Lapas attēli
PDF
ePub

This principle applies to sheriffs," constables,22 United States

neither undertakes for the goodness, quality or title of the property he sells, nor for the genuineness, value or title of an instrument he assigns." Terry v. Bissell, 26 Conn. 23, 36 (administrator). To the same effect are Dow v. Lewis, 70 Mass. (4 Gray) 468; Mockbee v. Gardner, 2 H. & G. (Md.) 176; Ricks v. Dillahunty, 8 Port. (Ala.) 133; Bree v. Holbeck, Doug. 654.

Such an official, fiduciary or agent, however, may bind himself personally by an express warranty of title. Johnson v. Barker, 20 U. C. C. P. 228.

An agent sold a chattel mortgage and stated that it was good; and if not, the vendee would get his money back; the goods did not belong to the mortgagor. Held, that the vendee could recover, and prove the warranty by parol. Akberg v. Kress Brewing Co., 65 Hun (N. Y.), 182. Affirmed in 138 N. Y. 648.

21. Lang's Heirs v. Waring, 25 Ala. 625; Bassett v. Lockard, 60 Ill. 165; Neal v. Gillaspy, 56 Ind. 451.

A sale by a sheriff does not imply a warranty of title. Ex p. Villars (1874), L. R. 9 Ch. App. 434, 437.

A sheriff is liable in tort for fraud if he knows he has no title. Peto v. Blaydes (1814), 5 Taunt. 657.

A sale at the post by an officer under color of process of property exempt from execution, does not divest the owner of his title to the property, or convey a good title to the purchaser, because the taking and sale are illegal. Williams v. Miller, 16 Conn. 146, 147.

A sale on execution of goods which are exempt from judgment, after notice that the owner claims them as exempt, will pass no title to the purchaser. Williams v. Miller, 16 Conn. 146 (tools of trade); Carruth V. Grassie, 77 Mass. (11 Gray) 211; Pomeroy v. Trimper, 90 Mass. (8 Allen) 398; Johnson v. Babcock, 90 Mass. (8 Allen) 583 (heifer).

The sale of goods by a sheriff under execution implies no warranty of title, the sheriff sells not the goods, but the right, title and interest which he has acquired. Chapman v. Speller (1850), 14 Q. B. 621; Bagueley v. Hawley (1867), L. R. 2 C. P. 625.

22. Robinson v. Cooper, 1 Hill (S. C.) 286.

23. "But in judicial sales the proceedings are, altogether, hostile to the owner of the goods sold, which are taken against his will, and exposed to sale without his consent. And it would be great injustice to make him responsible for the quality of the goods thus taken from him. Nor can the marshall, or auctioneer, while acting within the scope of their authority, be considered, in any respect whatever as warranting the property sold. The marshall, from the nature of the transaction, must be ignorant of the particular state and condition of the property. He is the mere minister of the law, to execute the order of the court; and a due discharge of his duty does not require more than that he should give to purchasers a fair opportunity of examining and informing themselves of the nature and condition of the property offered for sale. An auctioneer, in the ordinary discharge of his duty, is only an agent to sell; and in the present case he acted only as the special agent of the marshall, without any authority, express or implied, to go beyond the single act of selling the goods. And the marshall, as an officer to execute the orders of the court, has no authority in his official character, to do any act that shall, expressly or impliedly, bind anyone by warranty. If he steps out of his official duty, and does what the law has given him no authority to do, he may make himself personally responsible, and the injured party must look to him for redress." The Monte Allegre, 22 U. S. (9 Wheat.) 616, 644, 645.

marshals,23 administrators and executors," guardians,25 trustees in bankruptcy,26 mortgagees," and auctioneers.28

Section 14. Implied Warranty in Sale by Description.-Where there is a contract to sell or a sale of goods by description, there is an implied warranty that the goods shall correspond with the description, and if the contract or sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.

In England the delivery of goods corresponding in kind and quality with the description under which they were sold, is held to be compliance with an essential term of the contract, which is a condition precedent to the buyer's duty and liability to accept the goods and pay the price.1

24. Worthy v. Johnson, 8 Ga. 236; Brandon v. Brown, 106 Ill. 519; Sparks v. Messick, 65 N. C. 440.

25. Storm v. Smith, 43 Miss. 497. 26. Johnson v. Laybourne, 56 Minn. 332.

27. Harris v. Lynn, 25 Kans. 281; Cohn v. Ammidown, 120 N. Y. 398.

The mortgagee with power of sale, sold the mortgaged property upon default. Held, that no warranty of title to a certain engine claimed by the mortgagor was implied by the evidence. Sheppard v. Earles, 13 Hun (N. Y.), 651; Cohn v. Ammidown, 120 N. Y. 398.

