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of a certain description this is clearly a sale by description. But suppose I buy from a manufacturer an automobile that stands before us at the time of the sale and is inspected by me. Clearly that case ought to carry with it the same implied warranties that would exist in the former case except as regards defects which such examination ought to have revealed." Such a case would seem to be essentially a sale by description within the meaning of the sales act. We may say with assurance that if a seller is neither grower, manufacturer or dealer a sale of a specified article before the parties carries no implied warranty of merchantability. The rule is caveat emptor. But if the seller is manufacturer, grower or dealer, and it is apparent the buyer relies upon the seller's situation as a manufacturer, grower or dealer in goods of that kind, there is an implied warranty, except such defects as the examination should have disclosed.)

§ 332. (Sales, Sec. 45.) Generally of the implied

warranties.

(See cases under following sections.)

§ 333. (Sales, Sec. 46.) Implied warranties in express sales.

(Note: A contract of sale whether made orally or in writing will carry with it warranties by implication when the sale is made under those situations described in the following sections. The parol evidence rule may exclude proof of express warranties sought to be shown where the contract is entirely in writing, but implied warranties attach, unless negatived by the writing either by being expressly excluded, or by an express warranty covering the same point.)

§ 334. (Sales, Sec. 47.) The implied warranties of title.

Case 297. Uniform Sales Act, Sec. 13.

"Implied warranties of title: 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 a contract to sell he will have a right to sell the goods at the time when the property is to pass.

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"(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 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."

Question 297: (1) Jones sells a horse to Smith. It has been stolen by Jones, and the owner takes it from Smith. Has Smith a case against Jones if Jones did not expressly warrant that he had title?

(2) Jones sells a horse to Smith upon which there is a recorded chattel mortgage which Smith could have discovered had he looked up the records. The owner of the mortgage forecloses. Has Smith a case against Jones if Jones did not expressly warrant against encumbrances?

(Note: A question that has caused some difference of opinion is suggested by the case of Burt v. Dewey, 40 N. Y. 283. Plaintiff bought a horse from defendant. The horse had been stolen from one Dysart. It did not appear in the case, however, that Dysart had ever disturbed the plaintiff's possession or actually put him to any loss. The court thought that inasmuch as Dysart might pursue his remedy against others and get satisfaction or might never enforce his claim against plaintiff, plaintiff could not recover except nominal damages until he had sustained actual damages.

There has been difference of opinion on this point. But the weight of authority is that he cannot get substantial damages until he has sustained them.)

§ 335. (Sales, Sec. 43.) The implied warranties in a sale by description.

(1) When is sale by description?

(2) Warranty that goods shall correspond with description.

(3) Warranty in sales by description that the goods are merchantable.

(1) When Is Sale by Description.

(See note under section 331.)

(2) Warranty in Sales by Description that the Goods Shall Correspond with the Description.

(Note: If goods are ordered by description clearly the buyer need not receive goods of another description, but he may receive them and sue on his warranty. It would seem that a warranty in a sale by description that the goods shall correspond with the description is more in the nature of an express than an implied warranty.)

(3) Warranty in Sale by Description that the Goods are Merchantable.

Case 298. Uniform Sales Act, Sec. 15 (2) (3).

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'(2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be grower or manufacturer or not) there is an implied warranty that the goods shall be of merchantable quality.

"(3) If the buyer has examined the goods there is no implied warranty as regards defects which such examination ought to have revealed."

Question 298: What is the implied warranty where the goods are bought of a seller who deals in goods of that kind? What defects does such warranty not cover?

Case 299. Reynolds et al. v. General Electric Co. et al., 141 Fed. 551.

Facts: Suit by the General Electric Co. for pumps sold and delivered to defendant. Defense a breach of warranty arising out of a latent defect in the material. The General Electric Co. was a manufacturer of electrical machinery, but a mere dealer in the pumps, and defendant knew this.

Point Involved: Whether one who is a dealer and not a manufacturer warrants against latent defects in the manufacture. (See also note following this opinion.)

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"It is said that an implied warranty arose from the sale, to the effect that the pump should be fit and proper for the pumping of water in the shaft of a mine, and that this covenant was broken. If the pump was unfit to do the work which machines of that nature ordinarily perform, that condition arose from latent defects in the material of which it was constructed, or in the workmanship bestowed upon it, of which the plaintiff had no notice. The electric company secured and delivered the article of the known manufacture which the mines company had selected, and which was described in the contract. A. manufacturer is charged by the law with notice of latent defects in the design, materials, and construction of the machines he makes which unfit them to perform the ordinary work of such articles, because he furnishes the design, the materials, and the workmanship, and thus either causes or permits the defects. Out of this state of facts and an agreement of sale an implied warranty arises on the part of the manufacturer that the machines he makes are suitable for the general purposes for which such articles are commonly used. Goulds v. Brophy, 42 Minn. 109, 112, 43 N. W. 834, 6 L. R. A. 392. But where such a purchaser buys of a dealer a definite machine of known manufacture, which has been, or is to be, made by a builder who is not the vendor, and the vendee knows this fact, there is no implied warranty by the dealer, either against latent defects or that the machine or article will be suitable for the purpose for which such articles are commonly used, because the purchaser has the same knowledge and means of knowledge of these subjects as has the dealer. The vendee knows that they both rely on the character and reputation of the manufacturer. Bragg v. Morrill, 49 Vt. 45, 47, 24 Am. Rep. 102; American Forcite Powder Mfg. Co. v. Brady, 4 App. Div. 95, 97, 38 N. Y. Supp. 545; Gardner v. Winter (Ky.), 78 S. W. 143, 63 L. R. A. 647, 649."

Question 299: State the facts, the question presented and the Court's decision in the above case.

(Note: The cases are in conflict as to whether one who is a mere dealer warrants against latent defects. The case above is one of a line of decisions holding that a dealer does not impliedly warrant that the goods are merchantable. And that line constitutes the present weight of authority. Another line of cases adopts the contrary view, and that is the doctrine, also, of the Uniform Sales Act, which expressly extends such liability to a mere dealer. Even if the seller was not a manufacturer or dealer such a warranty might exist if it is apparent the buyer relied on the seller's judgment. Says Professor Williston (Sales, Sec. 233, p. 310): "If the seller of specific goods is neither a manufacturer nor a dealer, generally no warranty of specific goods would be implied, but if the skill or judgment of the seller were evidently relied on, there seems no reason why the nature of the seller's occupation should make a difference, and the Sales Act has adopted this idea.")

§ 336. (Sales, Sec. 49.) Implied warranties in a sale by

Case 300.

sample.

Hanson v. Busse, 45 Ill. 497.

Facts: They are stated in the opinion.

Point Involved: What constitutes a sale by sample.

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But

MR. JUSTICE LAWRENCE delivered the opinion of the Court, wherein the facts are stated: the rule itself must be considered firmly settled in the common law, that the vendor of goods which the purchaser has at the time of purchase, the opportunity of examining, is not responsible for defects of quality, in the absence of fraud and warranty.

"In the case before us the proof shows that the 110 barrels of apples were piled up in tiers at a railway depot in Chicago. The purchaser went with the clerk of the plaintiffs to look at them. They opened a couple of barrels that stood on the floor. The purchaser was lame from rheumatism and requested the clerk to climb up and open a barrel on the top of the tiers. He did so, and showed the defendant some apples which were in good condition, and said they were all like that.

The apples in the three barrels exhibited as samples were

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