majority">By the Court, Bronson, Ch. J.

When there is neither fraud nor express warranty on the sale of a chattel, the buyer takes the risk of its quality and condition. No warranty of any kind can bo implied from the fact that a sound price was paid. Caveat emptor, and not caveat venditor, is the rule of the common law; and that is our law. I speak of an executed, and not of an executory contract for the sale of goods. (See Howard v. Hoey, 23 Wend. 350.) Some of the English judges have lately shown a strong tendency towards the doctrines of the civil law in relation to sales, and have been disposed to imply warranties where none were actually made. This is the more remarkable for the reason that the common law judges at Westminster hall have not heretofore been disposed to think very highly of the civil law, except where it coincided with their own; and it has been thought a strong trait of British character, that nothing in the institutions of other countries is esteemed of much value, unless it be also common to the laws and customs of England. I do not regret to find that there are men in Great Britain who can look beyond the shores of that is1 and :• but I *386feel no disposition to follow them in their new zeal for the civil law ; for the reason that it is not our law, and the further reason, that our law in relation to sales is the best. The civil law implies a warranty where none was in fact made. The common law leaves men to make their own bargains. If the purchaser wants an undertaking that the goods are sound or merchantable, he asks for it; and then the vendor decides for himself whether he will make such a contract, or let it alone. Under the civil law it is not enough for the seller’s protection that he deals honestly, and does not warrant the goods ; but he must make an agreement that no agreement shall be implied against him. When charged with a warranty, he cannot safely answer, prove it; nor will it be enough for him to show that no warranty was in fact made: he must go further, and prove an agreement to be exempt from the consequences of a contract which he did not make.

The last attempt with us to substitute the civil, for the common Jaw rule, was made in relation to a sale of flour, which proved to be bad. The attempt failed, both in this court and the court of errors. (Hart v. Wright, 17 Wend. 267, and 18 id. 449.) We have made one inroad upon the common law rule, and allowed a warranty to be implied on a sale by sample, that the bulk of the article corresponds in quality with the sample exhibited. (Waring v. Mason, 18 Wend. 425.) This exception to the general rule, although now firmly established, stands upon no principle. If the purchaser wants such a warranty, he should ask for it; and then the vendor will have the opportunity of saying whether he will consent to make such a contract or not. The law now makes it for him without his consent: and he can only get rid of that result by taking the precaution to agree at the time of the sale, that no contract which he does not make shall afterwards be implied against him. It would, I think, have been better had the' maxim of caveat eniptor been leit unbroken.

PVe are reterrea to the authorihr of Blackstone for another exception to the general rule, and it is insisted that on a sale of provisions, there is an implied warranty that they are whole*387some. 3 Black. Com. 164-5.) The language of the commentator leaves it somewhat doubtful whether his mind was not upon a deceit in the sale, which stands on a different footing from a warranty. If he intended to affirm that the law always implies a warranty of soundness on the sale of provisions, the remark is without any support in the English adjudications. There is a dictum of Tanfield, C. B. and Altham, Baron, in Roswel v. Vaughan, (Cro. Jac. 196,) that “if a man sell victuals which is corrupt, without warranty, an action lies, because it is against the commonwealth.” But they were evidently speaking of a sale of food for man’s use, knowing it to be unwholesome, which is an indictable offence. The dictum of Blackstone has been directly overruled in Massachusetts. (Emerson v. Brigham, 10 Mass. R. 197.) The case of Bailey v. Nichols, (2 Root, 407.) was not put upon the ground that it was a sale of provisions : and besides, the case has been overruled. (Dean v. Mason, 4 Conn. R. 428.) The doctrine of Blackstone, with a very important Qualification, was approved by the judge who prepared the opinion in Van Bracklin v. Fonda, (12 John. 468,) but that was plainly a case of fraud. The jury found that the beef was unsound and unwholesome, and that the defendant—the seller—knew the animal tobe diseased. The case of Hart v. Wright, (17 Wend. 267, and 18 id. 449,) arose on a sale of provisions; and one member of the court of errors was for implying a warranty of soundness; but that opinion did not prevail. The only distinction which was mentioned at the bar between that case and the one now before us, is, that flour is sometimes applied to other uses, while the jury have found that this beef was an article of provisions used only as food for mankind. The distinction is not broad enough for the foundation of a judicial decision. Although flour is sometimes applied to other purposes, it is most generally used as an article of food.

Although the doctrine of Blackstone cannot be supported in its whole extent, I am not disposed .to deny, that on a sale of provisions for immediate consumption, the vendor may be held responsible, in some form, for the sound and wholesome condition of the articles which he sells. It is not,' perhaps, too much *388to presume that butchers, grocers, and others who furnish by retail the usual supplies for the families of customers, are, from the nature of their employment, acquainted with the quality of the articles in which they deal. In Van Bracklin v. Fonda, (12 John. 468,) it was said that “ in the sale of provisions for domestic use, the vendor is bound to know that they are sound and wholesome, at his peril. This is a principle, not only salutary, but necessary to the preservation of health and life.” I find no difficulty in subscribing to that doctrine. But there is a very plain distinction between selling provisions “ for domestic use,” and selling them as articles of merchandize, which the buyer does not intend to consume, but to sell again. Such sales are usually made in large quantities, and with less opportunity to know the actual condition of the goods than when they are sold by retail. When provisions are not sold for immediate consumption, there is no more reason for implying a warranty of soundness, than there is in relation to sales of other articles of merchandize. We are of opinion that the maxim of caveat emptor was properly applied to this case by the court below; and as there was neither fraud nor express warranty, the action cannot be maintained.

Judgment affirmed.

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