US SUPREME COURT DECISIONS

1. If no exception have been taken below to a question asked on trial, no objection can be made to it here.

2. If the answer to a question asked may tend to prove the matters alleged in the narr. -- if it be a link in the chain of proof -- the question may be asked. It is not necessary that it be sufficient to prove them.

3. In an action for false warranty, whether the action be in assumpsit or in tort, a scienter need not be averred, and if averred, need not be proved.

4. Authority without restriction to an agent to sell carries with it authority to warrant.

5. Where a contract of sale is complete, the vendor cannot hold the vendee to terms not agreed on by sending him a bill or memorandum of sale with such terms set out upon it as that "no claims for deficiencies or imperfections will be allowed unless made within seven days from the receipt of goods."

6. Whenever the evidence is not legally sufficient to warrant a recovery, it is the duty of the court to instruct the jury accordingly. But if there be evidence from which the jury may draw an inference in the matter, the case ought not to be taken from them. It is not necessary in order for the court properly to leave the case with the jury that the evidence leads unavoidably to the conclusion that the plaintiff has no case. If there be evidence proper to be left to the jury, it should be left and a remedy for a wrong verdict sought in a motion for new trial.

This was an action on the case for false warranty and for deceit in the sale of one hundred casks of Dutch madder, and was brought in the Circuit Court for the Southern District of New York. The declaration contained seven counts.

The first three were for false warranty (without any scienter),

1st. That it was a prime article.

2d. That it was pure and unadulterated.

3d. That it was good merchantable Dutch madder.

The last three counts were for deceitful representations (with scienter) of the same facts. The fourth count, after stating chanrobles.com-red

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that the plaintiffs were calico printers, and required and were accustomed to use Dutch madder, avers that the defendants, knowing this and that the madder was for use, "by falsely and fraudulently representing it to be fit and proper for use in their business," sold the same, whereas it was not such, and so the defendants "deceived the plaintiffs."

The defendants pleaded not guilty to the whole declaration.

The facts were these:

The madder was owned by merchants in Amsterdam, who consigned it to the defendants in New York for sale upon commission. The vessel containing the madder arrived at New York on the 6th April, 1856, previous to which the defendants had received, by a Liverpool steamer, a sample put up in the usual way in a small clear glass bottle, with a ground glass stopper, covered with bladder and marked 1 to 100, according to the number of casks. The sample was handed to R. H. Green & Sons, who were regular brokers in drugs &c., in New York, to be sold.

Mr. Green gave the following account:

"I received from a young man in the employ of defendants a small bottle of madder, marked 1 to 100, said to represent one hundred casks of Dutch madder, with the injunction that it must not be opened. He left it with me. I asked him subsequently why he would not have it opened, and he replied that it was the only sample bottle which they had, and that it would deteriorate by being opened, which is the fact. The vessel with the madder was here. They were urgent to have it taken from the wharf, and as I was about going eastward, I said I would try and sell it, but still I was told not to have it opened. It was very handsome to look at. I went to Providence and called on the Allens. Mr. Allen is one of our best calico printers, and has always been in the habit of using the best madder. Young Allen went with me to the works; he wanted to see his overseer. We met his overseer, and the bottle was submitted to him; he thought it was handsome, and the conclusion was they agreed to take it. The price was named. He inquired concerning the quality. I told him I knew nothing

Page 68 U. S. 361

of it, except that it came from one of our best houses; the standing of the house was the best guaranty. The conversation carried the idea that it was very handsome madder. . . . The price named was 11 1/4 cents per pound for one hundred casks, without knowing the amount contained in them. He said he would take it, and I said he should have it. The price was fixed by the defendants. The sample bottle was in the usual form of such samples. It is usual to have one for every cask, but here there was but one. I brought the bottle back with me from Providence. Subsequently, I was applied to for the sample bottle, and sent it on; I have never seen it since. There was no objection to my giving the sample bottle to the plaintiffs after the sale; it then belonged to them. I promised to bring back the bottle from Providence. I did so, and afterwards sent it back to Providence."

[This bottle, it appeared, had been lost by the Allens.]

