Perry v. Aaron

Headnote

In an action of assumpsit, for a fraud in the sale of cotton, it was held that the decía, ration should contain either an express warranty, ob an allegation that the vendor, inevi of the bad quality of the article, at the tiinti he sold it as merchantable; and that the proofs at the trial must cor; respond with the allegations in the declara» tion.

THIS was an action of assumpsit. Tiie declaration contained five counts. The first count stated, that whereas the defendant, in consideration that the plaintiff would buy of the defendant, at his special instance and request, a quantity of cotton, to wit, 67 bales and 2 bags, weighing &c. at á certain price per pound, to be paid &c.—.the defendant, “ then and there undertook, and faithfully promised the said “ Robert Perry, that the said cotton, and every part thereof tc was good merchantable cotton, and fairly packed, bound, “ and put up in "the said bales and bags, and was equal in “ quantity to a certain parcel then and there produced and 66 shewn as a sample thereof.” It then avers, that the plaintiff confiding, &c. did buy the cotton for the price mentioned, and paid the defendant for the same ; but that the defendant not regarding his promise, &c. did craftily and subtilly deceive the plaintiff in this, “ that a great part of the “ said cotton, to wit, 16 bales, was then and there deceii ü fully and fraudulently packed, bound and tied up, and in “ an unmerchantable state, and the middle or inside of di a vers, to wit, the said 16 bales, was not good or merchant*

“ able cotton, but was then and there dirty and unmerchant- “ able, and of a very inferior quality,” &c. The second count stated, that in consideration the plaintiff had bought of the defendant the like quantity of cotton, at the same price, Ike. the defendant “ undertook, that the said cotton was “ merchantable, packed up,” &c. as in the first count. Yet the said defendant, not regarding, &c. but contriving and fraudulently intending to injure the plaintiff, deceived-him in this, that 16 bales of the cotton wore not merchantable, -packed up fairly, &c. but was unmerchantable and of an inferior quality, &c. The third court stated, that in considreration that the plaintiff had undertaken and promised to pay the defendant 7021 dollars and 60 cents, when requested &c. the defendant undertook and promised to deliver to the plaintiff, 67 bales and 2 bags of good merchantable cotton, of the value of 7021 dollars and 60 cents, when requested, Ike. Yet the defendant did not deliver the same, &c. but instead thereof “ did deceitfully and fraudulently deliver to the “ plaintiff, 67 bales and 2 bags of base, unmerchantable “ cotton, of a very inferior quality, and of small value, to “ wit, of the value of 10 dollars, contrary,” &c. The fourth count was for money paid, laid out, &c. and the fifth for money had and received to the use of the plaintiff. Plea, the general issue.

The cause was tried at the New~York Sittings, the 18th December, 1804, before Mr. Justice Livingston. On the trial it appeared in evidence, that the defendant sold the cotton in question, as being in the public store on Staten-Island, where it had been deposited when imported on its. arrival from New-Orleans. The defendant produced a sample, and “ on being asked by the plaintiff if he “ might depend on the quality of the cotton being.like the sample, the defendant answered, lie would warrant the “ whole to be of the same quality and of equal goodness1 “ with the sample.” A short time after the purchase was concluded, the plaintiff sent his clerk to examine the cotton, taking with him" the sample which had been produced to the plaintiff; that on examining the bales, without

-opening them so as to inspect the inside, the whole appeared to be as good as the sample, and in the same state as when it was imported. The bill of parcels was produced which contained no warranty. The cotton was exported to Liverpool, in England, where it was delivered in the same state as when it was taken on board of the ship, except a small portion which received some sea-damage. The consignees of the shippers sold the cotton to certain dealers in that article for a full price, but without any warranty. On opening the bales, considerable quantities of dirt and cotton seed were found in the inside ; the purchaser then demanded of the consignees compensation for the damage, in consequence of the cotton being falsely packed. The question of damage was voluntarily referred to arbitrators, mutually chosen by the consignees and the purchasers of the cotton, who after examining the cotton &c. awarded 187 - 4 t 11 sterling, to be allowed by the consignees for a compensation to the purchaser, and the consignees accordingly allowed and paid the same, and the expenses attending the arbitration, being TSl - 0 - 5 sterling, which sums, with interest, the plaintiff claimed in damages from the defendant.

The defendant’s counsel moved for a nonsuit, on the ■ same grounds on which it was now argued before the court. The judge directed the jury to confine their attention to the third count in the declaration, and the proofs in support of it, and observed that the plaintiff was not entitled to recover, unless the defendant had been guilty of a fraud, in selling the cotton as good, knowing at the same time that it was not so ; and that there was no evidence, in his opinion, to warrant this conclusion ; that if the plaintiff was entitled to recover, there was no proof of damage, as the sale in England was so made as not to entitle the purchaser to claim damages of the consignees ; and that the damages he paid were in consequence of his voluntary act, in submitting it to arbitration, for which the defendant could not be answerable in law. The jury found a verdict for the plain tiff for 827 dollars and 76 cents. On being asked by the qourt on what grounds they found the verdict, they aiaswer