ham, 5 Humph. 480; Tregg v. Ferris, Id. 343; Andres v. Lee, 1 Dev. & Bat. 318. In the treatise by Mr. W. W. Story on the law of contracts, it is said (§ 833, p. 712 of 2d edi.) that "a warranty of title will be presumed whether the goods sold be, at the time of the sale, in the possession of the vendor or of a third person; unless the contrary be then expressed." No doubt the presumption may be repelled by such an expres sion; and that the expression may be made as well by the acts as the language of the parties. But is there a case sustaining the position that a vendor who makes no affirmation or representation on the sale of a chattel in the possession of a third person, can be held liable for a failure of title on an implied warranty? A judge of the supreme court of New York has said that he can find no such case either in Great Britain or in this country. McCoy v. Archer, 3 Barbour 329. In England, at the present time, when there is no warranty in express terms, the question is whether there are such circumstances as to be equivalent to such a warranty. Usage of trade, if proved as a matter of fact, would, of course, be sufficient to raise an inference of such an engagement; and without proof of such usage, the very nature of the trade may be enough to lead to the conclusion that the person carrying it on must be understood to engage that the purchaser shall enjoy that which he buys as against all persons. For example, if the articles are bought in a shop professedly carried on for the sale of goods, the shop keeper must be considered as warranting that those who purchase will have a good title to keep the goods purchased. In such a case the vendor sells as his own," and that is what is equivalent to a warranty of title. Parke, B., 3 W. H. & G. 513.

Still it is considered that the rule of the common law is that there is no implied warranty from the mere contract of sale itself, and that where it is to be implied from the nature of the trade carried on, the mode of carrying on the trade should be such as clearly to raise that inference. On a sale by a pawn broker the court of exchequer considered there was no assertion of an absolute title to sell, but only an assertion that the article had been pledged with him and the time allowed for redemption had passed. Morley v. Attenborough, 3 W. H. & G. 513. And where the defendant had bought articles at a sale under execution for a sum which he paid the sheriff, and the plaintiff who had equal knowledge with the defendant of the sale, and of the title to these articles, bought from the defendant his purchase, and the articles were afterwards taken under a superior title, the plaintiff failed to recover back the money which he had paid; the court being of opin

ion that the true consideration was the assignment of the right whatever it was that the defendant had acquired by his purchase at the sheriff's sale; and that this consideration had not failed. Chapman v. Speller, 11 Adol. & El. N. S. 621, 68 Eng. Com. Law Rep. 621.

However, the English authorities, new as well as old, shew that an affirmation may amount to an express warranty of title, if so intended. Simms &c. v. Marryat, 7 Eng. Law & Eq. 350.

3. What on a sale of goods is a warranty of quality.

By the common law the vendor is not responsible for the quality of the thing sold unless he either warrants its quality, or makes some false representation in respect to it; or knowing of the defect omits to disclose of it, in which case the suppression of the truth is a fraud. Wilson v. Shackleford, 4 Rand. 5.

There has been some diversity of opinion with respect to the effect of an affirmation of quality. In the case in 1 Jac. 1, of the goldsmith who sold a stone which he affirmed to be a Bezars stone when it was not, it was said that every one, in selling of his wares will affirm that his wares are good, or the horse which he sells is sound, yet if he warrants them not, it is no cause of action. Chandelor v. Lopus, Cro. Jac. 4. In the case in 37 Geo. 3, of the sale of two pictures-described in the catalogue, one as a Sea piece by Claud Lorraine, the other a Fair by Teniers-both of them artists some centuries back-Lord Kenyon thought the catalogue imported no more than the opinion of the seller that the picture was the work of the artist whose name he affixed to it. Jendwine v. Slade, 2 Esp. 572.

