Thomas and wife against Winchester.

Court of Appeals, New York 1852

[6 N. Y. 397 (1852); pp. 397-412]

[p. 397:]

A dealer in drugs and medicines, who carelessly labels a deadly poison as a harmless medicine, and sends it so labeled into market, is liable to all persons, who, without fault on their part, are injured by using it as such medicine in consequence of the false label.

The liability of the dealer in such case arises, not out of any contract or. direct privity. between him and the person injured, but out of the duty which the law imposes upon him to avoid acts in their nature dangerous to the lives of others. He is liable therefore, though the poisonous drug with such label may have passed through many intermediate sales before it reaches the bands of the person injured.

Where such negligent act is done by an agent, the principal is liable for the injury caused thereby.
ACTION in the supreme court, commenced in August 1849, against Winchester and Gilbert, for injuries sustained by Mrs. Thomas, from the effects of a quantity of extract of belladonna, administered to her by mistake as extract of dandelion. [p. 398:]
In the complaint it was alleged, that the defendants from the year 1843, to the first of January, 1849, were engaged in putting up and vending certain vegetable extracts, at a store in the city of New-York, designated as "108 John-street," and that the defendant Gilbert had for a long time previous thereto been so engaged, at the same place. That among the extracts so prepared and sold by them, were those respectively known as the "extract of dandelion," and the "extractor belladonna;" the former a mild and harmless medicine, and the latter a vegetable poison, which, if taken as a medicine in such quantity as might be safely administered of the former, would destroy the life, or seriously impair the health of the person to whom the same might be administered. That at some time between the periods above mentioned the defendants put up and sold to James S Aspinwall, a druggist in the city of New-York, a jar of the extract of belladonna, which had been labeled by them as the extract of dandelion, and was purchased of them as such by said Aspinwall. That said Aspinwall afterwards, and on the 10th of May, 1845, relying upon the label so affixed by the defendants, sold the said jar of belladonna to Alvin Foord, a druggist of Cazenovia, in the county of Madison, as the extract of dandelion. That afterwards, and on the 27th of March, 1849, the plaintiff Mrs. Thomas, being sick, a portion of the extract of dandelion was prescribed for her by her physician, and the said Alvin Foord, relying upon the label affixed by the defendants to said jar of belladonna, and believing the same to be the extract of dandelion, did, on the application of the plaintiff, Samuel Thomas, sell and deliver to him from the said jar of belladonna, a portion of its contents, which was administered to the plaintiff, Mrs. Thomas, under the belief that it was the extract of dandelion; by which she was greatly injured, so that her life was despaired of, &c. The plaintiffs also alleged that the whole injury was occasioned by the negligence and unskillfulness of the defendants in putting up and falsely labeling the jar of belladonna as the extract of dandelion, whereby the plaintiffs, as well as the druggists, and all other persons through whose hands it passed before being [p. 399:] administered as aforesaid, were induced to believe, and did believe that it contained the extract of dandelion. Wherefore, &c.
The defendants in their answers, severally denied the allegations of the complaint, and insisted that they were not liable for the medicines sold by Aspinwall and Foord.
The cause was tried at the Madison circuit, in December, 1849, before MASON, J. The defendant Gilbert was acquitted by the jury under the direction of the court, and a verdict was rendered against Winchester, for eight hundred dollars. A motion for a new trial, made upon a bill of exceptions taken at the trial, having been denied at a general term in the sixth district, the defendant Winchester, brought this appeal. The fact a which appeared on the trial are sufficiently stated in the opinion of RUGGLES, Ch. J.

Charles P. Kirkland, for appellant.
