IV. The sale being a sale by sample, there was an implied warranty3 that the bulk was equal to the sample in quality, which, upon the evidence in the case, it clearly was not. All agree that, from an inspection of the sample, the madder appeared to be pure and unadulterated. From a careful analysis of the bulk by chemists, there was an adulteration, by sand and other foreign substances, exceeding thirty per cent. This evidence preponderates over the weight of the testimony abroad, taken on commission. There was no analysis of the article abroad. V. The note at the head of the bill of goods rendered "no claims for deficiencies or imperfections allowed, unless made within seven days from receipt of goods," was not binding upon the purchasers. The contract was complete and binding upon both parties before this bill was delivered. The case is an unfortunate one, as both parties are innocent, the fraud having been perpetrated abroad before the goods were shipped to the defendants, who were mere consignees. The question is, which of these innocent parties, under the facts disclosed, should suffer the loss? The question turns upon a dry rule of law, and, according to my idea of it, the plaintiffs are entitled to the judgment.* The verdict of $10,000 was taken by consent, subject to adjustment and the opinion of the Court upon a case made. I shall deduct thirty per cent. from the price paid for the madder, as furnishing the amount of damages in the case, and give judgment for plaintiff for that sum. (1.) The familiar principle in this class of cases is, "that so much of the law as affects the rights and merits of the contract, is adopted from the foreign country; so much of the law as affects the remedy only, is taken from the local law of the country where the action is brought." Does the Statute of Frauds affect the contract or the remedy? It has been held in England, after an extended and elaborate discussion, that the fourth section of the statute affects the 3 See Note 3, post. remedy, and consequently that an oral agreement within that section, made in France, and valid there, cannot be enforced in England. Leroux vs. Brown, 12 C. B. 800; S. C. 14 Eng. L. Eq. 247, (1852.) The court rests its decision upon the special language of that section. "No action shall be brought upon any agreement which is not to be performed within a year, &c., unless the agreement upon which such action shall be brought or some memorandum or note thereof 4 See Note 4, post. shall be in writing," &c. The construction placed upon this language was, that the words, "no action shall be brought," evidently regarded the remedy, and the alternative clause showed that the writing was required only for the purposes of evidence. There were dicta to the effect that such a construction would not be given to the seventeenth section, regarding sales of goods. These dicta were followed in 1855, by the Supreme Court of Missouri, in Houghtaling vs. Ball, 20 Miss. (5 Bennett), 563. The court expressly decides that an oral contract for the sale of goods, made in a state where the Statute of Frauds does not prevail, can be enforced in Missouri, where the statute exists substantially in the language of the English seventeenth section. Browne, in his work on the Statute of Frauds, p. 140, note 5, (ed. 1857,) disapproves of the distinction, citing dicta in Carrington vs. Roots, 2 M. & W. 248; Readers. Lamb, 6 W. H. & G. Exch. 130. The Missouri case, however, was not before him, and the principal case is in the same direction. There is no distinction in the present New York Statute of Frauds, between the two classes of subjects, and the decision would embrace all the sections. In Dacosta vs. Davis, 4 Zabriskie, 319, the authorities are collected in reference to the question whether the absence of the goods affects the law of the place of contract. In this case a contract was made in New Jersey, for the sale of goods at the time in Pennsylvania. The court arrived at the conclusions reached in the present case. (2.) The old rule was that all actions upon a warranty, whether express or implied, were actions on the case. As to implied warranties, see Keilwey, 91. Lord Ellenborough, in the case of Williamson vs. Allison, 2 East, 446, (1802,) says, that the form of declaring in assumpsit in cases of warranty, had not then prevailed above forty years, and was adopted in order to add the money counts to the declaration. The right to declare in assumpsit on an express warranty, was first discussed and decided in Douglas, 18, (1778.) The distinction as to the necessity of alleging a scienter is that if the action is on a warranty, it is not necessary, but if it be in the nature of an action of deceit, without any warranty, scienter must be alleged and proved: Note to Williamson vs. Allison, supra; Stone vs. Denny, 4 Metcalf, 151; 5 B. & A., 797; Bayard vs. Malcolm, 1 Johnson, 453. The right to bring an action on the case, for breach of warranty, is fully recognised in this country, among other cases, in 30 Maine, 170; 3 Vermont, 53; 20 Conn., 271; 4 Blackf. 