and it does not reasonably apply to those cases where the purchaser has ordered goods of a certain character, and relies on the judgment of the seller, or goods of certain described quality are offered for sale, and when delivered, they do not answer the description directed or given in the contract. They are not the articles which the vendee agreed to purchase; and there is an implied warranty that the article shall answer the character called for, or be of the quality described, and salable in the market, and under that denomination. (c) When goods are discovered

(c) Laing v. Fidgeon, 6 Taunt. 108. Tindal C. J., in Brown v. Edgington, 2 Mann. & Gr. 279, 290. Weall v. King, 12 East, 452. Gardiner v. Gray, 4 Campb. N. P. 144. Bridge v. Waine, 1 Stark. N. P. 104. Hastings v. Lovering, 2 Pick. 214. Woodworth J., in Swett v. Colgate, 20 Johns. 204. Hyatt v. Boyle, 5 Gill & J. 110. Osgood v. Lewis, 2 Harr. & Gill, 495. Borrekins v. Bevan, 3 Rawle, 23. The recent English cases of Gray v. Cox, and Jones v. Bright, (4 Barn. & Cress. 108; 5 Bing. 533, 3 M. & P. 155,) give countenance to the more extended doctrine of the civil law, that on the sale of an article there is an implied warranty that it is merchantable, or fit for the purpose declared. The progress of the new English doctrine, which raises, on a fair sale of an article of goods or merchandise, the implied warranty that it is merchantable or fit for the purpose intended, is worth attending to. In Jones v. Bowden, 4 Taunt. 847, the warranty was implied from the custom of the trade. In Laing v. Fidgeon, (6 Taunt. 108,) it was implied, that in the sale of manufactured goods they should be merchantable, or fit for some purpose.2 In Gray v. Cox, 4 Barn. & Cress. 108, Lord Tenterden held, that if a commodity be sold for a particular purpose, there was an implied warranty that it should be reasonably fit for that purpose. Lord Ellenborough, in Bluett v. Osborne, 1 Stark. 384, expressed himself to the same effect; and in Jones v. Bright, (5 Bing. 533,) and Shepherd v. Pybus, 3 Mann. & Gr. 868, the court of C. B. established the same doctrine. The rule is not universally applied, but it approaches very near to the establishment of an implied warranty in every case. As yet it is the usage of trade, the manufactured goods, or the specific purpose, that raises the warranty. But the principle would apply equally to the sale of a horse for a particular purpose, as for a carriage, or to carry a female; and some of the American cases have taken hold of the new English doctrine, and shown a disposition to domesticate it. Thus, in Osgood v. Lewis, 2 Harr. & Gill, 495, and in Van Bracklin v. Fonda, 12 Johns. 468, and in Moses v. Mead, 1 Denio, 378, and by Cowen J., in Hart v. Wright, 17 Wendell, 267, it was held, that on the sale of provisions for immediate domestic use,

8

2 It was so held in Brown v. Murphee, 31 Miss. (2 George,) 91. In Hoe v. Sanborn, 21 N. Y. 552, it was held, that on a sale by a manufacturer there is an implied warranty against latent defects caused by the process of manufacture, but that a defect in the materials employed is covered by an implied warranty only when it is proved or presumed that such defect was known to the manufacturer.

3 It was so held in Walton v. Cody, 1 Wis. 420. And see Babcock v. Trice, 18 Ill. 420. But this implied warranty does not necessarily arise in all cases upon the mere fact that the purpose for which the article is to be employed is communicated by the buyer to the seller, when the dealing relates to an article existing and open to examination. Deming e. Foster 42 N. Hamp. 115. Keates v. Cadogan, 2 Erg. I.. & Eq. 318. Mosely v. Clavering, 29 Beavan, 84.

not to answer the order given for them, or to be unsound, *480 the purchaser ought immediately to return them to the