28. "Sales at auction, in the usual mode, are never understood to be accompanied by a warranty. Auction

eers

are special agents, and have only authority to sell, and not to warrant, unless specially instructed so to do. . . In sales of this description particularly, and generally in all judicial sales, the rule caveat emptor must necessarily apply, from the nature of the transaction; there being no one to whom recourse can be had for indemnity against any loss which may be sustained." The Monte Allegre, 22 U. S. (9 Wheat.) 616, 647.

Where an auctioneer receives prop

erty and sells it, without the consent of the owner, and pays over the proceeds less his commissions, he is liable in trover to the real owner, although he has no knowledge of want of title in the party for whom he sells and acts in good faith. Kearney v. Clutton, 101 Mich. 106. Citing Koch v. Branch, 44 Mo. App. 542; Hollins v. Fowler (1875), L. R. 7 H. of L. 757. Contra: Rogers v. Huie, 2 Cal. 571; Frizzell v. Rundle, 88 Tenn. 396. To the same effect are Robinson v. Bird, 158 Mass. 357; Coles v. Clark, 57 Mass. (3 Cush.) 399; Hoffman v. Carow, 20 Wend. (N. Y.) 21; Cochrane v. Rymill, 40 L. T. (N. S.) 744.

"On a sale by a pawnbroker at public auction of goods pledged to him in the way of business, there was no implied warranty of absolute title, the undertaking of the vendor being only that the subject of the sale was a pledge, and irredeemable by the pledgor." Gould v. Bourgeois, 51 N. J. L. 361, 374. Citing Morley v. Attenborough (1849), 3 Exch, 500.

1. Wolcott, Johnson & Co. v. Mount, 36 N. J. L. (7 Vroom) 262, 265; Nichol v. Godts, 10 Exch. 191; Shand v. Bowes, 2 App. Cas. 455, 480; Shepherd v. Kain, 5 B. & Ald, 240;

The same undertaking of the vendor which constitutes a condition precedent before acceptance by the vendee, constitutes an implied warranty after acceptance.2 Acceptance does not waive the non-compliance with the terms of the contract.

The vendee has merely elected to secure damages for imperfect performance instead of repudiating the contract."

In America the vendee may generally rescind the contract for breach of warranty as well as for breach of condition, so that there is but slight difference in the remedies between the two countries.5

Taylor v. Bullen, 5 Exch. 779; Allen v. Lake, 18 Q. B. D. 560; Wieler v. Schilizzi, 17 C. B. 619; Josling v. Kingsford (1863), 13 C. B. (N. S.) 446, 32 L. J. C. P. 94; Mody v. Gregson (1868), L. R. 4 Exch. 49, 56; Borrowman v. Drayton (1876), 2 Ex. D. 15 C. A.; Randall v. Newson (1877), 2 Q. B. D. 102, 109 C. A.; Bannerman v. White (1861), 10 C. B. (N. S.) 844; 2 Mechem on Sales, § 1333; Benjamin on Sales, § 600.

This principle is retained in the English Sale of Goods act, § 13. Varley v. Whip (1900), 1 Q. B. 513; Vigers v. Sanderson (1901), 6 Com. Cas. 99.

"The term 'sale of goods by description,' must apply to all cases where the purchaser has not seen the goods, but is relying on the description alone." Varley v. Whip (1900), 1 Q. B. 513, 516.

"If a man offers to buy peas of another and he sends him beans, he does not perform his contract, but that is not a warranty. There is no warranty that he should sell him beans. The contract is to sell him peas, and if he sell him anything else in their stead, it is a non-performance of it." Chanter v. Hopkins, 4 M. & W. 399.

2. 2 Mechem on Sales, § 1334.

"It has been held that statements descriptive of the subject matter, if intended as a substantive part of the contract, will be regarded in the first instance as conditions, on the failure of which the other party may repu

diate in toto by a refusal to accept or a return of the article, if that be practicable, or if part of the consideration has been received, and rescission therefore has become impossible, such representations change their character as conditions and become warranties, for the breach of which an action will lie to recover damages." Wolcott, Johnson & Co. v. Mount, 36 N. J. L. (7 Vroom) 262, 265. Citing Behn v. Burness, 3 B. & S. 751, 755.

