T 1 
 
 'y-i-r^ •• r 

 
 T 
 MWtc 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 A. TREATISE 
 
 ON 
 
 THE LAW 
 
 OF 
 
 CONDITIONAL SALES 
 
 or 
 
 PERSONAL PROPERTY 
 
 BY 
 
 ®HARLES Ti. MILLER 
 
 I' I 
 
 Canton, Ohio 
 
 CINCINNATI 
 
 ROBERT CLARKE & 00 
 
 1888
 
 BOBERT CLARKE & CO. 
 1888. 
 
 T
 
 
 
 ^ 
 
 PREFACE. 
 
 It has been my object, in producing this work, to present 
 a comparatively modern branch of the law in a new way ; 
 that of bringing together, for more ready reference, cases 
 similar in point of law and fact. The exact language of 
 the courts has been, in many instances, used in prefer- 
 ence to that of the author, with the view of making the 
 text not only authoritatively correct, but brief and concise. 
 The work is submitted to the judgment of a candid and 
 busy profession, with the hope that whatever demerits 
 may mar the execution of the undertaking, will be more 
 than counterbalanced by the advantages incident to the 
 
 plan adopted. 
 
 CHARLES R. MILLER. 
 
 Canton, 0., October, 1888. 
 
 (iii) 
 
 735434
 
 CONTENTS. 
 
 PART FIRST. 
 
 GENERAL REQUISITES OF CONTRACTS OF SALB. 
 
 CHAPTER I. 
 
 Essential Elements of Sale. 
 
 Article 1. — Definition and Elements of Sale. 
 
 1. Definition, ......... 3 
 
 2. Competent Parties, ...... 3 
 
 3. Mutual Assent, 5 
 
 4. Subject of Sale, 6 
 
 5. Consideration, 6 
 
 6. Transfer of Property, 7 
 
 CHAPTER H. 
 
 Elements Required by Statute. 
 Article 2. — Statute of Frauds. 
 
 § 7. Statutory Provisions, 
 
 § 8. Affects Remedy Only, 
 
 § 9. Application, ..... 
 
 § 10. Acceptance of Goods, 
 
 § 11. Constructive Acceptance, . 
 
 §12. Earnest and Part Payment, . 
 
 § 13 Form of Memorandum, 
 
 § 14. Parties to ^Memorandum, 
 
 § 15. Price Designated in Memorandum, 
 
 § 16. Signing of Memorandum, 
 
 8 
 
 10 
 11 
 14 
 
 16 
 18 
 19 
 21 
 21 
 23 
 
 (▼)
 
 vi Contents. 
 
 PART SECOND. 
 
 GENERAL PRINCIPLES OP CONDITONAL SALES. 
 
 CHAPTER III. 
 
 Conditions Precedent to be Performed by the Vendor. 
 
 Article 3. — Conditions Precedent. 
 
 § 17. Intent Governs, 27 
 
 § 18. Conditions Must be Performed, .... 27 
 
 Article 4. — Conditions to be Performed by the Vendor. 
 
 § 19. Rules Governing, 28 
 
 § 20. Avoidance of Conditions, ..... 29 
 
 Article 5. — Conditions Necessary to Put in a Deliverahle State. 
 
 § 21. Separation, ........ 30 
 
 § 22. Measurement, 3j 
 
 Article 6. — Delivery. 
 
 § 23. Delivery — Question of Intent, 33 
 
 § 24. Symbolical, or Constructive Delivery, .... 34 
 
 § 25. Delivery to Carrier, ....... 36 
 
 § 26. Delivery of More or Less than Contracted for, . 37 
 
 § 27. Time of Delivery, ....... 38 
 
 § 28. Place of Delivery, 41 
 
 § 29. Estoppel, Delivery by, 42 
 
 Article 7. — Saks by Description. 
 
 § 30. Delivery of Described Article, Essential, . . 43 
 
 CHAPTER IV. 
 
 Conditions Precedent to be Performed be the Vendee. 
 
 Article 8. — Implied Conditions. 
 
 § 31. Acceptance not an Implied Condition, . . .46 
 
 § 32. Payment, 47 
 
 ^ 33. Cash Payment, 48
 
 Contents. vii 
 
 § 34. Payment by Check or Draft, . . . . .50 
 
 § 35. Payment by Note, 52 
 
 § 36. Tender, 54 
 
 § 37. To Whom Payment Can be Made, ... 56 
 
 Article 9. — Express Conditwns. 
 
 § 38. Sale on Trial or Approval, 58 
 
 § 39. Memorandum Sales, 59 
 
 § 40. Payment — Delivery Without, 60 
 
 § 41. Special Cases, ....... 65 
 
 § 42. Railroad Equipment, 70 
 
 § 43. Statutory Requirements, 77 
 
 CHAPTER V. 
 
 Conditions Subsequent. 
 Article 10. — Express Gonditiom. 
 
 § 44. Sale or Return, 81 
 
 § 45. Sale of Goods to Arrive 82 
 
 AHicle 11. — Implied Conditions. 
 § 46. Shall be Manufacturer's own Make, . . . .85 
 
 CHAPTER VI. 
 
 Incidents — Warranties. 
 
 Article 12. — Implied Warranties. 
 
 § 47. Implied Warranty 86 
 
 § 48. Warranty of Title, 88 
 
 I 49. Warranty of Quality, 90 
 
 § 50. Sale by Sample, 92 
 
 § 51. Sale by Description, 94 
 
 § 52. Sale for Special Purpose, 95 
 
 § 53. Merchantable Character, 99 
 
 § 54. Soundness, 101 
 
 AHicle 13. — Express Warranties. 
 
 § 55. What Amounts to a Warranty, .... 103 
 § 56. What Does Not Amount to a Warranty, . . . 105 
 § 57. Effect of Warranty, 112
 
 viii Contents. 
 
 % 58. Breach of "Warranty, and Rescission, . . . .115 
 
 § 59. When Action Lies for Breach, . . . . 11 < 
 
 § 60. AVhen Action Does Not Lie for Breach, . . . 118 
 
 § 61. Measure of Damages. ...... 120 
 
 Article 14. — Spedal Gases. 
 
 § 62. Warranties of Agricultural Implements, . . - 122
 
 TABLE OF CASES. 
 
 Abat V. Atkinson, § 2'2, note 1 
 Abbott V. Johnson, g ")7, n. 4 
 
 V. , g 62, n.'32 
 
 V. Gilchrist, g ',», n. 13 
 
 V. Shephard, § M, n. 2 
 
 Acker v. Campbell, § 32, n. 3 
 
 V. Kimme, § 62, n. 25 
 
 Adams v. Foley, § 24, n. 2 
 
 V. , § 24, n. 7 
 
 v. Johnson, § 56, n. 1 
 
 V. Nichols, § 20, n. 3 
 
 V. O'Connor, § 32, n. 3 
 
 Mining Co. v. Senter, § 22, n. 
 
 10 
 Aiken v. Hyde, § 38, n. 3 
 Airey v. Okolona Sav. Inst., § 37, 
 
 n. 5 
 Aitcheson v. Cook, § 19, n. 2 
 Albany Dutch Church v. Bradford, 
 
 § 18, n. 1 
 Alexander v. Gardner, § 25, n. 2 
 Allen V. Bennet, g 14, n. 3 
 
 V. Goodenow, § 4, n. 1 
 
 V. Jarvis, ^ 9, n. 12 
 
 Amer. Merchants Exp. Co. v. Milk, 
 
 § 37, n. 5 
 Amson v. Dreher, J 10, n. 7 
 Andenried v. Randall, § 24, n. 2 
 Anderson v. Harold, § 16, n. 7 
 Appleton V. Norwalk Library Co., 
 
 § 40, n. 24 
 Archdale v. Moore, § 52, n. 1 
 
 V. , § 60, n. 6 
 
 Archibald v. Argoll, § 35, n. 2 
 Argus Co. V. Mayor of Albany, § 13, 
 
 n. 8 
 Armington v. Houston, § 33, n. 1 
 
 V. , § 40, n. 1 
 
 Armitage v. Insole, § 19, n. 2 
 Artcher v. Zeh, § 12, n. 3 
 Ashcroft V. Morrin, § 15, n. 5 
 Atkins V. Boylston, § 27, n. 4 
 Atkinson v. Mailing, § 24, n. 3 
 
 V. Ritchie, § 28, n. 1 
 
 Attwood V. Clark, g 27, n. 1 
 V. , g 44, n. 4 
 
 Atwood V. Cobb, § 15, n. 4 
 
 V. , § 15, n. 9 
 
 V, , I 23, n. 4 
 
 V. Lucas, g 10, n. 8 
 
 Aultman v. Kennedy, § 56, n. 4 
 , Miller <k Co. v. iStichler, § 62, 
 
 n. 16 
 
 V. Stout, § 62, n. 44 
 
 V. Theiver, § 38, n. 2 
 
 V. Wheeler, § 62, n. 37 
 
 , Tavlor & Co. v. Hefner, § 62^ 
 
 n. 35 
 Austin V. Dye, § 33, n. 10 
 
 V. , § 40, n. 1 
 
 Avendale v. Morgan, § 2, n. 3 
 
 B. 
 
 Babcock v. Trice, ^ 53, n. 2 
 Bacon v. Conn, § 36, n. II 
 Bailey v. Harris, § 40, n. 1 
 
 V. Nichols, g 54, n. 1 
 
 V. Ogden, § 11, n. 3 
 
 V. Smith. §"l9, n. 1 
 
 Bakeman v. Pooler, § 36, n. 2 
 Baker v. Arnot, § 48, n. 14 
 Baldery v. Barker, § 11, n. 8 
 Baldwin v. Tucker, § 24, n. 3 
 
 V. Williams, § 9, n. 3 
 
 Ballard v. Burgett, § 33, n. 8 
 
 V. , 'd 33, n. 10 
 
 V. , g 40, n. 1 
 
 Baldwin v. Daniel, § 56, n. 14 
 Bank v. Crocker, § 24, n. 6 
 
 V. Dearborn, § 24, n. 6 
 
 V. Gridley, g 24, n. 7 
 
 V. Purdy, § 41, n. 7 
 
 of Peoria v. Railroad, 3 24, 
 
 n. 4 
 Barrett v. Deere, § 37, n. 6 
 Basford >\ Pearson, § 8, n. 1 
 Bass V. White, ^ ;^.2, n. 5 
 Bateman v. Phillips, ^ 14, n. 4 
 Bates V. Ball, (3 2, n. 4" 
 Batturs v. Sellers, § 13, n. 4 
 (ix)
 
 Table of Cases. 
 
 Barickman v. Kuykendall, § 13, 
 
 n. 3 
 Barker v. Parkenhorn, § 36, n. 3 
 Barnard v. Yates, g 54, n. 1 
 Barnes v. Boomer, § 27, n. 2 
 Barnett v. Stanton, g 49, n. 8 
 Barney v. Patterson, § 13, n. 6 
 Barry v. Coombe, § 13, n. 
 
 V. , § 16, n. 4 
 
 Barstow v. Gray, § 16, n. 1 
 Bartholomew v. Warren, § 2, n. 3 
 Bartlett v. Hoppock, § 53, n. 7 
 Barton v. Flaherty, § 48, n. 6 
 Baum V. Stevens, § 55, n. 9 
 
 V. , § 56. n. 12 
 
 Bauendiihl v. Horr, § 33, n. 3 
 Bayliss v. Hennessey, § 57, n. 4 
 
 V. , § 62, n.'32 
 
 V. , § 62. n. 15 
 
 Beals V. Olmstead, § 30, n. 5 
 
 V. , a 52, n. 18 
 
 V. , I 55, n. 1 
 
 Bean v. Edge, § 33, n. 1 
 Beane v. Tinkham, § 59, n. 9 
 Bearce v. Bovvker, § 2, n. 1 
 Beardsley v. Horton, § 41, n. 7 
 Beazeley v. Mitchell, § 2, n. 2 
 Beebe v. Johnson, § 20, n. 3 
 Beers v. Williams, § 52, n. 2 
 Behaly v. Hatch, § 36, n. 5 
 Beirne v. Dord, § 49, n. 3 
 Bellows V. Smith, § 36, n. 10 
 Beltv, Marriott, § 11, r. 14 
 Benedict v. Field, § 45, n. 5 
 Bennett v. Bartlett, § 48, n. 1 
 
 V. Nye, § 9. n. 13 
 
 V. Simms, g 33, n. 1 
 
 V. , § 40, n. 1 
 
 Beresford v. McCune, § 61, n. I 
 Berine v. Dord, § 50, n. 4 
 Bermen v. Woods, § 56, n. 5 
 Bertram v. Lyon, § 55, n. 14 
 Bethel Steam Mill Co. v. Brown, § 
 
 23, n. 1 
 
 V. , § 24, n. 2 
 
 v. , ^ 24, n. 7 
 
 Bickley v. Kunan, § 16, n. 3 
 Bigelow V. Hun I ley, g 33, n 1 
 
 V. , g 40, n. 1 
 
 Bigge V. Parkinson, § 52, n. 4 
 Bigler v Flickinger, {J 56, n. 10 
 Bigole V. McKenzie, § 22, n. 10 
 Bill v. Bament, g 11, n. 8 
 Birdu. Mayor, ?'52, n. 18 
 
 V. Muhlenbrink, g 9, n. 14 
 
 Birdsall v. Carter, ?61, n. 1 
 Birdseye v. Frost, g 47, n. 13 
 Blair v. Wilson, § 34, n 1 
 
 Blake v. Crowningshield, § 27, n. 3 
 Blakeman v. Makay, § 55, n. 1 
 Blanchard v. Child, § 33, n. 1 
 
 y. _ g 40, n. I 
 
 V. Cooke, § 40, ii. 7 
 
 Blight V. Ashley, § 36, n. 3 
 Blood V. French, § 48, n. 14 
 Boardman v. Spooner, § 16, n. 5 
 Bock V. Healy, § 27, n. 9 
 Boggs V. Fowler, § 2, n. 3 
 Bolton V. Riddle, § 23, n. 5 
 Bond V. Clark. § 56, n. 12 
 Boon V. Moss, § 40, n. 1 
 Booraem v. Crane, § 33, n. 1 
 Boothby v. Scales, f 47, n. 8 
 
 V. - — , g55, n. 12 
 
 V. , § 55, n. 39 
 
 Booth V. Rolling Mill Co., § 20, n. 3 
 
 V. Wiley, § 37, n. 5 
 
 Borden v. Borden, § 19, n. 2 
 
 V. , § 36, n. 4 
 
 Borrekins «.. Bevan, § 30, n. 5 
 
 V. , § 53, n. 4 
 
 Borrowscale v. Bosworth, § 11, n. 1 
 Boss V. Veltum, § 5, n. 2 
 Bourland v. Peoria, § 13, n. 5 
 Bowers v. Anderson, § 9, n. 6 
 
 V. , I 10, n. 3 
 
 V. , I 10, n. 5 
 
 Bowman v. Clemmer. § 49, n. 1 
 Boyd V. Crawford, § 52, n. 2 
 
 V. Whitfield, I 54, n. 2 
 
 Boyle V. Agawam Canal Co., § 20, 
 
 n. 3 
 Boynton v. Veazie, § 11, n. 2 
 
 y_ , g 24, n. 2 
 
 Brackett v. Norton, § 37, n. 3 
 Bradford v. Bush, § 55, n. 9 
 
 V. Manly, § 30, n. 5 
 
 V. , § 50, n. 1 
 
 V. , § 59, n. 1 
 
 Bradley v. Wheeler, § 22, n. 11 
 
 V. , § 25, n. 4 
 
 Bradshavv v. Thomas, § 40, n. 1 
 
 V. Warner, g 40, n. 1 
 
 Bragg V. Morrill, § 54, n. 3 
 Braley v. Kelly, § 16, n. 5 
 Branch v. Burnley, § 37, n. 2 
 Brandon Mfg. Co. v. Morse, § 32, 
 
 n. 4 
 Brawley v. United States, § 26, n. 10 
 Breed v. Hurd, ^ 36, n. 5 
 Bremer v. Mich. Salt Asso., § 22, 
 
 n. 10 
 Breton v. Davis, g 52, n. 2 
 
 y_ _ g 52,' n. 18 
 
 Bresford v. McCume, § 59, n. 5 
 Brewster v. Baker, § 29, n. 5
 
 Table of Cases. 
 
 xl 
 
 Brickenbridge v. McAflFee, § 2, n. 2 
 Bristol V. Tracoy. § 57, ii 4 
 Brigg V. Hilton § 55, n 24 
 
 V. , g 57. n. 9 
 
 Brigham v. Maxey g 48, n. 14 
 Brinly v. Spring, g 24 n 3 
 Bronson v. Winian, § 9, n. 12 
 Brookly Bank v. De Grauw § 36, 
 
 n. II 
 Brown v. Bellows, § 5, n. 2 
 
 V. , § 15, n 3 
 
 V. Burhaus, § 47, n. 12 
 
 ('. Edgerton, g 52, n. 1 
 
 V. Edgington, § 52, n. 1 
 
 -;. Foster, § 18, n. 1 
 
 0. Gilmove, g 36, n. 2 
 
 V. , 2 36, n. 11 
 
 V. Haynes, § 33, n. 1 
 
 V. Johnson, 'i '11, n. 3 
 
 V. Murphie g 52, n. 1 
 
 V , \ 52. n. 4 
 
 V I 52, n. 5 
 
 V. Savles §52. n. 9, n. 18 
 
 V — -, § 53 n. 9 
 
 Browning v. Hamilton, § 21, n. 1 
 Bruce v. Bishop, § 3, n. 2 
 Brud V. Hurd, § 36, n. 2 
 Brunskill v. Mair, § 23, n. 5 
 Bryant v. Crosby. § 55, n. 1 
 
 V. Pember, § 49, n. 1 
 
 V. Sears, g 30. n. 5 
 
 V. Whitcher, § 2, n. 1 
 
 V. , § 2, n. 3 
 
 Buck V Pickvvell, § 15 n 8 
 Buckingham v. Osborne § 10, n. 7 
 Buchman v. Levi. § 25 n. 2 
 Buchmaster v. Smith, § 33, n, I 
 
 V. . I 40, n. 1 
 
 Buck nam v. Goddard, § 48, n. 1 
 Budlong V. CottrpU, § 35, n. 1 
 
 V. . § 40, n. 19 
 
 BuflFum V. Butfum, § 36, n. 11 
 
 V Merry, g 44, n. 3 
 
 Bunker v. McKenney, § 33, n. 1 
 Burbank v. Crooker, § 33, n. 1 
 Burge V. Stroberg, § 59, n. 2 
 Burt V. Dewey, g 48, n, 1 
 Burton v. Baird ? 25, n. 4 
 Bush V Holmes g 10, n. 8 
 
 V § 10 n. 7 
 
 Bushel V Wheeler § 11, n. 1 
 Bushwel' V. Bicknell, § 44. n. 3 
 Butler V. Moore, g 61, n. 10 
 
 V. Thompson, § 3, n. 1 
 
 V. Tufts, § 48. n. 1 
 
 Buttrick v. Holden, § 27, n. 3 
 Byer v. Elnyer, § 23, n. 2 
 
 Byers v. Chapin, g 52, n. 18 
 
 V. , g52,'n. 20 
 
 Byrne v. Jansen, g 49, i/. 2 
 
 V. , g 49, n 7 
 
 Byrnside v. Burdett. g 48, n. 2 
 'V. , g 48. n. 8 
 
 c. 
 
 Cahill V. Smith, § 59 n. 12 
 Cahen v. Piatt. § 30, n. 8 
 
 V. , § 44, n. 3 
 
 Calcock V. Keid, g 54, n. 1 
 Calcutt V. Kuttan g 24, n. 7 
 Calcutta and Burmah Steam NaT. 
 
 Co. V. De Motts, g 45, n. 2 
 Caldwell v Ball, g 45, n. 2 
 
 V. Smith, g 49, n. 49, n. 3 
 
 Call V. Seymour, Sabin & Co., § 40 
 
 n. 1 
 
 u. , g 41, n. 4 
 
 Callaghan v. Myers, g 5, n. 1 
 
 V. , g 17, n. 4 
 
 Calvin u. Williams, g 9, n. 4 
 Cameron v. Dinglev, g 27, n. 1 
 
 V. Wells, §27,' n. 1 
 
 Camidge v. Allenby, g 35, n. 5 
 Canter v. Hojikins, g 47, n. 2 
 Canton Bank v. McCann, g 62 
 
 n. 7 
 Carley v. Wilkins, § 55, n. 16 
 Carondelet Iron Works v. Moore, 
 
 g56, n. 16 
 Carpenter v. Scott, g 40, n, 20 
 Carr v. Duvall, g 3, n. 2 
 Carson v. Bailie, g 49, n. 1 
 Carter v. Abbott, g 55, n. 28 
 
 V. Black, g 55, n. 2 
 
 Carter v. Talcott, g 37, n. 4 
 Carthy v. Nash, g 10, n. 7 
 Cartwright v. Phoenix, g 24, n. 7 
 Cary v. Bancroft, g 36, n. 10 
 Case V. Seass, g 34, n. 5 
 Cash V. Giles, g 62. n. 32 
 Cashman v. Martin, g 36, n. 2 
 Cason V. Chuly, g 9, n. 9 
 Cassaboglow, v. Gibbs, g 26, n. 6 
 Catchings v. Hacke. g 51, n. 2 
 Caulkins v. Hellman, g 11, n. 12 
 Chapin v. Patter g 10. n. 7 
 
 V. Rogt^rs, g 1 1 n. 6 
 
 V. , g 24, n. 1 
 
 Chapman v Murch, g 56, n. 1 
 
 V. Shepard, g 23, n 3 
 
 Chamberlain v. Sleeper, g 44, n. 3 
 Champlin v. Rowley, g 26, n. 9 
 Chambers v. Crawford, g 53, n. 2
 
 Xll 
 
 Table of Cases. 
 
 Chambers v. Frazier, § 3'2, n. 3 
 Champney v. Smith, § 2, n. 3 
 Chancellors. Wiggins, § 48, n. 1 
 
 V. ,§4^- "3 
 
 Chanter v. Itopkins, § 30, n. 4 
 
 V. Hopkins, § 49, n. 2 
 
 § , g 52, n. 5 
 
 Charlton v. H'ay, § 48, n. 3 
 Chase v. Citv of Lowell, § 13, n. 7 
 Chicago Packing Co.. u. Tilton, § 
 49. n. 4 
 
 .,, , § 52, n. 4 
 
 r. , 1 53, n. 3 _ 
 
 Chouteaux v. Luch, § 37, n. 7 
 Christy r'. Cummins, g 58, n. 5 
 Churchill v. Merchant's Bank, § 
 
 27, n. 2 
 City Bank v. Tufts, § 40, n. 4 
 Clayton v Hester, § 40, n. 1 
 Clark V. Draper, § 24, n. 7 
 
 V. Hayvvard, § 41, n. 1 
 
 V. Rice, § 18, n. 1 
 
 Clarke v. Ilutchins, § 25, n. 2 
 
 V. Westrope, § 5, n. 3 
 
 Clew V. McPherson, § 50, n. 1 
 
 y. , § 53, n. 8 
 
 Clung V. Kelley, § 23, n. 2 
 Coates V. Sangston, § 23, n. 5 
 Cobb V. Arundell, § 11, n. 12 
 Cocker v. Franklin Hemp Manu- 
 facturing Co., § 23, n. 5 
 
 V. Franklin, § 44, n. 5 
 
 Coddington v. Goddard, § 16, n. 10 
 
 V. , § 16, n. 7 
 
 Coghill V. Boring, § 58, n. 5 
 Coggill V. Railroad Co., § 32, n. 3 
 Cohen V. Piatt, §56, n. 18 
 Coil V. Willis, g 32, n. 3 
 Cole V. Berry, § 40, n. 25 
 Colton V. Wise, § 38, n. 1 
 Combs V. Gordon, g 2, n. 3 
 Comer v. Cunningham, § 33, n. 9 
 
 V. , § 33, n. 10 
 
 Comfort V. Kiersted, § 22, n. 11 
 Commercial Bank v. Gillette, § 21, 
 
 n. 1 
 Commissioners v. Thompson, § 56, 
 
 n. 23 
 Commonwealth v. Ray, § 16, n. 5 
 Comstock V. Smith, § 40, n. 1 
 Cougar V. Chamberlain, § 55, n. 38 
 Conger v. Railroad Co., {^ 32, n. 3 
 Conner v. Henderson, § 59, n. 1 
 
 . V. . g 59. n. 3 
 
 Conway v. Bush, § 28, n. 41 
 
 V. , g 32, n. 3 
 
 Cook V. Anderson, g 16, n. 1 
 
 Cook V. Drais, § 27, n. 4 
 
 V. - — -, ^ 27, n. 5 
 
 V. Gray, § 27, n. 4 
 
 V. Logan, § 21, n. 1 
 
 Coon V. Spaulding, g 23, n, 5 
 Cooper V. Hall, § 57, n. 12 
 Cooth V. Jackson, g 15, n. 3 
 Copeland v. Bosquet, § 33, n. 1 
 Cornell v. Moulton, g 27, n. 3 
 Cort V. Railroad Co., ^ 19, n. 2 
 Cosgrove v. Bennett, § 49, n. 10 
 Costigan v. Hawkins, ^ 48, n. 11 
 Courtney v. Boswell, § 62, n. 36 
 Courtright v. Leonard, § 22, n. 1 
 Cox V. Buck, § 29, n. 5 
 
 • V. Jones, § 23, n. 5 
 
 V. Long, § 30, n. 2 
 
 Cozzins V. Whit taker, § 54. n. 2 
 Crane v. Pratt, g 32, n. 7 
 Crawford v. Wilson, § 54, n. 1 
 Creighton v. Comstock, § 26, n. 10 
 Crocker v. GuUifer, § 44, n. 3 
 
 V. New London R. Co., § 3, n. 2 
 
 Crofoot V. Burnett, § 22, n. 11 
 Croninger v. Cracker, § 26, n. 1 
 
 y_ , g 26, n. 2 
 
 V. , § 26, n. 7 
 
 V. , I 27, n. 7 
 
 V. Paige, § 55, n. 20 
 
 Crookshank v. Burrell, § 9, n. 9 
 Crooks V. Moore, § 28, n. 4 
 Cross V. O'Donnell, § 11, n. 12 
 Culkins V. llellman, § 10, n. 2 
 Cunningham v. Ashbrook, § 5, n. 2 
 
 V. Ashbrook, § 23, n. 1 
 
 V. Hall, § 52, n. 2 
 
 y_ , § 53, n 2 
 
 V. Judson, § 27, n. 8 
 
 Curran v. Burdsall, § 57, n. 7 
 Currier ?;. Anderson, § 11, n. 7 
 Curtis V. Cane, § 2, n, 1 
 Currier v. Knapp, § 40, n. 1 
 Curtis V. Cane, § 2, n. 2 
 Cushman v. Jewell, § 40, n. 23 
 
 D. 
 
 Dale V. Stimpson, § 11, n. 2 
 Dallard v. Potts, § 11, n. 6 
 Dame v. Baldwin, § 2, n. 2 
 Damon v. Osborne, § 10, n. 7 
 Dana v. King, § 18, n. 1 
 Danforth v. Walker, § 10, n. 8 
 Dannefelser v. Weigel, § 40, n. 1 
 Darden v. Lovelace, § 3, n. 1 
 Dargons v. Stone, § 50, n. 4
 
 Table of Cases. 
 
 xui 
 
 Darst V. Brockway, § 4S, n. 1 
 David V. Mi'eker, § 56, n. 7 
 Davis V. Emery, 3 .'Jo, n. 1 
 
 V. Bradley, g 29, n. 5 
 
 V. . § ;«, n. 1 
 
 V. Burnett, jJ ")5, n. 41 
 
 0. Eastman, § 10, n. 8 
 
 y. Lane, § H7, n. 8 
 
 V. Moore, j} 10, n. 7 
 
 y. , § i'2, n. 5 
 
 t). Robertson, ^ 9, n. 8 
 
 V. Rowel 1, § 9,'n. 8 
 
 0. Russell, i 24, n. 6 
 
 . Shields, g lo, n. 8 
 
 .. _ g 16, n. 1 
 
 V. Smith, g 48, n. 3 
 
 Sewing Machine Co. v. Mc- 
 
 Ginnis, § 3-'. n. 4 
 Dawes v. Peck, g 11, ii. 12 
 
 V. . § 25, n. 2 
 
 Day V. Bassett, g 17, n. 3 
 
 V. Railroad Co , § 8, n. 3 
 
 Dayton v. Iloogleind, § 49, n. 12 
 
 V. , g 50, n. 1 
 
 Dean v. Mason, g 54, n. 2 
 
 V. , H^, n- 1 
 
 Dearborn v. Turner, § 44, n. 3 
 De Cordova v. Smith, § 16, n. 1 
 Defenbaugh v. Weaver, § 26, n. 8 
 Defiance Machine Works v. Tris- 
 
 ler, § 411, n. 17 
 Defreeze r. Trumper, § 54, n. 2 
 De Kidder v. Mc Night, ? 23, n. 2 
 Delamater v. Chappel, § 38, n. 1 
 Delaware R. R. Co. v. Bowns, § 20, 
 
 n. 3 
 De Medeiors v. Hill, § 28, n. 1 
 Deming v. Foster, § 47, n. 14 
 
 y. , g 49, n. 2 
 
 V. , I 52, n. 5 
 
 V. , f 55, n. 37 
 
 Dennett v. Dennett, § 2, n. 4 
 Dennis v. Stoughton, § 30, n. 8 
 Denny v. Williams, § 11, n. 2 
 
 V. , ^ II, n. 5 
 
 V. , I 10, n. 6 
 
 Dewey v. Erie Borough, § 38, n. 2 
 
 V. , § 5>i, n. 8 
 
 Dexter V. Bevins, § 22, n. 7 
 
 V. Norton, § 20, n. 3 
 
 V. , § 22, n. 11 
 
 Dike V. Reitlinger, § 45, n. 5 
 
 V. , g 50, n. 1 
 
 Dickens v. Williams, § 55, n. 6 
 Dickey v. Linscott, g 20, n. 1 
 Dickinson v. Gay, § 47, n. 10 
 V, , 2 50, n. 8 
 
 Dicks V. Dillahunty, §48 n. 3 
 Dillon V. i5arnhar<l, g 42, n. 7 
 Dishon u. Bigelow, g 3.'i, n. 1 
 
 V- , g 40, n. 1 
 
 Dixon V. Fletcher, g 26, n. 7 
 
 V. Buck, g24, n. 4 
 
 D. M. O'borne & Co. v. Carpenter, 
 
 g t)2, n. ;;4 
 
 V. , g 62, n. 46 
 
 V. Erhard, g 62, n. 47 
 
 Doane v. Dunham, g 30, n. 2 
 Dodge V. McDonnell, g 37, n. 5 
 Dole V. Stimpson, g 10, n. 3 
 Donovan v. Wilson, g 9, n. 12 
 Doolev V. Elbert, g 10, n. 3 
 
 V. Gallagher, g 49, n. 9 
 
 Douglass V. Spears, g 16, n. 1 
 Dounce v. Dow, g 51 , n. 3 
 
 V. -, g 57, n. 1 1 
 
 Downer v. Thompson, g 25, n. 4 
 Downey v. O'Donnell, | 18, n. 1 
 Downing v. Dearborn, g 52, n. 10 
 Dows V. Kidder, g 33, n. 9 
 Dressel v. Jordan, g 16, n. 1 
 Dudley v. Abner, g 33, n. 1 
 Duffam V. Dean, g 2, n. 3 
 Dugan V. Nichols, g 23, n. 1 
 Dula V. Cowles, g 26, n. 7 
 Duncan v. Stone, g 33, n. 1 
 Dunham v. Pette, g 57, n. 16 
 
 V. Railway Co., g 42, n. 7 
 
 Dunlap V. Gleason, g 40, n. 1 
 
 V. Lambert, g 1 1, n. 12 
 
 Dyer v. Libbv, g 11, n. 8 
 
 V. , 'g 23, n. 2 
 
 V. Pearson, g 29, n. 4 
 
 E. 
 
 Eadon v. Doudley, g 11, n. 1 
 Eagan v. Call, g 49, n. 3 
 Early v. Garrett, g 49, n. 1 
 Eastland v. Longshorne, g 36, n. 11 
 
 ''. , g 54, n. I 
 
 Eclipse Windmill Co. v. Thorson, 
 
 g 37, n. 1 
 Edgerly v. Gardner, g 62, n. 8 
 Edgerton v. Hoge, g 12, n. 1 
 Eilick V. Crim, g 4S, n. 6 
 Edwards i'. CoUison, g 61, n. 1 
 V. Grand Trunk R. R. Co., § 
 
 9, n. 9 
 
 V. , g 10, n. 6 
 
 Elevator Co. v. Banks, g 32, n. 2 
 Elfet;. Gadsden, g 13, n. 6 
 r. , g 15, n. 8
 
 XIV 
 
 Table of Cases. 
 
 Ellis V. Deadman, § 13, n. 3 
 
 V. , § 15, n. 8 
 
 V. Hunt, §24, n. 1 
 
 Elkins V. Kenyon, § 55, n. 22 
 Emerson v. Brigluvm, § 48, n. 1 
 
 V. , § 48, n. 6 
 
 V. , §54, n. 11 
 
 Erwiu V. Blake, § 37, n. 3 
 
 V. Burke, § 60, n. 10 
 
 Estabrook v. Sweet, § 35, n. 7 
 Esterly v. Eppelsheimer, § 62, n. 5 
 Everett V. Clements, § 22, n. 2 
 
 V. Collins, § 34, n. 1 
 
 V. Hall, § 38, n. 1 
 
 Eveictts V. Parks, § 11, n. 12 
 Ewing V. Bailey, § 27, n. 3 
 Exhaust Ventilator Co. v. C. M. 
 
 A St. P. Ry. Co., § 58, n. 3 
 Ex parte Williams, § 35, n. 2 
 
 F. 
 
 Fairbanks v. Eureka Co, § 33, n. 1 
 
 V. , § 40, n. 3 
 
 Fatman v. Thompson, § 55, n. 30 
 Farmer V. D'Everado, § 18, n. 1 
 Farmers' Mut. Ins. Co. v. Taylor, 
 
 § 37, n. 8 
 Farris v. Martin, § 16, n. 2 
 Farewell v. Rogers, § 27, n. 3 
 Fenwick v. Floyd, § 13, n. 6 
 Fessenden v. Mussey, 5 15, n. 7 
 Field V. Kinnear, § 52, n. 4 
 Fifield V. Elmer, § 33, n. 1 
 Figge V. Hill, § 47, n. 6 
 Filley v. Pope, § 27, n. 8 
 Fine v. Ilornsby, § 9, n. 4 
 Finn v. Clark, § 25, n. 4 
 First Nat'l. Bank v. Carson, § 41, 
 
 n.6 
 V. Erickson, § 62, n. 2 
 
 First Nat'l. Bank of Marquette u. 
 Crowley, § 22, n. 1 
 
 Fish V. Roseberry, § 53, n. 10 
 
 Fisk V. Tank, § 52, n. 6 
 
 Fitch V. Burk, § 23, n. 1 
 
 Flatt V. Oriborne, § 62, n. 24 
 
 Fleig V. Sleet, § 34, n. 1 
 
 Fleemen v. McKean, § 40, n. 1 
 
 Fleetwood v. Dorsey Mach. Co., 
 § 58, n. 6 
 
 Fletcher v. Darth, § 48, n. 6 
 
 V. Young, § 57, n. 6 
 
 Flich V. Warner, g 40, n. 22 
 
 Flint u. Cook, §_3S, n. 6 
 
 V. , § 57, n. 3 
 
 V. Lyon, § 53, n. 4 
 
 Flint V. Lyon, § 55, n. 14 
 Fluman v. McKean, § 33, n. 9 
 Foggart V. Blackweller, § 55, n. 1 
 
 V. , § 55, n. 9 
 
 Folansbee V. Adams, § 19, n. 2 
 Foley V. Mason, § 33, n. 4 
 Forbes v. Marsh, § 40, n. 1 
 Ford V. Sproule, § 40, n. 11 
 Fore V. McKenzie, § 48, n, 14 
 Forest v. Hamilton, § 40, n. 2 
 Fosdick V. Schall, § 40, n. 1 
 
 V. . § 42, n. 1 
 
 V. , I 42, n. 7 
 
 Foss V. Sabin,§ 30, n. 5 
 Fosters. Rockwell, § 11, n. 12 
 
 V. , § 25, n. 4 
 
 V. Ropes, § 19, n. 1 
 
 V. Smith, § 47, n. 2 
 
 Fox V. Emerson, § 61, n. 8 
 Fraley v. Bispham, f; 30, n. 7 
 Fralick v. Norton, o 11, n. 7 
 Frazier v. Harvey, j; 49, n. 1 
 French v. Hickox, § 2, n. 4 
 
 V. Vining, § 49, n. 1 
 
 Frohreich v. Gammon, § 62, n. 42 
 Frost V. Woodruff, ?; 22, n. 1 
 Frostburg Mining Co. v. New 
 
 England Glass Co., § 11, n. 1 
 Fuller V. Bean, § 21, n. 1 
 
 V. , § 23, n. 1 
 
 V. , § 5, n. 2 
 
 V. Little, § 36, n. 2 
 
 V. Schroeder, § 38, n. 7 
 
 V. , § 62, n. 14 
 
 Furneaux v. Esterly, § 62, n. 3 
 V. , § 62, n. 16 
 
 G. 
 
 Galveston Railroad v. Cowdrey, 
 
 § 42, n. 7 
 Gambling v. Read, § 33, n. 1 
 Gammell v. Gunby, § 52, n. 1 
 
 V. , § 52, n. 5 
 
 V. ,§53, n. 11 
 
 Gammon v. Abrams, § 30, n. 8 
 
 - — V. , § 44, n. 6 
 
 Gardiner v. Lane, § 3, n. 1 
 Gardner v. Howland, § 24, n. 5 
 
 V. , § 45, n. 4 
 
 Garfield v. Paris, §1 1, n. 1 
 Gassett v. Andover, § 36, n. 12 
 Gatling v. Newell, § 59, n. 4 
 Gault V. Brown, § 1 1, n. 10 
 
 V. , § 12, n. 5 
 
 Gaylor v. Copes, § 48, n. 5 
 Gaylord Mfg. Co. v. Allen, § 52. n.l8
 
 Table of Cases. 
 
 XV 
 
 George v. Stubbs, g 23, n. 2 
 
 ^;. , g 33, n. 1 
 
 V. Tuft«, §40, n. 26 
 
 Gibbons v. Lukf, § 40, n. 16 
 Gibbs V. Bpnjamin, g 10, n. 2 
 
 V. , § 22, n. 9 
 
 V. Hall, I 52, n. 1 
 
 & Sten-it't Mfg. Co. v. Kasxe- 
 
 zyke, I 61, n. 1 
 Gibson v. Cranage, § 18, n. I 
 
 V. Stevens, § 11, n. 2 
 
 V. , § 24, n. 4 
 
 GiflFordi;. Eetts, 3 Gl, n. 3 
 Gilbert v. N. Y. C. R. R. Co., § 19, 
 
 n. 1 
 Gillman v. Hill, § 9, n. 15 
 
 V, , § 11, n. 14 
 
 Gilmore v. Holt, § 36, n. 4 
 V. Newton, § 2, n. 1 
 
 Girard v. Taggart. § 28, n. 3 
 Girst V. Jones, § .")2, n. 5 
 Glen V. Whitakcr, § 25, n. 4 
 Goddard v. Binney, g 21, n. 4 
 Goodell V. Fairbrothers, § 41, 
 
 n. 14 
 Goodkin v. Graham, § 48, n. 3 
 Goodspeed v. South Bend Plow 
 
 Co., § .35, n. 10 
 Goodwin v. Holbiook, § 23, n. 4 
 
 V. May, § 40, n. 1 
 
 V. Wells, § 26, n 3 
 
 Gorham v. Fisher, § 1 1, n. 14 
 Gossler v. Eagle Sugar Refinery, g 
 
 30, n. 7 
 Gowen v. Klous, § 14, n 2 
 
 V. , § 15, n. 2 
 
 Gowing V. Knowles, § 3, n. 2 
 GraflFw. Foster, § 30, n. 8 
 Grafton v. Cummings, g 14, n. 2 
 Grant v Thompson, § 2, n. 4 
 Grave v. Donaldson, g 19, n. 2 
 Gray v. Wass, § 37, n. 3 
 Griet v Cole, § 62. n. 1 
 Griffin v Chubb, g 6, n. 1 
 Griffith V. Fowler, § 2, n. 3 
 
 V Morrison, ^ 40, n. 27 
 
 Grimaldi v. White, g 58, n. 10 
 Grimes v. Hamilton Co., § 13, 
 
 n. 7 
 Groning v. Mendham, § 58, n. 10 
 Gross V. Kurski, § 48, n. 4 
 Grover V Warfield, g 9, n. 6 
 Grune v. Dingley, g 27, n. 1 
 Gurney v. Howe, § 32, n. 7 
 Gunther v. Atwell, g 56, n. 20 
 
 H. 
 
 Haase v. Nonemacher, g 44, n. 3 
 lladin v. Coleman, '^_ 19, n. 2 
 Hadley v. Clinton Co., g 49, n. 1 
 
 V. , g 49, n. 3 
 
 V. Prath.'r, g 49, n. 1 
 
 V. , '^,49, n. 2 
 
 Ilaggerty v. Palmer, g 32, n. 3 
 Hahn v. Doolitile, g 4*9, n. 5 
 
 V. Fredericks, g 22, n. 1 
 
 Hall V. uEtna Mfg. Co., § 44, n. 7 
 
 V. Gaylor, g 25, n. I 
 
 V. Huntley, g 22, n. 9 
 
 V. Stevens, g 34, 4 
 
 llakins v. Pemberton, g 56, n. 12 
 Hamilton v. Ganyard, §53, n. 8 
 Hammott v. Lineman, § 17, n. 3 
 
 V. Linneman, g 23, n. 1 
 
 V. Lineman, § 33, n. 2 
 
 V. ,§39, n. 5 
 
 llanaur v. Bartels, g 31, n. 1 
 Hanks v. McKee, g 53, n. 4 
 Hannequin v. Sands, g 35, n. 12 
 Hanson v. Barnes, g 13, n. 6 
 
 V. Meyer, § 32, n. 3 
 
 Hargus v. Stone, g 52, n. 5 
 Harkness v. Russell, g 40, n. 1 
 
 V. , p 40, n. 3 
 
 V. , § 41, n. 5 
 
 V. , § 42, n. 3 
 
 Harley o. Golden State Works, | 
 
 47, n. 4 
 Harmony v. Bingham, § 20, n. 2 
 
 V. , § 20, n. 3 
 
 Harris v. Simmerman, g 37, n. 1 
 
 V. Waite, § 52, n. 1 
 
 V. , g 52, n. 7 
 
 V. , § 53, n. 2 
 
 Harrison v. Shanks, g 48, n. 14 
 Harsby v. Baker, g 48, n. 14 
 Hart v. Middleton, § 27, n. 2 
 
 V. Mills, g 26, n. 7 
 
 V. Wright, § 53, n. 6 
 
 Hartford Sorghum Mfg. Co. «. 
 
 Brush, § 38, n. 3 
 Ilasbrouck v. Loundsbury, § 35, 
 
 n. 1 
 Haskins v. Swain, g 37, n. 6 
 
 V. Warren, g 31, n. 1 
 
 Hastings v. Lovering, g 30, n. 5 
 
 V. , § 55, n. 1 8 
 
 Hatterline v. Rice, g 21, n. 4 
 Hawkins v. Berry, g 55, n. I 
 
 V. Chase, g 13, n. 4 
 
 V. Chance, g 16, n. 8 
 
 e. Pemberton, g 30, n. 5 
 
 V. , g 53, n. 4
 
 XVI 
 
 Table of Cases. 
 
 Hawkins v. Pemberton, § 56, n. 19 
 Ilawley v. Keeler, § 10, n. 4 
 
 V. Keler, § 1 '2, n. 1 ^ 
 
 V. Keeler, § 12, n. 6 
 
 Ilayden v. Demets, § 24, n. 2 
 
 V. , § 24, n. 7 
 
 V. Reynolds, § 19, n. 2 
 
 Hays V. Currie, ^ 32, n. 3 
 HaVv. Holt, §20, n. 2 
 
 1 V. , § 20, n. 3 
 
 Hay«-ard v. Scougall, § 28, n. 1 
 Hazard v. Loring, § 36, n. 4 
 Heath v. Randall, § 33, n. 1 
 
 ^;. , § 40, n. 1 
 
 V. White, § 35, n. 2 
 
 Peckle V. Lurvey, § 2, n. 2 
 Heermance v. Taylor, § 11, n. 13 
 Helden v. Roberts, § 30, n. 8 
 Henderson v. Lauck, § 33, n. 4 
 Henkle v. Burke, § 57, n. 10 
 Henshaw v. P>aiik, § 4, n. 1 
 
 V. Robins, § 55, n. 29 
 
 Henson v. King, § 56, n. 1 
 Hepburn v. Auld, § 36, n. 11 
 Hernshaw v. Rohins, b 30, n. 5 
 Herring V. llappock, § 33, n. 1 
 
 V. , § 40, n. 1 
 
 V. Skaggs, § 61 , n. 1 1 
 
 Herschorn v. Canney, § 33, n. 1 
 Hersey v. Long, § 59, n. 13 
 Hervey v. Rock Island Locomotive 
 
 Works, § 42, n. 2 
 Heryford v. Davis, ^ 42, n. 4 
 Hewess v. Jordan, § 10, n. 6 
 
 V. , ? l'», n. 7 
 
 y, , I ll,n.l3 
 
 Hicks V. Cleveland, § 12, n. 1 
 
 V. Skinner, § 48, n. 14 
 
 Higdon V. Thomas, g 16, n. 1 
 Higgins V. Murrav, § 25, n. 1 
 Highv. Ripley, §9, n. 12 
 Highland Chemical and Mining 
 
 Co. V. Mathews, § 26, n. 1 
 Hightv, Bacon, § 52, n. 1 
 
 V. , 'i 52, n. 3 
 
 Hill V. Bannister, § 60, n. 7 
 
 V. Heller, §26, n. 1 
 
 V. Hobart, §27, n. 1 
 
 V. § 44, n. 4 
 
 V. North' §47, n. 13 
 
 V. Townsend, § 40, n. 15 
 
 Hillman v. Wilcox, § 56, n. 1 
 
 Hills V. Lynch, §25, n. 4 
 
 Himrod Furnace Co. v. Cleveland 
 
 and Mahoning R. R. Co., §13, 
 
 n. 8 
 Hine V. Roberts, §41, n. 15 
 Hinslev V. Baker, § 48, n. 15 
 
 Hintermister v. Lane, § 33, n. 9 
 
 V. , § 41, n. 16 
 
 Hirschborn ?-. Stewart, § 30, n. 8 
 Hodgson V. Barrett, § 32, n. 3 
 
 V. , § 33, n. 7 
 
 V. ^ M4, n. 1 
 
 Hoe V. Sanbuni, § 52, n. 1 
 
 V. , § 54, n. 6 
 
 Hoffman v. Carew, § 2, n. 2 
 Hogins V. Plvnipton, § 30, n. 5 
 
 V. /§49, n. 6 
 
 Ilolden V. Chancey, § 53, n. 14 
 
 V. Dakin, § 49, n. 3 
 
 V. , § 54, n. 2 
 
 Hollinder v. Koetter, § 50, n. 9 
 Holme V. Guppy, § 19, n. 2 
 Holmes v. Wood, § 55, n. 40 
 Homesley v. Hogne, § 2, n. 3 
 Homes v. Smith, § 27, n. 3 
 Hooban v. Bidwell, § 6, n. 1 
 Hook V. Stovall, § 58, n. I 
 Hooker v. Knob, § 9, n. 5 
 Hopkins V. Appleby, § 58, n. 10 
 
 V. Tanquerav, § 47, n. 1. 
 
 V. Ware, § 34, n. 2 
 
 Horton v. Green, § 56, n. 12 
 Hotchkiss V. Gage, § 49, n. 6 
 
 V. Hunt, § 33, n. 1 
 
 , V. , § 40, n. 1 
 
 Hough V. May, § 34, n. 1 
 Hoult V. Baldwin, § 54, n. 3 
 House V. Foster, § 59, n. 4 
 Houston V. Gilbert, § 55, n. 34 
 Howard v. Borden, § 11, n. 5 
 
 V. Hayes, § 30, n. 8 
 
 V. Hoey, § 53, n. 5 
 
 y_ \ § 53, n. 9 
 
 Howe V. Hayward, § 12, n. 2 
 
 V. Huntington, § 27, n. 1 
 
 Howes V. Jordan, § 10, n. 3 
 Howie V. Rea, § 52, n. 18 
 Howland v. Harris, § 45, n. 4 
 Hover v. Peters, § 54, n. 13 
 Hovey v. Hovey, § 2, n. 4 
 Huckleman v. Harrison, § 48, n. 1 
 Hudgins v. Perry, § 47, n. 13 
 Hudson V. Weir, § *.', n. 1 
 Hughes V. Banks, § 55, n. 34 
 
 V. Bray, § 50, i . I 
 
 V. Sheaff, § 17, n. 3 
 
 Hulos V. Slevin, § 36, n. 11 
 Humphries v. Carvalho, § 38, n. 2 
 Hunt V. Livermore, § 18, n. 1 
 
 V. Sackett, § 48, n. 8 
 
 Hunter v. Wright, § 25, n. 1 
 Huntington v. Hall, § 48, n. I 
 
 V. , § 48, n. 6 
 
 Hurd V. West, § 44, n. 3
 
 Table of Cases. 
 
 xvii 
 
 Hussey v. Thornton, § 40, n. I 
 Hutchins v. Gilchrist, § 22, n. 9 
 Hutchinson v For<], g 4, n. 1 
 
 V. Grand Trunk Ry. Co., g 21, 
 
 n. I 
 Hyatt V. Boyle, § 53, n. 6 
 Hyde v. Latliroj), g 22, n. 11 
 Hyland v. Sherman, § 54, n. 11 
 
 I. 
 
 Ireland v. Livingston, § 26, n. 5 
 International Pavement Co. v. 
 
 Smith, § 56, n. 22 
 Isherwood v. Whitmore, § 36, n. 6 
 Ivory V. Murphy, § 16, n. 1 
 Irwin V. Thompson, § 48, n. 13 
 
 J. 
 
 Jack V. Des Moines <fe Fort Dodge 
 
 R. R. Co., § 55, n. 15 
 Jackson v. Covert, § 9, n. 10 
 
 V. Bartlett, g 37, n. 4 
 
 Jacob V. Kirke, g 14, n. 3 
 Jameson v. Gregory, § 44, n. 3 
 James v. Muir, § '>, n. 1 
 Jellison v. .Jordon, § 8, n. 3 
 Jenkins v. Jarrett, § 31, n. 1 
 Jenness v. Iron Co., g 3, n. 2 
 Jennings v. Gratz, § 53, n. 4 
 Jewett V. Warren, § 24, n. 2 
 J. I. Case Threshing Machine Co. 
 
 V. Veanon, § 62. n. 32 
 
 V. , § 57, n. 4 
 
 Jinks V. Howe .Sewing Machine 
 
 Co., § 41, n. 11 
 Johnson v. Babcock, § 2, n. 3 
 
 V. Cope, § 54, n. 2 
 
 V. Cuttle, § 10, n. 6 
 
 V. Latimer, jJ 47, n. 7 
 
 V. McLane, § 38, n. 2 
 
 V. , g 44, n. 3 
 
 V. Nicolls, I 46, n. 3 
 
 V. Raylton. § 4t), n. 2 
 
 V. Trinity Cli. Soc, § 13, n. 7 
 
 V. Watson, § 9, n. 16 
 
 Jones V. Bright. ^ 52, n. 1 
 
 V. , § 52, n. 4 
 
 V. George. § 47, n. 15 
 
 V. , §61, n. 9 
 
 V. Just, I 58, n. 2 
 
 V. , I 53. n. 4 
 
 V. Murray, § 54, n. 11 
 
 — ^ V. Pearce, § 22, n. 4 
 
 Jones V. Quick, § 56, n. 1 
 
 V. Richardson, § 4, n. 1 
 
 V. United States, § 18, n. 
 
 V. Wasson, g 5U, n. 7 
 
 Jordan v Foster, ^ 47, n. 13 
 
 V. James, § 4.'>, n. 3 
 
 Jowens V. Blandy, g 40, n. 1 
 Joy V. Sears, g 24, n. 3 
 Justice V. Terry, g 16. n. 1 
 
 K. 
 
 Kalsea v. Haines, g 23, n. 2 
 Kauffman v. Stone, g 22, n. 5 
 Keeler v. Field, g 32, n. 3 
 
 V. Vandervere, § 21, n. 3 
 
 Kein v. Tupper. § 26, n. 9 
 Keinbockle v. Zugbaum, § 40, n. 9 
 Kellogg V. Denslow, g 58, n. 10 
 
 V. Gilbert, § 37, n. 4 
 
 Kelton V. Leonard, § 37, n. 5 
 Kemp V. Ice Co., § 20, n. 2 
 
 V. , § 20, n. 3 
 
 Kenny v. Planer, § 40, n. 3 
 Kent v. Friedman, § 59, n. 7 
 Kermeyer v. Newby, § 34, n. 1 
 Kimball v. Bangs, | 56, n. 13 
 
 Mfg. Co. V. Vroman, § 57, 
 
 n. 14 
 
 King V. Bates, § 33. n. 10 
 
 V. Towsley, § 62, n. 27 
 
 V. Quidnick Co., g 47, n. 5 
 
 Kingsbury v. Taylor, § 49, n. 1 
 
 V. , § 52, n. 4 
 
 Kingsley v. Fitts, g 37, n. 5 
 
 V. Wallis, § 27, n. 1 
 
 Kinley v. Fitzpatrick, § 56, n. 1 
 
 V. , § 55, n. 9 
 
 Kinney v. Ingalls, § .'i5, n. 3 
 Kirby v. Harrison, g 58, n. 9 
 Kirkpatrick v. Alexander, § 27, 
 
 n. 7 
 Ketchum v. Wells, § 53, n. 4 
 Klein v. Sebald, 3 2, n. 1 
 Knight V. Bean, g 20, n. 1 
 
 V. Mann, § 10, n. 2 
 
 V. , I 10, n. 3 
 
 Knowlton v. Oliver, § 57, n. 15 
 Kohl V. Lindley, § 47, n. 14 
 Kohler v. Haye.'^. g 40, n. 1 
 Kraft V. Dulles, g 33, n. 6 
 
 V. , g 39. n. 4 
 
 V. Hurtz, g 23, n. 4 
 
 Kribs V. Jones,'g 20. n. 3 
 Kugler V. Wiseman, g 19, n. 2 
 Kutner v. Warner, g 40, n. 1
 
 XVIU 
 
 Table of Cases. 
 
