prohibiting and punishing as an offense the manufacture or sale of any article of food, if itself be injurious, or if it contains any ingredient injurious to health, makes a manufacturer liable to a person who purchases from a retail dealer. In such an instance the fact that the manufacturer of food did not know it was impure does not affect the question of his liability to one injured in using it; for he was bound to know whether the article which he sold was wholesome and complied with the statute. In the sale of food, unless there be an express understanding otherwise, there is an implied warranty that the food sold is fit to be used as food, and if it is not the vendor is liable for the breach of implied warranty.

§ 647. Implied Warranty in Sale of Food.

There is an implied warranty in the case of a sale of articles of food to be consumed directly in domestic uses, that they are sound and wholesome and fit for consumption.1

5 Meshbesher v. Channellene Oil & Mfg. Co., 107 Minn. 104, 119 N. W. 428, 131 Am. St. 441 (Impure sweet oil for cooking purposes.)

6 Sinclair v. Hathaway, 57 Mich. 60, 23 N. W. 459, 58 Am. So. 327; Copas v. Anglo-American Provision Co., 73 Mich. 541, 41 N. W. 690; Craft v. Parker, 96 Mich. 245, 55 N. W. 812, 21 L. R. A. 139; Hover v. Peter, 18 Mich. 51.

1 Winsor v. Lombard, 18 Pick. 61; French v. Vining, 102 Mass. 132, 3 Am. Rep. 440; Howard v. Emerson, 110 Mass. 320, 14 Am. Rep. 608; Burch v. Spenser, 15 Hun 504; Divine v. McCormick, 50 Barb. 116; Hyland v. Sherman, 2 E. D. Smith 234; Hart v. Wright, 17 Wend. 267: Hoe v. Sanborn, 21 N. Y. 552, 78 Am. Dec. 163: Moses v. Mead, 1 Denio 378, 43 Am. Dec. 673; Van Bracklin v. Fonda, 12 Johns. 468, 7 Am. Dec.

339; Hoover v. Peters, 18 Mich. 51; Humphreys v. Comline, 8 Blackf. 516; Withams v. Slaughter, 3 Wis. 347; Copas v. Anglo-American Provision Co., 73 Mich. 541, 41 N. W. 690; Getty v. Rountree, 2 Pinney 379, 2 Chand. 28, 54 Am. Dec. 138; Moore v. McKinley, 5 Cal. 471; Jones v. Murray, 3 T. B. Mon. 83; Osgood v. Lewis, 2 Harr. & G. 495, 18 Am. Dec. 317; McNaughton v. Joy, 1 W. N. C. 470; Ryder v. Neitge, 21 Minn. 70; Sinclair v. Hathaway, 57 Mich. 80, 58 Am. Rep. 327; Lukens v. Freund. 27 Kan. 664, 41 Am. Rep. 429; Goad v. Johnson, 6 Heisk. 340; Beer v. Walker, 46 L. J. C. P. 677; Emmerton v. Mathews, 7 H. & N. 586; Smith v. Baker, 40 L. T. (N. S.) 261; Clarke v. Stancliffe, 7 Exch. 439; Burnby v. Rollitt, 16 Mees. & Wels. 644.

Warranty of fitness is implied from the payment of a sound price. Usually purchases of food are made in reliance upon the supposed skill of the seller. In one case there was some evidence that the defendant knew the animal to be diseased before it was slaughtered, and the court held that when he sold it for domestic use he was bound at his peril to know that the meat was sound and wholesome.* In another instance buyers and packers of pork for shipment to markets for food, purchased a hog from the defendant who knew it to be boar meat unfit for food, that it was intended to be used for food, and not for manufacture into grease or tallow, and he concealed and denied the facts, the court held there was an implied warranty of fitness for food. Where the defendant sold a heifer, he at the time knowing it to be for immediate consumption, and knowing or having reason to suspect that it was diseased and unwholesome, it was held. that he was bound to make his knowledge of its condition known to the purchaser, even though the disease was not externally visible. A baker sold bread at a discount to a peddler, for sale, not as a wholesale dealer but as a mere middleman and acting as his agent in his employ, and it was held that he impliedly warranted the wholesomeness of his bread.' Where meats were purchased from a wholesale dealer and manufacturer without an opportunity for inspection, and packed by a process unknown to the purchaser, it was held that there was an implied warranty of their fitness for food. In a few cases, however, it has been denied that anything can be inferred from a sale of provisions, which may not be inferred from a like purpose in other cases.9

