&c. In the law of sales it has important applications. In form a warranty may be express or implied. An implied warranty may concern either the title or quality of the goods.

Implied warranty of title. In England sale by shop-keepers in course of business. 17 C. B., N. S., 708. There is in general such a warranty where a person purports either by words or contract to sell the goods as his own. It would not apply to the following cases:

A. Sale by a sheriff. The sheriff does not purport to sell the goods as his own, but as the officer of the law. 5 Taunton, 567; 14 Q. B., 621.

3

C. The same principle applies where he sells under a power of sale given by the owner; as for example a pawn broker. Ex., 500. He does not in that case purport to sell the goods as his own. It may be true that in some of these cases there might be a recovery on the ground of mistake of fact, thus rescinding the contract. 19 N. Y., 503.

Fraud may be either active, such as an assertion of known falsehood; or passive, such as the suppression of the truth. The latter case is more difficult, and legal opinions vary. It seems to be a just rule that if the vendor knows of a defect in an article not discoverable by careful observation, and does not disclose it, and also knows that it would have influenced the purchaser, if he had been made aware of it, that there is a fraud in not disclosing it. This appears to be the result of Brown vs. Montgomery, 20 N. Y., 287, where the seller of a note did not disclose to the buyer that it had gone to protest.

So it has been held that a landlord knowing of the existence of a contagious deadly disease in a house he is about to let, must disclose it or be charged with fraud. 60 N. Y., 229; 112 Mass., 477. Also on the general subject. 49 Vt., 297; 62 N. Y., 35. On the other hand, it was held in 81 N. Y., 101, that it is not a fraud for the vendor to refrain from disclosing that a note is an accommodation note. There were in that case some very broad expressions opposed to the idea of fraud. There are many cases, however, which seem in their language to sustain the text.

In executory contracts, selling goods to to fill an order, the rule of caveat emptor does not apply. Reed vs. Randall, 29 N. Y., 358. As a general rule, no cause of action survives acceptance of the goods. The proper course, as a rule, is for the vendee to return the goods. This last statement may be modified where the quality of the goods can only be tested by use; 58 N. Y., 358. The vendee, however, may take the precaution is such a case to exact an express warranty, whereupon the cause of action will survive. Day vs. Poole, 52 N. Y., 416. These principles are much considered in the case of Jones vs. Just, L. R., 3 Q. B., 197.

Benjamin on Sales should be read in this connection, especially for the topic of conditions precedent as distinguished from warranties.

CHAPTER VI.

STOPPAGE IN TRANSITU.

The following is a brief example of a bill of lading:

"Shipped on board the ship Victory in good order and condition, p'k'ges of goods as designated in the margin, to be carried from New York to Liverpool, England,

Section I. The three words-surely, guaranty and indorsement may be distinguished in this manner :

Suretyship is a generic word embracing all cases in which one person is primarily liable and another person secondarily liable, and where the person secondarily liable has a remedy over against the person primarily liable. It does not necessarily flow from a contract, but may flow from an equitable principle. Guaranty is a much narrower expression; it is an express or special promise to answer for the debt, etc., of another. By the Statute of Frauds every such promise must be in writing. Indorsement is a special form of suretyship which is also governed by its special rules. They all have the element in common that if the creditor makes a bargain with the principal debtor giving him time, the person secondarily liable will be discharged. A distinction must be noticed between guaranty of payment and of collection. Guaranty of payment is substantially in the following form: "For value received I hereby guarantee the payment of the within note," while guaranty of collection substitutes for payment the word collection. In the first case if the debtor does not pay the guarantor is immediately liable.

than that for collection. As to guaranty of collection, see 40 N. Y., 181; 88 N. Y., 508. As to collection being a condition precedent, see 91 N. Y., 562.

Continuing guaranty. This phrase applies to cases where the engagement covers a series of transactions, while an ordinary guaranty is exhausted by a single transaction. See Gates vs. McKees, 13 N. Y., 232; Schwartz vs. Hyman, 107 N. Y., 562. This is a question of the construction of the language of a written instrument, and must be viewed by the court in the light of all the circumstances of the case. See 107 N. Y., 562. An example of a continuing guaranty would be, if a man should write to another "I will guarantee the payment of the price of any goods to the amount of $1,000 which you may sell to B at any time." B might make repeated purchases to that amount and pay until the last one of a series, and then the guarantor would be liable for that.

