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Pet Sale Cases

Rebecca F. Wisch


Animal Legal & Historical Center
Publish Date:
2005
Place of Publication: Michigan State University
Printable Version

Pet Sale Cases

 

As with many issues in animal law, few court cases are published that concern the sale of companion animals.  The cases below represent the most relevant cases under both general contract principles and state laws governing pet sales.  This list is not meant to be exhaustive, and does not include cases that concern the sale of agricultural (commercial) animals or horses.  The cases are given in chronological order starting from the most recent.

O'Rourke v. American Kennels, 7 Misc.3d 1018(A), 801 N.Y.S.2d 237 (Table), 2005 WL 1026955 (N.Y.City Civ.Ct.), 2005 N.Y. Slip Op. 50656(U) Unpublished (N.Y. Civ.Ct.,2005).  In this highly entertaining Small Claims case, claimant seeks to recover the purchase price of her dog, Little Miss Muffet. The issue presented, in large part, concerns the dog's weight. Claimant contends that Muffet was supposed to be a "teacup dog." At eight pounds, she is well above the five pounds that is considered the weight limit for a "teacup" Maltese. Plaintiff paid an additional $1,000 above the standard $1,500 to purchase the smaller variety of Maltese. Plaintiff was awarded the differential in price, but not veterinary fees for a knee condition that developed after the warranty protections expired in the purchase agreement. 

Cavallini v. Pet City and Supply, 848 A.2d 1002, 2004 PA Super 141 (Pa.Super., 2004).  Appellant, Pet City and Supplies, Inc. appealed from the judgment in the amount of $1,638.52 entered in favor of Appellee, Christopher A. Cavallini following a bench trial. The trial court determined that Cavallini was entitled to damages due to Pet City's violations of the Dog Purchaser Protection provisions of the Unfair Trade Practices and Consumer Protection Law (UTPCPL). Cavallini purchased a Yorkshire terrier puppy from Pet City that was represented as a pure bred. After several attempts, Pet City failed to supply Cavallini with the requisite registration papers. On appeal, Pet City contended that the trial court erred as a matter of law by determining a private action can be brought under the Dog provisions of the UTPCPL, and erred as a matter of law by imposing a civil penalty against Pet City under the UPTCPL. In finding that the statute does provide a private cause of action, the court looked to the purpose of the statute rather than the plain language. However, the court found the inclusion of a civil penalty in the part that allows a private action was inconsistent with the statute. (The dissent disagreed with the majority's interpretation of the statute in violation of the plain language, finding the statute plainly places the authority to pursue action with the Attorney General's office and not private citizens.)

Saxton v. Pets Warehouse, 180 Misc.2d 377 (N.Y. 1999).  In this small claims action, the plaintiff purchased an unhealthy dog from defendant that died soon after purchase.  The court held that the plaintiff is not limited to the remedies provided by General Business Law § 753 (1), which sets forth a consumer's right to a refund and/or reimbursement for certain expenses incurred in connection with the purchase of an unhealthy dog or cat, as plaintiff's dog came within the definition of "goods" as set forth in UCC 2-105 and defendant was a "merchant" within the meaning of UCC 2- 104 (1).  Accordingly, plaintiff could recover damages pursuant to UCC 2-714 on the theory that defendant breached the implied warranty of merchantability.  The case was remanded for a new trial to solely on the issue of damages limited to any sales tax paid by plaintiff that was not reimbursed by the insurance policy and the reasonable cost of veterinary expenses incurred.

Sacco v. Tate, 175 Misc.2d 901, 672 N.Y.S.2d 618, 1998 N.Y. Slip Op. 98231 (N.Y.Sup.,1998).  Plaintiffs commenced the instant action to recover veterinary expenses incurred by reason of the fact that the dog sold to them by defendant was not healthy. The court held that plaintiffs were not entitled to avail themselves of the remedies afforded by article 35-D of the General Business Law by reason of their failure to comply with the requirements set forth in section 753 thereof (to wit, they did not produce the dog for examination by a licensed veterinarian designated by the dealer, nor did they furnish the dealer with a certification of unfitness of the dog within three days after their receipt thereof). The court, however, noted that the article does not limit the rights or remedies which are otherwise available to a consumer under any other law, so the award by the court was affirmed (albeit on a different basis).

