Page:Harvard Law Review Volume 8.djvu/299

NOTES. 283 Term, i James I., in Cro. Jac. 4 and in 2 Rolle Rep. 5. In Dyer, 75a ('I'reby's note), there is a report of an action between the same parties, stated to be of Trinity, 3 James I., which Vaiilant, Dyer's editor, has with mistaken zeal assumed to be the same case. But in a MSS. vohime of reports, i-io James I., in the Harvard Law School Library, Professor J. H. Beale has found a full report of this second case, which shows that after the failure, reported Cro. Jac. 4 and 2 Rolle, 5, Lopus tried again in 3 James L, with a new and stronger declaration. The following extracts are substantially the whole of this second case. The reader may be re- ferred to Mr. R. C. MacMurtrie's article upon the case in i Harvard Law Review, 191, " Chandelor v. Lopus" and to Professor Emlin Mc- Clain's article upon the history of " Implied Warranties in Sales," in 7 Harvard Law Review, 212. It will be noticed that a difficulty about the case which Professor McClain speaks of is entirely resolved by the fact of the existence of two cases. " Lopus brought an action on the case against Chandlor, and declared that the defendant . . . was possessed of a stone which he asserted and declared to the plaintiff to be a good and perfect stone called a Bezers Stone, . . . but, the said defendant, knowing that the stone was not good, ut supra, but a false and fictitious stone, asserted it to be good and of the nature and quality of a Bezer Stone, and the plaintiff thereupon being ignorant of the goodness thereof, the defendant sold the said stone ... to the plaintiff, ... to the damage of the plaintiff;^ 200. To which the defendant demurred. " Heale prayed judgment for the plaintiff, and said that in all bargains the law requires plainness, and will punish deceit in the vendor if he affirms more than is true of his wares even although he does not warrant them, as appears by the case of 9 H. V. 53, one shall have action on the case against one who sells corrupt wine even if there be no warranty in the bargain, if he knows that it is corrupt ; and so is the case of 22 H. VII. 91. " Crooke, to the effect that action on deceit lies even if there be no warranty, if the defendant knew the wares to be corrupt ; that in 42 Ass. 8, pi. 8, an action on the case was brought against one for that he had stolen cattle and sold to the plaintiff as his own, and adjudged that it lies ; and I have a case where one had forged a lease, and knowing it to be forged sold it to another as a good and sufficient lease, action on the case lies although there be no warranty ; and it seems to me that the words here, asseruit and affirmavit, amount to a warranty, the defen- dant knowing that the stone was false. But if the vendor had been ignorant of this, no action lies doubtless. " Gouldsmith, contra. . . . When one is selling wares it is lawful for him to say the best he can to raise the price, and although the vendee buy it at his price, if he has no warranty, or at least reliance on the promises and prices. An action on the case does not lie although he is deceived, for caveat emptor and the book of 42 Ass. 8, pi. 8, is expressly * the plaintiff relying on the truth of the defendant,' and the book of 9 H. VI. 53 was for wine, which was bad victual prohibited by the law to be sold, . . . but for other commodity than victual no action lies without allegation of war- ranty, or at least of reliance on the vendor's promise. " And later, in Trinity, 4 James I., this case was argued again by Heale for the plaintiff in effect as above. " Fenner. If one purchases protection of delay of a suit and does not 38