2 that the cause of action accrues when the contract is broken, and not at the time when special damage in consequence is suffered.20 And this is also held true it seems according to the better view though the actual breach of the warranty was not discovered or even discoverable until later.1 In this connection it has been said that the inability to ascertain the quality or condition of property warranted to be at the time of the sale in a particular quality or in a certain condition has never been allowed to change the rule as to the time when a right of action for breach of the warranty occurs; and it has been held in a number of cases that a general warranty of quality of conformity in variety of fruit trees bought for planting is broken in case of nonconformity at the time of the purchase, for the purpose of starting the statute of limitations running. The warranty, however, may be special and prospective in its operation so as to cover future happenings, and in such a case it is not necessarily broken if at all at the time of the sale, and the statute of limitations does not necessarily begin to run at such time. On the theory that the warranty was prospective in its nature, that is, that fruit trees warranted as to variety or kind would bear fruit of the designated kind, it has been held that the warranty was not broken for the purpose of the running of the statute of limitations until the time for bearing fruit arrived. In some cases the view has been taken that though the warranty is present and not prospective, as in case of a breach of warranty of quality, the statute of limitations does not begin to run until the buyer could have, by proper and reasonable diligence, discovered the breach. As regards time of breach for the purpose of estimating special damages recoverable the breach has been in effect considered as happening at the time the special damages were discoverable." 514. Warranty of Title.-As regards the running of the statute of limitations against an action for breach of warranty of title the cases are not in accord. In some jurisdictions the view has been taken that the statute will commence to run from the time of sale and before 223 Pa. St. 241, 72 Atl. 518, 132 6. P. H. Sheehy Co. v. Eastern ImA. S. R. 737. 20. Woodland Oil Co. v. Byers, 223 Pa. St. 241, 72 Atl. 518, 132 A. S. R. 737. See LIMITATION OF ACTIONS, vol. 17, p. 759 et seq. 1. Note: L.R.A.1916F 813. 2. Note: 126 A. S. R. 946. 3. Notes: 49 L.R.A. (N.S.) 1154; L.R.A.1916F 813; 13 Ann. Cas. 700; Ann. Cas. 1913E 93. 4. Notes: 126 A. S. R. 946; 15 L.R.A. (N.S.) 162; L.R.A.1916F 814. 5. Note: L.R.A.1917F 814. portation, etc., Co., 44 App. Cas. (D. 7. Shearer v. Park Nursery Co., 103 See infra, par. 536 et seq., as to the the buyer has been disturbed in his possession. On the other hand as above shown the better view is that the warranty is not deemed broken for the purpose of the institution of an action thereon until the buyer has been dispossessed or the equivalent, and where such a view is taken it would seem to follow that the statute of limitations will not begin to run until such time, and this seems to be the view generally taken by the courts.10 So it has been held that a buyer, who is compelled to discharge an incumbrance existing, unknown to him, at the time of the sale, may bring assumpsit for money paid against the seller within the statutory period of limitation after discharging the incumbrance, as his action on the warranty is not deemed to have accrued until the money was paid.11 In case of the sale of land certificates, the implied warranty of their genuineness has been considered in the nature of a warranty of title and the statute of limitations has been held not to begin to run until their character was discovered.12 In this respect the warranty of title to chattels is placed on somewhat the same footing as the covenant of warranty in the conveyance of real estate.18 515. Waiver of Breach Generally.-According to the better view the fact that the buyer pays the price after notice of defects in the goods constituting a breach of the seller's warranty does not constitute a waiver of the breach so as to preclude him from maintaining an action therefor. 14 So where the buyer resold the goods the fact that he paid the price after notice from his purchaser that the goods were defective, but before the extent of the damage was ascertained, does not preclude him from maintaining an action for a breach of warranty against such defects.15 Likewise where the article warranted was purchased on credit, the giving of renewal notes for the price is not necessarily a waiver of the buyer's claim for damages.16 So it has been held that a defense in an action brought to recover the balance due and unpaid for a stock of goods sold and delivered, that 8. Chandler v. Wiggins, 4 B. Mon. (Ky.) 201, 39 Am. Dec. 499. 13 Notes: 126 A. S. R. 945; 15 L.R.A. (N.S.) 163; L.R.A.1917F 818; Ann. Cas. 700; 16 Ann. Cas. 64. 