on discovering that the quality is not as represented, tender back as much as is undis

posed of, and recover back the purchase price,

less what he has realized from the sales.

(April 9, 1904.)

PPEAL by defendant from a judgment

Mass. 60, 14 L. R. A. 492, 31 Am. St. Rep. 526, 19 N. E. 207; 10 Am. & Eng. Enc. Law, p. 91; Story, Sales, Perkins's ed. § 359; 1 Parsons, Contr. pp. 602, 603.

The rule that the law implies a warranty of quality in the case of a sale of articles by

A of the Circuit Court for Pulaski Coun- the manufacturer thereof has been recog

ty in favor of plaintiffs, in an action brought to rescind a contract for the pur-| chase of certain flour, and to recover back money which had been paid thereon. Affirmed.

The facts are stated in the opinion. Mr. Morris M. Cohn, for appellant: A purchaser takes the risk of the quality of a chattel sold to him, unless there is fraud or warranty in the sale; for, while there is an implied warranty of title, there is none of quality. Mere representation is not warranty.

James v. Bocage, 45 Ark. 284; Turner v. Huggins, 14 Ark. 21.

A person who professes to be an agent cannot, by any statement he makes, unknown to the alleged principal, thereby establish the fact of agency.

Turner v. Huff, 46 Ark. 222, 55 Am. Rep. 580; Campbell v. Hastings, 29 Ark. 512; Berry v. Lathrop, 24 Ark. 12; Mechem, Agency, 100.

nized and enforced in this state in Curtis &
Co. Mfg. Co. v. Williams, 48 Ark. 330, 3 S.
W. 517, and Weed v. Dyer, 53 Ark. 160, 13
S. W. 592.

Where there is a breach of warranty, express or implied, in the sale of goods, the purchaser may, if the goods have been delivered to him, and he has been paid the price, upon discovering the breach of warranty, tender the goods back, or so much thereof as are undisposed of, and bring suit against the vendor for the purchase price paid by him, less such amount as he may have realized on the goods disposed of before he ascertained the breach.

Benjamin, Sales, 1st Am. ed. §§ 893-904.

Bunn, Ch. J., delivered the opinion of the court:

The appellees, a company of general merchants, doing business in the city of Alexandria in the state of Louisiana, brought this action in the second division of the Pulaski circuit court on the 11th day of June, 1899, against T. H. Bunch, a wholesale dealer, doing business in the city of Little Rock, Arkansas, to rescind the sale of 129 barrels of flour, and for the invoice

Plaintiffs had no right to rescind. Berman v. Woods, 38 Ark. 351; 1 Benjamin, Sales, Corbin's ed. §§ 675, 676; Campbell v. Fleming, 1 Ad. & El. 40, 3 L. J. K. B. N. S. 136, 3 Nev. & M. 834. Messrs. J. M. Moore and W. B. Smith, price thereof, which had been paid the defor appellees:

Upon an executory contract of sale, where goods are ordered for a particular use or purpose known to the seller, the latter impliedly undertakes that they shall be reasonably fit for the use or purpose for which they were intended.

Benjamin, Sales, § 851; Gardiner v. Gray, 4 Campb. 144, 16 Revised Rep. 764; Dushane v. Benedict, 120 U. S. 630, 30 L. ed. 810, 7 Sup. Ct. Rep. 696; Jones v. Just, L. R. 3 Q. B. 197, 37 L. J. Q. B. N. S. 89, 18 L. T. N. S. 208, 16 Week. Rep. 643; Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 28 L. ed. 86, 3 Sup. Ct. Rep. 537; English v. Spokane Commission Co. 6 C. C. A. 416, 15 U. S. App. 218, 57 Fed. 454; Best v. Flint, 58 Vt. 543, 56 Am. Rep. 570, 5 Atl. 192; Gerst v. Jones, 32 Gratt. 518, 34 Am. Rep. 773; Gallagher v. Waring, 9 Wend. 20; McClung v. Kelley, 21 Iowa, 508; Osgood v. Lewis, 2 Harr. & G. 495, 18 Am. Dec. 323; Fogel v. Brubaker, 122 Pa. 7, 15 Atl. 692; Merriam v. Field, 24 Wis. 640; Morehouse v. Comstock, 42 Wis. 626; Babcock v. Trice, 18 11. 420, 68 Am. Dec. 560; Morse v. Union Stock Yards Co. 21 Or. 289, 14 L. R. A. 157, 28 Pac. 2; Murchie v. Cornell, 155

fendant by plaintiffs, said invoice price being the sum of $709.50, or $5.50 per barrel; and also the difference between said invoice price of 41 other barrels of same flour, which plaintiffs had been enabled to sell at a reduced price. This latter item of the claim was waived before the determination of the suit. Judgment in favor of plaintiff company for the said sum of $709.50, and defendant excepted, and appealed to this court.

