seller's skill and judgment is essential to establish a warranty of provisions, the mere fact of purchase from a dealer for immediate consumption seems to have been regarded generally as sufficient evidence, but in England and Massachusetts it is held that such reliance is essential and is not to be assumed. 33 Accordingly it has been held in an elaborately considered case in Massachusetts that where the buyer at a shop selects provisions himself, the seller's warranty does not go beyond the implied assertion that the seller believes the food he is selling to be sound, and he is, therefore, not liable unless he knew that the food sold was not fit to be eaten.34 A few recent decisions also hold that a dealer who sells in good faith canned goods of a reputable brand is not liable if the contents of cans prove to be bad because he could have no means of knowing of the quality or of guarding against it.35 It is probable that no general statement that a buyer of canned goods never relies on the dealer's judgment could be sustained, and if there is reliance, 35a the fact that the seller was guilty of no negligence should be immaterial.36 A manufacturer of food products, apart from any special severe rule governing provisions, impliedly warrants food which he 33 In Bigge v. Parkinson, 7 H. & N. Ky. 181, 154 S. W. 1088, 44 L. R. A. 955, it was held that the rule in regard (N. S.) 597. to provisions was like the rule as to other goods. So in the English Sale of Goods Act there is no separate rule established for provisions, and under the general rule of section 14 (1) reliance upon the seller's skill or judgment is essential. See Wren v. Holt, [1903] 1 K. B. 610; Jackson v. Watson, [1910] 2 K. B. 193. This provision has been copied in the American Sales Act, § 15 (1). See concerning its application Flaccomio v. Eysink, 129 Md. 367, 100 Atl. 510; Gearing v. Berkson, 223 Mass. 257, 111 N. E. 785, L. R. A. 1916 D. 1006; Tomlinson v. Armour, 74 N. J. L. 274, 65 Atl. 883. See also on the general question: Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481, 15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436; Walden v. Wheeler, 153

34 Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481, 15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436. See also Gearing v. Berkson, 223 Mass. 257, 111 N. E. 785, L. R. A. 1916 D. 1006 (under Sales Act).

35 Bigelow v. Maine Central R., 110 Me. 105, 85 Atl. 396; Trafton v. Davis, 110 Me. 318, 86 Atl. 179; Julian v. Laubenberger, 16 N. Y. Misc. 646, 38 N. Y. S. 1052.

35 In Jackson v. Watson [1909] 2 K. B. 193, the jury expressly found that there was reliance.

36 See supra, § 991. The seller (a dealer) of canned goods though apparently guilty of no negligence was held liable in Jackson v. Watson, [1909] 2 K. B. 193; Sloan v. F. W. Woolworth Co., 193 Ill. App. 620.

of

sells to be free from latent defects, making it unfit for consumption.37 In jurisdictions, therefore, which follow the English law in imposing an implied warranty in sales of goods any kind by dealers in that kind of merchandise, the doctrine in regard to sales of provisions probably differs little, if at all, from the doctrine prevailing as to other kinds of goods, and the Uniform Sales Act contains no special rule concerning provisions; 38 but in jurisdictions where that statute is not in force, and where manufacturers only are held to warrant impliedly the goods which they sell, the special rule as to provisions still has importance. The rule does not extend to food for cattle.39 But the seller of such food may be liable under the principles governing implied warranties of goods other than food. 40

§ 996a. Restaurant keeper's liability.

The liability of a restaurant keeper for damages caused by bad food eaten in a restaurant has given rise to some difference of opinion. The question is sometimes supposed to depend on whether the restaurant keeper makes a sale to the customer of the injurious food. It is indeed true that if the transaction amounts to a sale the numerous authorities referred to in the preceding section establish liability. On excellent authority, however, it is held that the title to food served by an innkeeper never passes. Whether this analogy holds good in a restaurant where a customer pays not for a meal, but for a definite portion of food, may perhaps be questioned. May not one who secures and pays for a

37 Nixa Canning Co. v. LehmannHigginson Grocery Co., 70 Kan. 664, 79 Pac. 141, 70 L. R. A. 653; Copas v. Anglo-American Provision Co., 73 Mich. 541, 41 N. W. 690; Leggett v. Young, 29 N. B. 675. But a purchaser from a dealer cannot sue the canner of food on the theory of warranty. Tomlinson v. Armour, 74 N. J. L. 274, 65 Atl. 883.

