(after stating the facts.) The case was submitted to the jury upon two propositions, one for negligence in. allowing the foreign substances to get mixed with the feedstuff, and the other an implied warranty of the soundness and fitness for the purpose intended.
The judgment might well be sustained upon the evidence, had it been for the plaintiff upon the issue of negligence alone. French v. Vining, 102 Mass. 132, s. c. 3 Am. Rep. 440, is a direct authority to sustain such an action. But the special finding that there was no negligence, and that the foreign matter got into the feedstuff by accident, eliminates that question from this case.
It is contended that the special finding does not amount to anything more than a finding that the foreign matter was incorporated by accident, as contradistinguished from design. The position is not tenable, in view of the plain direction to find negligence or accident, and the finding of accident necessarily finds there was no negligence. A similar conclusion on a strikingly similar use of the words “accident” and “negligence” was reached in Henry v. Grand Ave. Ry. Co., 21 S. W. Rep. 214.
This case, therefore, depends entirely upon whether there was an implied warranty that the feedstuff was reasonably fit for the purpose intended. This court recently dealt with one of the implied warranties of a manufacturer, and said: “When a manufacturer offers- his goods for sale, where the opportunity of inspection is not present before the purchase, the vendee necessarily relies on his knowledge of his own manufacturé. In such cases the law implies a warranty that the articles shall be merchantable and reasonably fit for the purpose for which it was intended.” Main v. Dearing, 73 Ark. 470. This rule is invoked here. It is inapplicable. This is not a case where the opportunity of inspection is not present, and where the vendee necessarily relies on the knowledge of the manufacturer. Here the discovery of the foreign substance was equally open to the buyer as to the seller; in fact, more so to the buyer, as he loaded the hulls with a fork into his wagon, and mixed small quantities of meal from the sack into the hulls at each feeding.
The warranty of the merchantable character of the articles only extends to executory contracts, because the goods cannot then be selected or inspected; hence the rule of caveat emptor cannot apply, and the warranty is implied. 2 Mechem on Sales, § § 1340, 1341, 1349. Mr. Benjamin, in his work on Sales, says that the implied warranty of the fitness of goods for the use intended does not apply where the manufacturer becomes a dealer; or where a known, described and defined article is ordered of the manufacturer, and he furnishes such article, there is no implied warranty of its quality; but that it does apply where an opportunity for inspection is not present, or where reliance is placed on the judgment and skill of. the manufacturer. Benjamin on Sales, § 658. These rules all accord with Main v. Dearing, supra, and the previous decisions of this court therein cited, and do not extend the warranty to the case at bar.
The implied warranty is sought to be upheld on the warranty of feedstuffs. Blackstone says there is an implied warranty that goods intended for food are wholesome. 3 Blackst. Com. p. 165. It is usually stated that the goods are wholesome and fit for human food. 2 Mechem on Sales, § 1356. The implied warranty is sometimes denied, and the rule, where enforced, has many limitations. For full statement of it and its limitations, see Benjamin on Sales, pp. 691, 693; Mechem on Sales, § 1356 et seq. The implied warranty in such case is an exception to the common-law rule of caveat emptor, and is sustained upon principles of public policy requiring dealers in food intended for human use to examine it and see that nothing deleterious to life or health is found therein. This exception is not extended to feedstuff for cattle. Lukens v. Freund, 27 Kan. 664, s. c. 41 Am. Rep. 429. This case is almost a counterpart of the case at bar. It was an action for the value of a cow whose death was caused by metallic substances in bran purchased of a miller, bran being one of the by-products of the mill. The questions of liability for negligence in allowing the metal to get in the bran, the duty of a manufacturer and dealer, and whether the warranty of feedstuff applies to cattle feed, were all presented, and decided as herein. The case is well reasoned and supported by authorities therein reviewed, and the opinion delivered by that eminent jurist, Mr. Justice David J. Brewer.
The judgment is reversed, and judgment entered here on the special finding of the jury in favor of the appellant.
Mr. Justice Riddick dissents.