is not necessarily conclusive, and, unless it is clear from the circumstances that the buyer intended to waive the defects, the former condition "survives," as it is said, as an implied warranty, which, while not justifying rescission, will sustain a claim for the damages which the buyer has sustained by reason of the defect.1

The weight of authority, as will be seen, seems to be with the latter view.

1 See these cases fully set forth in § 1392, post.

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§ 1221. Purpose of this chapter. It is the duty of the seller not only to perform his chief undertakings to transfer the title and to comply with the conditions upon which the contract is based, but also to perform whatever incidental or collateral undertakings are incident to that principal one. The most important of these collateral undertakings is the agreement of warranty. Taken together, this principal and this

collateral undertaking constitute the contract between the parties. The contract therefore contains two stipulations: 1. The agreement to transfer the title. 2. The collateral but annexed agreement of warranty. The performance of the former stipulation has already been considered; the latter forms the subject of this chapter.

Under this head there will be a treatment

I. Of warranties in general.

II. Of express warranties.

III. Of implied warranties.

I.

OF WARRANTY IN GENERAL.

§ 1222. Warranty defined.- Warranty is an express or implied agreement, collateral but annexed to the agreement to transfer the title, by which the seller undertakes to vouch for the title, quality or condition of the thing sold. Like the agreement to sell, the agreement to warrant may be either executory or executed, and in connection with that contract may assume any of the following forms: 1. I will (hereafter) sell, and I will (hereafter) warrant. 2. I will (hereafter) sell, and I do (now) warrant.' 3. I do (now) sell, and I will (hereafter) warrant. 4. I do (now) sell, and I do (now) warrant.

§ 1223. Is a collateral agreement.- Warranty is an ancillary and not a principal contract. Correctly speaking, therefore, there can be no warranty where there is no contract to

It is, indeed, said in Osborn v. Gantz (1875), 60 N. Y. 540, that "a warranty is an incident only of consummated or completed sales, and has no force as a contract having present vitality and force in an executory agreement of sale;" but it is evident that all that was meant to be held was that there could be no recovery as for breach of warranty where the title to the goods never passed. See the following section. And in Fairbank Canning Co. v.

Metzger (1890), 118 N. Y. 260, 23 N. E. R. 372, 16 Am. St. R. 753, it is said that "when there is an express warranty, it is unimportant whether the sale be regarded as executory or in præsenti, for it is now well settled that the same rights and remedies attach to an express warranty in`an executory as in a present sale. Day v. Pool, 52 N. Y. 416, 11 Am. R. 719; Parks v. Morris Ax Co., 54 N. Y. 586; Dounce v. Dow, 57 N. Y. 16; Brigg v. Hilton, 99 N. Y. 517," 3 N. E. R. 51.