Lapas attēli
PDF
ePub

a rule of construction, and will yield to evidence of a contrary intention.

§ 1273. But may be given. Thus it is certain that the consequences of a known or obvious defect may be guarded against by an express warranty in terms directed against them; '

where it is said that the general rule does not apply because the seller used artifice to produce a false impression, though it is not stated what the artifice was; and Robertson v. Clarkson, 9 B. Mon. 507, to the same effect. There the seller falsely attributed an abnormal condition to an accident whose results would therefore pass away; but it proved to be an irremediable disease.] The same facts and rule are found in Brown v. Weldon, 27 Mo. App. 251, affirmed 99 Mo. 564; and in Perdue v. Harwell, 80 Ga. 150, 4 S. E. R. 877, where the seller falsely attributed to a harmless disease symptoms which proved to belong to a serious one.

To like effect: Hanks v. McKee, 2 Littell (Ky.), 227, 13 Am. Dec. 265; Biggs v. Perkins, 75 N. C. 397; Roseman v. Canovan, 43 Cal. 110; Armstrong v. Bufford, 51 Ala. 410.

1 In Watson v. Roode (1895), 30 Neb. 264, 46 N. W. R. 491; s. C., 43 Neb. 348, 61 N. W. R. 625, the purchaser called attention to what appeared to be a defect, but the seller expressly warranted that it was not, though it proved to be. Held, that the buyer could recover. In Samuels v. Guin, 49 Mo. App. 8, a peculiarity in the horse's eyes was pointed out, but the seller gave a plausible explanation and said "they are as sound as dollars." It proved to be the first stages of a disease from which the horse became blind. Held, that the buyer could recover. In Thompson v. Har

vey, 86 Ala. 519, 5 S. R. 825, the buyer said that he thought the horse's withers were not right, but the seller assured him that they were in the natural shape and that the horse was all right, though it proved otherwise. The buyer was permitted to recover. In Fitzgerald v. Evans, 49 Minn. 541, 52 N. W. R. 143, complaint was made by the buyer concerning a bunch on the horse's leg. The seller expressly warranted that it would "all disappear entirely." It did not do so and proved to be a spavin. The buyer recovered. Followed in Hansen v. Gaar (1895), 63 Minn. 94, 65 N. W. R. 254. To like effect: Liddard v. Kain, 9 Moore, 356, 2 Bing. 183.

In Pinney v. Andrus, 41 Vt. 631, the buyer of sheep feared that they were infected with foot-rot; the seller expressly warranted that the apparent difficulty was not foot-rot; it proved to be that disease, and the buyer recovered. In Tabor v. Peters, 74 Ala. 90, 49 Am. R. 804, the maker of a churn warranted that it was made of juniper wood and that the rod was nickel plated. The churn was painted, and the buyer did not discover at the time that it was made of pine and not juniper wood, and that the rod was simply polished iron. It was held that these defects were not so obvious as to prevent the buyer from relying on the warranty. Cf. Greenstine v. Borchard, 50 Mich. 434.

and it is equally well settled that even general words may protect against defects which, though known of or obviously in existence, are doubtful or uncertain in their nature, character or extent, where it appears that the purchaser chose to rely on the warranty rather than upon his own judgment.1 As stated in one case: "Where there is uncertainty and difficulty, and the representation is not glaringly inconsistent with the obvious condition and quality of the property, or where the results of the known defect are not apparent at the time, and could not have been reasonably foreseen, the buyer may rely on the warranty or representation, and not on his own judgment.'

[ocr errors]

§ 1274. How determined. Whether the defect was thus so open and glaring that it could not be deemed to have been warranted against, and whether the buyer relied upon the warranty and not upon his own judgment, are usually facts for the jury to determine.3

1In Fletcher v. Young (1882), 69 Ga. 591, there was a written warranty of a horse that he was "perfectly sound and without blemish," though it also stated that he now has "a cold or little distemper." The court held that the proper construction was that the horse was war ranted sound notwithstanding the apparent cold or distemper, which subsequently proved to be more serious, and that the buyer might recover. Very similar in effect is the later case of Perdue v. Harwell, supra. In Storrs v. Emerson (1887), 72 Iowa, 390, 34 N. W. R. 176, the buyer of a horse called attention to suspicious symptoms which he feared were indicative of some disease though he did not know of what. The seller then expressly warranted the horse to be sound; it proved to be affected with spine and kid

ney disease, and the buyer recov ered.

And where, at the time of the sale, there is some difficulty apparent, but its nature and probable conse quences are not readily discoverable, the buyer may rely on a general warranty of soundness and recover if the difficulty proves to be such as to constitute a breach of it. Stucky v. Clyburn (1840), Cheves (S. C., L 186, 34 Am. Dec. 590. "Especially is this so where the nature and extent of the disorder is lurking, and may reasonably be supposed to be more within the knowledge of the vendor than the vendee." Branson v. Tur ner (1883), 77 Mo. 489, citing Thomp son v. Botts, 8 Mo. 710.

2 Thompson v. Harvey (1888), 86 Ala. 519, 5 S. R. 825.

3 Thompson v. Harvey, supra.

§ 1275. Express warranty after inspection.- Closely allied to the question discussed in the preceding section is that of the right of the purchaser to take and avail himself of an express warranty, notwithstanding an inspection of the goods. He cannot, of course, within the rules last stated, rely upon a warranty against such defects as are clearly obvious; but as to such defects as may be latent, there is now no question that he may take and enforce an express warranty, notwithstanding the fact that he may have personally examined the goods.1 As stated in a recent case, "a purchaser of an article may examine it for himself and exercise his own judgment upon it, and at the same time may protect himself by taking a warranty."

