2 personally liable;1 and he does this also if he expressly charges his own personal responsibility; but there is always a presumption that an agent, known to be such, intends to bind his principal and not himself, and therefore, where a known agent sells goods of his principal, no warranty of title on the part of the agent will be implied.* § 1309. None where circumstances negative the presumption. The implied warranty of title being one which the law imputes to the seller by reason of the circumstances under which the sale was made, and in furtherance of good faith, it follows necessarily that if those circumstances are absent, or if, though certain of them are present, there are others which show more clearly that the implied warranty was excluded, or that good faith does not require it, it will not arise. If, therefore, the seller expressly refuses to warrant the title and the buyer agrees to take his chances; or if the seller expressly sells simply such interest as he has; or if the origin and character of the seller's title are fully known to the buyer and the seller simply parts with whatever title he himself acquired, in these and like cases, for obvious reasons, no warranty will be implied. 6 2. Implied Warranties of Quality. § 1310. In general.- Having now considered the question of implied warranties of title it remains to ascertain what warranties, if any, are implied respecting the quality, condition, 1 See Mechem on Agency, §§ 541- 351; First National Bank v. Massa 554. ? See Mechem on Agency, § 554. 3 See Mechem on Agency, § 558. 4 Irwin v. Thompson (1882), 27 Kan. 643. 5 Miller v. Van Tassel, 24 Cal. 458; Porter v. Bright, 82 Pa. St. 441. "Gould v. Bourgeois, 51 N. J. L. 361, 18 Atl. R. 64, Adam's Cas. 359 [citing Hoagland v. Hall, 38 N. J. L. chusetts Co., 123 Mass. 330; Bogert v. Chrystie, 24 N. J. L. 57]; Croly v. Pollard, 71 Mich. 612, 39 N. W. R. 853. 7 Chapman v. Speller, 14 Q. B. 621; Hopkins v. Grinnell, 28 Barb. (N. Y.) 533; Bagueley v. Hawley, L. R. 2 C. P. 625; Hall v. Conder, 2 Com. B. (N. S.) 22. fitness or characteristics of the goods sold. Though differing somewhat in aspect, these matters may all be appropriately grouped under the single head of warranties of quality, and they will be so considered. And in so doing it will be convenient first to ascertain what is the general rule as to such an implication, and then what exceptions exist, if any. a. Caveat Emptor. § 1311. No warranty implied on sale of ascertained chattel open to inspection. It is the well settled and general rule of the common law, differing in this respect from the civil law, that, upon the present and executed sale of a definite, ascertained and existing chattel which is open to the inspection of the buyer, and of which the seller is neither the manufacturer nor the grower, no warranty whatever as to quality, fitness or condition is implied. In such cases, unless there is fraud or the seller gives an express warranty, the rule of the common law is practically without exception that the buyer purchases at his own risk. Caveat emptor is the invariable maxim.' If the 1Caveat emptor-The common-law maxim.--Springwell v. Allen, 2 East, 448, n.; Parkinson v. Lee, 2 East, 314; Williamson v. Allison, 2 East, 446; Earley v. Garrett, 9 B. & C. 928; Morley v. Attenborough, 3 Ex. 500; Ormrod v. Huth, 14 M. & W. 651; Hall v. Conder, 2 C. B. (N. S.) 22; Hopkins v. Tanqueray, 15 C. B. 130; Chanter v. Hopkins, 4 M. & W. 399; Swett v. Colgate, 20 Johns. 196, 11 Am. Dec. 266; Welsh v. Carter, 1 Wend. (N. Y.) 185, 19 Am. Dec. 473; Mixer v. Coburn, 11 Metc. (Mass.) 559, 45 Am. Dec. 230; Frazier v. Harvey, 34 Conn. 469; Hadley v. Clinton Co. Imp. Co., 13 Ohio St. 502, 82 Am. Dec. 454; Lord v. Grow, 39 Pa. St. 88, 80 Am. Dec. 504; Moore v. McKinlay, 5 Cal. 471; Moses v. Mead, 1 Denio (N. Y.), 378, 43 Am. Dec. 676; Hart v. Wright, 17 Wend. (N. Y.) 267; Wright v. Hart, 18 Wend. 449; Lanier v. Auld, 1 Murph. (N. C.) 138, 3 Am. Dec. 680; Erwin v. Maxwell, 3 Murph. 