tiff offered him a guinea and a half for it, which he refused; but having offered his fword to many fword-cutlers, and none bidding him fo much as a guinea and a half, he returned to the plaintiff, who would then give him but twenty-eight fillings, which the defendant took. It appeared afterwards that the gripe only wag filver and the reft brafs. Upon which the plaintiff brought his action upon the first warranty, but it was adjudged that it did not extend to the fubfequent fale. If the vender knowing the goods to be unfound, ufes any art to difguife them, or if they are in any fhape different from what he reprefents them to be to the buyer, this action lies, for this artifice fhall be deemed equivalent to an exprefs warranty, and the action may be brought on the warranty, and proof of fuch artifice fhall be fufficient to fupport it. In all cafes of the fale of goods, for a full and adequate price according to their value, where there is no exprefs warranty, the law implies a warranty on the part of the feller, to the buyer, that the things fold are his own-that they are good, found, and free of any defect, as the cafe may be. For where a man receives an adequate confideration for his property, there is the fame reafon and justice that he fhould warrant it, as if he made an exprefs warranty for the fanie confideration. Implied warranties, will extend to all defe&s exifting at the time of the fale, which are not visible, whether they are known to the feller or not. For it is reasonable that every perfon fhould fuffer the lofs that happens to any goods while he is the owner, and that he should not have an opportunity to shift his misfortunes on to his neighbours. The proof of actual science of the exiftence of the defect might be extremely difficult. It is therefore better to make the existence of the defect the gift of the action, which is capable of proof, without diffis culty, and is the fairest criterion to fix the liability of the feller. All implied warranties may be avoided by the parties, when at the time of the fale it is exprefsly ftipulated, that the purchafer fhall take the property at his own rifque, and that the feller fhall not be holden upon the warranty. So if i appear, that the price of the thing fold was fuch that the 2 Roll. Rep. 5. the parties must have contemplated the defect at the time of the fale, the law will imply no warranty. 2. Deceits, or Frauds, next claim our confideration, and as this is fubject of frequent difcuffion before courts of law, it de ferves minute illuftration. All trade, dealing and fpeculation is founded on the principle, that every perfon has a right to take advantage of his fuperior knowledge, difcernment, judgment and induftry in making bargains in all cafes where the parties have equal means of information. If one man can better ascertain and estimate the value of property than another, and by that mean can make a better bargain, univerfal practice will justify the tranfaction. If one perfon knows that any kind of goods bears a higher price in one place than in another, he has a right, without difclofing his knowledge, to purchase in the cheapest, and fell in the deareft place. This is the foundation of all fpeculation. How far it is justifiable in a moral view for a person to take advantage of the ignorance, or want of judgment of his neighbour, is a queftion that belongs to a treatise on ethics. But in this place it is fufficient to obferve that this is the great bafis of commercial tranfactions, and warranted by law. But then it must be obferved that no perfon in making a bargain has a right to conceal or fupprefs thofe material facts and circumstances which he has the means of knowing, but which the other party has not. Neither may a perfon be guilty of any difguife, deceit, falfhood or mifreprefentation, for the purpose of obtaining the advantage of another in a bargain. Where a thing is of a certain value, and that known to the feller, but cannot be known to the buyer, for any deceit in the affirming the value to be different from what it is, this action lies. As where the landlord of an houfe, wishing to difpofe of his interest in it, affirmed the rent to be more than it really was, whereby the purchaser was induced to give more than it was worth, this action was held to lie; for the value of the rent was a matter of private knowledge between the landlord and tenant. This refpects only things of a certain and determinate value: but where the things fold are of an uncertain value, dependent on opinion, whim, or fancy, R I Salk. a1t. fancy, there no action will lie against a perfon for declaring that they are worth more than the common estimation; for this is mere opinion, without any mifreprefentation of facts, which the other party has equal means to know and judge upon. As if a man fhould declare that his horfe was worth fifty pounds, and another should give it, when in fact he was not worth more than twenty, no action lies; for it can never be fafe to admit the principle that a perfon may be fubjected in damages for a fraud, becaufe he has fold property for more than it was worth in common estimation, or in the opinion of jury. Yet, if a man takes advantage of the ignorance, or confidence of another in that manner, his conduct cannot be justified by moral principles. • Action will not lie for a fraud in the fale of public fecurities, because of a public nature, and their value a matter of public notoriety, equally within the knowledge of buyer and feller; but in the fale of private orders drawn by individuals, or by felect-men, where the value actually lies in the knowledge of the feller, and not of the buyer, action will lie for any fraud, falfhood, or mifreprefentation, whreby the plaintiff has been injured. It is faid to be a rule of common law, that if the buyer has an opportunity to inform