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sale to bind the defendant whose property is sold by a warranty either of title or condition and if he makes such a warranty it can only bind him personally.19 Members of a partnership are answerable for a warranty made by one of such members, in a sale of partnership property. Each partner is the general agent of the other in respect to the partnership affairs and the authority to sell imports authority to give the usual warranties. When a retailer sells an article, expressly stating that it is subject to the warranties included in the catalogues and circulars of the manufacturer, he thereby adopts such warranties as his own, and does not merely sell subject to such warranties as those of the manufacturer, a stranger to the transaction.21 On the other hand a manufacturer's printed warranty remaining pasted on an article when sold by a dealer, who has purchased from such manufacturer and sold to a third person without any express representation or warranty, does not bind such dealer. Where property is purchased from several persons as owners in common with a warranty by part of the owners only, those executing the warranty are the only necessary defendants in an action on the warranty.

431. Liability of Seller to Third Persons Generally.-The fact that a seller warrants the condition or quality of a thing sold does not itself according to the better view impose any liability on him to third persons who are in no way a party to the contract. In such a case there is no privity of contract between the seller and such third person, and this precludes any right on his part to any advantage or benefit to be derived from the warranty, and it is held that this rule extends to one who as agent for the buyer makes the purchase. Thus it has been. held that one who, as agent for her husband, purchases meat for food, of which she subsequently partakes, and is made ill by its unfitness, cannot hold the seller liable in damages as for breach of warranty, since no contractual relation exists between them. So an employee injured by an unsuitable product sold his employer cannot maintain.

19. Kearly v. Duncan, 1 Head (Tenn.) 397, 73 Am. Dec. 179. 20. Morehouse V. Northrop, 33 Conn. 380, 89 Am. Dec. 211; Edwards v. Dillon, 147 Ill. 14, 35 N. E. 135, 37 A. S. R. 199. See PARTNERSHIP, vol. 20, p. 908.

21. Loxterkamp v. Lininger Implement Co., 147 Ia. 29, 125 N. W. 830, 33 L.R.A.(N.S.) 501.

1. Pemberton v. Dean, 88 Minn. 60, 92 N. W. 478, 97 A. S. R. 503, 60 L.R.A. 311.

Note: 102 A. S. R. 616.

96 Wash. 18, 164 Pac. 602, Ann. Cas.
1918B 125.

3. Lewis v. Terry, 111 Cal. 39, 45
Pac. 398, 52 A. S. R. 146, 31 L.R.A.
220; Berger v. Standard Oil Co., 126
Ky. 155, 103 S. W. 245, 11 L.R.A.
(N.S.) 238; Gearing v. Berkson, 223
1006: Heizer v. Kingsland Mfg. Co.,
Mass. 257, 111 N. E. 785, L.R.A.1916D
110 Mo. 605, 19 S. W. 630, 33 A. S.
R. 482, 15 L.R.A. 821; Coughlin v.
Globe Woolen Co., 56 N. Y. 124, 15
Am. Rep. 387.

Note: 85 A. S. R. 375.

4. Gearing v. Berkson, 223 Mass. 2. Pacific Power, etc., Co. v. White, 257, 111 N. E. 785, L.R.A.1916D 1006.

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an action against the seller for breach of the warranty of suitableness." Where a tenant who is to pay as rent a part of the crop grown on the premises purchases wheat for seed and on account of the unfitness of the seed delivered the crop is lost, it has been held that as the parties would have been tenants in common in the crop and the seed was purchased for the joint benefit of the landlord and the tenant, they may join in an action for the loss of the crop. And a seller of a dangerous article may, as is shown later, incur a liability to third persons on the ground of negligence or fraud independent of his contract.7

432. Subsequent Purchasers.-The common law doctrine of covenants running with the land applies only to real estate, and it is well settled as a common law rule that the benefit of a warranty does not run with the chattel on its resale so as to give the subpurchaser any right of action thereon as against the original seller. This rule is fully applicable to the warranty of title, and for the reason that a sale of designated trees standing on certain land is a sale of personalty, it has been held that the benefit of an express warranty of title does

5. Berger v. Standard Oil Co., 126 Ky. 155, 103 S. W. 245, 11 L.R.A. (N.S.) 238.

6. Fuhrman v. Interior Warehouse Co., 64 Wash. 159, 116 Pac. 666, 37 L.R.A. (N.S.) 89. (It does not appear from the report of this case whether the action was for breach of warranty or not, but it would seem that such was the case.)

7. See infra, par. 804 et seq.

8. Salle v. Light, 4 Ala. 700, 39 Am. Dec. 317; Nelson v. Armour Packing Co., 76 Ark. 352, 90 S. W. 288, 6 Ann. Cas. 237; Van Winkle v. Wilkins, 81 Ga. 93, 7 S. E. 644, 12 A. S. R. 299; Smith v. Williams, 117 Ga. 782, 45 S. E. 394, 97 A. S. R. 220; Walrus Mfg. Co. v. McMehen, 39 Okla. 667, 136 Pac. 772, 51 L.R.A. (N.S.) 1111.

