#### William T. Hawkins, plaintiff, *vs.*Clifford Pemberton, *et al.*defendants.

1. The vendor of an article exposed to the examination of the purchasers at the time of its sale,-is no't liable for innocently applying a wrong nameito it, or giving a false description of it, or even doing so in a bill of parcels afterwards, where there is neither fraud nor warranty in the sale.

2. The term “sound” applies to condition only, not quality or kind, and is opposed to *defective, decaying*or *injured.*

3. Upon a sale, at auction, of merchandise stated to be “blue vitriol, sound and in good order,” contained- in casks open for examination at the time, and freely examined by those present, the vendor is not bound to state, further, the actual *quality*of the article, in order to avoid being bound by a warranty that it is the best,

4. Whether an assertion is a warranty, when all the facts are admitted, is a question of law for the court, not for the jury.

5. 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 its condition, when capable of being discovered by inspection,) intended and adapted to induce the buyer to purchase, is a warranty.

6. If plainly so adapted, when taken by itself, it must be shown to have been accompanied by some qualifying words or acts, manifesting 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.

7. Where an article exposed to view, and sold at public auction, was called, by ‘the auctioneer, “ *Hue vitriol,"*but evidently was so termed as being its commei-cial designation, or as being vitriol of a blue color (which it was;) *Seldt*that in either case there was no warranty of any thing.

(Before Robertson, Ch. J., and Barbour and Garvin, JJ.)

Heard January 6, 1868;

decided April, 1868.

The plaintiff on the 16th January, a. d. 1867, sold at public auction, through Messrs. Burdett, Jones & Co. 25 casks of what is chemically known as sulphate of copper and commonly known as blue vitriol; 23 casks were struck down to the defendants at eight cents per pound, amounting to $982.24. On the day following, the defendants refused to accept or pay for the article so purchased by them, on the ground that it was not blue vitriol as represented. And on January 22d, it was by order of the plaintiff, resold *43by the same auctioneers for account of the defendants, and brought from four and a half to five and a quarter cents per pound, amounting to the .sum of $545.63. This action was brought to recover the difference, viz. $435.61. These goods were a part of a consignment, including two other lots received by the plaintiff from correspondents in Germany, with whom he transacted business. The bill of lading describes the article as “ sulphate of copper,” and the invoice describes it as “ blue vitriol, second quality.” It was never examined by the plaintiff previous to the day of sale, but the custom house entry was passed directly to the auctioneers, with instructions to sell the goods at auction. The actual price paid by the plaintiff for the 25 casks, was $450 in currency in bond, also $200 in gold for duties, and the freight in addition. At the auction sale, the auctioneer represented the goods to be “blue vitriol, sound and in good order,” a large number of the.casks were opened for examination and were freely examined by parties attending the sale, and among them the defendants. At the sale, the two casks first struck off, were sold at 8|- cents per pound. The plaintiff had previously, through the same auctioneers, sold two other lots of the same goods included in the same invoice. Between the 16th and 22d January, blue vitriol had fallen in value. The market value of pure blue vitriol of best quality was, at the time of the sale, 9J cents per pound. The alleged impurity in the article sold to the defendant, consisted in there being a large admixture of sulphate of iron, and by chemical analysis made subsequent to the commencement of the action, it appeared that there was from 17 to 25 per cent of sulphate of copper, and from 65 to 70 per cent of sulphate of iron, and that the sulphate of copper was predominant in point of value.

The defendants were drug brokers, engaged in the business for many years, and possessed a knowledge of this particular article. The defendant Pemberton testified that in purchasing the article, he “ was not fully satisfied whether it was first quality or not.” The defendant Webster, testi*44fied, that before the sale he examined the casks; that it varied in color, some of it of a greenish tinge ; that it was a lot of goods; that he did not regard any of it as first quality blue vitriol; that it was bad made blue vitriol; and that he suspected there might have been sulphate of iron in it, as the cause of this greenish tinge.

After the evidence was all in, the judge directed the jury to find a verdict for the plaintiff, for the amount claimed, subject to the opinion of the court at general term.

The defendants requested the judge to submit these questions to the jury:

*First.*Whether or not the plaintiff, when he represented this article to be “blue vitriol, sound and in good order,” intended to warrant it to'be so.

*Second.*Whether or not the plaintiff, when he made this representation, knew that it was not true.

*Third.*To submit the whole case to the jury upon all the questions in it.

