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described. So, in Yates v. Pym, 6
Taunt. 446, the article was described in
the sale note as " 58 bales of prime
singed bacon." It was held to amount
to a warranty that the bacon was prime
singed. Osgood v. Lewis, 2 Harr.& Gill.
495, supports the same view ; in that
case the words in the bill of parcels were,
" winter pressed sperm oil." This was
considered as a warranty that the oil
was winter pressed. So in The Rich-
mond Trading &c. Co. v. Farquar, 8
Blackf. 89, it was held, where wool was
sold in sacks, and the sacks marked by
the seller and described in the invoice as
being of a certain quality, that this is
an express wan-anty that it is of such
quality. And where a vessel was ad-
vertised for sale as being " copper fas-
tened," this was held to be a warranty
that she was so, according to the under-
standing of the trade. Shepherd v.
Kain, 5 B. & Aid. 240. See Paton v.
Duncan, 3 C. & P. 336 ; Teesdale v.
Anderson, 4 C. & P. 198; Wilson v.
Backhouse, Peake's Add. Cas. 119. —
So in Pennsylvania it is held, that in a
sale of goods described in a bill or sold
note, there is an implied warranty that
the commodity sold is the same in
specie as the description given of it in
the bill. Borrekins v. Bevan, 3 Rawle,
23. But the courts of that State re-
fuse to extend the same doctrine to
a statement of quality of the articles
sold. Therefore, where the article was
described in the bill of sale as '^supe-
rior sweet-scented Kentucky leaf tobacco,"

[480]



the seller was held not liable on a war-
ranty, if the tobacco was Kentucky
leaf, though of a very low quality, ill-
flavored, unfit for the market, and not
sweet-scented. Fraley v. Bispham, 10
Barr, 320. And see Jennings v. Gratz,
3 Rawle, 168. See also Hyatt v. Boyle,
5 Gill & Johns. 110. A contract for
" good fine wine" has been held to
import no warranty, these words be-
ing too uncertain and indefinite to raise
a warranty. Hogins v. Plymton, 11
Pick. 97. A warranty that certain
oil "should stand the climate of Ver-
mont without chilling," means that the
oil will not chill, when used in Ver-
mont, in the ordinary manner lamp
oil is used. Hart v. Hammett, 18
Verm. 127. So a bill of sale describ-
ing the article sold simply as " tallow,"
raises no implied warranty that the
tallow should be of good quality and
color. Lamb v. Crafts, 12 Met. 353.
And in a bill of sale of " certain lots
of boards and dimension stuff now at
and about the mills at P.," there is
no implied warranty that the boards
are merchantable. Whitman v. Freese,
23 Maine, 212. A bill of sale of a
negro described her as " being of sound
wind and limb and free from all dis-
ease." Held, an express warranty that
she was sound. Cramer v. Bradshaw,
10 Johns. 484. But a bill of sale of a
horse, as follows : — " T. W. bought
of E. R. one bay horse, five years old
last July, considered sound," signed
by the vendor, creates no^ warranty of
the soundness of the horse. Wason v.
Rowe, 10 Verm. 525. See also Towell
V. Gatewood, 2 Scammon, 22 ; Baird
V. Matthews, 6 Dana, 129. So in Wiu-
sor V. Lombard, 18 Pick. 57, the bill
of sale described the article as so many
" barrels No. 1 mackerel, and so many
barrels No. 2 mackerel." The mackerel
sold were in fact branded by the in-
spector as No. 1 and No. 2. It was
held there was no implied warranty
that they were free from rust at the
time of sale, although it was proved
that mackerel affected by rust are not
considered No. 1 and No. 2. But the
general doctrine of this note was ex-
pressly recognized by Shaiv, C. J., who
said : — '' The rule being, that upon a
sale of goods by a written memoran-



CH. v.]



WARRANTY.