 Lackey v. Stouder, § 48, n. 6 
 Laing v. Fidgeon, § 53, n. 2 
 Lamb v. Crafts, ^ 30, n. 5 
 
 V. , § 30, n. 7 
 
 Lambert t;. McCloud, § 22, n. 1 
 Lanfear v. Sumner, § 45, n. 4 
 Lawrence v. Miller, § 19, n. 2 
 League v. Waring, § 34, n. 4 
 Lee V. Kimball, § 45, n. 3 
 Leisherness v. Berry, § 24, n. 7 
 
 V. , § 24, n. 2 
 
 Leonard v. Peoples, § 56, n. 1 
 Leopold V. Van kirk, § 53, n. 2 
 Lernedt'. Wannemacher, § 16, n. 5 
 Leslie v. Evans, § 30, n. 8 
 
 V. Knickerbocker Life Ins. 
 
 Co., §37, n. 6 
 Lespard v. Vankirk, § 55, n. 8 
 
 V. , § 52, n. 1 
 
 Lester v. East, § 31, n. 1 
 
 V. ,§40, n. 1 
 
 V. Graham, § 54, n. 1 
 
 Levy V. Burgess, § 18, n. 1 
 
 V. Green, § 26, n. 7 
 
 Lewis V. Bourbon, § 37, n. 5 
 
 V. Gamage, § 37, n. 3 
 
 V. Hubbard, § 62, n. 21 
 
 V. McCabe, § 40, n. 6 
 
 V. Rountree, § 53, n. 4 
 
 V. , § 59, n. 4 
 
 Lightburn v. Cooper, § 56, n. 6 
 Lincoln v. Johnson, § 3, n.-l 
 Lindley v. Hunt, g 47, n. 14 
 Lindsay v. Davis, | 55, n. 35 
 Lines v. Smith, § 48, n. 1 
 Lingham v. Eggleston, § 22, n. 1 
 Linton v. Porter, § 48, n. 3 
 Little V. Page, § 33, n. 1 
 
 V. , § 40, n. 3 
 
 Litterel v. St. John, § 35, n. 11 
 Liven t). Smith, § 32, n. 3 
 Logwood V. Hussey, § 40, n. 1 
 Long V. Hicks, § 47, n. 13 
 
 V. llickingbottom, § 48, n. 6 
 
 Loomis V. Bragg, § 41, n. 13 
 Lord V. Grow, § 49, n. 1 
 
 V. Wheeler, § 20, n. 3 
 
 Loring v. Cooke, {J 36, n. 11 
 Loris V. Long, § 54, n. 2 
 Lovell V. Williams, § 35, n. 9 
 Low V. Pew, § 4, n. 1 
 Lowry v. Barelli, § 22, n. 1 
 Lucy V. Bundy, § 33, n. 1 
 Lupin V. Marie, § 35, n. 12 
 
 M. 
 
 Maclay v. Harvey, § 3, n. 2 
 Mackaness v. Long, jJ 1, n. 1 
 Mackey v. Swartz, {^ 30, n. 8 
 Magee v Billings, § 50, n. 1 
 Magruder v. Gage, § 11, n. 12 
 
 V. , § 25, n. 5 
 
 V. , §25, n. 1 
 
 Mann v. Everston, § 53, n. 2 
 
 V. , §54, n.'9 
 
 Mansfield v. Trigg, § 30, n. 1 
 Manwell v. Briggs, § 40, n. 1 
 Marble v. Moore, § 23, n. 2 
 Marland v. Stanwood, § 26, n. 7 
 Marquette Mfg. Co. v. Jeffery, 
 
 § 40, n. 3 
 Marsh v. Hyde, § 10, n. 7 
 
 V. , § 11, n. 10 
 
 V. McGreevy, § 50, n. 10 
 
 V. Rouse, § 10, n. 3 
 
 V. ,§ 11, n. 11 
 
 V. Webber, § 55, n. 1 
 
 Marshall v. Duke, § 48, n. 1 
 Marston v. Baldwin, § 33, n, 2 
 
 V. , § 39, n. 5 
 
 V. , § 40, n. 1 
 
 Martin v. Adams, § 1, n. 1 
 
 V. How, § 59, n. 1 
 
 V. Maxwell, § 59, n. 4 
 
 Mason v. Chappell, § 52, n. 5 
 
 V. Dicker, § 16, n. 1 
 
 V. Phelps, § 5, n. 2 
 
 Massey v. State, § 1, n. 1 
 Mathews v. Lucia, § 40, n. 14 
 Maxwell v. Brown, § 10, n. 2 
 
 V. , § 10, n. 6 
 
 Mazone v. Caze, § 18, n. 1 
 McAndrews v. Santee, § 22, n. 8 
 McCandish v. Newman, § 5, n. 2 
 McCarty v. Gok^v, § 27, n. 7 
 McClamrock v. Flint, § 52, n. 12 
 McClung V. Kelley, § 19, n. 1 
 
 V. , § 53, n. 2 
 
 V. , § 53, n. 8 
 
 McComb V Parker, § 23, n. 1 
 
 V. Wright, § 16, n. 7 
 
 McConnell v. Hughes, § 5, n. 4 
 McCoy V. Artcher, § 48, n. 6 
 McCormick Harvesting Machin- 
 ery Co. V. Chesrown, § 62, 
 n. 13 
 
 V. Cochran, § 62, n. 11 
 
 V. Embree, § 62, n. 25 
 
 V. Hays, § 62, n. 16
 
 Tabic of Cases. 
 
 XIX 
 
 McCormick v. Bafssal § 38, n. 1 
 
 <;. , g r,-j, n. IS 
 
 -'. Kelley, ^ *V2, n. 39 
 
 V Sarsnn, jj 57, n. 17 
 
 V ,g (ij, n. 40 
 
 Mc( "ready v. Wright, jJ 2-2, n. 3 
 McFarlaml v. Farmei, g 33, n. 10 
 
 V. Newman, ^ 55, n. 9 
 
 McFarson's Appeal, g 15, n. 8 
 
 , § 16 n. 1 
 
 McGrarock v. Ward. § 54, n. 8 
 McGregor v. Penn, § 56, n. 1 
 McGrew v. Rroder, g 2, n. 2 
 McGuire v. Kearney, § 47, n. 14 
 
 V Bid we 11, § 35, n. 2 
 
 McLean v. Dunn, § 28, n. 3 
 McKee v Garcelon, § 24, ii. 4 
 McKinley v. Watkins, § 3, n. 2 
 McMahon v. Sloan, § 2, n. 1 
 McMillan v. Vendeilip, § 26, n. 9 
 McNight V. Devlin, § 4S, n. 1 
 Meacham v. Cooper, § 61, n. 5 
 Mead v. Case, § 9, n. 12 
 
 V. Digalyer, § 26, n. 9 
 
 Meager v. Hollenberg, § 41, n. 12 
 Merchants' Natl Bank v. Bangs. 
 
 § 23, n. 3 
 Merchant v. Chapman § 11, n. 12 
 
 V. , § 25, n. 1 
 
 Melby v. Osborne, § 62, n. 43 
 Merriara v. Field, § 53, n. 2 
 
 V. , § 53. n. 13 
 
 V. United States, § 26, n. 10 
 
 Merrill v. Stanwood, § 32, n. 3 
 Mertens v. Adcock, § 28, n. 3 
 Messer v. Woodman, § 10, n. 4 
 Messenger i'. Pratt, § 53, n. 4 
 Meyer v. Car Company, § 42, n. 5 
 Middlesex Co. v. Osgood, § 23, n. 4 
 Middlesex v. Osgood, § 8, n. 3 
 Mill Dam Foundry v. Hoovy, § 20, 
 
 n.3 
 
 V. . § 19, n. 2 
 
 Miller V. Moore, § 37, n. 8 
 
 V. Nichols, g 57. n. 4 
 
 V. Van Tassel, § 48, n. 12 
 
 V. Nichols, § 62, n. 32 
 
 Miles V. Roberts, § 23, n. 4 
 Minneapolis Harvester Works v. 
 
 Bonallie, § 61, n. 1 
 
 ,;. , g62, n._41 
 
 Minor V. Mechanics' Bank, § 37, 
 
 n. 1 
 Missroom v. Waldo, § 54, n. 1 
 Mitchell V. Dubose, § 54, n. 1 
 
 V. Kingman, 3 2, n 4 
 
 Mixer V. Coburn ^ 49, n. 1 
 V. , § 30, n. 7 
 
 V. Howarth, ? 9, n. 12 
 
 Mockbee v. Gardner, ^ 48, n. 14 
 Moffat V. Lunt, § 27, n. 9 
 Moody V. Blake, § 2, n. 1 
 Moore v. McKinlay, § 53, n. 2 
 
 V. Purcy, g 44, n. 3 
 
 Morey v. Medbury, § 25, n. 1 
 Morehouse v. Comstock, g 53, n. 4 
 Morgan v. Thelford, g 62, n. 30 
 Morrill v. Wallace, g 30, n. 5 
 
 V. , g 55, n. 1. 
 
 V. , g 55, n. 9 
 
 V. , g 56, n. 1 
 
 Morris v. Lynde, g 41 , n, S 
 
 V. Thompson, g 48, n. 1 
 
 Morse v. Sherman, g 23, n. 1 
 Morrow v. Campbell, g 21, n. 5 
 
 V. Reed, g 21 , n. 5 
 
 Moses V. Mead, § 47, n. 14 
 
 V. , g49, n. 1. 
 
 V. , g 52, n. 18 
 
 V. , g54, n. 11 
 
 Moss V. Sweet, g 44, n. 1 
 
 Mount Olive Cemetery v. Shubert^ 
 
 g37, n. 7 
 Mowry v. Kirk, g 27, n. 4 
 Mumford v. McPherson, g 60, n. 8 
 
 V. , g 60, n. 9 
 
 Murray, i'. Baker, g 18, n. 1 
 
 V. Brooks, g 62, n. 9 
 
 V. Smith, g 27, n. 1 
 
 V. , g 44, n. 4 
 
 V. , g 55, n. 9 
 
 Mushat V. Brivard, g 8, n. 3 
 
 N. 
 
 Nash V. Weaver, g 41, n. 3 
 Nauman v. Overlee, g 59, n. 10 
 Neane v. Arntz, g 55, n. 8 
 Neilson v. Dickinson, g 49, n. 11 
 Neldon v. Smith, g 45, n. 5 
 Neufville i'. Stuart, g 15, n. 9 
 Newberv v. Wall, g 52, n. 18 
 
 V. , g 53, n. 1 
 
 Newcomb v. Cabell, g 24, n. 2 
 
 V Railroad, g 24, n. 6 
 
 Newhall v. Langdon, g 24, n. 6 
 Newton v. Dunham, g 5, n. 2 
 
 V. Bronson, jJ 16, n. 9 
 
 Nichol V. Ridley, g 13, n. 6 
 Nicliola V. Hail, g 57, n. 4 
 
 I'. , § 6L','n. 32 
 
 Nichols V. Knowles, g 57, n. 16 
 
 V. , g r,2, n. 23 
 
 Nicholas v. Way man, g 62, n. 4 
 V. , g 62, n. 16
 
 XX 
 
 liable of Cases. 
 
 Nichols V. Hill, a 00, n. 1 
 
 r. Lark in, f tJ2, n. 22 
 
 V. Mitchell,' § 9, n. 5 
 
 V. Morse, g 28, n. 2 
 
 Kicholson r. Moog. § 37, n. 5 
 Nixon V. Nixon, § 27, n. 4 
 Noakes v. Morey, § 12, n. 2 
 Norman v. Philiips, § 11, n. 12 
 Norrington v. Wright, § 27, n. 8 
 North V. Forest, § 9, n. 4 
 Norton v. Dean, | 15, n. 8 
 Nowbray v. Cody, § 38, n. 1 
 Nutting V. Dickinson, § 5, n. 2 
 
 V. , § 8, n. 1 
 
 Nye V. Iowa City Alcohol Works, 
 2 GO. n. 5 
 
 0. 
 
 n. 3 
 
 Oatman v. Walker, § 2' 
 Ober V. Smith, § 25, n. 4 
 O'Brien v. Jones, § 61, n. 4 
 Ockington v. Richey, § 22, n. 1 
 
 V. , § 22, n. 6 
 
 Odell V. Boston & M. R. R., g 25, n. 4 
 Olivant v. Bayley, § 52, n. 5 
 Oneida Mfg. ("o. v. Lawrence, § 54, 
 
 n. 8 
 
 V. , § 56, n. 1 
 
 O'Neal V. Bacon, § 56, n. 1 
 O'Xeil c. Mining Co., § 9, n. 12 
 Orcutt V. Nelson, § 25, n. 1 
 Ormrod v. Huth, g 49, n. J 
 Ortman v. Green. § 22, n. 1 
 Osborn v. Gaiitz § 35, n. 1 
 
 V. Grats, § 47, n. 1 
 
 V. Rawson. § 62, n. 16 
 
 y. , g 62, n. 29 
 
 Osborne & Co. v. Bell, § 62, n. 9 
 
 V. Marks, § 62, n. 38 
 
 y. , g 62, n. 20 
 
 Osgood V. Lewis, § 30, n. 5 
 
 t;. , §55, n. 29 
 
 Ottowa Bottle and Flint Glass Co. 
 
 V. Gunther, § 59, n. lU 
 Otis V. Anderson, § 49, n. 1 
 Otts V. Alderson, § 56, n. 1 
 Overton v. Plielan, g 52, n. 1 
 
 V. , g 52, n.'2 
 
 Oxendale v. Whetherell, § 26, n. 7 
 
 P. 
 
 Pacific Guano Co. v. Muller, § 52, 
 
 n. 4 
 Iron Works v. Long Ise. R. 
 
 Co., §25, n. 1 
 
 Pacific Guano Co. v. I<ong Island 
 
 R. R. <'o.,§ 28. n. 2 
 
 V. Newhall, § 52, n. 4 
 
 V. , § 52, n. 5 
 
 Padden v. Marsh, § 44, n. 7 
 Page V. Ford, § 52, n. 9 
 Palmer v. Stevens, § 16, n. 4 
 Palmer's Appeal, § 49, n. 2 
 Palte V. Pelton, §48, n. 8 
 Parker v. Bodley, § 15, n. 8 
 
 V. Perkins, § 36, n. 3 
 
 V. Schenck, § 9, n. 12 
 
 V. Wall is, § 11, n. 6 
 
 Parks V. Cornstalk, g 39, n. 3 
 Park V. Morris Co., g 55, n. 25 
 
 V. , § 61, :). 12 
 
 Parmlee v. Adolph, § 58, n. 4 
 Parris v. Rol^erts, § 3'., n. 1 
 Parsons V. Loucks, g 9, n. 12 
 Paton V. Currie, g 19, n. 1 
 Patrick v. Meserne, § 24, n. 4 
 
 V. Leach, § 55, n. 5 
 
 Patton V. McCane, § 4ii, n. 1 
 Passaic Mfg. Co. v. Hoffman, § 9, 
 
 n. 1 1 
 Paulson V. Orborne & Co., § 62, 
 
 n. 10 
 Pease v. Sabin. g 53, n. 2 
 
 V. Salim, § 52, n. •5' 
 
 V. Smith, g 2, n. 2 
 
 Peck V. United States, § 19, n. 2 
 Peckerell v. Rose, § 3, n. 2 
 Peet V. Spencer, § 43, n. 3 
 Penniman v. Pierson, § 54, n. 2 
 People's Bank v. Gridley, g 24, n. 2 
 
 V. Kurtz, g 4S, n. 1 
 
 Percival v. Blake, g 58, n. 10 
 Perkins v. Douglass, § 44, n. 3 
 Peters v. Ballister, § 24, n. 4 
 Phillis V. Sandwich Mfg. Co., § 30, 
 
 n. 8 
 Phillip V. Aurora Lodge, g 37, n. 6 
 Phillips V. Ballard, g 34, n. 1 
 
 V. BistoUi, § 10,' n. 3 
 
 V. McFarlane, § 9, n. 12 
 
 V. Merritt, § 11, n. 6 
 
 V. Ocmulgee Mills, g 10, n. 7 
 
 V. , § 11, n. 6 
 
 V. Stevens, g 20, n. 3 
 
 V. Taylor, g 27 
 
 Pickard v. McCormick, g 55 ,n. Si 
 Pickering v. Busk, g 29, n. 3 
 
 " V. , g 37, p. 7 
 
 Pierce v. Davis, § 34, n. 1 
 
 V. Emery, g 4, n. 1 
 
 Pienson v. Hoag, g 33, n. 4 
 Pinkham v. Mattox, § 10, n. 1 
 V. , § 11, n. 1
 
 1 able of Cases. 
 
 XXI 
 
 Pinkham v. Mattux, § 11, n. 6 
 
 Pitkin V. Xoyf's, g 'J, n. 12 
 
 Pitts Sons Mfg. Co. V. Spittsnogle, 
 
 § 57, n. 4 
 
 V. , g 0-2, n. 32 
 
 Plant Seed Co. v. Ihill, § 3. n. 2 
 Pontifer v. Wilkinson, § 19, n. 2 
 Poland V. Miller g 52, n. 13 
 
 V. , g 5'J, n. 8 
 
 Polhemus v. lleiman, § 55, n. 3 
 Port Carbon Iron Co. v. Groves, § 
 
 52. n. 5 
 
 V. , 3 52, n. 15 
 
 V. , § 53, n. 4 
 
 Porter v. Pettingill, g 33, n. 1 
 
 V. , § 44, n. 3 
 
 V. Pittsburgh Steel Co., § 42, 
 
 n. 6 
 Powell V Bradlee, § 32, n. 3 
 Prairie Farmer Co. v. Taylor, § 38, 
 
 n. 2 
 Pratt i;. Chase, § 10, n. 8 
 
 V. Parkman, § 24, n. 4 
 
 ' V. , § 45, n. 4 
 
 Prescott V. Locke, g 10, n. 2 
 
 V. , g 11, n'. 2 
 
 V. , I 23, n. 1 
 
 Price V. Jones, 3 40, n. 1 
 Prime v. Cobb, § 2, n. 1 
 Pritchard v. Fox, § 58, n. 2 
 Proctor V. Spratley, § 30, n. 8 
 
 V. , § 50, "n. G 
 
 Puckettv. Reed, § 24, n. 2 
 
 V. , § 24, n. 7 
 
 Putnam v. Tillotson, § 25, n. I 
 
 V. , I 11, n. 12 
 
 V. Lamphier, g 40, n. 1 
 
 Q. 
 
 Quimby v. Carr, g 25, n. 4 
 Quintard v. Bacon, g 11, n. 7 
 
 R. 
 
 Railroad v. Evans, g 16, n. 1 
 Railroaii Co. r. Bowns, g 20, n. 2 
 
 V. Sent, g 2('), n. 7 
 
 Raines v. Totman. g 00, n. 2 
 Rakes v. Pope, g 9, n. 17 
 Randall v. Johnson, g 5, n. 5 
 
 V. . g 23. n. 5 
 
 V. Newson, g 52, n. 4 
 
 V. , g 53, n. 2 
 
 V. Rhodes, g 56, n. 2 
 
 ■ V. Thornton, g 55, n. 1 
 
 Randolph & Co. v. Elliott, g 21, 
 
 n.l 
 Rankin v. Goddard. g 23, n. 5 
 Uappleye v. Adie, >} 1 1. n. 3 
 
 V. , g I 1. n' s 
 
 Rawls V. Saulsbuiy. j/ 3'., n. 1 
 Ray V. Tomj)Son. g ■i4, n. 3 
 
 V. , g 44, n. 8 
 
 Rease f . Sabm, g •")_', n. 1 
 Redpath v. KolJage, g 34, n. 3 
 Redewell v. Gilleii, g 41, n. 12 
 Reed v. Hastings, g 55, n. 4 
 
 V. Upton, g 40, n. 1 
 
 Reenes v. Harris, g 40, n. 1 
 Refining Co. v. Miller, g 33, n. 1 
 Reg V. Chawton, g 27, n. 2 
 Remick v. Sandf'urd, g 10, n. 3 
 
 V. , g 16, n. 10 
 
 Reuss V. Picksley, g 16, n. 1 
 Reynolds v. Palmer, g 50, n. 6 
 
 V. , g 61, n. 2 
 
 V. Shuter, g 26, n. 4. 
 
 Rhea v. Otto, g 22, n. 1 
 Rhoads v. Castner, g 13, n. 7 
 Rice V. Churchill, g 23, n. 4 
 
 V. For.syth. g 48, n. 1 
 
 V. , g 52, n. 1 
 
 V. , I 52, n. 18 
 
 V. , g 56, n. 3 
 
 V. Peet, g 2, n. 4. 
 
 V. Stone, g 4, n. 1 
 
 Richardson v. Boston Chemical 
 
 Labratory, g 36, n. 11 
 
 V. Bouck, g 54, n. 10 
 
 V. Ford, g 27, n. 4 
 
 V. Gray, g 24, n. 7 
 
 V. Paige, g 55, n. 21 
 
 V. Squires, g 10, n. 7 
 
 Richmond T. tt M. Co. v. Farquat; 
 
 g 30, n. 5 
 
 V , g 55, n. 19 
 
 Fiicketts v. Hays, g 56, n. 21 
 Ricks V. Dillahunty, g 56, n. 12 
 
 V. , g57, n. 5 
 
 Riddle v. Varnum, g 22, n. 7 
 
 V. , g 23, n. 1 
 
 Ridgeway v. Kenneday, g 40, n. 3 
 Riggs r. Magrauder. g 9, n. 2 
 Rivers v. Gru-jett, g 47, n. 11 
 Robbins v. Phillips; g 40, n. 8 
 Roberts v. Fisher, g 35, n. 8 
 
 V. Hughes, I 49, n. 1 
 
 V. Morgan, g 56, n. 1 
 
 V. Vaurhan,'g9, n. 12 
 
 Robinson c. P.atchelder, g 36, n. 11 
 V. Chandler, g 52, n. 1 
 
 V. ." I 52! n! 7
 
 xxn 
 
 Table of Cases. 
 
 Robinson v. Ins. Co., § 18; n. 1 
 
 V. Kice, § 48, n. 3 
 
 Robson V. Miller, § 52, n. 18 
 Rodgers v. Niles, g 52, n. 9 
 
 V. Woodruti', § 45, n. 5 
 
 Rodrigines v. llabershaw, § 47, 
 
 n. 9 
 Roe V. Bacheldor, § 57, n. 13 
 Rogers v. Ackerman, § 56, n. 1 
 
 V. Niles, §52, n. 5 
 
 V. Phillips, § 10, n. 2 
 
 Rolland v. Gundy, § 2, n. 2 
 Rommel v. Wingate, § 26, n. 7 
 Rootv. Lord, § 33, n. 1 
 
 V. , § 40, n. 1 
 
 Rose V. Beatie, § 54, n. 3 
 
 V. Hurley, § 55, n. 27 
 
 Rossv. Welch, § 11, n. 10 
 Russell V. Carrington, § 23, n. 1 
 
 V. Minor, § 32, n. 3 
 
 ^,. , § 40, n. 12 
 
 Rutter V. Blake, § 60, n. 4 
 Ryan v. Dayton, § 20, n. 3 
 
 V. Tomlinson, § 8, n. 3 
 
 V. Ulmer, § 50, n. 2 
 
 Ryder v. Neitge, § 54, n. 12 
 
 S. 
 
 Sage V. Sleutz, § 33, n. 1 
 
 ^. ^ § 40, n. 1 
 
 w. , I 40, n. 5 
 
 Sahlman v. Mills, § 11, n. 9 
 Sale V. Darragli, § 10, n. 7 
 Sales V. flickman, § 15, n. 8 
 Salmon Falls Mf. Co. v. Goddard, 
 
 § 14, n. 5 . 
 
 V. , § 39, n. 1 
 
 Salmon v. Boyken, § 27, n. 8 
 
 V. Webster, § 3, n. 2 
 
 Salter v. Wool lams, § 24, n. 6 
 Sanborn v. Flagler, | 13, n. 8 
 
 V. Folger, § Ifi, n. 4 
 
 V. Kittridge, § 2, n. 3 
 
 Sanderlin v. Trustees, § 9, n. 8 
 Sanders v. Keber & Miller, § 33, 
 
 n. 8 
 
 V. , § 40, n. 3 
 
 Sands v. Lyon, § 36, n. 4 
 
 V. Taylor, § 28, n. 3 
 
 y_ , § 50, n. 4 
 
 Sandwich Mfg. Co. v. Feary, § 62, 
 
 n. 26 
 
 V. Tindle, § 62, n. 4 
 
 y. _ § 62, n. 25; § 62, 
 
 n. 28 
 Sargent v. Currier, § 48, n. 1 
 
 Sargent v. Gile, § 33, n. 10 
 
 y, , § 44, n. 3 
 
 V. Graham, § ST), n. 1 
 
 V .Metcalf. §40, n. 1 
 
 Saunderson v. Jackson, § 16, n. 5 
 Savings Association v. O'Conner, 
 
 § 48, n. 14 
 Savoury v. Chapman, § 37, n. 4 
 Sawyer v. Fisher, § 33, n. 1 
 
 V. Nichols, § 1 1, n. 1 
 
 • V. , § 1 1 , n. 3 
 
 V. Ware, § 9, n. 7 
 
 Shenkev. Rowell, § 18, n. 1 
 Schlesinger v. Stratton, § 44, n. 3 
 Schneiders. Norris, § 16, n. 5 
 School District v. Dauchy, § 20, 
 
 n. 1 
 
 V. , § 20, n. 2 
 
 Schuyler v. Ross, § 47, n. 13 
 Scott V. Hix, § 48, n. 6 
 
 V. Raymond, § 55, n. 17 
 
 Scranton v. Clark, § 48, n. 6 
 
 V. Mechanics' Trading Co., § 
 
 57, n. 17 
 
 V. , § 62, n. 40 
 
 Sedgwick v. Cottingham, § 28, n. 2 
 Seed V. Lord, § 35, n. 1 
 Seeds v. Simpson, § 58, n. 9 
 Sellers v. Johnson, § 34, n. 3 
 Selser v. Roberts, § 50, n. 2 
 
 V. , § 50, 11. 3 
 
 V. , I 50, n. 5 
 
 Sere v. McGoveni, § 40, n. 13 
 Seris v. Beliocg, § 22, n. 1 
 Sewell V. Ileiirv, § 33, n. 1 
 
 V. Fitch, §"9, n. 12 
 
 Seymour v. Bennett, § 18, n. 1 
 Shattuck V. Green, § 4S, n. 8 
 Shaw V. Hurd, § 19, n. 2 
 
 V. Smith, §21, n. 4 
 
 V. Turnpike Co., § 18, n. 1 
 
 Shenk v. Saunders, § 33, n. 2 
 
 V. , § 39, n. 5 
 
 Shepherd v. Paybus, § 53, n. 2 
 
 V. Pressev, § 10, n. 3 
 
 V, , I 10, n. 5 
 
 V- , I 1 1, n. 4 
 
 V. , § 11, n. 14 
 
 Sherman v. Champlain Trans. Co., 
 
 § 48, n. 10 
 Shipman v. Horton, § 2, n. 4 
 Shireman v. Jackson, § 40, n. 1 
 Shoenberger v. McEwen, § 52, 
 
 n. 14 
 Shurtleir V. Willard, § 24, n. 2 
 Simpson v. Krumbick, § 11, n. 1 
 
 V. Maritson, § 27, n. 2 
 
 V. Shackelford, § 40, n. 3
 
 Table of Cnses. 
 
 XXIU 
 
 Simpson v. Wiggin, ^ ')6. n. 8 
 Sitnond v. Braildon, § ')»), ii. 1 
 4Sims V. Howell. § ")2, n. 5 
 
 V. , jJ 52, n. IS 
 
 V. , I 53, n. 11 
 
 Singer Mfg. Co. v. Tread way, § 41, 
 
 n. 9 
 
 V. Cole, §41. n- 9 
 
 Small V. Franklin Miiiiui; Co., § 
 
 34, 11. 1 
 Smalley v. Hendrickson, § 58, n. 7 
 Smith V. Bank of the State, § 47, 
 
 n. 9 
 
 V. Ferrand, § 34, n. 1 
 
 V. Foster, g 33, n. J 
 
 V. Hudson, § II, n. 12 
 
 V. Justice, § 5"i, n. 10 
 
 V. Kindall,§ 41, n. 7 
 
 V. Lewis, § 19, n. 2 
 
 V. , S -&, n. 7 
 
 V. , I 3U, n. 2 
 
 V. Lynes, § 33, n. 9 
 
 V. , § 35. n. 12 
 
 V. Miller, | 34, n. 2 
 
 V. Tilton, I 17, n. 2 
 
 V. Weaver, § 1, n. 1 
 
 Snow V. Miles, § 3, n. 2 
 
 V. Schomacker Mfg. Co., § 52, 
 
 n. 11 
 
 V. , 3 55, n. 31 
 
 V. , I 57, n. IS 
 
 V. Warner, § 1 1, n. 2 
 
 Snyder v. Neefus, § 16, n. 9 
 
 Sohn V. Jervis, § 25, n. 1 
 
 South Bend Iron Works v. Cott- 
 
 rell, § 43, n. 4 
 Southwestern Freight Co. v. 
 
 Standard, § 32, n. 10 
 Southern Ins. Co. v. Cole, § 9, 
 
 n. 4 
 South erland v. Gilmour, g 18, n. 1 
 Southwell V. Breezly, § 26, n. 2 
 Southworth v. Smith, § 36, n. 4 
 S. P. Babcock v. Trice, § 53, n. 10 
 S. P. Ender v. Scott, § 55, n, 1 
 S. P. Humphreys v. Comline, § 47, 
 
 n. 14 
 S. P. Joslin V. Coughlin, g 49, n. 3 
 S. P. Moore v. McKinlay, § 46, 
 
 n. 1 
 Sparks V. Missick, g 48, n. 12 
 Spencer v. Cone, § 9, n. 12 
 Speckler v. Marsh, g 38, n. 2 
 Sprague v. Blake, § 10, n. 7 
 
 V , § 12. n. 5 
 
 Stadtfield r. Huntsman, § 41, n. 17 
 Stanley v. Gaylord, § 2, n. 1 
 Startup V. Macdonaid, § 27, n. 6 
 
 State V. Gaellard, § 54, n. 1 
 Steam Saw Mill A, Lumber Co. v. 
 
 (iittshall, § II, n. lU 
 Steamship Co. v. United States, 
 
 g 19, n. 2 
 Steel Works 7j. Dewey, g 23, n. 5 
 Stephens v. Baird, g 29, n. 3 
 Stewart v. Marnell, 'i 27, n. 8 
 Stone V. Browning, g 10, n. 3 
 
 V. , g 11, n. 13 
 
 V. Dennison, g 8, n. 1 
 
 V. , g8, n. 3 
 
 V. Elberly, g 2, n. 3 
 
 Storm V. Smith, g 48, n. 1 
 
 V. , g 4s, n. 6 
 
 Story V. Hamilton, g 8, n. 3 
 Street v. Chapman, g 52, n. 9 
 Strong V. Dods, g II, n. 12 
 Strouss V. Ross, g 19, n. 1 
 Stubbs V. Lund, j/ 4"), n. 3 
 Suberv. Pullin, g 9. n. 13 
 Sullivan v. Byrne, § 18, n. 1 
 Summers v. Vaughan, g 55, n. 38 
 Sumner v. Adams, g 19, n. 2 
 
 V. Cotley, g 40, n. 3 
 
 V. Woods, g 33, n. 1 
 
 V. , g 40, n. 3 
 
 V. , g41,n 10 
 
 Supple V. Gilmour, g 28, n. 2 
 Sweet V, Bradley, g 5-'), n. 1 
 
 V. Colgate, g 40, n. 1 
 
 V. Shumway, g 30, n. 7 
 
 V. Titus, g 34, n. 1 
 
 Swire v. Francis, g 37, n. 6 
 Symonds v. Hall, g 2, n. 3 
 Sypert v. Sawyer, g 60, n. 3 
 
 T. 
 
 Tasker v. Bartlett, g 36, n. 4 
 Taymon v. Mitchell, g 49, n. 1 
 Taylor v. Richardson, g 24, n. 2 
 
 V. Risley. g 19, n. 2 
 
 V. United States, g 19, n. 2 
 
 Tenny v. Cowles, g 56, n. 15 
 Terhune v. Diver, g 55, n. 9 
 Terrv v. Wheeler, g 2, n. 2 
 
 'v. , g 24, n. 7 
 
 Thayer v. Brackett, g 36, n. 11 
 
 V. Luce, g 14, n. 4 
 
 r. , g 16, n. 1 
 
 Thetford v. llubbard, g 36, n. 8 
 Thomas v. Simpson, g 52, n. 19 
 
 V. Shoemaker, g 27, n. 2 
 
 Thompson v. Alger, g 12, n. 5
 
 XXIV 
 
 Table of Cases. 
 
 Thompson v. Alger, § 10, n. 7 
 
 V. Ashton, I 47, n. 10. 
 
 V. — — , § -'4, 11. 5 
 
 V. Blanchai-d, § 29, n. 2 
 
 V. Con over, § l! I , n. 2 
 
 V. Liiul-ilev, § 54, n. 1 
 
 V. Walker, § 40, n. 3 
 
 Thomson-Houston Electric Co. v. 
 Brush-Swan Electric Light & 
 Power Co., § o8, n. a 
 Thorenson v. Minneapolis Har- 
 vester Works, § 59, n. 1 1 
 
 V. , § r.2, n. 33 
 
 Thome v. McVeigh, § 50, n. 7 
 
 V. , § .")5, n. 1 1 
 
 V. Mosher, g 36, n. 4 
 
 Thornton v. Kellv, § 14, n. 2 
 Thrall V. Hill, §4, n. 1 
 Thurston v. Spratt, § 48, n. 1 
 Tibbettv. Morton, § 11, n. 3 
 Tibbets v. Towle, § 33. n. 1 
 Tilton Safe Co. v. Tisdale, § 52, 
 n. 5 
 
 V. , § 52, n. 16 
 
 Timrod v. Schoolbred, § 54, n. 1 
 Tipton V. Triplett, § 48, n. 9 
 Tisdale v. Harris, § 9, n. 4 
 Towell V. Gatewood, § 56, n. 17 
 Tower v. Tudhope, § 11, n. 6 
 Townsend v. Hargraves, § 8, n. 1 
 
 V. , § 31, n. 1 
 
 Torkelson v. Jorgenson, g 55, n. 7 
 Towell V. Gatewood, § 55, n. 38 
 Towsley v. Moore, § 8, n. 3 
 Trevor v. Wood, § 13, n. 1 
 
 V. , § 3'.*, n. 3 
 
 Trigg V. Farris. § 4S, n. 3 
 Trimmier v. Thomson, § 54, n. 4 
 Trieber v. Andrews, § 24, n. 6 
 Tucker v. Buffington, g 24, n. 3 
 
 V. Woods, § 3, n. 2 
 
 Tufts V. Cleveland, § 40, n. 4 
 
 V. Plymouth Gold Mining 
 
 Co., § 13, n. 7 
 Tunnell v. Osborne, § 62, n. 17 
 TurnbuU v. Seymour, § 62, n. 12 
 Turner v. Coolidge, § 24, n. 3 
 Turner v. Moore, § 32, n. 1 
 Tutle V. White, § 48, n. 1 
 Tuttle V. Love, § 3, n. 2 
 Tuxworth V. Moore, § 24, n. 6 
 Tyler v. Strang, § 22, n. 7 
 V. , § 22, n. 11 
 
 u. 
 
 Ulrich V. Stohrer, § 52, n. 15 
 
 United States v. New Orleans Ry., 
 
 § 40, n. 18 
 
 V. , § 42, n. 7 
 
 Underwriters' Wrecking Co. v. 
 
 Underwriters, § 34, n. 6 
 Upton Mfg. Co. V. Huiske, § 62, 
 
 n. 31 
 Utley V. Donaldson, § 3, n. 2 
 
 Van Bracklin v. Fonda, § 54, n. 13 
 Vandawalker v. Osmer, § 56, n. 9 
 Van Wren v. Flynn, § 41, n. 18 
 Van Wert v. Railway, § 10, n. 7 
 Van Wyck v. Allen, § 51, n. 1 
 Vaughn v. Hopson, § 40, n. 10 
 Vassar v. Camp, § 39, n. 3 
 Vent V. Osgood, § 2, n. 4 
 Vincent v. Germond, g 12, n. 5 
 Voss V. McGuire, § 50, n. 1 
 Vowter V. Griffin, g 9, n. 1 
 
 w. 
 
 Wagner v. Eggleston, § 3, n. 2 
 
 V. Hallack, § 33, n. 5 
 
 Wait V. Green, § 33, n. 9 
 Wakefield v. Lighgow, § 32, n. 6 
 Walcott V. Mount, g 52, n. 5 
 
 V. , § 53, n. 4 
 
 Walker v. Blake, § 44, n. 3 
 
 V. Mitchell, § 41, n. 2 
 
 V. Pue, § 52, n. 16 
 
 Walsh V. Barton, § 14, n. 4 
 Walter v. Cody, § 52, n. 1 
 
 V. Ross, § 45, n. 3 
 
 Walton V. Cody, § 52, n. 2 
 Wangler v. Franklin, § 40, n. 1 
 Warden v. Sycamore Harvester 
 
 Co., § 57, n. 16 
 Warder v. Fisher, § 57, n. 1 
 Warner v. Arctic Ice Co., § 53, 
 
 n. 12 
 
 V. Porter, § 39, n. 6 
 
 V. Roth, g 40, n. 3 
 
 V. Van Pelt, § 55, n. 13 
 
 Warren v. Milliken, g 24, n. 6 
 V. Philadelphia Coal Co., § 
 
 49, n. 1 
 
 V. Wheeler, § 59, n. 3 
 
 V. Winne, § 13, n. 11 
 
 Wartman v. Breed, § 11, n. 3 
 Warwick v. Noakes, § 32, n. 6 
 Waterbury v. Russell, § 55, h. 26
 
 Table of Cases. 
 
 XIV 
 
 Waterman v. Meigs, § 9, n. 10 
 Waters Heating Co. v. Mansfield, 
 
 § 3S, n. 2 
 Wat kins v. Paino, g 2'), n. 1 
 Watson V. Bunill, ji; .')4, n. 7 
 Walts V. Divor, g 37 n. 8 
 Wasljburn Iron Co. v. Russell, § 
 
 28, n. 2 
 Washington v. Johnson, g 44, n. 3 
 Webber v. Davis, § 5.'), n. 14 
 Webb V. Fairmaner, § 27, n. 2 
 Webster u. Phoenix Insurance Co., 
 
 § 57, n. 4 
 Wediligen v. Boston Elastic Fabric 
 
 Co., § 34, n. 1 
 Weed V. Pago, § 58. n. 5 
 Weeks r. Hull, § 27, n. 3 
 Weigei-r. Goukl, § 52. n. 18 
 W'eimerv. Clement, ^ 56, n. 1 
 Welsh V. Carter, g 49.' n. 3 
 
 V. Gossler, § 27. n. 1 
 
 V. , g 30. n. 8 
 
 Wells v. Setwood, § 61,n. 1 
 
 V. Spears. § 5."). n. 34 
 
 Wendall v. Osborne, § 57, n. 16 
 
 „. , § 62. n. 19 
 
 West V. Bolton, § 33, n. 1 
 
 V. , § 40, n. 1 
 
 West Republic Mining Co. v. 
 Jones, § 50, n. 2 
 
 V. , § 50. n. 3 
 
 West Stockton Iron Co. v. Niel- 
 
 Ron, § 4f), n. 3 
 Wethereli v. Neilson, § 49, n. 3 
 Weybrich v. Harris, § 59, n. 6 
 Wharton v. Mo. Car Foundry Co., 
 §27, n. 10 
 
 V. 0' Hara, § 59, n. 3 
 
 Wheeler v. Knaggs, § 36, n. 2 
 
 V. , § 36, n. 5 
 
 V. Reed. § 55, n. 9 
 
 — — V. Wheeler, § 4, n. 1 
 Wheeler & Wilson Mfg. Co. v. Heil, 
 § 41, n. 9 
 
 V. Thompson, § 61, n. 6 
 
 Wheelhouse v. Parr, § 25, n. 6 
 Whitaker v. Eastwick, § 48, n. 1 
 Whittaker v. Eastwood, g 49, n. 2 
 
 V. McCormick, § 51, u. 2 
 
 V. , § 53, n. 4 
 
 V. Williams. §29, n. 5 
 
 Whitcomb v. Whitney, § 22, n. 10 
 
 V. Woodworth, g 41, n. 15 
 
 White v. Corliss, § 39, n. 2 
 
 V. Day, § 18, n. 1 
 
 (. Leighton, jJ 37, n. 6 
 
 V. Mann, § 20, n. 3 
 
 V. Miller, g 52, n. 4 
 
 White V. Miller. § 53, n. 4 
 Whitefield v. MeLeod, g .54, n. 1 
 Whitehead <fe .\therton Mche. Co., 
 V. Ryder, g 55, n. 23 
 
 V. , 2 6 1 . n . 7 
 
 Whitehead v.' Tuckett, g 37, n. 7 
 Whiting V. Farraiid, § 25, n. 4 
 Whitman v. Freese, § 30, n. 7 
 Wliitmoie v. Gibbs, § 9, n. 1 
 V. Iron Co , § 52, n. 18 
 
 V. Eaton. § 33, n. 1 
 
 V. , g 35, n. 1 
 
 V. Harwood, § 48, n. 8 
 
 V. Sutton, § 56, n. 1 
 
 Whittowsky v. Wa^-son, g 5, n. 3 
 Whitewell v. Vincent, ^ 32, n. 3 
 Wii^hton V. Bowlev, § 23, n. 3 
 
 v. , § 25. n. 4 
 
 W^igtins V. Hunter, ^ 59. n. 11 
 Wilcox 0. Hall, § 52,' n. 18 
 
 .Silver Plate Co. v. Green, § 25, 
 
 n. 1 
 Wilkinson v. Holiday, g 22, n. 1 
 
 V. , ? 22, n. 10 
 
 V. Holliday, § 23, n. 1 
 
 Wilis V. Robinson, g 35, n. 2 
 Williams v. Bacon, § 14, n. 4 
 
 V. Berry, g 1. n. 1 
 
 V. Getty, g 37, n. 7 
 
 y. Ingram, g 47, n. 13 
 
 V. Jordan, g 14, n. 3 
 
 V. Merle, g 2, n, 1 
 
 V. Miller, g 2, n. 3 
 
 V. Morris, g 13, n. 3 
 
 Williamson v. .^amnions, g 48, n. 3 
 
 V. Summons, g 48, n. 1 
 
 Willings V. Consequa, g 57, n. 8 
 Willmott V Smith, g 37. n. ^ 
 Wilmot y Hurd, g 55, n. 36 
 Wilson V. Crockett, g 2, n. 1 
 V. Marsh, g 60, n. 8 
 
 V. , g 60, n. 9 
 
 V. Rudv, g 62, n. 45 
 
 V. Shackletord. g -19, n, 3 
 
 V. Wadleigh, g 37, n. 4 
 
 Winchester v. King, g 40, n. 21 
 Windsor v. China, g 27, n. 3 
 Winsor v. Lombard, g 30, n, 5 
 
 I'. , g .Kt, n. 6 
 
 Wittowsky v. Wasson. g 1, n. 1 
 Wolcott v. Mount, g .30, "n. 5 
 Wolf V. Dietzsch. g 44, n, 3 
 
 V. Marsh, g 19, n. 2 
 
 Woodburn v. Woodburn, g 34, n. 1 
 Wood V. Ashe, g 54. n. 4 
 
 V. . g 6(t. n. 8 
 
 V. Hitchcock, g 36, n. 11 
 
 V. Manley, g 24, n 6
 
 XXVI 
 
 Table of Cases. 
 
 Woodu. Shultus, § Su 
 Woodley v. Davis, § 57, n. 2 
 Word V. Cavin, § 48, n. 3 
 Worrall v. Munn, § 16, n. 2 
 Worth V. McConnell, § 62, n. 6 
 Worthy v. Johnson, § 48, n. 14 
 Wren v. Wardlaw, § 55, n. 33 
 Wright V. Barns, ? 26, n. 7 
 
 V. Hart, § 49, n. 1 
 
 V. , § 52, n. 5 
 
 ■ w. Solomon, § 37, n. 7 • 
 
 ■ V. Weed, § 28. n. 2 
 
 V. Weeks, § 13, u. 10 
 
 Wright V. Weeks, § 15, n. 8 
 Wyck V. Allen, § 53, n. 4 
 
 York Co. Bank v. Stein, § 37, n. 7 
 Young u. Blaisdell, § 10, n. 3 
 
 V. Kansas Mfg. Co. § 35, n. 1 
 
 V. Paul, § 16, n. 1 
 
 Z. 
 
 Zaleski v. Clark, § 18, n. 1
 
 PART I. 
 
 GENERAL REQIHSITES OF CONTRACTS OF SALE. 
 
 CHAPTER L 
 
 ESSENTIAL ELEMENTS OF CONTRACT. 
 
 Article 1. — Definition and Elements of Salb. §§ 1-6. 
 CHAPTER n. 
 
 ELEMENTS REQUIRED BY STATUTE. 
 
 Article 2. — Statute of Frauds. §§ 7-16.
 
 CONDITIONAL SALES. 
 
 CHAPTER I. 
 
 essential elements of contract. 
 Article 1. — Definition and Elements of Sale. 
 
 § L Definition. 
 
 § 2. Competent Parties. 
 
 § 3. Mutual Assent. 
 
 § 4. Subject of Sale. 
 
 § 5. Consideration. 
 
 § 6. Transfer of Property. 
 
 § i. Definition. Whether a sale is absolute or 
 conditional, the same elements are essential, for in 
 the latter class of sales the conditions invariably ap- 
 ply to some of the essential elements of an absolute 
 sale. The definition of a sale and its essential ele- 
 ments are therefore material to the proper consider- 
 ation of the subject of conditional sales. 
 
 A sale may be defined to be a mutual assent by 
 competent parties to the transfer of property for a 
 determined consideration to be paid therefor.^ The 
 essential elements of a contract of sale are therefore — 
 competent parties ; mutual assent ; property the sub- 
 ject of sale, the transfer thereof, and the considera- 
 tion to be paid therefor. 
 
 (1) Wittowsky v. Wasson, 71 N. C. 451 ; Martin v. Adams, 104 Mass. 
 262; Smith v. Weaver, 90 111. 392; Williams v. Berry, 8 How. (U. S.) 
 544; Mackanessu. Long, 85 Penn. St. 158; Massey v. State, 74 Ind. 368. 
 
 § 2. Competent Parties. As a general principle, 
 no one can acquire a better title to property than 
 
 (3)
 
 4 Conditional Sales. 
 
 that of his vendor, however innocent he may he 
 in his purchase.^ Nor can title be acquired in prop- 
 erty which has been lost or stolen ; and the owner 
 may repossess himself of the same if found in the 
 possession of the finder, thief, or their vendee.^ Only 
 the owner, his agent or legal representative, can give 
 a valid title. Administrators or executors, officers 
 of courts having jurisdiction, bailees, mortgagees, 
 pledgees, or their assigns, are legal representatives, 
 but can convey such title only as the original owner 
 may have had.^ 
 
 All persons competent to contract may buy. Dis. 
 abilities, such as mental or legal, will not render the 
 sale absolutely void, but voidable.* Disabilities may 
 be permanent, as idiocy or insanity ; or temporary, 
 as intemperance, infancy, or coverture. But in many 
 states the disability of coverture has been removed 
 by statute, and married women are thereby author- 
 ized to contract as though feme soles. 
 
 (1) Stanley V. Gaylord, 1 Cush. (Mass.) 536; Gilmore v. Newton, 9 
 Allen (Mass.), 171; Bearce v. Bowker, 115 Mass. 129; Moody v. Blake, 
 117 Mass. 23; Prime v. Cobb, 63 Me. 200; Bryant v. Whitcher, 52 
 N. H. 158; Curtis v. Cane, 32 Vt. 232; Williams v. Merle, 11 Wend. 
 (N. Y.) 80; Klein v. Sebald, 89 111. 540; Wilson v. Crockett, 43 Mo. 218; 
 McMahon v. Sloan, 12 Penn. St. 229. 
 
 (2) HoflFmanv. Carow, 20 Wend. 21; 22 Wend. 285; Dame v. Bald- 
 win, 8 Mass. 519; Gilmore v. Newton, 9 Allen (Mass.), 171 ; Heckle v. 
 Lurvey, 101 Mass. 344; Eolland w. Gundy, 5 Ohio, 202; Curtis u. Cane, 
 32 Vt. 232; Pease v. Smith, Gl N. Y. 477; Brickenbridge v. McAflFee, 
 54 Ind. 141 ; McGrew v. Broder, 14 Martin (La.), 17; Beazeley v. Mitch- 
 ell, 9 Ala. 780. 
 
 (3) Symonds v. Hall, 37 Me. 354; Combs v. Gordon, 59 Me. Ill; 
 Bryant v. Whitcher 52 N. H. 158; Griffith v. Fowler, 18 Vt. 390; San- 
 born V. Kittridge, 20 Vt. 640; Champney v. Smith, 15 Gray (Mass.), 512; 
 Johnson v. Babcock, 8 Allen (Mass.), 583; DufFam v. Dean, 8 Cush. 
 (Mass.) 41; Williams v. Miller, 16 Conn. 144; Bartholomew v. Warren, 
 32 Conn. 102; Stone v. Elberly, 1 Bay. (S. C.) 317; Homesley v. Hogue, 
 4 Jones L. (N. C.) 481; Avendale v. Morgan, 5 Sneed (Tenn.), 703; 
 Boggs V. Fowler, 16 Cal. 559.
 
 Essential Elementa of Contract. I 
 
 (4) TTovey v. Ilovey, ')5 Me. 256; Dennett v. Dennett, 44 N. H. 531 
 Mitchell V. Kingman, 5 Pick. 431 ; Rice v. Peet, 15 John.s. (X. Y.) .'^03 
 Grant v. Thompson, 4 Conn. 203; Shipman v. Horton, 17 Conn. 481 
 Ventv. Osgood, 19 Pick. 582; French v. Ilickox, 8 Ohio, 214; Bates u. 
 Ball, 72 111. 108. 
 
 ^ 3. Mutual Assent. Assent of competent parties 
 is an essential element of all contracts or agreements, 
 and the assent must be both mutual and voluntary.^ 
 But this assent need not be expressed, but may be 
 implied from the language, conversation, or conduct 
 of the parties.^ 
 
 If a proposition to sell be made by letter or tele- 
 gram, its acceptance may be by the same means ; and 
 conditional propositions, to continue in force for a 
 limited time, must be accepted before the expiration 
 of the time designated. 
 
 (1) Lincoln v. Johnson, 43 Vt. 74; Darden v. Lovelace, 52 Ala. 290; 
 Gardner v. Lane, 12 Allen (Mass.), 39; Butler v. Thompson, 92 U. S. 
 412. 
 
 (2) Peckerell v. Rose, 87 111. 263; Abbott v. Shephard. 48 N. H. 16; 
 Bruce v. Bishop, 43 Vt. 1(31 ; Gowing i». Knowles, 118 Mass. 232; Jen- 
 ness V. Iron Co., 53 Me. 20; Crocker v. New London R. Co., 24 Conn. 
 262; Carr v. Duval, 14 Pet. (U. S.) 77; Snow v. Miles, 3 Cliff. (U. S. C. C.) 
 608; Utley v. Donaldson, 94 U. S. 29. See also Plant Seed Co. v. Hall, 
 14 Kan. 553; Tuttle v. Love, 7 Johns. (N. Y.)470; Tucker v. Woods, 12 
 Johns. (N. Y.) 190; McKinley v. Watkins, 13 111. 140; Maclay v. Har- 
 vey, 90 111. 525; Wagner v. Eggleston, 49 Mich. 218; Salmon v. Web- 
 ster, 4 Col. 353. 
 
 ^ 4. Subject of Sale. To constitute a sale, there 
 must be something which is the subject of sale. A 
 hope or expectation of means, founded on a right in 
 being, may be the subject of sale, because in such 
 case there is a potential existence. But a mere pos- 
 sibility or contingency, not founded upon a right or 
 coupled with an interest, can not.^ If at the time of 
 sale the subject of sale has ceased to exist by any 
 cause, there would be no sale, and if the price had 
 been paid, it may be recovered.'-
 
 6 Conditional Sales. 
 
 (1) Wheeler v. Wheeler, 2 Met. (Ky.) 474; Hutchinson v. Ford, 9 
 Bush (Ky.), 318; Jones v. Richardson, 10 Mete. (Mass.) 481; Rice v. 
 Stone, 1 Allen (Mass.), 566; Henshaw v. Bank, 10 Gray (Mass.), 571; 
 Low V. Pew, 108 Mass. 350; Thrall v. Hill, 110 Mass. 238; Allen v. 
 Goodenow, 71 Me. 420; Pierce v. Emery, 32 N. H. 484. 
 