there was an implied warranty that they were wholesome; but if provisions be sold as merchandise, and not for immediate consumption, there is no implied warranty of soundness. Ibid. In Gallagher v. Waring, 9 Wendell, 20, it was held, that on a sale of cotton in bales, without sample or examination, and when the inspection of the article was equally accessible, and its quality equally unknown to both parties, there was an implied warranty that the article was merchantable. So, in the case of Harmony v. Wager, (N. Y. Superior Court, April, 1836,) on a sale by a commission merchant, of barilla, it was held, that as the defendant had not an opportunity (the article being in bales, and its intrinsic merits equally unknown to both parties) to examine the bulk of the article sold, he was entitled to expect a merchantable article; and that having bought, with the knowledge of the seller, the article for a particular purpose, he was entitled to an article which would answer for that purpose. These last cases go quite as far at least as any of the English cases, and trench deeply upon the plain maxim of the common law, caveat emptor; and I cannot but think that the old rule, and the old decisions down to that of Seixas v. Wood, were the safest and wisest guides; and that the new doctrine carried to this extent, will lead to much difficulty and vexatious litigation in mercantile business. In Hart v. Wright, 17 Wendell, 267, Judge Cowen learnedly reviews the cases on the subject, and the conclusion of the court is justly and spiritedly in favor of the old rule of the common law, in contradiction to the rule of the civil law, and he says it is the American doctrine, and emphatically so in New York. C. J. Bronson, in Moses v. Mead, 1 Denio, 385, is of the same opinion. On a general sale of merchandise for a sound price, there is no implied warranty that the article is fit for merchantable or manufacturing purposes. A warranty is not raised by a sound price alone, except under peculiar circumstances, as where there is a written description as to kind or quality, or goods of a certain description are contracted for, or perhaps in some other peculiar cases. So, again, in the case of Waring v. Mason, 18 Wendell, 425, the Chancellor and Mr. Senator Paige expressed themselves decidedly in favor of the common-law doctrine; and in the case of Wright v. Hart, in error from the Supreme Court to the Court of Errors, (Ibid. 449,) Chancellor Walworth and Mr. Senator Tracy gave a strong sanction to the argument of Judge Cowen, in support of the common-law doctrine of caveat emptor, and the rule of the civil law was rejected. The common law on this point is now reinstated in the jurisprudence of New York. C. J. Gibson, also, in the Pennsylvania case of M'Farland v. Newman, September, 1839, Law Reporter, ii. 301, 9 Watts, 55, supports this common-law doctrine of caveat emptor, on the sale of chattels, in cases without fraud, misrepresentation, or warranty, understandingly made, with distinguished strength and success. In South Carolina, (as, see infra, p. 481) the prior doctrine of the English law is adhered to in a case analogous to the one in New

York. (In the London Law Magazine, No. 7, this subject is fully and ably discussed. Again, the Supreme Court of New York, in Howard v. Hoey, 23 Wendell, 350, has

+ In Burnby v. Bollett, 16 Mees. & W. 664, the defendant bought provisions of a dealer, and, before taking them away, sold them to the plaintiff. They turned out to be unfit for use and a suit was brought on the implied warranty. It was held, after a thorough examination of the authorities, that the doctrine of implied warranty in the sale of provisions applied only to common dealers therein, and was founded, not on the principles of the common law, but on certain ancient statutes..

5 Affirmed in the Court of Errors, 4 Denio, 617.

vendor, or give him notice to take them back, and thereby rescind the contract; or he will be presumed to acquiesce in the quality of the goods. (a) In the case of a breach of warranty, he may sue upon it without returning the goods; but he must return them and rescind the contract in a reasonable time, before he can maintain an action to recover back the price. (b) 2 He cannot deal

1

strongly enforced the distinction between executed and executory contracts. It has declared, that in a contract of sale of an article of merchandise at a future day, where there is no selection or setting apart at the time of specific articles, so as to pass the property in præsenti, merchantable quality, bringing the average market price, is intended. In the case of an executed sale an express warranty of quality is necessary to bind the vendor in the absence of fraud. Moses v. Mead, 1 Denio, 378. But if the sale be executory, or to deliver an article not defined at the time, on a future day, there is an implied warranty that the article shall be at least of medium quality or goodness. The rule, in such a case, of caveat venditor, and not caveat emptor, governs. If the thing comes short of being merchantable, it may be returned after the vendee has had reasonable time to inspect it. "Suitableness," says the court, enters into every promise to deliver articles of manu

facture." In this case the court seems to relax from the severity of the doctrine in 17 and 18 Wendell, and to repose upon the modern and milder English rule. It is to be regretted that the rule (whatever it may be) concerning the application of implied warranties in the sale of personal property, is not more certain and stable. In Sutton v. Temple, 12 Mees. & W. 52, it was held, after much discussion, that on a demise of land simply for pasture of cattle for a certain term, at a fixed rent, there was no implied warranty that the pasture should be fit for that purpose, though where a contract was for a specific chattel, for a specific purpose, there was an implied obligation that it should be fit for that purpose. Hart v. Windsor, 12 Mees. & W. 68, S. P. Sedgwick on Damages, pp. 289-300, has collected the cases on the rule of damages on warranties contained in sales, and they are in perplexing contrariety; and the masterly writers on the civil law, to whom Mr. Sedgwick refers, leave us in equal difficulty, and without any certain guide or definite rule. Idem, pp. 300-309.7

(a) Fisher v. Samuda, 1 Camp. N. P. 190.

(b) Fielder v. Starkin, 1 H. Blacks. 17. Weston v. Downes, Doug. 23. Towers v.

