
    Edmund T. Hastings versus William Lovering, Junior.
    Xu a sale note the words, u sold A 2000 gallons prime quality winter oil,” amount to a warranty that the article sold agrees with the description.—So of the same words m a bill of parcels.
    
    It is not a material variance, to declare on such a contract as an undertaking, that iC the oil was of a good and superior quality, to wit, prime quality winter oil.”
    A factor having given such note and bill of parcels to the vendee, without designating that he acted as an agent, was held to be personally liable, although he had settled with his principal before notice of any breach of the warranty, and although, before the oil was delivered and the bill of parcels made out, the owner of the oil had informed the vendee that it was sold on his account, and before the action was brought the agent also informed him of the same fact;
    The plaintiff declared in assumpsit, for that whereas, in consideration that he would buy of the defendant 2000 gallons of winter oil of prime quality, the defendant “ undertook and faithfully promised him, the said Hastings, that the said on was of a good and superior quality, to wit, prime quality winter oil,” he, the plaintiff, did buy the 2000 gallons, yet that the oil was not prime quality winter oil.
    At the trial, which was before Parker C. J., the contrac* of warranty was proved by a writing in the following terms : “Boston, April 11th, 1822. Sold Mr. E. T. Hastings two thousand gallons prime quality winter oil, hlf. in tierces hlf. in hhds. at eighty cents per gallon, six mos. credit, deliverable within ten days, credit commences on delivery. William Lovering Jun.” — and by a bill of parcels in which the oil was called “ prime quality winter sperm oil.”
    It was contended on the trial, that these writings did not prove an express warranty, and that if they did, there was a variance proved by them from the contract of warranty set forth in the declaration. These questions were reserved for the consideration of the whole Court.
    At the time of the execution of the contract of sale the oil was at Nantucket, where the owner lived. Before it was delivered he was in Boston, and in a conversation with the plaintiff, informed him that he was the owner of the oil, and that the defendant had sold it for him. And although the papers above mentioned were signed by the defendant personally, yet he being in fact a commission merchant, and » having made this sale on account of the owner of the oil, and having settled his account and remitted the proceeds to his principal before any notice of the breach of the warranty at the sale,'it was contended by his counsel, that he was not answerable, but that the plaintiff should look to the principal for the damages, if any were sustained, especially as the defendant had given notice of these facts to the plaintiff before this action was commenced. But the Chief Justice instructed the jury, that the defendant was personally liable, notwithstanding the above facts, and that the knowledge of the plaintiff, that the defendant was a commission merchant and that the oil was consigned to him as such, did not affect his liability, he not having disclosed at the time, nor signified by the form of the contract, that he was acting for another and not for himself.
    
      A verdict was found for the plaintiff. If any legal objection to his recovery arose from these facts, the objection was to be open to the defendant.
    The cause was argued on a motion for a new trial, first in March, and again, on the question of variance, at an adjourned session in July.
    