The court refused each of such requests, and the defendants excepted. The jury found a verdict for the plaintiff for $461.04, subject to the opinion of the court at general term.

*It. S.*Emmet, for the plaintiff.

I. The facts of this case upon the evidence are undisputed; there is no conflict of testimony. The sale at auction of the blue vitriol was made in the ordinary way, both vendor and purchaser acting in good faith.

1. The representation of the auctioneer that the article was sound and in good order, if it amounted to a warranty, was only a warranty of its condition, not of its quality or grade. The condition of the goods is not impeached—it is not pretended but that they were in good saleable condition.

2. The vendor had no superior knowledge of the condi- ' tion, quality or grade of the goods than the purchaser. The vendor had every reason to believe that they were of fair merchantable quality.

*45
      *(a.)*They were so represented to him in the bill of lading and the invoice.

(5.) They were purchased by him at a fair merchantable price. •

*(c.)*Similar goods consigned to him by the same invoice had been previously sold by him in the same way, and accepted by the purchasers, without complaint.

3. The condition, quality and grade of the article were patent; it was fully exposed for examination before the sale, and appears to have been fully examined by the purchasers and other bidders.

4. The purchasers knew that they were buying blue vitriol of an inferior grade and quality.

*(a.)*Both defendants so testify.

(&.) They paid an inferior price—eight cents per pound; the market value of pure blue vitriol was 9J cents per pound.

*(a.)*They were drug brokers, engaged in the business for many years, and both testify as to their knowledge of this particular article.

5. The article was merchantable as blue vitriol; the previous and subsequent sales proved it to be so. It was so in color and general appearance, and of its compounds sulphate of copper was of the greatest value.

II. Whema party, after seeing and examining goods, purchases them at auction or private sale, without warranty and without fraud or misrepresentation on the part of the seller, he takes them wholly at his own risk, and cannot either rescind the purchase or recover damages because the goods proved to be of an inferior quality, or even of a wholly different character from what they were mutually supposed to be at the time of the purchase. *(Seixas v. Woods,*2 *Caines,*48. *Swett v. Colgate,*20 *John.*196. *Welsh,*v. *Carter,*1 *Wend.*185. *Carley*v. *Wilkins,*6 *Barb.*558. *Holden*v. *Dakin,*4 *John.*421.)

I. The reason of this doctrine of *caveat emptor,*applies more forcibly to auction than private sales, because the publicity of the sale is a guaranty against fraud in the vendor.

*462. The vendors knowledge that the article is of an inferior quality, and his withholding that fact, are no grounds for the purchaser breaking the bargain. *(Swett*v. *Colgate, ubi supra.)*

3. Earning an article by which to sell it is not a warranty. It is a mere description of the article. *(Seixas*v. *Woods. Swett*v. *Colgate. Welsh*v. *Carter, ubi sup.)*

*4.*Even if the article be made expressly for the purpose of deception, it would not change the rights of a seller, ignorant of the deception. *(Welsh*v. *Carter,*1 *Wend.*185.)

5. The adulteration of a chemical or commercial article does not change its name—as for example. adulterated liquors, or coffee or sugar. Eor does such adulteration affect the condition of the article; it may affect its quality. The article may be of inferior quality but in excellent condition. (Ho*lden*v. *Dakin, 4 John.*421.)

6. The burden of proving fraud is upon the vendee: *(Welsh*v. *Carter,*1 *Wend.*185.)

7. The price paid implies no warranty. *(Holden*v. *Dakin, 4 John.*421.)

TTT- The bill of lading and invoice were properly admitted in evidence; they were not offered or admitted as a representation of the quality or condition of the article, but as evidence of the vendor’s *bonafides,*and as such were competent. *(Swett*v. *Colgate, ubi supra.)*

The court properly directed a verdict for the plaintiff. There was no question of fact for the jury. Although the answer charges fraud, this defense was abandoned; on the trial not a particle of testimony as to fraud was offered. The only question in the case was whether on the undisputed facts, the plaintiff was entitled in law to a recovery. Such appears to have been the opinion of the defendant’s counsel on his motion to dismiss the complaint, and such was the view properly taken of the case by the court. *(Seixas*v. Woods, 2 *Caines,*48. *Swett*v. *Colgate,*20 *John.*196.)

