America as in England." In the discussion of the question by Schouler in his work on Personal Property (vol. 2, sec. 358,) it is said: "In America the courts of several States have pointedly refused to infer a warranty of quality from contracts for the sale of specific wholesale provisions, or of live animals as articles of merchandise, notwithstanding the ultimate destination of the thing for domestic consumption, though they further intimate that the rule would be otherwise in the retail sale of provisions or meat directly to the consumer. It would seem

to be best, on the whole, to let the ordinary maxim of caveat emptor apply to all sales of specific and selected articles ultimately destined for food, if actually inspected by the buyer and taken upon his own judgment, due regard being paid to the effect of the above legislation or of modern local acts in enlarging the liability of common dealers of food beyond the usual legal exceptions to the maxim; but in the sale of such articles, when unascertained and not inspected by the buyer, who has been obliged to rely upon the seller's judgment,-as in cases where the dealer supplies an order,-to give operation to that implied warranty of fitness which appertains to all other chattels similarly situated." In 10 Am. & Eng. Ency. of Law (p. 153) the author says: "But, generally speak. ing, in the United States the law is, that in all sales of food or provisions for immediate domestic use by one who exposes them for sale or is a dealer, there is an implied warranty of fitness and wholesomeness for consumption."

As early as 1815, in Van Bracklin v. Fonda, 12 Johns. 467, it was held in the State of New York that in the sale of a quarter of beef for domestic use, which was unsound and unwholesome, and known to be so by the defendant, an action on the case would lie against the vendor. In Morris v. Mead, 1 Denio, 367, Chief Justice Brennan, while doubting the rule laid down by Blackstone, referred to the rule laid down in Van Bracklin v. Fonda, supra, and held that in a sale of provisions by a dealer for immediate do

(See, also,

mestic consumption a warranty of wholesomeness would be implied, on the ground of public policy. Burch v. Spencer, 15 Hun, 504; Devine v. McCormick, 50 Barb. 116.) In Winsor v. Lombard, 18 Pick. 62, in the decision of the case, although the point was not directly involved, Chief Justice Shaw said: "In a case of provisions it will readily be presumed that the vendor intended to represent them as sound and wholesome, because the very offer of articles of food for sale implies this; and it may readily be presumed that a common vendor of articles of food, from the nature of his calling, knows whether they are unwholesome and unsound or not." In Goad v. Johnson, 6 Heisk. (62 Tenn.) 340, although the question was not directly involved, a different view was taken. A number of other cases have been cited in the briefs, but it will not be necessary to refer to them here.

The appellee, Henry Keller, was a retail dealer in meats. The appellant called at his place of business and purchased a quantity of pork to be used in her family. The pork turned out to be unwholesome and unfit for use. In England, at common law, there could be no recovery, as there was no implied warranty of quality,-in other words, the rules of law applicable to implied warranties govern and apply in the sales of food and provisions, as in sales of other goods. But there are no special implied warranties in the sale of meats and provisions that do not exist in relation to other articles. (10 Am. & Eng. Ency. of Law, p. 153.) But the law on the subject as established in England does not prevail here. As a gen eral rule, we think the decided weight of authority in the United States is, that in all sales of meats or provisions for immediate domestic use by a retail dealer there is an implied warranty of fitness and wholesomeness for consumption. There is, however, no implied warranty of soundness or wholesomeness arising from the sale of meats or provisions to a dealer or middle-man who buys on the market, not for consumption, but for sale to others.

Nor would there be any liability, in a sale for immediate domestic use, where the vendor was not a regular dealer. (10 Am. & Eng. Ency. of Law, p. 157.) In this case, however, the appellee was a regular retail dealer, and as such he sold the meat to appellant for domestic use, and, under the law as it seems to be settled in this country, as the meat turned out to be unwholesome, he was liable, although he was not aware that it was diseased when he sold it to appellant.

In an ordinary sale of goods the rule of caveat emptor applies, unless the purchaser exacts of the vendor a warranty. Where, however, articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound article may be so serious and may prove so disastrous to the health and life of the consumer that public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound and fit for the use for which it was purchased. It may be said that the rule is a harsh one; but, as a general rule, in the sale of provisions the vendor has so many more facilities for ascertaining the soundness or unsoundness of the article offered for sale than are possessed by the purchaser, that it is much safer to hold the vendor liable than it would be to compel the purchaser to assume the risk. Moreover, we have a statute which makes it a crime for any person to sell or offer to sell, or keep for sale, flesh of any diseased animal. (Hurd's Stat. 507.)

