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case the prior destruction of such subject matter, unknown to either, creates in their minds a mutual mistake preventing the formation of contract.

Example 4. Thus A owns a certain wagon which B desires to buy. Pending the negotiations the wagon is destroyed by fire. Neither party knowing of this, a bargain is struck. The destruction of the wagon while still belonging to A puts the loss upon him, and it prevents B from alleging breach of contract. But had A contracted to deliver to B “ten Imperial wagons, No. 3," no particular wagons or lot of wagons being specified, the destruction of

certain wagons A had in mind would be no excuse.

What has been said of total destruction is true also of partial destruction or material depreciation.

The law provides, however, that if the buyer elects, notwithstanding, to take the deteriorated goods or the part that remains, he may do so by paying the price that he would have paid had there been no such mistake as to quality or existence; or in case the contract is divisable, that is, made up of parts, so that the price of the whole is plainly referable to the number of unit parts in the whole, then he may have the contract price proportioned to the part taken.20

Sec. 40. DESTRUCTION OR DETERIORATION AFTER CONTRACT TO SELL OF THE SUBJECTMATTER THEREOF. If there is a contract to sell specific goods and thereafter before title or risk passes to the buyer the goods in whole or in part perish or substantially deteriorate without seller's fault, the seller's obligation is dis

20. Uniform Sales Act, Sec. 7 (2).

charged; but the buyer may elect to take the part remaining or the deteriorated goods.

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The destruction of the subject matter before title passes excuses performance. This must be distinguished from the cases in which material is destroyed out of which a seller expected to deliver, where he has no obligation in respect to that very material, but has the right to supply from such other source. In that case ine destruction would be the seller's misfortune, but would not excuse him, for the seller may still perform hy selecting out of other stock or material, or by going upon the market to buy.

Example 5. A and B contract for the sale by A to B of A's horse “Ely.” After the contract to sell, but before the actual sale has taken place, the horse dies without A's fault. This occurrence terminates the contract between the parties. If the horse had died after title passed, the loss would be B's, even though A still had possession.

Example 6. A contracts with B to sell 1000 bushels of May wheat. No particular lot of wheat is specified as the subject matter of the sale. A has 1000 bushels on hand. Before the sale takes place this 1000 bushels is destroyed. A is still bound to deliver 1000 bushels of wheat.

What has been said of total destruction is true also in case of part destruction or material deterioration.

Yet the law allows the buyer in such case to take the goods remaining or the deteriorated goods, paying the price therefor he would have paid had the contract heen performed, or if the contract is divisible, that is, made up of parts so that the price of the whole is plainly referable to the number of unit parts, then he may have the contract price proportioned to the part taken.21

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Sec. 41. DEFINITION OF WARRANTY. A warranty is a part of the contract of sale. It consists in the assertion of some fact concerning the goods put forth to induce the contract and which did induce it and whose truth is regarded by the buyer as essential to the seller's performance of his contract. But if an assertion made by the seller does not so enter into his contract as to become a part thereof it is not a warranty, and its truth is immaterial. Warranties are express or implied.

When there is a contract of sale, the buyer may make assertions in respect to the goods. He is indeed very prone to do this, for it may be by such assertions that he is able to close the transaction. It is a matter of common knowledge that a seller will “puff his wares.” Indeed he may make affirmations without any words spoken. Thus by his very possession of the goods and by the fact that he offers to sell them, he affirms he is the owner of them.

Has the buyer any remedy if these assertions are false? Or does he act entirely at his own risk? Suppose the seller states that the stone he offers to sell is a diamond, and it turns out paste, will the court say that he can return the stone, or have his money back, or his damages? Or, what if the seller thought it was a diamond-is this material?

The law is that some assertions in respect to goods sold cannot be broken without penalty because they become a part of the contract, and they become so irrespective of the seller's belief whether they were true or false.

We have then to inquire, what assertions in respect to quality, title, fitness, value, etc., become a part of the contract, and which ones do not.

Generally speaking, we may say that whatever assertion is made for the purpose of being relied upon, and in its nature is worthy of belief, and is relied upon, becomes an essential term in the contract of sale, and if false, there is then a breach of contract, for which the buyer has his remedy.

We have already indicated that warranties are express and implied. First, let us consider express warranties, and then those that are implied from the circumstances.

A. Express Warranties. Sec. 42. WHAT CONSTITUTES EXPRESS WARRANTY. “Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods nor any statement purporting to be a statement of the seller's opinion only shall be construed a warranty.” 22

(a) Affirmation of fact is warranty. We see from the above language that it is largely a question whether a statement was given and taken as a matter of fact or a matter of opinion which is decisive whether the assertion is or is not a warranty. It is well settled law that a mere opinion or prediction on the part of the seller is not a warranty, for the plain reason that

22. Uniform Sales Act, Sec. 12.

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