
    *Mason v. Chappell.
    April Term, 1860,
    Richmond.
    1. Sales — What Necessary to Constitute Fraud. — To constitute fraud in a sale, it is not sufficient that there shall he false representations by the vendor; but he must know at the time he makes them, that they are false ; or at least he must make them as statements of facts within his own knowledge, when he has no knowledge of the subject.
    2. Same — Express Warranty — What Constitutes.— Any affirmation of the quantity of the article at the time of the sale, intended as an assurance to tHe purchaser of the truth of the fact affirmed, and acted on by the purchaser, is an express warranty. But no affirmation, however strong, will constitute a warranty, unless it was so intended.
    3. Same —Specific Article — Implied Warranty.— Where a specific article is ordered and furnished, though the purchaser states the purpose to which he intends to apply it, there is no implied warranty on the part of tile vendor that it is suitable for tile purpose ; and be will not, in tlie absence of fraud or an express warranty, be licit! liable, .However unfit and defective it may turn out to be.
    4. Game -Fusiore of Article Sold to Answer Represen tatton -Presumption. -The mere fad that an article sold does not answer to the representation made respecting it, is not ground to assume that it was not the genuine article sold, so as to entitle the plaintiff: to recover for a failure by the vendor to comply with his contract..
    5. .‘hi: no -Article Worthless — liig’ht to Recover Price.— The mere fact that an article proves to be worthless, will not entitle the purchaser to recover back the price paid.
    This was an action on the case in the Circuit court of Alexandria county, by Richard C. Mason aguinst P. Stockton Chappell. The declaration contained two counts. The first was for the breach of a warranty, upon the sale by the defendant to the plaintiff of one hundred and fifty barrels of a manure called “Chappell’s fer-tiliser ’ the second was the common money counts in assumpsit. The plaintiff alleged that the article received by him was wholly worthless, and therefore he claimed to recover back the whole price, four hundred and sixty-three dollars and fifty cents, paid by him.
    *Upon the trial the defendant demurred to the evidence; and the plaintiff joined therein. And from the evidence it appeared, that some time in September or October 1852, the defendant wold to the plaintiff one hundred and fifty barrels of an article manufactured by the defendant, called “Chappell’s fertilizer,” to be used on the plaintiff's land, at the price of four hundred and sixty-three dollars and fifty cents; and that the defendant, at the time of the sale, recommended highly said article as a manure, and said that on its application to poor lands it would produce good crops. That defendant further said to the plaintiff, “I wish you had some very poor land on which to appljr it;” to which plaintiff replied, ‘ ‘I can accommodate you in that particular exactly.”
    The plaintiff also introduced in evidence an advertisement of the defendant in the Alexandria Gazette, with several letters thereto annexed, in which the value of the fertilizer as a manure was set forth; and also a pamphlet describing the article, and directing the mode of its use; and this was accompanied with numerous letters from persons who had used the article, the most of whom commended it highly; and among Ihese was a letter of Commodore Jones, an acquaintance and friend of the plaintiff’.
    It was further proved by the plaintiff, ihat the said fertilizer was well applied to his land, and wheat sown where the fertilizer was applied; that the crop produced on said land was a very indifferent one, and not so good as that produced on the same land two years before; that it was in fact the worst crop the witnesses ever saw on the land, and that they had long been acquainted with it, being near neighbors of the plaintiff.
    The court sustained the demurrer, and rendered a judgment for the defendant. And thereupon Mason applied to this court for a supersedeas ; which was awarded.
    *Green, for the appellants;
    The evidence, spread out in the demurrer to evidence, most amply sustained (according to the principle established by Green v. Judith, 5 Rand. 1, and the other authorities of that class, now become very numerous) the several allegations, on the part of the plaintiff, respecting his purchase of the (real or pretended) manure in question, his payment of the purchase money for the same, and the utter worthlessness of the article, upon a perfectly fair trial of it; leaving open to debate no points which it would not be inexcusable to discuss but one, namely, whether other facts, necessary for maintaining the action, in connection with these, are sufficiently made out. This enquiry I shall present under the several aspects following:
