herein before stated. AND the said Mortgagor......, hereby covenant S... and agree.... that in case default shall be made in the payment of the Note.......... aforesaid, or of any part thereof, or the interest thereon, on the day or days respectively on which the same shall become due and payable; or if the Mortgagee... his executors, administrators or assigns, shall feel: himself— insecure or unsafe, or shall fear diminution, removal or waste of said property; or if the Mortgagor........... shall sell or assign, or attempt to sell or assign the said Goods and Chattels, or any interest therein; or if any writ, or any Distress Warrant, shall be levied on said Goods and Chattels, or any part thereof; then, and in any or either of the aforesaid cases, all of said Note...........and sum of money, both principal and interest, shall, at the option of the said Mortgagee...----- 9 ∙his executors, administrators or assigns, without notice of said option to anyone, become at once due and payable, and the said Mortgagee........9 — his executors, administrators or assigns, or any of them, shall thereupon have the right to take immediate possession of said property, and for that purpose may pursue the same wherever it may be found, and may enter any of the premises of the Mortgagor..........., with or without force or process of law, wherever the said Goods and Chattels may be, or be supposed to be, and search for the same, and if found, to take possession of, and remove, and sell, and dispose of the said property, or any part thereof, at public auction, to the highest bidder, after giving..: thirty.days' notice of the time, place and terms of sale, together with a description of the property to be sold, by notices posted up in three public places in the vicinity of such sale, or at private sale, with or without notice, for cash or on credit, as the said Mortgagee-- 9 — his ———— heirs, executors, administrators or assigns, agents or attorneys, or any of them, may elect; and, out of the money arising from such sale, to retain all costs and charges for pursuing, searching for, taking, removing, keeping, storing, advertising, and selling such Goods and Chattels, and all prior liens thereon, together with the amount due and unpaid upon said Note..., rendering the surplus, if any remain, unto said Mortgagor........., or his legal representatives. Witness, The hand....and, seal.......of the said Mortgagor....., this in the year of our fourteenth day of. Lord one thousand nine hundred thirteen August Sealed and Delivered in the Presence of W. G. Gerber F. E. C.Bright William B.Roswell Seat, Seal [Acknowledgment and Recorder's Certificate appear on the back of these documents.] certain personal property therein mentioned as security for the payment of one thousand Dollars and..... ....cents as therein stated and recorded satisfied, released, and discharged. fifteenth day of August is, with the note.......accompanying it, and the aforementioned debt fully paid, Witness, -my hand...and seal....., this: A. D. 19 14 George Bowman Seal SEAL a notary public George Bowman in and for the said County, in the State aforesaid, DO HEREBY CERTIFY, this. Giurn, under my hand and - official ———— seal, fifteenth day of.. H. L. Klein .A. D. 19...14 Notary Public [Recorder's Certificate is made on the back of this Release.] 247. Warranties. A warranty is an undertaking on the part of the seller that the goods possess certain qualities. The distinction between a condition and a warranty is that the former may suspend, rescind, or modify the principal obligation, while the latter is a separate or additional undertaking on the part of the vendor. "A warranty is a separate, independent, collateral stipulation on the part of the vendor, with the vendee, for which the sale is the consideration, for the existence or truth of some fact relating to the thing sold." As to whether a stipulation is a condition or a warranty, depends largely upon the intention of the parties. Any stipulation may be made a condition precedent to the passing of title, or it may be agreed to be a warranty. Warranties are classed as express and implied. 1. Express. Warranties are express when the collateral undertaking is fully understood as being an undertaking in part for the consideration. It must enter into and form part of the agreement; that is, it must be an inducement in bringing about the contractual relationship. If the party to whom the warranty is made knows that statements thereto are untrue, the warranty will be of no force. The expression of an opinion as to certain qualifications an article possesses is not ordinarily a warranty, nor are commendatory statements made by a salesman to be construed as warranties. The warranty, to be valid, must be made at the time the contract is made. However, an agreement of warranty. entered into subsequent to the making of the original contract will be valid if a distinct consideration is given for it. 2. Implied. An implied warranty is a warranty not expressly stated at the time the original contract is made, but from circumstances it is presumed to have been taken into consideration in the contract formation. The seller of goods impliedly warrants that he has title and authority to sell. If the seller has no title, having received the goods innocently or otherwise from another, he conveys no title; the buyer may return the goods and demand the return of the purchase price; he may also do so if he is deprived of possession by the lawful owner. The seller of provisions also impliedly warrants that they are wholesome and fit for domestic use. 248. Caveat Emptor. This is a rule of wide application, "Let the buyer beware." The purchaser must, when he has the opportunity, rely largely on his judgment. Defects of a patent nature are not covered by a warranty, but latent ones are covered by an express warranty. In sales on trial title does not pass until all tests and conditions have been fulfilled. In sales by sample the distinguishing characteristic is that the bulk shall be of the same grade or quality as the sample. A chattel mortgage is a conditional transfer of title given as a security for the discharge of a note or other obligation. Upon payment of the debt the mortgage is discharged and released, and upon a failure to pay the mortgage it may be foreclosed and the property sold to satisfy the debt. A warranty is an undertaking by the seller that the goods possess certain qualities. A warranty is express when it is fully understood as being an undertaking in part for the consideration. It is implied when, although not expressly stated at the time of making the contract, it is presumed from the circumstances that a warranty has been taken into con sideration. The rule of caveat emptor ("let the buyer beware") is that the purchaser buys at his own risk. For a breach of warranty, the purchaser may bring suit for damages. Discuss "sales on trial." What are the rights of a purchaser in "a sale or return"? What are the conditions of a sale by sample? Discuss the rights of the parties under a chattel mortgage. What is a warranty? Distinguish between a warranty and a con dition. When is a warranty express? When implied? What is the doctrine of caveat emptor? When do you return goods and when do you sue for damages? 251. Sellers. The seller's first right is to demand payment as a condition precedent to the delivery of the goods. If the goods have been delivered he has a claim against the buyer personally, for the debt. If the possession has not been transferred to the buyer the seller has the right to a lien, i. e., to retain possession till payment is made. In order to exercise the right of lien, payment for the goods must be due, for if credit has been given, the seller has no right to hold the goods. Ipayment in part has been made and the balance is due, the seller may hold part or all of the goods for the balance due. He has not the right to hold, on an old balance of account, particular goods that have been paid for. The merchant's right of lien is the right to hold goods. for claims and charges on those particular goods. 1. Stoppage in Transit. This is an extension of the right of lien. As long as goods are in the hands of a common carrier |