combinations of circumstances, which, both in these opposite conditions and in all the intermediate stages between them, influence or direct the course of human affairs. History, if I may be allowed the expression, is now a vast museum, in which specimens of every variety of human nature may be studied. From these great accessions to knowledge, lawgivers and statesmen, but, above all, moralists and political philosophers, may derive the most important instruction. They may plainly discover in all the useful and beautiful variety of governments and institutions, and under all the fantastic usages and rites which have prevailed among men, the same fundamental, comprehensive truths, the sacred master-principles which are the guardians of human society, recognized and revered (with few and slight exceptions) by every nation upon earth, and uniformly taught (with exceptions still fewer) by a succession of wise men from the first dawn of speculation to the present moment. The exceptions, few as they are, will on more reflection be found rather apparent than real. Nay, if we could raise ourselves to that height from which we ought to survey so vast a subject, these exceptions would altogether vanish-the brutality of a bandful of savages would disappear in the immense prospect of human nature and the murmurs of a few licentious sophists would not ascend to break the general harmony.”`

ART. IL-THE DOCTRINE OF IMPLIED WARRANTY ON THE SALE OF PERSONAL CHATTELS.

THE extent of the liability of the vendor of personal chattels, for their quality, is a subject of the law of contracts which bas been in a great degree unsettled. The contract of sale is itself, as ordinarily conducted, vague and undefined; and, from the great variety of incidents affecting the subjects of sale, perhaps necessarily so.

There are latent defects and lurking disorders and principles of destruction and change scarcely thought of, and seldom pro

Introductory Lecture on the Law of Nations, p. 25.

vided for by the parties contracting. The qualities and defects, affecting the ordinary subjects of contracts, were much discussed by the civilians (Dig. 21. 2. 1.) and with a degree of minuteness and nicety, which in their days may have been sufficiently practicable, but which would be wholly inapplicable to the complex variety of modern commerce.

distinctions, which constitute the ground-work of the civil law, have been wisely disregarded by modern judges, who have taken a more enlarged view, aiming rather to explain and carry into effect, than to supply the contracts of men. Herein, and in the application of presumptive evidence, it is believed mainly consists the difference of the civil and the common law, in regard to the subject of implied warranty on personal sales.

We apprehend that the great question is one simply of intention; and that the true maxim, in reference to sales, is files servanda. If the contract be general, in the observance of this principle, caveat venditor. If the buyer requires special and minute provisions, then the maxim well applies careat emptor. The law does not provide what he has himself left unsettled. And where both parties are equally innocent, the law cannot interpose to shift the burden from the one to the other.

A warranty is an engagement entered into by contracting parties. The terms of the contract are therefore to be sought for. No form of words, no technical expression is assigned by law to this species of contract. If the terms are express, there can be no doubt. There may be equal certainty in the implied terms of an agreement. If the intention can be ascertained from the conduct of the parties, this is decisive.

And first, there is always understood to be a warranty (and it is only implied) that the seller in possession, and professing to be the owner, has a valid title to the property sold. 3 Bl. Com. 166. So if out of possession, if he claims title, and the sale proceeds on that basis. (Buller, J. Pasley v. Freeman, 3 T. R. 57.) If, however, the seller professes to dispose of such title only as he has, or as he may be ascertained eventually to have, it is otherwise; the intention being manifest to throw the risk of the title upon the buyer.

Now in the former case a warranty is implied because good faith requires it, and because a transfer of title is the subject

matter of the contract. Very different is the case where the buyer purchases only a claim—an uncertain right, or perhaps a lawsuit.

In contracts for provisions for domestic use, it is always implied that they are wholesome. 3 Bl. Com. 166. In these several cases the subject matter of the contract furnishes evidence of the intention of the parties; and if the triers can arrive at this, there is no rule of law to prevent the introduction of evidence, whether express or implied, (unless it be where the contract is reduced to writing) and a principle which should require a warranty to be proved by express terms would be inconsistent with established rules of law and evidence.

