Schuchardt v. Allens

CourtUnited States Supreme Court
Writing for the CourtSWAYNE
Citation68 U.S. 359,17 L.Ed. 642,1 Wall. 359
Decision Date01 December 1863
PartiesSCHUCHARDT v. ALLENS

68 U.S. 359
17 L.Ed. 642
1 Wall. 359
SCHUCHARDT
v.
ALLENS.
December Term, 1863

THIS was an action on the case for false warranty, and for deceit in the sale of one hundred casks of Dutch madder; and was brought in the Circuit Court for the Southern District of New York. The declaration contained seven counts.

The first three were for false warranty (without any scienter),

1st. That it was a prime article.

2d. That it was pure and unadulterated.

3d. That it was good, merchantable Dutch madder.

The last three counts were for deceitful representations (with scienter) of the same facts. The fourth count, after stating

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that the plaintiffs were calico printers, and required and were accustomed to use Dutch madder, avers that the defendants, knowing this and that the madder was for use, 'by falsely and fraudulently representing it to be fit and proper for use in their business,' sold the same, whereas it was not such, and so the defendants 'deceived the plaintiffs.'

The defendants pleaded Not Guilty to the whole declaration.

The facts were these: The madder was owned by merchants in Amsterdam, who consigned it to the defendants in New York for sale upon commission. The vessel containing the madder arrived at New York on the 6th April, 1856, previous to which the defendants had received, by a Liverpool steamer, a sample put up in the usual way in a small clear glass bottle, with a ground glass stopper, covered with bladder, and marked 1 to 100, according to the number of casks. The sample was handed to R. H. Green & Sons, who were regular brokers in drugs, &c., in New York, to be sold.

Mr. Green gave the following account: 'I received from a young man in the employ of defendants a small bottle of madder, marked 1 to 100, said to represent one hundred casks of Dutch madder, with the injunction that it must not be opened. He left it with me. I asked him subsequently why he would not have it opened, and he replied, that it was the only sample bottle which they had, and that it would deteriorate by being opened; which is the fact. The vessel with the madder was here. They were urgent to have it taken from the wharf, and as I was about going eastward, I said I would try and sell it, but still I was told not to have it opened. It was very handsome to look at. I went to Providence, and called on the Allens. Mr. Allen is one of our best calico printers, and has always been in the habit of using the best madder. Young Allen went with me to the works; he wanted to see his overseer. We met his overseer, and the bottle was submitted to him; he thought it was handsome, and the conclusion was, they agreed to take it. The price was named. He inquired concerning the quality. I told him I knew nothing

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of it, except that it came from one of our best houses; the standing of the house was the best guaranty. The conversation carried the idea that it was very handsome madder. . . . The price named was 11 1/4 cents per pound for one hundred casks, without knowing the amount contained in them. He said he would take it, and I said he should have it. The price was fixed by the defendants. The sample bottle was in the usual form of such samples. It is usual to have one for every cask, but here there was but one. I brought the bottle back with me from Providence. Subsequently, I was applied to for the sample bottle, and sent it on; I have never seen it since. There was no objection to my giving the sample bottle to the plaintiffs after the sale; it then belonged to them. I promised to bring back the bottle from Providence. I did so, and afterwards sent it back to Providence.' [This bottle, it appeared, had been lost by the Allens.]

The overseer testified as follows: 'I saw the sample bottle in question in Mr. Green's hands, and was told not to open it. It was very fair to look at, and I said so at the time, but I told them that I could not tell anything about it unless the bottle could be opened. I was asked about it, and I said it looked very well; it could not be judged of by any one without opening the sample bottle. It is the custom to open and examine the sample bottles. There was no sand in the bottle apparent to the eye; I saw none in it. No one could have discovered adulteration from looking at the madder in the bottle. . . .. No wise man will buy madder without looking at it; this is the first I ever knew of a purchase being made where it was not examined. The madder in the bottle is always taken out, rubbed and examined. I have had an experience of forty-five years in the business. On the occasion of this purchase I told them that it was impossible to tell what the quality of the madder was, unless I examined it; I could only say that it looked very well.'