 (2) Benjamin on Sales, § 76. 
 
 § 5. Consideration. Price is an element of every 
 valid sale, and must be either determined or deter- 
 minable. It need not be paid down, but there must 
 be an agreement to pay. In the absence of a fixed 
 price, the law would imply a promise to pay as much 
 as the property was reasonably worth. ^ 
 
 If the parties agree that the price of the goods sold 
 shall be fixed by the valuation of third parties desig- 
 nated by them, and the price is determined by them, 
 this becomes a part of the contract, and both parties 
 are bound by it.- If there be a delivery of goods in 
 such a case, and the vendee shall prevent the valua- 
 tion agreed upon — as by a destruction or consumption 
 of the goods — or the valuers should disagree, the ven- 
 dor could recover their value, to be determined by a 
 
 Where a quantity of wheat was sold and delivered, 
 the price to be determined by the quotations, upon a 
 day to be fixed by the vendee, and the Avheat was de- 
 stroyed before the day had been so fixed, but the 
 vendee did afterward name the day, it was held that 
 the sale was valid, and that the vendor was entitled 
 to the payment of the price as fixed by the agree- 
 ment.^ So, where there was a sale of the rigging of a 
 vessel, to be paid for ninety days after the first return 
 trip, and the vessel was lost, it was held that the 
 price of the rigging was due and enforceable, in ninety 
 days after the time usually required for the trip.^ 
 
 (1) James v. Muir, 33 Mich. 223; Callaghan v. Myers, 89 HI. 56'^. 
 
 (2) Fuller v. Bean, 34 N. H. 301 ; Brown v. Bellows, 4 Pick. 189; Nut-
 
 Essential Elements of Contract. 7 
 
 ting V. Dickinson, 8 Allen (Mass.), 540; Cunningham v. Ashbrook, 20 
 Mo. .053; McCandlish v. Newman, 22 Penn. St. 400; Mason v. Piielps, 48 
 Mich. 126; Newlan v. Dunham, 60 111. 233; Boss v. Veltum, 28 Minn. 
 512. 
 
 (3) Wittowsky v. Wasson, 71 N. C. 456; Clarke v. Westrope, 18 C. B. 
 (Eng.) 765. 
 
 (4) McConnell v. Hughes, 29 Wis. 537. 
 
 (5) Randall v. Johnson, 59 Miss. 317. 
 
 5 6. Transfer of Property, It has been held in 
 some cases that delivery, as between the vendor and 
 vendee, is not essential to pass title to the property.^ 
 However, it becomes essential if the delivery by the 
 terms of sale becomes one of the conditions thereof — 
 which subject is more fully discussed in Article 6. 
 
 (1) Ilooban v. Bidwell, 16 Ohio, 509; 47 Am. Dec. 386; Griffin v. 
 Chubb, 7 Tex. 603 ; 57 Am. Dec. 85.
 
 Conditional Sales. 
 
 CHAPTER n. 
 
 ELEMENTS REQUIRED BY STATUTB. 
 
 Article 2. — Statutes of Frauds. 
 
 § 7. Statutory Provisions. 
 
 § 8. Aflfects Remedy only. 
 
 § 9. Application. 
 
 § 10. Acceptance of Goods. 
 
 § 11. Constructive Acceptance. 
 
 § 12. Earnest and Part Payment. 
 
 § 13. Form of Memorandum. 
 
 § 14. Parties to Memorandum. 
 
 § 15. Price Designated in Memorandum. 
 
 § 16. Signing of Memorandum. 
 
 5 7. statutory Provisions. The English statute of 
 frauds, which may be found substantially in the 
 statutes of the various states of the American Union, 
 and is applicable to the class of sales under consid- 
 eration, provided that contracts not to be performed 
 within a year from the making thereof, must be in 
 writing ; and that no contract for the sale of any 
 goods, wares or merchandise, for the price of ten 
 pounds sterling, or upward, shall be allowed to be 
 good, except the buyer shall accept part of the goods 
 so sold, and actually receive the same, or give some- 
 thing in earnest to bind the bargain, or in part pay- 
 ment, or that some note or memorandum in writing 
 of the said contract be made and signed by the par- 
 ties to be charged by such contract, or their agents 
 thereto lawfully authorized. 
 
 Thus, in all states, except in Pennsylvania and 
 Korth Carolina, no action can bo brought to charge 
 any person upon any agreement that is not to be per-
 
 Elements Required by SlatiUe. 9 
 
 formed within one 3^ear from the making thereof, un- 
 less the agreement, or some memorandum or note 
 thereof is in writing, and signed by the party to be 
 charged therewith, or by some other person there- 
 unto by him hiwfuUy authorized. But in New York, 
 Michigan, Wisconsin, Minnesota, Nebraska, Cali- 
 fornia, Oregon, Nevada, Washington, Dakota, Idaho, 
 Montana, Wyoming, Utah, Alabama, and Arizona, 
 the contract to be within the statute must "by its 
 terms " indicate that it is not to be performed within 
 a year from the making thereof. And in Delaware 
 and Alabama, in the sale of personal property, he 
 who may be lawfully authorized to sign the contract 
 or memorandum for the party to be charged, must be 
 authorized in writing. 
 
 Clause 16 of the English statute is followed in 
 Colorado, Connecticut, Dakota, Florida, Georgia, 
 Idaho, Indiana, Iowa, Massachusetts, Michigan, 
 Minnesota, Nebraska, New York, South Carolina, 
 Wisconsin, and Wyoming ; and no contract for the 
 sale of goods, wares, and merchandise for the price 
 of fifty dollars or more is valid, except the buyer ac- 
 cept and receive ^Dart of the goods sold, or give some, 
 thing in earnest to bind the bargain, or in part 
 payment, or unless some note or memorandum in 
 writing of the bargain be made and signed by the 
 parties to be charged therewith, or their agents there- 
 unto lawfully authorized. While in Maine, New 
 Jersey, Missouri, and Arkansas the limit is thirty 
 dollars; in New Hampshire, thirty-three dollars; in 
 Arizona, one hundred dollars ; in California and 
 Idaho, two hundred dollars ; in Montana and Utah, 
 three hundred dollars ; in Vermont, forty dollars ; 
 and in Florida and Iowa there is no fixed limitation 
 as to value.
 
 10 Conditional Sales. 
 
 In Greorgia, it is specifically provided that the stat- 
 ute shall apply, \vhethcr the goods, the subject of 
 sale, are in esse or not ; but in Iowa, thissection does 
 not apply where the personal property, the subject 
 of sale, is not, at the time of the contract, owned by 
 the vendor and ready for delivery, but labor, skill, or 
 money are necessary to be expended in producing or 
 procuring the same. While in California and Da- 
 kota, an agreement to manufacture a thing from ma- 
 terials furnished by the manufacturer or by another 
 person, is excepted from the provisions of the 
 statute. 
 
 And it is also provided, in New York, Indiana, 
 Michigan, Wisconsin, Minnesota, Nebraska, Cali- 
 fornia, Oregon, Nevada, Colorado, Dakota, Idaho, 
 Montana, Utah, and Arizona, that nothing contained 
 in the statute of frauds should abridge the powers of 
 a court to compel the specific performance of agree- 
 ments partly performed. 
 
 § 8. Affects Remedy only. The purpose of these 
 statutes is to prevent fraud and falsehood, by requir- 
 ing a party who seeks to enforce an oral contract, to 
 produce, as additional evidence, some written mem- 
 orandum signed by the party sought to be charged, 
 or proof of some act confirmatory of the contract re- 
 lied on. 
 
 They do not declare that the contract shall be void 
 or illeofal unless certain formalities are observed. If 
 executed, the effect of its performance on the rights 
 of the parties is not changed, and the consideration 
 may be recovered — the statutes afi'ecting the rem- 
 edy only.^ 
 
 Mr. Browne, in his work on "Statutes of Frauds," 
 says : " The operation, then, which the statute has
 
 Elements Required hij Statute. 11 
 
 upon a contract covered by it, is that no enforcement 
 of the contract can be had while the requiremeut.s of 
 the statute remain unsatisfied, if the party against 
 whom enforcement is sought chooses to insist upon 
 this defense ; the statute does not make the contract 
 illegal or void ; a contract which was legal and ac- 
 tionable before the statute, is legal since and notwith- 
 standing the statute, and is also actionable or en- 
 forceable if the making of the contract be followed by 
 compliance with the requirements of the statute. 
 Compliance with the requirements of the statute does 
 not constitute the contract ; the statute presupposes 
 an existing lawful contract, the enforcement of which 
 is suspended till the statute is satisfied."- Where 
 the contract has been in fact completely executed on 
 both sides, the rights, duties, and obligations of the 
 parties resulting from such performance, stand un- 
 affected by the statute.^ 
 
 (1) Townsend v. Hargraves, 118 Mass. 334; Stone v. Dennison, 13 
 Pick. 1 ; Basford V. Pearson, 9 Allen, 387; Nutting v. Dickinson. 8 Allen, 
 540. 
 
 (2) Browne, Statute of Frauds, § 115. 
 
 (3) Stone V. Dennison, 13 Pick. (Mass.) 1 ; Mnshat v. Brivard. 4 Dev. 
 (N. C.) 73; Ryan v. Tomlinson, 39 Cal. 639; Jellison v. .lordan, (>S Me. 
 373; Middlesex v. Osgood, 4 Gray (Mass.), 447; Wood v. Shultus, 4 Ilun 
 (N. Y.), 309; Day v. Railroad Co., 51 N. Y. 583; 89 N. Y. 616: Story v. 
 Hamilton, 86 N. Y. 616; Towsley v. Moore, 30 Ohio St. 184. 
 
 § 9. Application. We shall only have to do with 
 that section of the statute covering contracts for the 
 sale of goods, wares, and merchandise. So varied 
 and conflicting have been the decisions as to just 
 what sales the statute did apply, that wo do not here 
 attempt to harmonize them. For exam])le, it has 
 been held that sales of shares of stock, choses in ac- 
 tion, and the like, are not within the statute.^ While, 
 on the other hand, contracts for the sale of bank-notes/
 
 12 Conditional Sales. 
 
 promissory notes,^ shares of stock in an incorporated 
 company,"* wheat,^ cotton,*^ iron, as fast as manu- 
 factured,' and auction sales,^ liave each been held to 
 be within the statute of frauds. Contracts for the 
 sale of goods, wares, and merchandise, are not ex- 
 cluded from the operation of the statute of frauds 
 merely because they are executory.^ Nor does the 
 mere fact that the articles sold are not to be deliv- 
 ered immediately, take the case out of the statute. ^'^ 
 Or, as is more elaborately stated in the case of the 
 Passaic Mfg. Co. v. Hoffman, ^^ a contract for an ar- 
 ticle coming under the general denomination of 
 "goods, wares, or merchandise," made with one who 
 manufactures and sells that kind of commodity to all 
 who traffic in it, the quantity and the price being 
 agreed upon, is a contract within the meaning of the 
 statute of frauds, whether the manufacturer and ven- 
 dor has, when the order for the article is given, the 
 requisite quantity on hand, or has to manufacture it 
 afterward. But if what is clearly contemplated by 
 the contract is the skill, labor, care, or knowledge of 
 the one who fabricates the article, or if the article 
 would not have been produced, if the order had not 
 been given for it, or if, when produced, it is unfitted 
 for sale as a general article of merchandise, being 
 adapted only for use by the person ordering it, 
 then the contract is one for work and labor, and is 
 not within the statute of frauds. 
 
 It may be safely said, that the accepted ruling of 
 our courts is to the effect that an agreement to manu- 
 facture certain articles and furnish materials is not a 
 contract for the sale of goods, wares, or merchandise, 
 and therefore not within the statute of frauds. ^^ And 
 the same rule is applied where either labor, skill, or 
 money are, by the terms of the contract, to be ex-
 
 Elements Required by Statute. 13 
 
 pended in producing or procuring the subject of salo.^^ 
 A contract to send to Europe and have goods made 
 for another, has been held not to be within the stat- 
 ute, for it is a contract of agency and not of sale." 
 
 Where a sale consists of a number of articles at 
 the same time, neither of which is of the price lim- 
 ited by statute, but which in gross exceed that sum, 
 the contract is deemed to be entire, and to fall within 
 the provisions of the statute.^^ But where goods sold 
 by parol are to be delivered within a year, although 
 the price is not to be paid until after the lapse of that 
 time from the date of the sale,^*^ the statute would 
 not apply if the delivery in fact took place within the 
 year.-^'' 
 
 (1) Benj. on Sales, § 111 ; Whitmore v. Gibbs, 24 N. H. 484; Vowter 
 V. Griffin, 40 Ind. 593; Hudson v. Weir, 29 Ala. 294. 
 
 (2) Riggs V. Magrauder, 2 Cranch C. Ct. 143. 
 
 (3) Baldwin v. Williams, 3 Mete. (Mass.) 365. 
 
 (4) North V. Forest, 15 Conn. 400; Southern ln». Co. v. Cole, 4 Fla. 
 359; Calvin v. Williams, 3 Har. & J. (Md.) 38; Tisdale v. Harris. 20 Pick. 
 (Mass.) 9; Fine v. Hornsby, 2 Mo. App. 61. 
 
 (.')) Hooker v. Knob, 26 Wis. 511 ; Nichols v. Mitchell, 30 Wis. 329. 
 
 (6) Bowers v. Anderson, 49 Ga. 143; Grover v. Warfield, 50 Ga. "'■44. 
 
 (7) Sawyer v. Ware, 36 Ala. 675. 
 
 (8) Sanderlin v. Trustees, R. M. Charlt. (Ga.) 551; Davis v. Rowell, 2 
 Pick. (Mass.) 64; Davis v. Robertson, 1 Treadw. (S. C.) Const. 71. 
 
 (9) Cason v. ChuUy, 6 Ga. 554; Edwards v. Grand Trunk R. R. Co., 48 
 Me. 379; Crookshank v. Burrell, 18 Johns. (N. Y.) 58. 
 
 (10) Jackson v. Covert, 5 Wend. (N. Y.I 139; Waterman v. Meigs, 4 
 Cush. (Mass.) 497. 
 
 (11) Passaic Mfg. Co. v. Hoffman, 3 Daly (N. Y.), 405. 
 
 (12) Allen v. Jarvis, 20 Conn. 38; llightr. Ripley, 19 Me. 137; Mixer 
 V. Howarth, 21 Pick. (Mass.) 205; Spencer v. Cone, 1 Mete. (Mass.) 283; 
 Phillips V. McFarlane, 3 Minn. 109; O'Neil v. Mining Co., 3 Nev. 141; 
 Sewall V. Pitch, 8 Cow. (N. Y.)215; Bronsou v. Wiman, 10 Barb. (N. Y.) 
 406; Donovan v. Wilson, 26 Barb. 138; Parker v. Schenck, 28 Barb 
 38; Mead V. Case, 33 Barb. 202; Roberts v. Vaughn, 3 Sandf. (N. Y.) 
 1; Parsons v. Loucks, 4 Robt. (N. Y.) 216; Pitkin r. Noyes, 48 N. H. 
 294.. 
 
 (13) Bennett v. Nye, 4 Greene (Iowa), 410; Abbott v. Gilchrist, 38 
 Me. 260; Suber v. PuUin, 1 S. C. 273.
 
 14 Conditional Sales. 
 
 (14) Bird v. Muhlinbrink, 1 Rich. (S. C.) 199. 
 
 (15) Gilman v. Hill, .-.G N. II. 311. 
 
 (16) Johnson V. Watson, 1 Ga. 348. 
 
 (17) Rakes v. Pope, 7 Ala. 161. 
 
 5 10 Acceptance of Goods under the Statutes of 
 Fraud. We have seen thcit, under certain circum- 
 stances, in a majority of the states, acceptance of the 
 goods and chattels, the subject of sale, is essential. 
 It therefore becomes important to consider what acts 
 of the vendee amount to an acceptance within the 
 meaning and requirements of the statute of frauds. 
 
 Lord Blackburn,^ commenting on the English stat- 
 ute, says : " If we seek for the meaning of the en- 
 actment, judging merely from its words, and without 
 reference to decisions, it seems that this provision is 
 not complied with unless the two things concur ; the 
 buyer must accept, and he must actually receive, 
 part of the goods ; and the contract will not be good 
 unless he does both. And this must be borne in 
 mind, for as there may be an actual receipt without 
 any acceptance, so may there be an acceptance with- 
 out any receipt. In the absence of authority, and 
 judging merely from the ordinary meaning of lan- 
 guage, one would say that an acceptance of part of 
 the goods is an assent by the buyer, meant to be final, 
 that this part of the goods is to be taken by him as 
 his property under the contract, and as so far satisfy- 
 ing the contract. So long as the buyer can, without 
 self-contradiction, declare that the goods are not to 
 be taken in fulfillment of the contract, he has not ac- 
 cepted them. And it is immaterial whether his re- 
 fusal to take the goods be unreasonable or not. If he 
 refuses the goods, assigning grounds false or frivo- 
 lous, or assigning no reason at all, it is still clear that 
 he does not accept the goods, and the question is not
 
 Uleinenls Required by Statute. 16 
 
 whether he ought to accept, but whether he has ac- 
 cepted them. The question of acceptance or not is a 
 question as to what was the intention of the buyer, as 
 signified by his outward acts. The receipt of part of 
 the goods is the taking possession of them. Wlicn 
 the seller gives to the buyer the actual control of the 
 goods, and the buyer accepts such control, he has 
 actually received them."- 
 
 To satisfy the statute there must be a delivery of 
 the goods by the vendor, with an intent of vesting 
 the right of possession in the vendee ; and there 
 must be an actual acceptance by the latter, with an 
 intention of taking the possession as owner.^ No act 
 of the vendor alone, in however strict conformity to 
 the terms of the contract, will satisfy the statute.* 
 There must be some acts of the vendee ; mere words 
 constituting part of the original contract do not con- 
 stitute an acceptance.^ Neither is a mere delivery 
 sufficient; there must further be an acceptance and 
 receipt of the vendee, else he will not be bound. ^ It 
 is well established that the acceptance and receipt 
 need not be simultaneous with the verbal contract of 
 sale ; it is sufficient if they take place within a rea- 
 sonable time afterward.' And the acceptance may 
 be by sample, if the particular sample accepted is 
 taken from and diminishes the bulk of the goods to 
 be finally delivered ; but otherwise, if the sample is 
 considered only a specimen, and forms no part of the 
 goods sold.^ 
 
 (1) Blackburn on Sales, 22, 23. 
 
 (2) Maxwell v. Brown, 39 Me. 98; Rogers v. Phillips, 40 X. Y. ■)19; 
 Prescolt V. Locke, 51 N. II. 94; Gibbs v. Benjamin, 45 Vt. 124; Knight 
 V. Mann, 118 Mass, 143; Culkins v. Ilellman, 47 N. Y. 449. 
 
 (3) Phillips V. Bistolli, 2 B. <& C. 511 ; Knight v. Mann, 118 Mass. 143; 
 Remick v. Sanford, 120 Mass. 316; Hewes v. Jordan, 39 Md. 479; Stone 
 V. Browning, 51 N. Y. 211 ; Gray v. Davis, 10 N. Y. 285; Marsh v. Rousei,
 
 16 Conditional Sales. 
 
 44 N. Y. 643; Shepherd v. Prossey, 32 N. IT. 55; Young v. Elaisdell, 60 
 Me. 272; Bowers v. Anderson, 49 Ga. 143; Dooley v. Elbert, 47 Mich. 
 615; Dole v. Stimpson, 21 Pick. 3S4. 
 
 (4) Hawley v. Keeler, 53 N. Y. 114; Messer v. Woodman, 22 N. H. 
 172. 182. 
 
 (5) Shepherd v. Pressey, 32 N. H. 57 ; Bowers v. Anderson, 49 Ga. 143. 
 
 (6) Maxwell v. Brown, 39 Me. 101; Edwards v. Grand Trunk Ry. Co , 
 54 Me. Ill; Denny v. Williams, 5 Allen, 3; Johnson v. Cuttle, 105 Mass. 
 449 ; Hcwos v. Jordan, 39 Md. 473. 
 
 (7) Bu.sh V. Holmes, 53 Me. 417; Marsh v. Hyde, 3 Gray, 331 ; Damon 
 V. Osborn, 1 Pick. 480; Davis v. Moore, 13 Me. 424; Richardson v. 
 Squires, 37 Vt. 640; Thompson v. Alger, 12 Met. 43'); Chapin v. 
 Patter, 1 Hilton (N. Y.), 366; Sale v. Darragh, 2 Hilton, 184; Van 
 Wertv. Ry., 67 N. Y. 538; Sprague v. Blake, 20 Wend. 61; McCarthy 
 V. Nash, 14 Minn. 127; Pinkham v. Mattox, 53 N. H. 604; Hewes v. 
 Jordan, 39 Md. 473; Amson v. Dreher, 35 Wis. 615; Phillips v. Ocmul- 
 gee Mills, 55 Ga. 633; Buckingham v. Osborne, 44 Conn. 133. 
 
 (8) Davis V. Eastman, 1 Allen, 422; Bush v. Holmes, 53 Me. 418; Pratt 
 V. Chasft, 40 Me. 2«9; Atwood v. Lucas, 53 Me. 508; Danforth v. Walker, 
 40 Vt. 257. 
 
 5 IL Constructive Acceptance. The acceptance of 
 the goods, or a part of them, as required by the stat- 
 ute, may be constructive only, and the question 
 whether the facts proven amount to a constructive 
 acceptance is one of fact for the jury, not a matter of 
 law for the court.^ The acceptance must be clear 
 and unequivocal,^ but it is a question for the jury 
 whether, under all the circumstances, the acts which 
 the vendee does, or forbears to do, amount to an ac- 
 ceptance.^ If, however, the facts are not in dispute, 
 it belongs to the court to determine their legal effect.* 
 And it is said that it "is for the court to withold the 
 facts from the jury, when they arc not such as can in 
 law warrant finding an acceptance ; and this includes 
 cases where, though the court might admit that there 
 was a scintilla of evidence tending to show an ac- 
 ceptance, they would still feel bound to set aside a 
 verdict finding an acceptance on that evidence." ^ A 
 constructive acceptance may be inferred when the
 
 Elements Required f>i/ Statute. 17 
 
 vendee deals with the goods as his own, and does 
 that which he would be authorized to do if the 
 owner, but not otherwise.'' As the taking possession 
 of a bill of ladino,7 marking, or permitting another 
 to mark goods with the name of the vendee,* accept- 
 ance of an order given by the vendor upon his agent 
 to deliver the property, and which order the agent 
 recognizes and accepts, have been held to be con- 
 structive acceptance.^ And it has been held that the 
 acceptance of a part of the goods takes the case out 
 of the statute, although a portion is still to be 
 manufactured.^" " But, in order to take the contract 
 out of the operation of the statute of frauds, on the 
 ground of acceptance of the goods, or a portion of 
 them, there must be acts of such a character as to 
 place the property unequivocally within the power 
 of the vendee as the absolute owner, discharging all 
 lien for the price."" Delivery of the goods to a 
 designated common carrier would constitute a receipt 
 by the vendee, but would not usually constitute an 
 acceptance of the goods. ^- So also it has been held 
 that the delivery of the goods to the vendee, and the 
 unpacking of them by him, are not sufficient accept- 
 ance, if it appear that he has taken them into his 
 possession and kept them for no greater time than 
 was reasonably necessary to enable him to examine 
 their quantity and quality, and to declare his ap- 
 proval or disapproval of them.^^ There is no accept- 
 ance, unless the vendee has exercised his option to 
 receive the goods sold, or not, or has done something 
 to deprive him of his option.^' 
 
 (1) Eden v. Dudley, 1 Q. B. (Eng.) 302; Bushell v. Wheeler, 15 Q. B- 
 442; Piiikhara v. Mattox, 53 N. H. 605; Simpson v. Krumdick, 2S Minn. 
 352; Frostburg Mining Co. v. New England Glass Co., 9 Cush. US;
 
 18 Conditional Sales. 
 
 Borrowscale v. Bosworth, 99 Mass. 381 ; Sawyer v. Xichols, 40 Me. 212; 
 Garfield v. Paris, 96 U. S. 5o7. 
 
 (2) Prescott v. Locke, 51 N. H. 94; Snow v. Warner, 10 Met. 136; 
 Denny V. Williams, 5 Allen, 3; Dale v. Rtimpson, 21 Pick. 3S4; Boyn- 
 ton V. Veazie, 24 Me. 286; Gibson v. Stevens, 8 How. (U. S.) 384. 
 
 (3) Tibbett v. Morton, 15 Q. B. 428; Rappleye v. Adie, 65 Barb. 589; 
 Sawyer v. Nichols, 40 Me. 212; Bailey v. Ogden, 3 Johns. 399, 420; Wart- 
 man V. Breed, 117 Mass. 18. 
 
 (4) Shepherd v. Pressey, 32 N. H. 56. 
 
 (5) Browne, Stat. Frauds, § 321 ; Denny v. Williams,'5 Allen, 5; How- 
 ard V. Borden, 13 Allen, 299. 
 
 (6) Parker v. Wallis, 5 E. & B. 21 ; Chapin v. Rogers, 1 East, 195; 
 Pinkham v. Mattox, 53 N. H. 604; Phillips u. Ocmulgee Mills, 55 Ga. 
 633; Dallard v. Potts, 6 Allen (N. B.), 443 ; Phillips v. Merritt, 2 U. S. 
 C. P. 513; Tower v. Tudhope, 37 U. S. Q. B. 200. 
 
 (7) Currier v. Anderson, 3 E. & E. (Eng.) 592; Quintard v. Bacon, 99 
 Mass. 185. 
 
 (8) Bill V. Bament, 9 M. & W. (Eng.) 36; Baldey v. Parker, 2 B. & 
 C. 37; Rappleye u. Adie, 65 Barb. 589; Dyer v. Libby, 61 Me. 45. 
 
 (9) Sahlman v. Mills, 3 Strob. (S. C.) 384; 51 Am. Dec. 630. 
 
 (10) Gault V. Brown, 48 N. H. 183; Marsh v. Hyde, 3 Gray (Mass.), 
 331 ; Ross v. Welsh, 11 Gray, 235 ; Steam Saw Mill and Lumber Co. v. 
 Gittshall, 3 Col. 8. 
 
 (11) Marsh v. Rouse, 44 N. Y. 643. 
 
 (12) Benj. on Sales, 181; Dawes v. Peck, 8 T. R. (Eng.) 330; Dunlap 
 V. Lambert, 6 CI. & F. (Eng.) 600; Norman v. Phillips, 14 M. & W. 277; 
 Smith V. Hudson, 6 B. & S. (Eng.) 431 ; Cross v. O'Donnell, 44 N. Y. 
 661; Caulkins v. Hellman, 47 N. Y. 449; Everetts v. Parks, 62 Barb. 
 (N. Y.) 9; Magruder V. Gage, 33 Md. 344; Putman v. Tillottson, 13 Met. 
 (Mass.) 517; Merchant v. Chapman, 4 Allen (Mass.), 362; Foster v. 
 Rockwell, 104 Mass. 167; Strong v. Dods, 47 Vt. 348; Cobb v. Arundell, 
 26 Wis. 553. 
 
 (13) Hewess v. Jordan, 39 Md. 472; Stone v. Browning, 52 N. Y. 211 ; 
 Heermace v. Taylor, 14 Hun, 149. 
 
 (14) Gilman v. Hill, 36 N. IT. 311, 321 ; Shepherd v. Pressey, 32 N. H. 
 55; Belt v. Marriott, 9 Gill, 331 ; Gorham v. Fisher, 30 Vt. 428. 
 
 § 12. Earnest and Part Payment. A verbal contract 
 will be valid, and proof of it competent, if something 
 in earnest or part payment of the price be given. 
 This was recognized by the common law, and the 
 statute has not changed the rule. The payment may 
 be shown by parol evidence, but proof of tender is not 
 sufficient. There must be an actual acceptance of the
 
 ElemenlH Required by Statute. 19 
 
 money tendered, by the vendor.^ It is not sufficient 
 that money be deposited with a third person, to be 
 paid to either party in case of a breach of contract 
 by the other.- The payment must be money or its 
 equivalent — in other words, something of value — 
 though the amount be immaterial.^ 
 
 With the exception of the State of New York,^ 
 the time of payment is not essential. It may be 
 made at the time of the sale or afterward,^ by the 
 vendee, or his agent acting within the scope of his 
 authority.*^ 
 
 (1) Edgerton v. Hoge, 41 Vt. 676; Ilawley v. Keeler, 53 N. Y. 114; 
 Hicks V. Cleveland, 48 N. Y. 84. 
 
 (2) Howe V. Hayward, 108 Miss. 54; II Am. Rep. 306; Xoakes u. 
 Morey, 30 Ind. 103. 
 
 (3) Browne on Statute of Frauds, § 341 ; Artcher v. Zeh, 5 Hill (N. 
 Y.),200. 
 
 (4) R. S. of N. Y., part 11 C. 7. title 1 1, § 3, Vol. 3, p. 2328. 
 
 (5) Thompson v. Alger, 12 Met. 435; Davis v. Moore, 13 Met. 424; 
 Gault V. Brown, 47 N. H. 183, 189; Vincent v. Germond, 11 Johns. 283;' 
 Sprague v. Blake, 20 Wend. 61. 
 
 (6) Hawley v. Keeler, 53 N. Y. 114. 
 
 5 13. Memorandum — its Form. If the price exceed 
 the limit provided by statute, or — where no price is 
 fixed — if the value be clearly proven to be worth that 
 sum, the statute requires evidence that the agree- 
 ment, or some note or memorandum thereof be in 
 writing, and subscribed by the party to be charged 
 thereby, or his lawful agent, unless part payment or 
 delivery with acceptance is shown. It therefore be- 
 comes essential to ascertain just what characteristics 
 that memorandum must possess. The form of the 
 memorandum is not limited by statute ; it may con- 
 sist of a telegram,^ or letter,'- a receipt for money,^ a 
 bill of parcels,^ or a stated account, in which the ven- 
 dee charged himself witli goods received,^ or the
 
 
 20 Conditional Sales. 
 
 return of a sheriff on execution,*^ or a vote of a cor- 
 poration entered on their records, signed by their 
 clerk,^ or a written proposition, if supported by oral 
 evidence of acceptance.^ 
 
 Any number of papers may be taken together to 
 make out the note or memorandum, and it matters 
 not how informal they are if the statute is substan- 
 tially complied with ; but where several papers are 
 resorted to, each must be subscribed by the party to 
 be charged, or imported by reference or annexation 
 into one that is, leaving nothing to be supplied by 
 jmrol to complete the memorandum except evidence 
 of the identity of the paper.° The memorandum 
 must be complete, so far as that all elements of the 
 contract or engagement on the part of the party 
 sought to be charged, must be stated,^° or legally 
 presumable by what is stated." 
 
 ( 1 ) Trevor v. Woods, 36 N. Y. 307. 
 
 (2) Georgia Refining Co. v. Augusta Oil Co., 74 Ga. 497; Ashcroft v. 
 Butterworth, 136 Mass. 511 ; Otwell v. Miller, 6 Md. 10. 
 
 (3) Barickman v. Kuykendall, 6 Blackf. (Ind.) 21 ; Ellis v. Deadman, 
 4 Bibb (Ky.) 466; Williams v. Morris, 95 U. S. 444. 
 
 (4) Batturs v. Sellers, 5 Hart & J. (Md.) 117; Hawkins v. Chase, 19 
 Pick. (Mass.) 502. 
 
 (5) Barry v. Coombe, 1 Pet. (U. S.) 640; Bourland v. Peoria, 16 111. 
 638. 
 
 (6) Hanson v. Barnes, 3 Gill & J. (Md.) 359; Fenwick v. Floyd, 1 
 Harr. &. G. (Md.) 172; Barney v. Patterson, 6 Harr. k J. (Md.) 182; 
 Elfe V. Gadsden, 2 Rich (S. C.) Law, 373; Nichal v. Ridley, 5 Yerg. 
 (Tenn.) 63. 
 
 (7) Tufts V. Plymouth Gold Mining Co., 14 Allen (Mass.), 407 ; John- 
 son V. Trinity Ch. Soc, 11 Allen, 123; Chase v. City of Lowell, 7 Gray 
 (Mass.), 33; Rhoads v. Castner, 12 Allen (Mass.), 130; Grimes v. Hamil- 
 ton Co., 37 Iowa, 290. 
 
 (8) Sanborn v. Flagler, 9 Allen (Mass.), 474; Himrod Furnace Co. v. 
 Cleveland and Mahoning R. R. Co., 22 Ohio St. 451 ; Argus Co. v. Mayor 
 of Albany, 55 N. Y. 495. 
 
 (9) Abbott's Trial Evidence, p. 293. 
 
 (10) Wright V. Weeks, 25 N. Y. 153. 
 
 (11) Warren V Winne, 2 Lans. 209.
 
 Mements Required hy Statute. 21 
 
 5 14. Parties. It is necessary that the memo- 
 randum should show who are the parties to the con- 
 tract, by some reference sufficient to identify them.^ 
 The identification, however, is sufficient if, in addi- 
 tion to the signature of the party to be charged, it 
 appear with reasonable certainty who the other party 
 to the contract is ;- thus, a letter addressed to the 
 vendor and signed by the vendee,"' even though the 
 letter be addressed to and received by the agent of 
 the vendor.^ The parties may even be designated 
 by their initials,'^ " and although the authorities are 
 consistent in requiring that the memorandum should 
 show who are the parties to the contract, it suffices 
 if this appear by description instead of name, parol 
 evidence being admissible to apply the description. 
 
 "6 
 
 (1) Browne on Statute of Frauds, § 372; Benjamin on Sales, § 234. 
 
 (2) Grafton v. Cummings, 7 Rep. 545; Thornton v. Kelly, 11 R. 1. 498; 
 Gowen v. Klous, 101 Mass. 449. 
 
 (3) Jacob V. Kirk, 2 Moo. k R. 221 ; Allen v. Bennet, 3 Taunt. 169; 
 Williams v. Jordan, 6 Ch. Div. 517. 
 
 (4) Batpman v. Phillips, 15 East, 272; Williams v. Bacon, 2 Gray 
 (Mass.), 387 ; Thayer v. Luce, 22 Ohio St. 62; Walsh v. Barton, 24 Ohio 
 
 •St. 28. 
 
 (5) Stilmon Falls Mfg. Co. v. Goddard, 14 How. (U. S.) 446. 
 
 (6) Benjamin on Sales, § 237. 
 
 § 15. Price. " It is plainly deducible from the de- 
 cisions, that so far as the price is concerned, the rule 
 of law is, that where there is no actual agreement as 
 to price, the note of the bargain is sufficient, even 
 though silent as to the price, because the law sup- 
 plies the deficiency by importing into the bargain a 
 promise by the buyer to pay a reasonable price. 
 iBut the law only does this in the absence of an 
 agreement ; and, therefore, where the price is fixed by 
 mutual consent, that price is part of the bargain, and 
 must be shown in writing in order to satisfy the
 
 22 Conditional Sales. 
 
 statute?; and, finally, that parol evidence is admis- 
 sible to show that a price was actually agreed on, in 
 order to establish the insufficiency of a memorandum 
 which is silent as to price." ^ The price must be 
 stated in the memorandum in words or figures which 
 clearly indicate, as applied to the subject, what that 
 price is. If the figures or letters, or both, used in 
 the memorandum, do in fact, and in the light of a 
 prevailing usage, afi^ord this information, the memo- 
 randum to that extent is sufficient.'- 
 
 " It is obvious that the statute will be sa,tisfied by 
 a statement as to what the parties stipulated was 
 the price to be paid, although they mentioned no 
 specific sum ; as, for instance, if the agreement is to 
 pay a price to be settled by arbitration,"^ or to pay 
 the same for which the property had been previously 
 purchased.^ It has been held that an order for 
 goods, ' on moderate terms,' sufficiently expresses the 
 amount to be paid,'^ that being the stipulation made 
 by the parties."^ If the memorandum be silent as 
 to the time of payment, a cash sale will be pre- 
 sumed."^ If credit is given, it is one of the essential 
 terms of the contract, and must appear in the memo- 
 randum.^ But it is not material that it should appear 
 in the memorandum, whether the deferred payments 
 are to be with interest.^ 
 
 (1) Benjamin on Sales, ^ 249. 
 
 (2) Govven v. Klous, 101 Mass. 449, 454; Browne on Statute of 
 Frauds, § 380. 
 
 (3) Cooth V. Jackson, 6 Ves. 12; Brown v. Bellows, 49 Pick. (Mass.) 
 
 178. 
 
 (4) Atwood V. Cobb, 16 Pick. (Mass.) 227. 
 
 (5) Ashcroft v. Morrin, 4 Man. & G. 450. 
 
 (6) Browne on Statute of Frauds, § 378. 
 
 (7) Fessenden v. Mussey, U Gush. (Mass.) 127. See § 33 on Cash Pay- 
 ment. 
 
 (8) Norton v. Dean, 13 Mete. (Mass.^ 385; Davis v. Shields, 2b Wend.
 
 Elements Jicquired by Statute. 23 
 
 (N. Y.)341, McFarson's Appeal, 11 Penn. St. 503; Sales v. Hickman, 
 20 Penn. St. 180; Buck v. Pickwell, 27 Vt. 157; Ellis v. Deadman, 4 
 Bibb (Ky.), 466; Parker v. Bodley, 4 Bibb (Ky.), 102; Elfe v. Gadsden, 
 2 Rich. (S. C.) Law, 373; Wright v. Week.s, 3 Bcsw. (N. Y.) 372. 
 
 (9) Atwood V. Cobb, 16 Pick. (Mass ) 227; Neufville u. Stuart, 1 Hill. 
 (S. C.) Eq. 159. 
 
 § 16. Signing. Whatever be the form of memo- 
 randum, the statute requires that it be signed b}' the 
 party to be charged, or his agent, and the contract is 
 good or not at the election of the party who has not 
 signed ii,^ if accepted by him. The signature re- 
 quired must be some mark or emblem intended to 
 denote a signature, and although the memorandum 
 be written out with the party's own hand, there must 
 still be a signature." 
 
 The signature may consist of the mark of the 
 party,-'' or his initials.'* And, in the absence of a 
 statutory provision requiring an actual manual sub- 
 scription, the signature may be in printing, or by 
 stamp, if there be sufficient evidence of its adoption 
 as such by the party to be charged,^ or it may be writ- 
 ten with lead pencil.'' 
 
 The location of the signature is immaterial — it may 
 be in the body of the paper, or at the beginning or 
 end — provided it be done with the intention of obli- 
 gating." It may even be made by a third party, at 
 the request and in the presence of the party to be 
 charged.^ 
 
 As provided by statute, the memorandum may be 
 signed by the duly authorized agent of the party to 
 be charged. The agent may be a general agent or one 
 expressly appointed, and the signing by a stranger 
 is sufficient, if afterward ratified.'' A broker, or auc- 
 tioneer, is regarded as the agent of both parties, and 
 a memorandum made and signed by him at the time 
 of sale is sufficient. ^'^
 
 24 Cotuillional »iat6\s. 
 
 (1) Reuss V. Picksley R. R., 1 Ex. (Eng.) 342; Barstow v. Gray, 3 Me. 
 409; Railroad v. Evans, 6 Gray (Mass. ) 25; Dressel v. Jordan, 104 Mass. 
 412; Davis v. Shields, 26 Wend. (N. Y.) 340; Justice v. Terry, 52 N. Y. 
 323; Mason v. Dicker, 72 N. Y. 595; Higdon v. Thomas, 1 H. & G. 
 (Md.) 139; McFarson's Appeal, 11 Penn. St. 503; Young v. Paul, 10 N. 
 J. Eq. 402; Douglass v. Spears, 2 N. & McC. (S. C.) 207; Cook d. Ander- 
 son, 20 Ind. 15; Ivory v. Murphy, 36 Mo. 534; De Cordova v. Smith, 9 
 Tex. 129; Thayer v. Luce, 22 Ohio St. 62. 
 
 (2) Worrall v. Munn, 5 N. Y. 229; Farris v. Martin, '0~ Humph. 
 (Tenn.) 495. 
 
 (3) 2 Kent, 511; Bickley u. Runan, 60 Ala. 293. 
 
 (4) Palmer v. Stevens, 1 Denio (N. Y.), 478; Sanborn v. Folger, 9 Al- 
 len (Mass.), 474; Barry v. Coombe, 1 Pet. (U. S.) 640. 
 
 (5) Saunderson v. Jackson, 3 Esp. 180; Schneider v. Norris, 2 Maule 
 & S. 286; Commonwealth v. Ray, 3 Gray (Mass.), 447; Lerned v. Wanne- 
 macher, 9 Allen (Mass.), 417; Boardman v. Spooner, 13 Allen (Mass.), 
 353; Braley v. Kelly, 25 Minn. 160 
 
 (6) Benjamin on Sales, § 259. 
 
 (7) Coddington v. Goddard, 16 Gray (Mass.), 444; McComb v. 
 Wright, 4 Johns. Ch. (N. Y.) 663; Anderson v. Harold, 10 Ohio, 400. 
 
 (8) Kawkins v. Chance, 19 Pick. (Mass.) 502. 
 
 (9) Newton v. Bronson, 13 N. Y. 587; Snyder v. Neefus, 53 Barb. 63. 
 
 (10) Benjamin on Sales, § 268; Coddington v. Goddard, 16 Gray 
 (Mass.), 442; Remick v. Sandford, 118 Mass. 106.
 
 PART II. 
 
 GENERAL PRINCIPLES OF CONDITIONAL SALES. 
 
 CHAPTER IIL 
 
 CONDITIONS PRECEDENT TO BE PKI^FORMED BY VENDOR. 
 
 Article 3. — Conditions Precedent, §§ 17, 18. 
 
 Article 4. — Conditions to be Performed by the Yen- 
 dor — Generally, §§ 19, 20. 
 
 Article 5. — Conditions Necessary to put in a De- 
 liverable State, §§ 21, 22. 
 
 Article 6.— Delivery, §§ 23-29. 
 
 Article 7. — Sale by Description, § 30. 
 
 CHAPTER IV. 
 
 CONDITIONS PRECEDENT TO BE PERFORMED BY VENDEE. 
 
 Article 8. — Implied Conditions, §§ 31-37. 
 Article 9. — Express Conditions, §§ 38-43. 
 
 CHAPTER V. 
 CONDITIONS SUBSEQUENT. 
 
 Article 10. — Express Conditions, §§ 44, 45. 
 Article 1L — Implied Conditions, § 46. 
 
 CHAPTER VI. 
 
 INCIDENTS— WARRANTIES. 
 
 Article 12. — Implied Warranties, §§ 47-54. 
 Article 13. — Express Warranties, §§ 55-61. 
 Article 14. — Special Cases, § 62. 
 
 (25)
 
 Condiliuits I'recedenl to be I'erjvrmea by [ etutor. 27 
 
 CHAPTER III. 
 
 CONDITIONS PRECEDENT TO BE PERFORMED BY VENDOR. 
 
 Article 3. — Conditions Precedent 
 
 § 17. Intent Governs. 
 
 § 18. Conditions must be Performed. 
 
 § 17. Intent Governs. That there may be some 
 condition to be performed before the actual transfer 
 of title, and that the condition must be complied with 
 or waived, before title passes, is well-established law.^ 
 And the condition may be one to be performed either 
 precedent or subsequent to deliv^ery. Whether a de- 
 livery under an agreement for the sale of chattels is 
 absolute or conditional depends on the intent of the 
 parties ; and, to establish that the delivery was con- 
 ditional, it is not necessary that the vendor should 
 declare the conditions in express terms at the deliv- 
 ery.^ It is su-fficient if the intent of the parties can 
 be inferred from their acts or the circumstances of 
 the sale.^ The condition may be expressed or im- 
 plied.^ 
 
 (1) Benjamin on Salps, § 320. 
 
 (2) Smith V. Tilton, 10 Me. (I Fairf.) 350. 
 
 (3) Hainmett v. Lineman, 48 N. Y. 399; Day v. Bassett, 102 Mass. 
 445; Huiihes v. SheafF, 19 Iowa, 335. 
 
 (4) Callaghan v. Myers, 89 111. 566. 
 
 § 18. Conditions must be Performed. Conditions 
 precedent must be fully and strictly performed before 
 the party on whom their fulfillment is incumbent can 
 call on the other to comply with his promise.' Con- 
 ditions precedent may be dependent for fulfillment 
 either on the vendor or vendee, and may refer to the
 
 28 Conditional Sales. 
 
 articles which are the subject of contract or the con- 
 sideration to be paid therefor. 
 
 (1) Hunt V. Livermore, 5 Pick. 395; Dana v. King, 2 Pick. 155; Sey- 
 mour V. Bennett, 14 Mass. 266; Brown v. Foster, 113 Mass. 136; Mazone 
 V. Caze, 18 La. Ann. 13; Shaw v. Turnpike Co., 2 Penn. 454; Albany 
 Dutch Church v. Bradford, 8 Cowen, 457 ; Southerland v. Gilmour, 2 Al- 
 len (N. B.), 481 ; Farmer v. D'Everado, 3 U. C. Q. B. 154; Levy v. Bur- 
 gess, 64 N. Y. 390; Downey v. O'Donnell, 86 111. 49; Murray v. Baker, 6 
 Hun, 264; Schenke v. Rowell 7 Daly, 286; Jones v. United States, 96 
 U. S. 122; White v. Day, 56 Iowa, 248; Sullivan v. Byrne, 10 S. C. 122; 
 Zaleski v. Clark, 44 Conn. 218; Gibson v. Cranage, 39 Mich. 49; Clark 
 V. Rice, 46 Mich. 308; Robinson v. Ins. Co., 31 U. C. C. P. 562. 
 
 Article 4. — Conditions to be Performed by Vendor. 
 
 § 19. Rules Governing. 
 
 § 20. Avoidance of Conditions. 
 
 5 19. Rules Governing Conditions to be Performed 
 by Vendor. The rule formulated by Lord Blackburn 
 is, that where by the agreement the vendor is to do 
 any thing to the goods for the purpose of putting 
 them into that state in which the purchaser is bound 
 to accept them — or, as it is sometimes worded, into a 
 deliverable state — the performance of these things 
 shall, in the absence of circumstances indicating a 
 contrary intention, be taken to be a condition precedent 
 to the vesting of title.^ The vendee may, however, 
 waive the condition ; and if he refuse to accept the 
 performance, or hinder, or prevent it, he will have 
 waived performance, and his liability becomes fixed 
 and absolute.^ 
 
 (1) Blackburn on Sales, 151, 152; Bailey v. Smith, 43 N. H. 141; 
 Stroussv. Ross, 25 Ind. 300; McClung w. Kelley, 21 Iowa, 508; Foster 
 V. Ropes, 111 Mass. 10; Paton v. Currie, 19 U. C. Q. B. 288; Gilbert w. 
 N. Y. C. R. R. Co., 4 Hun, 378. 
 
 (2) Pontifer v. Wilkinson, 1 C. B. 75; Holme v. Guppy, 3 M. & W. 
 387; Arraitage v. ln.sole, 14 Q. B. 728; Cort v. Railroad Co., 17 Q. R. 127; 
 Aitcbeson v. Cook, U. C. Q. B. 490; Smith v. Lewis, 26 Conn. 110; Mill 
 Dam Foundry v. Hovey, 21 Pick. 437; Borden v. Borden, 5 Mass. 67?
 
 Conditions Precedent to be Performed by Vendor. 29 
 
 Shaw V. Hurd, 3 Bibb, 372; Grave v. Donaldson, 1.0 Penn. St. 12S; Kug- 
 ler V. Wiseman, 20 Ohio, 361; Falansbee v. Adams, 86 111. I.'.; Hayden 
 V. Reynolds, 54 Iowa, 157; Steamship Co. v. United States, 13 Ct. CI. 
 (U. S.) 209; Peck v. United State.s, 14 Ct. CI. (U. S.) 84; Taylor v. 
 United States, 14 Ct. CI. (U. S.) 453; Wolf v. Marsh, 54 Cal. 228 J Law- 
 rence V. Miller, 86 N. Y. 131; Haden v. Coleman, 7;i X. Y. 567; Taylor 
 V. Kisley, 28 Bun, 141 ; Summer v. Adams, 36 N. U. 449. 
 
 ^ 20. Avoidance of Conditions. If the conduct of 
 either party should render him incapable of carrying 
 out the contract, it would be a complete breach of 
 contract on his part, and the other party need not 
 tender performance of the condition precedent. Acts 
 of God preventing performance have been held to re- 
 lieve the vendor.^ But it has also been held, tliat 
 where a party engages unconditionally, by express 
 contract, to do an act, performance is not excused bv 
 an inevitable accident, or by an unforseen contingency 
 not within his contract.- A contract to sell and de- 
 liver an animate thing at a certain day will be at an 
 end if the subject of contract die in the interval. But 
 where it is within the power of the vendor to perform 
 the essential elements of a contract, nothing can re- 
 lieve him of his obligation, excepting acts of the ven- 
 dee.^ If, however, the goods perish without his fault, 
 he is excused from delivery on the day named.^ 
 
 (1) Knight V. Bean, 22 Me. 531; Dickey v. Linscott, 20 Me. 453. 
 Contra, see School District v. Dauchy, 25 Conn. 530. 
 
 (2) Harmony v. Bingham, 11 N. Y. 106; Railroad Co. v. Bowns, 58 N. 
 Y. 573; Kemp v. Ice Co., 69 N. Y. 45; Hay v. Holt, 91 Penn. St. 88; 
 School District v. Dauchy, 25 Conn. 530. 
 
 (3) White V. Mann, 26 Me. 361-368; Mill Dam Foundry v. Hovey, 21 
 Pick. 441. (See per.) Ryan v. Dayton, 25 Conn. 194; Adams v. Nichols, 
 19 Pick. 275; Boyle v. Agawam Canal Co., 22 Pick. 381; Lord v. 
 Wheeler, 1 Gray, 282; Phillips v. Stevens, 16 Mass. 2.>8; Beebe t;. .John- 
 son, 19 Wend. 500; Kribs v. Jones, 44 Md. 396; Delaware R. R. Co. v. 
 Bowns, 58 N. Y. 573; Kemp v. Ice Co., 69 X. Y. 45; Booth v. Rolling 
 Mill Co., 60 X. Y. 487; Harmony v. Bingham, 2 Kernan, 106; Hay u. 
 Holt, 91 Penn. St. 88. 
 
 (4) Dexter v. Norton, 47 N. Y. 62.
 
 30 Conditional Sales. 
 
 Article 5. — Conditions Necessary to put in a De- 
 liverable State. 
 
 § 21. Separation. 
 § 22. Measurement. 
 
 § 21, Separation. If the goods are sold by num- 
 ber, weight, or measure, the sale is prima facie not 
 complete till their quantity is ascertained; and, if 
 they are mixed with others, not until they are separ- 
 ated and designated.^ Where a separation has been 
 made by the vendor of a portion of the personal 
 property sold, but something still remains to be 
 done to the rest, the portion separated becomes 
 the property of the vendee.- And it makes no differ- 
 ence in the operation of this rule as to whether the 
 contract is an entirety or not. 
 
 If in the course of separation the property deterior- 
 ates through the fault of the vendor, the vendee is 
 not bound to receive it.^ 
 
 In case of a contract to manufacture goods and sell 
 them to another, no property in the material passes 
 to the vendee until the article has been finished and 
 set apart for the vendee, with his assent and ac- 
 cepted by him, although a portion of the price agreed 
 upon may have been paid in the meantime.* Where 
 property has been separated, title will pass (if that 
 was the intention of the parties in making the con- 
 tract), even though the vendor is required to do 
 something in addition thereto.^ 
 
 (1) Fuller V. Bean, 34 N. II. 290, 300. 301; Hutchinson v. Grand 
 Trunk Ry. Co., 59 N. H. 487; Cook v. Logan, 7 Iowa, 142; Browning v. 
 Hamilton, 42 Ala. 484; Randolph & Co. v. Elliott, 34 N. J. L. 184; Com 
 mercial Bank v. Gillette, 90 Ind. 268. 
 
 (2) Thompson v. Conover, 32 N. J. L. 466. 
 
 (3) Keeler v. Vandervere, 5 Lans. (N. Y.) 313.
 
 Conditions Precedent to be Performed by Vendor. 31 
 
 (4) Matterline v. Rico, 02 Barb. (N. Y.) 593. Contra, Goddard v. Bin- 
 ney, 115 Mass. 45U; Shaw v. Smith, 48 Conn. 306. 
 
 (5) Morrow v. Reed, 30 Wis. 81; Morrow v. Carai.b.'ll, 30 Wis. 90. 
 
