21 F. 433 | U.S. Circuit Court for the District of Western North Carolina | 1884
(charging jury.) This is an important case to the parties on account of the amount of money involved. It is an interesting one to the persons who have iieard the trial, as the evidence and the
The plaintiff alleges that he has sustained damages by reason of a deceit on the part of the defendants, in that the tobacco was “frostbitten,” and assurances were made to the contrary before the sale; that inferior grades of tobacco were designedly placed in the upper part of the barns, where they could not be easily seen, and fraudulent representations as to quality were made, well calculated to deceive. Deceit in business transactions consists in fraudulent representations or contrivances by which one man deceives another who has a right to rely upon representations, or has no means of detecting such fraud. Fraudulent representations in the sale of goods will not of themselves always constitute deceit which will be the subject of an action for damages. In cases like this, where parties deal with each other on a footing of equality, there must be some existing ■circumstances, or some means used, calculated to prevent the detection of falsehood or fraud, and impose upon a purchaser of ordinary prudence and circumspection. If a purchaser has full opportunity of examining the goods, and can easily and readily ascertain their quality and value by inspection, and he neglects to do so, then any injury which he may sustain by such negligence is the result of his own folly, and he can have no relief at law. The evidence on both sides shows that the plaintiff visited the barns before the sale, saw the tobacco, and, with some little inconvenience, could have made full examination, and no obstructions were placed in his way, and no objections were made by the agent of the defendant. A written contract was afterwards entered into by the parties, the terms of which had no reference to the representations made as to the quality or condition of the tobacco in previous negotiations. I am of opinion that this cause of action for deceit cannot be sustained, and the issue upon that subject is withdrawn from your further consideration.
The plaintiff further says that, when he visited the barns, he found the tobacco in three barns so much crowded and in such dry condition that he could not make an examination without serious injury to the commodity. He carefully inspected the tobacco on the lower tiers ■of the barns, and was assured by the agent that it fairly represented the quality of the whole crop, and trusting to such assurances he made no request for further examination. Under these circumstances, the plaintiff insists that the subsequent sale may be regarded
As I am of opinion, from the evidence on both sides, that none of the elements of an implied warranty arise in this case, I will withdraw this issue from your further consideration. It is therefore unnecessary for me to consider the question presented in. the argument
The only issue submitted for your determination is whether there was a breach of the" express warranty contained in the written contract between the parties as to the “sound order” of the tobacco at the time of delivery at Saltville, and, if there was such breach, what are the damages which the plaintiff is entitled to recover ? The counsel of plaintiff, in the concluding argument, insists that the counsel of defendant, who preceded him, admitted, that there was such a breach. I did not so understand the defendant’s counsel. He only expressed an opinion as to the weight of evidence. That evidence you must weigh and consider for yourselves in determining the rights of parties. It is admitted that the tobacco was delivered in a reasonable -time at Saltville to the railroad agent, and was duly shipped, and reached its destination at Winston in eight or ten days. There is no evidence as to the state of the weather during the transportation, or in what manner the tobacco was carried by the railroad company,— whether upon open platform or in closed box ears. There is some evidence tending to show that the hogsheads containing the tobacco exhibited no marks or appearances of injury by exposure to the weather. There ÍS' no warranty in the written contract as to the quality of the tobacco, and if the defendant delivered the tobacco as it was when purchased, and delivered it in sound order, then he complied with his agreement. If more of the tobacco was of an inferior quality than was expected by the plaintiff, and some of it was “frostbitten,” that would not constitute a breach of warranty, as that condition of things existed before the sale, and the plaintiff might have discovered such defects by careful examination.
The written contract of sale contains an express warranty as to the condition in which the tobacco was to be packed in hogsheads .at the time of delivery at Saltville. It was to be in “sound order;” and we will now proceed to construe the meaning of that term as used by the parties. It is a fundamental rule that in the construction of contracts the courts may look not only at the language em- « ployed, but to .the subject-matter and the surrounding circumstances,
The witnesses of the defendant, who were engaged in the purchasing and delivery of the tobacco, states directly and positively that it was purchased and delivered in good, sound keeping order at Saltville, in accordance with the instructions of the plaintiff. The witnesses of the plaintiff did not see the tobacco when it was purchased and delivered, but they profess to bo experts in the packing, shipping, and manufacturing of such articles, and have acquired their information and skill by long and large experience. They saw the tobacco soon after it reached Winston, and say positively that its damaged condition at that time was produced by negligence, ignorance, or a want of skill in packing in the hogsheads. You have before you the direct and positive testimony of the defendant’s witnesses, and the well-considered opinions of the plaintiff’s witnesses, founded upon knowledge acquired by.long experience. You will therefore carefully weigh the direct testimony offered by the defendant, and the strong presumptive evidence presented by the plaintiff, and decide as to which preponderates in the scale of inquiry.