*47
      *Ira I). Warren,*for the defendant. ■

I. The court erred in not submitting the question to the jury, whether or not, when the plaintiffs represented this to be twenty-five casks of blue vitriol, sound and in good order, he intended to warrant it. Ho particular form of words is essential to constitute a warranty of quality. Any assertion of the vendor, if relied upon by the vendee and understood by both parties as an absolute assertion, amounts to a warranty, and should be enforced as such. *(Sweet*v. *Bradley,*24 *Barb.*549. *Roberts*v. *Morgan,*2 *Cowen,*438. *Wilbur*v. *Cartright,*44 *Barb.*536.)

The question whether the words used were understood and intended by the parties as a warranty, is a question of fact for the jury, and should be left to them to determine. *(Duffee*v. *Mason,*8 *Cowen,*25. *Whitney*v. *Sutton,*10 *Wend.*412. *Cook*v. *Moseley,*13 *id.*277. *Styker*v. *Bergen,*15 *id.*490. *Rogers*v. *Ackerman,*22 *Barb.*134. *Blakeman*v. *Mackay,*1 *Hilt.*266.)

II. The words used did amount in law to a warranty, and had the question been left to the jury and they had found' it to be warranty, their finding would have been sustained. In *Cook*v. *Moseley,*(13 *Wend.*277,) the seller said : *“*The mare is not lame, and I should not be afraid to warrant her.” Held a warranty. In *Carley*v. *Wilkins,*(6 *Barb.*558,) the seller said: “ The flour is superfine, and worth a shilling a barrel more than common.” Held a warranty of quality. In *Holman*v. *Dord,*(12 *Barb.*336,) the-seller said: “ They are French goods, new and in good order.” Held a warranty. In *Blakeman*v. *Mackey,*(1 *Hilt.*266,) the seller said of oysters: “ They are good, and .in good order.” Held a warranty. A general warranty of *soundness*covers every defect, unless they are such as could be discerned by an ordinary observer without *particular skill. (Birdseye*v. *Frost,*34 *Barb.*367.) The parties in this case represented the vitriol to be “ *sound and in good order”*while it. had a latent defect which destroys it on being exposed to the air for twelve hours, and which no human skill can detect without a chemical analysis until it has been so exposed to the air. *48It was sold at auction, with no opportunity for a chemical analysis, and he now seeks to exonerate himself from liability in any way. If that can be done, it would be so repugnant to the feeblest sense of common justice as to require all former rules of law to be at once overturned and a rule established more consonant with the common sense of the commercial world. But we submit that the doctrine claimed by the plaintiffs cannot be sustained on principle nor authority.

HI. We submit that the court erred in not directing a verdict for the defendants, or at least in not submitting the question of fraud to the jury—for fraud is to be made out from circumstances. There is evidence that the plaintiff knew the character of the thing he sold. The casks were only opened and exposed to the atmosphere about an hour before the sale. He bought it at three and a half cents per pound, currency, while merchantable blue vitriol at the same time was worth eight and a half to nine cents per pound. This fact alone raises a presumption that he knew the character of the article. The Court of Appeals say: “ If the price paid is entirely below that of a sound article, a presumption would arise that the purchaser was apprised of the defect.” *(Hoe*v. *Sanborn,*21 *N. Y. Rep.*566.) Therefore we say upon those two facts we were entitled to go to the jury upon the question whether or not the plaintiff knew the character of the article he was selling. It was not necessary, however, to show that the plaintiff knew its character, to establish fraud. “ One who, without knowledge of its truth or falsity, makes a material representation, is guilty of fraud as much as if he knew it to be untrue, and that even if the fraud is committed by the plaintiff’s agent.” *(Bennett*v. *Judson, 21 N. Y. Rep.*238.) Applying this rule to the case at bar, the defendant was entitled to a verdict. There is no dispute about the fact that the representation that the vitriol was “ sound and in good order” was false. It was not “sound and in good order” when it contained a latent defect that would *49develope itself by twelve hours exposure to the atmosphere so as to render it worthless. . We say, therefore, that the defendants were entitled to a verdict on this ground.

IV. A clear distinction is to be found between this and all the cases cited by the plaintiff. The court will observe that in none of those cases was a word said about the soundness or condition of the article sold. It was simply selling an article which had no latent defects about it, but which was just what it appeared to be, viz. an inferior stone for a *lezoar*stone, *help*for barilla, &c. The court simply decided that there was no implied warranty from the name under which it was sold. We apprehend the decision would have been different in those cases if the seller had said at an auction sale, here is a quantity of barilla, “ *sound and in good order”*and it had proved to have been three quarters *help*and one quarter *barrilla,*so prepared that no human skill could detect it by examination, or in any manner except by chemical analysis, dr by exposure to the atmosphere for several hours, when it would work its own destruction. Therefore, we say that that class of cases has no application to the facts of this case in any aspect of it. In those cases had there been any evidence, however feeble, to go to the jury, that the defendant knew that his statement in regard to the article he was selling was false, the court would have submitted the question of fraud to the. jury.