• See further as to implied warranty of manufactured goods, Getty v. Roundtree, 2 Chandl. 28. Brown v. Sayles, 1 Wms. 227. Bull v. Robison, 28 E. L. & Eq. 586. Rodgers v. Niles, 11 Ohio, 48. Hamilton v. Ganyard, 34 Barb. (N. Y.) 204. The rule of careat emptor in the case of goods sold for a specific purpose without express warranty is ably maintained in Dickson v. Jordan, 11 Ired. (N. C.) 166. The custom of a trade was not allowed in evidence of warranty in Wetherill v. Neilson, 20 Penn. 448, nor of a sale by sample in Beirne v. Dord, 1 Seld. 95: and in Carson v. Baillie, 19 Penn. 375, it was held that, where there was inspection of the article sold, no warranty could be implied from a bill of parcels.

On a sale for a specific purpose the damages are measured by the actual loss sustained by reason of the unsuitableness of the article sold. Passenger v. Thorburn, 35 Barb. (N. Y.) 18, and in Randall v. Roper, 1 Ell., B. & Ell. 84, on a sale of seed, it was alleged that the buyer had sold the seed again and become liable to his vendee for the deficient productiveness of the fields sown with the seed. These damages were allowed to be recovered.

1 He may do so, although the vendor engages that the article may be returned, if it does not fulfil the contract. Douglass Axe Manufacturing Co. v. Gardner, 10 Cush. 88.

2 If he has refused to accept the goods on account of breach of warranty, but has sold a

with the article purchased after discovery of fraud in a sale, without

Barrett, 1 Term Rep. 133. Curtis v. Hannay, 3 Esp. 82. Kellogg v. Denslow, 14 Conn. 411. Patteshall v. Tranter, 4 Nev. & Mann. 649. 3 Adol. & Ell. 103, S. C. In this last case the decision in Fielder v. Starkin, that an action will lie on a breach of warranty of soundness of a horse sold, though it be not returned, and though notice of the unsoundness be delayed, was held to be sound law. Franklin v. Long, 7 Gill & Johns. 407. Boorman v. Jenkins, 12 Wendell, 566. Waring v. Mason, 18 Wendell, 426. To the same purpose it has been held that if the chattel had a defect fraudulently concealed, the vendee has his election either to keep it, and sue for damages, or to return, or offer to return it within a reasonable time, and rescind the contract. Hoggins v. Becraft, 1 Dana (Ken.) 30. The vendor, after notice that the horse warranted sound is unsound, and when an offer is made to return him, and the vendee sells him, is answerable for the difference of price, and the keep of the horse for a reasonable time. Chesterman v. Lamb, & Nev. & Mann. 196. In Street v. Blay, 2 Barn. & Adol. 456, it was held that the vendee could not rescind the sale and return the property if the sale was without fraud. Cowen J., in Cary v. Gruman, 4 Hill (N. Y.) 625 S. P. He has only an action on his warranty, Sedgwick on Damages, p. 290; and it is now well settled, he observes, Idem, p. 290, that the rule of damages is the difference between the actual value and the value the article would have possessed if it had conformed to the warranty. As to the measure of damages on breaches of contract, it seems not to be explicitly settled whether in the case of a horse sold and warranted sound, which proves to have been unsound, and is resold by the buyer at a reduced price, the measure of damages is to be the difference between the original price and the price the horse sold for, or between the price the horse sold for and the value of the horse, if sound, going far beyond the original price. The dictum of Lord Eldon, in Curtis v. Hannay, 3 Esp. 82, is in favor of the actual value of the horse, if sound, at the resale; but Lord Loughborough, in Fielder v. Starkin, 1 H. Blacks. 17, is in favor of the value, as ascertained by the original agreement, and this would seem to be in harmony with the rule of damages on the covenant of warranty in the sale of land. The general rule is well settled, that in a suit by vendee for a breach of contract on the part of the vendor, for not delivering an article sold, the measure of damages is the price of the article at the time of the breach. The contract price, on the one hand, and the rise subsequent to the breach, are both to be disregarded. Mr. Sedgwick, in his Treatise on the Measure of Damages, p. 266, says, that in this place the author of the Commentaries appears to have overlooked the distinction running through the cases, resulting from the payment of the price beforehand, and which distinction is, that if the price be not advanced beforehand, the measure of damages is the value of the article contracted for at the time it was to be delivered, but if the price be previously advanced, the contract price is not the rule of damages, but the highest value of the article at the time of trial. The cases that declare or countenance this distinction are Shepherd v. Johnson, 2 East, 211. M'Arthur v. Seaforth, 2 Taunt. 257. Downes v. Buck, 1 Starkie, 318. Harrison v. Harrison, 1 Carr. & Pa. 415. Gainsford v. Carroll, 2 Barn. & Cress. 624. West v. Wentworth, 3 Cowen, 82. Clark v. Pinney. 7 Idem, 681. The cases in opposition to the distinction, either expressly or impliedly, are Gray v.

portion before discovery of the breach, so that he cannot restore them to the vendor on demand, he is liable for their market value at the time of demand. Shields v. Pettie, 4 Comst. 122.

