ME 113.1^' ^j.fG^ Mib«i«rfKin«iiii.v Justice Buller, and before him, Mr. Justice Ashhurst, had often drawn declarations in that way in the course of their prac- tice as pleaders. The case of Stuart v. Wilkins, was the first wherein the question was regularly discussed, and that mode of declaring estabhshed ; but ever since that time, I have myself drawn a hundred declarations on the same subject in tort. There are many precedents of that sort in the books where a warranty is stated. Clift. Entr. 932, 4, 5, 6, and several others in the same book. Thomp. 40, 20. And these are not drawn as laying the gravamen on the deceit, as in the case alluded to of Dowding v. Mortimer, but on the wai-ranty broken. Therefore, considering what has been the common practice of pleading, till of late years, I think it very probable that in the case before Lord Raymond the declaration was in tort, and if so, it would be directly in point. With respect to what averments are necessary to be proved, I take the rule to be, that if the whole of the averment may be struck out, with- out destroying the plaintiff's right of action, it is not necessary to prove it ; but otherwise, if the whole cannot be struck out, without getting rid of a part essential to the cause of action ; for then, though the averment be more particular than it need have been, the whole must be proved or the plaintiff cannot recover. This distinction was taken by Mr. Justice Buller in Pippin V. Solomon 5 Term Reports 496, where he takes notice of the case of Bristow v. Wright, and observes that it was there neccessary for the plaintiff, in showing that he was landlord, to set forth a contract between himself and the tenant, and that no part of the contract alleged could be struck out, being Warranty on the Sate of Personal Property. 79 Williamson v. Allison. in its nature entire, and necessary to be proved as alleged. But in the principal case, he said that the averment (which was that the ship sailed after the making of the policy declared on) did not arise out of the contract, nor was the contract, as alleged, made to depend upon it ; and that if the averment there in question had been altogether omitted, the declaration would stih have contained a perfect cause of action. So here, if the scienter be struck out altogether, the plaintiff may still maintain his action in tort on the warranty broken. Le Blanc, J. The insertion or omission of the fact of the defendant's knowledge at the time, that the wine was unfit for sale, according to the warranty, makes no difference in the cause of action declared on, and therefore it may be struck out altogether ; but in another form of declaring it may be made material. Rule discharged. TRINITY TERM. 12 EAST. 452. JUNE 27, 1810. Weall V, William King and Henry King. Upon a declaration in case, alleging a deceit to have been effected upon the plaintiff by means of a warranty made by two defendants upon a Joint sale to him, by both, of sheep, fheir Joint property, the plaintiff cannot recover upon proof of a contract of sale and warranty by one only as of his separate property, the action, though laid in fori, being founded on the Joint contract alleged. The plaintiff declared that on the 10th day of October, 1805, the defendants, at Weyhill Fair, exposed to sale two hundred Southdown lambs, as and for stock, i. e., sound lambs, and thereupon the plaintiff bargained vnth the defendants for the said lambs, as and for stock, i. e., sound lambs, at and for a certain price, to be therefore paid by the plaintiff to the defendants for the- same, and the defendants, by then and there falsely and fraudulently warranting the said lambs to be stock, i. e., sound lambs, then and there falsely, fraudulently and deceitfully sold the said 200 Southdown lambs to the plaintiff as and for stock, i. e., sound lambs, for a large price, to-wit : £400, which was afterwards paid by the plaintiff to the defendants for the same, whereas, in fact, the said lambs, at the time of the sale and 80 WarrarUy on the Sale of Personal Property. Weall V. King. warranty of them, as aforesaid, were not stock, i. e., sound lambs, but were unsound and afflicted with the rot, by means whereof 37 of them died, and the rest became useless to the plaintiff, and the plaintiff lost the price and expected profit of them, &c. There were other counts laying the contract in different ways, but all of them charging it as a joint contract made by the defendants with the plaintiff. The defendants pleaded not guilty ; and at the trial before Heath, J., at Croydon, the plaintiff proved a warranty to the effect above stated, made by the defendant, Henry King, but there was no evidence to affect the other defendant, William King, on which it was ob- jected, by the defendants' counsel, that the evidence did not maintain the declaration. To which it was answered that the action arose on the tort and not on the contract. But the learned judge allowed the objection and nonsuited the plain- tiff, stating that in his consideration of the case, if that reason- ing were to prevail, every breach of promise might be converted into a tort. And, further, that if this declaration could be con- sidered as laid in tort founded on a contract, he should have submitted the case of Govett v. Radnidge, and others, 3 East. 62, on which the plaintiff's counsel principally relied for the reconsid- eration of the court of K. B., how far the same could be recon- ciled with the cases of Bristow v. Wright, Dougl. 666, and Boson V. Sanford, Skin. 278, Salk. 440, more especially as the court of conimon pleas had lately, in two cases of Powell v. Layton, 2 New. Rep. 365, and Max v. Roberts, 2 New. Rep. 454, decided after mature consideration against the authority of Govett V. Radnidge under similar circumstances. A rule nisi was afterwards obtained by Garrow, in last Michaelmas term, for setting aside the nonsuit, which, in Easter term, was opposed by Marryat and Lowes, and supported by Garrow and Espinasse. I was not present in court at the time when the case was argued, but the subject seems to have been exhausted in the reports of the cases before referred to. And after time taken by the court to consider of the case and the conflicting authorities. Lord Ellenborough, C. J., now delivered judgment. This was an action against two defendants for deceit, stated to have been committed in a joint sale, alleged in the declaration to have been made by them, of some sheep, their joint property, and to have been warranted by them to be stock, or sound, sheep, and which proved to be unsound, and the question is whether the nonsuit, which proceeded on the ground of there being no evidence in the case to affect William King, one of the defendants, be maintainable. The argument, on the part of the plaintiff, has been that this is an action founded on the tort, Warramiy on the Sale of Personal Property. 81 Weall V. King, that torts are in naturetheir several, and that in actions of tort one defendant may be acquitted and others found guilty. This is unquestionably true, but still is not sufficient to decide the present question. The declaration alleges the deceit to have been effected by means of a warranty made by both the defend- ants in the course of a joiiit sale, by them both, of sheep, their joint property. The joint contract thus described is the founda- tion of the joint warranty laid in the declaration and essential to its legal existence and vaUdity, and it is a rule of law, that the proof of the contract must correspond with the description of it in all material respects, and it cannot be questioned that the allegation of a joint contract of sale was not only material, but essentially necessary to a joint warranty, alleged upon record to have been made by the supposed sellers by whatever circumstances and in whatever action, be the same debt, assumpsit, or tort, the allegation of a contract becomes necessary to be made, and such allegation, or any part of it, cannot (as here it certainly cannot) be rejected as mere surplusage, such allegation requires proof strictly corresponding therevrith ; it is in its nature entire and indivisible, and must be proved as laid in all material respects. We prefer deciding this case upon a principle which is certain and universal, rather than by a refer- ence to any cases either of doubtful authority or in which the particular facts may seem to afford a special rule of construction. In this case a joint contract was necessary to be laid in order to maintain the ground of action, as stated upon the record, and being so laid, and not being proved, the plaintiff wa." properly nonsuited. Rule discharged. FIFTY-FIFTH YEAR GEORGE III. APRIL 15, 1815. 6 TAUNTON'S^REPORTS, io8. Laing v. Fidgeon. In every contract to furnish manufactured goods, however low the price, it is an implied term that the goods shall be merchantable. A contract to furnish goods with a certain latitude as to price, as saddles at 24J@26j, may be described as a contract to furnish them at a reasonable price. 82 Warranty on the Sale of Personal Property. Laing v. Fidgeon, The plaintiff declared that in consideration that he would buy of the defendant divers goods, to-wit : (amongst other ar- ticles) 48 saddles, at and for reasonable prices, to be paid by the plaintiff to the defendant, the defendant undertook to sell and deliver to the plaintiff such quantity of such goods, of a good and merchantable quality, and to charge fair and reasonable prices for the same, and averred a breach, that the goods de- livered were not of a good and merchantable quality. Upon the trial of the cause at Guildhall, at the sittings after Hilary Term, 1815, before Gibbs, C. J., (4 Campb. 169) the evidence was that the defendant, having previously sent to the plaintiff a sample of the saddles that could be furnished at the price aforementioned, the plaintiff gave him an order for " Goods for North America, 3 dozen single flap saddles, at 24s@26s, with cruppers, &c." It was proved that the saddles delivered were of very inferior materials and workmanship, and useless and unmerchantable, and they did not correspond vrith the sample. After verdict for the plaintiff, Vaughan, Sergt., now moved to set it aside and have a new trial, upon the ground of a variance between the contract averred and the contract proved ; for that, first, there was no proof of any contract that the goods should be merchantable ; and the price fixed being so low that a good saddle could not be made for that money, the plaintiff was thereby sufficiently apprised what species of goods he was to expect ; there was no warranty in fact, and the law did not, under these circum- stances, imply a warranty that the goods were merchantable. In respect to the price, he urged that the proof was, of a con- tract to sell them at a price varying from 24s to 26s, without reference to the question whether that price were reasonable ; and a reasonable price might much exceed 26s. The plaintiff ought to have declared on a contract to furnish them at 24s or 26.S. The Court held that, as to the first objection, although there was no express contract that the article should be merchanta- ble, it resulted from the whole transaction that the article was to be merchantable ; the defendant might have rejected the order, but, having accepted it, he ought to furnish a merchant- able article. It was objected to the form of the declaration that it averred a contract to sell at a reasonable price, but that the evidence proved a contract to sell at a stated price. Look- ing at the order, the court thought it was not a contract to sell at a stated sum, but at a price near about those sums ; that it might well be described as a reasonable price ; and they Refused to grant a rule. Warrmity on the. Sale of Personal Property. 83 E. C. L. REP. I, 446 AND 6 TAUNTON 466—2 MARSH 141— 1816. Yates V. Pirn. On a warranty of prime, singed bacon, evidence is not admissible of a practice in the bacon trade to receive bacon to a certain degree tainted as prime, singed bacon. Nor of a practice to preclude the purchaser from all remedy if he does not dis- cover and point out the defect by an early day. This was an action upon a sale note, dated 29th March, to " the plaintiff of 58 bales of prime, singed bacon, at 68s per cwt., arrived payable by an acceptance at two months from arrival, average weight if required," brought to recover dam- ages upon the ground that the goods did not answer the character of prime, singed bacon. Upon the trial of the cause at Guildhall, at the sittings of the Michaelmas term, 1815, be- fore Heath, J., it was proved that the plaintiff examined, as sample, one bale of the bacon on the 31st of March, and three bales on the 3d of April, when the bacon was weighed off, and the plaintiff afterwards gave a bill for the amount. It is usual to inspect bacon by average, trying three bales in 50, or five bales in 100. If an average is to be taken for taint, it is usual so to express it in the contract. If bacon be prime, a taint in an immaterial part, does not prevent it from answering that character, but that does not taint the whole. The bacon in question was too much tainted to be deemed prime. Shep- herd, Solicitor General, offered evidence that bacon, being an article which necessarily deteriorates by keeping and has, even from the beginning a nascent taint, so that it cannot by inspection after a considerable interval, be known whether it were perfectly sweet when it was first deposited in the ware- house ; an usage had been established in the trade, that a certain latitude of deterioration, called average taint, was allowed to subsist before the bacon ceases to answer the description of prime bacon ; and also, that if a purchaser does not make his objection within a reasonable time, he is precluded raising any claim on any defect of quality in the bacon. Heath, J., held that the contract amounted to a warranty that it was prime, singed bacon, and being in writing, could not be added to by parol evidence, nor altered by a practice often used to dispense with the breach of the warranty ; and that, although the plaintiff had kept the goods, he might recover in this action. The jury found a verdict for the plaintiff. The Solicitor General in this term, moved to set aside the 84 Warranty on the Sale of Personal Property. Yates v.- Pirn. verdict and enter a nonsuit, upon the ground that the learned judge ought to have admitted the evidence. He could not forego this opportunity of expressing, that no man felt, or ever would feel, a stronger reverence than he did, for the opinions and decisions of that learned judge ; he con- sidered it as a debt of gratitude not to omit the occasion of uttering the sentiments, not only of himself, but of all his brethren at the bar, to express the unfeigned respect that they felt for the memory of the deceased, not only as a most upright and learned judge, but as a most good and valuable man, in which sentiment the court followed him most cordially. He contended that he set up this custom, not in contradis- tinction to the written contract, but as a term which the pecu- liar law of the trade engrafted on it, although not expressed ; as by the law merchant the three days' grace are added on a bill of exchange, though not expressed on the bill ; and as the period of credit prevailing in a particular trade attaches itself on a sale note of these goods, though it express no time of payment, and therefore is in its ordinary acceptance, a contract for payment on delivery. The purpose of this contract was for taking the case out of the statute of frauds, not for the purpose of excluding all other customs of trade. Gibbs, G. J. All the plaintiff's witnesses say, that if it be prime, singed bacon, it cannot be tainted. They also state, that when an allowance is made for taint, it is expressed in the contract ; but that is not the ground on which the defendant's counsel puts it, but that if the buyer does not examine it by a certain day, and point out the defect before a certain time, he can never afterwards object, but must take it at the price agreed on, though it be putrid. This can never be ; it would lead to great mischief. If a purchaser does not object to the quahty in a reasonable time, a strong use may be made of that circum- stance, but the use is, that a conclusion arises that the injury has accrued since the sale ; that, however, may be rebutted, and it is gone by, and the defendant has had the benefit of that argument in his address to the jury. I cannot think that any custom of trade can be admissable to prove that proposition now contended for ; and my brother Heath, for whose opinion we have always felt such a just deference, was right in this, as he was in most other cases that ever came before him. The rest of' the court concurring, the rule was refused. Warranty on the Sale of Personal Property. 85 I STARKIE 107. 1815. Okell V. Smith e^ al. Where utensils to be used in trade have been contracted for and delivered at a stipulated price, it is a question for the jury, whether the vendee, who com- plains that they are unfit for the purpose for which they were intended, has used them further than was necessary in order to give them a fair trial. And, if not, the commodity being bulky, and after a reasonable trial found to be unfit for such purpose, the vendor, upon notice given, is bound to take them away ; but if the vendee retain the utensils, without giving such notice, he is lia- ble to pay for the vajue of the materials. Assumpsit for the price of sixteen copper pans. These pans had been made by the plaintiff, under a contract, by which he engaged that they should be sound and be made of the best materials, to be paid for at a certain stipulated price, by bill at two months. The defendants, after five or six trials, found that the pans were not sound, and would not answer the purpose for which they were intended, Ariz : the manufacture of vitriol. Park, for the plaintiff, contended that the defendants, having used the pans several times, were precluded from disputing the payment at the rate stipulated for. But, Bailey, J., held that this was a question for the jury, whether the defendants had used the pans more than was necessary in order to give them a fair trial. Park, for the plaintiff, assimilated the case to that of Morgan V. Richardson, 1 Gampb. 40 m., and as the argument was for an entire sum, contended that the defect in the pans was properly the subject of a cross action ; and he attempted to distinguish the case from that of Farnsworth v. Garrard, 1 Gampb. 38, and others of that description, where the articles were wholly unfit for use. The Attorney General and Gampbell answered that in Mor- gan V. Richardson, a bill of exchange was given. In Fisher v. Samuda, 1 Gampb. 190, where a wall had been built so im- properly that no benefit whatever had been derived from the service, it was held that the plaintiff was not entitled to recover even the value of the brick and mortar, and, in general, where the article is bulky, it is not necessary to return it ; it is sufS- cient to give notice to the other party. Bailey, J. The plaintiff certainly is not entitled to recover the full price stipulated for by the contract, according to which he was bound to furnish pans capable of answering the pur- poses for which they were ordered. If the defendants, after 86 Warranty on the Sale of Personal Property. Okell V. Smith. giving them a reasonable trial, found them insufficient for the purpose, and gave notice to that effect to plaintiff, he was bound to take them away, and they remained at his risk ; but if no notice was given, but the defendant retained the pans, they are liable to pay as much as the materials are worth. The action was aftewards referred. Park, for the plaintiff. Garrow, A. G., and Campbell, for the defendants. I STARKIE 104. U. P.-i8i6. Bridge v. Wain. Goods sold are described in the invoice as Scarlet Cuttings; a warranty is to be inferred that the goods answered the known mercantile description of Scarlet Cuttings. In an action of assumpsit it is alleged, as a breach, that certain goods sold and delivered to the plaintiff, and warranted to be scarlet cuttings, were not scarlet cuttings, /??- quod, they became and were of no use or value to the plain- tiff. The plaintiff is entitled, without any further allegation of special damage, to recover as much as the goods would have been worth to him had t he contract been faithfully performed by the defendant. This was an action of special assumpsit. The declaration alleged a purchase by .the plaintiff, from the defendant, of scarlet cuttings, to the amount of £904, and all the counts, except the sixth and last count, alleged a special warranty by the defendant, that the scarlet cuttings were of a merchantable quality ; the sixth count alleged an undertaking that they were scarlet cuttings. It appeared in evidence that scarlet cuttings consisted of small pieces of scarlet cloth, in which the English dealt with the Chinese to a considerable extent. It was also proved that scarlet cuttings were understood, in the market, to mean cut- tings of cloth only, without any admixture of serge, or other materials, and that the article sold to the plaintiff did contain a quantity of serge, and that a part consisted of mere shreds of cloth, much smaller than those usually sent, and that goods of this description would be very unprofitable, if not wholly un- saleable, in China, and that a sale of such, without examina- tion, might prove very detrimental to the trader, who would Warranty on the Sale of Personal Property. 87 Bridge v. Wain, afterwards be regarded with great suspicion in the Chinese market. No special warranty was proved, but it appeared that, in the bill of parcels, the goods were described as scarlet cut- tings. Upon it being objected that no warranty had been proved, Lord Ellenborough. If they were sold by the name of scar- let cuttings, and were so described in the invoice, an underta- king that they were such must be inferred. To satisfy an allegation, that they were warranted to be of any particular quality, proof must be given of such a warranty, but a war- ranty is implied that they were that for whigh they were sold. Scarlett afterwards addressed the jury on the subject of damages ; he also submitted to the court that since the plaintiff could not recover on any count except the sixth, since all the others alleged an express warranty, and since the breach alleged in the sixth count was merely that " they were not scarlet cuttings, but shreds, serges, &c., and became and were of no use or value to the said plaintiff," the plaintiff was not entitled to recover any special damage whatever, no special damage having been alleged in the sixth count, and that he could not recover more than the mere difference in value be- tween the article delivered and that contracted for without reference to any specific particular loss resulting from the loss of sale in China. Lord Ellenborough (to the jury.) The difficulty in this case consists in ascertaining the damages sustained by the plaintiff, in consequence of his not having been furnished with proper scarlet cuttings ; we have no account of the sum actually pro- duced by the sales. Under the words of the sixth count, that they were of no use or value, you are to consider the effect of their being of no use or value in China. I am decidedly of opinion that by value, it is to be imderstood, the value which the plaintiff would have received had the defendant faithfully performed his contract. After his lordship had fully com- mented upon all the facts of the case, the jury found a verdict for the plaintiff on the sixth count ; damages, £350. Garrow, A. G., and Campbell, for the plaintiff. Scarlett, and V. Lawes, for the defendant. In the ensuing term, Scarlett moved for a new trial, on the ground of a misdirection by his lordship on the subject of damages, but the court refused a rule to show cause, being of opinion that the plaintiff was entitled to recover under the ■ sixth count all the loss which he had sustained in consequence of not having in China those goods which the defendant had undertaken to supply. 88 Warranty on the Sale of Personal Properly. I STARKIE. 384. U. P. 1816. Bluett V. Osborne et al. A sells to B a bowsprit which, at the time of the sale, appears to be perfectly sound, but which, after being used some time, turns out to be rotten ; in the absence of fraud A is entitled to recover from B what the bowsprit was appar- ently worth at the time of delivery. This was an action of assumpsit for goods sold and delivered. The question was 'as to the price of a bowsprit supplied by the plaintiff to the defendants. No specific price had been stipu- lated for ; the vessel sailed, and upon her arrival at Madeira the bowsprit, upon being cut up, was found to be rotten. The defendants had an opportunity of inspecting the bowsprit, which appeared, at the time of delivery, to be in every respect good and perfect. It was contended for the defendants that they were not liable to more than the real value of the bowsprit, and the case of Farnsworth v. Garrard, 1 Gampb. 38, was referred to. And that there was an implied warranty on the part of the vendor, that the article should be made of good and sufficient materials. Lord Ellenborough. A person who sells, impliedly warrants that the thing sold shall answer the purpose for which it is sold ; in this case the bowsprit was apparently good and the defendants had an opportunity for inspecting it. No fraud is complained of, but the bowsprit turned out to be defective upon cutting it up. I think the plaintiff is not liable on account of the subsequent failure. In the case cited what the plaintiff deserved was the value of the building, what he deserves here is the apparent value of the article at the time of the delivery, supposing the price to have been paid on delivery, could it have been recovered back ? Verdict for plaintiff. Damages £60. Garron, A. G., and for the plaintiff. Jervis and Barnwell for the defendant. In the ensuing term the court refused a rule nisi for a new trial \ Warranty on the Sale of Personal Property. 89 MICHAELMAS TERM. FORTY-EIGHTH GEORGE III. 1807. I CAMPBELL'S REPORTS 113. Hibbert v. Shee et al. Saturday, December 19. In the sale of goods by sample, if the bulk does not accord with the sample, the purchaser is not bound to accept or pay for the goods on any terms ; although no fraud was intended on the part of the vendor, and although the custom may have been that under such circumstances, the bargain shall stand good upon an allowance being made for the inferiority. Assumpsit for goods bargained and sold. Plea, the general issue. At a public sale on the 9th of April last, the defendants pur- chased of the plaintiff, by sample, sixteen hogsheads of sugar at eighty shillings per cwt. On examining the sugars purchased it was found that they by no means corresponded in color with the samples ; and in the opinion of the brokers who saw them, they were less valuable by five or six shillings a hundred weight. The plaintiff, nevertheless, required that the defend- ants should take the sugars on being allowed a compensation for the inferiority, insisting that according to the usage of the trade when samples have been drawn without fraud, and the bulk, notwithstanding, proves inferior, sworn brokers are to be called in to estimate the difference, and the vendor making an allowance for this, the purchaser must stand to his bargain. The defendants refused to accede to this proposal, as they alleged the sugars were unfit for the purpose for which they had bought them. It appeared that the hogsheads of sugar in question arrived in the West India docks in the end of November, 1806, and that in pursuance of the dock act, as they were landed, samples were taken, which were the samples exhibited at the sale on the 9th of April following. From being exposed to the air during this long interval they had become much whiter than when originally taken, or than fresh samples drawn on the 11th day of April, although the latter, on being produced to the jury, now appeared nearly of the same hue. The witnesses stated that both were of equal grain, and likely to contain the same quantity saccharine matter, so that at the time of the sale they would have been of equal value to the sugar baker, but that for retail much more depends upon colour than the quality. 90 Warranty on the Sale of Personal Property. Hibbert v. Shee. The act of Parliament enables the importer of sugars at any time to obtain fresh samples, while the purchaser at a public sale has no means of knowing when the samples exhibited have been drawn. The plaintiff's counsel rested their case chiefly on the usage, which, they contended, must govern and explain the contract between the parties. In support of it several brokers of great experience were examined, who swore that making an allow- ance for the difference was the common mode of settling dis- putes of this kind, although they had known a few instances where, by consent, the sugars had been returned to the vendor. Lord EUenborough. — The question here is whether the con- tract has been substantially performed. Does the sugar accord "with the sample exhibited at the sale ? If I buy a commodity wholly discordant to that which is promised -me, I am not bound to accept of a compensation for the dissimilarity. This is not a performance of the contract. And though there should prevail a habitual mode of arrangement between dealers in the articles, I have always a right to say, " is this what I meant to purchase ?" A spirit of candor and accommodation may lead to a compromise between the parties, but the legal mode of dealing is, that, if the article agreed on is not furnished, I may reject it and keep my money in my pocket. It appears that with respect to sugars there will be a difference between the bulk and the sample where the sample has been for some time exposed to the air, and if the party had full notice when the sample was drawn he might be expected to calculate upon the difference ; but all that is communicated at these sales, is that the sugars, of which samples are produced, he in the docks, and the bidders have a right to presume that the samples have been recently drawn. Did the sugar in question then accord in quality with the sample, and was it fit for the purposes in the contemplation of the purchasers ? Verdict for the defendants. The Attorney General Garrow and A. Moore for the plaintiff'. Park and Marryat for the defendant. Warranty on the Sale of Personal Property. 91 MICHAELMAS TERM, 1821. 7 ENGLISH COMMON LAW, 82. Shepherd v. Kain. Where an advertisement for the sale of a ship described her as a " copper fas- tened vessel," adding that the vessel was to be taken with all faults, without any allowance for any defects whatsoever, and it appeared that she was only partially copper fastened, held that notwithstanding the words "with all faults, &c.," the vendor was liable for the breach of the warranty. Case for the breach of a warranty as to the character of a ship. The advertisement for the sale of the ship described her as " a copper fastened vessel," but there were subjoined these words : " The vessel, with her stores, as she now lies, to be taken with all faults, without allowance for any defects whatso- ever." It appeared at the trial, at the last Guildhall sittings, before Best, J., that the ship, when sold, was only partially copper fastened, and that she was not called in the trade a copper fastened vessel. It appeared, also, that the plaintiff, before he bought her, had a full opportunity to examine her situation. Best, J., thought that the ship not being a copper fastened vessel, the plaintiff was entitled to a verdict, and di- rected the jury accordingly. And now. The Solicitor General moved for a new trial. He referred to Baglehole v. Walters, 3 Campb. 156. But, per euriam. The meaning of the advertisement must be that the seller will not be responsible for any faults which a copper fastened ship may have. Suppose a silver service sold, " with all faults," and it turns out to be plated, can there be any doubt that the vendor would be liable? " With all faults" must mean with all faults which it may have consistently with its being the thing described. Here the ship was not a copper fastened ship at all, and, therefore, the verdict was right. 92 Warranty on the Sale of Personal Property. EASTER TERM. 1825. 4 BARNWALL & CRESSWELL, io8. Gray et al. v. Cox et al. Where the plaintiff in assumpsit alleged that in consideration that he would buy a quantity of sheathing copper of the defendant, at a certain price, the defendant undertook that it should be good, sound, substantial and serviceable copper Held, that this warranty was not proved by showing a purchase of copper sheathing at the ordinary market price, no express warranty had been given. Qumre, whether such evidence would have been sufficient to prove an allegation that the defendants promised that the article sold should be reasonably fit for sheathing copper. * Assumpsit. The first count of the declaration stated that, in considera- tion that the plaintiffs, at the request of the defendants, had agreed to purchase of the defendants a quantity of goods and merchandise, to- wit : 300 plates of copper sheathing of a cer- tain weight per foot, to-wit, &c., at and for a certain price agreed upon between them, to-wit, &c., the defendants under- took to furnish the plaintiffs with such goods and merchandise as aforesaid, of a good, sound, substantial, and serviceable quality. Averment that the plaintiffs, relying upon that under- taking, did buy the copper at the price aforesaid, but that the defendants did not furnish such goods as aforesaid of a good, sound, substantial or serviceable quality, but on the contrary did, instead thereof, supply the plaintiffs with certain plates of copper sheathing, of a very bad, unsound, and worthless qual- ity, by means whereof the plaintiffs, having affixed and fastened the said copper plates to a certain ship or vessel of them (plaintiffs) were forced to lay out a large sum of money in taking them off again and procuring other sheathing plates, and affixing them to the said ship. The second count varied in some immaterial respects from the first, but had a warranty in the same words as before. There were several other counts, without any material variation in the statement of the war- ranty. Plea, general issue. At the trial before Abbott, C. J., at the London sittings after Hilary term, 1824, it was proved by a bill of parcels and receipt given by the defendants, that in May, 1821, they had furnished to the plaintiffs for the ship Coventry a quantity of what they called " sheathing copper," and the price charged was the mar- ket price of the day for that article. No express warranty was WarroMty on the Sale of Personal Property. 93 Gray v. Cox. proved ; the vessel was coppered by shipwrights employed by the plaintiffs. The vessel made one voyage to Demerara, and returned in January, 1822, when a great part of the copper was found to be full of holes, and unfit for further use ; it was diminished in weight more than usually happens in the same space of time. Several witnesses proved that copper sheath- ing generally lasted four or five years, but admitted that the article in question was copper, and appeared good when put on the ship, and that no defect could be discovered by inspection of the article. The defendants were not the manufacturers of the copper, but procured it from the manufacturer, and resold it at a profit of 5 per cent. It was admitted that no imputation of fraud could be cast upon the defendants, and that it must be considered that they were ignorant of the defective quality of the copper. Upon this evidence it was urged that the plaintiffs ought to be nonsuited, no warranty of the copper having been proved. The Lord Chief Justice was of opinion that the defendants, having sold the copper to be applied to a specific purpose, and having received for it the market price of the day, must in law be considered as warranting it t(? be rea- sonably fit for that purpose ; and under this direction the plain- tiffs obtained a verdict. In Easter term a rule nisi for a new trial was obtained, against which, in Michaelmas term, Scarlett, and J. L. Adolphus showed cause, and Gurney & Campbell supported the rule, and, by the direction of the court, the case was again argued in this term by J. L. Adolphus for the plain- tiffs and Campbell for the defendants. For the plaintiffs were cited : *Jones v. Bowden, 4 Taunt. 847 ; *Weall V. King, 12 East. 452 ; * Yeats v. Pirn, 2 Marsh, 141 ; *BridgeB. Wain, 1 Stark. W. P. C. 504; *Chandelor v. Lopus, Cro. Jac. 4; *Pasley v. Freeman, 3 T. R. 51 ; Fisher v. Samuda, 1 Campbell, 190; Gardner v. Gray, 4 Campb. 144; *Bluett v. Osborne, 1 Stark. N. P. C. 384; *Laingv. Fidgeon, 6 Taunt. 108; Prosser v. Hooper, 1 B. M.; *Parkinson v. Lee, 2 East. 314. Gwr. adv. vult. The opinion of the court was now delivered by Abbott, C. J., who (after stating the pleadings) proceeded as follows : At the trial of this cause, no evidence of an express warranty was given. The proof was that the plaintiffs offered a certain quantity of copper sheathing, and paid for it a fair market price. The plates were affixed to the vessel by a shipwright who did not then discover any defect in them, nor could any defect be discovered by inspection. The defendants were copper merchants, not manufacturers. It appeared also, that on the return of the vessel, from her first voyage after the copper was put on, many of the plates 94 Warranty on the Sale of Personal Property. Gray v. Cox. were corroded by the salt water and full of holes, so as to make it necessary to supply them by new ones. At the trial it occurred to me, that if a person sold a com- modity for a particular purpose, he must be understood to warrant it reasonably fit and proper for such purpose. I am still strongly inclined to adhere to that opinion, but some of my learned brothers think differently. Supposing, however, my opinion to be correct, still the plaintiffs have not declared on a warranty or promise of thatnature, but upon a general warranty ; and we are all of opinion that such a general warranty does not arise, nor can be implied in law from such a contract or sale as the present. For this reason we think that the opinion expressed by me at nwi prius was incorrect, and that the rule for a new trial must be made absolute. Rule absolute. EASTER TERM. 1829 5 BINGHAM 533. Jones V. Bright ef al. The plaintiff purchased from the warehouse of the defendant, the manufacturers- copper for sheathing a ship. The defendant, who knew the object for which the copper was wanted, said, " I will supply you well." The copper, in consequence of some intrinsic defect, the cause of which was not proved, having lasted only four months, instead of four years, the average duration of such an article. Held, in an action on the case in the nature of a deceit, that the plaintiff was entitled to damages. The tenth count of the declaration stated that the plaintiff on, &c., at &c., at the special instance and request of the de- fendants, bargained with the defendants to buy of them, and the defendants then and there agreed to sell to the plaintiff 1,000 sheets of copper, for the purpose of sheathing ,the bottom of a certain bark or vessel called the Isabella ; and the defendants then and there, falsely and fraudulently warranting the said last mentioned sheets of copper which had been made and manufactured by the defendants to be reasonably fit and proper for the purpose last aforesaid, then and there sold the Warranty on the Sale of Fermnul Property. 