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in England, than that in sales of personal property, in the absence of express warranty, where the buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the article he sells, the maxim of caveat emptor applies. Such a rule, requiring the purchaser to take care of his own interest, has been found best adapted to the wants of trade in the business transactions of life. And there is no hardship in it, because, if the purchaser distrusts his judgment, he can require of the seller a warranty.”

$ $ 834, — How in sales of patents.- This question has arisen frequently in actions brought to recover upon notes or other obligations given upon the sale or assignment of patents for inventions which have subsequently proven to be of little or no value. In such cases it is well settled that if the patent prove to be void, either because the alleged invention was not new or was not useful or because of defects in the issue of the patent, the note or other promise to pay is without consideration, and the money, if paid, can be recovered,' or, if not paid, no action can be maintained, even though the seller acted in good faith and both parties supposed the patent to be valid.?

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1 Sandage v. Studabaker Bros. Mfg. this sense, it is patentable, and the Co. (1895), 142 Ind. 148, 41 N. E. R. 380, degree of its utility or practical value 51 Am. St. R. 165.

does not affect the validity of the 2 In Nash v. Lull(1869), 102 Mass. 60, patent; if it is not useful, a patent 3 Am. R. 435, Gray, J., said: Letters for it is void. Lowell v. Lewis, 1 patent of the United States can be Mason, 185, 186; Bedford v. Hunt, id. lawfully granted only for new and 303, 304; Kneass v. Schuylkill Bank, useful inventions; and are but prima 4 Wash. C. C. 12; Langdon v. De facie evidence of the novelty and Groot, 1 Paine, 203; Roberts v. Ward, utility of the invention described. 4 McLean, 565. In a suit brought on U. S. Stat. 1837, ch. 45; Corning v. a promissory note, the only considerBurden, 15 How.(U. S.) 270, 271. All ation for which is the assignment that is required to make an inven- of an interest in or right under a tion useful, under the patent laws, patent, the question of consideration is that it should be capable of being depends upon the validity of the applied to some practical and bene- patent; if the patent is void, the note ficial purpose, and not to be frivolous is of course without consideration; or injurious to the well being or but if it is valid, the court will not morals of society. If it is useful in inquire into the adequacy of the con


But if the patent is valid there may be a recovery notwithstanding the invention proves to be of little value, for the court will not inquire into the adequacy of the consideration.

This rule is based, not upon the ground of implied warranty of validity - for it is held that no such warranty is implied,

but upon the ground of a failure of the consideration.

