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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

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.”1

§ 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.1

§ 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

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§ 1810. What form of action - Contract or tort? With respect of the implied warranty, a contract actionat 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.

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.

it had 'not prevailed generally above forty years.' In Stuart v. Wilkins, Lord Mansfield regarded it as a novelty, and hesitated to give it the sanction of his authority. It is now well settled, both in English and American jurisprudence, that either mode of procedure may be adopted. Whether the declaration be in assumpsit or tort, it need not aver a scienter. And if the averment be made it need not be proved. One of the considerations which led to the practice of declaring in assumpsit was that the money counts might be added to the special counts upon the warranty. If the declaration be in tort, counts for deceit may be added to the special counts, and a recovery may be had for the false warranty or for the deceit, according to the proof. Either will sustain the action." "

§ 1811. Notice of defects-Offer to return.- In the ordinary case of breach of warranty, either express or implied, notice of the defect or an offer to return the property to the

11 Doug. 18.

2 Declaration for breach of warranty may be in tort or assumpsit, as the plaintiff may elect. Bartholomew v. Bushnell (1850), 20 Conn. 271, 52 Am. Dec. 338. It is not necessary in pleading, where a party relies upon a general warranty, to state whether the warranty was express or implied. A general averment that the seller warranted the article is sufficient. Hoe v. Sanborn (1860), 21 N. Y. 552, 78 Am. Dec. 163. A declaration for breach of warranty of soundness of a horse which alleges that the horse was unsound is sufficient without specifying the particular form of un soundness. Wheeler v. Wheelock (1860), 33 Vt. 144, 78 Am. Dec. 617 But if plaintiff declares on an express warranty without alleging fraud, he must prove the express warranty and cannot recover on proof of fraud only. West v. Emery (1845), 17 Vt. 583, 44 Am. Dec. 356.

3 [Citing Williamson v. Allison, supra; Gresham v. Postan, 2 Car. & P. 540; Brown v. Edgington, 2 Man. & Gr. 279; Holman v. Dord, 12 Barb. (N. Y.) 336; House v. Fort, 4 Blackf. (Ind.) 293; Trice v. Cockran, 8 Gratt. (Va.) 442, 56 Am. Dec. 151; Lassiter v. Ward, 11 Ired. (N. C.) L. 443.] See also Beeman v. Buck (1830), 3 Vt. 53, 21 Am. Dec. 571; Bartholomew v. Bushnell, supra; Hillman v. Wilcox, 30 Me. 170; Osgood v. Lewis, 2 H. & G. (Md.) 495, 18 Am. Dec. 317; Swayne v. Waldo, 73 Iowa, 749, 33 N. W. R. 78, 5 Am. St. R. 712. But in McGlade v. McCormick (1895), 57 N. J. L. 430, 31 Atl. R. 460, it is held that in an action of tort founded on a fraudulent warranty of soundness of a horse, the defendant's scienter must be proved.

4 Citing Williamson v. Allison, supra.

5 Citing Vail v. Strong, 10 Vt. 457; Brown v. Edgington, supra.

seller is not in any respect a condition precedent to the buyer's right to maintain an action for the breach of warranty,' although, as is pointed out by Mr. Benjamin, his "failure to return the goods, or complain of the quality, raises a strong presumption that the complaint of defective quality is not well founded." So, obviously, the buyer is not bound to request the seller to remove the article or to replace it with another, in the absence of an agreement so to do.2

$1812. -Conditional warranty.- The parties may, however, by their contract expressly stipulate for notice of the defect and an opportunity to remedy it, or for a return of the article and an opportunity to substitute a perfect one in its place, before the seller's contract shall be deemed to be finally broken; and where they have done so, notice and opportunity of the kind stipulated and at the time and under the circumstances specified is, unless waived, a condition precedent to the buyer's right to maintain an action for the breach of warranty.3

§ 1813.