I. There was no connection, transaction or privity between Mrs. Thomas, the real plaintiff in this suit, and the defendant; no state of things to render legally possible the allegation of negligence quo ad hoc, and therefore no suit can be sustained by her against the defendant. The defendant sold the article to Aspinwall. Aspinwall sold to Foord, Foord sold to Thomas, the husband, who administered, or caused it to be administered to the plaintiff. The defendant was a remote vendor of the article, and can on no principle be liable to this plaintiff. The gravamen of the complaint is negligence, in selling the article with a wrong label; no fraud, or criminal or evil motive or intent, and not even gross negligence, is imputed; and nothing in the nature of contract is pretended. This differs in no respect from any other case of negligence alleged against a party standing at the same remove from the party alleging it. If this action can be sustained, it could equally be sustained in any of the following cases: A. builds a vessel and sells it to B.; B. sells it to C., and D. takes passage in it. The mast, by reason of great negligence in its construction, falls on D. and breaks his limb. D. can sustain an action against A. for the injury. [p. 400:}
A blacksmith shoes a horse for A.; A. sells the horse thus shod, to B.; B. sells to C., and the horse while being used by C., stumbles and falls in consequence of gross negligence in the shoeing. C. can sue the smith and recover.
A. negligently sells unwholesome provisions to B.; B. sells to C., who sells to D., and D. uses the provisions and is injured. D. can sustain an action against A. These illustrations might be indefinitely multiplied, and the very statement of them would seem to demonstrate the fallacy of the claim of the plaintiff. "The reason why an action cannot be sustained in such cases, is, that there is no connection between the wrong done and the person whom it is sought to charge for the consequences." (Mayor of Albany v. Cunliff, 2 Comst. 180.) Broom on Parties to Actions, pp. 246, 7, states the general rule correctly, and contains a collection of cases, showing that the rule cannot apply to the present case. Bush v. Steinman, (1 Bos. & Pull. 409,) shows the greatest extent to which the principle will be carried, and it falls far short of this case.
II. If this action can be sustained, the defendant might be liable to innumerable suits, and at any period of time, however distant. No statute of limitations could protect him; for the action would not be barred until six years after the injury, although the defendant may have sold the article many years before. He would be liable too, for the carelessness of ail intermediate vendors; and this without notice of the danger, or means of arresting it. Besides, if this defendant is liable, such liability may be traced back indefinitely, to a vendor at the fiftieth or hundredth remove from the plaintiff. A doctrine involving such consequences cannot be sustained.
III. The defendant is charged substantially with the negligence of Foord and Aspinwall, and this cannot be the foundation of an action against him. (Mayor of Albany v. Cunliff 2 Comst. 165, and 180, and the illustrations there given; Blunt v. Aikin, 15 Wend. 522; Shiells v. Blackburn, 1 H. Bl. 158; Moore v. Mourgue, Cowp. 480; Bull. N. P. 73; Seare v. Prentice, 8 East, 348.) [p. 401:]
IV. Aspinwall and Foord were both equally with defendant guilty of negligence, and the plaintiff claims through them. She is therefore chargeable with their negligence, and persons so chargeable cannot recover for injuries to which their own negligence has in any degree contributed. (See the cases above cited; Hartfield v. Roper, 21 Wend.. 615, 618, and seq. and cases there cited; Rathbun v. Payne, 19 Id. 399, and cases there cited.)
V. The true rule applicable to this case is, that. each vendor. is liable to his immediate vendee for any damage legitimately sustained by the latter. This rule is a just, safe, and sufficiently comprehensive one; it furnishes adequate protection to all parties, and gives the purchaser his remedy against the person on whom, by the very act of purchase, he shows that he placed reliance. (Broom on Parties to Actions, Û 299, p. 248; Langridge v. Levy, 2 Mees. & Welsby 519; Winterbottom v. Wright, 10 Id. 109; Bac. Law Tracts, pp. 35, 37.)
VI. If the label affixed to the article in question could be deemed a false affirmation to each party relying upon it when buying, (a proposition which is wholly denied,) it could only be available to a party who should purchase on the credit given to the label. Here there is no presence that the real plaintiff bought at all; or even that her husband or his agent ever saw the label, or acted on the faith of it. No such fact is alleged in the complaint.
Besides, an action resting on that ground would be an action for false representations, whereas the action here is founded solely on negligence.

