and not to any other subsequent holder, while in the former case the warranty extends to all subsequent holders. In sales of tangible personal property there is likewise an implied warranty that the seller has title, or that he has the power to transfer a title, and that there are no incumbrances upon the property. A seller of personal property will therefore be liable to the buyer, even though the contract of sale does not expressly so provide, if the buyer is forced to surrender the property bought to some person who really owned the property or held a mortgage on it at the time of the sale. The provisions of the Sales Act are as follows: Section 13. In a contract to sell or a sale, unless a contrary intention appears, there is-(1) An implied warranty on the part of the seller that in the case of a sale he has a right to sell the goods, and in the case of a contract to sell he will have a right to sell the goods at the time when the property is to pass. (2) An implied warranty that the buyer shall have and enjoy quiet possession of the goods as against any lawful claims existing at the time of the sale. (3) An implied warranty that the goods shall be free at the time of the sale from any charge or encumbrance in favor of any third person, not declared or known to the buyer before or at the time when the contract or sale is made. (4) This section shall not, however, be held to render liable a sheriff, auctioneer, mortgagee, or other person professing to sell by virtue of authority in fact or law goods in which a third person has a legal or equitable interest. There was a time, fairly recent, when the doctrine of caveat emptor let the buyer beware-cast upon the buyer the risk that the seller had title, but that rule, even before the Sales Act, was changed. In Chapter IV we discussed the various situations when a seller did not have the power to transfer title to an innocent buyer. In all those cases, therefore, where the seller did not possess either the legal right or the legal power to transfer a title to the innocent purchaser, the property will eventually be taken from him by the true owner. In this event the buyer will have his remedy back against his vendor for the breach of the latter's implied warranty of title. Of course, it is possible for one to sell merely his interest in property, or it is even possible for the buyer to assume the sole risk of the seller's having any interest in the property, but before a court will so construe the contract there must be clear evidence that the parties intended to negative the implied warranty of title. KIRKPATRICK v. KEPLER et al. (Supreme Court of Wisconsin, 1917. 164 Wis. 558, 160 N. W. 1047.) Action by John Kirkpatrick against A. L. Kepler, Frank E. Walker, and others. From a judgment for defendants dismissing the complaint, plaintiff appeals. The plaintiff is a dealer in cheese in Richland Center, and on September 1, 1913, paid the defendants A. L. Kepler, A. H. Ray, C. 11. Babb, L. C. Brown, James Draper, Fred McMillan, E. E. Kepler, S. Roudebush, William Wanless, and Joseph E. Davis, $690.27 for 83 boxes of cheese at the then market price. These named defendants had been patrons of a cheese factory in Richland Center owned by one Walker, for whose estate the defendant Christie Walker was administratrix. These 83 boxes of cheese had been delivered on June 20, 1913, to one H. J. Bamford at his cold storage warehouse in Richland Center under an arrangement for selling the same. On June 23d and 27th Bamford gave two warehouse receipts for this cheese to the First National Bank of Richland Center for his then indebtedness to said bank. Shortly thereafter Bamford was adjudicated a bankrupt, and appears to have made a composition with his creditors, in which composition none of the defendants appear to have participated. After the bankruptcy of Bamford the said bank which owned the storage warehouse occupied by Bamford leased the same to plaintiff who, on August 8th, gave a warehouse receipt to the bank for all the cheese he found in said warehouse on taking possession, which included the 83 boxes in question here. This warehouse receipt was not given on account of any obligation owing to the bank by plaintiff. Shortly before the plaintiff paid the defendants for this cheese he talked with their attorney and then with some of the defendants about the purchase, and as a result of such conversations an instrument [a bond] was drawn by defendants' attorney and submitted by the plaintiff to his attorney, and which was signed by all the defendants other than Walker, and delivered to plaintiff. ESCHWEILER, J. The plaintiff seeks to recover the amount he paid to the defendants for the 83 boxes of cheese on the theory that there was a failure of consideration and a breach of warranty of title. * * By section 1684t13, subsec. 