
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1803.
    Vanderhorst & Co. v. MacTaggart.
    A vendor of rice, sold here, is not liable, under the implied warranty, for a defect in its quality or soundness, not discovered until af.or its arrival abroad, but which, if it existed at the time of the sale, might easily have been detected by examination. Vide 2 Bay, 498, S. C. Carnochan v. Gould, 1 Bailey, 179.
    Motion for a new trial. Action of assumpsit for vice sold and delivered, tried in Charleston, before Johnson, J. Deience, discount for unsoundness. ft appeared that the defendant bought fifteen barrels of rice of plaintiff; and, at the time of puichase, examined two of the larrels, and might have examined the others. A witness for plaintiffs proved, that he brought the rice from San-tee to Charleston, to the plaintiffs; and, being suspicious that some of the barrels had got wet in loading the schooner, he examined two of them, and found they had sustained no damage. That they came safe to town, under a close deck. A witness, for the defendant, proved, that at Alexandria, in Virginia, where defendant sent the rice, after eight day’s passage, he saw samples of it, taken from two of the barrels, which were bad. dingy, and mvsfy; mid, it was his opinion, that the cause of damage existed previously to the sale. That it sold considerably lower than if it had been sound and good. Other witnesses, who saw some of the rice, two of the banels, in Charleston, at the time ol sale, testified as to its soundess. The jury found a verdict for the defendant, ■
    In support of the motion, it was urged, that in purchases of this *ort, there is no warranty implied as to the soundness -,f the comBaodity sold. That every purchaser has an oppoitunity of examining and judging for himself, a id there is no danger of deceit and imposition. The condition and quality of the produce sold, should be determined by the parties at the sale; and, that it would fie very inconvenient, as well as dangerous to the agrieuhual internals of this country, to allow the quality of its productions to e decided on in foreign markets. That, if such evidence were admissible, contracts might, be rescinded in a very facile, way. The purchaser might repon that the commodity was damaged, and upon & resale, buy it in himself; and, by giving evidence of its coudi
      tion, and quality, come upon the seller for damages. Arts and devices, and coviuous contrivances might bo used, to the prostration of the rights and interests of our planters, if such a rule as was contended tor, should be established. Whereas, it the maxim, caveat emptor, he adherí d to in this case, no mischief w 11 result; for it is easy for every purchaser of such an article as rice, to examine and judge for himself. That there was no evidence to satisfy the court, that the defect, which the rice was supposed to have, might not have been contracted after the sale, and be owing to some supervenient causo, and have happened on biard the ve.isel which conveyed it to Alexandria; or that it was co-existent with the purchase.
    
      E contra. It was insisted that the interests of plauters, and all others, required that mutual good laith should be the basis of all contracts: and that where any thing sold, appears afteruards to have been materially defective at the time of the sale, or sustains damage in consequence of some cause or imperfection inherent in the thing at the time of the contract, the party thereby prejudiced should be restored to the money, or.consideration given for the thing, or be satisfied by some other equivalent recompense. The common custom in buying, is to examine slightly : and it is never understood, that if (lie defect is overlooked, the vendor is supposed to have waived his right to redress, in case the defect can afterwards be proved to have existed at the time of the sale.; unless it was understood by the parties, at the time of the purchase, that the purchaser should examine and judge for hunself.
   Per curiam.

(Bay, Johnson. Tkrzbvant; and Brevard, Jusces, absent.5 Grimkb. J. and Wa’ii s, J.)

A new trial, we think, ought to be granted in this case, on (he ground that the verdict is contrary to evidence. We agree in p.inciple with plaintiff’s counsel, that the purchaser, in such cases as this, is bound to examine thoroughly, and judge for himself; and, that it would be attended with great inconvenience, and might prove greatly prejudicial to planters, to allow evidence to shew, that anieles of country produce sold and delivered here, such as rice, which is capable of an easy examination, and which might be fully examined, and its quality and condition conclusively settled here, has been found, in Some foreign, and distant market, to bo of a different quality, or imperfect and defective, and not such as it was represented to be when sold here. It might open a aide d ;or to frau i and imposition, In such contracts as this, we are of opinion, there is no implied warranty ; where the buyer depends upon his own judgment, and buys upon an actual examination, isecus, where rice is bought by sample, and tfie buyer does not undertake to examine, and judge for himself, but relies on the sample ; although he may examine if will. In ,-ucli case there is an express warranty.

Pringle, for defendant. Be Saijssure, for plaintiffs.

New trial grained.

Note. — See Co. Litt. 102 a. Cro Jac 197, Doug. 20. Aleyn 91. 2 East 498, in notis. F N. B. 94. The eyes and taste of the purchaser ought to be his judges. Without warranty by the seller, or fraud On his part, the buyer must stand to all tosses, arising from latent defects. There is no instance in the English law of a contrary rule The civil taw." and the laws of those countries which have adopted the civil as their common law, are more strict towards the seller, and make him responsible in every case for a latent delect Dig. lib. 1, tit. 2, c. ¡3.11.1. The reasoning of the civilia s appears unswerable, yet Fonbl. (1 vol. 380.) h is well and ele .antly vindicated the rule of common law, and happi'y reconciled the claims of conscience with the dudes of good faith. See Seixas and Seixas v. Woods, 2 Caine’s N. Y. T. R. 48 There is an implied warranty of tifie in every sale of a personal chattel; aliter, as to quality and soundness. I Johns 274. ( the vendee, after warranty, examines for himself, he thereby discharg .s the vendor from such warranty : 2 Ld. Raym. 1118: a fortiori when he examines, and there is no warranty.  