Plaintiffs in error presented a petition for a re-argument of the case, setting forth (1) that the limited time assigned for argument (the case having been heard upon the hour list) prevented a proper presentation of the case; (2) that the decision was contrary to what had theretofore been understood by the bar and by the business community to be the law governing sales by sample; (3) that a large portion of the heaviest transactions of commerce were conducted through the medium of sales by sample, and this decision would hamper and injure the business interests of the State; and (4) that the evidence in the case was direct that a portion of the corn was unfit for food and unmarketable, and the Court below had given a binding instruction that defendant was obliged to keep and pay for all the cans.

Feb. 19, 1877. THE COURT. We announced in this case the result of a long line of decisions. The motion for a re-argument is simply a demand for a change in the law-for judicial legislation. The law of this State has long been thoroughly settled by its courts, that a sale of chattels without fraud or misrepresentation creates no liability for quality, and that the production of a part of the goods, when not made by the acts or agreements of the parties a standard of the quality, carries with it no implication of a contract of warranty of the quality. Much of the confusion of thought in these cases is engendered by the use of the word "sample;" the mind implying from the word, and not the facts of the sale, an intention to make the sample a criterion of the quality. When in fact the sample is made the standard of quality-as, if the buyer orders goods of the same quality, or the seller engages to deliver them of the same quality-an implication arises. Hence it is always in the power of the buyer to command an article of the same quality. But in the absence of an undertaking for the quality, or of those facts from which it can be assumed, the law leaves the parties just as they

were.

It never has been the law of this State that a sound price requires a sound article, for the reason that if the quality of an article be the criterion, instead of the bargain or specific intent of both parties, there would be no end to ruinous litigation. Parties are, therefore, left to their own judgment and diligence, unless there be fraud or deceit practised by the seller.

Peace and good order are thereby promoted, and the parties prompted to proper care and diligence, and to make their bargains so that neither will misunderstand his rights.

Take this case as an example. Here is an article inclosed in an air-tight can, the quality of which is unknown to both buyer and seller, and can be ascertained only by opening the can, which is destruction. The article is bought and sold in this condition by wholesale and by retail.

If the buyer will not risk the contents, he must require a warranty. But then the seller will demand a higher price to compensate him for the entire risk. Now if the buyer have made no bargain for quality, on what principle of fair dealing shall he have the advantage of both price and quality. Had he said to the seller, you must deliver to me corn of the same quality as in this exhibited can, the latter would have said, I will do so, but I must be compensated for this risk, and I require so much more to be added to the price.

It is evident, therefore, that the only just rule, in the absence of fraud or deceit, is to suffer the parties to bargain for themselves as to quality; otherwise, so long as the article is merchantable, the buyer cannot complain of his own remissness. The real secret of these attempts to raise a warranty by implication is that buyers wish to buy as cheaply as they can, and it is only when they find that they have made bad bargains that they complain. If they get a superior article for a low price, they will stoutly insist on standing on their bargains, and pay no more, even if the article be worth double the price paid. The truth is, the argument upon the sample is a petitio principii. It assumes a bargain when none is intended. It takes the mere word "sample," and refuses to look at the evidence which discloses no intent to warrant the quality, and leaves the buyer to his own judgment and diligence in making his bargain.

It is said that in the present state of the commercial world, much of the business is done by travelling agents, and through mere samples. True, the business of the world has changed greatly; but this is an argument to be addressed to the legislature, not to us. We declare the law, but do not make it. If the law as we find it does not suit the times, let it be changed by those who possess legislative power. If the law of England, or other States, differs from ours, to them let petition be made to assimilate them. When sifted, the whole argument addressed to us is a petition in favor of change, not declaration of the law.

It is alleged as reason for re-argument, that some of the cans were proved to be bad, unfit for food. But the plaintiffs in error know full well no such point was taken in the Court below. They fought the case on the ground of an implied

Lopus (Cro. Jac. 4), has been constantly and uniformly applied, in the language of Mr. Justice DUNCAN in Jackson v. Wetherill (7 S. & R. 480), "with regard to the goodness of wares purchased. The vendor is not bound to answer unless he expressly warrant them to be sound and good, or there has been a fraudulent representation, an affirmation of the quality known to the vendor to be false."

Chief Justice GIBSON and Mr. Justice KENNEDY dissented even from the judgment in Borrekins v. Bevan (3 Rawle, 23), which decided that in all sales of goods a warranty was to be implied that the article delivered should correspond in specie with the commodity sold. That case introduced a distinction between quality and essential character which was a novelty at the time, but has since been generally maintained. In the dissenting opinion the Chief Justice said, "I prefer the rule of the common law to modern approximations towards that of the civil law; not only because it is the rule of the common law, but because it seems to be more convenient and just.". . . The object of the rule is to encourage trade by preventing actions against all in turn through whose hands the article has passed in a course of dealing. The doctrine of Borrekins v. Bevan has never been extended. The common law rule has been enforced so lately as in the reported case of Whitaker v. Eastwick (25 P. F. Smith, 229), and in the case of Boyd v. Wilson, decided at the present term [reported ante, p. 521].

On the grounds thus stated, the Court below was justified in rejecting the offers of the defendants specified in the third and fourth assignments of error. The purpose was to show, first, that the character of the coal shipped to them i jured their business; and, secondly, that it was defective, and not adapted for the use to which it was designed to be applied. The evidence was offered not in view of the special circumstances of the case as they were alleged to exist, but upon the assumption of a legal implication of a warranty arising from the single fact of the sale itself. Coal had been previously received from the plaintiffs. Under a general contract for a fresh supply, the defendant would be required to accept from the plaintiffs the current product of their mines, and for that product the plaintiffs, acting in good faith and in the accustomed course of their business, would be entitled to be paid.

