But no satisfactory reason is perceived why the question of the warranty of a horse should stand on any different basis than the warranty of any other chattel.1 III. IMPLIED WARRANTIES. § 1295. Implied warranty defined. Express warranties have been seen to be those which arise from the direct and positive statements of the parties. They may be said, therefore, to be created by the act of the parties. Implied warranties, on the other hand, are such as arise by operation of law, and an implied warranty may be defined as a contract or agreement which the law imputes to the seller by reason of the nature, circumstances or subject-matter of the contract of sale. § 1296. Implied warranty when express warranty exists. Implied warranties can ordinarily arise only where the parties have not themselves created an express warranty relating to the same subject-matter, though this, as has been seen, is not an inflexible rule, and will yield to evidence that the parties. intended both to operate, as where the express is clearly designed to be in addition to that which the law alone would imply. The time § 1297. Time and place of implied warranty. and place to which an express warranty shall be deemed to apply have already been considered in another place, but the same general rules are applicable here. Presumptively the time and place of the sale are the time and place referred to, but the presumption may be altered by the existence of facts showing that some other time or place was in the contemplation of the parties. 1 See Westurn v. Page (1896), 94 Wis. 251, 68 N. W. R. 1003. 2 See ante, § 1234. 3 Osgood v. Lewis, 2 H. & G. (Md.) 495, 18 Am. Dec. 317. 4 See ante, § 1259. $1298. Deterioration during shipment.-The implied warranty of merchantability, for example, ordinarily refers to the condition of the goods at the time and place of shipment, leaving the buyer to bear the consequences of the journey,' but it will be otherwise where the seller agrees to deliver the goods to the buyer at some particular place, in which case the seller must take the risk of any extraordinary or unusual deterioration, at least, though as to the necessary and usual consequences of the journey he will not be responsible unless he has agreed to be, or unless the necessary and usual incidents of the journey produce results which the seller ought reasonably to have guarded against.2 1 See ante, § 739. In English v. Spokane Com. Co., 15 U. S. App. 218, .6 C. C. A. 416, 57 Fed. R. 451, where there was a sale of potatoes and eggs in carload lots to be delivered by the sellers on the track at Omaha, Nebraska, for shipment to Spokane Falls, Washington, it was held that the warranty of quality referred to their condition at Omaha, and that the sellers were not liable for deterioration necessarily resulting from the transit. But in Reynolds v. Palmer (U. S. Cir. Ct.). 21 Fed. R. 433, Dick, J., in charging the jury held that, where there was a sale of tobacco at S. for shipment to W., to be there manufactured, a warranty that the tobacco would be delivered in "sound order" meant "such order as would, with ordinary care, insure the sound condition of the tobacco on its arrival at W., and for a reasonable time thereafter, when it could be used in the course of manufacture." 2 In Bull v. Robinson, 10 Exch. 342, the plaintiff, an iron manufacturer in Staffordshire, agreed to manufacture and deliver to defendant in Liverpool, by canal and river transportation, a quantity of hoop-iron. Certain of the iron defendant refused to accept because of its alleged unmerchantable condition. It was proved that the iron was properly manufactured and was in good condition when put on board the boat in Staffordshire. There was evidence that the defects were incident to the shipment of iron by water at the time of year specified. The action was for the refusal to accept. Said the court, per Alderson, B.: "There In Mann v. Evertson, 32 Ind. 355, where there was a sale of corn meal for shipment from Indiana to New Orleans, it was held that there was an implied warranty that it was properly packed and fit for shipment, but that there was no warranty that it would continue sound for any particular length of time. In Leggat v. Brewing Co., 60 Ill. 158, where ale was sold for shipment south, it was held that the warranty applied only to its condition at the date of shipment and did not extend to its condition on arrival at its destination. Substantially to same effect is Leopold v. Van Kirk, 27 Wis. 152. § 1299. Implied warranties classified.- Implied warranties fall chiefly under one of two general heads: 1. Implied warranties of title; and 2. Implied warranties of quality; under is no express warranty in the case; there is only that which is implied by law. Now, we have no doubt that the plaintiff was bound to manufacture merchantable hoop-iron; this, however, he did. We have no doubt, also, that he was bound to deliver the hoop-iron at Liverpool in a certain state and condition; but we think that hoop-iron to be manufactured in Staffordshire, and to be forwarded by canal and river, to be delivered in Liverpool, must be accepted by the vendee, if only so far deteriorated as all such iron must necessarily be deteriorated in its transit from Staffordshire to Liverpool. The law, we think, could never imply a warranty that the iron should be delivered in Liverpool, free from a deterioration without which iron well manufactured in Staffordshire could not be transferred from Staffordshire to Liverpool. Any warranty implied by the law must be a reasonable warranty, and cannot be one which it is physically impossible to comply with. In such cases, to hold that the vendor, in the absence of an express warranty, was to be subjected to the risk arising from the necessary deterioration which every such voyage must produce upon the article, would, as it seems to us, lead to unjust consequences. "A manufacturer who contracts to deliver a manufactured article at a distant place