
    Cleu et al. v. McPherson et al.
    On the 7th of April, 1855, the plaintiffs, (then being in expectation of receiving a large quantity of French walnuts, by the ship, Helen E. Miller, which ship was, at that time, on her passage from Havre, in France, to the port of New York), contracted to sell to the defendants who agreed to buy, “twenty-five bales of French walnuts, at 7 cents per lb., to arrive per Helen E. Miller, less 3 per cent, cash.”
    
      Meld, that said contract was executory, and that the plaintiffs, by its true import and meaning, undertook that, the walnuts should be merchantable) and in quality, substantially such, on their arrival and on the tender of them to the defendants, as are known in the trade, as French walnuts.
    The jury having found, .in answer to questions specially submitted to them, that, the walnuts in question, when they arrived and were tendered to the defendants, were not merchantable as French walnuts, and were then worth only two and one half cents per pound, and that the article known in the trade as French walnuts, in the condition in which they generally arrive in the New York market, were worth at the time of said arrival and tender, six and a half cents per pound, it was also held that, the defendants were under no obligation, by reason of their said contract, to receive and pay for the walnuts so tendered to them by the plaintiffs.
    
      The expressions, “The article undefined,” “not defined,” and “undetermined," commented on by Hofmax, J.
    (Before Duer, Ch. J., & Hoffman, J.)
    Heard, May 26;
    decided, July 11, 1857.
    This action comes before the Court at General Term, pursuant to an order made at the trial thereof, that, the questions there arising, being questions of law, should be heard in the first instance, at the General Term, and the entry of judgment, in the mean time, be suspended. It was tried in June, 1856, before Mr. Justice Bosworth, and a jury. John E. Cleu & Ceasire Court, compbising the firm of J. F. Cleu & Co. are the plaintiffs, and Reuben McPherson, H. N. Eye, & J. C. Quick, composing the firm of McPherson & Co. are the defendants. Both firms resided and did business in the citia of New York, when the contract in question was made, ana it was made in that city.
    The complaint states that on or about the 7th of April, 1855, “ the plaintiffs, being in expectation of receiving a large quantity of Erench walnuts, by the ship, Helen E. Miller,’ which was then on her passage from Havre, France, to the port of New York, at the special instance and request of the defendants, agreed to sell, and the said defendants then and there, in due form of law, and by a valid contract in writing agreed, in substance and effect, to purchase from the plaintiffs twenty-five bags of the Erench walnuts so expected to arrive as aforesaid, for the price or sum of seven cents for each and every pound of net weight contained in the said twenty-five bags; and did then and there agree to accept and receive the said walnuts upon the arrival thereof at New York, and to pay the plaintiffs for the same at the rate aforesaid, in cash upon delivery, deducting three per cent, from the amount of the bill.”
    It also states that the vessel arrived at New York with the said walnuts on board, on the 20th of April, 1855, and that the walnuts were landed and ready for delivery on the 27th of that month: a tender and offer to deliver 25 bags of said walnuts, and a demand of payment of the contract price, and the refusal of the defendants to receive the walnuts or pay for them: that they amounted at the contract price to $174,03, and that on the defendants’ refusal to accept, and pay for them, the walnuts were afterwards sold at public auction, on due notice to the defendants of such sale, for the net sum of $57,62, and for the balance, being $116,41, with interest from the 5th of May, 1855, the complaint prayed judgment.
    The defendants, in their answer, say that, “ they admit that the said plaintiffs agreed to sell to them, and that these defendants agreed to purchase, twenty-five bags of French walnuts, expected to arrive at the port of Hew York, for the price or sum of seven cents for each and every pound of net weight contained in the said twenty-five bags, and upon the arrival thereof at the port of Hew York to pay the price aforesaid, deducing three per cent, from the amount of the bill. But these defendants allege, that it was also then and there understood, expressed and agreed, that the said nut^vere to be sound and merchantable, and if not found so to be, on the arrival thereof at Hew York, there was to be no sale of the same to these defendants, and they were not to accept the same, and the said agreement to purchase and sell were to be of no effect. And these defendants deny that there was any agreement or contract in writing for the sale or purchase of said nuts ever made by these defendants with the said plaintiffs, or that they ever agreed in writing in any form to purchase the same.”
    The answer farther alleges that, the walnuts, so offered and tendered to the defendants, “ were not sound and merchantable, but were unsound, damaged and injured, and were not according to the agreement made by the said plaintiffs with these defendants.” It denies that anything was due to the plaintiffs from the defendants, and puts at issue the allegations, as to a sale at auction. As a separate defence, it alleges that, “no note or memorandum in writing was made of such contract, and subscribed by these defendants, or either of them; and that they did not receive or accept any part of the goods for which this action is brought, or pay any part of the purchase money; and that the said contract is void in law.”
    On these issues, the action was brought to trial.
    On the trial, Francis A. Paddock, a witness for the plaintiff, testified, that he was one of the firm of “Bennett & Paddock,” brokers, and that, in April, 1855, he “sold some French walnuts to the defendants, for the plaintiffs.” Being shown a note of sale, which was produced by the defendants, he said, “ This is one of the notes of that sale: one note of the sale was delivered to each of the parties.” The note of sale so produced reads thus, viz.
    “New York, April 7th, 1855.
    “ Sold for account of Messrs. J. F. Oleu & Go,,
    “ To Messrs. McPherson & Co., .
    “ Twenty-five bales French walnuts, at 7 c.
    “To arrive per ‘Helen E. Miller,’ less 3 per cent. cash.
    “Bennett & Paddock, Brokers,
    
