tract are such as to show a different intention, there is an implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell, he will have the right to sell the goods at the time when the property is to pass." 1 3 155. This Engagement is not collateral to the Sale Contract. Before the enactment of this statute the English cases called such engagement a warranty; 2 and that term, rather than condition, is employed by American judges and writers. In both countries, however, there is ample authority for the view that this undertaking is an essential element of the sale contract," a breach of which entitles the purchaser to treat the contract as repudiated. Its true character is accurately presented in an early Kentucky decision. "This implied warranty is not of the character supposed in the argument, which requires a recovery of the goods by the right owner before an action can be maintained by the purchaser, but is in the nature of an implied undertaking on the part of the seller that the commodity he sells is his own; and that in an action upon such an undertaking, it is a sufficient breach to allege that the property belongs to some other." The same view is held in Tennessee,7 6 1 Sale of Goods Act, § 12 (1); Nevels v. Kentucky Lumber Co. (Ky.); 56 S. W. 969 (1900); Burdick's Cases on Sales, 681. Edwards v. Pearson, supra; Medina v. Stoughton, 1 Ld. Ray. 593 (1700); Burdick's Cases on Sales, 677. Shattuck v. Green, 104 Mass. 42, 45 (1870); Boyd v. Bopst, 2 Dallas, 91 (1785); Burdick's Cases on Sales, 679; Hafer v. Cole, Ala.; 57 So. 757 (1912). • Kent's Com. 478; Biddle on Warranties, §§ 224-262. It is called a warranty in the Uniform Sales Act, Mass. L. 1908, ch. 237, § 13 (1), but its breach gives to the warrantee the right to refuse to accept the goods, if property has not passed, and if it has, the right to rescind the sale. Ibid. § 69 (1). Eichholz v. Bannister, 17 C. B. N. s. 708 (1864); Burdick's Cases on Sales, 279; Marshall v. Duke, 51 Ind. 62 (1875), and authorities hereafter cited. 680. Payne v. Rodden, 4 Bibb, 304 (1816); Burdick's Cases on Sales, 7 Word v. Cavin, 1 Head, 506 (1858). "The implied stipulation, resulting from the contract, that the property was in the seller. . . is undoubtedly false, and, in view of the law, is broken the instant it is made, if the title were in a third person." Massachusetts,1 West Virginia,2 and perhaps other jurisdictions.3 In some 156. It is treated as Collateral by some Courts. jurisdictions, however, this engagement of the seller is treated as a warranty in its narrow sense. It is deemed collateral to the sale contract, not one of its essential terms. One court has held that the seller warrants "a title sufficient to retain the possession in the vendee of the chattels," and that this warranty is not broken "until the vendee's possession of the goods is in some way disturbed, by reason of the title of the true owner." Other courts liken this engagement of the seller of chattels to the covenant for quiet enjoyment of land, and hold that "when the vendee relies upon it he must either restore to the true owner the property in question, or be prepared to prove its loss under compulsory proceedings, or the payment of money through judgment obtained against him, or voluntarily in answer to a claim made, and in that case must also affirmatively establish that the claimant was the true owner, and that his vendor was without title." 5 157. Reasons assigned for this View. - Various considerations are suggested in support of this doctrine. It is said, "the owner may never claim and enforce his title, or if he does, 1 Grose v. Hennessey, 13 Allen, 389 (1866); Burdick's Cases on Sales, 282. The buyer was allowed to recover as damages the purchase price of chattels, although he had not been disturbed in their possession. It was said: "The rules which belong to the covenants of seisin and warranty in conveyances of real property have no application." 