Properly when the seller seeks in replevin to regain the posses sion from the carrier or an officer levying on the goods at the suit of other creditors of the buyer he should allege and base his right on his special property. Still if he does allege the absolute or general ownership, and without objection the case is tried on the theory of his right of stoppage in transitu, the objection cannot be first raised on appeal, as it is an error which could have been met by amendment.? The commencement of an action for the price of the goods by the seller's attorney without his knowledge, neither of them being apprised that the transitus is not terminated, is no waiver of the right of stoppage if asserted in a reasonable time, and if the improvident action is not prosecuted. On the other hand if the seller claims title under the buyer, as by indorsement of the bill of lading, or by any other act of transfer, he does not rely on his own right of stopping in transitu; but, on the contrary, he affirms and establishes the sale in a manner inconsistent with that right.*

5

XIV. WARRANTIES

General Principles

425. Definition and Nature.-A warranty is an express or implied statement of something which a party undertakes shall be a part of the contract, and, though part of the contract, collateral to the express object of it; and while it is a concomitant, it is also a collateral, self-existent contract, and no more a part of the sale than a covenant of warranty in a deed is part of the conveyance. This is well exemplified by a case where the court construed the complaint in an action by the buyer as based on a failure to perform the agreement to sell and denied thereunder a right to recover for the breach of an implied warranty arising from the sale. All contracts of sale with warranty must contain two independent stipulations: (1) an agreement for the transfer of title and possession from the seller to the buyer; (2) a further agreement that the subject of the sale has certain qualities and conditions. Warranties are generally divided into two classes, express

2. Rucker v. Donovan, 13 Kan. 251, 2 K. B. (Eng.) 323, 6 Ann. Cas. 109. 19 Am. Rep. 84. See also McCaa v. Elam Drug Co., 114 3. Calahan v. Babcock, 21 Ohio St. Ala. 74, 21 So. 479, 62 A. S. R. 88. 281, 8 Am. Rep. 63.

Note: 6 Am. Dec. 115.

6. McFarland v. Newman, 9 Watts 8 Pick. (Pa.) 55, 34 Am. Dec. 497.

Note: 29 Am. Dec. 387. 4. Naylor v. Dennie, (Mass.) 198, 19 Am. Dec. 319. Note: 29 Am. Dec. 393.

5. Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372, 16 A. S. R. 753; Watts v. Stevens, [1906]

7. McCaa v. Elam Drug Co., 114 Ala. 74, 21 So. 479, 62 A. S. R. 88.

8. Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372, 16 A. S. R. 753.

and implied. A guaranty, in its strict legal and commercial sense, is said to be an undertaking by one person to be answerable for the payment of some debt, or the due performance of some contract or duty by another person, who himself remains liable to pay or perform the same. Originally, the words "warranty" and "guaranty" were the same, the letter "g" of the Norman French being convertible with the "w" of the German and English, as in the name of William or Guillaume. They are now sometimes used indiscriminately; but in general, warranty is applied to a contract as to the title, quality, or quantity of a thing sold; and guaranty is held to be the contract by which one person is bound to another for the fulfilment of a promise or engagement of a third person.10 Though the word "guaranty" is used in stating the undertaking of the seller relating to the quality, condition or the like of the subject matter of the sale, it may constitute a warranty as distinguished from a guaranty in its technical sense.11 Where misrepresentations by the seller are made the basis of a charge of fraud, it is ordinarily necessary that the buyer should have relied on the representations,12 but one who examines an article himself and relies on his own judgment may at the same time protect himself by taking a warranty.18

426. Time of Warranty; Consideration.-A warranty, although a collateral contract, must form part of the transaction involving the sale. It is ordinarily made at the time of the sale, in which case it is supported by the price paid or agreed to be paid; but it may be made afterwards, in which case it must be supported by a new consideration, because the consideration already given, that is, the price paid, is exhausted by the transfer of the property in the goods without a warranty, and there is nothing to support the subsequent agreement to warrant, unless a new consideration be given.15 Thus representations as to soundness do not constitute a warranty, where they were made. after the sale was complete, and did not enter into the consideration of the parties before the sale.16 On the other hand the fact that the terms

