Uniform Sales Act has it been held that taking title to the goods indisputably proves an assent to accept the goods in full satisfaction of the seller's obligations as to the quality of the goods; 85 and the doctrine of the New York courts has been followed in other jurisdictions.86 85 Reed v. Randall, 29 N. Y. 358, 86 Am. Dec. 305; Gaylord Mfg. Co. v. Allen, 53 N. Y. 515; Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51, 52 Am. Rep. 63; Studer v. Bleistein, 115 N. Y. 316, 22 N. E. 243, 5 L. R. A. 702; Pierson v. Crooks, 115 N. Y. 539, 22 N. E. 349, 12 Am. St. Rep. 831; Gentilli v. Starace, 133 N. Y. 140, 30 N. E. 660; Waeber v. Talbot, 167 N. Y. 48, 60 N. E. 288, 82 Am. St. Rep. 712; Staiger v. Soht, 191 N. Y.. 527, 84 N. E. 1120, affg. 116 N. Y. App. Div. 874, 102 N. Y. S. 342; Ferguson v. Netter, 204 N. Y. 505, 98 N. E. 16; Lifshitz v. McConnell, `80 N. Y. App. Div. 289, 80 N. Y. S. 253; Kelly Asphalt Block Co. v. Barber Asphalt Paving Co., 136 N. Y. App. Div. 22, 120 N. Y. S. 163; Motley v. Elmenhorst, 142 N. Y. App. Div. 830, 127 N. Y. S. 625; Howes v. Corti Building Co., 76 N. Y. Misc. 507, 135 N. Y. S. 562; Atlantic Coast Lumber Corp'n v. McCaldin Bros. Co., 76 N. Y. Misc. 528, 135 N. Y. S. 627; R. Young Bros. Feed Co. v. Seymour, 151 N. Y. App. Div. 549, 136 N. Y. S. 80; Lowenberg Co. v. Block, 140 N. Y. S. 375. The law of New York is changed by the Sales Act. See infra, § 714. Carleton v. Jenks, 80 Fed. 937, 47 U. S. App. 734, 26 C. C. A. 265; Oakland Mill Co. v. Wolf Co., 118 Fed. 239, 55 C. C. A. 93; Corey's Wholesale Fruit Co. v. Fuller, 62 Fla. 146, 56 So. 800; Henderson Elev. Co. v. North Georgia Mfg. Co., 126 Ga. 279, 55 S. E. 50; Springer v. Indianapolis Brewing Co., 126 Ga. 321, 55 S. E. 53; Miller v. Moore, 83 Ga. 684, 10 S. E. 360, 6 L. R. A. 374, 20 Am. St. Rep. 329; Maynard v. Render, 95 Ga. 652, 23 S. E. 194; Underwood v. Caldwell, 102 Ga. 16, 29 E. S. 164; Gandy v. Seymour Slack Stave Co. (Ind. App.), 90 N. E. 16; Allison v. Vaughan, 40 Iowa, 421; Hirshhorn v. Stewart, 49 Iowa, 418; Mackey v. Swartz, 60 Iowa, 710, 15 N. W. 576; Schopp v. Taft, 106 Iowa, 612, 76 N. W. 843; Keniston v. Todd, 139 Iowa, 287, 117 N. W. 674; Jones v. McEwan, 91 Ky. 373, 16 S. W. 81, 12 L. R. A. 399; Forsythe v. Russell Co., 148 Ky. 490, 146 S. W. 1103; Albin Co. v. Kentucky Table Co., 23 Ky. L. Rep. 2261, 67 S. W. 13; Talbot Paving Co. v. Gorman, 103 Mich. 403, 61 N. W. 655, 27 L. R. A. 96; Williams v. Robb, 104 Mich. 242, 62 N. W. 352; Henderson Co. v. Stilwell, 130 Mich. 124, 80 N. W. 718; Brown v. Harris, 139 Mich. 372, 102 N. W. 960; Buick Motor Co. v. Reid Mfg. Co., 150 Mich. 118, 113 N. W. 591; Columbus, etc., Iron Co. v. See, 169 Mich. 661, 135 N. W. 920; Gill v. Nat. Gaslight Co., 172 Mich. 295, 137 N. W. 690; Lee v. Bangs, 43 Minn. 23; s. c., sub nom. Sole Leather Over Mfg. Co. v. Bangs, 44 N. W. 671; Rosenfield v. Swenson, 45 Minn. 190, 47 N. W. 718; Stilwell Co. v. Biloxi Co., 78 Miss. 779, 29 So. 513; Roman v. Bressler, 32 Neb. 240, 49 N. W. 368; Havens v. Grand Island Light, etc., Co., 41 Neb. 153, 59 N. W. 681; Hazen v. Wilhelmie, 68 Neb. 79, 93 N. W. 920; Patrick v. Norfolk Lumber Co., 81 Neb. 267, 115 N. W. 780; Brooke v. Laurens Milling Co., 78 S. Car. 200, 58 S. E. 806; Parks v. O'Connor, 70 Tex. 377, 390, 8 S. W. 104; Easton v. Dozier (Tex. Civ. App.), 148 S. W. 603; Hurley-Mason § 709. Difficult position of the buyer under this rule. In jurisdictions where the law, like that of New York prior to the enactment of the Uniform Sales Act, holds that acceptance of the goods (barring the excepted cases hereafter considered) precludes subsequent remedy for inferiority, and also denies the buyer of goods under an executed sale the right of