makes the sale. Moreover, such officers, unlike agents whose power is derived from authority in fact, do not warrant the validity of the authority which they purport to exercise. They are, however, liable for actual representations, fraud, or negligence in the exercise of their duties. 46

§ 980. When the cause of action arises.

There is much difference of opinion upon the question when the right of action of a purchaser arises for breach of a warranty of title. On principle it would seem that if the seller did not have a good title when he sold the goods, there was then an immediate breach of his obligation. This view, though, supported by the English law as well as by some cases in the United States, 47 is neverless open to some practical objections. If the cause of action arises before eviction or claim made by the superior title, it may be that the Statute of Limitations will bar the buyer's right to recover on the warranty before he is aware that it has been broken. Moreover, if the buyer can sue at once it is very difficult to say what damages he ought to be given. If he is allowed the value of the property he may get not only its full value in this way but continue in undisturbed possession of the property itself. On the other hand, if he is restricted to nominal damages his remedy will be of no practical value to him and will indeed work him this possible injury, that the judgment he recovers may prevent him from bringing a later suit when he has suffered substantial damage. Logically his recovery, if his action is tried before he has been evicted, should be based on the chance of his being subsequently deprived of the benefit of what he had bought. 18 Such a measure of damage is, however, so speculative as to be difficult of practical application. For these reasons many of the

48 Mechem, Public Officers, 809, 812; Sexton v. Nevers, 20 Pick. 451, 32 Am. Dec. 225. See also supra, § 305. 47 Furnis v. Leicester, Cro. Jac. 474; Turner v. Moon, 2 Ch. App. 825 (real estate); Chancellor v. Wiggins, 4 B. Mon. 201, 39 Am. Dec. 499; Grose v. Hennessey, 13 Allen, 389; Perkins v.

Whelan, 116 Mass. 542; Matheny v. Mason, 73 Mo. 677, 680, 39 Am. Rep. 541. See also Harper v. Dotson, 43 Iowa, 232; Pusey's Trustee v. Wathen, 90 Ky. 473, 14 S. W. 418; Sargent v. Currier, 49 N. H. 310, 6 Am. Rep. 524; Word v. Cavin, 1 Head, 506.

48 See infra, §§ 1395, 1396.

United States deny the buyer a right of action until his possession has been interfered with.49 "The vendee is not bound to await legal action against him. If satisfied of the insufficiency of his vendor's title, and that the true owner would recover the property in an action, he may surrender it, and recover its value in an action against his vendor, by affirmatively establishing that the vendor was without title; or the vendee may await the prosecution of an action. If the vendor be notified of the action and required to defend, a judgment, if obtained, would be conclusive as to his want of title; but if not notified, and judgment is obtained, the onus of showing want of title would rest upon the vendee, the same as if surrendered without action." 50 "If the property be surrendered to the true owner, then the vendee's loss and damage is established; but if a judgment be had against him, either with or without notice, the vendee's loss or damage is not established without proofs of satisfaction or payment of the judgment." 51 The burden is, of course, upon the buyer to establish that the seller had no title to the goods, and if the goods have been surrendered unreasonably to an adverse claimant against the buyer, this is no proof of the original seller's defect of title in an action between him and the buyer unless the seller was requested to defend the action against the adverse claimant or at least had notice of that action.52 49 Johnson v. Oehmig, 95 Ala. 189, 10 So. 430, 36 Am. Rep. 204; Sumner v. Gray, 4 Ark. 467, 38 Am. Dec. 39; Sullivan v. Wooldridge, 107 Ark. 256, 154 S. W. 508; Gross v. Kierski, 41 Cal. 111; Barnum v. Cochrane, 143 Cal. 642, 77 Pac. 656; Terrell v. Stevenson, 97 Ga. 570, 25 S. E. 352; Linton v. Porter, 31 Ill. 107; Close v. Crossland, 47 Minn. 500, 50 N. W. 694; Wanser v. Messler, 29 N. J. L. 256; Burt v. Dewey, 40 N. Y. 283, 100 Am. Dec. 482 (compare McGiffin v. Baird, 62 N. Y. 329; Cahill v. Smith, 101 N. Y. 355, 4 N. E. 739); Krumbhaar v. Birch, 83 Pa. St. 426; Hull v. Caldwell, 3 S. Dak. 451, 54 N. W. 100. See also Randon v. Toby, 11 How. 493, 13 L. Ed. 784; Joslin v. Caughlin, 27 Miss. 852.

