Shisler v. Baxter
| Decision Date | 13 April 1885 |
| Citation | 109 Pa. 443 |
| Parties | Shisler <I>versus</I> Baxter. |
| Court | Pennsylvania Supreme Court |
Before MERCUR, C. J., GORDON, TRUNKEY, STERRETT and CLARK, JJ. PAXSON and GREEN, JJ., absent
ERROR to the Court of Common Pleas No. 1, of Philadelphia county: Of July Term 1884, No. 155.
William W. Wiltbank (with whom were James Crowe and Henry Reed, for plaintiff in error.—(1) In the contract of sale the goods delivered must be of the kind or species contracted for. This does not depend upon any contract of warranty, but upon the nature of the thing sold or contracted for, and a violation of this rule is not a breach of warranty, but rather a non-compliance with the contract which the vendor has engaged to fulfil: Lord ABINGER in Chanter v. Hopkins, 4 M. & W., 404. In Eagan v. Call, 10 Casey, 237, STRONG, J., distinguishes such cases from those of sale by sample: Borrekins v. Bevan, 3 Rawle, 39; McFarland v. Newman, 9 Watts, 57; Whitaker v. Eastwick, 25 P. F. S., 231; Fraley v. Bispham, 10 Barr, 325; Jennings v. Gratz, 3 Rawle, 169. In Cornelius v. Molloy, 7 Barr, 296, the defendant sold the plaintiff as copper a composition which was not copper, and was held liable in an action of deceit: Kirk v. Nice, 2 Watts, 369; Robertson v. Schwening, 1 W. N. C., 94; Wolcott v. Mount, 7 Vroom, 265; White v. Miller, 71 N. Y., 128; Allan v. Lake, 18 Q. B., 565. (2) A given kind of goods being insisted upon, the contract included an express warranty of quality: Boyd v. Wilson, 3 W. N. C., 524; Sims v. Stribler, 13 Id., 92; Warren v. Coal Co., 3 Id., 525; Driesbach v. Lewisburg Bridge Co., 32 P. F. S., 180; McGlinn v. Carrigan, 2 W. N. C., 323; Freiberg v. Kahn, 1 Id., 221. (3) The following cases are to be distinguished on plain grounds: (a) Those in which the defect was one of quality merely, the goods delivered being of the kind stipulated for: Wetherill v. Neilson, 8 Harris, 452; Whitaker v. Eastwick, 25 P. F. S., 231; Coulston v. City National Bank, 4 W. N. C., 297; Boyd v. Wilson, 3 Id., 524. (b) Those in which the actual goods bargained for were delivered, but the buyer was dissatisfied with them: MacFarland v. Newman, 9 Watts, 57; Carson v. Baillie, 7 Harris, 379; Lord v. Grow, 3 Wr., 88. (c) Those of a sale by inspection, where each party had an equal opportunity of ascertaining the kind and condition of the goods, and where the goods were not required by the contract to be a certain lot as in the principal case, but only to be those of a general kind or species: Lord v. Grow, supra. And as to this see Osgood v. Lewis, 2 Harris & Gill, 495; approved in Cornelius v. Molloy, 7 Barr, 296; supra, pp. 7, 8.
The present action is in case for the breach of a representation or condition of a contract, through which breach certain injury was suffered by the plaintiff. This is the older and probably the more scientific procedure: Vanleer v. Earle, 2 Casey, 279.
Frank S. Simpson, for defendant in error.—The plaintiff by his own testimony bought and received exactly what he saw put out on the counter for him, with full opportunity for inspecting what he bought. There is no evidence that the defendants said anything which they believed was untrue, or intentionally made the slightest misrepresentation. The seed when sold was merchantable cabbage seed, even if it was not all "Wakefield" seed. To hold the defendant liable would make a merchant, without corresponding profit, an insurer of kind and quality, and in this case a guarantor of the most uncertain of all results — the product of seeds planted in the ground: Borrekins v. Bevan, 3 Rawle, 28; Carson v. Baillie, 7 Harris, 375; Lord v. Grow, 3 Wright, 88; Boyd v. Wilson, 2 Norris, 319; Selser v. Roberts, 9 Out., 242; Wetherill v. Neilson, 8 Harris, 448; Fraley v. Bispham, 10 Barr, 320; McFarland v. Newman, 9 Watts, 55; Jackson v. Wetherill, 7 S. & R., 480; Eagan v. Call, 10 Casey, 236; Weimer v. Clement, 1 Wright, 147; Whitaker v. Eastwick, 25 P. F. S., 229; Haddock v. Mayer, 38 Leg. Int., 311; Coulston v. Bank, 4 W. N. C., 297; Port Carbon Iron Co. v. Groves, 18 P. F. S., 149; Altoona Iron Works v. Axle Co., 6 W. N. C., 271; Roebling v. Brown, 9 Id., 170; Ryan v. Ulmer, 12 Out., 332. The narr. is framed as in an action for deceit: 2 Chitty, 680; Iron Works v. Barber, 13 W. N. C., 492; 6 Out., 156. The deceit or guilty knowledge on the part of the defendants is the gist of the whole action, and of course must be averred and proved; Cox v. Highley, 4 Out., 249; Dilworth v. Bradner, 4 Norris, 238; Duff v. Williams, Id., 490.
In this case there is no evidence of any intended fraud or deceit by the vendor, nor of any express warranty. Mere representations as to the quality of the article sold do not constitute a warranty: Wetherill v. Neilson, 8 Harris, 448; nor in itself is it evidence of a warranty: McFarland v. Newman, 9 Watts, 55. Unless there be fraud or warranty the purchaser takes the risk of the quality: Whitaker v. Eastwick, 25 P. F. S., 229. So in a sale of personal property on inspection, and where the vendee's means of knowledge are equal to the vendor's, the law does not presume an engagement by the vendor that...
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