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• Sell me that gray horse to ride,' and the other sells it, knowing that the buyer will not be able to ride it, that would not make him liable." If he said, “Sell me that gray horse if he is fit to ride," and the seller sold it knowing he was not fit, he would be liable.
It has been much discussed whether a bill of sale, describing the article sold, amounts to a warranty that the article conforms to the description. It seems now to be well settled that it does. In a recent Massachusetts case, there was a bill of sale as follows: *H. & Co. bought of T. W. & Co. two cases of indigo, $272." The article sold was not indigo, but principally Prussian blue. No fraud was imputed to the seller, and the article was so prepared as to deceive experienced and skilful dealers in indigo. The naked question was presented, whether the bill of sale con. stituted a warranty that the article sold was indigo. And the court held that it did. Here the warranty implied by the bill of sale was as to the kind of goods. In another case the bill was, “Sold E. T. H. 2,000 gallons prime quality winter oil.” The thing sold was oil, and winter oil; but not prime quality. And the Court held that the bill of sale amounted to a warranty that it was of that quality. In an English case, a vessel was advertised for sale as "copper fastened;" and that was held to be a warranty that she was so fastened according to the usual understanding of merchants.
One who sells provisions is always considered in law as warranting that they are good and wholesome.
(37.) Bill of Sale of Personal Property. Know all Men by these Presents, That I
(name of the seller) in the county of
for and in consideration of the sum of
in hand well and truly paid, at or before signing, sealing, and delivery of these presents, by (name of the buyer) the receipt whereof I the said do hereby acknowledge, have granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said
To Have and to Hold the said granted and bargained unto the said
heirs, executors, administrators, and assigns, only proper use, benefit, and behoof forever, and the said does vouch himself to be the true and lawful owner of the
goods and effects hereby sold, and to have in himself full power, good right and lawful authority to dispose of the said
in manner as aforesaid, and I do, for myself, my heirs, executors, and administrators, hereby covenant and agree to warrant and defend the said (the goods sold) unto the said
heirs, executors, and administrators, and assigns, against the lawful claims and demands of all persons whomsoever: In Witness Whereof, the said
have hereunto set hand and seal this
day of in the year of our Lord one thousand nine hundred and
Executed and Delivered in Presence of
(38.) Bill of Sale of Personal Property, with a Condition to make
it a Mortgage, with Power of Sale. Know all Men by these Presents, That in consideration of
the receipt whereof is hereby acknowledged, do hereby grant, sell, transfer, and deliver unto the said
the following goods and chattels, namely:
To Have and to Hold all and singular the said goods and chattels to the said
executors, administrators, and assigns to their own use and behoof forever. And
hereby covenant with the grantee that the lawful owner of the said goods and chattels; that they are free from all incumbrances,
that have good right to sell the same as aforesaid ; and that will warrant and defend the same against the lawful claims and demands of all persons. Provided Nevertheless, that if the grantor or
executore, administrators, or assigns shall pay unto the grantee
or, executors, administrators, or assigns, the sum of
in from this date, with interest semi-annually at the rate of per cent. per annum, and until such payment shall not waste or destroy the same, nor suffer them or any part thereof to be attached on mesne process; and shall not, except with the consent in writing of the grantee or
representa tives, attempt to sell or to remove from
the same or any part hereof, then this deed, as also
note of even date herewith, signed by the said
promise to pay to the grantee or order the said sum and interest at the times aforesaid, shall
be void. But upon any Default in the performance of the foregoing condition, the grantee yor
executors, administrators, or assigns, may sell the said goods and chattels by public auction, first giving day's notice tes writing of the time and place of sale to the grantor or representa
tives. And out of the money arising from such sale the grantee representatives shall be entitled to retain all sums then secured by this mortgage, whether then or thereafter payable, including all costs, charges, and expenses incurred or sustained by
them in relation to the said property, or to discharge any claims or liens of third persons affecting the same, rendering the surplus, if any, to the grantor or
executors, administrators, or assigns.
And it is Agreed, that the grantee , or executors, administrators, or assigns, or any person or persons in their behalf, may purchase at any sale made as aforesaid ; and that, until default in the performance of the condition of this deed, the grantor and executors, administrators, and assigns, may retain possession of the above-mortgaged property, and may use and enjoy the same. In Witness Whereof, the said
hereunto set hand and seal, this iso the year one thousand niae hundred and
Signed, Sealed, and Delivered in Presence of
THE SALE OF ONE'S BUSINESS.
