cannot be ascertained without laying the sacks open to the centers. This would result in great inconvenience to both parties, and would be almost impossible.

Hence, the person who packs the wool is held to a strict accountability in regard to his representations when he speaks of the wool, and his silence when possessed of information which he ought to disclose.1

1 Story's Eq. Jur. Sec. 212, citing with approval the following quotation from Hammond's Nisi Prius, 238, as correctly stating the rule of the English law as to defects entirely beyond the reach of the faculties of inspection: "If a vendor, having knowledge of a defect in the commodity, which cannot be obvious to the buyer, does not disclose it, or, if apparent, uses artifice and conceals it, he has been guilty of a fraudulent misrepresentation." The perfect silence may be the surest artifice. (2 Kent's Com. Sec. 482.)

Roseman v. Canovan, 43 Cal. 110, was an action to recover damages for a fraudulent misrepresentation as to the merchantable quality and condition of certain wool sold by defendants to plaintiffs; the vendor was the shearer, owner, and packer of the wool, which he offered and sold to plaintiffs. Some of the bales the buyers cut into about three or four inches, and made such examination as they could in that way, and by inspection of the outside of the bales; it appeared to be merchantable wool, dry, and looking well. There were some slight circumstances tending to show that the wool was wet, and the buyers mentioned them to the seller, but were by him assured that it was not wet, and he explained away the circumstances which had attracted the buyers' attention.

When the wool was opened, it was found very wet, full of mud, and not merchantable, because of its being in that condition; and on the trial it was shown that the sheep had been sheared in a wet, muddy corral; that the wool was "packed wet,” and very muddy and dirty, “in a heating condition"; that the vendor knew these facts, but the buyers did not, and could not have ascertained them without opening the bales.

The Court held that though the rule of caveat emptor might apply, if the seller had remained silent, yet, under the circumstances, and on account of the active concealment and artifice of the seller, he was responsible in damages for a fraudulent misrepresentation.

That, unless there was warranty or fraud, the purchaser of chattels cannot be heard to complain of conditions or defects open to his observation, or which he might have seen had he thought fit to make an examination for that purpose. In such cases the maxims, "caveat emptor,” and “qui vult decepi, decipiatur,” apply; but that these rules have no application to a case in which the vendor resorts to a trick or artifice for the purpose of diverting the purchaser from the line of inquiry otherwise open to him, and which, but for such diversion, he might have followed.

CHAPTER XIV.

HOGS.

§ 162.

$163.

§ 164.

§ 165.

§ 166.

§ 161. Caveat emptor, in sale of hogs.
Earnest-money in purchase of hogs.
Sale of swine affected by contagious disease.
Words of commendation not a warranty.
Distinction between "hog" and "pork.”
The business of preparing pork for market.
As to damage by hogs in trespassing.
Killing hogs found "damage faisant."

§ 167.

$168.

§ 161. The rule, caveat emptor, in sale of hogs.-The sale of hogs is governed by the general rules and the law, as already stated, and enough of these general principles may be considered to have been given, were it not for the peculiar characteristics of the animal under consideration, and the application of the law necessarily to be considered with reference to those characteristics.

Where hogs are sold without an express warranty, and no fraud is shown, the purchaser takes the risk as to their quality and condition. If the buyer has an opportunity to examine, and does examine, the hogs before buying them, he must abide all losses which may result from their being diseased at the time of purchase, provided the seller makes no warranty, or is guilty of no fraudulent concealment of facts which render them worthless.1

1 Eagan v. Call, 34 Penn. St. 236; Mason v. Chappell, 15 Gratt. 572; Fortune v. Singham, 2 Campb. 416; Jones v. Bright, 5 Bing. 533; 1 Smith's Leading Cases, 182.

Frazier v. Harvey, 34 Conn. 471. This was an action to recover the price paid for a lot of hogs. Plaintiff examined them, agreed with the vendor as to the price, $216, which was their market value, paid it, and took the hogs to his home. Shortly after the sale, it became apparent that the hogs were affected, and they all died from the disease within three or four weeks from the time of sale. Upon this showing, the plaintiff claimed a want of consideration, in having parted with his money for property which was of no value; but the Court did not regard the claim as well founded.