N. Hill, Jun. for respondents.
I. Affixing a false label to the poison, and sending it into market in that condition, so as thereby to mislead others, and endanger human life, was an unlawful act, for which the defendant is responsible, whether he did it willfully or negligently. (5 Maule & Sel. 198; 4 Denio 464, 466-7; 10 Eng. Com. Law R. 190; 6 Hill, 292; 23 Eng. Com. Law R. 52; 2 W. Bl. 892-3; 19 John. 381; [p. 402:] 3 Maule & Selw. 11, 14, 15; 11 Mass. R. 139; 17 Wend. 499, 500; 5 Denio, 266.)
II. To entitle the aggrieved party to sue in such case, no privity is necessary, except such as is created by the unlawful act, and the consequential injury; privity of contract being out of the question. (Grotius B. 2, ch. 17, , pl. 1; I Chitty's Gen. Pr. 12; 10 Eng. Com. Law R. 190; 12 Mod. 639; 4 Denio, 464; 11 Price, 400; 35 Eng. Com. Law R. 292; 6 Hill, 292.)
III. The injury is not rendered too remote to sustain a recovery because separated from the unlawful act by intervening events, however numerous, or of whatever kind, provided they are the natural and probable consequences of the act; i. e. such as would be likely to follow and might be easily foreseen. (See 1 Smith's Lead. Cases, 132. note; 23 Eng. Com. Law R. 54-5: Denio, 266.), 1. Where the unlawful act is in its nature likely to produce the very events which have followed, the author of it may be treated as having caused each succeeding event, though they consisted of the acts of third persons. Causa caustoe est causa causati. (19 John. 381; 4 Denio, 464; 2 W. Bl. 89934, 899, 900 ; Broom's Leg. Max. 168-9, 1st ed.; 5 Maule & Sel. 198; 41 Eng. Com. Law R. 425; 24 Id. 272; 23 Id. 52 54; 28 Id. 222; 12 Mod. 639; 19 Wend. 345-6; 4 Denio, 317 ; 2 Wend. 385 ; 3 Metc. 469 ; 2 Mees. & Welsb. 519; 525.) 2. The false label was not only likely to mislead druggists and others into the mistakes which have followed, but such was its direct and almost inevitable tendency. (See Cro. Jac. 471; 23 Eng. Com. Law. R. 41-2; 3 Metc. 469.) 3. The rule contended for, does not extend the sphere of accountability to impracticable or unjust limits, but confines it to consequences so proximate as to be expected or readily foreseen, and for which every wrongdoer is and ought to be answerable. (See the cases under sub. 1, of this point.) (1.) If the defendants act had been done willfully, he would have been chargeable with the consequences, including the mistake of Doctor Foord, &c. on the legal presumption that be intended them. (1 Greenl. Ev. Û 18; 3 Maule. & Sel. 14, 15; 3 Bouv. Inst. 348; 16 Wend. 649; [p. 403:] 3 Metc. 469, 472.) (2.) The sphere of responsibility is the same when the wrong consists of negligent acts, though the measure of, indemnity and punishment may be different. (Archb. Cr. Pl. 421, 2d ed. 1846; 2 Ld. Ray. 1583; 23 Eng. Com. Law R. 54-5; 3 Maule & Sel. 14, 15; 1 Lewin's Ct. Cases, 169 ; 2 Stark. Ev. 526, Am. ed. 1837; 5 Maule & Sel. 198; Broom's Leg. Max. 168-9, lst ed; 4 Denio, .464; 41 Eng. Com. Law R. 422, 425; 24 Id. 272; 19 Wend. 345-6.) 4. There is no pretense for saying that the injury was caused by the illegal act of a third person, and not by that of the defendant ; the jury having directly found that the intermediate actors were not negligent. 5. Besides, this rule never applies where the intervening wrong does not furnish a distinct right of action for the whole injury sustained. . (2 Crom. Mees. & Rosc.. 707, 713 to 716; 38 Eng. Com. Law R. 30,32.) Mrs. Thomas could not get redress by an action ex contractu against Dr. Foord, or any one else. (11 Price, 400; 35 Eng. Com. Law 292.) And to apply the rule here, therefore, would contravene the maxim ubi jus ibi remedium. (Broom's Leg. Max. 91, Ist ed.; 1 Smith's Lead. Cases, 124,130, 132, note.) 6. Again, the rule does not apply where the intervening wrong, though actionable, is the natural and probable consequence of the defendant's tort. (1 Smith's Lead. Cases, 132, note; Broom's Leg. Max. 168-9; 5 Barn. & Cres. 356; 23 Eng. Com. Law R. 52, 54; 41 Id. 422, 425; 24 Id. 272; 5 Maule & Sel. 198; 19 Wend. 345-6; 2 Mees. & Welsb. 519, 525; and see 5 Denio, 266; 32 Eng. Com. Law. R. 211.)