9. See supra, par. 506. 10. Sargent v. Currier, 49 N. H. 310, 6 Am. Dec. 524. Notes: 126 A. S. R. 946; 15 L.R.A. (N.S.) 163; L.R.A.1916F 818; 13 Ann. Cas. 700; 16 Ann. Cas. 64. 11. Sargent v. Currier, 49 N. 310, 6 Am. Dec. 524. 12. Note: L.R.A.1916F 817. H. 13. See COVENANTS, vol. 7, p. 1185 et seq. 14. McDonough v. Williams, 77 Ark. 261, 92 S. W. 783, 7 Ann. Cas. 276, 8 L.R.A. (N.S.) 452; Helwig v. Laschowski, 82 Mich. 619, 46 N. W. 1033, 10 L.R.A. 378; Northwestern Cordage Co. v. Rice, 5 N. D. 432, 67 N. W. 298, 57 A. S. R. 563. Note: 1 L.R.A. 339. 15. Boorman v. Jenkins, 12 Wend. (N. Y.) 566, 27 Am. Dec. 158. 16. Northwestern Cordage Co. v. Rice, 5 N. D. 432, 67 N. W. 298, 57. A. S. R. 563. the buyer had turned over certain property to the seller in settlement of the claim, will not preclude a further defense of breach of warranty, by way of recoupment, unless it appears that the property turned over was intended to settle all matters of defense growing out of the transaction.17 The failure of the buyer when sued for the price to avail himself of his right to recoup or set off his damages for breach of the warranty does not affect his right thereafter to maintain an action on the warranty. On principle this is necessarily so, as the amount of damages for breach of the warranty may in fact exceed the price, and ordinarily if used as a defense to the action for the price might have the effect of limiting his recovery.18 There would seem to be no ground for a claim that the buyer has waived a breach of warranty of the efficiency and quality of machinery sold by his use of the machinery during continued attempts of the seller to remedy defects therein.19 516. Effect of Resale by Buyer.-The fact that the buyer has resold the property in no way affects his right to maintain an action for the seller's breach of warranty.20 And it is held that the fact that he resold at an advanced price does not affect his right of action or the rule of damages, and he may nevertheless recover the difference between the actual value of the article when purchased and the value which it would have had if it had been as warranted. What the buyer received on the resale is of no consequence except as it may tend to illustrate the question of value and incidentally disprove the claim that there was in fact a breach of warranty; 2 and as is shown above the cause of action for breach of a warranty in the sale of a chattel does not run with the chattel so as to confer any right of action on the subpurchaser. Where the warranty requires a return of the property in case of a breach of a special warranty, and the buyer resells with a similar warranty, he does not thereby waive all 17. Helwig v. Laschowski, 82 Mich. 619, 46 N. W. 1033, 10 L.R.A. 378. 18. Gillespie v. Torrance, 25 N. Y. 306, 82 Am. Dec. 355. 19. United Iron Works v. Rathskeller Co., 94 Wash. 67, 161 Pac. 1197, L.R.A.1917C 445. 20. Van Winkle v. Wilkins, 81 Gą. 93, 7 S. E. 644, 12 A. S. R. 299; Smith v. McNair, 19 Kan. 330, 27 Am. Rep. 117; Denton v. Fisher, 102 Md. 386, 62 Atl. 627, 3 L.R.A. (N.S.) 465; Sutherland v. Green, 49 Mont. 379, 142 Pac. 636, Ann. Cas. 1916A 561; Beebee v. Robert, 12 Wend. (N. Y.) 413, 27 Am. Dec. 132; Boorman v. Jenkins, 12 Wend. (N. Y.) 566, 27 Am. Dec. 158; Passinger v. Thorburn, 34 N. Y. 634, 90 Am. Dec. 753; Ellison v. Johnson, 74 S. C. 202, 54 S. E. 202, 5 L.R.A. (N.S.) 1151; Western Twine Co. v. Wright, 11 S. D. 521, 78 N. W. 942, 44 L.R.A. 438. Notes: 39 Am. Dec. 734; 3 L.R.A. (N.S.) 465; 5 L.R.A. (N.S.) 1151. 1. Berry v. Shannon, 98 Ga. 459, 25 S. E. 514, 58 A. S. R. 313; Ellison v. Johnson, 74 S. C. 202, 54 S. E. 202, 5 L.R.A. (N.S.) 1151. Notes: 39 Am. Dec. 734; 5 L.R.A. (N.S.) 1151. 2. Berry v. Shannon, 98 Ga. 459, 25 S. E. 514, 58 A. S. R. 313. Note: 5 L.R.A. (N.S.) 1151. 3. See supra, par. 432. right of action for its breach, but on a return to him of the property by the subpurchaser he may, on tender of the same to the seller and his refusal to receive the same, sue therefor.1 517. Right of Seller to Remedy Defects or Substitute Another Article. As the buyer may rely on his claim for damages for breach of warranty, and is under no obligation to return the article delivered, it follows that if it does not conform to the warranty the seller has no inherent right to remedy the defect or substitute another article. A provision, however, giving the seller the right, in case the property does not conform to the warranty, to remedy the defect and make the property so conform or to substitute another article in its place, is binding on the parties. As a general rule, if the contract expressly provides that the liability of the seller in the case of a sale of machinery shall be limited to the replacement of defective parts, a claim for damages does not arise so long as he offers to replace such parts; and it has been held under a contract requiring the buyer of machinery to give the seller notice