to carry out the contract. Plaintiffs thereupon sold abroad the iron which they had purchased to carry out the contract. The court said:

"We think no error is presented upon the record which requires a reversal of the judgment. The defendants having on the 12th of June, 1880, notified the plaintiff that they would not receive the iron rails or pay for them, and having informed them on the next day that if they brought the iron to New York they would do so at their own peril, and advised them that they had better stop at once attempting to carry out the contract, so as to make the loss as small as possible, the plaintiffs were justified in treating the contract as broken by the defendant at that time, and were entitled to bring the action immediately for the breach, without tendering the delivery of the iron, or awaiting the expiration of the period of performance fixed by the contract, nor could the defendants retract their renunciation of the contract after the plaintiffs had acted upon it and, by a sale of the iron to other parties, changed their position."

§ 56. Actual or Constructive. Delivery may be either actual or constructive. Actual delivery is where the goods themselves are placed in the possession of the vendee, and in the sale of heavy or bulky articles, as logs, or grain, a constructive or symbolical delivery alone is practicable. Such symbolic delivery may be made by the transfer by what is called a document of title. A document of title includes any bill of lading, dock warrant, warehousekeeper's certificate, or any order such as is used in the course of business for the delivery of goods. The transfer of such an instrument is sufficient to transfer whatever title to the goods was in the vendor.

6

It is sufficient delivery in some cases if the vendor points out the property and executes the bill of sale of it. In Thompson v. Willhite, the property involved was wheat, which had been levied upon by a constable. Thompson claimed to have purchased the wheat early in the summer before any judgment had been recovered against the ven

6 81 Ill. 357.

dor. At the time of the levy the wheat was cut and ready to be taken away. It was held that there had been sufficient delivery of the wheat to pass the title to the purchaser and that he had taken all the possession that it was possible for him to take.

§ 57. Articles Previously Inspected. When a buyer has had an opportunity to examine an article and does so and accepts it, the seller's duty is performed by delivery of the article. In a New York case involving a sale of hemp which the purchaser neglected to fully examine though offered an opportunity, the court said:

"This was not a sale by sample. Salisbury was told to examine, and did examine, the hemp for himself. He inspected the bales, cut open one of them, and was at liberty to open others, had he chosen to do so. If he was not satisfied of the quality and condition of the goods, he should either have proceeded to a further examination, or provided against a possible loss by requiring a warranty. Where the purchaser has an opportunity to inspect the goods, no principle is better settled than that the seller, in the absence of fraud, is not answerable for latent defects. The rule in such cases is caveat emptor. The judge erred in charging the jury that there was an implied warranty that the inside should correspond with the outside of the bales. It is unnecessary to examine the other exceptions taken on the trial."

§ 58. Goods in Warehouse. Many articles by their nature or bulk are incapable of manual delivery. This is especially true of grain and wheat, which are stored frequently for long periods. In such cases constructive delivery is sufficient. "The use of elevators for the storage of grain has introduced some new methods of dealing, but the rights of parties who adopt these methods must be determined by the principles of the common law. The proprietors of the elevators are the agents of the various parties for whom they act. When several parties have stored various parcels of grain in the elevator, and it is put into one mass, according to a usage to which they must 7 Salisbury v. Stainer, 19 Wendell (N. Y.) 159.

be deemed to have assented, they are tenants in common of the grain. Each is entitled to such a proportion as the quantity placed there by him bears to the whole mass. When one of them sells a certain number of bushels, it is a sale of property owned by him in common. It is not necessary to take it away in order to complete the purchase. If the vendor gives an order on the agents to deliver it to the vendee, and the agents accept the order, and agree with the vendee to store the property for him, and give him a receipt therefor, the delivery is thereby complete, and the property belongs to the vendee." 8

§ 59. Amount. It is the seller's duty to deliver no more and no less goods than the buyer orders. If he delivers more or less, the buyer may refuse to receive the goods. In the case of Norrington v. Wright, Justice Gray said:

"The seller is bound to deliver the quantity stipulated and has no right to compel the buyer to accept a less quantity, or to require him to select part of a greater quantity; and when the goods are to be shipped in certain proportions monthly, the seller's failure to ship the required quantity in the first month gives the buyer the same right to rescind the whole contract that he would have had if it had been agreed that all the goods should be delivered at once."

