Moore v. McKinlay & Garrioch

Murray, C. J., delivered the opinion of the Court. Heydenfeldt, J., concurred.

This was an action in the Court below, to recover the amount paid by the plaintiff to the defendants for the purchase of an invoice of garden seeds.

It is in evidence, that after the arrival of the vessel, the plaintiffs were requested to open and inspect the seeds, but declined to do so, and paid for them. They were afterwards tested, and found to be almost wholly worthless. In order to maintain this action, the plaintiffs must show either an express or implied warranty. The sale note is as follows: “We have this day sold you two shipments of seeds for arrival,” &c

The plaintiff maintains, that the word “ seeds” thus used, amounts to an express warranty; that it has an express signification, importing an [473]article which will germinate or grow, and that it would be error to apply this term to any seeds not possessing- these properties. And second, that if not an express warranty, the law will imply a warranty; or, in other words, raise the presumption, that the article sold is merchantable, and fit for the use for which it was sold.

At common law, the role caveat emptor applied to all sales of personal property, except where the vendor gave an express warranty, which is said to be such recommendations or affirmations, at the time of the sale, as are supposed to have induced the purchase. To constitute a warranty, no precise words are necessary; it will be sufficient if the intention clearly appear.

During the time of Lord Holt, the doctrine was established, that to warrant, no formal words were necessary, and therefore a warranty might be implied, from the nature and circumstances of the case, and the maxim was thus introduced, that a sound price imports a sound bargain or warranty.

This doctrine was afterward exploded by Lord Mansfield, since which time it has undergone some modifications in the English and American Courts, tending in the former somewhat, and in some of the States of the Union, to the rule of civil law, which implies that the goods sold are merchantable, and fit for the purpose for which they were bought.

The better opinion, however, I think, ■ as deduced from English and American decisions, is that a warranty will not be implied, except in cases where goods are sold at sea, where the party has no opportunity to examine them, or in case of a sale by sample, or of provisions for domestic use.