Snell, Stag, & Co. v. I. Moses & Sons

Livingston, J. delivered the opinion of the court. The only count in the declaration, to which the evidence is pretended to be applicable, is the third, to which, therefore, our examination will be confined. [Here he stated the averments contained in the third count.] If any sale of blue guineas be proved, there is no evidence either that they should be of the usual length and breadth, or of a cer- • tain value. It may well be doubted whether the first can be | implied; and if there were no warranty or fraud, and it I should appear that the bales had not been examined, but ( that both parties were equally ignorant of the length of the ^ goods, such an inference could not be made. Be this as it may, is there any proof that each piece should be of the value of five dollars and a half? This cannot be presumed, merely from its being the price at which the plaintiffs were to take the goods, for if such an implication were to result from that circumstance, such a warranty, would be universal, unless there was a stipulation to the contrary. This is an essential part of the contract, for it cannot be said, that the jury, in assessing the damages did not take ás their guide, the difference between the price paid to W. and F„ and that at which they were sold to the plaintiffs, under an. idea, that it was agreed, that the goods should be of the latter value. This rule of estimating the damages, allowing something for the freight from Philadelphia to Pew-York, and other necessary charges, would give about the sum found by the jury. If they proceeded on this calculation, it was wrong, because of the total want of proof of any agreement, that the article should be of a particular value. It was said in the argument, that as the plaintiffs proceeded on the ground of fraud, it was sufficient if the fraud were substantially made out, without inquiring whe [106] ther the contract were proved specifically as laid in the declaration ; but how can it be determined that there was any fraud in the transaction, without knowing precisely, what was the agreement between the parties l It is as essential to prove the contract as declared on, with certainty, m that case as well as in any other. This not having been done, the plaintiffs, under the agreement stated in the case, are entitled to a judgment of nonsuit. Judgment of nonsuit.