wells v. Sellwood, 61 Barb. 238, 245), and the remedy for the non-merchantable quality was therefore held not to survive acceptance.

Sprague v. Blake, 20 Wend. 61, was an executory contract for the sale of wheat, in which it was expressly stipulated that it should be "merchantable; held, no warranty; and in Cahen v. Platt, 40 Supr. Ct. 483; S. C., reversed on other grounds, 69 N. Y. 348, the goods were to be "of approved standard qualities;" held, only another expression for merchantable, and no warranty. See also Weaver v. Wisner, 51 Barb. $38; Fitch v. Corpenter, 43 id. 40.

So in Gaylord Manuf. Co. v. Allen, 53 N. Y. 515, the plaintiff contracted to manufacture castings for the defendant for a particular purpose. It was expressly stipulated that the castings were "to be suitable to the purpose designed;" held, that as "the law would imply precisely that which the defendants claim made a part of the express contract," there was no warranty, and the remedy for the breach did not survive accept

ance.

Dounce v. Dow, 57 N. Y. 16, and Gaylord Manuf. Co. v. Allen, supra, are similar in that in each case there was an express agreement that the article was to be fit for a special purpose. They are distinguishable in that the express contract in Dounce, v. Dow was one that the law would not under the circumstances of that case have implied; while in Gaylord Manuf. Co. v. Allen, the express agreement was one which, as the court held, the law did imply from the facts in that case. In Dounce v. Dow, as explained by the Supreme Court in a subsequent appeal (6 T. & C. 653; S. C., affirmed 64 N. Y. 411) a new trial was granted, because by the contract set forth in the answer, which was admitted on the trial to be the agreement of sale (57 N. Y. 20), the iron was to be "of a quality suitable and proper for use in the defendants' manufacturing business," and this the court held to be "an express agreement or warranty that it should be of that speci

« السابقةمتابعة »