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§ 1800. Caveat emptor.-The simplest case will be that in which there has been a present sale of a known and ascertained chattel, without fraud, without any express warranty, and without any circumstances or conditions to raise an implied warranty. Here, as has been seen,' the rule of the common law is caveat emptor and the purchaser is without any remedy what

ever.

§ 1801. Express stipulations for return or other remedy. As has been seen, the parties may by express stipulation provide that in case the goods prove defective the buyer may return them, and either have others in their place or have a rescission of the contract and a release from its obligations.

The contract may make such a return the only remedy of the buyer, and in that case if he fails to avail himself of it he will have no other."

Usually, however, such a remedy will be an optional one, and the buyer at his election may either return the goods or keep them and have such remedy as the law provides.

§ 1802. Rejection of goods. As has also been seen, the buyer under an executory contract of sale has the right to insist that the goods supplied under it shall be such in kind, quality or condition as the contract provides. If, therefore, though he may have received the goods, he subsequently finds that they are not such as he was bound to receive, he may, by acting fairly and with reasonable promptness, reject the goods and repudiate his obligation."

§ 1803.

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So, as has been seen, the buyer has a right to insist upon the quantity of goods agreed upon. He may know

1 See ante, § 1311 et seq.

2 See ante, § 823.

3 See ante, § 1396.

ranty, the buyer may return them and rescind; and if the seller refuses to receive them the buyer must take

4 Blacknall v. Rowland (1896), 118 measures to avoid unnecessary loss; N. C. 418, 24 S. E. R. 1.

5 See ante, § 1375. Under an express warranty upon an executory contract of sale, if the articles furnished do not correspond to the war

and if he sells them he is responsible
only for the proceeds. Rubin v. Stur-
tevant (1897), 51 U. S. App. 286, 80
Fed. R. 930, 26 C. C. A. 259.
6 See ante, § 1390.

2

ingly accept a part only and become liable for that part;1 he may, in many cases, accept part and recover damages for the non-delivery of the residue; but where he has accepted part in reliance upon the delivery of the residue under an entire contract, he may, if he so elects, rescind the contract and return the part received.3

§ 1804. Rescission for fraud.—In an earlier chapter attention has been given to the cases in which the buyer who has been induced to purchase through the fraudulent representations or practices of the seller may rescind the contract and recover what he has parted with in pursuance of it. Any further discussion of that question in this place seems unnecessary, and a reference to the previous discussion must suffice.*

§ 1805, Rescission for breach of warranty. It has been seen to be the general rule that in the case of the executed sale of a specific chattel — as distinguished from the executory contract to sell a chattel not then ascertained - no rescission can be had for a mere breach of warranty unaccompanied by fraud or an agreement to rescind." In some States, however,

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1 See ante, § 1390.

2 See ante, § 1398.

3 Where a contract of sale is entire and indivisible, though including several distinct articles, failure as to any one on the part of the seller gives the buyer a right to rescind. McCormick Mach. Co. v. Courtright (1898), 54 Neb. 18, 74 N. W. R. 418, citing Campbell Printing Press Co. v. Marsh, 20 Colo. 22, 36 Pac. R. 799. 4 See ante, § 930 et seq.

5 See ante, § 816; Street v. Blay (1831), 2 B. & Ad. 456, 22 Eng. Com. L. 193; Gompertz v. Denton (1832), 1 Cr. & M. 207; Dawson v. Collis (1851), 10 C. B. 523, 70 Eng. Com. L. 522; Thornton v. Wynn (1827), 25 U. S. (12 Wheat.) 183; Lyon v. Bertram (1857), 61 U. S. (20 How.) 149; Voor

hees v. Earl (1842), 2 Hill (N. Y.), 288, 38 Am. Dec. 588; Cary v. Gruman (1843), 4 Hill (N. Y.), 625, 40 Am. Dec. 299; Muller v. Eno (1856), 14 N. Y. 597; Day v. Pool (1873), 52 N. Y. 416, 11 Am. R. 719; Kase v. John (1840), 10 Watts (Pa.), 107, 36 Am. Dec. 148; Lightburn v. Cooper (1833), 1 Dana (Ky.), 273; Trumbull v. O'Hara (1898), 71 Conn. 172, 41 Atl. R. 546; Allen v. Anderson (1842), 3 Humph. (Tenn.) 581, 39 Am. Dec. 197; Lynch v. Curfman (1896), 65 Minn. 170, 68 N. W. R. 5; Close v. Crossland (1891), 47 Minn. 500, 50 N. W. R. 694; Hoadly v. House (1859), 32 Vt. 179, 76 Am. Dec. 167; Matteson v. Holt (1873), 45 Vt. 336. In New Hampshire, see Chase v. Willard (1892), 67 N. H. 369, 39 Atl. R. 901. Under the California code (Civ.

