Hoe v. Sanborn. on whose judgment and responsibility was the purchase really made? Implied warranties do not rest upon any supposed agreement in fact. They are obligations which the law raises upon principles foreign to the actual contract; principles which are strictly analogous to those upon which vendors are held liable for fraud. It is for the sake of convenience, merely, that this obligation is permitted to be enforced under the form of a contract. However refined this distinction may appear, its nonobservance has led to much of the confusion to be found in the cases on this subject. The same may be said in regard to the doctrine that an implied warranty arises upon every sale by sample; a doctrine, which, with the most obvious propriety, has been limited by the recent cases in this State (unless the goods are so situated that they cannot be examined by the buyer) to those cases where the circumstances warrant the inference that the seller actually undertook that the bulk of the commodity sold, corresponded with the sample. (Waring v. Mason, 18 Wend., 425; Hargous v. Stone, 1 Seld., 73.) In view of the principle settled by these cases, it is equally clear that warranties of this sort, are not strictly implied warranties. They are to be made out as a matter of fact, or they do not exist at all. To infer an actual warranty from the circumstances proved, is one thing; to impute a warranty without proof, is another and different thing, and unless we distinguish between the two, we unavoidably get into confusion. I will refer to a single case by way of illustration, viz.: Jones v. Bright (5 Bing., 533), a leading case and one frequently cited. The facts were that the plaintiff purchased from the warehouse of the defendant, who was himself the manufacturer, copper for the sheathing of a ship. The defendant, who was informed of the purpose for which the copper was wanted, said: "I will serve you well." The copper, in consequence of some defect, lasted only four months, instead of four years, the usual time. BEST, Ch. J., before whom the cause was tried, left it to the jury to determine whether the decay in the copper was occasioned by intrinsic defect, or external accident; and, if it Hoe v. Sanborn. arose from intrinsic defect, whether such defect was caused by the process of manufacture. The jury found that the decay was occasioned by some intrinsic defect, but that there was no satisfactory evidence as to the cause of that defect. The court held the defendant liable. But there is no little difficulty in ascertaining the precise ground upon which the decision was placed. It is evident that the Chief Justice, when he tried the cause, expected to dispose of it on the ground that the defect in the copper grew out of the process of manufacture; for he says in his opinion upon the motion for 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 ver dict, 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 pur Hoe v. Sanborn. pose are warranted 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 upor which it was placed by BURROUGH, J. It was this case, more than any other, which has 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. Hart, 18 Wend., 449; Hargous v. Stone, 1 Seld., 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 new trial, with costs to abide the event. Manning v. Tyler. All the judges concurred; COMSTOCK, Ch. J., and DAVIES, J., however, only in the conclusion, reserving their judgment as to some of the propositions in the opinion. Judgment reversed and new trial ordered. MANNING v. TYLER et al. The precision required in stating the facts essential to make out the defence of usury has not been relaxed by the Code. Where the answer avers usury in general terms, without stating the quan tum, or a corrupt agreement for its payment, the plaintiff is entitled to judgment for its frivolousness, and need not move to make it more definite and certain. APPEAL from the Supreme Court. The defendants were sued on a promissory note for $300-Raynor as maker, and Tyler as indorser. The answer purported to set up the defence of usury in this manner: It stated that "about six months" prior to the date of the note in suit, Raynor made a note for the same amount payable in three months: procured Tyler to indorse it for his accommodation, "which said note was got up for the purpose of enabling said Raynor to raise the money thereon;" that Raynor "thereupon applied to the plaintiff to loan him the money on said note for said three months, and the said plaintiff did thereupon loan Raynor the said money on said note, but at a greater rate of interest than at the rate of seven per cent per annum; that said note was renewed from time to time [stating in what manner], and that at each of said renewals the plaintiff received, and the defendants agreed to pay, greater rate of interest than at the rate of seven per cent per annum; that all these transactions were at the city of Syracuse, in this State; wherefore the defendants insist that the note mentioned in the complaint [which the answer shows to be the last of the scries] is usurious and void." Manning v. Tyler. The plaintiff applied to a justice of the court for judgment on account of the frivolousness of the answer, pursuant to section 247 of the Code; and judgment was given accordingly. The appeal was from a judgment at general term affirming the first mentioned judgment. Amasa J. Parker, for the appellants. John K. Porter, for the respondent. BACON, J. That the answer in this case is bad, within all the rules of pleading heretofore recognized 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. Dudley, 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. S. C. R., 321-9); Gould v. Horner (12 Id. 601). The answer, then, is bad in substance for the |