Implied Warranties 451. Definition; Nature, etc.-Implied warranties arise by operation of law, and they exist without any intention of the seller to create them. They are conclusions or inferences of law, pronounced by the court, on facts admitted or proved before the jury. As has been said: "Implied warranties do not rest upon any supposed agreement in fact. They are obligations which the law raises upon principles foreign to the actual contract-principles which are strictly analogous to those upon which vendors are held liable for fraud. It is for the sake of convenience, merely, that this obligation is permitted to be enforced under the form of a contract. However refined this distinction may appear, its nonobservance has led to much of the confusion to be found in the cases on this subject." In some cases where the buyer relies on affirmations by the seller without the use of technical words of warranty to found his claim of a warranty of quality or condition, the courts have inadvertently spoken of the case as one of implied warranty; it is evident, however, that this is not properly one of implied warranty but of express warranty; and this class of cases is considered in the treatment of express warranties. The fact that the contract of sale is evidenced by a writing does not preclude the implication of a warranty not inconsistent therewith. On the other hand a warranty will not be implied in conflict with the express terms of the agreement, it being well settled that the seller may by express provision exclude the implication or importation therein of any warranties on his part, and ordinarily no warranty will be implied where there is an express warranty relating to the same matter. The broad rule has been laid down in a number of cases that an express warranty in a written contract excludes the idea of an implied one, but if the implied warranty does not relate to matters covered by the express warranty, the view has been taken that both may exist. Statutes have been enacted in some jurisdictions expressly Notes: 22 L.R.A. 187; 33 L.R.A. (N.S.) 512. 8. De Witt v. Berry, 134 U. S. 306, 10 S. Ct. 536, 33 U. S. (L. ed.) 896; Lombard Water-Wheel Governor Co. v. Great Northern Paper Co., 101 Me. 114, 63 Atl. 555, 6 L.R.A.(N.S.) 180; Smith v. McCall, 1 McCord L. (S. C.) chard Co. v. Morgan Canning Co., 32 220, 10 Am. Dec. 666; Wasatch OrUtah 229, 89 Pac. 1009, 12 L.R.A. (N.S.) 540. Notes: 102 A. S. R. 609; 22 L.R.A. 187; 33 L.R.A. (N.S.) 503. 9. See supra, par. 227. providing that certain warranties are implied in the sale of certain commodities, or in case of sales under certain circumstances.10 Where the law does not imply a warranty of quality or the like a usage or custom cannot be admitted to create one.11 The law of the place where the sale was made and executed though the parties may have resided elsewhere governs as to whether warranties are to be implied or not.12 452. General Rule; Caveat Emptor.-The general rule of the common law expressed by the maxim caveat emptor is that the buyer purchases at his peril, and there is no warranty implied by law on the part of the seller with respect to the quality of specific articles sold.13 10. Note: 22 L.R.A. 196. 11. Barnard v. Kellogg, 10 Wall. 383, 19 U. S. (L. ed.) 987; Dickinson v. Gay, 7 Allen (Mass.) 29, 83 Am. Dec. 656; Boardman v. Spooner, 13 Allen (Mass.) 353, 90 Am. Dec. 196; Beirne v. Dord, 5 N. Y. 95, 55 Am. Dec. 321. Notes: 55 Am. Dec. 329; 102 A. S. R. 611. See supra, par. 229 et seq., as to the validity of customs to change general rules of law applicable to sales. 