If the seller sends more, the buyer may take what he ordered and reject the rest; or if the seller sends less, the buyer may refuse to receive the goods. Unless the buyer orders the goods sent in installments, he is not obliged to receive them.

§ 60. Kind and Quality. It is also the seller's duty to deliver the kind and quality of goods ordered. If the buyer has not previously inspected and accepted the goods, then upon their delivery10 he is entitled to a reasonable time for their inspection and acceptance. If he decides to refuse the goods, he should notify the seller, but he is not obliged to return them to him. If a seller agrees to 8 Cushing v. Breed, 14 Allen (Mass.) 376, Am. Dec. 777.

9 115 U. S. 188.

10 Pope v. Allis, 115 U. S. 363, Holmes v. Gregg, 66 N. H. 621, 28 Atl. 17.

deliver goods on board a car or boat to be furnished by the vendee, the vendee must give notice of the time and place, when and where, the delivery may be made.

§ 61. Place of Delivery. "Where no place of delivery is designated in the contract of sale, the general rule is that the articles sold are to be delivered at the place where they are at the time of the sale. The store of the merchant, the shop of the manufacturer or mechanic, and the farm at which the commodity sold are deposited or kept, must be the place where the demand and delivery are to be made, when the contract is to be upon demand and is silent as to the place." 11

§ 62. Time of Delivery. Where goods are to be delivered by or on a certain day, they should be delivered for acceptance during the usual business hours of the day and at the usual place of business of the vendee according to the usages and customs of the party's business.

WARRANTIES

It is part of a seller's duty to fulfill and carry out all warranties undertaken in connection with a sale.

§ 63. Definition. "A warranty is a statement or representation made by the seller of goods, contemporaneously with and as a part of the contract of sale, although collateral to the express object of it, having reference to the character, quality or title of the goods, and by which he promises or undertakes to insure that certain facts are or shall be as he then represents them." 12

"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." 13

A warranty is a statement of fact not of opinion. It is not always easy to distinguish between a statement of fact and an expression of opinion. In Sauerman v. Simmons,14

11 2 Kent Comm. 505.

12 35 Cyc. 365.

13 Shaw, C. J., in Dorr v. Fisher, 1 Cush. (Mass.) 271.

14 74 Ark. 563, 86 S. W. 429.

it was held to be a question for the jury whether a statement that a pump "would lift water thirty-five feet on a straight lift" amounted to warranty. A sale of hams under the description of "choice, sugar cured, canvassed hams" was held in Torcheimer v. Stewart, 15 to be a statement of fact. The court said in that case:

"If the plaintiffs contracted for 'choice, sugar-cured, canvassed hams,' the defendant was bound to select and deliver such. And when he drew a draft against them, and caused the draft to be presented, and he accepted payment thereon at a time when the goods were in transit, we think that a warranty arose that the goods thus shipped and drawn against while in transit were of the quality contracted for."

§ 64. Power of Agents to Warrant. As a general rule, a selling agent has no authority to warrant goods, in the absence of usage, or custom in his line of business, though some American courts hold to the contrary. "No one would claim that where a principal should appoint an agent to contract for the sale of wheat, and such agent should contract for the sale of No. 1 wheat, the contract could be properly executed by the delivery of an inferior grade. An agent appointed to contract for the sale of hams is clothed with apparent authority to contract for the sale of at least the usual grades known in the market, and especially for the sale of such a grade as that in question, where the hams are to be shipped, in summer, to a distant southern market. It would be a reproach to the law to hold that a seller, under the circumstances shown, was not bound to fulfill his agent's contract as made."

§ 65. What Will Constitute a Warranty. That any positive statement in regard to the thing offered for sale, made at the time of making the contract and taken by the buyer as a warranty will be held a warranty whether so intended or not, was laid down in Hawkins v. Pemberton,16 where an adulterated vitriol was sold and bought as blue vitriol. The court said:

15 65 Ia. 593, 22 N. W. Rep. 886.

16 51 N. Y. 198, 10 Am. Rep. 595.