Note: 51 L.R.A. (N.S.) 1111.

tween the parties nor was there any privity. It was conceded that no contract with the plaintiff appeared on the face of the tag, nor was there any evidence to show that the defendant had sampled the tobacco at the request of the plaintiff, or that he had paid for doing so. On the contrary it was evident that it had been sampled for some previous owner, and had passed, thus sampled, to the plaintiff. A custom was proved that the label was not only a guaranty of the quality of the tobacco at the time of inspection, but that the guaranty was good for six months, for the benefit of any person into whose possession the tobacco might come within that time; that if the tobacco thus inspected proved defective the sampler should make it good by paying for so much as was injured or spoiled, and on further proof that the defendant's conduct was in harmony with such usage he was held liable.

In Conestoga Cigar Co. v. Finke, 144 Pa. St. 159, 22 Atl. 868, 13 L.R.A. 438, the novel question arose as to whether a tag placed on a bale of tobacco by the inspector or sampler 9. Salle v. Light, 4 Ala. 700, 39 was a warranty of the quality of the Am. Dec. 317; Smith v. Williams, 117 tobacco, and whether it inured to the Ga. 782, 45 S. E. 394, 97 A. S. R. 220; benefit of subsequent purchasers there- Asher Lumber Co. v. Cornett, (Ky.) of. The plaintiff was met at the 58 S. W. 438, 56 L.R.A. 672. threshold of his case with the conten- Notes: 51 L.R.A. (N.S.) 1112; 16 tion that there was no contract be- Ann. Cas. 64.

not run with a resale of the trees, so as to pass to a subsequent purchaser.10 For a quite similar reason a purchaser of cattle which are at the time suffering from a disease communicated to them through the negligence of a third person acquires no right of action against the latter.11 The view has been taken as regards the sale of canned or bottled food products that the manufacturer under modern conditions. impliedly warrants his goods when dispensed in original packages, and such warranty is available to all who may be damaged by reason of their use in the legitimate channels of trade.12 The imposition of liability on the manufacturer in such a case on the ground of breach of warranty is contrary to the view taken in other cases and on principle cannot be considered sound; 18 and in the numerous cases in which liability of a seller to third persons has been enforced the ground of liability has been as a general rule either that the seller was negligent or guilty of fraud in selling a dangerous article which might in the course of its use injure third persons.14 For the reason that the benefit of the warranty does not run with the chattel the resale of the chattel by the buyer does not affect his right to maintain an action for the breach of his seller's warranty.15

433. Novation of Contract or Assignment of Cause of Action.— There may be a novation of the contract of sale so complete in itself as clearly to render the seller liable to the substituted purchaser for a breach of warranty contained in the original contract. The cases considering the question have not clearly developed the point as to just how complete must be the substitution of a subsequent purchaser for the original buyer to entitle the former to avail himself of a warranty to the latter.16 It has been held that a right of action for breach of warranty in the original buyer and debtor against, the original seller,

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Notes: 51 L.R.A. (N.S.) 1113; 16 Ann. Cas. 500; Ann. Cas. 1916C 144.

13. Nelson v. Armour Packing Co., 76 Ark. 352, 90 S. W. 288, 6 Ann. Cas. 237; Smith v. Williams, 117 Ga. 782, 45 S. E. 394, 97 A. S. R. 220; Giroux v. Stedman, 145 Mass. 439, 14 N. E. 538, 1 A. S. R. 472; Crigger v. Cocoa-Cola Bottling Co., 132 Tenn. 545, 179 S. W. 155, Ann. Cas. 1917B 877, L.R.A.1916B 877.

Notes: 51 L.R.A. (N.S.) 1112; 16
Ann. Cas. 500.

14. See infra, par. 804 et seq.
15. See infra, par. 516.

12. Mazetti v. Armour, 75 Wash. 622, 135 Pac. 633, Ann. Cas. 1915C 140, 48 L.R.A. (N.S.) 213. See also Catain v. Swift, 251 Pa. St. 52, 95 Atl. 931, L.R.A.1917B 1272 (decided under the Pa. Act of May 4, 1889, expressly providing in effect that in all sales of certain kinds of foodstuff there is, unless the parties otherwise agree, an implied warranty of whole- et seq. someness).

16. Notes: 51 L.R.A. (N.S.) 1113; 16 Ann. Cas. 64. As to novation generally, see NOVATION, vol. 20, p. 359

who is the creditor, does not run with chattels purchased in contracting the debt in the first instance to a second purchaser in succession, who assumes payment of the debt upon release of the original debtor, in the absence of such intent of the parties to such novation, and of any assignment of such right by the original to the substituted debtor.17 Where a purchaser of a chattel has a complete cause of action for a breach of warranty, there can be no doubt that it may be assigned to the same extent as may any other complete cause of action. The few cases which have considered the question make it doubtful whether the warranty itself, at least prior to a breach thereof, may be assigned so as to enable the assignee thereof to maintain an action at law for its subsequent breach.18 And it seems to have been directly held that where the warranty is one of title, which according to the better view is not deemed broken for the purpose of a right to sue thereon until the buyer is dispossessed or the equivalent, the right to sue for its breach cannot be transferred with the resale of the property, as neither a warranty of soundness nor of title is negotiable.19

