Hargous v. Stone

The counsel for the appellant in-bists, that the sale of the goods in question was by sample; and that such sale implied, on the part of the vendor, a warranty that the bulk of the goods corresponded in fineness with the sample; and that the appellant is entitled to recover the entire value of the goods, together with all moneys paid for freight, insurance, commissions, cartage, &c., as damages for the breach of the contract of warranty.

Caveat emptor is an ancient rule *of the common law, and stands in contradistinction to the rule of caveat venditor of the civil law. An implied warranty of title, on a sale of chattels, is common to both the common and civil law; but in regard to the responsibility of the seller to answer for the quality or goodness of the articles sold, there exists between these two systems of jurisprudence an irreconcilable disagreement. According to the civil law, a sound price implies a warranty of the soundness of the article sold. By the common law, the vendor is not bound to answer to the vendee for the ..quality or the goodness of the articles sold, unless he expressly warrants them to be sound and good, or unless he knew them to be otherwise, and hath used some art to disguise them, or unless they turn out to be different from what he represented them to the buyer; in other words, there must be either an express warranty, or fraud, to make the vendor answerable for the quality or goodness of the articles sold. (2 Bl. Com.

This principle was emphatically asserted in the cases of Chandelor v. Lopus (Cro. Jac. 4) and of Parkinson v. Lee (2 East 315). And Justice Kent, in Seixas v. Wood, says, that these decisions are two centuries apart, and the intermediate cases are to the same effect. In Chandelor v. Lopus, it was determined, in the court of exchequer, that for selling a jewel which was affirmed to be a bezoar stone, when it was not, no action lay, unless the defendant knew it was not a bezoar stone, or had warranted it to be one. In Parkinson v. Lee, decided in 1802, all the judges agreed, that the rule of caveat emptor applied to the sale of all kinds of commodities; that without an express warranty by the seller, or fraud on his part, the buyer must stand to all losses arising from latent defects, and that there v/as no instance in the English law of a contrary rule being laid down. In that case, Grose, J., says, that before the case of Stuart v. Wilkins ( 1 Doug. 20 , K. B., in 1778), “it was a current opinion, that a sound price given for a horse was tantamount to a * warranty of soundness; but when that came to be sifted, it was found to be so loose and unsatisfactory a ground of decision, that Lord Mansfield resisted it, and said, there must be an express warranty, or fraud in the seller, in order to maintain the action.” In Parkinson v. Lee, there was an express warranty that the bulk of the hops purchased by the plaintiff corresponded with the sample by which they were sold; it turned out, that although the bulk of the commodity agreed with the sample, yet there was a latent defect existing in the hops, unknown to the seller, and without fraud on his part, but arising from the fraud of the grower from whom he purchased; and it was held unanimously, by all the judges, that the law did not raise an implied warranty that the hops were merchantable. On the argument of that case, the counsel for the plaintiff

The decision of Parkinson v. Lee was in 1802. Since the decision of that case, the common-law judges at Westminster Hall have manifested a strong disposition to borrow from the civil law its doctrine in relation to sales of chattels.- Departing from the stern policy of their predecessors, in resisting the encroachments of the civil law, and impelled by a new zeal for that system of jurisprudence, they have, step by step, introduced into the English system of the common law, various modifications of the civil-law doctrine of implied warranties on sales of chattels. Thus, we find, that in Hibbert v. Shee (1 Camp. N. P. 113, in 1807) and in Gardner v. Gray (4 *Camp. 144, in 1815), Lord Ellenboeough recog- r * nised the principle, that a sale by sample im- ^ plied a warranty that the bulk of the goods corresponded in quality with the sample. (See Lorymer v. Smith, 1 B. & C. 1, in 1822; Parker v. Palmer, 4 B. & Ald. 337, in 1821.) And in Jones v. Bowden (4 Taunt. 847, 852, in 1813), the English common pleas decided, that a warranty of soundness was implied from the usage of trade. In Laing v. Fidgeon (6 Taunt. 108, in 1815), the same court held, that in all contracts for the sale of manufactured goods, by the manufacturer, a warranty was implied that the goods were merchantable, (s. c., 4 Camp. 169.) And in a great number of subsequent cases, the English common-law courts advanced still

In this state, we have in several cases applied the civil-law rule of caveat venditor to sales by sample; this is the only inroad we have made upon the common-law rule of caveat emptor; and this exception to the general rule, Justice BroNSON says, “stands upon no principle.” ( 1 Denio 386 .) But our courts have as yet only applied the doctrine of implying a warranty on a sale by sample, that the bulk of the goods equals in quality and goodness the sample exhibited, to sales of cotton packed in bales. The supreme court refused to extend the doctrine to a sale of Italian hemp packed in bales. (Salisbury v. Stainer, 19 Wend. 159 .) And the application of the doctrine is limited to sales where the purchaser has no °PP°rtmiity *inspectiug the article purchased. (Boorman v. Jenkins, 12 Wend. 576 ; Salisbury v. Stainer, 19 Id. 159.)

