EXPRESS WARRANTY

CHAPMAN V. MURCH

19 Johns. 290 (1822)

Assumpsit for breach of an express warranty of the soundness of a horse traded by defendant to plaintiff. On the trial, plaintiff offered to show that defendant at the time of the trade represented his horse to be sound, but that he was unsound, having the disease called the yellow water, of which he died the following day. The evidence was excluded as not tending to prove an express warranty.

SPENCER, C. S., delivered the opinion of the court. In the various cases which have been cited, it appears, abundantly, that when the action is founded on a warranty of the soundness of a chattel sold, a warranty must be proved; but it nowhere appears, that it is necessary that the vendor should use the express words, that he warranted the soundness. If a man should say, on the sale of a horse, "I promise you the horse is sound," it is difficult to conceive, that this is not a warranty, and express one too. Peake (on Evid. 228) says: "In an action on a warranty, the plaintiff must prove the sale and warranty." "In general, he says, "any representation made by the defendant of the state of the thing sold, at the time of the sale, will amount to a warranty." He adds, "But where the defendant refers to any document, or to his belief only in such cases no action is maintainable, without proof, that he knew he was representing a falsehood." In every action on a warranty, it must be shown that there was an express and direct affirmation of the quality and condition of the things sold, as contradistinguished from opinion, etc., and when that is made out, it would be an anomaly to require that the word warrant should be used. Any words of equivalent import, showing the intention of the parties, that there should be a warranty, will suffice. In the present case, the plaintiff offered to prove what, under the circumstances, might be an express warranty; and that was for the consideration of the jury, under the advice of the court. Seixas v. Woods, 2 Caines, 56; Pasley v. Freeman, 3 Term Rep. 57; Cramer v. Bradshaw, 10 Johns. Rep. 484.

The judgment must be reversed, and a venire de novo awarded to the court below.

Judgment reversed.

INSPECTION OF THE ARTICLE AND IMPLIED WARRANTY

SALISBURY, ET AL. V. STAINER, et al.

19 Wendell (N. Y.) 159 (1838)

The plaintiffs declared for deceit in the sale of 184 bales of Italian hemp, amounting to 64,850 lbs., for which the plaintiffs paid the defendants at the rate of $210 per ton, the sum of $5,775.71, besides charges for cartage. The declaration also contained counts on a warranty. The defendants pleaded the general issue. When the hemp came to be worked, it was discovered that the interior of the bales was very different from the exterior, not only being of an inferior quality but containing large quantities of, tow. The plaintiffs opened and worked 12 bales, and reshipped the remainder to the city of New York, where the defendants resided, and tendered the hemp to the defendants, demanding a return of the money paid for it. The hemp was examined in New York by two men experienced in the article, who concurred in stating that it was not worth more than $150 per ton. The plaintiffs produced a letter accompanying the invoice received by them from the defendants, containing the following clauses: "There is no more first quality hemp now remaining, but we should be glad to sell our third quality at about $175, if you have any use for it. We have only 8 tons. of it on hand. Our second quality we hold at $205 for retail;" and "Advices received from Trieste this morning by the English packet, quote first quality Ferrara hemp, same as sold to you," etc. The plaintiffs also proved that the defendants, in speaking of the hemp in question to other persons to whom they offered to sell the same previous to the sale to plaintiffs, represented it as hemp of the first quality. On the part of the defendants, it was proved that the purchase was made by the plaintiff S. E. Salisbury; that the hemp at the time of the purchase was not in the defendant's store-house, but in the store-house of Messrs. De Rham & Moore; that the defendants sent a person in their employment to the store of De Rham & Moore to show the hemp to the plaintiff, telling him at the same time, Examine well for yourself; the plaintiff proceeded to where the hemp was, cut open a bale, and, though he said nothing, appeared satisfied with the quality. The witness testified that the plaintiff might, if he had so chosen have cut open every bale; he had the opportunity. It was further proved that the plaintiffs disavowed charging the defendants with fraud in the sale of the hemp.

The counsel for the plaintiffs conceded that there could be no recovery on the ground of fraud, but insisted that the plaintiffs were entitled to a verdict on the grounds: either that an express warranty

had been proved, or that the sale was by sample, from which a warranty might be implied that the bulk of the article should correspond with the exterior of the bales. The judge charged the jury that if the plaintiffs were entitled to recover, it must be on the ground of an express warranty or sale by sample, that whether the representations of the plaintiffs amounted to an express warranty, or were mere matter of opinion or description, was a question for the jury; that the sale being by inspection of an article that could not be examined, there was an implied warranty that the inside of the bales corresponded with the outside; and if they believed that the inside did not correspond, but was defective, the plaintiffs would be entitled to their verdict. He also instructed them to find

specially whether the sale was on an express warranty or by sample. The jury found that the sale was by sample, and gave the plaintiffs a verdict for $6,110,45. The defendants' counsel having excepted to the charge, and obtained a bill of exceptions, to be sealed, now moved for a new trial.

BY THE COURT, BRONSON, J. This was not a sale by sample. Salisbury was told to examine, and did examine the hemp for himself. He inspected the bales, cut open one of them, and was at liberty to open others, had he chosen to do so. If he was not satisfied of the quality and condition of the goods, he should either have proceeded to a further examination, or provided against a possible loss by requiring a warranty. Where the purchaser has an opportunity to inspect the goods, no principle is better settled than that the seller, in the absence of fraud, is not answerable for latent defects. The rule in such cases is caveat emptor. The judge erred in charging the jury that there was an implied warranty that the inside should correspond with the outside of the bales. It is unnecessary to examine the other exceptions taken on the trial.