The rule of Chandelor v. Lopus, was early adopted by the supreme court of New York. Seixas v. Woods, 2 Caines's Rep. 54, 5, and other cases cited ante, p. 357. In a subsequent case it laid down that by the common law where there is no fraud or agreement to the contrary, if the article turns out not to be that which was supposed, the purchaser sustains the loss unless there be either a warranty or fraud; and if there be reliance on an affirmation made at the time of the sale it must appear that it was more than an opinion that it was intended as a warranty. Swett v. Colgate, 20 Johns. 203. It approved the rule of Sir William Blackstone, that "with regard to the goodness of wares purchased, the vendor is not bound to answer unless he expressly warrants them to be sound and good, or unless he knew them to be otherwise

and hath used any art to disguise them, or unless they turn out to be different from what he represented them to the buyer." 2 Bl. Com. 551.

The rule of Seixas v. Woods, Spencer, J. was disposed to confine to the case of a sale where the thing sold is exhibited; he was ready to admit that on sales by sample, there is an implied warranty that the sample taken in the usual way is a fair specimen of the thing sold. Sands v. Taylor, 5 Johns. 404.

That a sale by sample is tantamount to an express warranty that the sample is a true representation of the kind, has been established in Massachusetts, Bradford v. Manly, 13 Mass. 139; and is now established in New York. There, in ordinary sales, when the vendee has an opportunity of examining the commodity, the vendor is not answerable for any latent defect, without fraud or an express warranty, or such a direct affirmation or representation as is tantamount to a warranty, and not the expression of an opinion; but in cases of sales by sample the vendor is held responsible that the quality of the bulk of the commodity shall be equal to the sample shewn. Oneida Man. Co. v. Lawrence, 4 Cow. 444; Andrews v. Kneeland, 6 Id. 357; Gallagher v. Waring, 9 Wend. 26; Beebe v. Robert, 12 Id. 418.

Though the sale be not by sample but according to a written contract, the purchaser has a right to expect an article according to the description in that contract. Tye v. Fynmore, 3 Camp. 462; Gardiner v. Gray, 4 Id. 144; ante, p. 56. That description is a warranty when it is so intended by the parties. Hastings v. Lovering, 2 Pick. 219; Higgins v. Livermore, 14 Mass. 106; Coolidge v. Brigham, 1 Metcalf 352. And there is a right of action when the thing sold is not what it is warranted to be. Fielder v. Starkin, 1 H. Bl. 17; Poulton v. Lattimore, 9 Barn. & Cress. 259, 17 Eng. Com. Law Rep. 373; Pateshall v. Tranter, 3 Adol. & El. 103, 30 Eng. Com. Law Rep. 39.

Notwithstanding the doctrine that on a sale of goods there is by law no implied warranty as to their quality, it is now well established in England that if goods are ordered of a tradesman in the way of his trade, for a particular purpose, he is considered as engaging that the goods supplied are reasonably fit and proper for that purpose. Bluett v. Osborne &c. 1 Starkie 384; Bridge v. Wain, Id. 504; 2 Eng. Com. Law Rep. 437, 486; Laing v. Fidgcon, 4 Camp. 169, 6 Taunt. 108, 1 Eng. Com. Law Rep. 327; Gray &c. v. Cox &c. 4 Barn. & Cress. 103, 10 Eng. Com. Law Rep. 103; Jones v. Bright &c. 5 Bing. 535, 15 Eng. Com. Law Rep. 529; Brown v. Edg

ington, 2 Man. & Grang. 279, 40 Eng. Com. Law Rep. 371; Shepherd v. Pybus, 3 Man. & Grang. 868, 42 Eng. Com. Law Rep. 868.

In view of some of these cases, the court of appeals of Maryland has disapproved Seixas v. Woods, and Swett v. Colgate. It holds, that any affirmation of the quality or condition of the thing sold, (not uttered as matter of opinion or belief,) made by the seller at the time of sale, for the purpose of assuring the buyer of the truth of the fact affirmed, and inducing him to make the purchase, if so received and relied on by the purchaser, is an express warranty. Osgood v. Lewis, 2 Har. & Gill 518-524. Still it does not overrule the case of Johnson v. Cope &c. 3 Har. & J. 89. Nor would it on a sale of tobacco branded as Parkins' crooked brand, sustain an action brought upon an implied warranty of quality. Hyatt v. Boyle, 5 Gill & J. 118.