    1. It is not necessary to make out any other facts; because those already stated establish a total failure of the consideration upon which the plaintiff had paid his money; and thus entitle, him to recover it back, under the count for money paid, or under that for money had and received. On this trite topic Í forbear to cite any authorities.
    2. If this be not so, still the plaintiff was entitled to recover upon additional facts, which a jury would have been fully justified in finding from the evidence, and which therefore the court below was bound to consider as established. As against the defendant (no matter what the real truth of the matter may be), we must take it — from his own declarations to the plaintiff — from his written communication to him — from his printed advertisement referred to in the correspondence between them which led immediately to the purchase, and from the pamphlet, bearing in like manner upon the transaction — from each one, and from all of these, we must take it, that • the article known by the name of “Chappell’s fertilizer,” which the defendant professedly sold to the plaintiff, would, if it had 'x'been furnished genuine, have accomplished all the results, or at least, the most important of them, or at the very least, some of them, which the defendant held out in prospect to the plaintiff, and which constituted the sole inducement to the latter for laying- out his money in the purchase. In this point of view, the things published by the defendant, in the shape of certificates from others, are important evidence against hinl, whether they be real or fictitious; he cannot deny their reality or their truth, after displaying them to the public and to the plaintiff in the manner he did; and therefore, as against him, they (besides his own declarations) establish, that, if the article, furnished under that name, failed upon a fair trial to accomplish the results ascribed by them to it, at least in some good measure — as the article actually furnished by the defendant to the plaintiff did fail — it must be because the article so furnished was not genuine; at least, that it was not of good quality, probably because the ingredients used in making it were spurious or damaged, or because the article itself, after it was manufactured, had become damaged and worthless. On all these points, the court was bound, upon the demurrer to evidence, to make the strongest inferences a jury could make against the demurrant; and I submit that these now stated are not only rational, but moreover, the only fair ones. If so, the defendant violated the warranty which the law implies in all such cases, and which the declaration in this case alleges, that the article sold and delivered was genuine and of good quality. Laing v. Fidgeon, 4 Camp. R. 169; S. C. 6 Taunt. R. 108; Jones v. Bright, 5 Bingh. R. 53S; S. C. 3 Moore & Paine R. 155; Brown v. Edgington, 2 Mann. & Grang. 279; S. C. 2 Scott’s N. R. 496; Shepherd v. Pybus, 3 Mann. & Grang. 868; 4 Scott’s N. R. 434; Gallagher v. Waring, 9 Wend. R. 28 ; Howard v. Hoey, 23 Id. 350; Camochan v. Gould, 1 Bailey’s R. 179; Barnett v. Stanton, 2 Alab. R. 181. *3. Moreover, there are other additional facts in this case, which in like manner the court was bound to consider as established, that make out against the defendant a case of express warranty. These I shall not here give trouble by pointing out more particularly than is indicated by allusions in the statement which I subjoin of legal propositions bearing upon the point. On this head it has long since been settled, that in order to constitute such a warrant}-., the word “warrant” need not be used, nor any word of precisely similar import (Cave v. Coleman, 3 Mann. & Ryl. 2; Salmon v. Ward, 2 Carr & P. 211; Wood v. Smith, 4 Carr & P. 45; S. C. 5 Mann. & Ryl. 124; Breemen v. Buck, 3 Verm. R. 53; Roberts v. Morgan, 2 Cow. R. 438; Buckman v. Haney, 6 Eng'l. Ark. R. 339) ; that any representation or affirmation concerning the quality or properties of an article sold, put forward, not as matter of opinion or belief merely, but for the purpose of assuring the buyer as to the truth of what is so represented or affirmed, and of inducing him to make the purchase, is, if accordingly received and relied upon by the purchaser, an express warranty (Hill-man v. Wilcox, 30 Maine R. 170; Whitney v. Sutton, 10 Wend. R. 413; Osgood v. Lewis, 2 Harris & Gill 495; Kinley v. Fitzpatrick, 4 How. Miss. R. 59; McGregor v. Penn, 9 Yerg. R. 74; Hawkins v. Berry, 5 Gilman 36; Randall v. Thornton, 43 Maine R. 230; Jones v. Bright, 2 Ross. Lead. Cas. 360, 361; Sheppard v. Pybus, 42 Eng. C. L. R. 452; Reese v. Williams, 16 Ill. R. 69; 2 Rob. Pr. 355 to 359, 359 to 363) ; and that the question, whether such a representation or affirmation was so advanced on the one side, and so accepted on the other, is a question of fact for the jury, which ought to be left to their determination, and concerning which their verdict will in these cases, as it will in all others,, not be set aside unless manifestly contrary to a correct finding upon the evidence. Power v. Barham, 4 Ad. & EU. 473; S. C. 7 Carr & P. '"356; Chapman v. Murch, 19 Johns. R. 290; Duffee v. Mason, 8 Cow. R. 25; Cook v. Moseley, 13 Wendell 277; Foggartv. Blackweller, 4 Ired. Rep. 238. And from these now perfectly settled principles the doctrine has been logically deduced, which in a recent case has been asserted, namely, that where the vendor’s statements form the sole basis (as in this case they did) of the sale, that his declarations shall ordinarily be regarded as a warranty of what they import. Beals v. Olmstead, 24 Verm. R. 114.