 Nuijens v. Novy, 144 Misc.2d 453, 543 N.Y.S.2d 887, 10 UCC Rep.Serv.2d 1179 (N.Y.Just.Ct.,1989).  Plaintiff brought a New York Small Claims Court action seeking recovery of the sum of $254.63, after a licensed veterinarian determined that a dog purchased by plaintiff from defendant was unfit according to Article 35-B of the General Business Law. Specifically, plaintiff sought damages under two alternate theories: violation of the sale contract's express warranty and violation of the implied warranty of merchantability.  The contract of sale provided a five-day guarantee to plaintiff that if a veterinarian found anything wrong during that time, the animal could be returned for a refund.  The veterinarian initially thought the dog suffered from a minor urinary tract infection so plaintiff decided against returning the dog within that time frame (later it was found to be a serious health issue). However,  plaintiff argued that Section 742 of the General Business Law expanded the time frame to fourteen days to return an unfit dog to the pet dealer.  The court found that defendant, who sold only one litter of puppies, did not qualify as a pet dealer to fall under the ambit of the statute.  In addition, the court noted that plaintiff elected to forgo the express warranty by retaining the dog.  With regard to the implied warranty of merchantability, the court found defendant is not a "person who deals in goods of the kind" to fall within the definition of merchant to give Plaintiff any relief under UCC Section 2-314.

Dempsey v. Rosenthal, 121 Misc.2d 612, 468 N.Y.S.2d 441, 37 UCC Rep.Serv. 1091 (N.Y.City Civ.Ct.,1983).  A buyer of a poodle brought an action against a kennel, seeking to recover purchase price on ground that poodle was "defective" due to an undescended testicle.  The buyer argued that the kennel had breached implied warranty of merchantability and fitness for a particular purpose. The Civil Court of the City of New York held that since the contract of sale did not exclude or modify implied warranty of merchantability, it carried with it such a warranty.  In light of this, the poodle was not a merchantable good because a poodle with an undescended testicle would not pass without objection in the trade.  Further, the kennel breached the warranty of fitness for a particular purpose since the kennel was aware that the buyer wanted a dog for breeding purposes.  This case is also significant because the court also held that a buyer's opportunity to examine the dog when purchasing it does not defeat a warranty claim.  Indeed, the type of examination would not be undertaken by a casual buyer of a male puppy.  The court allowed buyer to revoke her acceptance of the dog and receive her purchase price.

Bormaster v. Henderson, 624 S.W.2d 655 (Tx. 1981).  This appeal arises out of a suit brought under the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA) and for breach of expressed and implied warranties after plaintiff purchased an allegedly defective umbrella cockatoo from a pet shop. Prior to purchase, appellee-seller stated the cockatoo was healthy and gave the appellant an "Official Health Certificate for Animals and Fowl" with a 72-hour expressed warranty on the health of the cockatoo. Two weeks later the cockatoo began showing signs of poor health so appellant took it to a veterinarian (it later died). This court concluded the trial court had sufficient rebuttal evidence upon which to hold appellant failed to prove the cockatoo's death by a preponderance of the evidence. Appellant also asserted the appellees misrepresented the quality of the cockatoo at the time of purchase thereby violating the DTPA. While the court found the appellant was a consumer under the definitions of the DTPA, and the cockatoo was a tangible chattel, it was not clear that a false, misleading or deceptive act occurred. This court found no error in the action of the trial court, and affirmed its judgment.

Connor v. Bogrett, 596 P.2d 683 (Wyo., 1979).  This Wyoming case concerns the application of the sales provisions of the Uniform Commercial Code as adopted in Wyoming (ss 34-21-201 through 34-21-299.5, W.S.1977) to a sale of a registered Black Labrador retriever which was intended for competition in field trials. More specifically the question is whether the continued physical ability of this retriever, as a matter of law, was precluded from becoming part of the basis for the bargain of the parties. Plaintiff Connor claims that the continued physical ability of this retriever to compete in field trial competition was a condition of the agreement resulting in an express warranty (note that plaintiff did not plead an implied warranty violation). Plaintiff then claimed he was entitled to return this retriever when he received the information that the dog was afflicted with osteoarthritis because defendant-Bogrett made an express warranty of the continued physical ability of the retriever for purposes of field trial competition. The court first noted that such a warranty, if it existed, would be one relating to the future condition of the retriever, or a warranty of future performance. Thus, if such a warranty existed, plaintiff-Connor would be correct in his position that discovery of the breach of such a warranty must await the failure to successfully perform in the future, and appropriate remedies for the breach may be claimed at that time. However, the court agreed with the district court in this instance that, as a matter of law, the expressions of Bogrett relative to the potential of this retriever were only expressions of opinion or commendation and not an express warranty.