9. Osgood v. Lewis, 2 Har. & G. (Md.) 495, 18 Am. Dec. 317.

10. Sturges v. Circleville Bank, 11 Ohio St. 153, 78 Am. Dec. 296. See also Wiley v. Athol, 150 Mass. 426, 23 N. E. 311, 6 L.R.A. 342; Field v. Lamson, etc., Mfg. Co., 162 Mass. 388, 38 N. E. 1126, 27 L.R.A. 136; Pacific Power, etc., Co. v. White, 98 Wash. 18, 164 Pac. 602, Ann. Cas. 1918B 125. Note: 105 A. S. R. 506.

11. Wiley v. Athol, 150 Mass. 426, 23 N. E. 311, 6 L.R.A. 342. 12. See infra, par. 627.

13. Smith v. Hale, 158 Mass. 178,

33 N. E. 493, 35 A. S. R. 485.

14. Hexter v. Bast, 125 Pa. St. 52, 17 Atl. 252, 11 A. S. R. 874.

15. Towell v. Gatewood, 2 Scam. (Ill.) 22, 33 Am. Dec. 437; Summers v. Vaughan, 35 Ind. 323, 9 Am. Rep. 741.

Notes: 48 A. S. R. 353; 13 L.R.A. 679; 49 L.R.A. (N.S.) 1152; 6 Eng. Rul. Cas. 39; 23 Eng. Rul. Cas. 462.

16. Cady v. Walker, 62 Mich. 157, 28 N. W. 805, 4 A. S. R. 834. See also Erwin v. Maxwell, 7 N. C. 241, 9 Am. Dec. 602.

Note: 11 A. S. R. 879.

of a sale had been agreed on and a part payment made will not render unenforceable a subsequent warranty made at the time the balance is paid and the chattel delivered.17 It is not necessary that representations, in order to constitute a warranty, should be simultaneous with the conclusion of the bargain, but only that they should be made during the course of the negotiations that lead to the bargain, and should then enter into the bargain as a part of it.18 And it has been held that representations privately made in regard to property which has been advertised for sale at public auction may become the foundation of an action for breach of warranty in favor of one who, in reliance on them, bids in the property.19 So a statement that the seller would warrant a certain commodity has been held, under the circumstances, in the nature of a continuing offer which became binding on him as a warranty when at a later date the commodity was ordered by the buyer.20 Antecedent representations, however, forming no part of the contract as concluded cannot be regarded as a warranty and evidence of representations made some time before the sale offered to establish a warranty has been rejected as too remote.1

427. Conditions; Legality of Sale.-Conditions precedent to the taking effect or enforcement of the warranty may be annexed to it by express agreement of the parties, and the courts will give effect thereto unless the condition has been waived. If the sale is illegal because it was made on Sunday, an action on a warranty in such sale will not lie. It has been held under the code form of pleading that where nothing appears on the face of the complaint showing the illegality of the sale, the defense of illegality is in the nature of an affirmative defense which to be available must be pleaded; and though the terms of the sale were settled on Sunday, if the contract was not carried out by delivery and payment until the following day, when the same terms are again agreed on, the latter, eliminating what took place on Sun

17. Douglass v. Moses, 89 Ia. 40, 56 44 N. W. 237, 18 A. S. R. 348; RobinN. W. 271, 48 A. S. R. 353.

Note: 13 L.R.A. 679.

18. Leavitt v. Fiberloid Co., 196 Mass. 440, 82 N. E. 682, 15 L.R.A. (N.S.) 855; Hobart v. Young, 63 Vt. 363, 21 Atl. 612, 12 L.R.A. 693; Pacific Power, etc., Co. v. White, 96 Wash. 18, 164 Pac. 602, Ann. Cas. 1918B 125. Note: 13 L.R.A. 678.

