#### *Howard & Ryckman *vs.*Hoey.

In contract for the sale and delivery of an article of merchandize at a *future day,*where there is no selection or setting apart at the time of *particular articles of the property,*so as to pass the property *in prcesmti*to the purchaser, *merchantable quality,*such as will at least bring the average market price, is always intended ; and if the property delivered be not of such quality, and notice of the defect be given by the vendor, in an action for the recovery of the stipulated price, will be reduced to a *quantum merurit.*

In *executory sales,*or more properly speaking, *agreement to make sales of indeterminate things,*the rule of *caveat venditor,*and not of *caveat emptor,*governs ¡ in such cases there is always a *warranty*implied, that the thing to be delivered shall at least be free from any remarkable defect. If the article delivered come short of a medium quality or goodness, it may be *returned*after the purchaser has had a reasonable time to inspect it; and it is sufficient entirely to defeat the sale, if there be notice to take it back, assigning the true cause.

This was action of *assumpsit,*to recover the price of a quantity of ale sold by tbe plaintiffs, brewers, residing at *Albany,*to the defendant, a dealer in ale, residing at *New- Orleans.*The contract was made in the city of New-York, in September or October, 1835. The ale was to be good and merchantable, such as the plaintiffs were in the habit of sending *south,*and was to be delivered on ship board in the city of New-York, at $6,37^ per barrel. There was no warranty against sourness. The cause was heard before referees. It was proved that 202 barrels of ale were forwarded by the plaintiffs in the months of November and December, 1835, and received by the defendant in New-Orleans ; that soon after its arrival, the ale was found to be sour, ropy, and *wholly unfit for use,*and that notice thereof was immediately given by letter to the plaintiff’s agent at New-York. No specific lot of ale was purchased by the defendant >; and that sent to him was *bretved*after the contract made between him and the plaintiffs. The referees' reported in favour of the plaintiffs for the full price of the 202 barrels, *350at the price stipulated in tlie contract. The defendant moved to set aside the report.

[ *351 ] **A. Taber,*for the defendant.

*S. Dutcher I. Harris,*for plaintiffs.

'Cowen, J.

*By the Court,*From the frequent allusion made by the plaintiffs’ main, and indeed I may almost say, only witness, it seems to have been thought that, in the absence of fraud, of which there was no direct proof, an express warranty of quality was necessary to lay a foundation for the defence ; and I am inclined to think the referees must have entertained this opinion, though that is not said directly, nor probably could it be, as the case comes here on the affidavit of the defendant’s counsel.

Whether it was so or not, the law is clearly otherwise. It is not necessary to deny, that, had the beer been already brewed and specifically sold, and the property passed *in prcesenti,*the transaction amounting to what is called an executed sale, an express warranty would have been necessary. I rather think it would, as the doctrine of warranty stands with us, notwithstanding the article might have been understood as being of the plaintiffs’ own manufacture. *Hart*v. *Wright,*17 *Wend.*267, 269. 18 *id.*449, *S. C. on error, and the cases there cited; and vid. Chanter v. Hopkins,*1 *Jurist,*251, *Halst. and Voorh. ed.*Though where it appears that the article sold is designed for a particular market or purpose, and so treated by both parties, as here, there may be great doubt whether a present sale would not raise a warranty, that the article should answer the end in view. The authorities to this point, are cited in the course of *Hart*v. *Wright;*and I shall not go over them. But in the course of that very case, and by all the cases I have seen, it stands conceded, that, where the contract is executory, or, in other words, to deliver an article not defined at the time, on a future day, whether the vendor have an article of the kind on hand, or it is after-wards to be procured or manufactured, the promise cannot be compelled to put up satisfied with an inferior commodity. The contract always carries an obligation that it shall be at least merchantable — at least of me- [ *352 ] dium quality or goodness. If ‘it come short of this, it may be returned, after the vendee has had a reasonable time to inspect it. 17 *Wend.*277, *and books there cited.*18 *id.*462, 3. And it is sufficient, entirely to defeat the sale, if there be notice to take it back, assigning the true causer *Fisher*v. *Samuda,*1 *Camp.*190. *Hayden*v. *Hayward, id.*180. *Holcomb*v. *Hewson,*2 *Camp.*391. 2 *Kent's Comm.*479, *3d ed. Per Woodworth, J. in Sweet*v. *Colgate,*20 *John.*204; and *vid. Per Lord Abinger, in Chanter*v. *Hopkins before cited. Holcom v. Hewson,*was a contract in general terms, by the defendant a publican, to take all his *352beer of the plaintiff. The latter furnished him with very bad beer from time to time, till his customers had nearly all left him ; in consequence of which, he was obliged to deal with another brewer. The obligation to furnish good beer, was treated as making a part of the contract, by Lord Ellenborough ; and the plaintiff was non-suited. *Fisher*v. Samuda, conceded the same principle. There the action was on an executory contract, to furnish beer fit for the Gibraltar market. Breach that stick beer was not furnished. The plaintiff failed only on the ground that he had kept the inferior article, without giving notice or returning it as he might have done, till after the ordinary season for marketing it was past. Beside, he had not kept it in a proper place. He was therefore holden to have accepted it, in fulfilment of jbhe contract to deliver, or rather to have waived all objection.

