delivered the opinion of the Court. Three questions have been argued in this cause. The first (presented by the 1st, 2d and 3d exceptions) is, whether the statement in the bill of parcels, that the oil therein mentioned was winter pressed, be a warranty of that fact? The second, (arising on the 4th exception,) is, whether upon the whole proof permitted to go to the jury, the county court erred in instructing them, that there was no evidence that the oil was warranted winter pressed? The third question (involved both in the third and fourth exceptions,) is, can the appellants, having sued in case, and charged fraud and deceit, recover without proof of a scienter?

It was not denied in the argument, that after verdict the allegation of fraud and deceit in the declaration is equivalent to the charge of an actual scienter; and it was admitted, that if in this case there be an express warranty that the oil was winter pressed, then the averment of fraud and deceit is immaterial,* and need not be proved.

Warranties on the sales of personal property have usually been divided into two classes, express and implied. To create an express warranty, the word “warrant” need not be used; nor is any precise form of expression required. Any affirmation of the quality or.condition of the thing sold, (not uttered as matter of opinion or belief,) made by the seller at the time of sale, for the purpose of assuring the buyer of the truth of the fact affirmed, and inducing him to make the purchase; if so received and relied on by the purchaser, is an express warranty. And in cases of oral contractsmn the existence of these necessary ingredients to such a warranty, it is the province of the jury to decide, upon considering all the circumstances attending the transaction. But of written contracts, the court are the expositors. Whether the instrument contain an express warranty or not, they must determine; not leave the question to be inferred by a jury from a consideration of facts aliunde.

*519Implied warranties arise by operation of law; they exist without any intention of the seller to create them; and may properly be divided into two kinds. The one untinctured by actual fraud or deceit; as the warranty of title; warranty that provisions purchased foi domestic use are wholesome; and the warranty in executory contracts, or where the purchaser had no opportunity of inspection, that the article contracted for shall be saleable as such in the market. The other kind of implied warranties are those where fraud and deceit are of their very essence; without which they do not exist; as in cases where the seller of any article, knowing of its unsoundness, uses any disguise or artifice to conceal it, or represents it, (whether in the way of expressing opinion or belief, or otherwise,} to be exempt from such defect. Implied warranties are not conclusions or inferences of fact drawn by a jury; but they are the conclusions or inferences of law, pronounced by the court, upon facts admitted or proved before the jury. If the facts be controverted, the court hypothetically instruct the jury, that if they find such and such facts, then there is an implied warranty, and their verdict must be given accordingly; but if they do not find those facts then .there is no implied warranty. Where an inquiry, therefore, is submitted to a jury, whether an affirmation or statement, made by the seller; of the quality of an article sold, be a warranty or not, the question would be, not whether it be an implied but an express warranty? Had the court below permitted' this case to go to the jury to determine whether, upon the whole testimony offered, the oil was winter pressed oil, the question of express warranty only could have been the’subject of their inquiry. The attempt therefore, by the appellee’s counsel, to sustain the opinion of the county court, on the ground that' the present action depends on an implied warranty, if these positions be correct, cannot avail them.

in support of the doctrine likewise insisted on, that conceding this to be an implied warranty, on which an action on the ease could be sustained, without any allegation of fraud, yet, that fraud being charged must be proved, no case of acknowledged authority has been produced. The passages relied- on -to establish it in Selwyn’s Nisi Prius, p. 482, 3, tit. Deceit, *520are mere statements of the principles decided in Dale's Case, Cro. Eliz. 44. Springwell v Allen, Alleyn, 91, and Chandelor & Lopus, Cro. Jac 4. The only point adjudged in the two former of these cases is, that he who sells a chattel without title, is not answerable to the purchaser, (from whom the property is recovered by the rightful owner,) unless he made an express warranty, or knew of the defect of his title. And the only point settled by the last case, except that in pleading affirmation of a fact, does not mean a warranty thereof, is, that if-the seller of a horse, knowing him to be unsound, affirm to the buyer that he is sound; or if the owner of a stone of no real value, knowing it to be such, sell it to' a person unskilled in such articles, as a diamond of great value, and affirm it so to be; that no action lies against him by the purchaser whom he has defrauded; and that it is the same thing whether he knew his affirmations to be false, or believed them to be true. It is unnecessary to say, that these decisions are at war with the settled axioms of the law, as recognized in all modern cases and writers on the subject. In an action on the case, upon an express warranty, fraud and deceit, though alleged, need not be proved, because the allegation is immaterial, the action being sustainable without it. The same reason will produce the same consequence in all actions on the case on implied warranties, where the scienter is not an essential ingredient of the right of action. This view of the subject accords with that found in Long on Sales, 120; where in treating, of warranties in sales of personal property, it is stated “some warranties are implied by law without any particular stipulation between the parties. Thus the seller is always understood to undertake' that the commodity he sells is his own; and if it prove otherwise, an action on the case, in the nature of deceit, lies against him to exact damages for ibis deceit. In contracts for provisions, it is always impliedijthat they are wholesome, and if they be not, the same remedy may be had.” Yet in either of those cases the seller is liable, though ignorant of the defect. But if sued, as directed, “in nature of deceit,” where the scienter or fraud and deceit are always alleged, no recovery can be had, according to the doctrine contended for, without proof of actual fraud. In such cases the fraud and deceit are. intendments *521of law, not matters of fact necessary 1o be proved. As was justly ohser'ved by C. J. .Anderson, who dissented from the other judges in Dale’s ease — “it shall be intended, that he that sold had knowledge whether they were his goods or not.” It hence follows that the opinion of the county court cannot be supported on the principle urged in the argument of the third question.

