| Ind. | Dec 1, 1847
Debt upon a note for 29 dollars and 93 cents, made by Humphreys and payable to Comline or order sixty days after date. Plea, the general issue, and cause submitted to the Court for trial without the intervention of a jury. Finding and judgment for the plaintiff for the amount of the note, &c.
The evidence adduced upon the trial is contained in a bill of exceptions. It appears that the note was given for the price of two barrels of molasses, purchased by Humphreys of Comline, at 35 and 38 cents per gallon, which was the.market-price at that time. Humphreys was a grocer and .purchased the article to sell at retail. There was no inspection of the molasses at the time of the sale. The barrels were brought by Comline to the store of Humphreys, and looked as if they had not been opened since the molasses had been first put into them. Humphreys proposed to gauge the barrels to ascertain the number of gallons, and Comline agreed to take off two gallons from the marked quantity and waive the
It is contended on behalf of the plaintiff in error, that these facts show there was an express warranty accompanying the sale, that the molasses was good; or that if the representations of Comline did not amount to an express warranty, unfler all the circumstances attending the transaction, the law raises an implied warranty that the article was reasonably fit for the purpose for which it was purchased. ■
An oral affirmation of the quality of an article which the purchaser has an opportunity of examining, cannot be considered a warranty unless it is so intended at the time; and where there is no warranty in terms, if by the language used a warranty is intended that intention must be proved. House v. Fort, 4 Blackf. 293" court="Ind." date_filed="1837-05-30" href="https://app.midpage.ai/document/house-v-fort-7030039?utm_source=webapp" opinion_id="7030039">4 Blackf. 293. It is to be observed in reference to this point, that when there is any doubt whether statements, made at the time of entering into a contract, were intended to express an opinion or belief only, or as assertions upon which it was intended that the other party should rely as a warranty, the question thus raised properly belongs to the jury. Ibid. — Morrill v. Wallace, 9 N. Hamp. 111. — 8 Cow. 25" court="None" date_filed="1827-10-15" href="https://app.midpage.ai/document/duffee-v-mason-6139743?utm_source=webapp" opinion_id="6139743">8 Cow. 25. — 11 Wend. 417. As in this case then, the-members of the Court below, by the consent and request of the parties, performed the functions of a 'jury as well as those of the Court, this question must be considered as having been decided adversely to the plaintiff in error by the jury to which it
The counsel for the plaintiff in error base their argument that there was an implied warranty in this case, as we understand it, upon two grounds; 1st, that fraudulent representations, as to the quality of the molasses, were made by Comline at the time of the sale; 2dly, that independently of such representations, an implied warranty accompanies the sale of an article for a specific purpose that it is reasonably fit for that purpose.
A fraudulent representation or any fraudulent concealment by the seller, as to the quality of the goods sold, amounts to a warranty, in law. 2 Kent’s Comm. 478. One party must not practise any artifice to conceal defects, or make any representations for the purpose of throwing the buyer off his guard. Ibid. 482. But whether there was any such fraudulent representation or concealment in this case, was also a jury question; and there is the same reason for not disturbing the decision of the Circuit Court upon this point, as upon that relating to an express warranty. Though there is some evidence proper for consideration in a question of this kind, there is not enough clearly to establish the fact that the representations made by Comline at the time of the sale were fraudulent. It should have been shown that they were not only false, but known to have been so by him at the time they were made. 10 M. & W. 147. Considerable stress is laid upon the circumstance that he proposed to take off two gallons from the marked quantity, in order that the gauging might be waived. It is argued that therefrom the conclusion should be drawn that he knew the molasses to be b'ad, and that this was an artifice to prevent the barrels from being opened and the quality of
The case must rest then, in its present aspect, entirely on the last position assumed by the plaintiff in error, namely, that the law imports into a contract for the sale of molasses in barrels to a grocer for retail purposes, where there was no inspection of the quality though the barrels were present, an implied warranty that the molasses was fit for such purposes.
