9 Watts 55 | Pa. | 1839
The opinion of the court was delivered by
Gibson, C. J.
On no subject have the decisions been so anomalous, as on warranty of chattels; and an attempt to arrive at a satisfactory conclusion about any principle supposed to be settled by them, would be hopeless, if not absurd. Of such jarring materials have they been compounded, that it is impossible to extract from them any principle of general application; and we are left by them in the predicament of mariners compelled to correct their dead reckoning by an observation. The civil law maxim is, doubtless, that a sound article is warranted by a sound price; but the commou law courts started with the doctrine that though the sale of a chattel is followed by an implied warranty of title, and a right of action ex delicto for wilful misrepresentation of the quality; yet that the maxim caveat emptoj, disposes of all beside. Thus was the common law originally settled; and the current of decision ran smooth" and clear in the channel thus marked out for it, from the days of the year books, till within a few years past, when it suddenly became turbid and agitated; and, as in the case of promises conjured up to elude the statute of limitations, it finally ran wild. The judges, in pursuit of a phantom in the guise of a principle of impracticable policy and questionable morality, broke away from the common law, not, however, by adopting the civil law principle of implied warranty as to soundness, but by laying hold on the vendor’s commendation of his commodity, and not at first as absolutely constituting an express warranty, but as evidence of it. I say the policy of this principle is impracticable, because the operations of commerce are such as to require that the rules for its regulation admit of as few occasions for reclamation as possible; and I say its morality is questionable, because I am unable to discern any thing immoral in the bona fide sale of an article represented to be exactly that as which the vendor had purchased it. It is to be remembered that I am speaking of the sale of a
« It will be perceived that these remarks do not touch the case of Borrekins v. Bevan, 3 Rawle 23, in which it was held that an
The essential error of the present case, however, is that the judge put a legal interpretation on oral words, and made it matter of positive direction. In the British courts, revision on writ of error is unfrequent; and points like the present, are usually determined on motions for new trials, in which the judges review not only the law, but the evidence in relation to its capacity to sustain the verdict. Hence, they began imperceptibly to deal indiscriminately with matter of fact and matter of law as equally within their province, without troubling themselves with distinctions as to what more properly belongs to the jury. In our own state, where abstract principles áre settled by the court of the last resort on bills of exceptions, the functions of the judge and those of the jury, are more carefully separated and particularly defined. Now it is obvious that the sense of words used in conversation, and what the parties meant to express by them, is for the jury to determine, and not for the court. It is the conceded province of the court to expound the meaning of an instrument; but that it extends not to words uttered, of which there can be no tenor, is evident from the uniformity with which it is spoken of in reference to the interpretation of writings. The same thing is evident also from the nature of the judicial function, which is exercised only on facts supposed to be established. The terms of assent, where proof of the contract depends upon testimony, necessarily present a question of fact, while words embodied in an instrument readily admit of interpretation. Hence, it was said by Chief Justice Abbot, 2 Barn, and Cress. 634, “that where the whole matter passes in parol, all that passes may sometimes be taken together; but not always, because matters talked of at the commencement of a bargain, may be excluded by the language used at its termination: but if the contract be, in the end, reduced to writing, nothing which is not found in the writing, can be considered as a part of the writing.” The distinction is more pointedly indicated in the American cases. “The counsel of the plaintiff,” said Chief Justice Marshall in Levy v. Gadsby, 3 Cra. 186, “ has also contended that although the paper writing produced would, on the face of it, import a usurious contract, yet that the jury might possibly have inferred from it, certain. extrinsic facts which would have shown the contract not to have been within the act. But in this case, the question arises on a written instrument; and no question is more clearly settled than that the construction of written evidence is with the court.” The converse was asserted in Sidewell v. Evans, 1 Penns. Rep. 383, where it was ruled that a judge can not be required to give a legal construction to the words of a witness. That the construction of an oral agreement belongs to the jury, and that parol evidence connected with a writing draws the whole from the court, is so often repeated in our own reports, that I forbear to enumerate the
As the cause goes back to another jury, jt is proper to intimate the principle' on which a correct decision of it must depend. Though to constitute a warranty requires no particular form of words, the naked averment of a fact is neither a warranty itself, nor evidence of it. In connection with other circumstances, it certainly may be taken into consideration; but the jury must be satisfied from the whole, that the vendor actually, and not constructively, consented to be bound for the fiuth of his representation. Should he have used expressions fairly importing a willingness to be thus bound, it would furnish a reason to infer that he had intentionally induced the vendee to treat on that basis; but a naked affirmation is not to be dealt with as a warranty, merely because the vendee had gratuitously relied on it; for not to have exacted a direct engagement, had he desired to buy on the vendor’s judgment, must be accounted an instance of folly. Testing the vendor’s responsibility by these principles, justice will be done without driving him into the toils of an imaginary contract.
Judgment reversed, and a venire de novo awarded.