95 Jones V. Bright. last mentioned sheets of copper to the plaintiff at, and for a large sum of money, to-wit : The sum of £313 3s., which was afterwards paid by the plaintiff to the defendants for the same ; whereas, in truth, and in fact, the last mentioned sheets of copper were not, at the said time of the said warranty and sale thereof as aforesaid, reasonably fit or proper for the purpose last aforesaid ; but on the contrary thereof, the said last men- tioned sheets of copper were at that time of an inferior quality, and wholly unfit and improper for the purpose last aforesaid ; whereby the said last mentioned sheets of copper afterwards, to-wit : on &c., at &c., became and were greatly corroded, in- jured and destroyed and of little or no use or value to the plaintiff ; and so the defendants, by means of said last men- tioned premises, on &c., at &c., falsely and fraudulently deceived the plaintiff on the sale of the said last mentioned sheets of copper as aforesaid. Then followed an allegation of special damage. The eleventh count differed from the preceding, only in omitting the name of the vessel, and the allegation that the copper had been made and manufactured by the defendants. At the trial before Best, G. J., London sittings after Michael- mas term, the case proved was as follows : The plaintiff was a ship owner ; the defendants manufac- turers and vendors of copper for various purposes. Fisher, a mutual acquaintance of the parties, introduced them to each other, saying to the defendants : "Mr. Jones is in want of copper for sheathing a vessel, and I have pleasure in recommending him to you, knowing you will sell him a good article." One of the defendants answered : " Your friend may depend on it, we will supply him well." Copper was lying in the defendants' warehouse, in sheets of various size, thickness and weight ; the plaintiff's shipwright selected what he thought fit, and afterwards applied it to the plaintiff's ship, observing nothing amiss. The invoice described the article sold as " Copper for the ship Isabella." ' The plaintiff paid the market price as for copper of the best quality, and his ship proceeded on a voyage to Sierra Leone. The copper, however, instead of lasting four or five years, the usual dura- tion of copper employed in sheathing vessels, was, at the end of four or five months, greatly corroded in patches of holes and unfit for further service. Scientific men, called on the part of the plaintiff, ascribed the failure to an oversight or casualty in the manufacture, whereby the copper might have imbibed more oxygen than it ought to contain ; but all imputation of fraud on the defendants was disclaimed by the plaintiff. The defendants' witnesses accounted 96 Warranty on the Sale of Personal Property. Jones V. Bright. for the corrosion from the singular inveteracy of the barnacles in the river at Sierra Leone, where the ship lay for some time. They stated that the quality of copper might always be known by its appearance and malleability, and if there had been any de- fect in that sold to the plaintiff, his shipwright must have discovered it while in the act of sheathing the vessel. The chief justice left it to the jury to determine whether the decay in the copper was occasioned by intrinsic defect or external accident ; and if it arose from intrinsic defect, whether such defect were occasioned in the process of manufacture. The jury found that the decay was occasioned by some in- trinsic defect in the quality of the copper, biit that there was no satisfactory evidence to show what was the cause of that defect. A verdict was thereupon entered for the plaintiff, sub- ject to an inquiry by an arbitrator as to the amount of dam- Ludlow, Sergt., obtained a rule nisi to set aside the verdict and enter a nonsuit, on the ground that without an express warranty, or proof of fraud, the defendants were not respon- sible for the quality of the article they sold. Wilde and Russell, Sergts., showed cause. When an article is sold for a particular purpose, a warranty is implied that it is fit for that purpose. The defendants' copper was sold for the purpose of sheath- ing a ship ; if not adapted to that purpose, it was of no use to the plaintiff ; he would only have purchased it, therefore, on the supposition that the defendants undertook it should have the re(.iuisite qualities. The rule, caveat emptor, applies only where the articles are bought in the way of merchandise, and not for any specific use. But good policy requires that the seller should be responsible where he sells an article for a spe- cific use. In many instances, it is impossible that the buyer should, by any degi'ee of care or diligence, be able to ascer- tain, beforehand, whether the article in question will answer the purpose for which it is destined ; but the seller has gen- erally the means of knowing this, and of preparing his article accordingly, more especially where, as in the present case, he is the manufacturer. So that if the position be true with regard to those who merely sell for a particular purpose, it is true a fortiori of those who manufacture and sell. If the de- fendants had sued for the price of the copper, it would have been an answer to such an action for the plaintiff to have shown that the copper had entirely failed when applied to the purpose for which it was sold. If so, it is but justice that the plaintiff, having paid the price, should recover damages if the consider- ation fails. The result of all the decisions on the subject is, Warranty on the Sale of Personal Property. 97 Jones V, Bright. that the rule of caveat emptor does not apply where an article is sold for a particular purpose. Dealings for horses and other animals may easily be distinguished, because, as the animal is not produced by human agency, the seller has no more means than the buyer of guarding against or knowing intrinsic and hidden defects. But the same principle seems to apply in those cases also ; for if a horse be sold generally, without any intimation of the particular work to which he is to be applied, the buyer takes him at all risks, and ihe seller is not responsi- ble unless there be fraud or an express warranty ; but if the buyer specifies the purpose for which he wants the horse, — as to drive in a gig, or to carry a child, and it should turn out that the horse had never been in harness, and was unable to draw, or vicious and intractable, the buyer might recover, on proof of the animal's inaptitude for the purpose for which he was sold. According to Blackstone, 3 Bl. Com. 161, a presumptive undertaking or assumpsit arises in such cases " from the general implication and intendment of the courts of judicature, that every man hath engaged to perform what his duty or justice requires." Therefore, in *Laing v. Fidgeon, 6 Taunt. 108, it was held that in every contract to furnish manufactured goods, however low the price, it is an implied term that the goods should be merchantable. And though, in Fisher v. Samuda, 1 Gampb. 190, it was held a party could not maintain an action on the ground of the goods being of a bad quality, and unfit for the purpose for which they were ordered ; that was after an action had been brought for the value of the goods fur- nished at a stipulated price, and the purchaser did not, either in bar of the action or to reduce the damages, object to the quality of the goods, but allowed the seller to recover a ver- dict for the full price agreed upon. But in Gardner v. Gray, 4 Gampb. 144, where the defendant sold twelve bags of waste silk at 10s 6d per pound, which on its arrival was found to be of a quality not saleable under the denomination of waste silk. Lord Ellenborough said : " The purchaser has a~ right to expect a saleable article answering the description in the contract. Without any particular warranty, there is an imphed term in every such contract. Where there is no opportunity to inspect the commodity, the maxim of caveat emptor does not apply. He cannot, without a warranty, insist that it shall be of any particular quality or fineness ; but the intention of both parties must be taken to be, that it shall be saleable in the market under the denomination mentioned in the contract between them." In *Okell V. Smith, 1 Stark. 108, and *Bluett v. Osborne, 1 Stark. 384, Lord Ellenborough lays down the same principle. 98 Warranty on the Sale of Personal Property. Jones V. Bright. though it should seem that the latter case must be misreported, inasmuch as the decision is apparently at variance with the principle laid down, "A person who sells impliedly warrants that the thing sold shall answer the purpose for which it is sold." In *Pasley v. Freeman, 3 T. R. 57, Duller J., said: "It was rightly held by Holt, G. J., and has been uniformly adopted ever since, that an affirmation at the time of a sale is a war- ranty, provided it appear in evidence to have been so intended." In *Yates v. Pim, 2 Marsh 141, Gibbs, G. J., says : " Where a party undertakes that he will supply goods of a certain descrip- tion, he must execute his engagement accordingly." It may be presumed from the premature decay, that the whole of the article furnished to the plaintiff was not copper, that there was a mixture of some other ingredient ; if so, *Bridge v. Wain, 1 Stark 504, is an authority conclusively in favor of the plain- tiff. In Prosser v. Hooper, 1 B. M. 106, the undertaking of the parties collected from their acts was held sufficient to control the words of the contract, from which a warranty would other- wise have been impKed ; and *Ghandlor v. Lopus, Gro. Jac. 4, does not apply, having merely decided that in an action on the case for selling as a bezoar stone, a stone which was not a bezoar, it is necessary to allege in the declaration that the defendant knew it not to be a bezoar ; but the allegation of knowledge, if necessary in the present case, is implied in the statement that the defendants were the manufacturers of the article supplied. The only cases which can be relied on by the defendants are ♦Parkinson v. Lee, 2 East. 304, and *Gray, v. Cox. 4 B. ct G. 108. But in *Parkinson v. Lee, the defendants were not the growers of the hops they sold ; the hops had been damaged without their knowledge ; they were sold from samples fairly dra-^n and were equal to the samples ; and in *Gray v. Cox, the court decided simply on the ground that a warranty of a very exten- sive kind, alleged in the declaration, was not sustained by the evidence at the trial. Ludlow, Sergt., Contra. — This is not an action of assmnjmt, but an action on the case in the nature of deceit ; and the whole current of earlier authorities, confirmed by recent decisions, prove that the plaintiff in such an action must allege and show either an express warranty, or that the defendant knew that the article he sold was not such as he represented it to be. In all other cases the rule of caveat emptor applies. Lord Coke says : " By the civil law every person is bound to warrant the thing that he sells or conveys, although there be no Warranty on the Sale of Personal Property. 99 , Jones V Bright. express warranty; but the common law binds him not, unless there be a warranty, either in deed or in law ; for caveat emptor.^'' Co. Lit. 102 a. In the present case, there is no pretence for saying that any express warranty was given, and knowledge on the part of the defendants of any defect in the copper, is neither averred nor proved. In the transaction with the plain- tiff, the defendants were the mere sellers of the copper, which lay in their warehouse ready for delivery, and was inspected and chosen by the plaintiff's agent. The circumstance that they were also the manufacturers, is a mere accident which does not affect the case, because the article was not made to order ; the allegation, therefore, that they were the manufac- turers, is not tantamount to an averment that they knew of the defects in the article they sold from their warehouse ; and no authority can be found, in which in an action of deceit a warranty has been implied, without averment and proof of knowledge. In an action on an express warranty, the breach of the warranty is the gravamen, and in such case it is not necessary to allege the scienter, nor if alleged to prove it ; but in actions on the case in the nature of deceit, the gravamen is the deceit, and the gist of the action is the scienter. *Williamson v. Allison, 2 East. 446. In the old writs, sachant is always the material word. 1 Fitz. W. B. 9. And the text books, Stalham's abv., Noy's maxims. Wood's instit., lay down the law as settled on that head. Roll. abr. Act. on cases, p 90, pi. 1, 2, 3, 4. If an al- legation of a warranty in the declaration can be supported by proof of a contract for the sale of goods for a specific purpose, there is an end of the distinction between implied and express warranties. The scienter need not be proved in any case, since the implied warranty would always be tantamount to an ex- press warranty and so preclude the necessity of proving the scienter. The only question, therefore, in this case is, whether the law will, according to the dictum of Lord Tenterden in *Gray V. Cox, lay upon the seller or manufacturer, an obligation to war- rant in all cases that the article which he sells shall be reasonably fit and proper for the use for which it is intended, and render him responsible for all consequences which may result, if it shall be found not to answer the purpose for which it was de- signed and, that, on account of some latent defect of wh^'ch he was ignorant, and which shall not be proved to have arisen from any want of skill on his part, or the use of improper materials, or any accident against which human prudence might have been capable of guarding him ? If such a doctrine can be maintained, every dealer or manufacturer, however skillful in the exercise of his art, however careful in the selection of his 100 Warranty on the Sale of Personal Property. Jones V. Bright. materials, and however cautious in the language of his con- tracts, may be ruined in a moment by the unexpected failure of his commodity. Suppose, for instance, the snapping of a chain-cable holding a valuable East Indiaman, and the subse- quent loss of the vessel. Is the seher of the cable to be held responsible for the consequences, although it be not shown that it was attributable to his negligence, want of skill, or the use of improper materials ? As well may the solicitor, under whose instructions the declaration in the cause was prepared, be held responsible if it be found unfit or improper for the purpose for which it was intended, although it shall not be proved to have been owing to his want of skill or dili- igence ; or the purchaser of quack medicines complain that he has been imposed on by an advertisement which all the world recognizes as a puff. Lord Tenterden seems to have been himself aware of the extensive consequences of such a doctrine, when he introduced the word " reasonably, " which appears to have been intended to limit the responsibility to an obligation to provide an article which should be as fit and proper for the purpose for which it was intended as the application of skill, diligence and prudence in the selection of the materials and in the manufacture could reasonably render it. All the recent cases, when examined, are in favor of the defendants. In *Yeats v. Pim, there was an express warranty ; the custom of the trade was set up as an answer, but was held insufficient. In *Bridge v. Wain, the plaintiff recovered on a count stating that he contracted for scarlet cuttings, and that the article supplied was not scarlet cuttings. In Fisher v. Sa- muda, no question arose as to the extent of the warranty, and there the goods were supplied for exportation, and were never seen by the plaintiff ; which appears also to have been the case in *Laing v. Fidgeon. Gai'dner r. Gray is also an authority in fa- vor of the defendants, for there it was held that there was no implied warranty that the goods should be equal to the sample exhibited ; but the plaintiff recovered, because the article sup- plied was not that which was described in the contract. The passage cited from *Bluitt v. Osborne, is indeed prima facie in fa- vor of the plaintiff; but Lord Ellenborough immediately after- wards says : " In this case the bowsprit was apparently good, and the defendant had an opportunity of inspecting it. No fraud is complained of, but the bowsprit turned out to be defective upon cutting it up. I think the plaintiff is not liable on account of the subsequent failure." In the present case no fraud is im- puted ; the copper was apparently good, and the plaintiffs had an opportunity of inspecting it. The defendants, therefore, are not liable on account of the subsequent failure. Warranty on the Sale oj Personal Property. Jones V. Bright. In *Weall v. King, 12 East. 452, the declaration averred a contract for stock sheep, and the whole question, as far as war- ranty was concerned, was upon the custom as explaining the meaning of the contract. Here, the article supplied, was sheathing copper ; there was no evidence that the customary meaning of sheathing copper was, " copper that would last five years ; " and the invoice, which alone is evidence of the con- tract, does not state it to b^ copper for sheathing. Then *Par- kinson v. Lee is expressly in point; the second count there averred a promise to supply good, sound and merchantable hops. The evidence was that the plaintiff paid a fair market price^for merchantable hops ; but no express warranty being proved, it was held that the defendant was not responsible for a latent defect in the article. In *Gray v. Cox, the court did not sanction the opinion expressed by Lord Tenterden. Cur. adv. vult. Best, C. J. — It is the duty of the court, in administering the law, to lay dovsm rules calculated to prevent fraud ; to protect persons who are necessarily ignorant of the qualities of a commodity they purchase, and to make it the interest of manu- facturers, and those who sell, to furnish the best article that can be supplied. The court must decide with a view to such rules, although upon the present occasion no fraud has been practiced by the parties calling for decision. This is an action against the defendants, to recover damages for the insufficiency of certain copper which they furnished for a particular pur- pose. It has been asserted that the invoice is the only evidence of such a contract, and that the defendants ought not to be bound by a loose conversation at the time of the sale. An invoice, however, is frequently not sent till long after the con- tract is completed, and is altogether unlike a broker's note, which does contain the contract between the parties ; but if we look at the invoice alone, we see, in the present case, that the copper was expressly for the ship Isabella. However, I do not narrow my judgment to that, but think on the authority of a case not cited at the bar, Kain v. Old, 2 B. & C. 634, that " when the whole matter passes in parol, all that passes may sometimes be taken together as forming parcel of the contract, though not always, because matter talked of at the commence- ment of a bargain may be excluded by the language used at its termination." In that doctrine I entirely concur. Whatever, then, was not previous discussion, but formed part of the contract, may be taken into consideration. In a contract of this kind, it is not necessary that the seller should say, " I warrant ; " it is enough if he says that the article which he sells is fit for a particular purpose. Here, when Fisher, a 102 Warranty on the Sale of Personal Property. Jones V. Bright. mutual acquaintance of the parties, introduced them to each other, he said, " Mr. Jones is in want of copper for sheathing a vessel ; " and one of the defendants answered, " We will sup- ply him well." As there was no subsequent communication, that constituted a contract, and amounted to a warranty. But I wish to put the case on a broad principle : If a man sells an article, he thereby warrants that it is merchantable, that it is fit for some purpose. This was established in *Laing v. Fidgeon. If he sells it for a particular purpose, he thereby warrants it fit for that purpose, and no case has decided otherwise, although there are, doubtless, some dicta to the contrary. Pteference has been made to cases on warranties of horses ; but there is a great difference between contracts for horses and a warranty of a manufactured article. No prudence can guard against latent defects in a horse ; but by providing proper materials, a merchant may guard against defects in manufactured articles, as he who manufactures copper may, by due care, prevent the introduction of too much oxygen, and this distinction explains the case of *Bluett v. Osborne, in which Lord EUenborough held that the defendant, who had sold a bowsprit, was not responsible for a failure arising out of a latent defect in the timber. The decisions, however, touching the sale of horses, turn on the same principle. If a man sehs a horse generally, he war- rants no more than that it is a horse ; the buyer puts no question, and perhaps gets the animal the cheaper. But if he asks for a carriage horse, or a horse to carry a female or a timid and in- firm rider, he who knows the qualities of the animal, and sells, undertakes, on every principle of honesty, that it is fit for the purpose indicated. The selling, upon a demand for a horse with particular qualities, is an affirmation that he possesses those qualities. So it has been decided, if beer be sold to be consumed at Gibralter, the sale is an affirmation that it is fit to go so far. Whether or not an article has been sold for a partic- ular purpose, is indeed a question of fact ; but if sold for such purpose, the sale is an undertaking that it is fit. As to the puffs, to which allusion has been made, the court has no wish to encourage them ; they are mere traps for buyers ; and if a case were to arise out of a contract made under such circum- stances, and it were shown that the article puffed was of inferior quality, when asserted to be of the best materials and workmanship, the seller would be bound to take it back, or make compensation in damages. These principles decide the present case in favor of the plaintiff. After what Lord Ten- terden had said in *Gray v. Fox, I declined expressing an opin- ion at nisiprius ; but I expected the jury would have found Warranty on the Sale of Personal Froperty. 103 Jones V. Bright. that the article was not properly manufactured, for the testi- mony of the scientific witnesses was very clear ; and though the conduct of the defendants was most upright, the article they sold had certainly suffered in the manufacture. At all events, the warranty given by them is not satisfied, because the jury find that there is an intrinsic defect in an article manufac- tured by them. Old cases have been cited, and *Chandelor v. Lopus at the head of them ; but that does not bear on the question, because all that the court decided is, that to render the defendant liable there must be a warranty or a false repre- sentation. But the case does not decide there must be an express warranty ; an implied warranty would satisfy the terms of the decision. Here there has been, in my opinion, an express warranty. The most material case is *Parkinson v. Lee, but the point was not decided there ; the court only decided that a warranty that the hops should be equal to sam- ple, was satisfied by showing that they were equal to sample, although not perfectly good and merchantable. Then the defect complained of was in a product of nature, not of human art, and was unknown to the sellers. That case, too, was decided in 1802, and Gibbs, G. J., cannot be supposed to have been un- acquainted with it, when he decided *Laing v. Fidgeon, in 1815 ; yet he there decided the point now in dispute, that in every con- tract to furnish manufactured goods, however low the price, it is an implied term that the goods should be merchantable. The law, then, resolves itself into this : that if a man sells generally, he undertakes that the article sold is fit for some purpose ; if he sells it for a particular purpose, he undertakes that it shall be fit for that particular purpose. In the present case, the copper was sold for the purpose of sheathing a ship, and was not fit for that purpose ; the verdict for the plaintiff, therefore, must stand. The case is of great importance, because it will teach manufacturers that they must not aim at underselling each other by producing goods of infe- rior quality, and that the law will protect purchasers who are necessarily ignorant of the commodity sold. Park, J. — I entertain no opinion adverse to the character of the defendants, because the mischief may have happened by the oversight of those whom they employ ; but on the case itself, I have no doubt — distinguishing, as I do, between the manufacturer of an article and the mere seller. The count on which the jury have found for the plaintiff, states that the de- fendants, by falsely andfraudulentlywarrantingthat copper which had been manufactured by them was reasonably fit and proper for the purposes of sheathing the bottom of a vessel, sold the copper to the plaintiff for a large sum of money, whereas the 104 Warrmiiy on the Sale of Personal Property. Jones V. Bright. copper was wholly unfit for the purpose and of little or no use to the plaintiff. Now, independently of the evidence of Fisher, which goes to show an express warranty, is there not, where the purchaser cannot judge of the interior of the article, and buys for a particular purpose, an implied warranty that the article is fit and proper for the purpose for which it is purchased ? And it is surely improper that copper, which usually lasts four or five years, should corrode in a single voyage. It has been argued that in all cases there must be a warranty, or a scienter and fraud. Perhaps so ; but till the cause comes to proof, it cannot appear whether the warranty be implied or express, and it will be enough to show that there is an implied warranty, from the nature of the dealing between the parties. In the cases re- ferred to, the point has been decided to the full extent that the plaintiff requires in this case. The principal object of attack has been the case of *Gray v. Cox, where Lord Tenterden said, " that if a person sold a commodity for a particular purpose, he must be understood to warrant it reasonably fit and proper for such purpose." And this is not to be esteemed an obiter dictum, because the other judges differ from him. It is his judgment formally given, and goes to support the argument for the plaintiff in this cause. The other judges, indeed, only doubted whether the warranty given in evidence supported the warranty laid in the declaration, which was very extensive — a doubt in which Lord Tenterden concurred. But, if the dec- laration had been framed in the language of the present, it is probable the evidence in support of it would have been deemed sufficient. In Fisher v. Samuda, the plaintiff had paid for the goods after an action had been brought against him for the price, in which he did not, either in bar or reduction of damages, object to the quality of the goods, so that he may be said to have ac- quiesced in the defect, and the case has no bearing on the present. In *Laing v. Fidgeon, the rule is laid do-wn in the strongest terms, and no man had more knowledge of commercial law than G. J. Gibbs. In Garchier v. Gray, Lord Ellenborough lays down the same rule, and says that the principle of caveat emptor does not apply where the buyer has no opportunity for inspection. It has been argued that the plaintiff had inspection here, but it was merely of the exterior of the commodity, and he had no means of knowing its intrinsic qualities. In *Okell v. Smith, it was laid dovrai that the seller is bound to furnish a commodity that will answer the puipose for which it is sold ; and Lord Ellenborough said, in *Bluett v. Osborne, that by sell- Warranty on the Sale of Personal Property. 105 Jones V Bright. ing an article the vendor impliedly warrants it fit for the pur- pose for which it is sold, and that it is important for the interests of commerce that it should be so. I am, therefore, cleai'ly of opinion that the verdict for the plaintiff should stand. Burrough, J. — I consider this as more a question of fact than of law. The question is, whether the contract was proved as laid. It was so proved, and after Fisher had introduced the parties, and stated the purpose for which the plaintiff wanted the copper, the defendants warranted the article by undertaking to serve the plaintiff well. The allegation in the declaration that the copper was manufactured by the defendants is suf- ficiently distinct ; it is of the very essence of the case, and the plaintiff must have been nonsuited if he had failed to prove it. The declaration states that the defendants sold, for the sheath- ing of a ship, copper which had been manufactured by them- selves, and falsely and fraudulently warranted it fit for the pur- pose. Now in the case of the King v. Boyall, 2 Burr. 832, objection was taken to an indictment against a parishioner for not send- ing out carts to highway labor, that the allegation touching the order of the surveyors only mentioned them as being survey- ors, without adding when and how they were appointed ; but Lord Mansfield held that being was a sufficient reason. The defendants knew what the copper was wanted for, and made it ; and the whole of the tenth count is proved except the word fraudulent^ which is not material, where it is also expressly stated and proved that the defendants falsely warranted. The copper, instead of lasting four or five years, lasted only one voyage, and this was proved to have been oc- casioned by a defect in the manufacture. I cannot comprehend why the action should not lie. I put it on the ground of an express warranty and the finding of the jury that the copper was insufficient, and am of opinion that the verdict must stand. Gaselee, J. — The case has been so fully gone into that I shall make only one or two observations. Without inquiring whether the warranty here be express or implied, it is clear that where goods are ordered for a particular purpose, the law im- phes a warranty that they are fit for that purpose. That was taken for granted in Fisher v. Samuda, and though the plaintiff, who complained of the insufficiency of the goods sold him, did not recover in that case, that was because he had never objected to the quality of them in an action which had been brought for the price and had been conducted to judgment against him. It has been argued that the couats on which the plaintiff has 106 Warranty on the Sale of Personal Property. Jones V. Bright. recovered in this case do not state a sufficient contract of war- ranty. If so, that may be urged in error, but the counts could not easily have been framed othervnse, as it is never clear, on the face of a declaration, whether the warranty to be proved is express or implied. How far the case might have been altered if the defendants had not manufactured the copper, I do not say ; but as to the warranty, the declaration could scarcely have been other than it is. The rule which has been obtained on the part of the defendants must be discharged. Rule discharged. 7 BINGHAM. 603.— T831, Margetson v. Wright. 1 . Defendant warranted sound wind and limb, at the time of the bargain, and sold for £<)0, a race horse which had broken down in training and was affected with a splint, circumstances which were disclosed to the plaintiff, and but for which the horse would have been worth £s°^- Held that this warranty did not import that the horse was fit for the purposes of an ordinary horse. 2. The warranty being restricted to the time of the bargain, semble, the plaintiff could not sue in respect of the horse breaking down afterwards. 3. Defects apparent at the time of a warranty are not included in it. Aasivmimt on a horse warranty. The plaintiff, an attorney, being desirous of possessing a race horse, went to examine the defendant's stallion, Sampson. Sampson was a crib biter, had a splint on the off fore leg, and had broken down in training. If these defects, which the de- fendant disclosed to the plaintiff, had not existed, Sampson, who \vas at that time sound in other respects, would have been worth £500. Under these circumstances, however, he was to be sold for £90 ; and a French veterinary surgeon having reduced the splint, and having communicated a recipe which afforded a chance of eradicating it altogether, the plaintiff was disposed to make the purchase. He first, however, required a Avarranty that Sampson would stand training, which the defendant re- fused to give. The plaintiff then wrote a memorandum of agreement which specified the amount and times of payment. Warranty on the Sale of Personal Property. 107 Margetson v. Wright. and stipulated that the plaintiff should, in addition, give the defendant £10 a time for the first five times the horse should win races in 1830, and concluded as follows : " And the said Mr. Wright does hereby warrant the said horse to be sound wind and hmb." This, however, the defendant declined to' sign unless the words " at this time " were added after wind and limb ; which being done the warranty was signed and the plaintiff took away his bargain. About six months afterwards Sampson again broke down in training, and the plaintiff upon that ground commenced the present action. Upon proof of these circumstances, at the last Westmoreland assises, Park, J., before whom the cause was tried, told the jury that the insertion in the warranty of the words " at this time " were probably intended to exclude a warranty of the horse's standing training, and then stated the question to be, whether, at the time of the warranty, the animal was sound for the pur- poses of an ordinary horse, as to go on the road and the like ; the express warranty rendering the defendant responsible for the consequences of the splint, though the defect was visible. A verdict having been found for the plaintiff, Wild, Sergt., moved for a new trial on the ground that the jury had been misled by the construction which the learned judge had put upon the warranty. The splint being a visible defect, ought to have been considered as excluded from the warranty ; and seeing that the horse was worth £500 but for the splint, and that he was about to be sold for only £90, it was plain that the plaintiff bought him at a risk, and that the warranty was confined to the time of the bargain, excluding all future accidents. If it was for the purpose of so restricting the warranty that the words " at this time," were introduced, and " sound wind and limb " when predicated of a race horse, means merely that the animal is in health ; not that he is fit for the purposes of an or- dinary horse, such as the road, drawing or the like— purposes to which a race horse can never be applied. The plaintiff paid for the chance of Sampson's recovery from the splint and for his worth as a stallion, which was all the warranty meant to insure. A rule nisi having been granted, Spankie, Sergt., who showed cause, contended that the warranty was good for nothing if it did not insure to the plaintiff a horse fit, at least, for ordinary purposes, it being admitted that there was little or no chance that Sampson could ever again be employed as a race horse. But this was not like the case of a patent or avowed defect. It being doubtful whether the horse would recover from the splint 108 Warranty on the Sale of Personal Property. Margetson v. Wright. or not, it was the more essential to the plaintiff to rely on a warranty from the seller, and from what happened so soon afterwards it might be presumed the horse could not have been sound at the time of the warranty. Wild and Jones, Sergi;s., having been heard in support of the rule, Tindall, C. J., said : This was an action on a warranty of a horse, the terms of which were " the said defendant doth hereby warrant the said horse to be sound vsdnd and limb at this time." Two subjects which might, or might not, have become a source of unsoundness, namely, crib-biting and a splint, were discussed by the parties at the time of the bargain, and after that discus- sion, the warranty in question was entered into. Now, the old books lay it down, that defects apparent at the time of a bargain are not included in a warranty, however general, because they can form no subject of deceit or fraud. There can, how- ever, be no deceit where a defect is so manifest that both parties discuss it at the time. A party, therefore, who should buy a horse knowing it to be blind in both eyes, could not sue on a general warranty of soundness. In the present case the splint was known to both parties, and the learned judge left it to the jury to say whether the horse was fit for ordinary purposes. His direction would have been less subject to misapprehension if he had left them to consider whether the horse was, at the time of the bargain, sound wind and limb, saving those manifest de- fects contemplated by the parties. It seems to us, therefore, that the jury may have been in some degree misled, and that the purposes of justice will be better attained by sending the cause to a second inquiry. The rest of the court concurring, the rule was made Absolute. MICHAELMAS 39. ELIZABETH B. R. YELVERTON REPORTS 21. Harvey v. Young. J. S. had a term of years, and there being a discourse between him and J. D. about buying that term, J. S. said and affirmed to Warranty on the Sale of Personal Property. 109 Harvey v. Young. J. D. that the term was worth £150, to be sold, upon which J. D. gave J. S. £150 for the term; and afterwards J. D. offered and endeavored to seM the term again, and. could not obtain nor get for the term £100, whereupon he brought an action on the case in the nature of a deceit against J. S. and declared ut supra, and that J. S. assured to him that the term was worth so much, to which assertion, J. D. fidem adhibens, did buy the term for so much money, but could not sell it again for so much money as was given at first, in fraud and deceit of the plaintiff, to his damages, »S;c. ; and upon not guilty pleaded, it was found for the plaintiff, and alleged in arrest of judgment that the matter pre- cedent did not prove any fraud ; for it was but the defendant's bare assertion that the term was worth so much, and it was the plaintiff's folly to give credit to such assertion. But if the defendant had warranted the term to be of such value to be sold, and the plaintiff had thereupon given and disbursed his money, there it is otherwise ; for the warranty given by the defendant is a matter to induce confidence and trust in the plaintiff. Between Harvey and Young, Mich. 39, Ehz. as Towes of the Inner Temple said at the bar, and that he was of counsel with the defendant. Qtwdnota. TRINITY TERM, 12 W. 3. B. R. 2 LD. RAYM, 1182, 1205. CITED I SALKELD 210. Medina v. Stoughton. Case, for that the defendant being possessed of a certain lot- tery ticket, sold it to the plaintiff, affirming it to be his own, whereas in truth it was not his, but another's; defendant pleaded he bought it bona fide, and so sold it, et petit judicium de narr, and quod narr. praed. cessatur : The plaintiff demurred. And per Holt, G. J., 1st. Where one having the possession of any personal chattel, sells it, the bare affirming it to be his amounts to a warranty, and an action lies on the affirmation, for his having possession is a colour of title, and perhaps no other title can be made out ; aliter where the seller is out of possession, for there 110 Warranty on the Sale of Personal Property. Medina v. Stoughton. may be room to question the seller's title and caveat emptor in such case to have either an express warranty or a good title. So it is in the case of lands, whether the seller be in or out of possession, for the seller cannot have them without a title, and the buyer is at his peril to see it. 3 Mod. 261. 2dly. The court took this plea in the conclusion of it to be in bar, but because it was safest for the plaintiff, gave judgment to answer over, saying that could not be assigned for error by the defendant, because it was for his advantage. 2 Mod. 261. N. B. — Holt said, it must not be taken as a plea in bar, be- cause it did not begin with an actio non. MICHAELMAS 3 ANN. B. R. I SALKELD 211. Risney v. Selby. Case. For that the plaintiff being in treaty with the defend- ant about the purchase of such a house, the defendant did fraudulently affirm the rent to be £30 per annum, whereas it was but £20, whereby he was induced to give so much more than the house was worth ; upon not guilty pleaded and verdict for the plaintiff, it was moved in arrest of judgment that this was an improper inquiry in the plaintiff, and he was over credulous in taking the defendant's word for it, but the plaintiff had his judgment, for the value of the rent is matter that lies in the pri- vate knowledge of the landlord and tenant, and if they affirm the rent to be more than it is, the purchaser is cheated, and ought to have a remedy for it. Warranty on tJie Sale of Personal Property. Ill TRINITY TERM. 1829. 