The plaintiff has insisted, that his action is sustainable on the ground, first, of express warranty; secondly, of implied warranty; and thirdly, of fraud.
1. As to the claim on the ground of express warranty.
The written contract exhibited in evidence, contains no clause, warranting the soundness or goodness of the articles sold. The vendor agreed to deliver two bales of deer-skins, at the price of 30 cents per pound; and this, so far as relates to the point under consideration, was the whole engagement. The plaintiff offered in evidence certain affirmations, made to induce the purchase of the skins afterwards *432sold, as proof of the express warranty alleged in his declaration; but this the court rejected, and most correctly. The contract between the parties was entirely in writing; and all the previous representations made by the defendant, were merged in the written instrument. Every thing before resting in parol, became thereby extinguished, upon this reasonable rule, that when an agreement is reduced to writing, all previous negotiations are resolved into the writing, as being the best evidence of the certainty of the agreement. 5 Vin. Abr. 515. 517. Vandervoort v. Smith, 2 Caines 161. Mumford & al. v. M'Pherson & al. 1 Johns. Rep. 413. Packhurst v. Van Cortlandt, 1 Johns. Ch. Rep. 282. Stevens v. Cooper, 1 Johns. Ch. Rep. 429.
2. The implied warranty contended for, is founded on the presumed fact, that an adequate price was given for the skins, admitting them to be good; and on the inference, that this amounts to a warranty of the articles sold, as being sound and merchantable.
Whether the price paid, was equivalent to the value of merchantable skins, no where appears; and the supposed foundation of argument never existed. But, if the fact were apparent, the inference would not be sustainable. The notion, that a high or sound price is tantamount to warranty, has been long exploded. 2 Phil. Evid. 79. In Parkinson v. Lee, 2 East 314. it was adjudged, that no warranty was implied from the fulness of the consideration; and that, if the seller sells the thing as he believes it to be, without fraud, the law will not imply, that he sold it on any other terms than those expressed. And it is an established rule, that, in order to entitle a vendee, to maintain an action against the vendor, there must either be fraud, or an express warranty. Holden v. Dakin, 4 Johns. Rep. 421. Sands & al. v. Taylor & al. 5 Johns. Rep. 395. Thompson v. Ashton, 14 Johns. Rep. 316. Chapman v. Murch, 19 Johns. Rep. 290. Swett v. Colgate, 20 Johns. Rep. 196. The vexatious and expensive litigations, which might often arise, on the doctrine of a warranty implied from the soundness of the price, are prevented, by the adoption of a certain rule, which can never operate unjustly, as by the buyer an express warranty may always be demanded. The case of Gardener v. Gray, 4 Campb. 144. may be supposed to clash with the principles I have assumed; but in reality, it has no bearing on the matter in controversy. A sample of certain waste silk was shown *433to the plaintiff, which silk he purchased, not having seen it; and afterwards, on being sent to him, it was found to be much inferior to the sample exhibited. The sample was produced, not as a warranty, but to enable the purchaser to form a reasonable judgment of the commodity; and he had a right to expect a saleable article, answering the description of the contract. He had no opportunity to inspect the silk; and the maxim of caveat emptor, for this reason, did not apply. He might say, with perfect truth, non haec in foedera veni; this was not the article described and sold. But, if it had been shown to the purchaser, and he had then bought it, the case would essentially differ from the former; and had the quality been misconceived, the loss must have fallen on the purchaser, unless there was an express warranty.
3. Testimony in proof of fraud, was offered by the plaintiff, and rejected; and the propriety of this, constitutes the only remaining question.
Undoubtedly, there are actions of assumpsit, founded on a breach of duty, partaking of the nature of a tort; but the plaintiff’s suit is not of that description. Powell v. Layton, 2 New Rep. 365. Hallock v. Powell, 2 Caines 216. According to the most approved precedents, it is an action on the contract of warranty, and nothing more. In the part of the declaration, wherein the original foundation of the action is set forth, the defendant’s undertaking and promise is specified; but no where is there to be found any allusion to fraud, except in the specification of the breach. There it is said, that the defendant, “contriving to injure the plaintiff in that behalf, did not regard, keep, and perform his promise, and undertaking aforesaid, but craftily and subtilly deceived the plaintiff in this,” &c. This is the common form of alleging a breach in assumpsit, as will be demonstrated, by reference to the books of entries. This mode of alleging breaches in mere assumpsit, will be found in declarations on promissory notes, (Pleader’s Assistant, 38, 9.) on awards, (2 Chitt. Plead. 80.) on promises, (2 Chitt. Plead. 85. 87. 88. 89. 90. 97.) and on warranty. (2 Chitt. Plead. 100.) When the gist of the action is placed on a false warranty, the plaintiff avers, in setting forth the nature of his claim, that the defendant falsely and fraudulently affirmed. 2 Chitt. Plead, 276. In Evertson v. Miles, 6 Johns. Rep. 138. which was an action very analogous to the one before the court, it was said, by Van Ness, J.: “When the plaintiff does not go *434for a breach of contract, but grounds his action on deceit and fraud in the sale, the fraud must be averred and charged as a substantive allegation. To admit the proof of it, without such averment, would be going wide of the issue, and taking the party by surprise. To justify the proof offered, it ought to have been charged, that “the defendant falsely and fraudulently represented.” The court, in this case, rejected the testimony to show fraud, precisely for the want of those allegations, which the judge in the case before us, considered as indispensible.