In Pennsylvania, the cases of Ritchie v. Summers, 3 Yeates 534; Kimmel v: Lechty, Id. 262; Willings v. Consequa, 1 Peters's C. C. R. 317; Calhoun v. Vechio, 3 Wash. C. C. R. 165; Jackson v. Wetherill, 7 S. & R. 482; and Curcier v. Pennock, 14 Id. 51, were regarded by Gibson, C. J., as placing the rule on the ground of Chandelor v. Lopus, Cro. Jac. 4; and he and Kennedy, J. were for adhering to that rule. But a majority of the court abandoned Chandelor v. Lopus, and (as in Maryland) regarded the New York decisions in Seixas v. Woods, and Swett v. Colgate, inconsistent with the more recent English cases, and followed the latter. Borrekins v. Bevan &c. 3 Rawle 42. Still it was decided that the seller was not answerable for the quality of an article that had been inspected and received by the buyer, provided it be in specie the thing for which it was sold. And a small degree of adulteration was not regarded. Jennings &c. v. Gratz, Id. 168. This and subsequent cases shew the continued influence of Gibson, C. J., who thought that in many modern cases the judges had broken away from the common law, "in pursuit of a phantom in the guise of a principle of impracticable policy and questionable morality." 9 Watts 56. He considered that "the relation of buyer and seller, unlike that of cestui que trust, attorney and client, or guardian and ward, is not a confidential one; and if the buyer, instead of exacting an explicit warranty, chooses to rely on the bare opinion of one who knows no more about the matter than he does himself, he has himself to blame for it. If he will buy on the seller's responsibility, let him evince it by demanding the proper security; else let him be taken to have bought on his own. He who is so simple as to contract without a specifi

cation of the terms, is not a fit subject of judicial guardianship. Reposing no confidence in each other, and dealing at arms' length, no more should be required of parties to a sale than to use no falsehood." In the case wherein this opinion was given, Wood v. Smith, 4 C. & P. 45, 19 Eng. Com. Law Rep. 267, is criticised and repudiated; and the court, in sending back the cause, laid down the following as the principles on which its decision was to depend. "Though," it said, "to constitute a warranty requires no particular form of words. the naked averment of a fact is neither a warranty itself, nor evidence of it. In connection with other circumstances, it certainly may be taken into consideration; but the jury must be satisfied from the whole that the vendor actually and not constructively consented to be bound for the truth of his representation. Should he have used expressions fairly importing a willingness to be thus bound, it would furnish a reason to infer that he had intentionally induced the vendee to treat on that basis; but a naked affirmation is not to be dealt with as a warranty, merely because the vendee had gratuitously relied on it; for not to have exacted a direct engagement, had he desired to buy on the vendor's judgment, must be accounted an instance of folly." McFarland v. Newman, 9 Watts 59, 60. Subsequently it was laid down, that when a thing is sold by sample, and without express warranty, the purchaser takes it at his own risk, unless it should prove to be an article different in kind; that all gradations in quality are at the hazard of the buyer. By the bill of parcels, and the sample, the sale was of sweet-scented Kentucky leaf tobacco; the article delivered was Kentucky leaf tobacco; it was perhaps not very sweet-scented; it certainly was inferior in quality to the sample. Yet according to the Pennsylvania rule, there was no breach of warranty. Fraley v. Bispham, 10 Barr 325.

Upon the question whether a general sale of merchandize implies a warranty of quality, many cases collected in 2 Kent's Com. 478, 9, note c, and 481, note c, 3d edi., are reviewed by Cowen, J., in. Hart v. Wright, 18 Wend. 269; and the differences between the civil law and the common law are remarked on by Walworth, Ch., in Waring v. Mason, 18 Wend. 432, and Wright v. Hart, Id. 452. In one of these cases the vendee recovered; the understanding of the parties being, that the cotton was sold by the samples exhibited by the broker of the vendors; in the other, it was considered that there was no warranty, either express or implied, according to the settled law of New York. It is conceded, that where the contract is executory, or in other words, to deliver an arti