
    Baker vers. Frobisher.
    1762.
    On a Sale of Goods, there is an implied Warranty that they are merchantable, unless sold by Sample.
    For selling the Plaintiff unmerchantable Soap.() It was said there was no express Warranty at the Time of the Sale. But 2d Lord Raymond, 1120, was cited contra.
    
    
      
      (1) The declaration in this case alleged that the defendant, a soap boiler, “ deceitfully contriving to defraud ” the plaintiff, delivered him “ unmerchantable soap of stinking material,” and “ falsely affirmed the same to be good and merchantable.”
    
   And the Justices were of the Opinion that every Man is bound to see his Goods are merchantable at the Time of Sale. () But Evidence being brought to prove that the Plaintiff’s Wife, who was the Contractor, saw a Sample of the Soap, the Jury were directed to find Costs for the Defendant. 
      
      (2) The opposite doctrine now prevails — all such cases being held to be within the principle of caveat emptor. Winsor v. Lombard, 18 Pick, 60. Mixer v. Coburn, 11 Met. 559. But the rule intimated above seems once to have been affirmed in Massachusetts. See Oliver v. Sale, poll — Otis, arguendo: “The rule of merchandise which obliges the vendor to answer for what he fells without warranty, is confined to manufactures of the Country, which a man must be supposed to know the quality of.”
     