Casco Manufacturing Co. v. Dixon ( 1849 )

Shaw, C. J.

This is an action on the case, to recover damages for the loss sustained on a parcel of, cotton, purchased of the defendants by the plaintiffs, in consequence of fraud in the bales being falsely packed. The sale is alleged to be a sale by sample. On the facts stated, it is questionable, whether the sale was a sale by sample, in the sense in which that term is commonly used. But it is not necessar to decide that question.

1. The first question to be considered is, whether the evidence of usage, offered by the defendants, was admissible. Evidence of a general usage, in regard to a branch of trade, is ordinarily admissible. All persons dealing in any branch of business are presumed to be acquainted with any usage affecting it, and are presumed to intend to deal in reference to it. Such a usage is evidence of what is reasonable ; that is, of what is suitably adapted to secure both parties in their rights.

The evidence of usage, in the present case, is derived from several witnesses, and though they state considerable diversity of practice, as to the mode of adjusting claims of this description for indemnity, yet they are agreed in one thing, namely: That in order to establish a claim for indemnity, it is necessary, 1. That notice should be given by the buyer to the seller, as early as circumstances will admit of after the discovery of the false packing; 2. That opportunity should be afforded to the seller, or his agents, to examine the alleged falsely packed bales, in bulk or by samples, by themselves or agents; and, 3. That the buyer should furnish the seller with authenticated surveys, certificates, or other legal proofs of the identity of the bags alleged to be falsely packed, with the marks and numbers thereon, and- especially the planter’s marks.

2. We are thus brought to examine the grounds of this action. The plaintiffs disclaim charging the sellers with any knowledge of the false packing; nor is there the slightest evidence of it. From the nature of the fraud, it could only be discoveredaon opening the bags for use. The action, therefore, can only be sustained on the ground of an implied warranty, arising out of the nature of the transaction, and of the commodity; the place and manner of its growth, production and packing for market; and its transportation from the place of growth to the place of manufacture. Such warranty is an implication of what the law will reasonably infer, as to the intent and understanding of parties buying and selling under the circumstances.

It is not easy, perhaps not practicable, to examine the bags through, at the time of sale. It may be reasonably implied, that the seller intends to sell, and the buyer to purchase, cotton like that which appears on the surface, or that which the sample, drawn in the usual way, exhibits; and if, instead of such cotton, there shall be found stones, or cotton seed, or very inferior cotton, the seller will make an allowance, either by substituting other cotton, by rescinding the contract, and taking back the article, or by paying the difference in money.

But as this is an implication arising out of the nature of the transaction, for the reasonable security of the buyer, it may, by the same reasonable implication, be limited and qualified by such conditions, as are reasonably necessary to the safety and security of the seller.

Cotton is raised in a warmer climate than ours, and in distant states, and packed and baled in the interior of the country, commonly by planters, by whom considerable quantities are raised. It is thence transported by land to a seaport, and thonce by ship to other ports, and sold by merchants who have bought in quantities to sell again; or, perhaps, more commonly, it is sold by consignees.

From this view of the circumstances, several conclusions are obvious: —

1. That the seller cannot know of the supposed defects until the bags have passed out of his hands, and gone to the manufacturer’s to be opened and used.

2. That if the bales are falsely packed, it is reasonable that the party buying should have a remedy against the seller; and it is not less reasonable that such seller, equally ignorant and innocent of the fraud, should have the like remedy, both against his vendor or consignor, and so through the whole series.

3. That such remedy can only be available to him, in case he has seasonable notice of the fraud, and is furnished with such authentic evidence, as shall enable him and his vendors and consignors to go back to the author of the fraud, that is to say, the planter by whom or by whose agents and servants, for whom he is responsible, the fraud was committed.

4. It is therefore a reasonable qualification and condition of the seller’s responsibility, and of the buyer’s right to indemnity, that the latter shall give the former such notice, and furnish him with such proofs and means of recourse; and this is required alike by public policy and the plain dictates of justice. The same reasonable considerations, which create the implied obligation, limit and qualify it; and, without a compliance with such reasonable considerations, the buyer is not entitled to the indemnity claimed. Plaintiffs nonsuit.