Patent Defects.-" Plain and obvious defects are not covered by a general warranty. But if they are not discoverable by the eye, if they require skill to discover them, though apparently the object of the senses, the warrantor is responsible. A man may warrant against obvious defects; and the reason why a general warranty does not cover them, is because it is presumed that they are not intended to be included in it, being known to the parties before the warranty is given. But where they are not so known to the purchaser, as where he is blind; or the vendor uses art to conceal them, and succeeds in concealing them from the purchaser, the reason of the rule ceases, and the warrantor ought to be responsible for them." (The horse limped and the vendor attributed it to a cold.) Chadsey v. Greene, 24 Conn. 562, 573. See Brown v. Bigelow, 92 Mass. (10 Allen) 242; Woodbury v. Robins, 64 Mass. (10 Cush.) 520.

"If the plaintiff by words or acts deceives the defendant as to the quality or value of the goods sold, yet the defendant could not maintain an action for deceit if the goods were open to his observation, and he could by the use of ordinary diligence and prudence ascertain their quality. He should use reasonable diligence to ascertain their quality or protect himself by warranty." (Tort for false representations in sale of a bond.) Brown v. Leach, 107 Mass. 364, 368. Citing Brown v. Castles, 65 Mass. (11 Cush.) 348; Gordon v. Parmlee, 84 Mass. (2 Allen) 212; Veasey v. Doton, 85 Mass. (3 Allen) 380; Mooney v. Miller, 102 Mass. 217.

"It is true that in cases of representations as to quality, correspondence to samples, etc., of goods exhibited in the buyer's presence, the court has ruled that if the buyer had ful means of ascertaining the truth for himself, he could not set up that he was imposed upon by fraud. Salem India Rubber Co. v. Adams, 40 Mass. (23 Pick.) 256, 265; Slaughter Admr. v. Gerson, 80 U. S.

(13 Wall.) 379; Long v. Warren, 68 N. Y. 426; and that a verdict has been directed partly on that ground, Poland v. Brownell, 131 Mass. 138; see Bayley v. Merrel, Cro. Jac. 386; but the requirement as it has been worked out does not call for more than reasonable diligence, Holst v. Stewart, 161 Mass. 516, 522; Brown v. Leach, 107 Mass. 364, 368; Nowlan v. Cain, 85 Mass. (3 Allen) 261; and distance and other slight circumstances have been held sufficient to warrant leaving the question to the jury. Holst v. Stewart, 161 Mass. 516, 522, 523; see Burns v. Lane, 138 Mass. 350, 355, 356; Whiteside v. Brawley, 152 Mass. 133.

The matter may have been confused a little by not distinguishing between seller's talk, as to the value and the like. Where the rule is absolute in ordinary cases, that the buyer must look out for himself, and representations of fact concerning which even sellers may be held liable for fraud, and as to which the buyer may be warranted in relying wholly on the seller's word. The notion that the buyer must look out for himself sometimes has been pressed a little too strongly in the latter class of cases." Whiting v. Price, 172 Mass. 240; approved in, Honsucle v. Ruffin, 172 Mass. 420.

The defects of brick warranted 66 to be good brick and all right" which could not be discovered without removing three thicknesses of board with which the brick were covered, are not so obvious as to prevent a general warranty to be construed to apply to them. Meickley v. Parsons, 66 Ia. 63.

The defects of a slave warranted sound which could not be discovered without stripping the slave, were not obvious within the rule. Thompson v. Bertrand, 23 Ark. 730.

The defects of an engine warranted sound which could not be discovered without removing the cover of the steam chest were held not obvious. Drew v. Edmunds, 60 Vt. 401.

The defect to be obvious must be

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one which does not require special skill to detect it. Thompson v. Harvey, 86 Ala. 519, 522; Callaway v. Jones, 19 Ga. 277; Meickley v. Parsons, 66 Ia. 63; Fitzgerald v. Evans, 49 Minn. 541; Thompson v. Botts, 8 Mo. 710; Birdseye v. Frost, 34 Barb. 367; Wilson V. Ferguson, Cheves (S. C.) 190; Wallace v. Frazier, 2 N. & M'C. (S. C.) 516; Scarborough v. Reynolds, 13 Rich. (S. C.) 98; Drew v. Ellison, 60 Vt. 401; Vates v. Cornelius, 59 Wis. 615.

The defects of a churn, warranted by the maker made of Juniper wood, with a nickel plated rod, that the churn was painted, and the rod of polished iron, were held not obvious under the rule. Tabor v. Peters, 74 Ala. 90.