50 Burt v. Dewey, 40 N. Y. 283, 286, 100 Am. Dec. 482, citing Sweetman v. Prince, 26 N. Y. 224, 232. See also Hafer v. Cole, 176 Ala. 242, 57 So. 757; Bordwell v. Collie, 45 N. Y. 494; O'Brien v. Jones, 91 N. Y. 193; Cahill v. Smith, 101 N. Y. 355, 4 N. E. 739; Johnson v. Oehmig, 95 Ala. 189, 10 So. 430, 36 Am. St. Rep. 204; Jordan v. Van Duzee, 139 Minn. 103, 165 N. W. 877; Matheny v. Mason, 73 Mo. 682, 39 Am. Rep. 541; Read v. Staton, 3 Hayw. 159; Hodges v. Wilkinson, 111 N. C. 56, 15 S. E. 941, 17 L. R. A. 545.

51 Burt v. Dewey, 40 N. Y. 283, 286, 100 Am. Dec. 482. And see cases cited in the preceding note.

52 Salle v. Light's Exrs., 4 Ala. 700,

The decisions allowing an immediate right of action hold, in effect, that the seller is subject to a warranty of title, strictly so called. The other decisions limit the obligation of the seller in effect to a covenant of quiet enjoyment. The Uniform Sales Act, following the provisions of the English statute, provides that the seller impliedly warrants both title and quiet enjoyment. The effect of this provision would seem to be to give the buyer the right to proceed immediately though his possession was not disturbed, and if later his position was interfered with he could bring another action on the implied covenant of quiet enjoyment and recover the damages which he failed to recover in the first action. The same question arises in regard to covenants of warranty and quiet enjoyment in deeds of real estate. 53

§ 981. Rule of the Civil law.

By the classical Roman law the seller was not bound to transfer a good title to the buyer. He was, however, bound to guarantee the purchaser undisturbed possession. This rule produces in effect the result reached by the American authorities referred to in the preceding section, which require some disturbances of the buyer's posession as a condition precedent to any right of action by him.54 The modern French law preserves the rule of the Roman law, and goes beyond it so far as to compel the seller to restore the price even though the parties have agreed that there shall be no warranty unless the sale expressly related to a disputed right or claim.55 The

39 Am. Dec. 317; Thurston v. Spratt, 52 Me. 202; Ryerson v. Chapman, 66 Me. 557; Fallon v. Murray, 16 Mo. 168; Barney v. Dewey, 13 Johns. 224, 7 Am. Dec. 372; Buchanan v. Kauffman, 65 Tex. 235.

53 See infra, § 1401. 54 Moyle, Contract of Sale in the Civil Law, 110, 111.

55 The provisions of the French Code are as follows: "1625. The warranty due from the seller to the buyer has two objects: first, the peaceful possession of the thing sold; secondly, the concealed defects of this

thing, or its redhibitory vices. 1626. Although at the time of sale there has been no stipulation as to warranty, the seller is legally bound to warrant the buyer against suffering total or partial eviction from the thing sold, or from liens asserted on the thing (charges prétendues sur cet objet), and not mentioned at the time of the sale. 1627. The parties may, by special conventions, add to this legal obligation, or diminish its effect, and may even stipulate that the seller shall not be liable to any warranty. 1628. Although it be stipulated that the seller

rule in Germany prior to the enactment of the Civil Code has also been that the seller warranted quiet enjoyment by the buyer and, therefore, that no cause of action arose until the vendor's possession has been interfered with.56 By the Civil Code, however, the seller is bound to make the buyer owner.57 Possibly this may affect the German law in this particular.