must, indeed, stand the risk of any extraordinary or unusual deterioration; but we think that the vendee is bound to accept the article if only deteriorated to the extent that it is necessarily subject to in its course of transit from one place to the other, or, in other words, that he is subject to and must bear the risk of the deterioration necessarily consequent upon the transmission.” In Beer v. Walker, 46 L. Jour. C. P. 677, plaintiff contracted to supply a retail dealer in another place with rabbits, to be sent by rail weekly. It was held that there was an implied warranty that the rabbits would be fit for food, and that this continued until in the ordinary course they arrived at their destination and the buyer had had a reasonable opportunity of dealing with them in the usual course of business. "If a man make an express con tract to deliver at Liverpool hoopiron in the very same condition as when first manufactured in Staffordshire, he must, of course, bear the consequence of his own unwise bargain; but we think there is no such contract implied in such a transac tion as the present. We have no doubt that iron, and numerous other articles of manufacture in this country, are frequently manufactured upon orders from abroad, and to be delivered there by the manufacturer. 30, where hams were sold in Iowa In Ryan v. Ulmer, 108 Pa. St. 332, 56 Am. R. 210, where packed meat was sold in Iowa for shipment to Pennsylvania, the court assume the warranty of quality to have reference to its condition when shipped. But in Forcheimer v. Stewart, 65 Iowa, 593, 22 N. W. R. 886, 54 Am. R. the latter head being embraced such specific subjects as the implied warranty of conformity to sample, genuineness, identity, merchantability, and fitness for intended use. 1. Implied Warranty of Title. § 1300. Under what circumstances a warranty arises — In general. The rule respecting the warranty of title implied upon the sale of a chattel cannot be said to be in a settled condition in the United States. Some points, however, are clear, and their statement will reduce to its lowest terms the point respecting which the uncertainty arises. It is everywhere agreed that in the case of an executory agreement the seller warrants by implication the title to the goods which he agrees to sell. It is also every where agreed that, in the sale of a specific and ascertained chattel, any affirmation by the seller that the chattel is his is equivalent to an express warranty of title; and that this affirmation may be implied from his conduct as well as from his words, and may also result from the nature and circumstances of the sale. It is agreed also that if the seller, in such a case, though making no such express affirmation, nor selling under circumstances to raise an implication of such an affirmation, sells the chattel knowing that he has no title, and concealing that fact from the buyer, he is guilty of fraud. But it is disputed whether, where no express warranty is given, the seller of a chattel does not, though acting in good faith, by the mere fact of sale, thereby impliedly warrant his title and ability to sell. § 1301. The English rule.- Under the rules laid down in the earlier English authorities' it was unquestionably de for shipment to Mobile, Ala., and the seller took the bill of lading in his own name and retained control of the goods until they arrived at their destination, the warranty was held to refer to their condition at Mobile, where, for the first time, the seller was ready to deliver them. 1 See Noy's Maxims, ch. 42; Coke on Lit. 102a; per Parke, B., in Mor clared that, where the seller is guilty of no fraud, he is not liable for a defective title unless there was an express warranty, or an equivalent to it, either by declarations or conduct: otherwise, caveat emptor was said to be the rule. It was admitted that a warranty might arise from such declarations or conduct, and the English courts, dissatisfied with the rule, proceeded to enforce and enlarge the warranty so arising until, as was asserted by Lord Campbell, the many exceptions had well nigh eaten up the rule. In a series of cases1 ending with Eichholz v. Bannister, this process had been carried to such a degree that, in Mr. Benjamin's opinion, the older rule had been substantially altered, and he therefore stated what must undoubtedly be regarded as the modern English rule as follows: "A sale of personal chattels implies an affirmation by the vendor that the chattel is his, and therefore he warrants the title, unless it be shown by the facts and circumstances of the sale that the vendor did not intend to assert ownership, but only to transfer such interest as he might have in the chattel sold."2 § 1302. The rule in the United States.-The English courts repudiate any distinction between those cases in which the seller is, and those in which he is not, in possession of the goods which he sells. This distinction has, however, been much urged in the United States. It seems universally to be conceded here that where the seller is in possession of the goods a warranty of title accompanies the sale, upon the ground that his undertaking to sell under such circumstances is of itself an affirmation of his title. But where he is not in ley v. Attenborough, 3 Exch. 500; Chitty's Contracts (11th ed.), 413; Broom's Leg. Max. (5th ed.) 799-801; Leake, Dig. Cont. 402; 2 Taylor, Ev. 984; Bullen & Leake, Prec. Pl. (1882), 342. 1 Morley v. Attenborough, 3 Exch. 500, 18 L. Jour. Ex. 149; Hall v. Conder, 2 C. B. (N. S.) 22, 26 L. J. C. P. 138, 288; Smith v. Neale, 2 C. B. (N. S.) 67, 26 L. J. C. P. 143; Chapman v. Speller, 14 Q. B. (Ad. & El.) 621, 68 Eng. Com. L. 621, 19 L. J. Q. B. 239; Sims v. Marryatt, 17 Q. B. (Ad. & El.) 281, 79 Eng. Com. L. 280, 20 L. J. Q. B. 454; Eichholz v. Bannister, 17 C. B. (N. S.) 708, 34 L. J. C. P. 105. See also Raphael v. Burt, Cab. & El. 325. 2 Benjamin on Sale (6th Am. ed.), § 639. 3 Defreeze v. Trumper, 1 Johns. (N. Y.) 274, 3 Am. Dec. 329; Chism v. |