§710. Exceptional cases where acceptance of goods does not. preclude subsequent objection.

In the jurisdictions which follow the former New York decisions it is conceded that the rule that acceptance of the goods precludes subsequent objection to quality does not apply to all cases; but the excepted cases do not seem to coincide exactly in all jurisdictions; and it is a matter of extraordinary difficulty to distinguish under this rule in what cases the acceptance does not involve an absolute discharge. The excepted cases may be divided into two classes 89-the exception in the first class depending upon the character of the seller's promise or warranty, and the exception in the second class depending upon the difficulty of discovering the defect. As to the first class, according to some authorities the test is simply between executory contracts to sell and executed sales. If the original contract is executory, whatever its form, it is intimated in some cases the buyer by accepting the goods loses all right. Whereas in case of an executed sale a subsequent action or counterclaim because of inferiority is permitted.90

passed without criticism in later cases."

A third class is suggested in Summers Fiber Co. v. Walker, 33 Ky. L. Rep. 153, 109 S. W. 883, viz: where the buyer has paid the price or a large part of it in advance. To require him to reject the goods is to deprive him of security for what he has paid.

"Gaylord Mfg. Co. v. Allen, 53 N. Y. 515. "In the absence of fraud or latent defects, an acceptance of the articles sold upon an executory contract, after an opportunity to examine it, is a consent and agreement that the quality is satisfactory and as conforming to the contract, and bars all claim for compensation for any defects that may exist in the article." So in later New York decisions reference is made to the distinction as being between

executory contracts and executed sales. Stuart v. Manhattan Bathtub Co., 34 N. Y. Misc. 165, 68 N. Y. S. 816; Waeber v. Talbot, 167 N. Y. 48, 57, 60 N. E. 288, 82 Am. St. Rep. 712. See also Davidson Bros. Co. v. Smith, 143 Ia. 124, 121 N. W. 503. In view of the New York decisions cited in the following notes it is probable, however, that the law of New York permitted the buyer, in case of some executory contracts, to receive the goods and yet recover damages for their inferior quality. But under an executory contract with an express warranty it was held that all rights were lost by acceptance, in Locke v. Williamson, 40 Wis. 377, and Cocke v. Big Muddy Coal & Iron Co. (Tex. Civ. App.), 155 S. W. 1019 (if defect known).

§ 711. Nature of warranty as affecting the consequences of accepting goods.

Instead of distinguishing between executory and executed contracts, the New York courts and others holding similar views have sometimes stated that only an express warranty will survive acceptance,91 or in some States perhaps any warranty.92 But in Georgia no warranty whatever will survive acceptance of the goods if the buyer knows of their defective quality when he accepts them, though an express warranty will excuse examination of the goods even for obvious defects.93

§ 712. What is meant by express warranty in this connection.

The distinction between express warranties and other promises, it will be observed, is inconsistent with the view that the matter depends on whether the contract is executory or not, unless it is said that there can be no express warranty in an executory contract. But this is not generally so held, certainly it has not been so held in New York. What is meant in that State by the use of the term "express warranty" in regard to an executory contract is not clear. Any express promise or affirmation in regard to the quality of the goods might well be so called.94 But it was clearly established that an express promise which imposed no other obligation upon the seller than that which would have been implied had no express promise been made as to the quality of the goods did not survive acceptance.95 Where a promise or warranty in an executory contract in regard to the quality of the goods is something other than that which the law would imply, the rule formerly established in New York is not so clear. Doubtless where the word "warrant" or "guarantee" 96

This is the usage of the term in the Sales Act and in this work. See infra, § 970. And in Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372, 16 Am. St. Rep. 753, this seems to have been the usage of the court. The court defines a warranty as an express or an implied statement of something which a party undertakes shall be part of the contract and, though part of the contract, collateral to the express object, and said: "Where there is an express warranty it is unimportant whether the sale be regarded as executory or in præsenti, for it is now well settled that the same rights and remedies attach to an express warranty in an executory as in a present sale." A decision similar in principle is Bull v. Bath Iron Works, 75 N. Y. App. Div. 380, 78 N. Y. S. 181.

