to his customers as fresh and sound, the artifice is proved by the fact itself, as his knowledge of the falsehood is to be presumed from the nature and duties of his trade or calling. Without deciding that point, however, or whether molasses, or such like articles, should be included under the term 'provisions,' if the rule that, by the sale of provisions, without any fraud on the part of the vendor, a warranty is implied, be well founded, we think that this case does not come within such rule, inasmuch as the molasses in question was not sold for immediate domestic consumption, but as merchandise, to a dealer, to be sold again at retail. To say that, in such cases, all articles which may be used in the diet of the human family are subject to a rule of law, as regards their sale, different from that which prevails in relation to other merchandise, would be to establish a distinction which might prove extremely inconvenient and troublesome in commercial transactions, and one not warranted by any analogous decisions."1 § 15. SAME-SALE DIRECT TO CONSUMER. The qualification noted above as being found in some of the American decisions, relates to the case of an article of food sold to a consumer for immediate use, as distinguished from the sale by a manufacturer or raiser to a dealer, or by a dealer to another dealer. Thus, in Bracklin v. Fonda,2 it was said: "In the sale of provisions for domestic use, the vendor is bound to know that they are sound and wholesome, at his peril." 3 In Howard v. Emerson, where a cow had been sold to a retail dealer in meats, MARTIN, J., said: "We think that this exception, if established, does not extend beyond the case of a dealer who sells provisions directly to the consumer for domestic use. In such cases it may be reasonable to infer a tacit understanding which enters into the contract that the provisions are sound. The relation of the buyer to the seller, and the circumstances of the sale, may raise the presumption that the seller impliedly represents them to be sound. But the same reasons are not applicable to the case of one dealer selling to another dealer." In Moses v. Mead, BRONSON, C. J., said: "Although the doctrine of Blackstone cannot be supported in its whole extent, I am not disposed to deny that, on a sale of provisions for immediate consumption, the vendor may be held responsible in some form for the sound and wholesome condition of the article which he sells." In Hoover v. Peters,5 to a suit for a balance of the price of the carcasses of three hogs sold by the plaintiff to the defendants, to be used by them as food in their lumber camp, the latter set up that one of the carcasses was unsound, and unfit for use. It was proved that the plaintiff knew the purpose for which the defendant purchased them. On the trial the defendant asked the court to charge that there was an implied warranty that the pork was sound and fit for food, which was refused. On appeal this was held error, and the judgment for plaintiff was reversed. "It seems to be settled by many authorities," said CAMPBELL, J., “that no implied warranty of soundness arises where such articles are purchased by a dealer to sell again. Whether this rule arises from the fact that any injury from the use of the articles is likely to be remote, and not readily traced out, or because, where his purpose in buying is merely speculative, one commodity is not to be distinguished from another in its incidents as merchandise, or what special reasons have led to it, cannot easily be determined. It stands as a recognized doctrine, whatever may have been its reasons. But where property is bought for a particular purpose, and only because of its supposed fitness for that, there are 1 But see, apparently contra, Osgood v. Lewis, 2 Har. & G. (Md.) 495; Burch v. Spencer, 22 N. Y. S. C. 504. * 12 Johns. 268. $10 Mass. 320. many cases in which a warranty is implied, unless the purchaser has seen fit to act upon his own responsibility and judgment. And where articles of food are bought for consumption, and the vendor sells them for that express purpose, the consequences of unsoundness are so dangerous to health and life, and the failure of consideration is so complete, that we think the rule that has often been recognized, that such sales are warranted, is not only reasonable, but essential to public safety. There may be sellers who are not much skilled, and there may be purchasers able to judge for themselves; but in sales of provisions the seller is, generally, so much better able than the buyer to judge of quality and condition, that, if a general rule is to be adopted, it is safer to hold the vendor to a stricter accountability than to throw the risk upon the purchaser. The