(p) Carson v. Bailie, 19 Penn. St. 375;

Lord v. Grow, 39 Penn. St. 88.

(pp) Brown v. Bigelow, 10 Allen, 242. (pq) Berans v. Farrell, 18 La. Ann. 232.

1 Where there is no opportunity to inspect the commodity, as in the case of canned fruit or vegetables, the maxim caveat emptor does not apply. Boyd v. Wilson, 83 Pa. 319. And see Weiger v. Could, 86 Ill. 180; Lord v. Grow, 39 Pa. 88; 1 ease v. Sabin, 38 Vt. 432; Best v. Flint, 58 Vt. 543; Merriam v. Field, 39 Wis 578 without any examination on his own part as to the quality of the thing offered, it has been held, that the rule of caveat emptor does not apply, because it cannot apply, and that the seller warrants that the goods he offers for sale are, in respect to their qualities, what the purchaser may fairly understand them to be, in other words, that they are of merchantable value, and proper subjects of trade. (q) It might seem that the reason of this rule should apply to all cases where an article is sold of which the value is materially affected by some defect which the buyer cannot know or discover. But it is not yet conceded that in all such cases there is an implied warranty. The implication does not appear to extend to cases where an examination would be fruitless, but only to those in which there can be no examination. It is true, that in the fluctuation which has marked the course of adjudication on the subject of warranty with sale, there is a series of cases in which, for a considerable time, a principle seemed to be acquiring favor, which was almost equivalent to a rule that every sale carried with it an implied warranty of the merchantable quality of the goods sold. 1 Of course such a rule would in fact

(q) Hanks v. McKee, 2 Lit. 227. Gardiner v. Gray, 4 Camp. 144, is the leading case upon this point. In that case Lord Ellenborough, speaking to this point, says: " I am of opinion that under such circumstances the purchaser has a right to expect a salable article answering the description in the contract. Without any particular warranty this is an implied term in every such contract. Where there is no opportunity to inspect the commodity, the maxim of caveat emptor does not apply. He cannot without a warranty insist that it shall be of any particular quality or fineness, but the intention of both parties must be taken to be, that it shall be salable in the market under the denomination mentioned in the contract between them. The purchaser cannot be supposed to buy goods to place them on a dunghill." This case is confirmed by Wieler v. Schilizzi, 17 C. B. 619. See also the case of Gallagher v. Waring, 9 Wend. 20, where the court were inclined to extend the rule to the case of a sale of cotton in bales, lying in the storehouse of the vendor, situate in the place where both vendor and vendee resided, notwithstanding that the vendor had no better opportunity than the vendee for the inspection of the article. The case of Hyatt v. Boyle, 5 G & J. 110, also holds, that the rule of caveat emptor does not apply, if the buyer has no opportunity to inspect the goods, and in such case the seller impliedly warrants them to be merchantable. See a strong case to this effect in Merriam v. Field, 24 Wis. 640. But the mere fact that the examination is attended with inconvenience to the purchaser is not sufficient to dispense with the rule. It must be morally impracticable. See, on the point that an opportunity which the buyer has to inspect the thing sold prevents an implied warranty, Taymon v. Mitchell, 1 Md. Ch. 496, and Carley v. Wilkins, 6 Barb. 557. And see also, as qualifying this rule, Foster v. Swasey, 2 Wood. & M. 217, and Taylor v. Fleet, 1 Barb. 471.

1 Where the seller undertakes to supply goods to be manufactured by him, or goods which for any reason the buyer has no opportunity to examine, a warranty is implied that the goods shall be merchantable. Jones v. Just, L. R. 3 Q. B. 197; Weed v. Dyer, 53 Ark. 155; Blackwood v. Cutting Packing Co., 76 Cal 212; Wilcox v. Hall, 53 Ga. 635; Mann v. Everston, 32 Ind. 355; Weiger v. Gould, 86 Ill. 180; Chicago, etc. Co. v. Tilton, 87 Ill. 547; Murchie v. Cornell, 155 Mass. 60; Grieb v. Cole, 60 annul that of caveat emptor. But of late the courts Beam to be retracing their steps; and, in this country at least, we consider the ancient rule as distinctly established. (r) There are but two of our States in which it is an acknowledged rule of law that a sale of a chattel for a full price carries with it an implied warranty. And in one of these the civil law, of which this is a principle, prevails. (s)

This distinction has been asserted. If the contract be executed, the buyer must take the thing sold with all its defects, if there be neither warranty nor fraud; but an executory contract to sell carries an obligation that the thing sold shall be merchantable. (ss)l The reasons for this distinction are not quite clear.

If one contracts to manufacture for a buyer an article of a certain quality, and when the article is delivered it is so deficient as to justify a refusal to accept, it is held that the buyer may

(r) The weight of authority decidedly determines that a sale for a sound price implies no warranty of quality, or that the article is merchantable. Dean v. Mason, 4 Conn. 428, is an able case on this subject; Holden v. Dakin, 4 Johns. 421; Snell v. Moses, 1 id. 96; Johnston v Cope, 3 Har. & J 89; Cozzins v. Whit-aker, 3 Stew. & P. 322; La Neuville v. Nourse, 3 Camp. 351; West v. Cunningham, 9 Port. (Ala.) 104; Wetherill v. Neilson, 20 Penn. St. 448.

(s) South Carolina and Louisiana are the only States in which it is held that the sale of a chattel for a sound price creates a warranty against all faults known or unknown to the seller. Timrod v. Shoolbred, 1 Bay, 324; Dewees v. Mor gan, 1 Mart. (La.) 1; State v. Gaillard, 2 Bay, 19; Barnard v. Yates, 1 Nott & McC. 142; Missroon v. Waldo, 2 id 76; Bulwinkle v. Cramer, 27 S. C. 376; Me-lancon v Robichaux, 17 La. 97. But this does not extend to sales of real estate. Rupart v. Dunn, 1 Rich. L. 101. And in sales of personal property, if the buyer is informed fully of all the circumstances, and has a fair opportunity of informing himself, he is bound by his contract, although it be a losing one. Whitefield v. MrLeod, 2 Bay, 380. And see Carnochan v. Gould, 1 Bailey, 179; Rose v. Beatie, 2 Nott & McC. 538. And if the parties expressly agree that the buyer shall take the property at his own risk, the vendor is not answerable for its soundness. Thompson v. Lindsay, 3 Brevard, 305. And a sound price does not imply a value of the property equal to the price, but only that there is no unsoundness. And such unsoundness must materially affect the article. Smith v Rice, 1 Bailey, 648. In Presbnry v. Morris, 18 Mo. 165, it is held, that the sale of a land-warrant carries with it an implied warranty of its validity, and the Court of Claims holds that a sale of gov. ernment goods captured in war, carries a warranty of title to the purchaser. Post v. U. S. 19 Law Rep. 12.