
    Vanderhorst & Co. against David M‘Taggart.
    
      Charleston,
    
    1803.
    Itice or any other staple commodity of should* tie ex-shippIngporT on board SPits quality is not to be determined by an examination^ port The neglect on the part of the purchaser to make such examination, is a tacit admission of the merchantable quality of the article, and he thereby takes the risk upon himself.
    ASSUMPSIT for a quantity of rice sold by plaintiffs r SIS factors*
    The rice in question had been sent down to the plaintiffs ^or sale, by Mr. Bowman, from his plantation on Santee r*ver‘ The defendant purchased it, and there was a balance of 84/. 1 Ys. 10d. unpaid, for which this suit was brought, r °
    The defence was, that the rice was damaged and not merchantabie . an(j} therefore, that defendant was not bound lo pay. On the part of defendant it was proved, that fifteen tierces of it had been shipped by him to Alexandria in Virginia ; that the vessel had only eight days passage ; that the weather was very fine, the vessel staunch and airy, and that no damage could have happened during the passage. That upon the examination of the rice after it was landed at Alexandria, the whole of it in the casks was found to be dark, musty, and unmerchantable; so that a purchaser who had bought it as merchantable returned it to the consignee, who was obliged to sell it at public auction as damaged rice, when it brought little or nothing ; so that the damages upon such sale amounted to a sum considerably above the balance claimed by the plaintiffs in the present-action.
    For the plaintiffs, in reply, it was proved by the person who managed Mr. Bowman!s plantation, that these fifteen casks of rice had only been beaten out ten days before the sale to defendant, and that it was put up in good merchantable order. The master of the schooner who brought it to Charleston from Santee, proved that it was delivered dry and in good order. And Mr. Mitchell, the cooper, who had coopered all the casks after their arrival in Charleston., proved that they were all in good order. And the wharf-inger, a Mr. Keating, shewed the rice to defendant when he purchased it. And Mr. Ml Taggart was so well satisfied with it, that he had only two casks opened, when he immediately went to the plaintiffs’ counting-house, and made the purchase without further examination; and further, that all the parcel appeared to him to be in fine order for shipping. All the witnesses stood fair on both sides, and the only difficulty was to account for the damage which the rice had sustained.
    The case was submitted by the presiding Judge to the, jury, as a matter for their consideration, and they found a verdict for the defendant.
    After this verdict was given in, this was thought to be a cause of more importance than at first it was considered to be, as affecting both the planting and shipping interests oí' this country.
    Accordingly a new trial was moved for, on the ground of its being a new case of much importance, and meriting a fuller consideration, than it had undergone on the" above trial.
    On the part of defendant it was contended, that the ' credit and interest of Carolina very much depended upon the integrity and good conduct of the planters, in putting up their staple commodities in good order for a market | particularly rice, which was so easily damaged. That merchants and strangers reposed a high confidence in their honour, and advanced their money freely, upon the faith and credit which was given to their care and circumspection, in putting up this valuable article dry and in a good condition for shipping off to a foreign market; and if at any time it turned out otherwise, they, and not the merchant or purchaser, should bear the loss. That receiving a sound price, warranted a sound commodity, apd if the article sold turned out unsound, the seller should return the price, and all damages besides.
    In the present case, it was said, it was almost impossible that the rice could have been damaged or injured after it came into the defendant’s possession; as the vessel was a fine dry airy one, had met with no bad weather, and wap only eight days on the passage, so that it was fair to conclude that the rice must have been in a damp or moist condition, when it was put into the casks at Mr. Bowman's plantation; or received some injury afterwards, before it1 was shipped for Alexandria. That this presumption was so strongly inferable, that it was difficult to draw any other conclusion.
    Tor the plaintiffs, in reply, it was admitted, that the interest and credit of the country did depend a good deal on the care and circumspection of the planters in putting up their staple commodities in good and merchantable order for shipping off to a foreign market, and par», Ocularly rice, and that if it turned out otherwise, the planters ought to bear the loss ; but they contended, notwithstanding all that had been said to the contrary, that the rice did, in this case, come to Charleston in good order, and was delivered in good order; and that the evidence adduced on the part of the plaintiffs was clear and explicit on this subject.
    That it was the duty of the defendant to have examined it before he shipped it ; and it was every day’s practice for purchasers of rice to do so ; that there were coopers of skill and judgment on every wharf in the city, whose duty and busines it was to make such examination, and to put the casks in good order, before they were shipped ; and ii was the defendant’s own fault that this was not done, and he has himself to blame for not having it examined before lie shipped for Alexandria. But the plaintiffs’ counsel in» sisted that the great evil of the principie contended for by the defendant, consisted in making the examination or inspection of the condition and quality of rice at a foreign port ¡ and setting up that as the rule, by which its soundness was to be tested, instead of making such examination at the place where it was shipped.
    That flour, and all the great staple articles sent abroad from the northern, or other states, were all inspected at the port-of delivery before shipping ; and so ought the rice of Carolina in like manner to be examined before it was. •shipped.
    That a contrary principle, if it was ever introduced into this country, would place the Carolina planters at the mercy of the shippers and ship-masters, and their correspondents abroad in other countries, for which reasons it ought to be laid down as a general and governing rule in all cases, that the staple commodities of this country should be examined here before they were shipped, otherwise to be taken at the .risk of the shinper.
    
      
      JOessanssure, for plaintiffs. Pringle, for defendant*
   '^'^e Judges,

after duly considering this motion, observed, that in a case like the present one, where the scales of evh r ’ dence were so equally poised, it was difficult, if not impossible, to say which side ought to preponderate, without doing manifest injustice to the other, upon the ground of evidence. But by resorting to principles, they thought they were justifiable in directing a new trial, in order that this case should have a fuller investigation.

That the principle contended for on behalf of the plaintiff", was a wise and beneficial one, both to the commercial and planting interests of Carolina, namely, that the staple commodities of the country should be examined or inspected before shipping, by which means the credit of the planters raising those articles would be kept up and maintained, and frauds upon purchasers would be prevented ; which practice was not only warranted by the usage of trade in this port, but also by the general custom in most of the other parts of the world. Secondly, that where it was usual to examine rice or any other staple article before shipping, and the purchaser refused or neglected to take that precaution, he thereby tacitly admits the quality to be good, and takes the risk upon himself. And, lastly, that the inconveniences to commerce in general would be less by observing those rules, than by following the mode pursued in the present case, of examination at the port of delivery, where only one of the parties, or his agent, was present at the examination 5 and that, too, after every expense had been incurred in sending it on to a foreign market.

For these reasons, and in order that these points, which were of general concern, might be more fully argued and investigated, the rule for new trial was made absolute.

All the Judges present.

N. B. All these points were again very fully and ably argued on the second trial, when there was a verdict for the plaintiffs for the full amount of their demand, on the ground that it was the defendant’? own fault that the rice had not been fully examined before it was shipped, and that by such neglect he admitted the quality of the rice to be merchantable and in good order at the time of shipping, as it was proved that he had only two casks opened, and that he was so well satisfied with them, that he went without further examination and made the purchase of the whole.  