This litigation grew out of the following state of facts, to wit: The Ben Weil Commission Company of mercantile brokers, acting at the time and for some time previously as brokers for said T. H. Bunch, on the 11th day of May, 1899, sold to the plaintiffs, at Alexandria, 170 barrels of "Capital Brand" flour, warranted to grade

direction of said brokers the plaintiffs paid | stipulation, I cannot allow it to be superthe draft and took possession of the flour, and at once began to sell the same to their customers. As soon as these custom purchasers opened the same for use, it was discovered that the flour was not, as represented, "extra fancy," but was a blended flour; that is, flour mixed with corn meal about half and half, of a dark color, and of a peculiar odor. The flour thus sold was returned by plaintiffs' said customers to plaintiffs, and Bunch was notified of the same at once. In the meantime plaintiffs endeavored to sell the flour, and did sell some, but at a greatly reduced price from the invoice price, but could only dispose of 41 barrels in all, including the barrels they had sold before observing the defect, and then demanded a rescission of the sale of the remaining 129 barrels, and the difference between the invoice price and the price of sale of the 41 barrels, which was refused by Bunch.

The motion for a new trial was based on eleven separate grounds, but they all may be included in three propositions, as formulated in appellees' brief, to wit: "(1) Whether there is an implied warranty that goods sold to be delivered are merchantable, and reasonably fit for the purpose of trade for which they are purchased. (2) Whether the purchaser, having disposed of a part of the goods before discovering the inferior quality, may, upon making such discovery, rescind the contract of sale by tendering back the goods undisposed of. (3) Whether Bunch sold the goods to plaintiffs or their broker, the Ben Weil Commission Company." The first proposition involves the common-law doctrine of caveat emptor, or rather the consideration of some of the exceptions to the rule growing out of that doctrine, which is, stated generally: "When the purchaser has had no opportunity to inspect the goods purchased, to ascertain whether or not they be of the quality represented by the act of putting them in the trade, then the doctrine caveat emptor does not apply;" for, says Mr. Benjamin in his work on Sales, 7th ed. § 645: "But where a chattel is to be made or supplied to the order of the purchaser there is an implied warranty that it is reasonably fit for the purpose for which it is ordinarily used." The purpose of plaintiffs' purchase of the flour in this case, and the use to which it was to be put, admit of no question. In the English case of Gardiner v. Gray, 4 Campb. 144, 16 Revised Rep. 764, cited in appellees' brief, in delivering his opinion, Lord Ellenborough said: "I think the plaintiff cannot recover on the count alleging that the silk should correspond with the sample. The written contract containing no such

added by parol testimony. This was not a sale by sample. The sample was not produced as a warranty that the bulk corresponded with it, but to enable the purchaser to form a reasonable judgment of the commodity. I am of opinion, however, that under such circumstances the purchaser has a right to expect a salable article answering the description in the contract. Without any particular warranty, this is an implied term in every such contract. When there is no opportunity to inspect the commodity, the maxim of caveat emptor does not apply. He cannot, without a warranty, insist that it shall be of any particular quality or fineness, but the intention of both parties must be taken to be that it shall be salable in the market under the denomination mentioned in the contract between them. The purchaser cannot be supposed to buy goods to lay them on a dunghill. The question, then, is whether the commodity purchased by the plaintiff be of such a quality as can be reasonably brought into the market to be sold as waste silk. The witnesses describe it as unfit for the purposes of waste silk, and of such a quality that it cannot be sold under that denomination." So the witness in the case at bar describes the "blended flour" actually sold to plaintiffs by the defendant as unfit for the purposes of what was known in the trade as "Capital Brand" flour, or "Extra Fine" flour, and what was of the third grade of pure flour, and that it was of such a quality that it could not be sold under that denomination, but, on the contrary, it was, if flour at all, in the true sense, of a very inferior grade, and could not be sold except far below the invoice price at which it was sold to plaintiffs by defendant. The appellees' counsel cite a long list of cases applicable to the state of facts, which, without further comment, we cite for convenience of reference to those who may have occasion hereafter to refer to this opinion: Benjamin, Sales, cited above; Dushane v. Benedict, 120 U. S. 630, 30 L. ed. 810, 7 Sup. Ct. Rep. 696; Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 28 L. ed. 86, 3 Sup. Ct. Rep. 537; English v. Spokane Commission Co. 6 C. C. A. 416, 15 U. S. App. 218, 57 Fed. 454; Best v. Flint, 58 Vt. 543, 56 Am. Rep. 570, 5 Atl. 192; Gerst v. Jones, 32 Gratt. 518, 34 Am. Rep. 773; Gallagher v. Waring, 9 Wend. 20; McClung v. Kelley, 21 Iowa, 508; Osgood v. Lewis, 2 Harr. & G. 495, 18 Am. Dec. 323; Fogel v. Brubaker, 122 Pa. 7, 15 Atl. 692; Merriam v. Field, 24 Wis. 640; Morehouse v. Comstock, 42 Wis. 626; Babcock v. Trice, 18 Ill. 420, 68 Am. Dec. 560; Morse v. Union Stock Yards Co. 21 Or. 298, 14 L. R. A. 157, 28 Pac. 2; Murchie v. Cornell, 155 Mass. 60, 14 L. R.