4 CARRINGTON & PAYNE 45. 19 E. C. L. REP. 267. Wood V. Smith. The general rule is that whatever a seller represents at the time of a sale is a warranty. A warranty may be either general or qualified. If the person at the time of his selling a horse say, " I never warrant, but he is sound as far as I know," this is a qualified warranty, and the purchaser may maintain assumpsit upon it, if he can show that the horse was unsound to the knowledge of the seller. Assumpsit. The first count of the declaration stated that, in consideration that the plaintiff would buy a certain mare of the defendant, the defendant undertook and faithfully promised " that the said mare was sound, to the best of his knowledge," and the plaintiff averred that confiding, &c., he bought the mare at the price of £25, and that the defendant did not, nor would regard his said promise, but subtly contriving, &c., deceived the plaintiff in this, that the said mare was not sound, but on the contrary thereof was unsound, as the defendant then well knew. There were other special counts and the money counts. Plea general issue. It was proved that, at the time of the sale of the mare, the plaintiff said to the defendant, " she is sound, of course ;" to which the latter replied, " Yes, to the best of my knowledge." And, on the plaintiff saying, " Will you warrant her ?" the de- fendant said, " I never warrant, I would not even warrant myself." Evidence was also given that the mare was unsound and that the defendant knew it. Gurney, for the defendant, objected that the declaration should have been in tort and not in contract, as there was an express refusal to warrant. Lord Tenterden, C. J. — I think that this declai'ation is suffi- cient ; there is a count on a promise that the mare was sound to the best of the defendant's knowledge, with a breach, that he knew her to be unsound. Now, if a man says when he sells a mare, " she is sound, to the best of my knowledge, but I will not warrant her," and it turns out that the mare was unsound, and he knew it, I have no doubt that he is answerable. Verdict for the plaintiff, with leave to move to enter a nonsuit. Scarlett, A. G., and Gurwood for the plaintiff. Gurney and Thesiger for the defendant. In the ensuing term Gurney moved, in pursuance of the leave 112 Warranty on tlie Sale of Personal Property. Wood V. Smith. given, contending that the action should have been in deceit, and not in assumpsit, because there was an express refusal to wan-ant. He cited *Williamson v. Allison, 2 East. 446, and Dobble V. Stevens, 5 D. & R. 490. Bayley, J.— The general rule is that whatever a person repre- sents at the time of a sale is a warranty. But the party may give either a general warranty, or he may qualify that warranty. By a general warranty, the person warrants at all events ; but here the defendant gives a qualified warranty, as he only war- rants for the mare sound for all he knows. Park, J. — I have frequently seen such counts as this. Rule refused. QUEEN'S BENCH, 1854. 24 ENG. L. AND EQUITY 156— NOVEMBER 14, 16, 1853. Gompertz v. Bartlett. The vendor of a bill of exchange impliedly warrants that it is of the kind and description that it purports on the face of it to be. Where, therefore, an unstamped bill of exchange, purporting to be a foreign bill drawn at Sierra Leone, but which had been really drawn in London, was sold and refused payment by the acceptor. ffeld, that the vendee was entitled to recover back the price of the bill on the ground of a failure of consideration. Action, money payable by the defendant to the plaintiff, and for money received by the defendant for the use of the plaintiff. Plea, never indebted. On the trial before Lord Campbell, C. J., at the sittings in London, after Trinity term last, it appeared that the plaintiff and the defendant had for the previous six or eight months considerable dealings together in respect of the discounting of bills of exchange, and in January last the defendant produced to the plaintiff, for the purpose of being discounted, an un- stamped bill, purporting on the face of it to have been a foreign bill drawn at Sierra Leone, and accepted in London, but which, it appeared was, in fact, drawn in London. The defend- Warranby on the Sale of Pefrsonal Property. 113 Gompertz v. Bartlett. ant then stated to the plaintiff that he believed the bill to be perfectly good, and that it would be paid at maturity ; that he would not put his own name upon it, but that the plaintiff might take the bill and make inquiries about it, and that if he approved of it, he, the defendant, would pay a liberal discount upon its being taken without his name. The plaintiff took the bill, and upon inquiry was informed that the parties to it were respectable, and he thereupon paid the defendant the amount of the bill, less £85 discount. The plaintiff afterwards indorsed the bill to a person named Rogers, for the full amount, less £5 dis- count. The bill was afterwards dishonored, the acceptor becom- ing bankrupt, and the plaintiff was compelled to repay the amount he had received from Rogers. Bills of the same kind had before been paid by the acceptor, and an endeavor was made to prove, under the bankruptcy of the acceptor, for the amoimt of the bill, but the commissioner refused to allow it, as the bill was not stamped. Upon these facts the learned judge was of opinion that the action could not be maintained, and the plaintiff was nonsuited, leave being reserved to move to set aside the nonsuit, and to enter a verdict for the plaintiff for £815. In the present term a rule nisi was accordingly obtained, j^ainst which Montegue, Chambers and Pearson showed cause. The bill was a perfect bill of exchange, though unstamped. The ac- ceptor was in the habit of paying bills such as these. The mere fact that his bankruptcy prevented him paying it, cannot entitle the plaintiff to recover back the money he paid for it. There has been no failure of consideration. [Wightman, J. — ^Will not the rule of caveat emptor apply to a latent defect such as this ?] There is no implied warranty that the bill was drawn at any particular place, or that it did not require a stamp, or that it was more a bill of exchange than it purported to be on its face, or that it was of a merchantable character. In *Parkinson v. Lee, 2 East. 314, it was held that there was no warranty, that hops sold by sample were of a merchantable quality, and there was no more of a warranty of the bill in this case. The prin- ciple of caveat emptor, clearly applies ; Co. Lit. 102 a., *Bree v. Holbech, Dougl. 430 ; *Chandelor v. Lopus, Cro. Jac. 4 and Taylor v. Bullen, 5 Exch. Rep. 779. Here the plaintiff had the bill to inspect. He took it away and made such inquires about it as he pleased. He had every power of ascertaining the truth. [Wightman, J. — How can you distinguish this from the case of a forged bill ? There is an implied warranty that the instru- ment is genuine, though there is none that the parties are solvent. Byles on bills, 2 66.] 114 Warranty on the Sale of Personal Property. Gompertz v. Bartlett. It never has been held as a part of a definition of a bill of exchange that it should be drawn upon a proper stamp. This bill is a genuine bill, and might have been enforced abroad. If a horse sold without warranty, die the day of the purchase, of a latent defect existing before the sale, the loss falls on the purchaser. Jones v. Ryde, 5 Taunt. 488, is distinguishable, for a forged bill is no bill at all. Chapman v. Speller, 14 Q. B. Rep. 621, is much in point to show that the plaintiff cannot recover this money back ; this is like the case of Baglehole v. Waters, 3 Campb. 154, and Pickering v. Dowson, 4 Taunt. 779. There was no representation, whatever, made at the sale of the bill, which distinguishes this case from *Bridge v. Wain, 1 Stark. 504. At most it was but a sale of what purported to be a foreign bill. Coleridge, J., referred to Wilson v. Vyson, 4 Taunt. 288. The remedy here, if at all, was by a special action, and the plaintiff cannot sue for the whole price upon the ground of failure of consideration. Kempson v. Saunders, 4 Ring. 5, may be relied on by the other side, but that case rests upon the ground that the shares sold were not saleable at all. Petersdorff, contra. — The question is whether a vendor of that which purports to be a valid security is not liable if it turns out upon some latent defect to be invalid. The authorities that have been cited do not apply. Here the bill of exchange sold was not of the description which it purported to be when sold. It does not confer the rights and powers it purported to give. The sale and purchase -was of a bill of exchange of value and capable of being enforced. In Young v. Cole, 3 Ring. N. C. 724, where bonds were sold as Gautemala bonds, and it turned out that they had not been sealed at the time required to ren- der the estate liable, it was held that they could not be considered as Gautemala bonds, and that the vendor was bound to refund the purchase money. So, here in point of law this cannot be considered as a bill of exchange. It purported to be a foreign bill, and apparently did not require a stamp, and the defendant impliedly represented it to be a foreign bill. In Addison on contracts. Vol. I. p 152, the law is correctly stated to be that if a man goes into the money market with a bill or note and gets it discounted, and it is not the bill or note of the parties whose name appears upon it, the money received in ex- change for it cannot lawfully be retained, and that declining to in- dorse the bill does not rid the party negotiating it from the liability which attaches to him for putting off an instrument as of a cer- tain description, which turns out not to be such as it is represented. The case of Jones v. Ryde is not distinguishable from the present, and the decisions on the cases of forged signatures apply strongly to this case. Warranty on the Sale of Personal Property. 115 Gompertz v. Bartlett. Lord Campbell, C. J. — At the trial I entertained an opinion adverse to the plaintiff. I was struck with the consideration that this was the case of a mere sale, and that the vendor had title in the thing sold, and knew nothing of any secret delects when he sold. And it was difficult to say that the bill was of no value at the time of the sale, because at that time there was no strong reason for supposing that it would have been paid if the acceptor had not been insolvent, and even now payment might perhaps be enforced in a foreign country. I then thought that the rule caveat emptor applied ; but after hearing the argu- ment and the authorities cited, I think the action is maintainable, and upon this ground, that the article sold did not answer the description under which it was sold. If it had been a foreign bill and there had been any secret defect, the risk would have been that of the purchaser ; but here it must be taken that the bill was sold as and for that which it purported to be. On the face of the bill it purported to be drawn at Sierra Leone, and it was sold as answering the description of that which on its face it purported to be. That amounted to a warranty that it really was of that description. Then, in point of fact, it is not a bill of that description. It is not a foreign bill, but was drawn in London, and payment of it could not be enforced here. This is not the case of a sale of goods answering the description of the goods sold, and a secret defect in the goods ; but it is the case of a thing which is not what it professed to be when sold, and upon this ground I think the money must be taken to have been paid upon a mistake of fact, the bill not an- swering the description of that sold. The passage quoted from Addison on contracts, very clearly, I think, lays down the law on this subject, and both Jones v. Ryde and Young v. Cole are authorities in support of the action. In principle, the case is the same as if the vendor had professed to sell a bar of gold, which turned out to be mere dross, colored and disguised. I am, therefore, of opinion that the law implies a promise on the part of the vendor to repay the purchase money, and that the action is well brought. Coleridge, J. — This is the case of a mere sale, and where there is a sale of goods without a warranty, the vendor is not bound to see that the thing he sells possesses either the quality or value supposed at the time of sale. But a vendor is entitled to have a thing of the kind and description which the thing pro- fesses to be at the time of the sale. Here in the absence of all fraud, both parties thought they were dealing about a foreign bill, which, on the face of it, this bill purported to be, and it turns out not to be a bill of that kind and description, and, there- fore, of no value ; and common justice requires that the vendor 116 Warranty on the Sale of Personal Property. Gompertz v, Bartlett. should not be bound, and that the purchase money should be recovered back. Wightman, J. — I am of the same opinion, on the ground that the thing sold does not answer the description of that which the vendor professed to sell. On its face the bill purports to be a foreign bill of exchange not requiring a stamp. It turns out, however, that so far from answering the description of that for which it was sold, it was not a bill drawn at Sierra Leone, but an inland bill requiring a stamp, and, therefore, not a valid bill in any court of law. I agree, that if an article sold and delivered without a warranty, answers the description of that which at the time of the sale it professed to be, and the vendor professed to sell, the rule caveat emptor applies. Young V. Cole and Jones v. Ryde are both authorities in support of the action ; and Jones v. Ryde is more especially an authority in point. Rule absolute. EASTER TERM. TWENTY-FIRST YEAR GEORGE III- DOUGLAS'S REPORTS 630. Bree v. Holbech. Friday, 18 May, 1781. A personal representative having found among the papers of the decased a mortgage deed, and having assigned it more than six years ago for the mortgage money, affirming and reciting, in the deed of assignment, that it was a mortgage deed made, or mentioned to be made, between the mortgagee and the mortgagor for that sum, the assignee shall not recover back the mortgage money, although it shall turn out that the mortgage was a forgery, and that the assignee did not discover the forgery till within six years before he brings his action, unless the assignor knew it to be a forgery. In an action of assumpsit for £2000 had and received to the plaintiff's use. The defendant having pleaded the general issue and the statute of limitations, the plaintiff replied : That the writ was sued out on the 22d of August, 1780 ; that on the 18th of Feb- ruary, 1773, the defendant asserted and affirmed that there was WarraTdy on the Sale of Personal Property. 117 Bree v. Holbech. an indenture of mortgage, dated the 24th of June, 1768, made or mentioned to be made, between F. and S. of the one part, and W H (the defendant's uncle) on the other, for a term of years granted to the said W. H., as a security for the payment of £1200 with interest, that the defendant then further asserted and affirmed that, after making the said indenture, W. H. died ; that the defendant was his administrator with the will annexed, and there was due to him, as administrator, the said principal sum on the said security ; that the plaintiff, relying on these assertions and affirmations, advanced £1200 to the defendant, on his executing an indenture of assignment, on the said 18th of February, 1773, which recited the mortgage and purported, for the consideration of the £1200 so advanced, to assign all the premises by the said recited indenture of mortgage granted for the remainder of the term, subject to the original power of redemption ; that in this indenture of assignment the defendant agreed with the plaintiff that neither the said W. H., nor the defendant, had done any act to encumber the mortgaged estate ; that the said several assertions and affirmations of the defend- ant, and also the recitals in the said indenture of assignment were false, inasmuch as there never was any such indenture of mortgage, nor the sum of £1200, nor any other sum, due to the defendant as administrator of W. H., on such security, in the manner the defendant had asserted and affirmed, and as in the indenture of assignment was recited, or in any other man- ner ; and that neither the premises, nor any part thereof, passed by the assignment to the plaintiff ; nor did any estate, right, or title therein, or to the said sum of £1200, vest in him ; that by fraud and imposition, and by means of the said false assertions and affirmations and false recitals the plaintiff was induced to pay the said sum of £1200 on the execution of the said indent- ure of assignment ; that at the time of the execution thereof, and of paying the money the plaintiff was ignorant of the false- hood of the said assertions, affirmations and recitals, and of the fraud so practised upon him, and did not discover them till within the space of six years next before the suing out the writ. To this replication the defendant demurred generally. And the case was this day argued by Hill, Sergeant, for the plaintiff and Chambre for the defendant. Ghambre in support of the demurrer, contended that there was nothing alleged in the declaration which could take the case out of the statute. There was no fraud stated to have been practiced by the defendant, for it was not averred that he knew of the falsehood of the different assertions and recitals. But if there had been fraud, that would not have been sufficient ; it was the plaintiff's business to look to the validity of his secu- 118 Warranty on the tialv of Persovat Property. Bree v. Holbech. rity, and there is nothing relative to fraud among the different exceptions and savings in the statute. Hill, Sergeant, insisted : 1st. That, in point of law, this was fraud on the part of the defendant, although he himself might not know of the falsehood ; 2d. That where a party has been induced, by fraud, to pay money, the statute of hmitation does not run, or at least, only runs from the time when the fraud is discovered. The assertions of the defendant, he observed, were positive without qualification and, therefore, he made him- self answerable for the truth of them, and if any loss had been incurred by his mistake, it ought to fall upon him, not upon an innocent third person. On this first head, he cited 1 Show. 68 ; 3 Mod. 261 ; Gombarb. 163 ; Kearnes' Pleader 102, 224 ; Cro. Car. 141; Sir W. Jones 196; 2 Burr. 112; 12 Mod. 494; 2 Vez. 198. On the second point he relied on Booth v. Lord Warrington, in Dom. Proc. 1714 (which he cited from the printed cases) and the South Sea Company v. Wymond — Sell 3 P. Will. 143. Lord Mansfield — The basis of the whole argument is fraud, and the question is, whether fraud is anywhere asserted in this replication. There may be many cases, where the assertion of a false fact, though unknown to be false to the party making the assertion, will be fraudulent, as in the case of Sir Crisp Guscoyne, who insured a life and assumed it was as good a life as any in England, not knowing whether it was or was not. There may be cases, too, which fraud will take out of the statute of limitations. But here, everything alleged in the replication may be true without any fraud on the part of the defendant. He is an administrator with the will annexed, who finds a mortgage deed among the papers of his testator without any arrears of interest, and parts with it, bona fide, as a merchant- able commodity. If he had discovered the forgery, and had then got rid of the deed as a true security, the case would have been very different. He did not covenant for the goodness of the title, but only that neither he nor the testator had encum- bered the estate. It was incumbent on the plaintiff to look to the goodness of it.* Hill had leave to amend, in case upon inquiry the facts would support a charge of fraud. *The mortgage deed was one of the many forgeries which had been committed by one Dudley, an attorney in eminent practice at Coventry, and which were not discovered till after his death. Warranty on the Sale of Personal Property. 119 PHILADELPHIA, JANUARY 10, 183 1. IN ERROR. 3 RAWLE, 23. Borrekins v. Bevan and Porter. In all sales of goods there is an implied warranty that the article delivered shall correspond in specie with the commodity sold, unless there are facts and circumstances to show that the purchaser took upon himself the risk of determin- ing not only the quality of the article, but the kind he purchased. Therefore, if the defendant sell, and the plaintiiT purchase, an article as blue paint, and it is so described in the bill of parcels, this amounts to a warranty that the article delivered shall be blue paint, and not a different article. In order to svistain an action on an implied warranty in a contract for the sale of goods, it is not necessary that the plaintiif should, before bringing suit, re- deliver or tender the article to the defendant. This was a writ of error to the District Court for the city and county of Philadelphia, in a suit brought by the plaintiff in error, Henry P. Borrekins, against the defendants in error, Matthew L. Bevan and William Porter, trading under the firm of Bevan & Porter, to recover damages on an implied warranty in the sale of an article as blue paint. On the trial of the cause, before Judge Hallowell, in the court below, on the 11th of October, 1826, it appeared in evi- dence that the defendants, on or about the first of May, 1820, sold to the plaintiff four casks of paints, and rendered to him a bill of parcels, of which the following is a copy, viz : — Philad., May 1, 1820. Mr. H. P. Borrekins, Bought of Bevan & Porter, 4 casks paint, viz : 1 cask blue, weight, 5.0.23 Tare, 2 4.2.23 is 527 ft)S.@50 cents, $263 50 1 do green, do 3.2.4 Tare, 2 3.0.4 is 340 ft)s.@25 cents, - 85 00 1 do do do 5.3.3 Tare, 2 5.1.3 is 591 ft)s.@12i cents, - 73 87 1 do yellow, do 6.1.19 Tare, 2 5.3.19 is 663 ft)s.@1.100, 6 63 Credit 4, 6 and 8 months, 429 00 120 Warraitty on the Sale of Personal Property. Borrekins v. Bevan. The plaintiff thereupon gave to the defendants his three promissory notes for the price, payable in four, six, and eight months, which were paid as they respectively became due. The plaintiff examined, as a witness on his behalf, Isaac W. Blanchard, who testified as follows : " I was not present at the purchases by Mr. Borrekins. I believe it was made at the de- fendants' countmg house. The articles described in the bill of parcels were bought and carried to the manufactory. Some time, very near a twelve month, afterwards Mr. Borrekins brought a sample of this stuff (pointing to the specimen pre- sented to him by the plaintiff's counsel) and directed me to go down to Messrs. Bevan & Porter. It was about March or April, I went and stated to Mr. Bevan that Mr. Borrekins claimed the money paid, because that article was not according to sample. I exhibited a sample to defendants, and told Mr. Bevan that that was a sample of the blue which Borrekins had purchased of him. Mr. Bevan took a little in his hand, and said, ' this is not blue, it does not look as if it ever had been blue.' He then stated that there would be no difficulty about settling it ; that Mr. Humphreys was not then in the city, but was expected shortly, and that there was no doubt the matter would be adjusted amicably. Mr. Borrekins brought the sam- ple and showed it to me ; I know that the cask remains there yet at the manufactory ; my business did not lead to the man- ufactory ; it led to the store." On his cross-examination the witness said, " the sample Borrekins showed me at the time of making the purchase was verditer blue." George Wood, another witness called by the plaintiff, testified thus : " This article (pointing to the specimen exhibited to the preceding witness) was sent to me, and I received it as foreman of Mr. Bon-ekins' factory. I received it at the latter end of 1820 as near as I can recollect. I received it with a cask of green. Nothing else that I can recollect. I do not know what that ar- ticle (pointing as before) is. It is not paint. I recollect only receiving the two casks, one blue, the other green. I saw a sample of this before I received the paint. The sample was a good article. It was sent for me to try it if it was good. The sample was sent by Mr. Borrekins. I have tried this since. I could not do anything with it. I judged of the sample by the looks ; it looked very well ; it did not look like this. I opened the cask myself. This is a fair sample of what the cask con- tains. I opened the cask about six or eight weeks after I received it." Being cross-examined he said : " It ran generally through the cask like this. The sample which I saw had all the appearance of being good verditer. This blue paint does not injure by keeping." WarraMy on the Sale of Personal Froperty. 121 Borrekins v. Bevan. James Kearney, being called as a witness for the plaintiff, swore as follows : " I was at that time a workman in Borrekins' factory. The cask of paint was received about the latter end of 1820. We tried it ; I cannot tell when, perhaps six or eight weeks after we received the cask. I rather think a cask of green was received at the same time. I cannot recollect whether any others were received about the same time. We had not received any other cask of blue for some time before as I recol- lect. I do not recollect the purchase of any other cask of blue by Mr. Borrekins at any time." On his cross-examination he said : " We used blue paint in the factory ; we generally made the blue paint." Isaac W. Blanchard being again called, said : " Mr. Borrekins used exclusively Prussian blue. He made all he used. Mr. Borrekins did not purchase any blue paint excepting this while he was in business. The verditer blue, which this is, is a dif- ferent article from the Prussian. This is the only cask of such stuff in our factory. An account of the stock has been taken every year, and this is the identical cask." On his cross- examination the witness said : " Borrekins never used verditer blue in his factory. It was a very scarce article. He used the Prussian blue. -He could not obtain the verditer of a quality sufficiently good. Some verditer will not work in water, but will in oil. I do not recollect of making trial of the verditer. The other witnesses are mistaken as to its being the latter end of the year." Henry Troth, another witness examined on the part of the plaintiff, said : " I have been accustomed to deal in paints, and verditer among the rest. I am something of a judge. This (pointing to the specimen before referred to) might be called blue paint, but it does not resemble any paint we sell under that name. This is a mixture of some blue paint with a part dirt, different from anything we are accustomed to deal in. I think there is inferior blue verditer among it mixed in with dirt. I should not consider this any paint. Verditer is not called a high-priced paint. Fifty cents is about a fair price. That used to be the price about six years ago. My impression is that was a fair price. It is not apt to injure by keeping. I never saw or heard that it was." The defendants then offered in evidence, a book of original entries, made by their clerk at the time, for the purpose of showing that the sale was made, in the first instance, of three kegs of paint at certain prices, and that afterwards four kegs were included in the sale and the price of one of them greatly reduced. An objection was made by the counsel for the plain- tiff to the admission of the book in evidence for the purpose 9 .122 Warranty on the Sale of Personal Property. Borrekins v. Bevan. for which it was offered, but the judge overruled the objection and an exception was taken to his opinion. The defendants then called and examined a witness, May Humphreys, whose testimony was as follows : " I have no inter- est in this question. This blue paint was originally Junius Smith's, of London, and was sent out to Adams and Swift, of Baltimore. After the failure of Adams and Swift, it came into my hands as agent. I was ignorant of the value of paints. I brought samples to Philadelphia, and with Mr. Bevan exhibited them to Mr. Borrekins. Mr. Borrekins declined coming to any agreement at that time, but enough passed between us to in- duce me to send them to this market. On my return to Baltimore, I sent the paints to Bevan and Porter, to be subject to a re-examination. There were one or two more of samples that had been examined. The cask of green was sold at a re- duction of fifty per cent, from what I had originally stated. Bevan and Porter settled with me and paid me the proceeds after they became due. They paid me many months before I heard of any objection being made to them. I was not present at the final sale. The first was indefinite, but was to become ab- solute if, on delivery, the articles corresponded with the samples. I accounted with my principals before I had any knowledge of any objection. I accounted, to Adams and Swift in the settlement of an account with them. T think it was a twelve month after the sale before I heard of any objection." When the evidence was closed, his honor charged the jury : "That the law was, that the plaintiff could not recover unless an express warranty or fraud was proved ; that a de- scription in a bill of parcels of an article sold as blue paint, does not amount to a warranty that it is so, and that in order to support this action it is incumbent on the plaintiff to show that before bringing suit he tendered or re-delivered the article to the defendants." To this charge, the counsel for the plaintiffs tendered a bill of exceptions, which was sealed by the judge. In this court the follo'wing errors were assigned, viz : 1. That the court below erred in permitting the defendants to give in evidence a book of original entries, made by their clerk, for the purpose of showing the time and circumstances of a certain sale, made to the plaintiff, and the quantity sold, and the price ^reed upon therefor, and for the purpose of showing, also, that the quantity sold Avas afterwards increased and the price itself reduced. 2. That the court erred in charging the jury that the descrip- tion in the bill of parcels of the article sold as blue paint, does not amount to a warranty that it is so. Warranty on the Sale of Personal Property. 123 Borrekins v. Bevan. 3. That the court erred in charging the jury that the plain- tiff could not recover unless express warranty or fraud were proved. 4. That the court erred in charging the jury that in order to support his action, it was incumbent on the plaintiff to show that before bringing suit he tendered or re-delivered the article to the defendants. J. M. Read and Kane for the Plaintiff in error. 1. The book of the defendants was not competent evidence, and ought not to have been admitted. The plaintiff had proved the contract of sale by exhibiting the bill of parcels rendered by the defendants and assented to by the plaintiff, who had given his notes in accordance with it, and paid them at matu- rity. The defendants then offered their book of original entries to prove the nature and circumstances of the transaction, the time when the negotiation originated, and the modifications it underwent before the contract was finally adjusted. Books are not evidence for purposes of this kind. They are evidence to prove the sale and delivery of goods, and the performance of work, but not to prove the negotiation which led to the sale, or any other matter merely incidental or collateral. The ne- cessity which gave rise to the admission of evidence of this description, in the limited transactions of early times when few clerks were kept, cannot be considered as applicable to the transactions of a great commercial house, whose numerous clerks and assistants enable them to produce a witness to any matter connected with its business, which it may be necessary to prove. The policy of our courts has lately been to circum- scnbe rather than enlarge the limits of the rule. There is no reason why, the books of one party to a contract should be evidence more than those of another. There is certainly no reason why, when the tradesman' shaiiiia of business are dropped, and the necessity for such evidence has ceased, the merchard should have the privilege given by necessity to the small shop- keeper. Large sales are now more frequently made in the counting room of the purchaser than at the warehouse of the seller, and the true cotemporaneous record of the transaction would be the books of the purchaser; yet they are never admitted. A sale differs from a barter only in the considera- tion, it being merchandise in the one case, and in the other money. Yet courts do not permit cash paid to be proved by the books of the party. The reason is that the custom was not so far extended in early times, and policy forbids an enlarge- ment of its ancient boundaries. The uniform efforts of our courts for a long time past has been to multify exceptions to a rule which is itself an exception to the general principles of 124 Warranty on the Sale of Personal Property. Borrekins v. Bevan. evidence. Baisch v. Ho£f, 1 Yeates 1 98 ; Poultney v. Ross, 1 Dallas 238 ; Sterrett v. Bull, 1 Binn. 234; Cooper v. Morrel, 4 Yeates 341 ; Rogers v. Old, 5 Serg. & Rawle 409 ; Smith v. Lane, 12 Sei^. & Rawle 80. The principle on which these cases have gone is, that wherever by the custom of trade, or circumstances of the particular case it appears that better evi- dence can be procured, books are not admitted. Thus where there is a collateral undertaking it is usual to make it in writing ; where money is paid a receipt is given ; where goods are received for sale on commission, they are, by the usage of mer- chants, accompanied by instructions ; where invoices have been copied they can be produced ; where receipts are by custom signed on the delivery of goods the original can be produced ; and, as in this case, where a bill of parcels is rendered, that can be exhibited. In all these and similar cases, books are inadmissible. The admission of the books of the defendants in the present case was calculated to lead to error and confusion. They exhibited two transactions : One on the 6th of April, and the other on the 11th of May. One or the other was not in question, and consequently the entry relating to it could not properly be evidence. The first was in fact not a sale but a mere incohate bargain, as is proved by Humphreys, and was recorded like the transaction in Rogers v. Old, as part of the pending business of the defendants, but not intended to charge the plaintiff. It was, of course, not evidence. Another fatal objection to the admissability of the books is, that the contract had been defined and fixed by the bill of parcels. It was the defendants own written exposition of the contract, and cannot now be varied, controverted or ex- plained by the uncommunicated memoranda to be found in their private books. Vandevoort v. Smith, 2 Gaines 161 ; Mumford v. McPherson, 1 John. Rep. 418 ; Dean v. Mason, 4 Day 428 ; Osgood v. Lewis, 2 Harris and Gill 522 ; *Yates v. Pim. 6 Taunt. 446. If, then, the evidence of witnesses cannot be received to vary a contract thus reduced to ^^Titing, still less can a secret record, made by the party himself for his own purposes, be adduced to prove negotiations which are merged in the bill of parcels, or that the contract was different from his own exposition of it, communicated to and accepted by the opposite party. There is a distinction between a bill of parcels and an invoice. The invoice, as was said in *Jones v. Bright, 6 Bing. 533, is frequently not sent till long after the contract is completed, and in such cases, " whatever was not of previous discussion, but formed part of the contract, may be given in evidence." The bill of parcels, on the other hand, is cotem- poraneous evidence of the contract. In the case before the Warranty on the Sale of Personal Property. 125 Borrekins v. Bevan. court it is dated on the very day of the contract, and ten days before the entry in the book offered in evidence. 2 and 3. No fraud is imputed to any of the parties who par- ticipated in the sale of the article in question, but it is insisted the plaintiff is entitled to recover because he had what amounted to a warranty ; first, in the sample ; secondly, in the bill of parcels ; the general principle being that a sample, or a description in a sale, note, advertisement, bill of parcels, or invoice, is equivalent to an express warranty, not of the quality of the goods, but that they are of the kind they are represented to be. This is a question which, however well settled by the usage and understanding of merchants, has never been judici- ally decided. *Jackson v. Wetherill, 7 Sei^. & Rawle 480, which was reUed upon by the judge of the District Court, does not touch it. That was a question of warranty as to quality as to the habits of a horse, and the decision of the court was nothing more than that certain expressions, used by the seller, were merely declarations of his opinion, and not a warranty of the qualities of the animal sold. *Gurcier v. Pennock, 14 Sei^. & Rawle 51, was not the case of a described article, bargained for by a fixed name, but of an article exhibited to the buyer. • It was called " Cayenne money" on the plaintiff's books, but its genuineness had been, throughout, matter of question, and had been the subject of separate enquiry by the receiver who took it, on speculation, at his own risk. It was decided on the particular circumstances of the case, and no question was raised as to the article delivered being the same in kind as that contracted for. The Pennsylvania cases then, it is clear, do not sustain the opinion of the court below. In admitting that the question is res Integra here all is admitted that can be asked on the opposite side. It can be solved only by reference to the laws of other countries whose interests are analagous to our own, and by an inquiry into the policy of those laws. In France, and wherever the civil law prevails, that is throughout the commercial portion of the continent of Europe, the law is what the plaintiff now contends for. Pothier de vente, sec. 202, p. 121. The seller is bound, by the very nature of the contract of sale, to guarantee that the thing sold is free from such defects as would render it useless or injurious for the purpose for which it is sold ; and without any other warranty than that which is imphed, in the very nature of the contract, the buyer has his action for redress. Civil Code Nap., Art. 1640, 1641. The law of imphed warranty, it is true, does not apply to patent defects against which, by the common law, even an express warranty affords no protection. 3 Bl. Com. 165. In England, at a very early day, the rule which governed 126 Warranty on the Sale of Personal Property. Borrekins v. Bevan. real property, was applied to the transactions of commerce. At first, little injury resulted from this circumstance, because trade was very limited in amount and generally conducted in market overt, and there were few articles which could not be judged of by inspection at the Chapman's stall. In the year 1600, or thereabouts, the case of *Ghandelor v. Lopus, Cro. Jac. 4, was decided on this principle. But as commerce increased, the rule was found intolerable, for commerce cannot exist vrithout con- fidence, which can be secured only by compelling every con- tracting party to do that which at the time of contracting he professed his intention to do. A multitude of more recent decisions in England have placed the doctrine on a footing more in accordance vnth the necessities of the extended com- merce of that country and the laws of other commercial states. *Hibbert v. Shee, 1 Gamp. 113 ; *Laing r. Fidgeon, 2 Taunt. 