Page:Harvard Law Review Volume 32.djvu/105

71 NOTES 71 ministering a foreign law one may ask whether the mode of reasoning, the judicial method and traditional analogies are not more significant than the detailed rules. At any rate the picture, so often painted, of peoples under British dominion enjoying their own traditional laws, scrupulously administered for them by the British courts, needs some retouching. Implied Warranty of Food. — It is settled by numerous English and American decisions that one who sells food for immediate con- sumption impliedly warrants that it is wholesome.^ Obvious as it is, the distinction between the absolute liability of a warrantor of food irrespective of negligence, and the liability of a tortfeasor for negUgence is sometimes blurred. Often, perhaps generally, a seller of injurious food has been guilty of negligence, and in a particular case it may become immaterial whether the defendant's liability is absolute or based on neg- Ugence. Often, however, the distinction is vital. It is important not only in determining questions of liability between the original parties to a transaction but because a warranty gives a right only to the im- mediate purchaser,^ while a negligent seller of dangerous food may be liable to any person ultimately injured.' Several recent decisions call attention to the boundaries of the prin- ciple of absolute liability for the wholesome character of food. At the outset it should be said that it is well recognized that unless food is sold by a dealer for immediate consumption, there is no implied warranty except under circumstances where a warranty would be implied in the sale of goods of other kinds.^ Where the buyer himself examines and selects the food which he purchases, the existence of a warranty has been denied,^ on the ground that the buyer does not rely on the seller's skill and judgment but on his own. The reasoning seems inconclusive. Such a buyer may rely on the seller's judgment by assuming as he fairly may that all the articles offered to him are suitable for food, and when he chooses one article rather than another, he should be regarded, unless the defect is an obvious one, as seeking merely the best of a number of things all of which are at least not dangerous to eat.^ The warranty does not extend to sales of food for cattle.'' It has recently been held inapplicable to the sale of canned goods,* because, it is said the seller 1 Recent decisions are: Frost v. Aylesbury Dairy Co. Ltd. [1905] i K. B. 608; Askam v. Piatt, 85 Conn. 448, 83 Atl. 529 (191 2); Ward v. Great Atlantic & Pacific Co. (Mass.) 120N. E. 225 (1918); Racef. Krum, 222 N. Y. 410, 118N. E. 853 (1918). ^ WiLLisTON, Sales, § 244. 3 Ketterer v. Armour, 247 Fed. 921 (1912); Parks v. C. C. Yost Pie Co., 93 Kans. 334, 144 Pac. 202 (1914). V. Berkson, 223 Mass. 257, 259, in N. E. 785 (1916). « See Wallis v. Russell, [1902] 2 Ir. 585; Sloan v. F. W. Woolworth Co., 193 111. App. 620 (1915). ^ Dulaney v. Jones, 100 Miss. 835, 57 So. 225 (191 1); F. A. Piper Co. v. Oppen- heimer, 158 S. W. 777 (1913). 8 Bigelow V. Maine Central R. Co., no Me. 105, 85 Atl. 396 (1912) (commented on in 26 Harv. L. Rev. 556); Trafton v. Davis, no Me. 318, 86 Atl. 179 (1913).
 * WiLLisTON, Sales, § 242.
 * Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481 (1908); Gearing