If the reader of the cases keeps this fact of the confusion of the words in mind, much of the apparent contradiction in the reports will be explained. In the second division of our subject, "EFFECTS OF THE CONTRACT," we saw how title is affected by "conditional sales," how that such sales are executory, and that if there be a condition precedent or concurrent, then no title passes till such condition has been performed. We also noted that whether or not there is a condition is a matter of evidence, and this fact further explains why "conditions," as such, have often been confused with "warranties," since from the evidence it is frequently difficult to determine whether the question involved was, as a matter of fact, one of condition or one of (implied) warranty. § 134. Definitions: There is, however, an important difference between a condition and a warranty. A condition is some stipulation, agreement, statement or promise which is an essential part of the contract, and which, therefore, affects its binding force. A condition is a vital part of the contract, and a breach in the condition invalidates or vitiates the contract. § 135. A warranty, on the other hand, is a more or less qualified promise or contract of indemnity. It is subsidiary or collateral to the main contract, and a breach of the warranty does not of itself vitiate the main contract, but gives rise to an action for damages. NOTE- Although there is a general right to return the goods in case of breach of implied warranty, and even in case of breach of express warranty in some states, nevertheless this is an optional remedy, and the breach of warranty does not necessarily vitiate the contract. It renders it liable to be avoided in such cases, but does not, per se, make it void. § 136. Keeping, therefore, in mind that in distinguishing between conditions and warranties the all-important question is one of fact, that is, did the parties, by their words, actions, or by the circumstances of the particular case, intend a condition, or did they intend a warranty, we may arrive at certain definite principles. It matters not what the terms or the words were, since there is no magic in the word "warrant" or the word "condition," the all-important question being, Does the whole evidence, considering all the circumstances, show that the contract was one that merely gave the right of a suit for damages. in compensation for the loss (i. e., a warranty), or was the stipulation such that its breach made the contract null in toto (i. e., a condition)? § 137. Sales to Arrive: Frequently sales are made of goods at sea or in transit across the land, as of a cargo, or of a carload, which are commonly called sales "to arrive," or "on arrival." Such sales are, of course, conditional, and therefore executory. No title passes until the goods have actually arrived, and the other conditions, if any, also performed. While this is the rule in absence of further evidence, yet, of course, the parties may by agreement stipulate that the title shall pass at once, or the vendor may warrant the arrival of the goods. Benedict v. Field, 16 N. Y. 595. § 138. Sales on Trial: "Sales on trial" are further examples of "conditions." Strictly speaking, such "sales" are, of course, not sales at all, but mere contracts to deliver to the prospective vendee the goods in question with the stipula tion that, if the goods upon trial conform to the terms of the contract, then a sale shall take place. Such contracts are executory, and no title, therefore, passes upon the delivery. In absence of any stipulation concerning the duration of the period of trial, a reasonable time is to be understood, and the failure of the vendee to return the goods, or to give notice of his decision within such reasonable time, will, in general, imply an agreement on his part to buy them, and in such cases the title passes. If specific agreements are entered into with respect to notice of dissatisfaction, etc., then the purchaser must comply with such terms. Mowbray v. Cady, 40 Iowa, 604. § 139. Sale or Return: Quite different from "a sale on trial" is the effect of a contract designated as "a sale or return." In the latter case there is a completed sale, a passing of the title, with a promise on the vendor's part to buy back the goods at the option of the vendee. This promise to take back the goods is a part of the entire contract, and, consequently, need not be in writing, to satisfy the Statute of Frauds, if the main part of the contract was taken out of the statute by delivery, part payment, or otherwise. Johnston v. Trask, 116 N. Y. 136. Hotchkiss v. Higgins, 52 Conn. 205. Cookingham v. Dusa, 41 Kan. 229. Carter v. Wallace, 32 Hun, 384. Moline Plow Co. v. Rodgers, 53 Kan. 743. |