17 Wend. 267 | N.Y. Sup. Ct. | 1837
By the Court,
It is conceded by the counsel for the defendant in error that there was no express warranty, but he insists that there was an implied warranty that the flour was merchantable. He is doubtless right in another point which he makes, that there was an implied warranty of wholesomeness, especially if the jury might say, on the evidence, that the flour was intended for domestic use. But the judge did not put the case to them in that view.
There may be some doubt, as contended by the counsel for the plaintiffs in error, whether the charge can be considered as having [269] put the case on the ground that the warranty was of a merchantable quality; but admitting this to be so, I am not aware that a general sale of merchandise implies a warranty of any quality. Many cases on this point are collected by Chancellor Kent in his commentaries (2d vol. 478. 9, and note c. and 481, note c. 3d ed.) Some of the English cases cited by him in the first note, he thinks, if carried out in principle, would go far towards the adoption of the civil law rule, that a sound price implies a warranty; and several American cases, including that of Gallagher v. Waring (9 Wend. 20), are looked upon by him as showing a disposition to domesticate the
Upon the point of mere quality, our cases are equally uniform, and more strongly supported by other authorities, both in England and the United States. There is no implied warranty in a general sale that the quality shall be equal to the price paid (Snell v. Moses, 1 Johns. R. 96, 105), and [270] admitted in Defreeze v. Trumper (1 Johns. R. 275, and Sands v. Crump, 5 Johns. R. 395, 404). The principle was applied to a sale of Spanish brown and white lead in kegs for a fair price, which proved to be worthless by previous adulteration (Holden v. Dakin, 4 Johns. R. 421); to the sale of a wagon purchased on sight, for $50, affirmed by the vendor to be worth that sum, whereas in truth it was worth but 25 dollars (Davis v. Meeker, 5 Johns. R. 354); to stock in a turnpike company sold as being fully paid up, but on which the vendor was largely in arrear, both partiej mistaking the eifect of an entry in the company’s books, which credited pay meht in full (Cunningham v. Spier, 13 Johns. R. 392, 395); the sale of ? slave for a sound price, who was in the habit of stealing (Fleming v. Slocum, 18 Johns. R. 403); and of crockery for the price of first quality, whereas this, article turned out to be inferior (Thompson v. Ashton, 14 Johns. R. 316). Several of these cases, it will again be perceived are of manufactured articles; and in Thompson v. Ashton, this court refused to receive evidence that it was customary to sell crockery in close crates, without inspection, and on exhibition of the. invoice, with the understanding that such sales carried a warranty of the article being good and merchantable. The sale was in fact by invoice and on an assertion that the crockery conformed to it, and so far resemble Seixas v. Woods.
These cases have not been overruled, and their principles have not been seriously questioned anywhere. It has been doubted whether those which deny a warranty to be implied by description in a sale note, bill of parcels, &e., were not a wrong application of the common law rule (2 Kent’s Comm. 479, 3d ed,.); and they have been severely criticised and generally repudiated in our sister states, whose courts hold, with the English cases, that such a description is a warranty of kind and quality, as far as it goes (Yates v. Pym, 6 Taunt. 446; 2 Marsh, 141, S. C; Shepherd v. Kain, 5 Barn. & Ald. 240; Gardiner v. Grey, 4 Campb. 144, as explained 2 Pick, 219, 220; Bridge v. Wain, 1 Stark. R. 504; Rowe v. Oborne, 1 id. 140; Prosser v. Hooper, [271] 1 Moore, 106; Osgood v. Lewis, 2 Harr. & Gill, 495, 522 to 527; Hastings v. Lovering, 2 Pick. 214, 220; Borrekins v. Bevan, 3 Serg. & Rawle, 23; contra, see Jendwine v. Slade, 2 Esp. R. 572; Conner v. Henderson, 15 Mass. R. 319, and see Henderson v. Sevey, 2 Greenl. 139).
These cases may be easily extended in principle to everything said or
Either class of the New-York cases, those which relate to kind or quality, in their principle dispose of the one at bar. They are but illustrations of the rule nearly universal, that a warranty is not raised by a sound price •alone. There are certainly exceptions, but they all depend on peculiar circumstances. One is the sale of provisions to be used as food for mankind. This rests on a regard to the public health, Van Bracklin v. Fonda (12 Johns. R. 468); and I am not aware of any other case in this state wherein a warranty of quality is engrafted on a sound price alone. 1 have already noticed that the present case is not within that exception.