108, 1 Eng. Com. Law Rep. 327 ; Parker v. Palmer, 4 Barn. & Aid. 387, 6 Eng. Com. Law Rep. 456; *Bridge v. Wain, 1 Stark 504, 2 Eng. Com. Law Rep. 486 ; Rowe v. Osborne, 1 Stark 140, 2 Eng. Com. Law Rep. 329; *Yates v. Pim, 6 Taunt. 446, 1 Eng. Com. Law Rep. 446 ; Gardner v. Gray, 4 Camp. 144 ; Bosser v. Hooper, 1 Moore 806 ; *Jones v. Bowden, 4 Taunt. 853 ; Dyerv. Finmore, 3 Camp. 162 ; Peak's Evidence 228, 3 T. R. 57 ; *Shepherd v. Kain, 5 Barn. & Aid. 240, 7 Eng. Com. Law Rep. 82 ; Hern v. Nichols, 1 Salk. 289, Paley on Agency 229 ; Fortune v. Linghans, 2 Camp. 416 ; *Gray v. Cox, 10 Eng. Com. Law Rep. 283 ; *Jones v. Bright, 5 Bing. 533, 15 Eng. Com. Law Rep. 529 ; Salmon v. Ward, 12 Eng. Com. Law Rep. 95. The more recent decisions in New York, Massachusetts and Maryland, and the other commercial States of the Union, are in harmony with the principles of the mod- ern English cases. *Bradford v. Manly, 3 Mass. Rep. 145 ; *Sands v. Taylor, 5 Johns. Rep. 395, 404 ; Willing w. Consequa, 1 Peters 317 ; *Swett v. Colgate, 20 Johns. Rep. 196 ; *Oneida Company v. Lawrence, 4 Cowan 440 ; *Andrews v. Kneeland, 6 Cowan 354, 357 ; *Hastings v. Lovering, 2 Pick. 214 ; *Con- ner v. Henderson, 15 Mass. Rep. 319 ; Henderson v. Sevy, 2 Greenl. 139; *Chapman v. Murch, 19 John. 290; *Roberts v. Morgan, 2 Cowan 438 ; Higgins v. Livermore, 14 Mass. Reports 106 ; Hastings v. Lovering, 2 Pick. 214 ; Lewis v. Thatcher, 15 Mass. Rep. 431 ; Osgood v. Lewis, 2 Harris & Gill, 495, 518 ; ♦Williams v. Spafford, 8 Pick. 250. The question, therefore, for the determination of this court is, whether the law of Penn- sylvania, on the subject of implied warranty, shall correspond with that of France, England, and the commercial States of this country, as it exists at the present day, or whether it shall be a transcript of the law as introduced into England some Warranty on the Sale of Personal Property. 127 Borrekins v. Bevan. centuries ago, which has been repealed and repudiated in favor of the commercial necessities of that country. As to the policy of the rule, now contended for by the plaintiff, it is impossible to entertain a doubt, for no one can deny that a man should so execute his contract as to comply with the just expectations of the other contracting party, and with his own declared intentions. If a man purchase tea from a China mer- chant, and having sold it to a Western trader it turns out that the box contains chaff, he is boimd, by the unvarying usage of trade in such cases, to refund the price. Even the law of China gives redress. If one purchase plate of a silversmith, and, on using it, it is discovered that the metal is base, the sel- ler must return the money, and even ignorance of the fraud will not excuse him. So if one purchase a box of bullion, a bale of cotton, or a cask of paints, and it turns out that the box contains pewter instead of bullion, the bale stones or rubbish instead of cotton, or the cask dirt instead of paint, it cannot be law that the party aggrieved is without redress. Yet such is the result to which the doctrine of the Court below must ne- cessarily lead. If there is no redress without express warranty, or fraud, there is no redress at all. As to fraud, the essential element of it is the seienter, and how can that be proved ? How can the purchaser show that the seller was a better judge of the article than himself? If he sold bullion, he was perhaps no more of an alchemist than the buyer. If cotton, he probably never unpacked the bale, and knew nothing of its contents further than had been represented to him. The rule by which justice would be done to all, is that which gives a remedy to the buyer against the party from whom he immediately purchased, and refers him to the party from whom he had the article, and so on until the party guilty of the fraud is reached. ■ Then as to warranty ; men ask warranty of quality, but never of kind or character. In buying a horse the purchaser asks warranty of soundness, because, though blind or lame, the animal is still a horse. So in buying a ship, a warranty of sea-worthiness is asked for, because, though rotten in every timber, the vessel is nevertheless a ship ; but who asks for a warranty that a horse is really a horse, or a ship a ship ? Fraud, in cases like the present, can easily be proved if it exist, and often has no exist- ence between the immediate parties. And such a thing as an express warranty that the article described in the contract of sale, or the bill of parcels defining the contract, and the article really sold are the same, was probably never heard gf. To affirm the judgment of the court below, is, therefore, equivalent to a decision that in no case can a party aggrieved in a contract of sale, like that now under consideration, obtain redress in a court of justice. 128 Warranty on the Sale of Personal Property. Borrekins v. Bevan. 4. The error in the charge of the court below, that it was in- cumbent on the plaintiff to show that, before bringing suit, he tendered or re-delivered the article to the defendants, arose from confounding two remedies which were within the plaintiff's reach, and between which he made his election. Where the consideration of a contract has been executed, and there is a failure to complete the performance, the party aggrieved may either rescind the contract and recover back the consideration, or admit the contract and recover damages for a breach of it. The consideration may be recovered back by a special action on the case, or by an action for money had and received. To sustain either of these actions, with such an object, the plain- tiff must show that he has paid the consideration and that by recovering it back, the defendant will not be placed in a worse situation than he was before the contract, which the plaintiff cannot rescind to the prejudice of the defendant. He must, therefore, show that before bringing suit, he re-delivered or repaid what he received from the defendant, and has thus re- stored him to his former situation. But it is not always in the power of the party aggrieved to rescind the contract and recover back the consideration. The goods may have been shipped or worked up before the injury is ascertained, and the return of the goods then becomes impossible. In such a case, the remedy is by a special action on the contract, alleging a breach and demanding damages for it. In adopting this form of action, the plaintiff avoids the necessity of showing a re-delivery. These remedies accord with those of the civil law, from which most of our commercial principles are derived. Where the article sold differs in character from that described, the pur- chaser by that law has two remedies. 1st. Actio rehibitoria, in which he returns the article and recovers back the price and all expenses incurred by him. 2d. Actio quanta minoris, by which, without a return of the article sold, the buyer obtains such a reduction of price, or a return of so much of it, as is equal to the difference in value between the article described in the con- tract and that delivered. Pothier emit, derente, sec. 216, art. 4, p. 129, sec. 232, art. 5, p. 135. The doctrine now contended for, on behalf of the plaintiff, is abundantly supported by authority. Many of the cases referred to in the examination of the second and third errors, sustain it, to which may be added Curtis V. Hannay, 3 Esp. 82, 83 ; Peak's Evidence 230.; Fielder ('. Starkie, 1 H. B. L. 19 ; Poulson v. Latimore, 17 Eng. Com. Law Reports 373. This doctrine applies, not only to cases of express, but of .implied warranty also. If it were otherwise, it would be most ruinous doctrine. Fortunately, the cases take no distinction between a case of Warranty on the Sale of Personal Prcyperty. 129 Borrekins v. Bevan. express and implied warranty. In *Steigleman v. Jeffries, 1 Sevg. & Rawle, 478, Chief Justice Tilghman shows the result of the English cases in a few words, and explains how it is that some of them, at the first glance, wear an appearance at vari- ance with the principle which, upon close examination, they do not affect. The opposite doctrine would lead to the worst re- sults, and in many cases operate as a bounty to fraud. If, then, a man has paid his money for a horse, which he contracted for by a certain description, and one of another and inferior description is delivered to him, he must, before he can maintain an action for the fraud, return the animal he has received, he puts it in the power of the jockey to injure him still further by keeping both the money and the horse, and thus depriving him even of the partial consideration for which he paid his money. It is making the operation of a legal right a species of gaming, to require that before a man shall have a chance of recovering back what he has been cheated of, he shall stake what he has received against the blacklegs. Ghauncey, for the defendants in error. — This is one of the many cases in which, by confining the attention to the exact matter of exception, injustice is done to the judge and to the cause. To understand the charge it is necessary first to un- derstand the case, and see what the facts were on which the charge was founded. This result will not be reached by taking an abstract position in the charge, and making that by itself the subject of exception. The evidence is brought up for the purpose of elucidating the charge, and should be used for that purpose. A proposition may be stated by a judge which, in the abstract, may be questionable, but which, taken in con- nection with other matter, may be correct. If taken in con- nection with the evidence, the charge of the judge, in this case, will be found free from error. The sale was made in May, 1820, and no complaint was made for nearly a year, and no suit was brought for nearly two years after. On the trial the plaintiff endeavored, in the first place, to prove a sale by sample, in which the evidence did not sustain him ; the judge charged that a sale by sample implies a warranty, and left to the jury the fact whether or not the sale was by sample, stating his own impressions that it was not. It is not now matter of exception that the judge did not leave this to the jury, nor could it be, for he did. It must, therefore, be considered that the jury found that it was not a sale by sample. Brown on sales, 338 ; Myer v. Everth, 4 Gamp. 22. The plaintiff, in the second place, endeavored to establish that the description in the bill of par- cels was a warranty that the article sold corresponded in char- acter and quality with the description. The judge referred to 130 Wm-rmity on the Sale of Personal Property. Borrekins v. Bevan. the consideration of the jury whether the plaintiff examined the article, and stated it to be clear that he did so, or had the opportunity of doing so. Under these circumstances he charged that this bill of parcels, evidently made after the pur- chase, was no more than a description, not a warranty, as in *Jackson v. Wetherill, 7 Serg. & Rawle, 480. The case there stood thus : It was for the jury to decide whether it was a sale by sample. If it was, it was a case of warranty, and then the jury were to consider whether the bulk corresponded with the sample. If it was not a sale by sample, was it a case of war- ranty, by means of the bill of parcels ? Under the circumstances the judge thought it was not, and the plaintiff did not declare upon it as such. The bill of parcels was not the contract, but a mere description. The purchaser bought either upon exam- ination or with the opportunity to examine, and the bill of parcels was made and rendered upon the sale. It is upon this state of things the judge must be considered as having charged that if there was neither warranty nor fraud the plaintiff was not en- titled to recover. In this he was right. First. Because this was not a sale by sample, and must be taken to have been so found by the jury. If it was such a sale, the charge was in favor of the plaintiff. Second. It was a sale of a commodity in the usual course of business, where the purchaser had abundant opportunity to examine, and where it must be presumed he did examine the article, and the purchase was made on that examination, and not on any warranty express or implied. Third. It was a sale on credit, made by agents, and the pay- ments were made by the purchaser at four, six and eight months, without objection, and the agent has accounted with and paid over to his principal. Fourth. It was not a sale upon warranty, and the purchaser, if he objected to the article, and was entitled to object, was bound to return, or offer to return, the article. First. It is unnecessary to spend a moment in the examina- tion of the cases cited to show that a sale, by sample, carries with it an implied warranty. The principle contended for was not denied by the judge, nor is it now. Second. Under the circumstances of this case, in the absence of fraud and warranty, neither of which is alleged, the purchaser stands nakedly on his own judgment of the article, and if he misses in that he has no redress. The case is a fair one to present the rule of law, which is well settled and is clear of the various exceptions which have made to the rule. No rule can be more salutary or reasonable than that which the judge applied to this case. The seller and buyer were equally igno- Warrardy on the Sale of Personal Property. 131 Borrekins v. Bevan. rant of the quality of the article, of its distinctive features and character. It was an article brought from a far country, paid for by the seller under the same description, and sold with a full belief it was the article he undertook to sell. The buyer made the purchase under the same impression. It turns out to be of inferior quality, adulterated, and that a fraud has been practiced abroad. Reason and common convenience would say that, the seller and purchaser being on equal terms, the maxim caveat emptor must govern the case. It seems to be agreed, that if there be neither warranty nor fraud, the seller is not responsible for mere inferiority of quality, but, it is con- tended, he is bound to give a merchantable article of the kind and character he undertook to sell. There is no reason, how- ever, for a distinction between the cases, where the purchaser has an opportunity to examine the article. If the article turns out to be of inferior quality, it is conceded that the seller is not answerable, because the buyer purchased on his own judg- ment, and asked no warranty. The same reason applies with equal force to the case of admixture, of adulteration of different substances, in 'whole or in part. Admixture, particularly such as occurred in this case, of blue paint and dirt, is as easily de- tected, perhaps more so, than mere inferiority of quality. If the purchaser avails himself of the opportunity of examination, or buys as if he had examined, where is the reason for a differ- ence between this case and that of mere inferiority of quality ? If the rule be adopted at all it must be adopted throughout. But the rule of the Roman law, that sound price calls for sound goods, is not the rule by which we are governed. The common law is our law. The rule of reason, and that which is sanc- tioned by the best authority, is, that when a sale is made of an article in the usual course of business, and a full opportunity is given to the purchaser for examination, and there is neither warranty nor fraud by the seller, the buyer cannot resort to the seller on the ground of inferiority of quality, of adulteration, of admixture, or of any difference in the article. There are some cases decided in later times which either do not come within the rule, or may be considered as exceptions to it. One of these is, the purchase of a manufactured article from the manufacturer, who is considered as warranting that the article he sells, or makes for the purchaser, is of a fair merchantable quality. Such were the cases of *Laing v. Fidgeon, and *Jones v. Bright. Another of these cases is that of a sale of articles not usually the subject of examination, or which cannot be examined. Thus, if a wine merchant undertakes to sell Madeira, and sends Teneriffe ; or if an apothecary profess to sell magnesia, and 132 Warranty on the Sale of Personal Property. Borrekins v. Bevan. sends cream of tartar, the purchaser is not bound. There may be cases, too, ruled by the custom of trade, with regard to which tlie court should be very cautious. Perhaps another case may be that of a sale of an article for a foreign market, or for a specific purpose, as in the case of *Gray v. Gox. The present case may be considered one of mere inferiority of quality, which arises from various causes of which it is some- times very difficult to judge. Mr. Troth, the most skillful man examined, says the article might be blue paint, but it did not resemble any paint he sold imder that name ; it was a mixture of inferior blue paint and dirt. An examination of the books will show that the rule, now proposed on behalf of the defendants in error, has the sup- port not only of good sense, but of authority, although a case may now and then occur, or a sentiment be expressed by a judge, wearing a different aspect. Mr. Chauncey here examined and explained a number of the cases cited by the counsel for the plaintiff in error, for the pur- pose of showing that they sustained the principles for which he contended. He also referred to ^Parkinson v. Lee, 2 East. 314, 2 Kent's Com. 274, 275 ; Wilson v. Shackelford, 4 Rand. R. 5. The rule, which may be fairly deduced from the cases, is that ■for which the defendants in error now contend, and which was applied by the court below to the present case. The plaintiff did not declare upon a warranty, nor was there any evidence that a warranty was expected or intended to be given, but the contrary. The sale was made on inspection actually had, or opportunity offered for it. The bill of parcels was given after- wards. In such a case it can be regarded as no more than a mere description of the thing sold, not even amounting to an affirmation that it really was what it was described to be, and still less to a warranty to that effect. Cases of a description before the sale, by advertisement, or in the contract by a sale note, bill of parcels or invoice, may involve a warranty ; but it is impossible to infer a warranty from a description given after the sale is completed. In laying down the law to the jury the judge founded himself upon *Jackson v. Wetherill, 7 Serg. & Rawle 480; *Curcier v. Pennock, 14 Serg. & Rawle 51 ; Calhoun v. Vecchio, 3 Wash. C. C. R. 165 ; Barrett v. Hall, 1 Atk. Rep. 269 ; Brown on sales 409. The position of the judge who tried the cause, that it was necessary, to enable the plaintiff to support the action, to show that he had previously returned or tendered the article, was sound, upon the ground that there was no express warranty. Warrardy on the Sale of Personal Property. 133 Borrekins v. Bevan. in which case alone the plaintiff is at liberty to sue upon the warranty, or defend himself by means of it without returning- or offering to return the article. The reason of this distinction, between express and implied warranties, is, that the former affirms and the latter annuls the contract, and no case can be found in which the party can keep the article where his claim, or his defence, annuls the contract. This position is fully sustained by authority. Brown on sales 341, 475 ; Fisher v. Lancaster, 1 Camp. 190 ; Groning v. Mend- ham, 1 Starkie 257 ; Rowe v. Osborne, 1 Starkie 140 ; *Richie V. Summers, 3 Yeates 531 ; *Thornton v. Wynn, 12 Wheaton 183 ; Burton v. Stewart, 3 Wend. 238 ; Saund. on PI. & Ev. 303, 304 ; Kimball v. Cunningham, 4 Mass. R. 502 ; *Connor,v. Henderson, 15 Mass. R. 319 ; *Curcier v. Pennock, 14 Serg. & Rawle 51 ; *Steigleman v. Jeffries, 1 Serg. & Rawle 477 ; Grimaldi v. White, 4 Esp. N. P. R. 95. Another conclusive objection to the plaintiff's recovery was, that the defendants were agents, who had accounted with their principal and paid over the proceeds of the sale, before any ob- jection was made. Paley on Agency 37, 45. In reply, the counsel for the plaintiff in error, disclaimed any desire to avoid a discussion of the question under consider- ation, without full reference to everything which could explain or vindicate the judgment of the court below. It would be attended with little advants^e to do so, as in case that judg- ment should be reversed, it would be easy for the counsel of the defendants in error to place upon the record, when it came up again, all the facts and circumstances calculated to present the question to this court, in such a manner as he deemed es- sential to a proper determination of the question. The decla- ration was drawn before it was known what evidence would be given, and, certainly, vrithout any view to a contest about technicalities ; and, from what passed between the counsel on both sides, it was understood that the cause was to be tried without regard to form ; that if the plaintiff could recover on any declaration, he should on that which was filed ; and that if the defendants could escape on any plea, those which were put in should protect them. In the same spirit the cause was tried. Whether a sale is " in the usual course of business," and whether " the purchaser had a full opportunity of examining the article," are questions of fact which should have been left to the decision of the jury ; for, unless decided by them affirma- tively, the plaintiff's right to recover would not be affected by the rule contended for, on behalf of the defendants. But the court did not charge in the qualified language used by the 134 Warranty on the Sale of Personal Property. Borrekins v. Bevan. counsel. The judge said nothing about " the usual course of businesss," or " opportunity to examine," but that " the plain- tiff could not recover without express warranty or fraud, and that a description, in a bill of parcels, was not equivalent to a warranty." In this there was error, even on the principles laid down on the opposite side. But these principles are, them- selves, opposed by a host of English authorities, and, to avoid their operation, the counsel introduces numerous and important exceptions, within which, however, it is impossible to bring many of the cases with which he has to combat. If, however, the general principle' be admitted to be correct the exceptions are sufficient for the purposes of the plaintiff in error. How does it appear that paints are usually the subject of examina- tion by the buyer ? It is certainly as usual and as natural for a purchaser of wine to taste and judge for himself, as for a manufacturer of paper hangings to explore every cask of paint he buys, yet it is admitted that he to whom wine is delivered, of a different character from that which he contracted for, is entitled to redress. How, too, does it appear that the article was not sold for a specific purpose, another of the exceptions stated by the opposite counsel ? The plaintiff is among the most extensive manufacturers of paper hangings in the United States, and if the court had qualified their doctrine, as the counsel now does, the intent of the purchaser might have been understood by the jury, and their verdict different. Here, again, the charge works an injury to the plaintiff in error. Every purchaser has some purpose in view, and ought it to be assumed, because the specific purpose is not declared, that, therefore, the purchaser intended to buy what had no value for any other purpose. " No man," says Lord Ellen- borough, in Gardiner v. Gray, 4 Campb. 144, " can be supposed to buy goods to lay them on a dung hiU." The difficulty of distinguishing between great inferiority of quality and entire difference in the article is no reason for breaking down the dis- tinction to be found in the books. To say that trespass vi et armis is the remedy for deceit and case for consequential injur- ies, is to make, in many cases, a most puzzling distinction. Even to say that a sane man may make a will, and that an insane one may not, is to establish a principle which, in its application, sometimes splits a hair. Yet these distinctions, so difficult in application, are perfectly well settled in law. But the cases already referred to expressly decide, that whether the purchaser had an opportunity to examine, and whether he did examine or not, make no difference as to the responsibility of the seller. If, then, the general principle offered by the counsel for the defendants in error, be not established in its extreme Warranty on the Sale of Personal Property. 135 Borrekins v. Bevan. bearings, and if its exceptions be not narrowed down witliin the limits which he has himself prescribed for them, the au- thorities already cited may be reverted to, to show that in England, at this time, as in France and Europe generally, the contract of sale implies a warranty that the article sold shall correspond in character with the article described ; and that it shall correspond in quality with the sample, if a sample has been exhibited. The opinion of the court was delivered by Rogers, J. — After the testimony, which is particularly set forth in the bill of exceptions, was closed, the court charged the jury that the plaintiff could not recover, unless an express warranty or fraud was proved; that a description in a bill of sale of parcels of the article sold as blioe paint, does not amount to a warranty that it is so ; and, that in order to support his action, it is incumbent on the plaintiff to show that before bringing suit he tendered or re-delivered the article to the defendants. If the court were correct in any one of these propositions, there was an end of the plaintiff's case. The counsel for the plaintiff in error and the plaintiff below, have filed exceptions which embrace the whole charge. It is conceded that, vrith regard to the goodness of wares purchased, the vendor is not bound to answer, unless he ex- pressly warrants them to be sound and good, or unless he knew them to be otherwise and hath used any art to disguise them, or unless they turn out to be different from what he repre- sented to the buyer. 2 Bl. Com. 451. The rule is, as respects quality of the article, caveat emptor. According to the modern cases, warranties are divided into two kinds : express warranties, where there is a direct stipula- tion or something equivalent to it, and implied warranties," which are conclusions and inferences of law from facts, which are admitted or proved before the jury. If the learned judge intended to say there can be no warranty without an express agreement or stipulation, or there be fraud, then his opinion is in opposition to the whole current of modern decisions. It must now be taken to be the law (for they have conceded this in England, and even in New York, where the cases of *Ghande- lor V. Lopus and *Sexias v. Wood were decided) that where property is sold by sample there is an implied warranty that the article corresponds with the sample, although it has at the same time been held, that it is sufficient if the bulk corresponds with the sample. This has been considered as equivalent to an express warranty and is, doubtless, a departure so far, from the law as formerly understood. 136 Wamiiity on the Sale of Persona/ Property. Borrekins v. Bevan. From a critical examination of all the cases, it may be safely ruled, that a sample or description in a sale note, advertise- ment, bill of parcels or invoice, is equivalent to an express war- ranty that the goods are what they are described or repre- sented to be by the vendor. In the absence of proof to rebut the presumption, it is of equal efficacy, to charge the vendor as if the seller had expressly said : " I warrant them to correspond with . the description or repre- sentation." 13 Mass. R. 139, *Bradford i: Manly ; *5 John. R. 395; 1 Gamp. 113, *Hibbert v. Shee ; 1 Peters. 317, Willings v. Gonsequa ; 1 Eng. Gom. Law Rep. 327 ; *20 John. Rep. 196, 204 ; *4 Gowan 440; *19 John. Rep. 290; *6 Gowan 354; 4 Barn. & Alder. 387 ; 6 Eng. Gom. Law Rep. 456. Without intimating an opinion how the fact may be, yet there was proof from which the jury would have been justified in saying that this was a sale by sample. The paints Avere originally the property of Junius Smith, of London, and were sent out to Adams & Swift, of Baltimore. After the failure of Adams and Swift, they came into the hands of Mr. Humphreys, a witness examined by the defendants. Mr. Humphreys brought samples of the paints to^ Philadelphia, and with Mr. Bevan, one of the defendants, exhibited the samples to the plaintiff. Mr. Borrekins declined coming to any arrangement at that time, but enough passed to induce the witness to send them to the Philadelphia market ; and accordingly, on his return to Baltimore, he sent the paints to Bevan and Porter to be subject to a re-examination. The wit- ness further states : the first arrangement was indefinite, butwastobecomeabsoluteif, on delivery, the articles corresponded with the samples. After the purchase the paints were carried to the plaintiff's manufactory, and, some time after they were delivered, Mr. Borrekins brought a sample of the stuff, as the * witness Isaac Blanchard termed it, and directed him, Blanchard, to go down to Messrs. Bevan and Porter, and say that he claimed the money paid, because the article was not according to sample. The vsritness then exhibited the sample which Mr. Borrekins had given him, and told Mr. Bevan that was a sample of the blue which Borrekins had purchased of him. Mr. Bevan took a little in his hand and said: "I%m is not blue. It does not look as if it ever had been blue." He then stated there would be no difficulty about settling it; that Mr. Humphreys was not then in the city, but was expected shortly ; and that there was no doubt the matter would be adjusted amicably. On this evidence it is very far from being clear that it was not a sale by sample. It strikes me that the evidence tends to prove that it was so sold, and moreover that Bevan intended to sell, and Borrekins to purchase, blue paint. If the parties had not so Warrwrdy on the Sale of Personal Properly. 137 Borrekins v. Bevan. understood it, Bevan would have denied that it vsras a sale by sample, and vsrould, at the same time, have asserted that Borre- kins took upon himself to judge of the quality and kind of the article sold. At any rate, taken in connection with the admission of Mr. Humphreys, the jury should have been permitted to judge whether it was a sale by sample. There was also some evidence, whether sufficient for the purpose I shall not say, that the article did not correspond with the sample. This was evidently sold as blue paint. It was the intention of the vendor to sell blue paint, as such a sample was exhibited by Humphreys to Mr. Borrekins. The article received was, by the admission of Bevan, not blue, nor did it look as if it ever had been blue. Henry Troth, who has been accustomed to deal in paints, and verditer among the rest, says : " This might be called blue paint, but it does not resemble any paint we sell under that name. This is a mixture of some blue paint with a part dirt, different from anything we are accustomed to deal in." He thinks there is inferior blue verditer among it, mixed in with dirt. He says there is a variety of qualities in the market. This would not be considered in the market as blue verditer. He should not consider this as any paint. It is not pretended that this was not the same article which Borrekins purchased of the defendants, nor do I understand fraud to be alleged either on the one side or the other. It was the duty of the court to submit the facts to the jury, vrith the instruction that, if they beUeved that this was a sale by sample, and were further of the opinion that the bulk did not correspond with the sample, the plaintiff was entitled to recover. It is possible, from the manner in which this case has been removed, we may do injustice to the charge of the learned judge, yet from the record we are compelled to say, a material question has been withdrawn from the jury, in which we concede there is error. The court, after charging the jury " that the plaintiff could not recover unless an express warranty or fraud was proved," proceed to instruct them " that a description in a bill of parcels of the article sold as blue paint does not amount to a warranty that it is so." I must premise that we do not consider the bill of parcels as the contract between the parties, but as the evidence of the con- tract, nor is it, in Pennsylvania, the only evidence. The bargain is not usually in vmting, but verbal, and the bill of parcels is intended to show that the goods were purchased, and what goods, and that they were paid for. And in this opinion we are supported by the cases of *Bradford v. Manly, 13 Mass. Rep. 142, and Osgood v. Lewis, 2 Maryland Rep. 522. It results from this, that inasmuch as this was a verbal, and not a vrritten agreement, it is the province of the jury to ascer- 10 138 Warranty on the Sale of Personal Property. Borrekins v. Bevan. tain what the contract was, and to declare what was the intention of the parties to it, as was decided in Osgood v. Lems, 2 Mary- land Rep. 526 ; *I)uf!'ee v. Mason, 8 Gowen 25. In parol contracts the jury must determine whether a warranty was intended. In the case of written contracts, the court must decide whether the instrument contains an express warranty as such. To fix the precise meaning of the judge, in this part of his charge, has been attended with some difficulty. I understand him in effect to say, that even if the defendants sold, and the plaintiff purchased the article for blue paint, it does not amount to a warranty, if, on delivery, it turns out to be an entirely different commodity. It is this position which I now propose to examine, and in doing so, I do not think it necessary to revicAv all the cases, which have been decided at nisi prius, on the doctrine of implied warranty. In regard to the English niii prius Reports, Justice Bayley is reported to have said " that it is very likely, one's first thoughts at nid prius may be wrong, and he was extremely sorry that they were ever reported, at least so far as his own nisi prius de- cisions are concerned, because he thinks they are entitled to very little weight. What is said by a judge upon a trial is merely the first impression of his mind upon a point coming suddenly before him, and which he had no opportunity of con- sidering before hand." My own experience, and the examination which I have given this question, has not increased my venera- tion for cases ruled at nisi prius. Those on warranty are numerous, and, I believe I may venture to say, cannot all be reconciled. There is, however, a class of cases in England, to the authority of which I subscribe, which bear immediately on the present question. I refer to those decisions where the goods purchased are different in specie from those contracted for. The first case is *Weall v. King, 12 East. 452, which was the case of the sale of stock sheep, and it was proved they did not answer the description of stock sheep, that is sound lambs, but were unsound and afflicted with the rot ; under such circumstances, says Lord Ellenborough, the pur- chaser has a right to expect a saleable commodity, answer- ing the description in the contract, without any particular warranty ; this is an implied term in every contract. He cannot, without a warranty, insist that it shall be of any par- ticular quality of fineness, but the intention of both parties must be taken to be, that it shall be saleable in the mar- ket under the denomination mentioned in the contract. Gard- ner V. Gray, was where silk was sold as waste silk, whereas, , Warranty on the Sale of Personal Property. 139 Borrekins v. Bevan. in fact, it was not so. And *Bridge v. Wain, 1 Stark N. P. G. 104, was the case of scarlet cuttings which, in reality, were not scarlet cuttings. The case of *Shepherd v. Kain, 5 Barn. & Aid. 240, is exceedingly strong to the present point, where, in an advertisement for the sale of a ship, she was described as a "copper fastened vessel," but -with these words subjoined, " the vessel to be taken with all faults, without allowance for any defects whatsoever." The vessel when sold was only partially copper fastened, and she was not what is called in the trade a copper fastened vessel. The buyer, however, had a full opportunity of examining the vessel before the sale. But it was determined that the buyer was entitled to damages in an action upon the warranty, and that the words " with all faults," could only mean all faults which a copper fastened vessel may have ; but here the vessel was not what she was warranted to be : namely : a copper fastened vessel. In Prosser v. Hart, 1 Stark. 140, it is fair to presume that, if there had been nothing exist- ing in that case which controlled the general rule. Chief Justice Gilabs would have ruled, in accordance with these principles, that the defendant was liable on his warranty. The chief justice says the article was sold to the plaintiffs by the name of " saffron." They examined it with great minute- ness, received it into their custody, kept it six months and then sold part of it. Although only three-fourths of it was saffron, still it was fair for the jury to infer from the inferior price that was given for it, that it was such an article as the plaintiffs in- tended to purchase, and under the circumstances, they were justified in giving a verdict for the defendant. We are not without authority to the same point in some of our sister states. *Bradford v. Manly, 13 Mass. Rep. 139, is a case of the same description. The Supreme Court of Massa- chusetts decided that a sale by sample is tantamount to a war- ranty that the article sold is of the same kind as the sample. The principal object seems to be to ascertain what was the contract ; whether the evidence proved a contract to sell cloves of a different kind from those which were delivered. The .objection was, as here, that no action upon a warranty can be maintained, unless the warranty is express ; and that no other action can be maintained unless there is a false affirmation with respect to the quality of the article. If such were the law, says C. J. Parker, it would very much embarrass the operations of trade which are frequently carried on to a large amount by samples of the articles bought and sold. Even in New York, although in *4 John. Rep. 421, they decided that the mere sell- ing an article as good, at a fair price, did not amount to a warranty, and that without express warranty or fraud, the 140 Warrardy on the Sale of Personal Property. Borrekins v. Bevan. purchaser could not recover for any defect in the article ; yet in 5 John. Rep. 404, it was determined that a sale by sample, although no warranty that the goods are sound and in good condition, yet is a warranty that they are of the same kind. And in *Parkinson v. Lee, 2 East. 314, 4 Camp. 22, 145, the same distinction would seem to be recognized. In *Hastings v. Lovering, the Supreme Court of Massachusetts assert the same doctrine. That was an action on a contract of warranty in the following terms : — Boston, April 11th, 1822. Sold to E. F. Hastings, two thousand gallons prime quality winter oil, &c., at 81 cents per gallon, six months credit, deliv- erable within ten days, credit to commence on delivery. William Lovering, Jim'r. There was also a bill of parcels in which the oil was called " Prime Quality Winter Sperm Oil." It was contended, as here, that these writings did not prove an express warranty. The jury found that the oil delivered did not answer the description ; the court, however, ruled that the vendor was answerable on the warranty, and explicitly assert the principle that a descrip- tion of an article inserted in a bill of parcels, or in a sale note, such as is used in England, ought to be considered evidence that the thing sold was agreed to be such as represented. Osgood V. Levvas, in many respects, bears a strong analogy to Hastings v. Lovering. This was also an action on the warranty. The plaintiff, as appeared by the bill of parcels, purchased of the defendant 115 casks of winter pressed sperm oil. The oil was delivered to the plaintiff and kept by him for some time. It subsequently turned out to be not winter, but summer pressed oil, which is of an inferior quality, and of a different species. The court say if the bill of parcels be considered as the written contract between the parties, the statement therein, that the oil was " winter pressed," could not be con- sidered as a mere matter of description, or of an opinion and belief of the seller ; but as the averment of a material fact of which he has taken to himself the knowledge, and the existence of which he warrants. In all cases where it does not correspond in kind, the pur- chaser has a right to say, this is not the article I contracted for. Non in haec federa veni, and this whether he complains at the time of delivery or after, unless his conduct amounts to a waiver of his right to indemnity. And, I venture to assert, no honest, iair dealer, under such circumstances, would refuse redress. I do not look upon it as an imperfect obligation, but one in which the aggrieved has ample redress. Warranty on the Sale of Personal Property. 