Henry Winsor et al. versus Israel Lombard et al., 18 Pick. 57

Shaw C. J. delivered the opinion of the Court. The Court are of opinion, that the amendment in striking out the name of one of the plaintiffs, was admissible. But the main question arises upon the supposed implied war ranty, that the fish, at the time of the sale, were merchantable. This was a sale of inspected fish, and there is nothing in the bill of parcels importing an express warranty. Then the question is, whether there was an implied warranty that the fish were merchantable or free from damage at the time of the sale ?

It was ruled at the trial, that there was, for the purpose of receiving the evidence, so that all the questions might be brought before the Court at once ; but upon a revision of the case, the Court are all of opinion, that the action cannot be maintained. The old rule upon this subject was wed settled, that upon a sale of goods, if there be no express warranty of the qualitj of the goods sold, and no actual fraud, by a wilful misrepresentation, the maxim, caveat emptor, applies.

Without going at large into the doctrine upon this subject, or attempting to reconcile all the cases, which would certainly be very difficult, it may be sufficient to say that, in this Commonwealth, the law has undergone some modification, and it is now held, that without express warranty or actual fraud, every person who sells goods of a certain denomination or description, undertakes as part of his contract, that the thing delivered corresponds to the description, and is in fact an

article of the species, kind and quality thus expressed in the contract of sale. Hastings v. Lovering, 2 Pick. 214; Hogins v. Plympton, 11 Pick. 97. Indeed this rule seems to be now well settled in England. In an action for a breach of warranty, a vessel was advertised and sold as a copper-fastened vessel, but sold as she lay with all faults. It appeared that she was only partially copper-fastened, and not what is known to the trade as a copper-fastened vessel. It was held that, “ with all faults,” must be understood, all faults which a copper-fastened vessel may have. Shepherd v. Kain, 5 Barn. & Ald. 240.

The rule being, that upon a sale of goods by a written memorandum or bill of parcels, the vendor undertakes, in the nature of warranting, that the thing sold and delivered is that which is described, this rule applies whether the description be more or less particular and exact in enumerating the qualities of the goods sold. In applying this rule to the present case, the question is, what did the parties mutually understand by their contract, as it was reduced to writing. It purported to be a sale of certain barrels and half barrels of No. 1, and others of No. 2 mackerel.

It is a familiar rule, that every contract is to be construed according to the subject, and with reference to those circumstances which are so notorious, that all persons conversant with the branch of trade, to which the sale relates, must be presumed to be acquainted with them.

In the sale of mackerel, both parties must be presumed to be acquainted with the inspection laws, both must be understood to know the season of the year when this species of fish are caught, packed, and branded, and the species of damage and deterioration, to which they are liable, and that if mackerel are sold in the spring, they cannot be of an inspection more recent, than that of the preceding autumn.

With these circumstances mutually understood, vve have no doubt, that when these fish were sold as No. 1 and 2, the understanding of the parties was, that they were fish, packed, inspected and branded as of those numbers respectively. , It was in evidence, that fish infected with that species ol damage called rust, a damage contracted by the leaking out of the pickle, after the fish have passed under the brand of the inspector, may be packed and inspected as No. 3, but that however good in other respects, they cannot be considered or marked as No. 1 or 2.

Upon this ground it was contended by the plaintiffs, that the effect of the contract of the defendants was, that the mackerel were, at the time of the sale, fish of the quality known as No. 1 and 2 ; that as they could not h« of those qualities, if they were rusty, it was describing them by a quality which they did not then possess ; and that tirs was a breach of warranty. But we are all of opinion, that this would be a forced and erroneous construction of the instrument.

Construed with reference to the subject matter, we think they must have understood, that the fish were inspected and branded as No. 1 and No. 2. In this respect the parties referred to the brand, and to this extent they acted upon the faith of it. Then, as there was no express warranty of their actual condition, or of the manner in which they were kept and taken care of, after the inspection, and from that time to the sale, and as there was no description embracing these particulars, it must be presumed, that both parties relied upon the faith of the inspection and brand.

But if the plaintiff would hold the defendants responsible, as upon a fraud, he must show that they knew that the brand was falsely applied, or that after the inspection and before the sale, they had become damaged by rust; but no such evidence being given, and no such case suggested, the action cannot be supported. It is supposed that a different rule applies to the case of - all provisions from that applicable to other merchandise. This matter is well explained by Mr. Justice Sewall, in Emerson v. Brigham, 10 Mass. R. 197.

In a case of provisions, it will readily be presumed that the vendor intended to represent them as sound and wholesome, because the very offer of articles of food for sale implies this, and it may readily be presumed that a common vendor of articles of food, from the nature of his calling, knows whether they are unwholesome and unsound or not. From the fact of their being bad, therefore, a false and fraudulent representation may readily be presumed. But these reasons do not apply to the case of provisions, packed, inspected, and prepared for exportation in large quantities as merchandise.

The vendee does not rely upon the supposed skill or actual knowledge of the vendor, but both rely upon the skill and responsibility of the inspector, as verified by the brand, for all qualities which the brand indicates ; and for damage which may happen afterwards, and against which, therefore, the brand offers no security, the vendee must secure himself by the terms of the contract ; and unless he does so, or unless he is deceived by a false representation of the present and actual condition of the commodity, on which he would have a remedy of a different character, he must be supposed to have been content to take the risk on himself.

New trial granted.