§ 982. Implied warranty of quality in the Sales Act.

The Uniform Sales Act provides as follows: Sec. 15. "Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:

"(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.

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58

(2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.59

shall be liable to no warranty, he remains bound to a warranty against his own act; any contrary agreement is void. 1629. In the same case of a stipulation of no warranty, the seller, in the event of eviction, remains bound to return the price, unless the buyer knew, when he bought, the danger of eviction, or unless he bought at his own risk and peril."

56 Endemann, Einführung, 700. 57 Bürgerliches Gesetzbuch, § 433. 58 Kansas City Bolt Co. v. Rodd, 220 Fed. 750, 136 C. C. A. 356 (Ohio); Marmet Coal Co. v. People's Coal Co., 226 Fed. 646, 141 C. C. A. 402; Job v. Heidritter Lumber Co., 255 Fed. 311, (C. C. A.)( N. Y.); Gearing v.

Berkson, 223 Mass. 257, 111 N. E. 785, L. R. A. 1916, D. 1006; Pentland v. Jacobson, 189 Mich, 339, 155 N. W. 468. G. B. Shearer Co. v. Kakoulis, 144 N. Y. S. 1077; Marx v. Locomobile Co., 82 N. Y. Misc. 468, 144 N. Y. S. 937; Wasserstrom v. Cohen, 165 N. Y. App. D. 171, 150 N. Y. S. 638. There was held to be no implied warranty of food in a sale to a dealer. Baker v. Kamantowsky, 188 Mich. 569, 155 N. W. 430; Zielinski v. Potter, 195 Mich. 90, 161 N. W. 851.

59 Thornett v. Beers, [1919], 1 K. B. 486; Flaccomio v. Eysink, 129 Md. 367, 100 Atl. 510, 516; Maggioros v. Edson (N. Y. Misc.), 164 N. Y. S. 377.

(3) If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed.60

(4) In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.61

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(5) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.62

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(6) An express warranty or condition does not negative a warranty or condition implied under this act unless inconsistent therewith." 63

This section follows substantially section 14 of the English act, though the American act uses the word "warranty." 64 The English statute was intended to be an exact codification of the previously existing common law, and the American act should be construed with this in mind.65

§ 983. No implied warranty of quality in the early law.

A development in the law of implied warranty of quality is to be observed similar to that already noticed in regard to implied warranty of title. There are early cases making it clear that in the absence of knowledge by the seller that the article which he sold was of bad quality he was not liable.66

60 Pentland v. Jacobson, 189 Mich. 339, 155 N. W. 468.

41 Quemahoning Coal Co. v. Sanitary &c. Co., 88 N. J. L. 174, 95 Atl. 986; Empire Cream Separator Co. v. Quinn, 184 N. Y. App. D. 302, 171 N. Y. S. 413; Sure Seal Co. v. Loeber, 171 N. Y. App. D. 225, 157 N. Y. S. 327; Matteson v. Lagace, 36 R. I. 223, 89 Atl. 713; Ohio Elec. Co. v. Wisconsin &c. Co., 161 Wis. 632, 155 N. W. 112; Northwestern Blaugas Co. v. Guild (Wis.), 171 N. W. 662.

62 Procter v. Atlantic Fish Co., 208 Mass. 351, 94 N. E. 281.

63 Pentland v. Jacobson, 189 Mich. 339, 155 N. W. 468.

64 In subsections (1-3), however, the

English act uses "condition." The American subsection (3) is a proviso of subsection (2) of the English act and the American subsection (4) a proviso of subsection (1). In subsection (1) after the word "judgment" the English act has the following words: "and the goods are of a description, which it is in the course of the seller's business to supply." The omission of these words seems to make the buyer's reliance the sole test. This doubtless means justifiable reliance, and whether the seller were a dealer would be important evidence.

65 See Kansas City Bolt Co. v. Rodd, 220 Fed. 750, 754, 136 C. C. A. 356. 66 Rolle, Abr. 90, pl. 4.