The questions arising from the case are, 1st. What was the nature of the sale of the wheat ; is it to be considered a sale by sample and a warranty that the cargo would answer every purpose, which the sample would ? and
2d. Was the subsequent sale of the wheat at public auction, such a dissolution of the contract, as to take away the plaintiffs’ right to the difference between the sale to the defendants and that at auction ■
In considering this case, I shall take it for granted that the sale of the wheat was by Pearsall, the plaintiffs’ agent; that it was by sample ; that he knew the defendants’ object in purchasing, was to malt the wheat, and that the sample malted, but the residue of the cargo would not. These admissions must, however, be connected with other facts warranted by the case, such as that the cargo was southern wheat, known to be so, by the defendants, when they purchased it; that the difference between the sample and the cargo consisted in a part of the latter being heated; but that it was not more, nor sp much heated, as southern cargoes usually are, and that the defendants are brewers and maltsters.
It has been frequently decided here, that on the sale of a commodity, no action can be sustained for any dif- ' ference in quality between the thing contracted for and the thing delivered, unless there be fraud or a warranty ; I am disposed to confine this rule to the case of a sale where the thing sold is exhibited, and am ready to admit, that on sales by sample, there is an implied warranty that the sample, taken in the usual way, is a fair specimen of the thing sold. It appears to me that the sample by which the defendants purchased, was a fair exhibition of the quality of- wheat, of which the cargo consisted; it was taken out in the usual manner, by *405the plaintiffs’ agent running his arm down and drawing' out the sample ; and there is no pretence that there was, any difference between the sample and the cargo, except that the latter was heated in a manner incident to every cargo of southern wheat. This deterioration of the cargo, and which undoubtedly prevented its malting, was a fact against which the exhibition of the sample did not warrant, and it is a fact with which the defendants must be presumed acquainted; for the law will presume every dealer in articles brought to market acquainted with all the circumstances usually attendant on cargoes composed of those articles. It seems to me to result necessarily from these facts, that the defendants’ ground of refusal to receive the residue of the cargo, after, a part had been delivered, is not that there has been any thing represented, by the exhibition of the sample, unfair in itself and deceptive ; but that the defendants themselves made the purchase without a competent knowledge of the usual and customary course of the trade. This, I think, is what they cannot be permitted to take advantage of.
Although I have not adopted the same course of reasoning which was used by the judge, at the circuit, the result is the same, and the evidence which he overruled, I have considered as having been given.
The contract between the parties, and its part execution, produced a change of property; the defendants became entitled to the wheat, and the plaintiffs id the price stipulated i ) be given for it. After the defendants rc- * fused to accept the residue of the cargo, it was thrown on the plaintiffs’ hands ; and they were, by necessity, made the defendants’ trustees, to manage it; and being thus constituted trustees, or agents, for the defendants, they must either abandon the property to destruction, by refusing to have any concern with it, or take a course more for the advantage of the defendants, by selling it. There is a strong analogy between this case and that of *406the assured, in case of an abandonment, when a loss has happened within the terms of the policy, and the as-surer refuses to accept the abandonment. In both cases, the party in possession is to be considered an agent to the other party, from necessity : and his exercise of the right to sell ought not to be viewed as a waiver of his rights on the contract. This rule operates justly, as respects both parties ; for the reasons which induced the one party to refuse the acceptance of the property, will induce the other to act fairly, and to sell it to the be. t advantage. It is a much fitter rule, than to require it of the party, on whom the possession of the thing is thrown, against his will, and contrary to the duty of the other party, to suffer the property to perish, as a condition on which his right to damages is to depend.
There are no adjudications, in the books, which either establish or deny the rule adopted in this case; but it appears to me to be founded on principles dictated by good sense and justice. A case was mentioned, in the argument, Heermance & Radcliff v. Yeomans, decided in this court, many years since, of which no report is extant. I recollect the case : the principle now adopted was recognised in that case. On the whole, I think the rule now established by the court is a safe one, and conducive to the attainment of justice between the parties.
Thompson, J. and Yates, J. were of the same opinion.
Van Ness, J.If the circumstances under which the sale in this case was made, do not imply a warranty, that the whole cargo would malt, and if the plaintiffs have not im paired their right to recover, by subsequently disposing of that part of the wheat which was stored, upon the defendants’ refusal to receive it, there *407is no doubt but that the verdict is right. When the defence, which I overruled on the trial, was opened, it struck me, that if the law was, as it was stated to be by the defendants’ counsel, it would operate very unjustly in the present case, and in all other sales of a similar commodity. I, therefore, without hesitation, refused to admit it, and I am now perfectly satisfied I was right.
Every fact relating to the condition of the wheat; the place from whence it came, as well as the injury to which it was liable in the. transportation, were as well known to the defendants as to the plaintiffs. There was no misrepresentation or concealment; and there is, therefore, no pretence for imputing the least fraud to the plaintiff or his agent, in the transaction. If, then, the evidence, that the sample did malt, and the cargo would noc, was material, it must be because there was an implied understanding, that the cargo would answer the particular purpose to which it is said the defendants intended to apply it. I told the jury, that this was not strictly a sale by sample, and I still think so. The defendants examined the wheat for themselves, and exercised their own judgments and skill, when they agreed to buy it. I do not mean to say, that if the bulk of the cargo had been unfit for the purpose to which wheat is ordinarily applied, or if it had not been merchantable, or if it had turned out to be manifestly inferior to, or of a different quality7 from, the sample, that the defendants would, nevertheless, h e been obligated to receive and pay for it. But none of these things appear in this case. The fact whether the wheat was merchantable or not, was distinctly left to the jury, and it was expressly stated by Pearsall, one of the defendants’ witnesses, “ that, except the heated part, the whole cargo was equal in quality to the sample delivered.” Whether the wheat would malt or not, was unknown, probably7, to both parties ; and to say that either party contemplated a warranty, that it *408would malt, is not supported by any one fact in the case. A , . . . , , • i- • r And, it is certain, that nothing was more foreign from t^e plaintiffs’ intentions. The defendants did not ask the question ; and, as all southern wheat is more or less ^ ... heated, which, it is said, destroys the vegetating quailty, it may fairly be presumed, that the defendants knew that some portion, at least, of this cargo would not malt.