    Brent and Kinzer, for the appellees:
    The ancient rule of the common law, caveat emptor, is the law of this state. By this law the vendor is not bound to answer to the vendee for that goodness or quality of the articles sold unless he warrants them to be good, or unless he knew them to be otherwise; in other words, there must be either a warranty of fraud to make the vendor answerable for the quality or goodness of the articles sold. 2 Kent Com. 478; Wilson v. Shackelford, 4 Rand. 5.
    In the present case there is no imputation of any intention on the part of the defendant to deceive or defraud the plaintiff. °
    1. To enable the plaintiff to recover, the evidence must show a warranty, either express or implied. We maintain that neither can be drawn from the evidence. It is ■ conceded that no precise words are necessary to create a warrant}-; but every affirmation of goodness or quality is not a warranty. To constitute a warranty, the intention of the parties must be looked at; the affirmation ■ or representation made by the vendor at the time of sale to constitute a warranty must have been so intended by him, and relied on as such by the vendee. Otherwise every such affirmation will be treated as simplex commendatio, and therefore not binding.
    *The following cases illustrate this principle: Chandelor v. Lopus, 2 Croke’s R. 2; Jackson v. Wetherill, 7 Serg. 6 Raw. 482; McFarland v. Newman, 9 Watts’ R. 55; Swett v. Colgate, 20 John. R. 196; Seixas v. Wood, 2 Caines’ R. 48.
    The case of Prideaux v. Bunnett, 1 J. Scott, it. S., 613; S. C. 87 Eng. C. L. E. 613, would seem to rule the present case. That was an action to recover the price of an article called “Prideaux’s patent self-closing valve,” for which plaintiff had a patent. The plaintiff, as did Chappell, issued cards and circulars, higlfiy laudator}-of the value and utility of his valves. The defendant returned to the plaintiff one of these circulars with a written order, “Please prepare its a smoke-preventing- valve,” &c. The plaintiff sent one of his valves, but it was found not to be of any use for the purpose for which it was designed. On being sued for the price, the defendant relied on the statements contained in the circular which had been sent to him by the plaintiff - -to the effect that the patent article would consume smoke, and effect a considerable saving in fuel — as amounting to a warranty that it should be fit for the purpose to which it was to be applied ; it was held that no such warranty could be implied, and the plaintiff was entitled to recover his price.
    2. Was there an implied warranty? The plaintiff maintains, that where an article is ordered to be manufactured for a particular purpose, the law implies a warranty, that it is tit for that purpose. This rule seems to be of modern origin. Down to the pe.riod of the decision in Parkinson v. Dee, 2 East. R. 314, year 1802, the common law rule of caveat emptor was maintained in all its integrity. The doctrine of implied warranties was resisted as an innovation sought to be borrowed from the civil law.
    It appears, ho-wever, that it was at length engrafted on the common *law rule. In Hibbert v. Shee, 1 Camp. R. 113, year 1807, and in Gardner v. Graj-, 4 Id. 144, Eord Ellenborough recognized the principle, that a sale by sample implied a warranty, that the bulk of the goods corresponded in quality with the sample. And in a great number of subsequent cases (many of which are cited by the plaintiff in his petition), the English common law courts have fully established the principle of Implied warranty as above laid down. But this principle has been applied to cases where warranted by the usage of trade, as in Jones v. Bowden, 4 Taunt. R. 847; to sales by sample, where the difficulty or impossibility of inspecting the goods at the time of sale has been said to justify a presumption of warranty, as appears from the cases cited in the petition; Gallagher v. Waring, 9 Wend. R. 20; Howard v. Hoey, 23 Wend. R. 351; Barnett v. Sianton, 2 Alab. R. 181; Camochan v. Gould, 1 Bail. R. 179; and to cases where an order was given for an imdescribed and unascertained thing, stated to be for a particular purpose, which the manufacturer supplies, as in the cases cited by plaintiff; Jones v. Bright. 3 Moore, p. 155; Brown v. Edgington, 2 Man. & Grang. 279.