434. Rights of Surety for Price.-Though the contrary view is taken in some cases,20 it is the better view that a surety on the obligation given for the price, since he is in no sense a party to the warranty, cannot, unless the sale has been rescinded by the buyer, set up in defense of his liability, either in whole or in part, the seller's breach of warranty. The reason for this is that the claim for damages for breach of the warranty does not rest on a failure of the consideration on which the action is founded, but is a distinct claim which may be set up by way of defense or counterclaim, in the action for the price, or by a separate action, the election to do which rests in the buyer, and cannot be niade by a surety. It has been suggested, however, that if the buyer is insolvent and does not attempt to avail himself of the defense, relief may be granted the surety in equity. If the right to rescind for breach of warranty is recognized, and this right has been

17. Walrus Mfg. Co. v. McMehen, 39 Okla. 667, 136 Pac. 772, 51 L.R.A. (N.S.) 1111.

18. Note: 51 L.R.A. (N.S.) 1114. As to the assignment of causes of action generally, see ASSIGNMENTS, vol. 2, p. 595 et seq.

19. Smith v. Williams, 117 Ga. 782, 45 S. E. 394, 97 A. S. R. 220.

Note: 51 L.R.A. (N.S.) 1114. See the preceding paragraph as to the right of a purchaser of the chattel to sue on a warranty given in the sale to his seller.

R. C. L. Vol. XXIV.-11.

161

20. Note: 21 L.R.A. 406.

1. Stockton Sav., etc., Soc. v. Giddings, 96 Cal. 84, 30 Pac. 1016, 31 A. S. R. 181, 21 L.R.A. 406; Gillespie v. Torrance, 25 N. Y. 306, 82 Am. Dec. 355.

Note: 21 L.R.A. 406.

2. Gillespie v. Torrance, 25 N. Y. 306, 82 Am. Dec. 355.

3. Gillespie v. Torrance, 25 N. Y. 306, 82 Am. Dec. 355.

4. See infra, par. 568 et seq., as to the general right to rescind for breach of warranty.

exercised by the buyer, the surety for the price may set up such fact in defense of his liability."

435. Proof of Breach of Warranty Generally.-The burden of proving a breach of the warranty is on the buyer. As it is shown later, when recovery is had against the buyer by a third person claiming under a paramount title and the seller was given notice of the pendency of the action, such judgment is conclusive against him in a subsequent action for breach of his warranty of title. It has been held, however, that this rule does not apply to a general warranty of soundness, and that where the buyer resold the goods, a judgment recovered against him for breach of his warranty as to quality is not evidence of an alleged breach of a similar warranty on the part of his seller, though the latter was given notice of the pendency of the action by the subpurchaser. The reason for this is that the issues in the two actions are not necessarily identical; for instance if the defect rendering the buyer liable on his warranty had arisen after the sale to him, he would be liable, whereas it would not show a breach of the warranty by his seller. Where the buyer gives his negotiable note for the price which was indorsed and transferred by the seller the fact that the buyer when sued on the note by the indorsee set up in defense a claim for breach of the warranty will not render a judgment for the indorsee conclusive as between the seller and buyer as to whether there was in fact a breach of warranty, where under the pleadings in the action on the note the judgment may have been rendered in favor of the indorsee on the ground that he was entitled to protection, as a bona fide purchaser before maturity and for value, against the defense of breach of warranty and there is nothing further to show on what ground the judgment was in fact rendered. The question has sometimes arisen as to the admissibility of evidence of the result of the use of a commodity purchased upon the issue as to a breach of warranty as to its ingredients, and subject to proper limitations it has been generally held that such evidence is admissible.10 Thus where the warranty was as to the ingredients of fertilizer, evidence of the effect of the fertilizer on crops is admissible in connection with proof of the kind of soil, manner of cultivation, accidents of season and other pertinent facts to prove that it did not contain the ingredients stated or in the proportion specified. So on the issue as to whether seed was fertile or

5. Note: 21 L.R.A. 406. 6. Waterman-Waterbury Co. v. Wyoming Tp. School Dist. No. 2, 182 Mich. 498, 148 N. W. 673, L.R.A. 1915B 626; Tacoma Coal Co. v. Bradley, 2 Wash. 600, 27 Pac. 454, 26 A. S. R. 890.

7. See infra, par. 507.

9. Fahey v. Esterley Mach. Co., 3 N. D. 220, 55 N. W. 580, 44 A. S. R. 554. See generally, JUDGMENTS, vol. 15, p. 949 et seq., as to the extent to which a judgment is res judicata.

10. Note: L.R.A.1915D 875. 11. Hampton Guano Co. v. Hill Live-Stock Co., 168 N. C. 442, 84 S.

8. Smith v. Moore, 7 S. C. 209, 24 E. 774, L.R.A.1915D 875. Am. Rep. 479.

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