This cause was closely argued, and with much ability. But, after all, the court are of opinion that no warranty was established which was competent to go to the jury, under either of the counts in the narr. The cause seems to be conclusively governed by the case of Borrekins v. Bevan, 3 R. 23, in which the doctrine of Chandelor v. Lopus, Cro. Jas. 4, is dismissed with disapprobation, and the rule established that, in all sales of goods by bills of parcels, samples, &c., there is an implied warranty, that the article delivered shall correspond in specie with the commodity sold, unless there are facts and circumstances to show that the purchaser took upon himself the risk of the hind as well as the quality of the commodity purchased. If that case means anything, it means this, that when the thing is sold by sample, and without express warranty, the purchaser takes it at his own risk, unless it *325should prove to be an article different in kind; all gradations in quality are at the hazard of the buyer. But if an article was sold as a. diamond, and turned out to be glass, or when the thing was sold as tea, and was, in fact, chaff, the vendor would be responsible ; thus rendering the seller liable for a difference in kind, but not for a difference in quality. Whether the rule in Chandelor and Lopus, to wit, express warranty or fraud, in all cases, both as to kind and quality, was better than the one established in Borrekins v. Bevan, is a matter of little import now. It is useless to wander darkling among the dust and mist of old cases, to determine which was best, or most authoritatively recognised. Borrekins v. Bevan has been repeatedly acknowledged by this court, and is now the law; that is sufficient. Let us test this case by it. The sale by the bill of parcels, with which perhaps the sample corresponded, was of sweet-scented Kentucky leaf tobacco. It is not pretended that the article delivered wa's not tobacco, nor that it was anything else than Kentucky leaf tobacco. But, it is alleged and proved, that it was of inferior quality, and perhaps not very sweet-scented. The witnesses examined at Liverpool say that it was of a low, mean quality. The gist of the whole case, on the part of the plaintiffs, is, that the tobacco delivered was not of a quality equal to the sample, but of inferior flavour, taste, and quality.
It was in specie Kentucky leaf tobacco, in kind the same as the article sold.
Indeed, the gravamen of the plaintiffs’ narr., and the allegation in their own letter is, that the article delivered was inferior in quality to that sold by sample and ibill of parcels. And in such cases, by the law of this state, as well established, there being neither express warranty nor imputed fraud, the risk falls on the buyer.
The court were right in rejecting the paper containing the claim of the plaintiffs, although it had been sent to defendant before suit brought. It was not competent evidence on the count of insimul oornyutassent, or account stated, and it was not offered on any of the other counts.
I regard the paper as nothing more than a specification of damages, sustained upon an alleged breach of contract, on the part of defendant, of which the defendant was bound to take no notice, by the usages of trade, or mercantile law. He resisted the whole claim. Insimul computassent is a writ that lies between two merchants or other persons, upon an account stated between them. In such *326case the law implies, that the one against whom the balance appears, has engaged to pay it to the other,‘although there be no actual promise. But here is no account between the parties — no insimul eomputassent; nothing but a contract between the parties, in regard to a particular thing or transaction; and which contract the plaintiffs say the defendant has broken, and send him a written specification of losses or damages. The defendant denies that he has broken his contract. It is not a ease of account; no case was produced, and I apprehend none can be, that the insimul eomputassent extended to damages for breach of contract alleged, where there had been no actual settlement or adjustment between the parties. We perceive no error in the record.
Judgment affirmed.