§ 835. How in sales of commercial instruments. The same kind of question is sometimes raised in actions upon promises to pay for notes, bonds, scrip and other commercial paper which has proven not to be genuine. There is here a failure of consideration which will constitute a defense;: but the law sideration. The issue in such a case (Tenn.) 418; Myers v. Turner (1855), is, therefore, the same as in a suit in 17 Ill. 179, and other cases supra. the courts of the United States for An English patent, if regular in the infringement of a patent, the form and in existence as a document, validity of which is denied by the is, by force of the English decisions defendant; and so it has been re- (see Hall v. Conder, 2 C. B. (N. S.) 22, peatedly adjudged in this and other 53; Noton v. Brooks, 7 Hurl. & N. 499; courts. Bliss v. Negus, 8 Mass. 46; Trotman v. Wood, 16 C. B. (N. S.) 479; Dickinson v. Hall, 14 Pick. 217, 25 Adie v. Clark, L. R. 3 Ch. Div. 134; Am. Dec. 390; Bierce v. Stocking, 11 Lawes v. Purser, 6 El. & Bl. 930; Gray, 174; Lester v. Palmer, 4 Allen, Smith v. Neale, 2 C. B. (N. S.) 67; Bow145; Dunbar v. Marden, 13 N. H. 311; man v. Taylor, 2 Ad. & El. 278; Hills Cross v. Huntly, 13 Wend. (N. Y.)385; v. Laming, 9 Exch. 256; Wiles v. Geiger v. Cook, 3 W. & S. (Pa.) 266; Woodward, 5 id. 557; Cutler v. Bower, McClure v. Jeffrey, 8 Ind. 79; Myers 11 Ad. & El. (N. S.) 973), sufficient con. v. Turner, 17 Ill. 179; Jolliffe v. Col- sideration to support a promissory lins, 21 Mo. 338.” Clough v. Patrick, note made in Massachusetts, even 37 Vt. 421, was distinguished, and though the patent is in fact invalid Elmer v. Pennel, 40 Me. 430, was for want of novelty, and notwith. denied. To the like effect, that a standing the fact that under the promise to pay for a void patent is Massachusetts decisions a note given without consideration, see Harlow for an invalid United States patent v. Putnam (1878), 124 Mass. 553; Jack- is without consideration. Chemical son v. Allen, 120 Mass. 64; Shepherd Electric Co. v. Howard (1889), 148 v. Jenkins (1881), 73 Mo. 510; Cowan Mass. 352, 2 L. R. A. 168, 20 N. E. R. 92. v. Dodd (1866), 3 Coldw. (Tenn.) 278; 2 Hiatt v. Twomey (1836), 1 Dev. & Bellas v. Hays (1819), 5 S. & R. (Pa.) Bat. (N. C.) Eq. 315; 3 Robinson on 427, 9 Am. Dec. 385; Keith v. Hobbs Patents, SS 1230–1239, where this sub(1878), 69 Mo. 84; Rowe v. Blanchard ject is more fully discussed. (1864), 18 Wis. 441; National Bank v. 3 Wood v. Sheldon (1880), 42 N. J. L Peck (1871), 8 Kan. 660. See also Mc- 421, 36 Am. R. 523; Thrall v. Newell Kee v. Eaton (1881), 26 Kan. 226. (1847), 13 Vt. 202, 47 Am. Dec, 682; 1 Green v. Stuart (1874), 7 Baxt. Aldrich v. Jackson (1858), 5 R. I. 218.

also implies a warranty in such cases, and the subject is reserved for fuller consideration when the subject of implied warranties is reached.

$ 836. How on sale of goods to which seller had no title.A similar question arises also where the purchaser has been divested of the goods by a title superior to that of his vendor, or where the goods have been taken from him as the goods of the vendor upon some claim or process to which the attempted sale must have been subject. Here also is an unquestionable failure of consideration, which will defeat a recovery. There is also, usually, as will be seen, an implied warranty of title, and the whole question will be considered later.3

$ 837. How in case goods sold conditionally are retaken by the seller.The defense of a failure of consideration has likewise been interposed in actions brought upon promises to pay for goods which have been delivered upon a contract of purchase or a conditional sale, and which have been subsequently retaken by the vendor. In such cases it has been held by some courts that, upon such retaking, the promise to pay for the goods fails, and that therefore no recovery can be bad." The true defense, however, is undoubtedly that considered in an earlier action, namely, that the retaking must have been a rescission of the contract which releases both parties.”



§ 838. Buyer may have action to recover price paid with. out consideration. The objection of a want or failure of conCompare Christy v. Sullivan (1875), 3 See post, $ 1300. 50 Cal. 337, 19 Am. R. 655.

4 Minneapolis Harvester Works v. 1 See post, § 1332.

Hally (1881), 27 Minn. 495, 8 N. W. R. 2 Matheny v. Mason (1881), 73 Mo. 597 (but see, as to this, Aultman v. 677, 39 Am. R. 541; Bailey v. Foster Olson, 43 Minn. 409, 45 N. W. R. 852); (1829), 9 Pick. (Mass.) 139; Dyer v. Howe Machine Co. v. Willie (1877), Homer (1839), 22 Pick. (Mass.) 253; 85 III. 333. See also ante, & 620, where Hunt v. Sackett (1875), 31 Mich. 18; the cases are more fully collected. Costigan v. Hawkins (1867), 22 Wis. 5 See ante, 8 617. 74; Marshall v. Duke (1875), 51 Ind. 62.

sideration may also — to anticipate somewhat matters more fully considered in a later chapter — furnish the foundation for an action by the buyer to recover the price paid. Thus, for example, if the buyer has paid the price, but the title has failed and he has been divested by the true owner;' or if he has paid for a patent which proves to be invalid;? or if he has paid for commercial instruments, such as notes, bonds, scrip, and the like, which prove not to be genuine, — in these and the like cases he may recover his money as paid without consideration.