 § 22. Measurement. The authorities are both nu- 
 merous and uuitbrni, which hold that where any 
 thing is to be done by the vendor, or by the mutual 
 concurrence of both parties, for the purpose of ascer- 
 taining the price of the goods, as by weighing, test- 
 ing, or measuring them, where the price is to depend 
 upon the quantity or quality of the goods, the per- 
 formance of those things is to be deemed presump- 
 tively a condition precedent to the transfer of the 
 property, although the individual goods be ascer- 
 tained, and they are in a state in which they may 
 and ought to be accepted.^ The employment of a 
 person to do the measuring is not sufficient; there 
 must be an actual measurement.'^ But in the port 
 of New York, where it is the custom, upon a purchase 
 of grain in store, for the purchaser to select a meas- 
 urer, who is thereupon employed by the board of 
 measurers to measure the grain, and the measure- 
 ment and leaving the grain in the store-house is by 
 the custom a delivery to the purchaser, it has been 
 held that, where the measurer was so employed, it 
 was a substantial compliance with the custom, and a 
 a valid delivery of the grain.^ 
 
 A contract to sell and deliver cotton is not per- 
 formed where the weight and value have not been 
 ascertained, and in such sales it has been held 
 that the cotton must be weighed with the concur- 
 rence or acquiescence of the vendee.^ But where, on 
 a sale of cotton, there is no agreement that it shall 
 be weighed, weighing is not necessary to constitute a 
 good delivery.^ 
 
 A sa1(^ of honher to he taken and measured from a
 
 32 Conditional Sales. 
 
 large bulk, and to be an average lot as to thickness 
 and quality, is not complete, even between the par- 
 ties, until selected and measured.'^ Where the lum- 
 ber sold has been piled by itself, preparatory to 
 shipping, and the possession of the whole delivered, 
 title passes without any subsequent measurement.'^ 
 When sold subject to measurement by an inspector, 
 the vendee may insist on having it actually inspected 
 and measured, or something equivalent. A mere es- 
 timate is not sufficient.^ Where, by agreement, the 
 parties are to do the measuring, but meet and dis- 
 agree, the title does not pass, even though the sale 
 be of an entire lot of lumber.^ On the other hand, it 
 has been held, that the whole quantity being identi- 
 fied and sold, at a fixed price per foot, the process of 
 ascertaining the amount was not necessary to pass 
 title, as it might have been if less than the whole 
 amount delivered was to be sold and delivered by 
 measurement. In that case the measurement might 
 be necessary to fix the identity of the property sold. 
 But when all is sold, no such process is needed to 
 pass title — the ascertaining of the price being a 
 mere mathematical computation, involving no further 
 action to bring the minds together, ^"^ 
 
 Again, under a contract for the sale of thirty 
 thousand barrel staves, at a specified rate per thou- 
 sand, to be delivered at a specified depot, the deliv- 
 ery of seven thousand at the depot was sufficient to 
 pass title to the vendee in the staves so delivered, al- 
 though he had not seen them, and no count had been 
 made to ascertain the amount to be paid.^^ 
 
 (1) Lingham v. Eggleston, 27 Mich. 324; I>owry v. Barelli, 21 Ohio St. 
 324; Ortman v. Green, 2G Mich. 209; First Nat. Bank of Marquette v. 
 Crowley, 24 Mich. 492; Hahn v. Fredericks, 30 Mich. 223; Wilkinson 
 V. Holiday, 33 Mich. 386; Courtright v. Leonard, 11 Iowa, 32; Seris v.
 
 Conditions Precedent to he Performed by Vendor. 33 
 
 Beliocg, 17 La. Ann. 14G; Rhea v. Otto, 19 La. Ann. 12.3; Ockington v. 
 Kichoy, 41 N. 11. 275; Abat v. Atkinson, 21 La. Ann. 414; Frost r. 
 Woodruff, 54 111. 155. 
 
 (2) Everett v. Clements, 9 Ark. 478. 
 
 (3) McCready v. Wright, 5 Duer (N. Y.), 571. 
 
 (4) Jones v. Pearce, 25 Ark. 545. 
 
 (5) Kautfman v. Stone, 25 Ark. 336. 
 
 (6) Ockington v. Richey, 41 N. H. 275. 
 
 (7) Tyler v. Strang, 21 Barb. (N. Y.) 198; Dexter v. Bevins, 42 Barb. 
 (N. Y.) 573; Riddle v. Varnum, 20 Pick. 280. 
 
 (8) McAndrews v. Santee, 57 Barb. (N. Y.) 193. 
 
 (9) Gibbs V. Benjamin, 45 Vt. 124; Ilutchins v. Gilchrist, 23 Vt. 88; 
 Halev. Huntley, 21 Vt. 147. 
 
 (10) Adams Mining Co. v. Senter, 26 Mich. 80; Bigole v. McKenzie, 
 26 Mich. 470; Whitcomb v. Whitney, 24 Mich. 486; Wilkinson v. Holli- 
 day, 33 Mich. 386; Bremer v. Mich. Salt Ass., 47 Mich. 526; South- 
 western Freight Co. v. Standard, 44 Mo. 71. 
 
 (11) Hyde v. Lathrop, 2 Abb. (N. Y.) App. Decis. 436; Crofoot v. Ben- 
 nett, 2 Comst. 258; Tyler v. Strang, 21 Barb. 198; Dexter v. Norton, 55 
 Barb. 272 ; Bradley v. Wheeler, 44 N. Y. 495 ; Comfort v. Kiersted, 26 
 Barb. 472. 
 
 Article 6. — Delivery. 
 
 § 23. Delivery — Question of Intent. 
 
 § 24. Symbolical, or Constructive Delivery. 
 
 § 25. Delivery to Carrier. 
 
 § 26. Delivery of More or Less than Contracted for. 
 
 § 27. Time of Delivery. 
 
 § 28. Place of Delivery. 
 
 § 29. Estoppel — Delivery by. 
 
 § 23. Delivery — Question of Intent. Whether de- 
 livery be absolute or conditional, is a question of in- 
 tent to be ascertained from the conduct of the 
 parties.^ The intent is usually one for the jury to 
 determine.'^ But the evidence may justify a deter- 
 mination of the question by the court, as one of law.^ 
 In the absence of stipulations to the contrary, the law 
 implies that the place of delivery is at the place 
 where the property is, at the time of sale, and that it 
 is at the vendee's disposal at that place.^ A different 
 3
 
 34 Conditional Sales. 
 
 rule, however, prevails where the time and place of 
 delivery is provided by the terms of delivery, and 
 the sale would not be complete until the property is 
 delivered according to contract. The law can not 
 make a new contract for the vendor and vendee ; but, 
 if the time of delivery be not fixed by contract, de- 
 livery must be made within a reasonable time, de- 
 pendent upon the facts and circumstances of each 
 case.^ 
 
 (1) McComber v. Parker, 13 Pick. 182; Riddle v. Varnum, 20 Pick. 
 283; Bethel Steam Mill Co. v. Brown, 57 Me. 18; Fuller v. Bean, 34 N. 
 H. 290; Prescott v. Locke, 51 N. H. 101; Russell v. Carrington, 42 N. 
 Y. 118; Hammett v. Linneman,48 N. Y. 399; Fitch v. Burk, 38 Vt. 689; 
 Morse v. Sherman, 106 Mass. 433; Dugan v. Nichols, 125 Mass. 43; Cun- 
 ningham V. Ashbrook, 20 Mo. 553; Wilkinson v. Holliday, 33 Mich. 
 386. 
 
 (2) George v. Stubb, 26 Me. 250; Kalsea v. Haines, 41 N. H. 253; 
 Marble v. Moore, 102 Mass. 443; Dyer v. Libby, 61 Mo. 45; De Kidder 
 V. McNight, 13 Johns. 294; Clung v. Kelly, 21 Iowa, 508; Byer v. El- 
 nyer, 2 Gill (Md.), 150. 
 
 (3) Chapman v. Shepard, 39 Conn. 413; Merchants' Nat. Bank v. 
 Bangs, 102 Mass. 291; Wighton v. Bowley, 130 Mass. 254. 
 
 (4) Benjamin on Sales, § 682; Miles u. Roberts, 34 N. H. 254; Mid- 
 dlesex Co. V. Osgood, 4 Gray, 447; Goodwin v. Holbrook, 4 Wend. 380; 
 Rice V. Churchill, 2 Denio (N. Y.), 146; Kraft v. Hurtz, 11 Mo. 109; At- 
 wood V. Cobb, 15 Pick. 227. 
 
 (5) Cocker v. Franklin Hemp Mfg. Co., 3 Sum. (IT. S. C. C.) 530; 
 Rankin v. Goddard, 4 Allen (N. B.), 155; Bvunskill v. Mair, 15 U. C. Q. 
 B. 213; Cox v. Jones, 24 U. C. Q. B. 81 ; Steel Works v. Dewey, 37 Ohio 
 St. 242; Bolton v. Riddle, 35 Mich. 13; Coon ?;. Spaulding, 47 Mich. 
 162; Coates v. Sangston, 5 Md. 121; Randall v. Johnson, 59 Miss. 317, 
 
 § 24. Symbolical, or Constructive Delivery. In the 
 
 case of Chaplin v. Rogers,^ Lord Ellenborough said: 
 " Where goods are ponderous, and incapable of being 
 handed over from one to another, there need not be 
 an actual delivery, but it may be done by that which 
 is tantamount— such as the delivery of the key of a 
 warehouse in which the goods are lodged, or by the 
 delivery of other indicia of property." Our own courts
 
 Conditions J-'recedenl to be Performed by Vendor. 35 
 
 have held that the delivery required in each particu- 
 lar case depends upun the nature of the property and 
 its situation ; but if it be ponderous, a constructive 
 delivery will be sufficient.' 
 
 80 the delivery of a deed of transfer of a ship at 
 sea, passes the title to her purchaser f and her cargo 
 may also be transferred by the delivery of a bill of 
 ladins:,^ or invoice/' The same is true of other like 
 instruments which represent goods among merchants, 
 as bills of lading or railroad receipts.*^ 
 
 But in every case the symbol employed must have 
 been delivered with the intention of transferring the 
 title to the property sold.' 
 
 (1) Chapin v. Rogers, 1 East, 192. See also, Elllis v. Hunt, 3 T. R. 
 (Eng.) 464. 
 
 (2) Boynton v. Veazie, L!4 Me. 286; Leisherness v. Berry, 38 Me. 83; 
 Bethel Steam Mill Co. v. Brown, 57 Me. 9; ShurtleflF v. Willard, 19 Pick. 
 210; Jewettf. Warren, 12 Mass. 300; Terry v. Wheeler, 25 N. Y. 520; 
 Hayden v. Demets, 53 N. Y. 426; Taylor v. Richardson, 4 Houston 
 (Del.) 300; People's Bank v. Gridley, 91 111. 457; Andenried v.?Randall, 
 3 Cliff. 99; Newcomb v. Cabell, 10 Bush, 460; Adams v. Foley, 4 Chirke 
 (Iowa), 52; Puckett v. Reed, 31 Ark. 131. 
 
 (3) U. S. Rev. Stats., § 4192; Atkinson v. Mailing, 2 T. R. (Eng.) 462; 
 Brinly v. Spring, 7 Me. 241; Baldwin v. Tucker, 1 Pick. 389; Gardner 
 V. Howland, 2 Pick. 602; Joy v. Sears, 9 Pick. 4; Tucker v. Buffington, 
 15 Mass. 477; Turner v. Coolidge, 2 Me. 350. 
 
 (4) Peters v. Ballister, 3 Pick. 495 ; Pratt v. Parkman, 24 Pick. 42, 
 47; McKee v. Garcelon, 60 Me. 167 ; Gibson v. Stevens, 8 How. (U. S.) 
 399; Patrick v. Meserne, 18 N. H. 300; Bank of Peoria v. Railroad, 58 
 N. H. 203; Dixon v. Buck, 42 Barb. 70. 
 
 (5) Gardner v. Howland, 2 Pick. (2d ed.) 509. 
 
 (6) Salter v. Woollams, 2 M. & G. (Eng.) 650; Wood v. Manley, 11 
 Add. &, E. 34; Warren v. Milliken, 57 Me. 97; Tuxworth v. Moore, 9 
 Pick. 347; Bank v. Crocker, 111 Mass. 163; Bank v. Dearborn, 115 
 Mass. 219; Newcomb v. Railroad, 115 Mass. 230; Trieber v. Andrews, 31 
 Ark. 163; Davis v. Russell, 58 Cal. 611; Newhall v. Langdon, 39 Ohio 
 St. 87. 
 
 (7) Calcutt V. Ruttan, 13 U. C. Q. B. 146; Richardson v. Gray, 29 U. 
 C. Q. B. 360; Puckett v. Reed, 31 Ark. 131 ; Adams v. Foley, 4 Iowa, 52; 
 Bank v. Gridley, 91 111. 457; Terry v. Wheeler, 25 N. Y. 520; Hayden v. 
 Dements, 53 N. Y. 426; Leisherness v. Berry, 38 Me. 83; Bethel Steam
 
 36 Conditional Sales. 
 
 Mill Co. V. Brown, 57 Me. 9; Cartwright v. Phoenix, 7 Cal. 281; Clark 
 V. Draper, 19 N. H. 419. 
 
 § 25. Delivery to Carrier. Where goods ordered 
 and contracted for are not delivered directly to the 
 vendee, but were to be sent to him by the vendor, 
 and he deliver them to a carrier, properly consigned, 
 and notify the vendee of that fact, the vendor has 
 fulfilled his duty — the carrier so employed being re- 
 garded as the agent of the vendee.^ The goods so 
 delivered must be in a proper condition when de- 
 livered to the carrier, so that in case of damage, in 
 transportation, an action may be maintained by the 
 consignee against the carrier.^ If it has been the 
 usage between the parties, in former dealings, for 
 the vendor to insure the goods before shipment, or 
 consignment, or if he receive specific instructions to 
 insure in any particular case, he is bound to insure.^ 
 
 Delivery of the goods by the vendor to a desig- 
 nated carrier, in accordance with the specific request 
 of the vendee, is a delivery to the vendee,"^ and any 
 loss or damage in transportation must be borne by the 
 vendee.^ But if the vendee order goods delivered to 
 a designated carrier, and the vendor ships by another 
 route, the goods being lost, the loss must be borne 
 by the vendor, not by the vendee.'^ For, by the act 
 of shipment by another route than the one indicated 
 by the vendee, the vendor continues to exercise do- 
 minion over the goods, and the delivery is therefore 
 not complete. 
 
 (1) Magruder v. Gage, 3.3 Md. 344; Hall v. Gaylor, 37 Conn. 550; 
 Merchants v. Chapman, 4 Allen, 362; Hunter v. Wright, 12 Allen, 548 ; 
 Putnam v. Tillotson, 13 Mete. 517; Orcutt v. Nelson, 1 Gray, 536 , Pacific 
 Iron Works v. Long Island R. Co., 62 N. Y. 272; Wilcox Silver Plate 
 Co. V. Green, 72 N. Y. 17; Higgins v. Murray, 73 N. Y. 252; Morey v. 
 Medbury, 10 Hun, 540; Sohn v. Jervis, 1 North Eastern Rep. 7:i; Wat- 
 kins V. Paine, 57 Ga. 50.
 
 ConditionH Precedent to he Perfonaed by Vendor. 37 
 
 (2) Buckman v. Levi, 3 Camp. 414; Clarke v. Ilutchins, 14 East. 475 
 Alexander v. Gardner, 1 Bing. (X. C.) G71 ; Dawes v. Peck, 8 T. R. 330 
 
 (3) London Law Mag., Vol. 4, p. 359; Smith v. Lacelles, 2 T. R. 189 
 
 (4) Glen V. Whitaker, 51 Barb. 451; Bradley u. Wheeler, 4 Rob. 18 
 Hills u. Lj'nch, 3 Rob. 42; Whiting v. Farrand, 1 Conn. 60; Quimby v 
 Carr, 7 Allen, 417; Finn v. Clark, 10 Allen, 484; Finn v. Clark, 12 Al 
 len, 522; Downer v. Thompson, 2 Hill, 137; Foster v. Rockwell, 104 
 Mass. 170; Udell t/. Boston & M. R. R., 109 Mass. 50; Wigton v. Bow- 
 ley, 130 Mass. 252; Ober v. Smith, 78 N. C. 313; Burton v. Bajrd, 44 
 Ark. 556. 
 
 (5) Magruder v. Gage, 33 Md. 344. 
 
 (6) Wheelhouse v. Parr, (Mass.) G North-eastern Rep. 787. 
 
 § 26. Delivery of More or Less than Contracted for. 
 
 The vendor does not comply with his contract by the 
 tender or delivery of either more or less than the 
 exact quantity contracted for/ or by sending goods 
 sold mixed with other goods.- And where a pur- 
 chaser received goods in excess of those ordered, and, 
 on remitting the price of those ordered, wrote : " Bal- 
 ance of goods shipped me were not ordered. You 
 will please have patience until they are sold, or they 
 are subject to your order, if you prefer it " — it 'was 
 decided that neither this communication nor the re- 
 tention of the balance of the goods, for several years, 
 without proof of sale, constituted in law any promise 
 to pay for them.^ 
 
 If the goods are delivered in an essentially altered 
 condition,'^ the contract will, therefore, not have been 
 complied with ; but where the goods are ordered 
 from a correspondent who is purchasing agent, the 
 rule is less rigid f for the law of principal and agent 
 governs, and not that of vendor and vendee.*' 
 
 As a general rule, it may be stated that the vendee 
 may refuse to receive the goods tendered, if they 
 either exceed the quantity agreed upon, or if they are 
 of a less quantity." But the vendee is bound to pay 
 for any part that he accepts ; and, after the time for
 
 38 Conditional Sales. 
 
 delivery has elapsed, he must either return or pay 
 for the goods received, and can not insist on retain- 
 ing them without payment until the vendor makes 
 deUvery of the rest.^ This doctrine, however, has 
 been expressly repudiated in New York/-^ 
 
 Words of qualification— such as " about," or " more 
 or less " — show that the quantity is not restricted to 
 the exact number or amount specified ; and, in such 
 cases, the vendor is to be allowed a certain moderate 
 and reasonable latitude in the perform ance.^'^ 
 
 (1) Benjamin on Sales, § 689; Croninger v. Crocker, 62 N. Y. 151; 
 Highland Chemical and Mining Co. v. Mathews, 76 N. Y. 145; Hill v. 
 Heller, 27 Hun (N, Y.), 416. 
 
 (2) Croninger v. Cracker, 62 N. Y. 151. See also, Southwell v. Breez- 
 ley, 5 Oregon, 143. 
 
 (3) Goodwin v. Wells, 49 Ala. 309. 
 
 (4) Reynolds v. Shuter, 3 U. C. Q. B. 377. 
 
 (5) Ireland v. Livingston, L. R. 2 Q. B. 50. 
 
 (6) Cassaboglou v. Gibbs, 9 Q. B. D. 220. 
 
 (7) Dixon V. Fletcher, 3 M. & W. (Eng.) 146; Hart v. Mills, 15 M. & 
 W. 85; Levy v. Green, 8 E. & B. (Eng.) 575; Oxendale v Whetherell, 
 9 B. & C. 386; Marland v. Stanwood, 101 Mass, 470; Rommel v Win- 
 gate, 103 Mass. 327; Croninger v. Crocker, 62 N. Y. 151; Wright v. Barns, 
 14 Conn. 518; Dula v. Cowles, 2 Jones L. (N. C.) 454, Smith v. Lewis, 
 40 Ind. 98; Railroad Co. v. Lent, 63 111. 288. 
 
 (8) Benjamin on Sales, § 600; Defenbaugh v. Weaver, 87 111. 132 
 
 (9) McMillan v. Venderlip, 12 Johns. 167; Champlin v. Rowley, 13 
 Wend. 260; Mead v. Digalyer. 16 Wend. 636; Kein v. Tupper, 52 N. Y. 
 555. 
 
 (10) Creighton v. Comstock, 27 Ohio St. 548, Brawley v. United 
 States, 96 U. S. 168; Merriam v. United States, 14 Ct. of Claims, 289. 
 
 § 27. Time of Delivery. Where the contract ex- 
 presses the time of delivery, it has V)een held to 
 be a question of construction ; and, therefore, one for 
 the court, rather than the jury, to consider.^ In con- 
 struing mercantile contracts, the word " month " is 
 construed as a calendar month, unless the contrary 
 meaning is clearly indicated by other expressions.^ 
 If delivery is to be made in a certain number of
 
 Conditions Precedent to he Performed hy Vendor. 39 
 
 days, tlitjy arc to bo construed as ooiisecutive days, 
 Sundays included ; but the day of making the con- 
 tract should be excluded in computing the time.^ 
 Delivery "between " two days includes the last day 
 named or designated.' Readiness on the part of the 
 vendee, at the time and place designated, has been 
 held sufficient, without actual delivery.'^ 
 
 In the case of Startup v. MacDonald,^ where the 
 hour, up to which the vendor can make a valid de- 
 livery on the last day lixed by the contract, was under 
 consideration, Parker, R., in his judgment, says: 
 " Wliere a thing is to be done anijivhere, a tender, a 
 convenient time before midnight, is sufficient ; where 
 the thing is to be done at a particular place, and 
 where the law implies a duty on the party to whom 
 the thing is to be done to attend, that attendance is 
 to be by daylight and a convenient time before sun- 
 set." And this may be regarded as the established 
 rule in our own courts.'' 
 
 In a late case of Stewart v. Marnell,^ where the 
 contract was to deliver ten car loads of blooms from 
 an iron forge, " ^5 fast as they mnij he produced,^'' and 
 the vendor had actually delivered all he produced, 
 the court held that under the contract the blooms 
 must be produced in the ordinary operations of 
 the forge, with reasonable diligence, and with reason- 
 able and proper eiforts, and the vendor had no right 
 to omit to produce them from mere motives of econ- 
 omy or convenience. And in the case of Phillips v. 
 Taylor,^ where the parties contracted, October 29, 
 1879, to ship four hundred and fifty bales of rags from 
 Leghorn to Xew York by '"prompt shipment,''' and the 
 facts showed marked delay in delivery, the vendee 
 refusing to accept delivery after March 5, 1880, it 
 was held that the vendee, in an action bv the vendor
 
 40 Conditional Sales. 
 
 for the price of the portion delivered could counter- 
 claim damages occasioned by such delay. 
 
 Where one sells goods to another, to be shipped 
 from a foreign port, the shipment to be mnde within 
 certain specified months, and the goods to be of a cer- 
 tain quality, and the name of the vessel to be de- 
 clared as soon as it is known to the vendor, the 
 stipulations named are conditions precedent, to be 
 performed by the vendor before he can sue for a 
 breach of the contract; and if he fails to ship the 
 goods of the quality prescribed within the time speci- 
 fied, or if he does not declare the name of the ves- 
 sel as soon as it is known to him, the failure of these 
 or any one of these conditions releases the vendee 
 from liability.'" 
 
 A delivery and acceptance after the agreed time 
 does not itself enable the veijdee to set up the non- 
 delivery at the agreed time in reduction of the 
 price. ^^ But if a note is given in consideration for 
 goods to be delivered at a future date, a failure to 
 deliver at that time will constitute a failure of con- 
 sideration.'- 
 
 (1) Plill V. Hobart, 16 Me. 164; Atwood v. Clark, 2 Greenl. 249; 
 Howe V. Huntington, 15 Me. 350; Kingsley v. Wallis, 14 Me. 57; Mur- 
 ray V. Smith, 1 Hawks, 41 ; Grune v. Dingley, 24 Me. 131 ; Cameron v. 
 Dingley, 24 Me. 131; Cameron v. Wells, 30 Vt. 633; Welsh v. Gossler, 
 89 N. Y. 540 ; Atwood v. Clark, 2 Me. 249. 
 
 (2) Reg. V. Chawton, 1 Q. B. 247; Simpson v. Maritson, 11 Q B. 23; 
 Hart V. Middleton, 2 C. & K. 9; Webb v. Fairmaner, 3 M. & W. 473; 
 Thomas v. Shoemaker, 6 Watts & S. (Penn.) 179; Barnes v. Boomer, 10 
 Grant (Ont.), 532; Churchill v. Merchants' Bank, 19 Pick. 532, 5.35. 
 
 (3) Brown v. Johnson, 3 M. & W. (Eng.) 331; Farwell v. Rogers, 4 
 Cush. (Mass.) 460; Butterick v. Holden, 8 Cu.sh. 233; Homes v. Smith, 
 16 Me. 181 ; Oatman v. Walker, 33 Me. 71 ; Windsor v. China, 4 Greenl. 
 298; Ewing v. Bailey, 4 Scam. 420; Weeks v. Hull, 19 Conn. 376; 
 Blake v. Crowningshield, 9 N. H. 304; Cornell v. Moulton, 3 Denio (N. 
 y.), 12. 
 
 (4) Atkins v. Boylston F, & M. Ins. Co., 5 Mete. 400; Richardson v 
 Ford, 14 111. 332; Cook v. Gray, 6 Ind. 335; Cook v. Drais, 2 Cin.
 
 Conditions Precedent to he Performed by Vendor. 41 
 
 (Ohio) o4i); Mowry v. Kirk. 10 Ohio St. 375: Nixon v. Nixon, 21 Ohio 
 St. 1 14. 
 
 (.0) Cook V. Drais, l2 Cin. (Ohio) 340. 
 
 (6) Startup v. Mac Donald, 6 M. k G. ">93. 
 
 (7) Croninger v. Trocker, 62 N. Y. 151 ; McCarty v. Gokay, 31 Iowa, 
 505; Kirkpatrick V. Alexander, 60 Ind. 95. 
 
 (8) Stewart v. Marnell, (N. Y.) 4 N. E. Rep. 743. 
 
 (9) Phillip.s V. Taylor, (N. Y.) 4 N. E. Rep. 727. 
 
 (10) Salomon v. Boyken, (Md.) 7 Atlantic Rep. 701; Filleyv. Pope, 6 
 Sup. Ct. Rep. 20; Norrington v. "Wright, 6 Sup. Ct. Rep. 12; Cunning- 
 ham V. Judson, (N. Y.) 2 N. E. Rep. 915. 
 
 (11) Moffatt V. Lunt, 2 Pugsley k Burbridge (N. B.), 673; Wharton v. 
 Mo. Car Foundry Co., 1 Mo. App. 577; Bock v. Healy, S Daly (N. Y.), 
 156. 
 
 (12) Corwith v. Cottef, 82 111. 585. 
 
 § 28. Place of Delivery. If the contract be to de- 
 liver the thing ordered at the residence or place of 
 business of the vendee, the vendor is liable, although 
 such delivery becomes impossible, unless it becomes 
 so through the act of the vendee.^ If the vendor re- 
 fuse to deliver it at a time and place agreed on, and 
 it perish afterward without his fault, he is liable for 
 it. But if he be ready, and the vendee wrongfully 
 refuse or neglect to receive it, the vendor is not 
 liable, unless the thing perishes through his gross 
 and wanton negligence. 
 
 If, in an action for goods sold and delivered, 
 the vendor proves a delivery at the place agreed, 
 and that there remained nothing further for him 
 to do, he need not show an acceptance by the ven- 
 dee. - 
 
 If the vendee unreasonably neglect or refuse to 
 comply with conditions precedent to delivery, or to 
 receive the goods on delivery, the seller may, after 
 due delay and proper precautions, resell them, and 
 hold the buyer responsible for any deficit in the 
 price."' It is common, and generally advisable, to sell 
 them at auction, but it is not necessary.^
 
 42 Conditional Sales. 
 
 (1) Haj'Tvard v. Scougall, 2 Camp. 56; Atkinson v. Ritchie, 10 East, 
 530; De Medeiors v. Hill, 5 C. & P. 182. 
 
 (2) Nichols V. Morse, 100 Mass. 523; Pacific Iron Works v. Long Is- 
 land R. R. Co., 62 X. Y. 272; Washburn Iron Co. v. Russell, 130 Mass. 
 543; Sedgwick v. Cottingham, 54 Iowa, 512; Wright v. Weed, 6 U. C. 
 Q. B. 140; Supple v. Gilmour, 5 U. C. C. P. 318. 
 
 (3) McLean v. Dunn, 4 Bing. 722; Mertens v. Adcock, 4 Esp. 251; 
 Girard v. Taggart, 5 S. & R. 19; Sands v. Taylor,. 5 Johns. 395. 
 
 (4) Crooks V. Moore, 1 Sandf. 279; Conway v. Bush, 4 Barb. 564. 
 
 § 29. Estoppel, Delivery by. Lord Blackburn an- 
 nounces the doctrine that there are some cases in 
 which it has been held that the property was 
 changed, though acts necessary to put the goods in a 
 deliverable state remained to be done by the vendor ; 
 but, upon investigation, it will be found that the con- 
 duct of the vendor estopped him from denying the 
 transfer.^ Thus, where a party negligently or cul- 
 pably stands by and allows another to contract, on 
 the faith and understanding of some fact which he 
 can contradict, he can not dispute that fact in an ac- 
 tion against the party whom he has thus assisted in 
 deceiving.- Where a vendee is held out, or suffered 
 to hold himself out as authorized to sell, the vendor 
 is estopped from denying his authority,^ and the au- 
 thority of the vendee may even be inferred from the 
 conduct of the vendor.^ In a number of cases it has 
 been held, that a bill of sale and order for the deliv- 
 ery of the goods, or a consignment to vendee and 
 drafts drawn on account, or a receipt from the vendor 
 as forwarding merchant, estopped the vendor from 
 disputing title.'^ 
 
 (1) Blackburn on Sales, 190. 
 
 (2) Thompson v, Blanchard, 4 Comst. .303. 
 
 (3) Stephens v. Baird, 9 Cowen, 274; Pickering v. Busk, 15 East, 38. 
 
 (4) Dyer v. Pearson, 3 B. & C. 38. 
 
 (5) Davis V. Bradley, 24 Vt. 55; Brewster v. Baker, 16 Barb. 613; 
 Whitaker v. Williams^ 20 Conn. 98; Cox v. Buck, 3 Strobh. 367.
 
 Conditions Precedent to be Performed by Vendor. 43 
 
 Article 7, — Sales by Description. 
 § 30. Delivery of Described Article, Essential. 
 
 5 30. Delivery of Described Article, Essential. If the 
 
 sale is of a described article, the tender of an article 
 answering the description is a condition precedent to 
 the vendee's liability, and if this condition be not per- 
 formed, the vendee is entitled to reject the article,' 
 or, if he has paid for it, to recover the price, as money 
 had and received for his use;- whereas, in case of war- 
 ranty, the rules are different.^ 
 
 Lord Abinger, in Chanter v. Hopkins,'' protested 
 against the confusion which arises from the prevalent 
 habit of treating such cases as warranty, saying : 
 
 "A good deal of confusion has arisen in many of 
 the cases upon this subject, from the unfortunate use 
 made of the word warranty. Two things have been 
 confounded together. A warranty is an express or 
 implied statement of something which a party under- 
 takes shall be part of a contract, and though part of 
 the contract, collateral to the express object of it. 
 But, in many of the cases, the circumstance of a party 
 selling a particular thing by its proper description 
 has been called a warranty, and the breach of such a 
 contract a breach of warranty ; but it would be better 
 to distinguish such cases as non-compliance with a con- 
 tract which a party has engaged to fullill ; as, if a 
 man offers to buy peas of another, and he sends him 
 beans, he does not perform his contract; but that is 
 not a warranty ; there is no warranty that he shall 
 sell him peas; the contract is to sell peas, and if he 
 sells him any thing else in their stead, it is a non- 
 performance of it." 
 
 Notwithstanding the apparent soundness of the 
 reasoning of Lord Abinger, our American courts have
 
 44 Conditional Sales. 
 
 continued to hold that words of description in a sale 
 constitute a warranty.^ However, these cases may 
 perhaps be reconciled to some extent, upon the 
 ground, that in those cases where it was held that 
 there was a warranty, there was something beyond 
 mere matter of description — something amounting to 
 an assertion or averment of a fact relating to the 
 kind, quality, or condition of the article sold. 
 
 In the case of Winsor v. Lombard,*^ Shaw, C. J., 
 said : " It is now held, that, without express war- 
 ranty or actual fraud, every person who sells goods 
 of a certain denomination or description undertakes, 
 as a part of his contract, that the thing delivered cor- 
 responds to the description, and is, in fact, an article 
 of the species, kind, and quality thus expressed in the 
 contract of sale." But it has also been held, that- it 
 is sufficient, if the goods are in specie, that for which 
 they are sold and are merchantable under the de- 
 nomination affixed to them by the vendor.'' 
 
 If, upon delivery, the vendee, using due diligence, 
 discover that the goods do not answer the description, 
 he must forthwith' offer to return them, and hold 
 subject to vendor's orders. The offer to return must 
 be unconditional, and not coupled with an offer to 
 exchange them for something else — amounting to an 
 exercise of ownership. Delay in offering to return, 
 or any act equivalent to acceptance, employment, 
 use, or disposition of the goods, after knowledge of 
 deficiency, if any exists, would be construed either 
 into an admission that there was no such deficiency, 
 or into a waiver of his rights to rescind the sale be- 
 cause of such deficiency.^ 
 
 (1) Mansfield v. Trigg, 113 Mass. 354. 
 
 (2) Smith V. Lewis, 40 Tnd. 98; Doane v. Dunham, 65 111. 512; Cox v. 
 Long, 69 ^ C. 7.
 
 L(jnaiiiiJ/i.-< I'niudenI fo he Porformed by Vendor. 45 
 
 (3) See I 51, on Suit- l.v I loriiplion. 
 
 (4) Chandler v. Hopkins. 4 M. & W."399. 
 
 (5) Hastings u. Lovering, 2 Pick. 214; Hogins v. Plympton, 11 Pick. 
 99; Winsor v. Lonabard, IS Pick. GO; Hernshaw v. Robins, 9 Mete. 87; 
 Lamb v. Crafts, 12 Mete. 355; Bradford v. Manly, 13 Ma.ss. 139; Morrill 
 V. Wallace, 9 N. H. 114; Foss r. Sabin, 84 111. 564; Bryant v. Sears, 49 
 Iowa, 373; Osgood v. Lewis, 2 II. & Gill, 495; Borrekins v. Bevan, 3 
 Rawle, 23; Hawkins v. Pemberton, 51 N. Y. 204; Wolcott v. Mount, 7 
 Vroom, 262; Beals v. Olmstead, 24 Vt. 114; Richmond T. & M. Co. v. 
 Farquat, 8 Blackf. 89. 
 
 (6) Winsor v. Lombard, 18 Pick. 60. 
 
 (7) Mixon V. Coburn, 11 Mete. 559; Lamb v. Crafts, 12 Mete. 353; 
 Sweet V. Shumvvay, 102 Mass. 365; Gossler v. Eagle Sugar Refinery, 103 
 Mass. 365; Fraley v. Bispham, 10 Penn. St; 820; Whitman v. Fruse, 23 
 Me. 212. 
 
 (8) Parsons on Contracts, Vol. 1, p. 593; Leslie v. Evans, 1 Clev. Rep. 
 273; Hirschborn v. Stewart, 49 Iowa, 418; Cahen v. Piatt, 69 N. Y. 348; 
 Graff V. Foster, 67 Mo. 512; Howard v. Hayes, 47 N. Y. Sup. Ct. 89; 
 Gammon v. Abrams, 53 Wis. 323; Welch v. Gossler, 47 N. Y. Sup. Ct. 
 104; Helden v. Roberts, 134 Mass. 38; Dennis v. Stoughton, 55 Vt. 371; 
 Maekey v. Swartz, 60 Iowa, 710; Philleo v. Sandwich Mfg. Co., 15 Neb. 
 625 ; Proctor v. Spratley, 78 Va. 254.
 
 46 Conditional Sales. 
 
 CHAPTER IV. 
 
 CONDITIONS PRECEDENT TO BE PERFORMED BY VENDEE. 
 
 Article 8. — Implied Conditions. 
 
 § 31. Acceptance Not. 
 
 § 32. Payment. 
 
 § 33. Cash Payment. 
 
 § 34. Payment by Check. 
 
 § 35. Payment by Note. 
 
 § 36. Tender. 
 
 § 37. To whom Payment can be Made. 
 
 § 31. Acceptance— Not an Implied Condition. The 
 
 English statute of frauds provided that no contract 
 for the sale of any goods, wares, or merchandise, for 
 the price of ten pounds sterling or upward, shall be 
 allowed to be good, except the buyer shall accept part 
 of the goods so sold. Many features of this statute 
 have been incorporated into the statutes of the va- 
 rious states of the Union. But unless the formal ac- 
 ceptance of the goods is provided for by the statutes 
 of the state in which the contract is made, or is one 
 of the express conditions of the contract, it will not 
 be regarded as a condition precedent. Conditional 
 sales partake of the nature of executory contracts of 
 sale; for, whether 'the conditions be express or im- 
 plied, they nevertheless provide for the doing of 
 something in the future which is essential to make 
 the sale complete. However, an executory contract 
 of sale may become a complete bargain and sale, by 
 the performance of the conditions necessary to vest 
 title, and a right of action thereby vests in the vendor 
 for the price or value of the goods, unless it be shown 
 that such was not the intention of the parties.^
 
 Conditions Precedent to he Performed hy Vendee. 47 
 
 (1) Benjamin on Sales, § Mi4; Townsend v. Hargraves, 118 Mass- 
 325, Haskins v. Warren, lio Mass. 53;<; Jenkins v. Jarrelt, 70 N. C. 
 256; Lester v. East, 49 Ind. 5KS; Hanaur v. Rartels, 2 Col. 514. 
 
 § 32. Payment a Condition Precedent. In every sale, 
 unless otherwise exi)resse(l, there is an implied con- 
 dition that the price shall be paid, before the vendee 
 has a right to possession ; and this is a condition pre- 
 cedent.^ The delivery of the goods and payment of 
 the price are presumed to be simultaneous and con- 
 current acts." The delivery of the goods on such a 
 sale, with the expectation of receiving immediate 
 payment, is not an absolute delivery, and no title 
 vests in the vendee until the price is paid.^ 
 
 The common-law rule is, that the vendee has no 
 right to delay payment until demand is made, but 
 must pay as soon as the money is due.^ However, 
 where the price is made payable only after demand, 
 a reasonable time must be allowed in which to make 
 payment, and where payment is demanded after 
 banking hours, and payment by check refused, it is 
 not unreasonable delay for the vendee to offer pay- 
 ment in money on the morning of the next banking 
 day.' 
 
 Where payment is made in the mode requested by 
 the vendor, by mail, postal note, post-office money 
 order, draft, or check, the vendee will be discharged 
 from further liability, even though the money never 
 reach the vendor's hands.^ If money be transmitted 
 in a letter, through the post-office, by a vendee to his 
 vendor, without his previous direction or assent, 
 either expressly given, or to be implied from his con- 
 duct, usual course of business, or particular facts 
 and circumstances found, it remains, until it reaches 
 its destination and is actually received, entirely at 
 the risk of the vendee.'
 
 48 Conditional Sales. 
 
 (1) 2 Parsons on Contracts, § 537; Turner v. Moore, 58 Vt. 455. 
 
 (2) Benjamin on Sales, § 592; Elevator Co. v. Bank, 23 Ohio St. 311. 
 
 (3) Adams v. O'Connor, 100 Mass. 515; Whitwell v. Vincent, 4 Pick. 
 449; Liven v. Smith, Denio, 571; Conway v. Bush, 4 Barb. 564; Merrill 
 V. Stanwood, 52 Me. 65; Keeler v. Field, 1 Paige, 312; Russell v. Minor, 
 22 Wend. 659; Hanson v. Meyer, 6 East, 614; Hays v. Currie, 3 Sandf. 
 Ch. 585; Conger v. Railroad Co., 17 Wis. 477; Powell v. Bradlee, 9 Gill 
 & Johns. 220; TTaggerty v. Palmer, 6 Johns. Ch. 437; Acker v. Camp- 
 bell, 23 Wend. 372; Coggill v. Railroad Co., 3 Gray, 545; Coil v. Willis, 
 13 Ohio St. 28; Chambers v. Frazier, 29 Ohio St. 362; Hodgson v. Bar- 
 rett, 33 Ohio St. 63. 
 
 (4) Davis Sewing Machine Co. v. McGinnis, 45 Iowa, 538; Brandon 
 Mfg. Co. V. Morse, 48 Vt. 322. 
 
 (5; Bass v. White, 65 N. Y. 565. 
 
 (6) Warwick v. Noakes, Peake, 68, 98 ; Wakefield v. Lighgow, 3 Mass. 
 249. 
 
 (7) Crane v. Pratt, 12 Gray, 348, 349; Gurney v. Howe, 9 Gray, 404 
 40S 
 
 § 33. Cash Payment. This condition may be ex- 
 pressed or implied, and it has been held that where 
 goods are sold at a fixed price, to be paid on a certain 
 day, and delivery is made upon condition express or 
 implied, that until the price is paid the title is to re- 
 main in the vendor, payment is a condition precedent, 
 and until performed the property is not vested in the 
 vendee.^ Therefore, if goods are delivered to the 
 vendee, accompanied or followed" by an invoice or 
 statement on which the words " cash," " net cash," or 
 "cash in ten days," or any other words which mer- 
 cantile usage may adopt to express this condition, no 
 title vests until the condition shall have been com- 
 plied with.'^ But, although a sale of goods be made 
 for cash, yet if their delivery is unconditional, and 
 without fraud or mistake, the title to the goods 
 thereby becomes vested in the vendee, notwithstand- 
 ing the cash is not in fact paid.^ However, the use 
 of the initials "C. 0. D." manifests the vendor's in- 
 tention to control the jus disponendi.^ 
 
 The time allowed the vendee in which to pay the
 
 Conditions Precedent to be Performed by Vendee, 49 
 
 cash may be varied by custom. In some localities 
 "cash" is understood 'to mean payment in ten days 
 (or a reasonable time in which to receive and exam- 
 ine the goods), while in others it is contended that 
 payment in twenty or thirty days is a cash payment. 
 But if the vendee makes an assignment prior to pay- 
 ment, he then puts it beyond his power to comply 
 with the terms of sale, and no title vests,° for the as- 
 signee can take no better title than the vendee had.' 
 Therefore, if the vendor is guilty of no laches he may 
 recover the goods, even from one who has purchased 
 from his vendee in good faith without notice.^ How- 
 ever, in some states this rule has been so far modi- 
 fied, that if the conduct of the vendor be such as to 
 allow the vendee to assume the position of owner, 
 innocent purchasers from such conditional vendee ac- 
 quire a good title.^ But the same courts have held, 
 that if the contract partakes of the nature of bail- 
 ment, with an executory conditional agreement for 
 the purchase of the chattel, the condition not having 
 been performed, no title can be acquired from the 
 bailee by a purchaser.^" 
 
 (1) Blanchard v. Child, 7 Gray, 155 ; Burbank v. Crooker, 7 Gray. 158 ; 
 Fifield V. Elmer, 2') Mich. 48; Dishon v. Bigelow, 8 Gray, 159; Whitney 
 V. Eaton, 15 Gray, 225; Porter v. Pettingill, 12 N. II. 299; Luoy v. 
 Bundy, 9 N. H. 298; Davis w. Emery, 11 X. H. 230; Gambling v. Read, 
 1 Meigs, 281-286; Heath v. Randall, 4 Cush. 195; Bennett t'. Simms, 1 
 Rice, 421 ; West v. Bolton, 4 Vt. 558; Bigelow v. Huntley, 8 Vt. 151; 
 Smith V. Foster, 18 Vt. 182; Buchmaster v. Smith, 22 Vt. 203; Root v. 
 Lord, 23 Vt. 568; Armington v. Houston, 38 Vt. 448; Duncan v. Stone, 
 45 Vt. 118; Davis v. Bradley, 24 Vt. 55; Tibbetts v. Towle, 3 Fairf. 341 ; 
 George v. Stubbs, 26 Me. 243; Sawyer v. Fisher, 32 Me. 28; Hotchkiss 
 V. Hunt, 49 Me. 219; Brown v. Haynes, 52 Me. 578^ Bunker v. McKin- 
 ney, 63 Me 529; Everett v. Hail, 67 Me. 497; Parris v. Roberts, 12 Ired. 
 268; Copeland v. Bosquet, 4 Wash. C. C. 588; Sewall v. Henry. 9 Ala. 
 24; Dudley v. .\bner, 52 Ala. 572; Sumner v. Woods, 67 Ala. I "9; Fair- 
 banks v Eureka Co., 67 Ala. 109; Rawls v. Saulsbury, 66 Ga. '6'J6; Lam-
 
 50 Conditional Sales. 
 
 bert V. McCloud, 15 Rep. 780; Herring v. Ilappock, 15 N. Y. 409 
 Hasbrouck v. Loundsbury, 26 N. Y. 59><; Bean v. Edge, 84 N. Y. 518 
 Herschorn v. Canney, 98 Mass. 150; Booraem v. Crane, 103 Mass. 522 
 Sage V. Sleuts, 23 Oliio St. 1 ; Little v. Page, 44 Mo. 412; Refining Co. v. 
 Miller, 7 Phila. (Penn.) 97. 
 
 (2) Shenk v. Saunders, 15 Gray, 37; Marston v. Baldwin, 17 Mass. 
 606; Hammett v. Lineman, 48 N. Y. 399. 
 
 (3) Bauendahl v. Horr, 7 Blatchf. 548. 
 
 (4) Foley v. Mason, 6 Md. 37; Henderson v. Lauck, 21 Penn. St. 359; 
 Pierson v. Hoag, 47 Barb. (N. Y.) 243. 
 
 (5) Wagner v. Hallack, 3 Cal. 176. 
 
 (6) Kraft v. Dulles, 2 Cin. Sp. Ct. Rep. 116. 
 
 (7) Hodgson v. Barrett, 33 Ohio St. 63. 
 
 (8) Ballard v. Burgett, 40 N. Y. 321; Sanders v. Keber and Miller, 
 28 Ohio St. 630. 
 
 (9) Smith V. Lyncs, 5 N. Y. 41 ; Comer v. Cunningham, 77 N. Y. 391; 
 Wait V. Green, 36 ^;. Y. 556; Dows v. Kidder, 84 N. Y. 121, 127; Flu- 
 man V. McKean, 25 Barb. 474; Hintermister v. Lane, 27 Hun, 497. 
 
 (10) Ballard v. Burgett, 40 N. Y. 321 ; Austin v. Dye, 4G N. Y. 500; 
 Comer v. Cunningham, 77 N. Y. 398; Sargent v. Gile, 8 N. H. 325; Mc- 
 Farland v. Farmer, 42 N. H. 386 ; King v. Bates, 57 X. H. 446. 
 
 5> 34. Payment by Check or Draft. Where payment 
 is made by a check, drawn by the vendee on his banker, 
 this is a mode of making a cash payment, and not 
 the acceptance of a security. Such payment is con- 
 ditional, and if the check, upon due presentation, is 
 dishonored, the vendor's right to retake the goods 
 from the vendee remains in full force. ^ But if a 
 check received in payment is not presented within 
 reasonable time, and the drawer is injured by the de- 
 lay, the check will operate as an absolute payment.^ 
 If payment is made by a check indorsed by the 
 vendee, which the vendor might have refused, but 
 instead of doing so, keeps the check, presents it to 
 the bank for payment, and sues upon it, he must be 
 deemed to have accepted the check in satisfaction of 
 the goods sold, and the vendee's liability is only on 
 his indorsement.^ 
 
 A draft on a third person, received by the vendor 
 from the vendee, is also presumed to be a conditional
 
 Conditions Precedent to he Performed hy Vendee. 51 
 
 payment, iind the burden is upon the vendee to 
 prove an agreement that it was to be an absolute 
 payment.^ In the case of Case v. Seass,^ goods were 
 sold to a firm, and drafts for acceptance sent. Mean- 
 while, the firm dissolved, and the succeeding member 
 ofi^ercd his own draft in settlement, which the vendor 
 refused. Whereupon, the succeeding member again 
 sent his own acceptances, with the false statement 
 that the retiring member was east, but if the drafts 
 were unsatisfactory, he would obtain an indorser. 
 The vendor replied, that he was in need of the paper 
 at once, and retained it. The retiring member knew 
 of this correspondence, and retained control of the 
 goods until it was closed. Held, that as the paper 
 of the only debtor supposed to be within reach was 
 forced upon the vendor, and no oifer was made to 
 return the merchandise, there was no implication, 
 from the correspondence, of a discharge of the other 
 debtor, and that if there was, it was made nugatory 
 by the fraud of the purchasers. 
 
 Where payment is by exchange, the vendee, in 
 purchasing a bill of exchange for remittance, is held 
 only to the degree of care which a prudent business 
 man exercises in conducting his own business, and 
 he is not rendered liable by the unexpected failure 
 of the bank drawing the bill before it can be pre- 
 sented.^ 
 
 (1) Benjamin on Sales, § 731 ; Everett v. Collins, 2 Camp. 515; Smith 
 V. Ferrand, 7 B. & C. 19; Pierce f. Davis, 1 Moody & Rob. 365; Hough 
 V. May, 4 Ad. ii, E. 954; Small v. Franklin Mining Co., 99 Mass. 277; 
 Weddigen v. Boston Elastic Fabric Co., 100 Mass. 42'2; Phillips v. Bal- 
 lard, 5S Ga. 256; Sweet v. Titus, 67 Barb. 327; Hodgson v. Barrett, 33 
 Ohio St. 63; Fleig v. Sleet, 43 Ohio St. 53; Blair v. Wilson, 28 Gratt. 
 165; Kermeyer v. Newby, 14 Kan. 164; Woodburn v. Woodburn, 115 
 111. 427. 
 
 (2) Hopkins v. Ware, L. R. 4 Ex. 26S; Smith v. Miller 43 N. Y. 
 171.
 
 52 Conditional Sales. 
 
 (3) Sellers v. Johnson, 65 N. C. 104; Redpath v. Kolfage, 16 C. Q. B. 
 433. 
 
 (4) League v. Waring, 85 Penn. St. 244; Hall v. Stevens, 40 Hun (N. 
 Y.), 578. 
 
 (5) Case v. Seass, 44 Mich. 195. 
 
 (6) Underwriters' Wrecking Co. v. Uilderwriters, 40 Ark. 161. 
 
 § 35. Payment by Note. Where it is part of a con- 
 tract for sale of goods, that they are to be paid for by 
 the negotiable note of the vendee, such payment is a 
 condition precedent to the sale, and the title to the 
 goods will not vest in the vendee by a delivery to 
 him of the goods, without such payment, or waiver 
 of the condition by the vendor.^ However, the giv- 
 ing and acceptance of a note for the amount of a debt 
 does not extinguish the indebtedness, unless an in- 
 tent to extinguish is shown. Such intent may be 
 either expressed, or implied from the circumstances ; 
 and is a question for the jury.^ 
 
 If the note of the vendee is to be " satisfactorily in- 
 dorsed " by a third person, the taking of the note by 
 the vendor without indorsement, on the promise of 
 the purchaser that the indorsement should be fur- 
 nished, and making no subsequent demand for such 
 indorsement, and failure to return the note, do not, 
 as matter of law, amount to a waiver of the con- 
 dition.-^ 
 
 If a bill or note be indorsed, and given by the ven- 
 dee to the vendor merely as collateral security, the 
 duty of the vendor is the same as if the bill had been 
 given in conditional payment, and if he neglect to 
 present, or to give notice of dishonor to the vendee, 
 the vendee will be discharged from liability on the 
 bill, and the laches will operate so as to constitute 
 the bill absolute payment for its amounf 
 
 Where, however, payment is made in paper to 
 which the vendee is not a party, it is deemed to have
 
 Conditions Precedent to he Performed by Vendee. 53 
 
 passed as cash.^ If the securities thus passed were 
 forged, or not what on their face they purport to be, 
 the vendor would have the right to rescind the sale 
 for failure of consideration. And if the securities, 
 though genuine, were known to the vendee to be 
 worthless when he passed them, his conduct would 
 be deemed fraudulent, and the vendor would be en- 
 titled to rescind the sale, and bring an action in 
 replevin for the goods.*^ The vendor must offer to 
 return the note unless he proves it absolutely worth- 
 less.' 
 
 But if the worthless character of the securities is 
 unknown to both parties, it would be a case of mutual 
 mistake of fact, and the liability of the vendee would 
 continue.*^ 
 
 Where the vendee, acting as the agent of an un- 
 disclosed principal, buys goods, and tenders his own 
 note in settlement, the presumption that the note 
 was taken in payment is rebutted, and the vendor 
 may resort to the principal for payment.^ And 
 where a firm agreed to settle for merchandise with a 
 note, and after dissolution a partnership note is 
 given by the remaining partner, the other can repu- 
 diate his liability thereon ; and if he is released, the 
 vendor can treat the note as different from that 
 agreed on, and it can not then be regarded as pay- 
 ment. ^° 
 
 Where by mistake a note for a less amount than 
 due is executed, the title does not pass.^^ 
 
 But if delivery be made without a demand of 
 the notes, within a reasonable time, the title will 
 pass.^- 
 
 (1) Young V. Kansas Mfg. Co., (Fla.) 2 So. Rep. 817; Whitney v. 
 Eaton, 15 Gray (Mass.), 225; Osborn v. Gantz, 38 N. Y. Sup. Ct. 148; 
 Budlong V. Cottrell, 64 Iowa, 234; Seed v. Lord, 66 Me. 580.
 
 54 Conditional Sales. 
 
 (2) Archibald v. Argoll, 53 111. 307; Willis v. Robinson, 80 Mo. 47, 
 Heath v. White, o Utah, 474; McGuire v. Bidwell, 64 Tex. 43; Ex 
 parte Williams, 17 S. C. 396. 
 
 (3) Kinney v. Ingalls, 126 Mass. 488. 
 
 (4) Eenjamin on Sales, § 737. 
 
 (5) Camidge v. Allenby, 6 R. & C. 373. • 
 
 (6) See Article on Fraud of Vendee, 18 Central Law Journal, 405: 
 Ponieroy's Equity Jurisprudence, §§ 901-905. 
 
 (7) Estabrook v. Sweet, 16 Mass. 303. 
 
 (8) Roberts v. Fisher, 43 N. Y. 159. 
 
 (9) Lovell V. Williams, 125 Mass. 439. 
 
 (10) Goodspeed v. South Bend Plow Co., 45 Mich. 237. 
 
 (11) Littirel v. St. John, 4 Blackf. (Ind.) 326. 
 
 (12) Lupin V. Marie, 6 Wend. (N. Y.) 77; Mannequin v. Sands, 25 
 N. Y. 640; Smith v. Lynes, 5 N. Y. (1 Seld.) 41. 
 