Whether the statement, in the bill of parcels, that the oil was “winter pressed,” be per se a warranty of that fact, is a question of more difficulty. In oral contracts much of the colloquium was never intended or understood by the parties to be essential component parts of the contract. But in written agreements nothing is inserted which is immaterial; no fact stated which is not presumed to be relied on by the parties, and for the truth of which the one does not bind himself to the other. Upon this principle it is, that mere recitals in deeds have been held to be covenants; upon this ground must vest the decision, that the action of covenant could be supported in Crœmer v Bradshaw, 10 Johns. 484. There the plaintiff declared on a bill of sale, by which the defendant, in consideration of $175, bargained and sold to the plaintiff “a negro wojtnan slave, named Sarah, aged about thirty years, being of sound wind and limb, free from all disease.” And the defendant in due form, in the covenanting part of the instrument, (omitting every thing as to age or soundness,) covenanted only to warrant and defend the slave, so sold to the plaintiff, against the defendant, and all other'persans. The alleged breach wass that the slave was unsound, and affected with divers diseases, &e„ Per curiam the words in the bill of sale, “being of sound wind and limb, and free from all diseases,” are an averment of a fact, and import an agreement to that effect. The words were not used as a mere description of the slave; they amount to an express, not an implied warranty; to a warranty of the soundness of the slave. The plaintiff is therefore entitled to judgment.

If the bill of parcels he considered as the written contrae! between the parties, the statement therein that the oil was “winter pressed,” could not be considered as mere matter of description, or of opinion or belief of the seller j but as the *522averment of a material fact, of which he has taken to himself the knowledge, and the existence of which he warrants. This court, however, has never decided, that the bill of parcels is the written contract; nor is it designed at this time to express any opinion upon that subject; but in Batturs v Sellers & Patterson, 5 Harr. & Johns. 117, and 6 Harr & Johns. 249, this court did decide that the bill of parcels in that case was written evidence of the contract; and could not be added to, or varied by, oral testimony. It follows as a necessary consequence, that, if the bill of parcels be “the written evidence of the contract,” the terms and expressions thereof must receive the same construction that would be given them if expounded from the written agreement itself; where calling it “winter oil,” would be that it was such.

Upon English authorities, independently of any decisions in this state, it would appear, that a statement in a bill of parcels, or any similar instrument, of the quality of an article sold, is a warranty thereof. In Yates v Pym, 6 Taunt. 446, an action upon a sale note, (an instrument of no greater solemnity or obligation than a bill ot parcels,) “of 58 bales of prim8^ singed bacon,” on account of a taint in some of injustice Heath decided “that the contract amounted to a warranty that# it was prime singed bacon, and being in writing could not be added to by parol evidence.” And on motion to set aside the verdict, the opinion of the learned judge was sustained by the court of common pleas. In Shepherd v Kain, 5 Barn. & Ald. 240, an action on the case for breach of warranty; the only evidence of which was the advertisement of a vessel as “copper-fastened;” yet sold with all faults; upon proof that she was only partially copper-fastened, Best, J. determined that the plaintiff was entitled to recover; and this opinion was affirmed in the court of King’s Bench. These are cases in which was recognized an express warranty of quality, from the merecíatement thereof in the sale note or advertisement.

