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ARTICLE II.

Agreements for Sale. Section

Section 1726. Agreement for sale.

1731. Agreement sale real prop1727. Agreement to sell.

erty. 1728. Agreement to buy.

1733. Usual common law coven1729. Agreement, sell and buy.

ants required by such con1730. What may be subject of

tracts, when. contract.

1734. Form, same.

1726. An agreement for sale is either:
1. An agreement to sell;
2. An agreement to buy; or,
3. A mutual agreement to sell and buy.

1727. An agreement to sell is a contract by which one engages, for a price, to transfer to another the title to a certain thing.

1728. An agreement to buy is a contract by which one engages to accept from another, and pay a price for the title to a certain thing.

1729. An agreement to sell and buy is a contract by which one engages to transfer the title to a certain thing to another, who engages to accept the same from him and to pay a price therefor.

1730. Any property which, if in existence, might be the subject of sale, may be the subject of an agreement for sale, whether in existence or not.

1731. An agreement to sell real property binds the seller to execute a coveyance in form sufficient to pass the title to the property. 1873– 243.

1733. An agreement on the part of a seller of real property to give the usual covenants, binds him to insert in the grant covenants of “seizin,” "quiet enjoyment,” further assurance," "general warranty," and “against encumbrances.”

1734. The covenants mentioned in the last section must be in substance as follows: "The party of the first part covenants with the party of the second part, that the former is now seized in fee-simple of the property granted; that the latter shall enjoy the same without any lawful disturbance; that the same is free from all encumbrances; that the party of the first part, and all persons acruiring any interest in the same through or for him, will, on demand, execute and deliver to the party of the second part, at the expense of the latter, any further assurance of the same that may be reasonably required; and that the party of the first part will warrant

irst part will warrant to the party of the second part all the said property against every person lawfully claiming the same.”

ARTICLE III.

Form of the Contract. Section

Section 1739. Contract sale, personal 1741. Contract, sale real propproperty.

erty. 1740. Contract to manufacture.

1739. No sale of personal property, or agreement to buy or sell it for a price of two hundred dollars or more, is valid, unless:

One. The agreement or some note or memorandum thereof be in writing, and subscribed by the party to be charged, or by his agent; or,

Two. The buyer accepts and receives part of the thing sold, or when it consists of a thing in action, part of the evidences thereof, or some of them; or,

Three. The buyer, at the time of sale, pays a part of the price. 1873–243.

1740. An agreement to manufacture a thing, from materials furnished by the manufacturer, or by another person, is not within the provisions of the last section.

1741. No agreement for the sale of real property, or of an interest therein, is valid, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or his agent, thereunto authorized in writing; but this does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof. 1873—243.

CHAPTER II.

Rights and Obligations of the Seller.
Article 1. Rights and Duties before Delivery.

II. Delivery.
III. Warranty.

ARTICLE 1.

Rights and Duties Before Delivery. Section

Section 1748. When seller act, depositary. 1749. When seller may resell.

1748. After personal property has been sold, und until the delivery is completed, the seller has the rights and obligations of a depositary for hire, except that he must keep the property, without charge, until the buyer has had a reasonable opportunity to remore it.

1749. If a buyer of personal property does not pay for it according to contract, and it remains in the possession of the seller after payment is due, the seller may rescind the sale, or may enforce his lien for the price, in the manner prescribed by the title on liens.

ARTICLE II.

Delivery.

Section

Section 1753. Delivery on demand. 1756. Notice, election delivery. 1754. Delivery, where made. 1757. Buyer's directions sending. 1755. Expense transportation. 1758. Delivery, reasonable hours.

1753. One who sells personal property, whether it was in his possession at the time of sale or not, must put it into a condition fit for delivery, and deliver it to the buyer within a reasonable time after demand, unless he has a lien thereon.

1754. Personal property sold is deliverable at the place where it is at the time of the sale or agreement to sell, or if it is not then in existence, it is deliverable at the place where it is produced.

1755. One who sells personal property must bring it to his own door, or other covenient place, for its acceptance by the buyer, but further transportation is at the risk and expense of the buyer.

1756. When either party to a contract of sale has an option as to the time, place, or manner of delivery, he must give the other party reasonable notice of his choice; and if he does not give such notice within reasonable time, his right of option is waived.

1757. If a seller agrees to send the thing sold to the buyer, he must follow the directions of the latter as to the manner of sending. or it will be at his own risk during its transportation. If he follows such directions, or if, in the absence of special directions he uses ordinary care in forwarding the thing, it is at the risk of the buyer.

1758. The delivery of a thing sold can be offered or demanded only within reasonable hours of the day.

Warranty.

Section

Section 1763. Warranty, what.

