Phenix gazette. [volume] (Alexandria [D.C.]) 1825-1833, 1825-12-15
IMPORTANT TO MERCHANTS.

PrrrnLEwIs. Ward.
This was an action on the case to re.
cover damages on contract Of sale
made by the Defendant to the Plain.
tiffs, Of quantity of sperm Oil, which
the Plaintiffs purchased as Winter
Strained Oil, but which, they allege,
pioved to be Summer strained. The
declaration sets forth, that the Defen.
dant warranted the oil to be Winter
strained; and to prove this allegation,
the Plaintiffs offered in evidence Bill
of Parcels, as follows:
"Messrs. Osgood & Co. .
Bought Of Peter Lewis
lis Casks of Winter Prest Sperm. Oil -
The Court Judge notwithstanding
decided, that this Bill Of Parcels was
not Of itself warranty that the article
was Winter Strained Oil, but that up
on the present declaration, it was ne
cessary 10 prove that the Defendant
sold the Oil for Winter Strained, kno,o,
ing it not to be such.-Judge Hanson,
in delivering the opinion Of the Court,
declared the preference they were dis
posed TO accord 10 the civil law, and to
consider an affirm alton equivalent 10 a
warranty, but that, however desirable
it was that the law shall be what it
ought to be; and that, what il ought to
be was, in general, the best evidence of
what II was, yet it was not the province
Of the Court to make it so. 1t was
their duty TO expound the law, to pro-
nouuce ii what they found it; and after
research into the British authorities,
the Court had determined to rely upon
the opinion Of Chancellor Kent, of New
York, (than whom there is no justicia-
ry more enlightened, backed too by
Judge Thompson, as the best evidence
of what our law is, (and it is the com
mon law that had been presented to
the Court in argument, or which they
had been able to find upon this subject.
The facts in the case in New-York be-
ing in the opinion of the Court the
same; and the point discussed and adj
Judged, precisely the one at bar, the
Court believed itself bound to be guild
ed by it, although if the question was
res integra, in the common law, they
would, in the language of Chancellor
Kent, have been overcome BY the rea-
soning OF the Civilians. Here follows
the opinion Of Chancellor Kent, then a
Judge of The Supreme Common Law
Court Of New-York; that of Judge
Thompson will also be found in the
Gains Reports, by which it was deter
mined that, I'm an action ON the case
for selling one article for another there
must be either warranty or fraud-a
sound price does not imply warranty
OF soundness. The description in
bill of Parcels is no warranty.
KENr,J. This is a clear case for the
defendant, lfupon sale there be nei-
ther warranty nor deceit, the purcha-
ser purchases at his peril. This seems
to have been the ancient, and the uni
form language Of the English law, and
the only writer of authority, that calls
this doctrine in question, is professor
Woodeson, in his Vinerian Lectures,
and he does not cite any judicial deci-
slons as the basis of his opinion. In
the case of Chandelier Lupus, Zero.
JAG. 4. it was determined in the exche-
quer, by all the Judges except one, that
for selling jewel, whicn was affirmed
to be a bezoar stone, when it was not,
TO action lay, unless the defendant
knew 1t was not bezoar stone, or had
warranted it to be one. This appears
to me to be case in point, and decisive
And i'll the case Of Parkinson D. Lee, 2
East, Sl4, it was decided, that fair
merchandise price did not raise an I'M
piled warranty; that if there be no war
RAINY, and the seller sell the thing, such
AS he believes it to be, without fraud,
he will not be liable for latent defect.
These decisions are two centuries a.
part, and the intermediate cases are TO
the same effect. Co. Lit. lo2 Gro.
JAG. 1877. Sid, lac Yelv, 81. Id.
Raym. 1921. per Holt Oh. ]. Doug
20. Aleyn, 81. cited 2 East, 4es notis
BY the civil law, says Lord Coke, every
man is bound 10 warrant the thing that
he selleth, albeit there be no express
warranty: but the common law bindeth
him not, unless there be warranty in
deed, or law. So Fizherbert, IN B.
ga { } says, that if man sell wine that
is corrupted, or horse that is diseas-
ed, and there be no warranty, it is al
the buyers peril; and his eyes and his
taste ought to be his Judges in that
case.
In the case cited from 2 East, the
Judges were unanimous that the rule
applied 10 The sales of all kinds ofcom-
modities. That without warranty by
the seller, or fraud on his part, the buy
err must stand to all losses arising from
latent defects, and that there is no in
stance in the English law of a contrary
rule being laid down. The civil law,
and the law of those countries which
have adopted the civil as their COM
mon law IL n, n 40 ~ ,rorouc tou,,,ic t,a