"Strictly speaking, the conditions do not become warranties, but the sale having become consummated, the same facts which before constituted conditions precedent, now constitute warranties." Morse v. Union Stock Yards, 21 Ore. 289, 14 L. R. A. 157.

"When an executory contract is made for the sale of a described article, the correspondence between which and the description cannot be ascertained until after acceptance, words which before are words of description may be found to operate as a warranty after the goods are accepted and the sale is complete." Edgar v. Breck & Sons Co., 172 Mass. 581. Citing Shaw v. Smith, 45 Kans. 334, 336; Henshaw v. Robins, 50 Mass (9 Met.) 83; White v. Miller, 71 N. Y. 118, 129.

3. See sec. 49. 4. See sec. 49.

5. Peckham v. Davis, 93 Ala. 474; 2 Mechem on Sales, § 1334; Benjamin on Sales, p. 677.

In America the implied undertaking that in the sale of goods by description the goods delivered shall correspond in kind and quality with the description, is generally treated as an implied warranty. This warranty of correspondence with the description exists with reference to both latent' and patent defects.3

6. Bagley v. Rolling Mill Co., 21 Fed. 159; Walker v. Gouch, 48 Fed. 656; Gachet v. Warren, 72 Ala. 288; Flint v. Lyon, 4 Cal. 17; Miller v. Moore, 83 Ga. 684, 6 L. R. A. 374; Foos v. Sabin, 84 Ill, 564; Morris v. Wibaux, 159 Ill. 627; Peoria Grape Sugar Co. v. Turvey, 175 Ill. 631; Webster Marble Co. v. Dryden, 90 Ia. 37; Kingsbury v. Taylor, 29 Me. 508; Morse v. Moore, 83 Me. 433, 473; Columbian Iron Works v. Douglass, 84 Md. 44, 33 L. R. A. 103; Hastings v. Lovering, 19 Mass. (2 Pick.) 214; Hogins v. Plympton, 28 Mass. (11 Pick.) 97; Winsor v. Lombard, 35 Mass. (18 Pick.) 57; Gardner v. Lane, 91 Mass. (9 Allen) 492, 94 Mass. (12 Allen) 39, 98 Mass. 317; Gossler v. Eagle Refinery, 103 Mass. 331; Edgar v. Breck & Sons Co., 172 Mass. 581; Day v. Mapes-Reeves Construction Co., 174 Mass. 412; Whittaker v. McCormick, 6 Mo. App. 114; Catchings v. Hacke, 15 Mo. App. 51; Gregg v. Page Belting Co., 69 N. H. 247; Bach v. Levy, 18 J. & S. (N. Y.) 519, 101 N. Y. 511; Van Wyck v. Allen, 69 N. Y. 61; Hawkins v. Pemberton, 51 N. Y. 198; Dounce v. Dow, 64 N. Y. 411; Lewis v. Rountree, 78 N. C. 323, 79 N. C. 823; North Western Cordage Co. v. Rice, 5 N. D. 432; Morse v. Union Stock Yards, 21 Ore. 289, 14 L. R. A. 157; Borrekins v. Bevin, 3 Rawl. (Pa.) 23; Holt v. Pie, 120 Pa. St. 425; Groetzinger v. Kann, 165 Pa. St. 578; Holloway v. Jacoby, 120 Pa. St. 583; Ober v. Blalock, 40 S. C. 31; Jones v. George, 61 Tex. 345; Drew v. Edmonds, 60 Vt. 401, 411; Hoffman v. Dixon, 105 Wis. 315; 2 Mechem on Sales, § 1334; Benjamin on Sales, §§ 601, 604; 1 Page on Contracts, § 164; Seixas v. Woods, 2 Caines (N. Y.), 48; Swett v. Col

[blocks in formation]

In the sale of commercial paper there is an implied warranty of genuineness. See Benjamin on Sales, pp. 679, 680, and cases cited.

"Where there is an executory contract for the sale of goods warranted to be of a particular quality or description, they must conform to the warranty or the vendee is not bound to receive or accept them." Merriman v. Chapman, 32 Conn. 146, 148. Citing Wright v. Barnes, 14 Conn. 518. See, also, Terry v. Bissell, 26 Conn. 23, 32.