    But later authorities seem to place the authority of the class of cases above referred to upon a principle wholly distinct from and independent of the doctrine of warranty. In Chanter v. Hopkins, 4 Meeson & Welsh. 399, Lord Abinger regards this principle as applicable to executory sales or contracts where the goods bargained for or ordered do not correspond in specie with those delivered. A warranty is a jrart of the contract, yet collateral to the main object of it, and the breach of such a contract, a breach of warranty. But where a party nndertakes to sell or furnish a particular article, and furnishes a different one, it is a breach of contract, as where a man agrees, to sell peas and furnishes beans, and where a man orders ^sheathing copper,, and does not receive such. In such-cases Ihe contract is not complied with. In such cases, .therefore, the vendee must seek to recover damages on the ground of a failure of the article delivered to correspond with the article sold, and he must declare on the contract as executory, and not as executed, and aver that the vendor has failed to comply with the stipulations of his contract by delivering a different article. In declaring on a warranty on an executed contract of sale, it is admitted that the right of property in the article sold has passed to the vendee, and in such case nothing is better settled, than that there can be no recovery unless there is fraud, or express warranty. 1 Smith’s Lead. C. 222, 226. In the present case the defendant sold and the plaintiff bough! “Chappell’s fertilizer.” “Chappell’s fertilizer,” plaintiff avers in his first count, was delivered to him, but he avers that it was unfit for the purpose for which it was sold and delivered. In this view of the case, he cannot recover unless there was an express warranty or fraud.
    It cannot be pretended that the plaintiff did not receive Chappell’s fertilizer; for the plaintiff’s witness proved “that one hundred and fifty barrels of Chappell’s fertilizer were delivered to him.” Even if the fertilizer had not been delivered, hut another and different article, still the plaintiff could not recover on the allegations of his declaration.
    But the doctrine of implied warranty has never been held to apply to the case of a sale of a known ascertained article. And in addition to the case of Prideaux v. Bun-nett, we cite Chanter v. Hopkins, 4 Mees. & Welsh. 399; Olivant v. Bay ley, 5 Ad. & El. 288; S. C. 48 Eng. C. L. R. 287; Camac v. Warriner, 1 Man. Gr. & Scott, 356; S. C. 50 Eng. C. L- R. 354.
    3. Even if there had been a warranty, the plaintiff has not shown any breach thereof. The jffaintiff only proved that the fertilizer was well applied to his land, *and that his crops were indifferent. This alone surely would not authorize any jury to infer therefrom that the fertilizer furnished was not of good quality and of no value.
    The plaintiff should have also shown that the directions given for the use and application of the fertilizer, had been followed out by him. If we are to presume a warranty from the printed advertisement and pamphlet of the defendant, such warranty 'should be qualified or limited by the in■structions contained in the pamphlet, and said to be essential “to secure the full effects of the manure.” They should be treated as a part of the warranty; and if so regarded, it was at least incumbent on the plaintiff to show that he had observed them. Every description of fertilizers will sometimes fail. The soil may not have been properly prepared. The fertilizer may have been improperly or injudiciously applied. The season may have been unpropitious. On these points the evidence is dumb; and no attempt was made by the plaintiff to exclude the presumption that the failure may have arisen from extrinsic causes. In Jones v. Bright the copper was assayed, and it was shown that its decay arose from intrinsic defects, occasioned by want of skill in its manufacture, or from the use of improper materials.
    In Brown v. Edgington evidence was given tending to show that the rope had been badly manufactured, and was of inferior materials.
    4. The plaintiff cannot recover under the second count in the declaration, on the ground of “a total failure of the consideration.”
    We have before shown that it is too late for the plaintiff to say that he did not receive “Chappell’s fertilizer. ” , And it seems well settled that a breach of warranty does not entitle a purchaser of a specific article, which has been accepted by him, to rescind *the contract of himself, and bring an action to recover the price, but he must sue on his warranty. Powell v. Wells, 2 Cowp. R. 818; Weston v. Downes, 1 Doug. R. 23; Payne v. Whale, 7 East’s R. 274.
    Even admitting that the plaintiff did not in point of fact get “Chappell’s fertilizer,” but another article; yet having received it and used it, he could not sue for the recovery of what he paid under this count, for, there being a part execution of the contract, the parties cannot be placed in statu quo. Hunt v. Silk, S East’s R. 449.
    