$5 This was first laid down in Reed v. Randall, 29 N. Y. 358, 86 Am. Dec. 305, where an executory contract for tobacco provided that it was "to be delivered well cured and in good con

dition," and it was held that no liability for breach of this promise survived acceptance. The doctrine was followed in Gaylord Mfg. Co. v. Allen, 53 N. Y. 515, where the contract provided that the goods were "to be of the best quality and suitable to the purpose designed." It may be observed that the court seems to have been in error in holding in this case that the express promise was no more than the law would imply. The law implies an obligation to furnish goods of merchantable quality, but never implies an obligation to furnish them of "the best quality." In Heath Dry Gas Co. v. Hurd, 124 N. Y. App. Div. 68, 108 N. Y. S. 410, the contract was for the manufacture of goods which were "to be constructed in a careful, workmanlike, and skillful manner;" and here also it was held that the warranty did not survive accept

ance.

96 Condict v. Onward Construction Co., 210 N. Y. 88, 103 N. E. 886.

is used as part of a promise which goes beyond that which the law would imply, the promise would be held collateral, and in all jurisdictions where any warranties in executory contracts survive acceptance, such a promise would survive; but what promises other than those where such words are used may be held so collateral in form or effect as to sustain an action where the distinction in question is taken, is open to doubt." In New York it has been held that in a sale by sample a warranty that the bulk equals the sample survives acceptance, but this has been denied in Minnesota.99 Both of these States, however, have now enacted the Uniform Sales Act. Not uncommonly courts which follow the doctrine that acceptance of title in general involves an extinguishment of all claims of defective quality have been driven to express the exception as including all cases in which there is "a warranty manifestly intended to survive acceptance." 2 Such a definition as this is obviously very difficult to apply. An implied warranty is not within the excepted class of obligations which survived acceptance in New York prior to the enactment of the Uniform Sales Act and in some other States.3

97 See Parks v. O'Connor, 70 Tex. 377, 389, 8 S. W. 104.

98 Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51, 52 Am. Rep. 63; Kent v. Friedman, 101 N. Y. 616, 3 N. E. 905; Zabriskie v. Central Vt. R. R. Co., 131 N. Y. 72, 29 N. E. 1006; Larrowe Mlg. Co. v. Lyons Beet Sugar Refining Co., 137 N. Y. App. Div. 732, 122 N. Y. S. 567; Bloom v. Reisman, 76 N. Y. Misc. 524, 135 N. Y. S. 547 (apparently executory); Rosen v. F. W. Woolworth Co., 136 N. Y. S. 1; Powell v. New England Cotton Yarn Co., 154 N. Y. App. Div. 875, 139 N. Y. S. 569. See also Pennock v. Stygles, 54 Vt. 226. But in Smith v. Coe, 55 N. Y. App. Div. 585, 67 N. Y. S. 350, it was said that the term "sale by sample" properly included only executed sales (as to this see Williston, Sales, § 250); and that, therefore, in case of an executory contract to manufacture goods like a sample, the acceptance of the goods barred

all subsequent objection to their quality. The case of Brigg v. Hilton, supra, however, seems to have been a case of the same sort, yet there the New York Court of Appeals held the warranty survived acceptance.

99 Lee v. Bangs, 43 Minn. 23; s. c., sub nom., Sole Leather Over Mfg. Co. v. Bangs, 44 N. W. 671. See also Columbus, etc., Iron Co. v. Lee, 169 Mich. 661, 135 N. W. 920; Robinson v. Huffstetler, 165 N. C. 459, 81 S. E. 753.

1 For the provisions of the Act, see infra, § 714. The States in which it is in force are enumerated, supra, § 506.

2 Schopp v. Taft, 106 Iowa, 612, 613, 76 N. W. 843; Stilwell Co. v. Biloxi Co., 78 Miss. 779, 29 So. 513; Studer v. Bleistein, 115 N. Y. 316, 22 N. E. 243, 5 L. R. A. 702.

3 Waeber v. Talbot, 167 N. Y. 48, 60 N. E. 258, 82 Am. St. Rep. 712. This was a contract for the sale of

§ 713. Right of objection to latent defects is not lost.

The second exception to the rule that acceptance of title operates as satisfaction, arises where the defect in the goods is one which cannot be discovered by inspection. In such a case whether the seller's breach of promise is of an express warranty, an implied warranty, or, under the terminology of the court, of a promise not properly classified as a warranty, the buyer may recover damages; and so he may where inspection is not possible or is prevented. But here, too, a difference of opinion must be noted. In Georgia at least the question seems to turn, not on whether the defect might have been discovered, but on whether it was in fact discovered. For the same reason that acceptance