466



" beware," or should take care to ascertain for himself the
quality of the thing he buys, becomes utterly unreasonable,
under circumstances which make such care impossible. If,
therefore, the seller alone possesses the requisite knowledge,
or the means of knowledge, and offers his goods for sale un-
der circumstances which compel the purchaser to rely upon
the judgment and honesty of the seller, without any exami-
nation on his own part as to the quality of the thing offered,
it has been held that the rule of caveat emptor does not apply,
because it cannot apply, and that the seller warrants that the
goods he offers for sale are in respect to their qualities what
the purchaser may fairly understand them to be ; in other
words, that they are of merchantable value, and proper sub-
jects of trade. (^)

It might seem that the reason of this rule should apply to
all cases where an article is sold of which the value is mate-
rally affected by some defect which the buyer cannot know



dum or bill of parcels, the vendor un-
dertakes, in the nature of warranting,
that the thing sold and delivered is that
which is described, this rule applies
whether the description be more or less
particular and exact in enumerating the
qualities of the goods sold." In some
early cases in America, it was held that
the description given to property in ad-
vertisements, bills of sale, sold notes,
&c., did not enter into the contract,
and therefore being but matters of de-
scription, created no warranty. Such
are the cases of Seixas v. Woods, 2
Caines, 48 ; Barrett v. Hall, 1 Aikens,
269; Sweet v. Colgate, 20 Johns. 196,
and some others ; but we think the
more modern cases have decided that a
rule of law, in itself sound, was in those
instances erroneously applied. See Hen-
shaw V. Robins, 9 Met. 83, and 2 Kent's
Com. 489. See also the valuable notes
to Chandelor v. Lopus, I Smith's Lead.
Cas. 76, et seq., where will be found an
able examination of the whole subject
of warranty.

(q) Hanks v. McKee, 2 Litt. 227.
Gardiner v. Gray, 4 Camp. 144, is the
leading case upon this point. In that
case Lord Ellenborough, speaking to this
point, says : — '"I am of opinion that
under such circumstances the purchaser
has a right to expect a salable article
answering the description in the con-
VOL. L 41



tract. Without any particular war-
ranty, this is an implied term in every
such contract. Where there is no op-
portunity to inspect the commodity, the
maxim of caveat emptor does not apply.
He cannot without a warranty insist
that it shall be of any particular qua-
lity or fineness, but the intention of
both parties must be taken to be, that
it shall be salable in the market under
the denomination mentioned in the con-
tract between them. The purchaser
cannot be supposed to buy goods to
place them on a dunghill." See also
the case of Gallagher v. Waring, 9
Wend. 20, where the court were in-
clined to extend the rule to the case of
a sale of cotton in bales, lying in the
storehouse of the vendor, situate in the
place where both vendor and vendee re-
sided, notwithstanding that the vendor
had no better opportunity than the ven-
dee for the inspection of the article.
The case of Hyatt v. Boyle, 5 Gill &
Johns. 110, also holds that the rule of
caveat emptor docs not apply, if the
buyer has no opportunity to inspect the
goods, and in such case the seller im-
pliedly warrants them to be merchant-
able. But the mere fact that the exa-
mination is attended with incoiiveniaice
to the purchaser is not sufficient to dis-
pense with the rule. It must be mo-
rally impracticable.

[481]



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THE LAW OF CONTRACTS.



[book hi.



/ or discover. But it is not yet conceded that in all such
/' cases there is an implied warranty. The implication does not
*appear to extend to cases where an examination would be
fruitless, but only to those in which there can be no exami-
nation. It is true, that in the fluctuation which has marked
the course of adjudication on the subject of warranty with
sale there is a series of cases, in which, for a considerable
time, a principle seemed to be acquiring favor, which was
almost equivalent to a rule that every sale carried with it an
implied warranty of the merchantable quality of the goods
sold. Of course such a rule would in fact annul that of
caveat emptor. But of late the courts seem to be retracing
their steps; and, in this country at least, we consider the
ancient rule as distinctly established, (r) There are but two
of our States in which it is an acknowledged rule of law that
a sale of a chattel for a full price carries with it an implied
warranty. And in one of these the civil law, of which this
is a principle, prevails, [s)
J- If goods are sold by sample, there can be no examination

of the goods, but there may be of the sample. There is,
therefore, an implied warranty that the goods correspond to
the sample, [t) But if they do correspond, and the sample