1, it is provided that in a contract of sale, unless a contrary intention appears, there is an implied warranty on the part of the seller that he has a right to sell the goods. By the third subdivision of the same section there is an implied warranty that the goods shall be free at the time of the sale from any charge or incumbrance in favor of any third person not declared or known to the buyer before or at the time when the sale is made. The general rule is well established that there is an implied warranty of title in a sale of chattels in possession of the seller for a fair price, where a contrary intention is not shown from the surrounding circumstances. * * * The question in this case really is whether plaintiff, when he paid the defendants full market price, purchased cheese or a lawsuit. If he bought the cheese, there was by law an implied warranty of right to sell in the vendors; if it was intended by the parties that he was to purchase all the possibilities of a lawsuit, then the bond was inconsistent with such purpose. If the purpose of the bond was to limit the form of the lawsuit which defendants undertook to assume the care and expense of, then such limitation in no wise contradicts the implied warranty of title under the statute, and questions concerning the same could only come up if suit were brought upon the bond. The uncontradicted evidence shows that the warehouse receipt given by plaintiff to the bank at the time of the taking possession of the warehouse was without consideration, and in no wise altered the respective positions of the parties to this action, except as it might affect the right to bring a suit on the bond; but, that not being before us, the giving of the receipt is entirely immaterial. * Judgment reversed, and cause remanded, with directions to dismiss the complaint as to the defendant Christie Walker, and to enter judgment in favor of plaintiff against the other defendants for the amount claimed. WINSLOW, C. J. (dissenting). I confess that I cannot understand the reasoning upon which the decision is based. To me the evidence tells a very plain and simple story. The parties on both sides knew that there was a dispute as to the title of this cheese, and that the bank claimed to own it. The plaintiff had in fact gone so far as to acknowledge the bank's title by giving a warehouse receipt there for to the bank when he took possession of the storehouse. So when the parties met to negotiate for the sale, there was no misapprehension about the situation, the plaintiff knew that the defendants claimed title as the original manufacturers of the cheese, and that the bank claimed title through Bamford, in whose hands the defendants had placed it. The subject as to what remedy the plaintiff should have in case the defendants' claim of title proved invalid was discussed, and it was finally agreed that the defendants should give the bond or undertaking set forth in the statement of facts. Had this bond been signed by sureties, there would be logical ground for the conclusion that it was given to increase the plaintiff's security, but it was not. It was signed only by the parties who claimed to own the cheese. These parties would all be liable for the value of the cheese on their implied warranty, had nothing been said about security, and this liability would not depend on the successful results of an action of replevin or trover. The liability on the bond, therefore, is a limited liability, considerably more restricted, though included in the liability resulting from implied warranty of title. It is a familiar legal principle that the giving of express limited warranties excludes and negatives the idea that more comprehensive warranties were intended, "and repels any implication of law to that effect." *** Hence there was no implied warranty here because the "contrary intention appears," and in such cases the statute in express terms declares that there is no implied warranty. SECTION 5.-IMPLIED WARRANTY THAT THE GOODS SHALL CORRESPOND TO THE DESCRIPTION Sales Act, Section 14. Where there is a contract to sell or a sale of goods by description, there is an implied warranty that the goods shall correspond with the description and if the contract or sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description. The word "description," as here used, means some statement concerning the goods made for the sole purpose of enabling the parties to identify or pick out the goods. The term as here used does not include statements concerning the quality of the goods. To illustrate: If A. called his grocer over the telephone and said, "Send me one pound of creamery butter," and the grocer agreed to do so, the expression "creamery butter" is a statement descriptive of the goods, as the term "description" is used in this section. The grocer, therefore, impliedly warrants that the butter. which he sends is "creamery butter." He would break his warranty if he sent "home-made butter" or "oleomargarine." If the grocer sent creamery butter which was unpalatable, there would be no breach of the warranty in section 14; that is, section 14 does not attach any warranty of quality. We shall discuss the implied warranty of quality in section 7. Notice that this section applies only when there is either a contract to sell or a sale of goods to be identified by the description. If the goods are identified by looking at them, or by touching them, such a contract to sell, or sale, is not by