4 Cow. 440 | N.Y. Sup. Ct. | 1825
Curia, per
The questions are,
1. Did the defendants warrant the cotton, and if so, what was the warranty ?
2. Is the contract proved as laid ?
3. Was the commission properly rejected ?
There is no particular phraseology necessary to constitute a warranty. The assertion, or affirmation of the vendor, concerning the article sold, must be positive and unequivocal. It must be a representation which the vendee relies on, and which is understood by the parties as an absolute assertion, and not the expression of an opinion. (3 T. R. 57, 8. 19 John. 290.) Seixas v. Woods, (2 Caines, 48,) is a leading case on this subject. The law is there fully recognized that a sound price does not imply a warranty, and that, as to any latent defects in the article, the rule caveat emptor applies, unless there is a warranty. Nothing is there said, however, as to what expressions shall constitute a warranty. It appeared that the defendant was agent for a house in New Providence, from which he received the wood in question. It was invoiced as brazilletto ; he advertised it as such, sold it as such, described it as such in the bill of parcels, and the plaintiff’s agent selected it from other wood,
In the case under consideration, the sale was by sample, for, though the plaintiffs’ agent saw the bags in which the cotton was packed, yet he had no opportunity of inspecting the bulk of the commodity. He could only see the samples. In this respect, the present case differs from those of the blue guineas, the barilla and brazilletto. Every sale of packed cotton must be considered in the nature of a sale by sample, which amounts to a warranty that the whole bulk shall compare with the specimen exhibited. (2 Nott & M’Cord’s Rep. 540-1.)
From an examination of the cases, some of which I have stated, I am safe in laying down the rule, that in ordinary sales, when the vendee has an opportunity of examining the commodity, the vendor is not answerable for any latent defect, without fraud or an express warranty, or such a direct, affirmation, or representation, as is tantamount to a warranty, and not the expression of an opinion; but in cases of sales by sample, the vendor is held responsible that the quality of the bulk of the commodity shall be equal to the sample shown.
In the case of Gardner v. Gray, where a sample of waste silk was shown to enable the purchaser to form, a judgment of the commodity, but not as a warranty, Ed. Ellenborough held, that under such circumstances, the purchaser has a right to expect a saleable article, according to the description in the contract. He adds, “ without any particular warranty, there is an implied term in every such contract. Where there is no opportunity to inspect the commodity, the maxim caveat emptor does not apply.” It seems to me, therefore, that whether the production of the samples in this case he construed a warranty that the bulk is of the
This is the main point in the cause. I am of opinion there was no substantial variance between the contract as laid and proved ; and the deposition was properly rejected within Jackson v. Hobby, (20 John. Rep. 357.)
I am accordingly of opinion that the plaintiffs are entitled to judgment.
New trial denied.