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." 5

§ 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, how ever, 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

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

cases.

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

§ 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,3 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 showing 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.

On the other hand, though authorized to bind his principal, an agent may pledge his own responsibility, and thus become personally liable. And if he warrants without authority, or assumes to represent a principal having no legal existence,3 he is also personally liable. In tort the principal and agent may both be liable.1

A full discussion of this subject has been given in another work, and need not be repeated here.

$ 1816. Purchaser of draft with bill of lading attached. Where the seller of warranted goods ships them by carrier, taking a bill of lading in his own name, attaches to the bill of lading a draft drawn on the purchaser for the price, and then procures the discount of the draft by a transfer of the bill of lading, the bank or other party discounting the draft obtains a legal title to the goods, and, it has been held, becomes liable for the performance of the warranty subject to which the goods were sold."

This doctrine, however, has been denied, and is thought not to be in accord with the established rules of law."

§ 1817. Measure of damages for breach of warranty — In general. Where the article furnished by the seller is not such in kind, quality or condition as it was expressly or impliedly warranted to be, the direct and natural loss to the buyer who keeps it is obviously the difference between the value of an article of the kind he was thus entitled to receive and the value

1 See Mechem on Agency, § 552 et Alpha Mills v. Watertown Co. (1895), 116 N. C. 797, 21 S. E. R. 917.

seq.

2 See Mechem on Agency, § 541 et

5 Landa v. Lattin (1898), 19 Tex. Civ. App. 246, 46 S. W. R. 48; Finch v. Gregg (1900), 126 N. C. 176, 35 S. E. R. 251, 49 L. R. A. 679, and exhaustive note.

6Tolerton & Stetson Co. v. AngloCalifornia Bank (1901), - Iowa, 84 N. W. R. 930, 50 L. R. A. 777.

――

7 See note to Finch v. Gregg, in 49

seq.

3 See Mechem on Agency, § 557. 4 See Mechem on Agency, § 182. Where a person, acting as agent for another, contracted to sell plaintiff an engine of a certain kind, and knowingly delivered an inferior one, plaintiff may retain the engine and sue both principal and agent for L. R. A. 679. damages on the false warranty.

of the article which he has in fact received. For this loss he is entitled to compensation. There may, of course, be other losses resulting from the seller's default, and these will be considered later; but the direct and immediate loss will be at least this difference in value.

For the breach of warranty, then, as to kind, quality or condition, the measure of the buyer's injury will be the difference between the value of an article of the kind warranted and the value of the article actually delivered; and for this difference the buyer may recover damages. If the article delivered is