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as in Massachusetts,' Maine, Maryland, Missouri, Alabama, Iowa, Kansas and Wisconsin, it seems that rescission may be had for mere breach of warranty, if it be seasonably sought and the other party be restored to statu quo.

§ 1806.

In pursuance of agreement.-The contract of sale, moreover, as has been seen, may expressly provide for a return of the article or a rescission of the contract if the chattel proves not to be as warranted. Such an agreement, of course, will give the right where the rules of law might not otherwise permit it."

The buyer, however, if he would avail himself of this con

Code, § 1786), see First Nat. Bank v.
Hughes (1896), 46 Pac. R. 272. In
Nebraska, see McCormick Harv.
Mach. Co. v. Knoll (1899), 57 Neb. 790,
78 N. W. R. 394.

Bryant v. Isburgh (1859), 13 Gray, 607, 74 Am. Dec. 655; Smith v. Hale (1893), 158 Mass. 178, 33 N. E. R. 493, 35 Am. St. R. 485.

2 Milliken v. Skillings (1896), 89 Me. 180, 36 Atl. R. 77 [citing Marston v. Knight (1849), 29 Me. 341; Cutler v. Gilbreth, 53 Me. 176; Farrow v. Cochran, 72 Me. 309]. See also Marshall v. Perry (1877), 67 Me. 78; Libby v. Haley (1898), 91 Me. 331, 39 Atl. R. 1004.

7 Weybrich v. Harris (1883), 31 Kan. 92; Gale Sulky-Harrow Mfg. Co. v. Stark (1891), 45 Kan. 606, 26 Pac. R. 8, 23 Am. St. R. 739.

8 Boothby v. Scales (1871), 27 Wis. 626; Croninger v. Paige (1880), 48 Wis. 229: Parry Mfg. Co. v. Tobin (1900), 106 Wis. 286, 82 N. W. R. 154.

Illinois, on the strength of Sparling v. Marks (1877), 86 III. 125, is sometimes included in this list; but that this is not the view in that State, see Kemp v. Freeman (1891), 42 IIL App. 500; Crabtree v. Kile (1859), 21 Ill. 180; Owens v. Sturges (1873), 67 Ill. 366.

In Louisiana, under the code, arti3 Franklin v. Long (1836), 7 Gill & cle 2520, the sale may be avoided "on J. (Md.) 407. account of some vice or defect in the thing sold, which renders it either useless. or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice." Flash v. American Glucose Co. (1886), 38 La. Ann. 4.

4 Branson v. Turner (1883), 77 Mo. 489; Johnson v. Whitman Agl. Works (1885), 20 Mo. App. 100.

5 Thompson v. Harvey (1888), 86 Ala. 519, 5 S. R. 825; Hodge v. Tufts (1896), 115 Ala. 366, 22 S. R. 422.

6 Rogers v. Hanson (1872), 35 Iowa, 283; Upton Mfg. Co. v. Huiske (1886), 69 Iowa, 557, 29 N. W. R. 621. See also Eagle Iron Works v. Des Moines Suburban Ry. Co., 101 Iowa, 289, 70 N. W. R. 193.

9 See ante, § 821; McCormick Har vesting Mach. Co. v. Knoll (1899), 57 Neb. 790, 78 N. W. R. 394.

tract right to rescind or return the goods, must proceed within the time and in the manner which the contract stipulates, and a failure to do so will defeat his right.1

$ 1807. Waiver of special remedy - Suit for breach of warranty. These special provisions for the return of the goods if they do not comply with the warranty or other agreement may, of course, be couched in such terms as to make such a return the exclusive remedy. In the ordinary case, however, the language used is permissive and not mandatory, as, for example, that the buyer may return it or that the seller agrees to receive it back if not satisfactory; and in such cases it is well settled that the buyer, at his option, may avail himself of the special remedy, or waive it and sue at law for the breach of warranty.3

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1 See ante, § 824; Gaar v. Hicks (1897, Tenn. Ch.), 42 S. W. R. 455; McCormick Mach. Co. v. Brower (1895), 94 Iowa, 144, 62 N. W. R. 700; Aultman v. Gunderson (1894), 6 S. Dak. 226, 60 N. W. R. 859.