The evidence shows that there were two shipments of the tobacco : one on the seventh of April, 1882; the other on the twentieth of May, 1882. The contract price of the tobacco was 24 cents per pound, to be paid on delivery ad Saltville. The price was not paid on delivery, but the defendants, by shipping before payment, waived this failure of compliance with the contract. The price of the first payment was paid by plaintiff before the tobacco arrived in Winston. There is no
The instructions which I have given you include the rights of the defendant as presented in his counter-claim. If the tobacco was in sound condition at the time of delivery at Saltville, he is entitled to
Verdict for plaintiff.
§ 1. Warranty Defined—Express and Implied. “A warranty,” said Lord Abinger, 0. B., in Chanter v. Hopkins,
Implied warranties may be divided for convenience into the following:
I. The implied warranty of identity or genuineness.
II. The implied warranty on a sale of goods by description that the article is merchantable.
III. The implied warranty on a sale by sample that the goods correspond to the sample.
IV. The implied warranty that the goods shall bo fit for the buyer’s purpose.
V. The implied warranty of title.
VI. The implied warranty from custom.
§ 2. Existence of Article not a Warranty, btjt an Essential Element of the Contract. That the article sold actually exists is not an implied warranty, but is an essential element of the sale itself, without which Diereis no contract between the parties at all. Thus, in Terry v. Bissell,
§ 3. Identity of Goods—Not a 'Warranty. The same is true of the matter of the identity of the goods. “If a man,” said Lord Abin&er in Chanter v. Hopkins,
§ 4. The General Rule on a Sale is Caveat Ejiptor. Centuries ago, Pitzherbert
§ 5. Warranty on Sale of Goods by Description that They are Merchantable—The Principle Stated. “If a man sells an article,” says Dest, G. J., in Jones y. Bright,
“Under such circumstances,” said Lord Ellenborottgkei'in Gardiner v. Gray,
In McClung v. Kelly
In Gaylord Manuf'g Co. v. Allen
In Edwards v. Huthaway,
In Rodgers v. Niles,
§ 6. Same—The Oases Reviewed. There was a contract for the sale-of 12 bales of waste silk imported from the continent into England. Before it was landed, samples were shown to the plaintiff’s agent, and the bargain was then made, but without reference to the samples. It was purchased in London and sent to Manchester, and on its arrival there was found to be of a quality not salable under the denomination of “waste silk.” It was held that there was an implied warranty that the article was salable, and the plaintiff had a verdict.
A firm of Liverpool merchants agreed to buy from the defendant, a London merchant, a quantity of Manilla hemp, to arrive from Singapore by certain ships. The ships arrived, and the hemp was delivered to the plaintiffs- and paid for, but on examination of the bales it was found that they had been wetted through with salt water, and afterwards unpacked and dried, and then repacked and shipped at Singapore. The hemp was not damaged to such an extent as to lose its character of hemp, but it was not merchantable. The defendant did not know of the state in which the hemp had been shipped at-Singapore. The Liverpool merchants sold the hemp at auction as “Manilla hemp, with all faults,” and it realized 75 per cent, of the price which similar hemp would have brought if undamaged. In an action by the Liverpool merchants it was held that there was an implied warranty on the part of the defendant to supply Manilla hemp of the particular quality of which the bales consisted, in a merchantable condition; and that the plaintiffs were entitled as damages to the difference between what the hemp was worth when it arrived, and wjiat the same hemp would have realized had it been shipped in a state in which it had ought to have been shipped.
E. was the proprietor of a coal mine in the country, and his agent sold to H„ 55 tons of coal to be taken from E.’s mine. The coal arrived, but was found to be composed to a considerable extent of slate and stone. It was held that there was an implied warranty on the part of the seller that the coal should be good merchantable coal.
A contract was for “Calcutta linseed.” Jervis, C. J., told the jury that the question for them to consider was “ whether there was such an admixture of foreign substances in it as to alter the distinctive character of the article, and prevent it from answering the description of it in the contract. ” Cress-well, J., said “they were to say whether the article delivered reasonably
In another case the contract was for “foreign refined rape oil, warranted equal to samples. ” The oil offered was equal to samples, but both the samples and the oil offered were adulterated. Parke, 13., told the jury that “the statement in the sold note as to the samples related to the quality only of the article, and that, according to the contract, the defendant was entitled to have rape oil delivered to him.” Platt, 13., on appeal, said: “I understand that the oil to be delivered was to be equal to the samples in quality. But the defendant did not refuse to accept the oil tendered to him on the ground that it did not equal the samples, but on account of its not being foreign refined rape oil at all. And the learned judge told the jury that if they should think that was so, the defendant was not bound to accept it. That direction was perfectly correct. If the jury had found that the article which the plaintiff tendered was known in the market under the name and description of foreign refined rape oil, the plaintiff would have been entitled to succeed; but the question was put to the jury, and they were of the opinion that it was not known as such.” And Parke, 13., added; “The evidence went to show that the oil offered did not answer the description of the article sold.”