    “100 Wall street.”
    He further testified thus: “I was employed by plaintiff to sell the nuts; I had no orders to buy for the defendants. I cannot state to which of the defendants the sale note was delivered.” * * *
    “ We sell fruit for the importers and call upon the buyers. I was employed by Cleu & Co., and called on the defendants; they agreed to buy the nuts, and the sale note was thereupon made out and delivered to the parties, in accordance with such agreement.”
    The defendants’ counsel then asked the witness the following question:
    Please relate the whole conversation between you and McPherson & Co., when you offered the nuts for sale. The plaintiffs’ counsel objected to this evidence. The defendants’ counsel stated that it was offered for the purpose of proving that the witness acted only as the agent of the plaintiffs, and also for the purpose of proving that the witness represented the nuts to be of a good and merchantable quality, and in a good condition; to which question plaintiffs’ counsel objected, on the ground that the witness was in law the agent of both parties, and also upon the ground that the contract being in writing, parol evidence was inadmissible to vary or contradict the written contract.
    The Court overruled the objection, and decided that it would hear evidence upon the question of the agency of the witness, and the nature of it; and admitted the question; to which decision and ruling the plaintiffs’ counsel duly excepted. The "witness, in answer to said question, further testified as follows :
    “ I told McPherson & Co. that I had some nuts for sale for Cleu & Co., and that I was authorized to sell them; I stated the ship and the price, and they then authorized me to buy them from Mr. Cleu at his price.”
    The defendants’ counsel then asked the witness the following question:
    “ On what terms and conditions did the defendants authorize you to buy?”
    The plaintiffs’ counsel objected to the question, which objection was overruled by the Court, to which decision and ruling the plaintiffs’ counsel duly excepted. The witness then, in answer to the question, further said: “ Cleu & Co. told me to sell the nuts for good nuts, and McPherson told me if they were good nuts to buy them.
    “ I stated the price, terms, &e., to the defendants, and that the nuts were of a good quality, and they authorized me to buy them on those terms.”
    The direct examination being resumed, the witness further testified as foEows:
    • “ The sale was made on the 7th of April, 1855; the sale note sent to the defendants’ office, and was never returned to me. I sent one, also, to Mr. Cleu, and he did not return it.
    “ I have been a broker two years. There were, I think, 180 bags of walnuts on the two ships. I sold 80 of them."
    It did not otherwise appear, than is shown by the evidence above quoted, what was the form of the sale note which the brokers sent to the plaintiffs.
    Evidence was given in respect to the article known, in the trade, as French walnuts, as to the condition of the article as it usuaEy is when it arrives at the port of Kew York, and as to the condition of the walnuts in question, on board of the Helen E. MiEer, on her arrival.
    The sale of the walnuts in question, at auction, after the defendants’ refusal to accept and pay for them, and after due notice of such sale to the defendants, was proved, and also that they brought, as of May 2, 1855, the net sum of $57 62, and that at the contract price they would amount to the sum of $174 03.
    After the testimony was closed, and the cause had been summed up to the jury, “ the Court directed the jury to answer the following questions, to wit:
    “ 1st. What were these walnuts worth per pound at the time they arrived and were tendered to the defendants ?
    “ 2d. What was the article known in the trade as French walnuts worth, per pound, at the same time, in the condition in which they generally arrive in this market?
    “3d. Were these walnuts, when they arrived and were tendered, merchantable, as that word is understood by the trade with reference to such articles?
    “4th. Were these walnuts, when they arrived and were tendered, in as good condition as the average of that article is, as they arrive in this market ?
    “The plaintiffs’ counsel duly excepted to the said charge of the Court, directing the jury to answer the said questions, and to each and every of the questions respectively.
    “ The jury having deliberated thereon, rendered their verdict as follows:
    “ In answer to the first question they say, ‘ two and one-half cents per pound.’
    “In answer to the second question they say, ‘six and one-half cents per pound.’
    “ In answer to the third question they say, 1 no.’
    “In answer to the fourth question they say, ‘no.’
    “ The Court thereupon ordered that the questions of law arising in the case be heard, in the first instance, before the Court at General Term, with leave to the Court at General Term to enter judgment in accordance with the facts, and the entry of judgment to be in the mean time suspended.”
    On the 20th of May, 1856, the plaintiffs moved the Court at General Term, for judgment on the facts conceded by the pleadings and admitted at the trial to have been established, and on the special verdict.
    
