§ 1060. There is scarcely a subject in the law more perplexed and unsatisfactory than the law relating to implied warranty. The old rule of the common law in relation to sales was caveat emptor. To cases of express warranty this rule did not apply; and all that was necessary for the plaintiff to prove was that the warranty was not complied with, without alleging or proving fraud.2 But in cases of implied warranty the universal form of pleading was by an action on the case, the gist of which is the wrongful act of the defendant, and not merely his breach of promise, - that action being technically an action of tort, and not of assumpsit.3 In all cases, therefore, whether there were or were not fraud in point of fact, it was absolutely necessary to make an allegation of fraud in the declaration, in order to support the form and fiction of the action; and then fraud might be implied from the circumstances, or expressly proved. If the fraud were not alleged in the pleadings, the plaintiff' could not for technical reasons recover. Thus, in an action of trespass on the case, where the defendant affirmed a certain stone to be a bezoar stone, which was not, no allegation that he knew his representation to be false was made; and it was held that there was no cause to support the action, because no fraud was alleged.4

1 Lord Abinger in Chanter v. Hopkins, 4 M. & W. 399. And see Stucley v. Baily, 1 H. & C. 415; McFarland v. Newman, 9 Watts, 55.

2 Pasley v. Freeman, 3 T. R. 61.

3 Law Mag. vol iii. p. 191. See, also, upon this subject, Story on Sales, § 364 et seq.

4 Chandelor v. Lopus, Cro. Jac. 4, more intelligibly reported in Dyer, 75 a, note.

§ 1061. But, at a later period, a new modification of this rule was introduced by Lord Chief Justice Holt, which was that where there was an intention to warrant, no formal words were necessary, and, therefore, that a warranty might be implied from the nature and circumstances of the case. The maxim then arose that a sound price implied a warranty. This doctrine was, however, exploded by Lord Mansfield.1 Soon after, the form of pleading by an action on the case was superseded by the action of assumpsit, the gist of which is the breach of promise or undertaking of the vendor, and not his fraud. This new form of action led to many changes and modifications in the law, and accounts for many discrepancies and contradictions in the older cases. Ever since the action of assumpsit was introduced as the form of pleading upon cases of implied warranty, there has been a tendency in the common law to approximate to the rule of the Roman law, which implies a warranty that the goods sold are merchantable, and fit for the purpose for which they are known to be bought.

§ 1062. A warranty of title will be presumed when the goods2 sold are in the possession of the vendor, whether he make any affirmation of title or not.3 And the possession of a bailee or agent of the vendor is the possession of the vendor himself, and the implied warranty of title arises.1 But where the subject-matter of sale is not in the possession of the vendor, it has been held that no such warranty will be presumed, without an affirmation of title.2 Yet there is grave doubt of the soundness of any such distinction;3 for a sale of

1 Stuart v. Wilkins, Doug. 20; Parkinson v. Lee, 2 East, 314; La Neuville v. Nourse, 3 Camp. 351. In North and South Carolina the doctrine that a sound price implies a warranty of soundness was formerly adopted. Missroon v. Waldo, 2 Nott & McCord, 76; Barnard v. Yates, 1 Nott& McCord, 142; Timrod v. Shoolbred, 1 Bay, 324; The State v. Gaillard, 2 Bay, 19; Whitefield v. M'Leod, 380; Crawford v. Wilson, 2 Rep. Const. (N. S.) 353; Galbraith v. Whyte, 1 Haywood, 464. The doctrine has been overruled in Connecticut; Dean v. Mason, 4 Conn. 428; and, indeed, is opposed to the weight of authority, which has almost universally followed the doctrine of Lord Mansfield, as stated in the text. And the later cases in South Carolina incline to narrow the doctrine. Parker v. Partlow, 12 Rich. 679; Prescott v. Holmes, 7 Rich..Eq. 9.

2 So on the sale by one person of a judgment recovered by another, a warranty of title is implied, embracing also a warranty that the judgment is due and unpaid, where nothing is said upon the subject. Furniss v. Ferguson, 34 N. Y. 485 (1866).

3 Coolidge v. Brigham, 1 Met. 551; McCoy v. Artcher, 3 Barb. 323; Medina v. Stoughton, 1 Salk. 210; 1 Ld. Raym. 593; Adamson v. Jarvis, 12 Moore, 253; Pasley v. Freeman, 3 T. R. 57; Crosse v. Gardner, Carth.

90; Peto v. Blades, 5 Taunt. 657; Robinson v. Anderton, Peake, 94; Souter v. Drake, 5 B. & Ad. 992, 1002; 3 Nev. & Man. 40; Purvis v. Rayer, 9 Price, 488; Dorsey v. Jackman, 1 Serg. & Rawle, 42; Harvey v. Young, Yelv. 21 (Am. ed.), note by Mr. Metcalf; Trigg v. Faris, 5 Humph. 344; Burt v. Dewey, 40 N. Y. 283 (1869); Thurston v. Spratt, 52 Me. 202 (1863); Gross v. Kierski, 41 Cal. 111 (1871).

1 Shattuck v. Green, 104 Mass. 42 (1870). And see Hallard v. Bliss, 12 Allen, 590; Cushing v. Breed, 14 Allen, 376.

2 See this distinction recognized in Edick v. Crim, 10 Barb. 445; Dresser v. Ainsworth, 9 Barb. 619; Huntingdon v. Hall, 39 Me. 501; Scran-ton v. Clark, 39 N. Y. 220; 6 Tr. App. 132 (1868).