 J 36. Tender. A proper tender is an equivalent 
 of payment, and is as much of a discharge of the ven- 
 dee's duty as an actual payment. A proper tender 
 requires the production and offer to the vendor of an 
 amount of money equal to the price of the goods sold. 
 But the actual production of the money may be dis- 
 j^ensed with by the vendor.^ 
 
 The mere offer to pay, it not appearing that the 
 vendee had the money ready, does not amount to a 
 tender.'- However, the production of the money, and 
 the actual offer of it, may be dispensed with, if the 
 vendee is ready and willing to pay it, and is about to 
 produce it, but is prevented from so doing by a decla- 
 ration on the part of the vendor that he will not or 
 can not receive it.^ So, if a tender is prevented by 
 any contrivance or evasion of the party to whom the 
 money is to be paid, it will be equivalent to a tender, 
 or a sufficient excuse for not making it.* He who 
 makes a tender is not bound to count out the money ; 
 it is enough if the money be there and offered, so 
 that the vendor, if he choose, may count it ;'' but the 
 sum so produced must be the correct amount due.* 
 A tender of a larger sum than is due, with a demand
 
 Conditions Precedent to he Performed hy Vendee 55 
 
 for change, is not a good tender/ and it is well set- 
 tled in England, that there can be no valid tender of 
 a })art of an entire sum due, though a vendee may 
 make a valid tender on one of several distinct pur- 
 chases, if he specify the account or purchase on which 
 he makes the tender. He may also make a tender of 
 a gross amount of several demands, if enough be ten- 
 dered to pay them all.^ 
 
 Tender of balance due after deducting a set-off will 
 not be allowed ; but, upon j)ayment of the entire sum 
 due into court, the vendee may set up the plea of set- 
 off upon the suit of the vendor.^ 
 
 And a plea of tender is not supported by proving 
 an offer of a promissory note due from the vendor to 
 the vendee.^" The rule seems to be well established 
 by numerous authorities, that a tender must be an 
 unconditional offer of the money, and if accompanied 
 by any qualifying words, or with a demand of any 
 thing to be done by the party to whom the tender is 
 made, beyond the receipt of the money tendered, it 
 will avoid the tender.^^ 
 
 The vendee has no right to insist that the v^endor 
 shall admit that no more is due in respect of the de- 
 mand for which the tender is made, and if tender 
 be made of a sum of money in full for all legal 
 claims, the vendor may receive the money, protest- 
 ing that it is not sufficient, and if he pass it to the 
 vendee's credit on account, without the vendee ex- 
 pressing any dissent, the acceptance of the tender 
 will be no bar to the vendor's right to recover such 
 sum as may be found due him, exceeding the amount 
 of the tender/- 
 
 (1) Sargent v. Graham, 5 N. [I. 440. 
 
 (2) Fuller i'. Little, 7 N. II. .535; Breed v. Hurd, 6 Pick. 356; Wheeler 
 V. Knaggs, 8 Ohio, 169; Bakeman v. Pooler, 15 Wend. 637; Brown v. 
 Gilmore, S Greenl. 107; Cashman v. Martin, 50 How. Pr. 337.
 
 56 Conditional Sales. 
 
 (3) 2 Greenl. Ev. § 603; Barker v. Parkenhorn, 2 Wash. C. C. 142; 
 Blight V. Ashley, Peters C. C. 15; Parker v. Perkins, 8 Cush. 318. 
 
 (4) South worth v. Smith, 7 Cush. 391, 393; Borden v. Borden, 5 Mass. 
 67, 74; Gilmore v. Holt, 4 Pick. 258, 264; Tasker v. Bartlett, 5 Cush. 
 359; Hazard v Loring, 10 Cush. 267; Sands u. Lyon, 18 Vt. 18; Thorne 
 V. Mosher, 5 C. E Green, 257. 
 
 (5) Wheeler v. Knaggs, 8 Ohio, 169 ; Behaly v. Hatch, Walker (Miss.) 
 369 ; Breed v. Hurd, 6 Pick. 356. 
 
 (6) Isherwood v. Whitmore, 11 M. & W. 347. 
 
 (7) Benjamin on Sales, § 718. 
 
 (8) Thetford v. Hubbard, 22 Vt. 440. 
 
 (9) Benjamin on Sales, § 720. 
 
 (10) Gary v. Bancroft, 14 Pick. 315; Bellows v. Smith, 9 N. H. 
 285. 
 
 (11) Richardson v. Boston Chemical Laboratory, 9 Mete. 45, 52; 
 Thayer v. Brackett, 12 Mass. 450; Loring v. Cooke, 3 Pick. 48; Robin- 
 son V. Batchelder, 4 N. H. 40; BufFum v. Buffum, 11 N. H. 451; Brown 
 V. Gilmore, 8 Greenl. 110; Hepburn v. Auld, I Cranch, 321; Bacon v. 
 Conn, 1 Sm. & M. Ch. 348; Eastland v. Longshorne, 1 Nott. & McC. 
 194; Brooklyn Bank v. De Grauw, 23 Wend. 342; Wood v. Hitchcock, 
 20 Wend. 47; Hulos v. Slevin, 53 How. Pr. 356. 
 
 (12) Gassett v. Andover, 21 Vt. 342. 
 
 § 37. To whom Payment can be Made. Payment 
 can be properly made either to the vendor or his 
 duly authorized agent, or even to one who appears to 
 be clothed with authority.^ Each case of payment to 
 one other than the vendor, must of necessity be de- 
 pendent for its validity upon the peculiar facts sur- 
 rounding the transaction. 
 
 Payment to an attorney has been held to be as 
 effectual as it made to the vendor." And an attorney 
 has authority to receive payment as well after judg- 
 ment as before," but his authority is limited to the 
 receipt of money only."* 
 
 But if the vendor place one in a position to hold 
 himself out to the public, or to an individual, as an 
 agent, the vendor is bound by the acts of said agent, 
 whether authorized or not — the doctrine of estoppel 
 preventing the denial of the agent's apparent author- 
 ity.^ Thus, payment to a clerk in vendor's place
 
 Conditions Precedent to be Performed by Vendee. 57 
 
 of business, apparently elotbed with authority to ac- 
 cept payment, would be payment to the vendor.*^ 
 Where the usages or customs of a business are known 
 to the public, the auent is presumed to have the full 
 powers conimoidy exercised by an agent therein.' Or 
 where, in former dealings sanctioned by the vendor, 
 payment of bills have been made to an agent, pay- 
 ment to the agent under similar circumstances would 
 be payment to the vendor.** 
 
 (1) Willmott V. Smith, M. & M. 238; Harris v. Simmerman, 81 111. 
 413; Eclipse Windmill Co. v. Thorson, 46 Iowa 181. 
 
 (2) Branch v. Burnley, 1 Cal. 147. 
 
 (3) Brackett v. Norton, 4 Conn. 517; Erwin v. Blake, 8 Pet. 18; Gray 
 V. Wass, 1 Greenl. 257; Lewis v. Gamage, 1 Pick. 347. 
 
 (4) Savoury v. Chapman, 8 Dowl. 656; Jackson v. Bartlett, 8 John-. 
 361; Kellogg v. Gilbert, 10 Johns. 220; Carter v. Talcot, 10 Vt. 471; 
 Wilson V. Wadleigh, 36 Me. 496. ' * 
 
 (5) Lewis V. Bourbon, 12 Kan. 186; Dodge u. McDonnell, 14 Wis. 553; 
 Booth V. Wiley, 102 111. 84; Airey v. Okolona Sav. Inst., 33 La. Ann. 
 134t); Nicholson v. Moog, 65 Ala. 471: Amer. Merchants' Exp. Co. v. 
 Milk, 73 111. 224; Kingsley v. Fitts, 51 Vt. 414; Kelton v. Leonard, 54 
 Vt. 230. 
 
 (6) Barrett v. Deere, Moody & M. 200; Leslie v. Knickerbocker Life 
 Ins. Co., 63 N. Y. 27, 34; Swire v. Francis, 3 App. Cas. 106; Phillip v. 
 Aurora Lodge. 87 Ind. 505; White v. Leighton, 15 Neb. 424; Haskins 
 V. Swain, 61 Cal. 338. 
 
 (7) Bishop on Contracts, § 1103; Minor i-. Mechanics' Bank, 1 Pet. 
 46, 70; Pickering v. Busk, 15 East, 38; Whitehead v. Tuckett, 15 East, 
 400; Wright v. Solomon. 19 Cal. 64; Chouteaux v. Luch, 6 Harris 
 (Penn.), 224: York Co. Bank v. Stein, 24 Md. 447; Williams v. Getty, 
 T. Casey (Penn.), 461; Mount Olive Cemetery v. Shubert, 2 Head, 116. 
 
 (8) Watts u. Divor, 1 Grant (Penn.), 267: Farmers' Mut. Ins. Co. v. 
 Taylor, 23 Smith (Penn.), :i42; Davis v. Lane, 10 N. H. 156; Miller v. 
 Moore, 1 Cranch C. C. 471.
 
 68 Conditional Sales. 
 
 Article 9. — Express Conditions. 
 
 § 38. Sales on Trial or Approval. 
 
 § 39. Memorandum Sales. 
 
 § 40. Payment, Delivery Without. 
 
 § 41. Special Cases. 
 
 § 42. Railroad Equipment 
 
 § 43. Statutory Requirements. 
 
 ^ 38. Sales on Trial or Approval. In this class of 
 cases there is no sale until the approval is given, 
 either expressly or by implication, resulting from 
 keeping the goods beyond the time allowed for trial.^ 
 The mere failure to return the goods within the time 
 specified for trial, makes the sale absolute,- but the 
 vendee is entitled to the full time agreed on for trial. ^ 
 No definite period of trial having been agreed upon, 
 a reasonable time will be presumed or im.plied.^ 
 However, the time for trial having been designated 
 in the contract, the vendee can not avoid payment 
 because he failed to make trial within the time so 
 designated,'^ nor will the exercise of an arbitrary 
 discretion release him.*^ Where the vendee, by con- 
 tract, is to have one day for trial, the word day 
 means the entire day.'' Where a party is entitled to 
 make trial of goods, and the trial involves the con- 
 sumption or destruction of what is tried, it is a ques- 
 tion for the jury, whether the quantity consumed was 
 more than necessary for trial, for, if so, the sale will 
 have become absolute by reason of the approval im- 
 plied from thus accepting a part of the goods.^ 
 
 (1) Nowbray v. Cody, 40 Iowa, 604; Mc'^'ormick v. Bassal, 50 Iowa, 
 52^: Delamater v. Chappell, 48 Mil. 244; Colton v. Wise, 17 111. App. 
 395. 
 
 (2) Benjamin on Sales, § 505; Humphries v. Carvalho, 16 East, 45; 
 Johnson v. McLane, 7 Blackf. 501 ; Speckler v. Marsh, 36 Md. 222 ; Dewey 
 V. Erie Borough, 14 Penn. St. 211; Aultman v. Theiver^ 34 Iowa, 272;
 
 Conditions Precedent to be Performed by Vendee. 59 
 
 Prairie Fiurn»ir < o. v. laylor, il'J 111. 44 >: Waters Healing Co. v. Mans- 
 field, 48 Vt. .;Ts. 
 
 (o) Aiken v. Hyde, 99 Mass. 183; Hartford Sorghum Mfg. Co. v. 
 Brush, 43 Vt. 528. 
 
 (4) Story on Sales, § 128. 
 
 (5) Thomson-Houston Electric Co. v. Brush-Swan Electric L. and P. 
 Co., 31 T. Rep. 535. 
 
 (6) Flint V. Cook, 102 Ind. 371. 
 
 (7) Fuller v. Schroeder, (Neb.) 31 N. W. Rep. 109. 
 
 (8) Benjamin on Sales, § 596. 
 
 5 39. Memorandum Sales. Mercantile usage has 
 given to these words a special significance ; and, when 
 appearing upon a statement of account, accompany- 
 ing or following the delivery of personal property, 
 they mean that the goods are sent to the vendee sub- 
 ject to his approval, title remaining in the vendor 
 until the vendee indicates his approval or acceptance 
 of the goods. 
 
 Evidence of usage or custom is competent, and if 
 knowledge of it may be imputed to the vendee, it 
 will be presumed that the parties contracted with 
 reference to such usage, there being nothing in the 
 contract to the contrary.^ Accepting the defini- 
 tion given by mercantile usage, accej^tance becomes 
 an express condition to be performed before title 
 passes. 
 
 The acceptance must be in fact, and by means in- 
 tended to be conveyed to the knowledge of the ven- 
 dor. It is not enough to })rove that the proposal was 
 assented to by a mental act, nor by conduct unknown, 
 and not communicated to the vendor.- It is enough, 
 however, to prove that the assenting party duly 
 mailed, or delivered to the telegraph company, an 
 unqualified assent ; but it is not necessary to prove 
 that the assent actually came to the vendor's knowl- 
 edo^e.^ But the riii-ht of the vendee to assent is ex- 
 tinguished if he make an assignment or part with
 
 60 Conditional Sales. 
 
 the possession of the goods,'' for it is then beyond 
 his power to carry out the terms of the contract. 
 
 The fact, however, that the goods were actually 
 forwarded or delivered to the vendee before the re- 
 ceipt of the statement or letter containing the terms 
 of sale, is not, necessarily, a waiver of the conditions 
 of sale,^ for it is clear that there may be an actual 
 possession without conferring the right to posses- 
 sion.^ 
 
 (1) Salmon Falls Mfg. Co. v. Goddard, 14 Row. (U. S.) 446. 
 
 (2) White V. Corliss, 46 N. Y. 4G7. 
 
 (3) Vassar v. Camp, 11 N. Y. 441; Parks v. Cornstock, 59 Barb. 16: 
 Trevor v. Wood, 36 N. Y. 307. 
 
 (4) Kraft v. DuUis, 2 Gin. S. C. Rep. 116. 
 
 (5) Shenk v. Saunders, 15 Gray, 37; Marston v. Baldwin, 17 Mass. 
 606 ; Hammett v. Lineman, 48 N. Y. 399. 
 
 (6) Warner v. Porter, 2 Disney, 126. 
 
 § 40. Delivery without Payment. On a sale of per- 
 sonal property, where the right to receive payment 
 before delivery is waived by the vendor, and imme- 
 diate possession is given to the vendee, and yet, by 
 express agreement, the title is to remain in the ven- 
 dor until the payment of the price, such payment is 
 strictly a condition precedent ; and, until performance, 
 the right of property is not vested in the vendee.^ 
 Even where it is agreed that the title to chattels 
 paid for in part only, shall not pass until full pay- 
 ment, the sale is a conditional one.^ The vendee can 
 convey no title by sale, and the property may be re- 
 claimed, in the hands of his innocent vendee, by the 
 original vendor.'^ And the property is not subject to 
 seizure by creditors of the vendee until they have 
 paid or tendered the vendor the amount due.^ But 
 even a tender of the amount due will not avail to 
 make a levy good, if the property has been taken 
 possession of by the vendor.^ In the case of Lewis v.
 
 Conditions Precedent to he Performed hy Vewlee. 61 
 
 McCabe/' certain liquors were sold on condition that 
 they were to remain the property of the vendors until 
 paid for, but with the understanding that if any were 
 sold by the vendees, who were retail dealers, l)efore 
 payment, the vendors could enforce the conditions 
 only against what remained unsold. This was held 
 to be a valid conditional sale, and that the vendors' 
 title to the portion unsold was good as against an at- 
 taching creditor of the vendees. 
 
 Again, in the case of Blanchard v. Cooke,^ the ven- 
 dor sold a stock of goods, with the agreement that 
 the title should remain in him until paid for; thcit, in 
 case of payments being made upon account, title to 
 the goods should vest in the vendee in proportion to 
 the amount paid. That, as to the future additions to 
 the stock, the vendor should be the owner of a frac- 
 tional part thereof, which fractional part was at all 
 times to bear the same proportion to the balance then 
 due and unpaid that the whole amount of goods bore 
 to the sum originally due. The contract contained no 
 provision authorizing the vendor to take possession 
 of the goods in case of default in payment. And, 
 upon consideration, the court held that the contract 
 was not a mortgage, and was not per se fraudulent or 
 void as to creditors, and that the vendor was entitled 
 to take possession of the entire stock, including addi- 
 tions, upon non-compliance by the vendee with the 
 terms of purchase. But the vendor must not have 
 been guilty of laches, in asserting his rights, nor his 
 conduct have been such as to waive performance of 
 the condition.'^ 
 
 The condition of payment is not waived by 
 taking the vendee's notes for the price,'' especiallv 
 where the note recites the conditions. ^° Where 
 delivery was not to be made until a part of the
 
 62 Conditional Sales, 
 
 price was paid, and the residue secured by suffi- 
 cient indorsers on notes, if tlie goods are delivered 
 before such indorsements are made, the vendor, after 
 disposing of part of the notes, can not again assert 
 his title to the goods/^ But where, under a contract 
 for the sale of chattels, a delivery of a portion of the 
 property sold was made to the purchaser, under an 
 agreement that a note should be given for the whole 
 quantity, upon delivery of the residue at a future 
 day, it was held that the delivery of the first parcel 
 was conditional ; and that, on the delivery of the 
 residue, and the refusal of the vendee to give the 
 notes and to deliver the first parcel on demand, an 
 action of replevin might be sustained.^^ 
 
 Where time is the essence of the contract, failure 
 to pay an installment on time entitles the vendor to 
 possession. ^^ And commencing suit for amount due 
 on a conditional contract of sale, and the issuing of 
 an attachment, does not amount to a waiver of the 
 vendor's right to retake the goods." But a forfeiture 
 is waived where the vendor, after default, makes a 
 new contract with the vendee and others, and re- 
 ceives from them all the past due installments ;^^ 
 however, waiver of one forfeiture is not evidence of 
 waiver of subsequent forfeitures. And if one of the 
 conditions be that the chattel should be kept at a 
 certain place, and should not be removed therefrom, 
 without the vendor's written consent, the requisite 
 consent to its removal to another certain place having 
 been once obtained, does not authorize a second re- 
 moval to still another place.^''' 
 
 A conditional sale of a machine, under the terms 
 of which the title does not pass to the vendee until 
 the payments provided for are made, will not enable 
 the mortgagee of the house in which the machinery
 
 Conditiona Precedent to he Performed hy Vendee. 63 
 
 is placei], to sell at a foreclosure sale, under a mort- 
 gage of the house and all the machinery therein, or 
 to be thereafter placed therein, although he had no no- 
 tice of the terms of the sale of the machinery.^' For it 
 is well settled, that the lien which attaches to "after 
 acquired property " is suljject to all the conditions 
 with which it is incumbered when it comes into the 
 hands of the mortgagor. The mortgagee takes just 
 such an interest in the property as the mortgagor ac- 
 quired — no more, no less. And the mortgagor ac- 
 quires no title until the terms of the sale shall have 
 been complied with.^^ If the chattels be mortgaged 
 by the vendee before the terms of sale are com- 
 plied with, the mortgage confers no rights on the 
 mortgagee, as against the paramount claim of the 
 vendor/^ Yet, it has been held that the vendee had 
 a right to mortgage the property, which, upon his 
 making the last payment and receiving the bill of 
 sale, vested in him, so that the mortgage took pre- 
 cedence of an attachment.-^ However, the execution 
 of such a mortgage before fulfilling the obligations of 
 the contract, is an assumption of ownership, and the 
 intent with which it is done is immaterial, so far as con- 
 cerns the vendor's right to reclaim the property.^ 
 
 One who sells a chattel, under an agreement that 
 the property is to remain in the vendor until pay- 
 ment, may, in the absence of special statutes, repos- 
 sess himself of the chattel without refunding partial 
 payments that have been made ;-- however, it is his 
 duty to notify the vendee of his claim, in order that 
 the latter may pay or tender the amount claimed to 
 be due.^ But the right of the vendor to take the 
 property, in case of default, does not confer upon the 
 vendee the right to return the property.-"* 
 
 Conditional contracts of sale are not per se fraudu-
 
 64 Conditional Sales. 
 
 lent.^ However, it has been held that secret liens 
 which treat the vendor of personal property, who has 
 delivered possession of it to the vendee, as owner until 
 payment of the purchase money, can not be main- 
 tained ; they are constructively fraudulent as to 
 creditors.-'^ 
 
 A transaction, in eifect a conditional sale of chat- 
 tels, may be afterward modified so as to make the 
 contract a mortgage;'"' and, being so modified, would 
 be governed by the statutes on that subject. 
 
 (1) Putnam u. Lamphier, 36 Cal. 151; Kohler v. Hayes, 41 Cal. 455; 
 Marston v. Baldwin, 17 Mass 606; Hussey v. Thornton, 4 Mass. 405; 
 Reed v. Upton, 10 Pick (Mass.) 522, Heath v. Randall, 4 Gush. (Mass.) 
 195; Sargent v. Metcalf, 5 Gray (Mass.), 306, Blanchard v. Child, 7 
 Gray, 155; Dishon v. Bigelow, 8 Gray, 159; Currier v. Knapp, 117 Mass. 
 324, Fleeman v. McKean, 25 Barb. (X. Y.) 474; Herring v. Iloppock, 
 3 Duer (X. Y.), 20; Ballard v. Burgett, 40 N. Y. 316; Austin v. Dye, 
 46 N. Y. 500; Boon v. Moss, 70 N. Y. 465; Bennett v. Simms, 1 Rice (S. 
 C), 421; Reenes v. Harris, 1 Bailey (S. C), 563; Bradshaw v. Thomas, 
 7 Yerg. (Tenn.) 497; Price v. Jones, 3 Head (Tenn.), 84, West v. Bol- 
 ton, 4Vt. 588; Bigelow V. Huntley, 8 Vt. 154; Manwell u. Briggs, 17 Vt. 
 176; Buckmaster v. Smith, 22 Vt 203; Root v. Lord, 23 Vt. 568; Arm- 
 ington V. Houstan, 38 Vt. 448; Goodwin v. May, 23 Ga. 20'); Jowens v. 
 Blandy, 58 Ga. 379, Shireman v. Jackson, 14 Ind. 459; Lester v. East, 
 49 Ind. 588; Bradshaw v. Warner, 54 Ind. 58; Bailey v. Harris, 8 Iowa, 
 331; Patton v. McCane, 15 B. Mon. (Ky.) 655; Comstock v. Smith, 23 
 Me. 202; Ilotchkiss v. Hunt, 49 Me. 219; Dannefelser v. Weigel, 27 Mo. 
 45; Wanglerw. Franklin, 70 Mo. 659; Clayton w. Hester, 80 N. C. 275; 
 Logwood y. Hussey, 60 Ala. 417, Forbes v. Marsh, 15 Conn. 384; Sage 
 V. Sleutz, 23 Ohio St. 1 ; Coll v. Seymour, Sabin & Co., 40 Ohio St. 670; 
 Kutner v. Warner, 1 Wis. 141; Dunlap v. Gleason, 16 Mich. 158; Fos- 
 dick V. Schall, 99 U. S. 235; Harkness v. Russell, 118 U. S. 663. 
 
 (2) Forest v. Hamilton, 98 Ind. 91. 
 
 (3) Little V. Page, 44 Mo. 412; Ridgeway v. Kenneday, 52 Mo. 24; 
 Sumner v. Cotley, 71 Mo. 121; Kenny v. Planer, 3 Daly (X. Y.), 131; 
 Thompson v. Walker, 2 McCrary C. Ct. 33, Sumner v. Woods, 67 Ala. 
 139; B. c, 42 Am. Rep. 104, Fairbanks v. Eureka Co., 67 Ala. 109; Mar- 
 quette Mfg. Co. V. Jeflfery, 49 Mich. 283; Warner v. Roth, 2 Wy. 63; 
 Harkness v. Russell, 118 U. S. 663; Sanders v. Kiber and Miller, 28 
 Ohio St. 630, Simpson v. Shackelford. (Ark.) 4 S. W. Rep. 165. 
 
 (4) City Bank v. Tufts, 63 Tex. 113; Tufts v. Cleveland, (Tex.) 3 S. 
 W. Rep. 288. 
 
 (5) Sage V. Sleutz, 23 Ohio St. 1.
 
 Conditions Precedent to he Performed by Vendee. 65 
 
 (6) Lewis V. McCabe, 49 Conn. 141 ; s. c, 44 Am. Rep. 217. 
 
 (7) Blanchard v. Cooke, (Mass.) 11 North-eastern Rep. 83. 
 
 (8) Robbins ,■. Phillip.s, 68 Mo. 100. 
 
 (9) Keiiibockle v. Zugbaum, 5 Mont. 344; .s. c, 51 Am. Rep. 59. 
 
 (10) Vaughn v. Hopson, 10 Bush (Ky.), 337. 
 
 (11) Ford i;. Sproule, 2 A. K. Marsh. (Ky.) 528. 
 
 (12) Russell V. Minor, 22 Wend. (N. Y.) 659. 
 
 (13) Sere v. McGovern, 05 Cal. 244. 
 
 (14) Mathews v. Lucia, 55 Vt. 308. 
 
 (15) Hill V. Tovvnsend, (".9 Ala. 286. 
 
 (16) Gibbons V. Luko, 37 Hun (N. Y.), 576. 
 
 (17) Defiance Mch. Works v. Trisler, 21 Mo. App. 69. 
 
 (18) United States v. New Orleans Ry., 12 Wall. 362. 
 
 (19) Budlong V. Cattrell, G4 Iowa, 234. 
 
 (20) Carpenter v. Scott, 13 H. I. 477. 
 
 (21) Winchester v. King, 46 Mich. 102. 
 
 (22) Flich V. Warner, 25 Kan. 492. 
 
 (23) Cushman v. Jewell, 14 N. Y. Sup. Ct. 525. 
 
 (24) Appleton v. Norwalk Library Co., 53 Conn. 4. 
 
 (25) Cole V. Berry, 42 N. J. L. 308; s. c, 36 Am. Rep. 511. 
 
 (26) George v. Tufts, 5 Cal. 162. 
 
 (27) Griffith v. Morrison, 58 Tex. 46 
 
 § 41. Special Cases. A number of cases have been 
 decided of late years that are of peculiar interest, be- 
 cause they apply especially to the particular class 
 of personal property under consideration. For ex- 
 ample, in the case of the sale of stock, on condition 
 that it shall remain the vendor's property until the 
 payment of the price, its increase accruing before the 
 performance of the condition also belongs to the ven- 
 dor, and it is not necessary to protect the title to 
 said increase, as against a bona fide purchaser, 
 that it should be mentioned in the memorandum 
 of sale.^ And where a team of horses were to remain 
 the property of the vendor until paid for, it was 
 held that a purchaser from the vendee, in good faith 
 and without notice of the agreement, took sub- 
 ject thereto and acquired no better title than the 
 original vendee.^
 
 ft6 Conditional Sales. 
 
 In the case of Nash v. Wearer, the sale of reapers 
 and mowers was under consideration. The contract 
 was as follows : " Received of N. five mowers, under 
 bargain for the sale thereof, and for which I have 
 given my notes ; said N. neither parts with, nor do 
 I acquire any title to said mowers until said notes 
 are fully paid ; and, in case of default, N. to remove 
 said mowers." This was held to constitute a con- 
 ditional sale, and not to require recording as a chat- 
 tel mortgage.^ 
 
 The sale of threshing machines^ upon conditions that 
 the title, ownership, or possession of the machine 
 should not pass until the notes given for the purchase 
 price should be paid in full, that the vendor should 
 have power to declare the notes so given due at any 
 time he should deem the debt insecure, and to sell 
 the machine at public or private sale, and apply the 
 proceeds upon the unpaid balance of the purchase 
 price, was held to be conditional. That no property 
 in the machine passed to the vendor until he had 
 paid the price, and that the right to sell the prop- 
 erty, and apply the proceeds as provided in the con- 
 dition, did not divest the vendor of his right of 
 j^roperty reserved thereby.'* These conditions, as in 
 the case of Harkness v. Russell,^ were embodied in 
 and made a part of the notes given at the time of de- 
 livery. In the latter case, the subject of sale was a 
 yortahle engine and saw-mill^ and the supreme court 
 held that, in the absence of fraud, an agreement for 
 a conditional sale of property, accompanied by deliv- 
 ery, is good and valid, as well against third persons 
 as against the parties to the transaction. A bailee 
 of personal property, who receives it under an agree- 
 ment that he may purchase it on the performance of 
 conditions on his part, can not convey title to it, or
 
 Conditions Precedent to be Performed by Vendee. 67 
 
 subject it to execution for his own debts, until per- 
 formance of the conditions on which the agreement to 
 sell is made. 
 
 However, in First National Bank v. Carson,^ the 
 note in question contained a provision, among others, 
 to the effect that, in case the property for which the 
 notes were given should be removed from a desig- 
 nated place, then, and in that event, the notes should 
 become due and payable. It was held that a promis- 
 sory note must be certain as to the sum to be paid 
 and the time of payment. An instrument intended 
 as a promissory note, but not satisfying the requi- 
 sites of one, may, if valid, be proved as a contract, and 
 assigned as such ; but the assignee will, in such case, 
 succeed to only such rights as the payee had, the 
 title so transferred being only an equitable one. 
 Judge Sherwood, delivering the opinion of the court, 
 says : " I do not think the contract is a negotiable 
 promissory note. A promissory note must be cer- 
 tain as to the sum to be paid, and the time of pay- 
 ment. It is made dependent, until the contract 
 matures, upon the fact of whether the defendant 
 shall sell or remove the property for which the con- 
 tract was made. Such a degree of uncertainty is not 
 allowable in a promissory note."^ It would therefore 
 seem that all notes containing a provision author- 
 izing the payee to declare them due upon the hap- 
 pening of some event, or the development of some 
 condition of affairs, would be non-negotiable notes ; 
 and if assigned, the assignee would only succeed to 
 an equitable title, and the contract or note would be 
 subject to all the equities existing between the par- 
 ties thereto. 
 
 In a contract for the sale of a safe, payment to be 
 made at a future day set, the title to remain in the
 
 68 Conditional Sales. 
 
 vendor until paid for, the court held that the contract 
 was not within the meaning of the Maine Revised 
 Statutes (chap. 3, ^ 5), and that the safe remained 
 the i:)roperty of the vendor until paid for.^ 
 
 Sales of sewing machines, on condition that the 
 title is to remain in the vendor until payment of a 
 certain sum in installments, and in default of such 
 payments, or any of them, all sums previously paid 
 to be forfeited, and the machine to be restored to the 
 vendor, have been sustained and held to be valid con- 
 ditional sales, and the rights of the vendor are not 
 affected by replevin of the machines.^ This class of 
 sales of sewing machines would neithei be chattel 
 mortgages nor bailments ;^° and, the installments not 
 being paid, the machine being voluntarily given up, 
 the vendee has no right of action against the vendor 
 for removing the same." 
 
 Conditional sales of pianos have been sustained. ^^ 
 But where a piano is sold upon a monthly rental, 
 title to remain in the vendor until a certain sum is 
 paid, and the vendee fail to make the monthly pay- 
 ments, the vendor can have no right of action there- 
 for ; his remedy is to retake the piano and retain the 
 money paid on it, if any.^^ And, where the vendee is 
 allowed to assume the apparent ownership, the bur- 
 den of proof is on the party claiming adversely, to 
 show non-fulfillment of the conditions of sale.^^ 
 
 A transaction in form of a lease of an organ for a 
 year, the amount of rent being equal to the value of 
 the organ, was, in Vermont, treated as a conditional 
 sale ; but, not being recorded, as required by stat- 
 ute, and the organ being in the possession of the 
 lessee or vendee, and there being nothing to put an 
 attaching officer upon inquiry, it may be attached 
 as the property of such vendee.^^ And in New York,
 
 CoudUiuus I^recedenl to be Ptrjonned by I eiidee. 69 
 
 notwithstanding a written contract, whicli purports 
 to bo a lease, where payment is made l)y note, title 
 passes. ^° Pennsylvania is the only state in which the 
 conditional sale of furniture is not sustained. And in 
 the case of Stadtfield v. Huntsman,^' where the ven- 
 dee failed to make any payment, and sold the fiinii- 
 ture to a third person, who had no knowledge of 
 the agreement, it was held that the latter took a 
 valid title. 
 
 However, in other states, this doctrine does not 
 prevail ; but even where the contract provided that 
 if the notes were not paid at maturity the vendor 
 might retake the furniture, it has been held, in states 
 recognizing the validity of conditional sales of furni- 
 ture, that, notwithstanding the non-jmyment of the 
 notes, such agreement did not authorize the vendor 
 to enter the home of the vendee, in his absence, 
 without his consent, and, without notice, take the 
 furniture.^^ 
 
 (1) Clark V. Hay ward, 51 Vt. 14. 
 
 (2) Walker V. Mitchell, 25 Hun (X. Y.), 527. 
 
 (3) Nash V. Weaver, 23 Hun (N. Y.), 513 
 
 (4) Call V. Seymour, Sabin & Co., 40 Ohio St. 670. 
 
 (5) Harknessv. Russell, 118 U. S. 06.). 
 
 (6) First National Bank v. Carson, 27 N. W. Rep. 589. 
 
 (7) Story on Bills and Notes, § 20; Bailey on Bills, 1 ; Fralick v. Nor- 
 ton, 2 Mich. 130; Beardsley v. Horton, 3 Mich. 566; Smith v. Kindall, 
 9 Mich 243; Bank v. Purdy, 22 N. W. Rep. 93. 
 
 (8) Morris v. Lynde, 73 Me. 88. 
 
 (9) Singer Mfg. Co. v. Treadvvay, 4 HI. App. 57; Singer Mfg. Co. v. 
 Cole, 4 Lea (Tenn.), 439 ; s. c, 40 .^m. Rep. 20. See Wheeler & Wilson 
 Mfg. Co. V. Heil, (Penn.) 8 Atlantic Rep. 616. 
 
 (10) Sumner v. Woods, 67 Ala. 139. 
 
 (11) Jinks V. Howe Sewing Mch. Co. 34 La. 1241. 
 
 (12) Meager V. Hollenberg, 9 Lea (Tenn.), o92: Redewell v. Gillen, (N. 
 M.) 12 P. Rep. 872. 
 
 (13) Loomis v. Bragg, 50 Conn. 228; s. c, 47 Am. Rep. 638. 
 
 (14) Goodell V. Fairbrothers, 12 R. I. 233. 
 
 (15) \Vhitcomb v. Woodworth, 54 Vt. 544. See Hine v. Roberts, 48 
 Conn. 267; s. c, 40 Am. Rep. 170.
 
 70 Conditional Sales. 
 
 (16) Hintermister v. Lane, 27 Hun (N. Y.), 497. 
 
 (17) Stadtaeld v. Huntsman, 92 Penn. St. 53; s. c, 37 Am. Rep. 6G1. 
 
 (18) Van Wren v. Flynn, 34 La. Ann. 1158. 
 
 5* 42. Railroad Equipment. No more important 
 branch of the law of conditional sales has developed 
 in late years than that involving railroad equip- 
 ments. The first leading case on the subject was 
 that of Fosdick v. Schall/ Mr. Chief Justice Waite 
 delivering the opinion of the court. In that case, by 
 the terms of the contract, the cars were to remain 
 the property of the vendor until paid for, but settle- 
 ment was to be made therefor by notes of the rail- 
 way company, on delivery of each twenty-five cars, 
 cars to be lettered and numbered as per directions of 
 the general manager of the railway com pan v. The 
 cars were delivered, the notes given in settlement 
 and part paid, when the road and equipment were 
 taken possession of by a receiver, appointed by the 
 court, upon the application of trustees to foreclose a 
 mortgage, given at a date prior to that of the sale 
 of the equipment in question, and covering the j")rop- 
 erty the company then owned or might thereafter 
 acquire. 
 
 Mr. Chief Justice Waite, delivering the opinion of 
 the court, said: " It is contended that the mortgage 
 created a subsisting and paramount lien on the cars 
 as soon as they were put into the possession of the 
 railroad company under the contract, and the reser- 
 vation of title was void, under the laws of Illinois, 
 because the contract was not recorded. 
 
 " It must be conceded, that contracts like this are 
 held by the courts of Illinois to be, in efi*ect, so far as 
 the chattel mortgage act of the state is concerned, 
 the same as though a formal bill of sale had been 
 executed, and a mortgage given back to secure the
 
 Conditions Precedent to be Ferfomied by Vendee. 71 
 
 price. We had occasion to consider that question in 
 Hervy et al. v. Rhode Ishmd Locomotive Works (93 
 U. S. 664), and there held, following the Illinois 
 decisions, that if such an instrument was not re- 
 corded, in accordance with the provisions of the chat- 
 tel mortgage act (R. S. 111., 1874, 711, 712), a hen 
 like that of Schall would have no validity as against 
 third persons. 
 
 " Whatever may be the rule in other states, this is 
 undoubtedly the effect of the Illinois statute as con- 
 strued by the courts of that state. In Green v. Van 
 Busk irk (5 Wall. 307), this court also held, that 
 where personal property is seized and sold under an 
 attachment, or other writ issuing from a court of the 
 state where the property is, the question of the lia- 
 bility of the property to be sold under the writ must 
 be determined by the law of that state, notwithstand- 
 ing the domicile of all claimants to the property may 
 be in another state. Hervey v. Rhode Island Loco- 
 motive Works (supra), Avas also a case of seizure and 
 sale under judicial process; and the language of the 
 court, as expressed in its opinion delivered by Mr. 
 Justice Davis, is to be construed in connection with 
 that fact. 
 
 "As between the parties, notwithstanding the Il- 
 linois statute, the transaction is just what, on its face, 
 it purports to be, 'a conditional sale, with a right of 
 recission on the part of the vendor, in case the pur- 
 chaser shall fail in payment of his installments — a 
 contract legal and valid as between the parties, but 
 made with the risk, on the part of the vendor, of his 
 losing his lien,' if it works a legal wrong to third 
 parties. Murch v. Wright (46 111. 488). The ques- 
 tion then is, whether these mortgagees occupy the
 
 "t'J. Conditional Sales. 
 
 position of third parties within the meaning of that 
 term as used in this statute. 
 
 " They are in no sense purchasers of the cars. The 
 mortgage attaches, if at all, because they are ' after- 
 acquired ' property of the company ; but as to that 
 class of property, it is well settled that the lien at- 
 taches subject to all the conditions with which it is 
 incumbered when it comes into the hands of the 
 mortgagor. The mortgagees take just such an in- 
 terest in the property as the mortgagor acquired — no 
 more, no less. 
 
 " These cars were ' loose property, susceptible of 
 separate ownership and separate liens,' and 'such 
 liens, if binding on the railroad company itself, are 
 unaffected by a prior general mortgage given by the 
 the company, and paramount thereto.' United States 
 V. New Orleans Railroad, 12 Wall. 362. 
 
 "The title of the mortgagees of this case, there- 
 fore, is subject to all the rights of Schall under his 
 contract. 
 
 "The possession taken by the receiver is only that 
 of the court, whose officer he is, and adds nothing to 
 the previously existing title of the mortgagees. He 
 holds, pending the litigation, for the benefit of whom- 
 soever, in the end, it shall be found to concern ; and, 
 in the meantime, the court proceeds to determine 
 the rights of the parties, upon the same principles 
 it would if no change of possession had taken place. 
 
 " It follows, that the decree ordering a return of the 
 cars to Schall was right. Whether, if the property 
 is worth more than is due upon the contract of pur- 
 chase, the mortgagees can obtain the benefit of the 
 overplus, is a question we are not called upon to con- 
 sider." 
 
 In Myer v. Car Company,^ opinion by Mr. Chief
 
 Conditions Precedent to he Performed hy Vendee. 73 
 
 Justice Wtiite, the railroad company executed a 
 mortgage to secure its bond, which was duly recorded, 
 conveying all the property which it then possessed, 
 or might thereafter acquire. A written contract was 
 entered into, leasing, for a specified period and at a 
 stipulated sum, payable monthly, certain cars. It 
 also reserved, but did not exercise, the privilege of 
 purchasing them at the original cost, at any time 
 during the existence of the contract. The vendor re- 
 tained the right to rescind the contract, if the com- 
 pany failed to pay the interest on its bonds. The 
 contract was never recorded, but while it was in 
 force, the mortgagee filed his bill of foreclosure. 
 The court appointed a receiver, who took charge of 
 the road, and used the cars in operating it. It was 
 held that the contract was binding between the par- 
 ties thereto, and the failure to record it did not, un- 
 der the statute of Iowa, render the cars subject to the 
 lien of the mortgage, that the vendor was entitled 
 to possession of the cars, and to compensation for 
 their use by the receiver, payable out of the fund to 
 the credit of the suit. 
 
 The case of Hervey v. The Rock Island Locomo- 
 tive Works,- seems to be, and is, in apparent conflict 
 with the authorities heretofore cited; but, in the 
 language of Mr. Justice Bradley, delivering the opin- 
 ion in Harkness v. Russell:^ "This is not a correct 
 conclusion, for it is apparent that the only points de- 
 cided in that case were : 
 
 ^^First. That it was to be governed by the law 
 of Illinois, the place where the property was situ- 
 ated. 
 
 ^'Second. That, by the law of Illinois, the agree- 
 ment for continuing the title of the property in the 
 vendors, after its delivery to the vendees, whereby the
 
 74 Conditional Sales. 
 
 latter became the ostensible owner, was void as 
 against third persons. 
 
 The statute of Illinois, on the subject of chattel 
 mortgages, has, undoubtedly, influenced this decision, 
 as well as others rendered by the supreme court of 
 said state. The statute declares that " No mortgage, 
 trust deed, or other conveyances of personal prop- 
 erty, having the effect of a mortgage or lien upon 
 such property, is valid, as against the rights and 
 interests of a third person, unless the possession 
 thereof be delivered to and remain with the grantee, 
 or the instrument provide that the possession of the 
 property may remain with the grantor, and the in- 
 strument be acknowledged and recorded." 
 
 The case of Heryford v. Davis,'' is another case of 
 similar character to that of Hervey v. Rock Island 
 Locomotive Works, and, in the language of Mr. Jus- 
 tice Bradley: " The whole question was as to the 
 construction of the contract. This was in the form 
 of a lease ; but it contained provisions so irreconcil- 
 able with the idea of its being really a lease, and so 
 demonstrable that it was an absolute sale with a 
 reservation of a mortgage lien, that the latter inter- 
 pretation was given to it by the court. This inter- 
 pretation rendered it obnoxious to the statute of 
 Missouri requiring mortgages of personal property 
 to be recorded in order to be valid as against third 
 persons." 
 
 It was conceded by the court, in the opinion de- 
 livered by Mr. Justice Strong, that if the agreement 
 had really amounted to a lease, with an agreement 
 for a conditional sale, the claim of the vendors would 
 have been valid. The first two or three sentences 
 of the opinion furnish a key to the whole effect of 
 the decision. Mr. Justice Strong says: "The cor-
 
 Conditions Precedent to he Ferfornied by Vendee. 75 
 
 rect determination of this case depends altogether 
 upon the construction that must be given to the con- 
 tract between the Jackson & Sharp C()mj)any and the 
 raih'oad company, against which the defendants be- 
 low recovered their judgment and obtained their 
 execution. If that contract was a mere lease of the 
 cars to the railroad company, or if it was only a con- 
 ditional sale, which did not pass the ownership until 
 the condition should be performed, the property was 
 not subject to levy and sale under execution at the 
 suit of the defendant against the company. But if, 
 on the other hand, the title passed by the contract, 
 and what was reserved by the Jackson & Sharp Com- 
 pany was a lien or security for the payment of the 
 price, or, what is called, sometimes, a mortgage back 
 to the vendors, the cars were subject to levy and sale 
 as the property of the railroad company." 
 
 The whole residue of the opinion is occupied 
 with the discussion of the true construction of the 
 contract, and, as we have stated, the conclusion was 
 reached that it was not really a lease, nor a con- 
 ditional sale, but an absolute sale, with the reser- 
 vation of a lien or security for the payment of the 
 price. 
 
 This ended the case; for, thus interpreted, the 
 instrument inured as a mortgage in favor of the ven- 
 dors, and ought to have been recorded in order to 
 protect third persons. 
 
 But, in the case of Harkness v. Russell, heretofore 
 referred to, after an elaborate consideration of all the 
 cases on the subject, the court announces the opinion 
 that, in the absence of fraud, an agreement for a con- 
 ditional sale of personal property, accompanieil by 
 delivery, is good and valid, as well against third per- 
 sons as against the parties to the transfer. That the
 
 76 Conditional Sales. 
 
 bailee of personal property, who receives it under an 
 ag-reement that he may purchase it on the perform- 
 ance of conditions on his part, can not convey title to 
 it, or subject it to execution for his own debts until 
 performance of the conditions on which the agree- 
 ment to sell is made. However, in the late case of 
 Porter v. Pittsburgh Steel Conpany,'' Mr. Justice 
 Blatchford, delivering the opinion, says : " What- 
 ever is the rule applicable to locomotives and cars, 
 and loose property susceptible of separate ownership 
 and of separate liens, and to real estate not used for 
 railroad purposes, as to their being unaffected by a 
 prior mortgage given by a railroad company, cover- 
 ing after-acquired property, it is well settled, in the 
 decision of this court, that rails and other articles 
 which become affixed to and a part of a railroad cov- 
 ered by a prior mortgage, will be held by the lien of 
 such mortgage in favor of bona fine creditors, as 
 against any contract between the furnisher of the 
 property and the railroad property.'" 
 
 In Ohio,'* the subject is provided for by statute, re- 
 quii ing that no contract of or for the sale of railroad 
 equipment, rolling stock, or other personal property 
 (to be used in or about the operation of any railroad), 
 by the terms of which the purchase-money, in whole 
 or in part, is to be paid in the future, and wherein it 
 is stipulated or conditioned that the title to the prop- 
 erty so sold shall not vest in the vendee, but shall re- 
 main in the vendor until the purchase-money shall 
 have been fully paid, shall be valid against creditors 
 or innocent purchasers for value, unless recorded in 
 the office of the secretary of state, or a copy thereof 
 be filed in the office of said secretary of state, and 
 when said contract is so recorded, or a copy thereof 
 so filed as aforesaid, the title to the property so sold,
 
 Conditions Precedent to lie Performed by Vendee. 77 
 
 or contracted to be sold, shall not vest in the vendee, 
 but shall remain in the vendor until the purchase- 
 money shall have been fully paid, and such stipula- 
 tion or condition shall be and remain valid, notwith- 
 standing the delivery of the property to and its 
 possession by such vendee. 
 
 It also provided, that in any written contract for 
 the renting, leasing, or hiring of such property, it 
 shall be lawful to stipulate or provide for a condi- 
 tional sale of such property at the termination of 
 such renting, leasing, or hiring, and to stipulate or 
 provide that the rental reserved shall, as paid, or 
 when paid in full, be applied to and treated as pur- 
 chase-money; and, in such contract, it shall be lawful 
 to stipulate or provide that the title to such prop- 
 erty shall remain in the lessor or vendor until the 
 purchase-money shall have been fully paid, notwith- 
 standing delivery to and possession by the other 
 party ; subject, however, to the requirement as to re- 
 cording or filing, contained in the foregoing section 
 of the act. 
 
 (1) Fosdick V. Schall, 99 U. S. 235. 
 
 (2) Hervey v. Rock Island Locomotive Works, 93 U. S. 664. 
 
 (3) Harknessv. Russell, 118 U. S. 679. 
 
 (4) Heryford v. Davis, 102 U. S. 235. 
 
 (5) Meyer v. Car Company, 102 U. S. 1. 
 
 (6) Porter v. Pittsburgh Steel Co., 122 U. S. 267. 
 
 (7) Dunham v. Railway Co., 1 Wall. 254; Galveston Railroad v. Cow- 
 drey, 11 Wall. 459, 480, 482; United States v. New Orleans Railroad, 12 
 Wall. 362, 365; Dillon v. Barnard, 21 Wall. 430, 440; Fosdick v. Schall, 
 99 U. S. 235, 251. 
 
 (8) 1882 Laws of Ohio, Vol. 79, p. 45. 
 
 § 43. Statutory Requirements. So rapid has been 
 the development of the law of conditional sales, as 
 announced by the courts, that legislatures have, in 
 many states, sought to throw around such sales some 
 statutory limitations or requirements. These stat-
 
 78 Conditional Sales. 
 
 utes can only apply to such contracts of sale as con- 
 tain an express condition, and can not, from the 
 very nature of mercantile transactions, apply to such 
 contracts as have been held by courts to be im- 
 pliedly conditional. For example, a merchant in 
 Xew York sells, to a merchant residing in Ohio, a 
 bill of goods, terms, "net" cash." The law says it is 
 a condition precedent, that the cash must be paid 
 before title vests in the vendee. 
 
 Would it be contended for a moment that, in such 
 sales, to be valid as against third persons, the con- 
 tract, or a copy thereof, must, in compliance with the 
 statute of Ohio, be duly authenticated by the vendor, 
 and filed with a township clerk or the recorder at the 
 resident city of the vendee ? We think not, for the 
 reason that it would greatly interfere with our com- 
 mercial relations, would therefore be against public 
 policy, and would be an unwarranted interference 
 with interstate commerce.^ 
 
 In many states, all conditional sales or leases, 
 where the title is to depend upon any condition, 
 must, to be valid as against third parties, be filed or 
 recorded like mortgages of chattels." In each in- 
 stance the recording or filing of the terms of the sale 
 must be in the town or township where the vendee 
 resides, except in the states of New Hampshire, Ver- 
 mont, and Nebraska, where, if the vendee is not a 
 resident of the state, the filing or recording may be 
 done where the vendor resides. In Vermont, such 
 record must be made within thirty days of the sale, 
 while in New Hampshire, the time is shortened to ten 
 days. The eifect of record will not extend beyond 
 one year in Wisconsin and five years in Nebraska, 
 unless it is renewed from time to time. 
 
 But, in other states,^ the conditional sale seems to
 
 Conditions Precedent to be Performed hy Vendee. 79 
 
 be good ; only a note < r other evidence of indebted- 
 ness given therefor b}' the vendee is void as against 
 the vendee's creditors and subsequent purchasers or 
 mortgagees, unless such note or contract be recorded 
 with the township clerk where the vendee resides. 
 In New York and Minnesota, such record ceases to 
 be notice after one year from the time the note or 
 other evidence of indebtedness becomes due. How- 
 ever, in Xew York, these provisions do not apply to 
 sales of household goods, pianos, engines, and ma- 
 chinery, if the contract of sale be executed in dupli- 
 cate and one of the duplicates delivered to the vendee. 
 In New Hampshire, it is further required that an affi- 
 davit of good faith, signed by both parties, should be 
 appended to and recorded with the note or contract. 
 As to foreclosures, the legislators have but in few 
 states prescribed the mode of procedure. In New York 
 and Vermont, the vendor may retake the property 
 thirty days after condition broken. But in Maine, the 
 property is subject to redemption by the vendee, un- 
 less otherwise stipulated in the contract. It is by stat- 
 ute, in Missouri and Ohio, made unlawful for the 
 vendor or lessor to take possession or seize the prop- 
 erty without refunding the sums actually paid by the 
 lessee, less a reasonable compensation for use, in no 
 case exceeding twenty-five per cent in the former state, 
 and fifty per cent in the latter, of such sums paid, 
 and for actual breakage or damage. In neither state 
 have the courts of last resort given any interpreta- 
 tion to these very peculiar statutes. We are, how- 
 ever, constrained to think that they can only apply 
 to cases where the vendor seeks to take possession 
 without the intervention of the law. Surely, they can 
 not, and do not, abridge or destroy any of the reme- 
 dial rights which the vendor might have in an action
 
 80 Conditional Sales. 
 
 on a contract ; and, in an action for foreclosure, an 
 officer of the court could take possession of the prop- 
 erty and sell the same at public sale, without tender- 
 ing to the vendee a portion of what he might have 
 previously paid to the vendor ; but, as in the sale of 
 property covered by chattel mortgage, the vendor 
 could ask nothing more than the satisfaction of the 
 amount actually due him. 
 
 A consignment of merchandise by a manufac- 
 turer to a merchant, to be sold on consignment,^ and 
 sales to an agent or sub-agent of the vendor,^ have 
 been held not to be such sales as come within the 
 statutes. 
 
 (1) Brown v. Maryland, 12 Wheat. 436; Welton w. Missouri, 91 U. S. 
 275; Mobile v. Kimball, 102 U. S. 691 ; Robbins v. Shelby County Tax- 
 ing District, 120 U. S. 489. 
 
 (2) New York, 1884, 315, 1-2, and 1886, 495; Iowa, g 1922; Missouri, 
 § 2505; California, § 169; South Carolina, § 2022; New Hampshire, 
 1885,30; Vermont, § 1992; Nebraska, 1 , 32, 26 ; North Carolina, § 1275; 
 Ohio, 1885, p. 238; Wisconsin, § 2317; West Virginia, 96, 3; Texas, 
 1885, 78; Georgia, 1955; Alabama, § 1815. 
 
 (3) Minnesota, 39, 15,6; 1883, 38, 2; 1885, 76; New York, ib. 3; 
 New Hampshire, 1885, 30, 2. 
 
 (4) Peet V. Spencer (Mo.), 2 S. W. Rep. 434. 
 
 (5) South Bend Iron Works v. Cottrell, 31 Fed. Rep. 254.
 
 Conditions Subsequent. 81 
 
 CHAPTER V. 
 
 CONDITIONS SUBSEQUENT. 
 
 Article 10. — Express Conditions. 
 
 § 44. Sale or Return. 
 
 § 45. Sale of Goods to Arrive. 
 
 ^ 44. Sale or Return. The bargain called " sale or 
 return," was explained by the queen's bench in Mass 
 V. Sweet/ to mean a sale with a right on the part of 
 the vendee to return the goods at his option, within a 
 a reasonable time ; and it was held, in that case, that 
 the property passes, and an action for goods sold and 
 delivered will lie if the goods are not returned to the 
 vendor within a reasonable time.^ And such is the 
 holding of our courts.'^ What is a reasonable time, 
 however, in the absence of any contract provision 
 therefor, is a question of law for the court, to be de- 
 termined by a view of all the circumstances of the 
 particular case.'' And it has been held that parol 
 evidence of the conversations of the parties is ad- 
 missible to show the circumstances under which the 
 contract was made, and what the parties thought a 
 reasonable time.^ 
 
 Whether the vendee has terminated the sale, by 
 the exercise of his privilege of returning the goods, 
 is a question of fact, likewise to be determined by a 
 view of all the circumstances of the particular case.*^ 
 As in the case of Hall v. Minn Mfg. Co.," where the 
 vendor refused to receive back a machine which 
 failed to work as represented, and the vendee took it 
 home, but notified the vendor to take it away, the 
 sale was held to have been terminated. 
 6
 
 82 Conditional Sales. 
 
 '' If the vendee materially impair the condition of 
 the chattel, by misuse or otherwise, while it is in his 
 keeping, and is thus unable to place the seller in 
 statu quo, he can not, in general, take adv'antage of 
 the condition under which it was delivered so as to 
 rescind the contract;** but for an injury occasioned 
 without the vendee's fault, as in the case of an ani- 
 mal taken under a bargain ' of sale and return,' the 
 buyer has sometimes been held not to lose his privi- 
 lege of return."^ 
 
 (1) Moss V. Sweet, 16 Q. B. 493. 
 
