ance. On the other hand, it is apparent that the buyer may be as completely deceived by statements prior to the ultimate negotiations as by statements made at the time of the bargain. If the view is sound that has been previously expressed, that the law imposes upon the seller the obligation of a warrantor, not simply when he agrees to assume it, but also when he induces the buyer to enter into the bargain by positive statements in regard to the goods, the buyer may well be protected. The original basis of warranty, as has been seen, a basis which still cannot be safely lost sight of, is the deception of the buyer because of his natural and, therefore, justifiable reliance on the seller's statements. This should furnish the test by which the seller's liability for past statements should be governed. There seems no reason to distinguish a case where the seller makes a statement in regard to goods at the time of the sale, a little while before that time, or a long time before, if the statement was originally made with reference to a possible sale, or was expressly or impliedly adopted as the basis for subsequent negotiations. Affirmation may induce the sale as fully when the buyer buys after considerable further negotiation, as when he buys immediately. Statements subsequent to the bargain cannot amount to a warranty unless there is new consideration.

§ 975. Implied warranties of title under Sales Act.

The obligations of one who sells or contracts to sell goods, to transfer a good title are thus expressed in the Sales Act.9 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 that 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.

7 See Percival v. Oldacre, 18 C. B. (N. S.) 398; Cowdy v. Thomas, 36 L. T. (N. S.) 22; Leavitt v. Fiberloid Co., 196 Mass. 440, 82 N. E. 682, 15 L. R. A. (N. S.) 855; Powers v. Briggs, 139 Mich. 664, 103 N. W. 194; Empire State Bag Co. v. McDermott, 89 N. Y.

10

App. Div. 234, 85 N. Y. S. 787; Willis-
ton, Sales, §§ 209, 210. Cf. Texas
Star Flour Mills Co. v. Moore, 177
Fed. 744, 753.

8 See supra, § 142.

9 Sec. 13.

10 Carbolineum Wood Preserving Co.

(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, 11 before or at the time when the contract or sale is made.12

(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." 13

§ 976. No implied warranty of title in early law.

The English law started with the assumption that the seller did not warrant the title of the goods which he sold. This is clearly expressed in an often-quoted passage from Noy's Maxims, 14 "If I take the horse of another man, and sell him, and the owner takes him again, I may have an action of debt for the money; for the bargain was perfect by the delivery of the horse; and caveat emptor." If, however, the seller knew that he had no title and concealed the fact, he was early held responsible to the buyer for the fraud. 15 It was, of course, true as soon as warranty was recognized at all that a seller might warrant the title of the goods which he sold, and Lord Holt made it clear that a bare affirmation of title by the seller amounted to a warranty.16 Lord Holt confined his ruling to the case where the seller was in possession, but v. Carter (N. Y. Munic. Ct.), 50 N. Y. L. J. 361, 27 Harv. L. Rev. 287; Kirkpatrick v. Kepler, 164 Wis. 558, 160 N. W. 1947.

of which the essential ones are: In the first line of (1) "warranty " is substituted for "condition;" in (2) the final words "as against any lawful claims existing at the time of the sale" have been added; in (3) the words "at the time of the sale" have been inserted.

14 Chapter 42.

15 Sprigwell v. Allen, Aleyn, 91, 2 East, 448, note; Furnis v. Leicester, Cro. Jac. 474.

16 Medina v. Stoughton, 1 Salk. 210, 1 Ld. Raym. 593. See also Anon., 1 Rolle Abr. 90, 91, pl. 5-8.

18

in Pasley v. Freeman," Buller, J., held an affirmation effective whether the seller was in possession or not. The progress of the law from this point is typical of its tendency in the entire subject of contracts. In early times intentions not expressed by words were disregarded; to-day they are frequently given effect by the recognition of implied meanings. Blackstone says: "By the Civil law (Ff. 21, 2, 1) an implied warranty was annexed to every sale, in respect to the title of the vendor; and so too, in our law, a purchaser of good and chattels may have a satisfaction from the seller, if he sells them as his own, and the title proves deficient, without any express warranty for that purpose." (Cro. Jac. 474, 1 Rolle Abr. 90.) Perhaps this statement so far as it implies that the seller by the mere act of selling warrants his title was somewhat ahead of Blackstone's time, for it was not until 1864 that the general doctrine was established that the sale of a chattel is a representation of title in the seller and, therefore, a warranty."

19

§ 977. Warranty of title in America.

Where the seller is in possession of goods it has uniformly been held in the United States that there is a warranty of title.20

17 3 T. R. 51.

18 2 Comm. 451.

19 Eichholz v. Bannister, 17 C. B. (N. S.) 708. In Raphael v. Burt, Cab. & Ellis, 325, it was held broadly by Stephen, J., that a sale of personal property (bonds) implies an affirmation of title. See also Page v. Cowasjee Eduljee, L. R. 1 P. C. 127, 144; Bagueley v. Hawley, L. R. 2 C. P. 625.

