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1894

Implied Warranty of Quality in Sales

Richard A. Brown
Cornell Law School

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Brown, Richard A., "Implied Warranty of Quality in Sales" (1894). Historical Theses and Dissertations Collection. Paper 370.

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 THESIS.

-u-

IMPLIED WARRANTY OF QUALITY IN SALES

-0-

BY

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RICHARD A.BROWN.

CORNELL U14IVERSITY SCHOOL OF LAW.

-0-

1894.
 CONTENTS .

I. Introduction.

II. His-tory.

III. Unequal Relation of the Parties.

IV. Goods Fit for A Particular Purpose.

V. Goods Fit for A General Purpose.

VI. Sale of Provision.

VII. Sale by Samrle.

 TABLE 0 CASLS .

Bulwinkle v. Cramer, 27 S.C., 376,--------------------- 3.

Jones v. Just, L.R. 3 Q.B., 207,----------------------- 4.

Merchie v. Cornell, 155 1111ass., 60, --------------------- 4.

Shepherd v. Kain, 5 B. & A. 240, ----------------------- 6.

White v. Miller, 71 N.Y.e, 118, ------------------------- 6.

Chandelor v. Lopus, Cro.Jac. 4,------------------------ 6.

Hawkins v. Pemberton, 51 N.Y., 198,--------------------- 7.

Sexias v. Woods, 2 Caines, 48,------------------------- 7.

Sweet v. Colgate, 20 J.R., 196,------------------------- 7.

II. Kent's Commentaries, 470, 8.

Morse v. Union Stock Yard Co., 2I Oregon, 289,-9.

Hoe v. Safoorn, 21 N.Y., 555, -------------------------- 10.

Brown v. Sayles, 27 Vr., 227,-------------------------- 11.

Rogers v. Niles, 11 Ohio Sr., 48,----------------------- 11.

Jones v. Bright, 5 Bing. 5 -------------------------

Bluett v. Osborne, 1 Starkie, 384,---------------------..

36 Central Law Journal,-------------------------------- 1A.

Randall v. Newson, 2 Q.B.D., lOP, -l--------------------- 1-.

Blackstone, Vol. 165, ----------------------------.

P-.
 -2-

VanBracklyn v. Fonda, 12 Johns. 468,

Boyd v.VWilson, 83 Pa. St., 19,

Parkinson V. Lee, 2 East, 314,---------

Gould v. Stein, 147 Mass 570,--------------------------

Boyd v. Wilson, 83 Pa.St., 319,---------------------

Merriman v. Chapman, 32 Conn., 146,-------------------

xxxxxxxxxx
 IMPLIED WARRANTY OF QUALITY IN SALES.

There is probably no portion of the law which is

subject to more constant change and additions than that re-

lating to sales of Personal Property. The continual increase

in conmerce gives birth to new questions and materially modi-

fies established doctrines.

The doctrine of implied warranty of quality is one of

the main branches of the law of sales. The quantity of

an article bought and the price to be paid for it are points

which are not usually misstated by the contracting parties;

these are usually definite and certain, of the essence of the

contract, easily and quickly expressed and seldom cause mis-

understanding, but the other essential.. of the contract of

sale not so easily determined in itself which requires a cer-

tain knowledge and judgment and in some cases the highest de-

gree of skill is the quality of the article.

Implied warranties in contracts of sale are divided into

two parts:

First, Implied warranty of title;

Second, Implied warranty of quality of the goods sold.

As the title indicates, what we have to say on this sub-

ject will be confined to the second diviuion.

The coiixion law rule of caveat emptor (lot the buyer be-

ware) probably owes its origin to the fact that in earlier

times nearly all sales of goods took place in market overt

and fairs where the 1ona fide purchaser without notice obtai:.s

the goods taking his own ctances as to their quality but as

to title, that was good against all the world, except the

Crown.

The common law did not annex a warranty to any contract

of sale. It seems that nothing chort of a diroct affirm-

ation would be construed by the courts to be an express war-

ranty and then it must be intended as such by the parties.

Its policy has been defended on the ground that it tends to

diminish litigation, but the tendancy of modern courts is to

limit its ecope, in fact it has had so many exceptions piled

upon it that it must surely be proved by this time, if except-

tions prove a rule.

Caveat emptor "pplied to all sales of personal property

except where the vendor gave an express warranty. This is

said to be such a commendation or affirmation , at the time

of sale, as are supposed to induce the purchaser. No pre-

cise words are necessary; it is sufficient that if the inten-

tions of the parties clearly appear. During the time of Lord

Holt the doctrine was established, that to warrant no formal

words were necessary, therefore a warranty might be implied

from the nature and circumstances of the case. And one of

the circumstances which was finally recognized,as pointing to

the soundness of the article was the price paid for it, and

the maxim that a sound price imports a sound article was in-

troduced.

