72 HARVARD LAW REVIEW cannot possibly discover that a particular can of a reputable brand of goods is defective, and therefore it is unjust to subject him to lia- bility. The same argument, however, may be made in regard to any implied warranty not only of food but of other articles where the seller could not discover the injurious defect. Accordingly if canned goods are to be made an exception to the general rule governing sales of food, the whole law of implied warranty should be revised. As an original ques- tion it might well be argued that the rule of the Roman law and modern civil law which denies any other redress than rescission or diminution of the price to a buyer of defective goods, unless the seller makes express representations, or has guilty knowledge of the defect,^ is a better rule than that of the common law which may subject a seller, guilty of no improper or negligent conduct, to heavy Uability for consequential damages. But the general principle of the common law is well established, and though it may bear heavily on an innocent seller in a particular case, the natural effect of it will be to diminish the sale of defective goods; and it must be remembered that the seller is far better able to hold lia- ble the manufacturer who sold him the goods, than is the ultimate buyer. Certainly if a seller is ever to be made hable for injuries caused by defective goods, where he has been guilty of no fault, the reasons are stronger for holding him liable for selling defective food than in any other kind of sale — whether the matter is considered from the stand- point of precedent or of policy. In accordance with this general prin- ciple, the Massachusetts court has recently held,^" following other recent cases," that the sale of canned food is subject to the same rules of implied warranty as govern sales of other food. The liability of a restaurant-keeper for damages caused by bad food served by him has also been tested in recent decisions. This question is sometimes supposed to depend on whether the restaurant-keeper makes a sale to the customer of the injurious food. It is indeed true that if the transaction amounts to a sale the numerous authorities re- ferred to above establish liability. On excellent authority,^^ however, it is held that the title to food served by an innkeeper never passes. Whether this analogy holds good in a restaurant where -a customer pays not for a meal, but for a definite portion of food, may perhaps be questioned. May not one who secures and pays for a piece of pie at an "automat" or luncheon spa take it from the plate and walk off with it without wrong? ^* Whether or not because the transaction has been held not to be a sale, it has generally been assumed that the liability of a restaurant-keeper is based only on willful fault or negligence, and many cases have been brought on this assumption. In most of them no asser- ^ See WiLLiSTON, Sales, § 247. As to a presumption of knowledge on the part of a manufacturer, see Doyle v. Fuerst and Kraemer, Ltd. 129 La. 838, 56 So. 906 (1911). " Ward V. Great Atlantic & Pacific Tea Co. (Mass.) 120 N. E. 225 (1918). " Jackson v. Watson, [1909] 2 K. B. 193; Sloan v. F. W. Woolworth Co., 193 HI. App. 620 (1915). ^^ See Beale, Innkeepers, § 169, and cases cited. ^' This distinction is suggested in Valeri v. Pullman Co., 218 Fed. 519, 520 (1914).