19. Crosman v. Johnson, 63 Vt. 333, 22 Atl. 608, 13 L.R.A. 678.

20. Leavitt v. Fiberloid Co., 196 Mass. 440, 82 N. E. 682, 15 L.R.A. (N.S.) 855.

son v. Berkey, 100 Ia. 136, 69 N. W. 434, 62 A. S. R. 549; Fahey v. Esterley Mach. Co., 3 N. D. 220, 55 N. W. 580, 44 A. S. R. 554; Aultman, etc., Co. v. Gunderson, 6 S. D. 226, 60 N. W. 859, 55 A. S. R. 837; Lewis v. Hubbard, 1 Lea (Tenn.) 436, 27 Am. Rep. 775.

3. Finley v. Quirk, 9 Minn. 194, 86 Am. Dec. 93; King v. Graef, 136 Wis. 548, 117 N. W. 1058, 128 A. S. R. 1101, 20 L.R.A. (N.S.) 86. See supra, par. 119, as to the validity of sales made on Sunday.

1. Note: 13 L.R.A. 678. 4. Finley v. Quirk, 9 Minn. 194, 85 2. Russell v. Murdock, 79 Ia. 101, Am. Dec. 93.

day, may constitute a valid sale with warranty, so as to enable the buyer to maintain an action for its breach.5

428. Executory Contracts of Sale Generally.-In addition to the mere contract of sale, a seller may warrant that the article shall have certain qualities. This agreement to warrant, in an executory contract of sale, is just as obligatory as a warranty on a present sale and delivery of goods. On the other hand words merely descriptive of the kind or quality of the commodity to be delivered, according to the view taken. in some jurisdictions, are not to be regarded as an express warranty which will survive acceptance by the buyer, but rather as in the nature of conditions precedent to be performed by the seller to impose liability on the buyer to accept. And it has also been held that a provision that manufactured articles ordered from a manufacturer shall agree with the plans and specifications or that they shall be manufactured in a careful, workmanlike and skilful manner does not constitute an express warranty, since it is merely what the law implies and therefore liability thereon does not ordinarily survive acceptance. In other jurisdictions words descriptive of kind, quality or condition used in executory contracts are given the effect of express warranties, liability on which may survive the acceptance to the same extent practically as express warranties in executed contracts." The view has been taken that until the executory contract has been performed to the extent of vesting the title in the buyer, the warranty is ineffectual to constitute technical warranty on which the buyer can maintain a claim for damages as for a breach.10

429. Conditional Sales; Goods Not in Esse.-It has been held that where the title is reserved by the seller until the price is paid, the buyer

5. King v. Graef, 136 Wis. 548, 117 N. W. 1058, 128 A. S. R. 1101, 20 L.R.A. (N.S.) 86.

6. Underwood v. Wolf, 131 Ill. 425, 23 N. E. 598, 19 A. S. R. 40; Bushman v. Taylor, 2 Ind. App. 12, 28 N. E. 97, 50 A. S. R. 228; Morse v. Moore, 83 Me. 473, 22 Atl. 362, 23 A. S. R. 783, 13 L.R.A. 224; Day v. Pool, 52 N. Y. 416, 11 Am. Rep. 719; Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 57, 52 Am. Rep. 63; Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372, 16 A. S. R. 753; Watts v. Stevens, [1906] 2 K. B. (Eng.) 323, 6 Ann. Cas. 109.

Notes: 25 L.R.A. (N.S.) 160.
See supra, par. 265.

7. Reed v. Randall, 29 N. Y. 358, 86 Am. Dec. 305; Studer v. Bleistein, 115 N. Y. 316, 22 N. E. 243, 5 L.R.A.

702; Waeber v. Talbot, 167 N. Y. 48, 60 N. E. 288, 82 A. S. R: 712; Heath Dry Gas Co. v. Hurd, 193 N. Y. 255, 86 N. E. 18, 25 L.R.A. (N.S.) 160.