293. An important advantage may sometimes be secured in joining a count for fraudulent misrepresentation with the count on an express warranty, and a recovery thus may be had in accordance with the evidence. A judgment will, it seems, be a bar to an action of assumpsit on the warranty: 23 Pick. 256. (3.) In determining whether a sale is by sample or not, a material inquiry is, whether the article is open for inspection. It is a reasonable rule, where it is not present and a sample is exhibited, that the sale should be treated as being by sample. The correspondence of the sample with the article, is the essence of the contract, and the purchaser may say, if this correspondence does not exist, non in hæc fœdera veni: Boorman vs. Johnston, 12 Wend. 576; Salisbury vs. Steiner, 19 Wend. 159; 1 Smith Lead. Cas. 77; note to Chandelor vs. Lopus. This principle is in like manner true of a written contract for articles of a particular name not open to inspection: Wieler vs. Schilizzi, 17 C. B. 617. The When the article and sample are both pen to the purchaser, the same principle does not necessarily prevail. There must be an agreement to sell by sample, or at least an understanding of the parties that the sale is to be a sale by sample: Waring vs. Mason, 18 Wend. 434. question can only be answered by a view of all the circumstances of each case, and the intention of the parties must be gathered from their acts. It is a question of intention, and must be submitted to the jury. The evidence must be sufficient, from which the jury can find that the sale was intended to be a sale by sample: Beirne vs. Dord, 1 Selden, 95: Hargous vs. Stone, 1 Selden, 73. An exhibition of a sample in such case, without anything more, is only a representation that it has been taken fairly from the bulk of the commodity: Ib. In case of a technical sale by sample, if the article is not equal to the sample, the contract may be rescinded or the merchandise may be retained and an action for damages be brought: 2 Kent's Com., 481; Story on Contracts, & 540; authorities collected by Jewett, J. 1 Seld, 99. The question decided in this case, that the merchandise must, under the facts proved, correspond with the appearance of the sample, and not simply with its real qualities, is of the first impression. The vendor may be regarded as estopped from denying that the apparent and actual qualities of the goods were different. 2 (4.) The defendants were liable, not having disclosed their correspondents, on well settled principles of law. If they had disclosed their principals, the question would have been raised, whether, as foreign factors, the presumption of law is that the dealing was exclusively with them. This doctrine, which was advanced by Judge Story, (Agency, sec. 268, and note 290, 423,) was combated, 2 Kent Com. 630, 631; 22 Wend. 244; disapproved and discarded in Green vs Kopke, 18 C. B., 548. (1856,) and in Oelricks vs. Ford, 23 How. U. S., 49, (1859,) Nelson, J., delivering the opinion of the court. The question is one of intention, to be gathered from surrounding circumstances, such as usage, &c. The fact that the principals were foreigners, might be an element in reaching the conclusion. Jervis, C. J., in Green vs. Kopke; Coleridge, J., in Mahony vs. Kekulé, 5 Ellis & Black., pp. 125, 130. See Heald vs. Kenworthy, 10 Exch. 739. "The question is one of fact and not of law," Parke, B. The doctrine itself was only extended to goods sold by oral contract. Bray vs. Kettell, 1 Allen (Mass.,) 80, (1861,) per Bigelow, C. J. Where there is a written contract, properly executed by an agent, as if signed “A. B., princi pal, by C. D., agent,” and the language is unambiguous, a foreign factor is no more liable than a domestic factor, S. C. T. W. D. In the Supreme Court of Pennsylvania, 1861. JEPTHA KILLAM VS. GEORGE KILLAM. 1. An estate already descended cannot be divested from the legal heirs, and given to the bastard child of an intestate, by a subsequent statute of legitimation; but the legislature may cure the taint of a bastard's blood for the purpose of future inheritance. 