the weight so determined on the ground that B's scales are not lawful scales capable of indicating lawful weights. Assuming that A's contention is correct he is justified in refusing to accept the weight indicated. There is an implied warranty that B's scales are lawful scales and capable of indicating lawful weights.1

194. A sells B a horse, warranting him sound. The horse has but one eye and there is a large lump on one of his legs which causes him to walk lame. The imperfections stated are not included in the warranty. The maxim applicable is

caveat emptor.

195. A, a would-be purchaser of a flock of sheep belonging to B, is informed by B that "each of the sheep will shear at least 8 pounds of wool." A purchases the sheep. B's statement is not a warranty, but a mere expression of opinion or "puff."

196. A gives B an order for a quantity of a certain kind of early turnip seed. B sends him seed which he plants and which yields a crop of very late turnips which are of little or no value to A. B is liable for breach of warranty, and A may recover the difference between the market value of the crop he got and that of the one he would have gotten had his order been properly filled.

197. A, who had purchased of B the year before a certain kind of cabbage seed, informs B that he wants more of the same kind. B shows him certain seeds and he buys and plants them. The cabbages, however, are wholly different from what he expected and of little value. Some courts hold that B is not liable. That where goods are sold on inspection and the seller has no knowledge of latent defects in them there is no implied

1 Clifton v. Sparks, 82 Mo. 115.

2 Shisler v. Baxter, 109 Pa. St. 443, 58 Am. Rep. 738. See, also, Kingsbury v. Taylor, 29 Me. 508, 50 Am. Dec. 607, where winter rye was sold for seed spring rye and the plaintiff lost his crop. The court held that in the absence of knowledge on the part of the seller there could be no recovery. The modern view, however, is to the contrary.

warranty against such defects. This view has been repudiated.

198. A purchases from B 2,000 barrels of beer, to be delivered from time to time as requested. There is an implied warranty that the beer shall be of a merchantable quality in A's business.

199. A orders of B, a carriage maker, a wheel for his buggy. There is an implied warranty that the wheel furnished shall be reasonably fit for the purpose.

200. A orders a certain chemical by description. Being unable to discover by inspection whether or not it fits the description he uses a sufficient quantity of it to determine this and finds that it does not. He may return the balance to the seller and recover the whole of the price paid.

201. A sells B 1,000 bushels of corn to be delivered a week later. There is an implied warranty of merchantable quality, but not of any particular grade above the lowest.1

202. A purchases of B, a druggist, a quantity of "Paris green" to kill cotton-worms. By mistake B delivers to A "Chrome green," a different substance, but resembling "Paris green." In consequence of B's mistake A's crop of cotton is a failure. B is liable on his implied warranty for the failure of A's crop of cotton.2

203. A, a ticket-broker, sells B a ticket issued by a common carrier. A impliedly warrants the genuineness of the ticket, but not that the carrier will transport the buyer.3

204. A gives B an order for a certain quantity of "blue vitriol, sound and in good order." B delivers an article the larger part of which is green vitriol of much less value. B impliedly warrants that the article he delivers meets the description, and he is liable for breach of the warranty.4

205. A purchases of B a quantity of "winter-pressed sperm

1 Swett v. Shumway, 102 Mass. 365, 3 Am. Rep. 365.

2 Jones v. George, 61 Tex. 345.

3 Elston v. Fieldman, 57 Minn. 70.

4 Osgood v. Lewis, 2 Harr. & Gill 495.

oil." B delivers to A summer-pressed sperm oil, worth only half as much as the other kind. The term "winter-pressed" denotes not only a particular quality, but also a distinct kind, and B is liable for breach of the warranty.1

206. A, a manufacturer, sells B a number of circular saws. There is no implied warranty against latent defects in the materials used, unless the proof shows that A has knowledge of such defects, but there is an implied warranty against latent defects growing out of the process of manufacture. It has been held, however, that there is also an implied warranty against latent defects in the materials used irrespective of the vendor's knowledge.