2 Byrnside v. Burdett, 15 W. Va. 702, 720 (1879). Story on Sales is referred to as opposed to this view; but he supports it. His statement is: "Where there is a total failure of title on the part of the vendor, the vendee may, if the contract is executory and unfulfilled, refuse to perform it, and reclaim any portion of the purchase-money which he may have advanced. So, also, if the contract be executed, he may rescind it, and bring an action of money had and received to recover his advances." § 203 (4th ed.); Cogar v. Burns Lumber Co., 46 W. Va. 256; 33 S. E. 219 (1899), accord. See Matheny v. Mason, 73 Mo. 677 (1881); Flynn v. Allen, 57 Pa. St. 482 (1868); City of Great Falls v. Theis, 79 Fed. 943 (1897). 4 Gross v. Kierski, 41 Cal. 111 (1871). O'Brien v. Jones, 91 N. Y. 193, 197 (1883). 4 the seller may settle with him." Again, "if" the buyer's 'possession remains undisturbed, his title will be perfected by lapse of time."2 Still again, "the breach implies no bad faith, and is, therefore, compatible with fair dealing; and the indemnity is complete by responding therefor after a recovery under the paramount title." 3 In some cases, which announce this doctrine, the buyer was in undisturbed and unquestioned possession of the property, or he did not offer to prove to whom it did belong. In the last-cited case, Vredenburg, J., said: "It will hardly do, when a person has thus reaped the benefit of a sale, and is holding the proceeds in his pocket, when called upon to pay, to answer: "True, I bought; true, I am enjoying the thing I purchased; true, I cannot say who does own it; true, nobody else claims it; but, if the court will permit me, I will entertain them and the jury some days, seeing if I can find somebody in whom I can show some claim."" 158. Engagement for Quiet Possession. - Undoubtedly the seller's engagement for quiet possession, whether express or implied, is collateral to the main purpose of the sale contract. The buyer's rights, therefore, in case of its breach, do not extend to a repudiation of the sale and a recovery of the purchase price, but are confined to a claim for damages. 159. Seller's Engagement that the Goods are not encumbered. The English statute distinguishes a warranty against encumbrances from the seller's engagement as to title, because a 1 Case v. Hall, 24 Wend. (N. Y.) 102 (1840). This doctrine has been set aside in New York by the Uniform Sales Act. See notes to ¶ 155. 2 Johnson v. Ehming, 95 Ala. 189; 10 So. 430 (1891); Burdick's Cases on Sales, 283, holding that the buyer cannot rescind the contract and return the property to the seller, although the latter had not title. Close v. Crossland, 47 Minn. 500, 502; 50 N. W. 694 (1891). Wanser v. Messler, 29 N. J. L. 256 (1861). 6 Cases in the last four notes; Sale of Goods Act, § 12 (2). In Scotland, and in a few of our States, a breach of warranty entitles the buyer to rescind the sale. Infra, ch. v. § 6. Uniform Sales Act, § 69. 7 Sale of Goods Act, § 12 (3). No such distinction is made by the Uniform sales Act, § 13. breach of the former does not go "to the whole value of the contract." This distinction has received but little attention from writers 2 or judges. In fact, some of the judicial opinions which have maintained most strenuously the doctrine, that the seller's engagement as to title is a warranty as distinguished from a condition, have been pronounced in cases where the sole issue was the seller's liability for a breach of his stipulation against encumbrances.1 160. Damages for Breach of Engagement as to Title. — It appears to be the general rule in this country that the measure of damages, upon a failure of title, is the purchase price paid with interest. In England, however, the buyer may recover the purchase price if paid; or he may sue for unliquidated damages. This view is held in some of our States; and if he sues for damages, he may recover the "difference in value between such title as he took and such title as the" seller engaged to convey." Even in New York, if the seller's failure of title prevents him from delivering the goods, the buyer may recover as damages the difference between the contract price and the value at the time of breach.8 1 Sanders v. Maclean, 11 Q. B. D. 327, 337; Brett, M. R. (1883). Cf. Bevan v. Muir, 53 Wash. 54; 101 Pac. 485 (1909). 