38 See Gearing v. Berkson, 223 Mass. 257, 111 N. E. 785, L. R. A. 1916 D. 1006.

39 National Cotton Oil Co. v. Young, 72 Ark. 144, 85 S. W. 92; Lukens v. Freiund, 27 Kans. 664, 41 Am. Rep. 429; Dulaney v. Jones, 100 Miss. 835, 57 So. 225; F. A. Piper Co. v. Oppenheimer (Tex. Civ. App.), 158 S.W.777.

40 French v. Vining, 102 Mass. 132, 3 Am. Rep. 440; Provost v. Cook. 184 Mass. 315, 68 N. E. 336; Houk v. Berg (Tex. Civ. App.), 105 S. W. 1176.

41 See Beale, Innkeepers, § 169, and cases cited.

piece of pie at an 'automat' or luncheon spa take it from the plate and walk off with it without wrong? 42 Whether or not because the transaction has been held not to be a sale, it has generally been assumed that the liability of a restaurantkeeper is based only on willful fault or negligence, and many cases have been brought on this assumption. In most of them no contention was made by the plaintiff that the defendant was absolutely liable as a warrantor, but in a few recent cases the claim was made on behalf of the plaintiff and denied by the court. 43 The Massachusetts Supreme Court,44 and the Appellate Division of the New York Supreme Court, 45 however, have recently upheld such a claim, and with good reason. Even though the transaction is not a sale, every argument for implying a warranty in the sale of food is applicable with even greater force to the serving of food to a guest or customer at an inn or restaurant. The basis of implied warranty is justifiable reliance on the judgment or skill of the warrantor, and to charge the seller of an unopened can of food for the consequences of the inferiority of the contents of the can, and to hold free from liability a restaurant-keeper who opens the can on his premises and serves its contents to a customer, would be a strange inconsistency. A sale is not the only transaction in which a warranty may be implied. If it is admitted that the restaurant-keeper is a warrantor there should be no necessity to prove negligence on the part of the defendant even if it is alleged, since the negligence is an immaterial allegation and action on a warranty may be in tort without allegation of either scienter or negligence. 46 This has not always been observed.47

42 This distinction is suggested in Valeri v. Pullman Co., 218 Fed. 519, 520.

43 Valeri v. Pullman Co., 218 Fed. 519; Travis v. Louisville, etc., R. Co., 183 Ala. 415, 62 So. 851; Sheffer v. Willoughby, 163 Ill. 518, 45 N. E. 253, 34 L. R. A. 464, 54 Am. St. Rep. 483; Loucks v. Moreley (Cal. App.), 179 Pac. 529; Merrill v. Hodson, 88 Conn. 314, 91 Atl. 533, L. R. A. 1915 B. 481, Ann. Cas. 1916 D. 1917.

44 Friend v. Child's Dining Hall Co., 231 Mass. 65, 120 N. E. 407.

45 Leahy v. Essex Co., 164 N. Y. App. Div. 903, 148 N. Y. S. 1063; Muller v. Child's Co., 185 N. Y. App. Div. 881, 171 N. Y. S. 541; Barrington v. Hotel Astor, 184 N. Y. App. Div. 317, 171 N. Y. S. 840.

46 Shippen v. Bowen, 122 U. S. 575, 30 L. Ed. 1172, 7 Sup. Ct. Rep. 1283.

47 Thus in Massachusetts, though the restaurant-keeper has been held

§ 997. What is meant by merchantable.

The requirement when it exists that goods shall be merchantable does not require that the goods shall be of first quality or even that they shall be as good as the average of goods of the sort.48 In some cases it is indeed said that goods must be of "medium quality," "9 but this seems to go too far. On the one hand it is not enough that the article is such as would in ordinary parlance be called by the name which the buyer and seller used to describe the object of their bargain, but, on the other hand, if there is no warranty of fitness for a particular purpose the buyer cannot claim more than that the goods with their defects known shall be salable as goods of the general kind which was named in the contract, or to which the goods, if specific, were supposed to belong. 50

§ 998. Warranty not available to subpurchaser.

It is a general rule that one who has a right in contract may assign that right in effect by giving the assignee the power to enforce it in the name and stead of the assignor. There seems no reason why a warranty should be an exception to this rule; and therefore a right of action of the first buyer should be assignable to a subpurchaser.51 But however this may be it seems settled that the mere resale of a warranted

a warrantor, it has also been held that where a plaintiff alleges negligence, he must prove it. Ash v. Child's Dining Hall Co., 231 Mass. 86, 120 N. E. 396.