description. Hence, in our supposed case, if A., instead of calling her grocer over the telephone, had gone to the store, and upon seeing some creamery butter in the refrigerator had said, "I want a pound of that creamery butter," this would not be a sale by description. Obviously there is no necessity for applying section 14 in such a case. When section 14 applies at all, it will make no difference whether the seller is a dealer or not. The section includes all sellers-casual sellers, as well as dealers, manufacturers, etc. INTERSTATE GROCER CO. v. GEORGE WM. BENTLEY CO. Action by the Interstate Grocer Company against the George Wm. Bentley Company. Judgment for plaintiff, and defendant brings exceptions. RUGG, C. J. This is an action of contract to recover damages for an alleged breach of an implied condition or warranty that certain canned sardines purchased by the plaintiff were merchantable. The plaintiff was a wholesale grocer in Missouri. In the summer of 1907 it placed an order with brokers in Missouri for five hundred cases of "14 oil sardines and 200 cases of 34 mustard sardines." The broker sent the order to the Maddocks Packing Company, a corporation engaged in the business of packing sardines in Maine. That company had an arrangement with the defendant whereby it placed sardines as fast as packed in storage in a Portland warehouse, taking warehouse receipts in the defendant's name. The defendant upon delivery to it of the warehouse receipts advanced to the packing company a percentage of the value of the stored goods upon which advancements the company paid interest. Orders received by the packing company for sardines were referred to the defendant for approval, and the proceeds of goods which were shipped from those on storage were paid to the defendant. On receipt of the plaintiff's order the packing com pany wrote to the defendant, with a request for shipping orders, so that the goods might be sent the following week. * The goods were shipped and an invoice was sent in the name of the defendant to the plaintiff, and payment was made by the plaintiff to the defendant, which credited it on its account against the packing company. There was testimony from which it might have been found that the goods were not merchantable when delivered to the plaintiff. * * Upon the sale of goods, by name or description, in the absence of some other controlling stipulation in the contract, a condition is implied that the goods shall be merchantable under that name. They must be goods known in the market and among those familiar with that kind of trade by that description, and of such quality as to have value. This is not a warranty of quality. It does not require any particular grade. It is a requirement of identity between the thing which is described as the subject of the trade and the thing proffered in performance of it. The buyer is entitled to receive goods fairly answerable to the description contained in his contract of sale. It does not matter whether the deleterious characteristic is latent or obvious, provided it goes to the extent of changing the nature of the goods, so that they have no value in the market under the designation contained in the contract of sale. This is a general rule applicable alike to all, whether they be manufacturers or dealers or merely sellers. It was declared early in this commonwealth, and has been adhered to consistently. * * * This being the governing principle, it is of no consequence whether the seller is a manufacturer or not, or whether the defect is hidden or discoverable by inspection. Upon a sale even by a casual owner of sardines, he is bound to deliver something which answers that description in the trade. If he does not, he does not perform his contract. * * * This rule is quite apart from instances where the sale is of specifically defined goods, whether open to the inspection of the parties or not, where the rule of caveat emptor governs. * * * It is distinct also from a sale expressly or avowedly to the knowledge of both parties for a particular purpose, as to which another rule prevails. * * * All these rules are different statements of the principle that a buyer has a right to get that which he had bought. They deal not with a warranty of quality but with a condition of the contract. They touch the identity of the subject with that tendered in performance of it. This principle also is quite separate from that frequently applied in purchases from manufacturers and sometimes from dealers, where the buyer relies upon the skill or knowledge of the seller, and there arises some sort of implied warranty of quality. If the goods in the case at bar were not salable for some price as sardines when they were delivered to the plaintiff, there was a breach of contract by the seller. DIEBOLD SAFE & LOCK CO. v. HUSTON et al. (Supreme Court of Kansas, 1895. 55 Kan. 104, 39 Pac. 1035, 28 L. R. A. 53.) Action by Huston & Breeding against the Diebold Safe & Lock Company. Plaintiffs had judgment, and defendant brings error. ALLEN, J. The plaintiff testified to an oral warranty that the safe was fireproof, by the agent of the defendant. * * * It is clear that |