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sold as of a certain quality, and they turn out to be of an inferior quality, and in which an abatement of price was allowed in the suit brought by the seller to recover it.a The good sense and equity of the law on this subject is, that if the defect of title, whether of lands or chattels, be so great as to render the things sold unfit for the use intended, and not within the inducement to the purchase, the purchaser ought not to be held to the contract, but be left at liberty to rescind it altogether. This is the principle alluded to by Pothier, and repeatedly by Lord Erskine and Lord Kenyon. In South Carolina, it has been held, that if the deficiency in the quantity of land be so great as to defeat the object of the purchase the vendee may rescind the bargain; and if the defects were not so great as to rescind the contract entirely, there might be a just abatement of price; and this doctrine was applied equally to defects in the quantity and quality of land, and for unsoundness and defects in personal property. The same principle was declared in Pennsylvania, in the case of Stoddard v. Smith,c on a contract for the purchase of land. If there be a failure of title to part, and that part appears to be so essential to the residue, that it cannot reasonably be supposed the purchase would have been made without it, as in the case of the loss of a mine, or of water necessary to a mill, or of a valuable fishery attached to a parcel of poor land, and by the loss of which the residue of the land was of little value, the contract may be dissolved in toto. But the court, in the last case, limited very much the right of rescinding a contract for a partial failure of title; for if the sale was of lots in different parts of a city, it was not dissolved by the failure of title to some of the lots not adjoining or particularly connected with the others nor essential to their
a Miller v. Smith, 1 Mason, 437. b Pringle v. Witten, 1 Bay, 256. Glover v. Smith, 1 S. C. Eq. Rep. 433. e 5 Binney, 355.363,
Grey v. Handkinson, ibid. 278.~
use or enjoyment. It is to be regretted, that the embarrassment and contradiction which accompany the English and American cases on this subject, cannot be relieved by the establishment of some clear and definite rule, like that declared in France, which shall be of controlling influence and universal reception.
IV. Of the implied warranty of the articles sold.
In every sale of a chattel, as one's own property, if the possession be at the time in another, and there be no covenant or warranty of title, the rule of caveat emptor applies, and the party buys at his peril But if the seller has possession of the article, and he sells it as his own property, he is understood to warrant the title. A fair price implies a warranty of title, and the purchaser may have a satisfaction from the seller, if he sells the goods as his own, and the title proves deficient. This was also the rule of the civil law in all cases, whether the title wholly or partially failed. But with regard to the quality or goodness of the articles sold, the seller is not bound to answer, except under special circumstances, unless he expressly warranted the goods to be sound and good, or unless he hath made a fraudulent representation concerning them; and the common law very reasonably requires the purchaser to attend, when he makes his contract, to those qualities of the article he buys, which are supposed to be within the reach of his observation and judgment, and which it is equally his interest and his duty to exert. This distinction between the responsibility of the seller as to the title, and as to the quality of goods sold, is well established in the English and American law.d In Seixas
a Tanfield, Ch. Baron, Cro. J. 197.
b Medina v. Stoughton, 1 Ld. Raym. 593. e Dig. 21. 2. i
1 Salk. 210.
d Co. Litt. 102. a. 2 Blacks. Com. 452. Bacon's Abr. tit. Action on the Case, E. Comyn on Contracts, vol. ii. 263. Doug. 20. Parkinson v. Lee, 2 East, 314. Defreeze v. Trumper, 1 Johns. Rep. 274.