By the Court, Robertson, Ch. J.

The merchandise, which is the subject of controversy in this case was, according to the testimony of a chemist, (Pohle,) examined on the trial, a chemical compound, either of sulphuric acid with three metals, (copper, iron and zinc,) and two earths, (alumina and lime,) in various proportions, or of salts composed of sulphuric acid and those metals and earths in the form of sulphates. It appears to have been homogeneous throughout, and was sold in its natural state as manufactured, without any disguise or adulteration. It was known as *saltzberger*vitriol in Germany, where it was manufactured, *50and as *mixed vitriol*in this country, among chemists. It does not appear to have had any'specific commercial designation here, except as 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, derived from the Latin (vitrum) and expressive of the hardness and crystalline form, of the substance itself, was first applied to the proto-sulphate of iron, from which “ oil of vitriol ” or *sulphuric aeid*was probably first obtained. *(lire’s Diet. Ohem. Min.)*But, strange to say, although distinguished from *blue*vitriol or sulphate of copper by the" patent epithet *green,*it was still sometimes called *copperas;*which is sulphate of copper. *(Dana Diet. Min.)*That word, *(copperas,)*was even appropriated to it in chemistry and mineralogy, ( *Ures Diet, in verb,)*although also used to designate both the real sulphate of copper and the sulphate of zinc. *(Lang’s Pen. Oycl. in verb.)*As its principal use was in tanning, dyeing and other manufactures, or making "Prussian blue or ink, *(Dana Diet, of Min.)*and blue vitriol, or sulphate of copper, was similarly used, probably those who dealt in them were not very careful to distinguish the two kinds, (except as to their quality,) in reference to their use. 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 would be called *blue vitriol with a mixture.*This merchandise was termed in the invoice sent to the importer, “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, considering the confusion of designations for it or of its component elements, fully justified the auctioneer (as agent of the plaintiff) in *51speaking 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; nor would such adulteration have changed its name. *(Holden*v. *Dakin,*4 *John.*421.) It was apparently a homogeneous substance, composed of various elements into which it could be resolved, not a mere conglmoroate. It does not, in fact, appear whether the chemists who analyzed it, obtained the salts of which a metal was the basis separately in a normal condition, or whether they merely discovered therein, such an amount of the different metals as, (with the quantity of, sulphuric acid contained in the composition) those salts could be formed from. There was 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 ocularly inspected. One of the witnesses for the plaintiff (Webster) found it a mixed lot, "some being of a greenish tinge, but *“ looking like merchantable blue vitriol.”*Other evidence also showed that the presence of iron could be detected by inspection, by the greenish shade it imparted; nothing before us shows that the plaintiff knew the article sold, to be any thing else than it appeared to be, or not to be pure unmixed sulphate of copper, for I cannot regard the mere smallness of price as such evidence. The defendant's 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 at least to their own con*52sciences 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 d'ay, 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 applying a wrong name to it, or giving a false description of it, or even doing so in a bill of parcels afterwards, when there is neither fraud nor warranty in the sale. Every ease decided in this state, from *Seixas*v. *Woods,*(2 *Caines,*48,) where peachum was sold as *braziletto*wood, and *Swett*v. *Colgate,*(20 *John.*196,) where *help*was sold for *barilla,*down to the latest, has sustained the doctrine of *caveat emptor*in such a case. *(See cases collected in*4 *Abb. Dig. Sales,*§ 70.)

The affirmation made at the sale in this case, that the article was “ sound and in good order,” even if it were a warranty, was true. The only defect found was a supposed dampness, which was not proyed 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 efflorescence, 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 adapted to induce the buyer to pur*53chase, is a warranty. If plainly so adapted, taken by itself, it must be shown to have been accompanied by some qualifying words or acts manifesting 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 defendant’s counsel, *(Cook*v. *Moseley,*13 *Wend.*277; *Carley*v. *Wilkins,*6 *Barb.*557; *Holman*v. *Dord,*12 *id.*336,) the court held as a 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 “ *blue*vitriolbut 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 any thing.

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.