Ricks v. Dillahunty

COLLIER, C. J. — The' charge given in this case, and that refused, present the question — Whether the unsoundness or worthlessness of a personal chattel at the tíme of its — 137 — sale, constitute a defence to an action brought for the recovery of the purchase money ? 1 It is understood that the seller of personal chattels impliedly stipulates that the article sold is his own, and that he will indemnify the buyer for the loss, if the title is in another person—(3 Bla. Com. 166; Stuart vs. Wilkins, Doug. R. 18; Furnis vs. Leicester, Cro. Jac. 474; Crosse vs. Gardner, Carth. Rep. 90; Macbee's adm'r vs. Gard ner, 2 Har. & Gill’s R. 176; Chism vs. Woods, Hard. R. 531; Osgood vs. Lewis, 2 Har. & Gill’s R. 495; Defreeze vs. Trumper, 1 Johns. R. 274.) But a sale by an executor, administrator, or other trustee, forms an exception to the rule, and does not imply a warranty of title, unless there be fraud, or perhaps in some instances, gross negligence —(Forsyth vs. Ellis, 4 J. J. Marshall's R. 298; M’Ghee vs. Ellis & Browning, 4 Litt. R. 244; Peter vs. Thornton, 6 Monroe’s R. 27; Head vs. McDonald, 7 Monroe’s R. 206; 2 Kent’s Com. 374.) But to entitle the purchaser to recover for any defect in the.quality or soundness of the article or property sold, except under special circumstances, he must prove that the seller warranted the thing sold to be good and sound, or that he concealed or fraudulently represented its qualities—(3 Bla. Com. 164, 165; 2 Kent’s Com. 374, and cases there cited; 1 Peters’ C. C. R. 317; Lowndes vs. Lane, 2 Coxe's R. 363; Sexas vs. Woods, 2 Caine’s R. 48; Snell vs. Morris, 1 Johns. R. 96; Perry vs. Aaron, ibid. 129; Defreeze vs. Trumper, Ibid, 274; Holden vs. Dakin, 4 Johns. R. 421; Davis vs. Meek er, 5 ibid. 354, 395; Cunningham vs. Spier, 13 ibid. 392; Fleming vs. Slocum, 18 ibid. 403; Wilson vs. Shackleford, 4 Rand. R. 5; Reed vs. Prentiss, Adams’ R. 174; — 138 — Lanier vs. Auld, 1 Murphy’s R. 138; Erwin vs. Maxwell, 2 Murphy’s R. 245; Smith vs. Miller, 2 Bibb’s R. 616; Glascock vs. Wells, Cook’s R. 262.) If the warranty be express, it will extend to all defects, whether known or unknown, to the seller, unless they be such as a common purchaser might have observed at the time of the sale— (Onslow vs. Eames, 2 Starkie’s N. P. R. 81; Williams vs. Stafford, 8 Pick. R. 250; Sweet vs. Colgate, 20 Johns. R. 196; Bonekens vs. Berons et al. 3 Rawle’s R. 32; Ex’rs of Hart vs. Edwards, 2 Bailey’s R. 306; Watts vs. Mattingly, 1 Bibb’s R. 244; Pile vs. Shannon, Hardin’s R. 55; Ferrin vs. Taylor, 3 Crunch, 270; Butterfield vs. Bur roughs, 1 Salk. R. 211; Margetson vs. Wright, 5 M. & P. 606; 7 Bingh. R. 603; 8 Bingh. R. 454.) What will constitute a warranty is not always easy to be determined. It is certain that no particular form of expression is required. It will, in general, depend upon the meaning of the terms, and the sense in which they were used or understood by the parties, whether they amount to a warranty, or are to be regarded as a representation of the seller’s opinion. If a man say of property, of which he is on a treaty of sale, that he knows its qualities, and that it is free from all defects, — his affirmation, professing to be founded upon knowledge, and not opinion or belief, should be regarded as equivalent to a direct and positive warranty, and oblige him to indemnify the purchaser for all defects existing at the time of the sale, whether known to the seller or not. Upon this point, Chandelor vs. Lopus (Cro. Jac. 4; Dyer, 75 a.) is a leading case. There, the defendant being a goldsmith, and having skill in jewels and precious stones, had a stone' — 139 — which he affirmed to be a bezoar stone, and sold it to the defendant for one hundred pounds, when in truth it was not a bezoar stone. The plaintiff having recovered a judgment in the King’s Bench, the case was removed to the Exchequer Chamber, where all the judges but one, concurred in reversing that judgment, holding the bare affirmation that it was a bezoar stone, without warranting it to be such, or fraudulently misrepresenting its character, gave no cause of action against the seller. . In Duffee vs. Mason, (8 Cowen’s R. 25,) the seller said of a colt he was about selling — “There is nothing the matter with the colt: it is well and sound, and will make a fine