The civil law held the vendor of chattels responsible for all latent defects which rendered them unfit for the use for which they were purchased. A sound price was understood to warrant a sound article. Co. Litt. 102. — 2 Blacks. Comm. 451. But the rule of the common law is different. The latter, says Chancellor Kent, “very reasonably requires the purchaser to attend, when he makes his contract, to those qualities of the article he buys, which are supposed to be within the reach of his observation and judgment.” If he does not, the maxim caveat emptor applies, and he buys at his peril. 2 Kent’s Comm. 478. Several qualifications have been made, however, to the original rule of the common law, which was, that the only implied warranty, attending a sale of personal property for a fair price, was a warranty of the title of the vendor. Some of the cases both ‘in England and in this country, it must be conceded, approach so nearly to the rule of the civil law, that it is very difficult to reconcile them with that of the common law as^ it had been previously understood. In none of them, however, is there any professed intention to adopt the former rule in preference to the latter. They are all based upon some real or supposed necessity for the modification of the rule of the common law, to meet certain classes of cases having in them additional ingredients to those constituting a simple contract of sale. Thus it appears to be pretty well established, that a warranty that goods are of a merchantable quality will be implied,— 1st, when an examination of the goods js, from
Under the first head are instanced sales of goods at sea, or stored in' the hold of a ship, or in a storehouse, so that only the surface can be seen; or in bales, so'that an examination of the centre cannot be made without tearing the bales to pieces. Gardiner v. Gray, 4 Camp. 144. This rule is indefinite in its nature. One great difficulty in applying it to particular cases is, the ascertainment of what amounts to an impracticability of examination. In Gardiner v. Gray, Lord Ellenborough said a warranty would be implied when “ there was no opportunity to examine; ” and this qualification has been approved and adopted in most of the. later cases. Jones v. Bright, 5 Bing. 533. — Brown v. Edgington, 2 Man. & Grang. 279. — Chanter v. Hopkins, 4 M. & W. 399.
. In the class of cases included under the second head, the “ purpose ”■ which is supposed to raise the warranty has been the subject of much discussion. In Smith v. Marrable, 11 M. & W. 5, where the contract was for the letting of a furnished house, it was held there was an implied warranty that the house was reasonably fit for habitation. But in Sutton v. Temple, 12 M. & W. 52, where the defendant had contracted for the eatage or pasturage of a piece of land for seven months, and it was found that the pasture was unfit for cattle, owing to the effect of a poisonous substance which jiad been spread over the field, it was held there was no implied obligation on the part of the lessor, that the pasture was fit for the purpose for which it was taken. The learned judges’ endeavored to distinguish this case from that of Smith v. Marrable, by characterizing the latter as the case of a contract of a mixed nature for the letting of a house and furniture. It is by no means established by the cases in England or this country, that the sale of an article for a particular purpose, where the delivery accompanies the sale, always amounts to a warranty that it is fit for such purpose. Those in which it has been so held must rather be regarded as exceptions to a contrary rule. Lord Abinger, in giving his opinion in Sutton
It is said that in the sale of provisions for domestic use a’ warranty is implied that they' are sound and wholesome, on the ground that such a warranty is necessary for the preservation of health and life. But it has been denied that any thing can be inferred from the sale of provisions, which may not be inferred to a like purpose in other cases. Wright v. Hart, 18 Wend. 464, Senator Tracy's opinion. — Emerson v. Brigham, 10 Mass. 197" court="Mass." date_filed="1813-06-15" href="https://app.midpage.ai/document/emerson-v-brigham-6404044?utm_source=webapp" opinion_id="6404044">10 Mass. 197.— Winsor v. Lombard, 18 Pick. 57. In the two last cases the warranty is put upon the ground of the deceit; and it is said the only difference is, that in the case of provisions the fraud is more obvious, as when a butcher sells stale and unwholesome meat to his customers as fresh and sound, the artifice is proved by the fact itself, as his knowledge of the falsehood is to be presumed from the nature and duties of his trade or calling. Without deciding that point, however, or whether molasses and such like articles should be included under the term “ provisions,” if the rule, that by the sale of provisions without any fraud on the part of the vendor a warranty is implied, be well founded, we think this case does not come within such rule, inasmuch as the molasses in question was not sold for immediate domestic consumption, but as merchandize to a dealer to be sold again at retail. To say that, in such cases, all articles which may be used in the diet of the human family are subject to a rule of law, as regards their sale, different from that which prevails in relation to other merchandize, would be to establish a distinction which might prove extremely inconvenient and troublesome in commercial transactions, and one not warranted by any analogous decisions.
If, then, the present case is to be excepted from the operation of the rule caveat emptor, it must be for the reason that it should be classed among the cases included under the first head of exceptions above mentioned, in which a warranty is implied from the impracticability or difficulty of making an examination. Supposing we give this rule the most liberal
The judgment is affirmed with 1 per cent, damages and costs.