§ 1276. Limitations upon warranty. The parties may, of course, by express terms, limit or enlarge the construction which the law would naturally and ordinarily put upon the language they have used; and they may also by the context indicate that words or statements which would otherwise have been deemed to constitute a warranty were in this instance used with a different signification. Thus, where positive declarations concerning the qualities or characteristics of an article are coupled with an express warranty in terms respecting other qualities or characteristics, it will be presumed that both were not used with the same force and significance; and the general assertions, though otherwise sufficient to constitute a warranty, must here take subordinate rank to the words of express warranty, and will therefore be deemed to be mere representations.3

1 Smith v. Hale, 158 Mass. 178, 33 N. E. R. 493, 35 Am. St. R. 485; Henshaw v. Robins, 9 Metc. (Mass.) 83, 43 Am. Dec. 367; Gould v. Stein, 149 Mass. 570, 14 Am. St. R. 455, 22 N. E. R. 47, 5 L. R. A. 213; Miller v. Moore, 83 Ga. 684, 20 Am. St. R. 329, 6 L. R. A. 374. 10 S. E. R. 360; South Bend Pulley Co. v. Caldwell (1900), - Ky.

3 In Richardson v. Brown, 1 Bing. 344, there was a sale of "a horse five years old; has been constantly driven in the plough; warranted;" and it was held that the warranty referred to soundness only. In Budd v. Fairmaner, 8 Bing. 48, the words were, "Received £10 for a gray four-yearold colt, warranted sound in every respect," and the warranty was also confined to soundness. In Dickenson v. Gapp, quoted in 8 Bing. 50,

55 S. W. R. 208. 2Smith v. Hale, supra, citing Harrington v. Smith, 138 Mass. 92.

§ 1277. To the extent of seller's knowledge.- So the seller may limit the extent of the warranty to his own knowl edge upon the subject, as where he warrants qualities or characteristics to be of a certain sort so far as he knows; and in such a case there can be no recovery upon the warranty be yond the limit thus set to it. He may likewise limit the warranty to that which was given him when he himself bought the goods; or he may simply recite or refer to such a warranty without adding his own responsibility to it.2

§ 1278. Warranties by agents.-The question of the power of agents to bind their principals by warranties depends upon a variety of considerations. If the agent has express authority to warrant, there will be little room for controversy, because here he may give all such warranties as the express authority, fairly construed, will justify. In the ordinary case, however, no express authority exists, and the question is whether power to warrant may be implied as an incident to or attribute of some other power with which the agent is clothed.

§ 1279. In dealing with this question, one or two fundamental propositions are to be kept in mind. Every delega

the words were, "Received £100 for a bay gelding got by Cheshire Cheese, warranted sound;" there was held to be no warranty as to breed. In Anthony v. Halstead, 37 L. T. (N. S.) 433, the words were, "Received £60 for a black horse, rising five years, quiet to ride and drive, and warranted sound up to this date, or subject to the examination of a veterinary surgeon;" there was held to be no warranty that the horse was quiet to ride and drive.

1 Thus, where the seller warrants that the article, e. g., a horse, is sound so far as he knows, knowledge by the seller of the unsoundness must be shown before a recovery can be had. Wood v. Smith, 5 M. & R. 124;

Burnham v. Sherwood (1888), 56
Conn. 229, 14 Atl. R. 715.

So in Wason v. Rowe (1844), 16 Vt. 525, where the language was that a horse sold was "considered sound,” the court said that "it would be putting a very liberal construction upon words and giving great latitude to construction to say that that was an assertion or undertaking that the horse was sound."

2 Thus, in Davis v. Iverson, 5 S. Dak. 295, 58 N. W. R. 796, where there was a written bill of sale in which the seller expressly warranted the title to a horse sold, but recited that the importer of the horse warranted him to be a sure foal-getter, the latter was held to be no part of the seller's warranty.

tion of authority carries with it by implication, unless the contrary is declared, implied power to do all those things which are reasonably necessary and proper to carry into effect the main power so conferred. Whenever a principal confers upon his agent authority to do an act, or to transact business of a nature, concerning which there is a well defined and publicly known usage, it is the presumption of the law, in the absence of anything to indicate a contrary intention, that the authority was conferred in contemplation of the usage. Where, however, the usage is local and particular, this presumption would not arise unless the principal were shown to be acquainted with it. And finally, where third persons have dealt with the agent in good faith, and in the exercise of reasonable prudence, in reliance upon the usual authority with which he was apparently clothed, they will be protected against any private limitations upon the agent's authority of which they were not informed." Applying these general principles, it may be noticed, first,

that

§ 1280. Agent's implied authority to warrant title.- An agent authorized to sell goods, as the goods of his principal, would have implied authority to warrant his principal's title. Warranties of this sort are usual, and would be implied if the principal himself were to offer for sale goods in his own possession; and if he authorizes the sale of the goods as his own, he doubtless thereby confers authority to make the warranty which the law would attach to his act if he sold in person.

§ 1281. Agent's implied authority to warrant quality.— So, authority conferred upon an agent, whether general or special, to sell personal property carries with it, in the absence of countervailing circumstances known to the party with whom he deals, implied power to make in the name of the principal such a warranty of the quality and condition of the property sold as is usually and ordinarily made in like sales of similar

1 Mechem on Agency, § 280. 2 Mechem on Agency, § 281.

3 Mechem on Agency, § 281.

« iepriekšējāTurpināt »