48 Thus in Gossler v. Eagle Sugar Refinery, 103 Mass. 331, in a sale of "Manila sugar" it was held the buyer had no cause to complain because the sugar contained a percentage of sand and was worse than the average Manila sugar. It was not, however, claimed by the buyer that the sugar was not a salable article as Manila sugar. So in Wilson v. Lawrence, 139 Mass. 318, 1 N. E. 278, a piano the case of which began to check, diminishing its value, was nevertheless treated as merchantable.

49 Howard v. Hoey, 23 Wend. 350,

35 Am. Dec. 572; Rodgers v. Niles, 11 Ohio St. 48, 78 Am. Dec. 290.

50 Wieler v. Schilizzi, 17 C. B. 619, 624; Kenney v. Grogan, 17 Cal. App. 527, 120 Pac. 433, 436. In McClung v. Kelley, 21 Iowa, 508, the principle was thus stated: "The article shall not have any remarkable defect." See also Harris v. Waite, 51 Vt. 481, 31 Am. Rep. 694.

51 It is, however, said that a warranty is not negotiable in Smith v. Williams, 117 Ga. 782, 45 S. E. 394, 97 Am. St. Rep. 220. By this statement, however, the court merely meant that a buyer of goods with a warranty could not by reselling the goods with a warranty give the subpurchaser an action for his damages against the original seller.

article does not give the subpurchaser a right to sue the original seller for damages caused him by defects either in the title or quality of the goods.52 Two reasons may be given for this result. In the first place the sale of the chattel does not indicate that the seller means to part with his right of action for damages against one who previously sold the article to him. On the contrary, it may be assumed, that if the original warranty has been broken, the original purchaser means to retain whatever right he may have.53 Another reason is that a warranty must, it seems, like an insurance policy, be construed as a contract of personal indemnity. Therefore, though one who purchased goods with a warranty might assign a right of action already accrued on the warranty he could not enlarge its scope so as to make it include the in

52 Nelson v. Armour Packing Co., 76 Ark. 352, 90 S. W. 288 (quality); Welshausen v. Charles Parker Co., 83 Conn. 231, 76 Atl. 271 (quality); Smith v. Williams, 117 Ga. 782, 45 S. E. 394, 97 Am. St. Rep. 220 (title); Prater v. Campbell, 110 Ky. 23, 60 S. W. 918 (quality); Flaccomio v. Eysink, 129 Md. 367, 100 Atl. 510 (quality); Lebourdais v. Vitrified Wheel Co., 194 Mass. 341, 80 N. E. 482; Roberts v. Anheuser-Busch Brewing Assoc., 211 Mass. 449, 98 N. E. 95 (quality); Gearing v. Berkson, 223 Mass. 257, 111 N. E. 785, L. R. A. 1916, D. 1006 (quality); Tomlinson v. Armour, 74 N. J. L. 274, 69 Atl. 883 (quality); Walrus Mfg. Co. v. McMehen, 39 Okl. 667, 136 Pac. 772 (quality), 51 L. R. A. (N. S.) 1111; Mazetti v. Armour, 75 Wash. 622, 135 Pac. 633, 48 L. R. A. (N. S.) 213 (quality). In Childs v. O'Donnell, 84 Mich. 533, 538, 47 N. W. 1108, however, the court said obiter of a warranty that it "runs with the goods; and see Richardson Machinery Co. v. Brown, 95 Kan. 685, 149 Pac. 434; Conestoga Cigar Co. v. Finke, 144 Pa. 159, 22 Atl. 868, 13 L. R. A. 438;

Trustees v. Siers, 68 W. Va. 125, 69
S. E. 468.

In Boyd v. Whitfield, 19 Ark. 447; York Mfg. Co. v. Bonnell, 24 Ind. App. 667, 57 N. E. 590, it was held that where the subpurchaser assumed payment of the price on the original sale he might recover; but in the absence of a novation to which the original seller was a party it is hard to see why assumption of the price should affect the question. Such a subpurchaser was denied recovery in Walrus Mfg. Co. v. McMehen, 39 Okl. 667, 136 Pac. 772, 51 L. R. A. (N. S.) 1111.

In Cantani v. Swift, 251 Pa. 52, 95 Atl. 931, L. R. A. 1917, B. 1272, it was held that a subpurchaser of dangerous food might maintain an action against the manufacturer on a warranty. The court relied on cases sounding in tort where the original seller was either negligent or had guilty knowledge. Neither of these elements appeared in the Pennsylvania case. See also Parks v. C. C. Yost Pie Co., 93 Kan. 334, 144 Pac. 202, L. R. A. 1915, C. 179.

53 Dukes v. Nelson, 27 Ga. 457, 463; Olson v. Hurd, 20 Idaho, 47, 116 Pac.