      Gilbert Dean and James R. Vose, for the plaintiffs.
    
      
      A. R. Dyett, for the defendants.
   By the Court. Hoffman, J.

The first question is, whether the sale note, of itself, and without any extrinsic testimony, implies a representation and condition that the walnuts were and should be merchantable.

The next question relates to the admissibility of the evidence as to the terms of sale.

1. It is not to be denied that the rule of the common law, caveat emptor, is adopted in this State in its utmost strictness, as to all executed sales. The case of Hart v. Wright (17 Wendell, 267, and 18 Wendell, 449) has fully settled this point.

Yet this rule, as enforced in our tribunals, is not without exceptions. Thus if goods are ordered from a manufacturer to be made for a special purpose, there is an implied engagement that they shall answer such purpose. And so when provisions are purchased for consumption, and not for sale as merchandise, their proper quality is guaranteed.

2. But the contract in the present case was conditional and executory. It resembles in this particular, the case of Shields v. Bettie (2 Sand. 262; 4 Comstock, 122). There the article to be sold was “ 150 tons of Gartshemi pig iron, No. 1, at $29 a ton, on board the Siddons.” The vessel was then at sea. The iron turned out, on its arrival, not to be of the quality described. The Court below held that, the contract was to sell and deliver iron to arrive; that is, it was an agreement to deliver Gartshemi pig iron, No. 1, if any iron of that description arrived in the ship Siddons, on the voyage she was then making. It was settled that such a contract was conditional.

That proposition is substantially repeated in the opinion of Hurlbut, Justice, in the Court of Appeals.

' In Howard v. Hoey (23 Wendell, 350), the contract was for ale, to be sent to the South, and to be good and merchantable, without any warranty against sourness. It was brewed after the contract, and sent South, where it proved ropy, sour, and wholly unfit for use.

The Court considered that had it been brewed, and specifically sold, an express warranty would have been necessary. ( Wright v. Hart, 17 Wendell, 267; 18 Ibid. 449.) Justice Coweh then proceeded to state the rule: That where the contract is executory, or, in other words, to deEver an article not defined at the time, on a future day, whether the vendor has an article of the kind on hand, or it is afterwards to be procured, or manufactured,, the promisee cannot be compelled to put up with an inferior article. The contract always carries an obEgation that it shaU be at least merchantable; at least of medium quaEty or goodness. The learned Judge proceeds with a critical examination of numerous authorities, and concludes: That as to executory contracts, it may be said, that the English law, and therefore our own, agrees with the Continental or Roman law, the rule of which, in regard to all sales, both executed and executory, is “ Caveat Venditor,” not “ Caveat Bmptor”

In Hargous v. Stone (1 Selden, 86), Justice Raise, in deEvering the opinion of the Court, observed: “Executory contracts of sale do not depend upon the same principles as executed contracts of sale. The doctrine of impEed warranty has properly no appEcation to the former. Where a contract is executory, that is, to deEver an article not defined at the time, on a future day, whether the vendor has at the time an article of the kind on hand, or it is afterwards to be procured or manufactured, the contract carries with it an obEgation that the article shaE be merchantable, at least of medium quality or goodness.” (Citing 23 Wendell, 351; 17 WendeH, 277; Chanter v. Hopkins, 4 Meeson & Welsby, Exch. 399.) “But, if the article is, at the time of the sale, in existence, and defined, and is specificaEy sold, and the title passes in presentí to the vendee, the transaction amounts to an executed sale; and, although there is no opportunity for inspection, there wiE be no impEed warranty that the article is merchantable.”

There are other authorities which may be usefully referred to.

In Bridge v. Wain (1 Starkie, 504), an order was given for a quantity of “ scarlet cuttings,” to be shipped on the purchaser’s account, to China. An inferior article was sent on board which was unsaleable in China, and did not correspond with the article known in the trade as scarlet cuttings. The purchaser was held entitled to recover damages, on the ground of the impEed warranty, which the acceptance of his order involved.