      Shaw and Gay in support of the motion. The contract signed by the defendant and the bill of parcels contained a description only of the article sold, and not a warranty. A warranty is made at the time of a sale ; but the writing of the 11th of April is executory on the face of it. The breach of it would be a non-delivery of the oil, not a delivery of oil of a wrong quality. This is not an action for non-delivery, as it should have been if it were founded on the executory contract. But the oil was afterwards delivered by the defendant and accepted by the plaintiff, and a bill of parcels made out. Here then the executory contract was at an end, and if there was any warranty, the plaintiff must rely on the bill of parcels to prove it. But the description in a bill of parcels is no warranty. Brown on Sales, 285 ; Bree v. Holbeck, 2 Doug. 654 ; Jendwine v. Slade, 2 Esp. R. 573 ; 4 Campb. (Howe’s ed.) 145, note ; Holden v. Dakin, 4 Johns. R. 421 ; Sands v. Taylor, 5 Johns. R. 404 ; Emerson v. Brigham, 10 Mass. R. 197 ; Seixas v. Woods, 2 Caines’s R. (2d ed.) 48, and note ; Snell v. Moses, 1 Johns. R. 96 ; Bradford v. Manly, 13 Mass R. 139 ; 1 Fonbl. on Eq. 380.
    The direction to the jury, that the defendant, having sold in his own name, was personally liable, would have been correct, if his selling in that manner had raised a presumption that he was the owner. But from the course of this transaction no such presumption could arise. The action should therefore have been brought against the principal, who would be responsible, since it appeared in evidence that the sale was made according to his directions. Paley on Principal and Ag. 258 ; Alexander v. Gibson, 2 Campb. 555.
    Supposing however that there was a warranty, and that the action is rightly brought against the agent, the contract ought to have been truly stated. Hopkins v. Young, 11 Mass. R. 302; Baylies v. Fettyplace, 7 Mass R. 325. The allegation in the declaration is, that the oil was to be °f a g°°d an(^ superior quality, but tlie contract proved is, that it was to be prime quality winter oil; and this is a material variance. Prime quality winter oil has a meaning in the particular trade, and we are not to search in dictionaries for that meaning. Some of the witnesses, who were manufacturers of oil, testified that the spermaceti head and body oil is boiled in the autumn, is afterwards exposed to the cold until it is thoroughly congealed, and is then pressed, and that the oil made in this method is prime quality winter oil. These terms are used to denote the kind merely, without reference to the degrees of goodness of the oil. The words go id and superior therefore express a different idea. Goulding v. Skinner, 1 Pick. 162; Anon. 1 Ld. Raym. 735 ; Hockin v. Cooke, 4 T. R. 314 ; Cooke v. Munstone, 4 Bos. & Pul. 354. Nor does the videlicet cure the defect. If the previous allegation and the words under the videlicet mean the same thing, then the allegation may be proved and the videlicet may be rejected as surplusage ; or if the videlicet is repugnant to the preceding matter, it may be rejected as void ; but no case shows that where the preceding allegation and the words under the videlicet mean different things, as they do here, the plaintiff may strike out the allegation and proceed on the words laid under the videlicet. Dakin’s case, 2 Wms's Saund. 291, note 1 ; Paine v. Fox, 16 Mass. R. 129.
    
      Fay and H. H. Fuller, for the plaintiff,
    cited to the point of a warranty, Crosse v. Gardner, Carth. 90; Medina v. Stoughton, 1 Salk. 210 ; Pasley v. Freeman, 3 T. R. 57 ; Tye v. Fynmore, 3 Campb. 462 ; Gardiner v. Gray, 4 Campb. 144; Rowe v. Osborne, 1 Stark. R. 140; Bridge v. Wain, ibid. 504 ; Parker v. Palmer, 4 Barn. & Ald. 387 ; Skrine v. Elmore, 2 Campb. 407 ; Yates v. Pym, 6 Taunt. 446 ; S. C. 2 Marsh. 141 ; Bradford v. Manly, 13 Mass. R. 139 ; and to the point that the defendant was personally liable, Thomas v. Bishop, 2 Str. 955 ; Le Fevre v. Lloyd, 5 Taunt. 749 ; S. C. 1 Marsh. 318 ; Leadbitter v. Farrow, 5 Maule & Selw. 345 ; Paley on Princ. & Ag. (Amer. ed.) 298; Stackpole v. Arnold, 11 Mass. R. 27; Goupy v Harden, 7 Taunt. 159 ; S. C. 2 Marsh. 454 ; and on the point of variance, Silver v. Heseltine, 1 Chit. Rep. 39 ; Wickes v. Gordon, ibid. 60 ; Baptiste v. Cobbold, 1 Bos. & Pul. 7 ; Hamborough v. Wilkie, 4 Maule & Selw. 474, note ; Drewry v. Twiss, 4 T. R. 558 ; Gwinnet v. Phillips, 3 T. R. 643; Parker v. Palmer, 4 Barn. & Ald. 387 ; Rodman v. Forman, 8 Johns. R. 26 ; King v. Pippet, 1 T. R. 235 ; and as to the effect of the videlicet, Stukeley v. Butler, Hob. 168 ; 1 Chit. Pl. 308, note y ; Gladstone v. Neal, 13 East, 410 ; The King v. Aylet, 1 T. R. 63 ; Bissex v. Bissex, 3 Burr. 1729 ; Skinner v. Andrews, 1 Saund. 170 ; The King v. Stevens, 5 East, 244 ; Hayman v. Rogers, 1 Str. 232.
    
      
       So held also in Osgood v. Lewis, 2 Harr. & Gill, 495.
    