In another case'the article sold was “oxalic acid.” Erle, C. J., told the jury that “the defendant could only fulfill his part'of the contract by delivering that which in commercial language might properly be said to come under the denomination of oxalic acid; and that, if they should be of opinion that the article delivered by the defendant as oxalic acid-, did not properly fulfill that description, they should find for the plaintiff.”
In another case the plaintiffs ordered of the defendants, who were saddle manufacturers in another city, 50 saddles, to be delivered at a wharf in London, to be shipped to Prince Edward’s island. The saddles were sent and shipped without the plaintiffs having an opportunity to see them. Upon their arrival at Prince Edward’s island, they were found to be very inferior saddles and quite unsalable without being restui'fed and relined. It was hold that there was an implied undertaking that the saddles were merchantable, and the plaintiffs had a verdict.
§ 7. Warranty on Sale of Goods for Specified Purpose—The Principle Stated. “If a man,” said Best, C. J., in Jones v. Bright,
In Gray v. Cox,
In Brown v Edgington,
In Randall v. Newson,
In Gerst v. Jones,
In another case the plaintiffs had agreed to carry certain troops from England to Bombay for the East India Company, and the defendants entered into a contract with the plaintiffs to supply them with provisions, (troop stores,) “guarantied to pass survey of the East India officers.” It was held that this express warranty did not exclude tho implied warranty that the stores should be lit for the purpose for which they were intended; and that, the provisions being unsound and unwholesome, the defendants were liable. “Where a buyer,” said Cookbüen, J., “buys a- specific article, the maxim caveat empior applies; but where the buyer orders goods to be supplied, and trusts to the judgment of the seller to select goods which shall be applicable to the purpose for which they are ordered, there is an implied warranty that they shall be reasonably fit for that purpose; and I see no reason why the same warranty should not be comprehended in a contract for the sale of provisions.”
In a NTew York case the plaintiffs were manufacturers of steel in Pennsylvania; tho defendants, who were known as the “Morris Ax & Tool Company,” were manufacturers of axes in New York. The plaintiffs sold to the defendants 10 tons of steel. It was held that there was an implied warranty that the steel was of the kind fit for axes, and that the defendant’s name was notice to the sellers of the use to which the steel was to bo applied. Said Mullen, P. J.: “If a thing be ordered of the manufacturer,for a special purpose, and it be supplied and sold for that purpose, there is an implied warranty that it is fit for that purpose. The plaintiffs were manufacturers, and tho defendants ordered the steel for the purpose of being made into axes.”
The plaintiff bought a quantity of hay of the defendant in his barn, but did not examine it, saying that he could not tell by that, but he wanted hay for his oxen during spring and summer. The defendant replied that it was good hay, cut round the barn. When the plaintiff came to receive the hay he,found it worthless, and not such liay as grew around the barn. It was held that he could recover on the implied warranty. “The hay,” said the court,, “was bought for a particular use, and the defendant knew plaintiff would not buy an inferior article. The sale of the hay, then, for this particular use, ordinarily implies a certainty that it is lit for this use.”
Jones & Co. were manufacturers of tobacco, and Gerst was a manufacturer of tobacco boxes. It is well known in the trade that boxes for packing tobacco in must be made of dry and seasoned wood, otherwise the tobacco will mould and become damaged. Gerst agreed to furnish Jones & Co. during the season of 1876 as many boxes as the latter would use in their business at a certain price, and under this agreement did supply a great many, into which Jones & Co. packed their tobacco and shipped it. But much of this moulded in consequence of the boxes being made of green timber. It was held that Gerst was liable on an implied warranty that the boxes should be fit for the purpose of packing tobacco. “The defendant,” said the court, “in undertaking to furnish the boxes impliedly agreed that they should be reasonably fit for that purpose. Had the plaintiffs gone to the defendant’s factory and themselves selected certain boxes such as they believed would answer their purposes, it is very clear the defendant would not be liable, however worthless the boxes might be, because- the plaintiffs in that case must have relied on their own skill and judgment exclusively. But the plaintiffs made no selection ; they left that to the defendant; they relied upon his skill and j udgment as a-manufacturer to furnish an article suited to the business in which they were engaged. * * * It is no answer to say that here the defendant was ignorant of the defect in the boxes, and that he used every proper precaution to guard against it. Heither the ignorance of the seller nor the exercise of care and diligence on his part can exempt him from liability, where there is a warranty, whether it be express or implied.”
So, where a contract was to “furnish a steam-boiler suitable to the engine, ” it was held that there was a warranty that it was suitable for the purpose named.
