The opinion
Pearson, O. J.
His Honor intimated the opinion that,.
*400
taking the evidence in the view most favorable for the plaintiffs, they were not entitled to recover.
This assumes that the article sold was not cotton, in the sense understood by dealers in cotton. That the defendant was fixed with “ the
scienter,”
and that the plaintiffs bought the article, and paid full price for it, as if it was cotton, under the belief that, in point of fact, it was cotton. His Honor intimated this opinion on the force of the rule,
“ caveat emptor,”
and the case turns upon the application of that rule. The rule of the civil law is,
“
a sound price implies sound property; and, if the article sold is not sound, and is bought and paid for as if it was, the vendor is bound to make compensation, whether he knew f the unsoundness or not,” on the ground that the vendor cannot honestly keep the full price after he has notice that the article, by reason of its unsoundness, was not worth the money which he had received for it.
The rule of the common law is
“ caveat emptor
” — if the article sold is not sound, and if the vendee is fixed with
“
the
scienter.”
Still, if the vendee could have discovered the unsoundness by the exercise of ordinary diligence, he must submit to the loss as a result of his own folly, and the vendor is allowed to retain his ill-gotten gain.
The one rule favors good morals — the other rule favors free traffic. Which is the wiser of the two it is not ours to say, for it is settled that
“ caveat emptor ”
has been adopted as the law of this State.
Brown
v.
Gray,
6 Jones, 103 .
All we have to do is to fix the limits of the rule, and to decide whether his Honor erred in his opinion that it defeated the plaintiffs’ cause of action.
The rule is limited to this extent: It does not apply when the vendor has used any device to put the purchaser off of his guard, although
mere silence
will not make him liable. In our case there was not
mere silence
but there was evidence tending to show that the defendant resorted to artifice
*401
and trick in order to cheat the plaintiffs, and to take advantage of the fact that it was not the custom of buyers in the town of Williamston, owing to the uniformity of the staple of cotton raised in that locality, to examine cotton offered for sale or to test its staple, but only to see that it was free of dirt and trash and was not stained. The article sold was packed and baled in like manner and form as if it was cotton — it was sent to a distant town,' at which place the invention used by the defendant had not been heard of. These and the'other circumstances tend to show that it was the purpose of the defendant to take advantage of the fact that the plaintiffs were off of their guard in respect to the
new article
whiclTne was putting upon the market as cotton. There is error.
Pee, Curiam.
Venire de novo.