reason given by the New York authorities in favor of health and personal safety, is much more satisfactory than the purely commercial considerations, which take no account of these important interests. While the question has not, perhaps, been very often decided, the principle has been generally accepted among the legal writers, and we feel no disposition to recede from it. We have been pointed to no distinction between sales in one market or another, and can conceive of no special reason for regarding one sale for this purpose as differing in its incidents from any other. The doctrine seems to be that any purchase for domestic consumption is protected." In McNaughton v. Joy,' it was held by a Philadelphia court that, on a sale of butter and potatoes for table use, there was an implied warranty that they were fit for such purpose.2 § 16. SALE OF GOODS BY SAMPLE THE GENERAL RULE. It is laid down in a large number of cases, and may be considered as well-settled law, that on the sale of goods by sample there is an implied warranty that the goods sold shall be equal in quality as well as of the same kind as the sample produced. In Pennsylvania, however, the later cases hold that on such a sale the warranty is only that the goods shall be of the same kind or species; that there is no warranty that they shall be of the same grade or quality.4 § 17. SAME-NO WARRANTY OF MERCHANTABILITY. On a sale by sample, however, there is no implied warranty of merchantability, "for the seller, by exhibiting the sample and impliedly agreeing to bind himself that the bulk of the goods sold shall be equal to the sample, is thus supposed to relieve himself from all other liability in the matter, and therefore to exclude from the contract the implied stipulation of merchantability, on the principle of expressum facit cessare tacitum."5 18. EXCEPTION-WHERE SAMPLE DOES NOT SHOW QUALITY. An exception to the foregoing rule exists where the quality cannot be judged of from the sample. A firm of manufacturers of shirting contracted to supply the plaintiff with a quantity of gray shirting according to sample, each piece to weigh seven pounds. The goods were delivered, and were of the right weight, but it was afterwards found that the weight was made up by introducing into the fabric a percentage of clay which made the goods unmerchantable. 11 Wkly. Notes Cas. 470. 2 Ryder v. Neitge, 6 Heisk. 340; Hyland v. Sherman, 2 E. D. Smith, 234; Humphreys v. Comline, 8 Blackf. 516; Benj. Sales, 665. 3 Parkinson v. Lee, 2 East, 314; Parker v. Palmer. 4 Barn. & Ald. 387; Barnard v. Kellogg, 10 Wall. 383; Leonard v. Fowler, 44 N. Y. 289; Hargous v. Stone, 1 Seld. 73; Bradford v. Manly, 13 Mass. 139; Graff v. Foster, 67 Mo. 512; Gunther v. Atwell, 19 Md. 157; Gill v. Kaufman, 16 Kan. 571; Hubbard v. George, 49 Ill. 575; Merriman v. Chapman, 32 Conn. 146; Brantley v. Thomas, 22 Tex. 271; Boothvy v. Plaisted, 51 N. H. 436; Borrekins v. Bevens, 3 Rawle, 37; Moore v. McKinley, 5 Cal. 471; Getty v. Rountree, 2 Chand. 28. 4 Fraley v. Bispham, 10 Pa. St. 320; Boyd v. Wilson, 83 Pa. St. 319. 5 Biddle, War. 2 159; Parkinson v. Lee, 2 East, 314; Randall v. Newson, L. R. 2 Q. B. Div. 102; Sands v. Taylor, 5 Johns. 401. The presence of the clay could not be discovered in the sample. It was held that the sale by sample excluded the implied warranty of merchantability only as to such matters as could be judged of from the sample.1 § 19. EXHIBITION OF SAMPLES DOES NOT RENDER SALE ONE BY SAMPLE. And it is held that a mere production of a sample does not make the transaction a sale by sample, so as to raise an implied warranty that the goods in bulk are equal in all respects to the sample exhibited. In Barnard v. Kellogg, a leading though recent authority, a wool dealer in Boston sent to a dealer in wool in Hartford samples of foreign wool in bales, which he had for sale on commission, with the prices, and the latter offered to purchase the different lots at the prices, if equal to the samples furnished. The wool broker accepted the offer, provided the wool dealer at Hartford would come to Boston and examine the wool on a day named, and then report if he would take it. The wool dealer went to Boston, and after examining certain of the bales as fully as he desired, and being offered an opportunity to examine all the remaining bales, and to have them open for his inspection, which offer he declined, purchased. The wool proved, unknown to the vendor, to have been deceitfully packed, rotten and damaged wool and tags being concealed by an outer covering of fleeces in their ordinary state. The supreme court of the United States held that this was not a sale by sample, and that there was no implied warranty of quality, or