§ 9. Same—Ho Warranty of Known and Defined Article. The eases just cited are to be distinguished from those in which a known, described, and defined article is ordered, and the purchaser gets what he has ordered. Here there is no warranty that the goods will answer the particular purpose for
In Ollivant v. Bayley
In Port Carbon Iron Co. v. Groves
In another case the defendant sold the plaintiff 150 barrels of an article manufactured by him, called “Chappell’s Fertilizer,” to be used on his land. The stuff turned out to be of little use for fertilizing purposes, nevertheless it was held that no action would lie,—there was no warranty, because it was the sale of a specific, ascertained, and defined article. “If the plaintiff,” said the court, “relying on the defendant’s skill and judgment, had applied to him to furnish a manure which would produce the effect attributed to Chappell’s ' fertilizer, without specifying what particular kind of manure he wanted, and the defendant had accordingly furnished an article which proved to be entirely worthless, there would be good ground for imputing an implied warranty.”
'§ 10. Same—Rule the Same Whether, Vendor be Manufacturer or Not. In Brown v. Bdgington
§ 11. Vendor’s Skill not Relied on—No Warranty. In the case of an implied warranty that an article is fit for the purpose for which it is intended, it is generally required, in order to raise such implied warranty, that the vendor’s skill should be relied on by the purchaser. Therefore, the converse of this rule has been established, viz.: that when the skill of the vendor is not relied upon by the vendee, there is no implied warranty of fitness. Bounce v. Bow
g 12. W ARRANTY BY MANUFACTURER THAT ARTICLE IS FREE FROM LATENT Defect. It has been held in Yew York that the implied warranty that a manufactured article sold by tho manufacturer is free from any latent defect is restricted to such defects as grow out of the process of manufacture, and do not extend to defects in the materials employed.
§ 13. Implied Warranty on Sale of Provisions—The English Rule. ■Whether on tho sale of provisions there is an implied warranty that the articles are fit for food, is a question upon which there is much difference of opinion, and on which the authorities are far from being harmonious. Blackstone says that it is a sound and elementary principle that in a contract for the sale of provisions it is implied that they are wholesome, and if they bo not, an action on tlio case for deceit lies against tlio vendor.
In Burnby v. Bollett
§ 14. Same—The Rule in tiie United States. The weight of authority in'the United States seems to establish a rule similar to that of the English courts. A qualification, however, not made in the older country finds support in several of the states. In the early case of Bailey v. Nichols,
“How there are eases in which a representation willfully false is to be presumed from the circumstances of the transaction and of the parties, when it is not required to be otherwise or directly proved. In this way, perhaps, what was cited from Blackstone’s Commentaries, and relied on for the plaintiff in the argument of the case at bar, may be reconciled with the general doctrine as I have stated it; and so, likewise, many decisions which seem at first sight to indicate another rule, will be found within the general doctrine exemplified by Justice Popham; at least, in the intended application of it. Justice Blaok*451 stone (3 Bl. Comm. 164, 165) has classed the cases of deceit and breaches of express warranties in contracts for sales under the head of implied contracts. lie says it is constantly understood that the seller undertakes that the commodity he sells is his own, and in contracts for provisions it is always implied that they are wholesome; and in a sale with warranty the law annexes a tacit contract that if the article be not as warranted, compensation shall be marie to the buyer; and if the vendor knows his goods to be nnsonnd, and hath used any art to disguise them, or if they be in any shape different from what he represents them to be to the buyer, this artifice shall be equivalent to an express warranty, and the vendor is answerable for their goodness. It is obvious that in this very general classification, the details and examples are imperfectly introduced, and with some inaccuracy. It is not implied in every sale of provisions that they are wholesome, any more than it is in sales of other articles, where proof of a distinct affirmation seams, in J ustice Blackstone’s opinion, to be requisite. The contrary may he, and often is, understood between the parties; and it is only when the false representation to be proved in the one case may he presumed or taken to be proved in the other, that the rule of law applies, and the remedy, as in a case of deceit, is allowed. An artifice must be proved to entitle the suffering party to the remedy, equivalent to a remedy upon an express warranty, as well in the case of provisions as in any other case. The difference is that in the case of provisions the artifice is proved when a vietualer sells moat as fresh to his customers at a sound price, which, at the time, was stale and defective, or unwholesome from the state in which the animal died. .For, in the nature of the bargain, the very offer to sell is a representation or affirmation of the soundness of the article, when nothing to the contrary is expressly stated; and his knowledge of the falsehood in this representation is also to be presumed from the nature and duties of his calling and trade. But cases may bo supposed where, tills presumption being repelled by contrary evidence, the seller would not be liable; as whore a different representation is made, and this is proved directly, or is necessarily to be presumed from the nature of the article, the state of the market, or other circumstances. Indeed, there is nothing to bo inferred in a sale of provisions which may not bo inferred to a like purpose in other cases, when the calling or profession of the seller, the soundness of the price, and the nature of the article sold have been made the grounds of decision. There is an especial and invariable presumption as to the property of the vendor when the article sold was in his possession; and hence the distinction when the article is not in his possession. And upon the whole it will be found, 1 believe, in every instance that the action as for a deceit has been maintained in those cases only where an affirmation or representation willfully false, or some artifice, has been proved, or has been taken to be proved, either directly or because it was necessarily to be presumed from the circumstances and nature of the bargain, and the situation of the parties.
