Hyatt v. Boyle

B sold H a quantity of tobacco, and delivered a bill of parcels, which de" scribed it as follows :—“ 24 kegs of tobacco, branded (Parkin) at four months, weighing, &e., at 134 cents. B had received this tobacco for sale on commission—sold it, and guarantied the sale to his principal. The purchase was made at the plaintiff’s counting room, where the tobacco was. ^Xt was branded, as stated in the bill of parcels, and not examined by either (party prior to, or at the time of the sale. The price agreed for was a full price for a merchantable commodity;" and the brand in question was a favorite' one, always considered remarkably fine, though it fluctuated in price from 8 to 134 cents per pound. ^ The tobacco in part proved unsound, and none of it had been re-sold; the purchaser proposed to return that which was unmerchantable, and pay for the residue. ■ In an action for the price) Held, that there was no implied warranty of quality in this contract; that in relation to the quality of the tobacco, nothing was stipulated; and that the terms on the part of the vendor were complied with by the delivery of the tobacco, branded in conformity with the bill of parcels. It is a general principle of the common law, that in sales of personal property, the seller is not answerable for any defects in the quality or condition of the article sold, without there is an express warranty or fraud. The exception to this rule, that where there is no opportunity of inspection, the seller impliedly warrants the quality of the commodity sold, only applies to those cases, 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. Where there is a warranty of quality in the sale of a chattel, and an offer to return the goods purchased in due time, if the warranty is violated, the purchaser, in an action against him for the price, may defeat the action, whether the vendor know of the defect of quality or not; for the scienter in such ease is immaterial. The case of Osgood vs. Lewis, 2 Harris fy Gill, 495, explained, and Thornton Winn, 12 'Wheat, 183, denied.

Appeal from Baltimore County Court. This was an action of Assumpsit commenced by the appellee, against the appellant and one Seth Hyatt, merchants, trading at Washington, under the firm of Seth Hyatt Co. on the 24th of November, 1827. The appellant only, was taken upon the capias. Issue was joined upon the plea of non-assumpsit. 1. At the trial the plaintiff, Boyle proved that he sold and delivered to the defendants, a quantity of tobacco, on the 10th of December, 1825, and read in evidence to the jury, the following bill of parcels and letter: “ Baltimore, 10th of December, 1825. Messrs. Seth Hyatt Co.--Bought of Hugh Boyle, 24 kegs tobacco, brand- ed (Parkin) at 4 months -.-—the whole weighing nett 3543 pounds, at 13| cents: $478.31. Cash paid drayage, 50 cts. $478.81.” “Dear Sir.—Above you have invoice and bill of lading for 24 kegs manufactured tobacco, which I hope will arrive safe, and please. I have drawn on you for the balance due, which please honor, and oblige your obedient servant, Hugh Boyle.” And also read in evidence, by consent, the following statement:—“ Thomas Higinbothom declares, that he sold the tobacco mentioned in the original bill of parcels, to one of the partners of the house of S. Hyatt Co., who came to the counting house of the plaintiff, to purchase the same. That this tobacco was in kegs, and had been consigned to the said Boyle, who sold the same on commission, and guarantied the said sale to his principal; and that tobacco of the same brand from Richmond, had been frequently sold by plaintiff before, and since; and that no complaint had been made of its quality, or condition. That the tobacco was sent from Boyle’s counting room, to the Washington packet. That the tobacco sold was Parkin’s crooked brand, as stated in the bill of parcels, and was not examined by either party, prior to, or at the time of sale.” The defendants then proved, that upon the receipt of the tobacco by them, it was placed in a dry warehouse, and when received the kegs appeared to be in good order. That defendants are merchants in Washington, and bought the article to sell again, and that the plaintiff knew this fact; and also proved, that tobacco branded, Parkin’s crooked brand, is a merchantable commodity, well known in the market among merchants, and that it varies in price, from 8 to 13£ cents p'er pound, according to the quality, and that the price agreed for in this case was a full price for first quality of Parkin’s crooked brand. Defendants further proved, that no demand occurred for said tobacco after they received it, for about sixty days after the receipt, when one keg of it was sold to Samuel Stetinius, who opened it in the middle, as is the custom to open such an article. That it was then found to be unsound, rotten and unmerchantable, and was returned to said defendants. That an inspection of two