It is said that a much more comprehensive exception is to be found in the modern English cases. These are supposed to hold that a stipulation for the merchantable quality of the article sold is always implied, especially in the sale of manufactured articles. Such an import is imputed in 2 Kent’s Comm. 479, 80, note c.; and it can not be denied that Gardiner v. Gray (4 Campb. 144), cited in Kent’s Comm., goes that and even greater lengths, unless indeed it be put on the restricted ground of description in a written contract, as the marginal note seems to place it. There is nothing in the case itself so to confine it. The counsel for the defendant in error, I think, has with great propriety drawn our attention to this case. If I understand it Lord Ellenborough means to assert, that without any particular warranty, there is an implied term in every contract, that the article shall be saleable at a reasonable price under the denomination mentioned in the contract. . The case was simply a sale of waste silk. It was inferior in quality, and not saleable under that denomination. Still it was waste silk. True it was sent from some distance; it was described in a sale note; it was a manufactured article; but no particular restricted ground is taken. The case, for aught I see, goes over to the civil law in respect to personal property, as effectually as Hitchcock v. Giddings (4 Price, 135), has done in respect to real property (see 1 Dom. 84). There may be a moral beauty in the [273] Roman law, which commends it to our adoption. There is no doubt that it is a more complete protection against the secret frauds of the vendor;
It is not pretended that the case at bar is one of sale for a specific object. It was for a purpose altogether undefined, except by the nature of the article and its ordinary use; and I have therefore looked into the late English cases, merely to see how far they suslain the implied warranty of merchanta[274] blequality. They may be said to tend that way; but still if the words merchantable quality may restricted, as Chief Justice Best has put4 it, that the article must be fit for some purpose, it can not be considered a very serious departure from the old rule. If it be carried out to its ordinary-acceptation, I do not see but it would repeal the law, as it is to be collected from all the former cases. The case of Gallagher v. Waring (9 Wendell, 20), is relied on as going that length, and as fully justifying the charge in this case. The only point necessarily involved in that case was whether the well settled rule, that a sale by sample is a warranty, was applicable. Having concluded in the affirmative, the present chief justice proceeds incidentally to notice the question whether the cotton which lay in bales, not open for-inspection by the purchaser, was (the sample being out of question and the sale being general) impliedly warranted to be good merchantable cotton, free from damage, within the language of the second count of the declaration. He concludes that it was. Some of his illustrations are very strong, and, as Chancellor Kent thinks, indicate a decided leaning, like the British decision, to the civil law rule (2 Kent's Comm. 480, note, 3d ed). But it would be far out of the case, and indeed contradicting the scope of the opinion, to say that it goes beyond a sale where the article is not opened to the inspection of the vendee. In the case at bar, the barrels of Hour, for aught that appears, were-as easilyo pened as the kegs of Spanish brown or white lead in Holden v. Dakin, or the crockery crates in Thompson v. Ashton.
This doctrine, too, that an implied warranty arises from difficulty of inspection, seems to me to have been properly brought within vary narrow bounds by a recent and well considered case. Hyatt v. Boyle (5 Gill & John. 110). The sale was of 24 kegs of tobacco, branded with Parkins’s crooked brand, known to be a very fine one; but the tobacco proved to be rotten, and utterly unsaleable for ordinary use. The vendor knew it was intended for
A contract to deliver goods generally of a certain description, is another matter. There the contract is executory, and the vendee may take his ground on a defective article being tendered. He has doubtless a right to insist that it shall be merchantable; and if it prove not to be so, after he shall have taken reasonable time to inspect it, he may return it (2 Kent’s Comm. 479, 3d ed. Per Nelson, J., in Gallagher v. Waring (9 Wendell, 28). These authorities are cited by the counsel for the defendant in error; but it should be remembered that the case in question is one where the sale was executed. The rule is altogether different in the two eases, both as to real and personal estate. In neither can a specific execution be insisted on, even where there is a more mistake; but after the contract is once executed, the law will not, in general, raise an implied warranty of quality as to the latter, nor of title or quality as to the former.
On the whole, I am satisfied that the court below erred in the directions which it gave to the jury. The judgment must therefore be reversed, and a venire de novo must issue.
Judgment accordingly.
The judgment of the supreme court in this case was affirmed in the Court for the Correction of Errors, at its session in December, 1837, by a vote of 15 to 9,