rescission for breach of warranty,87 a buyer to whom goods are tendered is in a difficult position. If the property in the goods has already passed the buyer will be committing a breach of his obligation if he fails to take the goods even though they do not conform to the warranty. He must take the goods and seek redress in a cross-action or by a counterclaim, when sued for the price. On the other hand, if the property has not passed the buyer must not take the goods if they do not conform to the contract, for if he does so he will thereby extinguish all claims on account of such inferiority. It is frequently a very difficult question to determine whether the property has passed in a given case a question of doubt even for lawyers and courts. To require a business man offhand to determine whether a contract is executory or whether the property in the goods has already passed, and to impose a severe penalty upon him if he guesses wrong, is certainly an unfortunate state of the law, which should not be tolerated if, as in the matter under consideration it is not necessary. 88 Co. v. Stebbins, etc., Co., 79 Wash. 366, 140 Pac. 381; Olson v. Mayer, 56 Wis. 551, 14 N. W. 640; Northern Supply Co. v. Wangard, 117 Wis. 624, 94 N. W. 785, 98 Am. St. Rep. 963; Northfield Nat. Bank v. Arndt, 132 Wis. 383, 112 N. W. 451. See also Smith v. New Albany Mill Co., 50 Ark. 31, 6 S. W. 225. Of the jurisdictions where the cases in this note were decided, Iowa, Michigan, Minnesota and Wisconsin have subsequently enacted the Uniform Sales Act, the effect of which is stated infra, § 714. 87 As to this, see infra, §§ 1461, 1462. 88 The New York court itself seemed even prior to the enactment of the Uniform Sales Act, not much disposed to defend the rules which had become established in that State upon the matter. In Heath Dry Gas Co. v. Hurd, 124 N. Y. App. Div. 68, 108 N. Y. S. 410, after quoting from Reed v. Randall, 29 N. Y. 358, 86 Am. Dec. 305, a passage to the effect that a warranty, though express, if no other than the law would imply had there been no words of express contract, would not survive acceptance, the court said: "Whatever may be said for or against the principle thus enunciated as formulating one amongst other somewhat refined rules governing the subject of warranties, it seems to have been recognized and to have § 710. Exceptional cases where acceptance of goods does not preclude subsequent objection. In the jurisdictions which follow the former New York decisions it is conceded that the rule that acceptance of the goods precludes subsequent objection to quality does not apply to all cases; but the excepted cases do not seem to coincide exactly in all jurisdictions; and it is a matter of extraordinary difficulty to distinguish under this rule in what cases the acceptance does not involve an absolute discharge. The excepted cases may be divided into two classes 89-the exception in the first class depending upon the character of the seller's promise or warranty, and the exception in the second class depending upon the difficulty of discovering the defect. As to the first class, according to some authorities the test is simply between executory contracts to sell and executed sales. If the original contract is executory, whatever its form, it is intimated in some cases the buyer by accepting the goods loses all right. Whereas in case of an executed sale a subsequent action or counterclaim because of inferiority is permitted.90 passed without criticism in later cases." A third class is suggested in Summers Fiber Co. v. Walker, 33 Ky. L. Rep. 153, 109 S. W. 883, viz: where the buyer has paid the price or a large part of it in advance. To require him to reject the goods is