As establishing a contrary doctrine, has been cited for the appellee, the case of Jendwine v Slade, a nisi prius decision of Lord Kenyon, in 2 Esp. Rep. 572. The action was brought to recover damages on the sale of two pictures, sold under a catalogue, wherein the names of the artists, who had been dead-*523•some centuries, were placed opposite to the pictures; the ground of action being, that the pictures were not the worlis of those artists, of which, it was alleged, the catalogue was a warranty. Lord Kenyon said, “it was impossible to make this the case of a warranty; the pictures were the work of artists some centuries back; and there being no way of tracing the picture itself, it could only be matter of opinion whether the picture in question was the work of the artist whose name it bore, or not. What then does the catalogue import? That in the opinion of the seller the picture is the work of the artist, whose name he Jias affixed to it.” Looking only to the facts in the case of Jendwine v Slade, and the decision of the judge upon them?it might perhaps be considered as entitled to all the weight in favour of the appellee, which his counsel have ascribed to it. But when the explanation and grounds of the opinion, as given by the judge himself, are adverted to, their only application to the case at bar, is to recognize the plaintiff’s right to recover, lie states that it is impossible to make, putting the name of the artist in the catalogue opposite the picture, a warranty, because it was the work of an artist some centuries back; and there being no way of tracing the picture itself, it could only be matter of opinion whether the picture in question was the work of the artist to whom it was imputed, or not. Suppose, instead of an ancient, it had been a picture of recent execution; what then, by necessary inference, would have been the opinion of the learned judge? Why, as there did exist a mode “of tracing the picture itself,” therefore, by placing the name of the artist in the catalogue, opposite the picture, is not a mere expression ot the opinion of the seller, but a warranty of the fact. The oil in controversy is no article of antiquity; it was manufactured but a short time before in Nantucltet, where Lewis resided, and whence he brought it to Baltimore, and sold it as his own. Without great inconsistency and abandonment of his own reasoning, Lord Kenyon, (who decided Jendwine v Slade,) could not do otherwise than determine, that the statement in the bill of parcels that the oil was “winter pressed” was a warranty thereof.

As a general proposition, it is true, that in sales of personal property the seller is not answerable for any defects in the *524quality or condition of the article sold, without an express warranty or fraud. But the universality of this rule is qualified by many exceptions, much more inconsistent with it than the principle on which the appellants here rest their right to recover. As if a manufacturer contract to furnish goods at a stipulated (even though it be a reduced) price, there is an implied warranty that the goods delivered be of merchantable quality. To this effect is the case of Laing v Fidgeon, 6 Taunt. 108. So also, if the buyer had no opportunity of ascertaining by inspection, the quality of the article, there is an implied warranty that it be saleable in the market, under the denomination by which it was sold. Such are the cases of Gardiner v Gray, 4 Campb. 144, and Bridge v Wain, 1 Stark. 504. It is not sufficient, that the article delivered, abstractedly bear the name of that contracted for; it must dp more;' there is an implied warranty, that it be of that quality which a commodity of that name must possess to be saleable in the market Nay, such is the disposition of courts of justice to ingraft exceptions upon this general rule of law, that in Gray and another v Cox and others, in 4 Barn. & Cres. 108, Abbott, C. J. decided, “that the defendants, having sold the copper to be applied to a specific purpose, and having received for it the market price of the day, must in law be considered as warranting it to be reasonably fit for that purpose. And the same doctrine was previously avowed in Bluett v Osborne and another, 1 Stark. 384, by Lord Ellenborough, who stated, that “a person who sells, impliedly warrants that the thing sold shall answer the purpose for which it was sold.