12. Bulkley v. Honold, 19 How. 390, 15 U. S. (L. ed.) 663; Meyer v. Richards, 163 U. S. 385, 16 S. Ct. 1148, 41 U. S. (L. ed.) 199. See supra, par. 9 et seq., as to what law governs contracts of sale generally. (Mass.) 283, 34 Am. Dec. 56; Mixer v. Coburn, 11 Metc. (Mass.) 559, 45 Am. Dec. 230; French v. Vining, 102 Mass. 132, 3 Am. Rep. 440; Howard v. Emerson, 110 Mass. 320, 14 Am. Rep. 608; Hight v. Bacon, 126 Mass. 10, 30 Am. Rep. 639; Remy v. Healy, 161 Mich. 266, 126 N. W. 202, 21 Ann. Cas. 74, 29 L.R.A. (N.S.) 139; Seixas v. Woods, 2 Caines (N. Y.) 48, 2 Am. Dec. 215, overruled on another point by White v. Miller, 71 N. Y. 118, 27 Atl. 13; Defreeze v. Trumper, 1 Johns. (N. Y.) 274, 3 Am. Dec. 329; Welsh v. Carter, 1 Wend. (N. Y.) 185, 19 Am. Dec. 473; Boorman v. Jenkins, 12 Wend. (N. Y.) 566, 27 Am. Dec. 158; Beirne v. Dord, 5 N. Y. 95, 55 Am. Dec. 321; Bartlett v. Hoppock, 34 N. Y. 118, 88 Am. Dec. 428; Erwin v. Maxwell, 7 N. C. 241, 9 Am. Dec. 602; Brown v. Gay, 6 Jones L. (N. C.) 103, 72 Am. Dec. 563; Dickson v. Jordan, 33 N. C. 166, 53 Am. Dec. 403; Rodgers v. Niles, 11 Ohio St. 48, 78 Am. Dec. 290; Morse v. Union Stock-Yard Co., 21 Ore. 289, 28 Pac. 2, 14 L.R.A. 157; Wetherill v. Neilson, 20 Pa. St. 448, 59 Am. Dec. 741; Eagan v. Call, 34 Pa. St. 236, 75 Am. Dec. 653; Weimer v. Clement, 37 Pa. St. 147, 78 Am. Dec. 411; McFarlane v. Moore, 1 Overt. (Tenn.) 174, 3 Am. Dec. 752; Warren v. Buck, 71 Vt. 44, 42 Atl. 979, 76 A. S. R. 754; Gerst v. Jones, 32 Grat. (Va.) 518, 34 Am. Rep. 773; Lambert v. Armentrout, 65 W. Va. 375, 64 S. E. 260, 22 L.R.A. (N.S.) 556; Getty v. Rountree, 2 Pinney (Wis.) 379, 54 Am. Dec. 138; Jones v. Lust, L. R. 3 Q. B. 197, 37 L. J. Q. B. 89, 18 L. T. N. S. 208, 16 W. R. 13. Barnard v. Kellogg, 10 Wall. (U. S.) 383, 19 U. S. (L. ed.) 987; McCaa v. Elam Drug Co., 114 Ala. 74, 21 So. 479, 62 A. S. R. 88; Towell v. Gatewood, 2 Scam. (Ill.) 22, 33 Am. Dec. 437; Kohl v. Lindley, 39 Ill. 195, 89 Am. Dec. 294; Oil-Well Supply Co. v. Watson, 168 Ind. 603, 80 N. E. 157, 15 L.R.A. (N.S.) 868; Court v. Snyder, 2 Ind. App. 440, 28 N. E. 718, 50 A. S. R. 247; Shaw v. Smith, 45 Kan. 334, 25 Pac. 886, 11 L.R.A. 681; Kindel v. Winne, 67 Kan. 100, 72 Pac. 548, 62 L.R.A. 596; Scott v. Renick, 1 B. Mon. (Ky.) 63, 35 Am. Dec. 177; Kingsbury v. Taylor, 29 Me. 508, 50 Am. Dec. 607; Briggs v. Hunton, 87 Me. 145, 32 Atl. 794, 47 A. S. R. 318; Hyatt v. Boyle, 5 Gill & J. (Md.) 110, 25 Am. Dec. 276; Wheat v. Cross, 31 Md. 99, 1 Am. Rep. 28; Farren v. Dameron, 99 Md. 323, 58 Atl. 367, 105 A. S. R. 297; Perley v. Balch, 23 Pick. Where the purchaser is not deceived by any fraudulent representations, and demands no warranty, the law presumes that he depends on his own judgment in the transaction, and applies the maxim caveat emptor.14 The general rule of caveat emptor has been held to extend to the sale of a spurious article made to resemble a valuable commodity, if the seller was in no way a party to or had knowledge of the fraud.15 So inconvenience or inability on the part of the buyer to make an inspection of the article sold, as for instance where it is contained in casks or bales, will not alter the general rule and raise by implication any warranty of quality.16 Thus in case of a sale of hemp in bales it has been held that there is no implied warranty that the interior of the bales corresponds with the exterior.17 So the common law rule, which has been followed generally in this country, is that no warranty of soundness will be implied, however adequate or full the price paid may have been.18 As regards latent defects it has been said that it is a universal doctrine, founded upon the plainest principles of