Wallis v Russell

• Jurisdiction: Ireland
• Judgment Date: 25 February 1902
• Date: 25 February 1902
• Court: Court of Appeal (Ireland)

Wallis

and

Russell (1).

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1902.

Sale of goods—Contract—Warranty—Food—Sale for a particular purpose—Reliance on seller’s skill or judgment—Reasonably fit for use—Latent defect—Sale of Goods Act, 1893 (56 & 57 vict c. 71), sect. 14, sub-sect, 1—Construction of Codifying Statute.

The plaintiff sent her granddaughter, Miss D., to the shop of the defendant, a fishmonger, for two crabs. Miss D. told G., the defendant's manager, that the plaintiff wanted two nice fresh crabs for her tea. G. stated that he had no live crabs, but that he could give her boiled ones. G. went to the window and took up two crabs. Miss D. pointed to another crab, and asked if he did not think it better. G. took it up and felt it, and said it was by the weight one should judge and not by the size, and put it away. Miss D. asked were they nice and fresh, and G. replied that they were. Miss D. paid for the crabs, and took them away. The defendant bona fide believed the crabs to be fresh and fit for human food. The plaintiff and Miss D. ate portions of the crabs that evening, and they both became seriously ill. In an action for damages on an express warranty, and also on a warranty to be implied under the Sale of Goods Act, 1893, the jury found that it was made known to the defendant that the crabs were required for use as human food; that the plaintiff relied on the defendant's assistant to select fresh crabs, and reasonably fit for that purpose; that the crabs were goods which it was in the course of the defendant's business to supply; and that those supplied were not fresh and reasonably fit for human food. They also found that the defendant did not expressly warrant the crabs, and found a verdict for the plaintiff for £150:—

Held, by the King's Bench Division, that the warranty implied by sub-sect. 1 of sect. 14 of the Sale of Goods Act, 1893, on a sale of goods is not confined to manufactured goods; that the purpose indicated for which the goods in the present case were required, viz. for consumption as human food, was a “particular purpose” within the meaning of the sub-section; and that the verdict in favour of the plaintiff should stand.

The principle of construction of codifying statutes considered by Palles, C.B

Held, by the Court of Appeal (affirming the decision of the King's Bench Division), that the crabs were bought for a particular purpose, made known to the seller, within sect. 14, sub-sect. 1, of the Sale of Goods Act, 1893, so as to show that the buyer relied on the seller's skill and judgment, and that thedefendant was liable for damages.

Held, by Fitz Gibbon, L. J., that the seller would have been equally liable on the evidence at common law, and under section 14, sub-section 2, of the Act.

Action for damages for breach of warranty in the sale by the defendant to the plaintiff of two crabs. On the evening of the 24th July, about 5.30 o'clock, the plaintiff, a lady residing in Cork, sent her granddaughter, Miss Donovan, to the shop of the defendant, a fishmonger in Cork, for two crabs. Gemmell, an assistant of the defendant, who served her, said that he had no live crabs, but that he could give her boiled ones. She agreed to take them, and stated that the plaintiff sent her down for two nice fresh crabs, which she wanted for her tea. Gemmell went to the window and took up two crabs; she pointed to another and said, “Don't you think that is a better crab?” Gemmell took it up, felt it, and said it was by the weight one should judge and not by the size; he put it away. Miss Donovan asked him, “Were they nice and fresh,” and he said, “Yes.” She then paid the price, 6d., and went home. Miss Donovan, in her evidence at the trial, stated that she relied altogether on Gemmell's judgment.

The plaintiff, her granddaughter, and the servant ate portions of the crabs without noticing anything wrong. That evening the plaintiff suffered from spasms and cramps, and that night, and for several days, she was dangerously ill. She was confined to her room for five weeks, and the medical evidence showed that she suffered from poisoning. Miss Donovan was also seriously ill for some weeks; during some portion of the time her life was in danger.

The defendant, Thomas Russell, a fishmonger in Cork, deposed that a man named Beamish supplied him with crabs from Tragumna Bay, in the county of Cork. On Monday, the 23rd July, he received a consignment of five dozen and four crabs from Beamish; the goods generally arrived between three and four o'clock in the afternoon. His custom was to boil some and sell others alive. The crabs were boiled in the shop, and the practice was, immediately before boiling, to kill the crab by piercing it with a needle, and then it was boiled for twenty or thirty minutes. He had received no complaints from anyone except the plaintiff, though he had traced the sale of twenty-six of the crabs, and had got the names of the persons to whom he had sold them. He had got the crabs fresh, and honestly believed they were fit for food.