Without other examination, and without any knowledge of the quality of the sample, except as it appeared to the eye, and as inferred from 'the standing of the house,' the plaintiffs agreed to purchase the lot at 11 1/4 cents a pound. Accordingly,

Page 362

upon his return to New York, April 17th, Mr. Green made an entry of sale in his sales book, and sent a copy to the defendants. The madder was afterwards weighed, a bill made out by the defendants, and, on the 28th of April, forwarded to the plaintiffs. This bill contained a memorandum notice, in small type, in one corner, reading thus: 'No claims for deficiencies or imperfections allowed unless made within seven days from receipt of goods.' It appeared from the testimony of foreign witnesses that the madder in the flask was of the same quality as that in the casks. About three weeks after the madder was received by the plaintiffs at their print works, they began to use it, when they found it not equal to what they had been accustomed to use. It was 'full of sand;' 'they were obliged to shovel the sand out of the vats twice a day;' the quantity of sand 'varied from two and a half ounces to four ounces in the pound;' 'this variation took place in the same cask;' sand was found 'in streaks' in it; it was 'streaked through and through with sand;' it 'was palpable as soon as it was opened;' 'the streaks were both lengthwise and crosswise;' 'they were strata.'

It should be here mentioned that, as was here proved, there are different qualities of madder, such as mull, little ombro, ombro, and crops, but they are all known by the common term of Dutch madder, and also that all madder has in it more or less sand and other impurities. Even the first quality has in it from two to eight per cent.; but this madder 'was out of all proportion, out of all character;' thirty to forty per cent. of impurity, fifteen to sixteen per cent. being sand.

The testimony being closed, the counsel for the defendants requested the court to instruct the jury as follows:

'1. The gist of the plaintiffs' action is an alleged false warranty and deceit, on the part of the defendants, in the sale of the madder in question; and to entitle them to recover against the defendants, they must establish, to the satisfaction of the jury, such alleged false warranty and deceit.

'2. That, in this form of action, the plaintiff cannot recover

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without evidence to establish a scienter on the part of the defendants.

'3. That the broker had no authority or power to warrant that the bulk should correspond with the madder contained in the bottle, and thus bind the defendants. But even if he had such power, still he did not so warrant the same.

'4. That there was not such a sale by sample as in law amounts to a warranty that the bulk should correspond with the sample.

'5. That if there was any warranty, it was at most an implied one, under which the defendants are not liable for any adulteration of the bulk of the madder, unless the plaintiff have, by competent evidence, established fraud on the part of the defendant in respect thereto.

'6. If there was a warranty of any kind, still the terms stated in the bill rendered limited the defendants' liability thereon to seven days, and as no demand for damages was made by the plaintiff within that time, they are not entitled to recover in this action.'

The court refused to give any one of the instructions asked for, and the counsel for the defendants thereupon excepted.

During the trial, the broker was asked by the plaintiffs' counsel what kind of madder he had been in the habit of selling the plaintiffs, to which the defendants' counsel objected. The court overruled the objection, and counsel for the defendants excepted. The witness, however, said nothing responsive to the question, until cross-examined by the defendants' counsel; and no objection appeared in the record to the testimony which he gave.

The jury rendered a verdict for the plaintiffs for $7333, being a deduction of thirty per cent. from the price paid for the madder, which reduced the same to 7 7/8 cents per pound. Thereupon the defendants took a bill of exceptions.

Messrs. Owen and Stoughton, for the plaintiff in error:

1. The question about the kind of madder the broker was in the habit of selling to the plaintiffs was improperly allowed; for the defendants had never sold any madder before

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the lot in question, and there is no evidence that they knew to what kind the plaintiffs had been accustomed.

2. As respects the exceptions:

The exceptions to the first and second instructions are not so strong as the others. We press them least.

The third is well founded.

The broker was not authorized to warrant that the madder to be sold was equal to that contained in the bottle exhibited, and of this the purchasers had notice at the time the article was offered to them. Madder, it appeared, is of several qualities; all contains sand, earthy matter, and other impurities; and in the best, these are found to the extent of from two to eight per cent. The presence or quantity of these impurities, the overseer testified, could not be ascertained from an inspection of the sample...