In the sale of instruments, the thing shall correspond in kind and description with what it purports to be, and is sold as being at the time of the sale. Terry v. Bissell, 26 Conn. 23, 32. Citing Hogins v. Plympton, 28 Mass. (11 Pick.) 97, 99; Cabot Bank v. Morton, 70 Mass. (4 Gray) 156; Gompertz v. Bartlett, El. & Bl. 849; Jones v. Ryde, 5 Taunt. 488; Bridge v. Wain, 1 Stark 504; Fuller v. Smith, 1 Ry. & Moo. 49; Gardiner v. Gray, 4 Camp. 144; Cripps v. Reade, 6 T. R. 606.

"A verbal representation by the seller of an article, or a description of it in a bill of sale, is a warranty that the article is of the kind and description which it is represented to be." Terry v. Bissell, 26 Conn. 23, 40. Citing Cabot Bank v. Morton, 70 Mass. (4 Gray) 156; Barr v. Gibson,

The description may be oral or written, as in circulars, adver

3 M. & W. 390; Gardiner v. Gray, Camp. 144.

4

In the sale of goods by description there is an implied warranty that the goods delivered will correspond with the description. "The right to repudiate the purchase for the non-conformity of the article delivered, to the description under which it was sold, That right is universally conceded.

is founded on the engagement of the vendor, by such description, that the article delivered shall correspond with the description. The obligation Substantirests upon the contract.

ally, the description is warranted. It will comport with sound legal principles to treat such engagements as conditions in order to afford the purchaser a more enlarged remedy, by rescission, than he would have on a simple warranty; but when his situation has been changed, and the remedy, by repudiation, has become impossible, no reason supported by principle can be adduced, why he should not have upon his contract such redress as is practicable under the cir cumstances. In that situation of affairs, the only available means of redress is by an action for damages. Whether the action shall be technically considered an action on a warranty, or an action for the non-performance of a contract, is entirely immaterial." Wolcott, Johnson & Co., v. Mount, 36 N. J. L. (7 Vroom) 262, 266, 267. Approved in Ivans v. Laury, 67 N. J. L. (38 Vroom) 153, 158.

as

"Both in England and in the United States the doctrine is universally recognized that where commercial paper is sold without endorsement, or without express sumption of liability on the paper itself, the contract of sale and the obligations which arise from it, as between vendor and vendee, are gov erned by the common law relating to the sale of goods and chattels,

The undoubted rule is that in such a sale the obligation of the vendor is not restricted to the mere question of forgery vel non, but depends upon whether he has delivered that which he has contracted to sell, this rule being designated, in England, as a condition of the principal contract, as to the essence and substance of the thing agreed to be sold, and in this country being generally termed an implied warranty of identity of the thing sold." Meyer v. Richards, 163 U. S. 385, 405.

"The general rule is familiar and admitted that a sale of goods of a particular description imports a warranty that the goods are of that de149 Gould V. Stein, scription." Mass. 570, 574, 5 L. R. A. 213. Citing Osgood v. Lewis, 2 H. & G. (Md.) 492, 495; Henshaw v. Robins, 50 Mass. (9 Met.) 83; Harrington v. White v. MilSmith, 138 Mass. 92; ler, 71 N. Y. 118; Randall v. Newson, 2 Q. B. D. 102; Jones v. Just, L. R. 3 Q. B. 197; Joslin v. Kingsford, 13 C. B. N. S. 446, 447; Bowes v. Shand, 2 App. Cas. 455.

7. Atkins v. Cobb, 56 Ga. 86; Miller v. Moore, 83 Ga. 684, 6 L. R. A. 374; Meickley v. Parsons, 66 Ia. 63; Gould v. Stein, 149 Mass. 570, 5 L. R. A. 213; Edgar v. Breck & Sons Co., 172 Mass. 581; Jones v. George, 61 Tex. 345.

8. Polhemus v. Heiman, 45 Cal. 573; Hege v. Newsome, 96 Ind. 426; Morse v. Moore, 83 Me. 473, 13 L. R. A. 224; Fairbank Canning Co. v. Metzger, 118 N. Y. 260; Zabriskie v. Central Railroad Co., 131 N. Y. 72; Lewis v. Rountree, 78 N. C. 323; Huyett & Smith Mfg. Co. v. Gray, 124 N. C. 322, 323; Northwest Cordage Co. v. Rice, 5 N. Dak. 432; Dayton v. Hooglung, 39 Ohio St. 671; Holloway v. Jacoby, 120 Pa. St. 583; Best v. Flint, 58 Vt. 543.

"The plaintiffs were not bound to exercise their skill, having a

war

« iepriekšējāTurpināt »