IV. But the injury in this case was the immediate consequence of the defendant's act. The false label was a continuing representation or direction by him, and operated as the instantaneous cause of the mistake of Dr. Foord. (See Cro. Jac. 471; 23 Eng. Com. Law R. 41-2; 3 Metc. 469; 1 Id. 193.)
V. The injury being sufficiently connected with the defendant's wrongful act, it is no defense that he had parted with the poison under a formal sale, and placed it in the custody of others: this being the very mode by which he caused the injury. [p. 404:] (12 Mod. 639; 2 Starkie's Ev. 526, Am. ed. of 1827; Broom's Leg. Max. 168-9; 5 Maule & Sel. 198; 41 Eng. Com. Law R. 422; 24 Id. 272; 2 Mees. & Welsb. 519,525; 19 Wend. 345-6.) 1. The inability of the defendant to prevent the injury at the time, is not an excuse, but a part of the wrong. (12 Mod. 639; 4 Denio, 311, 317 ; 7 Mees. & Welsb. 456; 9 Barr, 345; 23 Eng Com. Law R. 52, 54-5; 28 Id. 220.) 2. Besides, the label was a continuing authority or direction by the defendant for the use of the poison, and he was bound to indemnify against the acts which it was likely to cause when sold in that condition. (Cro. Jac. 471; 12 Mod. 639; 23' Eng. Com. Law. R. 41-2; Id. 52, 54-5; 28 Id. 220; 3 Metc. 469; 4 Denio, 311, 317 ; 2 Comst. 180 ; 19 Wend. 345-6.)
VI. The rule contended for by the defendant, that each vendor is liable only to his immediate vendee, has no application to the present ease. 1. This rule is founded on the principle that a right or duty wholly created by contract, can only be enforced between the contracting parties. (5 Mees. & Welsb. 283, 286, 288-9.) The case of Wright v. Winterbottom, (10 Mees. & Welsb. 109) was decided on this principle ; the declaration being expressly on a duty created by contract, and not by law. In The Mayor, &c. v. Cunliff, (2 Const. 165,) each count was on an alleged duty created by law ; but the law being void, the allegation as to the duty could not be maintained. 2. Nothing, was decided in either of the above cases which interferes with the right to maintain the present action. The duty violated by the defendant was not created by contract, but by law; every one being under an obligation to abstain from acts tending naturally and probably to endanger human life. (See points 1, II, III, and cases there cited.) Besides,. both cases contain dicta which show that the principles on which the present action is based were not intended to be denied. (See 10 Mees. & Welsb. 114, 115, 116; 2 Comst. 180.)
VII. In any view of the case, the defendant, it must be admitted, is ultimately responsible for the injury to Mrs. Thomas, unless those who have been the unconscious agents of the wrong [405] are to bear the burthen, and the author of it escape. And the law does not require circuity of action, but abhors it. (2 Saund. 150, per Kelynge C. J ; Willes' R. 401-2; 2 H. Bl. 350-1, per Heath J.; 4 Wend. 492, per Marcy J.; Co. Litt. 348 a.)