The overseer testified as follows:

"I saw the sample bottle in question in Mr. Green's hands, and was told not to open it. It was very fair to look at, and I said so at the time, but I told them that I could not tell anything about it unless the bottle could be opened. I was asked about it, and I said it looked very well; it could not be judged of by anyone without opening the sample bottle. It is the custom to open and examine the sample bottles. There was no sand in the bottle apparent to the eye; I saw none in it. No one could have discovered adulteration from looking at the madder in the bottle. . . . No wise man will buy madder without looking at it; this is the first I ever knew of a purchase's being made where it was not examined. The madder in the bottle is always taken out, rubbed and examined. I have had an experience of forty-five years in the business. On the occasion of this purchase, I told them that it was impossible to tell what the quality of the madder was unless I examined it; I could only say that it looked very well."

Without other examination and without any knowledge of the quality of the sample except as it appeared to the eye and as inferred from "the standing of the house," the plaintiffs agreed to purchase the lot at 11 1/4 cents a pound. Accordingly, chanrobles.com-red

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upon his return to New York, April 17, Mr. Green made an entry of sale in his sales book and sent a copy to the defendants. The madder was afterwards weighed, a bill made out by the defendants, and, on the 28th of April, forwarded to the plaintiffs. This bill contained a memorandum notice, in small type, in one corner, reading thus: "No claims for deficiencies or imperfections allowed unless made within seven days from receipt of goods." It appeared from the testimony of foreign witnesses that the madder in the flask was of the same quality as that in the casks. About three weeks after the madder was received by the plaintiffs at their print works, they began to use it, when they found it not equal to what they had been accustomed to use. It was "full of sand;" "they were obliged to shovel the sand out of the vats twice a day;" the quantity of sand "varied from two and a half ounces to four ounces in the pound;" "this variation took place in the same cask;" sand was found "in streaks" in it; it was "streaked through and through with sand;" it "was palpable as soon as it was opened;" "the streaks were both lengthwise and crosswise;" "they were strata."

It should be here mentioned that as was here proved, there are different qualities of madder, such as mull, little ombro, ombro, and crops, but they are all known by the common term of Dutch madder, and also that all madder has in it more or less sand and other impurities. Even the first quality has in it from two to eight percent, but this madder "was out of all proportion, out of all character;" thirty to forty percent of impurity, fifteen to sixteen percent being sand.

The testimony being closed, the counsel for the defendants requested the court to instruct the jury as follows:

"1. The gist of the plaintiffs' action is an alleged false warranty and deceit on the part of the defendants in the sale of the madder in question, and to entitle them to recover against the defendants, they must establish to the satisfaction of the jury such alleged false warranty and deceit."

"2. That in this form of action, the plaintiff cannot recover

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without evidence to establish a scienter on the part of the defendants."

"3. That the broker had no authority or power to warrant that the bulk should correspond with the madder contained in the bottle, and thus bind the defendants. But even if he had such power, still he did not so warrant the same."

"4. That there was not such a sale by sample as in law amounts to a warranty that the bulk should correspond with the sample."

"5. That if there was any warranty, it was at most an implied one, under which the defendants are not liable for any adulteration of the bulk of the madder unless the plaintiff have by competent evidence established fraud on the part of the defendant in respect thereto."

"6. If there was a warranty of any kind, still the terms stated in the bill rendered limited the defendants' liability thereon to seven days, and as no demand for damages was made by the plaintiff within that time, they are not entitled to recover in this action."

The court refused to give anyone of the instructions asked for, and the counsel for the defendants thereupon excepted.

During the trial, the broker was asked by the plaintiffs' counsel what kind of madder he had been in the habit of selling the plaintiffs, to which the defendants' counsel objected. The court overruled the objection, and counsel for the defendants excepted. The witness, however, said nothing responsive to the question until cross-examined by the defendants' counsel, and no objection appeared in the record to the testimony which he gave.

The jury rendered a verdict for the plaintiffs for $7,333, being a deduction of thirty percent from the price paid for the madder, which reduced the same to 7 7/8 cents per pound. Thereupon the defendants took a bill of exceptions. chanrobles.com-red

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