141 Borrekins v. Bevan, It is no unreasonable presumption tliat every vendor is acquainted with the commodities which he sells ; I do not mean the quality, but the kind. This, however, is not always the case of a vendee. The purchaser, in numberless cases which could be mentioned, relies on the integrity and knowledge of the vendor. If a person purchase Madeira wine of a wine merchant, surely he cannot be compelled to take Teneriffe, Lisbon, Sherry, or Malaga ; although he may have tasted it at the store, or been under the impression, at the time it was delivered, that it was the kind with which he wished to entertain his guests. So, also, in the case of an apothecary who delivers jalap when the purchaser intended to have cream of tartar. If a person purchase of a jeweler what both parties suppose to be a diamond ring, a case of mutual mistake, which, after delivery, is discovered to be glass, there would certainly be a remedy, and this could only be an implied warranty. And this I under- stand to be conceded, because, says the counsel for the defendant in error, they are presumed to be acquainted with the article in which they deal. If this be so, then the case of *Chandelor v. Lopus must be abandoned, for, undoubtedly, as the law is now held, the jeweler would have been liable on the implied warranty. And the same may be said of *Sexias v. "Wood, 2 Gaines' Rep. 48 ; *Swett v. Colgate, 20 John. Rep. 196 ; which are in opposition to the law of England, Massachu- setts and Maryland, as has been shown by the cases to which I have referred. In *Sexias v. Wood, the court do not advert to the distinction that it was a diilerent article, but seem to have grounded their opinion mainly on the case of *Ghandelor v. Lopus. It is to be observed that *Sexias v. Wood was ruled by a divided court, and it is to be remarked that Chancellor Kent, who delivered the opinion of the court, has, in his Commentaries since expressed some dissatisfaction with the application of the rule caveat emptor to the facts of that case. In the second volume of his Commentaries he says : "There is no doubt of the existence of the general rule, as laid down in *Sexias v. Wood, and the doubt is whether it was well applied in that case, where there was a description, in writing, of the article by the vendor, which proved not to be correct, and from which a warranty might have been inferred." The truth is, *Chandelor V. Lopus has been denied to be law, and *Sexias v. Wood has also been questioned, and its authority much shaken, even by some adjudged cases in the State of New York. As a general rule, I do not mean to impugn the doctrine that, in sales of personal property, the vendor is not answerable for any defects in the quality of the article sold, without an express warranty or fraud. But it must be admitted that the rule is qualified with many exceptions. 142 Warranty on the Sale of Personal Property. Borrekins v. Bevan. Of this description I take to be *Laing v. Fidgeon, 6 Taunt. 108 ; *Gray v. Cox, 4 Barn. & Gresswell 108 ; *Bluett v. Os- borne, 1 Stark. 377 ; in addition to those to which I have particularly adverted. The exigencies of society, the constant change which is daily taking place in the course of trade and commercial dealing, have caused the courts to relax the rigidity of the ancient rule, and it is remarkable that the same course has been pursued in regard to the civil law, where the rule is directly the reverse of ours. It has been said that the doctrine only applies to executory contracts, but it will be observed that all cases are actions on the implied warranty where the contract has been executed, either at the time or afterwards, by payment of the money and delivery of the property. In *Hastings v. Lovering, 2 Pick. 221, there was an attempt made to put it on the ground of an executory contract, but this was expressly negatived by the court who ruled the case as one where the contract was executed. In all sales, therefore, there is an implied warranty that the article corresponds in specie with the commodity sold, unless there are some facts and circumstances existing in the cases of which the jury, under the direction of the court, are to judge, which clearly show that the purchaser took upon himself the risk of determining not only the quality of the goods, but the kind he- purchased, or where he may waive his right. Such, for instance, as in Prosser v. Harris, 1 Stark. 104, where the property was sold by the name of saffron. The purchaser ex- amined it with great minuteness, kept it six months, and then sold pari of it. Although only three-fourths of it was saffron, still it was fair for the jury to infer, from the inferior price that was given for it, that it was such an article as the plaintiff in- tended to purchase. No such facts exist here. He had, it is true, an opportunity to examine the paints, as every purchaser has, but it does not appear that he did examine them with great minuteness. He sold no part of them, and it does nofappear that he gave a full price for the paints. Of this, however, the jury, under the direction of the court, are the competent judges. The court further instruct the jury, that, in order to support his action, it is incumbent on the plaintiff to show that, before bringing suit, he tendered or re-delivered the article to the defendants. If this had been an action to rescind the contract, there would be no doubt the charge would have been right in this particular. And this was formerly the law on an express war- ranty, but it has been since ruled that an action will lie without a return, or offer to return the property. And, in this respect, Warranty on the Sale of Personal Property. 143 Borrekins v. Bevan. I can perceive no difference between an express and implied warranty. It is said injustice may be done to the vendor in sustaining a suit before a return or offer to re-deliver the property. It may be so, but the danger exists as well in the case of an express as an implied warranty. We must trust to the good sense and discrimination of the court and jury. This has heretofore been a sufficient safeguard in actions on an express warranty, and, I see no reason to doubt, it will prove equally efficacious in actions of the latter description. That there may not be ex- ceptions I vrill not say, but I do not think this forms one of them. The measure of damages will, of course, be the differ- ence between the value of the article delivered and the com- modity sold. Gibson, G. J. — Where the article has been accepted after inspection, or opportunity had, I prefer the rule of the common law to the modern approximations towards that of the civil law ; not only because it is a rule of the common law, but be- cause it seems to be more convenient and just ; more conve- nient because, instead of attempting to deal with duties that are too subtle for judicial cognizance, it furnishes a plain test of the vendor's liability in two words, ' warranty or fraud,' and more just because it pretends not to release the vendee from his bargain where it happens to be a bad one. The sub- ject has been frequently agitated of late, and the superiority of the common law rule vindicated in a way that leaves nothing further to be said. The extent of its authority here was settled, it seemed to me, in *Richie v. Summers, 3 Yeates 534 ; Kimmel v. Lichty, ib. 262 ; Willings v. Consequa, 1 P. G. G. R. 317 ; Galhoun v. Vecchio, 3 Wash. G. G. R. 165 ; *Jackson v. Wetherill, 7 Serg. & Rawle 482 ; and *Gurcier v. Pennock, 14 Serg. & Rawle 51 ; which, together, seem to have placed it on the ground of *Chandelor v. Lopus. From that case down to *Parkinson v. Lee, 2 East. 314, it stood unshaken ; since when a flood of innovation, in England and some of our sister states, has swept away all rule on the subject whatever. From the decisions, to which I jallude, I am unable to extract a single principle of general application. In some of them an adver- tisement, a sale note, or the bill of parcels has been treated as the contract, and words that were used palpably to designate the thing sold, or at most to represent its quality or condition, were held, even in the face of an explicit stipulation to the con- trary, to constitute an express warranty. Such I take to have been the case of *Shepherd v. Kain, 7 G. G. R. 82, where the representation of a ship as copper fastened was held to be a 144 Warranty on the Sale of Personal Property. Borrekins v. Bevan. warranty of the fact, though it was an express condition that the vendor should be answerable for no defect whatever. I Mn Salmon v. Ward, (12 C. L. R. 94,) Chief Justice Best ad- mits a difference between warranty and representation, and yet takes for granted that the words, " this horse is sound," constitute a warranty, or, at least, afford evidence of it to be left to a jury. Thus qualified, his admission furnishes but a distinction without a difference, inasmuch as every representa- tion contains an affirmation of the fact represented ; nor would the practical value of it be enhanced by allowing the jury to presume an express warranty from anything less than an ex- press undertaking. In *Wood v. Smith, 4 Car. & P. 45, S. G. 19, G. L. R. 267, the doctrine of constructive warranty was pushed a step still further ; a naked affirmation of soundness having been held to constitute an independent, self-existent un- dertaking, though the vendor had positively refused to warrant the fact, or enter into any stipulation or engagement in relation to it. No one can help seeing the injustice of that. There was, indeed, evidence that the vendor knew of the unsound- ness at the time, but, however that might have given a remedy against him for the deceit, it surely ought not to have sub- jected him to the consequences of a warranty. The Supreme Court of New York, though professing to adhere to the whole- some doctrine of its own decision in *Sexias v. Wood, seems, nevertheless, to have fallen in with the current, in declaring a direct affirmation to be an express warranty, or, at least, evi- dence of it to go to a jury. In *Chapman v. Murch, 19 Johns. 290, it was held that an express warranty need not be in ex- press terms ; but that any representation of the state of the thing sold, or direct affirmation of its quality and con- dition, showing an intention to warrant, is sufficient. So in *Swett V. Colgate, 20 Johns. 196, it is said to be essential that the affirmation appear to have been intended as a warranty, and not as a mere matter of judgment and opinion. But in *The Oneida Manufacturing Society v. Lawrence, 4 Cowen 440, it was held that to be evidence of a warranty, the affirmation or representation must not only be positive and unequivocal, but one on which the vendee rehed. In most of the preceding cases, and others not particularly noticed, it seems to have been forgotten that the vendor is answerable for nothing beyond the soundness of the title, and the correspondence of a sample, where one has been used, to the thing sold, unless by force of an express warranty. In *Sands v. Taylor, 5 Johns. 395, Chief Justice Spencer very accurately calls the warranty, arising in a sale by sample, an implied one ; and what is the foundation of the implication ? Undoubtedly the affirmation of the seller Warraniy on the Sale of Personal Property. 14 5 Borrekins v. Bevan. that the part exhibited fairly represents the quality and condi- tion of the whole. It is difficult, then, to imagine how any other than an imphed warranty could arise from the assertion of any other fact. The covenant which arises from the asser- tion of a fact in a deed is, I believe, always considered an im- plied one. A naked assertion certainly does not express to the apprehension, either of the unlettered or the philologist, an undertaking to make the assertion good ; and to imply an ex- press warranty, to say nothing of the solecism from words that do not import it, either in a popular or grammatical sense, is to deal unfairly with the rule which requires it. It is equally un- fair to submit a naked assertion as evidence of intention, in order to let a jury draw from it, as a conclusion of fact, what the court would not be justified in drawing from it as a con- clusion of law. It must be admitted that it is the province of a jury to fix the meaning of the parties to a verbal contract, and that no particular form of words is essential to a war- ranty ; but it seems to me that it ought not to be inferred, even as a conclusion of fact, from terms which convey no such meaning to the popular apprehension. In the exposition of contracts, regard is to be had to the language, habits, and busi- ness of those who are the parties, in order to prevent them from being entangled in responsibilities which they never in- tended to create. There is no man, however unskilled in legal science, who does not know that a warranty means something more than a representation, and who would not, in the concoc- tion of a bargain, make a difference between an assertion and an undertaking to make it good. Nor ought it, I apprehend, to strengthen the case of the buyer, that he had reposed on the judgment and word of the seller as a security, because it would be unfair to permit him to do so without putting the seller on his guard, as to the extent of the responsibility he was expected to contract from it. Were he to say, explicitly, that he meant to purchase, on the judgment and at the risk of the seller, no one vrill doubt that, in a vast majority of cases, the terms would be rejected. If, however, they would not, the parties, knowing perfectly well what they were about, would enter into a contract of warranty, and no unfair advantage would be gained. But in the usual course of dealing, a Chapman praises his commodity with no other view than to enhance its value in the eyes of his customer, who, in turn, depreciates it, vdth a view to cheapen it ; yet it never enters into the head of either, that the one buys or the other sells on any one's judgment but his own. A different course would put an end to anything like chaffer- ing about the relation of the actual value to the price. It seems 146 Warranty on the Sale of Personal Property. Borrekins v. Bevan. to me that the most fruitful source of perplexity, in this part of the law, has been an injudicious desire to remedy a real or supposed hardship in particular cases, by straining the evidence to make out a warranty where none existed in fact or in law. But an inconsistency, quite as glaring as the implication of an express warranty, is found in the fact that a sale by sample is left on the old ground, the vendee being taken to buy on his own judgment, both as to quality and specific character, and the vendor to undertake no further than that the sample corres- ponds to the bulk of the article. Why is the undertaking of one who sells by sample satisfied by delivering an article of the same quality and character? Certainly because the vendee buys on his own judgment, and at his own risk as to every- thing else ; and I am at loss to understand how the responsi- bility of the vendor shall be greater or different where the article itself is exhibited. In other cases where there was, in fact, no sale, but an agreement to sell and deliver an article of a particular quality, by a day certain, the executory contract of the party seems to have been confounded with a present con- tract of warranty. Questions, too, have been determined on the ground of warranty that manifestly turned on that of deceit ; as in the case of a sale by a manufacturer who is bound to know the quality of his wares and disclose it. These, and other loose and inconsistent notions, would furnish a reason, if one were wanting, why we should not attempt to follow the modem decisions of other courts in preference to our own. Though the distinction between quality and essential character is a novelty, I certainly prefer it to the want of all rule whatever, observable in modern cases, yet it seems to have little foundation in reason, and little to recommend it on the score of certainty and convenience in practice. It is difficult to comprehend why the vendee shall be taken to have bought on his own judgment, as to quality and not as to essence ; nor will it be easy to say how far a change may have been pro- duced by adulteration, so as to authorize a jury to determine that the one denomination of the article has ended and another begun. The object of the common law rule is to encourage trade, by preventing actions against all, in turn, through whose hands the article has passed in a course of dealing ; but this object must be defeated by the rule now established, wherever the defect is in the essential character of the thing. I am, therefore, for adhering to the rule in *Chandelor v. Lopus. Kennedy, J., concurred with the Chief Justice. Judgment reversed and a venire de novo awarded. Warranty on the Sale of Personal Property. 147 SUNBURY, JULY, 183 4. 2 WATTS' REPORTS 367. Kirk V. Nice. A contract to deliver iron, made in a certain place, in consideration of a sound price paid, is complied with by a delivery of iron obtained at that place, which the contracting party believed to be good, although upon trial it was found to be positively bad. Error to the Common Pleas of Lycoming County. In this action by William Nice against Kirk, Kelton & Co., the only point determined was fatal to the plaintiff's right of action, and is fully stated in the opinion of the court. Parsons and Armstrong for plaintiffs in error. Campbell for defendant in error. The opinion of the court was delivered by Kennedy, J. — The plaintiffs in errorjwerethe defendants below, against whom the defendant in error brought this action to recover damages, on account of the inferior and bad quality of eleven and a half tons of bar iron received by him of them, in part satisfaction of a lai^e quantity of store goods previously sold and delivered by him to them, according to the terms of a special agreement made between them. The agreement was reduced to writing and is as follows : " Memorandum of agreement, made and concluded on the 5th day of October, 1830, between William Nice, of the borough of Milton, of the one part, and Kirk and Kelton, of Lycoming county, of the other part ; witnesseth, that the said William Nice doth agree to sell to the said Kirk and Kelton his entire stock of store goods now on hand at first cost, for which said Kirk ■ and Kelton are to pay him in bar iron of Centre county metal dravm to a reasonable bill, and to be delivered at Milton at one hundred and ten dollars per ton ; the iron to be delivered say not later than May next. " Kirk, Kelton & Co. "William Nice." The goods, amounting to two thousand and twenty-seven dollars and fifty-three cents, according to an account thereof, made out by the parties shortly after entering into the agreement, were delivered by the defendant in error to the plaintiffs in error. The plaintiffs in error also, within the time and at the place fixed by the agreement, delivered to the defendant in 148 Warranty on the Sale of Personal Property. Kirk V. Nice. error the full quantity of bar iron thereby required, all made out of Centre county metal, according to a bill furnished by the defendant in error. The counsel for the plaintiff below filed a declaration, intend- ing it, I presume, to be in assumpsit ; in which, after reciting the agreement and averring the value of the store goods, and a delivery thereof by him to the defendants, he concludes it, without assigning any breach, in the following terms : " Never- theless, the said Kirk, Kelton & Co., their promise and assumption aforesaid little regarding, but contriving and fraudulently intending him, the said William, in this behalf, craftily and subtly to deceive and defraud, eleven tons, ten hundred weight and seven pounds of bar iron, of an inferior and unmer- chantable quality, to the said William, at Milton aforesaid did deliver, well knowing the same to be unmerchantable and of inferior quality, and contrary to the bargain and agreement between them made, under pretense that the said bar iron was of the same value and goodness as Centre county metal of a good quality, to the damage of the said William Nice four hundred and fifty dollars." From the declaration it is apparent that the whole quantity of bar iron is impliedly admitted to have been made of Centre county metal, and to have been delivered in due time at the proper place. The only complaint is, that eleven tons, ten hundred weight and seven pounds were of inferior and unmer- chantable quality, and that the defendants below knew it to be so at the time of delivery, without communicating it to the plaintiff. Several errors have been assigned which it is imnecessary to notice, because the fourth error alone raises an objection to the right of the plaintiff below to recover in this action, that is insuperable and cannot be got over. This error is founded upon the charge of the court to the jury, in answer to the first point submitted by the counsel for the defendants below, which is in these words : — " The counsel for the defendants respectfully requests the court to charge the jury in this cause that even if they believe all the evidence that has been introduced by the plaintiff, in support of this action, he is not entitled to recover imder the pres- ent declaration and pleadings." To this the court, in their charge, advised the jury that, " if from the whole evidence given upon that subject (the good and merchantable quality of the iron) they should believe that the iron was not good and merchantable, it will then be proper for the jury to inquire whether the defects in its quality were known to the defendants or not, at the time of furnishing it to the plaintiff. If the iron was not merchant- Warrardy on the Sale of Personal Property. 149 Kirk V. Nice. able and the defendants knew it, and the defects were concealed from the plaintiff, your verdict should be for the plaintiff. In leaving the case to the jury with this direction, the court decline answering the first point of the defendant's counsel in the affirmative, and answer the same in the negative." In order to decide the question here presented correctly, it is proper first to ascertain, and to state, the nature and extent of the obligation incurred by the plaintiffs in error, on entering into the agreement as recited above. It is to be observed that, at the time of making this agreement, the plaintiffs in error do not appear to have been the owners of a furnace situate in Centre county, nor concerned, in any way, in making Centre county metal, On the contrary, it appears from the record of the suit brought by the plaintifi's in error against Harris and others, of Centre county, which was given in evidence by the defendant in error, very much, too, against the vnll of the coun- sel of the plaintiffs in error, that the plaintiffs in error bought their Centre county metal of Harris and others, the manufac- turers of it, in Centre county, on the first of November, 1830, after the making of their agreement with the defendant in error, out of which they made and delivered to him the eleven tons, ten hundred weight and seven pounds of iron before mentioned. It is obvious, from the terms of the agreement, that it did not apply, and had no reference whatever, to bar iron, then manufactured by the plaintiffs in error and on hand, out of Centre county metal, but to bar iron to be manufactured or made thereafter by them, out of Centre county metal, ac- cording to a reasonable bill. This bill, upon a fair construction of the agreement, the defendant had a right to furnish, and to require of the plaintiffs in error that they should make the iron in conformity to it, if it were reasonable, because they bound themselves so to do. Having no Centre county metal on hand then, nor contract for the future delivery of any when they made their agreement with the defendant in error, they likewise bound themselves, expressly, to make the bar iron for the de- fendant in error, out of Centre county metal, and consequently it was understood between the parties that the plaintiffs in error would procure such metal. This they were vrilling to do, and obligated themselves accordingly, but no further ; to this the defendant in error acceded, and beyond this he had no right to require anything at the hands of the plaintiffs in error. They did not imdertake to deliver to him bar iron of a good and mer- chantahle quality, nor bar iron made of Centre comdy metal of a good and merchantable quality, but simply bar iron made out of Centre county m^tal. Hence, it is manifest that the plaintiffs in error, on the one 150 Warrcmty on the Sale of Personal Property. Kirk V. Nice. hand, were willing to bind themselves, at ah hazards, to pro- cure Centre county metal, and to maJce the bar iron of it, according to a reasonable Isill, but unwilling to be answerable further for its properties or quality. They were, doubtless, in the fulfillment of their agreement in procuring Centre county metal for the purpose of making the bar iron which they were to deliver to the defendant in error, bound to act honestly ; that is, not to procure or take such metal for this purpose as they knew to be bad, or of an inferior quality, but to obtain such as they believed to be good and merchantable ; and if, after having procured such as they had reason to, and did be- lieve, was good, it turned out to be bad, they, according to the terms of their contract with the defendant in error, were not bound to go further than to make the bar iron of it, according to his reasonable bill, and to deliver it to him at the place, and vrithin the time, appointed. If they did so, the defendant in error, on the other hand, was bound to receive the iron, and, having received it, he got all that was promised or assured to him by the contract. It is evident, from the contract, that he was content, at the time of making it, to take his chance of the bar iron being of good or bad quality, provided it were made of Centre county meteJ, selected honestly for that purpose by the plaintiffs in error. It is also clear that he would not have been obliged, accord- ing to the terms of the contract, to have received bar iron, however good it might have been made, from other metal than Centre county ; which is a sufficient answer to the argument of the counsel for the defendant in error, that Centre county metal was inserted to show that the bar iron must be of good |quality, and to oblige the plaintiffs in error to deliver such ; for why, I woulk ask, insert Centre county metal, if it had been understood by the parties at the time, that the plaintiffs in error were to be responsible for its being of good quality at all events. If this were the agreement and understanding of the parties, what possible difference could it make to the defendant in error, whence or what county the metal should be of, out of which the bar iron was to be made, if the plaintiffs in error were absolutely bound for the goodness of its quality ? I must confess that I am unable to perceive any ; nor can I conceive any other rational motive for introducing the clause that the bar iron should be manufactured of Centre county metal, than that of regulating the extent of the responsibility of the plain- tiffs, by limiting it to bar iron made of Centre county metal, and giving, to the defendant in error, at the same time all the ad- vantage that might accrue from the chances in favor of Centre county metal, if there were any, being better, generally, than Warranty on the Sale of Personal Property. 151 Kirk V. Nice. the metal of other places. It may also be ftirther seen that the plaintiff below, in his declaration, has not alleged that this clause was introduced, and used in the agreement, for the pur- pose and with the intent of making the defendants liable for any defect there might be in the good and merchantable quality of the bar iron or metal out of which it should be made. And even if he had, I do not see well how such an averment could have been sustained, as it would go to change and alter, very materially, the tenor and operation of the agreement. Under this view of the agreement, between the parties in this case, I think the Court of Common Pleas was wrong in advising the jury, that if they believed, from the evidence, that the plaintiffs in error knew, at the time they delivered the iron to the defendant in error, that it was of inferior and unmer- chantable quality, and concealed this fact from the defendant in error, that their verdict ought to be in his favor. Because it was not contary to the tenor and effect of their agreement to deliver such iron, even if they did then know it to be of an inferior and unmerchantable quality ; provided it was made of Centre county metal, and they obtained that metal for the pur- pose, believing, when they got it, that it was good. That the bar iron complained of was made of Centre county metal was proved beyond all doubt, even by testimony adduced by the defendant in error himself, and has been admitted in ai^ument. That the plaintiffs in error knew, at the time they procured the metal of which they made the Isar iron delivered to the defendant in error, that it was bad, or of inferior quality, or that it was such as good and merchantable bar iron would not be made of, is not even alleged in the declaration ; nor does the slightest particle of evidence appear to have been given tending in the least degree to prove it. On the contrary, the record of the suit given in evidence by the defendant in error, so much against the will of the plaintiffs in error, is made evidence in favor of the plaintiffs in error, by the act of the de- fendant in error, and is most decidedly in favor of the plaintiffs in error on this point ; for the plaintiffs in error, who were the plaintiffs in that suit, allege in their declaration, which the de- fendant relied on as evidence for him, that Harris and others, of whom they bought and procured the metal, had deceived them in selling and delivering to them metal of bad quality, which could not have been if the plaintiffs in error knew it was bad at the time. Judgment reversed. 152 Warranty on the Sale of Personal Property. PHILADELPHIA, MARCH TERM, "^ 1849. 10 BARR 320. Fraley v. Bispham. Where a sale, with samples, was made of tobacco, which was stated in the bill of parcels to be " superior sweet-scented Kentucky leaf tobacco." Such a state- ment affords no evidence from which a jury may infer a warranty that it was either superior or sweet-scented. And the seller is not liable in an action ex contractu if it was Kentucky leaf tobacco, though of a very low quality, ill-fla- vored, unfit for the market, and not sweet-scented. A letter, from the vendee to the vendor, averring that goods had been bought under a guaranty that the vendor would reimburse the vendee any loss that might be sustained, together with an enclosed account, showing the extent of the loss, not replied to, are no evidence on a count upon an account stated. In error from the District Court of Philadelphia. April 25. — The plaintiffs in this action declared upon a war- ranty by the defendants on the sale of certain tobacco, that it was superior sweet-scented Kentucky leaf tobacco ; on a promise to reimburse the defendants for any loss that might occur on sale of the tobacco by the defendants ; and on an account stated. On the trial, before Jones, P. J., the plaintiffs gave in evi- dence the bill of parcels, as follows : "Messrs. Reeves, Buck & Co., (the plaintiffs) bou't of Samuel Bispham, 50 hhds. superior sweet-scented Kent'y leaf tobacco." Then followed the weights of the several hogsheads, and at the foot of, or accompanying the bill, was the following : " Please let me know when and where you will have the above tobacco, and, as our porters understand it, they can get the same out of the warehouse better than strangers. The charge is 25 cents porterage and \\ ontage, and the certificates given up to the inspectors. Yours, &c., S. B." The plaintiffs then offered to read the depositions of one of their consignees, at Liverpool, who said that he had requested William Oxley to examine the samples of the tobacco, and of another of the firm, who said that he had examined the sam- ples carefully, and that the tobacco was Kentucky leaf of ex- ceeding bad quality, low, faded and rotten; that the said tobacco was not superior sweet-scented Kentucky leaf. Warranty on the Sale of Personal Property. 153 Fraley v. Bispham. Oxley stated he had, at the request of the consignees, examined some samples of tobacco, believed to be that above alluded to, he found it Kentucky leaf tobacco of very low qual- ity, ill-flavored, and mostly heated, and quite unfit for the consumption of that country ; that the tobacco was not sweet- scented Kentucky leaf tobacco, but quite the reverse. This evidence was rejected. The plaintiff then proved, by Buck, that the usage in Philadelphia is, if an article is sold by sample with such a heading, an allowance is made if it does not correspond with the heading. He further stated that the custom of trade here is to sell by sample, which are drawn by the inspector ; and it seemed from the charges for boxes for samples, that the sale in this case was made by sample. The plaintiffs then offered in evidence under their count on an account stated to defendant, in which the costs and charges and net proceeds of the tobacco, resulted in a loss of $1,690, accompanied with a letter from them to the defendant in which they said, " Having received an account of the sales of 50 hhds. of tobacco, purchased from you last September, under a guaranty that you would reimburse us for any loss which we might sustain by that shipment, we now annex a statement of our claim for loss, amounting to $1,690, to the settlement of which we ask your early attention." And another letter stating that they had written to him on the subject of this tobabco, " purchased under a guaranty that the quality of the article was superior, and that you would re- imburse us for any loss we might sustain by the shipment. We then exhibited our claim, amounting to $1,690, arising from the very inferior quality of the tobacco, it being, according to our letters from Liverpool, the meanest lot which had been seen there for many years," and requested payment and reply. These letters were sent, the one about a year, the other about three months before suit was brought, and, as it appeared, had not been replied to. This evidence was rejected and the plaintiffs nonsuited. G. W. Biddle, for the plaintiffs in error. — The case generally cited first on these questions is *Ghandelor v. Lopus ; but that was a mere question of pleading ; the whole case proceeded on the ground that the plaintiff had not declared on a warranty. It has been supposed to decide there can be no warranty with- out express words. The rule of the civil law, that a sound price implies a sound article, is not contended for ; nor is it sought to interfere with the rule, that where nothing is said, it suffices if the article exists in specie. But if the vendor un- dertakes to say anything, and induces the vendee to rely on the 11 154 Warranty on the Sale of Persmud Property. Fraley v. Bispham. assertion, he is bound by it, for the vendee may presume it is so, and is not bound to examine. It will be observed the question is not whether this evidence is conclusive that a warranty existed, but whether the jury might infer from it that a warranty was intended as to hind or quality. Now it is set- tled that no form of words is essential. " I warrant " is usual, but " I represent," " I affirm," will answer equally well, and it can scarcely be doubted that, if *Chandelor v. Lopus was to be decided now, the court would hold " I affirm the stone to be a bezoar stone," to amount to an allegation of warranty that it was so. Great brevity is used in all mercantile contracts, and the heading of a bill of parcels, which is evidence of the parol contract, may read : "I affirm this tobacco to be superior, sweet- scented Kentucky leaf tobacco." This further appears from the letters of the plaintiffs ; they there call it a guaranty ; the evidence is distinct that it was neither superior sweet-scented, nor sweet-scented at all ; the witness says it was quite the con- trary. So that the case is narrowed to this inquiry, is there any evidence from which a jury might infer a warranty as to kind or quality ? To say that it is tobacco, is nothing. The various kinds of tobacco rank as different articles of merchandise. The cases bear out this view. In 4 Gamp. 144 a description of goods in a written contract was held to imply a warranty they are warranted under that denomination, and the exhibition of samples does not qualify the rule. To the same effect is *6 Taunt. 446, where the warranty arose from a description in the heading of a sale note. *5 Bing. 533 decides that no particular form of words is essential, but that a seller, knowing the quali- ties of the animal, undertakes they are those expressly required by the purchaser. In 2 Bing. N. C. 668 a contract to sell mess pork of S. & Co. was held to mean pork manufactured by S. & Go. ; and there also the warranty arose from a description in the sold note. In 4 Ad. & El. 473 the heading of a bill of par- cels of pictures, containing the name of the artist, was held to be evidence of a warranty they were painted by such artist. In 2 Pick. 214 the sale note " of prime quality winter oil " was held a warranty that it was winter and not summer strained oil. The difference between these is no greater than in the tobacco as sold, and as it existed in this case. In *7 S. & R. 480, and *Ghapman v. Murch, 19 John. 290, the same error was com- mitted by the judge at nisiprius, in withdrawing the evidence from the jury. In the former, by telling them that a represen- tation was an express warranty ; in the latter, by telling them it was not evidence from which they might infer a warranty. In both cases it was for the jury to draw an inference of warranty, as was held in 2 Par. & Pay. 211. The error in putting Warranty on (he Sale of Personal Property, 165 Fraley v, Bispham. a legal construction upon oral words is pointed out in *9 Watts 59. In 3 W. G. C. 165 there was no representation at the time of the sale, and in *3 R. 168 the article, though adul- terated, was known in the market in that condition, under the name by which it was sold, and was, in fact, never sold in a pure state. *3 R. 23 is the leading case, and the principle is that affirmation of a material fact binds the vendor to its truth, and it is immaterial that the sale is by sample : Pet. G. G. 225. The letters and the accounts corroborated the evidence of warranty from the bill of parcels, and were also evidence of an account stated, the defendant not replying to the allegations : 3 G. & Pay. 103 ; 2 Greenl. Ev. §126 ; 1 ib. §197 ; Bald. 536 ; 3 W. & S. 109 ; 2 Barr 323. L. A. Scott and Scott, contra. — ^The evidence shows the sale was by sample, and there is no count alleging a difference be- tween the samples and the article sold. It is, moreover, proved that the tobacco was, in kind, the article said to be sold. It was Kentucky leaf tobacco certainly. Whether there was a warranty of the quality is the only question. This seems to be settled in this state. 