Several of the cases of sales of packed cotton by sample, where the doctrine of implying a warrant has been applied by our courts, were clear cases of an express warranty. This was the character of the case of The Oneida Manufacturing Co. v. Lawrence ( 4 Cow. 440 ), which was the case in the supreme court in which the doctrine of implying a warranty on a sale by sample was expressly adopted. In that case, the seller presented the agent of the purchaser with samples, declaring that they were drawn from the bales in his warehouse, and that it

The cases in our courts, in which the doctrine of implied warranty on a sale by sample has been advanced, are The Oneida Manufacturing Co. v. Lawrence ( 4 Cow. 440 ), Andrews v. Kneeland (6 Id. 354), Gallagher v. Waring ( 9 Wend. 20 , s. c. 18 Id. 425), Beebe v. Robert (12 Id. 413), and Boorman v. Jenkins (Id. 566). These were all cases of sales of cotton packed in bales. The decision in each of them was put upon the assumed ground that the purchaser had no opportunity to examine the bulk of the commodity sold. The first case, that of The Oneida Manufacturing Co. v. Lawrence, was, as we have seen, a case of an express warranty; it was, therefore, unnecessary to place the decision of that case on the ground of an implied warranty. Ch. J. Savage, in that case, advanced the doctrine of implying a warranty on a sale of packed cotton, on the authority of the case of Rose v. Beattie, decided by the constitutional court of South Carolina. (2 Nott & McCord 540-1.) That case was no authority in this state for the decision of Ch. J. Savage, for the reason that, in South Carolina, the civil-law rule that a sound price implies a warranty of soundness, prevailed. Ch. J. Savage assumed that there was no opportunity of inspecting cotton packed in bales, and held, adopting the precise language of Justice Nott, in Rose v. Beattie, “ that every sale of packed cotton must be considered in the nature of a sale by sample, which (he says) amounts to a warranty that the whole bulk shall compare with the specimen exhibited.” The subsequent cases in the supreme court of this state were decided upon the authority of the case of The Oneida Manufacturing Co. v. Lawrence.

The supreme court, in all these cases, assumed that there was no opportunity to inspect the cotton, not be

The ablest jurists of England and this country have earnestly and eloquently defended the wisdom of the common-law maxim of caveat emptor. ( 17 Wend. 275 , Cowen, J.; 18 Wend. 454 -5, Ch. Walworth; 1 Denio 386 , Bronson, J.; 2 Kent Com. 480, note; 3 Rawle 44 , Ch. J. Gibson.) Ch. J. Gibson says, in Borrekins v.

The rule of caveat emptor is eminently adapted to a commercial community; it encourages trade, by preventing actions against all in turn through whose hands the article of commerce has passed in a course of dealing. Large quantities of products, and articles of manufacture, are daily passing through the hands of bond fide purchasers and of agents, commission-merchants, consignees and factors; and to apply to these persons the principle of caveat venditor, would lead to endless litigation, and seriously embarrass the operations of trade. This rule creates obligations, where none were intended; it implies warranties, where none were actually made. The most just and convenient rule is, to confine the responsibility of the seller, in relation to the quality and goodness of the articles sold, to the case of an express warranty or fraud. This rule will effectuate the intention of the parties, and will not surprise the seller with responsibilities he never intended to assume. Where die article sold is equally accessible to both parties, and

But if the sale was a sale by *sample, no warranty can be implied that the bulk of the goods should equal in fineness the sample, because the plaintiff had an opportunity to inspect the goods. The plaintiff could have examined the twenty bales first delivered, when in Stone’s possession, or while they were at Thorne’s warehouse. At Thorne’s warehouse, there was neither any difficulty, inconvenience, nor expense, in inspecting the goods. Every bale was there opened, and the goods separated and repacked; while this process was going on, the goods could and ought to have been examined. If it is a good ground of objection, that this was after the delivery, and, therefore, after the title passed, I answer, that the inspection was practicable, and the plaintiff should, therefore, have examined the goods, to ascertain for himself whether they were of sufficient fineness before, or at the time of, the delivery at Thorne’s, and before he accepted them. In sales of packed cotton, it is held, there is no opportunity of inspecting the commodity, because this cannot be done without breaking up and repacking the bales. ( 12 Wend. 419 , 574-5; 4 Cow. 444 .) In this case, the plaintiff, at the time of the sale, intended to break up the bales and repack the goods, and he had them delivered at Thorne’s warehouse for that purpose.

As to the twenty-three bales received from Boston, if the order required goods of any particular fineness to be furnished, the contract of sale was executory. It was a

In Sands v Taylor *( 5 Johns. 395 ), the plaintiff sold to the defendant, a malster and brewer, a cargo of "Virginia wheat, which was known to be Southern wheat, and which is always more or less heated, but not so as to injure it, when manufactured into flour, although it renders it unfit for malting. A sample, taken in the usual manner from the cargo, was exhibited to the defendant, before the purchase, which, on experiment, was found to malt. It was held, that the sample was a fair specimen of the quality of the cargo. Spencer, J., says, that the exhibition of the sample did not warrant against the fact that the cargo was heated, which prevented its malting. He said, that this was a fact with which the defendant must be presumed to be acquainted, “ for the law will presume every dealer in articles brought to market, acquainted with all the circumstances usually attendant on cargoes composed of those articles.”

If the sample in this case is to be regarded as a fair specimen of the goods purchased, then there is no breach of any assumed warranty that the bulk of the twenty bales should equal the sample in fineness, nor