right of parties to a contract for the purchase and future delivery of merchandise to contract in reference to the time and place of inspection, and such stipulation is generally enforced. It is probable that a limit of two days for inspection would be held reasonable where the defects are of a character that may be disclosed by an ordinary inspection, but where, as in this case, the defects are claimed to be latent, and such as are not generally discoverable by inspection, no such limitation will protect the seller. Under such circumstances the buyer's right includes a reasonable time within which to ascertain the quality of his purchase. What is a reasonable time here is a question of fact dependent upon the circumstances of each case and to be determined by the jury. We are of opinion that, if the evidence is to be believed, the defendants acted with due diligence in making the inspection and notifying plaintiff. It does not appear whether they did so by registered letter; but that is immaterial here; as it appears in evidence that plaintiff received defendant's communication and refused to take the goods back or remedy the trouble."

§ 67. Implied Warranties. Implied warranties are sometimes classed as conditions of a sale, differing from express warranties, which are in the nature of collateral agreements; that is, there may be a sale and in addition to that an express warranty, the breach of which will give an injured party a right of action. In the case of the implied warranty, however, it is in the contract itself by implication of law; and as we shall see, there may be two remedies in the case of a sale with an implied warranty, where there is a breach in the warranty. The usual implied warranties are (1) warranty of title, (2) warranty in sale by description, (3) warranty in sale by sample, (4) warranty of fitness for a particular purpose, and (5) warranty in the sale of provisions.

At common law, implied warranties were not favored. The rule of caveat emptor was strictly applied. This rule, expressed in the two Latin words just mentioned meaning "let the buyer beware", was supposed to be necessary in order to compel buyers to rely upon themselves as far as possible. If, however, a seller sold property knowing he

had no title, he was liable in an action of deceit; but it was late in the history of English law when the doctrine of implied warranty was firmly established. The American doctrine has generally been that one selling goods in his possession, warrants his right to do so. If the goods are out of his possession, the rule of caveat emptor may apply. Rule of Caveat Emptor Applied. In Barnard v. Kellogg, defendant bought a number of bales of wool which he afterwards refused to pay for on the ground that they had been falsely packed. He had been given a sample of the wool and an opportunity to inspect it all. The court said through Mr. Justice Davis:

"No principle of the common law has been better established or more often affirmed, both in this country and in England, than that in sales of personal property, in the absence of express warranty, where the buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the article he sells, the maxim of caveat emptor applies. Such a rule, requiring the purchaser to take care of his own interests, has been found best adapted to the wants of trade in the business transactions of life. And there is no hardship in it, because, if the purchaser distrusts his judgment, he can require of the seller a warranty that the quality or condition of the goods he desires to buy corresponds with the sample exhibited. If he is satisfied without a warranty, and can inspect and declines to do it, he takes upon himself the risk that the article is unmerchantable. And he can not relieve himself and charge the seller on the ground that the examination will occupy time, and is attended with labor and inconvenience. If it is practicable, no matter how inconvenient, the rule applies. One of the main reasons why the rule does not apply in the case of a sale by sample is because there is no opportunity for the personal examination of the bulk of the commodity which the sample is shown to represent. Of such universal acceptance is the doctrine of caveat emptor in this country that the courts of all the States in the Union where the common law prevails, with one exception (South Carolina), sanction it.

37 10 Wall. (U. S.) 383.

"Applying this acknowledged rule of law to this case, it is easy to settle the rights of the parties and to interpret the contract which they made. That the wool was not sold by sample, clearly appears. And it is equally clear that both sides understood that the buyer, if he bought, was to be his own judge of the quality of the article he purchased. Barnard expressly stipulated, as a condition of sale, that Kellogg would examine the wool, and he did examine it for himself. If Kellogg intended to rely on the samples as a basis of purchase, why did he go to Boston and inspect the bales at all, after notice that such inspection was necessary before the sale could be completed? His conduct is wholly inconsistent with a sale by sample. If he wanted to secure himself against possible loss, he should either have required a warranty or taken the trouble of inspecting fully all the bales. Not doing this, he cannot turn round and charge the seller with the consequences of his own negligence. Barnard acted in good faith and did not know, or have reason to believe, that the wool was falsely packed. The sale on his part was to be on the usual examination of the article, and the proceeding by Kellogg shows that he so understood it, and it is hard to see what ground of complaint he has even against Barnard. It will not do to say that it was inconvenient to examine all the bales, because, if inconvenient, it was still practicable; and that is all, as we have seen, that the law requires."

