Majority
p. 421Holden against Dakin. ALBANY, August, 1809.
Headnote
A. sold to B. paints for good Spanish brown and for a full proved to be bad, itwasheid^that warrantvbi this a.liable eiuíeranKcpre* 2IN error on certiorari, from a justice’s cotirt.
Dakin sued Holden, before a justice, and declared that he, Dakin, purchased two kegs of paint, for Spanish brown, of 56 pounds each, at 9d. per pound, and two kegs of white lead, of 28 pounds each, at Is. 7d. per pound, which paints were adulterated, and of an inferior quality, and in fact were not Spanish brown or while lead., nor good for any thing. The defendant pleaded not guilty.
Upon the trial, the defendant acknowledged the sale of the paints. The plaintiff proved that the Spanish brown so bought, was of a very inferior quality, and much adulterated, and that the white lead was also much adulterated, though not so bad as the other." He bought the paints of a clerk of the defendant, at his store, who sold them for good paints, but the kegs had never been opened, since they were purchased at New-York, by the defendant.
The justice gave judgment for the plaintiff, on the ground that the Spanish brown was of little or no value; and that the selling it for good paint, and for the usual cash price of the best Spanish brown, was _a sufficient warranty.
Here was no express warranty, as to the quality of the paints. All that was proved upon the trial was, that the clerk of the vendor sold the paints for good paints, and at a fair price ; but this was .not sufficient to raise a warranty. This point has been frequently determined. (2 Caines, 48. 1 Johns. Rep. 96 . 129. 274.) If a warranty was to be inferred from these
p. 422
circumstances, then, as the court observed, in Snell v. Moses, ( 1 Johns. Rep. 96 .) a warranty would be universal, upon every bona fide sale, at the usual price, unless there was a stipulation to the contrary. There was no pretence in this case, that the vendor knew that the paints were of an inferior quality.
Judgment reversed.