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73 practice notes
  • Hardin v. Ill. Central Railroad Co., No. 32084.
    • United States
    • United States State Supreme Court of Missouri
    • April 19, 1934
    ...U.S. 209, 51 Sup. Ct. 453, 75 L. Ed. 983; Morris, Executor, v. Giddings, 115 U.S. 300, 6 Sup. Ct. 65, 29 L. Ed. 403; Schuchardt v. Allen, 1 Wall. 359, 17 L. Ed. 642.] This is, of course, likewise true of a request for a peremptory instruction under our practice. [Lee v. David, 11 Mo. 114; T......
  • Boeing Company v. Shipman, No. 24588.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 7, 1969
    ...Toomey v. L. & B. Railway Co., 3 C. B., N.S. 150; Wheelton v. Hardisty, 8 Ellis & Blackburn, 266; Schuchardt v. Allens, 1 Wallace, 369 17 L.Ed. 642." 14 Wall. (81 U.S.) at 448. According to Mr. Justice Black, dissenting in Galloway v. United States, 1943, 319 U.S. 372, 404, 63 S.Ct. 1077, 1......
  • Baltimore Co v. Groeger, No. 113
    • United States
    • United States Supreme Court
    • January 5, 1925
    ...United States, 4 Cranch, 219, 221, 2 L. Ed. 601; United States v. Breitling, 20 How. 252, 254, 255, 15 L. Ed. 900; Schuchardt v. Allens, 1 Wall. 359, 369, 17 L. Ed. 642; Merchants' Bank v. State Bank, 10 Wall. 604, 637, 19 L. Ed. 1008; Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L. Ed.......
  • Hercules Powder Co. v. Rich, No. 6494.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 1, 1924
    ...this only in that the vendor there is the manufacturer and here is the dealer. In Schurchardt v. Allens, 1 Wall. (68 U. S.) 359, 369 (17 L. Ed. 642), the court says: "Authority, without restriction, to an agent to sell, carries with it authority to warrant." That statement of the Supreme Co......
  • Request a trial to view additional results
73 cases
  • Hardin v. Ill. Central Railroad Co., No. 32084.
    • United States
    • United States State Supreme Court of Missouri
    • April 19, 1934
    ...U.S. 209, 51 Sup. Ct. 453, 75 L. Ed. 983; Morris, Executor, v. Giddings, 115 U.S. 300, 6 Sup. Ct. 65, 29 L. Ed. 403; Schuchardt v. Allen, 1 Wall. 359, 17 L. Ed. 642.] This is, of course, likewise true of a request for a peremptory instruction under our practice. [Lee v. David, 11 Mo. 114; T......
  • Boeing Company v. Shipman, No. 24588.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 7, 1969
    ...Toomey v. L. & B. Railway Co., 3 C. B., N.S. 150; Wheelton v. Hardisty, 8 Ellis & Blackburn, 266; Schuchardt v. Allens, 1 Wallace, 369 17 L.Ed. 642." 14 Wall. (81 U.S.) at 448. According to Mr. Justice Black, dissenting in Galloway v. United States, 1943, 319 U.S. 372, 404, 63 S.Ct. 1077, 1......
  • Baltimore Co v. Groeger, No. 113
    • United States
    • United States Supreme Court
    • January 5, 1925
    ...United States, 4 Cranch, 219, 221, 2 L. Ed. 601; United States v. Breitling, 20 How. 252, 254, 255, 15 L. Ed. 900; Schuchardt v. Allens, 1 Wall. 359, 369, 17 L. Ed. 642; Merchants' Bank v. State Bank, 10 Wall. 604, 637, 19 L. Ed. 1008; Improvement Co. v. Munson, 14 Wall. 442, 448, 20 L. Ed.......
  • Hercules Powder Co. v. Rich, No. 6494.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 1, 1924
    ...this only in that the vendor there is the manufacturer and here is the dealer. In Schurchardt v. Allens, 1 Wall. (68 U. S.) 359, 369 (17 L. Ed. 642), the court says: "Authority, without restriction, to an agent to sell, carries with it authority to warrant." That statement of the Supreme Co......
  • Request a trial to view additional results

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