
    Snell, Stag, and Co. against I. Moses and Sons.
    In an action of assumpsit, on the sale of goods for not delivering goods of a certain description, but of a different sort and quality, cither an express warran. ty or fraud must be alleged, and the plaintiff must prove the allegations precisely as they arc laid.
    THIS was a special action on the case. The declaration, contained four counts. The first count charged, that in consideration that the plaintiffs, at the special instance and request of the defendants, would buy of them eight bales of a certain sort of India goods, called blue guineas at, and for the price of five dollars and fifty cents for every piece, the defendants undertook and promised to “ send or deli- “ ver to the plaintiffs, eight bales of blue guineas contain- “ ing in the whole, twelve hundred pieces, and ' that 44 each and every of the said bales should contain blue 44guineas only, and no other sort or kind of goods, and 41 should be of the usual and customary length and breadth, 44 which pieces of blue guineas commonly contain; [and 44 should be equal in quality and goodness to a certain piece 44 of blue guineas produced and shewn to the said 44 as a sample of the said bales of blue guineas, to be sent 44 or delivered to the said plaintiffs.”] And the plaintiffs averred that they did buy, &c. for the said price, &c. but that the defendants did not send and deliver to the plaintiffs eight bales, &c. of the usual and customary length and breadth, [and equal in quality and goodness to the sample so produced, and containing blue guineas only, and no other sort or kind of goods ; ] but on the contrary, that the bales sent, contained a few pieces of blue guineas, mixed with divers other sorts and kinds of goods of inferior quality, color and goodness ; and that the small quantity of blue guineas sent, were not only inferior in quality and goodness to the sample produced, but that they and the other sorts of goods mixed with them, were narrower and shorter than such goods usually are, and were otherwise in bad condition, &c. The second count was like the first, omitting the words between crotchets, relative to the sale by sample.
    
    The third count stated, that in consideration that the plaintiffs, at the special instance and request of the defendants, had promised the defendants to pay to them the sum of §6600 when they, the plaintiffs, should be thereto after-wards requested, the defendants promised to deliver to the plaintiffs, eight bales of a certain sort or kind of goods, called blue guineas, containing a large number of pieces to wit, 1200 pieces of blue guineas, and that each and every of the said bales should contain blue guineas only, and no other kind of goods, and should be the usual and customary kngth and breadth, and of the value of five dollars and fifty cents per piece, &c. when they the defendants should be thereto afterwards requested; and avers that the defendants did not deliver goods of that description, &c. but instead thereof, deceitfully and fraudulently delivered the plaintiffs eight bales, containing a small number of blue guineas intermix-CC^ ^vers other sorts of goods, all of inferior quality, &c. &c. The fourth count was for money had and received t0 the use of the plaintiffs. The defendants plead non assumpsernnt.
    
    The cause was tried before Mr. Justice Livingston, and special jury, at the New-York sittings, on the 15th of December, 1804. On the trial, the plaintiffs produced in evidence the original bill of parcels from the defendants, for 3 bales of blue goods at \¡5 1-2 per piece, under which was written, “ Imported in the ship Canton from Bengal, entered by “ Willing and Francis, at Philadelphia, 12th September, “ 1801. From Philadelphia, &c. by Isaac Moses and Sons, “ October 6th, 1801.” The cartmanwho was employed by the plaintiffs to carry the goods, testified, that he inquired for the blue guineas, purchased of the defendants, who delivered him the bales which he took away, but he did not hear the defendants, or any other person in the store, call them by the name of blue guineas. It further appeared, from the depositions read in evidence, that the goods in question were parcel of a quantity purchased of Willing and Francis, of Philadelphia, by the defendants, Francis testified, that they were sold to the defendants as blue cotton goods, and that they were not of the description of goods called blue guineas, but were imported from Calcutta, and described in the invoice delivered to the defendants, by the Indian names of gurrahs, marahagonges, cossas, and blue gurrahs ; that at the time of sale of the goods to the defendants, Willing and Francis offered, at their own expense, to open the bales to ascertain whether any of the goods were damaged or not, but S. Moses, one of the defendants, who made the purchase, said it was unnecessary, and took the goods away, being in a haste to ship them to New-York. Marahagonges and blue guineas are of different lengths and breadths, as well as quality; that the former are manufactured at Bengal, of a flimsy, coarse cloth, badly dyed, .containing from 15, to 16 1-2 yards in length, and from 3-4 to 7-8 of a yard wide ; but that blue guineas are of the manufacture of the coast of Coromandel, of a firm good fabric, a fine dye, and generally 18'yards longhand 9-8 yard wide j and that during the year 1801, Willing and Francis did not sell any blue guineas to the defendants, nor were there, to their knowledge, any goods of that name in Philadelphia in the autumn of that year.
    The plaintiffs, immediately after the purchase of the goods in question, shipped them to Curracoa, and it appeared from the evidence of their correspondent, that on opening the bales, they were found not to be of the quality of goods he had been accustomed to receive of the plaintiffs, as blue guineas, but were very coarse, shorter and narrower than goods of that name generally are, and some of them of a light blue color. Pieces of inferior quality and color, were intermixed with those of better quality and color, and the difference in value was estimated at 50 per cent. Had the goods been of the proper quality and kind, they might have been sold for %>7 per piece, but were afterwards sold to various persons at inferior prices.
    Two pieces of the goods sold by the defendants to the plaintiffs, which were a fair sample of them, were shewn to the jury, and were admitted to be a species of goods manifestly different in color, texture, length and breadth, from Madras blue guineas, and, in all respects, inferior to that species of goods. _
    
