sale independent of the warranty is induced by the fraud of the seller, this may afford an independent ground of rescission.15 569. Warranty of Title.-In the sale of chattels there is ordinarily an implied warranty of title,16 but, as a general rule, a buyer cannot rescind for the breach of such a warranty until he has been deprived of the possession of the article sold or suffered other actual damages. A mere dispute about the title or the contingency of future loss does not warrant a rescission, and where the buyer returns the goods and refuses to pay the purchase price it is incumbent on him to show that there is a valid adverse claim from which loss to him would inevitably occur.17 Similarly a buyer cannot rescind merely because of a claim by a third person that the use by the buyer of the article sold will constitute an infringement of such person's patent rights; while the application of this rule may sometimes result in hardship, to adopt any v. Thomas, 22 Tex. 270, 73 Am. Dec. 264; but see Getty v. Rountree, 2 Pin. (Wis.) 379, 54 Am. Dec. 138. Notes: 7 Am. Dec. 131; 54 Am. Dec. 146; 99 Am. Dec. 104; 4 L.R.A. 370; 9 L.R.A. 611; 8 L.R.A. (N.S.) 727; 27 L.R.A. (N.S.) 921. Stark, 45 Kan. 606, 26 Pac. 8, 23 A. S. R. 739, the court, recognizing the conflict in the authorities in the different jurisdictions as to the right to return, upholds such right and cites an earlier case which it says recognizes this right, but the court also says that the right may not exist in all cases and expressly points out that in the case in hand, which involved the sale of farm machinery, the price had not been paid and the machine was wholly unfitted for the purpose intended. mon Co. v. Hobbs, 159 Cal. 380, 113 Pac. 870, 120 Pac. 27, 35 L.R.A. (N.S.) 501; White v. Miller, 132 Ia. 144, 109 N. W. 465, 8 L.R.A.(N.S.) 727; Rutter v. Blake, 2 Har. & J. (Md.) 353, 3 Am. Dec. 550; Hyatt v. Boyle, 5 Gill & J. (Md.) 110, 25 Am. Dec. 276; Boardman V. Spooner, 13 Allen In Gale Sulky Harrow Mfg. Co. v. (Mass.) 353, 90 Am. Dec. 196; Perley v. Balch, 23 Pick. (Mass.) 283, 34 Am. Dec. 56; Bryant v. Isburgh, 13 Gray (Mass.) 607, 74 Am. Dec. 655 (disapproving dictum of Parsons, C. J., in Kimball v. Cunningham, 4 Mass. 505, 3 Am. Dec. 230); Bradford v. Manley, 13 Mass. 139, 7 Am. Dec. 122; Wiley v. Athol, 150 Mass. 426, 23 N. E. 311, 6 L.R.A. 342; Smith v. Hale, 158 Mass. 178, 33 N. E. 493, 35 A. S. R. 485; Mundt v. Simpkins, 81 Neb. 1, 115 N. W. 325, 129 A. S. R. 670; Baker v. Brem, 103 N. C. 72, 9 S. E. 629, 4 L.R.A. 370; W. F. Main Co. v. Field, 144 N. C. 307, 56 S. E. 943, 119 A. S. R. 956, 11 L.R.A. (N.S.) 245; Wasatch Orchard Co. v. Morgan Canning Co., 32 Utah 229, 89 Pac. 1009, 12 L.R.A. (N.S.) 540; Hansen, etc., Mfg. Co. v. McKay, 53 Wash. 337, 101 Pac. 894, 27 L.R.A. (N.S.) 17. Computing Scales Co. v. Long, 925; Fisk v. Tank, 12 Wis. 276, 78 66 S. C. 379, 44 S. E. 936, 65 L.R.A. Am. Dec. 737; Woodle v. Whitney, 23 294. See also Johnson v. Oehmig, 95 Wis. 55, 99 Am. Dec. 102; Bannon v. Ala. 189, 10 So. 430, 36 A. S. R. 204. Aultman, 80 Wis. 307, 49 N. W. 967, As to what constitutes a breach of the 27 A. S. R. 37. See also Fahey v. warranty of title, see supra, par. 504 Esterley Mach. Co., 3 N. D. 220, 55 et seq. N. W. 580, 44 A. S. R. 554; Brantley 15. Thornton v. Wynn, 12 Wheat. 183, 6 U. S. (L. ed.) 595; Kimball v. Cunningham, 4 Mass. 502, 3 Am. Dec. 230; Burton v. Stewart, 3 Wend. (N. Y.) 236, 20 Am. Dec. 692. As to rescission for fraud generally, see infra, par. 645 et seq. 16. See supra, par. 454. other would make it possible for a purchaser to escape from his contract on any claim coming to his notice, however baseless or absurd it might be.18 If the seller at the time of the sale knew of a valid outstanding title or incumbrance, and failed to give notice to the buyer, the element of fraud is introduced, and the buyer may rescind without waiting for actual loss to come to him, 19 and the same has been held true where a seller sells an article which he knows infringes the patent of a third person, without giving notice of such infringement, and the buyer has been permitted to rescind without waiting for suit or judgment against himself for using the article in violation of the patent rights of such third person.1 570. Statutory Provisions.