1770. Things bought particular 1764. No implied warranty in

purpose. mere contract of sale. 1771. When thing cannot be ex1765. Warranty personal prop

amined by buyer. erty.

1772. Trade marks. 1766. Warranty sale by sample. 1773. Other marks. 1767. When seller knows that 1774. Warranty on sale, written

buyer relies on his state instrument.
ments.

1775. Warranty, provisions, 1768. Merchandise not in exist

domestic use. ence.

1776. Warranty, sale of good-will. 1769. Manufacturer's warranty 1777. Warranty judicial sale.

against latent defects. 1778. General warranty, effect of.

1763. A warranty is an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction, whether past, present, or future.

1764. Except as prescribed by this article, a mere contract of sale or agreement to sell does not imply a warranty.

1765. One who sells or agrees to sell personal property, as his own, thereby warrants that he has a good and unencumbered title thereto.

1766. One who sells or agrees to sell goods by sample, thereby warrants the bulk to be equal to the sample.

1767. One who sells or agrees to sell personal property, knowing that the buyer relies upon his advice or judgment, thereby warrants to the buyer that neither the seller, nor any agent employed by him in the transaction, knows the existence of any fact concerning the thing sold which would, to his knowledge, destroy the buyer's inducement to buy.

1768. One who agrees to sell merchandise not then in existence, thereby warrants that it shall be sound and merchantable at the place of production contemplated by the parties, and as nearly so, at the place of delivery, as can be secured by reasonable care.

1769. One who sells or agrees to sell an article of his own manufacture thereby warrants it to be free from any latent defect, not disclosed to the buyer, arising from the process of manufacture, and also that neither he nor his agent in such manufacture has knowingly used improper materials therein.

1770. One who manufactures an article under an order for a particular purpose, warrants by the sale that it is reasonably fit for that purpose.

1771. One who sells or agrees to sell merchandise inaccessible to the examination of the buyer, thereby warrants that it is sound and merchantable.

1772. One who sells or agrees to sell any article to which there is affixed or attached a trade-mark, thereby warrants that mark to be genuine and lawfully used.

1773. One who sells or agrees to sell any article to which there is affixed or attached a statement or mark to express the quantity or quality thereof, or the place where it was, in whole or in part, produced, manufactured, or prepared, thereby warrants the truth thereof.

1774. One who sells or agrees to sell an instrument purporting to bind any one to the performance of an act, thereby warrants that he has no knowledge of any facts which tend to prove it worthless, such as the insolvency of any of the parties thereto, where that is material, the extinction of its obligations, or its invalidity for any cause. 1873–244.

1775. One who makes a business of selling provisions for domestic use warrants by a sale thereof, to one who buys for actual consumption, that they are sound and wholesome.

1776. One who sells the good-will of a business thereby warrants that he will not endeavor to draw off any of the customers.

1777. Upon a judicial sale, the only warranty implied is that

the seller does not know that the sale will not pass a good title to the property.

1778. A general warranty does not extend to defects inconsistent therewith of which the buyer was then aware, or which were then easily discernible by him without the exercise of peculiar skill; but it extends to all other defects.

CHAPTER III.

Rights and Obligations of the Buyer. Section

Section 1784. Price, when to be paid. 1786. Rights, breach of warranty. 1785. Right of inspection.

1784. A buyer must pay the price of the thing sold on its delivery, and must take it away within a reasonable time after the seller offers to deliver it.

1785. On an agreement for sale, with warranty, the buyer has a right to inspect the thing sold, at a reasonable time, before accepting it; and may rescind the contract if the seller refuses to permit him to do so.

1786. The breach of a warranty entitles the buyer to rescind an agreement for sale, but not an executed sale, unless the warranty was intended by the parties to operate as a condition.

CHAPTER IV.

Sale by Auction.

Section

Section 1792. Sale by auction.

1796. Buyer's rights without re1793. Sale, when complete.

serve. 1794. Withdrawal of bid.

1797. By bidding. 1795. Underwritten conditions. 1798. Auctioneer's memorandum.

1792. A sale by auction is a sale by public outcry to the highest bidder on the spot.

1793. A sale by auction is complete when the auctioneer publicly announces, by the fall of his hammer, or in any other customary manner, that the thing is sold.

1794. Until the announcement mentioned in the last section has been made, any bidder may withdraw his bid, if he does so in a manner reasonably sufficient to bring it to the notice of the auctioneer.

1795. When a sale by auction is made upon written or printed conditions, such conditions cannot be modified by any oral declaration of the auctioneer, except so far as they are for his own benefit.

1796. If, at a sale by auction, the auctioneer, having authority to do so, publicly announces that the sale will be without reesrve, or makes any announcement equivalent thereto, the highest bidder in good faith has an absolute right to the completion of the sale to him; and, upon such a sale, bids by the seller, or any agent for him, are void.

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