doctrine upon the subject is reasonable, and proceeds upon a just interpretation of the contract of sale. A dealer who sells an article, describing it by the name of an article of commerce, the identity of which is not known to the buyer, must understand that the latter relies upon the description as a representation by the seller that it is the thing described, and this constitutes a warranty. There is no doubt but that the parties may by express provision in the contract relieve the seller from liability on any warranty, which might otherwise be imported into the sale, of conformity in kind to the words of description.* 446. Inspection and Opportunity Therefor.-Some courts take the view that where the sale is of a definite existing chattel, the actual condition of which is capable of being ascertained by either party, there is no warranty implied from a specific description, the natural inference under such circumstances being that the parties relied on their own observation and judgment with respect of the matters covered by the description. And though the broad rule as to importing a warranty from a sale by description was earlier announced the application to a sale on inspection has been repudiated and the rule laid down that where goods are sold on inspection, there is no standard but identity, and no warranty implied other than that the identical goods sold, and no others, shall be delivered, and that the name given to them in the bill of parcels is then immaterial, for faith was placed, not in the name, but in the quality and kind discovered, on the inspection. On the other hand it has been held that opportunity to inspect and the buyer's failure to do so does not affect the rule importing a warranty from a sale by description, as the buyer is entitled to rely on the warranty. The fact that the commodity sold was examined by the buyer before or at the time of the sale does not prevent its sale by a descriptive name from constituting a warranty upon which the buyer may rely if the commodity was so prepared and presented such an appearance as to deceive,8 as the buyer does not 3. White v. Miller, 71 N. Y. 118, 27 23, 23 Am. Dec. 85. See also WetherAm. Rep. 13. ill v. Neilson, 20 Pa. St. 448, 54 Am. Dec. 741. 4. Leonard Seed Co. v. Crary Canning Co., 147 Wis. 166, 132 N. W. 902, Ann. Cas. 1912D 1077, 37 L.R.A. (N.S.) 79. 5. Barnard v. Kellogg, 10 Wall. 383, 19 U. S. (L. ed.) 987; Hyatt v. Boyle, 5 Gill & J. (Md.) 110, 25 Am. Dec. 276; Wolcott v. Mount, 38 N. J. L. 496, 20 Am. Rep. 425. Note: 35 L.R.A. (N.S.) 271, 277. 6. Carson v. Baillie, 19 Pa. St. 375, 57 Am. Dec. 659, explaining and limiting Borrekins v. Bevan, 3 Rawle (Pa.) 7. Gould v. Stein, 149 Mass. 570, 22 N. E. 47, 14 A. S. R. 455, 5 L.R.A. 213. 8. Henshaw v. Robins, 9 Metc. (Mass.) 83, 43 Am. Dec. 367; Gould v. Stein, 149 Mass. 570, 22 N. E. 47, 14 A. S. R. 455, 5 L.R.A. 213; Northwestern Cordage Co. v. Rice, 5 N. D. 432, 67 N. W. 298, 57 A. S. R. 563; Hoffman v. Dixon, 105 Wis. 315, 81 N. W. 491, 76 A. S. R. 916. Note: 102 A. S. R. 615. owe the duty of careful inspection to one who has warranted an article." And a fortiori such examination does not deprive the buyer of the protection of the warranty as to latent defects. 10 The want of an opportunity to inspect has been given weight in favor of a warranty and the doctrine has been asserted that in the absence of inspection or opportunity to inspect, where words are used constituting a description of the thing sold, the description is a material inducement to the contract, and constitutes a warranty.11 447. Application of Rule Generally. In the numerous cases in which the question as to the importation of a warranty from the use of descriptive words has arisen, the decisions are in hopeless conflict not only because of the conflict heretofore stated as to whether a warranty is to be imported from words of description but also from the attempt to apply the rule.12 As illustrative of the decisions which seem to announce the more modern view the following are selected: Where an article was sold under a description as "blue vitriol," a kind of vitriol well known to the trade, whereas it was in fact a kind known to the trade as "saltzberger vitriol," a compound of a small portion of blue vitriol and the residue green vitriol and an article of much. smaller value, and by no examination practical at the time could it have been discovered that it was not as represented, it was held that this was a warranty that the article was blue vitriol.18 So in a sale note the words sold a quantity of "prime quality winter oil" have been held to amount to a warranty that the article sold agrees with the description.14 The same has been held true of a statement in a bill of parcels that oil sold was "winter pressed sperm oil," 15 and as to the description in a bill of parcels of the article sold as "blue paint," 16 and where the article sold was described in advertisements and in the bill of parcels as "indigo," 17 and where the goods were ordered and sold as "pure manilla twine." 