different from the duty to respond for breach of warranty. The failure to observe this distinction accounts in the main for the confusion in the cases. Not only is the manufacturer of food products under the duty of using care, but the modern tendency seems to be in favor of making him absolutely liable regardless of the degree of care. The difficulty is to ascertain from the cases upon what ground this absolute liability is put. Obviously it could be put on one of three possible grounds. The consumer might be allowed to recover on an implied warranty of wholesomeness. Or recovery could be put on the theory of negligence by requiring a degree of care so high as to closely approximate absolute liability. Finally, it might be held that the manufacturer is under an absolute liability on grounds of public policy, regardless of negligence or implied warranty. It may not be too unreasonable to suggest that this latter ground is consciously or unconsciously the motivating force in the decisions. The reasons actually given and the language actually used, however, point to the other two, and the second seems to be preferred.10 The Court of Appeals undoubtedly follows the majority of jurisdictions in denying recovery on an implied warranty." The prevailing view is well stated by the Connecticut Supreme Court, as follows: "To sustain a finding that there was a breach of warranty, express or implied, there must have been evidence of a contract between the parties, for without a contract there could be no warranty."2 Several food cases in the past few years, however, allow recovery to the consumer against the manufacturer, either on the ground of implied warranty or mention it by way of dictum or argument.13 The departure is sustainable on the ground collection of cases in 29 Cyc. p. 481. Or if the article is in its very nature imminently dangerous. Thomas v. Winchester, 6 N. Y. 397 (1852); collection of cases, 24 R. Č. L. p. 512, n. 19. The courts have given this latter exception a broad interpretation. Devlin v. Smith, 89 N. Y. 470 (1882), holding a scaffold to be inherently dangerous; a siphon bottle, Torgeson v. Schultz, 192 N. Y. 156 (1908). The latest exception is to hold the manufacturer liable with respect to articles not inherently dangerous but dangerous because of faulty construction. This exception obviously goes far towards exhausting the rule itself. MacPherson v. Buick Motor Co., 217 N. Y. 382 (1916); Coakley v. Prentiss-Wabers Co., 195 N.W. (Wis.) 388 (1923). 9 CORNELL LAW QUARTERLY 494 (June 1924). The food cases can be held to come under this or the second exception. Perkins, Unwholesome Food as a Source of Liability, 5la. L. Bul. 6, 88-92. Perkins, Unwholesome Food as a Source of Liability, supra, n. 8, at p. 95. 10Watson v. Augusta Brewing Co., 124 Ga. 121 (1905); Parks v. Pie Co., 93 Kan. 334 (1914); Pillars v. Reynolds Tobacco Co., 117 Miss. 490 (1918); Rosenbusch v. Ambrosia Milk Corp., 168 N. Y. Supp. 505 (1917); Crigger v. Cocoa Cola Works, 132 Tenn. 545 (1915); Mazetti v. Armour & Co., 75 Wash. 622 (1913). "Birmingham Chero-Cola Co., v. Clark, 205 Ala. 678 (1921); Nelson v. Armour Packing Co., 76 Ark. 352 (1995); Welshausen v. Parker Co., 83 Conn. 231 (1910); Smith v. Williams, 117 Ga., 782 (1903); Prater v. Campbell, 110 Ky. 23 (1901); Roberts v. Anheuser Co., 211 Mass. 449, 451 (1912); Tomlinson v. Armour & Co., supra, n. 6; Williston on Sales, p. 327. 12 Welshausen v. Parker Co., supra, n. 11, at p. 233. 13 The difficulty is to find the exact basis of the holdings. In the following cases the decision is expressly put on implied warranty, Dothan Co. v. Weeks, 16 Ala. App. 623 (1918); Davis v. Van Camp Packing Co., 189 2 775 (1920); Bottling Co. v. Chapman, 106 Miss. 864 (1914). The following cases seem to hold the kara 15 that the implied warranty in food depends on the law's high regard for human life and not on contract. This was certainly the prevailing American view before the Sales Act.14 Whether the special warranty of wholesomeness, apart from a warranty of fitness for purpose, survived the Act, is in doubt. It is not covered by the Act,16 and the Court of Appeals in New York has apparently held that it did not. survive.17 The court, therefore, could not consistently hold that because the implied warranty in the case of food depended on public policy and not on contract, the consumer could recover under it regardless of contract. 