-The right of the buyer to rescind for breach of a warranty as to quality has, in some jurisdictions in this country, been expressly conferred by statute. And the recent Uniform Sale of Goods Act, as enacted in this country, as a general rule contains such a provision. The English Sale of Goods Act, however, does not contain a provision authorizing rescission; on the other hand it is expressly provided [section 53, subd. (1)] that the buyer is not by reason only of a breach of warranty entitled to reject the goods. 571. Agreement for Return.-Sometimes the buyer is expressly given the privilege of returning the property for breach of warranty. Such a provision is binding on the parties, and the buyer, if he has made a due tender of return, is relieved from liability for the price and if the price has been paid may recover the same. Where, however, this right of return is subject to conditions to be performed by the buyer, such conditions must be complied with by the buyer as a prerequisite to the exercise of the right. Thus where the time within which the buyer may return the chattel for failure to comply with the warranty is limited in the contract the return must ordinarily be made within such time; and if no time is expressly limited the return must 18. Computing Scales Co. v. Long, 66 S. C. 379, 44 S. E. 963, 65 L.R.A. 294. 19. Computing Scales Co. v. Long, 66 S. C. 379, 44 S. E. 963, 65 L.R.A. 294. See also Johnson v. Oehmig, 95 Ala. 189, 10 So. 430, 36 A. S. R. 204. 1. Computing Scales Co. v. Long, 66 S. C. 379, 44 S. E. 963, 65 L.R.A. 294. 2. Stockton Sav., etc., Soe. v. Giddings, 96 Cal. 84, 30 Pac. 1016, 31 A. S. R. 181, 21 L.R.A. 406. 3. This is so in New York, where prior to the act the common law rule denying the buyer the right to rescind was in force. See cases cited supra, par. 568. 4. Thornton v. Wynn, 12 Wheat. R. C. L. Vol. XXIV.-19. 183, 6 U. S. (L. ed.) 595; Rosenthal v. Rambo, 165 Ind. 584, 76 N. E. 404, 3 L.R.A. (N.S.) 678; Webster City First National Bank v. Dutcher, 128 Ia. 413, 104 N. W. 497, 1 L.R.A. 142; Kimball, etc., Co. v. Vroman, 35 Mich. 310, 24 Am. Rep. 558 (explained in H. W. Williams Transp. Line v. Darius Cole Transp. Co., 129 Mich. 209, 88 N. W. 473, 56 L.R.A. 939); Allen v. Anderson, 3 Humph. (Tenn.) 581, 39 Am. Dec. 197. 5. Johnson v. McLane, 7 Blackf. (Ind.) 501, 43 Am. Dec. 102. 6. Johnson v. McLane, 7 Blackf. (Ind.) 501, 43 Am. Dec. 102; Head v. Tattersall, L. R. 7 Exch. 7, 41 L. J. 289. be made within a reasonable time, but so long as the seller continues to attempt to remedy the defect in the chattel, such as machinery, and holds out encouragement to the buyer that it will be made as warranted, he is justified in postponing its return." 572. Rejection before Actual Delivery and Acceptance. If a contract of sale is executory, as in case of the sale of unidentified articles. there is no obligation on the part of the buyer to accept delivery of goods which do not, as to quality, conform to the requirements of the contract, even though the contract contains an express warranty of quality. In such a case the buyer is not required to accept a tender of goods not of the required quality and rely, for relief, on an action on the warranty.8 As said by the federal supreme court, where the subject matter of a sale is not in existence or not ascertained, at the time of the contract, an undertaking that it shall, when existing or ascertained, possess certain qualities is not a mere warranty, but a condition, the performance of which is precedent to any obligation on the buyer under the contract; because the existence of those qualities, being a part of the description of the thing sold, becomes essential to its identity, and the buyer cannot be obliged to receive and pay for a thing different from that for which he contracted. And it is very generally held that the buyer of goods by sample may rely on the sample as a warranty of quality, or conformity therewith as a condition precedent to the duty on his part to accept, and may reject the goods if on inspection they do not conform therewith.10 It is otherwise, Exch. 25 L. T. 631, 20 W. R. 115, 6 7. Webster City First National Bank v. Dutcher, 128 Ia. 413, 104 N. W. 497, 1 L.R.A. (N.S.) 142. See supra, par. 528 et seq., as to the general construction and effect of provisions limiting the right of the buyer to a return of the subject matter of the sale in case of a breach of warranty. 