Calhoun v. Vechio

4 F. Cas. 1049, 3 Wash. C. C. 165

• Court: U.S. Circuit Court for the District of Pennsylvania
• Decided: April 15, 1812
• Status: Published

Opinion

WASHINGTON, Circuit Justice,

stopped Mr. Levy, who was about to argue the cause for the plaintiff, observing that this was a very plain ease. This is a contract of sale, concluded on the 19th of November; as much so, and as binding, as a sale can possibly be. The terms of sale were agreed upon, committed to writing, and signed by the defendant, with as much minuteness as was necessary. The article sold, was a quantity of glass contained in six cases, selected by the defendants, and designated by precise marks. The price was fixed, as also the time of payment. Nothing was left for future adjustment. The examination, which after-wards took place, by the permission of the plaintiff, did not, as was argued, open the contract, but it was for the purpose of ascertaining the quantity of broken and otherwise damaged glass, the value of which, the plaintiff, subsequent to the closing of the sale, agreed to deduct from the 9121 dollars, 5 cts., agreed by the defendants to be paid, by the contract of the 19th of November. And if anj' thing were wanting, to render this a perfect and complete sale on that day, the plaintiff then apprized the defendants that the six cases of glass were, from the time the agreement was signed, at the risk of the defendants, to which they, by their silence, tacitly assented. The subsequent refusal of the defendants to take the glass dispensed with the necessity of an offer on the part of the plaintiff to deliver it, even if that had been necessary. The glass was, to all intents and purposes, the property of the defendants; and they might have taken it away when they pleased, upon paying, or offering to pay, the price agreed upon.

What, then, is to release the defendants from their purchase? The statement of the quality of the glass, in the plaintiff s advertisement, did not amount to a warranty, inasmuch as the defendants did not rely upon the advertisement, but upon their own judgment, to be formed after an examination. It is natural for the owner of property, and the daily advertisements of real and personal property contain the fullest evidence of the fact, to give a character to what he offers for sale, which, in the judgment of other people, it does not deserve. And if’ •these statements of the partial owner should be converted into warranties, where the purchaser has determined to rely on his own judgment, there are probably few sales that would stand, if the purchaser should become dissatisfied with his bargain.

Has there been any fraud practised by the plaintiff in this case? Has he concealed,, or misrepresented any thing in relation to the quality of this glass, which he knew to be material and false? For, if this were-proved, it would be Sufficient to set aside the • contract. But nothing of this kind is even pretended. The plaintiff stated the-glass to be of superior quality, and possibly, he had been so informed by the consignor, (for, it is to be remarked, that when the advertisement was inserted, the cargo was-not landed,) or he may have given it this character without authority, in order to en-.tiee purchasers to come forward. But, he knew, at the same time, that no person would be so incautious as to purchase without examination. The defendant, in particular, was requested to examine, and to judge for himself; after he had, on a partial view of a few pieces, expressed his disapprobation of the quality. The examination was then pursued, as long as the defendant thought it necessary; and it was. afterwards, that he selected the six boxes, and closed the purchase of them. If he did not choose to open the whole of the boxes, it was a matter in which he alone was concerned; and a difference in the quality of the glass not examined, from that which was, would not authorize him to rescind the bargain. But the fact, from the evidence, seems to be, that there was no such difference.

The defence, then, comes to this; that the defendant has, upon the whole, made an improvident bargain. He has agreed to-pay more than the article is worth; and if it appeared, that he has done so to a much greater degree than is proved, it is not competent to this, or any other court, to-annul, or even vary, ihe contract, further than the parties have agreed. The plaintiff is therefore entitled to a verdict, for the principal and interest of his account.

The jury found a verdict for the whole-sum claimed; the value of the broken glass having been deducted, and the plaintiff agreeing to deduct from the verdict, the value of the damaged glass.