(r) The weight of authority decidedly
determines that a sale for a sound price
implies no warranty of quality, or that
the article is merchantable. Dean v.
Mason, 4 Conn. 428, an able case on
this subject ; Holden v. Dakin, 4 Johns.
421 ; Snell v. Moses, 1 Johns. 96 ; John-
ston V. Cope, 3 Harr. & Johns. 89 ; Coz-
zins V. Whitaker, 3 Stew. & Port. 322;
La Neuville v. Nourse, 3 Camp. 351 ;
West V. Cunningham, 9 Port. 104.

(s) South Carolina and Louisiana
alone, of American States, hold that a
sale of a chattel for a sound price creates
a warranty against all faults known or
unknown to the seller. Timrod v.
Shoolbred, 1 Bay, 324 ; Dewees v.
Morgan, 1 Martin, 1 ; State v. Gaillard,
2 Bay, 19; Barnard v. Yates, 1 N. &
McC. 142; Missroon v. Waldo, 2 N. &
McC. 76; Melan9on v. Robichaux, 17
Louisiana, E. 97. But this does not
extend to sales of real estate. Rupart
V. Dunn, 1 Richardson, 101. And in
sales of personal property, if the buyer

£482]



is informed fully of all the circum-
stances, and has a fair opportunity of
informing himself, he is bound by his
contract, although it be a losing one.
Whitefield v. McLeod, 2 Bay, 380. And
see Camochan v. Gould, 1 Bailey, 179;
Rose V. Beatie, 2 N. & McC. 538. And
if the parties expressly agree that the
buyer shall take the property at bis own.
risk, the vendor is not answerable for
its soundness. Thompson v. Lindsay,
3 Brev. 305. And a sound price does
not imply a value of the property equal
to the price, but only that there is no
unsoundness. And such unsoundness
must materially affect the article. Smith
V. Rice, 1 Bailey, 648.

(t) Bradford v. Manly, 13 Mass. 139,
a leading case in America upon this
point. Oneida Manuf. Co. v. Law-
rence, 4 Cow. 440 ; Andrews v. Knee-
land. 6 Cow. 354; Gallagher v. Waring,
9 Wend. 20; Beebee v. Robert, 12
Wend. 413; Boorman v. Jenkins, 12
Wend. 566 ; Moses v. Mead, I Denio,



CH. v.]



WARRANTY.



468



itself has a defect, even if this defect be unknown, and not
discoverable by examination, there is no implied warranty
against this defect, and the seller is not responsible, (m) If
there be an express warranty, an examination of samples is
no waiver of the warranty ; nor is any inquiry or examination
into the character or quality of the things sold; for a man
has a right to protect himself by such inquiry, and also by a
warranty, (mm)

If a thing be ordered of the manufacturer for an especial
purpose, and it be supplied and sold for that purpose, there



