Hawkins v. Pemberton , 6 Rob. 42 ( 1868 )

Robertson, Ch. J.

The merchandise which is the subject of controversy in this case was, according to the testimony of a chemist (Pohli), examined on the trial, a chemical compound, either of sulphuric acid, with three metals (copper, iron and sine) and two earths (alumina and lime), in various proportions, or of salts composed of sulphuric acids and those metals and earths, in the form of sulphates. It appears to have been homogenous throughout, and was sold in its natural state, as manufactured, without any disguise or adulteration. It was known as Saltsberger vitriol, in Germany, where it was manufactured, and as mixed vitriol in this country, among chemists. It does not appear to have had any specific commercial designation here, except as being some kind of vitriol, a name which is common to all the salts formed by the union of sulphuric acid with copper, iron or zinc, which are only distinguished by the names of their color. That term, “vitriol,” being derived from the Latin (vitrum), expressive of its hardness and crystaline form, was first applied to the proto-sulphate of iron, from which “ oil of vitriol,” or sulphuric acid, was probably first obtained. (Ure’s Diet. Chem. and Min.) But strange to say, after being distinguished from Mué vitriol, or sulphate of copper, by the term green, it was still sometimes called copperas or sulphate of copper (Dana’s Dict. of Min.); and copperas was even appropriated to it in chemistry and mineralogy (Ure’s Dict. in Verb.), although it is also used to designate both the real sulphate of copper and sulphate of zinc. (Long’s Pen. Cycl. in Verb.) And as its principal use was in tanning, dyeing and other manufactures, or making Prussian blue or ink (Dana Dict. of Min.), and blue vitriol or sulphate of copper was similarly used, those who dealt in them were probably not very careful to distinguish the two kinds, except as to their quality. The article in question sold was actually of a blue color. One of the defendants (Pemberton), on his cross-examination, testified that there were different qualities and grades of blue vitriol, and that the amount of impurity constituted the difference in quality. Sulphate of copper, with a slight admixture of sulphate of iron, would commercially be called blue vitriol. One of the samples, of that sold to him he said he would call blue vitriol, with a mixture. This merchandise was termed in the invoice <{ blue vitriol, second quality,” and in the bill of lading, sulphate of copper.

The article sold was therefore vitriol generally of a blue color, although of inferior quality, which, with the confusion of designations for it or of its component elements, fully justified the auctioneer (as agent of the plaintiff), in speaking of it, with the casks open for examination, as blue vitriol. He certainly would have been equally wrong in calling it green, or even copperas, which is sometimes applied to both kinds of sulphates indiscriminately, as has been shown. It would have been very difficult, even on a warranty that it was blue vitriol, to have established, from the testimony before us, that it was not. Its grade was a different thing. It was not adulterated sulphate of copper, any more than it was either adulterated or improved sulphate of iron. Such adulteration could not change its name. (Holden agt. Dakin, 4 J. R. 421.) It was apparently a homogenous substance, composed of various elements into which it could be resolved, not a mere conglomerate. It did not in fact appear whether the chemists who analyzed it obtained the quantities of salts of which a metal was the basis separately in a normal condition, or whether they merely discovered such an amount of the different metals as, with the sulphuric acid contained in the composition, would form those qualities of those salts

There was, therefore, no artifice or disguise used to conceal the real character of the article sold from the defendants, nor any imposition practiced. The casks were open a sufficient time to permit its being handled and occularly inspected. One of the witnesses for the plaintiff (Webster) found it a mixed lot, some being of a greenish tinge, but uit looked like merchantable blue vitriol.”

There was evidence that went to show that the presence of iron could be detected by inspection, by the greenish shade it imparted.

There was no evidence in the case that the plaintiff knew .the article sold to be anything else than it appeared to be, or that it was not pure unmixed sulphate of copper; for I cannot regard the mere smallness of price to be such.

The defendants did not produce as a witness the person, if there was one, upon the faith of whose information they swore in their answer that the substance “was mixed and put up by the plaintiff, or some person to him known, for the purpose of cheating and defrauding the purchasers thereof.’’ If there was no such person, they are responsible to their consciences, at least, for having so sworn. Suffice it to say there was no evidence of fraud, and no request was made to submit the question, if there had been any, to the jury.

It is hardly necessary, at this late day, to discuss the question whether the vendor of an article, present and exposed to the examination of purchasers at the time of its sale, is liable for their applying a wrong name to it or giving a false description of it, or even doing so in a bill of parcels after-wards, where there is neither fraud nor warranty in the sale. Every case decided in this state, from Seixas agt. Woods (2 Caines, 48), where peachum was sold as brazeletto wood, and Sweet agt. Colgate (20 J. R. 196), where Icelp was sold for barilla, down to the latest, has sustained the doctrine of • caveat envptor in such a case. (See eases collected in 4 Abb. Dig. Sales, § 70.)

The affirmation made at the sale, in this case, that the article was 6 ‘ sound and in good order,” even if it were a warranty, was true. The only defect found was a supposed dampness, which was not proved to be unsoundness. And one witness (Webster) testified that the casks were “in good order.” The term “sound” applies to condition only, not quality or kind, and is opposed to defective, decaying or injured. The liability of such compound to effloresce, when exposed to the air, was not a defect, because it was a natural quality of the sulphate of iron, which was one of its elements. The article in question was evidently sound as inferior blue vitriol. If those had been the words used, there could have been no pretext for a defense; and yet the plaintiff was not bound to add the quality of the article, to prevent his being bound by a warranty that it was the -best. It was blue vitriol, even if it was of an inferior quality. Whether an assertion is a warranty, when all the facts are admitted, is a question of law for the court, not for the jury. Every positive assertion as to the qualities or character of an article, made in the course of a negotiation for the sale of it, except as to value or condition, capable of being discovered by inspection, intended and adopted to induce the buyer to purchase, is a warranty. If plainly so adopted, taken by itself, it must be shown to have been accompanied by some qualifying words or acts, showing it to be a mere expression of opinion, in order to prevent its being a warranty. The question of intent, when doubtful, in such cases, is the only one for the jury, upon all the facts. In the three cases cited by the defendants’ counsel (Cook agt. Mosely, 13 Wend. 277; Carley agt. Wilkins, 6 Barb. 557; Holman agt. Dord, 12 Barb. 336), the court held as matter of law that the character of the assertion showed it to be a warranty, and intended as such. .

There was no dispute about the facts in this case. The ■ article sold was called by the auctioneer u blue vitriol,” but evidently was so termed as being its commercial designation, or as being vitriol of a blue color (which it was). In either case there was no warranty of anything.

There having been no question to submit to the jury under the evidence, and no error committed in the admission of evidence complained of, judgment must be given for the plaintiff for the amount of the verdict, with the costs of the action and the hearing.