endeavor by the court to give effect to the intention of the parties. In the second place, there are statements, especially in the earlier authorities, which seem to go so far as to say that it is impossible to warrant against an obvious defect, however clearly a seller may have expressed an intention to do so. As to this, there seems no reason if the seller contracts in regard to an obvious defect or if he makes representations upon which the buyer in fact relies, why he should escape liability. It can hardly lie in his mouth to say that though he was making false representations or promises to induce the buyer to make the bargain, and the buyer was thereby induced, he should not have been. Certainly there is a growing tendency in the law not to allow that sort of argument.3 § 973. Inspection. Inspection may conceivably have a threefold importance in connection with the buyer's reliance on the seller's state Hansen v. Gaar, Scott & Co., 63 Minn. 94, 65 N. W. 254; Branson v. Turner, 77 Mo. 489; Doyle v. Parish, 110 Mo. App. 470, 85 S. W. 646; Hanson v. Edgerly, 29 N. H. 343; Leavitt v. Fletcher, 60 N. H. 182; Schuyler v. Russ, 2 Caines, 202; Jennings v. Chenango County Ins. Co., 2 Denio, 78; Day v. Pool, 52 N. Y. 416, 11 Am. Rep. 719; Parks v. Morris Ax & Tool Co., 54 N. Y. 586; Bennett v. Buchan, 76 N. Y. 386; Van Schoick v. Niagara Ins. Co., 68 N. Y. 434; Studer v. Bleistein, 115 N. Y. 316, 22 N. E. 243, 5 L. R. A. 702; Mulvany v. Rosenberger, 18 Pa. St. 203; Fisher v. Pollard, 2 Head, 314, 75 Am. Dec. 740; Long v. Hicks, 2 Humph. 305; Williams v. Ingram, 21 Tex. 300; McAfee v. Meadows, 32 Tex. Civ. App. 105, 75 S. W. 813; Hill v. North, 34 Vt. 604. 3 In Norris v. Parker, 15 Tex. Civ. App. 117, 38 S. W. 259, the court said: "There seems to be no good reason why a warranty may not cover obvious defects as well as others, if the vendor is willing to give it, and the buyer is willing to buy defective property on the assurance of the warranty. If he relies on his own judgment alone, he does not rely on his warranty." "A special warranty on the sale of a horse may be made to cover blemishes or defects which are open and visible, if the intention to do so is clearly manifested," is the language of the Supreme Court of Minnesota in the case of Fitzgerald v. Evans, 49 Minn. 541, 52 N. W. 143. In Watson v. Roode, 30 Neb. 264, 271, 46 N. W. 491, it is said: "The seller may bind himself against patent defects, if the warranty is so worded." To similar effect are Turner v. Manley, 14 Ga. App. 215, 80 S. E. 680; Steele v. Andrews, 144 Ia. 360, 121 N. W. 17; Powell v. Chittick, 89 Iowa, 513, 56 N. W. 652; Williams v. Ingram, 21 Tex. 300; Henderson v. Railroad Co., 17 Tex. 560, 67 Am. Dec. 675; Hobart v. Young, 63 Vt. 363, 21 Atl. 612, 12 L. R. A. 693. See also Branson v. Turner, 77 Mo. 489; June v. Falkinburg, 89 Mo. App. 563. ments. In the first place, if the defect was one which could be discovered by inspection and the buyer inspected the goods, it may be urged that the parties did not intend that the language used should cover this defect. This reasoning is analogous to that adopted in regard to obvious defects. An obvious defect, however, means a defect that is apparent upon casual inspection and does not need careful or expert examination for its discovery. If the defect required examination of the latter sort, it is still more plain than in the cases of obvious defects that a seller who clearly promises or affirms that the goods are free from the defect which in fact vitiates them will be liable. A second aspect in which inspection or rather the right to inspect may have a bearing on the seller's liability, exists where the buyer has full power and opportunity to inspect, and inspection, if made, would have disclosed the defective character of the goods, but the buyer fails to make the inspection. These facts it may be urged should preclude liability on the seller's part, but whatever may be the law in regard to implied warranty in the case of express warranty, either by contract or representation, it is no defense that the buyer, had he inspected, might have found out the falsity of the seller's statements. The buyer is justified in taking the seller at his word, and in relying upon the seller's statements rather than upon his own examination. A third pos 5 4 W. T. Adams Mach. Co. v. Turner, 162 Ala. 351, 50 So. 308, 136 Am. St. Rep. 28. 