to deprive him of security for what he has paid. "Gaylord Mfg. Co. v. Allen, 53 N. Y. 515. "In the absence of fraud or latent defects, an acceptance of the articles sold upon an executory contract, after an opportunity to examine it, is a consent and agreement that the quality is satisfactory and as conforming to the contract, and bars all claim for compensation for any defects that may exist in the article." So in later New York decisions reference is made to the distinction as being between executory contracts and executed sales. Stuart v. Manhattan Bathtub Co., 34 N. Y. Misc. 165, 68 N. Y. S. 816; Waeber v. Talbot, 167 N. Y. 48, 57, 60 N. E. 288, 82 Am. St. Rep. 712. See also Davidson Bros. Co. v. Smith, 143 Ia. 124, 121 N. W. 503. In view of the New York decisions cited in the following notes it is probable, however, that the law of New York permitted the buyer, in case of some executory contracts, to receive the goods and yet recover damages for their inferior quality. But under an executory contract with an express warranty it was held that all rights were lost by acceptance, in Locke v. Williamson, 40 Wis. 377, and Cocke v. Big Muddy Coal & Iron Co. (Tex. Civ. App.), 155 S. W. 1019 (if defect known). § 711. Nature of warranty as affecting the consequences of accepting goods. Instead of distinguishing between executory and executed contracts, the New York courts and others holding similar views have sometimes stated that only an express warranty will survive acceptance,91 or in some States perhaps any warranty."2 But in Georgia no warranty whatever will survive acceptance of the goods if the buyer knows of their defective quality when he accepts them, though an express warranty will excuse examination of the goods even for obvious defects.93 91 Rubin v. Sturtevant, 80 Fed. 930, 51 U. S. App. 286, 26 C. C. A. 259; Day v. Pool, 52 N. Y. 416, 11 Am. Rep. 719; Parks v. Morris Ax & Tool Co., 54 N. Y. 586; Dounce v. Dow, 57 N. Y. 16; Brigg v. Hilton, 99 N. Y. 517, 3 N. E. 51, 52 Am. Rep. 63; Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372, 16 Am. St. Rep. 753; Staiger v. Soht, 191 N. Y. 527, 84 N. E. 1120, affg. 116 N. Y. App. Div. 874, 102 N. Y. S. 342; Ferguson v. Netter, 204 N. Y. 505, 98 N. E. 16; Ames v. Norwich Light Co., 122 N. Y. App. Div. 319, 106 N. Y. S. 952; Ralph B. Carter Co. v. Fischer, 121 N. Y. S. 614; Schoenberg v. Thorner, 140 N. Y. S. 1028. See also Smith v. Mayer, 3 Colo. 207; Shupe v. Collender, 56 Conn. 489, 15 Atl. 405, L. R. A. 339; Dayton v. Hooglund, 39 Ohio St. 671; Frey v. Failes, 37 Okl. 297, 132 Pac. 342; Hurley-Mason Co. v. Stebbins, 79 Wash. 366, 140 Pac. 381, L. R. A. 1915 B. 1131; Peterson v. Denny-Renton Clay & Coal Co., 89 Wash. 141, 154 Pac. 123. 92 Talbot Paving Co. v. Gorman, 103 Mich. 403, 61 N. W. 655, 26 L. R. A. 96; Parks v. O'Connor, 70 Tex. 377, 389, 8 S. W. 104; Best v. Flint, 58 Vt. 543, 5 Atl. 192, 56 Am. Rep. 570. 93 Henderson Elevator Co. v. North Georgia Milling Co., 126 Ga. 279, 55 S. E. 50; Springer v. Indianapolis Brewing Co., 126 Ga. 321, 55 S. E. 53. In the former case the court said: "A vendee who has exacted of the seller a warranty as to quality and knowingly accepts goods deficient in the quality warranted will be denied to subsequently assert their defective quality. His duty is to reject the article and his acceptance with knowledge of the defect amounts to a waiver of the warranty as to such defect. Miller v. Moore, 83 Ga. 692, 10 S. E. 360. There is no duty resting upon the purchaser who has bought goods under an express warranty to inspect the article purchased or exercise care in discovering any defects. He may rely on the contractual obligation of the seller that he will deliver goods