“ It is admited in the case at bar that in a bargain between these parties there was no direct affirmation of the soundness of the article. Perhaps, however, a representation to this effect is necessarily to be implied from the nature of the bargain, it being in ilie common course of dealing, and for a .sound price, and for an article which, to he of any value, must he understood to be sound. This much, at least, maybe safely presumed as the understanding between these parties: that as to the kind, the quality, the state, and quantity of the meat contained in the barrels sold by the one and purchased by the other as barrels of merchantable beef, the seller undertook to have full faith in the brand of the deputy inspector, a public officer employed and intrusted to ascertain these facts. The seller must be understood to represent that, for aught ho had known to the contrary, the brand appearing on the barrels had been truthfully and faithfully applied, and that no alteration or change of the article liad happened within liis, knowledge. Kow, is there any*452 evidence or any circumstance in this transaction from which it may be inferred that in affirmation to this effect the sellers would have been willfully false, or that, in an express representation, such as I have supposed to be implied in this ease, they would have been guilty of an artifice? They would have been chargeable to that extent, if at the time of the sale they had any knowledge of the bad state of the barrels, such as it proved to be, or had any special reason to suspect that the beef in them had not been properly cured, was without sufficient salt, was already in a putrid state, or becoming putrid, or, in short, if they then knew, or actually suspected, that in this instance the inspector had been false, ignorant, or depraved. With evidence to that effect this case would be within the rule, and the plaintiffs entitled to this remedy for the deception which they had undoubtedy suffered, and from which a loss and damage had ensued. But on this point the evidence fails. Indeed, it is admitted that the defendants had no knowledge at the time of the sale of the unsuitable quality and state of the beef, or of the barrels containing it, or that it had not been packed as the law requires. In this state of the evidence and of the case, the result is in favor of the defendants. Against them the plaintiffs have no remedy for the loss and damage sustained by a deception which has not 'happened or been effected by any false representation or artifice chargeable to the defendants; and they took upon them no extraordinary risk in this particular by any warranty accompanying the sale.”1
In Moses v. Mead,
, In Humphreys v. Comline
§ lo. Same—Salió Dxbeot to Constjmeb. The qualification noted above as being found in some of the American decisions, relates to tho case of an article of food sold to a consumer for immediate use, as distinguished from the sale by a manufacturer or raiser to a dealer, or by a dealer to another dealer.
Thus, in Bracklin v. Fonda,
In Howard v. Emerson,
In Hoover v. Peters,
In McNaughton v. Joy,
§ 16. Sale of Goods by Sample—The General Bule. It is laid down in a large number of cases, and may be considered as well-settled law, that on the sale of goods by sample there is an implied warranty that the goods sold shall be equal in quality as well as of the same kind as the sample produced.
§ 17. Same—No Warranty of Merchantability. On a sale by sample, however, there is no implied warranty of merchantability, “for the seller, by exhibiting the sample and impliedly agreeing to bind himself that the bulk of the goods sold shall be equal to the sample, is thus supposed to relieve himself from all other liability in the matter, and therefore to exclude from the contract the implied stipulation of merchantability, on the principle of expression facit cessare taciturn.”
§ 18. Exception—Where Sample does not Show Quality. An exception to the foregoing rule exists where the quality cannot be judged of from the sample. A firm of manufacturers of shirting contracted to supply the plaintiff with a quantity of gray shirting according to sample, each piece to weigh seven pounds. The goods were delivered, and were of the right weight, but it was afterwards found that the weight was made up by introducing into the fabric a percentage of clay which made the goods unmerchantable.
§ 19. .Exhibition of Samples hoes not JRendee Sale One by Sample. And it is hold that a mere production of a sample does not make the transaction a sale by sample, so as to raise an implied warranty that the goods in bulk are equal in all respects to the sample exhibited.
In Barnard v. Kellogg,
In Beirne v. Dodd
§ 20. Implied Warranty of Title—The Rule in England. “It is yery remarkable,” said Parke, B., in Morley v. Attenborough,
. Morley v. Attenborough was the case of the sale of an unredeemed pledge by a pawnbroker, and it was held that there was no implied warranty of title. A few years later the case Of Eicholz v. Bannister
It will thus be seen that the law in England on this subject is not very clear.
