Barrett & Co. v. Hall & Co.

The opinion of the Court was delivered by Skinner Ch. J. This case cannot in principle be distinguished from the case of an executed contract — i. e. a contract in which the article sold is delivered at the time of the sale. The contract was to deliver, on demand, good cooking-stoves.— Stoves were received upon the contract, and endorsed upon the note. The terms of the contract, though written, can receive no construction different from what would be given, if it had been by parol, and the liability must be the same upon any affirmation or undertaking of the vendor, at the time of delivering the article, as upon such as may have been made or entered into prior thereto; the article having been received and applied upon the contract. The question then is, does the affirmation of the vendor, that the article sold is good, amount to a warranty as to its quality 1 There is nothing in the case that shows the vendor to have been the manufacturer. Whether such person would be held liable or not is not the inquiry. In the sale of goods, that there is no implied warranty that the article sold is sound, or free from latent defects, has long since been recognized as an established principle of the common law. — 1 D. Chip. 394, Penniman vs. Pierson. — Doug. 18.— 2 East. 314. — 3 Com. L. R. 208, note. There is no case shown, nor can any be found, in which the vendor of an article, ignorant of any defect, has been held liable .for affirming it to be good. No definite quality can be intended by the term good, and though, from the first view of this case, I was inclined to the opinion that it would be proper to consider it as a warranty that the article sold possessed the ordinary qualities of articles of the kind, upon a full examination of the question, we are satisfied that such construction would be attended with much difficulty in its application, generally, to contracts in the sale of the various articles of merchandize and commodities in which the citizens deal. A merchant, in vending the articles in which he deals, affirms them to be good, yet, unless he knows of some defect, it has never been held, nor is it generally understood, that any particular quality is thereby intended, or that he is accountable if they prove not to be good. This doctrine is fully recognized in the case, Chandellor vs. Lopus Cro. Ja. 4. This language imports nothing but opinion, and is so understood by the parties to a contract; and for this, though the article has secret defects, the vendor is no more liable in case of mistake, than the vendee would be, if it should prove to be of a superior quality than was supposed. Moses Strong, C. K. Williams, and R. B. Bates, for the plaintiffs. Wm. Page and S. S. Phelps, for the defendants. The verdict therefore must be set aside, and by the agreement of the parties upon the record, a nonsuit is to be entered,