1

have that disease; or the seller guarantees that the enlargement of a stallion's bag "in no way troubles him," 2 or that "the small puff on the inside left hock joint will all disappear entirely." 3 If, however, the warranty stipulates for something which "is physically impossible, and this is so obvious or notorious as to have been presumably in the contemplation of both parties," it is void."

215. The Warranty need not be the Sole Inducement to the Purchase. It is enough that it "entered into the contract as an intended element thereof, and as a part of the consideration for the purchase." 5 But some degree of reliance must be placed on it. Even a statement of fact by the seller as to the quality of the article sold, which does not operate at all as an inducement to the purchaser, does not amount to an actionable warranty. But if the buyer is ignorant of the grade and quality of the article, for example, a diamond, and the seller positively avers that it is of a certain grade and quality, the fact that the buyer inspects it does not preclude him from recovering upon a warranty. If the warranty is given after the sale of the article, it must have a new consideration.8

216. May extend to the Future; Qualifications and Waiver. — Although Blackstone understood that a warranty is limited to the state of things existing when the contract is made, and although a warranty of the quality of chattels is ordinarily confined to their then condition,10 there is no reason why the seller may not engage for the future condition of an article; and

1 Pinney v. Andrus, 41 Vt. 631, 641 (1869).

2 Watson v. Roode, 30 Neb. 264, 276; 46 N. W. 491 (1890); Burdick's Cases on Sales, 395.

› Fitzgerald v. Evans, 49 Minn. 541; 52 N. W. 143 (1892).

▲ Campbell on Sales (2d ed.), 430; cf. McCormick v. Kelly, 28 Minn. 135; 9 N. W. 695 (1881).

Shordon v. Kyler, 87 Ind. 38, 41, 42 (1882).

• Harrington v. Smith, 138 Mass. 92, 98 (1884); Deyo v. Hammond, 102 Mich. 122; 60 N. W. 455 (1894).

' Morrow v. Bonebrake, 84 Kan. 724; 115 Pac. 585 (1911).

• Cady v. Walker, 62 Mich. 157; 28 N. W. 805 (1886); White v. Oakes, 88 Me. 367, 374; 34 At. 175 (1896); Burdick's Cases on Sales, 348.

3 Bl. Com. 166.

10 Bowman v. Clemmer, 50 Ind. 10, 14 (1875); Lord v. Edwards, 148 Mass. 476 (1889); Am. Syrup Co. v. Roberts, 112 Md. 18; 76 At. 589 (1910).

undertakings of this kind are frequently entered into.1 Sometimes these are so qualified as to diminish the liability of the seller; as where he warrants for a limited period,2 or stipulates that the buyer shall examine and approve the goods before they are taken from his premises, or provides for a certain test to determine whether the goods conform to the warranty. Even though the warranty be for a limited period, this limitation may be waived by the seller.5

217. Province of Court and of Jury. If the contract is oral, and the language used by the parties is in dispute or of doubtful significance, a proper question for the jury is presented. When the facts are undisputed and the language is unequivocal,' as well as when the contract is in writing, it is the duty of the court to declare whether a warranty exists.

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218. Oral Warranty cannot be added to a Written Contract. If the contract is reduced to writing, that instrument, in the absence of fraud or mutual mistake, determines the rights of the parties; "nothing which is not found in the writing can be

9

1 Osborn v. Nicholson, 13 Wall. (U. S.) 654 (1871), (warranty that a negro is "to be a slave for life"); Snow v. Schomacker Manuf. Co., 69 Ala. 111 (1881), ("every piano warranted for five years").

2 Chapman v. Gwyther, L. R. 1 Q. B. 463 (1866); H. Koehler & Co. v. York Mfg. Co., 193 Fed. 981 (1912).

Leitch v. Gillette-Herzog Co., 67 N. W. 352; 64 Minn. 434 (1896).

4 Wolf Co. v. Northwestern Dairy Co., 55 Wash. 665; 104 Pac. 1123 (1909).

5 Advance Thresher Co. v. Vinckel, 84 Neb. 429; 121 N. W. 431 (1909).

Halliday v. Briggs, 15 Neb. 219, 221; 18 N. W. 55 (1883); Cornish v. Friedman, 94 Ark. 282; 126 N. W. 1070 (1910).