      
      Sales — Fraud—Scienter.—Whether the imputation of fraud be suppressio veri, or suoaesiio falsi, the case of Mason v. Chappell, 15 Gratt. 582, settles the law in Virginia, that the scienter must be shown. Proctor v. Spratley, 78 Va. 267, 268, citing the principal case. See the principal case also cited and approved in Crislip v. Cain, 19 W. Va. 480.
    
    
      
      Same — Express Warranty — What Constitutes. — The rule laid down in the second headnote as to what constitutes an express warranty has met with approval in Herron v. Dibrell, 87 Va. 296, 12 S. E. Rep. 674; Milburn Wagon Co. v. Nisewarner, 90 Va. 717, 19 S. E. Rep. 846; Reese v. Bates, 94 Va. 329, 26 S.E. Rep. 865; Crislip v. Cain, 19 W. Va. 481, 482, 543.
    
    
      
      Same — Specific Article — Implied Warranty. — See Gerst v. Jones, 32 Gratt. 522, where the principal case is cited and approved as to the proposition laid down in the third headnote. But, in this case (Gerst v. Jones), the transaction was not a sale of an existing chattel selected by the purchasers, but an executory contract to manufacture and deliver, from time to time, as they might be needed, a number of tobacco boxes for a particular purpose, Jenown to the seller.
      
      
        The court said that the seller, in undertaking to furnish the boxes, impliedly agreed they should be reasonably fit for that purpose; that, if the purchasers had gone to the factory of the seller and themselves selected certain boxes, such as they believed would answer their purpose, the seller would not be liable however worthless the boxes might prove to be; but that the purchasers made no selection, they relied upon the skill and judgment of the seller, as a manufacturer, to furnish an article lit for the purpose for which they were ordered ; and. therefore, since the boxes proved unfit for that purpose, the seller was liable In damages for the injury caused thereby.
    