RUGGLES, Ch. J. delivered the opinion of the court. This is an action brought to recover damages from the defendant for negligently putting up, labeling and selling as and for the extract of dandelion, which is a simple and harmless medicine, a jar of the extract of belladonna, which is a deadly poison; by means of which the plaintiff Mary Ann Thomas, to whom, being sick, a dose of dandelion was prescribed by a physician, and a portion of the contents of the jar, was administered as and for the extract of dandelion, was greatly injured, &c.
The facts proved were briefly these: Mrs. Thomas being in ill health, her physician prescribed for her a dose of dandelion. Her husband purchased what was believed to be the medicine prescribed, at the store of Dr. Foord, a physician and druggist in Cazenovia, Madison county, where the plaintiffs reside,
A small quantity of the medicine thus purchased was administered to Mrs. Thomas, on whom it produced very alarming effects; such as coldness of the surface and extremities, feebleness of circulation, spasms of the muscles, giddiness of the head, dilation of the pupils of the eyes, and derangement of mind. She recovered however, after some time, from its effects although for a short time her life was thought to be in great danger. The medicine administered was belladonna, and not dandelion. The jar from which it was taken was labeled "¹/2 lb. dandelion, prepared by A. Gilbert, No. 108, John-street, N. Y. Jar 8 oz." It was sold for and believed by Dr. Foord to be the extract of dandelion as labeled. Dr. Foord purchased the article as the extract of dandelion from Jas. S. Aspinwall, a druggist at New-York. Aspinwall bought it of the defendant as extract of dandelion, believing it to be such. The defendant was engaged at No. 108 John-street, New-York, in the manufacture and sale of certain vegetable extracts for medicinal purposes, and in the [p. 406:] purchase and sale of others. The extracts manufactured by him were put up in jars for sale, and those which he purchased were put u by him in like manner. The jars containing extracts manufactured by himself and those containing extracts purchased by him from others, were labeled alike. Both were labeled like the jar in question, as "prepared by A. Gilbert." Gilbert was a person employed by the defendant at a salary, as an assistant in his business. The jars were labeled in Gilbert's name because he had been previously engaged in the same business; on his own account at No. 108 John-street, and probably because Gilbert's labels rendered the articles more salable. The extract contained in the jar sold to Aspinwall, and by him to Foord, was not manufactured by the defendant, but was purchased by him from another manufacturer or dealer. The extract of dandelion and the extract of belladonna resemble each other in color, consistence, smell and taste; but may on careful examination be distinguished the one from the other by those who are well acquainted with these articles. Gilbert's labels were paid for by Winchester and used in his business with his knowledge and assent.
The defendants' counsel moved for a nonsuit on the following, grounds:
1. That the action could not be sustained, as the defendant was the remote vendor of the article in question: and there was no connection, transaction or privity between him and the plaintiffs, or either of them.
2. That this action sought to charge the defendant with the consequences of the negligence of Aspinwall and Foord.
3. That the plaintiffs were liable to, and chargeable with the negligence of Aspinwall and Ford, and therefore could not maintain this action.
4. That according to the testimony Foord was chargeable with negligence, and that the plaintiffs therefore could not sustain this suit against the defendant: if they could sustain a suit at all it would lie against Foord only.
5. That this suit being brought for the benefit of the wife [p. 407:] and alleging her as the meritorious cause of action, cannot be sustained.
6. That there was not sufficient evidence of negligence in the defendant to go to the jury.
The judge overruled the motion for a nonsuit, and the defendant's counsel excepted.
The judge among other things charged the jury, that if they should find from the evidence that either Aspinwall or Foord was guilty of negligence in vending as and for dandelion, the extract taken by Mrs. Thomas, or that the plaintiff Thomas, or those who administered it to Mrs. Thomas, were chargeable with negligence in administering it, the plaintiffs were not entitled to recover; but if they were free from negligence, and if the defendant Winchester was guilty of negligence in putting up. and vending the extracts in question, the plaintiffs were entitled to recover, provided the extract administered to Mrs. Thomas was the same which was put up by the defendant and sold by him to Aspinwall and by Aspinwall to Foord. That if they should find the defendant liable, the plaintiffs in this action were entitled to recover damages only for the personal injury and suffering of the wife, and not for loss of service, medical treatment or expense to the husband, and that the recovery should be confined to the actual damages suffered by the wife.