§ 162. Earnest-money in purchase of hogs.-Contracts are to be construed in view of surrounding circumstances, so that substantial effect may be given to the agreement upon which the minds of the parties have met; and although rules of a general character may be stated, the application of them must depend upon such contingencies as it is reasonable to consider that the parties have regarded as liable to occur.

Thus, in the sale of live stock, it is not unusual for sales to be made and earnest-money paid to secure the bargain; and where such earnest is manifestly intended to bind the trade,

The language of the decision upon this point is: "The rule of the common law is, that, where there is no express warranty, and no fraud in the sale of personal property, the purchaser takes the risk of its quality and condition. He must, therefore, suffer all losses arising from latent defects equally unknown to both parties.

"This rule, which, with us, was definitely settled by the case of Dean v. Mason, 4 Conn. 432, is too well understood as prevailing wherever the Courts profess to be governed by the principles of the common law, to require to be supported by the citation of authorities. But it is impossible to give full effect to this rule upon the idea that the charge in this case was correct. This charge was as follows: "If the defendant did not warrant the hogs to be sound, healthy, and free from disease, the plaintiff was not entitled to recover on the first count of his declaration; but that he was entitled to recover, upon the common counts, the price paid for the hogs, with interest from the time he bought them, if at the time he bought them they were so infected that they were of no value whatever, and that the plaintiff received no value whatever from his contract, and that there was a total failure of consideration; but that the failure of consideration was not total, if the hides or carcasses of the hogs were worth anything for any purpose whatever," "since it follows, as a necessary inference from the rule, that the total worthlessness of the article sold is as much at the risk of the purchaser as can be any partial defect which only impairs, to some extent, its value. In other words, the rule itself would be abrogated in all those cases where the defect in the quality is such asto render the article worthless. But the plaintiff cites, in support of a different doctrine, the general principles to be found in the text-books, that, where the consideration of a contract fails, the contract may be avoided; and if money has been paid for a consideration which has thus failed, it may be recovered back. But the difficulty in the plaintiff's case is, that there is no failure of consideration where the purchaser gets precisely what he agreed to purchase. Where the purchase is of chattels having a commercial value in the market, like live stock, it cannot be said of them that they are wholly sound, while the quality of them is unknown, or a secret disease by which they are affected is undeveloped. At the sale, the animals appeared to be free from disease, and sound. Presumptively, the fair market price for such animals was paid for them. They were then of value at the time of the purchase, and, as the purchaser takes the risk of the quality, where that is equally unknown to both parties, the secret defect which was afterward developed should have been guarded against by insisting upon a warranty, unless the purchaser expected and intended to suffer any loss arising therefrom." (Moses v. Mead, 1 Denio, 378.)

rather than as a payment on account, strictly speaking, a corresponding train of thought may be fairly presumed to have operated on the minds of the parties as inducement to the contract, to the effect that if the buyer fail to pay the balance of the purchase price, he cannot rescind the trade and have his advance returned. Neither is it just that, a time of delivery being agreed on, the buyer should neglect to make good his purchase by paying up the balance, and keep the seller bound, while he is free to lose his forfeit, or make it good and keep the trade open to suit his convenience. It cannot be that one party is bound and the other free.1

§ 163. Sale of swine affected by contagious disease.— Notwithstanding the general rule that a purchaser should examine hogs before buying, and fails to do so at his peril, there being no express warranty, yet if a sale under a warranty be made of a lot of hogs, the warranty being that the whole drove sold are free from disease, which, from its infectious character, is dangerous to other like animals, and it afterward appear that they are so affected, the purchaser may recover on the warranty all his damages sustained by reason of the animals which he bought being so infected, and he is not bound, in the recovery, to the price of the animals purchased.2