7 Holmes v. Tyson, 147 Pa. St. 305; 23 At. 564 (1892). But see Jones v. Quick, 28 Ind. 125–127 (1867), holding that where the language used is not a warranty in terms, whether it was intended as a warranty, "is a question of fact for the jury and not of law for the court." In Lynch v. Curfman, 68 N. W. 5; 65 Minn. 170 (1896), the seller, after making statements which might have amounted to a warranty of quality, upon beingasked to warrant, refused to do so. The evidence being undisputed, the court held that there was no question for the jury.

8 Scott Lumber Co. v. Hafner Co., 91 Wis. 667; 65 N. W. 513 (1895); Watson v. Beckett, 2 Kan. App. 232 (1896).

• Aultman v. Falkum, 51 Minn. 562; 53 N. W. 875 (1892).

considered as a part of the contract." But "where the whole matter passes in parol, all that passes may sometimes be taken together as forming parcel of the contract, though not always, because matter talked of at the commencement of a bargain may be excluded by the language used at the termination." 1 If the writing in which the sale is referred to is a receipt, a mere bill of parcels, or other informal document not intended by the parties "to be a complete and final statement of the whole of the transaction," 2 it does not preclude evidence of an oral warranty. Accordingly, when a horse is sold with an oral warranty of soundness, a note given by the buyer for a part of the price, and reserving title to the horse in the seller until the note is paid, does not purport to declare all the terms of the contract, but is intended to embody but one of the terms; and it does not exclude proof of the warranty, which is a distinct term of the contract. A formal written contract does not preclude evidence of an implied condition or warranty annexed to it by the usage of trade,5 nor does an express warranty in such contract negative an implied one unless inconsistent therewith."

1 Kain v. Old, 2 B. & C. 627, 634 (1824); Rodgers v. Perrault, 41 Kan. 385; 21 Pac. 287 (1889); Hobart v. Young, 21 At. 612; 12 L. R. A. 693; 63 Vt. 363 (1891); Nutting v. Watson, Woods Bros. & Kelly Co., 84 Neb. 464; 121 N. W. 582 (1909); Stanford v. Nat. Drill & Mfg. Co., 28 Okla. 441; 114 Pac. 734 (1911).

2 Seitz v. Brewers' Co., 12 Sup. Ct. R. 46; 141 U. S. 510, 517; Burdick's Cases on Sales, 343.

3 Cases in last two notes: Loxtercamp v. Implement Co., 147 Ia. 29, 34; 125 N. W. 830 (1910).

4 Nauman v. Ullman, 102 Wis. 92; 78 N. W. 159 (1899).

5 Sale of Goods Act, § 14 (3); cf. Robinson v. United States, 13 Wall. (U. S.) 363 (1871). In Fatman v. Thompson, 2 Disney (Cin.), 482 (1859), evidence was admitted to show a local usage in Cincinnati among tobacco dealers, annexing to all sales of certain kinds of tobacco a warranty for four months.

• Sale of Goods Act, § 14 (4); Wilcox v. Owens, 64 Ga. 601 (1880). A written warranty of analysis of guano does not negative an implied warranty of its fitness for known use. Blackmore v. Fairbanks, 79 Ia. 282, 288–290; 44 N. W. 548 (1890); Burdick's Cases on Sales, 399; Carleton v. Lombard, 149 N. Y. 137 (1896); Burdick's Cases on Sales, 355. Nor is Case Plow Works v. Niles, 90 Wis. 590, 604, 605; 63 N. W. 1013 (1895), opposed to his view. The following cases are contra: Thielman v. Reinsch & Owens, Ark.; 146 S. W. 525 (1912); Forsythe v. Russell Co., 148 Ky. 490;

If express warranties as to material, workmanship and fitness, incorporated in the written contract, are forfeited by the buyer, under a term of the contract, the case will stand as though no written warranty had been made, and the buyer can sue on an implied warranty of fitness.1

(B) Implied Warranties.

219. All of the seller's engagements, which were formerly called implied warranties in England, and which are still called by that name in this country,2 have been considered under the head of conditions.3

§ 5. Buyer's Rights upon Breach of Seller's Engage

ment.

