J. S. Farren & Co. v. Dameron & Bailey

Boyd, J, delivered the opinion of the Court. The appellees were shuckers of and dealers in oysters at Kinsale, Va., and the appellant (Burdette H. Farren, trading as, J.;S. Farren and Company), was a packer of oysters in Baltimore City. During the season of 1900 the appellees sold shucked oysters to the appellant and at the beginning of the .season of 1901 they agreed to .ship him oysters, for the ³³⁴ season, of sizes known as “standards” and “selects.” The price agreed upon was for so much per gallon for “standards” and “selects,” respectively, in Baltimore. They were shipped in kegs furnished by the appellees and the appellant emptied them into his own pails or vessels, and returned the empty kegs.

They were shipped by steamboats which left Kinsale at noon on Monday, Wednesday and Friday of each week, arriving in Baltimore early the next morning. They commenced shipping in October, and continued to ship by each trip until sometime in November, sometimes shipping more than ordered and at others less. All of -the shipments were paid for excepting those of November 15th and 18th, which were accepted by the appellant, but he refused to pay for them because he claimed that those shipped on the nth and 13th of that month, and received by him on the 12th and 14th, afterwards proved not to be merchantable, and the parties to whom he sold them refused to pay for them because they were what are called “red,” or “bloody” oysters. -The appellees sued for those shipped November 15th and 18th, and the appellant claimed that he only owed the difference between the price of those and the deductions made by customers on account of “red” or “bloody” oysters received by him on the 12th and 14th of that month, for which he had paid the appellees, and claimed a deduction in the third count of his amended plea of set-off. A demurrer to that count was overruled, but as the questions involved are raised by the prayers, and the demurrer was decided in favor of the appellant, it will not be necessary to make further reference to it.

The case was tried before the Court and resulted in a verdict for the plaintiffs. The defendant excepted to the rulings of the Court on the prayers and appealed from the judgment rendered on the verdict. One of the appellees was a witness and testified that he never heard of oysters turning red until his attention was called to it by the appellant, after the shipment of November 13th, and he did not know what caused it; that he did not know where his firm bought all thfe oysters shipped to the ³³⁵ appellant, as they purchased them in the shells from dredge boats that came to their place. The agent of the appellant, who made the contract with the appellees, testified that the oysters were duly received at the appellant’s place of business in Baltimore; at the time of the receipt they had been shucked were packed in barrels, properly iced and under his directions were taken out of the barrels, re-packed in appellant’s pails, properly iced and shipped to the Forest City Oyster Company at Cleveland, Ohio; W. J. Gill of Toronto, Canada; Samuel Hagans of Columbus, Ohio, and A. L. Barr of Davenport, Iowa; that he saw some of them in the barrels and as they were being transferred to the appellant’s pails, and they were apparently in good condition and good merchantable oysters without any noticeable defects, that the defendant had been engaged in the oyster business for many years and was competent to pass on this question; that he, the witness, in his years of experience in the oyster business had frequently seen what was known to the trade as “red” or “bloody” oysters; that the cause of such redness is not well understood but it gives them a red color and gives the liquor the color of blood. “That bed or bloody’ oysters are unmerchantable oysters; that the redness is not always noticeable as soon as the oysters are shucked, and that in many cases it does not develop for some days after the same are shucked, and that a comparativeley small number of the ‘red’ or ‘bloody’ oysters packed with other oysters in a pail or other vessel will, in time, discolor the other oysters in said pail, so as to render the whole contents thereof absolutely unmerchantable. ” He also said that if the redness in a cargo is discovered in time, it is possible to save some of them by having them steamed, which process develops the redness so that the good oysters can be selected from the red.

The appellant also offered evidence tending to show that all the oysters shipped to the four parties above named, at that time, were received from the appellees, and an agreed statement of facts as to what they would testify to was read, in which it„was shown that most of the oysters received by them ³³⁶ ■from the appellant at the times mentioned were unmerchantable, being “red” or “bloody.” , It is, contended on the part of the appellant that under the circumstances of the dealings between him and the appellees, there was an implied warranty that the oysters were merchantable and were free from latent defects. We do not understand it to be denied by the appellees that, if the oysters were not merchantable when, received by the appellant, he was not under obligation to accept them, but they deny that they are responsible for latent defects, such as complained of, which developed after they we.re received, inspected and accepted by the appellant in Baltimore. It is not claimed that tjiere was any fraud on the part of the appellees, and there is .nothing to show that they knew of the defect when they shipped them, and, as, we haye seen, the member of the firm who testified said he. had- never heard of this trouble with oysters until his attention was called to it by the appellant. Under the contract. the oysters were to b.e delivered in Baltimore and we.re actually so delivered.

The appellant not only had the opportunity to do so, but in fact did inspect them, and he wrote to the appellees on November 12th acknowledging receipt of those shipped on the eleventh,.stating “stock and measure all right,” and'enclosing check to cover indebtedness to date. On the 14th he acknowledged receipt of shipment of the 13th and said the stock to all appearances seemed to be, all right, but he had just received a telegram from a customer that part of the oysters which he had received the day before were red. Two of his employees testified that they were apparantly in good condition when they examined them in Baltimore. The important question therefore to be determined is, whether the implied warranty that the oysters were merchantable is to be so extended as to warrant their quality, so as to protect the appellant to the time they were delivered by him to the purchasers from him, against a defect such as this complained of.

The general principles applicable to implied warranties have been so frequently announced by this Qourt that ³³⁷ it seems almost useless to repeat them, but it may be well to recall some of them. As was said in Horner v. Parkhurst, 71 Md. 116, “Where the buyer has an opportunity of examining the thing sold, there is no implied warranty, in the absence of fraud or express warranty, that it shall be fit for the purpose for which it was bought. In such cases the rule caveat emptor applies, by which is meant that unless the buyer sees, fit to require a warranty, he takes upon himself the risk as to-quality,” citing Osgood v. Lewis, 2 H. & G. 518 ; Hyatt v. Boyle, 5 G. & J. 110 ; and Rice v. Forsyth, 41 Md. 389 . The appellant however seeks to distinguish this case from those and others announcing a similar doctrine, on the theory that it only applies when the purchaser has had an opportunity to-inspect specific existing chattels, and that it has no application: to a case in which one orders goods to be supplied and delivered to him by a dealer in such articles.

But conceding, as. wc do, that such distinction is recognized by the authorities, is the doctrine of implied warranty to be carried so far as to make the vendor liable for a defect such as this, which was not discovered until after the oysters were delivered, inspected, accepted and shipped to distant places ? If, as the Court below determined by granting the defendant’s second prayer, it being a contract for future deliveries, there was an implied warranty that the oysters