3 W. G. G. R. 165 was an advertisement of white glass — held no warranty. *7 S. & R. 480 decides the very point — ^the seller is not bound to answer for the goodness of wares unless there be an express warranty or fraudulent representation ; and it is there said, " from the time of *Ghan- delor V. Lopus the doctrine has been that a bare affirmation of quality will not give an action, unless the vendor knew it not to be as represented." *3 R. 23 was to the same effect, the case being a sale of dirt as blue paint, and it was put on the fact that there was not a correspondence in kind. *3 R. 168 was a case of an adulterated article ; and yet, because it was known in the market under the name by which it was sold, there was no warranty. In *9 W. 55 it was held no implied warranty arises from a false affirmation ; the only remedy is an action for the deceit ; nor is the affirmation evidence of the warranty. These cases establish the rule of this state, and must govern, though other laws diff'er. 4 Gtmip. 144 was, however, a case turning on the difference in kind in the market. *6 Taunt. 446 turned chiefly on the admissibility of the usage, nor can it be discovered how the plaintiff counted. . In *5 Ring. 533 there was parol evidence of the warranty. 3 Bing. N. C. 668 and A. & E. 473 were on the differences in kind. So was 2 Pick. 214. The letters, &c., were offered under the count on an account stated. But they afforded no evidence of that. An account stated must mean a statement of dealings admitted to have occurred, resulting in an admitted balance not a claim 156 Warranty on the Sale of Personal Property. Fraley v. Bispham. on a promise not proved ; otherwise every letter demand- ing payment, on vi^hatever ground, will become an account stated if not replied to. In 1 T. R. 40 an account stated is said to be an agreement by both parties that all the articles are true, and the consent of both parties must clearly appear. It is not every neglect to answer which turns an account delivered into an account stated : 4 W. & S. 14 ; 1 Sim. & St. 333. Nor are the letters, though unanswered, any evidence of the facts therein stated : 1 Mood. & Rob. 2 ; 9 Car. & Pay. 221 ; 3 ih. 103 ; 3 M. & M. 607 ; 5 ib. 666 ; 1 Gr. M. & Ros. 29. April 27. Coulter, J. — This cause was closely argued, and with much ability. But after all the court are of opinion that no warranty was established which was competent to go to the jury, under either of the counts of the narr. The cause seems to be conclusively governed by the case of *Borrekins v. Bevan, 3 R. 23, in which the doctrine of *Chandelor v. Lopus, Cro. Jac. 4, is dismissed with disapprobation, and the rule established that in all sales of goods, by bills of parcels, samples, &c., there is an implied warranty that the article delivered shall corre- spond in specie with the commodity sold, unless there are facts and circumstances to show that the purchaser took upon him- self the risk of the kind as well as the quality of the commodity purchased. If that case means anything it means this, that where the thing is sold by sample, and without express warranty, the purchaser takes it at his own risk, unless it should prove to be an article different in kind ; all gradations in quality are at the hazard of the buyer. But if an article was sold as a diamond, and turned out to be glass, or when the thing was sold as tea, and was, in fact, chaff, the vendor would be responsible ; thus rendering the seller liable for a difference in kind, but not for a difference in quality. Whether the rule in *Chandelor and Lopus, to-wit : express warranty or fraud, in all cases both as to kind and quality, was better than the one estabhshed in *Borrekins ■;;. Bevan, is a matter of little import now. It is useless to wander darkling among the dust and mist of old cases to determine which was best, or most authoritatively recognized. *Borrekins v. Bevan has been repeatedly ac- knowledged by this court, and is now the law ; that is suffi- cient. Let us test this case by it. The sale by the bill of parcels, with which perhaps the sample corresponded, was of sweet- scented Kentucky leaf tobacco. It is not pretended that the article delivered was not tobacco, nor that it was anything else than Kentucky leaf tobacco ; but it is alleged and proved that it was of inferior quality, and perhaps not very sweet-scented. Warrardy on the Bale of Personal Property, 157 Fraly v. Bispham. The witnesses examined, at Liverpool, say that it was of a low, mean quality. The gist of the whole case, on the part of the plaintiffs, is that the tobacco delivered was not of a quality equal to the sample, but of inferior flavor, taste and quality. It was in specie Kentucky leaf tobacco, in kind the same as the article sold. Indeed, the gravamen of the plaintiff's narr, and the allegation in their own letter is, that the article delivered was inferior in quality to that sold by sample and bill of parcels. And in such cases, by the law of this state, as well established, there being neither express warranty nor imputed fraud, the risk falls on the buyer. The court were right in rejecting the paper containing the claim of the plaintiffs, although it had been sent to defendant before suit brought. It was not competent evidence on the count of insimul computassent, or account stated, and it was not offeredon any of the other counts. I regard the paper as nothing more than a specification of damages, sustained upon an alleged breach of contract on the part of defendant, of which the defendant was bound to take no notice by the usages of trade or mercantile law. He resisted the whole claim. Insimul computassent is a writ that lies between two merchants or other persons, upon an account stated between them. In such case the law implies that the one against whom the bal- ance appears has engaged to pay it to the other, although there be no actual promise. But here is no account between the parties — ^no insimul computassent ; nothing but a contract between the parties in regard to a particular thing or transaction ; and which contract, the plaintiffs say, the defendant has broken, and send him a written specification of losses or damages. The defendant denies that he has broken this contract. It is not a case of account ; no case was produced, and I apprehend none can be ; that the insimul computassent extended to damages for breach of contract alleged, where there had been no actual set- tlement or adjustment between the parties. We perceive no error in the record. Judgment affirmed. 158 Warranty on the Sale of Personal Property. PHILADELPHIA, 18 53. 8 HARRIS 448. Wetherill v. Neilson. The purchaser takes the risk of the quality of an article purchased unless it be ■warranted, or he \>^ fraudulently misled as to it. Mere representations as to the quality of the article sold do not constitute a warranty. In a suit against the purchaser of soda ash it is not admissable for the purchaser to prove the existence of a custom of trade, at Philadelphia, by which soda ash is sold upon the representation of the seller, as to the percentage of alkali contained in it, and without sample or warranty that the soda ash in ques- tion was sold and received on such representation and in pursuance of such custom, and that it was not a merchantable article. Error to the District Court. Philadelphia. This was an action of assumpsit, brought by Thomas Neilson against George D. Wetherill & Co., on a promissory note, of which the following is a copy : $933.18. Philadelphia, July 20, 1850. Six months after date we promise to pay to the order of Thomas Neilson, $933.18, without defalcation, value received, payable at the Bank of Northern Liberties. Geo. D. Wetherill & Co. The plea was payment with leave, &c., and notice of special matter was given. On the trial, after the note was given in evidence on the part of the plaintiff, the defendant's counsel gave in evidence a bill of goods, as follows : Philadelphia, 20th July, 1850. Messrs. Geo. D. Wetherill & Co., Bought of Thomas Neilson, 35 casks of soda ash, 48 per ct., weighing as follows : 304 to 338 (inclusive) each cask hav- ing its weight set down, and weighing in the aggregate, net 33,934 ibs.@2f c. f ft., $933.18. At six months. It was admitted that the note, on which suit was brought, was given in payment of above bill of goods made out by Thomas Neilson. The counsel of said defendants then pro- duced William Trimble, a witness, who testified as follows. I am a merchandise broker, and made a sale for Thomas Neilson (the plaintiff) to the defendants of 35 casks of soda ash, Warranty on the Sale of Personal Property. 159 Wetherill v. Neilson. in July, 1850. Neilson gave me a specification of 35 casks of soda ash afloat, Johnson's brand, of 48 degrees strength, English test. After several interviews with Geo. D. Wetherill & Co. they offered me 2f cents per ft., at 6 months, which Neilson accepted. Of course I notified both parties of the sale. I can't recollect all that occurred exactly in all my interviews with defendants. I offered the soda ash to defendants, stating ex- pressly it was 48 degrees, English test, and that it was Johnson's brand. The proportion of soda and degree of strength was the subject of conversation at the time of the sale, and at each inter- view. The value of the article in the market is seriously affected by the proportion of pare soda, or alkali. I can't recollect all the conversation that took place ; don't recollect if they asked the percentage of soda or alkali ; I told them myself; I thought it necessary. It is generally sold on the representation of its strength ; that is the customary mode of selling the article in this market. Don't recollect how long a time between the first and last interview. I was authorized by Neilson to represent to pur- chasers that the soda ash was 48 per cent. There was one or two days interval between the first and last conversation with defendants. The soda ash had arrived in port, but was afloat in the Clara Wheeler. There was no sample. I had none. I made the statement of 48 per cent, to induce the sale of the article. Gross-examined. — It is customary to sell in the market on the representation of per centage. The English test was the test at the time of its shipment. It may lose very slightly on the voyage in its strength. It is frequently accompanied by certifi- cate of test, and sometimes represented by the invoice. Don't recollect that Neilson said anything about invoice or certificate, but merely told me it was 48 per cent. English test. The price I obtained from the defendants was the minimum market price. The article since then has fallen in price. Don't know when the goods were delivered. Re-examined. — I mean by English test that the goods were tested in England before they came here. 48 per cent, test is that of a good article. There is an article of higher quality. There are differences in different lots. I am not aware of any different mode of testing in England from that in America. The price of the article and the value depreciate more rapidly than the decrease of alkali. More in proportion. I have sold a great deal of soda ash. There has been no material complaint as to this brand of Johnson. He further testified that there was no test marked on the casks. The defendants' counsel then offered to prove by witnesses 160 Warranty on the Sale of Personal Property. Wetherill v. Neilson. skilled in the manufacture of glass and soap, that soda ash, which is chiefly used in said manufactures, must be as an article of use and commerce of at least 48 per cent, strength. That the said mtness had bought of this soda ash in question — that it was much below 48 per cent, strength, the per centum agreed upon in the contract of sale. That the soda ash in question was not merchantable, but valueless and useless, not being, in fact, the article it was sold for. The plaintiff's counsel objected to such testimony. It was overruled by the court, and exception taken. This was the subject of the first assignment of error. The defendants' counsel then offered to prove that the said soda ash delivered to the defendants, being the consideration of the note sued upon, was not 48 per cent. English test, but was so far below it as to be practically useless for the purpose for which it is in common use in the market, and that defend- ants tendered a return of the article to the plaintiff as soon as it was discovered that it did not correspond with the article purchased. This testimony was overruled and exception taken. Second assignment. The defendants' counsel then offered the above to be followed by proof that as soon as the casks were delivered it was observed that the marks on them had been erased and altered. This was also overruled and exception taken. Third assignment. The defendants' counsel then offered to prove that there is a custom of trade, for the port of Philadelphia, by which soda ash is sold upon the representation of the seller as to the per- centage of alkali contained in it, and without sample or warranty — that the soda ash, for the price of which this suit is brought, was sold, delivered, and received on such representation and in pursuance of such custom, and that it was not a merchantable or marketable article, and was so far below the represented percentage as to be valueless. This was overruled by the court and an exception taken. Fourth assignment. The defendants' counsel then re-offered the above, to be fol- lowed by proof, that the casks of soda ash, when delivered to the defendants, were scratched and marked, so as to show that a former brand had been removed, and another substituted. This was also overruled and an exception taken. Fifth assignment. The judge instructed the jury that an express Avarranty, or fraudulent representation, must be shown by the defendants, and that, in this case, the plaintiff must recover upon the note Warrainiy . Staines v. Shore. 1. In an action on a note given for the price of a horse sold at auction, where fraud is alleged as to the condition of the animal at the time of sale, the presump- tion is very slight that the horse was unsound when fully grown, and apparently vigorous, because it had been diseased when a colt ; the jury are to judge of the soundness or unsoundness from the evidence exhibited in the case. 2. There can be no deceit in the sale of a chattel without a scienter. 3. The employment of a puffer by the seller to bid for him at an auction vitiates the sale, and it is not material whether the property purchased brought no more than its general value. A purchaser has a right to purchase at an under value if he can. 4. When the employment of a puffer has been discovered by the purchaser after the sale, it is his duty to offer to return the property purchased, when the fraud is discovered ; but if not discovered till too late to do so, the purchaser's defense is good without it. Error to the Common Pleas of Huntingdon County. This was an appeal from the judgment of a justice of the peace in an action of debt, by Shore v. Staines & Kough on a note for $69.50, dated 18th March, 1847, given by Staines & Kough to Shore for a horse sold by Shore and purchased by Staines at public auction. The horse died about thirty days after the sale. The purchaser did not offer to return him ; but it was alleged that he believed, till shortly before the death of the horse, that he could cure him. It was further alleged that the horse was unsound when sold ; and also that the plaintiff employed a person to bid him up at the sale. On the part of the defendant, John Henderson was examined and testified that the animal was cried out as a young, sound horse in every respect. That he examined him and found that he was scabby. That it was quite evident from the appear- ance of the skin ; he considered the horse unsound at the time. He knew this colt when a man named Martin owned him. He was in a bad condition. The horse was not nuch moved about at the sale. He appeared stiff. Jeremiah Brown testified that at the time the horse was knocked down to Staines, Aaron Shore was present, within hearing distance. One of the Shores said the man was bit. I asked the reason. The boy said the horse was unsound. Staines was present, but perhaps a little further off. Warranty on the Sale of Personal Property. 225 Staines v. Shore. Burket, the crier, was examined, and he said he thought he cried him as a fine, sound young horse as far as he knew ; and he looked so. That he did not know whether Shore, the plain- tiff, was present. On the part of the plaintiff, John B. Logan testified, inter alia : I think on the morning of the vendue I offered Aaron Shore $55 ; he refused to take it. I bid him at the sale to about $63 or $64 ; may be a little more. He was sold at out- cry in a public yard. He had nothing of farcy while I knew him. The appearance of the horse on that day was good. Jacob Gehrett was the person who it was said was employed as puffer. He was examined at the trial on the part of the plaintiff, and testified, inter alia, that Shore asked him to bid in the colt for him. That he saw the horse — he looked well. That he bid on the horse. Thought he started him at $40 ; that he soon went over that and he let him go. He further said that he was to bid in the horse for Shore, the plaintiff, for $55. On the trial defendant's counsel submitted two points : 1st. — " If the jury believe that the colt, for the price of which the note in controversy in this action was given, was unsound and unhealthy at the time of the sale of the colt by Martin to Shore, the law presumes that the unsoundness continued, un- less it had been proven that the colt recovered its health before it was sold to defendant." Taylor, J., charged that such presumption would be but slight in the present case, as the animal had grown to be a horse. Much of the evidence here relates to the growth, ap- pearance and apparent health of the animal during the period between the purchase by Shore and the purchase by Staines. You will take into consideration the whole evidence — that which relates to the health of the colt before, at the time, and after Martin parted with it — what has been testified to in rela- tion to the nature of its disease &c. ; and thus judge whether the horse was sound when sold to Staines. 2d. — If the jury believe the evidence of Jacob Gehrett, one of the plaintiff's witnesses, and that Jacob Gehrett was employed by Aaron Shore, the owner of the horse sold, as a puffer at the public sale of the colt, to bid for Aaron Shore, and that he did so bid at the sale, the sale was fraudulent and void ; and as the note for which this suit is brought was given for the horse purchased at such auction, in which Jacob Gehrett so acted as puffer for Aaron Shore, the owner of the horse sold, the plaintiff cannot recover in this action. We refuse to answer this point as requested. The evidence, 226 Warrcmty on the Sale of Personal Property. Haines v. Shore, as we recollect it, is that Shore had requested Gehrett to bid for him and not let the horse go for less than $60 ; that he bid to that point and then ceased bidding ; and that afterwards he was bid by Staines, and others, to $69.50, and at that knocked down to Staines. Taking the facts, however, to be as assumed in this point, then it would follow, we agree, that the sale at the auction was fraudulent and void ; and Staines could not have been compelled to take the horse ; (he refusing to do so) that Shore could not have recovered the amount for which he was struck down upon the bid. But it would not still follow, if he after- wards did take the horse, with an after opportunity for inspection, and ratify the sale by giving his single bill vnth security for the price, and the horse was a sound horse, and worth the money, that the single bill would be vnthout consideration. If a sound horse at a fair price was the consideration of the single bill, then, as we have already remarked, there was, in point of fact, no want or failure of consideration ; and it is not disputed that the horse was worth the money if sound. Whether the defense set up should therefore avail the defendant, must depend upon your decision of the questions of fact already submitted. Verdict was rendered for plaintiff for $80.65. The charge was excepted to on the part of defendants. It was assigned for error : 1st. — That the court instructed the jury in substance that, al- though the horse was diseased at the time of the sale, and Shore asserted him to be sound, by which assertion Staines was induced to bid for him, it did not vitiate the sale unless Shore knew the horse to be diseased at the time he made the assertion. 2d. — To the answers to the points submitted on part of de- fendant, and particularly to the part of the answer to the second, which is in italics. Fisher, for plaintiff in error. — That it was not material whether Shore knew that the horse was unsound. If one asserts what he does not know, he is guilty of falsehood : Story's Equity 193 ; *9 Watts 55 ; McFarland v. Newman ; Olephant on the Law of Horses, Racing, &c., 84, and notes. (Bell, J.— There must be either a warranty or deceit.) That it was illegal to employ a puffer : Pennock's appeal, 1 Harris 446 ; Babington on Auctions, 48, 49, 52. Cornyn, for defendant. — The purchaser gave his note and took the horse. He kept him till he died, and he did not at the time allege unsoundness. A naked affirmation is not itself an express warranty, nor evidence of it : *McFarland v. Newman, 9 Watts 55. To con- stitute a warranty the words must not be dubious or equivocal, Warranty on the Sale of Personal Property. 227 Haines v. Shore. ibut it must appear that the affirmant intended to warrant, and did not express a mere matter of opinion or judgment : *7 Serg. and R. 482. The maxim caveat emptor is so strictly construed that it has given rise to another principle, simplex comraendatio non obligat ; a simple assertion by the vendor as to the value or quality of the goods does not amount to a warranty : 2 Kent 484 ; Ghitty on Contracts, 134-5. The sale of an unsound horse vdthout fraud or warranty, though known to be unsound by the seller, is no defense to an action for the purchase money : Pulhamus v. Pursell, 3 Pa. L. J. A fair price implies a warranty of title in the sale of a chattel, but not a warranty of quality : 2 Kent 482. In Bramly v. Alt, 3 Vesey 620, it was held that a sale was not fraudulent, because a puffer had been employed, if there were real bidders who bid after the puffer ceased: 12 Vesey 477, Smith V. Black. Fraud without damage, or damage without fraud, gives no cause of action ; but where they concur and meet together, action Ueth : Groke J. 3 Bl. Rep. 95. Blair on same side. Fisher, in reply. — ^That the legality of the employment of a puffer does not depend on the price the property brought ; that the value of the horse was not a proper element in the case ; that it matters not whether the defendant got the worth of his money or not. The opinion of the court was delivered. May 26, by Gibson, G. J. — The direction on the first point was right ; there is no deceit without a scienter. On the second it was inaccurate. We held in Pennock's appeal, 2 Harris 449, that the employment of even a single puffer vitiates the sale. In the present case the ruling judge instructed the jury that if the horse was actually worth the sum to be paid for him, the buyer got the value of his money and could not have been defrauded. The fallacy in the principle is in assuming that there is a standard of value independent of the wishes and wants of the bidders, and that every man is willing to buy by it. A man proposes to sell his horse for a fair price to another, who declines, because he has no use for him, and does not choose to take the risk of getting less for him than he gave, with a certainty of losing his trouble and the expense of keeping in the meantime, but the case would be different did the owner make it worth his while to purchase with a view to profit on a resale. What is the worth of anything ? The apothegm of Hudibras answers truly, "Just as much money as 'twill bring." A man is defrauded whenever he is incited by artful means to 228 Warranty on the Sale of Personal Property. Staines v. Shore. bid more than he otherwise would. He has a right to buy at an undervalue, where the necessities of the owner compel him to sell ; and whenever the price is ever so little enhanced by a secret contrivance, he is cheated. A sale by auction presup- poses a sacrfice, or at least a willingness to sell for what can be had ; but should the vendor stick for the last penny, it would be idle to set the property up, because his price could be as readily obtained at private sale. Should he, however, see fit to make the experiment, his object could be attained by directing the auctioneer not to let the property go for less than his estimate of its market value ; or if he propose to sell without reservation asto price, lethim openly reserve aright to bid. For no fair purpose is the employment of a puffer necessary ; and it must vitiate every sale in which recourse is had to it. Had the horse lived in this case, it would have been necessary to return or tender him to the vendor as soon as the fraud was discovered ; but as there is no evidence that it was discovered till it was too late for that, the vendee's defense was perfect without it. Judgment reversed, and venire denova awarded. SUPREME COURT OF PENNSYLVANIA, 1852. 7 HARRIS 375. Carson & McKnight v. Baillie. 1 . A sale was made of a number of barrels of lard grease, a part of which was in- spected by the purchaser before his purchase, and declining to examine more, he purchased. He received a bill of sale of the article, in which it was invoiced as " lard grease." There was no evidence of false representations, or any attempt at deceit, or that the defendant knew of any defect in the quality of the article, a portion of which, as it turned out, was of an inferior quality. It was AeM that it was error in the court to instruct the jury that the proper inquiry was whether the article delivered was lard grease, and if not, it did not correspond in specie with the article described in the bill of sale, and that the plaintiff was entitled to recover. 2. On a sale of goods by sample, or by a description in a bill of parcels, there is an implied warranty that the article corresponds in kind with the sample in the one case, and with the bill of parcels in the other. Where a sale is by sample, or Warranty on the Sale of Personal Property. 229 Carson v. Baillie. an inspection of the article, a warranty is not implied from the bill of parcels received ; the sample, and not the name in the bill of sale, is the standard by which the article is to be tested. Where the goods are sold on inspection, there is no standard but identity, and no warranty implied other than that the identical goods sold, and no others, shall be delivered. Their name in the bill of parcels is immaterial, as faith was placed not in name, but in the quality and kind discovered on inspection. If there be fraudulent concealment or misrepresentation, the case is different. Error to the District Court of Allegheny County. This was an action on the case by John A. Baillie v. Carson & McKnight for alleged deceit or breach of warranty in the sale of forty-six barrels of lard grease. The facts were stated as follows : The plaintiff below, who was a lard oil manufacturer, called at the counting house of the defendants below, grocers and commission merchants, for the purpose of purchasing lard grease. The defendants sent their porter with the plaintiff to examine their stock. The porter showed samples of five or six barrels, out of two lots differently marked, and offered to show the whole ; but the plaintiff expressed himself satisfied with what he had seen, and purchased both lots, forty-six barrels in all. He sent a drayman to haul it, who delivered one dray load of three barrels at plaintiff's lard oil factory, where they remained two or three days, and were then returned by plain- tiff to the warehouse of defendants, who refused to take them back ; the plaintiff alleging that they were not according to sample ; the defendants averring that they were part of the lot of forty-six barrels which the plaintiff had examined and pur- chased. The plaintiff then had them hauled away, and after a lapse of five or six days commenced hauling away the balance of the lot, and continued to send for them from day to day for several weeks until the whole forty-six barrels were removed to his factory. Evidence was given on the part of the plaintiff below, tend- ing to prove that the forty-six barrels comprehended two dis- tinct lots, differing materially in appearance and quality, samples of which were exhibited on the trial and examined by witnesses, a number of whom, from inspection of the samples, testified that the inferior specimen was woi iMvd grease, but a compound having alkali or rosin in it. No evidence whatever was given of a warranty of the article sold, except the bill of sale furnished by the defendants below to the plaintiff, in which it was invoiced by the name of " lard grease." There was no proof of false representations, nor any attempt to show that the defendants below had any intention of 230 Warranty on the Sale of Personal Property, Carson v. Baillie. deceiving the plaintiff, or that they knew of any defect in the quality of the article. In the declaration it was alleged that the defendants falsely and fraudulently warranted by sample the article to be lard grease, of a quality suitable for making No. 1 lard oil, and alleging the article sold not to be lard grease of the best quality, but of a very inferior quality. On the trial a count was added, in which it was alleged that the defendants promised and agreed with the plaintiff to sell and deliver to him forty-six barrels of lard grease ; but the de- fendants did not deliver lard grease according to their agree- ment, but some other material unfit for the plaintiff 's use. On the part of the defendants below points were submitted which, with the answers of Forward, J., were as follows : — 1st. — That unless they believe from the evidence that there was in the sale of the lard grease either an express warranty or a fraudulent misrepresentation by the defendants, the plain- tiff can not recover. Answer. — If the article delivered corresponded in specie with the description in the bill of sale, the defendants are entitled to an affirmative answer to this point, otherwise not. 2d. — That the defendants are not answerable for the quality of the article sold if the plaintiff inspected and received it. Answer. — This point is answered in the affirmative ; but is it true that the so-called " lard grease " was inspected and re- ceived by plaintiff without objection ? 3d. — That if the defendants sold the article by sample, with- out express warranty, they are not answerable for quality, unless the jury believe that it proved to be different in kind from the article sold ; that all gradations in quality are at the hazard of the buyer. Answer. — In a sale by sample the vendor warrants the kind or species, and not the quality. This proposition is answered in the affirmative. 4th. — That unless the jury believe from the evidence that the defendants expressly warranted the grease lard sold to the plaintiff for making No. 1 lard oil, or falsely and fraudulently represented it suitable for that purpose, the fact that it proved unfit for such use does not make the defendants liable. Answer. — This point is answered affirmatively, provided the article sold was the same in kind as that mentioned in bill of sale. 5th. — That to sustain the present action, it is necessary for the plaintiff to satisfy the jury that the defendants made false reperesentations to the plaintiff, knowing them to be false. Answer. — This point is answered affirmatively, if the jury believe that the article delivered was the same in kind as the article sold ; if not the same in kind, proof of false representa- Warranty on the Sale of Personal Property. 231 Carson v, Baillie. tions, knowing them to be false, is not necessary. The proper inquiry for the jury is, 1st : Was the article sold "lard grease ?" if not, it does not correspond in specie with the article described in the bill of sale. 2nd : If the article delivered was not " lard grease," what damages have been sustained by the plaintiff. To these answers of the court, the defendant's counsel ex- cepted. It was assigned for error : 1st. — The court erred in answering the first, second, fourth and fifth points submitted by defendants' counsel. 2nd. — The court erred in charging the jury that the proper inquiry, was " 1st : Was the article sold laid grease ? If not, it does not correspond in specie with the article described in the bill of sale. 2nd : If the article delivered was not lard grease, what damages have been sustained by the plaintiff." Shinn, for plaintiff in error. — The narr filed was for a tort — ^the count added was in assumpsit, and introduced a new cause of action. The plea was not guilty ; and on that plea the trial proceeded and a general verdict was rendered. The gist of the plaintiff's complaint is, that the defendants deceived the plaintiff. Now there can be no deceit in the sale of a chattel without a scienter: 4 'Harris 200, *Staines v. Shore; 5 Barn. & Ad. 797; 27 E. C. L. 194 ; 2 Man & G. 475, 40 E. C. L. 470. The proof of falsehood without fraud is not sufficient. 8 Taunt. 637, 4 E. C. L. 234 ; 2 Harris 142, Bokee v. Walk er. That the purchaser inspected the article and bought it for lard grease, without reference to the bill of sale afterwards fur- nished, were circumstances not adverted to by the court. But if this action were an action on the contract, the doctrine of implied waranty was laid down too broadly by the court. With regard to wares sold, the vendor is not bound to answer for defects unless he expressly warranted them to be sound and good or there had been a fraudulent representation, an affirma- tion of a quality known to the vendor to be false : *7 Serg. & Rawle 482, Jackson v. Witherill ; *3. Rawle 168, Jennings v. Gratz ; *10 Barr 324, Fraley v. Bispham ; *9 Watts 55, Mc- Farland v. Newman. Jones and McCandless for defendant in error. — The added count is good as a count in assumpsit. A misjoinder is not a ground of error. This, however, was an action on a warranty. Considered with respect to the added count alone, the charge of the court was correct, for if the defendants professed to sell lard grease, and delivered what was not so, the plaintiff has sustained injury. A scienter is necessary in an action of deceit, but not in an action on a warranty. 232 Warranty on the Sale of Personal Property. Carson v. Baillie. The plaintiff below did not buy on inspection. He examined several barrels of grease which were good, and the article about which this suit was brought was not lard grease. The jury- were satisfied that the plaintiff never saw the article till after its delivery. But the cases cited on the part of the plaintiffs in error establish that only the quality of the thing sold, even after ex- amination by the buyer is at his risk, but not the specie : *10 Barr. 324, Fraley v. Bispham ; *3 Rawle 23. In this case there was an invoice in which the article was represented as lard grease, and the court properly instructed the jury that their proper inquiry was, whether the Eirticle delivered was lard grease or not. The opinion of the court was delivered October 11, by Lowrie, J. — It is not easy to describe this case in a few words, because of some uncommon features which it presents. We have an idea of its character when we learn that Baillie bought of Carson & McKnight forty-six barrels of lard grease,, and, being disappointed in his expectations, he sued Carson & McKnight for damages for the deceit practiced on him, and for not delivering the article bargained for. We are not called upon to criticise the very peculiar and anomalous declaration filed in the cause, as it will not require much attention to the rules of pleading to cure its imperfections before another trial. Certainly the principal declaration claims ex delicto, and the count added on the trial ex contractu, and this misjoinder would have been sufficient cause of reversal if the attention of the court below had been properly called to it by a specific objection or by a demurrer. The principal question is on the merits of the cause. There was evidence that the buyer examined the article called lard grease, before he bought it ; that an inspection of the whole lot was offered to him, and that after examining four or five- barrels in the usual way he declared himself satisfied, and received a bill of sale, in which the article was called lard grease. On the other hand, there was evidence that a large part of the article delivered was of a very inferior quality, some of it not being lard grease, but a mixture of grease and potash. On such evidence the learned judge charged the jury that their proper inquiry was, whether or not the article delivered was lard grease, and if not, then it did not correspond in specie with the article described in the bill of sale, and the plaintiff was entitled to recover. It vrill be observed that this instruction excludes all question of fraud, sets aside the evidence that the bargain was made on a view of the article, assumes that the Warrardy on the Sale of Personal, Property, 233 Carson v. Baillie. bill of sale is the only evidence of the contract, and that the name lard grease given therein amounts to a warranty of the character of the article. Our decisions (*Borrekins v. Bevan, 3 Rawle 28 ; *Jennings V. Gratz, 3 Rawle 168 ; *Fraley v. Bispham, 10 State Rep. 320,) declare that on a sale of goods by sample, or by a description in a bill of parcels, there is an implied warranty that the article corresponds in kind with the sample in the one case, and with the bill of parcels in the other. But notvrithstanding some un- guarded observations to be found in the books, it certainly was never intended to be decided, that in a case of sale by sample or an inspection of the article itself, a warranty may be implied from the bill of parcels. This would be equivalent to declaring the bill to be the only evidence of the contract, a proposition that was never thought of; and all the cases on implied war- ranty show that no such decision was ever intended: When a sale is by sample, then the sample, and not the name given in the bill of sale, is the standard by which the article is to be tested, because the purchase is made on the faith of the correspondence between the sample and the goods sold. Where goods are sold on inspection there is no standard but identity, and no warranty implied other than that the identical goods sold, and no others, shall be delivered. The name given to them in the bill is then immaterial, because faith was placed, not in the name, but in the quality and kind discovered on in- spection. If there be fraudulent concealment or misrepresenta- tion, the case is altered, and for this the party has his remedy on other principles. In this case there was no pretence of a sale by sample, and there was no evidence tending to show a want of correspondence between a sample and the goods de- hvered. We do not see how it was possible for the plaintiff to recover on the ground that he did not get the very article that he bought, for there was no evidence to sustain such a position. We do not see how he could recover on the ground of deceit, for we discover no evidence of fraudulent concealment or mis- representation. And he cannot recover on the footing of the name given in the bill of sale, while it appears evident that he bought on the faith of his own inspection, and not on faith in the name by which the article was called. It would be rather a bold presumption to suppose that a lard oil manufacturer would not know the article of lard grease, on inspection, better than a grocer or commission merchant, or that an article so various in its quality should be purchased by its name, when an inspection was had or might have been. Judgment reversed, and venire de novo awarded. 16 234 Warranty on the Sale of Personal Property. SUPREME COURT OF PENNSYLVANIA, 1853. 8 HARRIS 422 p. Kuntzman v. Weaver. 