Sheffer v. Willoughby, 163 Ill. 518, has no bearing on this case, as that case was predicated by the plaintiff upon the sole ground of the negligence of the defendant.

From what has been said it follows that the court erred in the instructions to the jury, and for that reason the judgments of the Appellate and circuit courts will be reversed and the cause remanded.

Reversed and remanded.

THE NORTH CHICAGO STREET RAILROAD COMPANY

v.

LEMUEL M. ACKLEY.

Opinion filed December 22, 1897-Rehearing denied February 3, 1898.

1. PRACTICE—in chancery-decree pro confesso concludes the defendant only as to truth of averments of bill. A decree pro confesso, entered by default to a bill in chancery, concludes the defendant only as to the truth of the averments, and the sufficiency of the bill itself and the averments contained therein may be attacked, on appeal, as not justifying the decree.

2. ASSIGNMENT-general rule as to the assignment of causes of action arising from torts. Causes of action arising from torts to property, real or personal, or from injuries to the decedent's estate which decrease its value, are assignable; but torts to the person or character, where the injury or damage is confined to the body or feelings, are not assignable. (CRAIG and MAGRUDER, JJ., dissenting.)

3. SAME—the survival of a cause of action is not the sole test of its assignability. Whether a cause of action survives the party in whom it was vested is not the sole test for determining the question of its assignability.

4. SAME-purpose of act providing for survival of action for personal injuries resulting in death. The purpose of the act concerning the survival of an action for personal injuries which result in death, (Rev. Stat. 1874, p. 582,) is to enable the personal representatives of the deceased to recover damages "for the exclusive benefit of the widow and next of kin."

5. SAME-right of action for personal injuries is not assignable. The sale or assignment of a right of action for personal injuries is void, on grounds of public policy, as the law will not regard the right of a citizen to recover damages for injuries to his person as a commodity of sale. Nor does the statute which provides for the survival of actions for personal injuries resulting in death make such actions assignable. (CRAIG and MAGRUDER, JJ., dissenting.)

6. CONTRACTS-contract forbidding client to compromise suit is void. A contract between an attorney and client whereby the client agrees not to compromise or settle his claim is void, as tending to foster and encourage litigation.

7. SAME-when contract between attorney and client is invalid—right to compromise suit. A contract whereby a person assigns one-half of her right of action for personal injuries to her attorney, who is to conduct a suit for damages for one-half the amount recovered, and whereby the client agrees not to compromise or settle the

claim, is invalid; and the defendant to the damage suit may, with notice of the contract, compromise with the plaintiff without the knowledge or consent of her attorney, and will not be liable to the attorney for his part. (CRAIG and MAGRUDER, JJ., dissenting.)

North Chicago Street R. R. Co. v. Ackley, 58 Ill. App. 572, reversed.

APPEAL from the Appellate Court for the First District; heard in that court on appeal from the Superior Court of Cook county; the Hon. PHILIP STEIN, Judge, presiding.

Appellee filed his bill against appellant, alleging that in 1891 Mrs. Mary Butler was injured while alighting from a cable car of the defendant, by reason of the negligence of the grip-man; that she employed the complainant as her attorney, upon a contingent fee, by a contract in writing, whereby he agreed to take exclusive charge of the matter and prosecute such parties as he might deem liable for such injuries, and begin and prosecute diligently to final settlement such suits or legal proceedings as he might deem necessary; that he was to receive a sum equal to one-half the gross amount recovered or received on account of such injuries, and to secure the payment of such fee Mrs. Butler assigned to the complainant and his assigns one-half of such right of action, and agreed to assign in proper legal form, in writing, upon request, one-half of any verdict or judgment which might be had or recovered by reason of such accident and injury; that Mrs. Butler further agreed to pay the costs, and not to settle or compromise such claim, or have any dealings with any person in reference thereto other than such attorney, but if the matter were settled before the suit was placed on the trial call, the fees were to be less than one-half, in proportion to the work done up to the date of such settlement. This contract was signed and sealed by the parties September 2, 1891. The bill then recites a collateral verbal agreement, made at the same time, whereby the complainant agreed to employ associate counsel, and states