By the Court,
Sutherland, J.
The judge charged the jury, “ that if they believed the article (sold by the plaintiff to the defendant) to be a fraudulent article, although they should find that there was no fraud in the vendor, yet the policy of the law cast the loss upon him as the importer of the article.” in Jewilt v. Colgate others, (20 Johns. R. 196,) the article sold, as in this case, was sold as barilla, but it proved to be not barilla, but kelp, an entirely different article, not used in this countiy, of little value for any purpose, and of none whatever for the purpose for which barilla is used—the manufacture of soap. It was contended in that case, that the commodity, having been advertised and sold as and for barilla, and so described in the bill of parcels accompanying the delivery of it to the defendants, it amounted to an undertaking or warranty, on the part of the vendor, that it was barilla. That a warranty is always implied that the article is that for which it is sold; but the court held that no such distinction was to be found in the cases; that the common law rule, caveat emptor, applied to the case, and that where there is no fraud or agreement to the contrary, if the article turns out not to be that which was supposed, the purchaser sustains the loss. The same doctrine had been previously held in this court, in Seixas v. Wood, (2 Caines, 48.) The action there was for selling peachum for brazilletto wood, and as there was neither warranty nor fraud, the vendee was held to have purchased at his peril. All the authorities are considered and analyzed in these cases, and the doctrine is conclusively established, that to maintain an action for selling one article for another, there must be either warranty or fraud. Thé rule of the civil law is admitted to be different. Can the circumstances, then, *190that the article sold is an entirely spurious and worthless onsy fraudulently made for the express purpose of being sold for a valuable commodity which it was made to resemble, vary the rules of law as between innocent vendors and vendees ? The principle of the rule of caveat emptor is this, that the vendee has it in his power to guard against any latent defect or deception in the article purchased, by exacting a warranty from the vendor; but if, instead of taking this precaution, he will trust to his own sagacity and judgment, he should bear the loss if they deceived him. The principle assumes that both parties are equally innocent, and it throws the loss upon him who omits to exact that which would have afforded him ample protection, the exacting of which would have apprised the opposite party of the necessity of taking measures for his own indemnity. The principle does not look beyond the immediate parties to the transaction, and why it is not as applicable to a case where the article was originally a fraudulent one, (as the judge expresses it in his charge,) as to any other, if the vendor was not affected with the fraud. It is said the policy of the law in such cases casts the loss upon the importer or vendor, because he has his remedy over against his factor beyond sea ; whereas the defendant has no remedy, if the loss is thrown on him. Suppose, in an ordinary case, it should appear that the vendor who sold an article without warranty, purchased it with warranty, would that circumstance change the rule of law as between him and his vendee, and render him liable to respond; not because he had been guilty of fraud, or had agreed to be answerable under such circumstances, but because, if he was made responsible, he would be able to receive back whatever he was compelled to pay? The law does not proceed upon such principles. It does not determine the rights of A. against B., by inquiring into those of B. against C. I am not aware of any consideration of public policy, which should induce the adoption of such a rule. The declarations or representations of Fitch, in relation to this same lot of barilla, to other persons to whom he offered parcels of it for sale, subsequent to the sale to the defendant, I am inclined to think were properly admitted. Fitch was the agent for the plaintifij for the pur*191pose of selling the whole lot of barilla, and his agency con-tinned until that was accomplished or his power was withdrawn. His subsequent representations might, in connection with other circumstances, (in the absence of any direct proof as to what his contract with the defendant was,) be entitled to some weight, though under the circumstances of this case} where we have the direct and positive testimony of Fitch upon the subject, I think they should have had but little influence with the jury. They were, however, admissible, and the exception upon that point was not well taken. On the first point, however, we are of opinion that the learned judge erred. A new trial must, therefore, be granted.