   Parker C. J.

delivered the opinion of the Court. The first question to be decided is, whether the paper offered as evidence of the contract declared upon, amounts in law to a warranty that the oil sold should be of any particular kind or quality. The words of the writing are, “ Sold Mr. E. T. Hastings two thousand gallons prime quality winter oil.” It is argued that the words which relate to the quality, amount to a description only of the thing sold, and not to an undertaking that it should be of the quality described. The case in Douglas, (Bree v. Holbech,) is the strongest in support of this position. In this case an administrator undertook to.sell a mortgage deed which he found among the papers of the deceased, and in his deed of assignment he declared, by way of recital, that it was a mortgage deed ; but it was in fact a forgery. It was decided that the assignee should not recover back his purchase money, because the administrator did not know it was a forgery, and was guilty of no fraud in the transaction. The case is not a very luminous one as it appears in the report. The statute of limitations was pleaded and the principal question was, whether the case was taken out of the statute by an affirmation, made before the sale, that it was a mortgage deed on which a certain sum was due, and by a recital of the same nature in the deed of assignment. There was no allegation or proof that the defendant knew the deed to be forged, so there was no fraud, and therefore there was nothing to take the case out of the statute. It also appeared there were special covenants in the deed of assignment. which circumstance is alluded to by Lord Mansfield as a ground of his opinion, as tending to exclude an) con.ract 'n regard to the validity of the mortgage.

The case in 4 Johns. R. 421, decided that the mere selling an article as good, at a fair price, did not amount to a warranty ; and that without an express warranty, or fraud, the purchaser could not recover for any defect in the article. This amounts to no more than the doctrine generally received, that the selling for a sound price does not imply a warranty of the goodness of the thing sold.

There is a case, 1 Johns. R. 96, which goes to the same point. And the case in 5 Johns. R. 404, determined that a sale by sample is no warranty that the goods are sound or in good condition, but only that they are of the same kind. This is also settled in Parkinson v. Lee, 2 East, 314, and is admitted in our case of Bradford v. Manly, 13 Mass R. 139, the general doctrine of which case, viz. that a sale by sample is a warranty that the thing sold conforms in kind to the sample, appears to be recognised in England and in New York ; vid. 4 Campb. 22, 145 ; though the doctrine was by some considered as novel when established here.

Admitting that the words in the written contract are a description of the thing sold ; the description is a material part of the contract, and ought to be considered a warranty, when it was so intended by the parties. In the case of Pasley v. Freeman, 3 T. R. 57, Butter J. says that Holt C. J. had held, that an affirmation at the time of a sale is a warranty, provided it appear in evidence to have been so intended. Now a description of the article inserted in a bill of parcels, or in a sale note, such as is used in England¿ ought to be considered evidence that the thing sold was agreed to be such as represented. It was so held in 3 Campb. 462, where a sale note of two tons of fair merchantable sassafras wood in logs, was held to be equal to a warranty that the wood sold was of merchantable quality.

In the case of Gardiner v. Gray, 4 Campb. 144, the same principle is adopted. A sale note mentioned that 12 bags of waste silk were sold at 10s. 6d. per lb., and samples were shown. The silk was delivered afterwards, but did not correspond with the samples, and was not salable under the denomination of waste silk. Lord Ellenborough held that “ it was not a sale by sample, because there was a written contract, viz. the sale note ; but that the purchaser had a right to expect a salable article answering to the description in the contract. Without any particular warranty, this is an implied term in every such contractthat is, that such a description in a sale note is sufficient evidence of a warranty. Where there is no opportunity to inspect the commodity, the maxim caveat emptor does not apply, was said in the same case by the same eminent judge. It is difficult to distinguish that case from the one before us. The sale note, as the paper signed by the defendant may be called, acknowledges a sale of oil, which he calls prime quality winter oil. The purchaser had a right to expect oil which would sell in the market as such, and it was one of the terms of the contract that he should have such ; the jury have found that the oil delivered did not answer that description ; there is therefore a breach of the contract. A different rule of decision seems to have been followed in New York, so far as the law may be considered as settled there by the case of Seixas v. Woods, 2 Caines’s R. 48, but from what fell from Mr. Justice Spencer, in the case of Sands v. Taylor, 5 Johns. R. 404, it may be doubted whether that case is considered as settling a general rule. He says, £C It has frequently been decided here, that on the sale of a-commodity, no action can be sustained for any difference in quality between the thing contracted for and the thing delivered, unless there be fraud or a warranty by which he is supposed to mean an express formal warranty ; because it was determined in the case of Seixas v. Woods, that a description in a bill of parcels was no warranty. But he says, “I am disposed to confine this rule to the case of a sale where the thing sold is exhibited, and am ready to admit, that on sales by sample, there is an implied warranty that the sample, taken in the usual way, is a fair specimen of the thing sold.” The New York doctrine thus qualified would agree with that of Lord Ellenborough in the case of Gardiner v. Gray, and with the case before cited from our Reports, of Bradford v. Manly. The case of Higgins v. Livermore, 14 Mass. R. 106, went upon the same principle. An insurance upon the Swedish brig Sophia, was held to be a warranty that the vessel was Swedish.*

