delivered the opinion of the court.
No principle of the common law has been better established, or more often affirmed, both in this country and in England, than that in sales of personal property, in the absence of express warranty, wffiere the buyer has an opportunity to'inspect the commodity, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the article he sells, the maxim of
caveat emptor
applies. Such a rule, requiring the purchaser to take care of his own interests, has been found best adapted to the wants of trade in the business transactions of life. And there is no hardship in it, because if the purchaser distrusts his judgment he can require of the seller a warranty that the quality or condition of the goods he desires to buy corresponds with the sample exhibited. If he is satisfied without a warranty, and can inspect and declines to do it, he takes upon himself the risk that the article is merchantable. And he cannot relieve himself and charge the seller on the ground that the examination will occupy time, and is attended with labor and inconvenience. If it is practicable, no matter how inconvenient, the rule applies. One of the main reasons why the rule does not apply in the case of a sale by sample, is because there, is no opportunity for a personal examination of the bulk of the commodity which the sample is shown to represent. Of such universal acceptance is the doctrine of
caveat
Applying this acknowledged rule of law to this case, it is easy to settle the rights-of the parties, and to interpret the contract which they made. That the wool was not sold by sample clearly appears. And it is equally clear that both sides understood that the buyer, if he bought, was to be his own judge of the quality of the article he purchased. Barnard expressly stipulated, as a condition of sale, that Kellogg should examine the wool, and he did examine it for himself. If Kellogg intended to rely on the samples as a basis of purchase, why did he go to Boston and inspect the bales at all, after notice that such inspection was necessary before the sale could be completed ? His conduct is wholly inconsistent with the theory of a sale by sample. If he wanted to secure himself against possible loss, he should either have required a warranty or taken the trouble of inspecting fully all the bales. Not doing this, he cannot turn round and charge the seller with the consequences of his own negligence. Barnard acted in good faith, and did not know or have reason to believe that the wool was falsely packed. The sale on his part was intended to be upon the usual examination of the article, and the proceeding by Kellogg shows that he so understood it, and it is hard to see what ground of complaint even he has against Barnard. ' It will not do to say that it was inconvenient to examine all the bales, because if inconvenient it was still practicable, and that is all, as we have seen, that the law requires. The case of-
Salisbury
v. Stainer, reported in 19th Wendell,
*
is similar in its facts to this ease, and the court applied to it the rule of
caveat emptor.
There bales of hemp were sold which turned out to be falsely packed. The purchaser wished to treat the sale as a sale by sample; but the court said to him, “You were told to examine for yourself, and having opened one bale, and at liberty to open all, and omitting to do it, you cannot be per
But the learned court below having found that by the cus- • tom-of dealers in wool in New York and Boston there is'a warranty by the seller implied from the fact of sale, that the wool is not falsely packed, and having held Barnard bound by it, the inquiry arises whether such a custom can be admitted to control the general rules of law in relation to the sale-of personal property.
It is to be. regretted that the decisions of the courts, defining what local usages may or may not do, have not been uniform. In some judicial tribunals there has been a disposition to narrow the limits of this species of evidence, in others to extend them, and on this account mainly the conflict in decision arises. But if it is hard to reconcile all the cases, it may be safely said they do not differ so much in principle, as in the application of the rules of law. The proper office of a custom or usage in trade is to ascertain and explain the meaning and intention of the parties to a contract, whether written or in parol, which could not be done without the aid of this extrinsic evidence.- It-does not. go beyond this, and is Used as a mode of interpretation on the theory that-the' -parties- 'knew of its existence, and contracted with reference to it. It is often employed to explain words or phrases in a contrafet of doubtful signification, or which may be understood in different senses, according to the subject-matter to which they are applied. But if it be inconsistent with the contract, or expressly or by necessary implication contradicts it, it cannot-be received in evidence to affect it.
*
Usage, says Lord Lyndhurst, “may be admissible to explain what is
doubtful;
it is never admissible
Iu Massachusetts, where this contract was made, the more recent decisions on the subject are against the validity-of the custom set up in this ease. In Dickinson v. Gay, § which was a sale of cases of satinets made by samples, there were in both the samples and the goods a latent defect not discoverable by inspection, nor until the goods were printed, so that they were unmerchantable. It was contended that by custom there was in such a case a warranty implied from the sale that the goods were merchantable. But the court, after a full review of all the authorities, decided that the custom that a warranty was implied, when by law it was not implied, was eoutrary to the rule of the common law on the subject, and therefore void. If anything, the case of Dodd v. Farlw, || is more conclusive on the point. There forty bales of goat skins were sold by a broker, who put into the memorandum of sale, without authority, the words “to be of merchantable quality and in good order.”