If the defendants intended to hold the plaintiffs liable for a defect which was equally unknown to both parties,' it was incumbent upon them to have exacted an express warranty for that purpose; and not having done so, they have no just cause to complain.
The case of Parkinson v. Lee is a much stronger case in favour of the plaintiffs than the present. That was a sale of hops, (part of which appeared, after the delivery, to be damaged,) by sample, -with a warranty that the bulk of the commodity answered the sample. The court determined, that the law did not raise an implied warranty, that the commodity should even be merchantable, though a fair merchantable price had been paid for it ; and that if there be a latent defect existing at the time of the sale, unknown to the vendor, and without fraud on his part, such seller is not answerable, though the goods turned out to be unmerchantable. Lawrence, J. said, “ here was a commodity offered for sale, which might or might not have a latent defect: this was well known in the trade: and the plaintiff might, if he pleased, have provided against the risk, by. requiring a special warranty. Instead of which, a sample was fairly taken from the bulk, and the plaintiff exercised his judgment upon it; and knowing, as he must have known, as a dealer in that commodity, that it was subject to the latent defect which afterwards' appeared, he bought it at his own risk.” Almost every word of what is here said, and which is reiterated by the rest of the court, is applicable to this case. The defect here wás *409latent, because it was to be detected by actual expen- , , . , ment only, and it was utterly unknown to the plamtitt. The principle upon which the case of Parkinson v. Lee was determined, has often been sanctioned by this court. (Seixas v. Wood, 2 Caines, 48. Snell and others v. Moses, 1 Johns. Rep. 96. Bayard v. Malcolm, &c. 1 Johns. Rep. 431.)
In what respect the case from Campbell's N. P. Rep. is supposed to apply to the one before us, I have not been able to discover. There Lord Ellenborough goes expressly upon the ground, that the quality of the sugar offered to. be delivered, was different from the sample. Here the quality of each was the same. There is this further manifest distinction ; in that case there was an essential difference between the market price of the sample, and the bulk of the sugar ; whereas in this, the whole cargo was worth, in the market, the whole price which- the defendants agreed to pay for it.
But it is contended, that the sale, by the plaintiffs, of that part of the cargo which was stored, has discharged the defendants from all liability. This is a very clear point. The defendants being bound, by the contract, to receive and pay for the whole cargo, and having refused to do either, what were the plaintiffs to do ? The article was perishable) and the interest of all parties required, that the most should be made of it. Nothing, therefore, is more reasonable, than that the plaintiffs, who were not bound to store or purchase the wheat, should be permitted to sell it, at the ,best price that could be obtained. The defendants have no right to complain. Had they taken the wheat, as they ought to have done, a sale by the plaintiffs would not have been necessary. The recovery here is only for the difference between the nett proceeds of that sale, and the price agreed upon in the original contract. In the case of Langford v. Administrators of Tyler, (1 Salk. 113. and S. C. 6 Mod. 162.) Holt7 Ch. J. ruled, “ that, after notice *410given, the vendor cannot sell the goods to another, without default in the véndee, and, therefore, if the vendee do hot come to pay and take the goods, the vendor ought to go and request him, and then if he do not .come to pay, and take away the goods in convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person.” These prerequisites were all complied with before the resale took place.
But it was urged, that according to the case just mentioned, the contract is considered as dissolved. Be it so ; but can there be a doubt that the defendants are liable for the difference in price, being a loss on the resale ? (1 Comyn on Con. 220.) Such suits have frequently been brought; and such, as it respects the wheat the defendants refused to accept, is the present suit.
My opinion, also, is, that the plaintiffs are entitled to judgment; but that the interest ought to be calculated according to the rule contended for by the defendants.
Kent, Ch. J.I am of the same opinion. The sale by sample was not a warranty as to the soundness of the cargo, nor was it so understood by the parties. The cargo corresponded with the sample in quality of grain, and that was all that was intended by the exhibition of the sample, If the purchaser had not been willing to have taken upon himself the risk of the sound or unsound condition of the wheat, he should have called on tiie plaintiffs for a special warranty. The case of Parkinson v. Lee (2 East, 314.) is a case in pointy, in support of this doctrine. Nor was the subsequent act of the plaintiffs, in selling the wheat not delivered, a waiver of their claim for damages for non-performance of the contract. The usage, in such cases, is to sell the article, after due notice to the other party to take it, and that in default of doing it, the article will be sold. This usage is convenient and reasonable, and for the best interest of both parties-.
*411What was said by Lord Ch. J. Parker, in Cuddee v. Rutter, (5 Vin. 538.) goes in support of this practice. The vendor ought to have the benefit of that principle, as well as the vendee. It would be unreasonable to oblige him to let the article perish pn his Bands, and run the risk of the solvency of the buyer. The course adopted was proper, and ought to be sanctioned.
Judgment for the plaintiffs.