8. Pope v. Allis, 115 U. S. 363, 6 S. Ct. 69, 29 U. S. (L. ed.) 393; North Alaska Salmon Co. v. Hobbs, 159 Cal. 380, 113 Pac. 870, 120 Pac. 27, 35 L.R.A. (N.S.) 501; Weil v. Stone, 33 Ind. App. 112, 69 N. E. 698, 104 A. S. R. 243; Morse v. Moore, 83 Me. 473, 22 Atl. 362, 23 A. S. R. 783, 13 L.R.A. 224; Hitchcock v. Griffin, etc., Co., 99 Mich. 447, 58 N. W. 373, 41 A. S. R. 624; Wirth v. Fawkes, 109 Minn. 254, 123 N. W. 661, 134 A. S. R. 778; Howard v. Hoey, 23 Wend. (N. Y.) 350, 35 Am. Dec. 572; Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51, 52 Am. Rep. 63; Pierson v. Crooks, 115 N. Y. 539, 22 N. E. 349, 12 A. S. R. 831; Descalzi Fruit Co. v. Williams S. Sweet & Son, 30 R. I. 320, 75 Atl. 308, 136 A. S. R. 961, 27 L.R.A. (N.S.) 932; Springfield Shingle Co. v. Edgecomb Mill Co., 52 Wash. 620, 101 Pac. 233, 35 L.R.A. (N.S.) 258; Northern Supply Co. v. Wangard, 117 Wis. 624, 94 N. W. 785, 98 A. S. R. 963; Behn v. Burness, 3 B. & S. 751, 113 E. C. L. 751, 9 Jur. N. S. 620, 8 L. T. N. S. 207, 32 L. J. Q. B. 204, 6 Eng. Rul. Cas. 492. Notes: 1 L.R.A. 646; 27 L.R.A. (N.S.) 918. 9. Pope v. Allis, 115 U. S. 363, 6 S. Ct. 69, 29 U. S. (L. ed.) 393. See supra, par. 242, as to the buyer's general duty to accept delivery where the articles tendered do not conform to the requirements of the contract. 10. Weil v. Stone, 33 Ind. App. 112, 69 N. E. 698, 104 A. S. R. 243; Hitchcock v. Griffin, etc., Co., 99 Mich. 447, however, under the general rule which denies the right to rescind for breach of warranty, where the contract is executed so as to pass the title to the buyer, though there has been no actual delivery of possession to him and on tender of possession he discovers that the goods are not of the quality he has the right to expect according to the agreement.11 This is especially true as to executed sales where the buyer has received and consumed a part of the subject matter of the sale. 12 And where the seller of specific oil in barrels to be shipped to the buyer warranted that the barrels would not leak, it has been held that the buyer has no right to reject the shipment on arrival because some of the barrels leaked, but his remedy is by way of a claim of damages for the leakage.18 A distinction has been made. between cases where the buyer has had no opportunity to inspect the commodity and where he has had such an opportunity, and it has been held either on the ground that the contract is executory or on the ground that the passing of title is conditional upon the conformity of the commodity to the warranty that the buyer may still reject the commodity when tendered.14 573. Exercise of Right of Rescission Generally.-Where the right to return the goods for breach of warranty is recognized the buyer must, as in other cases where a right of rescission is sought to be exercised, assert his right promptly upon discovery of the breach, otherwise he will be deemed to have waived this right.15 And where the 58 N. W. 373, 41 A. S. R. 624; Brant- 13. Gay Oil Co. v. Roach, 93 Ark. Thomas, 22 Tex. 270, 73 Am. 454, 125 S. W. 122, 137 A. S. R. 95, 27 L.R.A. (N.S.) 914. Cas. 441. 14. Weil v. Stone, 33 Ind. App. 112, 69 N. E. 698, 104 A. S. R. 243; Hitchcock v. Griffin & Skelley Co., 99 Mich. 91 Ga. 333, 17 S. E. 264, 44 A. S. R. 33. 447, 58 N. W. 373, 41 A. S. R. 624; Notes: 27 L.R.A.(N.S.) 922; 23 Springfield Shingle Co. v. Edgecomb Eng. Rul. Cas. 458. As arising supra, 11. to the extent of the warranty Darius 209, Behn Mill Co., 52 Wash. 620, 101 Pac. 233, 35 L.R.A.