12 Wend. 566 | N.Y. Sup. Ct. | 1834
By the Court,
I will briefly notice the exceptions taken at the trial, in the order in which they arose.
The first three exceptions relate to the usage of those in the cotton trade, both merchants and brokers. There are certain usages of trade which are adhered to by all persons in that particular trade, which, by common consent, acquire the form of law. It is true that such usages cannot control or alter the settled law. There could be no well founded objection to the testimony given in this caseras to the mode of effecting sales by sample the custom of brokers to take samples, and the offer of them for the inspection of their customers. As samples were never taken but by consent of the owners, the fact of their being taken was a circumstance supporting the proposition that the brokers in this case were authorized to make the sale. It is very immaterial in this case whether this testimony was strictly admissible or not in so far as it related to the authority of the brokers, and the usage to reject the bales which appeared to be damaged, because it is in proof'that an agreement existed that the bales externally injured should be rejected ; and the subsequent acts of the defendants below, acquiescing in the sale, delivering the cotton, and paying the brokerage, are abundant evidence of the authority of the brokers. To. the evidence of the recovery against the plaintiffs by the Dorchester factory, there was no exception.
I fully subscribe to the general doctrine, that in sales of personal property, the vendor is not liable for any defect in the article sold, without fraud or warranty. When the purchaser has an opportunity of examining the article which he purchases, the rule caveat emptor applies. There are exceptions, but they are not important in the decision of this case. If there is any thing settled in relation to mercantile law, it must be considered settled in this court, that a sale by sample is per se a warranty that the bulk shall correspond with the sample. This results from the principles already referred to, to wit, that the rule caveat emptor applies where the purchaser has an opportunity to examine the articles which he purchases. Cotton is sold by the bale. How can the purchaser examine the article ? only externally and superficially, and the interior only to a small extent. The instruments with which the samples are taken in general are from eight to twelve inches in length, and samples are in fact taken
The preceding remarks embrace all which I think necessary to say upon the first three grounds upon which a non-suit was asked.
The fourth point taken was, that there was no offer to return the cotton when the fraud was discovered. It is certainly a sufficient answer that the plaintiffs do not seek to recover the consideration or purchase money, but damages for the breach of the implied warranty. A purchaser is never bound to return an article unless the' stipulations of the contract require it, or unless he wishes to dissaffirm the contract, and recover back the money which he has paid. In this case, the plaintiffs ask no such thing; they seek to enforce the contract. The point was well taken so far as to prevent a recovery upon the common counts, had the plaintiffs claimed to recover the purchase money, but I do not understand the plaintiffs as making such a demand.
It was also contended that there was a variance between the declaration and proof, because the declaration did not state the cotton was to be paid for in 90 days. I do not consider the variance at all material; but if it was, it was no ground of nonsuit at the trial, being amendable. 2 R. S. 406, § 79.
The charge of the learned judge at the trial was also excepted to, but, in my judgment, without cause. He instructed the jury to find, as questions of fact, whether the sale was by sample ; whether the brokers had authority by original appointment or subsequent ratification; or whether the plaintiffs bought upon their own examination, without relying upon the samples: these were all questions of fact, proper for their decision. The charge was right, and all the previous decisions were right; consequently the judgment of the superior court should be affirmed.
Judgment affirmed.