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seller has given credit, the buyer is entitled to possession, regardless of payment, if his credit is still good. As this right of possession of the buyer is merely the complement of the seller's right of possession after title has passed, and as that latter right has already been fully discussed,66 it is unnecessary to discuss it further in this place.

Titular Action. If the buyer does have the right of possession, he is invested with all the remedies such as replevin or trover, available to any owner who is kept from his lawful possession.*

This right of the buyer to have possession when he has acquired title exists, so far as practically enforcible, even in those cases where the sale has been of an undivided part of a larger mass. We have already seen that while there can be no title to unspecified property at all, the parties can pass a particular interest in some specific larger mass if they desire to do so, and that such a desire will be presumed in this country in case of sale of an unseparated part of a larger mass of fungible goods.58 In such cases it is settled that the buyer, whether or not he be called owner, can maintain a possessory action of some sort against the seller. 57

The buyer who has acquired title, but not yet received possession, may lose his title and right to possession through the wrongful acts of the seller, in certain cases. This matter is discussed under the topic of rights of third persons.68

Breach of Warranty.-We have seen that statements, either express or implied, in regard to the goods may be treated as part of the identifying description of the goods. In such case goods which do not conform to the statements are not the goods contracted for by the buyer and he need not take title to them unless he so chooses. These statements which serve to identify the goods contracted about are properly called "conditions."

55–Ante, p. 115.

replevin; Hurti v. Hires, 11 Vroom. 56-See ante, p. 63.

(N. J.) 581, trover; Kimberly v. 57—Piazzek v. White, 23 Kan. Patchin, 19 N. Y. 330, trover; Hall 621, replevin; Halsey v. Sim- V. Boston & W. R. R., 14 Allen monds, 85 Ore. 324, 166 Pac. 944, (Mass.) 439, conversion. replevin; Seldomridge v. Bank, 87 58—Post, p. 212. Neb. 531, 30 L. R. A. (n. s.) 337,

See Uniform Sales Act, Section 66.

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What a Warranty Is.—But the seller may make statements about the goods contracted for which, while they serve to characterize the goods, are not in fact related to the identity of the goods. For instance, the contract of sale may refer to some specific article whose identity is so fixed, not by description only, but by actual demonstration, that there can be no doubt as to just what tangible thing is concerned in the contract. But at the same time the seller may make a positive statement as to the character, or quality, or nature generally of the article. Such a statement, while in a sense descriptive of the article, does not in the least serve to identify the subject matter of the contract. In a sense there is a conflict of description—the oral description of characteristics of the article does not accord with the visual description by demonstration. But obviously, since it is a tangible, visible thing that is contracted about, rather than a mere conceptual thing, the demonstration should dominate the inconsistent oral statements, so far as concerns the identity of the thing to which the parties probably intended to transfer title.

These parts of descriptions which do not affect the real identity of the thing contracted about are called warranties”.59 The name warranty is not limited to them, however. We have seen that if a buyer chooses to

59—"A warranty is an express or implied statement of something which a party understands shall be a part of a contract, and, though part of the contract, collateral to the express object of it.”

Hurley-Mason Co. v. Stebbins, 104
Wash. 171, 140 Pac. 381.

"When the subject matter of a sale is not in existence, or not ascertained at the time of the contract, undertaking that it


accept title to goods tendered, despite their non-conformity to the identifying description, or other conditions, he does not, in some states, waive all his rights growing out of the breach. He may still sue to recover damages resulting from the breach. These terms of the description, which could have been taken advantage of as conditions precedent, but which have been waived as such and exist only as a basis for recovery of damages are usually also called “warranties”.60 Sometimes they are

” called warranties before they have been waived as cause for refusing title. The name, therefore, while it may be a convenience in expression, indicates nothing as to the rights of the buyer, unless its particular meaning is expressly indicated. We shall use “warranty,” hereafter, unless otherwise indicated, in its narrower sense of a descriptive statement concerning the goods, which could not be used, or has not been used, as part of the identifying description.61*

shall, when existing or ascer "warranty" leaves it uncertain in tained, possess certain qualities, such expressions whether an "ex. is not a mere warranty, but a con- press warranty" means an express dition * * * because the exist- promise or only an express stateence of those qualities being part ment from which the necessary of the description of the thing promise will be implied. Consold becomes essential to its versely, “implied warranty” may identity". Pope v. Allis, 115 U. S. mean an implied statement from 363; United Iron Works Co. v. which a promise will be implied in Henryetta Coal Co., 62 Okla. 99, law, or it may mean a promise 162 Pac. 209.