      Robert Lenox was called to prove a conversation between him and one of the defendants, in relation to the goods in question, and declared that he could not recollect the expressions used, but would give his impressions as to the substance of the conversation : this the defendant’s counsel objected to, but it being allowed by the judge, the witness stated, “ that on observing to one of the defendants, that it “ was impossible that blue goods should be sold for blue “ guineas, the latter replied, that people in general were un - “ acquainted with the true names of the different kinds of a India goods, and frequently applied for them by wrong “ names, and that when they asked for blue guineas, he was “ not so much governed by the names made use of, as by <c the market to which they were going, and showed goods accordingly.” William Alsee, another witness, was called by the plaintiffs to prove the declarations and conduct of the defendants, in relation to another parcelof India goods, purchased by him of the defendants, at that time, before the goods in question were purchased by the plaintiffs. The evidence was objected to, on the part of the defendants, but the objection was overruled by the judge. The witness stated, that in the begining of October, 1801, he applied to the defendant to purchase blue guineas for the African coast, and was shewn one bale, which the defendants said was all they had at that time, but that he expected some shortly from Willing scad. Francis ; that a Frenchm an who accompanied him, said, that this bale was real blue guineas. He afterwards took the number of bales he wanted; that when the goods were opened on the African coast, they were found much damaged in the inside.
    It further appeared, that the price of blue marahagonges, about the time of the purchase, was two dollars and fifty cents, and Madras blue guineas $6 per piece.
    The defendants moved for a nonsuit, upon the ground that the evidence varied from, and did not support the plaintiffs’ declaration, which motion was overruled by the judge.
    The clerk of the.defendants then testified, that it was the practice in the store of the defendants, to shew their goods, by stripping off the exterior covering of the bales, and per: mitting the purchaser to select for himself.
    Several witnesses deposed, that there were various species of blue goods from Bengal; that Madras blue guineas were .of superior quality, and that they all were generally inquired for under the name-of blue guineas. The price of Madras blue guineas, was, at the time of the sale of the goods . in question, about $9. On this evidence, the judge left, it to the jury, whether the defendants, knowing the goods sold not to he.Madras blue guineas, had fraudulently sold them to the plaintiffs as goods of that description.
    The jury found a verdict for the plaintiffs for the sum of $2397,19 cents. On a case made, stating the above facts, the defendants now moved to set aside the verdict, and that a nonsuit be entered, on the following grounds. 1. That the evidence of Lenox-má Alsec was inadmissble. 3. That the evidence produced on the trial, did not support the declaration. 3. That no express warranty, or actual fraud was proved, one of which was essential to maintain this action. 4. That the damages were excessive, and not warranted by the evidence. 5. For the misdirection of the judge.
    Hoffman, for the defendant.
    The testimony of Lenox was inadmissible. The mere impressions of a witness ought never to be received in evidence. They are too uncertain to es ablish the truth of a fact, and if admitted as proof, it may lead to dangerous consequences. The witness ought to testify, according to his knowledge, and not according to his belief. He may have impressions on his mind, not produced by the facts he is called to prove, but déíived from other sources, or his own imagination.
    The admission of Alsee, to show the declarations and conduct of the defendants towards him, in regard to another parcel of goods, in order to prove the allegations of the plaintiffs in their suit, in respect to a different contract, was unprecedented. No rule of evidence could justify such a mode of proving a fraud, or breach of contract.
    ■ The evidence adduced at the trial did not support the declaration; there is a fatal variance between the allegations and proofs. If the plaintiffs intended to recover on the ground of fraud, it should be clearly and precisely laid in the declaration, and be proved, as alleged.— There is no pretence that the facts stated in the first and second counts as to the sale, have been proved. The plaintiffs must maintain their action, if at all, on the third count. It charges that the defendants sold to the plain‘tiffs eight bales, containing blue guineas only, of a certain length and breadth, and of a certain value. The bill of parcels, which must be considered as the contract between the parties, reduced to writing, states them to be blue goods, and that they came from Bengal. On the ground of variance, therefore, between the declaration and the proofs, the plaintiffs are not entitled to judgment. Bristow v. Wright, Douglas 665. King v. Pippot, 1 D. & E. 235. Parkinson v. Lee, 2 East. 814.
    
