quality.88 Usually, in cases where goods are to be shipped, the implied statement is as to their quality and condition at time of shipment only. This is usually the time of constructive delivery to the buyer.39

Other terms that may be implied from the circumstances are discussed under the topic of "Warranties" 40

Waiver of Performance of Conditions.-Assuming that some particular term in the contract is identifying description of the goods, and therefore a condition precedent to the seller's exact performance, the question may arise-what is the result if the buyer chooses to accept title despite the defect?

Does he, by accepting the goods tendered in place of the ones contracted for, waive all right to recover damages suffered through the seller's failure to tender the goods described? In other words, does he, by accepting the goods actually tendered, legally accept them in full satisfaction of the seller's obligation? Authority is very much confused upon this point. The New York courts rather indicate that if the term with which compliance has been waived is truly a condition, the waiver extends not only to the passing of title but to all claims for damage as well, if the acceptance is made with knowledge that the condition is not complied with. Occasional decisions in other jurisdictions intimate a similar rule.41

There is tendency of the courts, however, to hold, in

38-Sweat V. Shumway, 102 Mass. 365; Harris v. Waite, 51 Vt. 481; Tennessee Co. v. Leeds, 97 Tenn. 574.

39-Leopold v. Van Kirk, 27 Wis. 152; Mann v. Everston, 32 Ind. 355.

40-Post, p. 189.

41-Reed v. Randall, 29 N. Y. 358; Coplay Iron Co. v. Pope, 108 N. Y. 232; Carleton v. Lombard, Ayres & Co., 149 N. Y. 137; Max

well v. Lee, 34 Minn. 411; Cheboygan Paper Co. v. Eichberg, 184 Mich. 30; America Theater Co. v. Siegel, Cooper & Co., 221 Ill. 145; but cf., Underwood v. Wolf, 131 Ill. 425; Athletic Club v. Lumber Co., 18 Tex. Civ. Ap. 161; HurleyMason Co. v. Stebbings, 79 Wash. 366, 140 Pac. 381. But cf., Springfield Shingle Co. v. Edgecome Mill Co., 52 Wash. 620,

one way or another, that the buyer does not lose his right to damage for non-performance by accepting title to the goods as tendered.42*

The matter is, however, rather hopelessly confused by terminology. Those terms of the description which serve to identify goods contracted for must be complied with before the contract of sale can be properly performed; they are truly conditions precedent. Those terms which may describe, but do not identify, the goods are not conditions, and are usually called "warranties." They do not relate to the passing of title. As a warranty, in this narrow sense, does not relate to title, the goods could not be rejected by the buyer for breach of it— they would still be the identical goods he agreed to take. Hence the right to recover damages for breach of "warranty" is not lost by acceptance. Consequently it is possible for courts to give mouth-honor to a rule that no right of action for damages from breach of conditions will survive acceptance of the goods, and yet in fact allow action for breach of what even themselves would call a condition if the buyer had chosen to reject the goods as tendered, but what, for the purpose of allowing the action, they do choose to call a "warranty." The fact therefore that courts say "conditions do not survive acceptance" does not necessarily put them in the position of so holding in fact.43

42-Boston Woven Hose Co. v. Kendall, 178 Mass. 232; Underwood v. Wolf, 131 Ill. 425; Dalton v. Bunn, 137 Ala. 175.

43-Cf., Springfield Shingle Co. v. Edgecome Mill Co., 52 Wash. 620, and Hurley-Mason Co. v. Stebbins, 79 Wash. 366, 140 Pac. 381; Fairbank Co. v. Metzger, 118 N. Y. 260, where the statement concerning the goods is clearly part of the identifying description, but is called a "warranty" and as such

is allowed to survive.

Morse v. Union Stock Yards, 21 Ore. 289, 14 L. R. A. 157, 28 Pac. 2; Lewis v. Rountree, 78 N. C. 323; Morse v. Moore, 83 Me. 473, 23 Am. St. 783, 22 Atl. 362.

In Day v. Poole, 52 N. Y. 416, the court got around the rule largely on the argument that the buyer had accepted the goods on the seller's promise that he would make good for the defect.

The subject of "warranties",

*See Uniform Sales Act, Section 11, (1), 49.

2. POSSESSION, BUT NOT TITLE, ACQUIRED

The rights of a buyer who has received possession of the goods but not title to them are, of course, consistent with the seller's rights. These latter have already been discussed under the appropriate heading."

Right to Keep Possession.-So long as the buyer is not in default, if the contract provides, expressly or impliedly, that he shall have possession he is entitled to keep possession and can sue the seller for any trespass upon that right.45

The buyer's right of possession is not opposed to the seller only, but he can maintain actions of trespass, replevin, etc., against other persons who unlawfully interfere with his possession.46

Right to Acquire Title.-The buyer also has the right to acquire title by payment, or performance of whatever may be the condition, according to the terms of the contract. A buyer who is not in possession can not acquire title, unless he can get a decree of specific performance in equity, without some act of passing title on the part of the seller. But when the buyer is in possession of the goods, his mere tender of payment, or of performance of other conditions, is sufficient to vest title

what they are, when they exist, rights arising therefrom, etc., is discussed post, p. 180.

44-Ante, p. 99.

