Brantley v. Thomas

• Decision Date: 01 January 1858
• Citation: 22 Tex. 270
• Parties: J. R. BRANTLEY AND ANOTHER v. HENRY E. THOMAS.
• Court: Texas Supreme Court

22 Tex. 270

J. R. BRANTLEY AND ANOTHER

v.HENRY E. THOMAS.

Supreme Court of Texas.

1858.

If there be no express warranty by the seller, and no fraud on his part, the buyer, who examines the article for himself, must abide by all losses arising from latent defects, equally unknown to both parties.

But this rule only applies to cases where the article sold was equally open to the inspection and examination of both parties.

Where sales are made by sample, there is an implied warranty that the goods sold shall correspond with the sample.

And where goods are ordered by one dealer, and sent by another, there is an implied warranty that the goods sent shall correspond with the order; or, if sent upon a general engagement to forward goods, that they are valuable, and merchantable in the market where they are to be sold.

The rule of caveat emptor, is founded upon the idea that the purchaser sees what he buys; and the tendency of the modern decisions is, to imply a warranty of quality, in all cases, where the purchaser has no opportunity to exercise his own judgment, but relies on the judgment of the party with whom he deals.

Where there is either an express or implied warranty, the vendee of goods may show a partial failure of consideration, in defense to an action against him for the purchase money, without returning the goods.

If the vendee would rescind the sale, and recover back the purchase money, on the ground that the goods delivered did not conform to the warranty, he must, within a reasonable time, return or offer to return the goods, unless they are wholly worthless.

In England, and those states of our union where a party cannot plead a partial failure of consideration in an action at law, cases will be found which deny the doctrine here recognized; but they have no application in this state, where a defendant is expressly authorized to plead a partial failure of consideration; and, as has been decided, even under a plea of total failure of consideration, he may show a partial failure.

APPEAL from Gonzales. Tried below before the Hon. Fielding Jones.

Suit by appellee, upon a promissory note for $323.31. Appellants pleaded a total failure of the consideration, and alleged, that the note sued upon was given in payment for ten boxes of tobacco, sold to them by appellee, by his agent; that said tobacco was sent, by appellee, from New York, upon the order of appellants, and was entirely worthless, rotten, and unfit to use or sell; that the same was of a different quality from that contracted for, by the order given by them; that the agent represented said tobacco as a superior article, and presented to them a sample of tobacco, which was entirely different from that sent, whereby they were induced to make said purchase; and that the note was given long before the delivery of the tobacco.

Upon the trial, the court instructed the jury, “In this case you should find for the plaintiff, the amount of the note, unless you believe that the consideration of the note was certain tobacco, which was entirely worthless. But if you believe that the tobacco was not entirely worthless, then, to entitle the defendant to maintain his defense, of failure of consideration, you must be satisfied, that the defendant, in a reasonable time after he discovered the cheat, offered to return it.”

H. S. Parker, for appellants. The tobacco was sold to defendants by sample, and hence there was an implied warranty, that it should be as good as the sample. Tobacco is even different from cotton; it is in boxes, and cannot be examined; and hence, the law of warranty should be strictly applied to it, when sold by sample. This was ordered for a special purpose, as chewing tobacco, and was to correspond with the sample exhibited. As to the implied warranty, see Parsons Mercantile Law, p. 57, note; Boorman v. Johnston, 12 Wend. 566;Jackson v. Roberts, 11 Id. 422;Gallagher v. Waring, 9 Id. 20; Story Sales, § 376. The defendants were not compelled to return the articles; in fact, the tobacco, being in boxes, defendants were compelled to open it before they could examine it, and it could not be returned in the condition in which it was received. Warring v. Mason, 18 Wend. 425.

Even if it is considered that there was no warranty, defendants would not be compelled to return that which was worthless. Story Sales, § 427, and note 2, page 448.

There was at least a partial, if not a total failure of consideration; and defendants had a right to plead the same, in off-set and reconvention. Parsons Mercantile Law, note 2, page 37, and cases there cited.

From this view of the case, we argue, that the charge of the court did not present the case to the jury in its proper light, and was not the law of the case, under the pleadings and evidence; and it must have misled the jury in this, that it instructed them to find for the plaintiff, unless every box was worthless, or had been returned to plaintiffs.

BELL, J.

There are no questions, about which the decisions of the courts of this country and of England, have been more various, than they have been concerning those questions which so often arise out of the doctrine of implied warranties. And even upon the question of warranty itself, the decisions are extremely contradictory. In cases of express warranty, few difficulties are encountered, and the rules of law are sufficiently certain and fixed. The difficulties, of which the books are full, arise in cases where the questions are, whether there is an implied warranty, or not, and what are the respective rights and duties of vendors and vendees, in such cases. The old rule, and the general rule, as stated in the books, is that a fair price...