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stipulation is that he may return the machine if it does not suit him, he may return if he is not suited, though the machine were one with which he ought to have been suited.'

$ 815. Time and manner of terminating may be limited. The cause or event which shall justify termination may not only be thus limited, but the parties may also limit the time within which or the method by which the right to terminate shall be exercised. Where this is done, these provisions stand in the attitude of conditions precedent, and, unless the other party waives them, there can be no termination except within the time or by the method so specified.?

$ 816. Usually no rescission of executed sale for mere breach of warranty - Permitted in some States. It is the general rule, as will be more fully seen hereafter, that, in the absence of fraud ' or an agreement to rescind,' an executed and completed sale — as distinguished from the merely executory one - cannot be rescinded for a mere breach of warranty. In the case of the executory contract, as will be seen, if the articles when tendered do not conform to the warranty, the vendee may reject them, or if, after receiving them, he discovers that they do not conform to the warranty, he may return them; but the buyer of a specific and ascertained chattel must usually retain the chattel and find his remedy in an action for damages.

In a few States, however, the buyer who finds that he has not received the kind of article which it was expressly or impliedly warranted to be is not "compelled to retain a chattel, purchased upon a warranty which is broken and be put to his action for damages, when it may be altogether unsuitable to his wants, and not possessing those essential qualities absolutely


1 Goodrich v. Van Nortwick (180 3 As to which, see chapter VI, fol43 Ill. 445. Compare also Clark v. lowing. Rice, 46 Mich. 308, 9 N. W. R. 427, and 4 As to which, see following sec Plano Mfg. Co. v. Ellis, 68 Mich. 101, tions. 35 N. W. R. 841.

5 See post, $ 1805. 2 See post, $ 824

6 See post, $ 1785.

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necessary to make it useful to him.” He may, if he has not waived his right, rescind the sale, even though there was no fraud, and, on restoring or offering to restore the article, may recover what he has parted with for it. This rule prevails in Massachusetts 1 (whence it is often called the Massachusetts rule), and in Maine, Maryland, Missouri, Alabama, Iowa, Kansas ? and Wisconsin.8

$ 817. - It is, of course, true everywhere, as will be seen hereafter, that where the contract is executory, and the undertaking of the seller, in respect of the kind of goods, amounts to a condition precedent, the buyer may refuse to receive the goods if they do not conform to the condition, or may return them, before acceptance, for like reasons; and in certain of the cases cited above this was, in fact, the situation, though the decision was not put upon that ground. Not all of these cases, however, can be so distinguished.

$ 818. The buyer in these cases is not obliged to rescind: he may do so, or he may retain the chattel and have

1 Bryant v. Isburgh (1859), 13 Gray, Boothby v. Scales (1871), 27 Wis. 607, 74 Am. Dec. 655; Smith v. Hale 626; Croninger v. Paige (1880), 48 Wis. (1893), 158 Mass. 178, 33 N. E. R. 493, 229. 35 Am. St. R. 485.

Illinois, on the strength of Spar2 Marston v. Knight (1849), 29 Me. ling v. Marks (1877), 86 Ill. 125, is 341. See also Marshall v. Perry (1877), sometimes included in this list; but 67 Me. 78.

that this is not the view in that State, 3 Franklin v. Long (1836), 7 Gill & see Kemp v. Freeman (1891), 42 Ill. J. (Md.) 407.

App. 500; Crabtree v. Kile (1859), 21 * Branson v. Turner (1883), 77 Mo. Ill. 180: Owens v. Sturges (1873), 67 489; Johnson v. Whitman Agl. Works Ill. 366. (1885), 20 Mo. App. 100.

In Louisiana, under the code, arti. 5 Thompson 5. Harvey (1888), 86 cle 2520, the sale may be avoided "on Ala. 519, 5 S. R. 825; Hodge v. Tufts account of some vice or defect in the (1895), 115 Ala. 366, 22 S. R. 422. thing sold, which renders it either

6 Rogers v. Hanson (1872), 35 Iowa, useless. or its use so inconvenient and 283; Upton Mfg. Co. v. Huiske (1886), imperfect that it must be supposed 69 Iowa, 557, 29 N. W. R. 621.

that the buyer would not have puri Weybrich v. Harris (1883), 31 Kan. chased it had he known of the vice.” 92; Gale Sulky-Harrow Mfg. Cn. v. Flash v. American Glucose Co. (1886), Stark (1891), 45 Kan. 606, 26 Pac. R. 38 La. Ann. 4. 8, 23 Am. St. R. 739.

9 See post, SS 1206 et se.

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his action for the damages. If he would exercise his option, he must do so with promptness after his discovery of the breach of warranty. He has a reasonable time, considering all of the circumstances, within which to test the chattel to ascertain whether it conforms to the warranty; but if it does not, he must promptly return or offer to return the article to the seller in rescission of the contract.1 " It will not excuse the failure to offer to return that the vendor lived at a distance from the vendee, or in another State, if his residence was known. A proposition to that effect, communicated through the medium of the postoffice, is equivalent to a personal offer to return, and secures to the vendee every benefit resulting from it.” A failure to so rescind will be deemed a waiver of the right. Whether he has acted with the requisite promptness, under the circumstances, is usually a question for the jury, though “cases may arise where, although an offer to return was made, the court must say, as a matter of law, it came too late.'