2 Van Bracklin V. Fonda, 12 Johns. 468, 7 Am. Dec. 339; Hart v. Wright, 17 Wend. 267; Gray v. Cox, 6 Dowl. & R. 200, 8 Dowl. & R. 220.

3 French v. Vining, 102 Mass. 132, 3 Am. Rep. 440.

4 Van Bracklin V. Fonda, 12 -Johns. 468, 7 Am. Dec. 339.

5 Burch v. Spencer, 15 Hun 504. • Divine v. McCormick, 50 Barb.

116; Good v. Johnson, 6 Heisk. 340.

7 Sinclair v. Hathaway, 57 Mich. 60, 58 Am. Rep. 327.

8 Copas v. Anglo-American Provision Co., 73 Mich. 541, 41 N. W. 690; Tomlinson v. Armour & Co., 75 N. J. L. 748, 70 Atl. 314, 19 L. R. A. (N. S.) 923.

9 Wright v. Hart, 18 Wend. 464; Emerson v. Brigham, 10 Mass. 197; Winsor v. Lombard, 18 Pick. 57.

11

When we come to an instance of a sale between dealers, as where food is sold as merchandise and not as provisions for consumption by the purchaser, a different rule prevails, the courts holding that there is not, in the absence of fraud, any implied warranty of fitness.10 Thus where a farmer killed a hog and sold it with a knowledge that it was to be used for food, it was held that there was no implied warranty as to fitness for human food, the sale not being made by common dealers or marketmen, and only a casual one without any guilty knowledge of the defect. So in a sale of molasses in barrels at the market price to a grocer to retail. where the quality of the molasses was not examined the barrels being present at the sale-it was held there was no implied warranty that such molasses was fit for the purpose for which it was purchased.12 The same ruling was made with reference to barrels of beef sold on the market to dealers, there being no affirmative warranty concerning their condition.13 Where a drover took his cattle to market and sold them to a butcher, it was held that no implied warranty was raised in the absence of misrepresentation, concealment or knowledge that they were injured. A stronger case this: Hogs were purchased by a dealer to be used in his meat market. He examined them and found they were not in the best condition, the owner stating, however, they were healthy as

10 Howard v. Emerson, 110 Mass. 320, 14 Am. Rep. 608; Emerson v. Brigham, 10 Mass. 197; Winsor v. Lombard, 18 Pick. 61; Hart V. Wright, 17 Wend. 267; Wright v. Hart, 18 Wend. 449; Moses V. Mead, 1 Denio 378, 43 Am. Dec. 673; Burnby v. Rollitt, 16 Mees. & Wils. 644; Giroux v. Stedman, 145 Mass. 439, 14 N. E. 538, 1 Am. St. 472; Rinschler v. Jeliffe, 9 Daly 469; Goldrich v. Ryan, 3 E. D. Smith, 324; Miller v. Scherder, 2 N. Y. 262; Ryder v. Neitge, 21 Minn. 70; Mattoon v. Rice, 102 Mass. 236; Hyland v. Sherman, 2

14

E. D. Smith 234; Goad v. Johnson, 6 Heisk. 340; Jones v. Murray, 3 T. B. Mon. 83; Fairbank Canning Co. v. Metzger, 43 Hun 71; Emmerton v. Mathews, 7 H. & N. 586; Smith v. Baker, 40 L. T. (N. S.) 261.