20 Deatz v. United States, 38 Ct. Cl. 355; Houser's Case, 39 Ct. Cl. 508; Williamson v. Sammons, 34 Ala. 691; Gray v. Haynes, 164 Ala. 294, 51 So. 416; Hafer v. Cole, 176 Ala. 242, 57 So. 757; Lindsay v. Lamb, 24 Ark. 222; Mason v. Bohannan, 79 Ark. 435, 96 S. W. 181; Miller v. Van Tassel, 24 Cal. 458; Gross v. Kierski, 41 Cal. 111; Starr v. Anderson, 19 Conn. 338; Lines v. Smith, 4 Fla. 47; Morris v. Thompson, 85 Ill. 16; Marshall

v. Duke, 51 Ind. 62; Paulsen v. Hall, 39 Kans. 365, 18 Pac. 225; Thurston v. Spratt, 52 Me. 202; Maxfield . Jones, 76 Me. 135, 137; Rice v. Forsyth, 41 Md. 389; Shattuck v. Green, 104 Mass. 42; Boston & Albany R. R. Co. v. Richardson, 135 Mass. 473; Hunt v. Sackett, 31 Mich. 18; Fulwell v. Brown, 156 Mich. 551, 121 N. W. 265; Davis v. Smith, 7 Minn. 414; Close v. Crossland, 47 Minn. 500, 50 N. W. 694; Jordan v. Van Duzee, 139 Minn. 103, 165 N. W. 877, L. R. A. 1918, B. 1136; Storm v. Smith, 43 Miss. 497; Schell v. Stephens, 50 Mo. 375; Matheny v. Mason, 73 Mo. 677, 39 Am. Rep. 541; Shultis v. Rice, 114 Mo. App. 274, 89 S. W. 357; Dierling v. Pettit, 140 Mo. App. 88, 119 S. W. 524; Budd v. Power, 8 Mont. 380, 20 Pac. 820; Hall v. Aitkin, 25 Neb. 360, 41 N. W. 192; Sargent v. Currier, 49

The doctrine suggested by Lord Holt that no warranty existed if the seller was not in possession has been recognized by number of dicta and a few decisions; 21 but this denial of warranty been disapproved in recent cases, and it may be questioned whether it is likely to be permanently followed even aside from statute. 22 The doctrine of implied warranty of title applies not simply to chattels but also to choses in action, both to those having tangible form, such as bonds, 23 stock, 24 negotiable paper, 25 and also to those having no tangi

ble form, such as accounts, 26 rights in a partnership," and rights in inventions whether patented or not. 28 In short, the doctrine is applicable to all personal property.29 Under the Sales Act, 30 an exchange is properly designated a sale, but apart from statute there is the same warranty of title in a contract of barter as in a sale for money.31 A seller who has no title to the goods which he purports to sell but who afterwards acquires title is estopped to deny the validity of the transfer because of the implied representation and warranty of title.32 The Sales Act further expressly provides in subsection (3) of section 13, that there is an implied warranty against incumbrances. This merely enacts the rule of the common law; for the implied warranty that the seller has title means that he has a perfect title free from incumbrances. 33

Bank, 10 Vt. 141, 33 Am. Dec. 188; Thrall v. Newell, 19 Vt. 202, 47 Am. Dec. 682. See also Meyer v. Richards, 163 U. S. 385, 41 L. Ed. 199, 16 Sup. Ct. Rep. 1148, and infra, § 1162.

26 Gilchrist v. Hilliard, 53 Vt. 592, 38 Am. Rep. 706.

27 Jamison v. Harbert, 87 Iowa, 186, 54 N. W. 75.

28 Krumbhaar v. Birch, 83 Pa. St. 426; Costigan v. Hawkins, 22 Wis. 74, 94 Am. Dec. 583.

29 A sale of the reports of a Commercial Agency (applying Sales Act, § 91 of c. 571, Acts, 1911). Carbolineum Wood Preserving Co. v. Carter, 50 N. Y. L. J. 361, commented on in 27 Harv. L. Rev. 287 (N. Y. Munic. Ct. 1913).

30 Section 9 (2).

31 Hunt v. Sackett, 31 Mich. 18; Close v. Crossland, 47 Minn. 500, 50 N. W. 694; Patee v. Pelton, 48 Vt. 182; Byrnside v. Burdett, 15 W. Va. 702.

32 Williston, Sales, § 131.

33 Burpee v. Holmes, 132 Ga. 464, 64 S. E. 486; Close v. Crossland, 47

Minn. 500, 50 N. W. 694; Hickman v. Dill, 39 Mo. App. 246; Hall v. Aitkin, 25 Neb. 360, 41 N. W. 192; Dresser v. Ainsworth, 9 Barb. 619; Hodges . Wilkinson, 111 N. C. 56, 15 S. E. 941, 17 L. R. A. 545; Clevenger v. Lewis, 20 Okla. 837, 95 Pac. 230; Baker v. Shaw, 68 Wash. 99, 122 Pac. 611, 613. The decisions cited above related to property incumbered by a mortgage. The following decisions relate to patents depriving the purchaser of the right to use the property purchased: Electro Dynamic Co. v. The Electron, 74 Fed. 689, 45 U. S. App. 16, 21 C. C. A. 12; Siegel v. Brooke, 25 Ill. App. 207; National Box Co. v. Gotham, 111 N. Y. S. 1132, 126 N. Y. App. Div. 926. Compare American Electrical Co. v. Consumers' Gas Co., 47 Fed. 43; Lowman v. Excelsior Pattern Co., 104 Ala. 367, 16 So. 17. In Benjamin, Sale (5th Eng. Ed.), 674, however, it is said that there was no authority in the English common law for the provisions in the Sale of Goods Act, either as to warranty of quiet enjoyment or against incumbrances.