
    Samuel Wharton v. C. and H. O’Hara.
    On an action to recover back money paid for prime coffee, which turned out to be damaged, the difference, only, between prime coffee, and that of inferior quality, can be recovered.
    An action for money had and received, will not lie to recover back the purchase-money, where the property has turned out to be unsound, unless there has been a return of the property, or, at least a tender of it, or where there has been an entire failure of consideration, 
    
    Where the plaintiff advertised coffee as prime, and represented it as such at the sale, {auction,) though he exposed the bags containing the same, which might have leen examined, yet, he is liable to the purchaser for the deficiency, if damaged.
    This was an action of indebitatus assumpsit, brought in the City Court, to recover back seventy-three dollars sixty-three cents, which plaintiff had paid for four bags of coffee, *purchased at auction as good coffee, which was found afterwards to be damaged. L
    It appeared in evidence that the coffee had been advertised previous to the sale, as 'prime coffee, and that a sample was exhibited at the time of sale, which was sound and good. It was also proved that it was exposed in bags, and might have been examined by the purchaser, before and at the time of the sale. And that the plaintiff had it in possession about six weehs before he discovered the unsoundness.
    The judge of the Inferior Court instructed the jury to find for the plaintiff, and they found for the full amount of the purchase money.
    Defendant appealed to the Circuit Court, and moved for a new trial, on the following grounds:
    1. That there was no express warranty of soundness, and being sold at auction, the law would not imply one.
    2. That having been six weeks in plaintiff’s possession, it might have been damaged after the purchase.
    3. That if the plaintiff was entitled to a verdict, he should only have recovered the difference between good and damaged coffee, and not the whole amount of the purchase money.
    The case was tried January Term, 1818, at Charleston, before Mr. Justice Geimke, and the verdict of the City Court was supported.
    This was a motion to reverse that decision, and to grant a new trial, on the grounds above stated.
    
      
       See Byers v. Bostick, 2 M. Const. Rep. 75. R.
      Post. 155 ; 2 Brev. 304; 2 MoC. 436 ; 2 Ricli. 46.
    
   The opinion of the Court was delivered by

Nott, J.

It is not necessary to determine in this case, whether the doctrine of implied warranty, which is maintained in our Courts, applies to sales at auction or not. For even though the law might not imply a soundness of property merely from the soundness of price, yet misrepresentation is considered as amounting to an express warranty. Advertising this as prime coffee, and exhibiting a part of it as such, was tantamount to an express undertaking of the seller, that the article was p,,.* of the quality which it was represented to be. And although it was L publicly exposed to inspection, yet there was no reference made to the purchaser to examine and judge for himself. But on the contrary, a specimen was exhibited by which the whole was to be judged ; and he purchased on the faith and’credit of the vendor, and not on his own view. And although I do not see any ground in this case to suppose that an actual fraud was intended, yet the vendor having advertised it]as prime and represented it at the sale as such, was bound to make it good. The same degree of good faith ought to be observed in sales at auction, as in other sales.

2. Whether the coffee was damaged at the time of the sale, or became so afterwards, was a question for the consideration of the jury ; and the presumption, that it became so afterwards, I think was very well repelled by the evidence offered on the trial.

3. But defendant’s stronghold is on the last ground. In England, it is held, that an action for money had and received, or indebitatus assumpsit, will not lie to try a warranty. Power v. Wells, Cowper, 819. Stuart v. Wilkins, Doug. 18. The party must declare on the warranty. And it was held by this Court, in the case of Fowler & Williams, at Columbia, that when the plaintiff brought this action to recover back the purchase money of a hoi’se which had died, that the action would not lie, as he had not tendered back the property. Whether that decision is to be supported or not, I apprehend it is well settled that a person cannot recover on a single count for money had and received, unless there has been a return of the property, or, at least, a tender of it, or where there has been an entire failure of consideration. Whether there was any count in this declaration on which plaintiff could recover, does not appear. But it is obvious, from his own showing, that his demand arose on account of the coffee having been damaged, and not that it was entirely worthless. He was only, therefore, entitled *681 *recover the difference between prime coffee and that of inferior -1 quality. He was not entitled to the coffee and money both ; and therefore a new trial must be granted.

Grimfce, for the motion. JBelser, contra.

Colcogk and Oheves JJ., concurred.

Gantt, J., dissented. 
      
       1 N. & McC. 194; post. 153.
     
      
       9 Rich. 524.
     
      
       2 Brev. 304: see 1 McC. 540.
     