Letter of credit. This is a letter addressed by one person to another requesting him to supply a to supply a third person with goods, money or credit; the writer of the letter undertaking to reimburse the party addressed. This letter frequently amounts to a guaranty, but not always. Letters of credit are either general or special. A general letter would be addressed, for example, to any banker in Europe. This is such a letter as a traveler would carry. A special letter is addressed to a particular

In this last case no one may make advances on it so as to hold the writer except the person to whom it is addressed. Birchead vs. Brown, 5 Hill, 634; same case, 2 Denio, 375; Union Bank case, 3 N. Y., 203; Evansville Nat'l Bank vs. Kaufman, 93 N. Y., 273. The rule of construction of guaranties is con

sidered in People vs. Lee, 104 N. Y., 441; a good case to read.

Section III. "Let A. B. have the goods and I will pay you." This is an original promise.

"Let A. B. have the goods and I will pay you if he does not." This is a guaranty.

"Let A. B. have the goods and I will see you paid." The meaning of this is greatly disputed.

Section VI. There is a peculiar class of cases in New York, beginning with Pain vs. Packard, 13 Johns., 174, which hold that if the surety gave the creditor notice to collect, and the latter did not obey the notice, and the surety suffered some harm thereby, he is discharged of his liability. The objection to this view is that the surety has no right to give such notice. The New York courts admit the doctrine to be unsound, and limit it as much as possible; but it is the settled law in New York.

Section IX. Where two or more sureties sign a joint note or other obligation, and one dies, his estate is discharged both in law and equity, in respect to the creditor. 49 N. Y., 385; 63 N. Y., 245. This would not apply to a joint and several undertaking.

72 N. Y., 587. This rule is now. changed in New York by the Code of Civil Procedure, § 758. This section does not operate on a bond made before its adoption. See 77 N. Y., 480.

The rule of extinguishment by death does not apply as between the sureties themselves. 84 N. Y., 363.

CHAPTER VIII.

HIRING OF Persons.

If the master discharges the servant wrongfully before the time expires, he may sue at once for damages, but not for wages, for that portion of the time during which the discharge operated.

Howard vs. Daly, 61 N. Y., 362; 102 N. Y., 12; 107 N. Y., 674. To the same effect is the case of James vs. Allen Co., 44 Ohio St., 226. This is an entire cause of action, even though the contract provided that wages should be paid at specific periods during the term of service. Accordingly, a recovery based on the theory of collecting the amount to be paid during one of those periods, would be a bar to any future action under the general rule of law that a plaintiff cannot divide an entire cause of action into parts. Moody vs. Leverich, 4 Daly, 401. In other words, the servant must sue only once for all the damages. The principle in recovering damages is to obtain compensation. Accordingly, he must take reasonable measures to reduce the damages; for example, must accept other employment of same kind tendered to him, and must use due diligence, if none is tendered, in obtaining such employment. If the facts were that servant was thus wrongfully discharged after earning wages during some of the periods, he would have two classes of actions, one for wages earned and the other for damages. These might be united in the same action. See also on duty to diminish damages, 28 N. Y., 76; 78 N. Y., 191; Employers' Liability Act (English), 1880, discussed 18 Q. B. D., 685, where its limits are pointed out; 20 Q. B. D., 359. CHAPTER IX.

CONTRACTS FOr Service GenERALLY.

As to contract to make an article "to a person's satisfaction," see Duplex Safety Boiler Co. vs. Garden, 101 N. Y., 387.

CHAPTER X.

MARRIAGE.

Section I. Leading principles governing an engagement to marry :

Ist. Nature of the contract. It is executory while an actual marriage is executed. The contract gains its validity from mutual promises, the one promise being regarded as the consideration for the other. The remedy for breach is an action for damages. A court of equity will not decree specific performance. It is purely a personal contract, so that upon the death of either party the cause of action dies also. Wade vs. Kalbfleisch, 58 N. Y., 282. An infant may make the contract with an adult subject to a right of disaffirmance on the ground of infancy.