3 Woodward v. Thatcher, 21 Vermont, 580, adopts the rule as expressed by Lord Eldon. Thornton v. Thompson, 4 Gratt. 121.

losing his right of action. (e) An offer to return the chattel in a reasonable time, on breach of warranty, is equivalent in its effect

331.

Portland Bank, 3 Mass. 364. Swift v. Barnes, 16 Pick. 194. Gilpins v. Consequa, 1 Peters C. C. 85. Bush v. Canfield, 2 Conn. 485. Wells v. Abernethey, 5 Conn. 222. Startup v. Cortazzi, 2 Cr., Mees. & Ros. 165. Blydenburgh v. Welsh, Bald. C. C. Smethurst v. Woolston, 5 Watts & Serg. 106. Vance ». Tourne, 13 Louis. 225. The learned author is mistaken in supposing I had overlooked that distinction. These commentaries are not calculated to embody all the nice, or arbitrary, or fanciful distinctions that are to be met with in the reports. I do not regard the distinction alluded to as well founded or supported. It is disregarded or rejected by some of the best authorities cited. The true rule of damages is the value of the article at the time of the breach, or when it ought to have been delivered. Mr. Sedgwick seems himself to come to that conclusion amid the contrariety of opinion and cases which he cites. Treatise, pp. 260-280. This is the plain, stable, and just rule within the contract of the parties. Damages for breaches of contract are only those which are incidental to, and directly caused by, the breach, and may reasonably be supposed to have entered into the contemplation of the parties, and not speculative profits, or accidental or consequential losses, or the loss of a fancied good bargain." Walker v. Moore, 10 Barn. & Cress. 416. In Masterton v. Mayor of Brooklyn, 7 Hill, 62, the question of damages was well discussed, and it was held that profits or advantages which were regarded as the direct and immediate fruits of the contract, are to be considered as parcel and elements of the contract, and to be allowed. See also Hayden, v. Cabot 17 Mass. 169. Deys v. Waggoner, 19 Johns. 241. Sedgwick's Treatise, pp. 81-88. 6 Toullier, sec. 286. Flureu v. Thornhill, 2 Blacks. 1078. Williams v. Barton, 13 Louis. 404. Blanchard v. Ely, 21 Wendell, 342. But Lord C. J. Denman, in Cox v. Walker, cited in a note to Clare v. Maynard, 6 Adol. & Ell. 519, and also in the last case, laid down the rule of damages to be, the difference between the value of a horse at the sale, considering him to be sound, and the value with the defect complained of, and not the difference between the price of the first purchase and of the actual sale. So, in Shannon v. Comstock, 21 Wendell, 457, it was held, that in an action to recover damages for non-performance of a contract, the rule of damages was held to be the loss sustained, and not the price agreed to be paid on actual performance. In Cary v. Gruman, 4 Hill, 625, the rule as declared by Lord Denman was adopted and the price paid was only prima facie evidence of the then value.

(c) Campbell v. Fleming, 1 Adol. & Ell. 40. A party defrauded in a contract has his choice of remedies. He may stand to the bargain, and recover damages for the fraud, or he may rescind the contract, and return the thing bought, and receive back what he paid or sold.6

Whitney v. Allaire, 1 Comst. 305. Kingsbury v. Smith, 13 N. Hamp. 109. Giles v. O'Toole, Barb. (N. Y.) 261. N. Y. & H. R. Co. v. Story, 6 Idem, 419. Beals v. Terry, 2 Sandf. (Law) 127. Freeman v. Clute, 3 Barb. (N. Y.) 424.

5 Giles v. O'Toole, supra. Lawrence v. Wardwell, 5 Barb. (N. Y.) 432. Waters v. Towers, 20 E. L. & Eq. 410. The rule of damages on sale of goods is said, in West v. Pritchard, 19 Conn. 212, to be the value at the time the contract was broken, except when the goods were paid for in advance, or on the sale of stocks, when, if they have risen in value the purchaser may recover the value at time of trial.

• Utter v. Stuart, 30 Barb. (N. Y.) 20. Newbery v. Garland. 31 Barb. (N. Y.) 121. Smith v. Doty, 24 Ill. 163.

See Muller v. Eno, 3 Duer, 421.