Gallagher v. Waring

By the Court, Nelson J. If the second samples which were drawn had been of a superior quality, to the first, there .¡night have been some plausibility in the argument that the sale ought not to be viewed as one by sample on the part of the defendants, as they had not seen the second samples. It might then have been urged, that they did not intend to recommend the bulk of the cotton beyond the quality and condition exhibited by the samples which they had seen. The fact, however, is otherwise. Both samples were alike. The plaintiffs were satisfied with the quality of the first, and were [26] to buy if the bulk was equal to them; and the only object of drawing the second samples was to test the fidelity of the first. As the character or condition of the contract, nor the responsibilities of the defendants were in no respect altered by the production of the second samples, the construction given to it on the trial was, to say the least, extremely technical, and I think cannot be sustained. Nor do I think it could be, had the samples been different. The broker was employed by the defendants in the usual way to sell for them the fifty bales of cotton by sample. His sampler had procured specimens, and he was furnished with the prices. This constituted him their agent to sell the cotton by sample, and by virtue of this authority he did so sell to the plaintiffs. The abundant caution of the plaintiffs to procure a faithful sample of the cotton from the broker cannot change the character of the sale; on the contrary, it rather affords additional evidence that the purchase was made, and was intended to be made by sample, and hence the desire that they might be accurate. I presume it is a matter of course to procure samples the second time when practicable, to.^est the accuracy of the first, or for abundant caution. If requested by the purchaser, it is certainly as much for the benefit of the seller as the purchaser, and as important to him, that the samples should be a iáir exhiBmoirmf .the bulk of thejirticlg,- mid a reffusal would justly expose to suspicion the fairness of the party ^refusing. I have no doubt that the judge erred on this point. The question is too well settled in this court to require examination or discussion, that a sale by sample implies a warranty on the part of the vendor that the bulk of the article sold corresponds in quality and goodness with the specimen exhibited. I know of no exception or qualification to this rule. 5 Johns. R. 395. 4 Cowen, 440. 6 id. 354. 13 Mass. R. 139. The case nearest to an exception is Parkinson v. Lee, 2 East, 314. But it there appeared, and was so understood by the court, that the bulk of the article before and at the time of the sale answered fairly to the quality and goodness of the samples, and satisfied every undertaking to be fairly implied from them production at the sale. The case only decided that a sale by sample by an innocent vendor did [27] not imply a warranty against a latent defect, by means of which, at a future day, the quality and goodness of the article might become deteriorated, and that for such a defect the vendor was answerable only on the ground of fraud or express warranty. 2 Com. L. R. 486. 4 Campb. 144, 169, S. S. 1 Com. L. R. 327. 4 Cowen, 444, 5. If the bulk of the hops had been damaged at the time when the sample was shewn, it could not have been said, as is said in that case, that the samples answered fairly to the bulk; and there certainly is no principle or reason for exempting one species of defect more than another, existing at the time in the article, from the implied warranty by sample ; nor do I believe the above case is an authority for such a distinction. The facts in that case may not have sustained the view of the court, and the soundness of She decision has been doubted. 13 Mass. R. 143. 15 Com. L. R. 532. Whether the plaintiffs were entitled to recover on the second count is a question it may be proper to notice. That there must be a warranty express or implied, or fraud, to justify a recovery in damages for the difference between the quality and goodness of the article contracted for and that delivered, cannot be doubted. When a warranty will be implied, and when not, is not so clear; and from the nature of the inquiry, I apprehend, must depend upon circumstances. A sale by sample implies a warranty that the bulk corresponds with the sample. Every sale implies a warranty of the title to the article; and where the vendee has no opportunity of examining the article, the sale implies that the article delivered is of the kind and species of that which was contracted for, and is of good merchantable quality and condition ; as then the maxim caveat emptor cannot apply. These principles are fully supported by authority, and inculcate in commercial dealings sound maxims of morality, from which no honest man can claim an exemption. It was said on the argument by the counsel for the defendants, that where the vendor had no means of inspecting the article, there was no implied warranty as to the quality or goodness of it. I am not aware of any case or principle which makes a distinction as to the liability of the vendor, where he [28] has and where hé has hot had an opportunity of inspecting commodity sold, so far as that liability depends upon a warranty, if the vendee also has not had the opportunity of an examination. ' If the vendee has had such opportunity, the rule caveat empior applies, which varies the relation of the parties. It is true, if the purchase is made without sample or inspection, and no specific agreement as to the quality of the article, then undoubtedly no implied warranty arises as to the fineness or particular degree of quality of the article, except that it is of a merchantable quality and condition. This is all the law requires under such circumstances, as there is nothing in the contract defining the particular quality. The principle is a familiar one, and enters into the every day business of men. If I engage a mechanist to manufacture an article in his line of business, without any stipulation, the law implies the obligation to make it in a skilful and workmanlike manner. So if I contract with a merchant to furnish me with a quantity of wheat at a future day for a certain price without any other stipulation, the law implies that it shall be of a good and merchantable quality and condition. Common honesty is exacted of all, in their dealings with one another, without any stipulation for it. Upon the above principles, even admitting that the sale was not by sample, the plaintiff was entitled to recover under the second count, if he could shew that the cotton was not of a good merchantable quality or condition; as on a purchase without an opportunity for inspection by the vendee, the law implies a warranty by the vendor to this extent, whether the vendor has had an opportunity of inspection or not. Under such circumstances, it would be as absurd to permit a vendor to fulfil his contract by delivering an article of the kind contracted for of no value, as it would be to permit him to fulfil it by delivering an article of a totally different kind, as oakum instead of cotton. It is supposed that the memorandum made by the broker in his book is equivalent to a bought and sold note, and is the only evidence of the agreement between the parties; and according to that memorandum, the sale was not one by sample. If the supposition of the defendants was correct, the inference would no doubt follow. 3 Wend. 459. 1 Holt, 172. [29] 4 Campb. 145. 15 East, 29. But it is obvious from the evidence of the broker that his memorandum was nothing more than his charge of brokerage, and was not intended as a note of the contract between the parties; and this view is confirmed by an inspection of the memoranda thus kept by him. The whole agreement rested in parol. It would be dangerous to adopt a memorandum of the broker, made without any intent of putting in writing the contract, and in fact made for another purpose, as evidence of the agreement between the parties. Nonsuit set aside and new trial granted ; costs to abide the event.