McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.
[11 NJSuper Page 418] The factual circumstances of this litigation may be concisely stated. The plaintiffs have been engaged for a period of eight years at Dayton, New Jersey, in the raising and maintenance of chickens for the production of eggs for sale. The defendant is, as its corporate title implies, a farmers' cooperative association having its store and warehouse for the sale of agricultural supplies and related products at Hightstown, New Jersey. On Saturday, June 4, 1949, the plaintiffs visited the defendant's place of business to make some purchases. It is noted that they sought to
acquire for the pullets a vaccine for the prevention of fowl pox, a disinfectant powder for the nests of the layers, and a liquid insecticide for the roosts.
The plaintiffs testified that with respect to the last-mentioned article they asked the store clerk for "Black Leaf 40," and he replied that such was not then on hand but that he had "something cheaper and better" for the purpose for which they informed him they desired to use it. The clerk thereupon recommended and delivered to them a five-gallon can of a product known as "ICC Carbolineum." The plaintiffs declared that the can did not bear any label revealing the instructions for its use, and the clerk informed them that the contents could, if desired, be diluted with kerosene and could be most expeditiously applied by spraying. The plaintiffs thereupon also purchased a suitable sprayer.
On the following morning, Sunday, June 5, 1949, the plaintiffs' son sprayed the liquid on the roosts and on the tops of the nests in the four compartments of the coop, in which about 700 chickens, classified as layers, were confined. The chickens were kept in the coop during the process of spraying. The chickens were said to be then in a good state of health, and during Sunday they did not appear to be injuriously affected by their experience.
On Monday morning, June 6, 1949, the plaintiffs observed that "there was something wrong with them." It was noticed that their "wings drooped; their "eyes were swollen;' feathers had disappeared from the "necks and breasts" of several and the skin thus disclosed had an aspect of irritation. About 50 died during the course of the day, and some 357 died during the succeeding two weeks. The remaining layers (1,799 pounds) were in the emergency promptly sold for the best price obtainable.
The nature of the action instituted and prosecuted by the plaintiffs to recover compensatory damages for their alleged loss cannot properly be ignored. It is manifestly ex contractu and not ex delicto. The sole cause of action alleged is based on a breach of the statutory implied warranty of quality and fitness.
"(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose." R.S. 46:30-21.
From an examination of the record, it would appear that the predominant issue entrusted to the jury for determination was whether the use of the carbolineum was the proximate and efficient cause of the loss of the chickens.
Counsel for the defendant at the close of the case made a motion "for the direction of a verdict," hence for judgment, in favor of the defendant, which was denied. The jury awarded the plaintiffs $2,500 damages.
On the record before us, the appellant has assigned three grounds for reversal, to wit, that the motion was erroneously denied; that the verdict was contrary to the weight of the evidence; and that there was a lack of evidence upon which damages could be measured.
We direct our attention to the defense. The salesman testified that the plaintiffs specifically asked for a can of carbolineum; that there was no discussion concerning its intended use; that the container bore a label; he denied that any representations were made by him relative to its quality or fitness for any purpose. He stated that no complaint was made to the defendant of its alleged injurious effects until June 14, 1949.
Other evidence disclosed that carbolineum is a distillate of coal tar, the main component of which is anthacine oil. It has been compounded and sold since the year 1879. It is at present prepared in this territory by Rockland Chemical Company of Newark, which company has over the period of the last 25 years sold approximately a half million cases of it to poultry breeders generally, and well over 15,000 gallons of it during the past year to poultry farmers in the State of New Jersey. It has long been approved by the United States Department of Agriculture as a specific for red mites. The
president of the Rockland Company testified that throughout his lengthy experience with the product he had never known ...