
    Thomas O'Neal, defendant below, appellant, v. James W. Bacon, plaintiff below, respondent.
    It is no defence to an action between the original parties on a promissory note given on a sale of goods, that the goods turned out to be of no value, by reason of which the consideration wholly failed, without proof of an express and fraudulent warranty of the goods, or fraudulent representations as to their value by the plaintiff, in the sale of them to the defendant.
    What will constitute an express warranty ?
    Appeal from a judgment recovered by the plaintiff below before a justice of the peace, tried before Milligan and Houston, Justices. The pronarr was in assumpsit on a promissory note for $77.48, from the defendant to the plaintiff below. The usual pleas 'were entered, with notice to the plaintiff that the defendant would insist on a failure of the consideration of the note at the trial. The consideration for the note was a quantity of lime and Bolivian guano, which the defendant had purchased of the plaintiff, who was a general trader in those articles. The price of the lime had been paid, and the plaintiff admitted that the defendant was entitled to a credit on the note for it, but the guano had proved to be of no value, and the defendant refused to pay for it. It was proved that the plaintiff had afterwards admitted that he knew that the guano had been of no value to the defendant, and that he had derived no benefit from the use of it; but he denied at the same time that he had warranted it, or that he knew at the time that he sold it that it was a worthless article; on the contrary, he believed, from the representations which he had received in regard to it when he bought it, that it was a good and valuable fertilizer, and had so stated to persons to whom he had sold it.
    
      W. Saulsbury, for the plaintiff:
    There was no proof of
    fraud, or fraudulent misrepresentations, on the part of the plaintiff, in the sale of the article, or that he knew that it was not good, or was of no value when he sold it; and there was no evidence that he warranted it, or employed any terms in speaking of it or recommending it which could be construed to import a warranty. Because if he had, in good faith at the time, merely expressed an opinion as to the merits and quality of it, and his belief that it was a good article, it would not amount to a legal warranty of it. Story on Contr., sec. 828. And that, without proof of such fraud or warranty, it was not competent for the defendant to show, and he could not rely on a. partial failure of the consideration of the note; and, under the issues joined in the case, it was no defence to show a total failure of the consideration. Chit. on Bills, 72, 77; 2 Selw. N. P. 81, 657; 4 Wend. 489.
    
      C. M. Cullen, for defendant:
    Upon the sale of every article for a valuable consideration, the law implied that it was merchantable and of some value, and, if sold for a particular purpose, that it was fit for that purpose. Story on Sales, 315; 2 Selw. N. P. 180; 15 Eng. C. L. R. 529; 40 Eng. C. L. R. 371; 42 Eng. C. L. R. 452. When the action was between the .original parties to the note, and there was any fraud or suspicion of fraud, or misrepresentation, with a view to deceive the maker of it, it was a good defence to the action upon it. Chit. on Bills, 68. No particular form of words was necessary to constitute a warranty, and the word warrant need not be used; but whether a statement was a warranty, or only a representatian, was a question for the jury. 2 Selw. N. P. 180. Where there was any deception or misrepresentation made with a view to induce the purchaser to buy, a partial failure was always a good defence to an action on a promissory note, as between the original parties to it; and, without such misrepresentation, a total failure of consideration was always a good defence, as between the same parties. Story on Contr. 484; Story on Sales, secs. 408, 428.
   The Court,

Houston, J.,

charged the jury: That, as a promissory note imports prima facie an adequate consideration; or, in other words, the law presumes, on proof of the making and issuing of such a note, that it was given for a valid and valuable consideration, it was incumbent upon the defendant to rebut this presumption by showing the contrary, in order to defeat the action and entitle himself to the verdict. In an action between the original or' immediate parties to a promissory note, it was always allowable for the defendant to do this, by showing the want of any consideration for it at the time, or the total failure of it after it was given. The defence relied on in this case was the subsequent failure of the consideration for which the note was given, and for which it was now put in suit; for it could not be said to be a note without any consideration in its inception. The lime, about "which there is no dispute, it is admitted, has since been paid for, and the balance demanded upon the note was the price to be paid for the guano, which the defendant alleges, and which the plaintiff, we believe, does not deny, afterwards, on its application to the defendant’s land, turned out to be of no value whatever to the defendant as a fertilizer, for which purpose the plaintiff sold and the defendant bought it. Of course it was, in the nature of things, incapable of being returned to the plaintiff. But whether in this case this is such a total or entire failure of the consideration for which the note as it is now presented to us was given, as will constitute a bar to the action and entitle the defendant to a verdict, will depend upon two facts, which the jury must consider and determine, either of which, if found against the plaintiff, will be sufficient to defeat the action. And the first is, whether the plaintiff', at the time of the sale of the guano to the defendant, expressly warranted it to be a good or valuable commodity as a fertilizer, knowing at the time that it was useless, or of little or no value for that purpose. If so, then he was not entitled to recover. But, admitting that he did not so warrant it, the second question is, whether the plaintiff fraudulently recommended and misrepresented the quality of the article to the defendant, and falsely stated it to be good or valuable, knowing at the time that it was worthless, or of little or no value, and by means of such false and fraudulent representations prevailed upon the defendant to purchase it, and obtained the note in question for it; then, in that event, also, the plaintiff would not be entitled to recover; but in either of these events, the verdict should be for the defendant, because fraud vitiates all contracts, and it is a good defence to an action on a promissory note between 'the immediate or original parties to it, that it was obtained by fraud or fraudulent representations. Should the opinion of the jury, however, be against the defendant on both of these questions, then their verdict should be in favor of the plaintiff.

As to what will constitute an express warranty, the Court would merely add that, in order to warrant a thing, even expressly, it is not necessary that the seller should use that identical term, for no form of words was necessary to constitute a contract of warranty. Any stipulation made and received with that view, or any assurance or declaration which the seller utters at the time, with the intention of warranting or binding himself, that the quality or condition of the article is such as is represented, will constitute even an express warranty, whether the word “ warrant” be used or not. But a simple affirmation that a thing is good or sound will not, unless it was so intended and understood by the parties at the time; and no general praise, or commendation, or opinion, or belief expressed in good faith, and without an intention to warrant, can be so considered. Where the buyer and seller have equal knowledge or opportunities of knowing the properties or qualities of the thing in question, and each relies on his own judgment and observation in regard to the matter, each deals on the strength and basis of his own opinion; and there is no warranty, either express or implied, involved in the transaction.

W. Saulsbury, for the plaintiff.

C. M. and E. D. Cullen, for defendant.

Verdict for defendant.  