This doctrine is still adhered to in South Carolina,

(nulwinkle v. Cramer, 27 S.C., 376.) It was afterwards ex-

ploded by Lord Mansfield, since which time it has undergone

some modifications in the English and American courts, tendimn

in the former somewhat, and in some of the states :f the

Union to the rule of the civil law, which implies that the
 -4-

goods sold must be merchantable and fit for the purpose for

which they were bought. (Jones v. Just, L.R. 3 Q.B., 207).

This doctrine is developed in a long line of cases upon this

subject sufficiently illustrated by Merchie v. Cornell, (155

Mass. 60. ) The contract was for the sale and delivery of

a cargo of ico. The judge in writing the opinion says:"Tbe

inference is warranted that the thing to be furnished must be

not only a thing of the name mentioned in the contract but

something more. How much more may depend upon circumstances

and at times the whole question may be for a jury. If a

very vague generic word is used, like' ice', which taken lit-

erally may be satisfied by a worthless article, and the con-

tract is a cormercial contract, the court may properly in-

struct the jury that the word moans more than its bare defi-

nition in the dictionary, and calls for a merchantable article

of that name. If that is not furnished the contract is not

performed. " This rule is now well settled in England as is

shown by the case of Shepherd v. Kain, (5 B.& A.,240) . This

was an action for a breach of warranty, the vessel was adver-

tised and sold as a copper fastened vessel, but sold as she

 -5-

lay with all faults. It appeared that she was only par-

tially copper-fastened, and not what is known to the trade as

a coppor-fastened vessel. It was held that with all faults

must be understood all faults which a copper-fastened vessel

may have and that the buyer was entitled to damages as it was

not what the-description called for. If the seller was ig-

norant of the fact the vessel was not a copper-fastened vessel

by all reason and legal principle he should be held for dama-

ges as it did not fulfil the description, but if on the

other hand it could be shown that he had knowledge of the fact

his responsibility rests of the ground of fraud. In all

these contracts the question is simply whether the seller has

furnished substantially what the buyer bargained for. If

the article does not in fact answer the description it does

not do so more or less whether the defect could have been

discovered or avoided or not. But there are cases in which

the probability of knowledge on the -.

art of the vendor is

so strong that the courst will presume that it existed with-

out p:coof, and in these cases the vendor is held responsible

on an implied warranty. As for example in the case of

 -6-

White v. i1iller, ( 71 N.Y., 118. ) The plaintiff relied

upon the seller's superior ability to know the cabbage seed

which he was buying as " Large Bristol Cabbage" and was ex-

pected to produce cabbage of that variety, was free from any

latent defects arising from the mode of cultivation.

The law places this extra obligation upon the seller

from this very fact thet he had a better opportunity of know-

ing and examining the quality of the goods than the buyer.

The extent to which the vendor was formerly held liable on

an implied warranty in a contract of sale is worthy of com-

parison with his present liability. In the earlier cases

the most extreme rule was formulated in the endeavor to es-

cape from the civil doctrine and it even went so far as to

set aside implied warranty entirely. For Qt- instance t1B

famous case of Chandelor v. Lopus, decided in 1603, ( Cro.

Jac. 4), was an action on the case for selling a stone repre-

senting it to be a bezar stone when it was not. All the

justices and barons ( except Anderson C.J. ) holding " that

a bare affirmation that it was a bezar stone, without warrant-

ing to be so is no cause of action; and although the defend-

 -7,

ant who was a gold-smith knew it to be no bezar stone, it is

not material; for every one in selling his wares , said the

judge will affirm that his wares are good, or that his horse

is sound; yet, if he does not warrant them to be so there is

no cause of action." This doctrine sounds as strangly to

our oars as the modern doctrine of implied warranty would have

sounded to the judges in the time of Jas.I.. And one of the

first opinions which began to change the courts on this sub-

ject was written by Mir.Baron Parker in the case of Barr v.

Gibson, decided in 1825, in which he says," But the bargain

and sale of a chattel, as being of a particular description,

does imply a contract that the article sold is of that de-

scription." This is the docttine now prevailing. It wes

adopted as the law of this State in the case of Hawkins v.

Pemberton, in 1872, (51 N.Y., 198). And yet that ancient

doctrine was the guiding star in beth England and America

until far into the present centtry.