The price given is sometimes adduced as evidence of the intention of the parties. But we think that there may be fallacy in the application of the maxim that a sound price implies a sound article. In many cases the price given furnishes evidence entirely too vague to make the rule a safe one where this is the only ground of implication. The price of a great number of chattels, such as horses, pictures, jewels, &c. depends entirely upon fancy and caprice. In the sale of horses the parties depend mainly upon inspection and individual judgment at the time of sale. The seller may be ignorant of any defect or fault, yet the animal may have contracted a distemper an hour before, which in time will render him entirely worthless. But the risk is deemed by the parties ordinarily to be so small, that the price would be but slightly varied by a warranty or the exclusion of a warranty from the contract of sale. The value fixed is so much a matter of opinion, that it is difficult to determine what the parties would have supposed a sound price, in other words, a price which had no reference to the risk of unsoundness, which, as we have remarked, is ordinarily considered to be trifling. Take the case of a slave, young, active, and apparently in perfect health. He is sold for what might be considered the full value, in other words, for a sound price. In a short time after the sale he breaks out with the small pox, which he must therefore have contracted before the sale. How does it appear from the price alone that the parties may not have taken into view the chance of latent disease? The difficulty of applying the principle results from the uncertainty, what ingredients entered into the judgment of

the parties in regard to the value. The implication which is raised from this single fact is fallacious. As evidence of warranty it may be incomplete. Where there is a fixed standard of value, as of stocks, there the price may furnish evidence, and may be decisive.

There are certain cases where the seller has peculiar means of information in respect to the latent defects to which a commodity may be subject. A manufacturer has the means of knowing whether the commodity he offers in the market has had wrought up into its materials the principles of destruction and decay, and whether the article is merchantable.

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There are other cases where the defects originated before the interest acquired by the seller, which may have been secretly working, but of which he has no greater means of knowledge than the buyer; as where bales of cotton or bags of hops have been immersed in water for the purpose of increasing their weight; so that the grower of the cotton and the hops has caused an injury to the subsequent seller and buyer; to the former in the diminished bulk, to the latter in the value of the commodity. The grower in this case, if not personally conusant of the fraud, had the means of knowing, and was bound to cause the commodity to be what it purported to be chantable. The original purchaser had no means of knowledge. He is only aware, as is the subsequent purchaser, of the frauds incident to the article. The seller is not to be presumed to warrant against these frauds of the market unless a consideration therefor enters into the price of the article. And if such provision was made, it would naturally appear in the terms of sale. Where the contract is silent on this subject, the price given does not inform us what were its terms, for we have no means of knowing the degree or the value of the risk. The liability of the original producer to the vendor does not affect the question; for the buyer, having purchased all the interest of his vendor in the commodity, is entitled equitably to all the remedial provisions attending that interest, and may be permitted to exercise them in the name of the vendee.

There is another class of cases when the defect is latent. Where the seller has no means of knowledge; where, whilst the property is in his possession, the principle of destruction is perhaps a mere germ, and is advancing in the hands of suc

cessive purchasers to the entire destruction of the chattel, where the commodity is undiminished in value, apparently, until the fault has fully developed itself in the hands of some unfortunate holder. The cases instanced above of the slave and the horse dying in the hands of the buyer, are of this character. And independent of the uncertainty of the intention of the parties in regard to the risk, there seems to be no moral impropriety in suffering the loss to fall where chance has assigned it. It is especially proper that courts should not interpose in such cases if the intention of the parties is not apparent, or if the terms of their own contract are unsupplied. By the civil law, when the subject of the contract of sale was apparently valuable, it was assumed that the price given was the actual value of the sound article; and the rule was adopted that the seller shall be responsible to the purchaser for the soundness of the commodity for which he is supposed to have received a correspondent price. The artificial rule was therefore established that where it was understood that the buyer should take the risk, there must be an express provision to that effect.

The common law has been supposed by certain writers, and in some judicial opinions, to be directly the reverse. The application of the rule derived from the price given has as a test of the mutual understanding been found fallacious; it has therefore been said that the risk of loss ought to be sustained by the buyer, unless there is an express provision to the contrary. This is also an artificial rule and equally a departure from principle. The true rule we conceive to be that the representations of the seller, the circumstances of the parties, the subject matter, the price, and generally the res gestæ, as determining the mutual understanding, are to be weighed by the triers as decisive of the actual contract. We believe that an examination of all the English and most of the American cases will justify the conclusion, that an express warranty is not necessary where it impliedly appears that a warranty was within the mutual understanding of the parties, though it must be admitted that most of the elementary writers have stated a different doctrine.

The leading case cited to show that the vendor is not liable for the soundness or quality of his commodities, without a war