tisements, memoranda of sale, sale notes, invoices, or bill of parcels.9 If the description imports a quality or grade of goods, as well as a kind or species, there is a two-fold warranty of identity of kind and of quality.10 The words descriptive of quality, however, must have acquired a commercial signification, and not be merely commendatory," otherwise if the goods conform to the description in kind, no further warranty of quality is implied.12 ranty. They might well rely on the description of the rubber if they were content to accept rubber, which should merely refer to that description." Gould v. Stein, 149 Mass. 570, 577. Citing Henshaw v. Robins, 50 Mass. (9 Met.) 83; Jones v. Just, L. R. 3 Q. B. 197. 9. "Without express warranty or actual fraud, every person who sells goods of a certain denomination or description, undertakes, as a part of his contract, that the thing delivered corresponds to the description, and is in fact an article of the kind, species, and quality thus expressed in the contract of sale; the rule being that, upon a sale of goods by a written memorandum or bill of parcels, the vendor undertakes, in the nature of warranting, that the thing sold and delivered is that which is described. This rule applies whether the description be more or less particular and exact in enumerating the qualities of the goods sold." Winsor v. Lombard, 35 Mass. (18 Pick.) 57, 60. 10. 2 Mechem on Sales, § 1336. "Winter-pressed sperm oil" is a warranty that the article is sperm oil and also winter-pressed. Osgood v. Lewis, 2 H. & G. (Md.) 495. "Bales Ceara scrap rubber as per samples of second quality" is a warranty of conformity to sample and of quality. Gould v. Stein, 149 Mass. 570. "Prime quality winter oil" is a warranty of kind and quality. Hastings v. Lovering, 19 Mass. (2 Pick.) 214. "Choice sugar-cured canvassed hams" imports a warranty of quality as well as identity of kind. Forcheimer v. Stewart, 65 Ia. 594, 598. See, also, Burr v. Redhead, etc., Co., 52 Neb. 617 (bicycles of "good material and highest grade possible "); Shambaugh v. Current (1900), 111 Ia. 121 (thoroughbred animals). See examples in Benjamin on Sales, pp. 680-682. "Where goods are described in a sale as of a certain quality which is well known in the market as indicating goods of a distinct, though not absolutely uniform grade or standard, the description imports a warranty that the goods are of that grade or standard. In such cases the words denoting the grade or quality of the goods are not to be treated as merely words of general commendation, but they are held to be words having a specific commercial signification." Gould v. Stein, 149 Mass. 570, 575. Citing Forcheimer v. Stewart, 65 Ia. 593; Hastings v. Lovering, 19 Mass. (2 Pick.) 214; Hogins v. Plympton, 28 Mass. (11 Pick.) 97; Winsor v. Lombard, 35 Mass. (18 Pick.) 57, 60; Henshaw v. Robins, 50 Mass. (9 Met.) 83; Chisholm v. Proudfoot, 15 U. C. Q. B. 203; Mader v. Jones, 1 Rus. & Ches. (N. S.) 82. The failure of imported goods to correspond in quality with the description of the contract is not a risk "incident to the importation assumed by the purchaser. Maynard v. Weeks, 181 Mass. 368. 11. Gould v. Stein, 149 Mass. 570; Maxwell v. Lee, 34 Minn. 511. Of course this implied warranty of correspondence with description may be negatived by an express agreement of the parties.13 If the goods are sold by description and sample both, the description will determine the kind of goods, and the sample the quality.14 12. DeWitt v. Berry, 134 U. S. 306; Peoria Grape Sugar Co. v. Turvey, 175 Ill. 631; Diebold Safe Co. v. Huston, 55 Kans. 104; Hyatt v. Boyle, 5 G. & J. (Md.) 110; Lamb v. Crafts, 53 Mass. (12 Met.) 353; Rice v. Codman, 83 Mass. (1 Allen) 377; Swett v. Shumway, 102 Mass. 365; Gossler v. Eagle Sugar Refinery, 103 Mass. 331; Day v. Mapes-Reeves Construction Co., 174 Mass. 412; Wisconsin, etc., Brick Co. v. Hood, 60 Minn. 401, 67 Minn. 329; Gregg v. Page Belting Co., 69 N. H. 247; Jennings v. Gratz, 3 Rawl. (Pa.) 168; Shisler v. Baxter, 109 Pa. St. 443; Jarecki Mfg. Co. v. Kerr, 165 Pa. St. 529; Mahaffey v. Ferguson, 156 Pa. St. 170; Barr v. Gibson (1838), 3 M. & W. 390; Ward v. Hobbs (1874), 4 App. Cas. 13; Wieler v. Schilizzi (1856), 7 C. B. 619. "In general, the only contract which arises on the sale of an article by a description, by its known designation in the market, is that it is of the kind specified. If the article corresponds with that description, no warranty is implied that it shall answer the particular purpose in view of which the purchase was made. Chanter v. Hopkins (1858), 4 M. & W. 399, 414; Ollivant v. Bayley, 5 Q. B. 288; Winsor v. Lombard, 35 Mass. (18 Pick.) 55; Mixer v. Coburn, 52 Mass. (11 Met.) 559; Gossler v. Eagle, etc., Co., 103 Mass. 331; Jones