Barnett v. Stanton

¶1— The legal questions arising upon the instructions asked for, as well as those that were given the jury, are decided by the case of Burnett v. Stanton & Pollard, (ante,) with the exceptions of the following. 1. Is the manufacturer of goods presumed and bound to know the description and quality of goods manufactured by him ? 2. Was the offer to return the clothing, sufficient to rescind the contract ?

¶21. The bill of exceptions does not explicitly state, that the plaintiff was the manufacturer of the clothing, but that he “ was in the habit of having clothes manufactured at the North, for the Mobile market;’5 yet, in the charge to the jury, it is assumed, that the plaintiff was the manufacture]-. Now, it may be true, that the plaintiff was engaged in the business of having goods made for sale, yet it will not follow, that their manufacture was under his supervision oí control, or that the clothing, which was the subject-matter of the sale, was .made by his order. The Court then, in assuming the fact, it is believed, invaded the prerogative of the jury — if necessary to be determined, it should have been referred to them,.as a question of fact to be settled by the evidence.

¶3We are not aware of any adjudged case, in which it has been held, that one under whose supervision, goods are manufactured, is “presumed and bound to know their quality and description,” so as to charge him with a fraud in making a represensation, which happens to be untrue. It has been repeatedly said, that if one engage a mechanic to manufacture an article in his line of business, without any stipulation, the law implies the obligation, to make it in a skilful and workmanlike manner; [Gallagher v. Waring, 9 Wend. Rep. 28 ; 18 Wend. Rep. 436. Waring v. Mason;] and under such circumstances, implies a warranty of merchantable quality by the vendor. [Laing v. Fidgeon, 6 Taunt. Rep. 108; Jones v. Bright, 5 Bing. Rep. 533.] Chitty in his treatise on contracts says “ In the case of manufactured, goods, ordered and supplied for a particular purpose, there is, it appears, an implied warranty, that they are reasonably fit and proper for the purpose ; although at the time of the sale, the purchaser had an opportunity of inspecting the goods.”

¶4*199Without undertaking to inquire, whether the manufacturer , of goods impliedly warrants them to be such as are ordered by the purchaser, we are satisfied that, where they are open to inspection, and are actually examined before the sale is consummated, no warranty of quality will be implied. Principle as well as authority is directly opposed to such an idea. I [Burnett v. Stanton & Pollard, (ante.) and cases there cited./

¶52. The Circuit Court should have instructed the jury that, in order to rescind the contract, the offer to return the clothing should have been made in a resonable time after the purchase. The non-residence of the plaintiff furnished no excuse for the delay, if his domicil was known, or might have been ascertained on inquiry. What was a reasonable time, was a question for the jury, under the circumstances — but in an ordinary case, one half the time, that intervened between the purchase and the offer to return, would be regarded as unreasonable. [Burnett v. Stanton & Pollard, (ante.)

¶6But the offer to return could not rescind the contract; because, as the evidence shows, the defendants had continued, since their purchase, to exercise ownership over the goods, and had sold a part of them. Burnett v. Stanton & Polland, (ante.) The charge to the jury being the opposite of what we have declared the law to be; the judgment is reversed and the cause remanded.