|

A. 492, 31 Am. St. Rep. 526, 19 N. E. 207;
10 Am. & Eng. Enc. Law, p. 91, and note to
Implied Warranties; Curtis & Co. Mfg. Co.
v. Williams, 48 Ark. 330, 3 S. W. 517; Weed
v. Dyer, 53 Árk. 160, 13 S. W. 592. The rule
appears to be that, when there is a breach
of warranty, express or implied, in the sale
of goods, the purchaser may, if the goods
have been delivered to him, and he has paid
for them the price (as in this case), upon
discovering the breach of warranty, tender
the goods back, or so much thereof as are
undisposed of, and bring his suit against
the vendor for the purchase price paid by
him, less such amount as he may have
realized on the goods disposed of before he
ascertained the breach. Benjamin, Sales,
7th ed. §§ 893-904 inclusive, and the cases
heretofore cited in support of the implied
warranty rule. The flour in question was
sold and received by plaintiffs on the 28th
of May, 1898, and none of it was disposed
of by plaintiffs to their retail customers un-
til some time in the first part of June fol-
lowing, when 41 barrels were disposed of,
and these purchasers discovered the defect
and were paid back the purchase price by
the plaintiffs, except such as they bought
at the greatly reduced price. The plain
tiffs immediately notified defendant through
his broker, which was the custom, for con-
venience sake, and demanded a rescission of
the contract of sale. As to the effect of
selling a portion of the goods after discov-
ering the breach, see 1 Parsons on Contracts,
pp. 591 to 594, inclusive, and note thereun-
der. It was necessary, under the circum-
stances, to sell the flour to the consumer
before it could be reasonably asked that an
inspection should be made; and, secondly,
it was for the benefit of defendant, as for
plaintiffs, to dispose of as much of the in-
ferior goods as possible to prevent total loss.
Whether Bunch sold the flour to plaintiffs
or to their brokers was a question of fact
for the jury under proper instructions of
the court. The instructions given by the
court were as follows: "The jury are in-
structed that in the sale of goods, wares, and
merchandise to be delivered there is an im-
plied warranty that the articles purchased
will be reasonably merchantable and rea-
sonably fit for the purpose for which they
are sold, and, if you find from the evidence
in this case that the flour delivered plain-
tiffs was not of a reasonably merchantable
character, and not reasonably fit for the
purpose of the sale, then plaintiffs, upon
discovering that fact within a reasonable
time, would have the right to rescind the
contract, and, upon tender of the property
or offer to return the same to the vendor,
within a reasonable time, the plaintiffs
could sue for and recover the purchase mon-
ey, together with any loss sustained by sideration of this case.

them in the sale of flour prior to the dis-
covery of its condition." "If the jury find,
under the instructions given, that plaintiffs
had a right to rescind the contract of the
sale, then, if they find that the plaintiffs
disposed of part of the flour in the ordinary
course of trade, which was not returned to
them, but for which they allowed the pur-
chaser a reasonable reduction in the price
on account of its inferior quality, and, be-
ing advised of such condition, plaintiff's held
the remainder of the flour for defendant,
and notified defendant of the fact of its re-
jection within a reasonable time after their
knowledge thereof, then their measure of
damage is the price which they paid for the
flour which they have on hand, together
with the cost of drayage, freight, and stor-
age, if any, and such loss as you may find
they sustained in the sale of flour not on
hand by reason of its inferior quality."
"You are instructed that a man can make
a contract through an agent as well as the
principal himself; and if you find in this
case that Weil Bros. & Bauer purchased the
flour in controversy from the Ben Weil
Commission Company, believing them to be
in the matter acting as the agent of Bunch,
and dealing with him as such, and Bunch
had held him out as his agent to sell flour
in that territory, so that Weil Bros. &
Bauer had a right, as reasonable persons,
to regard him as agent for Bunch in this
transaction, then the purchase is binding on
Bunch as if he had sold it himself in per-
son." "It is claimed by the plaintiffs in
the case that the contract of purchase was
made by them with the defendant Bunch
through his agent, Ben Weil Commission
Company, and defendant denies this, and
claims that he sold the goods, not to plain-
tiffs, Weil Bros. & Bauer, but to Ben Weil
Commission Company, direct." On the
court's own motion: "Now, upon this issue
the court instructs that an agent duly au-
thorized to make sales may do this, and his
principal is bound by the sale as his own;
and it is for you, in view of all the circum-
stances in proof before you, to say whether
the plaintiffs, Weil Bros. & Bauer, bought
the goods from Bunch through the Ben
Weil Commission Company as Bunch's
agent, or whether they must be regarded as
having bought from Ben Weil Commission
Company directly." The admission of cer-
tain letters in evidence was not error for
the purpose admitted by the court. We see
no error in the instructions of the court,
and there was evidence to sustain the ver-
dict of the jury.

So the judgment must be affirmed, and it is so ordered.

Wood, J., did not participate in the con

UNITED STATES CIRCUIT COURT OF APPEALS, NINTH CIRCUIT.