      The verdict was manifestly against evidence. There must be either an express -warranty, or fraud in the sale, to enable the plaintiffs to recover. The case of Seixas v. Woods, 2 Caines, 48, is full and conclusive on this point. It is not pretended that there was any warranty in this case ; and no deceit is proved as to the length or breadth of the goods. They were exposed in the store of the defendants, and subject to the inspection of the plaintiffs.—• Blue guineas, properly so called, come from Madras only ; yet the Bengal blue goods in the ordinary language, and according to the general acceptation of purchasers, have the same denomination. They are all sold under the name of blue goods. It constitutes no part of the complaint of the plaintiffs that they were represented as Madras blue guineas. They complain only that the goods they received were of an inferior quality, and they are bound by their own averments, and cannot recover for a different cause, Yet the judge in his charge, left it to the jury on this point, whether the defendants had sold their goods to the plaintiffs, as Madras blue guineas, knowingthem to be of a different description.
    [Livingston, J. I do not recollect that I used that expression. I left the cause to the jury, on the broad question, whether the goods were sold as blue guineas, and not as Madras blue guineas. ]
    Hoffman.
    There are no other blue guineas, except those of Madras ; all the others are called blue goods, or blue guineas. One circumstance is conclusive, to show that the defendants never could have intended to have sold these, as goods of the same description. The price of Madras blue guineas at the time, was nine dollars a piece, and the plaintiffs paid only five dollars and a half, for those they purchased. Yet the jury must have calculated the damages on the supposition that the goods were represented as Madras blue guineas, so that the damages are excessive, which forms another objection to the verdict.
    
      Harison and Biggs, contra.
    The objection to the testimony of Lenox has no weight. Every witness must swear according to the impressions on his mind : for they are the , r, . , , i T , . materials of his knowledge. It was only a more cautious mode of expressing his belief. He meant to state what he r ° recollected ; che'substance only of what he heard, not the exact words. I he evidence of Alsee was proper, a. itrelated to the same parcel of goods ; and as he applied for blue guineas, and the defendants represented them to him as such, it was fairly to be inferred by the jury, that they knew at the time that they were not. In the case of Beal v. Thatcher, 3 Espinasse’s cases, 194, which was an action for giving a false character, Lord Kenyon allowed the witness to state that the defendant had recommended the same person to him to be trusted, for it “ proved a fraudulent connection between the defendant and the person, recommended, and might therefore go to the jury.”
    [Spencer, J. I have no doubt as to the admissibility of the evidence of Lenox; nor do I see any solid objection to that of Alsee.]
    