 (2) Benjamin on Sales, § 597. 
 
 (3) Dearbornv. Turner,16Me. 17; Buswellu. Bicknell, 17 Me. 344; Per- 
 kins V. Douglass, 20 Me. 317; Walkerv. Blake, 37 Me. 373, 375; Crocker 
 V. Gullifer,44 Me. 491,493; Schlesinger v. Stratton, 9 R. I. 578; BufiFum 
 V. Merry, 3 Mason, 478; Ray v. Thompson, 12 Cush. 281; Jameson v. 
 Gregory, 4 Met. (Ky.) 363; Chamberlain v. Sleeper, 101 Mass. 138; 
 Sargent v. Gile, 8 N. H. 325, 328; Porter v. Pettengill, 12 N. 300, 
 301 ; Hurd v. West, 7 Cowen, 752; Washington v. Johnson, 7 Humph. 
 468; Johnson v. McLane, 7 Blackf. 501 ; Moore v. Purcy, 1 Jones (Law), 
 N. C. 131; Wolf u. Dietzsch, 75 111. 205; Haa.se v. Nonemacher, 21 Minn. 
 486 ; Cahen v. Piatt, 40 N. Y. Sup. Ct. 483. 
 
 (4) Attwood V. Clark, 2 Greenl. 249; Hill v. Hobart, 16 Me. 164; Mur- 
 ray V. Smith, 1 Hawks, 41. 
 
 (5) Crocker v. Franklin Hemp and Flax Mfg. Co., 3 Sumner, 530. 
 
 (6) Gammon v. Abrams, 53 Wis. 323. 
 
 (7) Hall V. JEinsi Mfg. Co., 30 Iowa, 215; Padden v. Marsh, 34 Iowa, 
 522. 
 
 (8) Ray v. Thompson, 12 Cush. 281; 59 Am Dec. 187; 20 Am. Law 
 Reg., N. S. 245. 
 
 (9) Newmark on Sales, § 310; Benjamin on Sales, §g 599, 599a. 
 
 § 45. Sale of Goods to Arrive. There has been 
 much discussion as to whether a sale of goods to ar- 
 rive partook of the nature of an executed sale, sub- 
 ject to be defeated by the non-arrival of the goods, 
 or of an executory contract to sell and buy. We are 
 of the opinion, that it can be either — determinable in 
 each case by the form of the contract. 
 
 The English decisions do not clearly settle when
 
 Conditions Sul>sequenL 83 
 
 the language used in such contracts shall amount to 
 a condition precedent, nor even then what the condi- 
 tion shall be.' The leading case on this subject is 
 one in which Judge Blackburn - delivered the opin- 
 ion, and it may be accepted as authority in our 
 American courts. He says : 
 
 " There is no rule of law to prevent the parties in 
 cases like the present from making whatever bargain 
 they please. If they use words in the contract show- 
 ing that they intend that the goods shall be shipped 
 by the person who is to supply them, on the terms 
 that when shipped they shall be the consignee's prop- 
 erty and at his risk, so that the vendor shall be paid 
 for them whether delivered at the port of destination 
 or not, this intention is effectual. Such is the com- 
 mon case where goods are ordered to be sent by a 
 carrier to a port of destination. The vendor's duty 
 is, in such cases, at an end when he has delivered 
 the goods to the carrier ; and, if the goods perish in 
 the carrier's hands, the vendor is discharged, and the 
 purchaser is bound to pay him the price. If the par- 
 ties intend that the vendor shall not merely deliver 
 the goods, but also unde^-take that they shall actually 
 be delivered at their destination, and express such 
 intention, this also is effectual. In such a case, if 
 the goods perish in the hands of the carrier, the ven- 
 dor is not only not entitled to the price, but he is liable 
 for whatever damage may have been sustained by 
 the purchaser in consequence of the breach of the 
 vendor's contract to deliver at the place of destina- 
 tion. 
 
 " But the parties may intend an intermediate state 
 of things ; they may intend that the vendor shall de- 
 liver the goods to the carrier, and that when he has 
 done so he shall have fulfilled his undertaking, so
 
 84 . Conditional Sales. 
 
 that Jie shall not be liable in damages for a breach 
 of contract, if the goods do not reach their destina- 
 tion, and yet they may intend that the whole or part 
 of the price shall not be payable unless the goods do 
 arrive. They may bargain that the property shall 
 vest in the purchaser as owner as soon as the goods 
 are shipped, that then they shall be both sold and 
 delivered, and yet that the price (in whole or in part) 
 shall be payable only on the contingency of the goods 
 arriving ; just as they might, if they pleased, con- 
 tract that the price should not be payable unless a 
 particular tree fall, but without any contract on the 
 vendor's part, in the one case, to procure the goods 
 to arrive, or in the other, cause the tree to fall." 
 
 Where, therefore, the quantity, quality and price of 
 the goods are specifically ascertained, and the bill of 
 lading thereof is assigned by indorsement and delivery 
 to the purchaser, we think that the general prin- 
 ciples of the law merchant would lead to the conclu- 
 sion that there was a constructive delivery and 
 executed sale, and that the right of property passed.^ 
 It has been held, that if any other act of equivalent 
 import to the assignment of a bill of lading be per- 
 formed, as an assignment upon the back of the in- 
 voice, the transfer of a policy of insurance upon the 
 goods, and the giving an order on the vessel to de- 
 liver to the vendee on arrival, the effect might be 
 the same.'* 
 
 But the tendency of the American cases is to re- 
 gard contracts for the sale of goods to arrive, in the 
 absence of acts or words to the contrary, as condi- 
 tional and executory, title not passing until the actual 
 arrival of the goods.^ 
 
 (1) Benjamin on Sales, § 578-585; Blackburn on Sales, 230-239. 
 
 (2) Calcutta & Burmah Steam Nav. Co. v. De Motts, 32 L. J. Q. B. 328.
 
 Conditions Subsequent. 85 
 
 (3) Parsons on Contracts, p. 553, citing Caldwell v. Ball, 1 T. R. 205 ; 
 Stubbs V. Lund, 7 Mass. 453; Walter v. Koss, 2 Wash. C. C. 283; Jordan 
 V. James, 5 Ilam. (Ohio) 89, Lee v. Kimball, 4.0 Me. 172. 
 
 (4) Gardner V. llowland, 2 Pick. 590; Rowland v. Harris, 4 Mason, 
 497; Pratt V. Parkman, 24 Pick. 42; Lanfear v. Sumiior, 17 Mass. 110. 
 
 (5) Benedict v. Field, 16 X. Y. 595 ; Neldon v. Smith, 7 Vroom, 148; 
 Rodgers v. Woodruff, 23 Ohio St. 632; s. c, 13 Am. Rep. 276; Dike v. 
 Reitlinger, 23 Hun, 241. 
 
 Article 11. — Implied Conditions. 
 § 46. Shall be Manufacturer's own Make. 
 
 § 46. Shall be Manufacturer's own Make. Mr. Benja- 
 min, in his learned work on Sales, says:^ "A reference 
 should be made here to the important decision in 
 Johnson v. Raylton,- where the majority of the court 
 of appeal held, in opposition to two decisions of the 
 court of session, in Scotland,^ that, on the sale of 
 goods by a manufacturer of such goods, who is not 
 otherwise a dealer in them, there is (in absence of 
 any usage in the particular trade, or, as regards the 
 particular goods, to supply goods of other makers) 
 an implied condition that the goods shall be those 
 of the manufacturer's own make, and the purchaser 
 is entitled to reject others, although they are of the 
 quality contracted for." 
 
 (1) Benjamin on Sales, § 609. 
 
 (2) Johnson v. Raylton, 7 Q. B. D. 438, C. A. 
 
 (3) West Stockton Iron Co. v. Nielson, 17 Sc. L. R. 719; 7 Court Sess. 
 Cas. (4th ser.) 1055; Johnson v. Nicoll, 18 Sc. L. R. 268; 8 Court Sess. 
 Cas. (4th ser.) 437.
 
 86 Conditional Sales. 
 
 CHAPTER VI. 
 
 INCIDENTS— WARRANTIES. 
 
 Article 12. — Implied Warranties. 
 
 § 47. Implied Warranty. 
 
 § 48. Warranty of Title. 
 
 § 49. Warranty of Quality. 
 
 § 50. Sale by Sample. 
 
 § 51. Sale by Description, 
 
 § 52. Sale for Special Purpose. 
 
 § 53. Merchantable Character. 
 
 § 54. Soundness. 
 
 ^ 47. Implied Warranty. A warranty in a sale of 
 goods is not one of the essential elements of the con- 
 tract, for a sale is none the less complete and per- 
 fect in the absence of a warranty ; but it is a collateral 
 undertaking — a mere incident/ forming part of the 
 contract by the agreement of the parties, express or 
 implied.^ For, as they are of two kinds, in respect to 
 their subject-matter, warranty of title and warranty 
 of quality, they are also of two kinds in respect to 
 their form, as they may be expressed or implied.^ 
 
 A mere contract of sale, or agreement to sell, does 
 not imply a warranty,^ and a warranty is not always 
 inferrable from the price paid,^ the element of intent 
 being necessary to constitute a warranty.^ It is only 
 where there is no express warranty, that resort to an 
 implied warranty can be had.'' However, the taking 
 of a written memorandum containing express war- 
 ranties upon some points, does not thereby preclude 
 the vendee from relying upon the warranty otherwise 
 implied by law.^ If the vendor refuses to warrnnt, 
 there can be no pretense of raising an implied war-
 
 IncidcntH — Warranties. 87 
 
 ranty ; but what amounts to a refusal to warrant 
 must, in general, be submitted to a jury.^ It has also 
 been held, that evidence of usaire is inadmissible to 
 affect an implied warranty.'" 
 
 The doctrine of implied warranties applies as well 
 to property exchanged as to property sold,^^ and a 
 warranty may even arise in case of an executory con- 
 tract, where the defect in the property is incapable 
 of discovery at the time of delivery. In such cases, 
 the vendee may retain the property, and sue upon 
 the warranty ; but if the defect is openly visible and 
 notorious at the time of delivery, the vendee is bound 
 to reject the articles, and refuse to receive them as a 
 compliance with the contract, or he will waive his 
 right to damages.^'- For a warranty will not be im- 
 plied to cover defects that are visible.'" 
 
 In the absence of express warranty, when the ven- 
 dee has an opportunity to inspect, and the vendor is 
 guilty of no fraud, and is not the manufacturer of the 
 article he sells, the maxim of "caveat emptor" ap- 
 plies, and there can be no implied warranty.'^ But 
 the rule of " caveat emptor " does not apply to sales 
 of drugs. ■''^ 
 
 (1) Osborn r. Grats, 60 N. Y. 540; Hopkins v. Tanqueray, 15 C. B. 
 139. 
 
 (2) Benjamin on Sales, g 610; Canter v. Hopkins, 4 M. & W. (Eng). 
 399 ; Foster v. Smith, 18 C. B. (Eng.) 156. 
 
 (3) Parsons on Contracts, 573. 
 
 (4) Harley v. Golden State Works, 66 Cal. 238. 
 
 (5) King V. Quidnick Co., 14 R. 1. 131. 
 
 (6) Figge V. Hill, 61 Iowa, 430. 
 
 (7) Johnson V. Latimer, 71 Ga 470. 
 
 (8) Boothby v. Scales, 27 Wis. 626. 
 
 (9) Rodrigine.s v. Habershaw, 1 Spears (S. C), 314; Smith v. Bank of 
 the State, Riley (S. C), 113. 
 
 (10) Thompson v. Ashton, 14 Johns. 316; Dickinson v. Gay, 7 Al- 
 len, 29. 
 
 (11) Rivers v. Grugett, 1 McCord (S. C), 100.
 
 88 Conditional Sales. 
 
 (12) Brown v. Burhans, 4 Hun (N. Y.), 227. 
 
 (13) Schuyler v. Ross, 2 Caines (N. Y.), 202; Jordan v. Foster, 1] 
 Ark. 139; Birdseye u. Frost, 34 Barb. (N. Y.) 367; Hudgins v. Perry, 7 
 Ired. (N. C.) L. 102; Long v. Hicks, 2 Humph. (Tenn.) 30o ; Williams 
 V. Ingram, 21 Tex. 300; Hill v. North, 34 Vt. 604. 
 
 (14) Lindley v. Hunt, 22 Fed. Rep. 52; Kohl v. Lindley. 39 111. 195; 
 S. P. Humphreys v. Comline, 8 Blackf. (Ind.) 508; McGuire v. Kear. 
 ney, 17 La. Ann. -295; Deming v. Foster, 42 N. II. 165; Moses v Mead, 
 1 Denio (N. Y.), 378. 
 
 (15) Jones v. George, 56 Tex. 149; s. c, 42 Am. Rep. 689. 
 
 ^ 48. Warranty of Title. The generally accepted 
 doctrine in this country is, that if one in possession 
 of property sells it as his own, he warrants the title, 
 unless the facts and circumstances of the case show 
 that he did not intend to assert his ownership of it, 
 but only to transfer his interest in the property.^ 
 Some courts even hold that the possession of a ven- 
 dor of chattels is equivalent to an affirmation of title, 
 and a warranty of title is implied, though not men- 
 tioned.- Others have held that a warranty of title is 
 always implied in the sale of a chattel in the posses- 
 sion of the vendor,'^ even though nothing whatever is 
 said about the title.^ 
 
 Wherever there is a sale or exchange, or a giving 
 in payment of property, unless waived by the con- 
 tract, there is an implied warranty that the person so 
 selling or exchanging, or giving in payment, is the 
 owner of the thing sold, exchanged, or given. The 
 same rule prevails in case of a settlement between 
 debtor and creditor, where property wholly outside 
 of the difference between the parties is given in pay. 
 ment.^ 
 
 However, in every sale of chattels, if the posses 
 sion at the time be in another, and there be no cove- 
 nant of title, the rule of caveat emptor applies, and 
 the vendee buys at his peril.'^ But if the vendor has 
 possession of the article., and sells it as his own, and
 
 Incidents — Warranties. 89 
 
 not as the agent of another, and for a fair price, he is 
 understood to warrant the title." Constructive pos- 
 session is sufficient. It is only necessary that the 
 vendor have an adverse possession, and it is not es- 
 sential that he have the immediate physical control 
 of the property at the time of the sale.^ But the 
 implied warranty of title is broken if the vendor 
 have neither title nor possession at the time of sale. ^ 
 
 If, however, the subject of sale is merely the ven- 
 dor's title, and not the thing itself, there is no im- 
 plied warranty of title. Therefore, if, after such a 
 sale, the vendor acquire the full title, it will inure to 
 the benefit of the vendee.^° 
 
 But where the subject of sale is the exclusive 
 right to manufacture an article, there is a warranty 
 of title,^^ for without title the grant would be of no 
 avail 
 
 Warranty of title to a chattel can not be implied 
 or proved where there is a written bill of sale, which 
 contains no warranty ; for that would be to add to the 
 writing by parol.^'- Where a vendee buys of a known 
 agent, there is no warranty of title upon which recov- 
 ery can be had against the principal. ^^ Nor will a 
 warranty of title be implied in a sale by an adminis- 
 trator, executor, or by a sheriff or other officer of the 
 law.^' For on execution sales there is neither an ex- 
 press nor implied warranty of title or soundness of 
 the goods sold.^^ 
 
 (1) Butler V. Tufts, 13 Me. 302; Huntington v. Flail, ?S Me. 501; 
 Thurston v. Spratt, 52 Me. 202; Bennett v. Bartleti, 6 Cush. 22-') ; Emer- 
 Bon v. Brigham, 10 Mass. 202; Bucknam v. Goddard, 20 Pick. (Mass.) 
 71 ; Sargent v. Currier, 49 X. H. 310; Burt v. Dewey, 40 N. Y. 483; Mc- 
 Night V. Devlin, 52 N. Y. 399 ; Darst v. Brockway, 1 1 Ohio, 442; Lines v. 
 Smith, 4 Fla. 47; Chancellor v. Wiggins, 4 B. Mon. 201 ; Williamson r. 
 Summons, 34 Ala. 691 ; Storm v. Smith, 43 Miss. 407; Morris v. Thomp- 
 son, 85 111. 16; Tutle v. White, 40 Mich. 299; Marshall v. Duke, 51 Ind. 
 62; Huckleman v. Harrison, 50 Ind. 156; Rice v. Forsyth, 41 Md. 389;
 
 90 Conditional Sales. 
 
 Whitaker v. Eastwick, 7) Penn St. 229; People's Bank v. Kurtz, 99 
 Penn. 344. 
 
 (2) Byrnside v. Burdett, 15 W. Va. 702. 
 
 (3) Williamson v. Sammons, 34 Ala. 691 ; Dicks v. Dillahunty, 8 Port. 
 (Ala.) 133; Linton v. Porter, 31 111. 107; Chancellors. Wiggins, 4 B. Mon. 
 (Ky.)201; Trigg v. Farris, 5 Humph. (Tenn.) 343; Charlton v. Hay, 5 
 Humph. 496; Goodkin v. Graham, 5 Humph. 480; Word v. Gavin, 1 
 Head (Tenn.), ")Ot'i; Davis v. Smith, 7 ^linn. 414; Robinson v. Rice, 20 
 Mo. 229. 
 
 (4) Gross V. Kurski, 41 Cal. 111. 
 
 (5) Gay lor v. Copes, 16 Fed. Rep. 49. 
 
 (6) Huntington v. Hall, 36 Me. 501 ; Pratt i-. Philbrook, 32 Me. 23; 
 McCoy V. Artcher, 3 Barb. (N. Y.) 323; Edick v. Crim, 10 Barb. 445; 
 Scranton v. Clark, 39 N. Y. 220; Emmerson v. Brigham, 10 Mass. 202; 
 Fletcher v. Darth, 66 Mo. 126 ; Long v. Hickingbottom, 28 Miss. 772; 
 Storm V. Smith, 43 Miss. 497; Barton v. Flaherty, 3 G. Greene (Iowa), 
 327; s. c, 54 Am. Dec. 503; Lackey v, Stonder, 2 Ind. 376; Scott v. Hix, 
 2 Sneed (Tenn.), 192. 
 
 (7) 2 Kent's Commentaries, 478. 
 
 (8) Whitney v. Harwood, 6 Cush. (Mass.) 82; Shattuck v. Green, 104 
 Mass. 42; Palte v. Pelton, 48 Vt. 182; Byrnside v. Burdett, 15 W. Va. 
 702; Huntv. Sackett, 31 Mich. 18. 
 
 (9) Tipton V. Triplett, 1 Met. (Ky.) 570. 
 
 (10) Sherman v. Champlain Trans. Co., 31 Vt. 162. 
 
 (11) Costigan v. Hawkins, 22 Wis. 74. 
 
 (12) Sparks v. Missick, 65 N. C. 440. Contrary, Miller v. Van Tassil, 
 24 Cal. 450. 
 
 (13) Irwin v. Thompson, 27 Kan. 643. 
 
 (14) Mockbee v. Gardner, 2 H. & G. (Md.) 176; Brigham v. Maxey, 
 15 111. 295; Blood v. French, 9 Gray (Mass.), 197; Worthy v. Johnson, 
 8 Ga. 236; Ilarsby u. Baker, 10 Mo. 157; Hicks v. Skinner, 71 N. C. 
 539; Fore v. McKenzie, 58 Ala. 115; Harrison v. Shanks, 13 Bush (Ky.), 
 620; Savings Association v. O'Connor, 29 Ohio St. 654; Baker v. Arnot, 
 67 N. Y. 448. 
 
 (15) Hinsley v. Baker, 10 Mo. 157. 
 
 J 49. Quality. The general rule is, that on a fair 
 sale of [)ersonal property there is no implied war- 
 ranty of quality. The rule, in such case, is caveat 
 emptor, and the purchaser, in the absence of fraud, 
 takes the risk of quality upon himself.^ If the spe- 
 cific chattel has a potential existence at the time of 
 the sale, and is inspected by the purchaser, and the 
 sale is free from fraud, the rule above stated has no
 
 Incident-H — War rant U a. 91 
 
 exception,- nor will a warranty of (juality be implied 
 from payment of a full price. '^ 
 
 Where a vendor is so situated that he may be rea- 
 sonably supposed to know the condition and quality 
 of the goods, the vendee may reasonably rely upon 
 mch supposition. A rule of a board of trade that, in 
 cash sales of provisions, the vendee may have ^them 
 inspected at his own expense, and, if he accepts them 
 without inspection, he takes them at his own risk, is 
 unreasonable, and does not apply.' 
 
 Representations made by the vendor at the time 
 of the sale, in respect to the quality of the thing sold, 
 which are relied upon by the vendee, amount to a 
 warranty.'' But words of description in a contract or 
 bill of parcels do not imply a contract of warranty 
 that the property is of the kind and description 
 specified.'^ Nor will a mere praise of personal prop- 
 erty, indulged in by the vendor when offering it for 
 sale, amount to an implied warranty of its quality or 
 condition, if the vendee has an opportunity to exam- 
 ine it, and fails to do so, no artifice having been used 
 by the vendor to prevent an examination." For 
 where goods are open to inspection, and are actually 
 examined before the sale, there is no implied war- 
 ranty of quality, though the vendor may be the 
 manufacturer.'* The same rule applies where goods 
 have been in existence and in the vendee's custody 
 for some time before the sale, and are then in his 
 custody.'-' 
 
 Where one agrees to furnish an article similar to a 
 certain model or design, there is no implied warranty 
 of quality beyond conformity to the model or design.^" 
 Nor can a vendor who makes no warranty or assur- 
 ance as to the thmg sold, be answerable for defects 
 latent, or otherwise, of which he had no knowledge."
 
 92 Conditional Sales. 
 
 If the contract of sale is made solely by corre- 
 spondence, the question of warranty of quality is for 
 the court; and, although parol evidence is not ad- 
 missible to contradict the agreement, the court may 
 look not only to the language of the correspondence, 
 but subject-matter of the agreement and surrounding 
 circumstances, so as to be able to see the transaction 
 as the parties themselves saw it.^- 
 
 (1) Benjamin on Sales, § 611 ; Earley v. Gareett, 9 B. & C. (Eng.) 928; 
 Ormrod v. Huth, 14 M. & W. (Eng.) 664; Mixer v. Coburn, 11 Mete 
 (Mass.) 559; French v. Vining, 102 Mass. 135; Dean v. Mason, 4 Conn. 
 428; Frazier V. Harvey, 34 Conn. 469; Sweet v. Colgate, 20 Johns. (N. 
 Y.) 196; Moses v. Mead, 1 Denio (X. Y.), 378; Wright v. Hart, 18 Wend. 
 449; Kingsbury v. Taylor, 29 Me. 508; s. c, 50 Am. Dec. 607; Taymon 
 V. Mitchell, 1 Md. Ch. 496; Lord v. Grow, 39 Penn. St. 88; Carson u. 
 Bailie, 19 Penn. St. 375; s. c, 57 Am. Dec. 659; Warren v. Philadelphia 
 Coal Co., 83 Penn. St. 437; Hadley ?;. Clinton Co., 13 Ohio St. 502; Rob- 
 erts V. Hughes, 81 111. 130; Bowman v. Clemmer, 50 Ind. 10; Hadiey v. 
 Prather, 64 Ind. 137; Otis v. Anderson, 10 S. & M. (Miss.) 475 ; Bryant 
 V. Pember, 45 Vt. 487. 
 
 (2) Chanter v. Hopkins, 4 M. & W. (Eng.) 64; Whittaker v. East- 
 wood, 75 Penn. St. 229; Palmer's Appeal, 96 Penn. St. 106; Hadley v. 
 Prather, 64 Tred. 137; Deming v. Foster, 42 N. H. 165; Byrne v. Jan- 
 sen, 50 Cal. 624. 
 
 (3) Mixer u. Coburn, 11 Mete. (Mass.) 559; S. P. Joslin v. Coughlin, 
 26 Miss. 134; Holden v. Dakin, 4 Johns. (N. Y.) 421 ; Welsh v. Carter, 
 
 I Wend. (N. Y.) 185; Beirne r-. Dord, 2 Sandf. (N. Y.) 89; Caldwell v. 
 Smith, 4 Dev. & B. (N. C.) L. 64; Wetherill v. Neilson, 20 Penn. St. 448 ; 
 Hadley v. Clinton Co., 13 Ohio St. 502; Eagan v. Call, 34 Penn. St. 236; 
 Wilson V. Shackleford, 4 Rand. (Va.) 5. 
 
 (4) Chicago Packing Co. v. Tilton, 87 111. 547. 
 
 (5) Hahn v. Doolittle, 18 Wi.s. 196. 
 
 (6) Hotchkiss v. Gage, 26 Barb. (N. Y.) 141. See Hogins v. Plympton, 
 
 II Pick. (Mass.) 97. 
 
 (7) Byrne v. Jansen, 50 Cal 624. 
 
 (8) Barnett v. Stanton, 2 Ala 195. 
 
 (9) Dooley v. Gallagher, 3 Hughes, C. Ct. 214. 
 
 (10) Cosgrove u. Bennett, 32 Minn. 371. 
 
 (11) Neilson v. Dickinson, 1 Desau. (S. C.) 133. 
 
 (12) Dayton v. Hoogleind, 39 Ohio St. 671. 
 
 ^ 50. Sale by Sample. A sale by sample is equiva- 
 lent to a sale by description. It implies that the
 
 Incidents — Warranties. 93 
 
 goods sold are of the quality of the sample. There 
 being no op]M)rtunity to inspect the goods, the ven- 
 dee relies upon the representation which the sample 
 is made to carry. And, therefore, it is a rule that 
 goods bought shall be equal to the sample by which 
 they are sold.^ In Pennsylvania, a sale by sample is 
 a guaranty only that the article to be delivered shall 
 follow its kind and be merchantable.'- Yet a stipula- 
 lation that a future delivery will equal a sample, may 
 become a condition of the contract.'^ 
 
 Where a sample of goods is exhibited by a vendor, 
 and an opportunity is given to examine the bulk 
 from which it was taken, although it be inconvenient 
 to make the examination, there is not in tliis tact 
 alone sufficient grounds upon which to establish a 
 sale by sample. Consequently, sale by sample must 
 exclude an opportunity for inspection,^ and there 
 must be evidence that a sale b}'' sample was in- 
 tended.^ For it is not a sale by sample unless both 
 parties deal with the sample with mutual under- 
 standing that the bulk is like it, and unless they do 
 so the doctrine of caveat emptor api)lies.'' But 
 whether a sale is by sample or not, is a question of 
 fact to be left to the jury.^ 
 
 Where a vendor is not a manufacturer of goods 
 sold by sample, there is no implied warranty against 
 latent defects in both the sample and the bulk of the 
 goods.* But, ill an action by the vendee for the 
 value of the goods, he must show that they corre- 
 spond with the sample.-' And it has been held that 
 the vendee of goods sold by samjile, is entitled to a 
 reasonable time after their arrival to test tiieir 
 quality, and, if defective, in an action by the ven- 
 dor for the price, might set up damages for breach 
 of warranty, though not offering to return the
 
 94 Conditional Sales. 
 
 goods, but, on the contrary, retaining and using 
 them.^" 
 
 (1) Dike V. Reitlinger, 23 Ilun, 241 ; Siraond v. Braddon, 2 C. B. (N. 
 S.) 324; Cien v. McPherson, 1 Bosw. (N. Y.) 480; Bradford v. Manley, 
 13 Mass. 139; Magee v. Billings, 3 Ala. 679; Dayton v. Hooglund, 39 
 Ohio St. 671; Voss w. McGuire, 18 Mo. App. 477; Hughes v. Bray, 60 
 Cal. 284. 
 
 (2) Selser V. Roberts. 105 Penn. St. 242 ; West Republic Mining Co. 
 V. Jones, 108 Penn. St. 55; Ryan v. Ulmer, 108 Penn. St. 332; s. c, 56 
 Am. Rep. 210. 
 
 (3) Selser u. Roberts, 105 Penn. St. 242; West Republic Mining Co. 
 V. Jones, 108 Penn. St. 55. 
 
 (4) Berine v. Dord, 1 Seld. 95; Dargons v. Stone, 1 Seld. 73; Sands v. 
 Taylor, 5 Johns. 395. 
 
 (5) Selser v. Roberts, 105 Penn. St. 242. 
 
 (6) Proctor v. Spratley, 78 Val 254; Reynolds v. Palmer, 21 Fed. Rep. 
 433. 
 
 (7) Jones V. Wasson, 59 Tenn. 211; Thorne v. McVeigh, 75 111. 81. 
 
 (8) Dickinson v. Gay, 7 Allen, 29. 
 
 (9) Hollinder v. Koetter, 20 Mo. App. 79. 
 
 (10) Marsh v. McGreevy. 23 Hun (N. Y.), 408. 
 
 § 51. Description. Where a vendor of goods repre- 
 sents them, at the time of sale, to be an article known 
 in the market V)y a particular name, and the vendee 
 purchases relying upon the statements, without hav- 
 ing an opportunity to examine, or where an exami- 
 nation would not enable him to discover whether the 
 goods agreed with the representations, a warranty is 
 implied that the goods are of the kind, character, and 
 description represented.^ So, also, a mere sale of an 
 article, which the vendee has not seen, by a specific 
 description whose meaning is known to the parties, 
 implies a guaranty that the article, when delivered, 
 shall be of the particular description." But it is not 
 necessary that the article, when delivered, should be 
 of any certain quality of the brand or description 
 sold ; for, in the absence of fraud, the vendor can 
 only be called upon to deliver articles of the speci- 
 fied brand.^
 
 Incidents — Warranties. 95 
 
 (1) Van Wyck v. Allen, 09 N. Y. 01. See also Section 30, on Sales 
 by Description. 
 
 (li) Ciitchings V. Ilacke, la Mo. App. 51; Whitaker u. McCormick, 6 
 Mo. App. 1 14. 
 
 (3) Dounoe v. Dow, 04 N. Y. 411. 
 
 § 52. Special Purpose. Where a manufacturer or 
 dealer contracts to supply an article which he manu- 
 factures or produces, or in which he deals, to be ap- 
 plied to a particular purpose, so that the vendee 
 necessarily trusts to the judgment or skill of the 
 manufacturer or dealer, there is, in that case, an im- 
 plied term or warranty that it shall be reasonably fit 
 for the purpose to which it is to be applied.^ So, too, 
 upon the sale of an article by the manufacturer, there 
 is an implied warranty that it will answer the pur- 
 pose for which it was made.- But if a v^endee inspects 
 for himself the specific article sold, and there is no 
 express warranty, and the vendor is guilty of no 
 fraud, and is not himself the manufacturer of the ar- 
 ticle, and the particular use which is to be made of it 
 is not communicated by the purchaser at the time of 
 the sale, there is no implied warranty on the part of 
 the vendor that the article is reasonably fit for the 
 purpose to which it is to be applied, although the 
 vendor supposes that the vendee intends to use it for 
 the purpose for which he in fact buys it.' 
 
 If a manufacturer undertakes to manufacture for a 
 special purpose, there is an implied warranty of the 
 manufacturer that the article is fit for the special 
 purpose intended by the vendee ; and if a chattel be 
 manufactured to supi)ly the order of another, who 
 does not advise the manufacturer of any special pur- 
 pose for which it is designed, and it is manufactured 
 and delivered to the [)urchaser, there would be an 
 implied warranty that it was reasonably tit for the 
 purpose for which it was ordinarily used.^ This rule
 
 96 Conditional Sales. 
 
 is, however, limited to those cases where the .uticle 
 is not only ordered for a particuhir purpose, but 
 where the manufacturer, knowing the purpose, under- 
 takes to meet the requirements, and the buyer trusts 
 to the judgment and skill of the manufacturer. If 
 one orders an article manufactured for some particu- 
 lar purpose known to the manufacturer, and it is 
 manufactured in accordance with specific directions 
 given, and delivered to the purchaser, there would be 
 no implied warranty that it would answer the pur- 
 pose for which it was intended by the vendee.^ It is 
 sufficieiit if the article so manufactured fill the terms 
 of the contract® 
 
 Again, it has been held that a manufacturer 
 who, for a fair price, undertakes with a vendee to 
 manufacture an article for a particular purpose, im- 
 pliedly warrants that it will reasonably perform all 
 the operations and purposes that articles of the par- 
 ticular kind contracted for would perform, but not 
 that it will perform what articles of a different kind, 
 though of the same general class, would perform.' 
 But if the manufacturer of an article sell it for a par- 
 ticular purpose, the vendee making known to him at. 
 the time tlie purpose for which he buys it, the ven- 
 dor thereby warrants it fit for such purpose, and free 
 from latent defect.^ This rule has been applied to 
 the sale of steam boilers,^ the sale of leather by a 
 manufacturer to a shoemaker, ^° the sale of pianos to a 
 dealer," the sale of a wind-mill,'^ and the sale of 
 whisky barrels.^^ But, like all good rules, this too 
 has exceptions ; for example, the matei ial to be used 
 being specified, the manufacturer is not liable, as 
 upon an implied warranty of the sufficiency of the ma- 
 terial designated, there being no proof that he did not 
 exercise ordinary diligence in selecting material.^*
 
 Incidents — Warranties. 97 
 
 And the principle that if an article is ordered for a 
 special purpose, and is sold for that purpose, there is 
 an implied warranty that it is tit for that purpose, 
 does not apply to cases where a special thing is or- 
 dered, although intended for a special purpose. ^^ 
 The same is true of the sale of specific articles, se- 
 lected by the vendee, there being no implied war- 
 ranty that they will answer the purpose for which 
 bought.^^ 
 
 Where an agreement is for the sa^e of a specific 
 chattel in its then state, there is no implied warranty 
 of its fitness or merchantable quality.^^ But if sold 
 for a particular purpose, there would be an implied 
 contract that the article was suitable and proper for 
 such purpose,^^ and a failure of such warranty is 
 ground for rescission of a contract based upon it. In 
 defense to an action for the price, the vendee is not 
 estopped from setting up a breach of the warranty, 
 because the articles had been received and partly 
 paid for, in ignorance of their unfitness. ^^ However, 
 the vendee seeking a rescission for failure of war- 
 ranty, when it is his duty to expend labor and skill 
 in order to render the articles fit for the purpose of 
 their original construction, impliedly warrants that 
 the unfitness of the article is not occasioned by any 
 fault of his own.-'' 
 
 (1) Brown v. Edgington, 2 Man. & G. 279; Jones v. Bright, n Bing. 
 533; Harris v. Waite, 51 Vt. 480; Rease v. Sabin, 38 Vt. 432; Hoe v. 
 Sanborn, 21 N. Y. 552; Brown v. Murphie, 31 Miss. 91; Overton v. 
 Phelan, 2 Head (Tenn.), 445; Walton v. Cody, 1 Wis. 420; Thomas v. 
 Simpson, 80 N. C. 4; Robinson v. Chandler, 56 Ind. 575; Gibbs v. Hall, 
 53 Ga. 635; Gammell v. Gunby, 52 Ga. 504; Lespard v. Van Kirk, 27 
 Wis. 152; Highti). Bacon, 126 Mass. 10; Archdale v. Moore, 19 111. 565; 
 Ricev. Forsyth, 41 Md. 3S9. 
 
 (2) Brown v. Murphie, 31 Miss. 91 ; Cunningham i'. Hall, 1 Sprague, 
 404; Beers v. Williams, 16 111. 69; Brentou v. Davis, 8 Blackf. (Ind.)
 
 98 Conditional Sales. 
 
 317; Boyd v. Crawford, Add. (Penn.) 150; Overton v. Phelan, 2 Head 
 (Tenn.), 445; Walton v. C^ody, 1 Wis. 420. 
 (.3) Hight V. Bacon, 126 Mass. 10. 
 
 (4) Bigge V. Parkinson, 7 H. & N, (Eng.)955 ; Brown v. Edgington, 2 
 M. & G. (Eng.) 279; Jones v. Bright, 5 Bing. (Eng.) 533; Randall v. 
 Newson, 2 Q. B. D. (Eng.) 102; Kingsbury v. Taylor, 29 Me. 508; Pa- 
 cific Iron Works v. Newhall, 34 Conn. 67; White v. Miller, 71 N. Y. 
 118; Robinson Machine Works v. Chandler, 56 Ind. 575; Chicago 
 Packing Co. v. Tilton, 87 111. 547; Pacific Guano Co. v. Muller, 66 Ala. 
 582; Brown v. Murphie, 31 Miss. 91; Field v. Kinnear, 4 Kan. 476. 
 
 (5) Chanter v. Hopkins, 4 M. & W. (Eng.) 399; Olivant v. Bayley, 5 
 Q. B. (Eng.) 288; Tilton Safe Co. v. Tisdale, 49 Vt. 83; Pease v. Salim^ 
 38 Vt. 432; Deming v. Foster, 42 N. H. 165; Pacific Iron Works v. New- 
 hall, 34 Conn. 67; Hargus v. Stone, 5 N. Y. 73; Wright v. Hart, 18 
 Wend. 449; Walcott v. Mount, 36 N. J. L. 262; Port Carbon Iron Co. v. 
 Groves, 68 Penn. St. 149; Mason v. Chappell, 15 Gratt. (Va.) 572; Girst 
 V. Jones, 32 Gratt. 518; Brown v. Murphie, 31 Miss. 91 ; Rodgers v. Niles, 
 11 Ohio St. 48; Gammell v. Gunby, 52 Ga. 504 ; Sims v. Howell, 49 Ga. 
 620. 
 
 (6) Fisk V. Tank, 12 Wis. 276. 
 
 (7) Robinson Machine Works v. Chandler, 56 Ind. 575; Harris v. 
 Waite, 5 1 Vt. 480. 
 
 (8) Lespard v. Van Kirk, 27 Wis. 152. 
 
 (9) Rodgers v. Niles, 11 Ohio St. 48; Brown v. Sayles, 27 Vt. 227; 
 Page V. Ford, 12 Ind. 46; Street v. Chapman, 29 Ind. 142. 
 
 (10) Dowining v. Dearborn, 77 Me. 457. 
 
 (11) Snow V. Schomacker Mfg. Co., 69 Ala. Ill ; s. c, 44 Am. Rep. 
 509. 
 
 (12) McClamrock v. Flint, 101 Ind. 278. 
 
 (13) Poland v. Miller, 95 Ind. 387; s. c, 48 Am. Rep. 730. 
 
 (14) Shoenberger v. McEwen, 15 111. App. 496. 
 
 (15) Port Carbon Iron Co. v. Groves, 68 Penn. St. 149. See also Ul- 
 rich V. Stohrer, 12Phila. (Penn.) 199. 
 
 (16) Walker v. Pue, 57 Md. 155; Tilton Safe Co. v. Tisdale, 48 Vt. 83. 
 
 (17) Broom's Legal Maxims, 614. 
 
 (18) Brown v. Sayles, 27 Vt. 227; Beals v. Olmstead, 24 Vt. 114; Gay- 
 lord Mfg. Co. V. Allen, 53 N. Y. 515; Newberry v. Wall, 65 N. Y. 484; 
 Mo.ses V. Mead, 1 Denio (N. Y.), 378; Witmore v. Iron Co., Allen 
 (Mass.), .58; Brenton v. Davis, 8 Blackf. (Ind.) 317; Bird v. Mayor, 8 
 Wis. 362; Weiger u. Gould, 86 Ind. 180; Rice v. Forsyth, 41 Md. 389; 
 Howie V. Rea, 70 N. C. 529; Wilcox v. Hall, 53 Ga. 635; Sims v. Howell, 
 49 Ga. 620; Robson v. Miller, 12 S. C. 586; Byers v. Chapin, 28 Ohio St 
 300. 
 
 (19) Thomas v. Simpson, 80 N. C. 4. 
 
 (20) Byer^u. Chapin, 28 Ohio St. 300.
 
 Incidents — Warra7itie8. 99 
 
 J 53. Merchantable Character. Where merchandise 
 is sold to arrive, which neither party can inspect, it 
 would be contrary to sound morality and public pol- 
 icy to enforce the doctrine of " caveat emptor," and 
 compel the purchaser to pay for goods of an unmer- 
 chantable quality. The first principle of the civil 
 law, "caveat venditor," should be applied in such 
 cases. There is an implied engagement in the con- 
 tract itself, that the article sold should be merchant- 
 able.^ 
 
 The same is true where a manufacturer undertakes 
 to supply goods manufactured by himself, or in which 
 he deals, but which the vendee has not the opportun- 
 ity of inspecting; it is an implied term in the con- 
 tract that he shall supply a merchantable article.^ 
 And where one sells goods under circumstances to 
 justify the vendee in believing them to be of the ven- 
 dor's own manufacture, a rule of a board of trade will 
 have no application to prevent a warranty of their 
 merchantable quality, as implied by law.^ 
 
 But the rule is not limited to manufacturers ; it is 
 extended to cases where one merchant contracts to 
 supply goods of a specific description to another mer- 
 chant or dealer.^ Especially is this true where the 
 merchandise is not seen by the vendee,^ or an exami- 
 nation is impracticable.*' For there is no implied 
 warranty of the merchantable character of an article 
 of which the vendor is not the manufacturer, and in 
 regard to which the vendee has equal opportunity for 
 knowledge.^ As to complete contracts, it is a general 
 rule that, unless there has been a warranty, false 
 representations, or fraudulent concealment, the ven- 
 dee must take the property regardless of its defects; 
 while, as to executory sales, the contract always 
 carries an obligation that the article sold shall be
 
 100 Conditional Sales. 
 
 merchantable, at least without any unreasonable 
 defect.^ 
 
 Though the vendee, in the absence of express stipu. 
 lation, can not insist that the article shall be of any- 
 special degree of fineness, yet he has a right to insist 
 that it shall be of medium quality or goodness, free 
 from such defects as would render it unmerchantable, 
 or unfit for the purpose for which it is ordinarily used.* 
 This rule has been applied to sales of wheat,^° guano, 
 or superphospate," ice,^^ and lumber/^ But the rule 
 does not apply to sales of the residuum or refuse of 
 manufacturing establishments. It is often the sub- 
 ject of sale, but the quality of such refuse matter is 
 entirely subordinate to the process which is the main 
 object of the manufacturer; and, on such a sale, 
 there is no implied warranty that the article, when 
 delivered, shall be of a merchantable quality, as a 
 manufactured article.^"^ 
 
 (1) Newbery v. Wall, 35 N. Y. Sup. Ct. 106. 
 
 (2) Laing v. Fidgeon, 4 Camp. (Eng.) 169; Jones v. Just, L. R. 3 Q. 
 B. (Eng.) 197; Randall v. Newson, 2 Q. B. Div. 102; Shephard v. Pay- 
 bus, 3 Man. & G. 868; Babcock v. Trice, 18 111. 420; Thomas v. Simp- 
 son, 80 N. C. 4; Cunningham v. Hall, Sprague, 404; Chambers v. 
 Crawford, Add. (Penn.) 1.50; Merriam v. Field, 39 Wis. 578; Leopold 
 V. Vankirk, 27 Wis. 152; McClung v. Kelley, 21 Iowa, 508; Moore v. 
 McKinlay, 5 Cal. 471; Pease v. Sabin, 38 Vt. 432; Harris ;;. Waite, 
 51 Vt. 480; Mann v. Everston, 32 Ind. 355; Hoe v. Sanburn, 21 N. Y. 
 552. 
 
 (3) Chicago Packing Co. v. Tilton, 87 111. 547. 
 
 (4) Jones v. Just, L. R. 3 Q. B. 197 ; Hanks v. McKee, 2 Litt. (Ky.) 227; 
 Whittaker w. McCormick, 6 Mo. App. 114; Borrekins v. Bevan, 3 Rawle, 
 23; Jennings v. Gratz, 3 Rawle, 168; Ketchum v. Wells, 19 Wis. 34; 
 Hawkins v. Pemberton, 51 N. Y. 148; Wyck v. Allen, 69 N. Y. 61; 
 White V. Miller, 71 N. Y. 118; Lewis v. Rountree, 78 N. C. 323; More- 
 house V. Comstock, 42 Wis. 626 ; Port Carbon v. Groves, 68 Penn. St. 
 149; Walcott v. Mount, 9 Vroom, 496; Flint v. Lyons, 4 Cal. 474; Mes- 
 senger V. Pratt, 3 Lans. 234. 
 
 (5) Howard v. Iloey, 23 Wend. (N. Y.) 350. 
 
 (6) Hyatt u. Boyle, 5 Gill & Johns. 110; Hart v. Wright 17 Wend. 
 267.
 
 Incidents — Warranties. 101 
 
 (7) Bartlettv. Hoppock, 34 N. Y. 118. 
 
 (8) McClung V. Kelley, 21 Iowa, 508; Hamilton v. (ranyard, 34 Barb 
 (N. Y.) 204; Clew v. McPherson, 1 Bosw. (X. Y.) 480. 
 
 (9) Howard v. lloey, 23 Wend. Sol; Brown v. Sayles, 27 Vt. 227. 
 
 (10) S. P. Babcock v. Trice, 18 111. 420; Fish v. Kosebt-rry, 22 111 288. 
 
 (11) Sims V. Howell, 49 Ga. 620; Gammell v. Gumby, 52 Ga. 504. 
 
 (12) Warner v. Arctic lee Co., 74 Me. 475. 
 
 (13) Merriamv. Field, 39 Wis. 578. 
 
 (14) Holden v. Chancey, 58 Barb. (N. Y.) 590. 
 
 5 64. Soundness. That a sound price implies a 
 warranty of soundness of the property which extends 
 to defects known and unknown/ is a much ques- 
 tioned doctrine ;- and it has been held that the doc- 
 trine of implied warranty, from the soundness of the 
 price, reUites only to secret defects which can not, by 
 ordinary skill and diligence, be discovered.^ Such a 
 warranty is not excluded by a written contract of 
 sale containing an express warranty of title.'' But 
 no evidence of a custom or usage is admissible to 
 show that the sale of any particular article implies 
 a warranty of goodness of that article.^ 
 
 The sale of a chattel b}^ the maker, implies a war- 
 ranty against latent defects growing out of the pro- 
 cess of manufacture.*' But where it is sold with the 
 understanding that it is unsound from any cause, and, 
 in consequence of such understanding, it sells for less 
 than it would otherwise have brought, no general im- 
 plication of warranty of soundness arises, unless the 
 vendor has been guilty of deceit, or such false repre- 
 sentation as was calculated to suppress free inquiry, 
 or lull the suspicions of a reasonable man." For a 
 vendor is liable if he knows of a defect in the chattel 
 sold, which is unknown to the vendee, and does not 
 disclose it.~^ 
 
 Where perishable goods are sold, to be shipped to 
 a distant market, a warranty is implied that they are 
 properly packed and fit for such shipment, but not
 
 102 Conditional Sales, 
 
 that they will continue sound for any particular or 
 definite period. The implied warranty will not cover 
 unforeseen contingencies,^ nor will proof of the worth- 
 lessness of the goods received be allowed to defeat 
 the vendor's claim for the purchase price. ^"^ 
 
 On a sale of provisions by the quantity, as mer- 
 chandise, there is no implied warranty that the whole 
 is sound.^^ For a warranty that provisions are whole- 
 some and fit for consumption, if implied at all, is im- 
 plied only where they are sold for C( nsumption, or 
 immediate domestic use, by the vendee, and not 
 where they are sold as merchandise.^^ When sold 
 for immediate domestic use, the vendor, at his peril, 
 is bound to know that they are sound and wholesome; 
 and if they are not so, he is liable to an action on the 
 case, at the suit of the vendee.^^' 
 
 (1) Mitchell V Dubose, 1 Treadw. (S. C.) Const. 360; Crawford v. 
 Wilson, 2 Treadw. (S. C.) Const. 353; Lester v. Graham. 1 Treadw. (S. 
 C.) Const. 182; Whitefield v. McLeod, 2 Bay (S. C), 380; State v. Gael- 
 lard, 2 Bay, 19 ; Timrod v. Schoolbred, 2 Bay, 324; Barnard v. Yates, 1 
 Nott. & M. (S. C.) 142; Eastland v. Longshorn, 1 Nott. & M. 194; Miss- 
 room V. Waldo, 2 Nott. & M. 76; Thompson v. Lindsley, Mill (S. C.) 
 Const. 236; Calcock v. Reid, 3 McCord (S. C.) 513; Bailey v. Nicholls, 2 
 Root (Conn.), 407. 
 
 (2) Johnson v. Cope, 3 Har. & J. (Md.) 90; Penniman v. Pierson, 1 
 D. Chip. (Vt.) 394; Dean v. Mason, 4 Conn. 428; Cozzins v. Whittaker, 
 3 Stew. & P. (Ala.) 322; Defreeze v. Trumper, 1 Johns. (N. Y.) 274; 
 Holden v. Dakin, 4 Johns. (N. Y.) 421 ; Boyd v. Whitfield, 19 Ark. 447; 
 Loris V. Long, Tayl. (N. C.) 17. 
 
 (3) Rose V. Beatie, 2 Nott. & M. (S. C.) 538; Bragg v. Morrill, 49 Vt. 
 45; Hoult V. Baldwin, 67 Cal. 610. 
 
 (4) Wood V. Ashe, 3 Strobh (S. C.) 64; Trimmier v. Thomson, 10 S. 
 C. 164. 
 
 (5) Thompson v. Ashton, 14 Johns. (X. Y.) 316. 
 
 (6) Hoe V. Sanborn, 21 N. Y. 552. 
 
 (7) Watson v. Burrill, 1 Rich. (S. C.) 402. 
 
 (8) McGarock v. Ward, Cooke (Tenn ), 403. But see Oneida Mfg. 
 Co. V. Lawrence, 4 Cow. (N. Y.) 440. 
 
 (9) Mann v. Everston, 32 Ind. 355. 
 
 (10) Richardson v. Bouck, 42 Iowa, 185. 
 
 (11) Jones V. Murray, 3 T. B. Mon. (Ky.) 83; Emerson v. Brigham, 10
 
 Incidents — Warranties. 103 
 
 Mass. 197; Moses v. Mead 1 Den. (X. Y.)378; s. c.,5 Den. 617; Ilyland 
 V. Sherman, 2 E. D. Smith (N. Y.), 234. 
 
 (12) Ryder v. Neitge, 2 Minn. 70. 
 
 (13) Van Bracklin v. Fonda, 12 John?. (N. Y.) 467; Hover v. Peters, 
 18 Mich. 51. 
 
 Article 13. — Express Warranties. 
 
 § 55. What Amounts to a Warranty. 
 . § 56. What Does Not Amount to Warranty. 
 § 57. Effect of Warranty. 
 § 58. Breach of Warranty, and Rescission. 
 § 59. When Action Lies for Breach. 
 § 60. When Action Does Not Lie for Breach. 
 § 61. Measure of Damages. 
 