18 Likewise it is generally held, in case of the sale of nursery stock such as fruit trees, that a sale by 9. Northwestern Cordage Co. V. Rice, 5 N. D. 432, 67 N. W. 298, 57 A. S. R. 563. 10. Miller v. Moore, 83 Ga. 684, 10 S. E. 360, 20 A. S. R. 329, 6 L.R.A. 374. 11. Barnard v. Kellogg, 10 Wall. 383, 19 U. S. (L. ed.) 987; Forcheimer v. Stewart, 65 Ia. 593, 22 N. W. 886, 54 Am. Rep. 30; Morse v. Moore, 83 Me. 473, 22 Atl. 362, 23 A. S. R. 783, 13 L.R.A. 224; Hyatt v. Boyle, 5 Gill & J. (Md.) 110, 25 Am. Dec. 276; Northwestern Cordage Co. v. Rice, 5 N. D. 432, 67 N. W. 298, 57 A. S. R. 563. Note: 35 L.R.A. (N.S.) 271, 277. 12. Note: 35 L.R.A.(N.S.) 283. 13. Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. Dec. 595. 14. Hastings v. Lovering, 2 Pick. (Mass.) 214, 13 Am. Dec. 420. 15. Osgood v. Lewis, 2 Har. & G. (Md.) 495, 18 Am. Dec. 317. 16. Borrekins v. Bevan, 3 Rawle (Pa.) 23, 23 Am. Dec. 85. 17. Henshaw v. Robins, 9 Metc. (Mass.) 83, 43 Am. Dec. 367. 18. Northwestern Cordage Co. v. Rice, 5 N. D. 432, 67 N. W. 298, 57 A. S. R. 563. description as and for a certain variety constitutes a warranty that the stock is of the designated variety.19 3 448. Sale of Seeds Generally.-Seeds of different kinds cannot always be distinguished by inspection, and it seems to be generally recognized in such a case that an express or implied affirmation of the seller where seed of a particular kind is asked for and sold as such that it is of such kind may constitute a warranty as to its kind,20 and ignorance on the part of the seller that the seed was different from the kind for which it was sold is held immaterial.1 Thus it has been held that an affirmation by the seller that the seed sold is a certain kind of cabbage seed constitutes a warranty that the seed is of this kind and not cabbage seed of another kind, and the same has been held true as to seed sold as and for a particular kind of turnip seed, and where seed was sold as and for rape seed, whereas it was in fact wild mustard seed. The rule as stated above is not, however, universally recognized. Thus it has been held, in the case of the sale of wheat where the wheat sold was inspected by the buyer, that the seller's affirmation that it was spring wheat cannot be construed as a warranty so as to render him liable where it proved to be winter wheat, though spring and winter wheat cannot ordinarily be distinguished by inspection. And where rye was sold for seed as "summer rye" it has been held that this did not constitute a warranty that it was in fact "summer rye" as distinguished from winter rye. In another case the plaintiff, a market gardener, bought Wakefield cab 19. Shearer v. Park Nursery Co., 103 Cal. 415, 37 Pac. 412, 42 A. S. R. 125; Sanford v. Brown Bros. Co., 208 N. Y. 90, 101 N. E. 797, 50 L.R.A. (N.S.) 778. Note: 49 L.R.A. (N.S.) 1151. 20. Buckbee v. P. Hohenadel, Jr., Co., 224 Fed. 14, 139 C. C. A. 478, L.R.A.1916C 1001; Gardner v. Winter, 117 Ky. 382, 78 S. W. 143, 63 L.R.A. 647; Wolcott v. Mount, 38 N. J. L. 496, 20 Am. Rep. 425, affirming 36 N. J. L. 262, 13 Am. Rep. 438; Passinger v. Thorburn, 34 N. Y. 634, 90 Am. Dec. 753; Van Wyck v. Allen, 69 N. Y. 61, 25 Am. Rep. 136; White v. Miller, 71 N. Y. 118, 27 Am. Rep. 13; Hoffman v. Dixon, 105 Wis. 315, 81 N. W. 491, 76 A. S. R. 916. Notes: 24 Am. Rep. 102; 102 A. S. R. 623; 14 L.R.A. 493; 35 L.R.A. (N.S.) 278; 37 L.R.A. (N.S.) 80; L.R.A.1916C 1012; Ann. Cas. 1918B 75. 1. Hoffman v. Dixon, 105 Wis. 315, 81 N. W. 491, 76 A. S. R. 916. 4. Hoffman v. Dixon, 105 Wis. 315, 81 N. W. 491, 76 A. S. R. 916. 5. Kingsbury v. Taylor, 29 Me. 508, 50 Am. Dec. 607; Kircher v. Conrad, 9 Mont. 191, 23 Pac. 74, 18 A. S. R. 731, 7 L.R.A. 471; Lord v. Grow, 39 Pa. St. 88, 80 Am. Dec. 504; Shisler v. Baxter, 109 Pa. St. 443, 58 Am. Rep. 738. Notes: 35 L.R.A. (N.S.) 278; 37 L.R.A. (N.S.) 79; Ann. Cas. 1918B 78. 6. Kircher v. Conrad, 9 Mont. 191, 23 Pac. 74, 18 A. S. R. 731, 7 L.R.A. 471; Lord v. Grow, 39 Pa. St. 88, 80 Am. Dec. 504. 7. Kingsbury v. Taylor, 29 Me. 508, 50 Am. Dec. 607. bage seed of the defendant, in 1881, which produced a good crop, and the next year he asked the defendant if he had "any more Wakefield cabbage seed, same as in 1881." The defendant replied that he had some of the old stock, and produced some seed in envelopes, part of the old stock, which the plaintiff bought. It was impossible to distinguish Wakefield cabbage seed by its appearance. It was held that there was no warranty that the seed was Wakefield cabbage seed.8 449. Disclaimer of Warranty as to Kind of Seed.