. But Mr. Benjamin,in his work on Sales,
§21. Implied Warranty ok Title — The American Bulk. In tho United States there is no such confusion or uncertainty in the decisions; hut the implied warranty of title is well established. “It may now be regarded as well settled,” says Sitarsyvood, J., “that a person selling as his own personal property of which ho is in possession, warrants the title to the thing sold; and that if, by reason of a defect of title, nothing passes, the purchaser may recover hack Ms money, though there he no fraud or warranty on the part of the vendor.”
§ 22. jNecessary Depreciation—jSTo Implied Warranty. There is no implied warranty against a necessary and likely depreciation which may take place in the quality of the goods between the time of the sale and the delivery into the hands of the purchaser. Thus, when ale was sold in Chicago to a party in Montana, it was held that there was no warranty that it would bear transportation to Montana.
§ 23. Warranty Implied from Custom of Trade. In tho early English case of Jones v. Bowden,
In several eases in the courts of the United States, usage has been held sufficient to supply a warranty which otherwise would not have been implied.
St. Louis, Mo.
4 Mees. & W. 404.
Poth. Cout. 4.
2 Esp. 639.
Ante.
Supra.
Nat. Br. 213.
Jones v. Just, L. R. 3 Q. B. 202; Chandelor v. Lofus, Cro. Jac. 4; Parkinson v. Lee, 2 East, 314; Springwell v. Allen, Aleya, 91; Hopkins v. Tanqueray, 15 C. B. 130; Hall v. Condor, 2 C. B. (N. S.) 22; Ormrod v. Huth, 14 Mees. & W. 664; Burnbey v. Bollett, 16 Mees. & W. 664; Mixer v. Coburn, 11 Metc. 559; Windsor v. Lombard, 18 Pick. 60; Barnard v. Kel
Holden v. Dakin, 4 Johns. 421.
Thompson v. Ashton, 14 Johns. 316.
Hart v. Wright, 17 Wend. 267.
Salisbury v. Stainer, 19 Wend. 159.
Hyatt v. Boyle, 5 Gill & J. 110.
Humphreys v. Comline, 8 Blackf. 516.
5 Bing. 544.
4 Camp. 144.
21 Iowa, 509.
53 N. Y. 518.
1 Phila. 547.
11 Ohio St. 55.
Gardiner v. Grey, 4 Camp. 144.
Jones v. Just, L. R. 3 Q. R. 197.
Edwards v. Hathaway, 1 Phila. 547; and see Spurr v. Albert Mining Co. 2 Hannay, (N. B.) 361.
Wielei v. Schilizzi, 17 C. B. 619.
Nichol v. Godts, 10 Esp. 191.
Laing v. Fidgeon, 4 Camp. 169.
5 Bing. 533.
4 Barn. & C. 108.
2 Maule & S. 279.
L. R. 2 Q. B. Div. 102.
32 Grat. 521.
Randall v. Nouson, L. R. 2 Q. B. Div. 102.
Bigge v. Parkinson, 7 Hurl. & N. 955.
46 L. J. C. P. 677.
Park v. Morris Axe Co. 4 Lans. 103.
Murray v. Smith, 4 Daly, 277.
Beals v. Olmstead, 24 Vt. 114; and see French v. Vining, 102 Mass. 132.
Gerst v. Jones, 32 Grat. 524.
Street v. Chapman, 29 Ind. 142; and see Wilson v. Dunville, L. R. 4 Ir. Rep. 219; Robertson v. Amazon Tug Co. L. R. 7 Q. B. Div. 598; Smith v. Baker, 40 L. J. (N. S.) 261; Macfarlane v. Taylor, L. R. 1 Sc. App. 245; Snelgrove v. Bruce, 16 U. C. C. P. 561; Baker v. Lyman, 38 U. C. Q. B. 498; Bigelow v. Boxall, 38 U. C. Q. B. 452; Howard v. Hoey, 23 Wend. 350 ; Van Wycke v. Allen, 69 N. Y. 61; White v. Miller, 71 N. Y. 118; Hanger v. Evans, 38 Ark. 334; Wolcott v. Mount, 38 N. J. Law, 496; Taylor v. Cole, 111 Mass. 363; Merrill v. Nightingale, 39 Wis. 247; Robson v. Miller, 12 S. C. 586; Gerst v. Jones, 32 Grat. 518; Gammell v. Gunby, 52 Ga. 504; Wilcox v. Owens, 64 Ga. 601.
4 Mees. & W. 399.
5 Q. B. 288.
68 Pa. St. 149.
Mason v. Chappell, 15 Grat. 572.
Davis v. Murphy, 14 Ind. 150; and see Shepherd v. Pybus, 4 Scott, N. R. 449.
2 Scott, N. R. 496.
And see Bigge v. Parkinson, 7 H. & N. 955.
6 Thomp. & C. 653; 64 N. Y. 411.
Emmerton v. Matthews, 7 Hurl. & N. 586; Palmer's Appeal, 96 Pa. St. 106; Matthews v. Hanson, 3 Pittsb. 86; Robertson v. Amazon Tug Co. L. R. 7 Q. B. Div. 598.
