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character as to indicate such transfer, to raise a presumption that the parties so intended it. Thus, where oxen are sold it has been held that a delivery merely of the brass knobs which had been worn on their horns raises no presumption of a symbolic delivery of the oxen.1 But the delivery of the key of a warehouse where the goods are stored, or of a bill of lading for goods which are in transit, or of the bill of sale of the subject-matter of the transaction, constitutes a symbolic delivery of the property sold sufficient to transfer ownership in it from the seller to the buyer. The delivery of a certificate of stock with a power of attorney in blank for making a transfer on the books of the company will operate as a symbolic delivery of the stock itself.

182. Warranties. Definition and classification. A warranty is an agreement of indemnity, relating to the character, quality or title of the thing sold and forming part of the contract of sale though collateral to its express object, by which the seller insures the buyer against loss from failure of one or more of its terms. Warranties are of two kinds-express and implied. An express warranty is an apt and explicit statement by the seller of a material fact relating to the subjectmatter of the sale and which naturally induces the buyer to purchase it. This kind of warranty is often spoken of as a true warranty because it is always collateral to the contract of sale. It may be oral or in writing. When the contract of sale is completely written and the warranty is oral the latter is not admissible in evidence unless it is fraudulent. This is owing to the fact that the so-called parol evidence rule excludes it.2

1 Clark v. Draper, 19 N. H. 419.

2 Express warranty: Chapman v. Murch, 19 John. 290; Oneida Man. Soc. v. Lawrence, 4 Com. 440; Hawkins v. Pemberton, 51 N. Y. 198.

Express warranties usually have their origin at the time the sale is made. They may, however, originate subsequently. In the former case the consideration for the sale also supports the warranty. But in the latter case it must be supported by a new consideration.

Implied warranties arise by operation of law, from usage or custom, or from the conduct of the parties. They spring from what the parties do rather than from what they say. For this reason they are frequently called silent contracts. Ordinarily they depend upon the intention of the parties, but they may arise independent of such intention. They are not inferences of fact for the jury to determine, but rather inferences of law for the court to draw from facts proved or admitted to be true.

183. Implied warranty of title.-Ordinarily, when goods are sold, the seller impliedly warrants the title to them. This includes his right to sell them, freedom from any charge or incumbrance against them in favor of a third party and the enjoyment of quiet possession of them by the buyer. It does not include, however, freedom from all unjust or illegal interference.

Possession by the vendor of the property sold is prima facie evidence of title in him and in such case the law implies a warranty of title.1 On the other hand, when the property sold is in the hands of a third party at the time of the sale there is no implied warranty of title. As said by Judge Story: 2 "This distinction has now become so deeply rooted in the decisions of the courts, in the dicta of judges, and in the conclusions of learned authors and commentators, that even if it were shown to be misconceived in its origin it could not at this day be

1 Kent Commentaries, 478.

2 Story on Sales (4th ed.), sec. 367, note.

easily eradicated." In England, however, this distinction is repudiated, as is shown in the words of Justice Buller: 1

I cannot feel a distinction between the vendor's being in or out of possession. The thing is bought of him and in consequence of his assertion; and if there be any difference, it seems to me that the case is strongest against the vendor when he is out of possession, because then the vendee has nothing but the warranty to rely on.

Benjamin says: 2

A sale of personal chattels implies an affirmation by the vendor that the chattel is his, and therefore he warrants the title, unless it be shown by the facts and circumstances of the sale that the vendor did not intend to assert ownership, but only to transfer such interest as he might have in the chattel sold.

A constructive possession of the property sold is sufficient, even under the American rule, to imply a warranty of title. Thus, where a tenant in common of a chattel, which is in the possession of a third party as bailee of all the owners, sells his undivided interest, the possession of the third party amounts to such constructive possession of the vendor as to attach to the sale an implied warranty of title.

There are a few exceptions to the rule that an implied warranty of title attaches to the contract of sale where the vendor has possession of the property sold. Thus, it does not attach to a sale made under authority of law, as where it is made by a sheriff; nor does it attach where the vendor undertakes to transfer merely the title he or the person he represents has in the property. For ex

1 Pasley v. Freeman, 3 T. R. 58.

2 Benjamin on Sales (6th Amer. ed.), sec. 639.

ample, it does not attach to a sale made by a mortgagee under a power of sale; or to a sale made by an assignee in bankruptcy; or to one made by an executor or administrator, or by a trustee.

184. Implied warranty of quality.-Caveat emptorlet the purchaser beware-is a familiar maxim of the common law. Under this rule a sale of goods ordinarily does not raise an implied warranty of quality. This maxim obtains in every state of the Union except one. In Louisiana the civil-law maxim-caveat venditor— obtains. Under this maxim the sale of goods for a sound or full price raises an implied warranty that the goods are sound.1

As a rule, therefore, where the buyer inspects the goods at the time of the sale, or is given a suitable opportunity to do so, no implied warranty of quality arises. Moreover, when such an opportunity is afforded the buyer to inspect the goods and he fails to do so the seller is under no obligation to point out defects in them. He must not, however, actively aid the buyer in being deceived. Thus, where the buyer in inspecting the goods attempts to discover defects in them the seller must not hinder or obstruct him.3

Where goods are sold by sample an implied warranty arises that the goods to be delivered shall correspond in quality with the sample. There is also an implied warranty in such case that the goods shall contain no defect sufficient to render them unmerchantable and which upon a reasonable examination would not be discoverable.

1 In New York caveat venditor has been applied to sales by sample in several cases, although in one, the Court said, “It stands upon no principle." 1 Denio 386. Where there has been no inspection: Boorman v. Jenkins, 12 Wend. 576; Salisbury v. Stainer, 19 Wend. 159.

2 Cogal v. Kniseley, 89 Ill. 598.

8 Rozeman v. Canovan, 43 Cal. 110.

Where goods are sold by description an implied warranty arises that they shall correspond with the description. And where the seller deals in such goods there is an implied warranty of merchantability.

EXAMPLES

189. A sells B a cargo of tea which is supposed to be in transit between Canton, China, and San Francisco. The day before the sale the ship is wrecked and the tea destroyed. The sale is void and B may recover the price paid. An implied warranty or condition arises that the subject-matter of the sale is in existence when the contract is made. This implied condition precedent is of the essence of the contract and not a collateral undertaking. Hence, strictly speaking it is not a warranty.

190. A contracts to sell B 500 bushels of corn to be grown on a certain tract of land belonging to A. The tract is planted and under ordinary circumstances the yield would be quite sufficient to meet the requirements of the contract. The crop, however, owing to unfavorable weather, amounts only to 300 bushels. A is not liable to B for breach of the contract in not delivering to him 500 bushels. The contract is for the sale of a specific crop, but no implied warranty or condition exists that the crop shall continue to exist until the time of performance of the contract.

191. A telegraphs B an order for 376 tons of coal. B ships to A 392 tons. A may reject the coal sent. He is entitled to have delivered to him the exact quantity ordered.1

192. A sells B a certain number of posts of a definite size and quality. He delivers to B a less number than that agreed upon. B may repudiate the contract.2

193. A buys a quantity of corn of B. The contract provides that the corn is to be weighed on B's scales and paid for according to the weight so indicated. A refuses to accept

1 Rommel v. Wingate, 103 Mass. 327.

2 Rockford, etc., Ry. Co. v. Leut, 63 Ill. 288.

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