Hyatt v. Boyle

delivered the opinion of the court.

There is no pretence that the appellee was not a bona fide holder of the tobacco sold, without knowledge of its unsoundness, or that the kegs were not branded with the genuine mark of Parkin’s crooked brand; but it is insisted that there was an implied warranty of quality, according to the principles settled by this court in Osgood vs. Lewis, 2 Harr. and Gill, 495. A fair exposition of the court’s opinion in that case, will lead to no such inference. The general principle of the common law, is there more than once reiterated : “ that in sales of personal property the seller is not answerable for any defects in the quality or condition of the article sold, without an express warranty or fraud.” In enumerating some of the exceptions to this rule, it is stated, that 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.” To sustain the appellant’s position of implied warranty, no aid can be drawn from this exception. The purchase was of twenty-four kegs of tobacco, branded with Parkin’s crooked brand,” and by that denomination were they saleable in the market. *119Of the quality of that tobacco nothing was stipulated. The terms on the part of the vendor were complied with, by the delivery of tobacco, thus characterized by the brand. By the brand it was saleable in the market, and that was the only assurance of quality, on which the vendee relied. Once admit the doctrine contended for by the appellant, and as to all commercial transactions, you, in effect, annihilate the distinction between warranty of title and warranty of quality. Every man who sells a barrel of flour, flsh, pork, or any commodity subject to inspection, or which had acquired a reputation in the market, will be held impliedly, to warrant both title and quality. To such a length, this court feels itself wholly unauthorised to extend implied warranties. Nor could it do so, without explicitly overruling the case of Johnson vs. Cope, and others, 3 Harr. and Johns. 89, and unsettling the principles it has recognized in Osgood and Lewis.

Much stress has been laid on an isolated paragraph, extracted from Osgood and Lewis, in which this court have said, that “ it is not sufficient that the article delivered, abstractedly bear the name of that contracted for; it must do 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.” But construe this sentence in conjunction with the remaining parts of the court’s opinion, and the interpretations attempted to be affixed to it, cannot for a moment be sustained. The remark was predicated upon the case of Bridge vs. Wain, 1 Stark, 504, and immediately followed the reference made to it. In that case, Wain had sold to Bridge a quantity of “ scarlet cuttings,” an article in which the English dealt with the Chinese to a considerable extent. The proof was, that “scarlet cuttings” were understood in the market to mean cuttings of cloth only, without any admixture of serge or other materials ; and that the article sold to the plaintiff did contain a quantity of serge, &c.

*120The position stated by this court, was designed to be nothing more than what was considered as there decided ; that although the article delivered, abstractedly speaking, was scarlet cuttings, yet it was not scarlet cuttings of that quality, which were saleable in this market as such. So, in the present case, the delivery of any tobacco not branded as per the bill of parcels, no matter what its excellence might be, would be no compliance with the terms of sale: it would not be sufficient, because it did not possess that quality, attribute, characteristic mark, viz. Parkin’s crooked brand, by which it was known, and rendered saleable in the market.

It was urged too, that from the nature of the article, and the manner in which purchases of it are made, the appellant had no opportunity of inspection, and that therefore the seller impliedly warranted its quality. But this exception to the general rule of caveat emptor does not apply to cases circumstanced like the present; but to those, where the examination at the time of sale, is, morally speaking, impracticable, as where goods are sold before their arrival or landing. The mere fact of the inspection being attended with inconvenience, or labour, is not equivalent to its impracticability. If the purchaser desire to avoid it, and yet obtain the protection it would afford him, he must do so by exacting from the vendor an express warrantyof quality.

It was likewise insisted, that the appellee, knowing the purpose for which the tobacco was purchased, impliedly warranted it to be suitable therefor; that the opinions of Chief Justice Abbott, and Lord Ellenborough, on which such a doctrine rests, were cited with approbation by this court in Osgood fy Lewis. But this is not the fact. No sanction or approval was then, or is now designed to be given to those opinions. They were simply referred to, as showing how much further, some of the English judges appeared disposed to go, in engrafting exceptions upon the rule, caveat emptor, than this court had gone in the case of Osgood 8f Lewis.

*121The County Court were right in instructing the jury, as in the first bill of exceptions, that there was no warranty of the quality of the tobacco sold. But they were clearly in error in the latter part of their instruction; that although the contract contained a warranty, and an offer to return the goods had been made by the vendee in due time; yet that it was no defence to the action unless the plaintiff knew of the unsoundness of the article. The scienter in such a case need not be alleged, and if charged, need not be proved.

This error of the court below, however, furnishes no ground for reversing their judgment. The appellant sustained no injury from it; as he had offered no proof either of a warranty, or a fraudulent scienter. And upon no event therefore, nor upon the assumption of both, or either of these grounds, was it competent for the jury to have given a verdict in his favor.

The same remarks are applicable to the opinion of the County Court, in the second bill of exceptions.

JUDGMENT AFFIRMED.