
    Johnston vs. Cope et al.
    
    Appeal from Baltimore Counly Court. Rssumpsit by the appellant against the appellees, on an agreement for the sale of six bales of iinens called Flanders sheetings; to be furnished and supplied by the latter to the former, of good and merchantable linens, at anáfora large sum of money, and for which payment had been made. The declaration stated, that although six bales were afterwards delivered, yet they were not good, sound; merchantable Finens, but on the contrary bad and unmerchantable, &c The general issue was pleaded; and at the trial the plaintiff prayed the court to direct the jury; that if they should be of opinion from the testimony, that the merchandize in question was sold to the plaintiff for the full merchantable price, that it implies a warranty that the same was, at the time ofthé sale, good, sound and merchantable; and that if the merchandize in question was unsound, and that unsoundaess was not obvious to the buyer at the timé of the sale, in the state in which such goods are usually sold, the plaintiff iá Entitled to recover on the ground of such implied warranty; This direction the court, [■Niehoí&on, Ch. J. and Hollingsworth,'A. J.] refused to give,' being of opinion that the liare circumstance of selling goods and chattels for a full price,1 does not of itself raise a warranty, and that . the' seller is hot responsible for the urísoundfíeás of siich goods add chattels,- unless he warranted them to bé' sound, or knew of their ufisoundness at the time of sale, id which latter case he would be liable for the fraud.- The plaintiff excepted; and the verdict and judgment being against him, hd appealed to this court;
    
      In assumpsit on a verbal agreement to recover the erice paid for merchandize pm* Ved.to foe unsound* sold and delivered t>Y the defendants , to the plainuff,— Held, that the bare Circumstance of selling gno'ds and chattels for a foil price, does not Of itself raise a warranty; and that the seller is not responsible fin* their iitwmndness, uu■less he warranted them to foe sound* or knew they were nor at the time of the sale, in which latter case he would foe liable for the fraud
    
      The cause was argued before Chase,- Cln J. and Buck» A.XAÑ, CrAÑTT, and Eárlé* Jj
    
      Nisbet, for the Appellant.'
    The' common law fhaxlm of caveat empior is now exploded* and the more reasonable principle of the civil law, ‘‘that a fair price implies a warranty,” has been adopted. 2 Wood. Lect. 415, & 1 Pow. on Cont. 150. The plaintiff is hot bound to show that the defendant knew of the defect Or damage in' the things sold; for a man ought to have skill in the way of his Business, and ignorance is considered as a deceit upon those with, whom he deals. 3 Wood. 199. Bevingsay vs. Ralston, Skin. 66; & Denison vs. Ralphson, 1 Vent. 366. The court below grounded their opinion principally on a case of Parkinson vs. Lee, 2 East, 314, and the case of Stuart vs. Wilkins, 1 Doug. 20. The first of these cases ivas a sale by sample, and the commodity was proved to be the same as the sample. That is d very different case from the one before this court, where the sale was of linens in bales, without opening them, and without the exhibition of a sample.' The court below go farther in their decision than the case required; and so far as they appear to decide the case before the court, it is a mere obiter opinion, and that founded on another obiter opinion of Lord Mansfield; for the case Stuart vs. Wilkins was merely as to the form of the declaration. The common Understanding of mankind, and the general usage of merchants, is in favour of the implied warranty. An instance has rarely occurred where, on a sale of goods by invoice or in bales, a concealed damage has been discovered, in which the vendor has refused to refund the money, and take back the goods, or compensate for the injury sustained. Upon this principle substantial justice is clone, for the logs «vill ultimately fall upon the person who knew of the damage, and fraudulently packed up the goods as merchantable.
    
      T. B. Dorsey, for the Appellees.
    The common law principle of caveat empior never has been exploded as tQ the quality of goods sold, but only as to the title. 2 Blk. Com. 451, (and Christian’s notes.) That there is no implied warranty as tq tl>e quality, is evident from 3 Blk. Com. 164. Parkinson vs. Lee, 2 East, 314. Williamson vs. Allison, Ibid 446. If a sound price implies a warranty, why are express warranties ever made, or why arq actions of deceit ever brought! The universal understand. ing of every man buying and selling is against implied warranties. The authorities of 2 Wood. Lect. 415, 3 Wood. Lect. 199, and 1 Pow. on Contracts, 150, are the incautious dicta of commentators, unsupported by the decision in Denison vs. Ralphson, 1 Vent. 366, and Bevingsay vs. Ralson, Skin. 66, on which they profess* to, be foundedj these cases were on express warranties, and it was. therefore properly decided that the scienter need not be proved.
   JUDCiMEXT AiTIKMED.  