Notes: 25 L.R.A. (N.S.) 160; 35 L.R.A. (N.S.) 270.

8. Heath Dry Gas Co. v. Hurd, 193 N. Y. 255, 86 N. E. 18, 25 L.R.A. (N.S.) 160.

9. Underwood v. Wolf, 131 Ill. 425, 23 N. E. 598, 19 A. S. R. 40; Tacoma Coal Co. v. Bradley, 2 Wash. 600, 27 Pac. 454, 26 A. S. R. 890.

Note: 25 L.R.A. (N.S.) 161.

See supra, par. 264, as to the effect of an acceptance as a waiver of defects generally.

10. Bunday v. Columbus Mach. Co., 143 Mich. 10, 106 N. W.. 397, 5 L.R.A. (N.S.) 475.

cannot before payment maintain an action for breach of a warranty of quality contained in the contract, especially where the damages claimed are general which merely affect the value of the thing.11 On the other hand it seems that the buyer may set up the breach of warranty to the extent of the general damages in diminution of a recovery of the purchase price.12 And he may also recover any special damage that he may have suffered from the breach of warranty, such as losses resulting from the failure of the thing purchased to serve the purpose for which it was intended; for though no one can be injured by a diminution in value of a chattel until he owns it, he may be injured by the failure of a thing to do the work he wants it for, no matter who owns it.18 And where the seller seeks to recover the chattel in replevin for nonpayment of the price it has been held that the buyer may defend by pleading the breach of warranty by way of recoupment in diminution or extinction of the price; 14 though in other cases the right of the buyer to set up such a claim where the seller seeks in replevin to regain the possession has been denied.15 Blackstone says that a warranty "can only reach to things in being at the time of the warranty made, and not to things in futuro," and his view seems to have received judicial recognition, though he cites no authority to support it, but the weight of authority seems to support the proposition that an express warranty in a contract of sale of goods not in being at the time the warranty is made may be valid and binding and become operative on delivery of goods under the contract. 16

430. Parties to Warranty Generally.-The question as to the authority of an agent authorized to make a sale to bind his principal by a warranty of the condition or quality of the chattel which he sells is discussed later. The general rule as there shown is that the agent does not ordinarily have authority so to bind his principal.17 Also it is the general rule that an executor or administrator in selling the chattels belonging to the estate of his decedent has no authority to bind the estate by a warranty of soundness or quality.18 The same is true as to the power of a sheriff or other officer who makes a judicial or execution

11. Bunday v. Columbus Mach. Co., 143 Mich. 10, 106 N. W. 397, 5 L.R.A. (N.S.) 475; New Hamburg Mfg. Co. v. Webb, 23 Ont. L. Rep. 44, 20 Ann. Cas. 817.

Notes: 20 Ann. Cas. 821; Ann. Cas. 1918B 914.

Cas. 817. As to conditional sales gen-
erally, see infra, par. 739 et seq.

14. Peuser v. Marsh, 218 N. Y. 505,
113 N. E. 494, Ann. Cas. 1918B 913.
15. Note: Ann. Cas. 1918B 914.
16. Watts v. Stevens, [1906] 2 K.
B. (Eng.) 323, 6 Ann. Cas. 109 and

17. See infra, par. 700 et seq.

12. New Hamburg Mfg. Co. v. note. Webb, 23 Ont. L. Rep. 14, 20 Ann. Cas. 817 and note. See also Peuser v. Marsh, 218 N. Y. 505, 113 N. E. 494, Ann. Cas. 1918B 913.

18. Able v. Chandler, 12 Tex. 88, 62 Am. Dec. 121.

Note: 71 Am. Dec. 121.

13. New Hamburg Mfg. Co. V. See EXECUTORS AND ADMINISTRAWebb, 23 Ont. L. Rep. 44, 20 Ann. TORS, vol. 11, p. 389.

1