   ROBERTSON, J.

It is well settled law, in this state, that in a sale of personal chattels a full price does not import a warranty as to quality. The vendor is not liable for defects in quality unless he warrants, or makes some fraudulent representation, or, knowing of a latent defect, omits to disclose it.

It is unnecessary to enquire into the correctness of the position taken by the plaintiff’s counsel, that a recovery for a fraudulent representation may be had under the money counts, because there is no evidence in the case tending to show fraud. To constitute fraud the scienter is necessary. It is not sufficient to shqw that false representations were made by the vendor; it must also be shown that, at the time he made them, he knew them to be false; or, at the least, that they were made as statements of facts within' his own knowledge, when in truth he had no knowledge whatever upon the subject.

Here, there is no evidence that any latent defect, known to the vendor, was concealed by him; or that he did not honestly believe that the representations he made were true. If therefore he can be held liable at all, it must be for a breach of warranty, or for a failure to comply with his contract.

To constitute a warranty, no particular form of expression *'is required; an apparent intention to warrant is sufficient. It is enough, if the words used import an engagement on the part of the vendor that the article is what he represents it to be. Any distinct affirmation of quality made by the vendor, at the time of the sale, not as an expression of opinion or belief, but as an assurance to the purchaser of the truth of the fact affirmed, and an inducement to him to make the purchase, is, if accordingly received, and relied on, and acted upon by the purchaser, an express warranty. But no affirmation, however strong, will constitute a warranty, unless it was so intended. If it is intended as a warranty, the vendor is liable, if it turns out to be false, however honest he may have been in making it: but if it is intended as an expression of opinion merely,' or as simple praise or commendation of the article, he is not liable, unless it can be shown that he knew at the time that it was untrue. And in that case, it is inaccurate to say that he is liable for a breach of warranty. His liability arises from the fraud of which he was guiltj’, and should be enforced in an action on the case for deceit.

It is often very difficult to determine whether an affirmation was intended as a warranty, or as a mere expression of opinion. But in this case there is no such difficulty. It is clear that there was no intention to warrant. All that the defendant said and published amounted to no more than simple praise or commendation of the article. The plaintiff too seems not to have relied so much upon the representations of the defendant, as' upon those made by Commodore Jones, and others who gave’certificates.

But it is insisted that the defendant is liable upon an implied warranty.

if the plaintiff, relying on the defendant’s skill and judgment, had applied to him to furnish a manure which would produce such effects as are attributed to *“Chappell’s fertilizer,” without specifying what particular kind of manure he wanted, and the defendant had accordingly furnished an article, which, instead of producing such effects, proved to be entirely worthless, there would be good ground for the proposition that there was an implied warranty from which liability would arise.

If an order is given for an undescribed, unascertained thing, stated to be for a particular purpose, the vendor will be held liable, unless it answers, in a reasonable degree, the purpose for which it was purchased. But where a specific article is ordered and furnished, the law is well settled that, although the purchaser states the purpose to which he intends to applj’ it, there is no implied warranty on the part of the vendor that it is suitable for the purpose ; and he will not, in the absence of fraud, or an express warranty, be held liable, however unfit and defective it may turn out tobe. Chanter v. Hopkins, 4 Mees. & Welsh. 399; Olivant v. Bailey, 48 Eng. C. L. R. 287; Prideaux v. Bunnett, 87 Eng. C. L. R. 613.