5 See infra, § 988. Courts sometimes do not observe the distinction between express and implied warranty in this respect. See, e. g., Egbert v. Hanford Produce Co., 92 N. Y. App. Div. 252, 86 N. Y. S. 1118. Thompson v. Bertrand, 23 Ark. 730. The seller of a slave gave a warranty of soundness. The buyer might have discovered the unsoundness of the slave's feet and knee by examination. The seller was held liable upon the warranty. Leitch v. Gillette-Herzog Mfg. Co., 64 Minn. 434, 67 N. W. 352. The seller of 500 iron bedsteads stated that if the parts of one of the beds went together properly the parts of all would do so. The buyer having found that one could be put together properly made no further inspection. It was held that the plaintiff was entitled to recover, though had he set up more of the bedsteads he would have discovered that the parts would not go together properly. See also Jones v. Just, L. R. 3 Q. B. 197, 204; First Bank v. Grindstaff, 45 Ind. 158; Vaupel v. Lamply, 181 Ind. 8, 103 N. E. 796; Meickley v. Parsons, 66 Iowa, 63, 23 N. W. 265, 55 Am. Rep. 261; Cook v. Gray, 2 Bush, 121; Gould v. Stein, 149 Mass. 570, 577, 22 N. E. 47, 5 L. R..A. 213, 14 Am. St. Rep. 455; Woods v. Thompson, 114 Mo. App. sible importance of inspection by the buyer is in excluding reliance by the buyer on any statement of the seller in regard to the goods. It was held in a New York decision that such was the effect of inspection." But this decision misinterprets the requirement of reliance. There is no reason in the nature of things why a buyer should not rely both on the seller's statements and on his own judgment. Observation shows that buyers constantly do this, and accordingly it is generally and rightly held that inspection by the buyer does not excuse the seller from liability for words which amount to an express warranty, if the difference between the goods and the description was not detected." с § 974. Statements before or after the bargain. If a warranty be conceived of exclusively as an express contract, it is obvious that an offer of the warrantor accepted by the buyer is essential. If a statement made by the seller precedes the sale by a long period and especially if the statement was not made as part of the negotiations culminating in the sale, it will be difficult to find such an offer and accept 38; Drew v. Edmunds, 60 Vt. 401, 15 Atl. 100, 6 Am. St. Rep. 122; Barnum Wire Works v. Seley, 34 Tex. Civ. App. 47, 77 S. W. 827; Tacoma Coal Co. v. Bradley, 2 Wash. 600, 27 Pac. 454, 26 Am. St. Rep. 890. 6 Crocker-Wheeler Electric Co. v. Johns-Pratt Co., 29 N. Y. App. Div. 300, affd., without opinion, 164 N. Y. 593, 58 N. E. 1086. The seller of material called "vulcabeston" represented that it was made of the best, para rubber and selected asbestos, and that it was practically a perfect insulating material. Specimens were furnished the buyer who experimented with them. The court said, as to the seller's statements: "They were not relied upon by the plaintiff or its predecessor; for, before making any contract, the officers of the plaintiff or its predecessor satisfied themselves, by their own investigation or experiment, that the representations made respecting the material and its sufficiency for their purposes were true. It is elementary that, in order to entitle the plaintiff to maintain an action for breach of an express warranty, it must be established that the warranty was relied on. Such was not the case here." See also Redfield v. Engel, 171 Mich. 207, 137 N. W. 60. ob Miller v. Moore, 83 Ga. 684, 10 S. E. 360, 6 L. R. A. 374, 20 Am. St. Rep. 329; Hitz v. Warner, 47 Ind. App. 612, 93 N. E. 1005; South Bend Co. v. Caldwell, 21 Ky. L. Rep. 1084, 1363, 55 S. W. 208; Gould v. Stein, 149 Mass. 570, 22 N. E. 47, 5 L. R. A. 213, 14 Am. St. Rep. 455; Smith v. Hale, 158 Mass. 178, 33 N. E. 493, 35 Am. St. Rep. 485; Keely v. Turbeville, 11 Lea, 339; Woods v. Thompson, 114 Mo. App. 38. ec Procter v. Atlantic Fish Co., 208 Mass. 351, 94 N. E. 281. 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- 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. 1047. 11 If an incumbrance is known to the buyer no warranty is implied. Dreisbach v. Eckelkamp, 82 N. J. L. 726, 83 Atl. 175. 12 Kirkpatrick v. Keplar, 164 Wis. 558, 160 N. W. 1047. 13 This section closely follows section 12 of the English Sale of Goods Act, except subsection (4) which is an addition. There are some changes of wording in the other subsections 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. |