Opinion of the Court, per SELDEN, J.

manufacture; for he says, in his opinion upon the motion of a new trial:-"I declined expressing an opinion at nisi prius, but I expected the jury would have found that the article was not properly manufactured, for the testimony of the scientific witnesses was very clear." Still, he does not seem willing entirely to abandon this ground, notwithstanding the verdict was against it, for he goes on to remark:-"At all events, the warranty given by them (the defendants) is not satisfied, because the jury found that there is an intrinsic defect in an article manufactured by them."

But the chief justice seems to have been driven by the verdict, to seek for some other ground upon which to rest the case; he argues, therefore, to show that the words. "I will serve you well," constitute an express warranty; he then adds-" But I wish to put the case on a broad principle. If a man sells an article, he thereby warrants that it is merchantable, that it is fit for some purpose. ** If he sells it for a particular purpose, he thereby warrants it fit for that purpose." Mr. Justice BURROUGH seems to me to have taken the most sensible view of the case; he says "I consider this as more a question of fact than of law; the question is whether the contract was proved as laid. It was so proved; and after Fisher had introduced the parties, and stated the purpose for which the plaintiff wanted the copper, the defendants warranted the article, by undertaking to serve the plaintiff well."

This case has been cited, indiscriminately, to prove that upon the sale of manufactured articles, by the manufacturer himself, there is an implied warranty against defects arising from the process of manufacture; that goods sold for a particular purpose *are warranted * 566 ] fit for that purpose, and even that there is an implied warranty, in all cases of sale, that the goods sold are fit for some purpose. The case, I think, was properly decided, on the ground upon which it was placed by BURROUGH, J. It was this case, more than any other, which has

Opinion of the Court, per SELDEN, J.

served to create, in the minds of some of our judges, so strong a feeling against exceptions to the maxim caveat emptor, that they have been disposed to reject all such exceptions, without discrimination. ( (Wright v. Ilart, 18 Wend. 449; Hargous v. Stone, 5 N. Y. 73.) But if we look at what the English courts have really decided, instead of what some of the judges have loosely said, we should, I think, find less occasion for deprecating their tendency in this respect, towards the doctrines of the civil law, than has been supposed.

But for this hostility to all implied warranties as to qual ity, it never could have been doubted, that where one sells an article of his own manufacture, which has a defect produced by the manufacturing process itself, the seller must be presumed to have had knowledge of such defect, and must be holden, therefore, upon the most obvious principles of equity and justice, unless he informs the purchaser of the defect, to indemnify him against it. In such cases, if the price paid is entirely below that of a sound article, a presumption would, no doubt, arise, as under the civil law, that the purchaser was apprised of the defect. In the present case, a portion of the alleged defect in the saw would seem to have arisen from the unsuitableness of the material of which it was made. The rule on the subject, I hold to be this:-The vendor is liable, in such cases, for any latent defect, not disclosed to the purchaser, arising from the manner in which the article was manufactured; and if he, knowingly, uses improper materials, he is liable for that also; but not for any latent defect in the material which he is not shown and cannot be presumed to have known.

The judgment should be reversed, and there should be a trial, with costs to abide the event.

Judgment reversed, and new trial awarded."

On a subsequent trial of this case, there was a verdict for the plaintiff for $10.84, the value of the material only; 24 How. Pr. 26, which was

Statement of the Case.

MANNING V. TYLER and another.

Pleading defence of usury.

The Code has not relaxed the precision required in stating the defence of usury; an answer which merely avers usury, in general terms, is deemed frivolous, on a motion for judgment.

APPEAL from the general term of the Supreme Court, where a judgment against the defendants, on the ground of the frivolousness of their answer, had been affirmed.

This was an action against the defendants, as maker and indorser of a promissory note for $300. The answer averred that the plaintiff made a loan to the maker of the note, upon which the other defendant was an accommodation indorser, on the security thereof, at a greater rate of interest than seven per cent. per annum; that the original note was renewed, from time to time, and upon each renewal thereof, the plaintiff received a greater rate of interest than seven per cent., wherefore, the answer averred, that the note sued on, which was the last of the series of renewals, was usurious and void.

