Superior Court.-Moses and Moses v. Mead. The first count averred that defendant that ground to recover. "did warrant, that the said 194 barrels of beef, and each and every part thereof, was then and there good, sound, merchantable, and wholesome mess beef." Breach," that the beef was bad, unsound, tainted, sour, unmerchantable, and unwholesome." The second count averred "that the beef was wholesome and merchantable, and that the same was proper to pass, and had duly passed inspection by a careful and competent inspector as such, wholesome and merchantable beef." Breach, that the beef was unwholesome and unmerchantable, and was not fit to pass, and had not duly passed such inspection, but had improperly and unduly passed such inspection, contrary to the tenor and effect of the promise. The third count averred "that the beef was wholesome and merchantable." Breach, that the beef was "unwholesome and unwarrantable." The declaration concludes with the usual money counts. The defendant pleaded the general issue. The cause was tried in February Term, before his Honor Judge Oakley. It was proved, that both plaintiffs and defendants were merchants, residing in this city; that on the 9th or 10th of August last, Mead came into the store of Wallace, 32, Front-street, with a bill of an inspector of beef and pork, and said he had a lot of beef, consisting of 194 barrels, for sale. Moses, one of defendants, was by. Mead was then introduced to him, and Moses bought the beef. Mead remarked, "It is an extra quality, or extra lot." Moses said, that was the kind he wanted. Moses asked whose inspection it was, and the reply was Waters. The purchase consisted of 194 barrels at $8 per barrel. After the sale, upon opening the barrels, it turned out that some of the beef was sour. Sour beef was proved to be worth $2,50 per barrel, and good beef about $7, at the time of the trial. The learned Judge in charging the jury, submitted to them upon the evidence the question whether there was any express warranty proved in the case; and instructed them, if they should so find, that the plaintiffs were entitled on That if they should find, that no express warranty ex- A. P. Man for the defendant. 1. A sound price does not raise a warranty of soundness or quality (4 Cowen, 442; 2 Caine, 48; 17 Wend, 269, 70; 18 Wend, 449, 454; 20 Johns, 203, 4; Johns, 421; 1 Wend, 185; 14 Johns, 316.) 2. The general rule of the common law governs this case, it being a general sale, without either express warranty or fraud; the merchandize was open to inspection and the sale executed at the time. 3. If a warranty of wholesomeness is ever implied upon sale of provisions, it is not where they are sold as merchandize but only on sales for domestic use and immediate sonsumption. Wright v. Start, (18 Wend, 454, 464). Emerson v. Brigham, (10 Mass, 197); Jones v. Murray, (3 Monroe, 85); F. N. B. 94; Dyer, 75; 3 Camp. 351. 4. Even upon sale of provisions, for immediate consumption, no warranty is implied, except in case of deceit actual or presumed. A common victualler may be presumed to know whether his provisions are wholesome. In this case no deceit is pretended and knowledge on the part of the defendants is expressly negatived. (See opinion of Tracy Sen. 18 Wend. 458; and cases supra.) H. P. Hastings contra. 1. The evidence of usage was properly excluded, (14 John, R. 316.) 2 If there was no warranty implied a non-suit cannot be entered. 3. If there was no implied warranty, judgment should not be rendered for the defendants without submitting to a jury the question of an express warranty, with a charge that none was implied. Cro. Jac. 196; Roscoe's, Cr. Ev. 340, 345; 4 Bl. Com. 162 and note (2); 3 id. 166, Superior Court.-Moses and Moses v. Mead. and note (22); 12 Johns, R. 468; 17 Wend, 272, 18 id. 4. By the law of this state there is an implied warranty of the soundness and wholesomeness of provisions sold. 5. Selling by inspector's bill amounts to a warranty. VANDERPOEL, J.-It is contended by the plaintiffs 1. That an express warranty was proved, and 2. That, at all events, an implied warranty was raised. As to the express warranty, that question was fairly submitted to the jury. The law is now well settled, that in order to constitute an expess warranty, it is not necessary that the word "warrant" should be used. Any words of equivalent import, showing the intention of the parties that there should be a warranty will suffice. The understanding of the parties, when the language used has no fixed technical meaning is matter for the deternination of the jury. Chapman v. Maule, (19 John, 290;) Duffer v. Mason, (8 Cowen, 25;) Whitney v. Sutton, (10 Wend. 412;) Cook v, Mosely, (13 Wend. 277.) I would not have been dissatisfied with the verdict had the jury here found an express warranty. Verdicts in favor of express warranties have been sustained, when the language of the vendor, in regard to the quality