Warranty of Title. In the sale of a specific chattel there is an implied warranty that the goods belong to the vendor, unless the circumstances are such that a different intention is manifest, or that the vendor intended to transfer only such interest in the goods as he might have.

In an English case, Eichholz v. Bannister,38 the facts were that Eichholz bought of the defendant certain pieces of print, which defendant represented as a job lot just received. It turned out that the goods had been stolen from a warehouse and had come into Bannister's possession. Eichholz was compelled by order of the court to restore the goods to the rightful owner. He then requested the defendant to return the money he had paid for them, and on his request being refused, Eichholz sued Bannister

88 34 L. J. C. P. 105.

for the price of the prints. In stating the opinion of the court, Earle, C. J., said:

"If the vendor of a chattel at the time of the sale by words affirms that he is the owner, or by his conduct gives the purchaser to understand that he is such owner, then it forms part of the contract, and if it turns out that in fact he is not the owner, the consideration fails and the money so paid by the purchaser can be recovered back."

The American rule is that in every sale of personal property by one in possession and selling as absolute owner, there is an implied warranty.39 Where the vendor is not in possession the general rule appears to be the same, although there are decisions to the contrary, and the rule of caveat emptor is held to apply.40

Warranty in Sale by Sample. Bradford v. Manly11 was a case involving the sale of two casks of cloves, alleged to be sold by sample to the plaintiff. The sample shown to the plaintiff according to the testimony was of the best quality of Cayenne cloves, and the price charged was that of cloves of the best quality. It later proved that the cloves contained a mixture of Cayenne cloves and an inferior and distinct species of cloves, grown in the East Indies, worth less than the Cayenne clove. Plaintiff sued to recover the difference in value between the price he paid for the cloves and their real value as a mixture. The court in its opinion of the legal effect of a sale by sample said:

"The fair import of the exhibition of a sample is, that the article proposed to be sold is like that which is shown as a parcel of the article; it is intended to save the purchaser the trouble of examining the whole quantity. It certainly means as much as this: "The thing I offer to sell is of the same kind, and essentially of the same quality, as the specimen I give you.' I do not know that it would be going too far to say that it amounts to a declaration, that it is equally sound and good. But it is not necessary to go so far in the present case, and we are not disposed to question the correctness of the decision.

39 85 Ill. 16.

40 Scranton v. Clark, 39 N. Y. 220.

41 13 Mass. 139, 7 Am. Dec. 122.

"Surely if a man were to exhibit to me a parcel of Hyson tea as a sample, to induce me to buy a chest, and I should pay him the price of Hyson, and he should deliver me a chest of Bohea or Souchong, I might recover the difference in value, if he should refuse to do me justice, although he did not expressly warrant that the tea in the chest was the same as that in the sample. Indeed the exhibition of a sample must, in all fair dealing, stand in lieu of a warranty or affirmation. It is a silent, symbolical warranty, perfectly understood by the parties, and adopted and used for the convenience of trade."

Under the Sales Act12 there is an implied warranty that the bulk of goods bought by sample shall correspond with the sample in quality. The buyer is entitled under the Act to a reasonable opportunity of comparing the bulk with the sample, unless the goods are sent to the buyer collect on delivery, in which case the buyer is not entitled to examine them before payment of the price. The seller, if a dealer in goods of that kind, also impliedly warrants that the goods shall be free from any defect rendering them unmerchantable, which would not be apparent on reasonable examination of the samples.

Warranty in Sale by Description and Sample. Where an article is sold by description with a warranty that it shall be of a certain quality, and a sample is given, the article must fulfill both particulars. In the case of Gould v. Stein,48 the plaintiff ordered of the defendant by sample "102 bales second quality Ceara scrap rubber as per sample." When the bales arrived they were found to contain rubber like the sample but inferior to it in quality. The plaintiff sued for a breach of warranty and was allowed to recover. It was said:

"In the present case, by a fair and reasonable construction of the bought note, effect can be given to both of the phrases used to describe the rubber. Construed thus, the article sold was 102 bales of Ceara rubber, of the second quality, and as good as the samples. The rubber delivered

42 Uniform Sales Act, § 16.

48 149 Mass. 570; see also Wolcott v. Mount, 36 N. J. L. 262.