It is said however, that the writing said to contain a warranty is executory, a mere contract to sell, and that the actual sale was when the oil was delivered and when the other paper in the case was made out, which enumerated the different casks of oil and their contents ; but this would not be according to the intention of the parties, the sale being intended to be complete xvhen the first paper was given, as is evident from the terms of it. The other paper was made out for the purpose of adjusting the amount and taking the security ; d.nd even if this latter were the only paper, the same description of the oil being contained in it, the nature of the contract would be the same ; for we do not see why a description in the bill of parcels is not a representation, as well as that in the first paper, which may be called a sale note or memorandum. So that upon this first point we think the case is clearly with the plaintiff.

And the second point is equally clear on the same side, viz. that the defendant having signed the contract- with his oxvn name, without designating himself as agent, or by any words showing that he acted for the owner of the oil, is personally bound, notxvithstanding he was in truth but a factor and was known to be such by the plaintiff. One selling for another binds himself by the contract of sale, unless he shows his representative character on the face of the contract.

The defendant in this case signed the contract with his own name only. The purchaser had a right to treat him as the vendor. The books show that an agent who makes a contract fo»’ another, binds himself, unless he expressly stipulates for his principal. There are three cases in which the agent becomes personally liable ; first, where the principal is not known ; secondly, where there is no responsible principal; thirdly, where the agent becomes liable by any undertaking of his oxvn. Paley on Principal and Agent, (Eng. ed.) 249 ; 2 Livermore Pr. and Agent, 255. Agents who draw or indorse bills for their principals, but without qualifying their signature, are held personally upon the bills. Thomas v. Bishop, Str. 955 ; Leadbitter v. Farrow, 5 Maule & Selw. 345. And his liability exists, although it be known to the party who takes the bill, that he was merely an agent. The cases of Stackpole v. Arnold, 11 Mass. R. 27, and Long v. Colburn, ibid. 97, are in point also.

The remaining point in the case has been the cause of some hesitation, but we are finally fully satisfied upon it. It has been insisted upon by the defendant’s counsel, that there is a material variance between the contract as averred in the declaration, and the paper writing produced as evidence of that contract. We think the variance is in words only, not in substance. The averment is, that the defendant undertook that the oil was of a good and superior quality, to wit, prime quality winter oil. The bill of parcels states that the defendant sold prime quality winter oil. It is obvious that there is no variance even in terms, if the words under the scilicet are to be considered the substantial averment. Without these there would be a difference in phraseology, which according to the strictest rules of pleading would be held to be a variance. Now it is certain, that the words under the scilicet are not to be rejected, if they are essential to the declaration and are of a nature to be traversed. And it appears by the books, that words so placed may be used to qualify, explain, limit, or restrain more general words used in the succeeding part of the averment. 2 Wms’s Saund. 290 a, note.

Now although the plaintiff has said, in the former part of his averment, that the oil sold was of a good and superior quality, yet he goes on to give his own meaning of those terms, viz. prime quality winter oil. And there is no inconsistency in this, for without doubt prime quality winter oil is good and superior to other oil in the market.

With this use of the averment under the scilicet the declaration and the evidence are identical. And there is no doubt this is a proper use of that legal phraseology, for an averment in such form, if of any thing material, is traversable ; and indeed if any thing is to be rejected, it should be the former part of the averment, which being explained by the latter part has become unessential.

In the case of Paine, Judge, v. Fox, 16 Mass. R. 133, this Court is reported to have said, that the words following a videlicet in a declaration are never to be taken as an averment and are not traversable. This was undoubtedly a mistake. It is only where the allegation so expressed is immaterial, and might have been omitted, that it shall not be traversed and may be rejected as wholly useless.

The office of a scilicet is well explained, and all the authorities necessary to be consulted are to be found in Sergeant Williams’s note to Dakin’s case, 2 Saund. 290 a.