The cases of Sexias v. Wood, (2 Caines, 48) decided as

recently as 1825, and Sweet v. Colgate, ( 20 Jr. 196, ) decided

about the same time were based mainly upon the authority of
 -0--

the case. of Chandelor v. Lopus-, are adverse to this view.

But the case of Chandelor v. Lopus , has been overruled in

England, and t1r cases in this State referred too have often

been questionei, and Chancellor Kent who took part in deciding

Seias v. Wood, intimates in his commentaries a doubt whther

A A

the case was correctly decided. ( 2 Kent, 479). This moderh

doctrine as it appears to ;me is more reasonable and proceeds

upon a iust
A
interpretation of the contract of sales. A deal-

er who sells an article, describing it by the name of an

article of commerce, tlr identity of which is known to'Lthe

purchaser must understand that the latter relies upon the de-

scription asarepresentation
A
bythe seller that it is the thing

described.

Wv'e will now turn out attention to another division of

our subject which relates to the sale of goods fit for a par-

ticular purpose. The subject is to be divided into two

parts:

First, Where the seller is not the manufacturer

Second, Where the seller is the manufacturer.

2 , The general law as it now stands is pretty clearly

 -0-

lid down on this point and aptly applied in an Oregon aase,

Morse v. Union Stock Yard Co., ( 21 Oregon, 289.). The

plaintiff, who was a butcher, ordered of the defendants, who

kept a stockyard, to " get two car9 loads of good beef cattle".

The cattle were not of the quality orcb rod , or fit for the

purpose intended. Judge Lord in his opinion sys u When a

dealer undertakes to supply goods or chattels in which he

deals that are to be applied to a particular purpose, and the

buyer necessarily trusts to the judgment of the dealer there

is an implied warranty that they shall be reasonably fit for

the purpose for which they were intended." This is more ob-

vious when the seller is also a manufacturer, but it is equal-

ly true when he is only a merchant, provided always that the

buyer in fact relied upon the seller's judgment and does not

inspect for himself. As it is needless to cite more cases

upon this subject we will notice the second division of our

topic where we wil' examine some cases in which the seller

manufactures goods for a general purpose as well as for a

particular purpose. The question naturally presents itself,

what warranty does the law imply in a manufacturers general

 -10-

contract of sale where the buyer has no opportunity to choose

or examine ? It stands to reason that there should be some

indemnity against latent defects in the sales by the maker.

Because he hold himself out as a manufacturer, this implies

that h e has reasonably competent skill and meanc , and par-

ticularly because the buyer must rely wholly upon the maker,

aside from manifest defects. The question not settled is,

whether the maker shall be partially or fully liable for la-

tent defects which by care and skill he could have avoided.

The two leading cases which bear upon this point are in di-

rect onflict. New York per, the learned Judge Seldon, laid

down the rule that a manufacturer is liable from any latent

but
defects arising from the manner of making, o? ot latent
A

defects in materials which he is not shown ind cannot be pre-

A eha
sumed to have known. Th- Ohio court Aon the otle r hand by

a bare majority, t1ut a manufacturer impliodly agrees to pro-

duce -rticles fit for ordinary usrs,; but if he fails for

even defects latent and undiscoverable his contract is broken.

In Hoe.v. Sanborn, ( 21 N.Y., 555) the action wa to enforce

payment for saws, made on the defendant's general order. The

 -11-

defendant contos~td on the grounds ts t ti- saws were so soft

as to be utterly worthless. In Ohio the action was breach

of an implied warranty; boilers made for tlu defendant's

rolling mills proved so defective that they had to be thrown

aside within a few months. The deondant claimed that the

cause was the latent defect in the iron. The circumstances

in these cases are substantially alike.

The cases previous to the New York case, seem to susatain

the Ohio decision. Tracing backward from Hoe. Satbborn, the

first case we notice is Brown v. Sayles, ( 27 Vt.227) which

evidently was given much weight in Rogers v. Niles,( 11 Ohio.

St. 48). It was held in a contract to build, sell, and deliv

er a buggy, at a fixed price there was an implied warranty

even against all secret and latent defects in the material

of which it was constructed, although they could not be dis-

covered under -he most careful examination. This ruling is

in line with earlier decisions that a maker impliedly warrants

that his goods are of a fair, ordinary quality accordin-r to

their appearance. But you will find cases reasoning for

the principle of Hoe v. San't:orn also.