It was contended that by custom, in all sales of such skins, there was an implied warranty that they were of merchant
In New York there are some cases which would seem to have adopted a contrary view, but the earlier and later cases agree with the Massachusetts decisions. The question in Frith v. Barker * was, whether a custom was valid that freight must be paid on goods lost by peril of the sea, and Chief Justice Kent, in deciding that the custom was invalid, says: “ Though usage is often resorted to for explanation of commercial instruments, it never is, or ought to be, received to contradict a settled rule of commercial law.” In Woodruff v. Merchants’ Bank, † a usage in the city of New York, that days of grace were not allowed on a certain description of commercial paper, was held to be illegal. Nelson, 'chief justice, on giving the opinion of that court, says:
“ The effect of the proof of usage in this case, if sanctioned, would be to overturn the whole law on the subject of bills of exchange in the city of New York;” and adds, “if the usage, prevails there, as testified to, it cannot be allowed to control the settled and acknowledged law of the State in respect to this description of paper.” And, in
Beirne
v.
Dord,
‡
the evidence of a custom that in the sale of blankets in bales, where there was no express warranty,the seller impliedly warranted them all equal to a sample shown, was held inadmissible, because contrary to the settled' rule of law' on the subject of chattels. But the latest authority in that
In Pennsylvania this subject has been much discussed, and not always with the same result. At an early day the Supreme Court of the State allowed evidence of usage, that in the city of Philadelphia the seller of cotton -warranted against latent defects, though there were neither fraud on his part or actual warranty. † Chief Justice Gribson, at the time, dissented from the doctrine, and the same court, in later cases, has disapproved of it, ‡ and now hold that a usage, to be admissible, “ must not conflict with the settled rules of law, nor go to defeat the essential terms of the contract.”
It would unnecessarily lengthen this opinion to review any further the American authorities on this subject. It is enough to say, as a general thing, that they are in harmony with the decisions already noticed. See the American note to Wigglesworth v. Dallison, 1 Smith’s Leading Cases, where the cases are collected and distinctions noticed.
The necessity for discussing this rule of evidence has often occurred in the highest courts of England on account of the great extent and variety of local usages which prevail in that country, but it would serve no useful purpose to review the cases. They are collected in the very accurate English note
These rules, says Chief Justice Wilde, in Spartali v. Benecke, * “ are well settled, and the difficulty that has arisen respecting them, has been in their application to the varied circumstances of the numei’ous cases in which the discussion of them has been involved.” But this difficulty does not exist in applying these rules to the circumstances of this case. It is apparent, that the usage in question was inconsistent with the contract which the parties chose to make for themselves, and contrary to the wise rule of law governing the sales of personal property. It introduced a new element into their contract, and added to it a warranty, which the law did not raise, nor the parties intend it to contain. The parties negotiated on the basis of caveat emptor, and contracted accordingly. This they had the right to do, and by the terms of the contract the law placed on the buyer the' risk of the purchase, and relieved the seller from liability for latent defects. But this usage of trade steps in and seeks to change the position of the parties, and to impose on the seller a burden which the law said, on making his contract, he should not carry. By this means a new contract is made for the parties, and their rights and liabilities under the law essentially altered. This, as we have seen, cannot be done. If the doctrine of caveat emptor can be changed by a special usage of trade, in the manner proposed by the custom of dealers of wool in Boston, it is easy to see it can be changed in other particulars, and iu this way the whole doctrine frittered away.
It is proper to add, in concluding this opinion, that the conduct of the parties shows clearly that they did not know of this custom, and could not therefore have dealt with ret erence to it.
Venire de novo.
Notes
Page 158.
See Notes to Wigglesworth v. Dallison, 1 Smith’s Leading Cases, 498; 2 Parsons on Contracts, § 9, 535; Taylor on Evidence, 943, and following.
Blackett v. Boyal Exchange Assu. Co., 2 Crompton & Jervis, 249.
See Note to 1st Smith’s Leading Cases, supra.
1 Selden, 95.
3 Keys, 219.
Snowden
v.
Warder,
Coxe v. Heisley, 19 Pennsylvania State, 243; Wetherill v. Neillson, 20 Id. 448.
10 Common Bench, 222.