16 Some courts talk of implied warranty and negligence as complimentary.18 The leading case of Parks v. Pie Co.,19 illustrates the confusion which results. There the court talks of implied warranty, says that the manufacturer is under a duty of care and then concludes: "Practically, he must know it is fit or take the consequences if it proves destructive."20 Obviously, the court confounds three independent bases of recovery. The process of reasoning involved is not, however, peculiar to the food cases. It seems to be a popular mode of formally attempting to reconcile absolute liability with established theories of liability only on the basis of intention or fault." The conception of warranty as arising from contract may be too firmly entrenched to be easily changed. On the other hand, it seems sophistry to hold that recovery is predicated on negligence and then impose what is in effect liability without negligence.22 The most logical theory of recovery is to recognize frankly that there is an absolute duty on the manufacturer not to send out unwholesome and therefore dangerous food.23 The "incidence of risk'24 should be on him from social considerations. Liability without fault has ceased to be a heretical doctrine. The Court of Appeals would have met with no difficulty if it had sought to put recovery on this ground. It did when it considered only the plaintiff's theory of implied warranty. It is obvious that the food cases, where special considerations alsame, except that they seem also to require negligence in some form to be shown. The requirement seems formal only. Parks v. Pie Co., supra, n. 10; Ward v. Sea Food Co., 171 N. C. 33 (1916); Catani v. Swift & Co., 251 Pa. 52 (1915); Mazetti v. Armour & Co., supra, n. 10. 14Race v. Krum, 222 N. Y. 410, 415 (1910). “This rule is based upon the high regard which the law has for human life.' Collection of cases, Perkins, Unwholesome Food as a Source of Liability, supra, n. 8, at p. 14, n. 52, 53. 15Sec. 96, Per. Prop.Law. 16 Idem. 17Rinaldi v. Mohican Co., supra, n. I. 18 Supra, n. 13. 19 Supra, n. 10. 20At p. 337. 21 Pound, An Introduction to the Philosophy of Law, p. 179–186. 22Idem, p. 180-186. 23"Looked at in this way, the ultimate basis of delictual liability is the social interest in the general security. This interest is threatened or infringed in three ways: *** (3) failure to restrain potentially dangerous things which one maintains or potentially dangerous agencies which one employs." Idem, p. 177. 24Patterson, The Apportionment of Business Risks, 24 Col. L. Rev. 335, 357 (April, 1924). ready mentioned obtain, will aid little in a consideration of the problem raised in the Chysky case from the general law of warranty. This may best be done by putting the reasoning of the court in syllogistic form. There must be privity of contracts to sustain recovery on an implied warranty. There is no privity between manufacturer and consumer. Therefore, the consumer cannot recover on an implied warranty. The minor premise is at least doubtful. It might be suggested that the consumer should be allowed to recover on the Lawrence v. Fox doctrine,25 as the real beneficiary of the manufacturer's contract with the retailer. But why not hold that there is a direct contractual relation between the manufacturer and consumer? The manufacturer offers that if the consumer will buy his product, he will be protected by the manufacturer's promise of fitness for purpose, at least, and perhaps merchantability. Does not the manufacturer say in effect to the consumer: "I will stand back of the product which I manufacture and you buy?" There is consideration even in the common sense of the term. The consumer pays the retailer, but the manufacturer gains through increased sales. Legally, the buyer changes his position in reliance on the offer. The major premise, that the basis of warranty is contract, is even more doubtful. It is certainly unsound historically. The law of warranty is older by a century than contract.26 The action on a warranty sounded in tort and was regarded as an action in the nature of deceit.27 In the earliest case on the subject, the defendant objected that the action was in the nature of covenant and that the plaintiff showed no specialty, but "non allocatur, for it is a writ of trespass."28 The first reported case, allowing assumpsit for breach of warranty, is not found until near the close of the eighteenth century.2 The reason for employing this new action was probably that it was more convenient to add the money counts.30 Nor has the action for breach of warranty like assumpsit lost all trace of its tortious origin. Even now recovery is generally allowed in tort and a scienter need neither be alleged nor proved.31 Even when the form of action is assumpsit, defendant cannot successfully maintain that he did not intend to assume contractual liability.32 The common law conception was that the warrantor was liable because he made a representation of fact relied on by the buyer to his damage.33 In other words, the basis of recovery is justifiable re 2520 N. Y. 268 (1859). 