gers are not, however, to be deemed guilty of negligence for standing on the platform of cars in motion, when there are no vacant seats inside the car: Willis v. Long Island R. R. Co., 34 N. Y. 670. Nor is it per se negligence for a passenger to be riding on the platform: Zemp v. Railroad Co., 9 Rich. L. 84. Riding on the platform of a street-car is not, for obvious reasons, subject to the same rule as riding on the platform of cars propelled by steam. A passenger, therefore, who rides on the platform of a street-car is not guilty of such contributory negligence as to prevent his recovery: Meesel v. Lynn & B. R. R. Co., 8 Allen, 234; Augusta & S. R. R. Co. v. Renz, 55 Ga. 126; Spooner v. Brooklyn City R. R. Co., 54 N. Y. 230; S. C., 13 Am. Rep. 570. A railroad company is not liable for injury received by a person riding on the engine, against a rule of the company, even though he does so by permission of the engineer: Robertson v. New York & E. R. R. Co., 22 Barb. 91. But a passenger who, through the negligence of the carrier, received an injury while riding on the outside of a coach, may recover for such injury, although he had been warned by an agent of the company that he rode on the outside at his risk: Keith v. Pinkham, 43 Me. 501.

LIABILITY OF CARRIERS OF PASSENGERS AS AFFECTED BY CONTRACT.-In the note to Cole v. Goodwin, 32 Am. Dec. 498-500, it was shown that, in England, prior to the passage of the statute of 17 and 18 Vict., c. 31, sec. 7, common carriers of goods might by express contract exempt themselves from all liability, even for their own negligence, but that in this country it is almost universally held that common carriers can not stipulate for exemption from the results of their negligence. The same difference that was there shown between the English and American decisions on that question, exists also between those on the subject under discussion. For while in England a carrier of passengers may exempt himself, by contract to that effect, from any and all negligence, in this country it is almost universally held, that a carrier of passengers can not by any contract exempt himself from the results of his negligence. The following cases support the English doctrine: McCawley v. Furness R. W. Co., L. R., 8 Q. B. Cas. 57; Gallin v. London & N. W. R. W. Co., L. R., 10 Id. 212; Hall v. North E. R. W. Co., Id. 437. And the following cases maintain the American doctrine: Railroad Co. v. Lockwood, 17 Wall. 357; Jacobus v. St. Paul & C. R. R. Co., 20 Minn. 125; Ohio & M. R. W. Co. v. Nickles, 71-Ind. 271; Cleveland, P. & A. R. R. Co. v. Curran, 19 Ohio St. 1; Pennsyl vania R. R. Co. v. Henderson, 51 Pa. St. 315; Flinn v. Philadelphia, W. & B. R. R. Co., 1 Houst. 469; Graham v. Pacific R. R. Co., 66 Mo. 536; Toledo, W. & W. R. R. Co. v. Beggs, 85 Ill. 80; Arnold v. Illinois C. R. R. Co., 83 Id. 273; Rose v. Des Moines V. R. R. Co., 39 Iowa, 246; Railway Co. v. Ste vens, 95 U. S. 655.

HENSHAW ET AL. v. ROBINS.

[9 METCALF, 83.]

BILL OF PARCELS DESCRIBING GOODS SOLD, or designating them by a name well understood, is to be considered a warranty that the goods are what they are so described or designated, even where the goods are examined by the vendee at or before the sale, if they are so prepared and present such an appearance as to deceive skillful dealers.

ASSUMPSIT on an alleged warranty upon a sale of indigo. At the trial it was agreed, that the defendant, who was an auction