On the count for money had and received, little reliance seems to have been placed; and certainly, it merits no consideration. The defendant never received any money from the plaintiff; the note given in consideration of the skins, never having been paid.
Peters, Brainard and Bristol, Js. were of the same opinion. Chapman, J.The only question, which I think of much importance, in this case, is, whether in the sale of articles of the kind in controversy, there is an implied warranty; and this, I think, is a question of the first importance.
For a long course of years, in this state, there was an implied warranty as to quality supposed to be attached to every sale, where the vendor received a sound price; and also, that where the vendor was guilty of any fraud in such sale, he would be liable to the vendee, as on an express warranty.
It is admitted, that the principles involved in the cases alluded to, are not supported, in their extent, either by the authorities in England, or in the neighbouring states; nor do I think them consistent with sound reason. But in overruling these cases, I would have preserved those principles, which are known to the common law, and which are essential to the preservation of justice, in the intercourse of men with each other. The decision in question, I fear, does not. I admit, that in the sale of articles, which have no marketable value, there is no implied warranty, except as to the vendor’s having a right to sell; as for instance, in the sale of a horse, pictures, &c. No two of these are supposed to have the same value; and no man would think of enquiring the price of horses, &c. in market, except whether they were high or low. In a contract for an article of this sort, the fancy of *435the parties has more to do with settling the price of the article, than the intrinsic value of it. In such cases, the vendee has no right to demand of the vendor any thing beyond good faith. There is no standard to determine whether the vendee has paid a sound price.
But in the sale of articles, which have a marketable value, the case is entirely different. In the nature of the sale, there is involved a contract, that the article sold is what it purports to be. A man, wishing to purchase articles of this sort, enquires in market for their price:-what is superfine flour, wheat, rye, pork, beef, &c. bringing? Or he learns from the price-current. He purchases; and, on examination, he finds his flour superfine indeed, but so sour as to be worth nothing. His wheat and rye have no other defect, than that they are grown, and of course of little worth. His pork and beef are mess, but wholly spoiled. He has paid the vendor the full value of sound articles of the kind; and he must now be told, that if there is no fraud, he has no remedy, but must stand to the loss. I need not insist on the impropriety of adopting this doctrine, from the wide door it will open for the practice of fraud. Seldom is it, that the vendee can prove a knowledge of the defect in the vendor. The ground I proceed upon, is, that it is as much understood, by the parties to the sale, that the articles sold should be merchantable, as if there had been an express contract to that effect. The answer to this, is, that the vendee may always secure himself, by taking an express warranty. This is true; and so he may, in most cases, by using extraordinary diligence against fraud. The truth is, that in the ordinary intercourse of mankind, in buying and selling such articles, the vendee never thinks of taking an express warranty, that the article is what it is sold for, when he pays the full value. Indeed, he would think, to require it, would be to call in question the integrity of the vendor.
Why is it, that the vendor is liable on an implied warranty, when he sells without title? Or why is he liable, when he sells for superfine flour, that which is of a different quality? Why, when he sells prime pork for mess? The answer is easy: in the first case, the buyer receives no value; and in the other cases, he receives less in value than he, by his contract, had a right to receive; and yet, if the articles are of the same denomination he contracted for, however worthless, he is without remedy.
*436The principles adopted by the court, in deciding that fraud in a sale, will not support a count on an express warranty, (I mean where there is no one implied,) I fully concur in.
The form of action should be adapted to the nature of the injury. The defendant, in an action founded on the warranty, is not informed of the nature of the plaintiff’s claim; and, of course, can not be prepared to make his defence. Yet where there has been a total failure of consideration, an action for money had and received, has often been supported. But it must be remembered, that the defendant, in such a case, has a right to demand a bill, stating the plaintiff’s precise claim.
It remains, now, to be seen, whether the case ununder consideration can be brought within the principles, I am attempting to maintain. This was an action founded on a sale, with warranty, of two bales or packs of deer-skins. That they were not merchantable, is admitted; and that there was no special warranty, is admitted. The question, then, is, has this article a marketable value? There can be no doubt of this, any more than with respect to flour, pork, beef, &c. These are articles found in our prices-current, and in our market. The ground taken by the court, is not that this is not an article, which has a marketable value, but that there is no implied warranty attached to the sale of any article whatever, as to its quality; and that there is no difference between articles, which have a marketable value, and those which are mere articles of fancy.
The evidence, in relation to the second count, was properly rejected; for though the deer-skins were of little value, they were of some; and to support that count, they must have been of none. There must have been a total failure of consideration.
New trial not to be granted.