CHAPTER IX. CONTRACTS OF DRUGGIST AND PHARMACIST. It is not intended to deal here with the ordinary simple contracts into which the druggist as a business man may voluntarily enter. In regard to such agreements his obligations will, of course, be the same as those of other business men, and his responsibilities will be gauged by the general rules applicable to such relations. There are certain peculiar obligations, however, of the nature of implied contracts, that rest upon the modern druggist, in his twofold capacity of dealer in drugs and practitioner of pharmacy, and it is these which now claim our attention. In a former chapter we have given a brief outline of the history and development of pharmacy. It is there shown that the modern drug business is, in a sense, an offshoot of the grocery business, and that as late as the seventeenth century, in England, these two now distinct branches of commerce were one, and carried on by the guild of grocers. These dealers in provisions were held to an implied warranty that all articles sold by them for domestic use were sound and wholesome, and the same rule is held to apply in this age and in this country, at least to the extent of the purchase price of the goods.1 When, in the year 1615, Parliament passed the act by which the apothecaries or druggists were separated from the grocers and established as a distinct guild or corporation, the same legal status attended the apothecary as that which defined his operations as a grocer. He was bound by the same obligation of warranty as to the quality of the articles sold by him. Indeed, it may be said that the stringency of the rule in its application to cases has increased rather than diminished, with the advancement of the druggist's standing and opportunities in modern times. However, the force of this rule of law which lays upon the dealer in drugs this extraordinary responsibility as to the quality of the goods sold by him is not merely historical; for the fact is that the reason of the rule exists with greater significance in the case of the druggist than in the case of the grocer, from whom he may be said to have descended. The rule of general application in the sale and purchase of goods is "caveat emptor," which warns the purchaser of any specific article that he must see to it that the thing purchased by him 1 Fleet v. Hollenkemp, 13 B. Mon. 219, 56 Am. Dec. 563; Van Bracklin v. Fonda, 12 Johns 468, 7 Am. Dec. 339, 3 Bla. Com. 165; Hyland v. Sherman, 2 E. D. Smith 234; Wright v. Hart, 18 Wend. 449; Burch v. Spencer, 15 Hun. 504; Miller v. Scherder, 2 N. Y. 267; Hoover v. Peters, 18 Mich. 51; Ely v. O'Leary, 2 E. D. Smith 261; McNaughten v. oy, 1 Weekly Notes Cas. 470. is such as he wants. Under this rule, in the absence of fraud or misrepresentation on the part of the seller, if the buyer does not secure the quality or kind of goods that he intended to purchase, the law will not hold the seller liable. The above rule applies where the sale is on inspection, and the knowledge possessed by the vendee is equal to that of the vendor. It has even been held to apply in a case where goods had been ordered from the seller and the purchaser had not seen them until after delivery, on the theory that in such a case the vendee constitutes the vendor his agent to select the goods for him, and the former is bound only to the fair exercise of his judgment in making the selection.2 Nor is the purchaser relieved from the force of this rule when buying goods that are packed; as paint sold in kegs, crockery in crates1, flour in barrels, hemp in bales, tobacco in kegs, molasses in barrels. The rule as applied to flour and molasses in these examples might seem to be opposed to the rule of guaranty which prevails in the case of provisions; but it must be remembered that the latter rule is applicable only to 1 Lord v. Grow, 39 Pa. St. 88, 80 Am. Dec. 504. 3 Holden v. Dakin, 4 Johns 421. 4 Thompson v. Ashton, 14 Johns 316. 5 Hart v. Wright, 17 Wend. 267. 6 Salisbury v. Stainer, 19 Wend. 159, 32 Am. Dec. 437. 7 Hyatt v. Boyle, 5 Gill. and J. 110, 25 Am. Dec. 276. 8 Humphreys v. Comline, 8 Blackf. 516. provisions sold "for domestic use" and cannot be invoked where such articles are bought in the way of merchandise to be sold again.1 Such is the common law doctrine of "caveat emptor," and the above instances will serve to show some of the legal and reasonable limits of its applications. In the case of the druggist, however, the rule may be said to be reversed and the civil law doctrine of "caveat venditor," which warns the seller instead of the purchaser to beware, is is applied upon equally reasonable grounds. In rendering a decision in a leading American case, the Court said, “As applicable to the owners of drug stores, or persons engaged in vending dangerous medicines by retail, the legal maxim should be reversed. Instead of "caveat emptor," it should be "caveat venditor." That is to say, let him be certain that he does not sell to a purchaser, or send to a patient, one drug for another, as arsenic for calomel, cantharides for, or mixed with, snakeroot and Peruvian bark, or even one innocent drug, calculated to produce a certain effect, in place of another sent for, and designed to produce a different effect." The druggist is held not only to the common law guaranty, applicable to grocers, that the article sold by him is wholesome, but he is also Ideemed to warrant that it is the identical substance asked for by the purchaser. The reason 1 Emerson v. Brigham, 10 Mass. 197, 6 Am. Dec. 109. of this rule was clearly stated by the Court in a Texas case on appeal from the district court of Galveston County. In this case Judge Watts said, "It is claimed that in the sale of chattels, where the purchaser has an opportunity to examine before the purchase is made, that the common law rule of 'caveat emptor' applies without exception. As a general rule the doctrine does apply in the purchase of chattels, when an opportunity for examination by the purchaser is shown. But when, from the nature of the article, or the peculiar character of the business in which the same is being sold, it is shown that an examination would not avail the purchaser anything, it might constitute an exception to the general rule, dependent upon the circumstances of each particular case. The appellee was engaged in the business of druggist, holding himself out to the public as one having the peculiar learning and skill necessary to a safe and proper conducting of the business. The general customer is not supposed to be skilled in the matter, and, as represented in this case, does not know one drug from another; but in the purchase of drugs, the customer must rely upon the druggist to furnish the article called for; and in this particular business, the customer who has not the experience and learning necessary to a proper vending of drugs would not be held to the rule that they must examine for themselves. It would be but |