But there is more in this case than the question raised by the third and fourth assignments. Nothing in the common law rule on this subject stands in the way of a contract stipulation as to quality between a vendor and a purchaser. And it was insisted on the trial that such a stipulation had been entered into by these parties. When the offers specified in the fifth and seventh assignments were made, l'arker H. Warren had

testified that Spafford, the agent of the plaintiffs, had asked him to take the cargo of coal, the price of which is the subject of this controversy; "I inquired particularly," the witness had said, "of the quality of this coal. He assured me it was of the same quality I had been buying. I told him if so to put it on the wharf at $1 00 per ton, but if it was not good coal I would not have it." In view of this testimony the defendant proposed "to show that this cargo of coal was placed on a large pile of coal, a great portion of which was Philadelphia Coal Company's coal, sold to the defendant by the agent of the plaintiffs, and this cargo was not as good. It was proposed also to ask Mr. Spafford on cross-examination this question, "Had not Mr. Warren, on several occasions and repeatedly, told you that if you did not send him good coal he would not pay for it, and you must take it away?" Both these offers of testimony were rejected. They ought to have been received. The defendant alleged the existence of a contract that defined their rights, and there was evidence from which the jury might have inferred an agreement on the part of the plaintiffs to be answerable for the quality of the coal they were to deliver. To constitute an express warranty no special form of words is requisite. The word warrant, though it is the one generally used, is not so technical that it may not be supplied by others. It is enough if the words used are not dubious or equivocal, and if it appears from the whole evidence that the affirmant intended to warrant, and did not express a mere matter of judgment or opinion. (Jackson v. Wetherill, supra.) A contract to deliver goods of a quality as well as of a species defined and fixed is as capable of enforcement as any other contract.

So much of Mr. Montgomery's deposition as contained a description founded on his personal knowledge of the coal delivered to the defendants should have been admitted. The evidence that his own coal had been received from the plaintiffs was scarcely distinct enough to warrant a characterization of that of the defendants by a comparison of his with theirs. It does not appear clearly from the record how the transcript from the books of the agents of the plaintiffs became part of the evidence in the cause after the books themselves had been excluded. It was legitimately before the jury if, as the plaintiffs assert, it was produced and offered by the defendant.

If there was error, it can be avoided in a future trial. The second assignment was withdrawn on the argument. The eighth assignment refers to a matter of mere detail, which for any purpose to be served hereafter it would be unprofitable to discuss.

Judgment reversed and venire facias de novo awarded.

Opinion by WOODWARD, J.

Mutual Fire Insurance Company-Breach of condition-Non-payment of assessment-Evidence of waiver-Principal and agent-Authority to waive an essential requisite.

Sutermeister was aware that the plaintiff had received notice of assessment No. 8. On June 20, 1873, the property insured was destroyed by fire. On June 24 the above notice and bill, having miscarried, reached the plaintiff through the post-office. On June 26 the plaintiff tendered the above amount of $49.50 to Sutermeister, who refused it.

tice.

by L:

The tender was refused, and suit was brought Held, that the act of the agent in sending the second notice of assessment was not in itself a waiver of the suspension of the policy, there being no sufficient evidence that the Company had authorized the

sending of the notice, or had laid the second assessment upon this policy.

Error to the Common Pleas of Schuylkill County.

Covenant on a policy of insurance by Mary Ann Leonard against the Lebanon Mutual Insurance Company. I leas, covenants performed, absque hoc, etc.

At the trial (before PERSHING, P. J.) the following facts appeared. The policy sued on was dated May 10, 1870, and the property described was a frame stable. The policy contained, inter alia, the following clause:

"The policies of all persons insured in this company who shall neglect to pay their assessments for thirty days after publication or notice of the same, then and thereafte, so long as the same may remain unpaid, will be void and of no force or effect."

On June 20, 1872, the directors of the corporation defendant laid an assessment of $5 on every $1000 insured, on all policies in force on September 1, 1871. This was assessment No. 8, and included the policy sued on. Notice of this assessment was given to the plaintiff, but she neglected to pay it. On May 10, 1873, the said directors laid an assessment (No. 9) of $4 on every $1000 insured, on all policies in force on June 1, 1873. On June 9, 1873, Sutermeister, an agent of the Insurance Company, mailed a notice of assessment No. 9 to the plaintiff, and inclosed a bill in the following form :— Amo :nt due on assessment No 8 No. 9

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$27 50 22.00

ing point: "If the jury believe that the plaintiff The plaintiff presented, inter alia, the followreceived the within notice and demand of assessments Nos. 8 and 9, on June 24, 1873, and on June 26 following called on Sutermeister, the agent of the Company, who bad sent the notice and demand through the post-office, and tendered him the amount of the two assessments within

thirty days from receipt of such notice and demand of payment, this act of the Company in making out the said bill for both assessments, and demand of payment of both, coupled with such tender by the plaintiff, amounted to an implied waiver by the Company of the non-payment of assessment No. 8 within thirty days, and the Answer. "We plaintiff is entitled to recover." refuse to charge as requested. There is nothing shown here which would authorize Mr. Sutermeister to waive the forfeiture existing." The Court also charged, inter alia, as follows: That this assessment (No. 8) was not paid was not disputed. . . . . Another assessment (No. 9) was made a year or more after that... which also remained unpaid at the time of the fire;... we therefore give peremptory instructions to find for the defendant."

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Verdict and judgment for the defendant. The plaintiff took out this writ, assigning for error, inter alia, the refusal of her point as above, and the portion of the charge quoted.

Jacob A. Hazen (with him B. W. Cumming), for the plaintiff in error.

Where the insurer, with knowledge of facts which would constitute a defence against a suit on a policy, so bears himself as to lead the insured to believe that he recognizes the policy as still valid, the matter of defence is waived.