which is implied from an express 60—Jones v. Witousek Co., 114 statement. The expressions are Ia. 14; North Alaska Salmon Co. more commonly used in reference v. Hobbs, 159 Cal. 380.

to the statement, than to the 61–The term is also used, not promise, and will be here so used, infrequently, in reference to the unless otherwise indicated. contract, the promise, which is im. The term “warranty" is used of plied by law, as is hereafter dis- representations of fact or promcussed, from these statements. ises wholly unconnected with any This is apt to cause especial diffi- sale in Cameron v. Mount, 63 Wis. culty because of the expressions 477; Kuehn v. Wilson, 13 Wis. "Implied warranty" and "Express 104, "warranty" that a horse would warranty". The duplex usage of be cured by certain treatment.

.See Uniform Sales Act, Section 12.


-Effect of Breach of Warranty. Return of Goods.Restricting the term “warranty" to statements concerning quality, etc., of goods objectively identified in other ways, there is rather hopeless conflict as to whether property purchased can be returned for breach of warranty.

Many jurisdictions do allow the buyer to return the goods and recover the purchase price if already paid. In the often cited case of Smith v. Hale62 the facts were that Smith had sold a certain old buggy to Hale. At the time, some question about the strength of its springs having arisen, Smith “warranted" that they would bear up under a certain weight. Some months later a spring broke under a less weight. Hale thereafter tendered the buggy back to Smith and, on Smith's refusal to accept it, entered Smith's premises and took away the cow which he had given in exchange for the buggy. The court held that Hale was justified in taking the cow as he had a right to rescind the contract because of the broken spring

The theory on which such rescission is allowed is absolutely indeterminate. Where parties have dealt about an article definitely identified by ocular demonstration, there would seem no possible doubt as to the specific object which the one has contracted to sell and the other to buy. Our whole theory of chattel property is, originally, objective. There is suggestion, however, in some cases that the subjective nature as well as the objective may have a part in identifying the object matter of the contract. In one case, for instance,68 the plaintiff had agreed to buy and the defendant to sell a certain specific cow named “Rose 2nd of Aberlone." Both parties supposed at the time that she was barren. Later it developed that she was fertile. The plaintiff was denied a recovery on various theories. One of them was that, the cow

62–158 Mass. 178.


63_Sherwood Mich. 568.



being not barren, but fertile, she was not in fact the animal the defendant intended to sell.64 On this theory, that every material statement as to the nature of the chattel sold is part of the identifying description, there is no such thing as a warranty. Every “warranty" becomes a condition.65

Another theory is that although the parties have contracted concerning the specific property delivered and received, they have been mutually mistaken regarding its nature. Because of this mutual mistake a rescission will be allowed.66

As a matter of fact the cases are probably sui generis. The whole modern idea of warranty is that a promise to indemnify is judicially "implied”, or simply imposed, as the result of an express or implied statement about the goods. If the courts can imply a promise to indemnify the buyer, there is no reason why they can not imply a promise, or, what is the same thing in effect, impose a liability to take back the goods. At any rate, many courts allow the buyer to return the goods and recover his

* 64–Accord, Harvey v. Harris, kept the note. The court held this 112 Mass. 32; Gardner v. Lane, 12 keeping to be a taking on the Allen (Mass.) 39; Chapman V. theory that the owner had never Cole, 12 Gray (Mass.) 141.

given the £10 note to the defend. 65—This idea, that the concept ant and the legal possession of it in the minds of the parties is the had continued always in the orig. real subject matter of their con- inal owner. Wolfstein v. People, tract and their objective indica- 6 Hun (N. Y.) 121. tion of some tangible chattel is On the other hand these cases only an incorrect attempt at de- are out of harmony with those in scribing it, is supported by some which a seller is held to have of the cases in criminal law. Lar. dealt with the physical personality ceny requires a wrongful taking before him regardless of the conof property. In Regina v. Hehir, cept of personality which may (1895] 2 Ir. R. 709, the owner had have been in his mind. See post, deliberately given a certain tangi

p. 227. ble piece of paper to the defend. 66—Newell v. Smith, 53 Conn. ant. Both parties thought this 72; Sherwood v. Walker, 66 Mich. tangible thing was a £1 note. In 568. fact it was a £10 note. On discov. 67—Western Commercial Co. v. ering the mistake the defendant Western Wholesale Drug Co., 29

*See Uniform Sales Act, Section 69, (1), (2), (3), (4), (5).

money. 67*

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