386 ; Borrekins v. Bevan, 3 Rawle, 37 ;
Eose V. Beatie, 2 N. & McC. 538 ;
Beirne v. Dord, 2 Sandf. 89, an excel-
lent case upon this point. It is there
held that in order to constitute a sale by
sample, it must appear that the parties
contracted solely in reference to the
sample, or article exhibited, and that
both mutually understood they were
dealing with the sample, and with an
understanding that the bulk was like it.
And in the same case upon appeal, 1
Selden, 95, and in Hargous v. Stone, 1
Selden, 73, it is decided that the mere
exhibition of a sample is not sufficient
to constitute a warranty that the bulk of
the goods is of the same quality with the
sample, that such exhibition is but a
representation that the sample has been
fairly taken from the bulk of the com-
modity, and that for the production of
the sample to have the effect of a strict
warranty it must be shown that the par-
ties mutually understood that there was
an agreement on the part of the seller
that the bulk of the commodity should
correspond with the sample. — An op-
portunity for a personal examination
of the bulk is a strong circumstance
against considering the sale to have
been made by sample. Hargous v.
Stone, 1 Seld. 73 ; Beirne v. Dord, 1
Scld. 95. Sec also Waring v. Mason,
18 Wend. 434. In Williams v. Staf-
ford, 8 Pick. 250, a leather bag of indigo
was sold, which the bill of sale described
as " one seroon of indigo." There was
a small triangular hole on one side of
the seroon, where the purchaser might
draw out a specimen, and at the sale the
plaintiff examined the article ^n this
mode. The seroon'prdved to be mainly
filled with other substances than indigo.
It was held a sale " by sample," and that
there was a warranty that the bulk was



of the same kind and quality with the
sample. In Salisbury v. Stainer, 19
Wend. 159, several bales of hemp were
sold. The purchaser was told to exa-
mine the hemp for himself. He cut
open one bale, and appeared satisfied
with the quality. He might have cut
open every bale, had he chosen to do so.
It was proved that the interior of the
bales consisted of tow, and of a quality
of hemp very much inferior to that on
the outside of the bales. This was held
not to be a sale by sample, and that
there was no warranty that the interior
should correspond with the exterior of
the bales.

(m) Parkinson v. Lee, 2 East, 314;
a very important case upon this sub-
ject, which has been much discussed,
and sometimes doubted, but which,
when properly understood, seems to be
well supported by principle and analo-
gy. It was a sale of five pockets of
hops, with express warranty that the
bulk answered the samples by which
they were sold. The sale was in Janu-
ary, 1801 ; at that time the samples /airly
ansivered to the commodity in bulk, and no
defect was at that time perceptible to the
buyer. In July following every pocket
was found to have become unmerchant-
able and spoiled, by heating, caused
probably by the hops having been
fraudulently watered by the grower, or
some other person, before they were
purchased by the defendant. The de-
fendant knew nothing of this fact at the
time of sale, and it was then impossible
to detect it. It was held that there was
here no implied warranty that the bulk
of the commodity was merchantable afr
the time of sale, although a merchant-
able price was given.

(uu) Willings v. Consequa, Pet. C C
301.

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469'



THE LAW OF CONTRACTS.



[book III.



is an implied warranty that it is fit for that purpose, (v)
*This principle has been carried very far. It must, however,
be limited to cases where a thing is ordered for a special



(y) Beals v. Olmstead, 24 Verm. 114.
Jones V. Bright, 5 Bing. 533, is the
leading English case on this subject.
There the defendant was a manufacturer
and vendor of copper. The plaintiff
applied to him " for copper for sheathing
a vessel." The defendant said : " I will
supply you well." Prom the defend-
ant's warehouse the plaintiff's agent
then selected such copper as was want-
ed, and applied it to plaintiff's vessel.
It proved to be very defective, and
lasted only about four months, in place
of four years, the usual time of wear of
good sheathing ; the jury found that the
decay was caused by some intrinsic de-
fect in the quality of the copper, but
that there was no satisfactory evidence
of what the defect was. No fraud was
imputed to the defendant. After full
argument and deliberation, it was held
by the whole Court of Common Pleas
that there was an implied warranty that
the article was fit for the purpose for
which it was sold. See also Brenton r.
Davis, SBlackf. 317. Laingr. Fidgeon,
6 Taunt. 108, is also an important case.
The defendant was a saddle manufac-
turer. He sent the plaintiff a sample of
saddles that could be made for a certain
price. The plaintiff then gave him an
order for " goods for North America, 3
dozen single flap saddles, 24s. a 26s.
■with cruppers, &c." The saddles de-
livered were inferior in material and
workmanship, useless and tinmerchant-
ahle, and did not correspond with the sam-
ple sent. The court held the whole
transaction to amount to a contract
that the article should be merchantable,
and the plaintiff had judgment. Brown
V. Edgington, 2 M. & Gr. 279, also de-
serves attention. The defendant was a
dealer in ropes, and represented himself
to be a manufacturer of the article. The
plaintiff, a wine merchant, applied to
him for a crane rope. The defendant's
foreman went to the plaintiff's premises,
in order to ascertain the dimensions
and kind of rope required. He exa-
mined the crane and the old rope, and
*took the necessary admeasurements, and
•was told that the new rope was wanted
for the purpose of raising pipes of wine
out of the cellar, and letting them down
into the street; when he informed the