that the goods were equal to the sample produced. "One of the main reasons," said Mr. Justice DAVIS, “why the rule does not apply in a case of a sale by sample, is because there is no opportunity for a personal examination of the bulk of the commodity which the sample is shown to represent." In this case it was clear that the purchaser had full opportunity to examine the goods, but was satisfied to dispense with it. Again, where the defendants wrote plaintiffs a letter saying that "advices received from Trieste this morning by an English packet quote first quality of Ferrara hemp same as sold to you," and the hemp had been represented as of first quality, but the plaintiffs here examined it by cutting open one bale, and might have examined all if they had desired, it was held that this was not a sale by sample. "The plaintiff," said BRONSON, J., “was told to examine, and did examine, the hemp for himself. 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."3 He In Beirne v. Dodd the defendant sold the plaintiff, in his shop, a number of blankets in bales, exhibiting at the time to the plaintiff several pairs of the blankets, which the latter examined and found sound. The rest were not examined, though they might have been. On delivery they were found to be moth-eaten. "The mere circumstance," said JEWETT, J., “that the seller exhibits a sample at the time of the sale will not of itself make it a sale by sample, so as to subject the seller to liability on an implied warranty as to the nature and quality of the goods; because it may be exhibited, not as a warranty that the bulk corresponds to it, but merely to enable the purchaser to form a judgment as to its kind and quality. If the contract be connected, by the circumstances attending the sale, with the sample, and refer to it, and it be exhibited as the inducement to the contract, it may be a sale by sample; and then the consequence follows that the seller warrants the bulk of the goods to correspond with the specimen exhibited as a sample. Whether a sale be a sale by sample or not, is a question of fact to find from the evidence 1 Moody v. Gregson, L. R. 4 Exch. 49; Gardiner v. Grey, 4 Camp. 114; Boyd v. Wilson, 83 Pa. St. 325; Heilbut v. Hickson, L. R. 7 C. P. 438. 210 Wall. 38. 3 Sailsbury v. Stainer, 19 Wend. 159. 45 N. Y. 95. 1 in each case; and, to authorize a jury to find such a contract, the evidence must satisfactorily show that the parties contracted solely in reference to the sample exhibited; that they mutually understood that they were dealing with the sample as an agreement or understanding that the bulk of the commodity corresponded with it; or, in other words, the evidence must be such as to authorize the jury, under all the circumstances of the case, to find that the sale was intended by the parties as a sale by sample. * * * That a personal examination of the bulk of the goods by the purchaser at the time of the sale is not practicable nor convenient, furnishes no sufficient ground, of itself, to say that the sale is by sample." The want of an opportunity, from whatever cause, for such an examination, is doubtless a strong fact in reference to the question of the character of the sale, whether it is made by sample or not; but it is, nevertheless, true that a contract of sale by sample may be made, whether such examination be practicable or not, if the parties so agree. Where the acts and declarations of the parties in making the contract for the sale of goods are of doubtful construction, evidence that it was impracticable or inconvenient to examine the bulk of the goods would be proper, and, in connection with evidence of other circumstances attending the transaction, might aid in coming to a correct conclusion in respect to the true character of the contract." I § 20. IMPLIED WARRANTY OF TITLE-THE RULE IN ENGLAND. "It is very remarkable," said PARKE, B., in Morley v. Attenborough,2 "that there should be any doubt on this subject, it being certainly a question so likely to be of common occurrence, especially in this commercial country. Such a point one would have thought would not have admitted of any doubt. The bargain and sale of a specified chattel by our law, which differs in that respect from the civil law, undoubtedly transfers all the property the vendor has, where nothing further remains to be done, according to the intent of the parties. But it is made a question whether there is annexed by law to such a contract, which operates as a conveyance of the property, an implied agreement on the part of the vendor that he has the ability to convey." Mr. Baron PARKE, as a result of the consideration of all the cases held, "that there is by the law of England no warranty of title in