2 Biddle on Warranties, § 234; Benjamin on Sales, Bennett's notes, pp. 672-676 (ed. 1899). 3 Dresser v. Ainsworth, 9 Barb. 619 (1850); Brown v. Cockburn, 37 Up. Can. Q. B. 592 (1876); Burpee v. Holmes, 132 Ga. 464; 64 S. E. 496 (1909); St. Anthony & D. El. Co. v. Dawson, 20 N. D. 18; 126 N. W. 1013 (1911); Clevenger v. Lewis, 20 Okla. 837; 95 Pac. 230; 16 L. R. A. N. s. 410 (1908); Baker v. Shaw, 68 Wash. 99; 122 Pac. 611 (1912). Hunt v. Sackett, 31 Mich. 18 (1875); Close v. Crossland, 47 Minn. 500; 50 N. W. 694 (1891). 5 Converse v. Miner, 21 Hun (N. Y.), 367, 375 (1880); Moorehead v. Davis, 92 Ind. 303, 306 (1883); Suth. on Damages, § 669. The vendor cannot cut down the recovery by showing that the goods were worth much less than he sold them for. Wilkinson v. Ferree, 24 Pa. St. 190 (1855). • Chalmers' Sale of Goods Act (7th ed.), 39. 7 Grose v. Hennessey, 13 Allen (Mass.), 389 (1866); Burdick's Cases on Sales, 282. 8 Lister v. Windmuller, 52 N. Y. Supr. Ct. (20 J. & S.) 407 (1885). The time of breach was declared to be either when the seller absolutely refuses to deliver, or announces his inability to deliver. 161. Damages for Breach of Engagement as to Quiet Possession and Encumbrances. In case the warranty for quiet possession or the warranty against encumbrances is broken, the buyer may recover as damages, not only the value of the property, but all his losses resulting from such breach.1 Such is the rule, too, upon a breach of the condition as to title, if the buyer is unable to restore the goods because of their alteration, consumption, destruction, or the like.2 162. When these Engagements will not be implied. — The foregoing condition and warranties will not be implied when the circumstances show that the parties intended they should not attach to the contract. Such intention is apparent where the subject-matter of the contract is not the general property in the goods, but whatever title or interest the seller has. Accordingly, if the seller offers the goods in an official capacity, or as the owner of a limited interest, such as assignee in insolvency, administrator or executor,5 commission merchant," or other agent offering the goods as those of his disclosed principal,' constable or sheriff,8 mortgagee, pledgee 10 or trustee,"1 or if they are offered with notice to the buyer of an adverse claim by a third person,12 or at the buyer's risk,13 any implied 1 Thurston v. Spratt, 52 Me. 202 (1863). 9 13 2 Doctrine affirmed in Uniform Sales Act, Mass. L. 1908, ch. 237, §§ 13 (1), 69 (6). Gould v. Bourgeois, 51 N. J. L. 361; 18 At. 64 (1889); Burdick's Cases on Sales, 285. ♦ Johnson v. Laybourn, 56 Minn. 332; 57 N. W. 933 (1894); Burdick's Cases on Sales, 289. Mellen v. Boarman, 21 Miss. 100 (1849). • Irwin v. Thompson, 27 Kans. 643 (1882). Seemuller v. Fuchs, 64 Md. 217; 1 At. 120 (1885), holding an auctioneer who sold without disclosing his principal liable on an implied warranty of title. Forsythe v. Ellis, 4 J. J. Marshall (Ky.), 298 (1830). • Harris v. Lynn, 25 Kans. 281 (1881). 10 Morley v. Attenborough, 3 Exch. 500 (1849); Burdick's Cases on Sales, 291. 11 Cohn v. Ammidown, 120 N. Y. 398; 24 N. E. 944 (1890). 12 Barbee v. Williams, 4 Heisk. (Tenn.) 522 (1871). 13 Porter v. Bright, 82 Pa. St. 441 (1876); Burdick's Cases on Sales, |