Mason v. Chappell

• Decision Date: 22 May 1860
• Citation: 56 Va. 572
• Parties: MASON v. CHAPPELL.
• Court: Virginia Supreme Court

56 Va. 572

MASON v. CHAPPELL.

Supreme Court of Appeals of Virginia.

May 22, 1860

1. To constitute fraud in a sale, it is not sufficient that there shall be false representations by the vendor; but he must know at the time he makes them, that they are false; or at least he must make them as statements of facts within his own knowledge, when he has no knowledge on the subject.

2. Any affirmation of the quality of the article at the time of the sale, intended as an assurance to the purchaser of the truth of the fact affirmed, and acted on by the purchaser, is an express warranty. But no affirmation, however strong, will constitute a warranty, unless it was so intended.

3. Where a specific article is ordered and furnished, though the purchaser states the purpose to which he intends to apply it there is no implied warranty on the part of the vendor that it is suitable for the purpose; and he will not, in the absence of fraud or an express warranty, be held liable however unfit and defective it may turn out to be.

4. The mere fact that an article sold does not answer to the representation made respecting it, is not ground to assume that it was not the genuine article sold, so as to entitle the plaintiff to recover for a failure by the vendor to comply with his contract.

5. The mere fact that an article proves to be worthless, will not entitle the purchaser to recover back the price paid.

This was an action on the case in the Circuit court of Alexandria county, by Richard C. Mason against P. Stockton Chappell. The declaration contained two counts. The first was for the breach of a warranty, upon the sale by the defendant to the plaintiff of one hundred and fifty barrels of a manure called " " Chappell's fertilizer; " the second was the common money counts in assumpsit. The plaintiff alleged that the article received by him was wholly worthless, and therefore he claimed to recover back the whole price, four hundred and sixty-three dollars and fifty cents paid by him.

Upon the trial the defendant demurred to the evidence; and the plaintiff joined therein. And from the evidence it appeared that some time in September or October 1852, the defendant sold to the plaintiff one hundred and fifty barrels of an article manufactured by the defendant, called " Chappell's fertilizer," to be used on the plaintiff's land, at the price of four hundred and sixty-three dollars and fifty cents; and that the defendant at the time of the sale, recommended highly said article as a manure, and said that on its application to poor lands it would produce good crops. That defendant further said to the plaintiff, " I wish you had some very poor land on which to apply it; " to which plaintiff replied, " I can accommodate you in that particular exactly."

The plaintiff also introduced in evidence an advertisement of the defendant in the Alexandria Gazette, with several letters thereto annexed, in which the value of the fertilizer as a manure was set forth; and also a pamphlet describing the article, and directing the mode of its use; and this was accompanied with numerous letters from persons who had used the article, the most of whom commended it highly; and among these was a letter of Commodore Jones, an acquaintance and friend of the plaintiff.

It was further proved by the plaintiff, that the said fertilizer was well applied to his land, and wheat sown where the fertilizer was applied; that the crop produced on said land was a very indifferent one, and not so good as that produced on the same land two years before; that it was in fact the worst crop the witnesses ever saw on the land, and that they had long been acquainted with it, being near neighbors of the plaintiff.

The court sustained the demurrer, and rendered a judgment for the defendant. And thereupon Mason applied to this court for a supersedeas; which was awarded.

Green, for the appellants:

The evidence, spread out in the demurrer to evidence, most amply sustained (according to the principle established by Green v. Judith, 5 Rand. 1, and the other authorities of that class, now become very numerous) the several allegations, on the part of the plaintiff, respecting his purchase of the (real or pretended) manure in question, his payment of the purchase money for the same, and the utter worthlessness of the article, upon a perfectly fair trial of it; leaving open to debate no points which it would not be inexcusable to discuss but one, namely, whether other facts, necessary for maintaining the action, in connection with these, are sufficiently made out. This enquiry I shall present under the several aspects following:

1. It is not necessary to make out any other facts; because those already stated establish a total failure of the consideration upon which the plaintiff had paid his money; and thus entitle him to recover it back, under the count for money paid, or under that for money had and received. On this trite topic I forbear to cite any authorities.