All the objections being overruled, judgment must be according to the verdict. 
      
      
        Woodworth J. in 20 Johns. R. 204; Oneida Manufacturing Society v. Lawrence, 4 Cowen, 440; Andrews v. Kneeland, 6 Cowen, 354. See Parker v. Palmer, 4 Barn. & Ald. 387 ; Willing v. Consequa, 1 Peters’s C. C. R. 317 ; Rose v. Beatie, 2 Nott & M’Cord, 538 ; Jones v. Bowden, 4 Taunt. 853 ; Williams v. Stafford, 8 Pick. 250 ; Gallager v. Waring, 9 Wendell, 20.
     
      
      
        Wood v. Smith, 4 Carr. & Payne, 45. See Duffee v. Mason, 8 Cowen, 25 ; Helyear v. Hawke, 5 Esp. R. 72 ; per Holt C. J. in Lysney v Selby, 2 Ld Ray. 1120.
     
      
       S. P. Borrekins v. Bevan, 3 Rawle, 23, Gibson C. J. and Kennedy J. dissenting ; Hogins v. Plympton, 11 Pick. 99 ; Osgood v. Lewis, 2 Harr. & Gill, 495; Bosanquet J. in Budd v. Fairmaner, 5 Carr. & Payne, 78 ; S. C. 8 Bingh. 48 ; Freeman v. Baker, 5 Carr. & Payne, 475 ; 3 Chit. Commerc. Law, 303. But see Hyatt v. Boyle, 5 Gill & Johns. 110.
      An affirmation amounting to a warranty is sufficient without the use of the word warrant. Roberts v. Morgan, 2 Cowen, 438; Beeman v. Buck, 3 Vermont R. 53. Goods sold are described in the invoice as scarlet cuttings; a warranty is to be inferred that the goods answer the known mercantile description of scarlet cuttings. Bridge v. Wain, 1 Starkie R. 504. See also Shepherd v. Kain, 5 Barn. & Ald. 240; Freeman v. Baker, 5 Barn & Ald 797; Flight v. Booth, 5 Moore & Scott, 190. It is sufficient if they are in specie that for which they are sold, and are merchantable under the denomination affixed to them by the seller. Jennings v. Gratz, 3 Rawle, 168. See Hogins v. Plympton, 11 Pick. 99.
      In Richardson v. Brown, 1 Bingh. 344 ; Budd v. Fairmaner, 8 Bingh. 48 ; S. C. 5 Carr. &. Payne, 78; Dickenson v. Gapp, cited in Budd v. Fairmaner; there were express warranties, and the representations or descriptions were held not to raise a warranty beyond the one expressed. See Lanier v. Auld, 1 Murphy, 138; Wells v. Spears, 1 M'Cord, 421.
      
        Best C. J. held, in Jones v. Bright, 5 Bingh. 533, that if a man sells an article for a particular purpose, he thereby warrants that it shall be fit for that purpose ; and see Gray v. Cox, 4 Barn. & Cressw. 115, and 6 Dowl. & Ryl. 208; but this is controverted by Kent, 2 Comm. (2d. ed.) 479, n. (c.) See Jennings v. Gratz, 3 Rawle, 168.
      In every contract to furnish manufactured goods, it is an implied term that the goods shall be merchantable. Laing v. Fidgeon, 6 Taunt. 108; S. C 4 Campb. 169. So in every case where there is no opportunity for inspection by the vendee. 2 Kent's Com. (2d ed.) 479; Gallagher v. Waring, 9 Wendell, 20 ; Cooper v. Twibill, 3 Campb. 286, n. ; Holcombe v. Hewson, 2 Campb. 391. See Jennings v. Gratz, 3 Rawle, 168 ; Hanks v. M'Kee, 3 Littell’s R. 227 ; Osgood v. Lewis, 2 Harr. & Gill, 495; Hyatt v. Boyle, 5 Gill & Johns. 110.
     
      
       See New England Mar. Ins. Co. v. De Wolf, 8 Pick. 56.
     
      
       See Gleason v. M'Vickar, 7 Cowen, 44 ; Goulding v. Skinner, 1 Pick. (2d edit.) 162, and the cases on the subject of variance, in note (1) to page 164; Gladstone v. Feale 13 East, 410 ; Crispin v. Williamson, 8 Taunt. 107.
     