This case is, indeed, open to the observation that the tradesman, like a manufacturer, knew the nature of the article he sent, and that the purchaser trusted to him.

Gardiner v. Gray (4 Campbell, 144). A purchaser bought in London twelve bags of waste silk,” then on its way from the Continent, and directed it to be sent to Manchester. It was held that there was an implied undertaking to furnish an article fairly corresponding with the description; and an action was sustained for damages, by reason of the article being an inferior commodity, not saleable in the market, under the denomination of waste silk.

I cite this case as bearing upon the present question, notwithstanding the severe criticism of Mr. Justice Cowen upon it in Hart v. Wright (17 Wendell, 272). It has not been noticed that the article was, at the time of the sale, on the way from the Continent.

Laing v. Fidgeon (6 Taunton, 108), is fully approved in Jones v. Bright (2 Moore & Payne, 155). Saddles were ordered as “ goods for North America, 3 dozen single flap saddles, 24s, to 26s, with cruppers, &c.” It was proved that they were of very inferior quality, and unmerchantable. It was held, that though there was no express contract that the article should be merchantable, it resulted from the whole transaction that it was to be so.

In the ease of Hyatt v. Boyle (5 Grill & Johnson, 110), treated by Justice Cowen as a well considered case (17 Wendell, 274), the Court say: “ The exception to the rule of caveat emptor, arising from the want of opportunity to inspect, does not apply to cases like the present, but to those where the examination at the time of sale is, morally speaking, impracticable, as where goods are sold before their arrival on landing.”

It is true, Justice Cowest doubts as to even this relaxation of the rule. But he is speaking of executed contracts of sale, for he himself laid down the law as to executory contracts, in Howard v. Hoey, 23 Wind. 350. Indeed he concludes his judgment in Hart v. Wright (supra) as follows:

“ A contract to deliver goods generally of a certain description, is another matter. There the contract is executory, and the vendee may take his ground on a defective article being tendered. He has doubtless a right to insist that it shall be merchantable; and if it prove not to be so, after he shall have taken a reasonable time to inspect it, he may return it.”

What is the meaning of the phrase used by both Justice Cowem and Justice Paige, “the article undefined,” “not defined,” or, “undetermined?”

The case of Field v. Moore, (Lailor’s Supplement to Hill & Denio, p. 418) furnishes.a satisfactory explanation. The sale was of 1000 flour barrels at 22 cents. The purchaser was shown barrels in the warehouse of the seller, of different kinds, and one pile of about 2000 barrels in a particular spot. It was signified that he would take the barrels out of this parcel. The question was whether the title to any one thousand barrels had passed.

Beardsley, Justice, said, “Identity in the subject of a sale is indispensable. A sale is an executed contract by which the right of property is transferred from the seller to the buyer. The thing sold must, therefore, be specific, ascertained, and identified. Where the thing agreed to be sold is not thus ascertained, and identified, but is thereafter to be selected and delivered, there is not strictly speaking, a sale, but a special agreement to be executed in future. Such a contract conveys no present title or property to the one who agrees to purchase; his whole right is in action.”

In the present case the complaint states that the plaintiffs, being in expectation of receiving a large quantity of French walnuts, by the ship Helen C. Miller, agreed to sell 25 bags of the walnuts so expected; and this part of the complaint may be treated as admitted. The witness Paddock states that he showed the defendant McPherson, the whole pile of nuts on the wharf, landed from the vessel; that there were one hundred bags of them, and told him he could have any he wished.

The case is then made out of a contract of sale purely conditional and executory; of the sale of an article then about being shipped at a foreign port, or then upon the seas; of a sale of a parcel or number out of an aggregate larger mass, not specifically defined and determined.

In such a case we are of opinion that there is an implied engagement in the contract itself, that the article shall be merchantable. It may be more appropriate to say that this is a condition of the agreement for a sale, than an implied warranty.

It.may also be, that the rule can be carried farther, and applied to a case, where the article is specific and defined; but it is needless to go to this length for the decision of the present cause.

The great distinction between the civil and common law upon this subject, is referred to in the leading authorities, and the learning upon it need not be stated. The rule which we recognize and now apply, forms an important exception to the doctrine of the common law, and appears to have sprung from a consciousness o.f the superior morality of the principle of the civil law. The philosophical and able treatise of Mr. Verplanck has illustrated that principle with ample learning, and with that rare precision and felicity of diction which distinguish the productions of his mind. The reasoning which long was characterized as the speculation of a legal visionary, has become a guide to one great innovation upon the common law, and a marked advance in the foot-prints of the civil code.

The views thus stated are sufficient to decide the cause without adverting to the question of the admissibility of the evidence as to the verbal representations and statements of the parties.

The judgment must be for the defendants.  