 § 55. What Amounts to a Warranty. Although, to 
 constitute a warranty, the term warrant need not be 
 used, and no precise form of expression is required, 
 yet there must bo an affirmation, to the quality or 
 condition of the thing sold, made by the vendor at 
 the time of the sale, for the purpose of assuring the 
 vendee of the truth of the fact affirmed, and inducing 
 him to make the purchase, which affirmation is so re- 
 ceived and relied upon by the vendee.^ There is, 
 however, a distinction as to the legal effect of ex- 
 pressions when used in reference to a matter of fact, 
 and when used to express an opinion. When the 
 representation is positive," and relates to a matter 
 of fact,^ it constitutes a warranty ; but where it re- 
 lates to that which is a matter of opinion, or fancy, 
 it does not amount to a warranty unless there are 
 other declarations which leave no doubt of the inten- 
 tion to warrant.^ Whether a particular representa- 
 tion was a warranty, or a mere expression of opinion, 
 depends on what was the understanding or intention 
 of the parties.^ For if the vendor, at the time of the 
 sale, makes representations, or assertions, on whir-h 
 he intends the vendee to rely, and on which he does
 
 104 Conditional Sales. 
 
 rely, it is a warranty.'^ But such representations of 
 the vendor, to bo relied on to make a wjirranty, must 
 be so made as to authorize the vendee to understand 
 that the vendor intended to be bound by them, and 
 must have been relied upon by the vendee^ How- 
 ever, it has been held that any assertion or affirma- 
 tion respecting the quality of the article, made by 
 the vendor to the vendee, during the negotiations to 
 effect the sale, will be regarded as a warranty, if re- 
 lied on by the vendee.^ 
 
 Whether what passed between the parties amounted 
 to a warranty, or was merely a recommendation or 
 expression of opinion, is a matter for the jury to de- 
 termine, unless the language used has a fixed or tech- 
 nical meaning.^ The question for the jury is not 
 whether the vendor intended to warrant, but whether 
 he did warrant, and this is to be determined by the 
 language used.^° Yet the intent to warrant may be 
 inferred from the words used, the circumstances, and 
 the subject-matter." But the question, as to whether 
 an express warranty was, or was not made, is one 
 alone for the jury to determine, on the weight of the 
 evidence.^^ 
 
 Where a vendor makes representations to the ven- 
 dee concerning the kind or quality of the article sold, 
 on which the vendee relies, and is known to the ven- 
 dor to rely, and on which the vendor intended and 
 expected that he should rely — the article not being 
 present or subject to inspection, and the vendee hav- 
 ing: no other means of information than the statements 
 of the vendor — such representations will be held a 
 warranty.^^ So, the use of the word " Haxall " in a 
 sale note of flour, has been held a warranty that the 
 flour was "Haxall;"" and the use of the words, 
 *' good milling wheat," constitutes a warranty as to
 
 Incidents — Warranties. 105 
 
 qiialitv.^^ Representations by a vendor, upon a sale 
 of flour in Ijurrels, that it is in quality superfine;^'"' of 
 fruit, that it was tirst-class;^" of oil, that it was j)rirae 
 winter oil ;^^ and of the sale of wool in sacks, marked 
 on the sacks and described in the invoice, as being 
 of a certain (juality,^^ have each been held, as a mat- 
 ter of law, to amount to a warranty of quality. And 
 an agreement by the vendor of a heater, " to protect 
 the sale from infringement on other heaters," has 
 been construed as a warranty that the article sold 
 was not an infringement of any patent.'-^ Representa- 
 tions by the vendor of the quality of the thing sold, 
 or of its fitness for a particular purpose, intended as 
 a part of the contract ot sale, and relied upon by the 
 vendee, constitute a contract of warranty.-^ For ex- 
 ample, representations by the vendor of a patent 
 screw for elevating hay, " that it would work in 
 all kinds of hay, grain, straw, and other grass," and 
 was, " in all respects, fit for the use intended," were 
 held to amount to a warranty;- so, also, where ma- 
 chinery was ordered for a special purpose,-^ or the 
 goods to be manufactured are to correspond in qual- 
 ity to certain other goods,-* or the material furnished 
 to a manufacturer is to be equal in quality to any 
 brand of the same material.^ 
 
 Misrepresentations as to the character and condi- 
 tion of articles sold, made to influence the bargain, 
 and having that efi*ect, are equivalent to warranties, 
 whether made innocently or fraudulently, and whether 
 inserted in the written contract of sale or not.-'"' Nor 
 will the representations, which would be sufficient to 
 constitute a warranty, be deprived of that character 
 by the fact that they were false and fraudulent! v 
 made.-' But a transaction can not be characterized 
 as a warranty and a fraud at the same time — a war-
 
 106 Conditional Sales. 
 
 ranty rests upon a contract, while fraudulent repre- 
 sentations have no element of contract in them, but 
 are essentially a tort.-^ 
 
 Where a bill of parcels is given, upon a sale of 
 goods, or describing the goods, or designating them 
 by a name well understood, such bill is to be consid- 
 ered as a warranty that the goods sold are what they 
 are thus described or designated to be ; and this rule 
 applies, though the goods are examined by the pur- 
 chaser at or before the sale, if they are so prepared* 
 and present such an appearance, as to deceive skill- 
 ful dealers. '^^ A warranty may also be created by a 
 reasonable and established custom or usage of trade,^'' 
 or by reference to a printed warranty contained in a 
 circular.^^ 
 
 Any thing may, by contract, be made the subject 
 of warranty, as the value of the article, if a material 
 fact.^^ But a warranty of title, in a bill of sale, is an 
 exclusion of all other warranties,^^ although it has 
 also been held that an express warranty of property 
 can not be fairly construed to intend an exclusion of 
 the natural implied warranty of soundness.^'* 
 
 A warranty may be verbal, or in writing,''^ and 
 may be made while the parties are in treaty for the 
 sale, although the sale does not take place until some 
 days afterward. ^'^ And a vendor will be bound by an 
 express warranty of quality, distinctly made at the 
 close of the negotiation, although, in the course of the 
 previous conversation, he may have stated the truth 
 on the same point.^'^ A warranty made after a con- 
 tract of sale is completed is inoperative, unless there 
 is some new consideration, distinct from that of the 
 sale, to sustain it."^ 
 
 An agent who is authorized to sell a manufactured 
 article for the makers, may bind them by an express
 
 Incidents — Warranties. 107 
 
 warranty, notwithstanding any private instructions 
 which are unknown to the purchaser.-''-* A joint 
 owner of personal property is not bound by the 
 false representations or false warranty of the other 
 joint owners, unless expressly authorized by them.^'' 
 But where a joint owner of property, authorized to 
 sell, warrants the soundness of the property, which 
 is found to be defective, and the seller pays for the 
 defect without suit, the other joint owner is bound 
 to contribute to the loss in proportion to his in- 
 terest." 
 
 (1) Hawkins v. Berry, 10 111. (5 Gilm.) 31'.; S. P. Ender v. Scott, 1 1 111 
 35; Kaiidall v. Thornton, 43 Me. 226; Marsh v. Webber, \?, Minn. 109 
 Morrill v. Wallace, 9 N. II. 1 1 1 ; Bryant v. Crosby, 40 Me. 9; Sweet v 
 Bradley, 24 Barb. (N. Y.) 549; Blakeman v. Makay, 1 Hilt. (N. Y.) 266 
 Foggart V. Blackweller, 4 Ired. (N. C.) L. 238; Beals v. Olmsted, 24 Vt 
 114.^ 
 
 (2) Carter v. Black, 46 Md. 384. 
 
 (3) Polhemus v. Heiman, 45 Cal. 573. 
 
 (4) Reed v. Hastings, 61 111. 266. 
 
 (5) Patrick v. Leach, 8 Neb. 5:30. 
 
 (6) Dickens v. Williams, 2 B. Mon. (Ky.) 374. 
 
 (7) Torkelson v. Jorgenson, 28 Minn 383. 
 
 (8) Neane u. Arntz, 56 Wis. 174. 
 
 (9) Murray v. Smith, 4 Daly (N. Y.), 277; Bradford o. Bush, 10 Ala. 
 386; Terhune v. Diver, 36 Ga. 64S; Wheeler v. Reed, .^6 111. 81 ; McFar- 
 land V. Newman, 9 Watts (Penn.), 55; Kinley v. Fitzpatrick, 5 Miss. (4 
 How.) 59; Morrill v. Wallace, 9 N. H. Ill; Baum v. Stevens, 2 Ired. 
 (N. C.) L. 411 ; Foggart v. Blackweller, 4 Ired. (N. C.) L. 238. 
 
 (10) Smith V. Justice, 13 Wis. 600. 
 
 (11) Thome u. McVeigh, 75 111. 81. 
 
 (12) Boothby v. Scales. 27 Wis. 626. 
 
 (13) Warren v. Van Pelt, 4 E. D. Smith (N. Y.) 202. 
 
 (14) Flint V. Lyon, 4 Cal. 17; Bertram i'. Lyon, 1 McAll. 53; Webber 
 V. Davis, 44 Me. 147. 
 
 (15) Jack V Des Moines & Fort Dodge R. R. Co., 53 Iowa, 399. 
 
 (16) Carley 1. Wilkins, 6 Barb. (X Y.)557. 
 
 (17) Scott V Raymond. ;>! Minn. 4.')7. 
 
 (18) Ilastirgs v. Lovering, 2 Pick (Mass.) 214. 
 
 (19) Richmond Trading k Mfg. Co. v. Farquar, 8 Blackf. (Ind.) 89. 
 
 (20) Croninger v. Paige, 48 Wis. 229. 
 
 (21) Richardson v. Grandy, 49 Vt. 22.
 
 108 Conditional Sales. 
 
 (22 
 (23 
 (24 
 (25 
 (26 
 (27 
 (28 
 (29 
 
 &G. 
 (30 
 (31 
 
 509. 
 (32 
 (33 
 (34 
 
 (S. C. 
 (35 
 (36 
 (37 
 (38 
 
 (39 
 (40 
 (41 
 
 Elkins V. Kenyon, 34 Wis. 93. 
 
 Whitehead & Atherton Mche. Co. v. Ryder, 139 Mass. 366, 
 Briggi;. Hilton, 11 Daly (N. Y.) 335. 
 Park V. Morris Co., 41 How. (N. Y.) Pr. 18. 
 Waterbury v. Russell, 8 Baxter (Tenn,), 159. 
 Rose V. Hurley, 39 Ind. 77. 
 Carter v. Abbott, 33 Iowa, 180. 
 
 Henshaw v. Robins, 9 Mete. (Mass.) 83; Osgood v. Lewis, 2 Har. 
 Md.)495. 
 Fatman v. Thompson, 2 Disney (Ohio), 482. 
 Snow V. Schomacker Mfg. Co., 69 Ala. Ill; s. c, 44 Am. Rep. 
 
 Pickard v. McCormick, 11 Mich. 68. 
 Wren v. Wardlaw, Minor (Ala.), 363. 
 
 Houston V. Gilbert, 3 Brev. (S. C.) 63; Wells v. Spears, 1 McCord 
 , 421 ; Hughes v. Banks, 1 McCord (S. C), 537. 
 Lindsay v. Davis, 30 Mo. 406. 
 Wilmot V. Hurd, 11 Wend. (N. Y.) 584. 
 Deming v. Foster, 42 N. 11. 165. 
 Summers v. Vaughan, 35 Ind. 323; Congar v. Chamberlain, 14 
 
 Wis. 258; Towell v. Gatewood, 3 111. (2 Scam.) 22. 
 
 Boothby v. Scales, 27 Wis. 626. 
 
 Holmes v. Wood, 32 Ind. 201. 
 
 Davis V. Burnet, 4 Jones (N. C.) L. 71. 
 
 § 56. What Does Not Amount to a Warranty. As was 
 
 shown in the preceding section, in order to constitute 
 an express warranty, it is not necessary to use any 
 particular term, if the \endor intends, by his lan- 
 guage, to warrant, or bind himself, that the article in 
 question is as represented. 
 
 But a mere affirmation that a thing is good or 
 sound, a general praise, commendation, opinion, or 
 belief, does not amount to a warranty when not so 
 intended.^ 
 
 If a representation is made, in the course of a nego- 
 tiation for a sale, and the contract of sale is afterward 
 reduced to writing and signed, and does not contain the 
 representation, it is excluded from the contract, and 
 does not amount to a warranty.^ For parol evidence 
 is not admissible to add a warranty to a written con-
 
 Incidents — Warranties. 109 
 
 tract of sale.^ A written warranty, gratuitously 
 given after the sale of personalty, will not supersede 
 an oral and different one given at the time of the 
 sale/ Nor can the vendee of an article rely upon 
 statements made by the manufacturer, in circulars 
 relating to the article, as a warranty that it will do 
 what is therein stated.^ 
 
 The warranty of any thing sold, as to quality, is no 
 warranty of its value ^ And where the vendee pur- 
 chases a chattel at sight, which the vendor affirms to 
 be worth much more than its real value, no action 
 lies, there being no express warranty." For state- 
 ments as to jirice and value, by the vendor, are not 
 so jealously watched in law as statements as to title 
 and quality.^ 
 
 A representation, made by a vendor, respecting 
 the property sold, may relieve the vendee from the 
 use of that care, caution, and observation that he 
 would be bound to exercise if no representations were 
 made ; but, in case of warranty, an obvious defect is 
 not cured by the warranty, because the law requires 
 the vendee to examine the property with that degree 
 of care and skill that men generally are capable of 
 exercising in respect to property they are proposing 
 to purchase. The same principle should apply in 
 case of false representations. If the property is pres- 
 ent, and nothing is said or done by the vendor to in- 
 duce the vendee not to examine it, and 'the falsity of 
 the representations is palpable to the senses, the ven- 
 dee can not be permitted to omit examination, and 
 justify his omission by the representation.^ If the 
 representations made upon the sale of an article 
 prove utterly false, that will not amount to a war- 
 ranty in itself, but it is for the jury to say whether 
 the representations were fraudulently made.^°
 
 110 Conditional Sales. 
 
 All representations m.-ide by the vendor to the ven- 
 dee, at the time of sale, do not amount to a war- 
 ranty." The assertion or affirmation of a vendor 
 concerning the article sold must be positive and un- 
 equivocal. It must be a representation which the 
 vendee relies on, and one which is understood by the 
 parties as an absolute assertion, and not the ex- 
 pression of an opinion.^^ For example, statements by 
 a vendor of an apparatus to be used in connection 
 with a fuel for stoves, that it was of great value ; that 
 in its use there was no dirt, or smoke ; that it burned 
 a long time, and could be run for small expense ; and 
 that experiments had been made therewith which 
 had proved successful, were held to be mere state- 
 ments of opinion, and fall within what is known as 
 " dealer's talk," and are not sufficient foundation for 
 an action for deceit, unless the vendee has been 
 fraudulently induced to omit an examination of the 
 apparatus for himself.^^ In the absence of fraud, or 
 any showing of fraud, a representation by the vendor 
 of a patent plow stock, that the plow would sell well 
 in Mississippi or any-where else ;^* a statement by 
 the vendor of a stock of goods that, in his belief, the 
 cost of the goods sold would amount to a certain 
 sum ;^^ the description of iron sold as mill iron, in a 
 bill rendered to the vendor;^® and the description of 
 tobacco, in a bill of sale, as good first and second rate 
 tobacco,^^ have each been held to be mere statements 
 or expressions of opinion, not amounting to a war- 
 ranty. So, the use of the words, "approved standard 
 quality," in a contract of sale of merchandise;^*^ and 
 the use of the words, " blue vitriol, sound, and in 
 good order," in a sale of vitriol in casks," have been 
 hold not to raise an express warranty, they having
 
 Incidents — Warranties. Ill 
 
 been used merely as a comtnercial designation, or ex- 
 pression, for a merchantable article. 
 
 A bill of parcels, designating merchandise sold as 
 of a particular kind, imposes no obligation as to qual- 
 ity, but only as to kind.-° Where the contract does 
 not specify the goods, but only the quality of the 
 goods to be delivered, there is no warranty that the 
 goods shall be of the quality' mentioned; and the 
 failure to comply with the contract is not a breach of 
 warranty, but of contract.^^ And an express war- 
 ranty of quality excludes an implied warranty that 
 the article is tit for its intended purpose." A pub- 
 lic officer, making an official sale, makes no war. 
 ranty, unless, by an express contract.^ 
 
 (1) O'Neal V. Bacon, 1 Houst. (Del.) 215; S. P. Moore u. McKinlay,5 
 Cal. 471; Adams v. Johnson, 115 111. 345; Jones v. Quick, 28 Ind. 125; 
 Ilillmaii V. Wilcox, 30 Me. 170; Kinlay v. Fitzpatrick, 5 Miss. (4 How.) 
 59; Morrill v. Wallace, 9 N H. Ill ; McGregor v. Penn, 9 Yerg. (Tenn.) 
 74; Otts V. Alderson, 18 Miss. (10 Sme. & M. Ch.) 476; Oneida Manufac- 
 turing Co. V. Lawrence, 4 Cow. (N. Y.) 440; Roberts v. Morgan, 2 Cow. 
 (N. Y.) 438; Chapman v. March, 19 Johns. (N. Y.) 290; Whitney v. 
 Sutton, 10 Wend. (N. Y.) 411 ; Rogers v. Ackerman, 22 Barb. (N. Y.) 
 134; Hensoii v. King, 3 Jones, (N. C.) L. 419; Weimer v. Clement, 37 
 Penn. St. 147. 
 
 (2) Randall v. Rhodes, 1 Curt. 90. 
 
 (3) Rice V. Forsyth, 41 Md. 389. 
 
 (4) Aultman v. Kennedy, 33 Minn. 339. 
 
 (5) Bermen v. Woods, 38 Ark. 351. 
 
 (6) Lightburn v. Cooper, 1 Dana (Ky.), 273. 
 
 (7) David v. Meeker, 5 Johns. (N. Y.) 354. 
 
 (8) Simpson v. Wiggins, 3 Woodb. & M. 413. 
 
 (9) Vandawalkor v. Osmer, 65 Barb. (N. Y.) 556. 
 
 (10) Bigler v. Flickinger, 55 Penn. St. 279. 
 
 (11) Leonard v. Peoples, 30 Ga. 61. 
 
 (12) Hakins v. Pemberton, 51 N. Y. 198; Horton v. Green, 66 N. C. 
 596; Ricks V. Dillahunty, 8 Port. (Ala) 133; Baum u. Stevens, 2 Ired-. 
 (N. C.) L. 411 ; Bond v. Clark, 35 Vt. 577. 
 
 (13) Kimball v. Bangs, (Mass.) 11 X. E. Rep. 113. 
 
 (14) Baldwin v. Daniel, 69 Ga. 782. 
 
 (15) Tenny v. Cowles, (Wis.) 31 N. W. Rep. 221. 
 
 (16) Carondelet Iron Works r. Moore, 78 111. 65.
 
 112 Conditional Sales. 
 
 (17) Towell V. Gatewood, 3 111. (2 Scam.) 22. 
 
 (18) Cohen v. Piatt, 4 N. Y. Sup. Ct. 483. 
 
 (19) Hawkins v. Pemberton, 6 Robt. (N. Y.) 42. 
 
 (20) Gunther v. Atwell, 19 Md. 157, 
 
 (21) Rickettsv. Hays, 13 Ind. 181. 
 
 (22) International Pavement Co. v. Smith, 17 Mo. App. 264; McGraw 
 V. Fletcher, 35 Mich. 104. 
 
 (23) Commissioners v. Thomson, 4 McCord (S. C), 434. 
 
 J 57. Effect of a Warranty. On a sale of a chattel, 
 with a warranty, express or implied, in the absence 
 of fraud on the vendor's part, if the article is not as 
 warranted, the vendee may return it, or offer to re- 
 turn it, within a reasonable time, where the time is 
 not fixed by special contract, and thus defeat the ven- 
 dor's right to recover any part of the price ; or may 
 keep the chattel, and, in an action for the price, re- 
 coup damages for breach of the warranty.^ But a 
 vendee of property, to be delivered at a future day, 
 may, by taking an express warranty, at the time of 
 the purchase, that the goods, when delivered, shall 
 possess the particular qualities which it is important 
 for him to secure, relieve himself from the obligation 
 to return the property on discovering its inferiority, 
 and still hold the vendor responsible for the defi- 
 ciency in quality.^ He can not, however, relieve him- 
 self from the obligation to pay for the goods, by the 
 exercise of an arbitrary opinion as to the quality. 
 The defect must be such as to amount to a breach of 
 contract. Where the contract provides that if the 
 goods did not correspond to the warranty, the vendor 
 was to be notified, and, if he could not make them 
 satisfactory, they could be returned; but if, after 
 ninety days, they suited the vendee, he was to pay 
 for them on the terms specified, it was held that the 
 vendee could not, by the exercise of an arbitrary 
 discretion, release himself from the obligation to pay.^
 
 Incidents — Warranties. 113 
 
 And, where the warranty extends to a certain time, 
 the vendee can not retain and use the goods after the 
 time of warranty had expired, without becoming 
 liable to pay.'* 
 
 An express warranty extends to all defects, whether 
 known or unknown to the vendor, unless they be such 
 as a common vendee might have observed at the time 
 of the sale.'' 
 
 And a general warranty of soundness may cover 
 even patent defects, where intended so to be cov- 
 ered." It has also been held, that a warranty of 
 title draws to it any after acquired right of the war- 
 rantor." 
 
 If a sale is with warranty, the vendor is bound to 
 deliver the articles of the stipulated quality, and the 
 examination and appropriation of some of the articles 
 by the vendee, when they are delivered, does not 
 amount to a waiver of the contract.^ Nor is he bound 
 to rescind on discovering a breach, but may use the 
 goods and rely on the warranty f and, in an action by 
 the vendor for the price, may recover the damages 
 found to have been suffered by reason of the breach 
 of warranty.^" 
 
 Where an executory contract for the sale of 
 material, to be manufactured into articles of mer- 
 chandise, is with warranty of its fitness for the 
 purpose intended, the vendee, upon receipt, is not 
 bound to apply tests before using; but if defects, not 
 open and visible, are thereafter discovered, which 
 amount to a breach of the warranty, he has his rem. 
 edy thereon.^^ 
 
 Or, if the goods are purchased upon a warranty as 
 to quality, for the purpose of combining with other 
 material, to be manufactured into articles of merchan- 
 8
 
 114 Conditional Sales. 
 
 clise, and, on using part, they prove to be defective 
 and worthless, and, upon comparison, it is found that 
 the remainder are of the same general character and 
 apparent quality, the vendee is justified in refusing 
 to further use them, and is not liable for the pur- 
 chase price/' If a vendor, in selling goods which he 
 knows to be designed by the vendee for a particular 
 use, warrants them to be " perfect," this must be con- 
 strued to mean that they are perfect for the use in- 
 tended. ^^ 
 
 A manufactur who sells machinery not made by 
 himself, with a warranty that it is in good condition, 
 and, if not found so, shall be placed in such condition, 
 puts himself in a position analogous to that of one 
 who contracts to build and furnish. ^^ If the sale be 
 of milling machinery, which is warranted to make 
 flour " to satisfy the trade " of the vendee, the trade 
 meant is the trade in and around the place where the 
 mill is situated.^^ It is a fundamental principle of 
 law that has never been departed from, that when 
 the obligations of an express warranty are concurrent, 
 the party who seeks to enforce the obligations of the 
 other must prove performance on his part, or an oifer 
 to perform.^*^ Yet the obligations of a warranty may 
 be waived ; and if the vendee accepts the goods after 
 examination, there being no fraud on the part of the 
 vendor, he can not afterward, on account of a breach 
 of the warranty, rescind the contract and return the 
 goods, in the absence of any agreement to that ef- 
 fect.^^ But where the vendor becomes liable for a 
 breach of warranty, the mere fact that his vendee 
 had other business transactions with him, and did 
 not insist on payment for the breach, will not amount 
 to a waiver.^^
 
 Inculciiln — Warranlics. 115 
 
 (I) Warder v. Fisher, 48 Wis. 338. 
 
 {■!) Woodley v. Davis, ti;i Barb. (N. Y.) 500. 
 \i) Flint V. Cook, 102 Ind. 391. 
 
 (4) Bristol V. Tracy, 21 Barb. (N. Y.) 236; Webster v. i'hoenix Insur- 
 ance Co., 3(3 Wis. 67; Abbott v. Johnson. 2 N. W. Rep. 332; Nichola v. 
 Hail, 4 Xeb. 210; Miller v. Nichols, 5 Neb. 478; Pitts Sons Mfg. Co. v. 
 Spitsnogle, 6 N. W. Rep. 71; Bayliss u Ilennessy, 6 N. W. Rep. 46; J. I. 
 Case Threshing Machine Co. v. Vennom, 23 N. W. Rep. 563. 
 
 (5) Ricks V. Dillahunty, 8 Port. (Ala.) 133. 
 
 (6) Fletcher v. Young. 69 Ga. 591. 
 
 (7) Curran v. Burdsall, 20 Fed. liep. 835. 
 
 (8) Willingsr. Consequa, Pet. C. Ct. 301. 
 
 (9) Brigg V. Hilton, 'J9 N. Y. 517; s. c, 52 Am. Rep. 63. 
 
 (10) Ilenkel v. Burke, (Me.) 10 Am. Rep. 249. 
 
 (II) Bounce V. Dow, 57 N. Y. 16. 
 
 (12) Cooper v. Hall, (Neb.) 34 N. W. Rep. 349. 
 
 (13) Roe V. Bacheldor, 41 W^is. 360. 
 
 (14) Kimball Mfg. Co. v. Vioman, 35 Mich. 310. 
 
 (15) Knowlton v. Oliver, 28 Fed. Rep. 516. 
 
 (16) Dunham v. Pette, 8 N. Y. 508; Nichols v. Knowles, 18 N. W. 
 Rep. 413; Wendall v. Osborne, 18 N. W. Rep. 709; Warden v. Syca- 
 more Harvester Co., 7 N. W. Rep. 756. 
 
 (17) Scranton v. Mechanics Trading Co., 37 Cal. 130; McCormick v. 
 Sarson, 45 N. Y. 265 
 
 (18) Snow V. Sho.iiiicker Mfg. Co., 69 Ala. 111. 
 
 ^ 58. Breach of Warranty, and Rescission. A latent 
 defect, existiiijsj; ut the time of tlie sale, which, by the 
 occurrence of natural circumstances develops into a 
 serious injury, is a breach of warranty.^ As, in the 
 case of a warranty on the sale of a soda fountain, that 
 it was in good condition, the warranty is broken if, 
 from an inherent defect in its construction, existing 
 at the time of the sale, it was liable to get out of or- 
 der from time to time, and from that cause failed to 
 answer the purpose for which it was designed, al- 
 though it was in a good condition to make soda water 
 on the day of the sale.- If, however, accompanying a 
 sale, there is a warranty that the article, if set u[) in 
 a certain manner or location, and operated in a cer- 
 tain way, will prove satisfactory, and such war- 
 ranty is accepted as part of the contract of sale,
 
 116 Conditional Sales. 
 
 before advantage can be taken of it, the vendee must 
 have tested it after it had been set up in sucli a man- 
 ner and location.^ 
 
 One seeking the rescission of a contract because of 
 fraudulent representations, must oifer to rescind 
 promptly on discovering the fraud.^ Or, if a breach 
 of warranty occurs, and the vendee elects to rescind, 
 he must oifer to return the consideration or thing re- 
 ceived,^ unless it be worthless,*^ and notify the vendor 
 of his election to rescind.' And if the vendor be a 
 resident of a foreign state, an attempt must be made 
 to give him notice through the post-office.^ If rescis- 
 ion is claimed for default of performance in either 
 party, good faith requires that notice of the claim or 
 purpose to rescind be given wherever an omission so 
 to do would reasonably lend the defaulting party to 
 incur trouble or expense in future performance ; and, 
 if the notice be not given, and further performance is 
 induced by such silence, the right to rescind will be 
 deemed waived.^ Keeping the property an unreason- 
 able time, without objection, will also be deemed a 
 waiver ; and it has been held, that where the vendee 
 kept the property two months, without objection, he 
 was bound to pay for it, there being no fraud.^*' 
 
 (1) Hooku. Stovall, 21 Ga. G9. 
 
 (2) Pritchard v. Fox, 4 Jones (N. C.) L. 140. 
 
 (.3) Exhaust Ventilator Co. v. C. M. & St. P. Ry. Co., (Wis.) 28 N. W. 
 Rep. 343. 
 
 (4) Parmlee v. Adolph, 28 Ohio St. 10. 
 
 (.5) Weed v. Page, 7 Wis. 503; Christy v. Cummins, 3 McLean, 386; 
 Coghill V. Boring, 1.5 Call, 213; Bigelow on Fraud, 408-424. 
 
 (6) Fleetwood v. Dorsey Mche. Co., 95 Ind. 491. 
 
 (7) Smalley v. Hendrickson, 29 N. J. L. 371 ; Dewey v. Erie Borough, 
 14 Penn. St. 211 ; Moral School Township v. Harrison, 74 Ind. 93; Paul- 
 son V. Osborne & Co., 27 N. W. Rep. 203. 
 
 (8) Dewey v. Erie Borough, 14 Penn. St. (2 Harris) 211. 
 
 (9) Seeds v. Simpson, 16 Ohio St. 321 ; Kirby v. Harrison, 2 Ohio St. 
 326.
 
 Incidents — Warranties. 117 
 
 (10) Percival v. Blake, 2 C & P. r>14 See Grimaldi v. White, 4 Esp. 
 96, Groning v. Mendham, 1 Stark. 257; Hopkins v. Appleby, 1 Stark. 
 477; Kellog V. Denslow, 14<"niiii 411. 
 
 § 59 When Action Lies for Breach. Money may 
 be recovereel which has been paid for goods sold on a 
 warranty, express or implied, that they are of a speci- 
 fied kind or quality, when they prove to be of a dif- 
 ferent kind, or inferior quality, after a return, or an 
 offer to return them, though the vendor were inno- 
 cent,^ for the right of action arises under the contract 
 irrespective of fraud on the part of the vendoi.^ But 
 money so paid can not be reclaimed, where the prop- 
 erty is of any value, unless the vendee first returns or 
 offers to return it ^ 
 
 If, however, the vendee elects to keep the property, 
 he could maintain an action for breach of warranty ;^ 
 and, in that case, the damages would be the differ- 
 ence between the real value of the property, at the 
 time of the sale, and the amount paid, or agreed to 
 be paid.' If he sues for a breach of warranty he af- 
 firms the contract, and thereby admits his liability for 
 the agreed price, less the damages caused him by the 
 breach of warranty.*^ 
 
 Where there is an express warranty, an acceptance 
 of the goods, after opportunity to examine them, does 
 not preclude the vendee from claiming and recover- 
 ing damages for breach of the warranty," even though 
 a portion of the goods may have been used by the 
 vendee after discovering the breach of warranty.* 
 And if the action for damages foi breach of warranty 
 is brought within a reasonable time, the vendor can 
 not defend on the ground that the bills for the goods 
 bore a notice requiring all claims for damages to be 
 made immediately.^ The vendee can maintain an ac- 
 tion for breach of warranty, although, after discover-
 
 118 • Conditional Sales. 
 
 ing the breach, he paid the agreed price.^° Nor will 
 the vendee be deprived of his right of action, though 
 a negotiable note, then unpaid, was given for the price 
 of the goods purchased. ^^ 
 
 In order that an action may be maintained for a 
 breach of a covenant of warranty of the title to a 
 chattel, the vendee need not have waited to be actu- 
 ally dispossessed. It is enough, if he could not have 
 withheld the owner of the paramount title without 
 becoming a wrong-doer.^- 
 
 And if the true owner sues, and recovers judgment 
 against the vendee for converting the property, the 
 latter may recover on the covenant of warranty, with- 
 out paying the judgment.^^ 
 
 (1) Bradford v. Manly, 13 Mass. 139; Conner v. Henderson, 15 Mass. 
 319; Martin v. How, 2 Treadw. (S C.) Const. 750. 
 
 (2) Burge v. Strob^rg, 42 Ga. S9. 
 
 (3) Conner v. Henderson, 15 Mass. 319; Warren v. Wheeler, 1 D. 
 Chip. (Vt.) 159; Wharton v. O'Hara, 2 Nott. & M. (S. C.) 65. 
 
 (4) Lewis V. Rountree, 78 N. C. 323; Martin v. Maxwell, 18 Mo. App. 
 176; Gatling v. Newell, 9 Ind. 572; House v. Foster, 4 Blackf. (Ind.) 
 293. 
 
 (5) Beresford v. McCume, 1 Sup. Ct. R. 50. 
 
 (6) Weybrich v. Harris, 31 Kan, 92. 
 
 (7) Kent v. Friedman, 101 N. Y. 616. 
 
 (8) Poland v. Miller, 95 Ind. 387; s. c, 48 Am. Rep. 730. 
 
 (9) Beanev. Tinkham, 14 R. 1. ]',)7. 
 
 (10) Nauman v. Overlee, (Mo,) 3 8. VV. Rep. 380; Ottowa Bottle and 
 Flint Glass Co. v. Gunther, 31 Fed. Rep. 208. 
 
 (11) Thorenson v. Minneapolis Harvester Works, 29 Minn. 341; 
 Wigtins V. Hunter, Harp. (S. C.) 80. 
 
 (12) Cahill V. Smith, 101 N. Y. 355. 
 
 (13) Hersey v. Long, 30 Minn. 114. 
 
 § 60. When Action Does Not Lie for Breach. A rea- 
 sonable compliance with the conditions precedent, in 
 a contract of warranty, is essential, before it can be 
 enforced against the warrantor;' and if, in the action 
 upon a warranty, one party thereto affirms the exist- 
 ence of the warranty, and the other denies it, thei-e be-
 
 Incidents — Warranties. 119 
 
 ing no other evidence, the action must fail.- Nor can 
 relief be ibund in an equity action, for, in the absence 
 of fraud, chancery has no jurisdiction to decree relief 
 on ;i warranty.'^ 
 
 Where a purchaser of goods, which were war- 
 ranted, but which proved to be of an inferior quality, 
 gives no notice to the vendor, but sells the goods at a 
 reduced price, he thereby elects to abide by the con- 
 tract, and is deprived of his remedy against the ven- 
 dor to recover the difference in price."* 
 
 If the contract be for the purchase of machinery, 
 with a warranty that it is in perfect order, and the 
 vendee puts it in operation with full knowledge that 
 it is defective, he is not entitled to recover damages 
 for the breach of warranty.^ And if the vendee had 
 directeol how a machine should be constructed, the 
 vendor is not liable for its defective operation.^ Xor 
 is he liable for the want of parts of the machine, 
 which the vendee undertook to furnish himself if 
 needed. Where the sale is with a warranty that the 
 article would not break in a year, and if it did, the 
 warrantor would remake it, no action can be main- 
 tained upon the warranty without notice of breakage 
 and neglect to remake.^ 
 
 An action will not lie oil an express parol warranty 
 of soundness, where the vendee takes a written war- 
 ranty of title, omitting the warranty of soundness.^ 
 For there can be no action on a parol warranty of any 
 kind, where there is a bill of sale oi agreement in 
 writing respecting the sale.^ Nor can an action be 
 maintained on a warranty made after the contract of 
 sale had been entered into,^° unless there be a new 
 consideration to support the warranty. 
 
 (1) Nichols V. Hail, 4 Neb. 210. 
 
 (2) Kaines v. Totman, 64 How. (N. Y.) Vv. 493.
 
 120 Conditional Sales. 
 
 (3) Sypert V. Sawyer, 7 Humph. (Tenn.) 413. 
 
 (4) Hutter v. Blake, 2 Har. & J. (Md.) 353. 
 
 (5) Xye V. Iowa City Alcohol Works, 51 Iowa, 129. 
 
 (6) Archdale v. Moore, 19 111. 5G5. 
 
 (7) Hill V. Bannister, 8 Cow. 31. 
 
 (8) Wood V. Ashe, 1 Strobh. (S. C.) 407; Mumford v. McPherson, 1 
 Johns (N. Y.) 414; Wilson v. Marsh, 1 Johns. (N. Y.) 533. 
 
 (9) Mumford u. McPherson, 1 Johns. (N. Y.)414; Wilson v. Marsh, 
 1 Johns. (N. Y.)503. 
 
 (1(») Erwin v. Burke, 3 Murph. 241. i 
 
 § 61. Measure of Damages. In an action for breach 
 of warranty, the measure of damages is the diiference 
 between the value of tlie article as represented and as 
 it actually proves to be, and the purchase price is 
 prima facie its value as warranted.^ And a vendee 
 who accepts and uses an article, purchased with a 
 warranty, does not thereby waive his right of action 
 for damages, but is entitled to recover for the breach 
 of warranty the difference between the values of the 
 goods in their damaged and undamaged condition.^ 
 If, however, the vendee elect to rescind the sale, on 
 the failure of the vendor to pay back the purchase- 
 money, after due notice of the non-acceptance of the 
 goods as not being of the quality warranted, he may 
 resell the goods, and recover of the vendor the loss 
 upon the resale and all proper expenses, but not for 
 the loss of a good bargain.^ If the action is for a 
 breach of warranty of title, express or implied, dam- 
 ages can only be recovered for the actual loss.* 
 
 No special form of pleading seems to be necessary, 
 and a general allegation of damages is sufficient to 
 admit proof of general damages, or such as neces- 
 sarily accrue from the breach of warranty.^ If the 
 action be for the breach of warranty in the sale of a 
 machine, all evidence of what it would cost to supply 
 the defect in the machine is admissible,*^ and the ex- 
 penses of the vendee in trying to make it work are
 
 Incidents — Warranties. 121 
 
 recovenible as damages.^ Inaction for damage by 
 reason of the purchase and sowing of plantain seed, 
 upon the representation tliat it was clover seed, the 
 measure of damages would be the dilfcrence in value 
 of the seed, and the injury to the land by the sow- 
 ing. "^ Prospective profits can never be considered,^ 
 but where there was a failure of crop owing to the 
 worthless character of seed sold with a warranty, ex- 
 penses in preparing the seed for planting and sowing 
 have been recovered in addition to the price of the 
 seed/" 
 
 In the absence of fraud, or bad faith, the proper 
 measure of damages, in a suit by the vendee of a 
 safe, against the makers, who warranted it " burglar 
 proof," is the difference between the value of the safe 
 as it Avas, and what it would have been worth if it had 
 been as represented ; and not the damages sustained 
 •in the loss of valuables taken out of the safe by 
 burglars, who effected an entrance into it. To con- 
 stitute a fraud, in such case, which will authorize re- 
 covery for the value of articles lost, there must be 
 something more than mere assertion that the safe 
 was burglar proof, there must have been an assertion 
 as a fact of that which the seller knew to be fjilse ; or 
 a reckless affirmation that the safe was burglar proof, 
 whether the assertion was true or false ; or a knowl- 
 edge on the part of the vendor that the safe was not 
 burglar proof, and a failure to communicate that 
 knowledge, when the vendor knew that the vendee 
 was contracting for the safe as burglar proof, and the 
 vendee, trusting to those representations, must have 
 been deceived by them. When, in such case, the 
 sale was made by an agent, and the suit is against 
 the principal, damages resulting from the loss of 
 valuables in the safe can not be recovered, unless it
 
 122 Conditional Sales. 
 
 be shown that he was a guilty participant in the 
 asrent's fraud.^^ 
 
 W^here material sold for manufacturing purposes, 
 and warranted to be of a certain quality, proves, upon 
 manufacture, to be of a quality inferior to that war- 
 ranted, the measure of damages is the difference be. 
 tween the value of the defective article, made from 
 the defective material furnished, and the value of the 
 article if made from the material as warranted. ^^ 
 
 (1) Gibbs & Sterritt Mfg. Co. v. Kaszezyke, 18 111. App. 6'23; Minne- 
 apolis Harvester Works v. Bomallie, 29 Minn. 373; Edwards v. CoUson, 
 5 Lans. (X. Y.) 324; Wells v. Setwood, 61 Barb. (N. Y.) 238; Beresford 
 V. McCune, 1 Cin. S. C. (Ohio) 50; Birdsall v. Carter, 11 Neb. 143. 
 
 (2) Reynolds v. Palmer, 21 Fed. Rep. 433. 
 
 (3) GiflFord v. Betts, 64 N. C. 62. 
 
 (4) O'Brien v. Jone.s, 91 N. Y. 193. 
 
 (5) Meacham v. Cooper, (Minn.) 30 N. W. Rep. 669. 
 
 (6) Wheeler & Wilson Mfg. Co. v. Thompson 33 Kan. 491. 
 
 (7) Whitehead <fe Atherton Mche. Co. v. Ryder, 139 Mass. 366. 
 
 (8) Fox V. Emerson, 27 Hun (N. Y.), 355. 
 
 (9) Jones v. George, 56 Tex. 149; s. c, 42 Am. Rep. 689. 
 
 (10) Butler v. Moore, 68 Ga. 780; s. c, 45 Am. Rep. 508. 
 
 (11) Herring V. Skaggs, 62 Ala. 180. 
 
 (12) Park v. Morris & Co., 41 How. (N. Y.) Pr. 18. 
 
 Article 14. — Special Cases. 
 § 62. Warranties of Agricultural Implements. 
 
 § 62. Warranties of Agricultural Implements. No 
 class of warranties has been so fruitful of litigation 
 as that of agricultural implements ; so varied have 
 been the rulings of the courts, that we can not hope 
 to so group them as to arrive at a harmonious con- 
 clusion, and thus present a resume of the fixed law 
 on this subject. 
 
 The warranty may be oral or written, but, in al- 
 most every case, the warranty is printed on the back 
 of, or otherwise made a part of, the contract of sale. 
 If printed on the back pf the contract of sale, or or-
 
 IneichmfK — Worraufiest. 123 
 
 der, it becomes .-i part of tlie contnict of sale, even 
 though the blanks are not tilled out, and it is not 
 siiiiied, except by the printed name of the vend(jr. 
 Even the deliverv bv an agent, authorized to make 
 sales, of a printed warranty of the quality of a har- 
 vester, with the name of the warrantor printed 
 thereon as a signature, would be binding as a war- 
 ranty, though, upon the margin thereof, there is a con- 
 dition printed that it shall be void unless countersigned 
 by an agent, and no agent has countersigned it.^ 
 But where the contract of warranty, executed in 
 <luplicate, contains a provision that no agent has au- 
 thority to change the warranty, it is notice to the 
 vendee of a limitation upon the authority of the 
 ayents of the vendor, and that thev can not waive or 
 dispense with an ex})ress condition of the contract.^ 
 Where the written warranty has been delivered and 
 accepted, no evidence can- be properly introduced of 
 an oral warranty, either in substitution of, or in ad- 
 dition to, the written warranty.* But where the ven- 
 dee, being unable to read, is induced by the fraudu- 
 lent representations of the vendor's agent to sign a 
 written order containing a warranty diifering from 
 an oral one previously made, evidence of the oral 
 warranty and the agent's fraudulent representations 
 would be competent as tending to show that the 
 written order never became operative as a contract.^ 
 The representations, by the vendor of a threshing 
 machine, that it is a very good machine, and will 
 do good work, do not, however, amount to a war- 
 ranty.'' 
 
 In an action upon a warranty of a machine, the 
 vendor must show in what particular the machine 
 failed to work." And if the sale be with a warranty 
 that if the harvester were not as good as another
 
 1-4 Conditional Sales. 
 
 specified kind, the vendee could "bring it back and 
 get the money back," ho can not rescind the sale 
 without proving that it was not so good, and that 
 he had returned it, not that he had tendered it, sub- 
 ject to order.^ Evidence as to how other machines 
 of similar pattern worked, is inadmissible to prove 
 that the one in question worked as it was warranted.^ 
 But where the question at issue is, whether or not a 
 machine was defective in its operations by reason 
 of a fault in the plan or design of its construction, 
 evidence is admitted to show that other machines, 
 exactly like that in question, worked well, under the 
 same conditions. ^° 
 
 Where the vendor of a harvester warranted it to 
 do as good work as one owned by the vendee's 
 brother, and there was nothing in the contract of 
 sale requiring the vendee to notify the vendor of the 
 failure of the machine to do good work, or to return 
 it in that event, the vendee was not bound to return 
 it ; and, having notified the vendor that it did not 
 work well, his continuing to use it while the vendor 
 was trying to repair it, did not amount to an accept- 
 ance ; and, the harvester failing to do good work as 
 warranted, no liability attached. ^^ If, on a sale of 
 a machine, the vendor not only warranted it, but ex- 
 pressly agreed that if it failed to work as warranted, 
 he would furnish a new one or return the notes given 
 for the purchase-money, the vendee may elect to re- 
 scind the sale, and have his notes returned,^^ but he 
 must notify the vendor, within a reasonable time, of 
 his election to rescind.^"^ If the vendee is to have 
 one day in which to give the machine a fair trial, he 
 will not escape liability on the ground that, on the 
 day of trial, it did not fulfill the warranty, if the evi- 
 dence shows that he failed to operate the machine
 
 IncidcnfH — Warrnniies. 125 
 
 with diligence and care." Or, if the cutting of five 
 acres of grain with the machine, by the terms of the 
 contract, was to be conclusive evidence that the war. 
 ranty was fulfilled, it is not material when it was 
 done. It is sufiicient to bind the vendee, even 
 though the five acres were cut only after two or more 
 trials, and the vendor had been notified of the fail- 
 ure of the machine to comply with the terms of the 
 warranty.^^ 
 
 Where a machine is sold on a conditional war- 
 ranty, which expressly provides that the vendee 
 shall have a certain time in which to test the ma- 
 chine, and, if it fails to fulfill the warranty, the ven- 
 dee shall give the vendor written notice, stating 
 wherein it fails; the vendee, to avail himself of the 
 benefits of the warranty, must render substantial 
 compliance with the agreement; and if no written or 
 actual notice was given, and there was no waiver of 
 the condition, the warranty can not be enforced 
 airainst the vendor.^" A warranty of a self-binding 
 harvester covers both the binding and cutting ap- 
 paratus,^^ and if the sale be of a combined reaper and 
 mower, the vendee is not bound to give notice of de- 
 fects until he has tried it both as a reaper and 
 mower.^^ Where the warranty provides that the 
 keeping of the machine during harvest, whether kept 
 in use or not, without giving notice of defect, should 
 be deemed to be conclusive evidence that the ma- 
 chine fills the warranty the term "harvest" means 
 the usual harvest season, and docs not include the 
 time of cutting a second crop.^*^ But, it api>earing 
 that the machine failed to work on starting the first 
 season, that the vendee at once gave notice, that the 
 vendor failed to put it in order, that the vendee gave 
 notice of the continuing failure, and that the vendor
 
 126 Conditional Sales. 
 
 tried again to repair the machine, but failed, it was 
 held that keeping the machine beyond the first season 
 was not conclusive evidence that it filled the war- 
 ranty.^*^ If, however, the testing time be extended, by 
 parol, the vendee must give notice at the end of the 
 extended time.-^ 
 
 The condition, in a warranty, that, on discovery 
 of any defect, written notice should be given the 
 vendor, can not be waived by a'n agreement by a sub- 
 agent of the vendor to give the notice." Nor is oral 
 notice to an agent of the vendor, who happened to be 
 in the vicinity, sufficient.'-" But a voluntary exami- 
 nation by the vendor's agent, and his attempt to re- 
 pair the defect,-^ and the presence of vendor's agent 
 when the machine broke down, have each been 
 held to be actual notice of defect, and therefore suffi- 
 cient.^^ 
 
 If, in addition to requiring the vendee to give no- 
 tice of the defect, the warranty requires him to 
 render friendly assistance in repairing or replacing 
 the defective part,'-*"' or requires him to return the 
 machine,-' there must have been a substantial com- 
 pliance therewith. But where the vendor and his 
 agent reside and have their places of business in dif- 
 ferent places, the warranty being silent as to the 
 manner and place of delivery, in case the machine 
 should be defective, the court will not hold the ven- 
 dee under obligations to deliver the machine to the 
 vendor or his agent, at the place of residence of 
 either.^ If the vendee use the machine nearly a 
 whole season,"^ or for nearly a year,'^^ where the war- 
 ranty was to be in force for that time, before offering 
 to return it, he is not entitled to rescind the contract 
 of sale on the alleged ground that it did not work as 
 warranted. Or, if he retain the machine, without
 
 IncidenfH — Warranties. 127 
 
 complaint, for any considerable length of time, there 
 l)eint»: no limit (^f tiino provided in the contract, he 
 would be estoj)ped from rescinding the contract, or 
 claiming damages, and would be liable for the 
 price." 
 
 The vendee of a machine, who has given his note 
 for the price thereof, may recover against the vendor 
 for breach of warranty, although the note is still un- 
 paid.'^"^ And the execution of notes,'^ or the giving of 
 collateral security to secure their payment,'*^ or part 
 payment of the purchase- money,"^' subsequent to de- 
 livery and trial of the machine, will not amount to a 
 waiver of defects therein, where the vendor at the 
 time promised and agreed to repair the machine. 
 But the execution of renewal notes for a threshing 
 machine, has been held to be presumptive evidence 
 of waiver of a claim for damages for breach of war- 
 ranty.'^' If there is an actually existing breach of the 
 warranty, the renewal of purchase-money notes would 
 not amount to a waiver."^ 
 
 If the vendee, at the time of the purchase, knew 
 of the defects,'^^ or examined the machine,^" there be- 
 ing no fraud on the part of the vendor, he can not 
 afterward, on account of the breach of the warranty, 
 rescind the contract and return the machine, in the 
 absence of any agreement to that effect. 
 
 In an action for breach of warranty, the measure 
 of damages is the difference between the value or the 
 machine as represented and as it actually proves to 
 be, and the purchase price is prima facie its value as 
 warranted.'^ The fact that the vendee gave his note 
 in settlement for a machine, will not affect the extent 
 of the damages, the amount of damages not being 
 limited by the price he paid, or agreed to pay, for the 
 machine.*" The expenses of reasonable changes to
 
 128 Conditional Sales. 
 
 make the machine work may be shown,^^ but the 
 vendee can not claim damages for time and expenses 
 incurred in experimenting with the machine after it 
 proved defective/^ Iiij^iry to vendee's grain from 
 delay in harvesting, while he was .experimenting with 
 the machine, and trying to make it work, are not 
 elements of damages.^^ If the machine is warranted 
 to do as good work as other machines, evidence is 
 properly received showing a comparison between the 
 work of other machines and the one in question. 
 Evidence of the working of the machine in question, 
 for several harvests, is also admissible to show its 
 intrinsic defects, and that, after a thorough trial, it 
 was not as warranted.^'' In the case of D. M. Os- 
 borne & Co. V. Ehrhard,"^' a negotiable promissory 
 note, given in settlement for a machine, was nego- 
 tiated before maturity, and the machine, proving de- 
 fective was returned to the vendor. The holder of 
 the note brought suit thereon, and the vendee, be- 
 lieving that the transfer was not bona fide, employed 
 counsel to defend, but was not successful. In his 
 subsequent action against the vendor, it was held 
 that the defense against the note was judicious and 
 apparently necessary, and that expenses of counsel 
 were a legitimate consequence of the wrongful ac- 
 tion of the vendor, the machine having been sold 
 upon the condition that if it failed to do good work, 
 and the defects were not remedied by the vendor, the 
 vendee's note would be returned him upon a return 
 of the machine. 
 
 (1) Griet V. Cole, (Mich.) 27 N. W. Rep. 579. 
 
 (2) First National Bank v. Erickson, (Neb.) 31 N. W. Rep. 387. 
 
 (3) Furneaux v. Esterly, (Kan.) 13 P. Rep. 824. 
 
 (4) Nicholas V. Wayman, (Iowa) 32 N. W. Rep. 258; Sandwich Mfg. 
 Co. V. Tindle, (Iowa), 33 N. W. Rpp. 79. 
 
 (5) Esterly v. Eppelsheimer, (Iowa) 34 N. W. Rep. 8-16.
 
 Incidents — Warranties, 129 
 
 (6) Worth V. McConnell, 42 Mich. 473. 
 
 (7) Canton Bank v. McCann, 4 111. App. 250. 
 
 (8) Edgorly v. Gardner, 9 Neb. 1 30. 
 
 (9) Osborne & Co. v. Bell, (Mich.) 28 N. W. Rep. 841; Murray v. 
 Brooks, 41 Iowa, 451. 
 
 (10) I'aulson v. O.sborne & Co., (Minn.) 27 \. W. Rep. 203. 
 
 (11) McCormick Harvesting Mche. Co. v. Cochran, (Mich.) 31 N. W, 
 Rep. 561. 
 
 (12) Turnbull v. Seymour, 31 Minn. 196. 
 
 (13) McCormick Harvesting Machinery Co. v. Chesrown, 33 Minn. 32. 
 
 (14) Fuller V. Schroider, (Neb.) 31 N. W. Rep. 109. 
 
 (15) Bayliss v. Hennessey, 54 Iowa, 11. 
 
 (16) Furneaux v. Esterly, (Kan.) 13 P. Rep. 824; McCormick Har- 
 vesting Machinery Co. v. Hays, 89 Ind. 582; Nicholas v. Wayman, 
 (Iowa) 32 N. W. Rep. 258; Aultman, Miller & Co. v. Stichler, (Neb.) 31 
 N. W. Rep. 241 ; Osborn v. Rawson, 47 Mich. 206. 
 
 (17) Tunnell v. Osborne, 31 Minn. 343. 
 
 (18) McCormick v. Bassal, 50 Iowa, 523. 
 
 (19) Wendall v. Osborne, 63 Iowa, 99. 
 
 (20) Osborne v. Marks, 33 Minn. 56. 
 
 (21) Lewis V. Hubbard, 1 Lea. (Tenn.) 436. 
 
 (22) Nichols v. Larkin, 79 Mo. 264. 
 
 (23) Nicholas w. Knowles, 31 Minn. 489. 
 
 (24) Flatt V. Osborne, 33 Minn. 9S. 
 
 (25) McCormick Harvesting Machine Co. v. Embree, 94 Ind. 85; Ac- 
 ker v. Kimme, (Kan.) 15 P. Rep. 248; Sandwich Mfg. Co. v. Trindle 
 (Iowa) 33 N. \V. Rep. 79. 
 
 (26) Sandwich Mfg. Co. v. Feary, (Neb.) 33 N. W. Rep. 485. 
 
 (27) King V. Towsley, 64 Iowa, 75. 
 
 (28) Sandwich Mfg. Co. v. Trindle, (Iowa) 33 N. W. Rep. 79. 
 
 (29) Osborn v. Rawson, 47 Mich. 206. 
 
 (30) Morgan v. Thelford, 3 111. App. 323. 
 
 (31) Upton Mfg. Co. V. lluiske, (Iowa) 29 X. W. Rep. 621. 
 
 (32) Cash V. Giles, 3 C. & P. 407; Abbott v. Johnson, 2 N. W. Rep. 
 332; Nichola v. Hail, 4 Neb. 210; Miller v. Nichols, 5 Neb. 478; Pitts 
 Sons Mfg. Co. V. Sj)itsnogle, 6 N. W. Rep. 71 ; Bayliss v. Hennessey, 6 N. 
 W. Rep. 46; J. 1. Case Threshing Machine Co. v. Vennon, 23 N. W. 
 Rep. 563. 
 
 (33) Thoreson v. Minneapolis Harvester Works, 29 Minn. 341. 
 
 (34) D. M. Osborne & Co. v. Carpenter, (Minn.) 34 N. W. Rep. 163. 
 
 (35) Aultman, Taylor & Co. v. Hefner, (Tex.) 2 S. W. Rep. 861. 
 
 (36) Courtney v. Boswell, 65 Mo. 1 96. 
 
 (37) Aultman v. Wheeler, 49 Iowa, 647. 
 
 (38) Osborne & Co. v. Marks, 33 Minn. 56. 
 
 (39) McCormick v. Kelley, 28 Minn. 135. 
 
 9
 
 130 Conditional Sales. 
 
 (40) McCormick v. Sarson, 45 N. Y. 265; Scranton v. Mechanics' 
 Trading Co., 37 Cal. 130. 
 
 (41) Minneapolis Harvester Works v. Bonallie, 29 Minn. 373. See 
 also § 61, Measure of Damages. 
 
 (42) Frohreich v. Gammon, 28 Minn. 471. 
 
 (43) Melby v. Osborne, 33 Minn. 492. 
 
 (44) Aultman v. Stout, 15 Neb. 586. 
 
 (45) Wilson V. Rudy, 32 Minn. 256. 
 
 (46) D. M. Osborne & Co. v. Carpenter, (Minn.) 34 N. W. Rep. 163. 
 
 (47) D. M. Osborne & Co. v. Ehrhard, (Kan.) 15 P. Rep. 590.
 
 INDEX. 
 
 THE FIGURES REFER TO THE PAGES.] 
 