[484]



plaintiff that a rope must be made on
purpose. The defendant did not make
the rope himself, but sent the order to
his manufacturer, who employed a third
person to make it. It was held that, as
between the parties to the sale, the de-
fendant was to be considered as the
manufacturer, and that there was an
implied warranty that the rope was a
fit and proper one for the purpose for
which it was ordered. Tindal, C. J.,
said : — "It appears to me to be a dis-
tinction well founded, both in reason
and on authority, that if a party pur-
chases an article upon his own judgment,
he cannot afterwards hold the vendor
responsible, on the ground that the arti-
cle turns out to be unfit for the purpose
for which it was required ; but if he re-
lies upon the judgment of the seller, and
informs him of the use to which the
article is to be applied, it seems to me
the transaction carries with it an im-
plied warranty, that the thing furnished
shall be fit and proper for the purpose
for which it was designed." In Shep-
herd V. Pybus, 3 M. & Gr. 868, it was
held that in a sale of a barge by the
builder, there was an implied warranty
that it was reasonably Jit for use, but it
was left undetermined whether there
■was an implied warranty that the barge
■was fit for some particular purpose, for
which the builder knew it was designed
by the purchaser. See, also, Chambers
V. Crawford, Addison, 150, that a boat-
builder, constructing a boat, is held to
warrant it sufficient for ordinary use. —
In Ollivant i'. Bayley, 5 Q. B. 288,
the plaintiff was patentee and manufac-
turer of a patent machine for printing
in two colors. The defendant saw the
machine on the plaintifi''s premises, and
ordered one, the plaintiff undertaking
by a written memorandum to make him
"a two color printing machine on my
patent principle." In an action for the
price, the defendant excused himself from
liability on the ground that the machine
had been found useless for printing in
two cojprs. The judge, in summing up,
told the jury that, if the machine de-
scribed was a known, ascertained arti-
cle, ordered by the defendant, he was
liable, whether it answered his purpose
or not ; but that if it was not a known,



CH. v.]



WARRANTY.



470



purpose, and not applied to those where a special thing is
ordered, although this be intended for a special purpose.
For if the thing is itself specifically selected and ordered,
there the purchaser takes upon himself the risk of its effect-
ing its purpose. But where he orders a thing for a special
purpose, or to do a specific work, there he puts this risk upon
the person who is to supply the thing, (lo)



