Ashford v. H. C. Shrader Co.

AlleN, J. Tbe maxim of tbe civil law is caveat venditor, while tbe maxim of tbe common law is caveat emptor, and it is generally held in courts where tbe common law is administered that in CQntraets for tbe sale of personal property, as between dealers, there is no implied warranty as to quality. Farrell v. Market Co., L. R. A. (N. S.), 884, and cases in note; Shingle Co. v. Mill Co., 35 L. R. A. (N. S.), 261, and note; Tiffany on Sales, 252; 35 Cyc., 397; Dickson v. Jordan, 33 N. C., 166; Woodridge v. Brown, 149 N. C., 302. This rule has not been stated more clearly or with greater strictness anywhere than in tbe two cases cited from our own reports. In tbe first of These, Pearson, J., speaking for tbe Court, says: “It is a principle of tbe common law that no warranty of quality is implied in tbe sale of goods. Caveat emptor. In tbe absence of fraud, if tbe article proves to be of bad quality, tbe purchaser has no redress, unless be has taken tbe precaution to require a warranty. This rule is founded in wisdom, and its practical good sense is so well fitted to tbe habits of our trading people that we are disposed to adhere to it. "We believe it is adopted in almost all of tbe States of tbe Union where tbe common law prevails”; and this is quoted and approved in tbe later case. It seems that tbe exceptions to this rule are (1) where tbe sale is for a particular purpose; (2) by sample; (3) by particular description, or where it is made by tbe manufacturer or producer. 35 Cyc., 399. Along with this principle as to implied warranties is another of equal importance and prominence, and that is that tbe seller is held to tbe duty of furnishing property in compliance with the contract of sale that is, at least, merchantable or salable. In tbe case of Randall v. Newson, 2 Q. B., 109, after quoting from Best, C. J., in Jones v. Bright, 5 Bing., 30, that, “If a man sells an article be thereby warrants that it is merchantable — -that it is fit for some purpose. If be sells it for that particular purpose, be thereby warrants it fit for that purpose. Whether or not an article has been sold for a particular purpose is, indeed, a question of fact; but if sold for such purpose, tbe sale is an undertaking that it .is fit. Tbe law, then, resolves itself into this, that if a man sells generally, be undertakes that.tbe article sold is fit for some purpose; if be sells it for a particular purpose, be undertakes that it shall be fit for that particu *49 lar purpose,” and after commenting on other English cases, Brett, J., for the Court, says: “I have cited these cases and the principles laid down in them in order clearly to ascertain what is the primary or ultimate rule from which the rules which have been applied to contracts of purchase and sale of somewhat different kinds have been deduced. Those different rules, as applied to such different contracts, are carefully enumerated and recognized in Jones v. Just. In some - contracts the undertaking of the seller is said to be only that the article shall be merchantable; in others, that it shall be reasonably fit for the purpose to which it is applied. In all, it seems to us, it is either assumed or expressly stated that the fundamental undertaking is that the article offered or delivered shall answer the description of it contained■ in the contract. That rule comprises all the others; they are adaptations of it to particular kinds of contracts of purchase and sale. You must, therefore, first determine from the words used, or the circumstances, what, in or according to the contract, is the real mercantile or business description of the thing which is the subject-matter of the bargain of purchase or sale, or, in other words, the contract. If that subject-matter be merely the commercial article or commodity, the undertaking is that the thing offered or delivered shall answer that description, that is to say, shall be that article or commodity, salable or merchantable.” This authority has been followed in Jones v. Just, 3 Q. B., 199 ; Grieb v. Cole, 1 Am. St. Rep., 536; Howard v. Hoey, 23 Wend., 350; Peck v. Armstrong, 38 Barb., 218; Warren v. Ice Co., 74 Me., 478; Fitch v. Archbald, 29 N. J., 164; Merrien v. Field, 39 Wis., 580; Hanson v. Brewing Co., 70 Ill. App., 265, and in our own reports in Main v. Field, 144 N. C., 311; Medicine Co. v. Davenport, 163 N. C., 297. In the last case Justice Walicer quotes with approval from Benjamin on Sales and from the English eases, as follows: “If a man sells an article, he thereby warrants that it is merchantable; that is, that it is fit for some purpose. If he sells it for a particular purpose, he thereby warrants it to be fit for that purpose. Jones v. Bright, 5 Bing., 544. The principle was clearly expressed by Lord Ellenborough in Gardiner v. Gray, 4 Campbell, 143, where he denied the application of the rule as to sales by sample: T am of opinion, however, that under such circumstances the purchaser has a right to expect a salable article answering the description in the contract. Without any particular warranty, this is an implied term in every such contract. Where there is no opportunity to inspect the commodity, the maxim of caveat emptor does not apply. He cannot without a warranty insist that it shall be of any particular quality or fineness, but the intention of both parties must be taken to be that it shall be salable in the market under the denomination mentioned in the contract between them. The purchaser cannot be sup- *50 posed to buy goods to lay them on a dunghill. The question then is, whether the commodity purchased by the plaintiff be of such a quality as can be reasonably brought into the market to be sold as waste sillc. The witnesses describe it as unfit for the purposes of waste silk, and of such a quality that it cannot be sold under that denomination.’ ” We are, therefore, of opinion that his Honor’s 'charge was correct; that there was an implied warranty in the sale of the oranges that they should be at least salable, and the question as to the waiver of the warranty was submitted to the jury under instructions which were fair to both parties. The evidence offered upon the part of the plaintiff tended to prove that the oranges were packed by machinery, and that if they were taken from the boxes they could not be replaced, and that the inspection that was made was the one usually made in-the trade, and was such as men of ordinary prudence engaged in like business would have made, and the jury has found this evidence to be true. We find no error in the record, and the judgment is affirmed. No error.