himself of the true value of the thing, and neglected it, the action will not lie. As if in the cafe before mentioned of the landlord, if he had only faid that another person would give fo much for it, when in fact he had never offered any thing, this action would not lie, because the buyer might have enquired, and been informed the truth. But the principle that no action will lie for a false affirmation, where the party has the means of discovering the truth, feems of late to have been exploded, and the doctrine refpecting frauds, is established upon a broader and more equitable bafis. The general rule is, that where the feller is guilty of a false affirmation or misreprefentation of any fact, relative to the thing fold, which is material to induce the buyer to purchase, and by which he is defrauded, action lies, tho it was in the power of the purchaser by enquiry to have discovered the truth. For it is a moral duty incumbent on every perfon, to speak the truth. If any perfon violates the truth, he is guilty of an immoral act, and ought to be anfwerable ■ Bacon vs. Sanford, Sup. C. 1790. For the fwerable for every injury that another may sustain by it. purpose of conducting the intercourfe among mankind, it is neceffary and reasonable that they fhould repofe confidence in the afferti ons and declarations of each other; and that in fuch cases, they fhould be obliged to make search and enquiry respecting their truth, which must be a great obftruction to the negociation of bufinefs. It is alfo compatible with prudence and caution, as well natural for a perfon to believe the declarations of those who are in common repute. If a perfon will take advantage of this general confidence that is reposed in the affertions of mankind, for the purpose of defrauding another by falfhood and mifreprefentation, reafon aud juftice condemn him for the crime, and the law compels him to make a reparation in damages for the injury. In all actions for a deceit, it is neceffary to alledge and prove a science in the feller; for this is neceffary to conftitute a fraud, tho not a warranty. a As where the plaintiff declared that the defendant being a goldfmith, and having skill in precious ftones, had a stone which he affirmed to be a bezoar ftone, which he fold to him for two hundred pounds, when in truth it was not a bezoar stone. After verdict for the plaintiff, judgment was arrested, because the declaration had not charged either that the defendant fold it knowing it not to be a bezoar ftone, or that he had warranted it for fuch a stone. This action will lie for a fraud in the feller, respecting the reprefentation of his title to the thing fold. In all cafes where a perfon fells property as his own, knowing it to belong to another perfon, this action will lie against him; but to fupport the fraud, it is neceflary to alledge and prove a fcience in the feller. So where a perfon aflirming that certain goods are the property of his friend, that he has authority to fell them, and in fact does fell, having no authority; for this fraud, action lies. In this cafe, the deceit being in the falfe affirmation, it will be fufficient to prove them the goods of another perfon, without proving the defendant knew them to be fo; for it need not be averred in the declaration, and this proof would be fufficient to put the defendant on proof that he had authority to fell them. An affirmation by a perfon a Cro. Jac. 41. b Salk. 210. Ld. Raym. 593. c Buil. N. P. 35. perfon that he is the owner of things in poffeffion, amounts to a warranty to the buyer. a The rule of the common law feems to be, that if a person fells a thing which he really believes, and has reasonable ground to believe is his property, as if he obtained it by fair purchase; that no action will lie against him for felling it, even tho it turns out that he has no property in it-that if he fells a thing out of his poffeffion affirming himself to be the owner, or knowing that he is not the owner, no action lies against him; for being out of poffeffion, the buyer must take care.-Thefe principles, however, are not founded in justice, and I prefume never have been, and never will be admitted as common law in this ftate; but that the following principle founded in equity, will be adopted; that in all cafes where a perfon for a valuable and adequate confideration, fells goods not his own to another, the law implies that he warrants to the buyer, that they are his own, whether he affirms they are his own, or whether or not he knows that they are not his And that in all cafes an action will lie on this implied warranty; and that the gift of the action is not whether the feller affirmed the goods to be his, or knew that they were not; but merely whether the goods were his, or not at the time of the fale. This principle moft certainly is founded in reafon and common fenfe. For if a man exercises an act of ownership about property, by offering it to fale, he by implication declares he is the owner, and the buyer has reason to believe he is the owner; this therefore ought to amount to a warranty in law. own. Another ground of this action as founded on deceit, is where an injury is done to any perfon from an impofition in cheating, or ufing falfe pretences. As where money was left in the hands of a third perfon, to be delivered to the plaintiff, and the defendant pretending to be the plaintiff to fuch perfon, obtained the money, this action was held to lie. So for cheating a person by falfe cards or dice, out of any fum of money, this action will lie. d So affuming a falfe character, and by that means committing a cheat, is actionable; as if a man pretending to be fingle, prevails on a woman to marry him, when in fact he is married, this action a Salk. 210. 218. dBull. N. P. 32. Cro. Jas. 196. b Moor, 583. 2 Elpin. Dig. 419. will c Cro. Eliz. 9ê. |