
    CONSTITUTIONAL COURT, COLUMBIA,
    DEC., 1812.
    Farlow Thompson v. James Lindsay.
    A sound price warrants a sound commodity; but, if the parties expressly agree that the buyer shall take the property at his own risk, the vendor will not be answerable for unsoundness.
    Motion to set aside a decree given on summary process, by Nott, J., in Pendleton district. The action was on a promissory note of hand, given for a certain quantity of tobacco, contained in a hogs, head, supposed to weight 1200 lbs. There was a memorandum on the note, that defendant took the tobacco at his own risk. The de.' fence was that the plaintiff had misrepresented the tobacco to the defendant, saying it was all as good as what appeared at the end of the hogshead, by which the defendant was put off his guard, and did not examine as thoroughly as otherwise he would have done. It appeared that some part of the tobacco was damaged.
    It did not appear that any fraud was practiced to induce the purchaser to decline examining the tobacco. The judge was of opinion that if fraud had been proven, it would not have been a proper subject of discount.
    Argued by Taylob, for plaintiff. Bowie, for defendant,
    declined arguing.
    Taylob argued that there was evidence of a fraudulent misrepresentation on the part'of the plaintiff to induce the defendant to' take the tobacco, without examination of it, &c., and that the agreement to take the tobacco at the risk of the buyer, would not est^P him from setting up the fraud as a defence.
   Bkevard, J.

This motion, in my opinion, ought to be refused. It was expressly stipulated in the contract, that the defendant was to take the tobacco at his own risk.

There was no undoubted evidence that he was induced to consent to the stipulation by any fraudulent concealment, or misrepresentation on the part of the plaintiff. The judge who decreed for the plaintiff, it being a case within the summary jurisdiction of the court, no doubt, took proper notice of the evidence to this point, and gave it due consideration, although he wasjDf opinion that fraud was not a proper subject of discount.

The plaintiff requested the defendant to examine the tobacco, and judge for himself. It was his own folly to take it at his own risk, upon the mere opinion of the plaintiff, that it was all as good as that which was seen at the end of the hogshead, without further inspection and examination.

The defendant ought not to be permitted to take advantage of his own laches.

Bay, J.

It is a well established rule of law, that a sound price requires a sound commodity. But if a man with his eyes open, and well aware of this rule of law, will go and make a bargain, and buy an article at all risks, he has himself to blame, and must take the consequences, I am against opening the decree.

The other judges gave similar opinions.  