Divine v. McCormick
New York Supreme Court
HIS action was originally commenced before a justice of the peace. The complaint alleged that the defendant, in September, 1863, wrongfully and wilfully sold to the plaintiff a heifer, three or four years old, as provisions, to be killed and used for beef, for which the plaintiff paid him the sum of $14.33 ; that at the time of such sale said heifer was diseased and unfit to kill for beef, and was unwholesome and diseased provisions, and entirely worthless.
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HIS action was originally commenced before a justice of the peace. The complaint alleged that the defendant, in September, 1863, wrongfully and wilfully sold to the plaintiff a heifer, three or four years old, as provisions, to be killed and used for beef, for which the plaintiff paid him the sum of $14.33 ; that at the time of such sale said heifer was diseased and unfit to kill for beef, and was unwholesome and diseased provisions, and entirely worthless. The answer was a general denial of the complaint. Upon the trial, evidence was given showing that in September, 1863¿ the plaintiff…
1Opinion of the Court
By the Court,
Hogeboom, J.
I do not share in the apprehension expressed by Justice Bronson in Moses v. Mead (1 Denio, 386,).lest a new inroad should be made upon the doctrine of “caveat ©motor,” by implying, a warranty of *118soundness on the sale of provisions ; nor concur in the statement made by him in the same case, (p. 388,) that “ where provisions are not sold for immediate consumption, there is no more reason for implying a warranty of soundness than there is in relation to sales of other articles of merchandize.” On the contrary, I am of opinion that sound policy and a proper regard to the…
2Cases cited2 opinions
- Moses v. MeadCourt for the Trial of Impeachments and Correction of Errors · 1845
- Adams v. FreemanNew York Supreme Court · 1815
3Cited by10 opinions
- Jacob E. Decker & Sons, Inc. v. CappsTexas Supreme Court · 1942
- Race v. . KrumNew York Court of Appeals · 1918
- Fairbank Canning Co. v. . MetzgerNew York Court of Appeals · 1890
- Wiedeman v. KellerIllinois Supreme Court · 1897
- Hargous v. . StoneNew York Court of Appeals · 1851
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