The cases of Seixas v Woods, 2 Caine’s Rep. 48, and Swett v Colegate, 20 Johns. 196, have been mainly relied on for the appellee; and it must be admitted, that upon the principles on which they are professedly decided, it is not possible to reconcile them with the decisions in England, which have been referred to. Regarding the facts only of these New- York cases, it might perhaps be urged, (but whether upon sustainable ground or not, we mean to intimate no opinion,) that they differ from the case at bar in this; here the statement relied on as a warranty, is of the quality of the thing sold, viz. that it was “winter pressed;” there the question was, whether the *525selling an article as Brazilletto or Barilla, creates an implied warranty, that it be, that for which it is sold.. The court there, however, have placed their opinions upon no such distinction; but have broadly determined, that the shewing by the seller to the purchaser, of the invoice representing the quality, the advertisement of sale, and hill of parcels delivered to the buyer, all representing the same fact, are no evidence of a warranty (cither express or implied,) of the quality of the article sold. Justices Thompson and Kent, by whom Seixas v Woods was decided, {Lewis, C. J. having dissented,) appear mainly to found their opinion upon the two old cases of Chandler v Lopus, and Springwell v Allen; to the former of which they are made by the reporter to give an entirely new version. They state the decision of the court to have been, that an action of trespass would not lie for selling a jewel, affirming it to be a Bezar stone, when in truth it was not, unless the defendant knew it not to be Bezar stone, or had warranted it to be such. The court in that case made no such decision. They held the declaration to be ill, “for as much as no warranty is alleged,” (the nar having only stated, that the goldsmith “affirmed to Liopus that the stone was a Bezar stone.”) And so far from intimating an opinion that the action could have been sustained, if the goldsmith had known the stone not to be a Bezar stone, they expressly state, that “although he knew it to be no Bezar stone, it is not material; for every 'one, in selling his wares, will affirm that his wares are good, or the horse which bo sells is sound; yet if he does not warrant them to be so, it is no cause of action.” As to Springwell v Allen, it professes to settle precisely the same question which arose in Bale’s case; that no action would lie against a man selling the horse of another, which ho believed to be his own. Many cither eases are relied on, in Seixas v Woods, some of which are applicable to sales of real property only; and in none of them can aught be found further sustaining the opinion there pronounced, or more strongly militating against that now given, than the general rule before laid down, that in sales of personal property no warranty of quality is implied.

The case of Swett v Colegate, 20 Johns. 196, is in fact, &, mere reiteration of what was decided in Seixas v Woods *526The weight of the authority of Seixas v Woods, (and conse-quently of Swett v Colegate,) is however somewhat shaken by that distinguished jurist the late Chancellor Kent, by whom it was decided. In his Commentaries vol. the 2d, page 274-5, after ample time for the most thorough investigation and mature deliberation upon the subject, when treating “of the implied warranty of the articles sold,” he says “in Seixas v Woods, the rule was examined and declared to be, that if there was no express warranty by the seller, or fraud on his part, the buyer who examines the article himself, must abide by all losses arising from latent defects equally unknown to both parties; and the same rule was again declared in Swett v Colegate. There is no doubt of the general rule of law as laid down in Seixas v Woods; and the only doubt is whether it was well applied in that case, where there was a description in writing of the article by the vendor which proved not to be correct, and from which a warranty might have been inferred.” But yield to those cases (what we think them by no means entitled to) the full effect of establishing the universality of the rule, without.an exception, that nothing but an express warranty or fraud will enable a purchaser to obtain an indemnity for a defect of quality in the thing purchased, the case before us stands unaffected by it. The statement in the bill of parcels that the oil was “winter pressed” is regarded as an express warranty; and under the decision in Batturs v Sellers & Patterson, 6 Harr. & Johns. 249, the court and not the jury, is the tribunal so to declare it. The opinions of the county court, therefore, in none of. the exceptions, can be sustained'.

But suppose the bill of parcels is not to be construed in the same manner that a written agreement between the parties should be, and is to be regarded as a mere receipt, and that, notwithstanding the case of Batturs v Sellers & Patterson, 6 Harr. & Johns. 249, parol evidence might be offered to prove the contract — is it possible that a jury could attach less weight to the written statement in the bill of parcels than they would do to Lewis’s verbal affirmation of the same fact; which affirmation is an express warranty if so intended to be; of which intention in oral contracts the jury only are competent to judge. Adverting then to some of the leading facts in proof *527by the appellants, that they, for the first time, were about to become dealers in sperm oil; that “winter pressed” was of nearly double the value of summer pressed oil; that the price paid was that of winter pressed oil; that such was the temperature of the weather at the time of sale, that the most experienced dealers in the article could not distinguish the one from the other, but by the aid of chemical experiments by men of science; that in the bill of parcels it was denominated ‘‘winter pressed” oil; and that the appellee had admitted that he had sold it for best winter pressed oil, and that it was not, what he had sold it for; can the instruction given to the jury (as stated in the 4th exception,) that there was no evidence of a warranty be for one moment sustained? Would it have been an unreasonable inference from the facts to be drawn by the jury, that in the verbal contract the appellants required and received a warranty of quality? Upon what other ground can its insertion in the bill of parcels be accounted for?

It matters not that this testimony be contradicted, its force impaired by the proof adduced on the part of the appellep; in such circumstances it is the jury, not the court, who are to decide.

Dissenting from the opinions of the county court, on all the exceptions, let their

JUDGMENT BE REVERSED, AND A PROCEDENDO AWARDED-,