v. Wood, the rule was examined and declared to be, that if there was no express warranty by the seller or fraud on his part, the buyer, who examines the article himself, must abide by all losses arising from latent defects equally unknown to both parties; and the same rule was again declared in Swett v. Colgate. There is no doubt of the existence of the general rule of law as laid down in Seixas v. Wood; and the only doubt is, whether it was well applied in that case, where there was a description in writing of the article by the vendor, which proved not to be correct, and from which a warranty might have been inferred. But the rule fitly applies to the case where the article was equally open to the inspection and examination of both parties, and the purchaser choosed to rely on his own information and judgment, without requiring any warranty of the quality; and it does not reasonably apply to those cases where the purchaser has ordered goods of a certain character, or goods of a certain described quality are offered for sale, and when delivered, they do not answer the description directed or given in the contract. They are not the articles which the vendee agreed to purchase; and if there be no opportunity for inspection, there is an implied warranty that the article is saleable.c When goods are discovered not to answer the order given for them, or to be unsound, the purchaser ought immediately to return them to the vendor, and give him no
Dean v. Mason, 4 Conn. Rep. 428. Boyd v. Bopst, 2 Dallas, 91. Emerson v. Brigham, 10 Mass. Rep. 197. Swett v. Colgate, 20 Johns. Rep. 196. Kimmel v. Litchly, 3 Yeates, 262. Willing v. Consequa, 1 Peters' Rep. 317. 12 Serg. & Rawl. 181. Tilghman, Ch. J. Chism v. Woods, 1 Hard. Ken. Rep. 531. Lanier v. Auld, 1 Murphy, 138. Erwin v. Maxwell, 2 ibid. 245. Westmoreland v, Dixon, 4 Haywood's Tenn. Rep
a 2 Caines' Rep. 48.
b 20 Johns. Rep. 196.
c Laing v. Fidgeon, 6 Taunton, 108 Gardiner v. Gray, 4 Campbell's N. P. 144. Hastings v Lovering, 2 Pickering, 214. Woodworth, J. in Swett v. Colgate, 20 Johns. Rep. 204.
tice to take them back, and thereby rescind the contract; or he will be presumed to acquiesce in the quality of the goods. In the case of a breach of warranty, he may sue upon it without returning the goods; but he must return them and rescind the contract in a reasonable time before he can maintain an action to recover back the price. An offer to return the chattel in a reasonable time, on breach of warranty, is equivalent in its effect upon the remedy to an offer accepted by the seller, and the contract is rescinded. But a contract cannot be rescinded without mutual consent, if circumstances be so altered by a part execution, that the parties cannot be putan atatu quo for if it be rescindstátu ed at all, it must be rescinded in toto.d
In South Carolina the rule of the civil law is followed, and a sale for a sound price is understood to imply a warranty of soundness against all faults and defects. The same rule was for many years understood to be the law in Connecticut; but if it did ever exist it was entirely overruled in Dean v. Mason, in favour of the other general principle which has so extensively pervaded the jurisprudence of this country. Even in South Carolina, the rule that a sound price warrants a sound commodity was said to be in a state of vibration; and it is not applied to assist persons to avoid a contract, though made for an inadequate price, provided it was made under a fair opportunity of in
a Fisher v. Samuda. 1 Camp. 190.
6 Fielder v. Starkin, 1 H. Black. 17. Weston v. Downes, Doug. 23. Towers v. Barrett, 1 Term Rep. 133. Curtis v. Hanuay, 3 Esp. Rep. 82 e Thornton v. Wynn. 2 Wheaton, 183.
d Hunt v. Sylk, 5 East, 449.
e Timrod v. Shoolbred, 1 Bay, 324. Whitefield v. M'Leod, 2 Bay, 390. Lester v. Graham, 1 Const. Rep. 182. Crawlord v. Wilson, 2 Cone. Rep. 353.
f4 Conn. Rep. 428.
formation as to all the circumstances, and when there was no fraud, concealment, or latent defect,"
If the article be sold by the sample, and it be a fair specimen of the article, and there be no deception or warranty on the part of the vendor, the vendee cannot rescind the sale. Such a sale amounts to a warranty that the article is in bulk of the same kind and quality with the sample, and equally sound and good throughout, and it amounts to nothing more. If the article should turn out not to be merchantable, from some latent principle of in firmity in the sample, as well as in the bulk of the commodity, the seller is not answerable. The only warranty is, that the whole quantity answers the sample.
V. Of the duty of mutual disclosure of facts material to the contract.
If there be an intentional concealment or suppression of material facts in the making of a contract, in cases in which both parties have not equal access to the means of information, it will be deemed unfair dealing, and will vitiate and avoid the contract. There may be some difference in the facility with which the rule applies between facts and circumstances that are intrinsic, aud form material ingredients of the contract, and those that are extrinsic, and form no component part of it, though they create inducements to enter into the contract, or affect the price of the article. As a general rule, each party is bound in every case to communicate to the other his knowledge of material facts, provided he knows the other to be ignorant of them, and they be not open and naked, or equally within the reach of his observation. Thus, in the sale of a ship which had a latent defect known to the seller, and which the buyer could not by any attention pos