26 Williston on Sales, p. 245. 27"Notwithstanding the undertaking, this action also was, in its origin, a pure action of tort." Ames, History of Assumpsit, 2 Har. L. Rev. 1, 8. 28 Fitz. Ab. Monst. de Faits, p. 160 (1383). 29Stuart v. Wilkins, 1 Dougl. (Eng.) 18 (1778). 30 Williamson v. Allison, 2 East. (Eng.) 445, 450 (1802). 31Shippen v. Bowen, 122 U. S. 575 (1887), Hillman v. Wilcox, 30 Me. 170 (1849); Farrell v. Manhattan Market Co., 198 Mass. 271 (1908); Williston on Sales, p. 251, and collection of cases on p. 252, n. 89. 32McClintock v. Emick, 87 Ky. 160 (1888); Hawkins v. Pemberton, 51 N. Y. 198 (1872); Ingraham v. Union Ry Co., 19 R. I. 356 (1896); collection of cases, Williston on Sales, p. 256-259, notes 98, 99. 33 Williston, Progress of the Law, 1919-1920, 34 Har. L. Rev. 761, 762. liance.34 It is essentially the action of deceit without the scienter. It is well settled that the representation in the action of deceit may be made to a class, even though it is formally made to one not a member of the class, when the person making it knows or has reason to know that it will be communicated to the class.35 Does not the manufacturer of goods, who knows that those who buy will use in a certain way, represent those things included under the head of implied warranty? It seems much more reasonable to hold that the representation is made to the consumer, who is touse, than to the retailer, who is to sell. There is nothing radically unjust in this view. The consumer can now recover from the retailer and the retailer from the manufacturer.36 The risk of loss will ultimately fall on the latter anyway. The rule suggested would cut down the number of actions without unduly straining legal theory. Practical difficulties may suggest themselves, but not if the rule be applied logically. Special warranties made to the retailer by the manufacturer would not come within it, because not relied on by the consumer. The rule would probably cover all implied warranties. One thing, at least, is certain. The contractual theory of warranty is not so firmly imbedded in the law as to prove an insurmountable obstacle to recovery. The Chysky case is not in line with the modern tendency of imposing absolute liability on manufacturers of food regardless of contract. It is unfortunate, also, in not giving attention to the tort origin of warranty, which would likewise have provided a proper basis for recovery. A. E. Gold. Torts: Negligence: Automobiles: Rights of a party operating an automobile in violence of a statute requiring registration.-In Washburn v. Union Freight R. Co., 142 N. E., (Mass.), 79 (1924), the plaintiff's automobile was damaged while being operated on a public highway in Boston. Because of traffic congestion, the automobile had been forced to stop and, while standing, was struck by one of the defendant's freight cars which was being shunted along a track in the street. It was admitted that the negligence of the defendant caused the accident, but the plaintiff was held to be without redress because the car was on the highway in violation of an express statute prohibiting the driving of an unregistered car. In accord with the well established Massachusetts doctrine, it was held that the automobile and passengers were trespassers on the highway and could not recover for simple negligence but only for wanton and wilful injuries. The jury found that in this case the defendant was merely negligent, and so no recovery was allowed. 34 Williston on Sales, p. 253. 35Leonard v. Springer, 197 Ill. 532 (1902); Baker v. Hallam, 103 Ia. 43 (1897); Tindle v. Birkett, 171 N. Y. 520 (1902). 36Even though the retailer has not been forced to respond to the consumer. Buckbee v. Hohenadel Co., 224 Fed. 14 (1915); Muller v. Eno, 14 N. Y. 597 (1856). Two possible theories present themselves for holding that the 6 'That the violation of a statute is negligence per se. Fenn v. Clark, 11 Cal. That the violation of a statute is merely evidence of negligence. Bourne v. 2Hemming v. City of New Haven, 82 Conn. 661 (1910); Lindsay v. Checchi, 3Supra, n. 2. Supra, n. 2. 7Shimoda v. Bundy, 24 Cal. App. 675 (1914); Crosson v. Chicago Co., 158 |