Pet Dealers Ass'n of New Jersey, Inc. v. Division of Consumer Affairs, Dept. of Law and Public Safety, State of N. J., 149 N.J.Super. 235, 373 A.2d 688, 22 UCC Rep.Serv. 16 (N.J.Super.A.D. 1977).  By this appeal Pet Dealers Association of New Jersey, Inc. challenges the validity of the Attorney General's regulations governing the sale of pet cats and dogs adopted pursuant to the Consumer Fraud Act, N.J.S.A. 56:8--4. Pet Dealers first contends that the regulations in question conflict with Article 2 of the Uniform Commercial Code (N.J.S.A. 12A:2--101 Et seq.) in that the regulations provide the consumer with broader remedies than are available under the Code. The court disagreed, finding that the UCC is intended to give stability and certainty to commercial transactions, not to limit otherwise valid exercise of police powers by the State. Appellant also maintains that the regulations create an invalid classification, contrary to the Equal Protection Clause. The court held the regulations are a valid act of police power that does not evince any invidious discrimination the state's part.

Balch v. Newberry, 208 Okla. 46, 253 P.2d 153, 35 A.L.R.2d 1267, 1953 OK 23 (1953).  In this Oklahoma case, plaintiff purchased a pointer dog for a payment of $800 cash, whom he purchased for breeding purposes. Plaintiff alleged, that for several years prior to March 24, 1947, defendant was engaged in the business of breeding and selling thoroughbred pointer bird dogs at Tulsa, Oklahoma, and that plaintiff had for many years been engaged in the business of operating kennels. In affirming the judgment for plaintiff, the court held that the purchase of a dog with the knowledge of the seller that it is bought exclusively for breeding purposes gives rise to a warranty of fitness for such purpose where the buyer relies upon the seller's skill and judgment that the dog is fit for such purpose. Where a sale of highly bred stud dog for breeding purposes is rescinded for breach of an implied warranty, because of sterility, the purchaser can recover what he paid under the contract and expenses necessarily incident to caring for the dog but he cannot, in addition, recover damages for the breach of the implied warranty of the dog's usefulness for breeding purposes.

Brown v. Faircloth, 66 So.2d 232 (Fla. 1953).  In this Florida case, the defendant appealed from an adverse judgment involving the sale of a bird dog. The complaint alleged that the defendant was a professional bird dog trainer and field trial handler and as such knew the qualifications necessary for a dog to have in order to compete successfully on the major field trial circuit. Plaintiff claimed that, in order to induce the plaintiff to purchase a bird dog then owned by the defendant, defendant falsely represented and warranted that the dog was of such quality and was, as is generally known in field trial parlance, a 'three-hour dog.' After plaintiff had the dog for a short time, the plaintiff found that the warranty as to soundness was not true but that the dog was infected with heart worms at the time of sale and was not a 'three-hour dog.' Thereupon the plaintiff sought to rescind the contract by returning the dog and demanding back the purchase price of which defendant refused. On appeal, defendant contended that the jury instructions failed to inform the jurors that where the sale of an animal for a particular purpose is involved, there can be no recovery for the breach of an implied warranty unless it is shown by the buyer that he or she made known to the seller the particular purpose for which the animal was being purchased and relied on the seller's skill and judgment. The Supreme Court noted that this case was not bottomed upon that theory, but upon the theory that the defendant expressly warranted the dog to be a 'three-hour dog.' This express warranty carried with it the implied warranties that the animal was sound physically, was finished in his training, and was capable of running three-hour races. In other words, the Court was of the opinion that the express warranties defined by the Court in the charge to the Jury embraced and included any defined, implied warranty.

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