185. Sale of provisions.—In a few jurisdictions there is an implied warranty of wholesomeness and fitness in a sale of provisions for human consumption. Most courts give the benefit of this warranty to the consumer only, and in cases only where the seller knew that the goods were being purchased for immediate consumption. In a few cases, however, the warranty will arise in sales made by a wholesaler to a retailer who intends to resell the provisions. In New York, the doctrine has been stated as follows by Judge Parker: 3 "I see no reason for applying the rule to one who slaughters and sells to his customers for immediate consumption and denying this application to one who slaughters and sells

1 Hoe v. Sanburn, 21 N. J. 552.

2 Rodgers v. Niles, 11 Ohio St. 48.

3 A latent defect is a fault arising in the goods, after the purchase; a fault not possible of discovery at the time the goods were bought.

This doctrine was stated in Blackstone-3 Black. Com. 165. This is when provisions are for immediate consumption; there are many cases supporting it. People v. Parker, 38 New York 85. Where vendor has personal knowledge of the quality and condition. Burch v. Spencer, 15 Hun 504. It has been said that this rule is not an exception to the doctrine of caveat emptor, but remedy is given "on the grounds of the knowledge by the seller of the unsoundness which the law presumes, and not on an implied warranty that the goods are wholesome." Moses v. Mead, 1 Den. 378; Van Bauklin v. Fonda, 12 Johns. 468; Emerson v. Brigham, 10 Mass. 197.

to another to be retailed by him. In each case it is fresh meat intended for immediate consumption.1

186. Remedies for breach of an express warranty.— Remedies of a buyer for breach of warranty differ in the cases of express warranties and implied warranties. In many jurisdictions, including England and New York, if title has passed, the sale cannot be rescinded for breach of an express warranty, the vendee's only remedy being an action for damages. In Massachusetts and a few other jurisdictions the goods may be returned and the price recovered, or, instead of rescinding the sale, an action may be brought for breach of warranty. In all jurisdictions, where title has not passed to the buyer, the goods may be rejected upon the discovery of a breach of an express warranty.

EXAMPLES

207. A sells to B an automobile and warrants its attainable speed to be seventy miles an hour. The automobile is delivered. B tries it and finds that it will not attain the maximum speed, and offers to return it upon repayment of the purchase price. A refuses to accept it. B then sues A for the purchase money, setting up the above facts, including a demand. In a New York court he would be permitted to recover only the difference in value between the automobile as represented and the automobile as delivered. In Massachusetts he would be permitted to recover the entire purchase price upon returning the automobile.

208. A sells to B all the wheat contained in a certain granary and represents it to be first quality. B agrees to pay eighty-five cents a bushel for it. B inspects the wheat and finds it to be second quality. He may refuse to accept the wheat because title has not passed and there has been a breach of an express warranty.

1 Fairbanks Canning Company v. Metzger, 118 N. Y. 260.

If A had known at the time that the automobile would not attain a speed of seventy miles and had made the warranty fraudulently, B would have the same rights in New York as he has in Massachusetts.

187. Remedies for breach of an implied warranty.— In the case of an implied warranty, the buyer has three remedies:

1. He may rescind the sale and recover the purchase price.

2. Accept and keep the goods and sue for damages for the breach.

3. If the purchase price is unpaid, set up the damages sustained to diminish the price.

Where the buyer elects to rescind the sale, he must act promptly, and if the seller refuses to accept the return of the goods the buyer may hold them as bailee for the seller.

For example: B orders from A by description a certain quantity of goods made by A. When delivery of the goods is tendered they are found to differ from the description. B may reject the goods or he may accept and keep them and sue for damages if the purchase has already been paid, or he may deduct the damages from the purchase price if it has not been paid. In New York a peculiar and local rule prevails: where a sale is made by description and the quality may be discovered by inspection, the buyer will have no remedy against the seller for breach of warranty after the inspection. The acceptance is looked upon as an admission that the goods correspond with the description. This rule is based on the theory that the contract is unilateral in its character and that the seller does not perform. The goods sent are accepted as answering the description. The doctrine of implied warranty is not