other kegs immediately took place, and both proved equally unsound. That the brand of Parkin’s crooked brand was a favorite brand, and always considered remarkably fine. That upon Boyle’s drawing on defendant for the amount, they declined paying, and assigned as a reason that the tobacco was injured. That about six months afterwards, the plaintiff came to Washington, and another keg was openedi n his presence which proved to be tolerably good; immediately on which, the defendants offered to have all the rest opened, and to pay for all that were merchantable, and to return the rest, which the plaintiff refused. That the tobacco has always since been on hand, and has never been sold, or offered for sale by the defendants, but has been perfectly useless to them; that except the four kegs above mentioned, none other has been examined. The defendants also read the following letter from the plaintiff to them. “Baltimore, February VUh, 1826. Messrs. Seth Hyatt 4* Co. Gentlemen,—Your respects of the 16th is this moment received,—I am surprised at its contents. I need not say, that 1 considered I was doing you a favor, by selling you that lot of tobacco at the time I did, but it was evident, as I had the same offer from another house, for the whole lot, and 1 gave you the preference, believing as I then did, it was your interest to have it. I have sold more than 1000 kegs of that brand, and this is the first, 1 have ever heard complained of. Neither could you suppose for a moment, that I could now, after more than sixty days from the time it was purchased, and forty days after the sales were made out, and the accounts settled with the owner, have any thing to do with it. I would be exceedingly sorry that the purchase should turn out a bad one. I would at all times rather give you a good bargain than a bad one, but I cannot be accountable for this. Respectfully, &c. Hugh Boyle.” And the defendant also proved, by a witness who did not read the letter of the 16th February, 1826, but who heard Seth Hyatt, while writing it, say, it contained a proposal to Boyle, to take back the tobacco; and on cross examination of Higginbotham, lie stated, he did not believe there Was an oiler to return, but the lapse of time had been so great, he did not recollect. The plaintiff then prayed the court to instruct the jury, that he was entitled to recover the whole amount of the purchase money. First, because from the evidence in the cause, there was no warranty express, or implied, and the defendants, under the circumstances, took the tobacco at their risk. Secondly, that there was no sufficient evidence to show that the defendants had ever offered to return the tobacco, and that if no offer was made to return the tobacco, the plaintiff is entitled to recover. Thirdly, that there being no evidence to show fraud on-the part of the plaintiff, and no evidence to show that the plaintiff had agreed to take back the property after the sale, the defence of warranty, even if there had been an implied one, cannot be set up in this action, it being an action to recover the price agreed upon for the goods. Upon this prayer the court (Hanson, A. J.,) said, that although there might be, in the opinion of the jury, evidence of an offer on the part of the defendants, to return the tobacco within a reasonable time, yet as there was no warranty constituted by the contract proved between the parties, the plaintiff is entitled to recover,—and also, even if the contract had contained a warranty, it was no defence, in an action to recover the value of the goods sold, unless the defendants tendered a return of them within a reasonable time, and the plaintiff knew of the unsoundness of the article—and directed the jury that the plaintiff was entitled to recover the full amount of the purchase money. The defendant excepted. 1. The plaintiff and defendants having given the evidence as stated in the first bill of exceptions, which it is agreed shall be part of this, the defendant prayed the opinion of the court to the jury, that in this case, there is evidence of a warranty, that the tobacco sold was merchantable, and that if the jury believe it was not merchantable at the time of its sale, the plaintiff is not entitled to recover for that part which was not merchantable at the time of sale. 2. If the jury believe, that the tobacco sold, at the time of sale was unmerchantable and unsound, and unfit for sale, and that the defendant at the time of sale, did not examine it, and within a reasonable time offered to return the whole of it, or such part as was unsound and unmerchantable, and the plaintiff refused to receive the same; then the plaintiff is not entitled to recover for the unsound and unmerchantable tobacco, which was so at the time of sale. Both of which opinions the court refused to give. The defendant excepted, and the verdict and judgment being against him, he prosecuted the present appeal.