2 By an act of the Legislature, passed in 1853, it was provided that George W. K., son, and Emily M., daughter of George K., shall have and enjoy all the rights and privileges, benefits and advantages of children born in lawful wedlock, and shall be able to inherit and transact any estate whatsoever, as fully and completely to all intents and purposes, as if they had been born in lawful wedlock.” The persons named were children of George K., in point of fact, by the same mother, who, after their birth, but before the passage of the act, had been married to a third person, X. At the date of the act all parties were living. George W. died in 1859, unmarried, and without issue, seised of land which had been conveyed to him by his father. In an ejectment by the father against a grantee of X. and his wife: Held, that the effect of the act of 1853, was to remove, for all purposes of inheritance, the defect of blood of the children, as though, at the time of their birth, their parents had been lawfully married; that the land passed, under the intestate laws of this State, to his natural parents for their joint lives, notwithstanding that the mother was then still the wife of X., remainder to his natural sister, Emily M., in fee; and therefore that the father was entitled to recover, but only as to an equal moiety of the land. 3. Held, also, that the case was not affected by the general law of 1855, which provides that the estate of a bastard, dying unmarried and without issue, shall pass to his mother absolutely. 4. Held, further, that the fact that the conveyance of the land in question to George W. K., by his father, was expressed to be in consideration of natural love and affection, was not material. Error to Common Pleas of Wayne county. The opinion of the Court was delivered by WOODWARD, J.-The reason why a bastard cannot inherit, by the common law, is because he is the son of nobody. Having no ancestor, his blood possesses no inheritable quality; though in respect of his own children, it has the usual descendible quality of pure blood. But a bastard may be made legitimate and capable of inheriting, says Blackstone, and 4th Inst. 36, by the trauscendant power of an act of Parliament, and not otherwise, as was done in the case of John Gaunt's bastard children by a statute of Richard II. We have on our statute books acts of legitimation without number. Because our constitution is silent on the subject, the legislative power is plenary. I am not aware that it has ever been questioned. An estate that has already descended to the legal heir cannot be divested and given to the bastard by a subsequent act of legitimation; but that the taint of his blood may be cured for the purposes of future inheritance by the healing touch of the legislature, is not to be doubted. It is not so questionable an exercise of power as the restoration of inheritable blood by the reversal of an attainder for treason; for the corruption there proceeds from disloyalty to the State, which is a much more grievous offence than fornication. The business now in hand, however, is not to vindicate the legislative power to restore bastards, but to interpret an act of legitimation. In 1853 the legislature enacted, "that George W. Killam, son, and Emily Miles, daughter, of George Killam, of Wayne county, shall have and enjoy all the rights and privileges, benefits and advantages of children born in lawful wedlock, and shall be able and capable in law to inherit and transmit any estate whatsoever, as fully and completely, to all intents and purposes, as if they had been born in lawful wedlock." These are very large enabling words. The very definition of a legitimate person is one born in lawful wedlock, and whatever capacities to inherit or transmit an estate such a person possessed in 1853, or should acquire thereafter, were to belong to George W. Killam, and to be among his "rights, privileges, benefits, and advantages." So much is clear. But lawful wedlock with whom? The mother of George W. and Emily is not mentioned or referred to in the enactment. Whether they were children of the same mother, and who was the mother of either or both, the legislature seems not to have known or inquired. They meant undoubtedly that the children should have the same legal capacities as if their father had been at their birth the lawful husband of their mother, and it is fortunate that the construction of the act is rendered easier by the ascertained fact that they had a common mother. |