42. Armstrong v. Bufford, 51 Ala. 410; Roseman v. Canovan, 43 Cal. 110; Perdue v. Harwell, 80 Ga. 150; Kenner v. Harding, 85 Ill. 264; Hanks v. McKee, 12 Ky. (2 Littell) 227; Gant v. Shelton, 42 Ky. (3 B. Mon) 420; Robertson v. Clarkson, 48 Ky. (9 B. Mon.) 507; Brown v. Weldon, 27 Mo. App. 251; 99 Mo. App. 594; Biggs v. Perkins, 75 N. C. 397.

The vendee saw the horse limping at the time of the sale and was deceived by the vendor's attributing the lameness to a cold. Chadsey V. Greene, 24 Conn. 562 supra.

43. Tabor v. Peters, 74 Ala. 90; Thompson v. Harvey, 86 Ala. 519; Chadsey v. Greene, 24 Conn. 562, 573; Moultrie Repair Co. v. Hill, 120 Ga. 730; Christian v. Knight, 120 Ga. 501; Reed v. Hastings, 61 Ill. 266; First Nat. Bank v. Grindstaff,

45 Ind. 158; Storrs v. Emerson, 72 Ia. 390; Fletcher v. Young, 69 Ga. 591; Greenstine v. Borchard, 50 Mich. 434; Zimmerman v. Morrow, 28 Minn. 367, 383; Torkelson V. Jorgenson, 28 Minn. 383; Fitzgerald v. Evans, 49 Minn. 541; Fitzpatrick v. Osborne Co., 50 Minn. 261; Hansen v. Gaar, 63 Minn. 94; Samuels v. Guin, 49 Mo. App. 8; Little v. Woodworth, 8 Neb. 281; Halliday v. Briggs, 15 Neb. 219; Watson V. Roode, 30 Neb. 264; Holman v. Dord, 12 Barb. (N. Y.) 336; Abilene Bank v. Nodine, 26 Ore., 53; Norris v. Parker, 15 Tex. Civ. App. 117; McAfee v. Meadows, 32 Tex. Civ. App. 105; Pinney v. Andrus, 41 Vt. 631; Hahn v. Doolittle, 18 Wis. 196; Liddard v. Kain, 9 Moore, 356, 3 Bing. 183.

"Where there is uncertainty and difficulty and the representation is not glaringly inconsistent with the obvious condition and quality of the property, or where the results of the known defect are not apparent at the time, and could not have been reasonably foreseen, the buyer may rely on the warranty or representation, and not on his own judgment." Thompson v. Harvey, 86 Ala. 519. To the same effect are: Fletcher v. Young, 69 Ga. 591; Perdue v. Harwell, 80 Ga. 150; Storrs v. Emerson, 72 Ia. 390; Stucky v. Clyburn, Cheves L. (S. C.) 186.

44. Miller v. Moore, 83 Ga. 684; 6 L. R. A. 374; Christian v. Knight, 128 Ga. 501; Portland Cement Co. v. Turpin, 126 Ga. 677; South Bend Pulley Co. v. Caldwell (Ky. 1900), 55 S. W. 208; Harrington v. Smith,

138 Mass. 92; Ellis v. Riddick, 34 Tex. Civ. App. 256; Barnum Iron & Wire Works v. Seeley, 34 Tex. Civ. App. 47; Kaiser v. Nummerdon, 120 Wis. 234, 236.

A purchaser of an article may examine it for himself and exercise his own judgment upon it, and at the same time may protect himself by taking a warranty. Smith v. Hale, 158 Mass. 178.

"Where representations as to the quality of goods sold, whether the sale is by sample or in bulk, are made by the vendor in the buyer's presence and the vendee has a full opportunity for inspection and examination and can find out and determine for himself the truth or falsity of such statements made by the seller, and thereafter chooses, under such circumstances, to purchase and is deceived, he has no cause of action against the vendor. Brown v. Leach, 107 Mass. 364, 368. But this rule cannot be applied in every case, and as has been pointed out, the distinction is between seller's talk as to value and quality, and there the rule of caveat emptor applies; while in another class of cases the buyer may be warranted in relying wholly on the word of the seller and hold him liable in damages for fraud. Whiting v. Price, 172 Mass. 240, 241; Honsucle v. Ruffin, 172 Mass. 420, 422. If this rule is to be applied in this case as the defendant argues, whether the plaintiff was called upon to use, and did use, reasonable diligence, which was all that she was required to exercise to ascertain the truth or falsity of the defendant's representations was a question for the jury, and in the absence of any statement to the contrary in the bill of exceptions must be presumed to have been submitted to them under sufficient instructions. Burns V. Lane, ubi supra. Holst v. Stewart, 161 Mass. 516, 522." Lee v. Tarplin, 183 Mass. 52, 57.