Hoe v. Sanborn, 21 N. Y. 552.
11 Ohio St. 48.
Hoe v. Sanborn was distinguished from this case on the ground that the latter was an executed sale, while tho former was ail executory contract.
3 Bl. Com. 166. This view is criticised by Benjamin in his work on Sales, (p. 875,) and defended by Chitty in his work oil Contracts, (p. 419.)
16 Mees. & W. 644.
Cro. Jac. 196.
7 Hurl. & N. 680.
40 Law T. (N. S.) 261.
2 Root, 407.
In Dean v. Mason, 4 Conn. 428, (1822.) In this case it was said: “ The implied warranty contended for is founded on the presumed fact that an adequate price was given for the skins, admitting them to be good, and on (¡he inference that this amounts to a warranty of the articles sold as being sound and merchantable. * ® * The notion that a high or sound price is tantamount to a warranty has been long exploded. In Parkinson v. Lee, 2 East, 314, it was adjudged that no warranty was implied from the fullness of the consideration ; and that if the seller sells the thing as he believes it to be, without fraud, the law will not imply that he sold it on any other terms than those expressed. And it is an established rule that in order to enable a vendee to maintain an action against the vendor, there must be either fraud or an express warranty. Holden v. Dakin, 4 Johns. 421; Sands v. Taylor, 5 Johns. 395; Thompson v. Ashton, 14 Johns. 316; Chapman v. Murch, 19 Johns. 290; Sweet v. Colgate, 20 Johns. 196. The vexations and expensive litigation which might often ¿irise on the doctrine of a warranty implied from the soundness of the price are prevented by the adoption of a certain rule which can never operate unjustly, as by the buyer an express warranty may always be demanded.”
And see Hart v. Wright, 17 Wend. 367; Winsor y. Lombard, 18 Pick. 61; Howard Y. Emerson, 10 Mass. 320; Goad y. Johnson, 21 Minn. 70; Goldrich v. Ityan, 3 E, JD. Smith; 324.
Emerson v. Brigham, 10 Mass. 197.
17 Wend. 267; 18 Wend. 449.
Wright v. Hart, 18 Wend. 464; Emerson v. Brigham, 10 Mass. 197; Winsor v. Lombard, 18 Pick. 57.
But see, apparently contra, Osgood v. Lewis, 2 Har. & G. (Md.) 495; Burch v. Spencer, 22 N. Y. S. C. 504.
12 Johns. 268.
10 Mass. 320.
Wkly. Notes Cas. 470.
Ryder v. Neitge, 6 Heisk. 340; Hyland v. Sherman, 2 E. D. Smith, 234; Humphreys v. Comline, 8 Blackf. 516; Benj. Sales, 665.
Parkinson v. Lee, 2 East, 314; Parker v. Palmer. 4 Barn. & Ald. 387; Barnard v. Kellogg, 10 Wall. 383; Leonard v. Fowler, 44 N. Y. 289; Hargous v. Stone, 1 Seld. 73; Bradford v. Manly, 13 Mass. 139 ; Graff v. Foster, 67 Mo. 512; Gunther v. Atwell, 10 Md. 157; Gill v. Kaufman, 16 Kan. 571; Hubbard v. George, 49 Ill. 575; Merriman v. Chapman, 32 Conn. 146; Brantley v. Thomas, 22 Tex. 271; Boothvy v. Plaisted, 51 N. H. 436; Borrekins v. Bevens, 3 Rawle, 37; Moore v. McKinley, 5 Cal. 471; Getty v. Rountree, 2 Chand. 28.
Fraley v. Bispham, 10 Pa. St. 320; Boyd v. Wilson. 83 Pa. St. 319.
Biddle, War. ? 159; Parkinson v. Lee, 2 East, 314; Randall v. Newson, L. R. 2 Q. B. Div. 102; Sands v. Taylor, 5 Johns. 401.
Moody v. Gregson, L. R. 4 Exch. 49; Gardiner v. Grey, 4 Camp. 114; Boyd v. Wilson, 83 Pa. St. 325; Heilbut v. Hickson, L. R. 7 C. P. 438.
Salisbury v. Stainer, 19 Wend. 159.
Gardiner v. Grey, 4 Camp. 144; Powell v. Horton, 2 Bing. N. C. 668; Tye v. Fynemore, 3 Camp. 462; Carter v. Crick, 4 Hurl. & N. 412; Towerson v. Aspatna, 27 Law T. (N. S.) 276; Russell v. Nicolofulo, 8 C. B. (N. S.) 362; Josling v. Kingsford, 13 C. B. (N. S.) 447; Megaw v. Malloy, L. R. 2 Ir. 530; Waring v. Mason, 18 Wend. 425; Ames v. Jones, 77 N. Y. 614; Atwater v. Clancy, 107 Mass. 369; Schuitzer v. Oriental Print Works, 114 Mass. 123; Whitmore v. South Boston Iron Co. 2 Allen, 52; Jones v. Wasson, 8 Baxt. 211; Day v. Raguet, 14 Minn. 273, (Gil. 203.)