In the case of Chanter v. Hopkins, Lord Abinger says, “A good deal of confusion has arisen in many cases on this subject, from the unfortunate use made of the word ‘warranty.’ Two things have been confounded together. A warranty is an express or implied statement of something which the party undertakes shall be part of a contract; and though part of the contract, yet collateral to the express object of it. But in many of the cases, some of which have been referred to, the circumstance of a party selling a particular thing by its proper description, has been called a warranty, and a breach of such contract a breach of warrantjr; but it would be better to distinguish such cases as a non-compliance with a contract which a party has engaged to fulfill; as, if a man offers to buy peas of another, and he sends him beans, he does not perform *his contract, but that is not a warranty: there is no warrantj- that he should sell him peas; the contnict is to sell peas, and if he sells him anj’ thing else in their stead, it is a non-performance of it. So if a man were to order copper for sheathing ships- - that is, a particular copper prepared in a particular manner — if the seller sends him a different sort, in that case he does not complj’ with the contract: and though this may have been considered a warranty, and may have been ranged under the class of cases relating to warranties, yet it is not properly so. How, in the present case the question is, whether or no the order has not been complied with in its terms.” 4 Mees. & Welsh. 404-5.

So in this case, the only proper enquiry is, has the plaintiff’s order been complied with according to its terms, by furnishing him with “Chappell’s fertilizer” — amanare which was well known by that name.

There is no averment in the declaration that a different article from that ordered by the plaintiff was furnished. On the contrary, the allegation there is, that “Chappell’s fertilizer” was bought and delivered, and that it was warranted by the defendant to be of good quality, and reasonably fit for the purposes of the plaintiff; and damages are claimed for a breach of that warranty. The testimony shows that the article called “Chappell’s fertilizer” was delivered by the defendant to the plaintiff: and there is nothing in the record from which it can be inferred that the precise article known by that name was not furnished, except only the fact that the effects resulting from its use, have not been such as “Chappell’s fertilizer” was represented to produce, and may perhaps have generally produced.

It is argued that this of itself is sufficient to show that a spurious article was furnished. That, as against the defendant, it must be taken as true that the article *known by the name of “Chappell’s fertilizer,” which the defendant professedly sold to the plaintiff, was really as valuable as it was said to be, and would, if it had been furnished genuine, have accomplished the results, or at least some of them, which it was said that it would accomplish ; and that the article furnished under that name, having, upon a fair trial, failed to accomplish any of these results, was not genuine and unadulterated, but was, on the contrary, spurious, adulterated, or damaged to such an extent as to be not only not of reasonably good qualitj', but altogether worthless.

If this argument be sound, then the cases which have been cited, and all others of the same class, have been incorrectly decided; for it was as applicable in them, as it is in this case. But its unsoundness is manifest. To assume that an article is not genuine because it does not answer to the representations made respecting it, in effect converts mere representations into warranty, and destroys the rule that the vendor is not responsible for the truth of such representations, unless they are made fraudulently. To hold that the representation gives a right to infer, if the article does not come up to it, that it is spurious, adulterated, or damaged; and to make the vendor liable for not furnishing a genuine, unadulterated, undamaged article, is obviously the same thing in substance as to make him liable rnerelj’ because the representation turns out to be untrue.

There is then no reason to doubt that Ihe plaintiff got the identical article thai he ordered; and that he occupies “the position of a man who has had the misfortune to order a particular chattel, on the supposition that it will answer a particular purpose, but who finds that it will not.”

But it is insisted that if the plaintiff has no other right to recover, he can do so under the money counts, "because of a total failure of the consideration for which he paid his money.

The answer is, that, if he can recover in any mode, upon such a failure of consideration as has been shown to exist in this case, it follows, that whenever an article is bought under the belief (however it may have been induced) on the part of the purchaser, that it is sound and of good quality, and it turns out to be in fact worthless, the rule that the vendor is not liable except for warranty, or for fraudulent representation or concealment, would be entirely abrogated; for, to avoid its effect, the purchaser would only have to declare as for a total failure of consideration.

I can find no ground upon which 1he plaintiff is entitled to relief, even conceding that upon the demurrer to evidence the court should infer that the article purchased by him was intrinsically and wholly worthless — a concession, the propriety of which may well be doubted; for it is by no means certain that this is such a reasonable inference from the testimony that the court ought to make it.

It seems to me to be clear that the judgment should be affirmed.

The other judges concurred in the opinion of Robertson, J.

Judgment affirmed.  