of the quality warranted. Haltiwanger v. Tanner, 103 Ga. 314, 29 S. E. 965; Moultrie Repair Co. v. Hill, 120 Ga. 730, 48 S. E. 143. If subsequently to acceptance the buyer discovers that the goods do not come up to the warranty, he may rely on the warranty and plead partial failure of consideration." See also Polhemus v. Heiman, 45 Cal. 573, 579; Browning v. McNear, 145 Cal. 272, 78 Pac. 722; North Georgia Milling Co. v. Henderson Elevator Co., 130 Ga. 113, 60 S. E. 258. Compare with the statement quoted above the following from Parks v. O'Connor, 70 Tex. 377, 389, 8 S. W. 104: "The buyer may accept an article sold with a warranty, though he may know it is not such as is warranted and may recover damages for the breach.” § 712. What is meant by express warranty in this connection. The distinction between express warranties and other promises, it will be observed, is inconsistent with the view that the matter depends on whether the contract is executory or not, unless it is said that there can be no express warranty in an executory contract. But this is not generally so held, certainly it has not been so held in New York. What is meant in that State' by the use of the term "express warranty" in regard to an executory contract is not clear. Any express promise or affirmation in regard to the quality of the goods might well be so called.94 But it was clearly established that an express promise which imposed no other obligation upon the seller than that which would have been implied had no express promise been made as to the quality of the goods did not survive acceptance.95 Where a promise or warranty in an executory contract in regard to the quality of the goods is something other than that which the law would imply, the rule formerly established in New York is not so clear. Doubtless where the word "warrant" or "guarantee" 96 "This is the usage of the term in the Sales Act and in this work. See infra, § 970. And in Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 23 N. E. 372, 16 Am. St. Rep. 753, this seems to have been the usage of the court. The court defines a warranty as an express or an implied statement of something which a party undertakes shall be part of the contract and, though part of the contract, collateral to the express object, and said: "Where there is an express warranty it is unimportant whether the sale be regarded as executory or in præsenti, for it is now well settled that the same rights and remedies attach to an express warranty in an executory as in a present sale." A decision similar in principle is Bull v. Bath Iron Works, 75 N. Y. App. Div. 380, 78 N. Y. S. 181. 5 This was first laid down in Reed #. Randall, 29 N. Y. 358, 86 Am. Dec. 305, where an executory contract for tobacco provided that it was "to be delivered well cured and in good con dition," and it was held that no liability for breach of this promise survived acceptance. The doctrine was followed in Gaylord Mfg. Co. v. Allen, 53 N. Y. 515, where the contract provided that the goods were "to be of the best quality and suitable to the purpose designed." It may be observed that the court seems to have been in error in holding in this case that the express promise was no more than the law would imply. The law implies an obligation to furnish goods of merchantable quality, but never implies an obligation to furnish them of "the best quality." In Heath Dry Gas Co. v. Hurd, 124 N. Y. App. Div. 68, 108 N. Y. S. 410, the contract was for the manufacture of goods which were "to be constructed in a careful, workmanlike, and skillful manner;" and here also it was held that the warranty did not survive accept ance. 9 Condict v. Onward Construction Co., 210 N. Y. 88, 103 N. E. 886. |