So it has been held competent for the parties to stipulate that the failure of the buyer to settle for the goods, e. g., machinery, "at the time and place of delivery shall be a waiver of the warranty and release the warrantor, without in any way affecting the liability of the purchaser for the price of the machinery or the notes given therefor." Under

Morse v. Moore (1891), 83 Me. 473,
22 Atl. R. 362, 23 Am. St. R. 783, 13
L. R. A. 224; Vincent v. Leland
(1868), 100 Mass. 432; Richardson v.
Grandy (1876), 49 Vt. 22; Best v.
Flint (1886), 58 Vt. 543, 5 Atl. R. 192;
Tacoma Coal Co. v. Bradley (1891), 2
Wash. 600, 27 Pac. R. 454, 26 Am. St.
R. 890; Larson v. Aultman (1893), 86,
Wis. 281, 56 N. W. R. 915, 39 Am. St.
R. 893, citing many other Wisconsin

cases.

3 See ante, § 824; Trapp v. New Birdsall Co. (1898), 99 Wis. 458, 75 N. W. R. 77; Aultman v. Gunderson (1894), 6 S. Dak. 226, 60 N. W. R. 859; McCormick Mach. Co. v. Brower (1895), 94 Iowa, 144, 62 N. W. R. 700; Gaar v. Hicks (1897, Tenn. Ch.), 42 S. W. R. 455; Lewis v. Hubbard (1878), 1 Lea (Tenn.), 436, 27 Am. R. 775. A condition for the return of the article to a particular place must be complied with. Tyler v. Augusta

2 Williams v. Thrall (1898), 101 Wis. (1896), 88 Me. 504, 34 Atl. R. 406. 337, 76 N. W. R. 599.

such a contract the failure of the buyer, without legal excuse, to settle for the goods as agreed, is held to be a waiver of the warranty.1

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§ 1814. Vendee not bound to anticipate or search for defects. The purchaser of goods with warranty, moreover, is not bound to anticipate that it will be broken, or to search for imperfections in the goods before using them or putting them to the use for which they were purchased. He has, of course, no right to unnecessarily aggravate his injury by attempting to use goods obviously unfit, but where the defects are not obvious he may rely upon the seller's warranty that none exist and act accordingly.

§ 1815. Who liable for breach of warranty - Principal Agent. The person responsible for the breach of warranty is usually the seller himself. He may, as has been seen, in many cases be liable upon a warranty made by his agent. Even though undisclosed at the time, he may, when discovered, be held liable upon a warranty made by one who was really his agent for that purpose."

1 Robinson v. Berkey (1896), 100 Iowa, 136, 69 N. W. R. 434, 62 Am. St. R. 549 [citing Davis v. Robinson, 67 Iowa, 355, 71 Iowa, 618].

A vendee cannot defend an action for the price of a machine by show ing that it failed to do good work, under a warranty to that effect, when by the contract no machine was to be delivered to a customer of the vendee without first being settled for, and the vendee failed to observe this stipulation. Warren & Durfee Mfg. Co. v. Watson (1894), 92 lowa, 759, 60 N. W. R. 481.

2 Tacoma Coal Co. v. Bradley (1891), 2 Wash. 600, 27 Pac. R. 454, 26 Am. St. R. 890.

3 Milwaukee Boiler Co. v. Duncan (1894), 87 Wis. 120, 58 N. W. R. 232, 41 Am. St. R. 33.

In Haltiwanger v. Tanner (1897), 103 Ga. 314, 29 S. E. R. 965, it is held that one who, with the knowledge of the seller, purchases for the purpose of resale goods which are warranted, is under no obligation to investigate the goods with a view to detecting latent defects, but may rely upon the warranty.

In South Bend Pulley Co. v. Caldwell Co. (Ky., 1899), 54 S. W. R. 12, pulleys were sold with a warranty, but the defects were not discovered for some time owing to their being wrapped in paper and the wrapping of many of them not having been removed. Held, for the jury to say whether the delay precluded a recovery.

4 See ante, § 1278 et seq.

5 See Mechem on Agency, § 695 et seq.

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