Misner v. Granger

• Decision Date: 31 December 1847
• Citation: 4 Gilman 69,1847 WL 3841,9 Ill. 69
• Parties: DE MARQUIS MISNER et al.v.ELIHU GRANGER.
• Court: Illinois Supreme Court

4 Gilman 69

9 Ill. 69

1847 WL 3841 (Ill.)

DE MARQUIS MISNER et al.

v.ELIHU GRANGER.

Supreme Court of Illinois.

December Term, 1847.

ASSUMPSIT, in the Cook circuit court, brought by the appellee against the appellants, and heard before the Hon. JESSE B. THOMAS, at the November term, 1847, on demurrer to pleas, which was sustained. The defendants excepted to the decision, and pleaded the general issue, when a judgment was rendered by the court for the amount of the note sued, with interest. The defendants then appealed.

The cause was submitted in this court upon the written arguments of counsel.

N. B. JUDD, for the appellants.

1. The contract of sale, as set up in the several pleas, shows an agreement by the vendor that the machine should be in readiness for use at the time of its delivery.

If that agreement on the part of the vendor was not complied with, the damages resulting from such non-compliance, is a proper matter to be deducted from the price when a suit is brought for it. Edwards v. Todd, 1 Scam. 42; Nichols v. Ruckels, 3 do. 228; Hawks v. Lands, 3 Gilm. 227. Each of the pleas shows a breach of that agreement, and the defendants were entitled to damages under them.

2. No particular form of words is necessary to constitute a warranty; any representation as to any material fact which is relied upon by the parties will amount to a warranty.

On the sale of a manufactured article designed and intended for a particular purpose or use, a representation at the time of the sale, o?? a covenant in the bill of sale that the machine is in readiness for use, amounts to, and is, a warranty that the machine is reasonably fit to use in the business, and for the purposes for which it was intended and sold.

The machine, it is alleged in the plea, was purchased for a particular purpose.

There was a representation and agreement by the vendor that the article sold was in readiness for use.

Each of the pleas alleges that such was not the fact, and shows wherein the defects consisted, one of them alleging that the material and workmanship were both so bad that the machine entirely failed to be in readiness for use.

The defendants were not bound to call the agreement or representations a warranty; they were only bound to plead the facts, and it is for the court to say whether the facts constitute a warranty.

The pleas then show an express warranty and a breach of it, and were, therefore, a good defense.

3. On the sale of manufactured articles, there is an implied warranty that the article sold is reasonably fit for the purpose for which it was sold and intended to be used. Gray v. Cox, 4 B. & C. 108; Jones v. Bright, 5 Bing. 533; Brown v. Eddington, 2 M. & G. 279.

The pleas show that this was a manufactured article and sold for a particular purpose. The agreement also shows that the vendor was the manufacturer. The bargain is made on 12th July, and the vendor agrees to have the machine in readiness for use, and deliver it on 22d of July.

The facts pleaded bring this cause within the rule laid down in Gray v. Cox, and Jones v. Bright.

The pleas show a breach of the implied warranty that the article sold should be reasonably fit for the purposes for which it was sold.

4. The demurrer extends back and reaches the first error in pleading. The first error was in the first count of the plaintiff's declaration. In that count there is no averment as to where the cause of action accrued. It may be said that by pleading the general issue, the party is estopped from going back to the declaration. In the case of the Auburn & Owasco Canal Co. v. Leith, decided in the supreme court of New York, and reported in the September number of the Law Reporter, 1847, the whole question is discussed and the various dicta on that subject overruled; and it is held, that by demurring to a special plea, the count to which it is an answer is reached, notwithstanding the general issue may have been pleaded,

I. N. ARNOLD, for the appellee.

Were defendants' pleas good?

The defendants' plea sets forth a bill of sale of threshing machine from Granger to Misner, which was the consideration of the note; but they do not allege either an express nor implied warranty, nor fraud, nor that Granger was the manufacturer of the machine, nor a return of property, or offer to return it.

It is necessary to allege and prove either fraud or express warranty. Towell v. Gatewood, 2 Scam. 25.

A bill of sale of tobacco, describing it as good, first rate tobacco, is no warranty, neither is the sale of a threshing machine a warranty that the machine sold is a good one. This case is conclusive on the point of express warranty. Ib.