(N.S.) 258. Note: 27 L.R.A. (N.S.) 916. 15. Andrews v. Hensler, 6 Wall. 254, H. W. Williams Transp. Line v. 18 U. S. (L. ed.) 737; Pullman Palace Cole Transp. Co., 129 Mich. Car Co. v. Metropolitan St. R. Co., 157 88 N. W. 473, 56 L.R.A. 939; U. S. 94, 15 S. Ct. 503, 39 U. S. (L. Burness, 3 B. & S. 751, 113 ed.) 632; Continental Jewelry Co. v. L. 751, 9 Jur. N. S. 620, 8 L. Pugh Bros., 168 Ala. 295, 53 So. 324, S. 207, 32 L. J. Q. B. 204, 6 Ann. Cas. 1912A 657; Auto-Fedan Rul. Cas. 492. See also Lyon v. Hay Press Co. v. Ward, 89 Kan. 218, Bertram, 20 How. 149, 15 U. S. (L. 131 Pac. 595, 50 L.R.A. (N.S.) 783; E. C. T. N Eng. ed.) 847. Ware v. Houghton, 41 Miss. 376, 93 Notes: 56 L.R.A. 943; 27 L.R.A. Am. Dec. 258. See also Cream City (N.S.> 12. 15 Մ. Glass Co. v. Friedlander, 84 Wis. 53, yon v. Bertram, 20 How. 149, 54 N. W. 28, 36 A. S. R. 895, 21 914. I S. (L. ed.) 847. L.R.A. 135. § 574 SALES facts are not in dispute the question whether the attempted rescission was within a reasonable time has been held to be a question of law for the determination of the court,16 though it has also been held that what is reasonable diligence is a question of fact, to be decided by the jury according to the special circumstances of each case.17 The institution by the buyer of an action for damages for breach of the warranty or the interposition of a counterclaim therefor is a waiver of any right to rescind on account of such breach.18 It has been held in case of an exchange of property that, where there is a breach of warranty by one of the parties, the other after a rescission and demand for the return of the property which he has parted with may enter upon the land of the other party, even against his protest, to retake the property so demanded without incurring any liability for trespass. 19 574. Restoration by Buyer Generally.-As in case of rescission for other causes, such as fraud,20 a return of the goods is essential to a rescission for breach of warranty,1 and ordinarily a return of all the goods purchased must be made; the buyer will not be permitted to retain a part and return the balance. Thus where a cow with calf at her side was sold for a gross price, the contract providing that the sale should be considered as a sale of a single animal, it has been held that, to entitle the buyer to rescind for breach of warranty as to the breeding qualities of the cow, both the cow and the calf must be returned. On the other hand where a number of articles are sold at the same time, and a separate price agreed on for each, there may be a rescission as to a portion of the articles, as the contract is not entire. It is not sufficient for a buyer who has taken delivery of the Notes: 9 L.R.A. 611; 36 L.R.A. (N.S.) 470. 16. Continental Jewelry Co. v. Pugh Bros., 168 Ala. 295, 53 So. 324, Ann. Cas. 1912A 657 (holding that an allegation in a pleading that the offer to rescind was made within a reasonable time was an allegation of a conclusion of law and therefore improper). Note: 36 L.R.A. (N.S.) 474. 17. Andrews v. Hensler, 6 Wall. 254, 18 U. S. (L. ed.) 737. 18. Mundt v. Simpkins, 81 Neb. 1, 115 N. W. 325, 129 A. S. R. 670; Davis v. Schmidt, 126 Wis. 461, 106 N. W. 119, 110 A. S. R. 938. 103 A. S. R. 58; Hauss v. Surran, 168 Ky. 686, 182 S. W. 927, L.R.A.1916D 997; Perley v. Balch, 23 Pick. (Mass.) 283, 34 Am. Dec. 56; Mundt v. Simpkins, 81 Neb. 1, 115 N. W. 325, 129 A. S. R. 670; Brantley v. Thomas, 22 Tex. 270, 73 Am. Dec. 264. Note: 34 Am. Dec. 56. 2. Lyon v. Bertram, 20 How. 149, 15 U. S. (L. ed.) 847; White v. Miller, 132 Ia. 144, 109 N. W. 465, 8 L.R.A. (N.S.) 727; Perley v. Balch, 23 Pick. (Mass.) 283, 34 Am. Dec. 56; Clark v. Baker, 11 Metc. (Mass.) 186, 45 Am. Dec. 199. Notes: 8 L.R.A. (N.S.) 727; Ann. 19. Smith v. Hale, 158 Mass. 178, Cas. 1912A 663. 33 N. E. 493, 35 A. S. R. 485. 20. See infra, par. 647 et seq. 1. Eastern Granite Roofing Co. v. Chapman, 140 Aia. 440, 37 So. 199, 3. White v. Miller, 132 Ia. 144, 109 N. W. 465, 8 L.R.A. (N.S.) 727. 4. Costigan v. Hawkins, 22 Wis. 74, 94 Am. Dec. 583. 292 |