of defects therein and an opportunity to remedy them that the seller is entitled to recover the price of defective machinery which is destroyed before any complaint is made. The right given the seller to replace defective parts or to substitute another article does not itself impose any active duty on the buyer to make a return to the seller; but a provision of this character does not require the buyer to give the seller an indefinite length of time within which to remedy the defect, and if, after reasonable time therefor is given the seller, the chattel still fails to conform to the warranty, the buyer may resort to his ordinary remedies.10 A provision under which the seller agrees to replace defective parts or substitute another similar article without requiring the buyer to accept this form of relief is considered as a mere privilege given the buyer and does not affect his right in lieu thereof to sue for damages for breach of the warranty.11 Frequently contracts of sale require the buyer to lend the seller friendly assistance to enable him to remedy defects, and due effect is given thereto by the courts.12 4. Sutherland v. Green, 49 Mont. 379, 142 Pac. 636, Ann. Cas. 1916A 561. 5. See infra, par. 527. 6. Notes: 32 L.R.A. (N.S.) 215; 50 L.R.A.(N.S.) 756 et seq., 793. 7. Bardwell V. Southern Engine, etc., Works, 130 Ky. 222, 113 S. W. 97, 20 L.R.A. (N.S.) 110. 8. Marion Mfg. Co. v. Buchanan, 118 Tenn. 238, 99 S. W. 984, 12 Ann. Cas. 707, 8 L.R.A. (N.S.) 590. 9. Note: 32 L.R.A. (N.S.) 213. 241 9 v. Huber, 160 Mich. 92, 125 N. W. 66, Note: 50 L.R.A. (N.S.) 773, 794. Note: 50 L.R.A. (N.S.) 771. See infra, par. 529, as to the privilege given the buyer to return generally. 12. Note: 50 L.R.A. (N.S.) 793. 518. Form of Action Generally.-An action for breach of warranty is deemed to sound in contract and is regarded as distinct from an action for the fraud of the seller, which sounds in tort.13 And while the same transaction may give rise to either of such causes of action, as the warranty is none the less a contract because it is the means by which a fraud is accomplished, and the fraud is in no way diminished because the seller has at the same time bound himself by a warranty,14 still the plaintiff cannot recover on the ground of fraud or vice versa in an action for breach of warranty; 15 and if by the exercise of some ingenuity a declaration could be drawn in such a form that it may seem doubtful whether it is designed to be founded on tort or on contract, and not entirely defective if regarded as either the one or the other, yet it must be held to be founded either in tort or on contract. It cannot be considered as having a double aspect or character, or being either the one or the other, as the exigencies of the case may from time to time happen to require.16 These principles have called for a determination by the court in particular cases of the question whether the action is for a breach of warranty or for fraud. It is held that a count for fraud may be joined with a count in case for breach of warranty.18 519. Action on the Case.-Dane in his Abridgement says that at one time the practice was to declare in tort, that is, to state the warranty, and the breach of it as the deceit or tort, and sometimes to join a cause of action in trover, considering the wrong in violating the warranty as the gist of the action. The warranty was stated as the inducement, and the breach of it, a deceit or wrong, and as the ground of the action. But as trover went out of fashion, and the money counts came more into use, it was found more convenient to 13. Mahurin v. Harding, 28 N. H: 128, 59 Am. Dec. 401; Price v. Lewis, 17 Pa. St. 51, 55 Am. Dec. 536. 14. Hambrick v. Wilkins, 65 Miss. 18, 3 So. 67, 7 A. S. R. 631; Mahurin v. Harding, 28 N. H. 128, 59 Am. Dec. 401; Ross v. Mather, 51 N. Y. 108, 10 Am. Rep. 562; Caldbeck v. Simanton, 82 Vt. 69, 71 Atl. 881, 20 L.R.A. (N.S.) 844. See infra, par. 628, as to the right to sue for fraud though there is also a warranty. v. McPherson, 1 Johns. (N. Y.) 414, 3 Am. Dec. 339; Ross v. Mather, 51 N. Y. 108, 10 Am. Rep. 562; West v. Emery, 17 Vt. 583, 44 Am. Dec. 356. But see Norton v. Doherty, 3 Gray (Mass.) 372, 63 Am. Dec. 758. 16. Mahurin v. Harding, 28 N. H. 128, 59 Am. Dec. 401. 17. Dean v. Mason, 4 Conn. 428, 10 Am. Dec. 162; Mahurin v. Harding, 28 N. H. 128, 59 Am. Dec. 401; Ross v. Mather, 51 N. Y. 108, 10 Am. Rep. 562; Hexter v. Bast, 125 Pa. St. 52, 17 Atl. 252, 11 A. S. R. 874; Caldbeck v. Simanton, 82 Vt. 69, 71 Atl. 881, 20 L.R.A. (N.S.) 844. 15. Dean v. Mason, 4 Conn. 428, 10 Am. Dec. 162; Bartholomew v. Bushnell, 20 Conn. 271, 52 Am. Dec. 338; Douglass v. Moses, 89 Ia. 40, 56 N. W. 271, 48 A. S. R. 353; Lamme v. 18. Shippen v. Bowen, 122 U. S. Gregg, 1 Metc. (Ky.) 444, 71 Am. 575, 7 S. Ct. 1283, 30 U. S. (L. ed.) Dec. 489; Mahurin v. Harding, 28 N. 1172; Morehouse v. Northrup, 33 H. 128, 59 Am. Dec. 401; Mumford Conn. 380, 89 Am. Dec. 211. |