1. In an action on the warranty of the soundness of a horse, though the witnesses on part of the plaintiff cannot speak zvitA certainty as to the identity of the horse, their testimony is admissible and is for the consideration of the jury. 2. The testimony of witnesses who saw the horse about the time of the sale, and especially whilst it was in the possession of the vendee, is admissible on the part of the defendant, the seller, to show that the horse was not unsound when sold. Their opportunity and capacity to form correct opinions was for the con- sideration of the jury. 3. If the horse was warranted to be sound when sold, and was otherwise, the vendee is entitled to recover back the price paid, with interest from the time the horse was returned. Error to the Common Pleas of Lehigh County. This was an action brought before a justice of the peace by Weaver v. Kuntzman, on an alleged warranty of a gray horse which had been sold by Huntzman to Weaver for $90, and paid for by Weaver. On the part of the plaintiff it was alleged that the defendant warranted the horse to be sound, whereas he was spavined and unsound. The horse was left at the farm of the defendant, who sent him back, and after some months he was sold as a stray. On the trial the plaintiff proved by Diley that he saw the horse in Weaver's possession, and that he, the witness, rode him and thought he had the bone spavin. To this testimony the defendant's counsel excepted. Another witness testified that after the sale to Weaver, Kuntzman said he had warranted the horse " sohd and sound in his hands." Another stated that Kuntzman said he would warrant the horse solid and sound, ''so far as he knew." He said "the horse had no failings, so far as he knew.'''' " I don't know that he war- ranted him to be without failings." A. L Seagreaves was also examined, and said that Weaver brought a gray horse to him ; that he examined him, and he observed a spavin lump on his leg ; that the affection might have existed for several months without being discovered till the horse became lame. He said that when he saw him he was lame ; aTld that he would not have given $40 or $50 for him. He said he saw him since, and the enlargement and lameness had disappeared. He said he Warranty on the Sale of Personal Property. ' 235 Kuntzman v. Weaver, could not say it was the same horse which was bought from Kuntzman. The testimony was excepted to on the part of the defendant. Another witness testified that Kuntzman said that he would warrant the horse solid and sound, so Jar as he knew ; that he said the " horse had no failings, so far as he knew." Other testimony was given on the part of the plaintiff. On the part of the defendant, it was testified that the horse was not lame whilst Kuntzman had him ; that he had a lump on his hind leg, but that it was not spavin. The defendant's counsel offered to prove that the horse was worth $90 when Weaver bought him. It was alleged that this was overruled. The judge said he had no note of the offer and exception, but if agreed to by counsel, he would seal the bill. It was sealed. This was the third bill. It was alleged that it was further offered to prove that the horse was not spavined two months after the sale to Weaver, and while in his stable. The judge made the same statements as with respect to the third bill. Also offered to prove that the horse never went lame since he was returned by'Weaver. Overruled. Fifth bill. Also offered to prove that the horse was worth more after he was returned than Weaver paid for him. Overruled. Sixth biU. It was offered to prove that the horse was not lame when he was returned, and had no spavin. Overruled. Seventh and eighth bills. Also offered to prove the price paid for the horse at public sale when sold as a stray. Objected to and overruled and exception taken. Ninth bill. The judge charged that the plaintiff could not recover unless there was a warranty of the soundness of the horse. Also, that " if, as it seemed from the testimony to have been, it was a warranty of soundness, as far as Kuntzman knew, then the vendee must show that Kuntzman knew at the time of the sale that the horse was unsound." Also that if he had warranted the horse, knowing him to be unsound, the vendee, if he had paid for the animal, might return it and recover the price paid, with interest from the time of the return. He charged that the evidence of Seagreaves was of no conse- quence unless the horse was the one sold by the defendant. Verdict was rendered for the plaintiff for $95.70. Error was assigned to the admission of the evidence of Diley and Seagreaves, and in overruling the evidence as stated in the other bills of exception, and to the charge that supposing 236 Warranty on the Sale of Personal Property. Kuntzman v. Weaver. Kuntzman to have warranted ttie animal, the vendee, if he had paid for it, might return it and recover the price paid with interest from the time of the return. Reese and Porter, for plaintiff in error. Bridges and King, for defendant. The opinion of the court was delivered, April 4, by Woodward, J. — ^In rejecting the evidence in the defendant's 4th, 5th, 7th and 8th bills of exception, we think the court were clearly in error. This was an action on the warranty of the soundness of a horse. The breach of the warranty consisted in an alleged spavin. The plaintiff alleged a spavin, and the defendant de- nied it. The testimony of witnesses who saw the horse about the time of the sale, and especially whilst in Weaver's possess- ion, was competent to go to the jury on that question. The defendant offered to prove by these witnesses that the horse was not spavined and did not go lame. Their opportunities and capacities to form correct opinions, and the consequent value of their testimony, were for the jury to estimate ; but it is difficult to conceive how any evidence could be more perti- nent to the issue. We see no other errors in this record ; but for these the judgment is reversed, and a venire de novo is awarded. SUPREME COURT OF PENNSYLVANIA, 1861. 5 WRIGHT 319. Rockafellow v. Baker. Rescission in Equity of Contracts for False or Fraudulent Representations. 1. An executory contract in which there has been a total failure of considera- ^tion will not be enforced either at law or in equity; but when the contract is executed, a court of equity will not interpose to rescind it except for fraud or palpable mistake. 2. But where the buyer of an article, which he finds in market, has a full opportunity to examine it, and the means of information relative to facts and cir- Warranty cm the Sale of Personal Property. 237 Rockafellow v. Baker, cumstances affecting the value of the commodity are equally accessible to buyer and seller, there being no warranty and no concealment by the seller of facts which he was bound to communicate, a mere false assertion of value is not a fraud or mistake in the legal sense of those terms. 3. B. having invented and obtained a patent for an "improved bedstead fasten- ing," made an assignment of it to R for two States, in consideration of- which R. conveyed to him two town lots ; failing to sell the patent, R. tendered a recon- veyance of the patent and demanded his lots, and upon B.'s refusal to accept or reconvey, filed a bill in equity for the cancellation of his deed for the lots and proved B.'s declarations as to the value of his invention as made to others, but not as made to him ; also that B. did not use it on beds made by himself in his busi- ness as cabinet maker ; also alleging that he, R., had been deceived by false rep- resentations contained in the specifications and patent. The court below dismissed the bill. JleM, that as B.'s commendations of the invention were not used to deceive the purchaser, and as they were notsuch, whether expressed or implied from the patent and specifications, as would entrap a reasonably prudent man into the purchase of a worthless article, there were no grounds for the interference of a court of equity, and that there was no error in the decree of the court below. Certiorari to the Common Pleas of Crawford County. This was an appeal by John Rockafellow from the decree of the court below, dismissing a bill in equity which had been filed by him gainst George W. Baker, praying for an injunction io restrain the respondent from selling, assigning or transferring two lots of ground in the borough of Cochranton, which had been conveyed to him by complainant, in consideration of the transfer of a patent right for an " improved bedstead fastening," for the States of New York and Michigan ; which complainant averred was not an improvement, as had been falsely and fraudulently represented with intention to cheat the complain- ant. An examiner was appointed, by whom the testimony was reported, and the case heard in court below upon the bill, answer, replication, testimony, and report of the examiner. The court (Brown, P. J.,) on argument, refused the relief prayed for, and directed the bill to be dismissed at the costs of the complainant. Whereupon this appeal was taken. The material facts of the case are fully stated in the opinion of this court. The case was argued in this court at great length by S. New- ton Pettis, solicitor for appellant, and by G. Church, for the appellee. The opinion of the court was delivered, January 27th, 1862, by Woodward, J. — Balier, a cabinet maker, having invented and obtained a patent for an " improved bedstead fastening," sold 238 Warranty on the Sale of Personal Property. Rockafellow v. Baker. to Rockafellow, the plaintiff, an assignment of the patent for the States of New York and Michigan ; in consideration whereof, Rockafellow conveyed by deed to said Baker, in fee, two lots in the borough of Gochranton, Crawford county. After making unsuccessful efforts to dispose of his patent within the territory of the two States named, Rockafellow tendered a reconveyance of it to Baker, and demanded back his lots. Baker refused to accept return of the patent right, or to reconvey the lots, and thereupon Rockafellow filed this bill in equity, praying that his deed to Baker may be cancelled and the lots restored to him. The grounds on which the bill is founded are the fraudulent representations of Baker ; but the testimony failed to show that he made any false representations to Rockafellow which induced the purchase. He declared to the hands in his shop and to others that he believed the bedstead fastening " a good thing " — " a first-rate thing, as he believed," and a " valuable improvement ;" but there was no evidence that he ever ex- pressed such opinions to Rockafellow. It is insisted, however, that the plaintiff was deceived by the false representations con- tained in the specification and patent. In the first of these documents Baker claimed to have invented a new and " im- proved bedstead fastening," and in the patent it is recited that he had invented " a new and useful improved bedstead fasten- ing." The plaintiff alleged that it was neither a new nor use- eful improvement, and it was shown that Baker did not use it himself in building bedsteads, and that it was not a useful im- provement. No doubt the thing was worthless. No doubt the plain- tiff parted with his property most foolishly. If the suit were upon an executory contract, we would not enforce it. The total failure of consideration would be a sufficient reason, and such ruling would be according to the doctrine of *Bellas v. Hays, 6 Serg. & R. 427 ; Geiger v. Cook, 3 W. & S. 266, and numerous other cases cited in the argument. But the contract is not executory. It has been fully executed by the parties. They ask no aid of equity to enforce it. Our interposition is invoked, not to carry out and accomplish what the parties have begun, but to undo what the parties have accomplished. How narrow the grounds are upon which a court of equity will interpose for such purpose, and how cautious and reluc- tant its steps will be in that direction, were fully shovra in Graham v. Pancoast, 6 Casey 97 ; and Nace v. Boyer, ib. 109. Nothing but fraud or palpable mistake is ground for rescind- ing an executed contract. But there is neither fraud nor mis- take in the legal sense of these terms, when a buyer of an article which he finds in market has a full opportunity to ex- Warranty on the Sale of Personal Property. 239 Rockafellow v. Baker. amine it, and when the means of information relative to facts and circumstances affecting the value of the commodity are equally accessible to both parties. There is no confidence between buyer and seller unless a warranty be demanded and given. They deal at arms' length. They use not each other's eyes, but each his own. The seller is allowed to express freely his opinions of the value of his wares — the buyer is at equal liberty to answer that it is naught. If there be an intentional concealment or suppression by either party of material facts which he is bound to communicate to the other, there is fraud ; but neither party is bound to com- municate that which is equally accessible to both. The state of the markets, the present and prospective value of a particu- lar commodity, are among the things which are alike open to both buyer and seller, and neither is bound to instruct the other: *Myer v. Drake, 10 Watts 110. A mere false assertion of value, when no warranty is intended, is no ground of relief to a purchaser, because the assertion is matter of opinion which does not necessarily imply knowledge, and in which men may differ. Every person reposes at his peril in the opinion of others, when he has equal opportunities to form and exercise his own judgment. Simplex commendatio non obligat : 2 Kent's Com. 633. Baker's commendations of his invention, whether expressed to his neighbors or implied from the terms of his application and patent, were not such as to entrap a reasonably prudent man into the purchase of a worthless article, nor were they employed with intent to deceive the plaintiff. He bought with his eyes wide open, and upon his own judgment, and he paid voluntarily for what he bought. It is no part of the duty of a court of equity to relieve a purchaser from a foolish bargain after it has been fairly consummated. The decree is affirmed. 240 Warranty on the Sale of Personal Property. SUPREME COURT OF PENNSYLVANIA, LANCASTER, SATURDAY, MAY 27, 1815. IN ERROR. I S. & R. 477. Steigleman v. Jeffries. In an action for the price of articles sold, the defendant may give in evidence, by vfay of defalcation, a v^arranty of the articles and breach thereof, without re- turning the articles or giving notice to the plaintiff to take them away. When the cause of action which the defendant wishes to set off, arises from the same transaction as that on which the plaintiff founds his action, it seems he may have them both decided by the same jury. Error to the Common Pleas of Dauphin County. This was an action on a promissory note given by Steigle- man, the defendant below, to Jeffries, the plaintiff, for the price of a quantity of burr stones sold by the plaintiff to the defendant. The defendant pleaded non assumpsit, with leave to give the special matter in evidence. On the trial he gave evidence tending to prove a warranty by the plaintiff that the stones were of good quality, and that the warranty had been broken. The President of the Court of Common Pleas gave in charge to the jury, that, although there was a warranty, yet the defendant could not avail nimself of it in this action unless he had returned the stones or given notice to the plaintiff to take them away. To this charge the defendant excepted, and whether it was right was the single point to be decided. Fisher and Duncan, for the plaintiff in error, contended that the charge of the court was erroneous. It is fully settled that a party may maintain an action on a warranty of this kind, vnthout a return of the property, unless there is an agreement to return it in a certain time: 2 Comyns on Cont. 263, 264, 265, 277, 279, 282. Some articles are too ponderous to be returned ; in others, such as burr stones, defects cannot be known till they are used. If, then, an action hes in such case, the purchaser may avail himself of it by way of defalcation, or as an equitable defense when he is sued for the price. Wherever a cause of action arises to the defendant, out of the same contract on which the plaintiff sues, it is a case of defalcation. The action here arising to the defendant is ex contractu, not ex delicto, viz. : an action on the warranty. On a plea of payment, with leave, &c., in Pennsylvania the defendant may give in evidence any- thing for which he might have obtained relief in equity. They cited 1 Ves. 376 ; 2 P. Wms. 217 ; Murray v. Williamson, 3 Warranty on the Sale of Personal Property. 241 Steigleman v. Jeffries. Binn. 136 ; 2Saund. 101, note T ; 1 Binn. 588, note ; ISaund. 318. Elder and Hopkins, contra. — Damages arising from a war- ranty are not the subject of defalcation, because they are uncertain ; they are in nature of a tort. It has been decided that unliquidated damt^es in covenant sounding in tort cannot be defalked in an action of debt on a bond : Kachlin v. Mulhal- lon, 2 Dallas 237. The vendor interrupted the vendee in the enjoyment of the land sold. The latter was not allowed to give this in evidence in an action for the purchase money : Sweitzer v. Garber, 1 Sm. Laws 52. They also cited Dunlap v. Spear, 3 Binn. 169 ; Hazard v. Vanamridge, 4 Binn. 289 ; 4 Esp. Rep. 95 ; 7 Johns. 326 ; 2 Bl. Com. 455, note. Tilghman, G. J. — By the law as held in England, it seems to be well settled that the purchaser who has a warranty which is broken, may either avoid the contract by returning the arti- cle purchased, or suffer it to exist and seek redress by action on the warranty. But if he keeps the goods and is sued for the price agreed on, he cannot defend himself by force of the warranty. Neither can he make use of the warranty by way of set off, because a demand of that kind is not within the English statutes of set off. Our defalcation act is more exten- sive than the English, and permits the defendant on plea of payment to give in evidence any bond, bill, receipt, account, or bargain, by virtue of which he has a claim against the plaintiff. It has been held (1 Sm. L. 51, [notes] 2 Dall. 237, Kachlin v. Mulhallon), that the right of set off under this act does not em- brace a claim of unhquidated damages for any matter in the nature of a tort, because in such cases there is no standard by which the damages can be estimated : 1 Sm. L. 52, [notes] Sweitzer v. Garber. But in the present case the objection is not so strong ; the amount of damages, to be sure, ctmnot be re- duced to a certainty ; but the price agreed to be paid for the article purchased, is some rule to assist in making the estimate ; it is a boundary beyond which the damages cannot be reason- ably suffered to pass. Where the cause of action which the defendant wishes to set off, arises from the same transaction on which the plaintiff founds his action, there is great conveni- ence in having both decided by the same jury. It saves ex- pense, avoids multiplicity of suits, and can do no injury to the plaintiff; because, having received notice by the defendant's plea, he may defend himself with as much advantage in that form as if he answered to an action brought on the warranty. Considering, then, that the case falls within the words of our defalcation act, which has been extended by a very liberal con- struction in practice, I am of opinion that the defendant might 242 Warranty on the Sale of Personal Property. Steigleman v. Jeffries. have taken advantage of the warranty without returning the stones, or giving notice to the plaintiff to remove them. The judgment must, therefore, be reversed, and a venire facias de novo awarded. Yeates, J. — In England this defense could not be set up in a court of law. In the light of a set off it would not be received, because the damages intended to be defalked would be con- sidered as unliquidated. The buyer would be left to his action on the warranty. In Pennsylvania it has been often remarked that our defalcation act is much more comprehensive than the British statutes of set off. The defendant may plead payment of all or part of the debt or sum demanded, and give any bond, bill, receipt, account, or bargain in evidence. Our 39th rule of practice contains such provisions as prevent all surprise. I still, however, adhere to the opinion which I delivered at nisi prius, in Kachlin et al. v. Mulhallon, 2 Dall. 237, that unliquida- ted damages in covenant sounding merely in tort cannot be defalked under our system of judicial proceedings. In such cases individual feelings determine the quantum of compensa- tion without any known standard. That objection does not occur here. If the burr stones were of so bad a quality as to be wholly useless in the hands of the vendee, it would ope- rate against a recovery of any part of the sum agreed upon. If they were of so inferior a grade as that the mill stones would not sell for above two-thirds or one-half of the sum which good mill stones would command at a fair market, the sum re- covered would naturally be in the same proportion, so that there would be some rule of estimating the injury sustained. I concur with the chief justice in Murray v. Williamson, 3 Binn. 137, that I would gladly embrace every principle which prevents multiplication or circuity of action. The alleged de- fense here springs out of the transaction which gave birth to the promissory note. The plaintiff in error complains of a breach of contract, for which he might maintain assumpsit. It is not such a tort as would die with the person. I take it, that the laAV is laid down too broadly in the charge of the court. Circumstances might be laid before the jury fully accounting for not returning the stones to the seller, or giving him notice to take them away at his own expense, and the prejudice which might otherwise arise against the cause of the buyer might thus be in a great measure done away. How far the buyer has recognized the justice and fairness of the sale by his conduct, was a matter of fact to be determined by the jury. I am of opinion that the judgment be reversed, and a venire facias de novo be awarded. Brackenbridge, Justice, concurred. Judgment reversed, and a venire facias d^ novo awarded. Warrardy on the Bale of Personal Property. 243 SUPREME COURT OF PENN'A, PITTSBURGH, 1851. 6 HARRIS 130. Falconer v. Smith. 1. In an action on a simple contract, where the general issue is pleaded, the plaintiff is bound to prove his whole case, and the defendant is entitled, without special notice, to give evidence of anything which shows that, ex equo et bono, the plaintiff ought not to recover. 2. In an action on several promissory notes given for the purchase of machinery for a woolen factory, it was competent for the defendant to prove that when the agreement was made the plaintiff warranted the machinery to be of a certain quality and that the warranty had failed ; and this although the warranty was made several months before the notes were given, it being all considered as one transaction. 3. The degree of polish of the machinery, unless it were a material substantial defect, and not a mere matter of fancy, would not alone entitle the defendant to a deduction from the amount of the notes, except the polish was contemplated by the parties at the time of the original contract, or when the notes forming a part of its consideration were subsequently given. Error to the Common Pleas of Warren County. This was an action of assumpsit, brought by Benj. F. Smith against Patrick Falconer, to recover the amount due upon three promissory notes for $500 each, made by Falconer, July 26, 1848, and payable to Smith or order. The notes were given for machinery for a woolen factory piu-chased by Falconer from Smith. The pleas were nan assumpsit, payment, failure of consideration, with leave, &c. On the trial of this cause, December 5, 1850, the plaintiff, in support of the issue on his part, offered in evidence the prom- issory note signed by Falconer, dated July 26, 1848, for $500, payable with interest on July 1, 1849, to the said Smith, or his order, and endorsed in blank by said Smith. To which evi- dence the defendant objected because of the endorsement. The court overruled the objection, received the evidence, and the defendant excepted. On the further trial of this cause, the defendant proposed to prove that at the time of the contract for the purchase of the machinery, which formed the consideration of the notes, and prior to the giving of the notes, the plaintiff warranted the same to be of a certain character and quality. To such evidence the plaintiff objected, because no notice of such special matter of defense had been given by the defendant, although notified to 244 Warranty on the Sale of Personal Property. Falconer v. Smith. do SO according to the rule of court. The court overruled the evidence and said : It appears by inspection of the record that the defendant's plea is " non assumpsit, payment, failure, and want of consideration ;" and that on the 13th of November last, the plaintiff notified him that notice of special matter, under the 82d and 83d rule of this court, was required, which the defendant omitted to give ; hence he cannot be permitted to give any special defense that could not be made under our practice under the general issue of non assumpsit. It is a rule in pleading, that matter of evidence of the character of a con- fession and avoidance must be pleaded specially. The question then arises, can defendant under the general issue, give in evi- dence a distinct and separate bargain, and made at a different time between the parties, by way of defense. It is believed he cannot. He may give a failure or want of consideration, be- cause that is good under the issue of non assumpsit, for if there was no consideration, there was not in law any assumption. But a distinct contract of warranty made at another time than that of the one sued upon, to constitute a defense, must be pleaded. Church, J., inter alia, charged that the polish of the ma- chinery, unless a material, substantial defect, something more than a mere matter of fancy, would not alone entitle the de- fendant to a deduction, except the polish was contemplated by the parties at the time of the original contract, at the time of purchasing and giving the notes, and so forming a part of the consideration thereof ; in that event it would be otherwise. Verdict was rendered for the plaintiff. Error was assigned to the admission of the note. 2d. — The court erred in rejecting the evidence mentioned in the second bill of exceptions : Chitty's Pleadings 510, 513 ; 4 S. & R. 249, Heck v. Shener ; 5 Ser. & R. 394, Kennedy v. Fer- ris, et al. ; 10 Barr 43, Gaw v. Walcott. 3d. — The court erred in charging the jury that the polish of the machinery, unless a material, substantial defect, something more than a mere matter of fancy, would not alone entitle the defendant to a deduction from the amount of the notes, »&c. Schofield, for plaintiff in error. Brown, for defendant in error. — The warranty proposed was an independent contract, made about nine months previous to giving the notes. That it was not admissible under the plea of non assumpsit : 2 Greenleaf 's Evi., s. 135. Where the debt is admitted, and matters in discharge, such as tender, set off, and the like are relied on, they must be specially pleaded. In *1 Serg. & Rawle 477, Steigleman v. Jeffries, it was held in an Warrainiy on the Sale of Personal Property. 245 Falconer v. Smith. action for the price of a quantity of burr mill stones, that evi- dence tending to prove a warranty was not receivable under the general issue under our defalcation act: 3 Serg. & R. 388 ; 12 Serg. & R. 275 ; 4 Yeates 366. The evidence offered was the subject of set off, which could have been given under the plea of payment with leave, or perhaps of payment alone. But no- tice should have been given : 5 W. & Ser. 103 ; 5 S. & R. 404 ; 10 Barr 43. The opinion of the court was delivered, October 22, by Bell, J. — The question here presented falls clearly within the rule ascertained by Heck v. Shener, 4 Serg. & R. 249 ; Gaw v. Wolcott, 10 Barr 43, and the determinations upon which those cases rest. It is, that in an action founded on a simple contract, the plea of non assumpsit puts the plaintiff upon proving his whole case, and entitles the defendant, without prior special notice, to give evidence of anything which shows, ex equo et bono, the plaintiff ought not to recover. This is emphatically true of matters of defense springing from or immediately connected with the transaction sued on, and impeaching the consideration of the contract averred by the plaintiff. As he is bound to show everything was fair and honest on his part, his antagonist may rebut the allegation by proving he failed in some point of duty or obligation connected with his undertaking. The usual illustration given of this rule is drawn from the implied promise which the law ascribes to all who, for a valuable consideration, assume the discharge of some professional duty, that it shall be properly and fully performed, and of which Heck v. Shener and Gaw v. Wolcott are instances. If, said Chief Justice Tilghman, in the former of these cases, a physician sues me for his services, I may give evidence that he has treated me un- skillfully ; or if a carpenter bring suit for work done for me, I may show it was badly done. In the latter case is mentioned Sisson V. Williard, 25 Wind. 373, which rests on the same principle, and is referred to E^ain only because its general fea- tures bear a close resemblance to the case before us. It was assumpsit to recover the price of altering a water into a steam mill, and, under the general issue, the defendant was permitted to prove the steam engine was worthless, without previous notice. The court said that in an action on a contract, where the' plaintiff is bound to show performance on his part, the defendant may, under the general plea, prove non-compliance by the plaintiff without special notice ; for that which the plaintiff must prove the defendant may disprove. Nor can it make the slightest difference that the undertaking of the former is not by implication, but express, as in this instance. It is 246 Warranty on the Sak of Personal Property. Falconer v. Smith. true that under our more recent decisions, unliquidated dam^es for a breach of warranty may be averred as matter of set off, and then a special plea or notice would be necessary, but as was justly observed in Sadler v. Slobaugh, 3 Serg. & R. 388, a breach of warranty may, at the option of the defendant, be either reserved as the foundation of a separate action, or set up as a defense going to the consideration of the assumpsit sued on. And this is also the doctrine of Shaw v. Badger, 12 S. & R. 275, where a violation of part of an express contract of sale, originating in non-delivery of a portion of the things purchased, was set up as a defense to an action brought for the residue of the articles sold ; and the doctrine of Heck v. Shener, that when the breach of faith complained of by the defendant, is parcel of the plaintiffs ground of action, andtouches its consideration, itis, in Pennsylvania, a defense pro tanto to avoid circuity of action. Indeed, this seems to be admitted by the observation of the court below, that a defendant " may set up a failure or want of consid- eration, because that is good under the issue of non assumpsit, for if there was no consideration, there was not, in law, any assumpsit." But it was thought the defense was not entitled to be so considered under the notion that it springs from " a distinct contract of warranty made at another time than that sued on.' ' Literally, it is true the notes in suit were executed at a time subsequent to the warranty the defendant offered to prove. But in fact the contract was a unit, agreed upon at the same moment, and though, for the convenience of the parties, the actual execution of the promissory notes was deferred, they were but the offspring of the original agreement, deriving their sole efficacy from that agreement as between the original parties. This suit, founded upon them, is consequently open to precisely the same defense as though it were brought on the oral contract. The result is, the rejected evidence ought to have been admitted, as furnishing an answer to the plaintiff's claim, either in whole or part ; for, as we have seen, it was, in the language of the rule of court to which we have been referred, " strictly evidence admissible on a general issue plea." The error first assigned was properly abandoned ; and we do not perceive any mistake in that portion of the charge quoted in the third assignment. But for the improper rejection of the offered testimony, resulting from the erroneous estimate of its value, had it beea received, the judgment must be reversed. Judgment reversed, and a venire de novo awarded. Warrardy on the Sale of Personal Property. 247 SUPREME COURT OF PENN'A, PITTSBURGH, 1859. 10 CASEY 236. Eagan v. Call. Mere inadequacy of consideration, without warranty or fraud, is no defense to the payment of a bill or note given for the purchase money of goods. The unsoundness of the article sold amounts neither to want or failure of con- sideration. In the absence of warranty, the soundness or unsoundness of the subject-matter of the sale has nothing to do with the consideration. In the absence of an agreement by the seller, the purchaser takes at his own risk as to quality. The vendor of a chattel warrants the title, and, in some cases, the species, but nothing more. Error to the Common Pleas of Greene County. This was an action of assumpsit, originally commenced before a justice of the peace by Thomas Eagan v. James Call and George Grant (who was not served with process), on a single bill for $67, dated the 15th April, 1856, and payable six months after date. The case came into common pleas by appeal. The single bill, it was admitted, was given by George Grant, for the price of a mare purchased by him from the plaintiff. James Call, the defendant, was the surety. On the trial the defendant gave evidence that the mare was unsound at the time of sale ; and the court below (GOmore, P. J.,) instructed the jury that to make out a defense against the payment of the note it was not necessary to establish the fact that Eagan knew the mare was unsound. That, if unsound- ness was made out, then the consideration of the note had failed, and on this equitable ground the defendant would be re- leased from the payment of it. To this charge the plaintiff excepted; and a verdict and judgment having been rendered for the defendant, the plaintiff removed the cause to this court, and here assigned the same for error. Sayers and Gapen, for the plaintiff in error. — It is elementary law that the maxim of caveat emptor applies to a sale of personal property, so far as regards the quality or goodness of the article sold : 2 Kent. Com. 478-9 ; *Jackson v. Wetherill, 7 S. & R. 482-3 ; Kimmel v. Lichty, 3 Yeates 262 ; Chitty on Con- tracts, 223. Lindsey and Buchanan, for defendant in error, cited 2 Kent. Com. 570, 600, 604 ; Johnson v. Titus, 2 Hill 606 ; Barnard v. 248 Warranty on the Sale of Personal Property. Eagan v Call. Yates, 2 N. & M. 142 ; Melancon v. Robeehaux, 17 La. 101 ; Steinhauer v. Witman, 1 S. & R. 442 ; Miles v. Stephens, 3 Barr 37 ; Story's Eq. sec. 140, &c. The opinion of the court was delivered by Strong, J. — The plaintiff sued upon a bill single given to secure the price of a mare sold by him to the defendants. Among other pleas " a v^ant of consideration " for the bill was set up, and an attempt was made to. establish it, by proof that the mare was unsound at the time of sale. It was in reference to this defense that the learned judge of the court of common pleas instructed the jury that " to make a defense against the payment of the note, it was not necessary to establish the fact that Eagan (the plaintiff) knew the mare was unsound. If un- soundness is made out, then the consideration of the note has failed, and on this equitable ground the defendant will be re- leased from the payment of it." The instruction thus given is assigned for error. It is to be observed, that it does not put the defense upon the ground of fraud in the contract, nor of express warranty by the vendor, but exclusively upon the bad quality of the thing sold. Now, that the unsoundness of the article sold amounts neither to want or failure of consideration, is easily demonstrable. Want of consideration can only be where the promisee parts with nothing in exchange for the promise. The consideration fails when the promissor does not get that which the promisee agreed to give, as a motive for the promise. But in the absence of warranty, the soundness ^ or unsoundness of the subject-matter of the sale has nothing to do vrith the consideration. There is no relation of confi- dence between the buyer and the seller. In the absence of an agreement by the seller, the purchaser takes it at his own risk as to the quality. The vendor of a chattel warrants the title, and in some cases, the species, but nothing more ; consequent- ly when the title passes, the vendee has all that, under con- tract of sale, the vendor engaged to give him, and, therefore, the entire consideration for his promise. There is then no failure. The rule of the civil law, that a sound price implies a warranty that the article sold is sound, is not a rule of the common law. I am not now speaking of cases of sale by sample, nor of cases in which the law is said to imply a war- ranty that the goods sold are the same in specie vsdth those mentioned in the contract of sale : *Borrekins v. Bevan, 3 Rawle 37, is one of the latter ; though even these cases are, perhaps, rather adjudications of what shall be considered evi- dence of an express engagement, than extensions of the doctrine of implied warranty. There are also to be found Warramiy on the Sale of Personcd Property. 249 Eagan v Call. decisions in which it has been held, that the law implies in the case of a sale of goods by a manufacturer, that they are of a merchantable qu^ity ; and other decisions ruling that, where goods are sold for a particular use, there is an imphed warranty that they are fit for that use. But it cannot be generally maintained that where the buyer has had an opportunity of examining the article, there is any engagement implied in the contract of sale that the seller warrants against latent defects unknown alike to himself and to the purchaser. Certainly, there is no such engagement in the sale of such an article as a horse. The civil law doctrine would produce endless embar- rassments if applied to the extended operations of modern trade. It always involves an inquiry into the question whether the price agreed to be paid was or was not a sound price, and, of course, leaves the measure of obligation of the contract to be determined by the jury. But if there be no such engage- ment by the vendor, then the buyer who has got an unsound or defective article cannot assert that he has failed to obtain all that for which he has contracted to pay. Mere inadequacy of consideration, without warranty or fraud, is no defense to the payment of a bill or note given for the purchase money of goods, and the unsoundness or defective quality of the article sold relates only to the adequacy of the consideration. There was error, therefore, in the instruction given to the jury by the court below. If the contract of sale was not fraudulent, if there was no deceit on the part of the plaintiff, to which knowledge by him of the defect was essential, and if there was no express warranty, the fact that the mare was un- sound constituted no defense to the action. It is unnecessary to notice the second and third assignments of error in detail ; what we have already said is sufficient to express our views of them. The judgment is reversed, and a venire de novo is awarded. 17 250 Warranty on the Sale of Personal Property. 18 2 2. 