Where a test has been so long delayed that the capacity of the machinery to come up to the terms of the warranty is impaired, or if the right of rescission has been so long delayed as to show a waiver of the warranty, the purchaser has lost both his right to rescind and his action on the warranty. Gray v. Consolidated Ice Machine Co. (1897), 103 Ga. 115, 29 S. E. R. 604.

A purchaser of a pony with an option to return it within six months if dissatisfied is not obliged to return it when it is choked to death the night after the purchase by a sliphalter put on at the instance of the seller. Nor does he act arbitrarily in rescinding under those circumstances. Lyons v. Stills (1896), 97 Tenn. 514, 37 S. W. R. 280.

2 See ante, § 1396; Hills v. Bannister (1827), 8 Cow. (N. Y.) 32 (where a church bell was sold with a warranty that it would not crack within a year, and that if it did so crack the seller would recast it. Held, that seller was not liable on his warranty without notice and a neglect to recast); Himes v. Kiehl (1893), 154 Pa. St. 190, 25 Atl. R. 632. See also post, § 1812.

3 Elwood v. McDill (1898), 105 Iowa, 437, 75 N. W. R. 340; Love v. Ross (1893), 89 Iowa, 400, 56 N. W. R. 528;* Hefner v. Haynes (1893), 89 Iowa, 616, 57 N. W. R. 421; Eyers v. Haddem (1895), 70 Fed. R. 648 [citing also Shupe v. Collender, 56 Conn. 489, 15 Atl. R. 405; Fitzpatrick v. Osborne, 50 Minn. 261, 52 N. W. R. 861; Mandel v. Buttles, 21 Minn. 391; Osborne v. McQueen, 67 Wis. 392, 29 N. W. R. 636; Park v. Richardson, 81 Wis. 399, 51 N. W. R. 572; Kemp v. Freeman, 42 Ill. App. 500; Perrine v. Serrell, 30 N. J. L. 454].

As said by Metcalf, J., in one case: "When a seller, in addition to a warranty of property, makes a promise to take it back if it does not conform to the warranty, we cannot hold that such superadded provision rescinds and vacates the contract of warranty. We are of the opinion that in such case the buyer has, if not a double remedy, at least a choice of remedies, and may either return the property within a reasonable time, or keep it and maintain an action for breach of the warranty."

§ 1808. Option where law gives the right to rescind.- For like reasons, in those States in which, contrary to the general rule, the law gives the right to rescind for mere breach of warranty, the buyer is not bound to rescind: he may do so, or may retain the article and rely upon an action for his remedy.'

§ 1809. Action for breach of warranty.-If the buyer cannot rescind the contract or restore the property, or, though he may do so, if he chooses not to, his remedy will be either an action at law to recover damages for the breach of the warranty, or, in some cases, an action of tort for the deceit. Speaking first of actions for breach of warranty, the inquiry may be raised

§ 1810. What form of action - Contract or tort? - With respect of the implied warranty, a contract action—at common law an action of assumpsit-is the appropriate remedy. But with reference to express warranties, it was said by the supreme court of the United States: "The ancient remedy for a false warranty was an action on the case sounding in tort. The remedy by assumpsit is comparatively of modern introduction. In Williamson v. Allison, Lord Ellenborough said

1 Douglass Axe Mfg. Co. v. Gardner (1852), 10 Cush. (Mass.) 88.

2 Graff v. Osborne Co. (1895), 56 Kan. 162, 42 Pac. R. 704; Douglass Axe Mfg. Co. v. Gardner, supra. See also Brigg v. Hilton (1885), 99 N. Y. 517, 52 Am. R. 63.

3 As to this, see post, § 1839.

4 Schuchardt v. Allens (1863). 68 U. S. (1 Wall.) 359. Cited and followed in Shippen v. Bowen (1886), 122 U. S. 575.

5 Citing Stuart v. Wilkins, 1 Doug. 18; Williamson v. Allison, 2 East, 447. 62 East, 447.

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