It is said in *Bacon's Abr. Tender.*(R), *pl.*2, “ It seems reasonable, that a tender of any sort of goods should, unless they are to be delivered according to some sample, be made in a middling kind of goods of the sort.” This subject is well considered by Mr. *Chipman,*in *his Treatise on Contr. p.*32, *et seq.*on principles that are universally understood, namely, that where there is a contract to deliver an article, e. g. a note for one hundred bushels of wheat, merchantable or marketable quality is always intended by the parties; such as would bring the average market price at least. *Per Nelson, J. in Gallagher*v. *Waring,*9 *Wendell,*28, *S. P.*Suitableness enters into every promise to deliver articles of manufacture. A man orders a garment ’’or a pair of shoes for himself; would any [ *353 ] one imagine that, because no express warranty of fitness was made, either could not be returned, or a recovery resisted, after notice to take it back, provided it failed in reasonably fitting the intended wearer ? With regard to performing or tendering a thing under executory contracts of this kind, Mr. *Chipman*very properly refers to what *Puthier*says of contracts for delivering an indeterminate thing.of a particular kind, where, as he says, every individual comprised in the specified class is *in, facúltate solutionis ;*but must be good, lawful, merchandizable, of suitable quality, good and sufficient in its kind, i. e. it should not have any remarkable defect. I use the words found in and illustrated by different parts of article 283, in *pt.*2, *ch.*3, § 1, *if Path, on Obl.*1 *Ev. Path.*167, *Loud. ed. of*1806. For as to this class of contracts, it may be said that the English law, and therefore our own, agrees with the continental or Roman law, the rule of which, in relation to all sales, both executed and executory is *caveat venditor,*not *caveat emptor. Wright*v. *Hart,*18 *Wend.*453. *Waring*v. *Mason, id.*432, 3. *per Walworth,*Ch. The common law will, I think, be found to have acted universally on the former rule in respect to executory sales, or more properly speaking, agreements to make sales of indeterminate things ; though I do not find any case expressly holding the distinction. In short, there is always a warranty or promise implied that the indeterminate *353thing to be delivered should, at least, not have any remarkable defect; though the rule of the common law is clearly otherwise in respect to what is properly denominated a sale. The statute of frauds extends to both classes-of contracts; but the reason of that has no application to the question of warranty.

In the case at bar, notice was presently addressed to Which ; but instead of inquiring into the matter, and attempting to set it right, the plaintiffs preferred to bring their action. They had a right to do so, but run the risk of being reduced to a *quantum meruit.*The defendant was not bound to return the beer. *King*v. Paddock, 18 *Johns. R.*141, 144. [ *354 ] It was the business of the plaintiffs, after notice, *to make such disposition of it as they should be advised, either fetching it back or reselling it at New-Orleans. Having sued, they are entitled to no more than it was reasonably worth if it was not fit for the New-Orleans market. Its worth, as I think the evidence before us shows, was little or nothing, by reason of its quality not coming up to the contract ; and this is too clear for us to feel satisfied with a report for the full value.

Report set aside ; costs to abide event.