 -12-

The leading case is Jones v. Bright, (5 T3ing. 533. ).

decided in Common Pleas in 1829, is the foundation of t1B

absolute liability rule. It was an action for a breach of

warranty in the sale of copper by the maker. He had been

told that it was wanted for a ship bottom, and had said be-

fore the plaintiff the one introducing the parties, ,1your

friend may rely upon it, we will supply him well." The

copper lasted only a few months. The verdict for the plain-

tiff found an intrinsic defect in the copper caused by the

introduction of to much oxygen in the course of its manufact-

ure. The judges in banc hold it clear that the defendant

had either expressly or tacitly undertaken, without qualifi-

cation, that tIB copper furnished should be fit for shaathinm

tlB plaintiff's ship; he must therefore answer for ay unfit-

ness whatever. Although this case is the foundation of the

absolute liability rule, some of the reasoning strongly

favors the limited liability inposed in Hoc. v. Sanborn.

These cases of contracts for manufactured articles must

be distinguished from contracts for natural objects, as a

horse or timber etc.,. No prudence can guard agaisnt latent

 -13-

defects in a horse or timber, but by providing proper materin1

a merchant can guard agaisnt defects in a manufactured arti-

cle, as he who manufactures copper may by due care prevent th

introduction of' too much oxygen. And this distinction ex-

plains the case of Bluett v. Osborne, (1 Starkie, 384) where

the judge held the defendant who sold the bowsprit, was not

responzible for a failure arising out of a latent defect in

thet imber.

The true principle suried up amounts to this: Given

sound material, defects in making will not be excused, but

undiscoverable defects in natural objects and materials ( e.a

a horse or timber ) cabnot be guarded against and therefore

to be excused.

As before stated the common law implies a warranty only

where t1e buyer has no opportunity to decide for himself, or

wihere there is superior knowledge actual or presumptive on

the seller's part. How cah this be reconciled with the

view that on general sale the manufacturer impliedly warrants

even against defects which human skill cannot detect or avoid?

This rule substantially protects the manufacturer, whose

 -14-

rights are disregarded by t e Ohio view, without depriving

the buyer of his protection afforded by the cormon law.( 36

Cent.L.J. 192). it also holds the manufacturer liable for

evcry defect in the course of making because le alone controls

and can examine, except ,,,here the vendee chooses or dictates

in the mode of constrwution he to tht extent assumes the

responsibility of the manufacturer.

In thn manufacture and sale of articles for a special

purpose the manufacturer's liability is absolute. When he

contracts to manufacture for a particular purpose he warrants

that the article shall be fit for that particular purpose.

That particular purpose is the essence of the contract rather

than a particular article., it is not enough than to bring

a contract into this class of cascs by implication. There

must be fair grounds to presume that the maker was contract in7

with the idea of fitness as the principle element.

The case of Randall v. Newson,(2 L.R.Q.B.D. 102), clearly

comes under this heai ing. The plaintiff ordered and bought

of the defendant who was a coach builder, a pole for his car.

riage. While the plaintiff was driving it, soon after, thle
 -15-
to
pole broke short offA the carriage. The horses in consequence

became inmanageable and were much injured. In an action

for damages the jury found that the pole was not reasonably

fit for the carriage, but that it had broken from an inherent

defect in the material, and that the defendant was not neg-

ligent in not discovering the defect. Judgment was given

the plaintiff on th- ground that the pole was supplied for a

-articular purpose. Whether or not an article is supplied

for a particular purpose is a question of fact; but ifsold

for such purpose the understanding is that it is fit for that

particular purpose. Had the facts in tls mse shown that

the defbndant knew of the defects in the timber the decision

would have been the same, but the action might have been

brought on the ground of fraud.

We .-
ill now examine the law which relates to the sale of

provision. Theprevailing opinion in the earlier American

cases seemed to be that there was always an implied warranty

that the provisions were wholesome. Blackstone(Vol. IiI.

page 165 ) is responsible for that doctrine, which is laid

down in one of our calier New York cases, VanBracklyn v.Fonda,

 -16-

12 Johns. 468) and is the most relied upon. But that upon

examination was apparently an action for deceit in selling

an unsound quarter of beef, and not an ac-' ion upon the war-

ranty, for the judge found that the vendor knew the animal

was diseased, and did not communicate the fact to the vendee.

The other cases hich hold that way seem to be based upon the

same element of deceit. But the later cases disregard tl

implied warranty in the sale of provision; indeed it now

seems to be pretty well settled that only such implied war-

ranties as applied to the ordinary sale of chattels between

dealers aplies to the sale of provision whether for retail

or Wholesale. In some jurisdictions however, there is still

some slight confusion in regards to this point but I think

the prevailing opinion is aptly stated in Benjami on Sales

in the following " It is at least doubtful whether there be

any such warrant~ even though provisions sold for immediate

consumption by the buyer; unless when he trusts to the judg-

ment or selection ofthe seller. If A. selects of a butcher

a particular pice of beef, ind orders tT-t inentical piece

to be sent, it is not easy to see, in the absence of any cus-

 -17-

tom or usage to make it good, why there should be an implied

warranty as to the quality, any more than to any othersale.