$ 839. — So, if the buyer has paid the price in advance, but has never received the goods at all;4 or has rejected them wholly, as he had the right to do because they were not such as the contract contemplated;s or if they were not as agreed, but entirely worthless; 6 or if the agreed article has not been delivered, but another substituted for it, and the latter has been returned,? — in these and similar cases there is a total failure of consideration, and the buyer may recover his money. He may likewise do so pro tanto where he has paid for more than he has received.8

1 Eicholtz v. Bannister (1864), 17 6 Petersen v. Door, Sash & Lumber Com. B. (N. S.) 708; Ledwich v. Mc- Co. (1883), 51 Mich. 86, 16 N. W. R. Kim (1873), 53 N. Y. 307; Wilkinson 243; Ripley v. Case (1889), 78 Mich. v. Ferree (1855), 24 Pa. St. 190. 126, 43 N. W. R. 1097, 18 Am. St. R.

2 Darst v. Brockway (1842), 11 Ohio, 428. 462.

The consideration fails entirely 3 Frank v. Lanier (1883), 91 N. Y. where the seller of trees agrees to 112; Wood v. Sheldon (1880), 42 N. J. set them out and care for them, but L. 421, 36 Am. R. 523; Thompson v. neglects to do so, whereby they beMcCullough (1860), 31 Mo. 224,77 Am. come totally worthless. Perkins v. Dec. 644; Gurney v. Womersley (1834), Brown (1897), 115 Mich. 41, 72 N. W. 4 El & Bl. 133, 82 Eng. Com. L. 132; R. 1095. Paul v. Kenosha (1867), 22 Wis. 256, 7 Howe Machine Co. v. Willie (1877), 94 Am. Dec. 598; Terry v. Bissell 85 Ill. 333. (1857), 26 Conn. 23.

8 Devaux v. Conolly (1849), 8 C. B. 4 Nash v. Towne (1866), 72 U. S. 640, 65 Eng. Com. L. 639; Wheadon v. (5 Wall.) 689; Dalton V. Bentley Olds (1838), 20 Wend. (N. Y.) 174; Hill (1854), 15 Ill. 420; Cleveland v. Ster- v. Rewee (1846), 11 Metc. (Mass.) 268; rett (1871), 70 Pa. St. 204.

Devine v. Edwards (1877), 87 Ill. 177; 5 Pope v. Allis (1885), 115 U. S. 363; (1881) 101 Ill. 138. Meader v. Cornell (1895), 58 N. J. L. 375, 33 Atl. R. 960.

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8 840. Purpose of this chapter.

$ 818.

3. Mistake of buyer as 841. Kinds of mistake involved.

to quality promised, seller 842. Mistake which would prevent

not knowing of that misformation will justify avoid


849, 850. 4. Mistake of one 843, 844. Mistake as to quality of

party as to quality promised thing sold.

by the other known to the 845, 846. 1. Mistake of buyer

latter. as to quality, seller being 851, 852. Further as to mistake of ignorant of that mistake.

847. 2. Mistake of buyer as 853. Same rule in equity.

to quality, seller knowing 854. Effect of the mistake.
of that mistake.

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§ 840. Purpose of this chapter.- In a preceding chapter there has been given quite a full consideration of the question of the mistakes which will prevent the creation of the contract in the first instance, but some reference to the same general subject seems desirable in this place as furnishing another of the grounds which will justify the avoidance of the assumed contract.

$ 841. Kinds of mistake involved.- As seen in the previous discussion, the kinds of mistake which most frequently affect the formation of the contract are: mistake as to the nature of the transaction, mistake as to the identity of the parties, mistake regarding the existence, identity, quantity, kind, quality, character or location of the thing sold, mistake respecting the terms of the contract, and mistake as to the possibility of performance.

$ 842. Mistake which would prevent formation will jus. tify a voidance of contract.-It must in general be true that

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I See ante. SS 265-279.

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