1 3 Black. Coram. 165; Van Bracklin v. Fonda, 12 Johns. 468; Osgood v. Lewis, 2 Harr. & Gill, 495; Winsor v. Lombard, 18 Pick. 57; 2 Kent, Coram. 479. Upon a contract to supply provisions, not only is there an implied warranty that they shall be reasonably fit for the purpose for which they are intended; but if they be expressly warranted to pass official inspection, this does not exclude the former warranty implied by law. Bigge v. Parkinson, 7 H. & N. 955.
2 Winsor v. Lombard, 18 Pick. 57; Emerson v. Brigham, 10 Mass. 197; Moses v. Mead, 1 Denio, 378. See Burnby v. Bollett, 16 M. & W. 644; Humphreys v. Comline, 8 Blackf. 516.
3. Burnby v. Bollett, 16 M. & W. 644.
4 Gardiner v. Gray, 4 Camp. 144.
5 Bridge v. Waine, 1 Stark. 504. See, also, Shepherd v. Kain, 5 B. & Aid. 240. So if a certain number of barrels of No. 1 mackerel are sold, and by mistake some barrels of No. 3 mackerel and some barrels of salt are delivered, no title to the articles thus delivered passes to the when, in fact, it was not such a stone;1 or where a substance was represented in a bill of parcels as "indigo" which was a compound fraudulently made to resemble indigo.2 These, however, are evidently either pure matters of mistake in respect to the subject-matter of the contract, or of fraud; and in either case no contract, properly speaking, arises.3 The cases of a breach of implied warranty are cases where the article is of the proper kind and description, but of an inferior quality. A vendor only warrants impliedly the epithet, or adjective, and not the substantive. But whether they be considered as cases of fraud or mistake or as cases of implied warranty, the vendor is equally bound to furnish goods which correspond in species to his representation, and bear the name of the article supposed to be bought and sold.4 purchaser. Gardner v. Lane, 9 Allen, 492 (1865). But if under a sale of a number of barrels of mackerel a delivery is made which includes some mackerel packed in half-barrels, the title to them will pass to the purchaser, if they are of the same quality described in the agreement. Ib.
1 Chandelor v. Lopus, Cro. Jac. 4. It seems to us that Anderson, J., was the only judge who appreciated the real point of this case. He held that the deceit in selling the stone as a bezoar, when it was not, was a sufficient cause of action. This case went off, however, on a question of pleading. See Dyer, 75, note, and Morrill v. Wallace, 9 N. H. 113, where Parker, J., says: "This case ,as stated in Croke, can hardly be regarded as authority in the present day. A report of the opinion of Mr. Justice Popham in that case (Dyer, 75, note) is more in accordance with recent decisions." See, also, Borrekins v. Bevan, 3 Rawle, 23.
2 Henshaw v. Robins, 9 Met. 83; Nichol v. Godts, 10 Exch. 191; 26 Eng. Law & Eq. 527.
3 See ante, Mistake, § 526 to § 541; Henderson v. Sevey, 2 Me. 139; Sheldon v. Capron, 3 R. I. 171.
4 Henshaw v. Robins, 9 Met. 83; Borrekins v. Bevan, 3 Rawle, 23. In this case the court, after saying that Chandelor v. Lopus, Cro. Jac. 4, as well as the cases of Seixas v. Woods, 2 Caines, 48, and Swett v. Colgate, 20 Johns. 196, in which the contrary doctrine was held, must be abandoned, goes on to say that "in all sales there is an implied warranty that the article corresponds in species with the commodity sold, unless there are some facts and circumstances existing in the case, of which the jury, under the direction of the court, are to judge, which clearly show that the purchaser took upon himself the risk of determining not only the quality of the goods, but the kind he purchased, or where he may waive his right."
One who agreed to sell "Manila sugar" to refiners, and delivered to them what is usually called in commerce by that name, can, in the absence of fraud, misrepresentation, or warranty, recover the agreed price, although the article delivered contained more impurities than sugar known under that name usually does. Gossler v. Eagle Sugar Refinery, 103 Mass. 331 (1869).