7 SERGEANT & RAWLE 480., Jackson v. Wetherill. An assertion by the vendor to the vendee at the time of selling a mare, that he is sure she is safe, and kind and gentle in harness, amounts merely to a represen- tation, and does not constitute a warranty or express promise that she is so. Error to the Court of Common Pleas of Philadelphia County. Opinion of the court below was as follows : The defendant sold the plaintiff a mare for $150 ; but after trial, alleging that she was not such a mare as he had contracted for, offered to return her, and demanded his money back. The defendant refused to receive her, or pay back the money. Whereupon the plaintiff sold her at the horse market for $72.38 and now sues for the difference. It is testified that before the plaintiff agreed to purchase the mare, the defendant told him repeatedly he was sure she was perfectly safe, kind and gentle in harness, and that the plaintiff being satisfied as to her safety, purchased her. The court are of opinion that no par- ticular form of words is required by law to constitute a war- ranty, and that the communication thus proved did amount to a warranty by the defendant that the mare was perfectly safe, kind and gentle in harness. Kittera, for the plaintiff in error, cited 1 Bacon's Abridgement 80 ; 2 Selwyn nisi prins, 580, 585. Swift, contra. The opinion of the court was delivered by Duncan, J. — In this action — which on the state of the record and charge of the court must be considered as an assumpsit on the warranty of a mare, sold by Jackson to Wetherill, and not an action of deceit for a false representation of her qualities — the only question was, whether the evidence that before Weth- erill had agreed to purchase the mare, Jackson had told him repeatedly he was sure she was perfectly safe, kind and gentle in harness, and that Wetherill from this statement being satis- fied as to her safety, purchased her, amounted to a warranty. The Court of Common Pleas were of opinion that this commu- nication amounted to a warranty that the mare was perfectly safe, kind and gentle in harness. It seems a principle well settled by the common law, that Warranty on the Sale of Personal Property. 251 Jackson v. Wetherill. with regard to the goodness of wares purchased, the vendor is not bound to answer, unless he expressly warrant them to be sound and good, or there has been a fraudulent representation, an affirmation of a quality known to the vendor to be false. To constitute an express warranty, for there is none implied from the mere sale, no set form of words is required. The use of the word warrant, though it be the one generally used, is not so technical that it may not be supplied by other words. But the words used must be tantamount ; they must not be dubious or equivocal ; but it must appear from the whole evidence that the affirmant intended to warrant, and did not express a mere matter of judgment or opinion. From the time of *Chandelor V. Lopus, Gro. Jac. 4, to the present day, the doctrine has been that a bare affirmation of quality will not give a cause of action, unless the vendor knew it was not of the quality he represented it to be or had warranted it to be so. Jackson might have very truly said that he was sure she was perfectly gentle in harness, without any deceit. It was an expression, and a pretty strong one, I admit, of his judgment and opinion, and if the contrary were known to him would give a cause of action, very different from warranty, in which it would be incumbent on the defendant in error to prove his knowledge of its falsity, the scienter being the gist of the action ; whereas in the warranty the undertaking is. In Sexias & Sexias v. Woods, 2d Gaines 48, it was held that a description in a bill of parcels of the article as brazilletto wood did not amount to a warranty. An express promise that a thing shall be of a certain quality would be equivalent to war- ranty, and in that case it may be stated in the declaration as a warranty ; for no declaration could be supported that did not allege an express warranty or fraud. In *Holden v. Dakin, 4 Johnson 421, where A. sold paint to B. for good Spanish brown and white lead. The paint proved to be bad and of no value ; it was held there was no warranty in this case, and to make it actionable, there must be either an express warranty or fraud. Peake, in his treatise on evidence, 2d vol. 223, lays down the proposition too broadly: that in general any representation made by the defendant at the time of the sale, of the state of the thing sold, will amount to a warranty at law. It is be- lieved there is no decision which would justify the position that a bare affirmation, without knowledge of the defects, or that the quality was different from what he affirmed it to be, would support an action : 1 Fonb. 120. Caveat emptor will apply with more force to the sale of a horse than any other article ; a horse being more the subject of speculative dealing than almost any chattel, and being more liable to secret maladies than any other animal, (which maladies are frequently not discernible 252 Warranty on the Sale of Personal Property. Jackson v. Wetherill. on inspection or mere trial,) it is usual to require from the seller a warranty of soundness as to latent defects. Dealers in horses do not lay themselves under much restriction in praise of their animals ; but you touch a tender point when you propose warranty. The words used, " I am sure she is safe, kind and gentle in harness," do not amount to an express promise or engagement that she was so, much less to a direct warranty. It is the case of a misrepresentation, and if made with the knowledge of its falsehood, would render the party liable in an action of deceit, but not in assumpsit on the warranty. The judgment is reversed, and a venire facias de novo awarded. 9 WATTS 55. McFarland v. Newman. No implied warranty arises from an unfounded affirmation of soundness in the sale of a chattel ; but for a deceitful representation of it, the remedy is by an action ex delicto. A naked affirmation is not itself an express warranty; and though it may, in connection with other circumstances, be competent to show that the vendor had agreed to be responsible for the truth of it, yet the effect of oral words in consd- tuting an express warranty is determinable, not by the court, but by the jury. Error to the Common Pleas of Fayette County. Newman, the plaintiff below, brought an action of assumpsit V. McFarland on an alleged warranty of a horse passed to him as sound in all respects, but the colt distemper. It was proved that the horse had a defluxion from the nose at the time of the bargain ; that McFarland assured Newman it was no more than the ordinary distemper to which colts are subject ; and that it had been of only a few days' continuance ; whereas it was tes- tified that the horse had exhibited the same symptoms all the time McFarland had him, (a period of 10 or 11 months,) and the evidence was very strong that he had an incurable disease called glanders. It was testified, also, that the person of whom McFarland had him, had passed him away as a glandered horse, or, at least, had refused to say to McFarland that he was other- wise ; that McFarland had been told of the true nature of the disease by another person ; and that he himself had said he Warranty on the Sale of Personal Property. 253 McFarland v. Newman. feared it was, or would become something worse than the dis- temper. The judge chained that knowledge of unsoundness without denial of it would not entitle the plaintiff to recover, but that " a positive averment made by the defendant at the time of the contract of a material fact is a warranty ; • that it is part or parcel of the contract.''^ The jury found for the plaintiff, assessing damages at $75, and the defendant tendered a bill of exceptions. Howell and Dawson, for plaintiff in error, cited 1 Chitty Con- tracts 134 ; 5 Bingh. 533 ; *7 Sergeant & Rawle 481 ; 3 Yeates 462 ; *8 Cowen 25 ; *20 Johnson 196 ; 1 Johnson 274, 196, 158 ; *4 Johnson 420 ; and 5 Johnson 354. Veech, for defendant in error, cited *3 Rawle 23 ; *Yelv. 21, a in notes; *3 Term Rep. 52 ; *2 East. 450 ; 19 Com. Law. Rep. 267 ; 2 Harr. and G. 495, 533 ; Chitty Contracts 135 ; *2 Cowen 438 ; *8 Cowen 25. The opinion of the court was delivered by Gibson, G. J. — On no subject have the decisions been so anomalous as on warranty of chattels ; an attempt to arrive at a satisfactory conclusion about any principle supposed to be settled by them would be hopeless, if not absurd. Of such jarring materials have they been compounded that it is imossible to extract from them any principle of general application ; and we are left by them in the predicament of mariners compelled to correct their dead reckoning by an observation. The civil law maxim is, doiJbtless, that a sound article is warranted by a sound price ; but the common law courts started with the doctrine that though the sale of a chattel is followed by an im- plied warranty of title, and a right of action ex delicto for willful misrepresentation of the quality, yet the maxim caveat emptor disposes of all beside. Thus was the common law originally settled ; and the current of decisions ran smooth and clear in the channel thus marked out for it, from the days of the year books, till vrithin a few years past, when it suddenly became turbid and agitated ; and, as in the case of promises conjured up to elude the statute of limitations, it Anally ran wild. The judges, in pursuit of a phantom in the guise of a prin- ciple of impracticable policy and questionable morality, broke away from the common law, not, however, by adopting the civil law principle of implied warranty as to soundness, but by laying hold on the vendor's commendation of his commodity, and not at first as absolutely constituting an express warranty, but as evidence of it. I say the policy of this principle is impracticable, because the operations of commerce are such as to require that the rules 254 Warranty on the Sale of Personal Property. McFarland v. Newman. for its regulation admit of as few occasions for reclamation as possible ; and I say its morality is questionable, because I am unable to discern anything immoral in a bona fide sale of an article represented to be exactly that as which the vendor had purchased it. It is to be remembered that I am speaking of the sale of a thing accepted by the vendee after opportunity had to imspect and test it, and not of a sale in which he was necessa- rily compelled by the circumstances to deal on the faith of the vendor's description ; nor yet of a sale on the concoction of which he was overreached by misrepresentation or trick. For the latter he doubtless has his remedy ; but not by an action ex contractu ; and I therefore lay the vendor's motive out of the case as one that can have no legitimate influence on the ques- tion of warranty. But a positive assertion of what he knew not to be either true or false is as unconscionable, and might be as injurious, as an intentional falsehood ; and what is the vendee's remedy for it when the scienter cannot be proved? The fallacy of the question is in assuming that he ought to have any remedy at all. The relation of buyer and seller, unlike that of cestui que trust, attorney and client, or guardian and ward, is not a confidential one ; and if the buyer, instead of exacting an ex- plicit warranty, chooses to rely on the bare opinion of one who knows no more about the matter than he does himself, he has himself to blame for it. If he will buy on the seller's re- sponsibility, let him evince it by demanding the proper secu- rity ; else let him be taken to have bought on his own. He who is so simple as to contract without a specification of the terms, is not a fit subject of judicial guardianship. Repos- ing no confidence in each other, and dealing at arms' length, no more should be required of the parties to a sale than to use no falsehood ; and to require more of them would put a stop to commerce itself, driving every one out of it by the terror of endless litigation. Yet such would be the tendency of the civil law scion which the judges have been laboring to engraft on the common law stock. It would be curious, but unprofitable, to trace their advance towards the object by their footsteps in the cases. In none of them have I discovered any principle so plausible as that assumed by the judge who tried the present cause, that an averment of a material fact is part of the con- tract — a position, however, that will not bear a moment's examination. A sale is a contract executed, on which, of course, no action can be directly founded ; but an action may be founded directly on a warranty, and it was doubted in *Stuart v. Wilkins, Doug. 18, whether an action could be maintained for a breach of it in WarraMy on the Sale of Personal Property. 255 McFarland v. Newman. any other way ; consequently, though it is a concomitant, it is also a collateral, self-existent contract, and no more a part of the sale than a covenant of warranty in a deed is part of the conveyance. It is not easy to say what notions had previously been entertained ; but for a short time after the new doctrine had been broached, the distinction between representation and warranty was ostensibly observed. But in Wood v. Smith, 4 Car. & Payne 45, it was resolved, " that whatever a person rep- resents is a warranty," and thus the previous distinction, flimsy and inoperative as it had become in practice, was formally laid aside. And that the court went even further is manifest from a glance at the circumstances. The plaintiff, chaffering for a mare, had said, interrogatively, " She is sound of course ?" and the defendant had replied, " Yes, to the best of rny knowledge ;" but to the direct question, " Will you warrant her ?" he answered, " I never warrant, I would not even warrant myself." Yet, in the teeth of this peremptory refusal, it was adjudged that he had actually en- tered into an express warranty, and that the plaintiff had pur- chased on the faith of it. This conclusion is so forced, unnat- ural and opposed to the very declared understanding and intent, that one is tempted to think the court had so far lost sight of the nature of a warranty as to have forgotten that it is a con- tract ; " that the assent to every contract must be mutual ; that every agreement must be so certain and complete that each party may have an action on it ; and that it would be incom- plete if either party withheld his assent to its terms." I quote these commonplace principles from Mr. Chitty's treatise on contracts, because I happen to have the book at hand. It is true, he says, that in many cases the law implies the'party's assent to a promise, but he also says that such a contract is an implied one, and our business at present is with the elements of an express warranty. Now, it is not and can- not be a wholesome interpretation which involves a party in engagements he never dreamed of contracting, or to which he expressly refused to assent. If it is true, as it is said to be, that the plain, ordinary and popular sense of words shall pre- vail in preference to their strict grammatical sense, the de- cision in Wood V. Smith is more than questionable ; for that the parties themselves put no such meaning on their discourse, as did the court, is evident from the plaintiff's request that the defendant would annex a warranty to his representation, and from the defendant's refusal to do so. After that, it is hard to see what room there was for interpretation. Even the civil law implication of warranty, if it were inadmissible on no other ground, would be repressed by it on the foot of the maxim. expressum facit cessare taciturn. 256 Warranty on the Sale of Personal Property. McFarland v. Newman. It may be said in extenuation, ttiat the court did not hold the defendant to a warranty of the mare's soundness, but only to a warranty of soundness to the best of his knowledge. So much the worse. He had refused to enter into any warranty what- ever, and it would have required no greater stretch to hold that he had entered into a general warranty of soundness than to hold that he had entered into a special warranty of what he thought or knew. It would, too, have relieved the court fro m the awkwardness of resting the recovery on the collateral war- ranty of an immaterial fact which, assigned as a breach, would not have entitled the plaintiff even to nominal damages. And what makes the judicious grieve, is, that all this violence to the ancient principles of the law was gratuitous ; for as in *Chand- ler V. Lopus, as well as in the case before us, the plaintiff had a remedy as efficacious by an action for the deceit. It will be perceived that these remarks do not touch the case of *Borre- kins V. Bevan, 3 Rawle 23, in which it was held that an implied warranty arises that the article is specifically that as which it is sold. The essential error of the present case, however, is that the. judge put a legal interpretation on oral words, and made it a matter of positive direction. In the British courts, revision on writ of error is unfrequent ; and points like the present are usually determined on motions for new trials, in which the judges reviewed not only the law, but the evidence, in relation to its capacity to sustain the verdict. Hence they began im- perceptibly to deal indiscriminately with matter of fact and matter of law as equally within their province, without troub- ling themselves with distinctions as to what more properly belongs to the jury. In our own State, where abstract principles are settled by the court of the last resort on bills of exceptions, the functions of the judge, and those of the jury are more carefully separated and particularly defined. Now, it is obvious that the sense of wards used in conversation, and what the parties meant to express by them, is for the jury to determine, and not for the court. It is the conceded province of the court to expound the meaning of an instrument, but that it extends not to words uttered, of which there can be no tenor, is evident from the uniformity with which it is spoken of in reference to the inter- pretation of writings. The same thing is evident, also, from the nature of the judicial function which is exercised only on acts supposed to be established. The terms of assent, where proof of the contract depends upon testimony, necessarily present a question of fact, while words embodied in an instrument readily admit of interpreta- Warranty on the Sale of Personal Property. 257 McFarland v. Newman. tion. Hence, it was said by Chief Justice Abbot, 2 Barn. & Cress. 634, " that where the whole matter passes in parol, all that passes may sometimes be taken together, but not always, because matter talked of at the commencement of a bargain may be excluded by the language used at its termination ; but if the contract be in the end reduced to writing, nothing which is not found in the writing can be considered as a part of the writing." The distinction is more pointedly indicated in the American cases. "The coimsel of the plaintiff," said Chief Justice Marshall, in Levy V. Gadsby, 3 Cranch 186, "has also contended that although the paper writing produced would, on the face of it, import a usurious contract, yet that the jury might possibly have inferred from it certain extrinsic facts, which would have shown the contract not to have been within the act. But in this case the question arises on a written instrument, and no question is more clearly settled than that the construction of written evidence is with the court." The converse was asserted in Sidewell v. Evans, 1 Penna. Rep. 383, where it was ruled that a judge cannot be required to give a legal construction to the words of a witness. That the construction of an oral agree- ment belongs to the jury, and that parol evidence connected with a writing draws the whole from the court, is so often repeated in our own reports, that I forbear to enumerate the cases. And I particularly advert only to Harper v. Kean, 11 Serg. & Rawle 280, in which the expression of an opinion on the meaning of letters in connection with verbal communica- tions was held not to be erroneous, only because the jury were directed to judge of the contract for themselves. As the cause goes back to another jury, it is proper to intimate the principle on which a correct decision of it must depend. Though to constitute a warranty requires no particular form of words, the naked averment of a fact is neither a warranty itself nor evidence of it. In connection with other circumstances, it certainly may be taken into consideration, but the jury must be satisfied from the whole that the vendor actually, and not constructively, consented to be bound for the truth of his representations. Should he have used expressions fairly importing a willingness to be thus bound, it would furnish a reason to infer that he had intentionally induced the vendor to treat on that basis. But a naked affirmation is not to be dealt with as a warranty, merely because the vendee had gratuitously relied on it, for not to have exacted a direct engagement, had he desired to buy on the vendor's judgment, must be accounted 258 Warranty on the Sale of Personal Property. McFarland v. Newman. an instance of folly. Testing the vendor's responsibility by these principles, justice will be done without driving him into the toils of an imaginary contract. Judgment reversed, and a venire de novo awarded. SUPREME COURT OF PENNSYLVANIA, EASTERN DIS- TRICT, PHILADELPHIA, MARCH 27, 1826. 14 SERG. & RAWLE 51. Curcier, e^ a/., v. Pennock. The defendant having in his possession a quantity of coin which he believed to be current money of Cayenne, offered to give it to the plaintiffs for goods. The plaintiffs, being ignorant of its value, asked time for inquiry, and having several days for that purpose, during which they satisfied themselves on the subject, deliv- ered to the defendant a quantity of goods for which they received the coin. After having kept it three years, they discovered that it was spurious, upon which they brought an action against the defendant for goods sold and delivered. There was no suggestion of fraud in the defendant, nor was any warranty alleged. /fe/d, that the action could not be supported. In Error. From the record of this case, returned on a writ of error from the district court for the city and county of Philadelphia, it appeared that in the month of August, 1817, the defendant in error, who was defendant below, called upon the plaintiffs in error and said he wished to sell or exchange Cayenne money for goods. The plaintiffs said they did not know the value of the money, but would inquire, and if it was worth what the defendant asked, they would sell him the goods at the prices they sold to others. The defendant left a sample of the coin with the plaintiffs, who made inquiries as to its value. The next day, or two or three days afterwards, the defendant called, and the plaintiffs agreed to take the coin at the price he had fixed. The defendant selected the goods he wanted, to the amount of the coin, some of which was counted and the rest weighed. The goods were delivered, and the Cayenne money received. The entry in the plaintiffs' books was as follows : — " Cayenne money, dr. to merchandise, $718.25." Thus the Warranty on the Sale of Personal Property. 259 Curcier v, Pennock. matter rested until the summer of 1820, when, on the arrival of a vessel from Cayenne, the plaintiffs offered the money to the captain, who refused to receive it, alleging that it was coun- terfeit. The plaintiffs then, without any offer to return the coin to the defendant, commenced this action, in which they de- clared for goods sold and delivered. It was proved on the trial that the money was spurious. The court below, after the evidence was closed, charged the jury in the following manner : — " The defendant contends there was no sale of goods to him by the plaintiffs ; that no deceit or fraud was alleged or proved ; that there was no warranty as to the goodness or value of the coin ; that the coin was not spurious, but the money current in Cayenne; that the plaintiffs did not return or tender the coin be- fore action brought. If a man sell goods to another for money, or bank notes, and the money paid is counterfeit or the notes forged, the vendor may resort to the original contract, because he was to be paid in money, and he has not received what the purchaser engaged and contracted to pay. But if goods be sold or taken in exchange or payment, and they turn out not to be of so much value or as good or different from what the parties supposed them to be, and both parties had seen the goods, the parties are bound, unless there be a warranty or fraud, or deceit. Here there was no warranty, no deceit or fraud alleged or proven. This action is not founded on a war- ranty or fraud. There was no sale of goods to the defendant. It was rather a sale of coin to the plaintiffs, or an exchange of coin for goods. It was not a sale of goods for money current here. The plaintiffs agreed to take the coin, if upon inquiry it was worth what the defendant asked for it. The plaintiffs did inquire, and agreed to take it ; they had the opportunity to judge for themselves, and they are bound. The cases cited by the plaintiffs' counsel do not apply. The defendant performed his contract ; he gave what he promised ; the plaintiffs saw the coin, and were as capable of judging of its value as the defend- ant, and they had an opportunity to inquire, and be informed, and they did. It does not appear that the defendant knew the coin better than the plaintiffs, and there was no warranty by the defendant. The law we consider as settled. In point of fact, was the coin spurious as alleged ? This depends upon the evidence, and it is by no means certain that it was not current at one time at Cayenne. If it was spurious, it does not appear that the defendant knew it to be so ; he did not say it was genuine. "As to the return or tender of the coin before the action was brought, it is a point reserved to be considered, if necessary. 260 Warranty on the Sale of Personal Property. Curcier v. Pennock. " We are of opinion that the law of the case is with the defendant." Read and Randall, for the plaintiffs in error. Gould this action be maintained upon the evidence given in court below ? If the coin was counterfeit, the plaintiffs had a right to consider it a nullity and treat the transaction as one of goods sold and delivered. It was not an exchange, but a sale for Cayenne money. The court charged that even if it was counterfeit coin, the plaintiffs could not recover. This is directly contrary to the authorities, which decide that the plaintiffs may, in such cases, resort to the original cause of action: Markle v. Hatfield, 2 Johns. 455 ; Young v. Adams, 6 Mass. Rep. 182 ; *Ritchie v. Summers, 3 Yeates 532. Mahany and Potts, for the defendant in error. The transaction between the parties was not a sale, but an exchange of Cayenne money for goods. This kind of money which once passed in France, was an article of commerce. The evidence, therefore, did not support the declaration. The action should have been special, and the declaration should have alleged fraud or warranty : *Snell v. Moses, 1 Johns. 97 ; *Sexias v. Wood, 2 Gaines 48 ; Perry v. Aaron, 1 Johns. 129, ib. 274 ; 2 Johns. 179. (note); *4 Johns. 421 ; 2 Com. on Gont. 268 ; *Bree v. Holbec, Doug. 654. Tilghman, C. J. — * * * Error was assigned also in the charge of the district court, and as this cause is to go to a sec- ond trial, it is necessary that we should give our opinion on the charge. There was no special verdict, but the charge was given on the facts proved by the evidence of the witnesses. As those facts appeared to the district court, and as they appear to me, the defendant had in his possession, in the year 1817, a quantity of coin, which he supposed to be current money of Cayenne. In the same year he offered to give this coin to the plaintiffs for goods. The plaintiffs, being ignorant of the value of such coin, asked time for inquiry, and having taken several days for that purpose, during which they satisfied themselves, they bargained with the defendant, and sold and delivered him a certain quan- tity of goods, for which they received the coin. The plaintiffs, having kept it three years, were informed that it was spurious, upon which, without offering to return it to the defendant, they brought this action against him for money had and received for theiruse. Therewasnosuggestionoffraudinthe defendant. But the plaintiffs endeavored to support their action on this princi- ple : that they sold their goods to the defendant for a certain sum to be paid in foreign money, and, the money being coun- Warrardy on the Sale of Personal Property. 261 Curcier v. Pennock. terfeit, the contract was void. It is evident that in taking this ground they assume an important fact, denied by the defendant, viz : that he ^reed to pay a certain sum in foreign money. On this state of the case I should not differ from the plaintiffs' counsel. But the transaction appears to me to be rather in the nature of an exchange of the property. The plaintiffs gave the goods for which they received from the defendant, in ex- change, a copper coin, which both parties supposed to be genu- ine money of Cayenne. The plaintiffs exercised their own judgment for several days in ascertaining the value of this coin, and finally received it on their own judgment, without any warranty or engagement on the part of the defendant. They kept it for three years, and even then did not offer to return it to the defendant, as I incline to think, though I have not formed a decided opinion, they ought to have .done ; for, whether law- ful coin or not, being of copper, it had an intrinsic value. Be- sides, the delay of three years was unreasonable. If it had been returned in a short time after its receipt, the defendant might, perhaps, have had recourse to the person from whom he received it. But, after three years, that was hardly to be expected. As to the excuse of the plaintiffs that they had no opportunity, sooner, of ascertaining that the coin was counter- feit, it is not satisfactory. It was their business to make inquiry sooner, and it is not perceived that there could have been any difficulty in ascertaining the nature of the coin. I agree, that if one sells goods for bank notes of another State, which prove counterfeit, he may avoid the contract and recover his money. But even there, where the case is much stronger than that be- fore us, notice must be given in a reasonable time. I do not think that an action for money had, &c., would lie after three years, if the plaintiff knew where the defendant was to be found in the meantime. Nor would it be taken for a good ex- cuse if the plaintiff should say that he had kept the notes in his closet, without an opportunity of knowing that they were counterfeit. It was decided by this court, in the case of Ray- mond V. Baar, at Ghambersburg, last October term, (13 Serg. & Rawle 318,) that the plaintiff, who had received a counterfeit bank note for goods sold, and kept it six months after he knew it to be counterfeit, without giving notice to the defendant, could not support his action. There, to be sure, the plaintiff knew that the note was counterfeit six months before he informed the defendant of it. But the case before us appears to me to be quite as strong, because, instead of six months, the plaintiff kept the coin three years, long before the end of which time he might and ought to have known that it was spurious. There is no need of entering into a minute examination of every part of 262 Warranty on the Sale of Personal Property. Curcier v. Pennock. the charge of the district court. In the main conclusion, that on the evidence given the plaintiffs were not entitled to a ver- dict, I think it w^as right. The judgment must be reversed, however, for the error in rejecting the evidence of John T. David, and a venire facias de novo awarded. Gibson, J. — Where there is a sale on terms of receiving pay- ment in foreign coin, generally, I agree that payment hi coun- terfeit coin will not discharge the debt ; and this is all that can be demanded in the way of concession. But was this trans- action a sale of goods to be paid for in foreign coin, generally, or an exchange of goods for particular pieces of foreign coin, article for article ? The defendant proposes to sell a cask of Cayenne money or exchange it for goods, and leaves samples with the plaintiffs, who, after satisfying themselves of its value, agree to give goods at the current prices to the amount ; and on this footing a bargain is struck. Now, it is difficult to determine whether the plaintiffs took the Cayenne money in payment of their goods, or the defendant took goods in pay- ment of his Cayenne money ; but that the identical pieces of coin to be received for the goods were fixed by the agreement of the parties is not to be doubted ; and that is conclusive to show that they meant to treat the Cayenne money, in every other respect than the name, as an article of. commerce. The agreement was not that the defendant should buy the goods to be paid for in the coin of a particular country, at the current rate of exchange, but the identical pieces were specified, ex- amined and received at a value fixed by the parties themselves. If, then, they thought fit to treat this coin as a commodity, might they not invest it with the attributes and properties of a commodity ? That it presents itself to the senses in the shape of coin, furnishes no objection ; for the Nuremberg counters, so common at card tables a few years back, although in the shape of guineas, and little more base in their composition than the genuine coin of Cayenne, were undoubtedly a commodity. Nor is it material that the money was the counterfeit present- ment of the coin of an obscure country in a remote corner of the world. The gum of the kingdom of Senegal is its only currency ; yet with us, it enters into the transactions of com- merce exclusively as a commodity ; and no one will doubt that payment in gum not merchantable, would, even in Senegal, discharge the debt. And so would payment in tobacco have done, while it was the circulating medium of Maryland and Virginia. But I go further, and affirm that the coin struck at the mint of the United States may be divested of the character of money and bargained for as a commodity. The reason why payment in money which is counterfeit, or for any other cause. Warranty on the Sale of Personal Property. 263 Curcier v. Pennock. worthless, does not discharge the debt, is, that the seller has not got the thing for which he bargained ; but it cannot be affirmed that he has not got it when the identical thing is pro- duced, examined and accepted at the time of the bargain. The current coin of the country, therefore, may, by an explicit agree- ment of the parties, be taJcen at the risk of the seller ; but I admit that the presumption would be against the existence of such an agreement till it were shown. However, in a transac- tion like the present, where warranty or deceit is not pretended, I am of opinion that the seller receives the thing at his own risk. On the ground of authority, I concur that John T. David was a competent witness, and for that reason the judgment be re- versed. Judgment reversed, and a venire facias de novo awarded. SUPREME COURT OF PENNSYLVANIA, DECEMBER TERM, 1845. 2 BARR 201. Frazier v. D'lnyilliers. 1. An endorser " without recourse" of a treasury note which had been paid, and afterwards stolen and put in circulation, the marks of payment having been fraudulently obliterated, is liable to his endorsee; for these words merely limit his responsibility by the law merchant in the event of the instrument being dishonored. 2. United States Treasury notes are negotiable instruments. Appeal from the nisi prius. Feb. 3. — ^A treasury note in the following form : " 11 March, 1841. " The United States promise to pay, one year after date, to Corcoran & Riggs, or order, Five hundred dollars, with interest, at the rate of six per centum." Was stolen after being cancelled by the United States, and the words of cancellation having been obliterated, was put in 264 Warra'rdy on the Sale of Personal Property. Frazier v. D'Invilliers. circulation, and a bona fide holder endorsed it to the defendant's order for safety ; on demand the interest was paid by the United States, and endorsed thereon. Defendant then sold the note and endorsed it without recourse, and interest was again paid. When the fraud was discovered by the government and payment refused, the plaintiff sued on the endorsement. The court gave judgment for the plaintiff. C. Gilpin, for plaintiff. — The principle of *Gharmly v. Dulles, 8 Watts & Serg. 353, was, that of endorsement being of an instrument not negotiable, the words "without recourse" had no meaning, and that the party was liable on his implied warranty as on the sale of other chattels. There the paper was valueless by reason of a forgery ; but here it is not so, for the United States, having subsequently paid interest, is hable, as any person giving currency to a stolen note : Gilkison v. Snyder, 8 Watts & Serg. 200. This point was collaterally de- cided in Knight v. Lanfear, New Orleans, April, 1844. Gerhard, contra. — The value of the note depends upon the United States being estopped by the acts of its agents done in ignorance, but neither of the payments of interest were induce- ments for the purchase by defendant, which is the principle of Gilkison v. Snyder. This alone disposes of the objection ; but such a possible value is not what plaintiff bargained for, especially as it cannot be enforced by suit. The rule is settled that the instrument must be such as it was understood to be by the parties buying and selling. In Young v. Cox, 3 Bing. N. C. 724, the want of a stamp, which a foreign government after issue of bonds required holders to obtain, on pain of having them rejected, the only effect of which, in fact, was to destroy the marketable quality on the stock exchange, was allowed as a reason for rescinding a contract. *Gharmly v. Dulles settles the effect of the endorsement, and, besides, the instrument here is a negotiable one : United States v. Bank United States, 2 Howard 711 ; United States v. Bank of Metropohs, 15 Peters 377. Hence the words of endorsement are confined to non-liability for the drawer ; and the failure of consideration need not be by a fraud of the party : Jones v. , 1 Marsh. 127. February 24. Sergeant, J. — Treasury notes possess the highest character of negotiability, by the express provisions of the acts of Congress authorizing their issue. For this reason, as was held by this court in *Charmly v. Dulles, 8 Watts & Serg. 353, the words " without recourse," annexed to the defendant's endorsement, only exempt him from that liability on the note,. Warranty on the Sale of Personal Property. 265 Frazier v. D'Invilliers. in the case of its dishonor at maturity, to which he would otherwise be subject by the law merchant. But they do not exempt him from the obligation he is under in case the instru- ment turns out not to be genuine, to return the money paid for it by one to whom he passed it in the ordinary course of business, any more than if he had innocently passed a forged check, note, bill of exchange, or other instrument for money paid him. In such case it is the duty of the person who passed the instrument when its falsity is discovered, to return the money paid and take back the instrument ; and if he do not, action lies. This note was put in circulation after it had been paid and cancelled by the maker, by means of forgery, and it was a mere nullity. It was incapable of being revived and restored to validity by the mere payment of interest subse- quently by the maker. Judgment affirmed. SUPREME COURT OF PENN'A, PHILADELPHIA, 1861. 3 WRIGHT 88 Lord V. Grow. No Warranty implied in Sales on Inspection. — " Caveat emptor" the Rule of Law in such cases. 1. In sales of personal property on inspection, and where the vendee's means of knowledge are equal to the vendor's, the law does not presume an engage- ment by the vendor that the thing sold is of the species or kind contemplated by the parties ; but if the article be such that the vendor is presumed to have supe- rior knowledge in regard to it, there is a warranty that it shall be in kind as rep- resented. 2. To the purchase of goods on inspection, the rule of law^is "caveat emptor." 3. *Borrekins v. Bevan, 3 Rawle 28, qualified by *Carson