1 In McElroy r. Parker, Circuit Court Hancock County, Ill., Oct. 5th, 1874, plaintiff brought suit on verbal contract for sale of three hogs; he paid five dollars to defendant, at his farm, on the purchase, the balance to be paid in the town, at certain scales, on the 4th or 5th of March. Defendant went to the scales March 5th, and remained there with them an hour, to wit, from 11 to 12 o'clock until 2 in the afternoon, and no one coming to receive the hogs, he sent a message to plaintiff's house, of his readiness to deliver the hogs; plaintiff was not at home, and did not receive the message. Defendant returned with his hogs to his farm; and on the evening of the same day, plaintiff followed him to the farm and demanded the completion of the trade. The price of hogs had advanced, and defendant refused to comply; thereupon plaintiff brought suit. The Court held he could neither enforce the completion of the trade, nor have returned his forfeit of five dollars. Held, defendant fully complied with the terms of the contract on his part, and for the breach plaintiff must suffer.

2 Bradley v. Real et al. 14 Allen, (Mass. 1867) 20. In this case, an action was brought to recover the price of fifteen pigs sold by plaintiff to defendants, by weight. To this claim defendant pleaded a warranty made by plaintiff to him, when he bought the pigs, that they were free from disease and sound; that these representations were false and fraudulent, and that plaintiff, when he sold them to defendants, knew them to be affected by an infectious disease; that they were all infected, and, in a few days after the sale, died from the disease which they had when bought.

§ 164. Words of commendation do not make a warranty. A warranty is not to be inferred by mere words of commendation used by the vendor to induce the vendee to make the purchase; nor can a warranty that the hogs sold were fit for a specific purpose be implied from a knowledge on the part of the seller that the article is intended for such purpose; and, even upon an executory contract for the sale of property, if the vendee finds the article received not of the kind contracted for, to preserve his rights he must return it to the vendor, or

These facts were shown on the trial, but the jury, under instructions from the Court, found for the plaintiff, and defendants appealed; the upper, Court sustained defendants' exceptions, and set aside the judgment, and, on the case, ruled that "if the breach of warranty, or fraudulent misrepresentations on which the defendants rely, relates to the existence of a contagious or infectious disease in any of the pigs sold, the evidence offered that other pigs in the same drove had the disease, and that the plaintiff knew it, would be competent; it would obviously be admissible to show, upon the question of how much the pigs sold were reasonably worth at the time of sale, that they came from a drove in which they had been exposed to the disease, as this would affect their market value. And if they were sold in one lot, the value of the whole lot, when sold, would be the subject of inquiry, and they might be found to be collectively of no value, or of very little value, from their liability to communicate the infection, though some of them may not have died of the disease. It has been held, in a recent English case, that, in an action for fraudulently misrepresenting that a cow, sold to plaintiff, was free from infectious disease, if the plaintiff placed the cow with others which thereby caught the disease and died, he can recover as damages the value of all the cows. (Mullette. Mason, Law Rep. 1 C. P. 559.) The nature of the subject-matter of the warranty or deceipt is such that when animals are sold in one lot together, the warranty or representation as to the whole lot being single, we can have no doubt that the same principle should apply to the extent of a recoupment, and the right to recoup in damages should not be confined to the diminished value of those which are proved to have had the disease at the time of sale.

"In determining the damages caused to the defendants by the breach of warranty or deceipt, the defendants were entitled to have the jury consider, in recoupment of damages, the whole loss to them occasioned by the presence of the disease among the animals purchased, as well among those which took the infection after the sale as those which had it when the sale was made."

1 Bartlett v. Hoppock, 34 N. Y. 118. In this case, the vendor knew that the buyer desired a lot of hard, corn-fed hogs, suitable for sale in the New York market. Knowing these facts, the seller, who had a lot of common hogs, which were not fit for that market, offered them for sale to the buyer, a hog-broker, or agent to buy hogs for dealers in New York. To induce the purchase, the vendor declared that his animals were "hard, corn-fed" hogs, and they were accordingly bought and forwarded to New York, where they proved to be unfit for sale, being thin, soft, and apparently not "corn-fed.”

The Court held this to be no warranty; that "a warranty of fitness of an article for a specific purpose cannot be implied from a knowledge, on the part of the seller, that the article is intended for such a purpose."