New trial granted.

WHERE ANYTHING REMAINS TO BE DONE BY THE SELLER, SUCH AS WEIGHING OR MEASURING THE GOODS, AS BETWEEN HIM AND THE BUYER, THE TITLE WILL NOT PASS UNTIL SUCH WORK IS DONE

RESTAL V. ENGEMOEN

67 N. W. (Minn.) 1146 (1896)

CANTY, J. This action was brought to recover $38.41, the price of a cow and steer which plaintiff alleges he sold to defendant. Plaintiff had a verdict, and from the judgment entered thereon defendant appeals. Plaintiff testified that about March 1, 1892, defendant came

to his farm, looked at the cow and the steer, and agreed to give him 2 cents per pound for the cow and 2.35 cents per pound for the steer, paid him $1 on the cow and $1 on the steer, and asked him to keep them, and feed them corn and potatoes, until April 26th following, and then to deliver them to defendant at Pelican Rapids, a town some distance from the farm; that plaintiff did so keep, feed, and deliver them, but that defendant refused to receive them. Thereupon plaintiff weighed them, and thereby ascertained the amount of the purchase price. Defendant testified that he told plaintiff that he would take the cattle at the price specified, if plaintiff would "feed them up to beef." Said the witness: "I told him I could not handle cows at all unless they were fed up to beef . . They were very poor. I could not take them because they were not fed up to beef." Plaintiff testified that defendant merely told him to feed "them a little potatoes and corn, but don't give them too much any of the time," and denies that he agreed to fatten them. We are of the opinion that the evidence does not sustain the verdict and judgment. In Martin v. Hurlbut, 9 Minn. 142 (Gil. 132) the following extract is quoted with approval from Joyce v. Adams, 8 N. Y. 291; "It is a general rule of law that, where a contract is made for the purchase of goods, and nothing is said about payment or delivery, the property passes immediately, so as to cast upon the purchaser all future risk, if nothing further remains to be done to the goods, although he cannot take them away without paying the price. But if anything remains to be done on the part of the seller, as between him and the buyer, such as weighing, measuring, or counting out a common parcel, before the goods purchased are to be delivered, until that is done the right of property has not attached in the buyer." See also Rail v. Lumber Co., 47 Minn. 422 . . In the present case there were altogether too many things to be done by the vendor to the chattels before delivery, and too few circumstances indicating an intention to vest title immediately, so that a finding that such intention existed can not be sustained. Plaintiff's remedy was an action for damages for a breach of the executory contract.

Judgment reversed and a new trial granted.

CHANGE OF LOCATION WITHOUT DELIVERY

MCNEAL V. BRAUN

53 N. J. L. 617 (1891)

DEPUE, J. Braun, the plaintiff below, in 1883 was a wholesale dealer in coal in Philadelphia. McNeal, who is now plaintiff in error, was engaged in the foundry business at Burlington, in this State.

On the 14th of June, 1883, McNeal ordered from the plaintiff ninetyeight tons of lump and steamboat coal, to be delivered at Burlington, at $4.10 a ton delivered. The coal was shipped in a barge called "The Wayward," on the 21st of June. The barge arrived at Burlington on the 23rd, but it was not until the 26th that she was laid alongside of the wharf. On the afternoon of that day the defendant's foreman. notified the captain of the barge to place it alongside of the defendant's wharf. In order that the boat might be so placed that the steam-hoist could be used for unloading, the boat was separated into its two parts. The forward part was made fast to the wharf, being separated from the wharf by a float about three feet wide, furnished by the defendant, for the purpose of steadying the boat in a position that was necessary for the working of the iron buckets on the steam elevator. The after part of the boat was moored on the river side of the other part.

When the forward compartment of the boat was placed in position, the buckets of the hoisting works were lowered upon the boat, and preparations were made by the defendant's servants for unloading the coal. They completed their preparations about ten minutes before six o'clock, and stopped work at six, the usual time for quitting work. During the night this compartment of the boat sank with the coal that was in it.

The compartment that was moored in the river remained in safety. After the sinking of the forward compartment, the coal that was in the other compartment, was unloaded and taken by the defendant. The suit was for the whole quantity of coal sold, but the controversy at the trial was with respect to the coal that was sunk and entirely lost. Under the charge of the court, the jury found for the plaintiff the full contract price for the entire shipment.

The order for the coal was given by the defendant to Arkless, the agent of the plaintiff, at the plaintiff's place of business in Philadelphia. The order was for a cargo of coal of an approved size and quality. The coal was not, at that time, separated from the plaintiff's stock on hand. The price to be paid was $4.10 per ton delivered at Burlington. The carrier was selected by the plaintiff, and he took from him a bill of lading, signed by the master, in these words: "Shipped by Charles Braun, in good order, on board the boat called 'Wayward,' now lying at Philadelphia, and bound for Burlington, N. J., ninety-eight tons of Thomas Lehigh coal, which I promise to deliver at the aforesaid port of Burlington, in like good order, the dangers of the seas only excepted, unto A. H. McNeal or assigns, he or they paying freight for the same

at the rate of twenty-one-hundredths dollars per ton.