Dempsey v. Rosenthal

Ruby Dempsey (plaintiff) purchased a nine-week-old white poodle from a pet store run by American Kennels (defendant). Dempsey paid $541 for the dog and named it Mr. Dunphy. The contract allowed for a full refund if, within two weeks of the sale, a veterinarian determined that the pet was sick and unfit for purchase. Shortly after the purchase, a veterinary exam revealed that Mr. Dunphy had one undescended testicle because of a congenital condition. Dempsey, convinced that Mr. Dunphy was incapable of breeding, attempted to get a refund from American Kennels, which refused. Shortly after, another veterinarian confirmed the diagnosis. American Kennels stood by its refusal to issue a refund, and Dempsey filed suit. At trial, both of Dempsey’s veterinarians testified. Dr. Malcolm Kram conceded that, despite Mr. Dunphy’s condition, he was in good health. Moreover, according to Dr. Kram, Mr. Dunphy had the same level of fertility as a dog without the condition. Dr. Kram also stated that the condition was genetic and would be passed on to a litter, but passage of the condition might eventually cease. Finally, Dr. Kram opined that Mr. Dunphy could not be a show dog. Neither of Dempsey’s veterinarians stated that Mr. Dunphy was sick and unfit for sale. American Kennels offered the testimony of its veterinarian, Dr. Richard Holmes, who had also examined Mr. Dunphy. Dr. Holmes testified that he had found both testicles in the scrotum. Dempsey argued that American Kennels violated an implied warranty of merchantability under the Uniform Commercial Code (UCC).