Citation Numbers: 2 Hill & Den. 288
Judges: Cowen
Filed Date: 1/15/1842
Status: Precedential
Modified Date: 1/12/2023
Regarding this case as one of simple warranty, without fraud, the measure of damages adopted at the trial was wrong. It should have been the difference between the value of the sixty barrels, at the time of the sale considered as good superfine fine flour, and the value of the inferior article sold. The purchaser is entitled to have the article made equal in quality to what the warranty assumed it to be. Such at least is the general rule in all actions upon a warranty of quality, though circumstances may exist which call for more. (Clare v. Maynard, 7 Carr, & Payne, 741; 6 Adol. & Ellis, 519, S. C. Ellis v. Chinnock, 7 Carr, & Payne, 169. Chesterman v. Lamb, 2 Adol. & Ellis, 129. McKenzie v. Hancock, Ry. & Mood. N. P. Rep. 436. West v. Anderson, 9 Conn. Rep. 107, 111.)
The circuit judge probably went upon the ground of rescission. Where, however, there is a warranty on a sale of goods without fraud, arid no stipulation in the contract that the goods may be returned, the vendee has no right to annul the contract without the consent of the vendor. The only remedy is by an action on the warranty. Such, after some fluctuation, appears to be the doctrine of Westminster Hall. {Street v. Blay, 2 Barn, dp Adol. 456.) In this case Lord Tenterden examined the question both on the nature of the contract, and the weight of authority; and on going through with his argument, it is difficult, and I think impossible to resist the conclusion to which he came. Of course he distinguishes between a sale, and an executory contract, in which latter case the goods may generally be returned as soon as they are found not to satisfy the contract, if the purchaser have done nothing in the meantime beyond what- is necessary to give them a fair trial. That case was followed by the court of exchequer in Gompertz v. Dent, (2 Crompt. dp Mees. 207 ;) and substantially by the K. B., in Patteshall v. Tranter, (3 Adol. dp Ellis, 103; 4 Nev. dp Mann. 649, S. C. See also Freeman v. Baker, 5 Carr. Payne, 475.) The question was also very ably examined by Washington, J. in Thornton v.
On a former argument of this cause before the Chief Justice and myself, in the absence of Mr. Justice Bronson, I supposed, and so expressed myself,-that the circuit judge had a right to assume, on the whole evidence, that a fraud had been established; and that nothing had transpired on the part of the plaintiffs, by way of delay or otherwise, which impaired their right to disavow the contract. The Chief Justice differed with me in" these two respects, which led to a re-argument before a full bench. He held, first, th«t the question of fraud, not explicitly appearing to have been raised at the trial, the cause should go down upon that point; and secondly, he doubted whether, even if the point had been made, and fraud found by the jury, the plaintiffs could legally rescind the sale in part—and he mentioned the following books to the latter point: 5 Bast, 449; 2 Younge & Jerv. 284 ; Long on Sales, 359.
With deference, therefore, I still think that, in this view of the case, the plaintiffs were entitled to recover the consideration money paid for the several barrels which proved defective, with the interest, as allowed at the trial. I concede that if the plaintiffs shall appear, on a future trial, to have dealt in the flour with their eyes entirely open to the
On the other point, upon farther examination, I agree with the Chief Justice that the question of fraud should, at least, have been mentioned at the circuit; and if left in any sort of doubt, as perhaps it was, on the evidence, should have been submitted to the jury. Fraud was essential to warrant the plaintiff in resorting to the count for money had and received ; and non con-stat but the measure of damages may have been adopted by the judge in respect to a breach of warranty only. In such a case, the title actually vesting in the vendee, and the property being delivered, I am not prepared to say, especially after the delay which here intervened, that the warrantor is at all events not entitled to a greater deduction from the purchase money paid, than the price of the deteriorated article at auction.
Nelson, Ch. J. was of the same opinion expressed by him on the former argument, viz. that though fraud in the sale should be shewn, the plaintiffs could not'rescind in part, and not having attempted to rescind in toto, were confined to their remedy upon the warranty; and of the like opinion was also Mr. Justice Bbonson. In other respects, they concurred in the views expressed by Mr. Justice Cowen.
New trial granted.
See also per Morton, J. in Perley v. Balch, (23 Pick. 283, 286;) Conner v. Henderson, (15 Mass. R. 319;) and Coolidge v. Brigham, (1 Metcalf, 547 550 ;) Junkins v. Simpson, (2 Shepl. R. 364.)