45-Clark v. Clement, 75 Vt. 417; Richardson v. G. W. Mfg. Co., 3 Kan. Ap. 445; Wellden v. Witt, 145 Ala. 605, 40 So. 126; Western Union Sewing Mach. Co. v. Sachs, 67 N. Y. S. 2; Cushman v. Jewell, 7 Hun. (N. Y.) 525, even after default, if the seller has waived the default.

Even if the buyer is in default,

some courts hold that the seller can not retake possession without a demand for performance, New Home etc. Co. v. Bothane, 70 Mich. 443.

46-Harrington V. King, 121 Mass. 269; Aldrich v. Hodges, 164 Mass. 570, even though the seller also has brought an action for conversion against the same defendant; Freedman v. Phillips, 82 N. Y. S. 96; Lord v. Buchanan, 69 Vt. 320, 60 Am. St. 933; Messenger v. Murphy, 33 Wash. 353.

in himself. This right to acquire title he can also transfer to other persons.48

Even after the buyer has lost possession through the retaking by the seller, it has been held that the right to acquire title by tender of payment is still in him.49 But this must presuppose that the seller's retaking has not been by way of a proper rescission of the contract.

Right to Return the Goods.-If the buyer is in default, he can not avoid further performance of the contract by returning the possession of the goods, against the seller's will. The obligation, or promise, to return the goods in case of default is for the benefit of the seller, not of the buyer, and it does not authorize the buyer to return the goods and escape further payments.50

Whether the seller, who of his own volition retakes possession of the goods, can thereafter hold the buyer liable for further payments, has already been discussed."1

Right to a Return of Money Paid.-If the seller exercises his right to retake possession he need not, except as provided by statute, return any of the buyer's payments as a condition precedent to the retaking.58

47-Birmingham Ry. Co. V. Bowers, 110 Ala. 322; Currier v. Knapp, 117 Mass. 324; Hervey v. Dimond, 67 N. H. 342, 68 Am. St. 673, 39 Atl. 331; Albright v. Meredith, 58 O. S. 194; Christenson v. Nelson, 38 Ore. 43, 63 Pac. 648, even though the tender be made before performance is due; Cushman v. Jewell, 7 Hun. (N. Y.) 525, idem; Pease v. Teller Corp., 158 Cal. 807.

48-Bailey v. Colby, 34 N. H. 26, 66 Am. Dec. 752; Christenson v. Nelson, 38 Ore. 43, 63 Pac. 648.

The sub-buyer will acquire title upon the original buyer's tender of payment, Day v. Bassett, 102

Mass. 445; Cushman v. Jewell, 7
Hun. (N. Y.) 525.

49-Miller v. Steen, 30 Cal. 402; Foundry Co. V. Pascagoula, 72 Miss. 608.

But the buyer can not vest title in himself by tender of payment after the goods have been destroyed while in the seller's repossession. Hollenberg Music Co. v. Barron, 100 Ark. 403.

50-Robinson's Appeal, 63 Conn. 290; Finlay v. Ludden & Bates Co., 105 Ga. 264; Smalback v. Wolffe, 46 N. Y. S. 968; Ainsworth v. Rhines, 60 N. Y. S. 876. 51-Ante, p. 106.

52-Ante, p. 103. See also White

The buyer's right after such retaking to get back what he has paid, less reasonable compensation for use, is another matter and is recognized by some decisions. A number of courts, notably in jurisdictions which require "disaffirmance" as a condition precedent to retaking of possession, lean toward the feeling that "To permit the so-called 'lessor' (seller) to resume possession of the property, and declare all payments forfeited, when perhaps all but one may have been paid, is contrary to the fundamental principles observed in courts of equity."58 The theory is probably the same one often given as reason for not allowing the seller to enforce further payment after retaking possession, namely, that such retaking amounts to a rescission of the contract.54

3. TITLE, BUT NOT POSSESSION, ACQUIRED

When title has passed to the buyer, he has, of course, the concomitant right of immediate possession, unless his agreement with the seller provides otherwise, or unless the rights of the seller, as already set forth, give the seller a temporary right of possession. The seller has a lien until payment, unless he has given credit, and consequently the buyer can not enforce delivery of possession in such case until he has paid. On the other hand, if the

v. Oakes, 88 Me. 367; Thulby v. Rainbow, 93 Mich. 164, if buyer terminates contract by wrongful resale, demand must first be made by seller, to show a "disaffirmance" of the contract; Sewing Mach. Co. v. Bothame, 70 Mich. 443, but this was a hard case such as tend to shipwreck principles. Cf. Tufts v. D'Arcambal, 85 Mich. 185; Colcord v. McDonald, 128 Mass. 470.

Contra, Hayes v. Jordan, 85 Ga. 741; Ketchum v. Cummings, 53 Miss. 596.

53-Puffer & Sons v. Lucas, 112

N. C. 377; Snook v. Reglan, 89 Ga. 251, buyer may sue for money had and received, and recover sum paid less reasonable rent, etc.; Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608, "the reservation of the title is but as security for the purchase price, and if the property is recovered by the seller, he must deal with it as security, and with reference to the equitable right of the purchaser."

54-Snook v. Raglan, 89 Ga. 251; Preston v. Whitney, 23 Mich. 260. Contra, Tufts v. D'Arcambal, 85 Mich. 185.