" 3

$ 819. —The buyer's duty here, as generally upon rescission, is to do what he reasonably may to put the parties as nearly as possible in statu quo. This ordinarily includes a restoration of the article purchased in as good condition as when received, and a failure to do this would usually prevent rescission; but this would not be true if the deterioration or injury arose from the exercise by the buyer of any of the rights wbich the contract gave him, as, for example, to test the goods." Especially could the seller not complain of any injury, happening without the buyer's fault, where that was the very event against which the seller had given the warranty.

1 Boothby v. Scales (1871), 27 Wis. • Upton Mfg. Co. v. Huiske (1886), 626; Upton Mfg. Co. v. Huiske (1886), 69 Iowa, 557, 29 N. W. R. 621. 69 Iowa, 557, 29 N. W. R. 621; First 5 See Head v. Tattersall, L R 7 Nat. Bank v. Larsen (1884), 60 Wis. Exch. 7. 206.

6 Thus in Smith v. Hale (1893), 158 2 Barrett v. Strenton, 2 Ala. 181, Mass. 178, 33 N. E. R. 493, 35 Am. St. R. quoted in Boothby v. Scales, supra. 485, where a wagon sold was war

3 Boothby v. Scales, supra; Gam- ranted to carry a certain weight, and mon v. Abrams (1881), 53 Wis. 323. it broke down under a less weight, it

$ 820. May be rescission for fraudulent warranty. But while the general rule does not permit rescission for mere breach of warranty unaccompanied by fraud, it is clear that if fraud were present the sale may be rescinded, as will be seen in a later chapter where the conditions and circumstances of rescission for fraud are fully discussed.”

$ 821. Contract may provide for rescission for mere breach of warranty.- So while, according to the general rule, the buyer may not rescind for mere breach of warranty, it is entirely competent for the parties to agree that if the article is not found to be as warranted the buyer may return it and rescind the contract; and contracts are very numerous which thus confer a right of rescission in more or less explicit terms, and subject often to carefully defined conditions. Where such a stipulation exists, the buyer, who complies with it, may rescind, even though the rule prevailing in his State might not otherwise permit it.

$ 822. Rescission for breach of warranty on sale of implements.— While, of course, not at all confined to cases of that sort, this provision for rescission in case of a breach of warranty presents itself most frequently, in modern times, in contracts for the sale of implements and machinery. These contracts are commonly made by the use of printed blanks, carefully prepared beforehand by the seller, and those used by different manufacturers and dealers are usually substantially alike. They exhibit, moreover, a constant evolution, the result of experiment and adjudication upon particular provisions. Careful attention to their terms is therefore usually indispensable.

was held that the fact that the wagon Ill. 202; Owens v. Sturges (1873), 67 was thus broken did not prevent a Ill. 366; Sparling v. Marks (1877), 86 return and rescission.

III. 125; Freyman v. Knecht (1875), Dawson v. Pennaman (1880), 65 78 Pa. St. 141; Nelson v. Martin (1884), Ga. 698; Matteson v. Holt (1873), -45 105 Pa. St. 229. Vt. 336; Gates v. Bliss (1871), 43 Vt. 2 See post, ch. VL 299; Frasure v. Zimmerly (1861), 25

§ 823. Form.— These contracts run through every variety of form, from the simple provision that if the article does not conform to the warranty it may be returned and another substituted in its place,'— which, of course, would not ordinarily justify rescission; and the alternative provision that if the article does not comply with the warranty it may be returned, when another one will be given in its place or the consideration refunded — which gives an option to the seller,to the positive one that, if the article does not conform to the warranty, it may be returned, when the notes or other payment will be refunded :— which clearly contemplates rescission of the whole contract; and the still more positive one that on such failure the article may be returned, "and the payment of money or note will be refunded, ending all further responsibility on the part of either party" __ which leaves no doubt as to the result.

$ 824. — Conditions.- These contracts further all provide, in varying forms, that the buyer shall give the article a fair test; that, if it appears not to satisfy the warranty, notice shall be given to the seller, and an opportunity given to send his representative to examine, test and repair it; that the buyer in such test shall render “necessary and friendly assistance;” and, often, that if the article is still deficient, it shall be returned without charge by the buyer to the seller at some specified place. The time when the notice to the seller sball be given and the period within which the test is to be made are also usually prescribed."

1 For example, see Hefner v. Haynes Pac. R. 417; Acker v. Kimmie (1887), (1894), 89 Iowa, 616, 57 N. W. R. 421; 37 Kan. 276, 15 Pac. R. 248; McCor. Davis v. Iverson (1894), 5 S. Dak. 295, mick Harvester Co. v. Brower (1893), 58 N. W. R. 796.

88 Iowa, 607, 55 N. W. R. 537. 2 This is very common; e. g., Davis' 4 For example: Sandwich Mfg. Co. Sons v. Robinson (1885), 67 Iowa, 355, v. Feary (1892), 34 Neb. 411, 51 N. W. 25 N. W. R. 280.

R. 1026. 3 For example: Champion Machine 5 See fuller discussions in chapter Co. v. Mann (1889), 42 Kan. 372, 22 on Acceptance by the Buyer.

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