v. Just, L. R. 3 Q. B. 197." Wolcott, Johnson & Co. v. Mount, 36 N. J. L. (7 Vroom) 262, 267. "The rule is settled that when an article is sold by a description, but there is no designation, and the purchaser has an opportunity for inspection, the only warranty which is implied by the sale is that the thing sold is of the kind specified. Wolcott v. Mount, 36 N. J. L. (7 Vroom) 262; Winsor v. Lombard, 35 Mass. (18 Pick.) 57; Mixer v. Coburn, 32 Mass. (11 Met.) 559; Chanter v. Hopkins, 4 M. & W. 399. Where the buyer has no opportunity to inspect, there is, in addition to the implied warranty that the article is of the kind specified, a further warranty by implication that it is salable or merchantable; but, unless it be expressed in the contract, there is no warranty that the article is of any particular quality, and this is the case whether an opportunity for inspection be afforded the vendee or not. Wolcott v. Mount, 7 Vroom, 262; Jones v. Just, L. R. 3 Q. B. 197." Ivans v. Laury, 67 N. J. L. (38 Vroom) 153, 155. 13. "Since this peculiar liability (implied warranty of correspondence with description) arises from the nature of the transaction and the relation of the parties, without express words or even actual intention, it will remain as part of the seller's obligation, unless in some way expressly excluded." Carleton v. Lombard, Ayres Co., 149 N. Y. 137, 146. 14. DeWitt v. Berry, 134 U. S. 306; Whitney v. Boardman, 118 Mass. 242; Cf. Gould v. Stein, 149 Mass. 570; 2 Mechem on Sales, § 1339; Benjamin on Sales, §§ 601, 604. "The exhibition of a sample is of The burden of proving correspondence with description is on the vendor. 15 Section 15. Implied Warranties of Quality.-Subject to the provisions of this Act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: (1.) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose; (2.) Where the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be of merchantable quality; (3.) If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed; (4.) In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose; (5.) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade; (6.) An express warranty or condition does not negative a warranty or condition implied under this Act unless inconsistent therewith. no greater effect than the giving of an opportunity to inspect the goods in bulk. Notwithstanding the sam ple or the inspection, it is an implied term of the contract that the goods shall reasonably answer the description given in its commercial sense." Gould v. Stein, 149 Mass. 570, 577-8. Citing Drummond v. Van Ingen, 12 App. Cas. 284; Mody v. Gregson, L. R. 4 Exch. 49; Nichol v. Godts, 10 Exch. 191. Sale of "first quality white Westerly granite" is a sale by description and not by sample. Weston v. Barnicoat, 175 Mass. 454, 49 L. R. A. 612. K offered to buy wool of B if equal to sample; B invited him to examine it for himself, which K did in part; waiving examination of residue and bought the whole. The wool proved bad. Held, not a sale by sample. Barnard v. Kellogg, 77 U. S. (10 Wall.) 383, 388, 394, reversing s. c. 6 Blatchf. (U. S. C. C.) 279. 15. Merriman Conn. 146. V. Chapman, 32 The policy of the civil law is expressed by the maxim caveat venditor, and throws upon the seller the responsibility for all defects in the goods, whether obvious or latent, and makes him liable for any loss if the goods prove to be inferior to what they appeared to be at the time of the sale. The policy of the common law is expressed by the maxim caveat emptor and makes the buyer assume the risk of the goods proving after the sale to be otherwise than they appeared to him to be at the time of the sale.1 The civil law proceeds on the theory that the seller has superior knowledge over the buyer as to the quality or condition of the goods. The common law proceeds on the assumption that the knowledge of the parties, or the opportunity for knowledge, is equal, and limits the application of the rule to such cases. Thus the rule does not apply at common law to executory contracts or where the seller is the manufacturer, grower, or producer, except where the defects are latent, growing out of latent defects in the 1. Telluride Transm. Co. v. Crane Co., 208 Ill. 218; Climax Tag Co. v. Am. Tag Co., 234 Ill. 179; Oil Well Supply Co. v. Watson, 168 Ind. 603. "The distinction between the two systems may be briefly summed up by saying that the one, the civil-law doctrine, finds its expression in the maxim caveat venditor, whilst the rule of the common law is conveyed by the aphorism caveat emptor." Meyer v. Richards, 163 U. S. 385, 398. 2. Oil Well Supply Co. v. Watson, 168 Ind. 603. 