3 Exch. 509.
17 C. B. (N. S.) 708.
Page 839.
And see Brown v. Cockburn, 37 U. C. Q. B. 592; Johnston v. Barker, 20 U. C. C. P. 220; Mercer v. Cosman, 2 Hann. (N. B.) 240; Somers v. O’Donoghue, 9 U. C. C. P. 210.
People’s Bank v. Kurtz, 11 W. N. 225; 2 Kent, Comm. 478; Story, Sales, § 367; Ricks v. Delahunty, 8 Port. 137; Williamson v. Sammons, 31 Ala. 691; Hoe v. Sanborn, 21 N. Y. 555: McKnight v. Devlin, 52 N. Y. 401; McCoy v. Artcher, 3 Barb. 323; Dresser v. Ainsworth, 9 Barb. 619; Vibbard v. Johnson, 19 Johns. 77; Hermance v. Vernoy, 6 Johns. 5; Sweet v. Colgate, 20 Johns. 196; Baker v. Arnot, 67 N. Y. 448; Whitney v. Heywood, 6 Cush. 82; Hubbard v. Bliss, 12 Allen, 590; Shattuck v. Green, 104 Mass. 45; Cushing v. Breed, 14 Allen, 376; Emerson v. Brigham, 10 Mass. 202; Coolidge v. Brigham, 1 Metc. 551 ; Grose v. Hennessy, 13 Allen, 390: Door v. Fisher, 1 Cush. 273; Fogg v. Wilcutt, 1 Cush. 300; Bennett v. Bartlett, 6 Cush. 225; McCabe v. Morehead, 1 Watts & S. 513; Moser v. Hoch, 3 Pa. St. 230; Boyd v. Bobst, 2 Dall. 91; Whitaker v. Eastwick, 75 Pa. St. 229; Porter v. Bright, 82 Pa. St. 443; Ritchie v. Summers, 3 Yeates, 531; Chamley v. Dulles, 8 Watts & S. 361; Swaizey v. Parker, 50 Pa. St. 450; Flynn v. Allen, 57 Pa. St. 482; Lyons v. Devilbis, 22 Pa. St. 185; Wood v. Sheldon, 42 N. J. Law, 421; Byrnside v. Burdett, 15 W. Va. 702; Mockbee v. Gardner, 2 Har. & G. 176; Osgood v. Lewis, Id. 495; Chisin v. Woods, Hardin, 531; Chancellor v. Wiggins, 4 B. Mon. 201; Marshall v. Duke, 51 Ind. 62; Long v. Anderson, 62 Ind. 537; Morris v. Thompson, 85 Ill. 16; Gookin v. Graham, 5 Humph. 480; Wood v. Cavin, 1 Head, 596; Calcock v. Goode, 3 Me. 513; Hale v. Smith, 6 Me. 420; Butler v. Tufts, 13 Me. 302; Gaylor v. Copes, 16 Fed Rep. 49; Storm v. Smith, 43 Miss. 497; Lewis v. Smith, 4 Fla. 47; Inge v. Bond, 3 Hawks, 101; Thurston v. Spratt, 52 Me. 202; Long v. Hickbottom, 28 Miss. 772; Huntington v. Hall, 36 Me. 501; Matheney v. Mason, 73 Mo. 677; Gross v. Kierski, 41 Cal. 114.
Leggatt v. Sands, 60 Ill. 158.
4 Taunt. 847.
Fatman v. Thompson, 2 Disp. 482; Gunther v. Atwell, 19 Md. 157; Sumner v. Tyson, 20 N. H. 384.
Barnard v. Kellogg, 10 Wall. 383; Mixer v. Coburn, 11 Metc. 557; Casco Manuf'g Co. v. Dixon, 3 Cush. 407; People’s Bank v. Bogert, 16 Hun, 270; Dodd v. Farlow, 11 Allen, 426; Thompson v. Ashton, 13 Johns. 416; 14 Johns. 316; Board man v. Spooner, 13 Allen, 353; Baird v. Mathews, 6 Dana, 129; Wetherell v. Neilson, 20 Pa. St. 448, (overruling Snowden v. Warner, 3 Rawle, 101;) Coxe v. Heisley, 19 Pa. St. 243; Beckwith v. Farnum, 5 R. I. 230; Dickinson v. Gay, 7 Allen, 29; Beirne v. Todd, 3 Sandf. 89; 5 N. Y. 73; Whitmore v. South Boston R. Co. 2 Allen, 52.