eer, had, before the sale, advertised that he would on a certain day sell"two cases of Manilla indigo of superior quality;" that prior to the day of sale, the cases were opened and an opportunity given for their examination, and that one of the plaintiffs did examine them; that the two cases were struck off to the plaintiffs as the highest bidders, and were immediately delivered to them with the following bill of parcels: "August 9, 1843. Henshaw & Co., bought of Thomas W. Sears & Co., two cases of indigo-$272.35." The plaintiffs introduced evidence tending to show that the article was not indigo, but a worthless article. It was agreed that the plaintiffs had, within a reasonable time from the discovery of the nature of the article, returned it and demanded back what they had paid for it. It was also agreed that the article was so prepared as to deceive skillful dealers in indigo. The court instructed the jury: "That the bill of parcels, delivered by the defendant to the plaintiffs, contained a warranty that the article sold and delivered to them was indigo; and that, if the jury were satisfied that it was not indigo, nor known to merchants, nor in the market, as indigo; and that it was worthless; and that the plaintiffs, within a reasonable time after the sale, returned the article to the defendant, and demanded the price paid therefor; and if the article was so prepared, and presented such an appearance, as would deceive skillful dealers in indigo, the plaintiffs were entitled to a verdict for the sum paid by them." There was a verdict for the plaintiffs, and the defendant excepted to the instructions.

Robins, for the defendant.

Whiting, for the plaintiffs.

By Court, WILDE, J. Upon the exceptions to the instructions given by the court of common pleas, several questions have been discussed by counsel, two only of which we deem material in the decision of the case. The first question is, whether when a bill of parcels is given, upon a sale of goods, describing the goods sold, or designating them by a name well understood, such a bill is to be considered as a warranty that the goods sold are what they are described or designated to be in the bill. The second question is, whether, if such a bill of parcels is generally to be considered, the rule applies to cases where the goods were examined by the vendee, at or before the sale. On both these questions there are conflicting decisions. But as to the first question, we consider the law of this commonwealth to be now well settled; and, as it seems to us, upon sound principles.

In Bradford v. Manly, 13 Mass. 139 [7 Am. Dec. 122], it was decided that a sale by sample is tantamount to a warranty that the article sold is of the same kind as the sample. And Chief Justice Parker, in delivering the opinion of the court, refers with approbation to a decision, at nisi prius, of a case of a sale of cocoa, which was advertised and offered for sale as Caraccas cocoa; and it was held that the advertisement was equal to an express warranty. The sample, in the principal case, being a representation of the article sold, was considered as equivalent to the advertisement in the case referred to. The question was afterwards very fully considered, in the case of Hastings v. Lovering, 2 Pick. 214 [13 Am. Dec. 420]. In that case, it was held that the description of the article, inserted in a bill of parcels, or in a sale note, such as is used in England, was evidence that the thing sold was agreed to be such as represented, and amounted to a warranty to that effect. The words of the bill of parcels were, "Sold E. T. Hastings two thousand gallons prime quality winter oil;" and the plaintiff had judgment on a declaration in assumpsit on the warranty. The doctrine laid down in that case has ever since been considered as the settled law of this commonwealth; and it is in conformity with the modern decisions in England, Pennsylvania, and Maryland. The question was very fully considered in Osgood v. Lewis, 2 Har. & G. 495 [18 Am. Dec. 317], and in Borrekins v. Bevan, 3 Rawle, 23 [23 Am. Dec. 85]. The principle maintained by these cases is, that the description contained in a bill of parcels of goods sold is evidence of the terms of the contract of sale, and so imports a warranty that the goods are the goods described, and that they substantially agree with the terms of the description. And in Batturs v. Sellers & Patterson, 5 Har. & J. 117 [9 Am. Dec. 492], and S. C., 6 Id. 249, it was decided that the bill of parcels, in that case, was written evidence of the contract, and could not be added to or varied by oral testimony. So in Yates v. Pym, 6 Taunt. 446, in an action on a sale note of "fifty-eight bales of prime singed bacon," it was decided that the contract amounted to a warranty that it was prime singed bacon, and, being in writing, could not be added to by oral evidence. Whether these decisions are well founded as to the inadmissibility of oral testimony in such cases, we are not called upon to consider in the present case; as no evidence was offered to control or vary the description in the bill of parcels. But we do hold, that the description in a bill of parcels imports a warranty, as before remarked. It is a representation and declaration that the article

AM. DEO. VOL. XLIII-24

sold is the article described. And what is this but an express warranty to that effect?