natural justice, that, whenever the article sold has some latent defect which is known to the seller, but not to the buyer, the former is liable for this defect, if he fails to disclose his knowledge on the subject at the time of the sale. In all such cases, where the knowledge of the seller is proved by direct evidence, his responsibility rests upon the ground of fraud. But there are cases in which the probability of knowledge on the part of the seller is so strong that the courts will presume its existence without proof; and in these cases, the seller is held responsible upon an implied warranty. The only difference between these two classes of cases is that in one the scienter is actually 643, 9 B. & S. 141, 23 Eng. Rul. Cas. 466. Notes: 6 Am. Dec. 114; 19 Am. Dec. 477; 50 A. S. R. 250; 102 A. S. R. 607; 6 L.R.A. 73, 375; 14 L.R.A. 493; 3 Eng. Rul. Cas. 461. 14. Rodgers v. Niles, 11 Ohio St. 48, 78 Am. Dec. 290. 15. Welsh v. Carter, 1 Wend. (N. Y.) 185, 19 Am. Dec. 473. Note: 19 Am. Dec. 477. 16. Hyatt v. Boyle, 5 Gill & J. (Md.) 110, 25 Am. Dec. 276; Salisbury v. Stainer, 19 Wend. (N. Y.) 159, 32 Am. Dec. 437. 17. Salisbury v. Stainer, 19 Wend. (N. Y.) 159, 32 Am. Dec. 437. 18. West v. Cunningham, 9 Port. (Ala.) 104, 33 Am. Dec. 300; Dean v. Mason, 4 Conn, 428, 10 Am. Dec. 162, impliedly overruling Bailey v. Nickols, 2 Root (Conn.) 407, 1 Am. Dec. 83; Court v. Snyder, 2 Ind. App. 440, 28 N. E. 718, 50 A. S. R. 247; Johnston Notes: 1 Am. Dec. 84; 43 Am. Dec. proved, in the other it is presumed.19 Where a statute expressly requires that certain commodities offered for sale shall be put up in a certain manner to insure their soundness, it seems that when such a commodity is offered for sale at a full price a warranty that the requirements of the statute have been complied with will be implied. Thus where a statute required cargo beef intended for export to be put up and salted in a certain manner which would insure its soundness for the purpose, it has been held, in case of a sale of such beef for a full price, that the law will imply that it is sound and put up in the manner required by the statute.20 453. Minority Rule as to Warranty of Soundness from Sound Price. In opposition to the rule of the common law announced in the preceding paragraph, the rule of the civil law is that a warranty of soundness as against hidden or latent defects will be implied where a full or sound price is paid. This rule is followed in Louisiana as might be expected, and was also adopted in South Carolina at an early date and subject to some limitations has been consistently followed in the later cases. This warranty will include all faults known or unknown to the seller, though it is not considered as including defects patent and known to the buyer. In the original case in South Carolina where this rule seems to have been first adopted, where a slave was sold for a full price who at the time, though unknown to the seller, was infected with the germs of smallpox and died from the disease immediately after the sale, it was held that the buyer was entitled to recover the price paid. Regret for the adoption of this rule, though said to be a very wise and salutory one and designed to guard against fraud and circumvention and those latent defects which 19. Hoe v. Sanborn, 21 N. Y. 552, Dec. 579; Houston v. Gilbert, 3 Brev. 78 Am. Dec. 163. See infra, par. 621, (S. C.) 63, 5 Am. Dec. 542; Bulwinkle as to the general duty of a seller to dis- v. Cramer, 27 S. C. 376, 3 S. E. 776, close latent defects under penalty of 13 A. S. R. 645; Greenwood Cotton being charged with fraud. Mill v. Tolbert, 105 S. C. 273, Ann. 2 Root Cas. 1917C 338. See also State v. Gaillard, 2 Bay (S. C.) 11, 1 Am. Dec. 628. 