the actual contract of sale, any more than there is of quality. The rule of caveat emptor applies to both." Morley v. Attenborough was the case of the sale of an unredeemed pledge by a pawnbroker, and it was held that there was no implied warranty of title. A few years later the case of Eicholz v. Bannister3 was decided by the common pleas. Here the plaintiff purchased at the defendant's warehouse certain goods described as “a job just received by him.” After the goods were delivered and paid for, it turned out that they had been stolen, and the purchaser was compelled to give them up to the true owner. He then brought an action for the purchase money paid by him, and it was held that he ought to recover. It will thus be seen that the law in England on this subject is not very clear. But Mr. Benjamin, in his work on Sales, says: "On the whole, it is submitted that since the decision in Eicholz v. Bannister the rule is substantially altered. The exception here became the rule, and the old rule has dwindled 1 Gardiner v. Grey, 4 Camp. 144; Powell v. Horton, 2 Bing. N. C. 668; Tye v. Fynemore, 3 Camp. 462; Carter v. Crick, 4 Hurl. & N. 412; Towerson v. Aspatna, 27 Law T. (N. S.) 276; Russell v. Nicolofulo, 8 C. B. (N. S.) 362; Josling v. Kingsford, 13 C. B. (N. S.) 447; Megaw v. Malloy, L. R. 2 Ir. 530; Waring v. Mason, 18 Wend. 425; Ames v. Jones, 77 N. Y. 614; Atwater v. Clancy, 107 Mass. 569; Schuit- 317 C. B. (N. S.) 708. into the exception, by reason, as Lord CAMPBELL said, of having been wellnigh eaten away. The rule at present would seem to be stated more in accord with the recent decisions, if put in terms like the following: A sale of personal chattels implies an affirmation by the vendor that the chattel is his, and therefore he warrants the title, unless it be shown by the facts and circumstances of the sale that the vendor did not intend to assert ownership, but only to transfer such interest as he might have in the chattels sold." 1 § 21. IMPLIED WARRANTY OF TITLE - THE AMERICAN RULE. In the United States there is no such confusion or uncertainty in the decisions; but the implied warranty of title is well established. "It may now be regarded as well settled," says SHARSWOOD, J., "that a person selling as his own personal property of which he is in possession, warrants the title to the thing sold; and that if, by reason of a defect of title, nothing passes, the purchaser may recover back his money, though there be no fraud or warranty on the part of the vendor." 2 § 22. NECESSARY DEPRECIATION-NO IMPLIED WARRANTY. There is no implied warranty against a necessary and likely depreciation which may take place in the quality of the goods between the time of the sale and the delivery into the hands of the purchaser. Thus, when ale was sold in Chicago to a party in Montana, it was held that there was no warranty that it would bear transportation to Montana.3 So, where a sale of wheat was made by sample, the court said: "There is no pretense that there was any difference between the sample and the cargo, except that the latter was treated in a manner incident to every cargo of southern wheat. This deterioration of the cargo, and which undoubtedly prevented its malting, was a fact against which the exhibition of the sample did not warrant, and it is a fact with which the defendants (purchasers) 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 these articles." § 23. WARRANTY IMPLIED FROM CUSTOM OF TRADE. In the early English case of Jones v. Bowden, it was proved that on auction sales of drugs it was the custom to state in the catalogue whether the goods were seadamaged or not. The defendants had offered for sale at auction a quantity of 1And see Brown v. Cockburn, 37 U. C. Q. B. 592; Johnston v. Barker, 20 U. C. C. P. 220; Mercer v. Cosman, 2 Hann. (N. B.) 240; Somers v. O'Donoghue, 9 U. C. C. P. 210. 2 People's Bank v. Kurtz, 11 W. N. 225; 2 Kent, Comm. 478; Story, Sales, 367; Ricks v. Delahunty, 8 Port. 137; Williamson v. Sammons, 34 Ala. 691; Hoe v. Sanborn, 21 N. Y. 555; McKnight v. Devlin, 52 N. Y. 401; McCoy v. Artcher, 3 Barb. 323; Dresser v. Ainsworth, 9 Barb. 619; Vibbard v. Johnson, 19 Johns. 77; Hermance v. Vernoy, 6 Johns. 5; Sweet v. Colgate, 20 Johns. 196; Baker v. Arnot, 67 N. Y. 448; Whitney v. Heywood, 6 Cush. 82; Hubbard v. Bliss, 12 Allen, 590; Shattuck v. Green, 104 Mass. 45; Cushing v. Breed, 14 Allen, 376; Emerson v. Digham, 10 Mass. 202; Coolidge v. Brigham, 1 Metc. 551; Grose v. Hennessy, 13 Allen, 390; Door v. Fisher, 1 Cush. 273; Fogg v. Wilcutt, 1 Cush. 300; Bennett v. Bartlett, 6 Cush. 225; McCabe v. Morehead, 1 Watts & S. 513; Moser v. Hoch, 3 Pa. St. 230; Boyd v. Bobst, 2 Dall. 91; Whitaker v. Eastwick, 75 Pa. St. 229; |