Fraley v. Bispham

• Decision Date: 27 April 1849
• Citation: 10 Pa. 320
• Parties: FRALEY <I>v.</I> BISPHAM.
• Court: Pennsylvania Supreme Court

10 Pa. 320

FRALEY v. BISPHAM.

Supreme Court of Pennsylvania.

April 25, 1849.

April 27, 1849.

April 25.

IN error from the District Court of Philadelphia.

COPYRIGHT MATERIAL OMITTED

G. W. Biddle, for plaintiffs in error.—The case generally cited first on these questions is Chandelor v. Lopus; but that was a mere question of pleading; the whole case proceeded on the ground that the plaintiff had not declared on a warranty. It has been supposed to decide there can be no warranty without express words. The rule of the civil law, that a sound price implies a sound article, is not contended for; nor is it sought to interfere with the rule, that where nothing is said, it suffices if the article exists in specie. But, if the vendor undertakes to say anything, and induces the vendee to rely on the assertion, he is bound by it, for the vendee may presume it is so, and is not bound to examine. It will be observed, the question is not whether this evidence is conclusive that a warranty existed, but whether the jury might infer from it, that a warranty was intended as to kind or quality. Now it is settled that no form of words is essential: "I warrant" is usual, but "I represent," "I affirm," will answer equally well, and it can scarcely be doubted, that if Chandelor v. Lopus was to be decided now, the court would hold, "I affirm the stone to be a bezoar stone," to amount to an allegation of warranty that it was so. Great brevity is used in all mercantile contracts, and the heading of the bill of parcels, which is evidence of the parol contract, may read, "I affirm this tobacco to be superior sweet-scented Kentucky leaf tobacco." This further appears from the letters of the plaintiffs; they there call it a guaranty; the evidence is distinct that it was neither superior sweet-scented, nor sweet-scented at all; the witness says, it was quite the contrary. So that the case is narrowed to this inquiry, is there any evidence, from which a jury might infer a warranty as to kind or quality? To say that it is tobacco, is nothing. The various kinds of tobacco rank as different articles of merchandise. The cases bear out this view. In 4 Camp. 144, a description of goods in a written contract was held to imply a warranty they are merchantable under that denomination, and the exhibition of samples does not qualify the rule. To the same effect is 6 Taunt. 446, where the warranty arose from a description in the heading of a sale-note. 5 Bing. 533, decides that no particular form of words is essential, but that a seller, knowing the qualities of the animal, undertakes they are those expressly required by the purchaser. In 2 Bing. N. C 668, a contract to sell mess pork of S. & Co., was held to mean pork manufactured by S. & Co.; and there also the warranty arose from a description in the sold-note. In 4 Ad. & El. 473, the heading of a bill of parcels of pictures, containing the name of the artist, was held to be evidence of a warranty they were painted by such artist. In 2 Pick. 214, the sale-note "of prime quality winter oil" was held a warranty that it was winter, and not summer-strained oil. The difference between these is no greater than in the tobacco, as sold, and as it existed in this case. In 7 S. & R. 480, and Chapman v. Murch, 19 John. 290, the same error was committed by the judge at Nisi Prius, in withdrawing the evidence from the jury. In the former, by telling them that a representation was an express warranty; in the latter, by telling them it was not evidence from which they might infer a warranty. In both cases it was for the jury to draw an inference of warranty, as was held in 2 Car. & Pay. 211. The error in putting a legal construction upon oral words is pointed out in 9 W. 59. In 3 W. C. C. 165, there was no representation at the time of the sale, and in 3 R. 168, the article, though adulterated, was known in the market in that condition, under the name by which it was sold, and was, in fact, never sold in a pure state. 3 R. 23 is the leading case, and the principle is, that an affirmation of a material fact binds the vendor to its truth, and it is immaterial that the sale is by sample: Pet. C. C. 225. The letters and the accounts corroborated the evidence of warranty from the bill of parcels, and were also evidence of an account stated, the defendant not replying to the allegations: 3 C. & Pay. 103; 2 Greenl. Ev. § 126; 1 Ib. § 197; Bald. 536; 3 W. & S. 109; 2 Barr, 323.

L. A. Scott and Scott, contrà.—The evidence shows the sale was by sample, and there is no count alleging a difference between the samples and the article sold. It is, moreover, proved that the tobacco was in kind the article said to be sold. It was Kentucky leaf tobacco certainly. Whether there was a warranty of the quality, is the only question. This seems to be settled in this state. 3 W. C. C. R. 165 was an advertisement of white glass — held no warranty. 7 S. & R. 480 decides the very point — the seller is not bound to answer for the goodness of wares, unless there be an express warranty or fraudulent representation; and it is there said, "from the time of Chandelor v. Lopus, the doctrine has been that a bare affirmation of quality will not give an action, unless the vendor knew it not to be as represented." 3 R. 23 was to the same effect — the case being a sale of dirt as blue paint, and it was put on the fact that there was not a correspondence in kind. 3 R. 168 was a case of an adulterated article, and yet, because it was known in the market under the name by which it was sold, there was no warranty. In 9 W. 55, it was held no implied warranty arises from a false affirmation; the only remedy is an action for deceit; nor is the affirmation evidence of the warranty. These cases establish the rule of this state, and must govern, though other laws differ. 4 Camp. 144 was, however, a case turning on the difference in kind in the market. 6 Taunt. 446 turned chiefly on the admissibility of the usage, nor can it be discovered how the plaintiff counted. In 5 Bing. 533, there was parol evidence of the warranty. 3 Bing. N. C. 668 and 4 A. &...