The first question presented in the record; is whether the law implied a warranty of the good quality of the tobacco which the plaintiff claims to have sold and',delivered to the defendant and for the price of which the present action was brought. The defendant was an experienced dealer in the article, and the plaintiff entirely unaccustomed to its culture and to the defects and unsoundness to which it is liable in the different stages of its being cured. No claim is made that there were any untrue representations, or improper concealment of its condition or quality,- or any arti*50fice practised with respect to it. The defendant was told Dy the plaintiff that he must buy it on his own judgment after such examination as he chose to make, which he appears to have done; and neither fraud nor an express warranty are claimed.
To the general rule of the common law, that where an article is sold without fraud and without express warranty, and both' parties have an equal opportunity to examine it, no warranty will be implied, there are very few exceptions, and none which' ' can avail the defendant. The law leaves the parties to select their own terms of agreement, and if a vendee takes the risk of trusting to a contract without a warranty, and is not entrapped by artifice or defrauded by misrepresentations, and the quality of the article proves inferior to what he expected, he has no remedy against the vendor. Dean v. Mason, 4 Conn. R., 428; Frazier v. Harvey, 34 id., 469; Hyatt v. Boyle, 5 Gill & J., 110; Moses v. Mead, 1 Denio, 378; Hart v. Wright, 17 Wend., 267; Winsor v. Lombard, 18 Pick., 57.
■ The defendant also insists that he is entitled to set up by way of defense the entire failure and want of consideration for his promise to pay the plaintiff for the tobacco, on the ground that it proved to be of no value.
When the contract was made, the defect which was subsequently developed was latent and unknown to both parties, and in the absence of a warranty and fraud the defendant assumed the risk of its quality and condition. It then possessed, or by both parties was supposed to possess, a particular value in the market, and the defendant received precisely what he agreed to purchase and what the plaintiff intended to sell, namely, an apparently merchantable quality of tobacco, and therefore there cannot properly be said to have been a failure of consideration. Unless the defendant intended to take upon himself the risk of a deterioration in quality from the existence of secret defects he should have guarded against it by requiring a warranty, and the principle of indemnity for failure of consideration which he seeks to enforce is not applicable to the circumstances of this case. Fortune v. Lingham, 2 Camp., 416; Mason v. Chappall, 15 Gratt., 572; Frazier v. Harvey, supra.
*51The defendant attempts to raise another question, arising from the finding of the Court of Common Pleas of an acceptance by him of a part of the tobacco as within the provisions of the statute of frauds. It is unnecessary to determine whether under the pleadings that question could properly have arisen. If it could it was disposed of by the explicit finding of the court that there was an acceptance in fact.
A new trial is not advised.
In this opinion the other judges concurred.