241, 9 Am. Dec. 602; Hyatt v. Boyle, 5 G. & J. (Md.) 110, 25 Am. Dec. 276; Getty v. Rountree, 2 Pin. (Wis.) 379, 54 Am. Dec. 138; Dickson v. Jordan, 11 Ired. (N. C.) L. 166, 53 Am. Dec. 403; Barnard v. Kellogg, 10 Wall. (U. S.) 383; Weimer v. Clement, 37 Pa. St. 147, 78 Am. Dec. 411; Sellers v. Stevenson, 163 Pa. St. 262, 29 Atl. R. 715; Rice v. Forsyth, 41 Md. 389; Hight v. Bacon, 126 Mass. 10, 30 Am. R. 639; Kohl v. Lindley, 39 Ill. 195, 89 Am. Dec. 294; McCray Refrig. Co. v. Woods, 99 Mich. 269, 58 N. W. R. 320, 41 Am. St. R. 599; Scott Lumber Co. v. HafnerLothman Mfg. Co., 91 Wis. 667, 65 N. W. R. 513; Milwaukee Boiler Co. buyer wishes further protection than his own inspection or judgment can give him, he must exact a warranty. 1312. Mere inconvenience of examination does not affect rule.-The rule is not altered by the fact that the examination or inspection will consume time or is attended with labor and inconvenience. No exception to it can be admitted, to use the language of a leading case, except "where the examination at the time of the sale is, morally speaking, impracticable, as where goods are sold before their arrival or landing. The mere fact of the inspection being attended with inconvenience or labor is not equivalent to its impracticability. If the purchaser desire to avoid it, and yet obtain the protection it would afford him, he must do so by exacting from the vendor an express warranty of quality."1 § 1313. No implied warranty of quality as to obvious defects. There is clearly, therefore, no implied warranty against obvious defects. Neither, ordinarily, is there one as to latent defects, as will be seen in a subsequent section. § 1314. No implied warranty, in such cases, even though seller knew that chattel was bought for a specific purpose.It makes no difference ordinarily, in the application of the rule of caveat emptor (though it is material in other cases to be hereafter noticed), that the seller knew that the buyer intended the chattel for a specific purpose to which he erroneously sup v. Duncan, 87 Wis. 120, 58 N. W. R. 232, 41 Am. St. R. 33; Smith v. Love, 64 N. C. 439; Kingsbury v. Taylor, 29 Me. 508, 50 Am. Dec. 607; Fogle v. Brubaker, 122 Pa. St. 7, 15 Atl. R. 692; Hood v. Bloch, 29 W. Va. 244; Hoffman v. Oates, 77 Ga. 701; Warren Glass Works v. Coal Co., 65 Md. 547, 5 Atl. R. 253; Horner v. Parkhurst, 71 Md. 110, 17 Atl. R. 1027; Bartlett v. Hoppock, 34 N. Y. 118, 88 Am. Dec. 428; Armstrong v. Bufford, 51 Ala. 410; Carleton v. Jenks, 47 U. S. App. 734, 26 C. C. A. 265; Court v. Snyder (1891), 2 Ind. App. 440, 50 Am. St. R. 247. Caveat venditor- The civil-law maxim.- See Meyer v. Richards, (1895), 163 U. S. 385, 398. 1 Hyatt v. Boyle, 5 Gill & J. (Md.) 110, 25 Am. Dec. 276. To same effect is the language of Davis, J., in Barnard v. Kellogg, 10 Wall. (U. S.) 383. 2 See post, § 1343. posed it to be adapted; for here the buyer relies on his own judgment and not on the judgment of the seller.1 1 Thus in Dickson v. Jordan, 11 Ired. L. (N. C.) 166, 53 Am. Dec. 403, the court said: "The purpose for which an article is intended is known in almost every case, and the accident that it happens to be expressed, unless it enters into and forms a part of the bargain, can make no difference. One buys a set of harness, for instance. Can it make any difference if he hap pens to say that his purpose is to use them for his carriage? The purpose is known whether he says so or not, and the price is the same. Where, then, is the consideration to support this implied warranty? What does he pay for it? The case would be different if he should tell the merchant that his carriage was particularly heavy, or his horses unruly, and he was willing to pay a higher price to have the article warranted to be strong and fit for his purpose." In Hight v. Bacon, 126 Mass. 10, 30 Am. R. 639, a leather dealer, not the manufacturer, sold to another dealer a specific quantity of leather which the latter examined. The seller knew that the buyer intended it to be made into boots and shoes, for which it proved to be unfit by reason of a latent defect, though both parties at the time of the sale believed it to be suitable. Held, there was no warranty of fitness for the purpose contemplated. as in 