horse.” The court submitted it to the jury, to say whether there was a warranty, or only amere expression of the vendor’s opinion, and directed them to say how the words were understood by the parties. And to the same effect, are many of the decisions in the, different States— (Chapman vs. Murch, 19 Johns. R. 290; Whitney vs. Sutton, 10 Wend. R. 413; 13 ibid. 277; Cook vs. Moseley; Swett vs. Colgate, 20 Johns. R. 203; Osgood vs. Lewis, 2 Har. & Gill, 495; Bacon vs. Brown, 3 Bibb’s R. 35; 3 Rawle’s R. 32; 7 Serg. & Rawle, 480; 10 Johns. R. 484; 4 Cowen’s R. 444; See further, Palsey vs. Freeman, 3 T. R. 57; Button vs. Corder, 7 Taunt. R. 405; 1 Moore’s R. 109; Cave vs. Coleman, 3 M. & R. 2.) It is not, however, necessary that the purchaser, in order to his indemnity, should in all cases require an express warranty. In some cases, the law .will imply it. Thus, the seller of provisions tacitly agrees that they are wholesome at the time of delivery—(1 Fonblanque’s Equity, N. X. 120, 121.) So, the merchant abroad, who fills an — 140 — order for his customer residing in this country, impliedly stipulates with the purchaser, that- the goods are merchantable; and one who sells by sample, undertakes that the article to be furnished, is of the quality of the sample shown—(2 Com. on Con. 263, et post; Hibbert vs. Shee, 1 Camp. R. 113; Germaine vs. Burton, 3 Stark. N. P. R. 32; Parker vs. Palmer, 4 B. & A. 387; Andrews vs. Kneeland, 6 Cowen’s R. 354; Bradford vs. Manly, 13 Mass. R. 139; 12 Wend. R. 413, 566.) Where there was no warranty at the timé of the sale, but a mere representation, it is not enough to show that the thing sold was not such as it was represented to be; but the purchaser must go farther, and prove such a state of facts or circumstances, as fix upon the seller a knowledge that his representation was false when he made it. Where this is shown, the seller'is justly chargeable with a fraud—(Smith vs. Miller, 2 Bibb’s R. 616; 1 Fonblanque’s Eq. Note X. 120, 121, and cases cited above.) So, if a vendor conceal the defects of property, he is chargeable on the ground of having suppressed the truth, to the buyer’s prejudice —(Smith vs. Rowzee, 3 Marsh. Ky. Rep. 527; Parkinson vs. Lee, 2 East’s R. 314; Jones vs. Rowden, 4 Taunt. R. 847.) The general principles we have laid down, apply with all their force to a contract for the sale and hire of a slave, so far as the nature of the subject will allow— (Wheeler on Slavery, 107, et post.) The hirer of a slav.e for a definite period, becomes his purchaser for the time agreed on, and if he dies before its expiration, the loss of service must be borne by the hirer, who, if sued on his undertaking to the owner, cannot resist a recovery — 141 — by showing that the act of Gocl prevented, him from deriving a profit from his, contract, unless, by its terms, it provides for such a' contingency—(Redding vs. Hall, 1 Bibb’s R. 536; Harrison vs. Murrell, 5 Monroe’s R. 359; Williams vs. Holcombe, 1 Caro. L. Rep. 365; and McClellan vs. Cook, Ala. Rep. 257.) In Virginia and South Carolina, a different rule has been adopted. In’those States, it is held that the owner', is not entitled to recover hire, for the time intervening between the death of the slave and’the expiration of the, time for which he was hired, but in such a case, the hire must be apportioned—(George vs. Elliott, 2 Hen. & Mun. R. 6; Bacot vs. Parnell, 2 Bailey’s R. 424.) In South Carolina, it has been repeatedly adjudged, that the payment of a sound price implies a warranty of the soundness, by the seller of a personal chattel— (Timrod vs. Shoolbread, 1 Bay's R. 324; Rouple vs. McCarty, 1 Bay’s R. 480; Lester vs. Ex'ors of Graham, 1 Const. R. 183; State vs. Gaillard, 2 Bay’s R. 19; Barnard vs. Yates, 1 Nott & McC. 142; Missroon vs. Waldo, 2 ib. 76; Crawford vs. Wilson, 2 Const. R. 353.) Whatever commendation these decisions may claim from the moralist, they certainly derive no support from the English common law. In the case at bar, .the instructions to the jury maintain the principle, that it is enough for the purchaser of personal property to show that it was of no value, though the seller may have made no warranty, nor have prac-tised a fraud upon him. In thus supposing the law to be, the Circuit court erred: — its judgment is therefore reversed, and the cause remanded.