chaser of stolen goods can acquire an absolute right to them against the true owner. There is no implied warranty of title in the sale of a specified No implied ascertained chattel. In order to render the seller liable for a title. warranty of bad title, he must have given either an express warranty, or an equivalent to it, by declaration or conduct, or he must have practised fraud, as by concealing from the purchaser that he had no title (a). Such express warranty may be inferred from usage of trade, or from the nature of the trade being such as to lead to the conclusion that the person carrying it on must be understood to engage that the purchaser shall enjoy that which he buys against all persons (b). But although on the sale of a specified chattel there is no implied warranty of title, the purchaser, who should be compelled to give up the goods to the real owner, may recover his money as on a consideration that has failed (c). In an executory contract, however, when the subject is unascertained, and is afterwards to be arranged, both parties must be taken to have meant that a good title to the subject should be transferred (d). When a person sells goods which are not his own, and the real owner is found, the purchaser is entitled to pay him the price, and the wrongful vendor could not maintain an action against the purchaser for the price (e). When the vendor sells goods in his peculiar character, such as auctioneer, agent, sheriff, pawnbroker, or pledgee, it becomes the duty of the purchaser to inquire into the title, and if it be afterwards found that the vendor had no title to sell, and the purchaser is evicted, he cannot recover compensation except he can establish a case of fraud (f). § 3. Warranty of Quality. Title of the when found. real owner A fair price given for an article does not imply a warranty No warranty implied that the article is merchantable, and the seller is not answerable against latent defects. for any latent defect unknown to him. When the article turns out not to be that which it was supposed, the purchaser bears It is different when an article is sold for a particular purpose. What amounts to a warranty. the loss (a). Both in England and Scotland, if the seller had no knowledge at the time of the sale that the goods were defective, or of bad quality, he is not held to have warranted their quality or sufficiency, and goods sold with all faults are at the risk of the purchaser, unless the seller has given an express warranty of the quality or sufficiency of such goods, or unless the goods have been expressly sold for a specified and particular purpose, in which case the seller is considered without such warranty to warrant that the same are fit for such purpose (b). When an article is ordered to be used for a particular purpose, as copper for sheathing a ship, the seller in executing the order is held to warrant that the copper shall be fit for the purpose for which it is required (c). But where a party orders a known ascertained article, stating the purpose for which he intends to apply it, there is no implied warranty on the part of the seller that the article is suitable for that purpose (d). Every affirmation made by a seller at the time of sale is a warranty, provided it appears to have been so intended, but a mere representation by the seller of the quality of the article sold does not furnish a ground of action against the seller, on the representation turning out to be untrue, unless the representation be fraudulent (e). A representation made at the time of the sale, and in relation to the subject matter material to the contract, may amount to a warranty when the representation refers to matters within the special knowledge of the seller (ƒ). A warranty may be inferred from a description in an invoice of the goods sold, but the ordinary praise or commendation by a vendor of the goods he sells does not amount to a warranty. The seller is not bound to disclose to the buyer such defects as are susceptible of a discovery by a rigid examination of the goods (g). Where goods have been sold warranted sound, which can be proved were unsound at the time of sale, the seller is liable to an action on the warranty, without either (a) Jones v. Bright, 3 M. & P. 155. (f) Haycraft v. Creasy, 2 East, 103; Moans v. Heyworth, 10 M. & W. 155; Calverley v. Williams, 1 Ves. 212. (g) Baglehole v. Walters, 3 Camp. 154; Schneider . Heath, 3 Camp. 506; Pickering v. Dowson, 4 Taunt. 779. the goods being returned, or notice given of the unsoundness (a). The breach of a warranty is no answer to an action for the price of goods sold, although it may be used in reduction of the price, or made the subject matter of a cross action (b). tation. A misrepresentation will not vitiate a contract, unless bot- Effect of a tomed on fraud, and made with an intention to deceive; if, misrepresen however, such a representation amounted to a warranty, and the purchaser bought upon the faith of such a warranty, then the contract would be void, even though the seller was not aware of the fact at the time he gave the warranty (c). A purchaser of a commodity to be delivered according to sample is not bound to receive the bulk which may not agree with it, nor after having received what was tendered and delivered as being in accordance with the sample will he be precluded by the simple receipt from returning the article after having kept it a reasonable time for the purpose of examination and comparison (d). If, however, the purchaser acts on the contract, and avails himself of the privilege of selling, that would be equivalent to an acceptance (e). The buyer of goods by sample has a right to inspect the whole in bulk at any proper and convenient time, and if the seller refuses to show it, the buyer may rescind the contract (f). When goods are sold by sample, and a custom exists that the purchaser should