-Where the seller disavows any knowledge of the kind or variety, merely repeating what he had been told by the person from whom he purchased, no warranty as to kind or variety is to be imported; and on principle there would seem to be no doubt but that the parties may by an express provision in the contract exclude any warranty as to kind from being imported from words descriptive of the kind of seed sold, and it has been expressly so held, as no rule of public policy interdicts such an agreement.10 A nonwarranty or disclaimer of warranty clause, printed in a seed catalogue from which the seed was ordered or on seed packages or the like sent by the seller to the buyer on his order for seed of a particular kind, has been held binding on the buyer if it came to his notice,11 though it has been held otherwise if such notice did not come to the knowledge of the buyer and he was not negligent in failing to acquire such knowledge,12 as where the notice was printed in fine print on the bill sent to the buyer.18 A usage of the trade under which any warranty of kind was negatived in case of a sale of seed by description has also been held binding on the buyer.14 In England a distinction has been made between the liability of the seller on warranty and his liability for nonperformance of his contract to deliver seed of a designated variety and it has been held that the fact that by notice given the buyer, who ordered seed of a designated kind, the seller disclaimed all liability for any warranty as to growth, description or other matters did not relieve him from liability for delivering seed differing in kind from that ordered.15 450. Warranties in Sale of Animals.-As in cases involving fraud 16 transactions involving the sale of domestic animals have been one of 8. Shisler v. Baxter, 109 Pa. St. 443, 81. 58 Am. Rep. 738. 9. Note: Ann. Cas. 1918B 77. 10. Leonard Seed Co. v. Crary Canning Co., 147 Wis. 166, 132 N. W. 902, Ann. Cas. 1912D 1077, 37 L.R.A. (N.S.) 79. Notes: 37 L.R.A. (N.S.) 82; L.R.A. 1916C 1013; Ann. Cas. 1918B 80. 11. Notes: 37 L.R.A. (N.S.) 84; L.R.A.1916C 1013. 12. Notes: 37 L.R.A. (N.S.) 84; L.R.A.1916C 1013; Ann. Cas. 1918B 13. Notes: 37 L.R.A.(N.S.) Ann. Cas. 1918B 81. 82; 14. Leonard Seed Co. v. Crary Can- Notes: 37 L.R.A.(N.S.) 84; L.R.A. 16. See infra, par. 637. the most fruitful sources of litigation in which the claim has been asserted that affirmations as to soundness of the animal sold constituted a warranty, and, as may be expected, this class of litigation has resulted in decisions even in the same jurisdiction which it is impossible to reconcile on the facts. The principle, however, on which these cases are attempted to be decided is the same as that running through other transactions, namely, that where the affirmation as to soundness is made a statement of fact and under such circumstances that the buyer is justified in relying thereon and does so rely, it will be deemed a warranty,17 whereas if it is a mere affirmation of opinion, or under circumstances which show that it was not intended that the buyer should rely thereon and that he did not so rely and on the faith of the affirmation enters into the purchase, it will not be deemed to amount to a warranty.18 Also it seems that the court will be less inclined to construe an affirmation as to soundness a warranty where it was not made until after the terms of the sale were agreed on, though before the animal was delivered or the price paid,19 than where it was made earlier in the transaction. Thus where after a contract for the sale of an animal was made, and as the purchase money was about to be paid, the seller, in reply to a question asked by the buyer, said that the animal was sound, the affirmation was held not to be a warranty, having been made after the contract had been entered into and not having been intended as such.20 A statement by the seller made after the sale, in response to the assertion by the buyer that he had said that the animal was all right, "well, she is all right," is evidence of an admission by the seller of a warranty at the time of the sale.1 The question as to whether an affirmation by the seller as to the soundness of an animal is a warranty or not seems generally to be regarded as a question of fact, as in case of sales of other chattels, 17. Kenner v. Harding, 85 Ill. 264, 28 Am. Rep. 615; Douglass v. Moses, 89 Ia. 40, 56 N. W. 271, 48 A. S. R. 353; Lamme v. Gregg, 1 Metc. (Ky.) 444, 71 Am. Dec. 489 (affirmation that a jack is a good and sure foal getter); Norton v. Doherty, 3 Gray (Mass.) 372, 63 Am. Dec. 758; Tuttle v. Brown, 4 Gray (Mass.) 457, 64 Am. Dec. 80; Chapman v. Murch, 19 Johns. (N. Y.) 290, 10 Am. Dec. 227; Beeman v. Buck, 3 Vt. 53, 21 Am. Dec. 571; Hobart v. Young, 63 Vt. 363, 21 Atl. 612, 12 L.R.A. 693; Crossman v. Johnson, 63 Vt. 333, 22 Atl. 608, 13 L.R.A. 678. |