Opinion
Argued March 3, 1925
Decided March 31, 1925
Appeal from the Supreme Court, Appellate Division, First Department.
Isaac N. Mills and George Ryall for appellants.
B.F. Norris for respondent.
This judgment must be affirmed. Doubtless the purpose for which these goods were required was at least by implication made known to the seller. Whether under the circumstances of this particular purchase any inference is possible that the buyer relied upon the seller's skill or judgment we need not decide. For even were the trial court in error as to the existence of an implied warranty that the goods in question were fit for human consumption, bought as they were by description from one who dealt in them, there was a warranty that they were of merchantable quality. If condensed milk is unfit for consumption, clearly it does not comply with this warranty. The seller may not complain if the jury is told that a warranty exists more limited in its scope than in truth is the fact.
HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.
Judgment affirmed, with costs.