Such sales are not unfrequent in this country ; and the seller always agrees and promises that he will not pursue that trade, business, or occupation again. There are numerous cases, both in English law-books and in our own, which have arisen from bargains of this kind. The law seems now to be settled, that such a contract is wholly void and inoperative, provided the seller agrees to give up his business and never resume it again, at any time or anywhere ; that is, without any limitation of space or time ; because it is against the public interest that a man should be permitted to cast himself out from his business or trade for the rest of his life. But the contract is good, if for a fair consideration the seller agrees not to resume or carry on that business within a certain time, or within certain limits. What these limits must be is not certain. The courts say they must be “reasonable," and made in good faith. A contract not to carry on a business in a certain town would undoubtedly be good. So, we should say, would be a bargain not to do so within a certain State. In one case in Massachu. setts, a contract not to use certain machines in any of the
United States except two (which were Massachusetts and Rhode Island) was held valid, all of the States but two being considered as a sufficiently defined or limited place; but this was unusual. The courts generally would sanction such a bargain, if it were limited to only a part of the United States; as to ali New England, for example.
In such a contract, it would be better for the parties to agree upon the amount which the seller should pay by way of damages, if he violated his bargain, because it might be very difficult to prove specific damages; and such a bargain, if it were reasonable, would be enforced by law.
Such damages, agreed on beforehand, are called liquidated damages. In all cases where damages are demanded, and are not agreed on, they are called unliquidated damages, and it is the duty of the jury to determine, from the evidence before them, what damages the injured party has suffered, and what amount would indemnify him.
STOPPAGE IN TRANSITU. HERE is an instance where a Latin phrase has become English, by general adoption and use. In transitu means “in the transit,” and the English phrase may just as well be used : but the Latin one is used much oftener. What the whole phrase Stoppage in transitu means, is this. A seller, who has sent goods to a buyer at a distance, and after sending them learns that the buyer is insolvent, may stop the goods at any ime before they reach the buyer. His right to do this is called the right of Stoppage in transitu.
If the goods are sent to pay a precedent and existing debt, they are not subject to this right.
The right exists only upon actual insolvency; but this need not be formal insolvency, or bankruptcy at law; an actual inability to pay one's debts in the usual way being enough. If the seller, in good faith, stops the goods, in a belief of the
buyer's insolvency, the buyer may at once defeat this stoppage, and reclaim the goods, by payment of the price. So he may, by a tender of adequate security, if the sale be on credit.
The stoppage must be effected by the seller, and evidenced by some act; but it is not necessary that he should take actual possession of the goods. If he gives a distinct notice to the party in possession, whether carrier, warehouseman, middleman, or whoever else, before the goods reach the buyer, this is enough. But a notice of stoppage in transitu, to be effectual, must be given either to the person who has the immediate custody of the goods; or if to the principal whose servant has the custody, then at such a time, and under such circumstances, as that he may, by the exercise of reasonable diligence, communicate it to his servant in time to prevent the delivery to the consignee.
Goods can be stopped only while in transitu; and they are in transitu only until they come into the possession of the buyer. But this possession need not be actual, a constructive possession by the buyer being sufficient to prevent this stoppage; as if the goods are placed on the wharf of the buyer, or on a neighboring wharf with notice to him, or in a warehouse with delivery of the key to him, or of an order on the warehouseman.
But the entry of the goods at the custom-house, without payment of duties, does not terminate the transit. If the buyer has demanded and marked them at the place where they had arrived on the termination of the voyage or journey, personally or by his agent; or if the carrier still holds the goods, but only as the agent of the buyer; in all these cases the transit is ended. But if the carrier holds them by a lien for his charges against the buyer, the seller may pay these charges and dischar the lien, and then stop the goods in transitu.
If the buyer has, in good faith and for value, sold the goods, “to arrive," before he has received them, and indorsed and delivered the bill of lading, this second purchaser holds the goods free from the first seller's right to stop them. But if the goods and bill are transferred only as security for a debt due from the first purchaser to the transferee, the original seller