20. Bailey V. Nickols, (Conn.) 407, 1 Am. Dec. 83. 1. Bulkley v. Howard, 19 How. 390, 15 U. S. (L. ed.) 663 (announcing the law of Louisiana and holding unsoundness of a vessel, by reason of the decay and rottenness of the hull, to ascertain which it was necessary to strip and bore the vessel, is a hidden defect). See also Meyer v. Richards, 163 U. S. 385, 16 S. Ct. 1148, 41 U. S. (L. ed.) 199. Note: 6 Am. Dec. 113. 2. Timrod v. Schoolbred, 1 Bay (S. C.) 324, 1 Am. Dec. 620; Fowler v. Williams, 2 Brev. (S. C.) 304, 4 Am. Notes: 1 Am. Dec. 85; 6 Am. Dec. 113; 102 A. S. R. 609; 14 L.R.A. 493. 3. Timrod v. Schoolbred, 1 Bay (S. C.) 324, 1 Am. Dec. 620; Greenwood Cotton Mills v. Tolbert, 105 S. C. 273, 89 S. E. 653, Ann. Cas. 1917C 338. 4. Carnochan v. Gould, 1 Bailey L. (S. C.) 179, 19 Am. Dec. 668; Stucky v. Clyburn, Cheves L. (S. C.) 186, 34 Am. Dec. 590. neither party knew of, has frequently been expressed; " and it has been held that it was not designed to aid men in getting rid of contracts fairly made under a full knowledge of all the circumstances relating to the subject matter; and in an early case the court refused to extend the rule to a sale of farm products such as rice, as respects a defect which might easily have been detected by an examination if it existed at the time of the sale, and which was claimed to have been first discovered on arrival of the rice at a distant market. The court has also refused to extend it so as to afford relief in case of the sale of a vessel where the buyer was fully informed of all material facts known to the seller and given full opportunity for inspection.10 And it has been held that a warranty as to the moral qualities of a slave is not to be implied. On the other hand, in the case of a sale of baled cotton which the buyer inspected and sampled, the exterior and the samples drawn showing soundness, it has been held that this did not preclude an implied warranty that the interior was also sound like the exterior, and that the seller was liable where it turned out that the interior was "water packed" though he had no knowledge of such fact.12 Ordinarily if the seller expressly refuses to warrant the soundness of the commodity offered for sale this will negative any implied warranty of soundness.18 454. Warranty of Title; General Rule.-According to the early decisions no warranty of title was implied at common law in the sale of chattels.1 Thus it is laid down in Noy's Maxims (chapter 42) that if one sells another man's chattel, and the true owner takes it from the purchaser, the vendor may nevertheless recover the price, and that the buyer is understood to assume the risk of the title. So it was said in Co. Lit. 102a: "By the civil law every man is bound to warrant the thing that he selleth or conveyeth, albeit there be no express warranty; but the common law bindeth him not, unless there be a warranty either in deed or in law; for caveat emptor." This view was, however, at a later date repudiated in England and it is the general rule as established by the later authorities both in England and in this country, in harmony with the rule of the civil law, that C.) 380, 1 Am. Dec. 650. 11. Smith v. McCall, 1 McCord 220, 10 Am. Dec. 666. It would seem that this principle will also exclude an implied warranty in the sale of a horse against existing vices. As to implied warranties in the sale of animals generally, see infra, par. 474. 12. Greenwood Cotton Mills v. Tolbert, 105 S. C. 273, 89 S. E. 653, Anu. Cas. 1917C 338. 13. Note: 102 A. S. R. 611. |