charged the jury in substance as follows, viz:

This case, gentlemen of the jury, is an interesting one, and no more interesting than important, involving as it does, serious questions of law, affecting the every day commerce and business of the islands; and which, hitherto, have never been fully discussed and settled in this court. We are called upon in this ease to establish rules for the government of our merchants and others in all their sales and purchases. How important then, that while we are free and unembarrassed by former decisions and precedents^ we should establish sound rules — rules which shall have a firm foundation in reason, justice and equity, and such as shall promote fair dealing, good morals, the highest honor and the public weal. Instead of adopting the harsh old doctrine of caveat emptor, or, buyer beware, which requires the ven-dee'to be constantly on his guard against the gross representations, the deceitful praises and cunning lures of the vendor, we should lay down such rules as will check fraud of every kind, protect the ignorant,- and teach the vendor that in all the representations made by him as an inducement to the sale of his goods, he should tell the truth, the whole truth, and nothing but the truth. Such rules as.will require of both vendor and vendee not only good faith, but the most scrupulous good faith; not only honesty, but the most exalted honesty, or, as that great and good jurist Judge Story has expressed it, uberrima *116fides in all that relates to the sale and purchase. The maxim of caveat emj)tor, or that the purchaser buys at his own risk, unless the seller gives an express warranty, which is contended for on the authority of the leading case of Chandelor vs. Lopus, and the long line of cases which followed that precedent, can no longer be said to hold that empire over the law of sales, which it formerly did; for the modern decisions on this subject have so trenched upon the doctrine as to reduce it to a mere shadow.

I do not consider the case of Chandelor vs. Lopus good . authority for the purpose for which it is cited; for it was decided on the pleadings of the case, and not on its merits. The old common law rule of caveat envptor, says Story on Sales, has been losing ground, and the law has been tending towards the doctrine of the Roman law, which is its antipode — caveat venditor, or, beware seller — until it now occupies a middle ground between the two, by requiring the strictest good faith on the part of the seller in all that he says and does, and throwing on the buyer the responsibility for any foolish mistake, or wrong conclusions, which may result from his trusting to his own judgment.

It is not contended, in this case that there was any express warranty of the quality of the flour, but it is said the law implies one. It is true that the law does imply a warranty in some cases; for example, it implies a warranty that the article purchased is merchantable, that is, that it possesses some value — that it is fit for some purpose, and can be sold at some price. Secondly, it implies a warranty that it is reasonably fit for the use for which it is known to be intended; that is* if a man sells an article for a particular purpose, he thereby warrants it fit for that purpose.

But lest I should be misunderstood, or state this doctrine of implied warranty too strongly, let me illustrate my idea by examples. The law will imply a warranty that goods are merchantable in all cases where, from their nature or situation at the time of the sale, an examination of them was impossible. Thus, if goods be at sea, or stowed in the hold of a ship, as in this case, or in a storehouse, so that only the snrface can be seen; or if they be in bales, so that an' examination of the centre eannot be made without tearing each bale to pieces, the seller will be understood to warrant them to be merchantable, and of the quality demanded and expected by the buyer. He cannot, says Lord Ellenborough in the case of Gardner vs. Gray, without a warranty, insist that the article shall be of any particular quality or degree of fineness; but the intention of both parties must be taken to be, that it shall be saleable in the market under the denomination mentioned in the contract between them.. But where a man can examine the goods if he choose, and especially where he does examine them, as it is said Hegarty did in this case, he must; take the consequences, if through carelessness or negligence he omit to make a thorough examination. The law will not protect a man’ from the consequences of his own carelessness in such cases, where the seller has not undertaken to furnish an article óf a particular kind or quality, and has done nothing to mislead the buyer. This, if I mistake not, is the language of all modern writers and judges, on the law of sales.

But, say the learned counsel for the plaintiff, this is a sale óf provisions, and whatever may be the law in reference to other goods, in *117the sale of provisions there is always an implied warranty that they are sound and wholesome. It is true that an implied warranty of soundness is raised in the sale of provisions, on the ground that such a warranty is necessary for the preservation of health and life. But a distinction has been made between the sale of provisions in small quantities for domestic use and consumption, and the case of a sale of large quantities of provisions, as merchandise, for exportation. For example, if a man should step into one of our stores and order a barrel of flour to be sent up to his house, for family use, there would-be an implied warranty that it was sweet and wholesome; but if he should ask for flour, and buy a hundred barrels, without a single question as to its condition and quality, the flour being open to his inspection, and he relying solely on his own judgment, the case would be far different. In the latter case he has bought the flour in the same manner as he would any other merchandise, and in the absence of any misrepresentation or act on the part of the seller, calculated to mislead him, he must be supposed to have taken the risk of the sweetness ot the flour upon himself.

But even granting, says the defendant, all that the plaintiff contends for — that the flour was in the hold of the ship and could not be examined, and that there was an implied warranty of sweetness, still he has no ground for this action. The flour was open to hisinspection, when it was delivered on the wharf, he undertook to examine it, he rejected certain barrels of it as sour, accepted the rest, shipped it to San Francisco, and after all this, will he be permitted to treat the purchase as a nullity, and throw the flour on my hands ? Has there been any false representation in this sale — has there been any breach of an implied warranty in the case ? If there has been, then the plaintiff is entitled to recover, otherwise not.

If the plaintiff is entitled to recover at all, it is said he should recover not only the whole purchase money with interest, but the freight of the flour to and from San Francisco, together with storage and all other expenses incurred by the plaintiff on account of this purchase. The rule governing this point is, that where the contract has been executed, and the goods paid for, the vendee has no right, in the absence of fraud, to return them upon their failure to correspond to the warranty, but must sue upon the warranty, and he can then recover the difference between the price paid and the actual worth of the goods, which in this case, so far as we have any evidence in the matter, is shown to be the difference between $14 and $8 per barrel. In no event could the plaintiff' recover the expenses incurred by him in bringing the flour back from San Francisco, and fpr storage, Etc., subsequent to his arrival here, for it is the duty of the vendee, when at a great distance from the vendor, and the goods cannot be returned without a great expense, to give notice to the vendor, and await a reasonable time for his orders, after which he may proceed to sell the goods on account of the vendor, and he will then be allowed to recover the difference between the net proceeds of such-sale and the’ price paid.

The jury, after a short absence, returned a verdict for the defendant.