either return them within a reasonable time, or have an allowance for so much of the goods as do not answer, if the buyer neglects to examine the bulk and signify his rejection of the same, he cannot afterwards refuse to pay the whole price (g). Purchase by sample. Rights of buyer to inspect the goods. and return. Where there is an agreement to take the goods back if “ on Sale by trial trial" they should be found faulty, though they were accompanied with an express warranty, it is incumbent on the purchaser to return the goods as soon as the faults are discovered (h). If the purchaser, after giving a reasonable trial to the goods (a) Fielder v. Starkin, 1 H. Bl. 17. (b) Dawson v. Collis, 10 C. B. 523. (c) Williamson v. Allison, 2 East, 446; Jones v. Bright, 3 M. & P. 155. (d) Street v. Blay, 2 B. & Ad. 463. (e) Parker v. Palmer, 4 B. & Ald. 394. (f) Lorymer v. Smith, 1 B. & C. 1. (g) Cooke v. Riddlelien, 1 C. & K. 561; Sander v. Jameson, 2 C. & K. 557. (h) Adams v. Richard, 2 H. Bl. 574. Sales on trial on conditional sale. finds them insufficient, and gives notice to that effect to the seller, the latter is bound to take them away, and they remain at his risk (a). Where goods are sold on trial, there is no sale till the buyer confirms the purchase (b). Where goods are sold "on sale and return,” that is, to be paid for at a certain rate, if sold again by the vendee, and if not sold to be returned, the goods should be returned in a reasonable time, and if they are not so returned, they are held as sold (c). Delivery of immovables. Delivery of movables. Delivery of incorporeal rights. The vendor may refuse the delivery till the payment of the price. FOREIGN LAWS. France.-Delivery is the transfer of the thing sold into the power and possession of the buyer. The obligation to deliver immovables is fulfilled on the part of the vendor, when he has given up the keys, if they consist of a building, or when he has delivered up the title deeds of the ownership. Delivery of movables is effected :-Either by actual delivery; or by delivering the keys of the building containing them; or even by the sole consent of the parties, if the transfer cannot be made of them at the time of sale; or if the buyer had them already in his possession by another title. Delivery of incorporeal rights is effected either by giving up the title deeds, or by the use which the buyer makes of them, with the consent of the vendor. The expenses of the delivery are at the charge of the vendor, and those of the taking away at the charge of the buyer, if there has been no stipulation to the contrary. Delivery must be made at the place where the thing which formed the object of the sale was at the time of sale, if it has not been otherwise agreed. If the vendor does not effect the delivery within the time agreed upon between the parties, the buyer may at his option request him. either to cancel the sale, or to deliver the article; if the delay arises from the sole act of the vendor. In all cases the vendor is liable to damages, if the buyer is injured from the nondelivery at the time agreed. The vendor is not bound to deliver the thing if the buyer does not pay its price, unless the vendor has granted him time for the payment. Neither is he (a) Okell v. Smith, 1 Stark. 109. (b) Ellis v. Mortimer, 1 N. R. 257; Andrews v. Belfield, 2 C. B. N. S. 779. (c) Bailey v. Goldsmith, Park, 56. bound to deliver even where he has granted credit, if subsequent to the sale the buyer has stopped payment, or has failed, so that the vendor is in imminent danger of losing the price, unless the buyer is prepared to give him security for payment at the time agreed. The thing must be delivered in the state in which it was at the moment of the sale. The obligation to deliver a thing comprises also its accessories, and all that is adapted to its continuous use. The vendor is bound to deliver the contents such as they are set forth in the contract, under the modifications hereafter expressed. If the sale of an immovable has been made with a statement of its contents, at the rate of so much the measure, the vendor is obliged to deliver to the purchaser, if he require it, the quantity set forth in the contract. And if the thing is not possible, or if the purchaser does not require it, the vendor is obliged to allow a proportional diminution of the price. If, on the contrary, in such a case, there happen to be a larger quantity than what is expressed in the contract, the purchaser has the option of paying a supplemental price or of abandoning the contract, if the excess be of a twentieth beyond the contents set forth. In all other cases, whether the sale be made of a thing certain and limited, whether it have for object distinct and separate articles, whether it commences by the measure or by designating the thing sold followed by a measurement, the setting forth of such measure gives no ground for an additional amount in favour of the seller for the excess of measure, nor in favour of the purchaser for any diminution of price for less measure, so long as the difference of the real measure from that expressed in the contract is of a twentieth more or less, regard being had to the whole of the things sold, if there be no stipulation to the contrary. Where, according to the preceding article, there is room for augmentation of price for excess of measure, the purchaser has the option either of abandoning the contract or of paying the supplemental price, with interest upon it if he has kept the inmovable. In all cases where the purchaser has the right of giving up the contract, the vendor is bound to refund to him beyond the price, if he has received it, the expenses of the contract. The action for the additional price on the part of the vendor, and for diminution of price, or for cancelling the contract on the part of the purchaser, must be brought within one year, |