11 Giroux v. Stedman, 145 Mass. 439, 14 N. E. 538, 1 Am. St. 472.

12 Humphreys V. Comline, 8 Blackf. 516. See also McRoy v. Wright, 25 Ind. 22.

13 Emerson v. Bingham, 10 Mass.

far as he knew. The hogs had no perceptible disease. The hogs, having died from cholera and become worthless by disease existing at the time of the purchase, the court held that there was no implied warranty of their fitness for slaughter. 15 There is no implied warranty where no representations are made and the purchaser has full opportunity to make an examination, whether he makes the examination or not.16 Thus where rabbits were sold and shipped to a dealer which were found on arrival to be putrid, it was held that there was no implied warranty that they would be in a merchantable condition and fit for consumption within a reasonable time after reaching the purchaser, in the absence of anything exceptional in the transit.17 But where there was a contract to purchase all the liquor consumed upon certain premises from one party, it was held that the law implied a warranty on the part of the seller that it should be fit to drink.18

$648. Eating Unwholesome Food in a Restaurant-Proof of Negligence.

If a person goes into a public restaurant and eats unwholesome food, not knowing it to be such, he must, in order to recover damages from the person keeping the restaurant, establish carelessness or negligence on his part. His liability is not that of an innkeeper in protecting his guest from theft. In such an instance proof of the fact of eating the food and of consequent sickness is not sufficient to make a prima facie case in his favor against the restaurant keeper, nor to shift the burden on the latter to establish due care. "Plaintiff claims that, having proved that she ate the oyster broth at defendant's restaurant, and in consequence became sick, her case is made out, at least the burden of proof is shifted on the defendants. If this rule was adopted, the plaintiff would

15 Needham v. Dial, 4 Tex. Civ. App. 141, 23 S. W. 240.

16 Rinschler v. Jelliffe, 9 Daly 469.

17 Beer v. Walker, 46 L. J. C. P. 677.

18 Clarke v. Stancliffe, 7 Exch. 439; Burnby v. Rollitt, 16 Mees. &. W. 644.

be relieved from proving the most important element of her declaration, the negligence of the defendants, which is really the foundation of the action. This would, in effect, make the restaurant keeper an insurer. Such a rule is not correct in principle, nor has it been sustained, so far as we are advised, by any respectable authority.""

§ 649.

Vendor having Knowledge of Unwholesomeness of

Food.

If the vendor has knowledge that the food he is selling is unwholesome, then he is liable for all the ill consequences of his Act, unless the purchaser also knew it was such. Such was held to be the case where a vendor sold a quarter of beef as sound, when it was bad and unwholesome, and he knew when he sold it the beef was diseased.1 But where a farmer killed and sold a hog for provisions to be used by the purchaser it was held that he did not impliedly warrant the hog was fit for food, he making no representations, though some of his hogs were diseased with hog cholera.2

§ 650. Sale of Food under False Description.

A person who knowingly sells food under a false description may be guilty of obtaining money under false pretenses.1

§ 651. Unwholesome Supply of Water.

Where a water company drew water from a river which was infected in its course through a town in which there was typhoid fever, the company being ignorant of the disease, and the river banks had recently been inspected by the

1 Sheffer v. Willoughby, 163 Ill. 518, 45 N. E. 253, 34 L. R. A. 464, 54 Am. St. 486. But see the first authorities cited in § 646.

12

1 Van Bracklin V. Fonda, Johns. 467, 7 Am. Dec. 339; Peckham v. Holman, 11 Pick. 384.

2 Giroux v. Steadman, 145 Mass.

439, 14 N. E. 538, 1 Am. St. 472. The court attempts to distinguish this case from Van Bracklin v. Fonda, supra, although the facts are quite similar.

1 Regina v. Foster, 2 Q. B. Div. 301, 41 J. P. 295.