1 Jones v. Bright, 5 Bing. 533; Brown v. Edgington, 2 M. & G. 279; Carnochan v. Gould, 1 Bailey, 179; Brenton v. Davis, 8 Blackf. 317. The same rule applies to a mechanic or artisan who undertakes to do particular work. See ante, § 891, 896.
2 Ollivant v. Bayley, 5 Q. B. 289. See, also, Shepherd v. Pybus, 4 Scott, N. R. 444.
3 George v. Skivington, Law R. 5 Exch. 1 (1869), an interesting case upon this point.
§ 1077. Fifthly, a warranty will be implied against all latent defects in two cases: 1st. When the seller knew that the buyer did not rely on his own judgment, but on that of the seller, who knew at the time, or might have known, the existence of the defects. 2d. Where, from the situation of the parties (as in the case of a manufacturer or producer), the seller might have provided against the existence of defects; or where a warranty may be presumed from the very nature of the transaction.4 The ground of this warranty is the in the sale of provisions, that they are sound and wholesome, or, in other words, that they are fit to be eaten; on the ground that it is not only salutary, but necessary to the preservation of health and life.1 But this warranty is restricted to sales of provisions "for domestic use" and for immediate consumption, and does not apply to provisions which are sold as merchandise, and are packed, inspected, and prepared for exportation.2 In the latter case the warranties which the law implies are only those which arise in the sales of other articles of merchandise. So, also, it has been said that this warranty applies only to provisions sold by general dealers, who are in the habit and trade of selling provisions, such as victuallers, taverners, butchers, and the like, and not to others unless in cases of fraud, or when the seller knows the articles not to be good.3
1 Langridge v. Levy, 2 M. & W. 519, affirmed in the Exch. Chamber, 4 Id. 337. It is true that there was a warranty here; but it was made to the plaintiff's father, to whom the gun was sold, and the court held expressly that his son could not recover on the ground of contract, for want of privity.
2 Francis v. Cockrell, Law It. 5 Q. B. 184, affirmed in the Exch. Chamber, Id. 501 (1870).
3 Loop v. Litchfield, 42 N. Y. 351 (1870), distinguishing Thomas v. Winchester, 6 N. Y. 397, a sale of a powerful drug.
4 Jones v. Bright, 5 Bing. 533; 1 Dan. & Lloyd, 304; Budd v. Fairmaner, 8 Bing. 48; 1 M. & S. 81; Gallagher v. Waring. 9 Wend. 20; Martin v. Morgan, 3 Moore, 635. K manufactured goods are sold by sample by a merchant who is not a manufacturer, and both the sample and the bulk of the goods contain a latent defect, there is no implied warranty against the defect, and evidence is inadmissible to show that by the usage of merchants the seller is responsible therefor; and if such sale is made through a commission merchant who is not authorized to sell on credit, implied trust and confidence reposed in the seller by the buyer, with the seller's tacit consent; and, therefore, whenever this reason fails, the warranty fails. Thus, if a sale of an article be made "with all faults," it amounts to a notification to the buyer that the seller will not subject himself to any liability, or accept any trust or confidence; and he, therefore, is not liable for latent defects,1 unless he fraudulently conceal them, or knowingly suffer the buyer to delude himself; in which case the fraud would render him responsible.2 "With all faults" must mean, however, all faults which an article may have, consistently with its being the thing described.3
§ 1078. Under this head, also, arises the implied warranty he must account to the consignor for the price, without deduction for such defect. Dickinson v. Gay, 7 Allen, 29 (1863).
1 Baglehole v. Walters, 3 Camp. 154; Bywater v. Richardson, 3 Nev. & Man. 752; 1 Ad. & El. 508. See Taylor v. Bullen, 5 Exch. 779; 1 Eng. Law & Eq. 472.
2 Schneider v. Heath, 3 Camp. 506; Freeman v. Baker, 2 Nev. & Man. 446; 5 C. & P. 475; Polhill v. Walter, 3 B. & Ad. 114; Fletcher v. Bowsher, 2 Stark. 561. In Doggett v. Emerson, 3 Story, 732, Mr. Justice Story says: "It appears to me that it is high time that the principles of courts of equity upon the subject of sales and purchases should be better understood and more rigidly enforced in the community. It is equally promotive of sound morals, fair dealing, and public justice and policy, that every vendor should distinctly comprehend not only that good faith should reign over all his conduct in relation to the sale, but that there should be the most scrupulous good faith, an exalted honesty, or, as it is often felicitously expressed, uberrima fides, in every representation made by him as an inducement to the sale. He should, literally, in his representation, tell the truth, the whole truth, and nothing but the truth. If his representation is false in any one substantial circumstance going to the inducement or essence of the bargain, and the vendee is thereby misled, the sale is voidable; and it is usually immaterial whether the representation be wilfully and designedly false, or ignorantly or negligently untrue. The vendor acts at his peril, and is bound by every syllable he utters or proclaims, or knowingly impresses upon the vendee as a lure or decisive motive for the bargain. And I cannot but believe, if this doctrine of law had been steadfastly kept in view, and fairly upheld by public opinion, the various speculations, which have been so sad a reproach to our country, would have been greatly averted if not entirely suppressed by its salutary operation."
3 Shepherd v. Kain, 5 B. & Ald. 240.
§ 1079. There is a class of cases which is usually treated as coming under the head of Implied Warranty, but to which the doctrine of warranty seems to be wholly inapplicable. These cases are where the article actually purchased is different in species from that which was contracted for; as where an article was bought as "waste silk," which could not be sold under that denomination;4 and where something was bought as "scarlet cuttings" which was not in reality "scarlet cuttings"5 or where a stone was sold for a bezoar stone,