of the article, was not stronger than it was here. Still it was for the jury to say, whether the words spoken shewed an intention to warrant, or was mere matter of opinion: and as this question, for aught that appears, was fairly submitted to the jury, and they have said, that there was no express warranty, the verdict ought not to be disturbed, because the court, had they acted in the capacity of jurors might possibly have come to a different conclusion. The defendant Mead, when first introduced to the plaintiff, said the beef was an "extra quality," or extra lot, the witness thinks he said "extra lot," and the plaintiff said, "that was the kind he wanted." Now, the language of the seller here is stronger than was that of the defendant in Chapman v. Maule, (19 John 290,) according to the reported case. There the defendant represented the horse to be sound. The justice below refused to hear the testimony, on the ground that it would not go to establish a warranty; 2. Was there an implied warranty? But this doctrine, that if a man sells an article he thereby warrants that it is merchantable, and fit for the purpose for which he sells it, has not received as much favor from the late decisions of our Supreme Court, and the court for the Correction of Errors, as it has in England, where the courts, by qualifications and exceptions to the old common law maxim caveat emptor, have very nearly embraced and adopted the opposite civil law rule of caveat venditor. The language of Best, Superior Court.-Moses and Moses v. Mead. C. J., in Jones v. Bright and others, (5 Bing. 533); shows this disposition of some of the judges in England to approximate, if not wholly run into the civil law rule. That was an action on the case in the nature of deceit. The plaintiff purchased from the warehouse of the defendant, the manufacturer, copper for sheathing a ship. The defendant, who knew the object for which the copper was purchased, said, "I will supply you well." The copper, in consequence of some intrinsic defect, lasted only four months, instead of four years, the average duration of such an article. It was held that the plaintiff was entitled to recover. Best, C. J. says, "If a man sells an article, he thereby warrants that it is merchantable-that it is fit for some purpose. If he sells it for a particular purpose, he thereby warrants it fit for that purpose. If a man sells a horse, generally he warrants no more than that it is a horse. But if he asks for a carriage horse, or a horse to carry a female, or a timid and infirm rider, he who knows the qualities of the animal, and sells, undertakes, on every principle of honesty, t..at it is fit for the purpose indicated." The cases which the learned Chief Justice puts, if they amount to any warranty, are clearly cases of express warranty. But in the absence of the review, not to say animadversion, which this case and some of the doctrines put forth in it have received in Hart v. Wight, (17 Wend. 267,) and in the Court of Errors, (18 id. 449,) I would, in the cases put by Mr. Justice Best, of the sale of a horse, for a female or a timid person, if the animal proves vicious, prefer turning the party over to his action on the case for fraud, in which the plaintiff must prove either the suggestion of a false hood, or the suppression of truth by the defendant, in regard to the nature, quality, or disposition of the animal. I find that most of the cases, where this doctrine of implied warranty, or warranty resulting from a particular use or purpose is broached, are actions of deceit, where the seller is presumed to have information in regard to the article, which good faith requires him to disclose. But this case of Jones v. Bright, and the doctrines laid down there by Mr. Justice Best, did not receive much favor in Wright v. Hart, (I8 Wend, 449;) the case by which,as Chancellor Kent, in a note to his second volume Com. 479, says, the common law on the question of warranty was reinstated in the jurisprudence of New York. Senator Tracy, after stating the doctrine of Chief Justice Best, in Jones v. Bright, there remarks, "Thus the English courts, in a circle of about two hundred years, by the process of finding a new principle in each departure from the old one, by extending each case a little beyond the rule of the case immediately preceding it, have gradually, but completely subverted the common law maxim of caveat emptor, and effectually, but perhaps undesignedly, substituted for it the repudiated principle of the civil law, which, as Lord Coke, qaintly but correctly states, it "finds every man to warrant the thing he selleth, albeit there be no express warranty." Our courts went as far as they now seem willing to advance towards the civil law doctrine in allagher v. Waring, (9 Wend. 20, and 18 Wend. 425;) where they held that in a sale by sample, the law implies a warranty, that the bulk of the commodity is of the same quality, with