Moore

Heydenfeldt, J., concurred.

This was an action in the Court below, to recover the amount paid by the plaintiff to the defendants for the purchase of an invoice of garden seeds.

It is in evidence, that after the arrival of the vessel, the plaintiffs were requested to open and inspect the seeds, but declined to do so, and paid for them. They were afterwards tested, and found to be almost wholly worthless. In order to maintain this action, the plaintiffs must show either an express or implied warranty. The sale note is as follows: “We have this day sold you two shipments of seeds for arrival,” &c

The plaintiff maintains, that the word “ seeds” thus used, amounts to an express warranty; that it has an express signification, importing an *473 article which will germinate or grow, and that it would be error to apply this term to any seeds not possessing- these properties. And second, that if not an express warranty, the law will imply a warranty; or, in other words, raise the presumption, that the article sold is merchantable, and fit for the use for which it was sold.

At common law, the role caveat emptor applied to all sales of personal property, except where the vendor gave an…