He who has title also has the right to any gain or increase derived from the article. He who bears the risk and burden is also entitled to the benefits.

Example. C purchases B's flock of sheep and leaves them in B's possession, delivery and payment to be later. B shears the wool. C sues B for its value. C may recover. The title passed to him and the wool is his. So if lambs are born of these sheep they belong to C. On the other hand, if any of the sheep die the loss falls on C.

III. PERFORMANCE

51. Duties of the seller. The duties of the seller in performance of his contract may be briefly enumerated as follows.

1. It is the duty of the seller to deliver the goods in accordance with the terms of the contract. Whether he is to send them or the buyer is to call for them will depend upon the contract. If nothing appears in this respect, the place of delivery is ordinarily the seller's place of business or residence or the place where the goods are at the time of the sale. If no time is fixed, a reasonable time is understood.

2. It is the duty of the seller to deliver the quantity specified. If he delivers less, the buyer may reject them. If he delivers more, the buyer may take what he contracted for and reject the rest, or he may reject the whole. The buyer is not bound to accept delivery in installments, unless he has agreed to do so.

3. It is the duty of the seller to deliver the quality specified. The buyer must be allowed a reasonable opportunity to inspect the goods, if he did not inspect them when he purchased them, and he is not deemed to have accepted them until he has had such opportunity of examining them in order to see if they conform to the contract. He is deemed to have accepted them when he intimates that fact to the seller, or exercises ownership over them, or retains them without dissent after the lapse of a reasonable time. If the buyer rightfully rejects the goods, he is not bound to return them to the seller, but must permit the seller to take them.

4. It is the duty of the seller to confer upon the buyer a good title to the goods.

5. It is the duty of the seller to make good all representations and warranties expressed or implied in the contract of sale. This is more fully explained under Warranties, post.

52. Duties of the buyer. The duties of the buyer, after a contract of sale and purchase is made, are as follows.

1. It is the duty of the buyer to accept the goods. If he refuses to do so, the seller may sue for the price if title has passed to the buyer, or for damages if title has not passed.

2. It is the duty of the buyer to pay for the goods. Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions. If the price is agreed upon, that must be paid. If no price is agreed upon, a reasonable price, namely the market price, is understood.

IV. WARRANTIES

53. Definition and classification. A warranty is a contract of indemnity made by a seller of goods in favor of the buyer, to protect the latter against the failure of one or more terms of the contract of sale.

A true warranty, that is, an express warranty, is collateral to the main contract of sale. Warranties that are a term in the main contract are really conditions. The latter, however, are often classed with implied warranties and are treated under the general head of warranties.

A warranty may be either express or implied.

An express warranty is a promise or affirmation by the seller of a material fact concerning the goods which has a natural tendency to induce the buyer to purchase them.

An implied warranty (or condition) is one which arises from the acts and conduct of the parties, or from custom or usage, or by operation of law.

Examples: 1. B buys goods of C, who assures B (that is, warrants) that they have fast colors. This is an express warranty. It is not necessary to use the word "warrant 66 or warranty." If the colors run, there is a

breach of the warranty.

2. It turns out that C did not own the goods. There is a breach of the implied warranty of title which accompanies every sale.

3. D orders of E a quantity of goods by sample. There is an implied warranty (or condition) that the goods when received shall correspond with the sample.

54. Express warranties. The express warranty is gathered from the terms of the contract. If the contract be in writing and unambiguous, the construction is for the court. If the contract be by parol, the construction, unless too clear for any difference of opinion, is for the jury. If the contract is in writing, an oral express warranty cannot, save in very exceptional cases, be added to it. If the seller first makes statements amounting to warranties, and then declares he will not warrant, there is no warranty. But his unexpressed intention not to warrant will not avail him if he uses apt words. It is not his intention but the impression reasonably produced upon the mind of the buyer by his words or conduct that is the test.

The presence of an express warranty will not exclude an implied warranty unless the express warranty be inconsistent with it.

General warranties of "soundness" and the like will not ordinarily cover specific defects obvious to the buyer; but they will cover defects about which a buyer expresses doubt after an examination. A particular warranty will cover a particular defect if intended to do so, although the defect may be patent.

Expressions of opinion or "puffs" do not amount to war

ranties.

