71 Md. 110 | Md. | 1889
delivered the opinion of the Court.
The plaintiff's were dealers in benzine and petroleum, and the defendant was a manufacturer of fertilizers, and sometimes used benzine in the process of manufacture. This is an action to recover the contract price of a cargo of benzine sold and delivered to the defendant. According to the plaintiffs’ testimony, Mitchell, the defendant’s agent, came to the office of' the plaintiffs to buy a cargo of benzine, and said he wanted a very light benzine,
Mitchell on the other hand testifies he told the plaintiffs that the defendant could not use in his business benzine of less than sixty-eight degrees gravity, and that they agreed to warrant that the benzine should be at least sixty-eight degrees, and it was upon this warranty that it was bought; that a few days after its delivery the defendant found he could not use it in the manufacture of his fertilizers, that it was in fact worthless to him, and that the witness by the direction of the defendant took a sample of it back to the plaintiffs and told them that it did not come up to the guarantee; that it was of no use to the defendant, and requested the plaintiffs to take it away.
N ow upon this testimony, there are, it seems to us, but two questions, — 1st. Whether the benzine was -sold by the plaintiffs on a warranty that it should be of sixty-eight degrees gravity; — and 2ndly, if so, did the defendant offer to return it within a reasonable time after he found it was of an inferior quality?
The doctrine of implied warranty has not, it seems to us, any application to the facts in this case. "Where the buyer has an opportunity of examining the thing sold, there is no implied warranty, in the absence of fraud or express loarranty, that it shall be fit for the purpose for which it was bought. In such cases the rule caveat emptor applies, by which is meant, that unless the buyer sees fit to require a warranty, he takes upon himself the risk as to quality. Osgood vs. Lewis, 2 H. & G., 518; Hyatt vs. Boyle, 5 G. & J., 110; Rice vs. Forsyth, 41 Md., 389.
So, in this case, if the defendant had an opportunity of inspecting and testing the benzine before he used it, then, in the absence off fraud or express warranty, it was no defence to the action that it turned out to be inferior in quality to what he supposed it to be or what he wanted. There was. no error therefore in granting the plaintiffs’ second prayer. The special objection to this prayer on the ground that the question whether the plaintiffs warranted the benzine to be. of sixty-eight degrees gravity was a question of law, and ought not to have been submitted to the finding of the jury is not well taken.
The plaintiffs' first prayer is, it seems to us, free from objection. If they delivered to the defendant benzine of the character and quality represented by them at the time of making the sale, and that is the plain meaning of the prayer, they were entitled to recover the contract price, even though it proved to be unsuitable for the defendant's use. This is a familiar principle which lies at the bottom, of all sales of personal property.
Aror do we see how the defendant was in any manner prejudiced by the refusal of his second prayer. His first prayer, which was granted, covered the whole law of the case. In other words, if the plaintiff's guarantied the benzine to be sixty-eight- degrees, and it turned out to be but sixty-four degrees, and was therefore useless to the defendant, and that within a reasonable time after he discovered it to be of an inferior quality, he offered to return it. and the plaintiff's refused to accept it, then the plaintiff's were not entitled to recover. These facts, if found by the jury, amounted to a rescission of the contract, and if so, the prayer granted by the Court covered the entire defence set up by the defendant.
Judgment affirmed.