The action was properly brought in the name of the husband and wife for the personal injury and suffering of the wife; and the case was left to the jury with the proper directions on that point. (1 Chitty on Pleadings, 62, ed. of 1828.)
The case depends on the first point taken by the defendant on his motion for a nonsuit; and the question is, whether the defendant, being, a remote vendor of the medicine, and there being no privity or connection between him and the plaintiffs, the action can be maintained.
If, in labeling a poisonous drug, with the name of a harmless medicine, for public market, no duty was violated by the defendant, excepting that which he owed to Aspinwall, his immediate vendee in virtue of his contract of sale, this action cannot [p. 408:] be maintained. If A. build a wagon and sell it to B., who sells it to C., and C. hires it to D., who in consequence of the gross negligence of A. in building the wagon is overturned and injured, D. cannot recover damages against A., the builder. A.'s obligation to build the wagon faithfully, arises solely out of his contract with B. The public have nothing to do with it. Misfortune to third persons, not parties to the contract, would not be a natural and necessary consequence of the builder's negligence; and such negligence is not an act imminently dangerous to human life.
So, for the same reason, if a horse be defectively shod by a Smith, and a person hiring the horse from the owner is thrown and injured in consequence of the smith's negligence in shoeing; the smith is not liable for the injury. The smith's duty in such case grows exclusively out of his contract with the owner of the horse; it was a duty which the smith owed to them alone, and to no one else. And although the injury to the rider may have happened in consequence of the negligence of the smith the latter was not bound, either by his contract or by any considerations of public policy or safety, to respond for his breach of duty to any one except the person lie contracted with.
This was the ground on which the case of Winterbottom v. Wright, (10 Mees. & Welsb. 109) was decided. A. contracted with the postmaster general to provide a coach to convey the mail bags along a certain line of road, and B. and others, also contracted to horse the coach along the same line. B. and his co-contractors hired C., who was the plaintiff, to drive the coach. The coach, in consequence of some latent defect, broke down; the plaintiff was thrown from his seat and lamed. It was held that C. could not maintain an action against A. for the injury thus sustained. The reason of the decision is best stated by Baron Rolfe. A.'s duty to keep the coach in good condition, was a duty to the postmaster general, with whom he made his contract, and not a duty to the driver employed by the owners of the horses.
But the case in hand stands on a different ground. The [p. 409:] defendant was a dealer in poisonous drugs. Gilbert was his agent in preparing them for market. The death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of belladonna by means of the false label.
Gilbert, the defendant's agent, would have been punishable for manslaughter if Mrs. Thomas had died in consequence of taking the falsely labeled medicine. Every man who, by his culpable negligence, causes the death of another, although without intent to kill, is guilty of manslaughter. (2 R. S. 662, § 19.) A chemist who negligently sells laudanum in a phial labeled as paregoric, and thereby causes the death of a person to whom it is administered, is guilty of manslaughter. (Tessymond's case, 1 Lewin's Crown Cases, 169.) "So highly does the law value human life, that it admits of no justification wherever life has been lost and the carelessness or negligence of one person has contributed to the death of another." (Regina v. Swindall,. 2 Car. & Kir. 232-3.) And this rule applies not only where the death of one is occasioned by the negligent act of another, but where it is caused by the negligent omission of a duty of that other. (2 Car. & Kir. 368, 371.) Although the defendant Winchester may not be answerable criminally for the negligence of his agent, there can be no doubt of his liability in a civil action, in which the act of the agent is to be regarded as the act of the principal.