* 568 ]

*On application of the plaintiff to a justice of the court, judgment was given on account of the frivolousness of the answer, under § 247 of the code; which

affirmed on appeal; 36 N. Y. 93. In the case of Sanborn v. Herring, 15 Am. L. Reg. 457, it was ruled by Mr. Justice Noah Davis, at circuit, that if a manufacturer of iron-safes, who keeps them for sale, sell one as burglar-proof, there is an implied warranty that it is burglar-proof, so far as it could be made, in the then known state of the art; and that, on a breach of the warranty, the purchaser was entitled to recover the difference in value between the article as sold, and as what it was represented to be. And see Walker v. Milner, 4 Fost. & Fin. 745, for a similar case, in an English court.

Opinion of the Court, per BACON, J

having been affirmed at general term, this appeal was taken.

Parker, for the appellants.

Porter, for the respondent.

BACON, J.-That the answer in this case is bad, within all the rules of pleading heretofore recognised in the courts, cannot, I think, be questioned. It consists, in effect, of nothing more than a general averment that the note on which the suit is brought is void for usury. It does not aver what the usurious agreement was; between whom it was made; the quantum of usurious interest. that was agreed upon and received; nor that the agreement was intentionally usurious and corrupt. The old rule of pleading required all this particularity. Thus, in Vroom v. Ditmas (4 Paige 526), the Chancellor, speaking of the manner in which usury must be set forth in a pleading, says," the defence must be distinctly set up in the plea or answer, and the terms of the usurious agreement, and the quantum of the usurious interest or premium, must be distinctly and correctly set up." See also, to the same effect, New Orleans Gas Company v. Dudley (8 Paige 452); Curtis v. Masten (11 Id. 15), and numerous other cases. In the case of the New Orleans Gas Company v. Dulley, the Chancellor, speaking of an answer thus bald and deficient in these essential elements, says, that such a pleading would certainly be considered bad, both in form and substance, if pleaded as a defence to a suit upon a bond or evidence of debt, in a court of law.

Under our present system, which requires the facts constituting a defence to be plainly and concisely set forth, this rule cannot be deemed to be relaxed; and so are the cases, Fay v. Grimstead (10 Barb. 321-9); Gould v. Horner (12 Id. 601). The answer, then, is bad in sub

Opinion of the Court, per BACON, J.

* 569 ] stance for the *want of these essential allegations, and being thus fatally defective, the defendant having presented to the court below no affidavit of merits, nor made any application to amend the pleading, so as to present a defence, the judgment here should be final against him.

Everything stated in this answer may be true, and yet no usury whatever have existed in the transaction; since, there may be many cases where more than seven per cent. is actually received upon a loan, and yet the transaction be entirely uninfected with usury; and the law will never presume a corrupt and usurious, nor, indeed, any other unlawful agreement, from a state of facts that is equally consistent with a lawful purpose.

The case of Catlin v. Gunter (11 N. Y. 368) in no respect aids the defendant. That case turned entirely on the question of variance; the answer set forth the defence of usury, in a full and unmistakable manner, and could not be objected to as a pleading in any form; the usury proved on the trial differed in several particulars from that alleged, but not in its entire scope and meaning; and the court consequently held, under the provision of the code applicable to variances and the power of amendment, that the variance, it not having been al leged that the party was misled by it, should have been deemed immaterial. It is conceded, in the opinion of the court in that case, that if the answer had been, in general terms, that the note was, at its inception, negotiated upon a usurious consideration, it would have been bad for its generality. That is the whole scope of the answer in this case.

It is insisted, that the remedy of the plaintiff was, to move, under § 160 of the code, to make the answer more certain and definite. It is very true, that resort might have been had to this section, if the plaintiff had elected to compel the defendant to put in an issuable answer; but that is only one of the remedies which the law af