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an action was brought on a warranty that certain goods were fit for the China market. The plaintiff produced a letter from the defendant, saying that he had goods fit for the China market, which he offered to sell cheap. But the court held that such a letter was not a warranty, but merely an invitation to trade, it not having any specific reference to the goods actually bought by the plaintiff.

If these declarations are intended to deceive, and have that effect, they may avoid the sale for fraud. And affirmations of quantity or quality, which are made pending the negotiations for sale with a view to procure a sale, and have that effect, will be regarded as a warranty ; thus, in New York, it was held that a representation made by a vendor, upon a sale of flour in barrels, that it was in quality superfine or extra-superfine, and worth a shilling a barrel more than common, coupled with the assurance to the buyer's agent that he might rely upon such representation, was a warranty of the quality of the flour. So in England, where upon the sale of a horse the vendor said to the vendee,“ You may depend upon it, the horse is perfectly quiet and free from vice;" this was held to amount to an express warranty that he was quiet and free from vice.

Goods sold by sample are warranted by such sale to conform to the sample; but there is no warranty that the sample is what it appears to be. Thus, in England, there was a sale of five bags of hops, with express warranty that the bulk answered the samples by which they were sold. The sale was in January; at that time the samples fairly answered to the commodity sold, and no defect was at that time perceptible to the buyer. In July following, every bag was found to have become unmerchantable and spoiled, by heating, caused probably by the hops having been fraudulently watered by the grower, or some other person, before they were purchased by the defendant. The seller knew nothing of this fact at the time of sale, and the samples were as much damped as the rest; and it was then impossible to detect it. It was held by the court that there was here no implied warranty that the bulk of the commodity was merchantable at the time of sale, although a merchantable price was given.

A breach of warranty does not always authorize the buyer to return the article sold, unless there be an agreement to that effect, or fraud ; but only to sue on the warranty, and recover damages for the breach of it. But if one orders a thing for a special purpose known to the seller, he may certainly return it if it be unfit for that purpose, if he does so as soon as he ascertains its unfitness.

The seller of goods actually in his possession as owner is held to warrant his own title by the fact of the sale. But if the property be not in the possession of the vendor, and there be no assertion or ownership by him, no implied warranty of title arises.

If a thing is ordered for a special purpose, and is supplied, there is an implied warranty that it is fit for that purpose. In une case, the defendant was a dealer in ropes, and represented himself to be a manufacturer of the article. The buyer, a winemerchant, applied to him for a crane-rope. The seller's foreman went to the buyer's premises, in order to ascertain the dimen. sions and kind of rope required. He examined the crane and the old rope, and took the necessary admeasurements, and was told that the new rope was wanted for the purpose of raising pipes of wine out of the cellar, and letting them down into the street; when he informed the buyer that a rope must be made on purpose. The seller did not make the rope himself, but sent the order to his manufacturer, who employed a third person to make it. It was held that, as between the parties to the sale, there was an implied warranty that the rope was a fit and proper one for the purpose for which it was ordered. And the seller was held responsible, not only for the rope, which broke, but for a pipe of wine which was thereby lost.

This principle must not be applied to those cases where an ascertained article is purchased, although it be intended for a special purpose. For if the thing itself is specifically selected and purchased, the purchaser takes upon himself the risk of its effecting its purpose. This is illustrated in an English case thus : “If a man says to another, “Sell me a horse fit to carry me,' and the other sells a horse which he knows to be unfit to ride, he will be liable for the

consequences; but if a man says,

• 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

(nome 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 (nome 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 anto the said

heirs, executors, administrators, and assigns, to

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

paid by

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

and executors, administrators, and assigna 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 ab incumbrances,


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

executors, 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

representatives, 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

executors, administrators, or assigns, may sell the said goods and chattels by public auction, first giving

day's notice in writing of the time and place of sale to the grantor or representa



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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

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 in the year one thousand nine hundred and

day of

Signed, Sealed, and Delivered in Presence of



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

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