2d. Form of the contract. It may be by words, or even by acts without words. Homans vs. Earle, 53 N. Y., 267. The acts that may be shown are such as are usual in the conduct of persons engaged to be married; including preparations for marriage by the woman, reception in the family, etc. The question thus becomes. in the main one of fact for a jury. Statements made by the man to the woman's father, he having a right to information on the subject, are strong evidence. In a single case the contract must be in writing, that is where the contract is not to be performed within a year. This is owing to a clause in the Statute of Frauds. 222; but see 36 Hun, 52. The contract should not be fixed for so remote a day as to be practically in restraint of marriage, for then it would be void. Contracts of this kind are governed largely by rules prevailing in the other contracts. Thus, they may be made upon condition precedent or subsequent. A common condition precedent is to marry on request.

85 Ill.,

Defenses. These are somewhat special, owing to the personal nature of the contract; among them are such as would show the contract to be illegal or unlawful, or that an enforcement of the contract would not subserve the ends of the mar

Section I. It is commonly said that a bailee without reward is only liable for gross negligence. This expression is not intended as a definition, but is rather useful as expressing the practical difference between the different degrees of negligence, for which different classes of bailees are responsible. Gibbon vs. McMullen, L. R., 2 P. C., 317. The meaning of the rule is that there is a want of that ordinary care which men of ordinary prudence generally exercise about their own affairs under like circumstances. The failure to exercise reasonable skill, care and diligence is in law gross negligence. II Law Times, 184. The phrase gross negligence is an old one, and would not now be adopted as an appropriate expression if it were to be selected for the first time. An eminent English judge has said that he could see no difference between the word "negligence" and the phrase "gross negligence," except that there was a vitupera

tive expression in the one case and not in the other. A judge could not well lay down to a jury the rule that a gratuitous bailee was only liable for gross negligence without accompanying it with an exposition of his meaning.

Section II. Mandatum. Gross negligence, as applicable to this class of cases, discussed in Moffatt vs. Bateman, L. R., 3 Privy Council Cases, 115; case of one driving a carriage with another person in it and the king-bolt broke and the other person was injured.

Question as to liability of collecting bank variously decided. Decisions that a collecting bank is liable for default of its own agent or that of correspondent in other States or places are found in New York, New Jersey, Pennsylvania, Ohio, Indiana and England. See 6 Vroom, 588; 10 Penn. St., 104; 8 Ohio St., 465; 6 Blatchford, 225; 9 Clark and Finnelley, 818. It has been decided the other way in Massachusetts, Connecticut, Missouri, Illinois, Tennessee and Iowa. Many cases are collected in 112 U. S., 281, 282. It is necessary to the liability of the depositary bank, that the relation of agent should exist between it and the person undertaking to collect. Thus, if the depositary should send the note by mail to the bank on which a check is drawn as an isolated transaction, it has been held this would not constitute the latter an agent to receive the money in payment. 80 N. Y., 100. It would be otherwise if the drawee was shown by a course of dealing to be an agent for collection and receipt. N. Y., 182.

Section IV. Pignus.

89

Ist. Note the distinction between a pledge and a mortgage. The pledgee has a special property. The pledgor is owner. 70 N. Y., 596.

B. Duty of care. Loss through negligence creates liability.

C. Right of Sale. This applies to tangible chattles or stocks having a market value. Property without market value, such as promissory notes and mortgage pledges, are to be collected. Sale can only be made after the debt is due. A custom to sell before debt is due is invalid. Demand is frequently necessary. Notice of the time and place of sale is requisite. The pledgee acts as trustee and must retain all surplus for the pledgor. A more formal mode of proceeding is a foreclosure in equity, in which the right of the pledgor is bound. A pledgee is not bound to collect from the pledge. The debt is the principal thing and the property pledged is accessory. The debt may be reduced to judgment, and execution levied in the usual way.

Peculiarity in case of stocks. In general the owner of stocks has a certificate which the officers of the company furnish as evidence of ownership. Should he wish to pledge this he might put his name on the back of it with a witness and hand it to the pledgee. While the certificate is in this condition the pledgee has the equitable title. He can get the legal title by surrendering the certificate to the company and taking out a new one in his own name. He is still trustee in equity for the pledgor. He has in this last case the power but not the right to sell the stock to a purchaser in good faith even before the debt is due. This will make him liable to the pledgor though the purchaser has title. This result cannot be reached