the specimens exhibited. With this exception, and one to which I shall soon advert, (I mean the sale of provisions for domestic use), we are still bound, in this State, to cling to the rule as laid down by Mr. Justice Popham, in his early day (Ďyer, 75,) “ If I have an article which is defective, and I, knowing it to be defective, sell it as sound, and so represent it, an action upon the case lies for the deceit; but although it be defective, if that is unknown to me, although I represent or affirm it to be sound, no action lies, unless I warrant it to be sound." แ 2. It is contended that a warranty was here implied, because the subject of sale was provisions, and that a due regard for the public health requires the application of the rule contended for by the plaintiff. Mr. Justice Blackstone, (3d Com. 166,) lays down the rule broadly, that in contracts for provisions, a warranty is always implied that they are wholesome, and it is constantly understood, that the vendor undertakes that the commodity he sells is his own. The learned commentator is right in regard to the implication of a warranty of title on every sale of personal property, but has laid down the rule too Court of Appeals, Florida.-Taylor v. Union Bank of Florida. broadly in respect to provisions. The principle is not applicable when they are sold as merchandize, but only on sales for domestic use. Wright v. Hart, (18 Wend. 454, 464;) Emerson v. Brigham, (10 Mass, 197;) Jones v. Murray, (3 Monroe, 85;) Dyer, 75, 3 Camp. 351. In Van Brocklin v. Fonda, the plaintiff purchased of the defendant a quarter of beef. The animal had eaten too large a quantity of peas and oats, and was slaughtered for fear she would die, in consequence of her having eaten them, and it was held, that an action on this case would lie for the deceit. Senator Tracy, in Wright v. Hart, (18 Wen. 464,) says, that the proposition above laid down by Mr. Judge Blackstone, is an unsupported dictum, borrowed, probably, from the civil law, and which has not been sustained by judicial decisions. It was most emphatically overruled, in the case of Emerson v. Brigham, (10 Mass. 94.) That was an action for deceit on the sale of beef on facts almost precisely similar to those in this case, and Justice Sewall, repudiating the doctrine of Blackstone, says, "it is not implied in every sale of provisions that they are wholesome, any more than in sales of other articles." It is worthy of remark, that in every case I have found in the books, where a plaintiff has preaviled on this ground of implied too, is a word of a more limited signification than the word "provisions." Victuals, in its ordinary and popular sense, implies only what is used in a family or victualing house. Provisions is a more general term. The defendant here was a commission merchant, who does not seem to have possessed any means of knowing the quality of the beef, which was not equally accessible to the plaintiff. In short, I consider the true rule to be this: Where one sells victuals, beef, or flour, to be used in a family, or victualing house; a warranty is implied, that it is wholesome. But, when a merchant, whose business it is to sell provisions, sells beef or flour, or merchandize, no such warranty is implied. The quantity purchased by the defendant, and the testimony in the case shew, that the plaintiff bought it for the purpose of selling it again. I am opposed to interfering with the finding of the jury against the express warranty, and am decidedly of the opinion that there was no implied warranty. If correct in my conclusions, judgment must be for the defendant. COURT OF APPEALS. FLORIDA. warranty, or where the judges, in their Before the Hon. DILLON JORDAN and opinions, have talked of implied warranty, the action was not assumpsit, but an JUDGE BRONSON. UNION BANK OF FLORIDA, Appellee. January Term, 1844. PROMISSORY NÓTE-ENDORSER-NOTICE OF DISHONOR-EVIDENCE. Notice to endorser of promissory note, if sent by mail, must be directed to the Post Office, where the endorser usually receives his letters, or nearest to his residence. action on the case in the nature of deceit, J. TAYLOR, Executor Appellant, v. THE and the cases proceed upon the ground, that the vendor had peculiar means of knowledge, which good faith required him. to disclose. Take the case of Van Bracklin v. Fonda, where the defendant sold the beef of an animal, that was, in effect, diseased by over eating. No one can doubt that he was culpable in offering the beef for sale, and more so, in withholding from the purchaser the fact which induced. him to kill the animal. Roswell v. Vaughan, (Croke, Jac. 196,) has been pressed upon us by the counsel for the plaintiff. In that case two of the judges observed, that if a man sells "victuals" which is corrupt, without warranty, an action lies, because it is against the commonwealth. This remark clearly contemplates deceit, for it, in express