Dooley v. Gallagher

7 F. Cas. 906, 3 Hughes 214

• Court: District Court, E.D. Virginia
• Decided: May 15, 1879
• Status: Published

Opinion

HUGHES, District Judge.

The only question here is, whether there was an implied warranty by Gallagher & Co. that the iron, sent to Snyder in September and January was really of the quality described in their letters of the 21st and 20th August, and of later dates. None of these letters were written with a view to selling the iron to Snyder. They were the letters of consignors to a consignee, and not of . a vendor to a vendee. The iron was the first that had been made at a new furnace, and the consignee was so informed. The consignors were confident of the truth of their representations of its quality, but they stated the grounds of that confidence, viz., that theirs was “Cripple Creek” iron, a species which had a good reputation; and that their founderer, who had made the best brand of the Cripple Creek iron at another furnace, and who was now making this iron of theirs, pronounced theirs to be as good as the “Wythe” iron. They made their statements not to a novice in the iron business, but to an expert, to a professional and experienced “dealer in pig iron.” They describe the irou as a consignor would to a consignee, and their letters all implied that the consignee was expected to judge of the quality for himself; and they expressly requested him to get his customers to test it. The description of an article, in good faith, to an agent, coupled with a delivery of it to him and a request that he and others shall take measures to inform themselves of its real quality, ought not, it seems to me, to he treated as implying a warranty of quality to any one who might months afterwards and after full opportunity for examination, conclude voluntarily and without solicitation to become the purchaser. There is no doubt that Snyder himself had confidence in the quality of the iron; and I infer from the evidence that his confidence was founded more on the fact that it was Cripple Creek iron than on other representations of Gallagher & Co. to him. That it was Cripple Creek iron in fact no one disputes, and has not been denied in evidence. That it was really worth from $2G to $32 per ton is proved by sales of it to other purchasers in other markets. This consignee, an experienced iron merchant and manufacturer, and a regular dealer in “pig iron,” had fifty-six tons of it in his custody for more than four months before his purchase. It had been placed with him for sale coupled with a request to have it tested and tried. After this length of custody and the fullest opportunity of inspection, Snyder voluntarily proposed to purchase outright and unconditionally as to quality, all the iron that Gallagher & Co. had, up to the end of January, consigned to him.- Certainly these are not circumstances from which the authorities allow us to infer a warranty of quality as part of the contract of sale. If Snyder, in his letter of the 31st of January, 1S76, proposing to purchase, had said to Gallagher & Co. that he had not tested the quality of the iron, that he relied upon their representations made to him in the August preceding as to quality, and that he made his proposal to purchase on that basis, then an acceptance of his ofier by Gallagher & Co. would have created a warranty, for then Gallagher & Co. would have been afforded the opportunity of electing whether or not to sell on such terms at all. It was too late for Snyder to attempt the interpolation of such a provision into the contract two weeks after his proposal had been accepted, and after Gallagher & Co. had lost control, not only of the terms of sale, but of the iron sold. Trade could not go on between man and man if bargains once made and executed could afterward be upset on the election of any one of the parties. Commerce would perish under the effects of such a license, and the courts would be crowded with suits. Unless the warranty is given at or before the time of the sale, it cannot be made to spring up afterwards at the will of either party as attempted here. Nor do I think it can be the policy of the law to hold that representations made to a consignor by a consignee long anterior to a sale, may be treated as representations of a vendor to a vendee, if the cousiguee in the course of events volunteers to become purchaser. In the first instance they are intended for mere puipose of description, and with no thought of their being made the elements of a future contract. Contracts ought only to be implied from language used in contemplation or in the act of making them.

So much for the equities of this case. Technically it is conclusively against the plaintiff. We must not confound the law of implied warranty in general with the law as it applies particularly to the quality of the article sold. Benjamin lays down the law of caveat emptor very strongly as to warranty of the quality of chattels. He says: “So far as an ascertained specific chattel, already existing, and which the buyer has inspected, is concerned, the rule, caveat emptor, admits of no exception by implied warranty of quality.” The rule as to title is, of course, different; for the knowledge of title is more or less exclusively in the vendor. So also is the rule as to the soundness of an animal different; for the vendor is supposed to be fully informed on this subject, if he has custody and the purchaser has not custody of the animal. So also is the rule different as to chattels not yet in the custody of the buyer or not yet manufactured, but sold for future delivery; for there a warranty is implied that the goods will, when delivered, in all respects conform to the sample or description according to which they were purchased. In this case it is not shown or pretended that the iron delivered in January differed in quality from that delivered in September. But in the case put by Benjamin, which is our case, of a specific chattel, already existing, and which the buyer has inspected (much more has had in his custody for four months), the rule of caveat emptor admits of no exception by implied warranty. This is not only well-settled law, but it is sound, just, equitable law, and must govern this case. This doctrine is fully established in this state by Mason v. Chappell, 15 Grat. 572. It governs not only the sale of January, but also the consignments made before that time, and the acceptances given on the consignments. The finding of the court and the judgment in the case must be for the defendants. A finding may be drawn in accordance with the facts, and a judgment entered for the defendants.