Borrekins v. Bevan

• Decision Date: 10 January 1831
• Citation: 23 Am.Dec. 85,3 Rawle 23
• Parties: BORREKINS v. BEVAN and PORTER.
• Court: Pennsylvania Supreme Court

3 Rawle 23

23 Am.Dec. 85

BORREKINS v. BEVAN and PORTER.

Supreme Court of Pennsylvania.

January 10, 1831

IN ERROR.

In all sales of goods there is an implied warranty, that the article delivered shall correspond in specie with the commodity sold unless there are facts and cireumstances to show that the purchaser took upon himself the risk of determining not only the quality of the article, but the kind he purchased.

Therefore if the defendant sell, and the plaintiff purchase an article as blue paint, and it is so described in the bill of parcels, this amounts to a warranty, that the article delivered shall be blue paint, and not a different article.

In order to sustain an action on an implied warranty in a contract for the sale of goods, it is not necessary that the plaintiff should, before bringing suit, redeliver or tender the the article to the defendant.

THIS was a writ of error to the District Court for the city and county of Philadelphia in a suit brought by the plaintiff in error, Henry P. Borrekins against the defendants in error, Mathew L. Bevan and William Porter, trading under the firm of Bevan and Porter, to recover damages on an implied warranty in the sale of an article as blue paint.

On the trial of the cause before Judge HALLOWELL in the court below on the 11st of October, 1826, it appeared in evidence, that the defendants, on or about the 1st May, 1820, sold to the plaintiff four casks of paints, and rendered to him a bill of parcels, of which the following is a copy, viz.--

Mr. H. P. Borrekins, Philad. May, 1, 1820.

Bought of Bevan and Porter,

4 casks paint, viz

1 cask blue wt 5. 0. 23

tare, 2.

4. 2. 23, is 527 Ibs a 50 cts. 263,50

1 do. green, wt. 3. 2. 4

tare, 2.

3. 0. 4 is 340 Ibs. a 25 cts. 85,--

1 do. do. wt. 5. 3. 3

tare, 2.

5. 1. 3 is 591 Ibs. a 12 1/2 cts. 73,87

1 do. yellow, wt. 6. 1. 19,

tare, 2.

5. 3. 19, is 663 Ibs. a 1-100 6,63

Credit, 4, 6, and 8 months, Dollars 429,

The plaintiff, thereupon, gave to the defendants his three promissory notes for the price payable in four, six, and eight months, which, were paid as they respectively became due.

The plaintiff examined as a witness on his behalf, Isaac W. Blanchard, who testified as follows: " I was not present at the purchase by Mr. Borrekins. I believe it was made at the defendants' counting-house. The articles described in the bill of parcels were bought and carried to the manufactory. Some time, very near a twelvemonth afterwards, Mr. Borrekins brought a sample of this stuff (pointing to the specimen presented to him by the plaintiff's counsel,) and directed me to go down to Messrs. Bevan and Porter. It was about March or April, I went, and I stated to Mr. Bevan, that Mr. Borrekins claimed the money paid because that article was not according to sample; I exhibited a sample to the defendants, and told Mr. Bevan, that that was a sample of the blue, which Borrekins had purchased of him. Mr. Bevan took a little in his hand, and said, " this is not blue: it does not look as if it even had been blue.' He then stated, that there would be no difficulty about settling it: that Mr. Humphreys was not then in the city, but was expected shortly, and that then there was no doubt the matter would be adjusted amicably. Mr. Borrekins brought the sample, and showed it to me. I know that the cask remains there yet at the manufactory. My business did not lead to the manufactory; it led to the store." On his cross-examination the witness said, " The sample Borrekins showed me at the time of making the purchase was verditer blue."

George Wood, another witness called by the plaintiff, testified thus: " This article (pointing to the specimen exhibited to the preceding witness,) was sent to me, and I received it as foreman of Mr. Borrekins' factory. I received it at the latter end of 1820, as near as I can recollect. I received it with a cask of green; nothing else that I recollect. I do not know what that article (pointing as before,) is. It is not paint. I recollect only receiving the two casks, one blue, the other green. I saw a sample of this before I received the paint. The sample was a good article. It was sent for me to try if it was good. The sample was sent by Mr. Borrekins. I have tried this since. I could not do any thing with it. I judged of the sample by the looks; it looked very well; it did not look like this. I opened the cask myself. This is a fair sample of what the cask contains. I opened the cask about six or eight weeks after I received it." Being cross-examined, he said, " It ran generally through the cask like this. The sample which I saw, had all the appearance of being good verditer. This blue paint does not injure by keeping."