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220. Against the Seller. In case the seller fails to perform any essential term of the sale contract, the buyer may reject the goods and recover such damages as he has sustained by the seller's breach. Nor is this right of rejection subject to any duty on the buyer's part to return the goods unless he has agreed to return them." "It would be very hard if it were so. By the supposition the vendor has not complied with his contract, and has sent goods which as against the purchaser he had no right to send. Why should he be entitled to impose upon the purchaser, who never bargained for such goods, and

146 S. W. 1103 (1912); Dwight Bros. Paper Co. v. Western Paper Co., 114 Wis. 414; 90 N. W. 444 (1902).

1 Hansmann v. Pollard, 113 Minn. 429; 129 N. W. 848 (1911); fitness of a steering pole for a threshing machine.

2 Uniform Sales Act, §§ 11, 13, 15, 16.

The only obligations of the seller which are termed implied warranties in the English Sale of Goods Act are those for quiet possession and freedom from incumbrance. § 12. These were discussed in connection with the implied condition as to title. Supra, ch. v. § 3.

4 Anson on Contracts (Huffcut's ed.), p. 368; Hamilton v. Ganyard, 2 Abb. App. Dec. 314; 3 Keyes, 45 (1866); Burdick's Cases on Sales, 671; Taylor v. Saxe, 134 N. Y. 67; 31 N. E. 258 (1892).

Starr v. Torrey, 22 N. J. L. 190, 196 (1849); Strauss v. Nat. Parlor Furniture Co., 24 So. 703; 76 Miss. 343 (1898); Sale of Goods Act, § 36; Uniform Sales Act, § 50.

• Berlin Machine Works v. Midland C. & L. Co., 45 Mont. 390; 123 Pac. 396 (1912).

who had a right to reject them, the burden of sending them back, possibly for a considerable distance at a considerable expense?"

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221. Prompt Action required. -When the buyer wishes to exercise the right of rejection, he should act promptly and unequivocally. If he retains the property for an unreasonable length of time, without objection, or if, while complaining that it does not conform to the contract, he exercises a dominion over it inconsistent with ownership in the seller, he will be held to have accepted it. Whether the buyer's retention and use of the property amount to an acceptance is a question of fact, and at times a difficult question, depending in part upon the conduct of the seller,5 or upon trade usages. The burden is on the seller to show that the buyer has accepted, either in express terms, or by dealing with the goods in a manner inconsistent with the seller's continued ownership.7 If the buyer, after notifying the seller of his rejection of perishable goods, disposes of them in good faith for the seller's benefit and to save him from loss, such dealing with them does not amount to acceptance.8

222. Effect of Acceptance. As soon as the goods are accepted, the title passes to the buyer, and he cannot thereafter revest title in the seller without the latter's consent. If they

1 Grimoldby v. Wells, L. R. 10 C. P. 391, 394 (1875); Alden v. Hart, 161 Mass. 576, 582; 37 N. E. 742 (1894); Burdick's Cases on Sales, 385. 2 Rosenfield v. Swenson, 45 Minn. 190; 47 N. W. 718 (1891); Eichbaum v. Caldwell Bros. Co., 58 Wash. 163; 108 Pac. 434 (1910).

3 Byron Jackson Machine Works v. Duff, 158 Cal. 47; 109 Pac. 616 (1910); property retained more than three months with full opportunity to discover defects.

• Brown v. Foster, 108 N. Y. 387, 391; 15 N. E. 608 (1888); Geiser Mfg. Co. v. Holzer, 110 Minn. 138; 124 N. W. 827 (1910).

5 C. & C. Electric Co. v. D. Frisbie Co., 66 Conn. 67, 88-91; 33 At. 604 (1895).

• Doane v. Dunham, 79 Ill. 131 (1875), (usage among Chicago wholesale sugar-dealers).

Duluth Log Co. v. John C. Hill Lumber Co., 110 Minn. 124; 124 N. W. 967 (1910), citing Georgia Refining Co. v. Augusta Oil Co., 74 Ga. 497 (1885); Hensen v. Beebe, 111 Ia. 534; 82 N. W. 942 (1900); Brown v. Nelson, 66 Vt. 660; 30 At. 94 (1894). See Sale of Goods Act, § 35; Uniform Sales Act, §48.

8 Descalzi Fruit Co. v. Sweet & Son, 30 R. I. 320; 75 At. 308 (1910). • Sale of Goods Act, § 53 (1). Contra, Uniform Sales Act, § 69.