    The answer of the defendants to Lenox, shews that their conduct was not fair. Knowing that the goods they exposed for sale were not blue guineas, they take advantage of the ignorance of purchasers, who inquire for them under a different name. Honesty and fair dealing should have induced them to have mentioned the difference. Alsee asked for blue guineas, and they informed him that they should receive a parcel from Willing and Francis, yet in the letter of W. and F. it is expressly stated, that they* did not represent them to the defendants as blue guineas, but as blue goods; and their invoice specifies them under their appropriate Indian names. Blue goods is the general name, blue guineas the specific appellation. Suppose a farmer were to sell buck wheat for wheat, to a personunacquainted with the difference, and who asked for the latter, would such a deceit be sanctioned in a court of justice? The defendants use the term blue goods in their bill of parcels, presuming on the general supposition that they were blue guineas, and that the plaintiffs did not know the difference. Fraud is generally to be inferred from circumstances. and the iury were authorised, from all the facts before them, to make the inference. It was their pe* culiar province to do so, and the court ought not now to disturb their verdict, on any nice or technical objections as t0 t^rie pleadings. Besides, it was agreed by the parties* the declararation should be considered as if for a tort, and there is no variance, as the deceit and the scienter* are the basis of the action. The amount of the verdict does not exceed the actual loss sustained by the plaintiffs.
    
      Radcliff, in reply.
    The question as to a nonsuit, is now to be considered precisely on the same grounds, as it stood when the motion was made at the trial, for such is the agreement inthe case. The distinction between tort arid contract is not correctly applied. It is true, that in actions of trespass, all the circumstances need not be proved precisely as they are alleged; but this action is upon a contract, which- must be proved in teto» The allegations in the third count are not proved. There is no evidence, even by implication, that the goods should be of the value of $ 5, 50 cents a piece, which is a fatal variance. There is no proof of any fraud. The internal state of the bales was not examined but they were sold as Bengal goods, and'were understood to be such by both parties. The bili'of parcels affords the strongest evidence to ascertain the meaning of the contract; the plaintiffs knew that the goods came front Bengal, and yet they admit, in their declaration, that some of them are blue guineas, and are, therefore, concluded from saying they were not. The plaintiffs possessed as much knowledge of the goods as the defendants; they took" them without examination; both parties were equally ignorant of the quality or internal condition, and the purchasers, therefore, must take them at their own risk. Where there is neither express warranty, nor fraud, the rule of caveat emptor, applies. To support this action, it should be made to appear, that some artifice or deception had been practised by the defendants. The goods are uniformly mentioned as blue or Bengal goods ; the term Madras blue guineas, was never used by the defendants.-—The price at which they were purchased, shows most decisively that they were not sold for goods of the latter description, which were selling at a much'higher rate. If the court have any doubts, they ought to grant-a new trial j for the verdict is palpably against evidence, as well as the justice and merits of the case.
   Livingston, J.

delivered the opinion of the court. The only count in the declaration, to which the evidence is pretended to be applicable, is the third, to which, therefore, our examination will be confined. [Here he stated the averments contained in the third count.] If any sale of blue guineas be proved, there is no evidence either that they should be of the usual length and breadth, or of a cer- • tain value. It may well be doubted whether the first can be | implied; and if there were no warranty or fraud, and it I should appear that the bales had not been examined, but ( that both parties were equally ignorant of the length of the ^ goods, such an inference could not be made. Be this as it may, is there any proof that each piece should be of the value of five dollars and a half? This cannot be presumed, merely from its being the price at which the plaintiffs were to take the goods, for if such an implication were to result from that circumstance, such a warranty, would be universal, unless there was a stipulation to the contrary. This is an essential part of the contract, for it cannot be said, that the jury, in assessing the damages did not take ás their guide, the difference between the price paid to W. and F„ and that at which they were sold to the plaintiffs, under an. idea, that it was agreed, that the goods should be of the latter value. This rule of estimating the damages, allowing something for the freight from Philadelphia to Pew-York, and other necessary charges, would give about the sum found by the jury. If they proceeded on this calculation, it was wrong, because of the total want of proof of any agreement, that the article should be of a particular value. It was said in the argument, that as the plaintiffs proceeded on the ground of fraud, it was sufficient if the fraud were substantially made out, without inquiring whether the contract were proved specifically as laid in the declaration ; but how can it be determined that there was any fraud in the transaction, without knowing precisely, what was the agreement between the parties l It is as essential to prove the contract as declared on, with certainty, m that case as well as in any other. This not having been done, the plaintiffs, under the agreement stated in the case, are entitled to a judgment of nonsuit.

Judgment of nonsuit.  