James Kearney, being then called as a witness for the plaintiff, swore as follows: " I was at that time a workman in Borrekins' factory. The cask of paint was received about the latter end of 1820. We tried it; I cannot tell when, perhaps six or eight weeks after we received the cask. I rather think a cask of green was received at the same time. I cannot recollect whether any others about the same time. We had not received any other cask of blue for some time before, as I recollect. I do not recollect the purchase of any other cask of blue by Mr. Borrekins, at any time." On his cross-examination he said, " We used blue paint in the factory: we generally made the blue paint."

Isaac W. Blanchard, being again called, said: " Mr. Borrekins used exclusively Prussian blue. He made all he used. Mr. Borrekins did not purchase any blue paint excepting this, while he was in business. The verditer blue which this is, is a different article from the Prussian. This is the only cask of such stuff in our factory. An account of stock has been taken every year, and this is the identical cask." On his cross-examination the witness said: " Borrekins never used verditer blue in his factory. It was a very scarce article. He used the Prussian blue. He could not obtain the verditer of a quality sufficiently good. Some verditer will not work in water, but will in oil. I do not recollect making trial of the verditer. The other witnesses are mistaken as to its being the latter end of the year."

Henry Troth, another witness examined on the part of the plaintiff, said: " I have been accustomed to deal in paints, and verditer among the rest. I am something of a judge. This (pointing to the specimen before referred to,) might be called blue paint, but it does not resemble any paint we sell under that name. This is a mixture of some blue paint with a part dirt, different from any thing we are accustomed to deal in. I think there is inferior blue verditer among it mixed in with dirt. I should not consider this any paint: verditer is not called a high priced paint. Fifty cents is about a fair price. That used to be the price about six years ago. My impression is that was a fair price. It is not apt to injure by keeping. I never saw or heard that it was."

The defendants then offered in evidence a book of original entries made by their clerk at the time, for the purpose of showing that the sale was made in the first instance of three kegs of paint at certain prices, and that afterwards four kegs were included in the sale, and the price of one of them greatly reduced. An objection was made by the counsel for the plaintiff, to the admission of the book in evidence for the purpose for which it was offered, but the Judge overruled the objection, and an exception was taken to his opinion.

The defendants then called and examined as a witness May Humphreys, whose testimony was as follows; " I have no interest in this question. This blue paint was originally Junius Smith's of London, and was sent out to Adams and Swift of Baltimore. After the failure of Adams and Swift, it came into my hands as agent. I was ignorant of the value of paints. I brought samples to Philadelphia, and with Mr. Bevan, exhibited them to Mr. Borrekins. Mr. Borrekins declined coming to any arrangement at that time; but enough passed between us to induce me to send them to this market. On my return to Baltimore, I sent the paints to Bevan and Porter to be subject to a re-examination. There were one or two more that samples had been exhibited of. The cask of green was sold at a reduction of fifty per cent. from what I had originally stated. Bevan and Porter settled with me and paid me the proceeds after they became due. They paid me many months before I heard of any objection being made to them. I was not present at the final sale. The first was indefinite, but was to become absolute, if on delivery, the articles corresponded with the samples. I accounted with my principal before I had knowledge of any objection. I accounted to Adams and Swift, in the settlement of an account with them. I think it was a twelvemonth after the sale, before I heard of any objection."

When the evidence was closed, his Honour charged the Jury, " that the law was, that the plaintiff could not recover, unless an express warranty or fraud were proved: that a description in a bill of parcels of an article sold as blue paint, does not amount to a warranty that it is so; and that in order to support his action, it is incumbent on the plaintiff to show, that before bringing suit, he tendered or redelivered the article to the defendants."

To this charge the counsel for the plaintiff tendered a bill of exceptions, which was sealed by the Judge.

In this court the following errors were assigned, viz:--

1. That the court below erred in permitting the defendants to give in evidence a book...