66 According to the principles of decided cases and upon clear grounds of justice, the fundamental inquiry must always be whether, under the circumstances of the particular case, the buyer had the right to rely, and necessarily relied, on the judgment of the seller, and not upon his own. In ordinary sales the buyer has an opportunity of inspecting the article sold; and the seller not being the maker and, therefore, having no special or technical knowledge of the mode in which it was made, the parties stand upon grounds of substantial equality. If there be, in fact, in the particular case, any inequality, it is such that the law cannot or ought not to attempt to provide against; consequently, the buyer in such cases -the seller giving no express warranty and making no representations tending to mislead-is holden to have purchased entirely on his own judgment." Kellogg Bridge Co. v. Hamilton, 110 U. S. 108. Citing and distinguishing many cases including Frazier v. Harvey, 34 Conn. 469, 473; Brenton v. Davis, 8 Blackf. (Ind.) 318; Cunningham v. Hall, 86 Mass. (4 Allen) 268; Hoe v. Sanborn, 21 N. Y. 552; Rogers v. Niles, 11 Ohio St. 48, 53; Leopold v. Van Kirk, 27 Wis. 152; Parkinson v. Lee, 2 East, 314; Shepherd v. Pybus, 3 M. & G. 868; Randall v. Newson, L. R. 2 Q. B. D. 102; Brown v. Edgington, 2 M. & G. 279; Jones v. Just, L. R. 3 Q. B. 197 "When the purchaser has not had an equal opportunity of inspecting such goods or chattels with the seller, or under the circumstances he has been compelled to rely on his judgment, the maxim can have no appli cation." Morse v. Union Stock Yards, 21 Ore. 289, 14 L. R. A. 157. material used, and in the absence of negligence on the part of the manufacturer.3 The Act, however, following the tendency of the more recent decisions, and in harmony with the English Sale of Goods Act, extends the application of the rule to all contracts, both executory and executed, even where the seller is the manufacturer or grower. CAVEAT EMPTOR.-The rule of the common law is that in the absence of fraud or express contract in the present sale or exchange1 of specific, ascertained, or existing goods, open to the inspection of the buyer, there is no implied warranty of quality, condition, or fitness for any particular purpose.5 3. "It is clear that implied warranties in respect to quality, wherever they are held to arise, rest upon a presumption, in the particular case, that the vendor knew of the defect. It is easy to see that, in respect to all that class of personal chattels which do not enter extensively into the business and trade of a people, and which do not pass rapidly from hand to hand, such as horses, cattle, furniture, and the like, the vendor who, in most cases, would have had the article for some time in possession and use, would be very likely to know whether it was defective, and a presumption of knowledge would, in such cases, and as a general rule, be both reasonable and safe. On the other hand, with regard to those goods which are the subject of general traffic, and are habitually purchased, not for use, but to be sold again, no such presumption could fairly arise. This distinction may serve to account in some degree for the difference between the civil and the common law rule upon the subject of latent defects in articles sold. The rule of the civil law, viz., caveat venditor was adopted at an early period, and in reference, as it would seem rather to those articles which are of general and ordinary use, than to such as enter extensively into the commerce of the country; while that of the common law, viz., caveat emp tor, originating in a commercial age, and among a highly commercial people, naturally took the form best calculated to promote the freedom of trade. No doubt the common law rule is, upon the whole, wisest and best adapted to an advanced state of society; and yet there is a large class of cases in which that of the civil law would serve to prevent a multitude of frauds." Hoe v. Sanborn, 21 N. Y. 552, 557-8. Citing Bragg v. Morrill, 49 Vt. 45. Contra: Randall V. Newson, 2 Q. B. D. 102; Rogers v. Niles, 11 Ohio St. 48; Leopold v. Van Kirk, 27 Wis. 152. 4. Bryant v. Pember, 45 Vt. 487; Thayer v. Turner, 49 Mass. (8 Met.) 550. 5. Barnard v. Kellogg, 77 U. S. (10 Wall.) 383; Cozzins v. Whitaker, 3 Stew. & Port. (Ala.) 322; West v. Cunningham, 9 Port. (Ala.) 104; Armstrong v. Bufford, 51 Ala. 410; Turner v. Huggins, 14 Ark. 22; Moore v. McKinlay, 5 Cal. 471; Byrne v. Jansen, 50 Cal. 624; Johnson v. Powers, 65 Cal. 181; Dean v. Mason, 4 Conn. 428; Hoffman V. Oates, 77 Ga. 701; Kohl v. Lindley, 39 Ill. 195; Roberts v. Hughes, 81 III. 130; Morris v. Thompson, 85 III. 16; Court v. Snyder, 2 Ind. App. 440; Humphreys V. Comline. 8 Blackf, (Ind.) 516; Bowman v. Clemmer, 50 Ind. 10; Oil Well Supply Co. v. Watson, 168 Ind. 603; Dean v. Morey, 33 la. 120; Richardson v. Bouck, 42 Ia. 185; Scott v. Renick, |