terms, excludes the idea of warranty. "Victuals," The proof by plaintiff of receipt of notice by the endorser, where this rule is departed from, must be full and satisfactory. A witness testifying that his invariable practice was to comply with certain requests, and that he "believes" he did, but has no recollection of any instance in which he did so; nor any recollection of his doing so in the instances important ⚫ See Whiting v. Burt, ante p. 33. Court of Appeals, Florida. ---Taylor v. Union Bank of Florida. in the case in which he is called to testify; is not sufficient to warrant the inference that he did comply with such requests. What is due diligence, and sufficient notice, are questions of law to be decided by the Court, and should not be referred to the Jury. APPEAL from the Superior Court, M. D. for Leon county. The case is fully stated in the opinions delivered by the learned Judges. Thompson and Hagner and J. D. Westcott for the appellant, cited the following cases: Peters, 582; 21 Wendell, 643; 3 Hills N. Y. Rep. 520; 2 ib. 595; 14 Mass. 119; 1 Harris and John, 477; 23 Wendell, 623; 11 John Rep. 231; 5 Wendell, 15; Parkill v. Union Bank, and also Bembry v. Union Bank, in this court, January Term, 1841; Chitty on Bills, 526; 2 Camp. 177: Roscoe on Ev. 160-2; 4 Camp. 193; 1 Esp. Rep. 5; Roscoe on Bills of Ex. 206; Ry. and Moo. 144; 4 Bing: 715. E. C. Cabell, for the appellee cited 2 Peter's 121 and 543; 5 John Rep. 383; 9 Watts', 213; 5 Miller, 40; 2 John's cases, 337; 2 Kent Com. 104; Story on Bills, 382. BRONSON, J.-This was an action of assumpsit against the defendant as endorsee of a promissory note drawn by R. H. Berry, to the order of defendant, payable at the Union Bank, endorsed by defendant, and discounted by plaintiff. The only question presented to this Court is, as to the sufficiency of the notice to the defendant as endorser. It appears that when the note fell due, the defendant (Taylor), was a planter, and resided in the county of Leon, about twenty-two miles from Tallahassee, and within a mile and a half of the post office at Miccosukie, (which was the post office where he received his letters and papers), and that he had resided at the same place for about two years previous to that time, and did not come from Tallahassee more than two or three times in a year. The Notary who protested the note, gave notice of non-payment to defendant by depositing a letter, containing the notice, in the post office of Tallahasse, addressed to the defendant at Tallahassee. This was clearly no notice; but the plaintiff, in order to show that the notice was finally sent to the defendant, or did reach him, in troduced Wm. Hilliard, a witness, who was formerly employed in the post office at Tallahassee, and who testified that the defendant requested him to forward to the Miccosuki post office any letters which should come for him, (Taylor,) to the Tallahassee post office," that he BELIEVED he forwarded all such as came," and that it was "his invariable practice to observe such instructions." He also stated that he had been requested by the Notary who protested this note, to alter the address on any letters which he, the Notary, should put into the post office, if the same was incorreet, and to direct any letters when only the name of the individual was on the back of the letters. But on crossexamination, he stated that he did not recollect any instance in which he forwarded letters for the defendant to the Miccosukie post office, which had been addressed to him at Tallahassee; nor did he recollect of ever having altered the address of any letter according to the request of the Notary. Upon this testimony the plaintiffs contended they were entitled to a verdict, on the ground that the evidence was sufficient to warrant the inference, that the notice was actually sent to and received by Taylor. The cause was submitted to the jury, and the charge of the court, and they found a verdict for plaintiff. The first instruction to the jury, asked. for by the defendant, was very properly allowed by the judge, and the second one. as properly rejected; because the proposition contained in the second instruction might be correct, and yet by no means conclusive of the case, and the instruction, if given, might tend to mislead the jury. But the proof of notice was clearly not sufficient to entitle the plaintiff to recover, and we think the court ought so to have charged the jury. The witness, Hilliard, was one of two or more persons in the post office of Tallahassee, and could not of necessity know or see every letter that was deposited there; and he only "believes" that he obeyed the defendant's instructions to forward his letters to Miccosukie; but on cross-examination, he says expressly that he has no knowledge of ever having forwarded any letter to him, or of ever having altered the address of any letter directed to Taylor, which was put in the office by the |