3 The first case in which this distinction is stated is Roswel v. Vaughan, Cro. Jac. 197, which was an action brought to recover damages for a failure of title to the tithes of the vicarage at South Stoke, then in the possession of another. Tanfield, Chief Baron, said: "But here he had not any possession; and it is no more than if one should sell lands wherein another is in possession, or a horse whereof another is possessed, without covenant or warranty for the enjoyment; it is at the peril of him who buys, and not reason he should have an action by the law, where he did not provide for himself." Here, it will be observed, there was no affirmation of title. The rule is also stated by Lord Holt in an obiter dictum in Medina v. Stoughton, 1 Salk. 210, in these words: "Where one having the possession of any personal chattel sells it, the bare affirming it to be his amounts to a warranty, and an action lies on the affirmation; for his having possession is a color of title, and perhaps no other title can be made out; aliter where the seller is out of possession; for there maybe room to question the seller's title, and caveat emptor in such case to have either an express warranty or a good title." But in the report of the same case in Ld. Raym. 593, no such dictum appears; and Mr. Justice Buller, in Pasley v. Freeman, 3 T. R. 58, commenting on this dictum, says: "If an affirmation at the time of the sale be a warranty, I cannot feel a distinction between the vendor's being in or out of possession. The thing is bought of him, and in consequence of his assertion; and if there be any difference, it seems to me that the case is strongest against the vendor when he is out of possession, because the vendee has then nothing but the warranty to rely on." The last case directly overrules the former, both the cases supposing an express affirmation of title by the vendor. The rule, therefore, that an implied warranty of title does not arise when the vena chattel cannot actually take place without a change of title, and therefore the mere undertaking absolutely to sell of dor has no possession of the goods, where there is no affirmation of ownership, thus far rests on the old case of Roswel v. Vaughan, decided when the strictest rules of caveat emptor were enforced. I am aware of no subsequent case in England where a distinction has been made between a vendor in possession and a vendor out of possession of the subject-matter of sale. In Adamson v. Jarvis, 12 Moore, 253, 4 Bing. 73, where goods were sold by an auctioneer for his principal, who had no title to them, the distinction was not necessary, for the auctioneer had possession of the goods, and, besides, there was a direct affirmation of ownership by the principal, creating an express warranty. The rule laid down in this case merely affirms the undisputed doctrine that where the vendor sells goods in his possession, affirming them to be his, he warrants the title. Mr. Justice Blackstone, in his Commentaries (part 3, p. 451), alludes to no such distinction, but thus broadly states the law: " By the civil law an implied warranty was annexed to every sale, in respect to the title of the vendor; and so, too, in our law, a purchaser of goods and chattels may have a satisfaction from the seller, if he sells them as his own, and the title proves deficient, without any express warranty for that purpose." Again, in Purvis v. Rayer, 9 Price, 488, a written agreement for the sale of the lease of a house was made by an agent of the lessee, the house being in the possession of the lessee and not of the agent, except by implication, and the abstract of title not satisfying the purchaser, he declined to fulfil the agreement; and the question arose whether a person contracting to purchase a leasehold interest can insist on being shown that the lessor himself had a good title, and it was held that he could. The court, after great consideration, and apparently after consultation with Lord Eldon, gave the decision. The Lord Chief Baron said: "A vendee is not bound to take a lease without being satisfied in that respect, merely because the lessee has neglected to stipulate with his lessor for that right, which would have enabled him to show the validity of his title when he should be disposed to sell his interest, and without which he ought not to oblige a purchaser to take it. It might as well be said, as it seems to me, that any other vendor of property not his own cannot be compelled to show a title to what he sells, if inability to do so is to be considered a valid excuse. Surely a vendee of a lease is not to lose his money because the vendor has not the means of producing his lessor's title, or to be in that respect in a different and worse situation than the purchaser of any other interest, merely because the lessee has not for his own sake taken care to provide that the lessor shall obviate the difficulty, as he might have done, by furnishing him with the means of satisfying a purchaser, in case he should require it. "It is said that it is now the usual course to state in the advertisement for the sale of any such property that the title of the lessor will not be warranted. That may be so; and leases may be purchased on such itself imports a warranty of title. If there be an express affirmation or assurance of ownership, it constitutes an express terms, if purchasers are to be found who will buy them with so much rashness; but the question here is, whether a court of equity will compel a man to take a lease which he has contracted to purchase generally, and without any thing further passing between the parties, where the lessee will not or cannot show that his lessor has a good title to the subject-matter of the lease. I am of opinion that I cannot make the purchaser suffer for the laches of the vendor. The advertisement does not give him any right to put the vendee to any risk. The general doctrine of equity is against such a proposition, unless the case of leasehold property be an exception and an anomaly with respect to all other property." See, also, Souter v. Drake, 5B. & Ad. 992, in which case Lord Denmansaid: "For the reasons above given we come to the conclusion, unless there be a stipulation to the contrary, there is in every contract for the sale of a lease an implied undertaking to make out the lessor's title to demise, as well as that of the vendor to the lease itself, which implied undertaking is available at law as well as in equity."