Examples: 1. B in selling a horse says, "This horse is sound." There is visible a large bunch upon the horse's leg. The warranty does not cover this defect, although it does cover other defects not obvious.

2. A buyer in looking at sheep thinks he has discovered foot rot. The seller assures him that he is mistaken and warrants the sheep to be sound. The general warranty covers foot rot.

3. "These sheep will shear from six to ten pounds of wool a head, and you can pay for the sheep in two years from the wool," is a mere statement of opinion or "puff," and the buyer should not rely upon it. So also the statement"This is an A No. I bond."

55. Implied warranties. The following are the principal implied warranties that are attached to a contract of sale.

1. Warranty of title. There is an implied warranty by the seller that he has a right to sell the goods, that the buyer shall have and enjoy quiet possession of them, and that they shall be free from any charge or incumbrance in favor of any third person; or in other words, a warranty of title. If this warranty is broken and the buyer deprived of the goods, he may recover the purchase price paid, with interest.

Exceptions. This does not attach, however, to a sale made by a sheriff or other person who sells under authority of law, nor, in general, to a sale in which the seller undertakes to transfer only such property as he or the person he represents may have in the goods; as, for example, a sale by an assignee in bankruptcy, an administrator or executor, a trustee, or a mortgagee under a power of sale. But it does attach to the ordinary sales in the business world.

2. Sale by description. (a) In the sale of goods by description there is an implied warranty that the goods shall correspond with the description. (b) If the goods are bought by description from a seller who deals in goods of that description, there is an implied warranty that the goods shall be of merchantable quality.

Examples: 1. B orders of C "early strap-leaf red-top turnip seed for raising turnips for the market. C furnishes seed which B plants. The crop is late and fit only for cattle. No inspection of the seed by B could reveal that they did not correspond with the description. B has an action against C for breach of the implied warranty that the seed should correspond with the description. It is immaterial that C believed that the seed were of the kind ordered. B may recover as damages the difference between the market value of the crop raised and the market value of the one he would have raised had the seed he ordered been furnished.

2. B orders ice of C to be shipped from Maine to Boston. There is an implied warranty that the ice shall be of merchantable quality. But if B has examined the ice before shipment, there is no implied warranty as to any defect which such examination ought to have revealed.

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3. Sale by sample. In a sale by sample there is an implied warranty (a) that the bulk shall correspond with the sample in quality, and (b) that the goods shall be free from any defect

rendering them unmerchantable which would not be apparent on reasonable examination of the sample.

Example 3. B ordered of C certain "corkscrew worsted coatings" to correspond in weight and quality with samples supplied B. The cloth when made up into coats gave way at the seams, owing to some defect in the manufacture. The bulk corresponded with the sample, so there was no breach of that warranty. But it was unfit for the purpose to which such material is ordinarily put, and this was a breach of the warranty of merchantability. B could not reasonably discover this defect from the sample, nor, indeed, from the bulk until the cloth was actually made up into garments.

The buyer must be given a reasonable opportunity to compare the bulk with the sample, and in sales by description he must have reasonable opportunity for inspection.

There may be in the same sale an implied warranty as to description and also as to sample. Such was the case in the example last given. The goods were to be "corkscrew worsted coatings" and were also to correspond with the sample.

4. Fitness for particular purpose. Where the buyer makes known to the seller, who is the grower or the manufacturer of the goods, the particular purpose for which such goods are required, relying upon the seller's skill or judgment, there is an implied warranty that the goods shall be reasonably fit for such purpose. In England and in some of our states the implied warranty of fitness extends to sales by dealers who do not grow or manufacture the article; but generally in this country it is confined to growers, producers, or manufacturers.

Examples: 4. B orders of C, a carriage maker and repairer, a new pole for his carriage. The pole breaks, owing to a defect, and the carriage is damaged. C is liable to B for the damages. There is a breach of the implied warranty that the pole shall be reasonably fit for the purpose.

5. B orders of C, a manufacturer of cloths, a quantity of "indigo blue cloth." B is a woolen merchant, but is not known to C to be a tailor. B makes the cloth up into liveries, and the cloth soon shows defects. There was no implied warranty that the cloth was fit for that purpose, because the purpose was unknown to the seller. There might be a breach of the implied warranty of merchantability, but this would depend upon other circumstances. Had the order been “indigo blue cloth suitable for liveries," there would have been an implied warranty of fitness.