2. If this be not so, still the plaintiff was entitled to recover upon additional facts, which a jury would have been fully justified in finding from the evidence, and which therefore the court below was bound to consider as established. As against the defendant (no matter what the real truth of the matter may be), we must take it--from his own declarations to the plaintiff-- from his written communication to him--from his printed advertisement referred to in the correspondence between them which led immediately to the purchase, and from the pamphlet, bearing in like manner upon the transaction--from each one, and from all of these, we must take it, that the article known by the name of " Chappell's fertilizer," which the defendant professedly sold to the plaintiff, would, if it had been furnished genuine, have accomplished all the results, or at least, the most important of them, or at the very least, some of them, which the defendant held out in prospect to the plaintiff, and which consituted the sole inducement to the latter for laying out his money in the purchase. In this point of view, the things published by the defendant, in the shape of certificates from others, are important evidence against him, whether they be real or fictitious; he cannot deny their reality or their truth, after displaying them to the public and to the plaintiff in the manner he did; and therefore, as against him, they (besides his own declarations) establish, that, if the article, furnished under that name, failed upon a fair trial to accomplish the results ascribed by them to it, at least in some good measure--as the article actually furnished by the defendant to the plaintiff did fail--it must be because the article so furnished was not genuine; at least, that it was not of good quality, probably because the ingredients used in making it were spurious or damaged, or because the article itself, after it was manufactured, had become damaged and worthless. On all these points, the court was bound, upon the demurrer to evidence, to make the strongest inferences a jury could make against the demurrant; and I submit that these now stated are not only rational, but moreover, the only fair ones. If so, the defendant violated the warranty which the law implies in all such cases, and which the declaration in this case alleges, that the article sold and delivered was genuine and of good quality. Laing v. Fidgeon, 4 Camp. R. 169; S. C. 6 Taunt. R. 108; Jones v. Bright, 5 Bingh. R. 535; S. C. 3 Moore & Paine R. 155; Brown v. Edgington, 2 Mann. & Grang. 279; S. C. 2 Scott's N. R. 496; Shepherd v. Pybus, 3 Mann. & Grang. 868; 4 Scott's N. R. 434; Gallagher v. Waring, 9 Wend. R. 28; Howard v. Hoey, 23 Id. 350; Carnochan v. Gould, 1 Bailey's R. 179; Barnett v. Stanton, 2 Alab. R. 181.

3. Moreover, there are other additional facts in this case which in like manner the court was bound to consider as established, that make out against the defendant a case of express warranty. These I shall not here give trouble by pointing out more particularly than is indicated by allusions in the statement which I subjoin of legal propositions bearing upon the point. On this head it has long since been settled, that in order to constitute such a warranty, the word " warrant" need not be used, nor any word of precisely similar import (Cave v. Coleman, 3 Mann. & Ryl. 2; Salmon v. Ward, 2 Carr & P. 211; Wood v. Smith, 4 Carr & P. 45; S. C. 5 Mann. & Ryl. 124; Breemen v. Buck, 3 Verm. R. 53; Roberts v. Morgan, 2 Cow. R. 438; Buckman v. Haney, 6 Engl. Ark. R. 339); that any representation or affirmation concerning the quality or properties of an article sold, put forward, not as matter of opinion or belief merely, but for the purpose of assuring the buyer as to the truth of what is so represented or affirmed, and of inducing him to make the purchase, is, if accordingly received and relied upon by the purchaser, an express warranty ( Hillman v. Wilcox, 30 Maine R. 170; Whitney v. Sutton, 10 Wend. R. 413; Osgood v. Lewis, 2 Harris & Gill 495; Kinley v. Fitzpatrick, 4 How. Miss. R. 59; McGregor v. Penn, 9 Yerg. R. 74; Hawkins v. Berry, 5 Gilman 36; Randall v. Thornton, 43 Maine R. 230; Jones v. Bright, 2 Ross. Lead. Cas. 360, 361; Sheppard v. Pybus, 42 Eng. C. L. R. 452; Reese v. Williams, 16 Ill. 69; 2 Rob. Pr. 355 to 359, 359 to 363); and that the question, whether such a representation or affirmation was so advanced on the one side, and so accepted on the other, is a question of fact for the jury, which ought to be left to their determination, and concerning which their verdict will in these cases, as it will in all others, not be set aside unless manifestly contrary to a correct finding upon the evidence. Power v. Barham, 4 Ad. & Ell. 473; S. C. 7 Carr & P. 356; Chapman v. Murch, ...