Special Warranty. "Even where the vendee might, with reasonable care, have discovered the real nature of the article by examination, he may rely on the affirmation of the vendor, who will still be liable if it varies in kind from the description given in his contract." Wilson v. Lawrence, 139 Mass. 318, 321. Citing Henshaw v. Robins, 50 Mass. (9 Met.) 83; Mixer v. Coburn, 52 Mass. (11 Met.) 559.

An opportunity to examine or an actual examination will not necessarily do away with the effect of a warranty. The vendee is not bound to exercise his skill, having a warranty. Gould v. Stein, 149 Mass. 570, 577, 5 L. R. A. 213.

The purchaser may protect himself by an express warranty notwithstanding he examines the goods. Henshaw V. Robins, 50 Mass. (9 Met.) 83; Smith v. Hale, 158 Mass. 178.

"In Bradford v. Manly, 13 Mass. 139, the cocoa was examined by the purchaser before the sale, and yet the vendor was held liable en bis warranty." Henshaw v. Robins, 50 Mass. 83.

The purchaser of personal property may rely upon the statements of the vendor as to the quantity, and the vendor will be liable for breach of warranty if he knowingly mistates the quantity. Lewis v. Jewell, 151 Mass. 345.

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In Tye v. Fynmore, 3 Camp. 462, which was assumpsit on a sale note of 2 tons of fair merchantable sassafras wood,' the vendee was a druggist well skilled in articles of that sort, and the day before the sale a specimen of the wood sold was exhibited to him, and he kept it until the following night, and had a full opportunity to examine it. Lord Ellenborough decided that it was immaterial that the vendee was a druggist and skilled in the nature of medicinal woods. He was not bound

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to exercise his skill, having an express undertaking from the vendor as to the quality of the commodity. This is a very strong case on this point as also is the case of Shepherd v. Kain, 5 Barn. & Ald. 240. This depended on an advertisement of the sale of a vessel in which it was described as a copper fastened vessel but with these words subjoined: The vessel with her stores as she now lies to be taken with all faults without allowance for any defects whatsoever.' The vessel when sold was only partially copper fastened and was not what was called in the trade a copper fastened vessel. The buyer had a full opportunity of examining the vessel before the sale.

It was held that the purchaser was entitled to damages in an action upon the warranty and that the words 'with all faults' could only mean all faults which a copper fastened vessel might have." Henshaw v. Robins, 50 Mass. (9 Met.) 83, 90.

"Where there is an express warranty on the part of the vendor embodied in and made a part of the contract of sale, and this warranty is false, case will lie on the ground that by means of the warranty the buyer is lulled into security and prevented from making any examination." Salem India Rubber Co. v. Adams, 40 Mass. (23 Pick.) 256, 265. "When a buyer purchases an article whose true character he cannot discover by any examination which it is practicable for him to make, at the time, why may he not rely upon the positive representation of the seller as to its character, as well as to its quality and condition?" Hawkins v. Pemberton, 51 N. Y. 198, 202.

45. Watson v. Rowe, 16 Vt. 525; Wood v. Smith, 5 M. & R. 124.

suit on the warranty, to prove not only that the horse was not sound but that the seller knew it. If, however, the seller meant to keep within the line of formal truth, but by artifice to make his statement have all the effect on the buyer's mind that a positive falsehood would have had, the seller's knowledge of the horse's defects need not be proved. Burnham v. Sherwood, 56 Conn. 229, 232; Cook v. Moseley, 13 Wend. (N. Y.) 277 (a similar case).

Scienter need not be proved to establish a breach of a full express warranty. Becker v. Atchason, 70 N. J. L. (41 Vroom) 157.

"The ancient remedy for a false warranty was an action on the case sounding in tort. Stuart v. Wilkins, 1 Doug. 18, 21; Williamson v. Allison, 2 East, 446, 447. The remedy by assumpsit is comparatively of modern introduction. It is now well settled, both in English and American jurisprudence, that either mode of procedure may be adopted. Whether the declaration be in assumpsit or in tort, it need not aver a scienter. And if the averment be made it need not be proved. Williamson v. Allison, 2 East 446; Gresham v. Postan, 2 Car. & P. 540; Brown v. Edgington, 2 Man. & Gr. 279; Holman v. Dord, 12 Barb. (N. Y.) 336; House v. Fort, 4 Blackf. (Ind.) 293; Trice v. Cockran, 8 Gratt. (Va.) 442, 449; Lassiter v. Ward, 11 Ired. (N. C.) 443." Schuchardt v. Allen, 68 U. S. (1 Wall.) 359.

In an action of tort for fraud scienter must be proved. Searing v. Lum, 5 N. J. L. (2 South) 683; Wolcott, Johnson & Co. v. Mount, 36 N. J. L. (7 Vroom) 262; McGlade v. McCormick, 57 N. J. L. (28 Vroom) 430.

Scienter need not be alleged, nor proved if alleged, in an action of