ascertained article, and the defendant
had merely ordered, and the plaintiff
agreed to supply, a machine for print-
ing two colors, the defendant was not
liable unless the instrument was reason-
ably fit for the purpose. The Court of
Queen's Bench held this to be a proper
direction; and, the jury having found
for the plaintiff under it, they refused to
disturb the verdict. See, also, the next
note. In Barnett v. Stanton, 2 Ala.
195, it was determined that if manufac-
tured goods are open to inspection, and
are actually examined by the purchaser,
before the sale, there is no implied war-
ranty of quality, although the manufac-
turer himself be the vendor. See Kirk v.
Nice, 2 Watts, 367, that a manufactur-
er even does not always undertake that
the goods made are merchantable. The
principle of the text, and the distinction
between a sale of a manufactured arti-
cle by the manufacturer himself, and of
an ordinary sale of a chattel, as. to im-
plied warranty, is recognized in Misuer
V. Granger, 4 Oilman, 69 ; and in Le-
flore V. justice, 1 S. & M. .381, where it
is said that every person who contracts
to do a piece of work, impliedly under-
takes to apply suffici'.^nt skill and dex-
terity to its performance to complete it
in a just and workmanlike manner. So
in Howard v. Hoey, 23 Wend. 351, the
distinction between manufactured arti-
cles and others is recognized. See, also.
Hart V. Wright, 1 7 Wend. 267, 1 8 Id. 449.
(tv) " If a man says to another, ' Sell
me a horse fit to carry me,' and the
other sells a horse which he knows to
be unfit to ride, he may he liable for
the consequences ; but if a man says,
' Sell me that gray horse to ride,' and
the other sells it, knowing that the for-
mer will not be able to ride it, that
would not make him liable." Matde,
J; in Kcatcs v. Cadogan, 2 E. L.
& E. R. 320. See also Chanter v.
Hopkins, 4 M. & W. 399, whicli fully
establishes the distinction taken in the

41*



text, and is a leading case on the sub-
ject. There the defendant sent to the
plaintiff, the patentee of an invention,
known as " Chanter's smoke-consuming
furnace," the following written order : —
" Send me your patent hopper and ap-
paratus, to fit up my brewing copper
with your smoke-consuming furnace.
Patent right, £15 15s.; ironwork not
to exceed £5 5s. ; engineer's time fix-
ing, 7s. 6d. per day." The plaintiff
accordingly put up on the defendant's
premises one of his patent furnaces, but
it was found not to be of any use for
the purposes of brewery, and was re-
turned to the plaintiff. It was held, (no
fraud being imputed to the plaintiflf,)
that there was not an implied warranty
on his part that the furnace supplied
should be fit for the purposes of brew-
ery ; but that, the defendant having de-
fined by the order the particular ma-
chine to be supplied, the plaintift" per-
formed his part of the contract by sup-
plying that machine, and was entitled
to recover the whole .£15 15s., the price
of the patent right. Bluett v. Osborne,
1 Stark. 384, supports this distinction.
In that case the plaintiff sold the de-
fendant a bowsprit. It appeared at the
time to be in every respect good and
perfect. The defendant had ample op-
portunity to inspect it. Soon after, the
bowsprit was cut up and found to be
rotten. The defendant resisted pa}-
ment, on the ground that there was an
implied warranty by the vendor that the
article should be made of good and
sufficient materials. No fraud was at-
tributed to the vendor. The defence
was not sustained, and the plaintiff had
a verdict for the whole price. Here
there was a sale of a specijic chattel —
intended, it is true, for a particular
purpose by the purchaser, but not fur-
nished or made for that purpose by tlie
vendor. See also Gray v. Cox, 4 B. &
C. 108; Dickson v. Jordan, H Ired.
166; Burns v. Fletcher, 2 Cart. (Ind.)

[485J



471



THE LAW OF CONTRACTS.



[book III.



But whatever may be the law as to an implied warranty
that personal* property bought and sold, or ordered and
manufactured for a particular purpose, shall be reasonably
fit for such a purpose, — no such rule applies to real estate.
It seems, indeed, to be quite well settled, that in a lease or
purchase of a house and land, there is no implied warranty
that it shall be reasonably fit for habitation, occupation, or
cultivation ; still less that it shall be fit for the purpose for
which it was taken, (x)



372. — It has been very generally sup-
posed that in all sales of provisions
there is an implied warranty that they
are wholesome. But it seems now to
be well settled that such implied war-
ranty must be confined to those cases
where provisions are sold for imme-
diate domestic use. Moses v. Mead, 1
Denio, 378. And it seems not to mat-
ter that they are purchased for domes-



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