In respect to the wrongful and criminal character of the negligence complained of, this case differs widely from those put by the defendant's counsel. No such imminent danger existed in those cases. In the present case the sale of the poisonous article was made to a dealer in drugs, and not to a consumer. The injury therefore was not likely to fall on him, or on his vendee who was also a dealer; but much more likely to be visited on a remote purchaser, as actually happened. The defendant's negligence put human life in imminent danger. Can it be said that there was no duty on the part of the defendant, to avoid the creation of that danger by the exercise of greater caution? or that the exercise of that caution was a duty only to his [p. 410:] immediate vendee, whose life was not endangered? The defendant's duty arose out of the nature of his business and the danger to others incident to its mismanagement. Nothing but mischief like that which actually happened could have been expected from sending the poison falsely labeled into the market; and the defendant is justly responsible for the probable consequences of the act. The duty of exercising caution in this respect did not arise out of the defendant's contract of sale to Aspinwall. The wrong done by the defendant was in putting the poison, falsely labeled, into the hands of Aspinwall as an article of merchandise to be sold and afterwards used as the extract of dandelion, by some person then unknown. The owner of a horse and cart who leaves them unattended in the street is liable for any damage which may result from his negligence. (Lynch v. Nurdin, 1 Ad. & Ellis, N. S. 29; Illidge v. Gooditt, 5 Car,. & Payne, 190.) The owner of a loaded gun who puts it into the hands of a child by whose indiscretion it is discharged, is liable for the damage occasioned by the discharge. (5 Maule & Sel.. 198.) The defendant's contract of sale to Aspinwall does not excuse the wrong done to the plaintiffs. It was a part of the means by which the wrong was effected. The plaintiffs' injury and their remedy would have stood on the same principle, if the defendant bad given the belladonna to Dr. Foord without price, or if he had put it in his shop without his knowledge, under circumstances which would probably have led to its sale on the faith of the label.
In Longmeid v. Holliday, (6 Law and Eq. Rep 562) the distinction is recognized between an act of negligence imminently dangerous to the lives of others, and one that is not so. In the former case, the party guilty of the negligence is liable to the party injured, whether there be a contract between them or not; in the latter, the negligent party is liable only to the party with whom lie contracted, and on the ground that negligence is a breach of the contract.
The defendant, on the trial, insisted that Aspinwall and Foord were guilty of negligence in selling, the article in [p. 411:] question for what it was represented to be in the label; and that the suit, if it could be sustained at all, should have been brought against Foord. The judge charged the jury, that if they or either of them, were guilty of negligence in selling the belladonna for dandelion, the verdict must be for the defendant; and left the question of their negligence to the jury, who found on that point for the plaintiff. If the case really depended on the point thus raised, the question was properly left to the jury. But I think it did not. The defendant, by affixing the label to the jar, represented its contents to be dandelion; and to have been "prepared" by his agent Gilbert. The word `prepared' on the label, must be understood to mean that the article was manufactured by him, or that it had passed through some process under his hands, which would give him personal knowledge of its true name and quality. Whether Foord was justified in selling, the article upon the faith of the defendant's label would have been an open question in an action by the plaintiffs against him, and I wish to be understood as giving no opinion on that point. But it seems to me to be clear that the defendant cannot, in this case, set up as a defense, that Foord sold the contents of the jar as and for what the defendant represented it to be. The label conveyed the idea distinctly to Foord that the contents of the jar was the extract of dandelion; and that the defendant knew it to be such. So far as the defendant is concerned, Foord was under no obligation to test the truth of the representation. The charge of the judge in submitting to the jury the question in relation to the negligence of Foord and Aspinwall, cannot be complained of by the defendant.

GARDINER J. concurred in affirming the judgment, on the ground that selling the belladonna without a label indicating that it was a poison, was declared a misdemeanor by statute; (2 R. S. 694, Û 23;) but expressed no opinion upon the question whether, independent of the statute, the defendant would have been liable to these plaintiffs.

[p. 412:] GRIDLEY, J. was not present when the cause was decided. All the other members of the court concurred in the opinion delivered by Ch. J. RUGGLES.

Judgment affirmed.