To create an express warranty, the word warrant need not be used, nor is any precise form of expression necessary; but every affirmation, at the time of the sale of personal chattels, amounts to a warranty. This seems to be now settled, notwithstanding the old case of Chandelor v. Lopus, Cro. Jac. 4, as to the sale of a bezoar stone, to the contrary. It was so decided in Osgood v. Lewis and Borrekins v. Bevan, already cited, and in Power v. Barham, 4 Ad. & El. 473; in Shepherd v. Kain, 5 Barn. & Ald. 240; and in Freeman v. Baker, 2 Nev. & M. 446. And even in New York, where, in other respects, the doctrine in Chandelor v. Lopus, supra, is adhered to, it has been held, nevertheless, that any representation of the thing sold, or direct affirmation of its quality and condition, showing an intention to warrant, is sufficient to amount to an express warranty. It was so decided in Chapman v. Murch, 19 Johns. 290 [10 Am. Dec. 227]; and in Swett v. Colgate, 20 Id. 196 [11 Am. Dec. 266]. To the rule of construction laid down in these cases, it was objected by Chief Justice Gibson, who delivered a dissenting opinion in Borrekins v. Bevan, 3 Rawle, 23 [23 Am. Dec. 85], that such a principle would extend to loose conversations between the vendor and vendee, in which the vendor may praise his goods, or express any opinion as to their qualities. But it is quite clear, I apprehend, that no such conversations or opinions would or could be construed as amounting to a warranty. No expression of an opinion, however strong, would import a warranty. But if the vendor, at the time. of the sale, affirms a fact, as to the essential qualities of his goods, in clear and definite language, and the purchaser buys on the faith of such affirmation, that, we think, is an express warranty. In the present case, the bill of parcels affirms the article sold to be indigo. This imports an express warranty, even according to the cases in Johnson before cited, if it was so intended. And it must be so understood, there being no evidence that it was not so intended. This case, therefore, and the cases above cited, differ essentially from the cases cited by the plaintiff's counsel, where a warranty was implied on the ground that the article sold was salable in the market, and fit and proper for the purpose for which it was purchased. These two classes of cases depend on very different legal principles, as to the latter of which we do not intimate any opinion. This distinction is not noticed in the New York cases, where it has been held, that the description in a bill of parcels is no evidence of a warranty,

either express or implied. Chancellor Kent, however, who delivered the opinion of a majority of the court, in Seiras v. Woods, 2 Cai. 48 [2 Am. Dec. 215], the leading case in New York, expresses a doubt as to the correctness of that and subsequent decisions on this point. "There is no doubt of the general rule of law," he says, “as laid down in Seixas v. Woods, and the only doubt is, whether it was well applied in that case, where there was a description in writing of the article sold by the vendor, which proved not to be correct, and from which a warranty might have been inferred:" 2 Kent's Com., 5th ed., 479.

From a review of these authorities, we think the weight of authority is manifestly in favor of the law as established in this commonwealth; and it seems to us to be founded on sound principles. The plaintiff, therefore, is entitled to recover, unless, by the examination of the article purchased, he is to be considered as having waived his right to indemnity under the warranty. On this question, also, the authorities are conflicting. But we are of opinion that the examination of the article by the plaintiff, at the time of the sale, is no evidence of his intention to waive any legal right. If the spurious nature of the article might have been detected on inspection, it might have been otherwise; but we must infer, from the instruction of the court, that the jury found that the article was so disguised that the deception could not have been detected by a skillful dealer in indigo, without resorting to an analytical experiment; so that no neglect can be imputed to the plaintiff in not making a careful examination. In Bradford v. Manly, before referred to, the cocoa was examined by the purchaser before the sale, and yet the vendor was held liable on his warranty. And the like decision was had in Tye v. Fynmore, 3 Camp. 462. That was assumpsit on a sale note of "two tons of fair merchantable sassafras wood, in logs, at six guineas per hundred weight." The defendant was a druggist, and well skilled in articles of that sort, and the day before the sale, a specimen of the wood sold was exhibited to him, and he kept it the following night, and had a full opportunity to examine it. And upon this evidence, Lord Ellenborough decided that it was immaterial that the defendant, the vendee, was a druggist, and skilled in the nature of medicinal woods. He was not bound to exercise his skill, having an express undertaking from the vendor as to the quality of the commodity. This is a very strong case on this point. So also is the case of Shepherd v. Kain, 5 Barn. & Ald. 240. In that case, the question depended on an advertisement