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ranty, express or implied, upon a sale of personal property are within the same principle in this respect and require the ap plication of the same rule. To hold that a purchaser of personal property must become a wrong-doer by withholding it from the true owner, and compel him to resort to an action for its recovery, to entitle him to redress for a breach of warranty of title, would be absurd. Such a rule cannot be sup ported by reason or sound policy."1

§ 1797.

Warranty broken by incumbrances.-The warranty of title which the law implies is, as has been seen,* a warranty of the whole title and protects the purchaser against liens and incumbrances. The mere existence of such an incumbrance, therefore, constitutes a technical breach for which nominal damages may be recovered, and if the buyer has been dispossessed by it, or has removed it reasonably and in good faith, he may recover actual damage. If the incumbrance be permanent, a recovery to the extent of the actual injury may be had."

§ 1798. Evidence of eviction - Judgment - Costs of suit. Although, as has been seen, the purchaser is not bound to wait for an action at law against him, the fact that he has been compelled to yield to a paramount title may be shown in many cases by the judgment recovered against him. "If the purchaser, or any subsequent vendee, is sued in replevin or trover, or in any other action involving the question of title, if he gives notice to his vendor of the pendency of the action

1 To like effect: McGiffin v. Baird (1875), 62 N. Y. 329; Read v. Slaton (1816), 3 Hayw. (Tenn.) 159, 9 Am. Dec. 740.

2 Ante, § 1304.

3 Close v. Crossland (1891), 47 Minn. 500, 50 N. W. R. 694; Hall v. Aitkin (1889), 25 Neb. 360, 41 N. W. R. 192; Hickman v. Dill (1889), 39 Mo. App. 246; Dresser v. Ainsworth (1850), 9 Barb. (N. Y.) 619; Hodges v. Wilkinson (1892), 111 N. C. 56, 15 S. E. R.

941, 17 L. R. A. 545; Sargent v. Cur rier (1870), 49 N. H. 310, 6 Am. R. 524 4 Close v. Crossland, supra.

5 He must not of course pay an IDreasonable or unnecessary amount. Guthrie v. Russell (1877), 46 Iowa, 269, Mechem's Cases on Damages, 298.

6 Sargent v. Currier; Close v. Cross land and other cases, supra. 72 Sutherland on Damages, 326. 8 Ante, § 1796.

and its nature, the judgment is conclusive evidence against such vendor. If no notice is given, it is not conclusive on him, but he may show that the plaintiff, in a suit against him on his warranty, ought not to recover the amount he has paid, because the case was not properly defended, and judgment was suffered unnecessarily."1

In addition to his other damages, the buyer, who has given his vendor notice of the action to enforce the paramount title, and an opportunity to defend it, may recover not only the costs paid to the successful party, but also, usually, the necessary costs of his defense, including, it is held, his attorney's fees.*

c. Where Goods Defective in Kind, Quality or Condition.

§ 1799. In general,- The question of the remedies of the buyer where goods sold and delivered prove defective in kind, quality or condition presents a variety of aspects. There may have been no warranty; there may have been a warranty express or implied; the sale may have been induced by fraud; the vendee may have sought to protect himself by express stipulations as to his rights or remedies if the goods proved to be defective. A detailed examination of certain of these aspects is necessary.

1 Thurston v. Spratt (1863), 52 Me. 202 [citing French v. Parish, 14 N. H. 496; Duffield v. Scott, 3 D. & E. 210; Blasdale v. Babcock, 1 Johns. (N. Y.) 517; Weld v. Nichols, 17 Pick. 538; Kipp v. Bingham, 6 Johns. (N. Y.) 157]. Accord, where there was notice and opportunity to defend: Ryerson v. Chapman (1877), 66 Me. 557; Barney v. Dewey (1816), 13 Johns. (N. Y.) 224, 7 Am. Dec. 372; but not otherwise: Buchanan v. Kauffman (1885), 65 Tex. 235; Fallon v. Murray (1852), 16 Mo. 168; Clements v. Collins (1877), 59 Ga. 124; Salle v. Light (1843), 4 Ala. 700, 39 Am. Dec. 317.

Armstrong v. Percy (1830), 5 Wend. (N. Y.) 535; ante, § 1769.

3 Rowland v. Shelton (1854), 25 Ala. 217; Johnson v. Meyers (1863), 34 Mo. 255; Marlatt v. Clary (1859), 20 Ark. 251.

4 Balte v. Bedemiller (1900), Oreg. 60 Pac. R. 601. See also Harding v. Larkin (1866), 41 Ill. 413; Thurston v. Spratt (1863), 52 Me. 202; Ryerson v. Chapman (1877), 66 Me. 557; Allis v. Nininger (1879), 25 Minn. 525. Contra: Reggio v. Braggiotti (1851), 7 Cush. (Mass.) 166; Clark v. Mumford (1884), 62 Tex. 531.

§ 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.2

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.3

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.. 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.

4 Blacknall v. Rowland (1896), 118 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

ranty, the buyer may return them
and rescind; and if the seller refuses
to receive them the buyer must take
measures to avoid unnecessary loss;
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.

ingly accept a part only and become liable for that part; 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.1

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,

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. Curf-
man (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.

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 Ill. 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.

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.

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.

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

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