1881." Defendant produced what he had left of the stock of 1881. in the identical packages of that year; plaintiff examined it and bought it, but it failed to produce Wakefield cabbage and was almost worthless. Held, there was no implied warranty. In McQuaid v. Ross, 85 Wis. 492, 55 N. W. R. 705, 39 Am. St. R. 864, 22 L. R. A. 187 (with valuable note), plaintiff bought of defendants a bull which they knew plaintiff desired for breeding purposes. Plaintiff saw and examined the bull before the purchase, and there was no express warranty. The bull proved to be impotent, of which both parties were ignorant at the time of the sale. Held, that there was no implied warranty of fitness. Taylor v. Gardiner, 8 Manitoba, 310, and Wood v. Ross, Tex. Civ. App. 26 S. W. R. 148, held the same way respecting a stallion; (but Merchants' Bank v. Fraze 9 Ind. App. 161, 36 N. E. R. 378, where the court likened it to an executory contract, and the buyer relied on the seller's judgment [see post, § 1343] is contra.) Scott v. Renick, 1 B. Mon. (Ky.) 63, 35 Am. Dec. 177, holds the same way respecting a cow, and White v. Stelloh, 74 Wis. 435, 43 N. W. R. 99, accords respecting the future competency of a bull-calf. See also that on a sale of specific article, mere knowledge of seller's purpose raises no warranty of fitness, Bragg v. Morrill, 49 Vt. 45, 24 Am. R. 102; Bartlett v. Hoppock, 34 N. Y. 118, 88 Am. Dec. 428; Deming v. Foster, 42 N. H. 165; Mason v. Chappel, 15 Gratt. (Va.) 572; Humphreys v. Comline, 8 Blackf. (Ind.) 516; Rogers v. Niles, 11 Ohio St. 48, 78 In Shisler v. Baxter, 109 Pa. St. 443, 58 Am. R. 738, it appeared that in 1881 plaintiff had bought of defendant, a seed merchant, a quantity of Wakefield cabbage seed which gave good results. The next year plaintiff asked defendant if he had "any more Wakefield cabbage seed, same § 1315. The distinction which exists here was well stated in a New Hampshire case,' often cited, in this way: "In the case of executory contracts for the making or furnishing of goods or articles for a special use, the law implies a contract that the articles to be made or furnished shall be reasonably fit and proper for the use for which they are ordered. And when articles thus agreed to be made or furnished are delivered, the law implies a warranty that the articles are reasonably fit and proper for that use. "But there is no implied warranty as to the quality of an article sold, nor of its fitness for any particular use, where there is a present sale of a particular existing article, then open to the examination and inspection of the purchaser, and where he requires no express warranty. To use the illustration of Maule, J., in Keates v. Cadogan, if a man says to another, Sell me a horse fit to carry me,' and the other sells him a horse which he knows to be unfit to ride, he may be liable for the consequences; but if a man says, 'Sell me that grey horse to ride,' and the other sells it, knowing that he cannot ride it, that would not make him liable." § 1316. Or that the defect be latent.- Neither does it make any difference in the application of this rule that the defect was latent, and not discoverable on examination, if the seller (not the manufacturer or grower 3) is guilty of no fraud. As was said by Mellor, J., in the leading case of Jones v. Just: "Where goods are in esse, and may be inspected by the buyer, Am. Dec. 290; Thompson v. Libby, 35 Minn. 443, 29 N. W. R. 150; Cosgrove v. Bennett, 32 Minn. 371, 20 N. W. R. 359; Whitmore v. South Boston Iron Co., 2 Allen (Mass.), 52; Rasin v. Conley, 58 Md. 59; Port Carbon Co. v. Groves, 68 Pa. St. 149; Gachet v. Warren, 72 Ala. 288; Warren Glass Works v. Coal Co., 65 Md. 547, 5 Atl. R. 253; McCray Refrigera tor Co. v. Woods, 99 Mich. 269, 58 N. W. R. 320,41 Am. St. R. 599; Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 58 N. W. R. 232; Seitz v. Refrigerating Co., 141 U. S. 510, 35 L. ed. 837, 12 Sup. Ct. R. 46; Ottawa Bottle Co. v. Gunther, 31 Fed. R. 209; Dounce v. Dow, 64 N. Y. 411. 1 Deming v. Foster (1860), 42 N. H. 165. 210 C. B. 591. 3 As to this, see following section. 4 L. R. 3 Q. B. 197. |