Beamish stated that the crabs were all caught on the previous day, or on Saturday. They were kept in a floating cradle in the sea until they were despatched, and they were all alive on Monday morning, when he sent them to Cork. Tragumna Bay was a large bay with a sandy bottom, varying in depth from four to eight fathoms in the inner portion to fourteen fathoms in the outside; there was no stream or sewage running into the bay.

Gemmell, the defendant's manager, stated that three dozen of the consignment of crabs were killed and boiled, and the rest were sold alive. When Miss Donovan came to the shop on Tuesday evening all the live crabs had been sold. If there was anything wrong with the crabs he would have detected it by the weight and feel of them, and the two he sold to her were, so far as he could see, fit and proper.

Several witnesses were examined, without objection, to prove that they bought and ate some of the same consignment of crabs without suffering any bad effect.

Bushe, K. C., for the defendant, asked for a direction on the ground that there was no implied warranty.

Lord O'Brien, L.C.J., left the following questions to the jury:—

1. Was it made known to the defendant's assistant that the crabs were required for use as human food? Answer—Yes.

2. Did the plaintiff through Miss Donovan rely on the defendant's assistant to select fresh and reasonably fit crabs for that purpose? Answer—Yes.

3. Were crabs goods which it is in the course of defendant's business to supply? Answer—Yes.

4. Were the crabs supplied fresh and reasonably fit for use? Answer—No.

5. Did the plaintiff by eating said crabs suffer the illness and injuries complained of? Answer—Yes.

6. Did the defendant expressly warrant the crabs were fresh and good? Answer—No.

7. Had the plaintiff through her agent a reasonable opportunity of examining the crabs at time of sale? Answer—Yes.

8. Did the defendant honestly believe the crabs were fresh and fit for food? Answer—Yes.

The jury found for the plaintiff with £150 damages, and his Lordship gave judgment for the plaintiff.

The defendant moved in the King's Bench to set aside the judgment and verdict, and that judgment should be entered for him.

The Right Hon. The Macdermot, K.C., and Campbell, K.C. (with them D. M'C. Mahony), for the defendant:—

The plaintiff relies on sub-section 1 of section 14 of the Sale of Goods Act, 1893; that sub-section applies only where the purpose made known to the seller is a particular purpose, that is to say where an article is capable of being applied to several purposes and the buyer states that he wants it for one of these purposes. The purpose in the present case, viz. for use as human food, is a general as distinct from a particular purpose. The sub section does not apply to the sale of a specific article: in such case the rule is caveat emptor. A specific article is to be distinguished from a specified article. The sub-section applies only to manufactured goods, otherwise the words “whether he be the manufacturer or not” are meaningless. The Legislature could never have intended that on every sale of an article intended for the food of man or beast there should be an implied warranty by the seller that it was free from any defect known or unknown to him.

Ronan, K.C., and Brereton Barry, K.C. (with them Matthew J. Bourke, K.C., and R. M. Hennessy), for the plaintiff:—

The Sale of Goods Act is a codifying statute; it must therefore be construed according to its natural meaning, uninfluenced by any considerations to be derived from the previous state of the law. The present case comes exactly within the words of section 14, sub-section 1. Use for human food is a particular purpose.

The definitions of “goods” in section 62 and of “contract of sale” in section 1 show that the implied warranty cannot be confined to manufactured goods.

[The following authorities were referred to:—Emmerton v. Mathews (1); Smith v. Baker (2); Randall v. Newson (3); Jones v. Just (4); Bigge v. Parkinson (5); Wilson v. Dunville (6); Burrows v. Smith (7); Ward v. Hobbs (8); Bank of England v. Vagliano Brothers (9); Gillespie v. Cheney (10); Chanter v. Hopkins (11); Burnby v. Bollett (12); Beer v. Walker (13); Benjamin on Sales, 4th Ed. pp. 658, 659, 672.]

Cur. adv. vult.

The Right Hon. The Macdermot, K.C., and Campbell, K.C. (with them M'C. Mahony), for the defendant:—

Ronan, K.C., and Brereton Barry, K.C. (with them Matthew J. Bourke, K.C., and R. M. Hennessy), for the plaintiff:—

Palles, C.B.:—

The question for decision in this case is stated to be a novel one; and certainly it is one of great interest and importance. In deciding it I wish to put some matters out of consideration, in order to reduce the question to that which I conceive is the net one. I...