Cash v. Giles, 14 Eng. Com. Law R. 372, is a case which not only settles the principle, but is in relation to same subject matter. The action was assumpsit to recover the price of a threshing machine. The opinion is short, and is therefore, quoted: “If defendant meant to insist that this threshing machine was not a good one and suitable to its intended purpose, it was his duty either to have immediately returned it, or to have given immediate notice to plaintiff to take it away. Now, instead of this, he keeps it for several years. I am clearly of opinion that, as he has done so, he has waived all objections to its goodness, and is bound to pay for it.”

In this case, defendants do not aver in their pleas either a return, or offer to return the machine.

In Gray v. Cox, 4 B. & C. 108, cited by the appellants, it was held, that the vendor was not liable, because there was neither an express warranty nor fraud. The article sold was coffee at market price, which turned out to be a poor article.

In the case of Jones v. Bright, 5 Bing. 533, the narr. averred fraud, and there was an express warranty. The vendor was a manufacturer. In this case, it was not averred that he was. In fact he was the mere seller.

It is no great presumption to suppose that the vendee knew what a threshing machine was, and whether the machine bought was a threshing machine or not.

The general doctrine, that the seller is answerable only for an express warranty and fraud, is clearly laid down in 2 Kent's Com. 478.

The cases of Hart v. Wright, 17 Wend. 267, and Waring v. Mason, 18 do. 425, strongly and ably sustain the rule of caveat emptor.

Opinion of the court by CATON, J.

The subject of implied warranties on the sale of chattels has perplexed the common law courts for a long time, and has been a source of many apparently contradictory decisions. The universal doctrine of the civil law is, that there is an implied warranty of the vendor, that the article sold is what it appears to be, and is sold for sound and of a merchantable quality;--in other words, the seller takes the risk of all defects which are not disclosed at the time of the sale.

In the case of Stuart v. Wilkins, Douglas, 20, Lord Mansfield held that the vendor of a horse was not responsible for any defects, unless he was guilty of a fraud or had made an express warranty. Before that time it is said by Grose, J., in Parkinson v. Lee, 2 East, 314, it was a current opinion, that a sound price given for a horse was tantamount to a warranty of soundness. The rule laid down by Lord Mansfield in 1778, has since been followed with great uniformity, not only by the courts in England, but in most of the United States, where the common law prevails, although it appears occasionally to have been departed from in the case of a sale of slaves; and, in South Carolina, was applied for a time to sales of other property.

It may now safely be asserted as the well established rule of the common law, that the purchaser takes the property at his own risk, unless he exacts a special warranty, where there has been no fraud on the part of the seller. 2 Black. Com. 451; Seixis v. Woods, 2 Caines, 48; Swett v. Colgate, 1 Wend. 185; Conner v. Henderson, 15 Mass. 319; Hart v. Wright, 17 Wend. 267; Holden v. Dakin, 4 Johns. 421; Davis v. Meeker, 5 do. 354; Cunningham v. Speer, 13 do. 392; Thompson v. Ashton, 14 do. 316; Hoyt v. Boyle, 5 Gill & Johns. 110.

To these decisions many might be added from different states, but it is unnecessary. The law seems to be so well settled that we do not feel ourselves at liberty to inquire whether the rule of the civil law, or of the common law is the best adapted to promote the ends of justice and the good order of society. It is probably more important that the rule which is to govern, should be definitely settled, and well known, than that either particular one should be adopted.

Like most other general rules, this has its exceptions, which appear to be pretty well settled, and are sustained by good reason.

The common law has always held, that there is an implied warranty on the part of the vendor that he is conveying a good title to the vendee in the sale of personal property. Where a quantity is sold by sample, the law implies a warranty that the bulk is of as good a quality as the sample. Sands & Camp v. Taylor, 5 Johns. 395; Andrew v. Kneelan, 6 Cowen, 354; Bradford v. Manly, 13 Mass. 139; Gallagher v. Waring, 9 Wend. 20; Oneida Manufacturing Society v. Lawrence, 4 Cowen, 440.

So, also, in the case of executory contracts for the sale of personal property, the law implies as a part of the contract, in the absence of any express stipulation to that effect, that the property shall be of a fair merchantable quality and condition ( Long v. Fidgeon, 1 Eng. Com. L. R. 327), and it seems to be the same where the purchase is made without sample, or an opportunity of inspection, although, if there is no specific agreement as to the quality, no warranty is implied as to the fineness or particular degree of quality of the article sold. Gallagher v. Waring, 9 Wend. 28. In such cases it would seem manifestly unjust to say caveat emptor, when the purchaser has no opportunity of looking out for himself. If there is no fraud, and he takes the article on inspection, or with an opportunity to inspect it, h...