The buyer takes his risk, tbe same as in buying any other thing

But if he orders his dinner of his market-man, for hi-

to select and send up, and which tre buyer does not see until

it comes to the table, there is good grounds for holding the

vendor liable on an implied warranty that the article sent

should be fit for the purpose for which it was ordeze d; but

this is applying to the sale of provisions the same rule as

is applied to the sale of other property, and probably the

same rule govers in one case as in the other".

Another important division of our subject is the sale

of goods by sample. This method is adopted very extensively

by all great mercantile houses in carrying on their business

and is adapted to nearly all branches of trade.

The office of the sample is to present to tie senses the

real meaning of the parties with regard to the subject ma-ter

of the contract. This is often difficult to describe in

words but very simple by use of tbe sample. it does not

need to be saidPthat if the good, themselms could be

 -18-

examined previous to the purchase, that in most case-, would

be preferable to the sample, but in some cases that would be

a highly impracticable thing to do-- for instance, goods

stored in the hold of a ship, while in others it would be

impossible to make an examination, as coal unmined, or sealed

canned goods. ( Boyd Wilson, 2: Pa.St. 31..... The rle

sales
greatly facilitates sTaa&. It speaks for itself. It says

that the bulk shall correspond to tie sample in quality and

condition. But it does not reveal to the merchant more than

he would be able to disvover upon the examination of the

goods themselves. It cannot be held to disclose any latent

defects in the sample or in the bulk.

The English cases hold that if the seller is a merchant

and not a manufacturer he is not responsible fcr latent de-

fects which examination of sample fail to disclose. ( Parkin-

son v. Lee 2 East, 314) .

The American decisions are in line on that, :-oint, but if

the merchant himself is the manufacturer there is some questio

as to this holding. In fact I think the holding wouldbe op-

posite to the line of cases whcih have been examined. The

 -19-

merchant would have the full liability of the manufacturer.

But further there may be an express warranty in the

quality of the goods sold by sample as well as in other cases;

in such cases a breach of warranty of quality is actionable,

although the goods might be equal to'the sample.

In a recent Massachusetts case ( Goluld v. Stein, 147

ass, 570). The sale was of I, one hundred and two bales of

Cera scrap rubber, as per sample, of second quality," it was

decided that the article was equa to sample, but was not of

second quality. So what appeared to be a sale by sample

was in fact a sale by express warranty.

In Pennsylvania, however there is no implied warranty

that the goods sold by sample are eqyal in quality to the

sample; but they hold that the sample is a guaranty only

that tlv article to be delivered shall follow its kind Vad be

merchantable, ( Boyd v. Wilson, 83 Pa.St., 319) . That

doctrine practically destruys the value of samples in making

Sales. If it is impossible to determine he quality of an

article by sample, of what use is the sample, pray? If it

simply guarantees that the article to be delivered shall fol-

 -20-

low its kind and be merchantable, in selling canned corn for

e.g. ( as a case at bar) why bother with the sample, why not

guarantee th&. the goods shall be canned corr instead of can-

ned beans, and if they prove merchantable, however much or

little that term may mean, the contract is fulfilled, --never

mind the quality. This is not the general doctrine.

In case the bulk does not agree with the sample, the

vendee of course need not take the goods, and has a reasonable

time to come to a decision. (merriman v. Chapman, 32 Conn.

146).

It is hold in Illinois not only that the goods may be

rejected, but, if the vendee accepts he may recover the dif-

ference in value, between the sample and the goods sent. ( 6

Ill. 512 ).

In Englau, if the goods are sold by sampl( Cnd they are

delivered and accepted by the purchaser, he cannot return

them, but if he does not completely accept them, that is, if

he has taken the delivery oonditionally, he has a right to

give +hem a fair trial, and if they are found not to corres-

pond with the sample he may returm them.

 -21-

It might be well to state what constitutes a sale by

sample, for if it is not a sale by sample implied warranty

may not exist.

The nore showing of the sample does*.not make the sale one

by sample. There must be an agreement to sell by sample, or

at least an understanding that the sale is to be by sample,

the same as for the sale of an article for a special purpose.

The opportunity to inspect the goods is an important

element in determining \'hether or not the parties in nded

it a sale by sarmple. If the buyer has no opportunity to

inspect the goods and the sample is exhibited at sale and

offered him for examination, the courts would presume that it

was a sale by sample, and would recognize a warranty of cor-

respondence of the sample .;ith the goods.