delivered the opinion of the Court.
The defendants purchased, at auction, the goods in question, invoiced as barilla, and advertised and sold as such; but there was no warranty, nor any concealment on the part of the vendors.
The goods were consigned by certain merchants in England to the plaintiffs, who sent them to Messrs. Goodhue fy Co. at JYew-YorJc, to be sold; they were described as barilla in the bill of parcels. After the purchase, the defendants discovered, that the article purchased was not barilla, but help. Before the sale, they inspected and examined it; and a sample was exhibited, at the time of sale. Goodhue &f Co. knew it was an article of bad quality, but did not know that it was other than barilla.
I cannot discover any thing in this case that will justify the charge of unfairness or imposition. Kelp is a substance greatly resembling barilla, and from which it is not easily distinguishable. The defendants first made the discovery, after they had used a part. There is no ground to suppose, *203diat the consignors knowingly made a false representation, They were, probably, deceived themselves, and cannot be subjected to the imputation of fraud, unless that fact be clearly established by proof. The question, then, is, whether the loss shall fall on the seller or the purchaser i
By the common law, where there is no fraud or agree-. ment to the contrary, if the article turns out not to be that which it was supposed, the purchaser sustains the loss ; the rule is caveat emptor. If he doubts the goodness of the article, or does not choose to incur the risk of a latent defect, he may refuse to purchase without a warranty. The leading case in this Court, is that of Seixas v. Woods, (2 Caines, 48.) which was an action for selling peachum wood for brazilletto; and it Is very analogous to the present case. The article was advertised and invoiced as brazilletto, and described as such in the bill of parcels, and supposed so to be, by the parties. The plaintiff’s agent saw the wood, when unloaded and delivered, and no fraud was imputed. The principle established was, that to maintain an action for selling one article for another, there must be either a ivarranty or fraud» This seems to have been the uniform language of the English law, and has been recognised in this Court by subsequent decisions. (Snell v. Morris, 1 Johns. Rep. 96. Perry v. Aaron, 1 Johns. Rep. 129. Defreese v. Tremper, 1 Johns. Rep. 274. Holden v. Dakin, 4 Johns. Rep. 421. Davis v. Meeker, 5 Johns. Rep. 354, 395. Cunningham v. Spier, 13 Johns. Rep. 392. Fleming v. Slocum, 18 Johns. Rep. 403.)
There are no particular words prescribed by law to make out a warranty ; but it is essential that the affirmation made at the time of sale, be intended by the parties as a warranty, and this must appear by the evidence ; if it does not, the affirmation is considered as a mere matter of judgment and opinion. (2 Caines, 56. 3 Term Rep. 57.) The article sold to the defendants had uniformly been considered and described as barilla. The bill of parcels followed this description, which both parties at the time believed to be the true one ; but it was evidently an opinion, and not a warranty. With respect to the title to the goods sold, an express warranty is not necessary ; for it is a general rule *204that the law will imply a warranty of title, and that is all the defendants can require. The rule is correctly laid down in 2 Black. Com. 451. that “ with regard to the goodness of wares purchased, the vendor is not bound to answer, unless he expressly warrants them to be sound and good, or unless he knew them to be otherwise, and hath used any art to disguise them, or unless they turn out to be different from what he represented them to the buyer.” (1 Johns. Rep. 275.) The latter alternative would apply to a case where the purchase was made on the representation of the vendor, without seeing the article. The purchaser would not be bound to pay for it, if it proved to be different from the vendor’s representation, because, then it is not the thing agreed to be purchased. If a vendor agrees .to sell and deliver Madeira wine, and he sends Teneriffe, the vendee is not bound to pay. The sale in this case was by sample. The purchaser was not bound to accept the article purchased, unless it agreed with the sample ; but it did agree, and that absolved the plaintiffs from further responsibility, (4 Camp. N. R. Rep. 144.) There was no implied undertaking as to the quality. A sample was fairly taken from the bulk; the defendant exercised his judgment on it, and bought it at his own risk.
We are of opinion that the plaintiffs are entitled to judgment.
Judgment for the plainti ilk