The pork for which the defendants claim an offset, it is admitted, was sold, not as sweet, but as sour pork ; it is admitted also that although sold as sour, it was sold as sour mess pork of good quality, and inspected. Whereas it turned out to be of bad quality and tainted and rotten, entailing a loss on the purchase of five dollars and a half on each barrel; in the aggregate more than $2000. To this claim of the defendants the plaintiffs demur.
It is insisted that the case, on the part of the defendants, is one of tort and not of contract. This is a mistake. No fraud or deception is charged. The answer assumes merely that sucha sale imports a warranty that the article was not so far sour as to be tainted and rotten. A warranty, whether express or implied, is matter not of tort but of contract. But the question still remains, do the words used import a warranty ? The general rule, especially in the sale of damaged articles, is caveat emptor. If mere expressions of opinion as to quality were to be construed into warranties, there would be no bounds to litigation. The seller almost universally entertains, and generally expresses, a much higher idea of his commodities than the buyer. And neither party in a commercial community, there being no fraud, relies upon or expects to abide by such mere expressions of opinion. The law assumes that if they are used, and the purchaser is materially influenced by them, he will insist, as he has a right to do, upon an express warranty. It gives him the power, and and imposes upon him the duty, thus far, at least, to take care of himself. If he would call upon Hercules, he must first put his own shoulder to the wheel. The courts in this do not justify the high-wrought coloring of vendors. They merely announce to vendees, as a necessary rule of public policy—essential to the *561public peace—that such matters cannot be made the basis of judicial litigation. If then the defendants’ counterclaim be founded on fraud, it is inadmissible as such under the code; if, on the other hand, it be founded on contract, the law says the words used make out no contract.
[New-York General Term, November 6, 1854.So that, in either view, the demurrer was well taken, and the judgment at special term should be affirmed.
Mitchell, Roosevelt and Clerke, Justices.]