 ACCEPTANCE OF GOODS, dxder thk Statutes of Fraud— 
 acceptance is essential, 14 
 vendee must both accept and receive, 14 
 there may be an actual receipt without any acceptance, 14 
 so there may be an acceptance without any receipt, 14 
 so long as vendee can, without self-contradiction, declare that the 
 
 goods are not to be taken in fulfillment of the contract, he has 
 
 not acce{>ted them, 14 
 question not whether he ought to accept, but whether he has ac- 
 cepted, 15 
 receipt of part of the goods, 15 
 or acceptance of actual control is sufficient, 15 
 delivery must be witli intent of vesting right of possession, 15 
 acceptance must also be with intent to take the possession as 
 
 owner, 15 
 no act of the vendor alone will satisfy the statute, 15 
 there must be some act of the vendee, 15 
 mere delivery is not sufficient, 15 
 there must be acceptance and receipt, 15 
 
 they need not be simultaneous with the verbal contract of sale, 15 
 sufficient if they take place within a reasonable time afterward, 15 
 acceptance may be by sample, if that taken diminishes the bulk, 15 
 not, if otherwise, 15 
 Constructive acceptance — 
 acceptance reciuired by statute may be constructive, 16 
 question whether facts proven amount to a constructive acceptance 
 
 is one of fact, not of law, 16 
 if facts are not in dispute, it belongs to the court to determine 
 
 their legal effect, 16 
 acceptance may be inferred when vendee deals with the goods as 
 
 his own, 16 
 as taking possession of bill of lading, 17 
 marking or permitting others to mark goods with name of 
 
 vendee, 17 
 acceptance of an order for the goods, 17 
 acceptance of part of the goods, 17 
 although a portion is still to be manufactured, 17 
 but there must be acts of such a character as to place the goods 
 
 within the power of the vendee as absolute owner, 17 
 discharging all lien for the price, 17 (131)
 
 132 Index. 
 
 Acceptance of goods — Continued. 
 
 delivery to common carrier would constitute a receipt, but not an 
 
 acceptance, 17 
 receipt and unpacking do not amount to acceptance, 17 
 unless goods are kept an unreasonable time, 17 
 vendee must exercise his option to receive, 17 
 or have done something to deprive him of his option, 17 
 
 ACCEPTANCE— 
 
 not an implied condition, 46 
 
 becomes a condition by statute or contract only, 46 
 
 conditional sales partake of nature of executory contracts, 46 
 
 may, however, become complete, 46 
 
 by performance of conditions necessary to vest title, 46 
 
 unless it be shovpn such was not intention of parties, 46 
 
 ACTS OF GOD— 
 
 preventing performance, held to relieve, 29 
 
 ADMINISTRATORS OR EXECUTORS— 
 
 are legal representatives who can give a valid title, 4 
 no implied warranty of title in sales by, 89 
 
 AGENTS— 
 Payment — . 
 can be made to vendor or his agent, 56 
 or to one who appears to be clothed with authority, 56 
 each case must depend on the facts surrounding the payment, 56 
 payment to vendor's attorney held sufficient, 56 
 has authority to receive before or after judgment, 56 
 authority limited to receipt of money only, 56 
 vendor may be estopped from denial of agent's apparent author- 
 ity, 56 
 thus payment to clerk in vendor's place of business is sufficient, 57 
 custom may regulate, 57 
 or former dealings, 57 
 Warranties by — 
 no implied warranty of title in sales by known agent, 89 
 agent authorized to sell may warrant, 106 
 notwithstanding private instruction unknown to vendee, 107 
 delivery of a printed warranty is sufficient, 123 
 notice of defect can not be waived by agreement of sub-agent to 
 
 give notice, 126 
 oral notice to agent who happened to be in vicinity not sufiBcient, 
 
 126 
 voluntary examination by agent and attempt to repair held to be 
 
 actual notice, 126 
 presence of agent when machine broke down held to be actual 
 notice, 126
 
 Index. 133 
 
 Agexts — Continued. 
 Memorandu m — 
 
 may be signed by agent, 9, 19, 23 
 
 some states, must be authorized in writing, 9 
 
 brokers and auctioneers are agents of both parties, 23 
 AGRICULTURAL IMPLEMENTS, WARRANTIES OF— 
 
 may be oial or written, 122 
 
 must be made a part of contract, 122 
 
 if printed on back of contract becomes a part of contract, though 
 blanks are not filled out, 123 
 
 and not signed except by printed name of vendor, 123 
 
 delivery by agent, authorized to make sales, of a printed warranty 
 not conntersigned is sufficient, 123 
 
 provision in contract executed in duplicate, limiting authority of 
 agent to change warranty, is notice to vendee, 123 
 
 written warranty liaving been delivered and accepted, no evidence 
 of oral warranty can be introduced, 123 
 
 either in substitution of or in addition to the written warranty, 
 123 
 
 evidence of fraud competent to show that written order never be- 
 came operative, 123 
 
 representations that a threshing-machine would do good work do 
 not amount to a warranty, 12] 
 
 in action upon warranty vendee must show in what i^articular ma- 
 chine failed, 123 
 
 can not rescind without proving that machine was not as war- 
 ranted, 123 
 
 evidence of how other similar machines worked not admissible, 
 124 
 
 unless fault in plan or design of construction be at issue, 124 
 
 notice of failure not necessary unless provided for in contract, 124 
 
 notice is required if contract provides for recission on failure to 
 comply with warranty, 124 
 
 if vendee is to have one day in which to give machine trial, evi- 
 dence must show diligence and care in operating, 124 
 
 if cutting tive acres was to be conclusive evidence of fulfillment 
 of warranty, it is not material when done, 125 
 
 if contract provide for notice of failure, notice must be given, 125 
 
 warranty of selfbinder covers binding and cutting apparatus, 125 
 
 of combined machine covers reaping and mowing apparatus, 125 
 
 vendee not bound to give notice of defect until trial of both, 125 
 
 keeping machine during harvest without notice of defect may be 
 deemed conclusive evidence of fulfillment, if so provided in 
 contract, 125 
 
 harvest means usual harvest season, 125
 
 134 Index. 
 
 Agriccltttral implements, Warrant! ks op — Continued. 
 
 keeping machine after i.otice of defect is not conclusive evidence 
 of fulfillment, 126 
 
 if testing time be extended, notice of defect must be given at end 
 of extended time, 126 
 
 notice can not be waived by agreement of sub-agent to give the 
 notice, 126 
 
 oral notice to agent who happened to be in vicinity not sufficient, 
 126 
 
 voluntary examination by agent, and attempt to repair, he I to be 
 actual notice, 126 
 
 presence of agent when machine broke down held to be actual 
 notice, 126 
 
 if friendly assistance in repairing is by contract required of ven- 
 dee he must comply, 126 
 
 if he is to return the defective machine, there must have been a 
 substantial compliance, 126 
 
 keeping the machine beyond time limited will prevent rescission, 
 126 
 
 there being no limit, retaining machine any considerable length 
 of time will estop rescission, 127 
 
 giving of note for price of machine does not prevent action for 
 breach of warranty, 127 
 
 giving of notes, or collateral security, or part payment, will not 
 amount to a waiver of defects, where vendor at time promises 
 to repair, 127 
 
 but execution of renewal notes have been held presumptive evi- 
 dence of waiver, 127 
 
 if vendee examined machine, and knew of defects at time of pur- 
 chase, he can not afterward rescind, 127 
 
 measure of damage is difference between value of machine as 
 represented and as it actually proves to be, 127 
 
 purchase price prima facie its value as warranted, 127 
 
 though amount of damages not limited by price, 127 
 
 expenses of reasonable changes to make machine work may be 
 shown, 127 
 
 but not time and expenses incurred in experimenting after ma- 
 chine proves defective, 128 
 
 injury to grain by delay in harvesting not element of damages, 
 128 
 
 evidence of working of machine for several harvests admissible to 
 show its intrinsic defects, 128 
 
 expenses of counsel may be recovered as damages, where they are 
 a legitimate consequence of the vendor's wrongful act, 128 
 ASSENT OF COMPETENT PARTIES ESSENTIAL— 
 
 must be mutual and voluntary, 5
 
 Index. 135 
 
 Assent of compktent parties essential — Continued. 
 need not be expressed, 5 
 may be implied, 5 
 
 may be by same means as proposition, 5 
 must be before expiration of limit, 5 
 
 AVOIDANCE (JF CONDITIONS— 
 
 conduct of either party rendering him incapable of carrying out 
 
 the contract, would amount to a breach, 29 
 and other party need not tender performance, 29 
 acts of God preventing performance held to relieve, 29 
 not, if party engages unconditionally by exj)ress contract, 29 
 contract to sell and deliver an animate thing will be at an end if 
 
 subject of contract die, 29 
 if within power of vendor to perform, nothing relieves except acts 
 
 of vendee, 29 
 if goods perish without his fault, he is excused from delivery on 
 
 the day named, 29 
 
 BAILEES— 
 
 are legal representatives who can give a valid title, 4 
 
 BANK-NOTES— 
 
 contracts for sale of, are within the statutes of frauds, 12 
 
 BREACH OF WARRANTY AND RESCISSION— 
 
 latent defect which develops into a serious injury, is a breach of 
 warranty, 115 
 
 as in sale of a soda fountain defective in construction, 115 
 
 if article is to be 5et up and operated in a certain way, it must so 
 be operated, 1 1 f. 
 
 one seeking rescission because of fraud must offer to rescind on 
 discovery, 116 
 
 must offer to retun the consideration or thing received, 116 
 
 unless it be worthhss, 116 
 
 and notify vendor of election to rescind, 116 
 
 if vendee be resident of foreign state, must give notice through 
 post-office, 116 
 
 right to rescind ma»^ be deemed waived, 116 
 
 keeping property ar unreasonable time without objection amounts 
 to a waiver, 1 16 
 When action lies for brack — 
 
 money may be reco\ered, paid for goods which prove to be differ- 
 ent from wananty, if vendee offer to return, 117 
 
 right of action arise: irrespective of fraud of vendor, 117 
 
 if property is of any value, vendee must return, or offer to return 
 it, 117 
 
 if vendee sues for brjach of warranty, he thereby affirms the con- 
 tract, 117
 
 136 Index. 
 
 Breach of warraxtt and rescission — Continued, 
 
 acceptance of goods under an express warranty does not preclude 
 action for breach, 117 
 
 thouirh a portion of goods may have been used, 117 
 
 notice on bill requiring all claims for damages to be made immedi- 
 ately will not avail, 107 
 
 payment of price after discovery of defect will not prevent action 
 for damages, 117, ILS 
 
 to maintain action for breach of warranty of title, vendee need 
 not have waited to be dispossessed, 118 
 
 judgment against vendee for conversion of property need not have 
 been paid before action on covenant of warranty, 118 
 When action does not lie for breach — 
 
 reasonable compliance with conditions precedent, is essential, be- 
 fore warranty can be enforced, 118 
 
 chancery has no jurisdiction to decree relief on a warranty, 119 
 
 where vendee fails to notify vendor of defects, or sells the goods, 
 he is deprived of his remedy against vendor, 119 
 
 if vendee puts machinery in operation, knowing it to be de- 
 fective, he is not entitled to damages, 119 
 
 where vendee directs how machine shall be constructed, vendor 
 is not liable for defective operation, 119 
 
 nor is he liable for want of parts, 119 
 
 if warranty be for a year, no action can be maintained without 
 notice of breakage and failure to remake, 119 
 
 no action maintainable upon parol warranty where there is a 
 written one, 119 
 
 nor upon a warranty made after the contract of sale had been en- 
 tered into, 119 
 
 without a new consideration to support it, 119 
 Measure of damages — 
 
 is difference between value as warranted ard as it actually proves 
 to be, 120 
 
 purchase price is prima facie value as warranted, 120 
 
 vendee may re-sell and recover loss and all proper expenses, if 
 vendor refuse to rescind, 120 
 
 in action for breach of warranty of title, (damages can only be re- 
 covered for actual loss, 120 
 
 no special form of pleading necessary, 12* 
 
 in action for breacli of warranty in sale jf machine, evidence of 
 cost to supply defect is admissible. 120 
 
 expenses in trying to make it work are recoverable, 120 
 
 in case of sale of plantain seed for «lover seed, measure of 
 damages would be diflFerence in valm of seed and injury to 
 land, 121 
 
 prospective profits can never be considerd, 121
 
 Index. 137 
 
 Breach of warranty and rescission — Continued. 
 
 expenses in preparing seed for sowing have been recovered, 121 
 
 rule in sale of burglar-proof safes, 121 
 
 in sale of materiiil for niMiuifacturing purposes, difforenco between 
 
 value of defective article and value if made from the material 
 
 as warranted, is measure of damages, 122 
 
 CARRIER, DELIVERY TO— 
 
 is sufficient, carrier being regarded as agent of vendee, 30 
 
 goods so delivered must be in proper condition, 36 
 
 so that in case of damage action may be maintained again-t the 
 
 carrier, 36 
 vendor is bound to insure, if so instructed, 36 
 or if such has been the usage between the parties, 36 
 delivery to designated carrier is delivery to vendee, 36 
 if shipment be by a route other than the one designated, delivery 
 
 is not complete, 36 
 
 CHECK OR DRAFT— 
 
 payment by is a mode of making cash payment, and is con- 
 ditional, 30 
 CHOSES IN ACTION— 
 
 contracts for sale of not within the statute of frauds, 1 1 
 CONDITIONS PRECEDENT TO BE PERFORMED BY VENDOR— 
 Intent governs — 
 
 there may be conditions to be performed before transfer of 
 
 title, 27 
 must be complied with or waived, 27 
 
 may be a condition to be performed either precedent or subse- 
 quent to delivery, 27 
 whether a delivery be absolute or conditional depends on the in- 
 tent of the parties, 27 
 conditions need not be declared in express terms at time of de- 
 livery, 27 
 . sufficient if intent can be inferred, 27 
 
 conditions may be expressed or implied, 27 
 Conditions must be performed — 
 conditions precedent must be fully and strictly performed, 27 
 may be dependent for fulfillment either on the vendor or ven- 
 dee, 27 
 may refer to the articles the subject of contract, 28 
 or the consideration to be paid therefor. 28 
 Rules governing — 
 
 as formulated by Lord Blackburn, 28 
 
 if vendor is to do any thing to put goods in a deliverable state, it 
 
 is a condition precedent, 2S 
 vendee may waive conditions, 28 
 thereupon liability becomes fixed. 28
 
 138 Index. 
 
 CONPITIONS PRECEDKNT TO BE PERFORMKD BY VKNDOR — Continued. 
 
 Avoidance of conditions — 
 
 conduct of either party rendering him incui)able of carrying out 
 
 the contract, it would be a breach, 29 
 and other party need not tender performance, 29 
 acts of God preventing performance held to relieve, 29 
 not if party engages unconditionally by express contract, 29 
 contract to sell and deliver an animate thing, will be at an end if 
 
 subject of contract die, 29 
 if within power of vendor to perform, nothing relieves except acts 
 
 of vendee, 29 
 if goods perish without his fault, he is excused irom delivery on 
 the day named 29 
 Deliverable state, cohditions necessary/ to put in — 
 Separation — 
 
 sales by number, weight or measure, not complete until quantity 
 
 is ascertained, 30 
 if mixed with others, not until separated, 30 
 that portion separated becomes property of vendee, 30 
 no difference whether contract i; an entirety or not, 30 
 if in separation property deteriorates, through fault of vendor, 
 
 vendee not bound to receive it, 30 
 in a contract to manufacture goods and sell them to another, no 
 
 property in material passes, 30 
 although a portion of the price be paid, 30 
 they must have been finished and set apart for the vendee, 30 
 with his assent and acceptance, 30 
 property having been separated, title will pass, 30 
 that being intent of parties, 30 
 
 though vendor is required to do something in addition 
 thereto, 30 
 Measurement — 
 
 where price is determinable by measurement, it is presumptively 
 
 a condition precedent, 31 
 employment of a person to do the measuring not suflBcient, 31 
 in port of New York, purchase of grain governed by custom, 31 
 employment of measurer, is a substantial compliance there- 
 with, ;-;i 
 in sales ot cotton, not complete until weight and value have been 
 
 ascertained, 31 
 must be with the concurrence of the vendee, 31 
 there being no agreement therefor, weighing not necessary to 
 
 constitute a delivery, 31 
 sales of lumber to be taken and measured from a large bulk, not 
 complete, even between parties until selected and meas- 
 ured, 32
 
 lixiex. 139 
 
 COKDITIOXS PKECEDENT TO BE PERFOKMED BY VENDOR — Continued. 
 
 when sold subject to measuii mciit by an inspector, vendee may 
 insist on actual measurement, ''>2 
 
 a mere estimate not sufficient, 32 
 
 where by agreement the parties are to do the measuring, but 
 disagree, title does not pass, 32 
 
 though sale be of an entire lot, 32 
 
 when all is sold, no such process is needed to pass title, 32 
 
 not necessary in sale of barrel staves, 32 
 Delivery — 
 
 Question of intent — 
 
 whether delivery be absolute or conditional, a question of in- 
 tent 33 
 
 intent a question for the jury, 33 
 
 evidence may justify a determination by the court, 33 
 
 law implies place of delivery is at the place where the property 
 is, at time of sale, 33 
 
 different rule prevails where time and place of delivery is pro- 
 vided by contract 34 
 
 time of delivery not being fixed by contract, must be within a 
 reasonable time 34 
 Symbolical or construrtiih: delivery — 
 
 rule formulated by Lord EUenborough, 34 
 
 where goods are ponderous, delivery may be, 34 
 
 each case dependent upon nature and situation of property. 35 
 
 delivery of deed of transfer of ship at sea passes title, 35 
 
 cargo may be transferred by bill of lading or invoice, 35 
 
 in each case must be with intent to transfer the title, 35 
 Delivery to carrier — 
 
 is sufficient, carrier being regarded as agent of vendee, 36 
 
 goods so delivered must be in proper condition, 36 
 
 so that in case of damage, action may be maintained against the 
 
 carrier, 36 
 vendor is bound to insure if so instructed, 36 
 or such has been the usage between the parties, 36 
 delivery to designated carrier, is delivery to vendee, 36 
 if shipment by a route other than the one designated, delivery is 
 
 not complete. 36 
 Delivery of more or less than contracted for — 
 vendor does not comply with contract by, 37 
 or by delivery of goods sold, mixed with other goods, 37 
 if so delivered, may be held subject to order, 37 
 if delivered in an essentially altered condition, contract will not 
 
 have been complied with, 37 
 where goods are ordered from correspondent or purchasing agent. 
 
 rule is less rigid, 37
 
 140 Index. 
 
 Condition's precedent to be performed bt a'endor — Continued. 
 
 vendee may refuse to receive if goods tendered, either exceed or 
 
 are less in quantity than agreed upon, 37 
 is bound to pay for any part accepted, 37 
 
 moderate and reasonable latitude in performance allowed if words 
 of qualification are used, such as "about," or "more or less," 38 
 Time of delivery — 
 where contract expresses the time of delivery, it is a question of 
 
 construction for the court, 38 
 month is constrvied as a calendar month, 38 
 unless contrary meaning clearly indicated, 38 
 certain number of days, construed as consecutive, 39 
 Sundays included, 39 
 
 day of making contract should be excluded in computing time, 39 
 between two days includes the last day, 39 
 readiness at time and place designated held sufficient, 39 
 place not being designated, tender a convenient time before mid- 
 night sufficient, 39 
 place being designated, tender must be by daylight, and a conveni- 
 ent time before sunset, 39 
 contract to deliver " as fast as produced," construed, 39 
 "prompt shipment," construed, 39 
 
 contract to ship within " certain specified months," construed, 40 
 delivery and acceptance after the agreed time does not of itself 
 
 work a reduction of price, 40 
 if notes are given for goods to be delivered at a future day. a fail- 
 ure to so deliver will constitute a failure of consideration, 40 
 Place of delivery — 
 
 delivery must be at place designated by contract, 41 
 
 unless it becomes impossible through act of vendee, 41 
 
 delivery at time and place sufficient, 41 
 
 acceptance by vendee need not be shown, 41 
 
 vendor may re-sell, after due delay, if vendee unreasonably neglect 
 
 or refuse to receive the goods, 41 
 and recover deficit in price from vendee, 41 
 common in such case to sell at auction, 41 
 but it is not necessary, 41 
 Estoppel, delivery by — 
 
 rule formulated by Lord Blackburn, 42 
 
 vendor's conduct may estop him from denying the transfer, 42 
 
 as allowing another to contract on the faith or understanding of 
 
 some fact which he can contradict, 42 
 allowing vendee to hold himself out as owner, 42 
 special cases cited, 42 
 Delivery of described article essential — 
 delivery of described article, a condition precedent, 43
 
 Index. 141 
 
 CJOXDITIONS PRECKDENT TO BE PERFORMKD HT VENDOR Continued. 
 
 if not i)orfornned, vomlei^ may i-ijfot the article, 43 
 
 may recover the price, if paid lor, 43 
 
 rule formulated by Lord AV)inj.'er, 4;j 
 
 veords of description constitute a warranty, 44 
 
 doctrine questioned, 44 
 
 vendor undertakes, that the thing delivered corresponds to the 
 
 description, 44 
 an article of the species, kind and quality thus expressed in the 
 
 contract of sale, 44 
 sufficient if goods are in specie, that for which sold, 44 
 and merchantable under denomination aflSxed to them, 44 
 goods not answering description, vendee must oflFer to return, 44 
 offer to return must be unconditional, 44 
 
 delay in offering to return, or any act equivalent to acceptance, 
 employment, or disposition of the goods, after knowledge of de- 
 ficiency, construed, 44 
 :ONDITI(^NS PRECEDENT TO BE PERFORMED BY VENDEE— 
 Implied condUio)is — 
 Accept anre — 
 
 not an implied condition, 46 
 
 becomes a condition by statute or contract only, 46 
 conditional sales partake of nature of executory contracts, 46 
 may, however, become complete, 46 
 
 by performance of conditions necessary to vest title, 46 
 unless it be shown such was not intention of parties, 46 
 Payment a condition precedent — 
 unless otherwise expressed, payment is an implied condition, 47 
 delivery and payment presumed to be simultaneous and con- 
 current, 47 
 delivery, with expectation of immediate payment, is not abso- 
 lute, 47 
 title does not vest until price is paid, 47 
 
 at common law, vendee can not delay payment until demand, 47 
 must pay as soon as due, 47 
 
 vfhere price is made payable only after demand, a reasonable 
 time must be allowed to make payment, 47 
 
 payment by check being refused, it is not unreasonable delay 
 for vendee to offer payment in money on morning of next 
 banking day, 47 
 payment made by mode requested by vendor discharges vendee, 
 
 47 
 if made by mail, it is at vendee's risk, 47 
 unless vendor direct or assent to that mode of payment, 47 
 assent of vendee may be implied, 47 
 form conduct or usual course of business, 47
 
 142 Index. 
 
 Conditions preceden'T to be pekfoumei) by a'en'dee — Continued. 
 Cash pai/mrnt — 
 
 may be express or implied condition, 48 
 
 is a condition precedent, 48 
 
 until performed, property does not vest in vendee, 48 
 
 delivery may be accompanied or followed by terms, 48 
 
 if delivery is unconditional, title vests, 48 
 
 c. o d manifests vendor's intention to control jus diaponendi, 48 
 
 time in which to pay the cash may be varied by custom, 49 
 
 assignment prior to payment, prevents performance, and no title 
 vests, 49 
 
 assignee takes no better title than vendee had, 49 
 
 vendee may recover goods if guilty of no laches, 49 
 
 even from one who has purchased in good faith and without no- 
 tice, 49 
 
 rule questioned in New York, 49 
 
 there, purchasers from conditional vendee acquire a good title, 49 
 
 vendee having been allowed to assume position of owner, 49 
 
 but no title can be acquired where contract partakes of bailment 
 with executory agreement for purchase, condition not having 
 been performed, 49 
 Payment by check or draft — 
 
 is a mode of making cash payment, 50 
 
 is not the acceptance of a security, 50 
 
 such payment is conditional, 50 
 
 if check is dishonored, vendor may retake the goods, 50 
 
 check will operate as absolute payment, if presentment is de- 
 layed to the injury of drawer, 50 
 
 if payment be by check, indorsed by vendee, acceptance thereof 
 releases vendee, except as indorser, 50 
 
 payment by draft is also conditional, 50 
 
 burden on vendee to prove an agreement to receive as absolute 
 payment, 51 
 
 fraud of one partner to induce vendor to receive his individual 
 acceptance will not release other partner, 51 
 
 where payment is by exchange, vendee not rendered liable by 
 unexpected failure of bank, 51 
 
 if he has exercised care in purchasing bill of exchang-^, 51 
 Payment b>i note — 
 
 if provided by contract, becomes a condition precedent, 52 
 
 title will not vest without such payment, 52 
 
 or its waiver by the vendor, 52 
 
 giving of note does not extinguish indebtedness, 52 
 
 an intent to extinguish must be shown, 52 
 
 intent may be expressed or implied, 52 
 
 if note is to be indorsed, the taking of it without will not 
 amount to a waiver of condition, 52
 
 Index 143 
 
 Conditions prkcedent td be peufdrmkd by vendee — Continued. 
 
 if note bo indorspd l)y vemleH, and given as collateral security, 
 laches of vendor will constitute the note as absolute pay- 
 ment ")2 
 
 payment by paper to which vendee is not a party, is equivalent 
 of cash payment, i)'l 
 
 if securities thus passed were forged, vendor could rescind sale 
 for failure of consideration, 53 
 
 if genuine, though known to vendee to be vyorthless, sale could 
 be rescinded, .03 
 
 if worthless character is unknown to both, it would be a case 
 of mutual mistake, •")3 
 
 purchase by agent for an unknown principal, tender of agent's 
 note does not release principal, 53 
 
 if payment be by partnership note, and one repudiates his lia- 
 bility thereon, it can not then be regarded as payment, 53 
 
 if by mistake note is given for less amount than due, title does 
 not pass, 53 
 
 delivery having been made without demand of notes within a 
 reasonable time, title passes, 53 
 Tender — 
 
 if proper, is equivalent to payment, 54 
 
 requires a production and oflfer to vendor of an amount of money 
 equal to price 54 
 
 production of money may be dispensed with by vendor, 54 
 
 the mere offer to pay does not amount to, 54 
 
 if vendee is prevented from producing the money by the con- 
 trivance or evasion of vendor, it will be a sufficient excuse, 54 
 
 tender of larger sum than due, with demand for change, is not 
 good, 54 
 
 nor of a part of the sum due, 55 
 
 may tender {)ayment of one or more of several distinct pur- 
 chases, 55 
 
 may tender gross amount of several demands, 55 
 
 tender of balance due, after deducting set-off, not good, 55 
 
 may pay entire sum due into court, and then plead a set-ofif, 55 
 
 oflfer of a promissory note signed by vendor is not a good ten- 
 der, 55 
 
 tender must be an unconditional offer of money, 55 
 
 vendee has no right to insist that vendor shall admit that no 
 more is due, 55 
 To whom payment can be made — 
 
 can be made to vendor or his agent, 56 
 
 or to one who appears to be clothed with authority, 56 
 
 each case must depend on the facts surrounding the payment, 56 
 
 payment to vendor's attorney held sufficient, 56 
 
 has authority to receive before or after judgment, 56
 
 144 Index. 
 
 Condition's precedent to bk perfokmed by vendee — Continued. 
 
 authorit}'^ limited to receipt of money only, ")6 
 
 vendor may be estopped from denial of agent's apparent author- 
 ity, 56 
 
 thus, payment to clerk in vendor's place of business is suflB- 
 cient, 57 
 
 custom may regulate, 57 
 
 or former dealings, 57 
 Express conditions — 
 
 Sales on trial or approval — 
 
 no sale until approval is given, 58 
 
 either expressly or by implication, 58 
 
 failure to retui'n in time specified makes sale absolute, 58 
 
 vendee is entitled to full time agreed upon for trial, 58 
 
 no time having been agreed upon, a reasonable time will be pre- 
 sumed, 58 
 
 vendee can not avoid payment by failure to make trial, 58 
 
 nor by the exercise of an arbitrary discretion, 58 
 
 day for trial means entire day, 58 
 
 if trial involves consumption of what is tried, it becomes ques- 
 tion for jury whether quantity consumed was more than was 
 necessary for trial, 58 
 Memorandum sales — 
 
 in mercantile usage, have a special significance, 59 
 
 mean that goods are sent subject to approval, 59 
 
 title does not pass until approval, 59 
 
 evidence of usage or custom is competent, 5 
 
 presumed that parties contracted with reference to it, 59 
 
 acceptance must be in fact, 59 
 
 by means intended to be conveyed to the knowledge of vendor, 59- 
 
 accejitance can not be by mental act, 59 
 
 or conduct unknown and not communicated to the vendor, 59 
 
 assent may be by letter or telegram, 59 
 
 though it is not necessary to prove their receipt by vendor, 59 
 
 vendee's right to assent is extinguished if he make an assign- 
 ment or part with the goods, 59 
 
 delivery of goods before receipt terms is not necessarily a waiver 
 of the conditions, 60 
 
 there may be possession without conferring the right to posses- 
 sion, 60 
 Delivery vnthout payment — 
 
 with exjiress agreement that title shall remain in vendor until 
 payment, payment is a condition precedent, 60 
 
 though part of the goods may have been paid for, 60 
 
 vendee can convey no title by sale, 60 
 
 goods may be recovered though in hands of innocent vendee, 60
 
 Index. 145 
 
 Conditions precedent to be performed by vendee — Continued. 
 
 and property is not subject to seizure by creditors of the 
 
 vendee, 60 
 until they pay or tender to vendor amount due, 00 
 tender of amount due not sufficient if the property has been 
 
 taken possession of Jby the vendor, OO 
 vendee may have power to sell portion of goods and conditions 
 
 still be enforcible against remainder, 61 
 vendor must not have been guilty of laches in asserting his 
 
 rights, 61 
 nor his conduct amount to a waiver of performance, 61 
 condition of payment not waived by taking vendee's note, 61 
 delivery under condition that payment shall be by note is con- 
 ditional, 62 
 upon vendee's refusal to give note, goods may be replevied, 62 
 failure to pay an installment on time entitles the vendor to pos- 
 session, 62 
 where time is essence of contract, 62 
 commencing suit or issuing attachment for amount due does not 
 
 amount to a waiver of vendor's right to retake the goods, 62 
 forfeiture is waived, if vendor makes a new contract, 62 
 waiver of one forfeiture is not evidence of waiver of subsequent 
 
 forfeitures, 62 
 mortgage covering after acquired property will not aflFect vendor's 
 
 title, 63 
 mortgagor acquires no title until terms of sale have been com- 
 plied with, 63 
 vendee has a right to mortgage, 63 
 
 and mortgage will take precedence of an attachment, 63 
 execution of mortgage is an assumption of ownership, 63 
 vendor may repossess himself of chattel without refunding par- 
 tial payments, 63 
 his duty is to notify vendee of his claim, 63 
 but right of vendor to retake does not confer upon vendee the 
 
 right to return the property, 63 
 conditional contracts of sale not^er se fraudulent, 63 
 secret liens are constructively fraudulent as to creditors, 64 
 conditional sales may be modified so as to make the contract a 
 mortgage, 64 
 Special cases — 
 
 stock, conditional sales of, do not cover increase accruing before 
 
 performance of condition, 05 
 belongs to vendor, 65 
 
 need not be mentioned in memorandum, 05 
 to protect vendor's title to increase, even against a bona Jide pur- 
 chaser, 65 
 10
 
 146 Index. 
 
 Conditions precedekt to be performed by vendee — Continued. 
 
 team of horses, conditional sales of, sustained, 65 
 
 reapers and mowers, conditional sales of, sustained, 66 
 
 threshing machines, conditional sales of, sustained, 66 
 
 conditions may be embodied in note, 66 
 
 portable eyigines and saw-mills, conditional sales of, sustained, 66 
 
 if notes contain provision authorizing vendor to declare them 
 due upon the happening of some event, they are not negotia- 
 ble, 67 
 
 safes, conditional sales of, sustained, 67 
 
 sewing machines, conditional sales of, sustained, 68 
 
 rights of vendor not affected by replevin of machine, 68 
 
 this class of sales are neither chattel mortgages nor bailments, 68 
 
 machine being voluntarily given up, vendee has no right of 
 action, 68 
 
 pianos, conditional sales of, sustained, 68 
 
 vendor has no right of action for price, 68 
 
 remedy is to retake piano, 68 
 
 where vendee is allowed to assume apparent ownership, burden 
 is on party claiming adversely to show non-fulfillment of con- 
 ditions of sale, 68 
 
 organs, conditional sales of, sustained, 68 
 
 furniture, conditional sales of, sustained in every state but Penn- 
 sylvania, 69 
 
 vendor not authorized to enter home of vendee in his absence, 
 without his consent, and without notice take the furniture, 69 
 Railroad equipment — 
 
 first leading case on the subject, 70 
 
 opinion by Mr. Chief-Justice Waite, 70 
 
 conditional sales of, sustained, 70 
 
 not covered by mortgage of property company then owned or 
 might thereafter acquire, 72-75 
 
 mortgagees take just such an interest in the property as mort- 
 gagor acquired — no more, no less, 72-75 
 
 rule not applicable in case of property becoming affixed to and 
 part of railroad covered by prior mortgage, 76 
 
 in Ohio, subject provided for by statute, 76 
 Statutory requirements, 77 
 
 only applicable to contracts containing express conditions of 
 sale, 78 
 
 in many states, to be valid as against third parties, contract must 
 be filed as chattel mortgage, 78 
 
 filing must be in town or township where vendee resides, 78 
 
 except in New Hampshire, Vermont, and Nebraska, where, if 
 vendee is a non-resident, filing may be at residence of 
 vendor, 78 
 
 in Vermont, such filing must be within thirty days of the sale, 78
 
 Index. 147 
 
 CJONDITIONS PRECEDENT TO BK PRRFORMKD BY VENDEE — Continued. 
 
 in New llampshiro, time shortened to ten days, 78 
 
 effect of record will not extend beyond one year in Wisconsin, 78 
 
 and five in Nebraska, 78 
 
 unless renewed from time to time, 78 
 
 contract good in other states without filing, TS 
 
 only a note or other evidence of indebtedness given is void 
 as against creditors and subsequent purchasers unless re- 
 corded, 79 
 
 in New York and Minnesota, record ceases to be noticed after 
 one year, 79 
 
 in New York, provisions of statute do not apply to sales of 
 household goods, pianos, engines, and machinery, 79 
 
 if contract is executed in duplicate, 79 
 
 in New Hampshire, afhilavit of good faith, signed by both 
 parties, is required, 79 
 
 foreclosures, mode of, prescribed in but few states, 79 
 
 in New York and Vermont, vendor may retake the property 
 thirty days after condition broken, 79 
 
 but in Maine, property is subject to redemption, 79 
 
 in Missouri and Ohio, it is unlawful for vendor to sieze the prop- 
 erty without refunding a portion of payments, 79 
 
 statutes not interpreted by courts, 79 
 
 can only apply where vendor seeks to take possession without 
 intervention of law, 79 
 
 can not abridge remedial rights, 79 
 
 statutes not applicable in sales on consignment, 80 
 
 nor sales to an agent or sub-agent of vendor, 80 
 
 CONDITIONS SUBSEQUENT— 
 Express conditions — 
 Sale or return — 
 
 explained by queen's bench, 81 
 
 sale with right to return within reasonable time, 81 
 
 property passes and action will lie for price if not returned 
 
 within a reasonable time, 81 
 such is holding of our courts, 81 
 what is a reasonable time is a question of law, 81 
 to be determined by a view of all the circumstances of the par- 
 ticular case, 81 
 parol evidence of conversations of the parlies is admissible to 
 
 show the circumstances under which contract was made, 81 
 whether vendee has terminated sale by a return of the goods is 
 
 a question of fact, 81 
 if vendee materially impair the condition of the chattel, he 
 can not take advantage of the condition under which it was 
 delivered, 82
 
 148 Index. 
 
 Conditions subsequent — Continued. 
 
 but if injury be occasioned without the vendee's fault, it has 
 sometimes been held not to lose his privilege of return, 82 
 Sale of goods to arrive — 
 
 can be either an executed sale subject io bi» defeated by non-ar- 
 
 I'ival of goods, 82 
 or an executory contract to sell and buy, 82 
 the English cases do not settle what language is necessary to 
 
 use, 83 
 opinion in leading case by Judge Blackburn, 83 
 quantity, quality, and price having been ascertained, bill of lad- 
 ing assigned, there would be a constructive delivery, 84 
 any other act equivalent to assignment of bill of lading the ef- 
 fect held to be the same, 84 
 tendency of American cases is to regard as conditional and ex- 
 ecutory, 81 
 title not passing until the actual arrival of the goods, 84 
 Implied conditions — 
 
 Shall he manujacturer s own make — 
 rule adopted in Scotland, 85 
 on sale of goods by manufacturer there is an implied condition 
 
 that they shall be his own make, 85 
 purchaser entitled to reject others, 85 
 although they are of the quality contracted for, 85 
 COMPETENT PARTIES ESSENTIAL— 
 
 only the owner, his agent, or legal representatives can give valid 
 
 title, 4 
 who are legal representatives, 4 
 vendee acquires no better title than his vendor, 4 
 disabilities render contract voidable, not void, 4 
 may be permanent or temporary, 4 
 
 married women competent to contract in some states, 4 
 CONSIDERATION— 
 
 price is an element of every valid sale, 6 
 
 must be either determined or determinable, 6 
 
 need not be paid down, 6 
 
 must be an agreement to pay, 6 
 
 law implies an agreement to pay what the property is reasonably 
 
 worth, 6 
 may be fixed by appraisement, 6 
 or quotations upon a day to V)e fixed, 6 
 
 time of payment may by contract be determined by happening of 
 some contingency, 6 
 CONTINGENCY OR POSSIBILITY— 
 
 not founded upon a right or coupled with an interest, can not be 
 subject of sale, 5
 
 Index. 149 
 
 CONSTRUCTIVE ACCEPTANCE, under the Statutes of Frauds— 
 acct'ptancp required by statute may be constructive, 10 
 question whether facts proven amount to a constructive acceptance 
 
 is one of fact, not of law, 16 
 if facts are not in dispute it belongs to the court to determine their 
 
 legal efifect, 16 
 acceptance may be inferred when vendee deals with the goods aa 
 
 his own, IG 
 as taking possession of bill of lading, 17 
 
 marking or permitting others to mark goods with name of ven- 
 dee, 17 
 acceptance of an order for the goods, 17 
 acceptance of part of the goods, 17 
 although a portion is still to be manufactured, 17 
 but there must be acts of such a character as to place the goods 
 
 within the power of the vendee as absolute owner, 17 
 discharging all lifu for the price, 17 
 delivery to common carrier would constitute a receipt, but not an 
 
 acceptance, 17 
 receipt and unpacking do not amount to an acceptance, 17 
 unless goods are kept an unreasonable time, 17 
 vendee must exercise his option to receive, 17 
 or have done something to deprive him of his option, 17 
 CONSTRUCTIVE OR SYMBOLICAL DELIVERY— 
 rule formulated by Lord Ellenborough, 34 
 where goods are ponderous, delivery may be, 34 
 each case dependent upon nature and situation of property, 35 
 cargo may be transferred by bill of lading and invoice, 35 
 in each case, must be with intent to transfer the title, 35 
 
 COTTON— 
 
 sales of not complete until weight and value have been ascer- 
 tained, 31 
 
 must be with the concurrence of the vendee, 31 
 
 there being no agreement therefor, weighing is not necessary to 
 constitute a delivery, 31 
 DAMAGES, I\[easure of for breach of wahranty — 
 
 is difference between value as warranted and as it actually proves 
 to be, 1 20 
 
 purchase price \s prima facie value as warranted, 120 
 
 vendee may resell and recover loss and all proper expenses, if 
 vendor refuse to rescind, 120 
 
 in action for breach of warranty of title, damages can only be re- 
 covered for actual loss, 120 
 
 no special form of pleading necessary, 120 
 
 in action for breach of warranty in sale of machine, evidence of 
 cost to supply defect is admissible, 120
 
 150 Index. 
 
 Damagks — Continued. 
 
 expenses in trying to make it work are recoverable, 120 
 
 in sale of plantain for clover seed, measure of damages would be 
 
 diflference in value of seed and injury to land, 121 
 prospective profits can never be considered, 121 
 expenses in preparing seed for sowing have been recovered, 121 
 rule in sale of burglar-proof safes, 121 
 in sale of material for manufacturing purposes, difference between 
 
 value of defective article and value if made from material as 
 
 warranted is measure of damages, 122 
 
 DEFINITIOX OF SALE— 
 
 same whether sale be absolute or conditional, 3 
 
 DELIVERY— 
 
 Question of intent — 
 whether delivery be absolute or conditional is a question of in- 
 tent, 33 
 intent is a question for the jury, 33 
 evidence may justify a determination hy the court, 33 
 law implies place of delivery is at place where the 2:)roperty is at 
 
 time of sale, 33 
 different rule prevails where time and place of delivery is pro- 
 vided by contract, 34 
 time of delivery not beiiig fixed by contract, must be within a 
 reasonable time, 34 
 Symbolical or constructive delivery— 
 
 rule formulated by Lord Ellenborough, 34 
 where goods are ponderous, delivery may be, 34 
 each case dependent upon nature and situation of property, 35 
 delivery of deed of transfer of ship at sea passes title, 35 
 cargo may be transferred by bill of lading or invoice, 35 
 in each case, must be with intent to transfer the title, 35 
 Delivery to carrier — 
 
 is sufficient, carrier being regarded as agent of vendee, 36 
 
 goods so delivered must be in proper condition, 36 
 
 so that, in case of damage, action may be maintained against the 
 
 carrier, 36 
 vendor is bound to insure, if so instructed, 36 
 or if such has been the usage between the parties, 36 
 delivery to designated carrier is delivery to vendee, 36 
 if shipment be by a route other than the one designated, delivery 
 is not complete, 36 
 Delivery of more or less than contracted for — 
 
 vendor does not comply with contract by, 37 
 
 or by delivery of goods sold mixed with other goods, 37 
 
 if so delivered, may be held subject to order, 37
 
 Index. 151 
 
 Dki.iv kr y — Con tin xed. 
 
 if delivered in an essentially altered condition, contract will not 
 
 li;ive been complied with, 37 
 where goods are ordered from forres])()iideiit or jiurcliasiiif; agent, 
 
 rule is less rigid, 37 
 vendee may refuse to receive if good? tendered either exceed or 
 
 are less in quantity than agreed upon, 37 
 is bound to pay for any part accepted, 37 
 moderate and reasonable latitude in i)erformance allowed, if words 
 
 of qualification are used, such as "about" or "more or less," 38 
 Time of delivery — 
 where contract expresses the time of delivery, it is a question of 
 
 constriction for the court, 38 
 time of dolivery not being fixed by contract, must be within a rear 
 
 sonablo time, 34 
 month is construed as a calendar month, 38 
 unless contrary meaning clearly indicated, 38 
 certain number of days construed as consecutive, 39 
 Sundays included, 39 
 
 day of raaking contract should be excluded in computing time, 39 
 between two days includes the last day, 39 
 readiness at time and place designated held sufficient, 39 
 place not being designated, tender a convenient time before mid- 
 night sufficient, 39 
 place being designated, tender must be during daylight and a con- 
 venient time before sunset, 39 
 contr£,ct to deliver "as fast as produced" construed, 39 
 " prompt shipment" construed, 39 
 
 contrict to ship within " cevtain specified months" construed, 40 
 delivery atid acceptance after the agreed time does not of itself 
 
 wcrk a reduction of price, 40 
 if notes are given for goods to be delivered at a future day, a fail- 
 
 uie to so deliver will constitute a failurfe of consideration, 40 
 Place if delivery — 
 law implies place of delivery is at place where property is at time 
 
 of sale, 33 
 diflFerent rule prevails where time and place of delivery is provided 
 
 hj contract, 34 
 delivery must be at place designated by contract, 41 
 unless it becomes impossible through act of vendee, 41 
 deLvery at time and place sufficient, 41 
 acceptance by vendee need not be shown, 41 
 veidor may resell, after due delay, if vendee unreasonably neglect 
 
 or refuse -to receive the goods, 41 
 ani recover deficit in price from vendee, 41 
 common in such case to sell at auction, 41 
 bit it is not necessary, 41
 
 152 Index. 
 
 Delivery — Continued. 
 Estoppel, delivery by — 
 
 rule formulated by Lord Blackburn, 42 
 
 vendor's conduct may estop him from denying the transfer, 42 
 
 as allowing another to contract on the faith or understanding o\ 
 some fact which he can contradict, 42 
 
 allowing vendee to hold himself out as owner, 42 
 
 special cases cited, 42 
 Delivery of described article, essential — 
 
 delivery of described article, a condition precedent, 43 
 
 if not perfoi'med vendee may reject the article, 43 
 
 may recover the price if paid for, 43 
 
 rule formulated by Lord Abinger, 43 
 
 words of description constitute a warranty, 44 
 
 doctrine questioned, 44 
 
 vendor undertakes, that the thing delivered corresponds to the 
 description, 44 
 
 an article of the species, kind, and quality thus expressed in the 
 contract of sale, 44 
 
 suffic'ent if goods are in specie, that for which sold, 44 
 
 and merchantable under denomination affixed to them,*44 
 
 goods not answering description, vendee must o9Fer to re- 
 turn, 44 
 
 oflFer to return must be unconditional, 44 
 
 delay in offering to return, or any act equivalent to acceptance, 
 employment, or disposition of the goods after knowledge of de- 
 ficiency construed, 44 
 Delivery without payment — 
 
 with express agreement that title shall remain in vendor until 
 payment, payment is a condition precedent, 60 
 
 though part of the goods may have been paid for, 60 
 
 vendee can convey no title by sale, 60 
 
 goods may be recovered, though in hands of innocent ven lee, 60 
 
 property is not subject to seizure by creditors of the vendee, 60 
 
 until they pay or tender to vendor amount due, 60 
 
 tender of amount due not sufficient if the property has beea taken 
 possession of by the vendor, 60 
 
 vendee may have power to sell portion of goods, and coidition 
 still be enforcible against remainder, 61 
 
 vendor must not have been guilty of laches in asserting his 
 rights, 61 
 
 nor his conduct amount to a waiver of performance, 61 
 
 condition of payment not waived by taking vendee's note, k\ 
 
 delivery under condition that payment shall be by note is con- 
 ditional, 62 
 
 upon vendee's refusal to give note, goods may be replevined, 62
 
 Index. 153 
 
 Delivery — Continued. 
 
 iailure to pay an installment on time entitles the vendor to pos- 
 session, 62 
 
 where time is essence of contract, 62 
 
 commencing suit or issuing attachment for amount due does not 
 amount to a waiver of vendor's right to retake the goods, 62 
 
 forfeiture is waived, if vendor makes a new contract, 62 
 
 waiver of one forfeiture is not evidence of waiver of subsequent 
 forfeitures, 62 
 
 mortgage covering after acquired property will not affect vendor's 
 title, 63 
 
 mortgagor acquires no title until terms of sale have been com- 
 j)lied with, 63 
 
 vendee has a right to mortgage, 63 
 
 and mortgage will take precedence of an attachment, 63 
 
 execution of mortgage is an assumption of ownership, 63 
 
 vendor may repossess himself of chattels vfithout refunding par- 
 tial payments., 63 
 
 duty is to notify vendee of his claim, 63 
 
 right of vendor to retake does not confer upon vendee the right 
 to return the property, 63 
 
 conditional contracts of sale not per se fraudulent, 63 
 
 secret liens are constructively fraudulent as to creditors, 64 
 
 conditional sales may be modified so as to make the contract a 
 mortgage, 64 
 
 special cases, 65 
 
 DESCRIBED ARTICLE, Delivery of Essential— 
 
 delivery of described article, a condition precedent, 43 
 
 if not performed' vendee may reject the article, 43 
 
 may recover the price if paid for, 43 
 
 rule formulated by Lord Abinger, 43 
 
 words of description constitute a warranty, 44 
 
 doctrine questioned, 44 
 
 vendor undertakes, that the thing delivered corresponds to the 
 description, 44 
 
 an article of the species, kind, and quality thus expressed in the 
 contract of sale, 44 
 
 sufficient if goods are in specie, that for which sold, 44 
 
 and merchantable under denomination affixed to them, 44 
 
 goods not answering description, vendee must offer to re- 
 turn, 44 
 
 offer to return must be unconditional, 44 
 
 delay in ottering to return, or any act equivalent to acceptance, 
 employment, or disposition of the goods after knowledge of de- 
 ficiency, construed, 44
 
 154 Index. 
 
 DESCRIPTION, SALE BY— 
 
 sale of article known in market by a particular name, a warranty 
 is implied that article is of kind, character, and description, 94 
 
 vendee not having seen the article and meaning of description 
 being known to the parties '.U 
 
 not necessary that article, wlun delivered, sliould be of any cer- 
 tain quality of the brand, 94 
 
 in absence of fraud, vendor can only be called upon to deliver 
 article ot the specified brand, 94 
 DISABILITIES— 
 
 may be permanent or temporary, 4 
 
 render the contract voidable, not void, 4 
 
 DRAFT OR CHECK— 
 
 payment by is a mode of making cash payment and con- 
 ditional, 30 
 EARNEST AND PART PAYMENT, under the Statutes of Frauds — 
 verbal contract valid, and i>roof of it competent if something iu 
 
 earnest or part payment of the price be given, 18 
 common-law rule not changed by statute, IS 
 payment may be shown by parol evidence, 18 
 but proof of tender is not competent, 18 
 money tendered must be actually accepted, 19 
 not sufficient if money deposited with third person, 19 
 payment must be in money or its equivalent, 19 
 time of payment is not essential except in New York, 19 
 may be at time of sale or afterward, 19 ' 
 
 by the vendee or his agent, 19 
 EFFECT OF A WARRANTY— 
 
 article not being as warranted, vendee may return it, 112 
 
 or offer to return it within a reasonable time, where the time is 
 
 not fixed by contract, 1 12 
 or may retain it, and recover damages for breach, 1 12 
 may, by taking express warranty, be relieved of obligation to re- 
 turn the property, 112 
 and still hold vendor responsible for deficiency, 112 
 vendee can not avoid payment by exercise of an arbitrary opin- 
 ion, 112 
 defect must be such as to amount to a breach of contract, 112 
 retention of goods after time limited renders vendee liable for 
 
 price, 113 
 express warranty extends to all defects, 113 
 warranty of soundness may cover patent defects, 113 
 examination and appropriation of warranted articles is not a 
 
 waiver of the contract, 1 13 
 vendee not bound to rescind, on discovering a breach, 113 
 may recover damages for breach, 113
 
 Index. 155 
 
 Effect op a warranty — Continued. 
 
 in the sale of material to be manufactured into articles of mer- 
 chandise, vendee not b()un<l to apply tests before using, 113 
 
 if bought to combine with other material, and part are found de- 
 fective, vendee may refuse to use, 1 \?> 
 
 if sold for particular use, :iiid warranted "perfect," it means, per- 
 fect for intended use, 114 
 
 " to satisfy trade," meaning of, 114 
 
 obligations of express warranty are concurrent, 114 
 
 yet obligations may be waived, 114 
 
 failure to insist on payment for breach of warranty will not 
 amount to waiver, 114 
 
 ELEMENTS OF CONTRACT OF SA.LE— 
 Competent parties — 
 
 only the owner, his agent, or legal representatives, can give a valid 
 title, 4 
 
 administrators or executors, officers of courts having jurisdiction, 
 bailies, mortgagees, jDledgees, or their assigns, are legal repre- 
 sentatives, 4 
 
 vendee acquires no better title than his vendor, 3 
 
 title can not be acquired in property lost or stolen, 4 
 
 property lost or stolen may be recovered, 4 
 
 all persons competent to contract may buy, 4 
 
 disabilities render contract voidable, not void, 4 
 
 disabilities may be permanent or temporary, 4 
 
 coverture, disability of, removed in many states, 4 
 
 married women may then contract as feme soles, 4 
 Mutual assent — 
 
 assent of competent parties is essential, 5 
 
 must be mutual and voluntary, 5 
 
 need not be expressed, 5 
 
 may be implied, 5 
 
 may be by same means as proposition, 5 
 
 must be bofore expiration of limit, ri 
 Subject of sale — 
 
 must be something the subject of sale, 5 
 
 a hope or expectation may be the subject of sale, 5 
 
 mere possibility or contingency not, 5 
 
 if subject of sale has ceased to exist, by nny cause, at time of sale, 
 there would be no sale, 5 
 
 if price had been paid, it may be recovered, 5 
 Consideration — 
 
 price is an element of every valid sale, 6 
 
 must be either determined or determinable, 6 
 
 need not be paid down, 
 
 must be an agreement to pay, 6
 
 156 Index. 
 
 Elements of contbact of sale — Continued. 
 
 law implies an agreement to pay what property is reasonably 
 worth, 6 
 
 may be fixed by appraisement, 6 
 
 or quotations upon a day to be fixed, 6 
 
 time of payment may, by contract, be determinable b> the usual 
 time required for the trip of a ship, 6 
 Transfer of property — 
 
 has been held not essential to pass title to property, 7 
 
 becomes essential if, by terms of contract, delivery is one of the 
 conditions thereof, 7 
 TOPPEL, DELIVERY BY— 
 
 rule formulated by Lord Blackburn, 42 
 
 vendor's conduct may estop him from denying the transfer, 42 
 
 as allowing another to contract on the faith or understanding of 
 some fact which he can contradict, 42 
 
 allowing vendee to hold himself out as owner, 42 
 
 special cases cited, 42 
 EVIDENCE— 
 
 payment under statute of frauds may be shown by parol evi- 
 dence, 18 
 
 but proof of tender is not competent, 18 
 
 oral evidence of acceptance of written proposition is competent 
 to prove memorandum, 20 
 
 memorandum being signed by initials of parties, parol evidence is 
 admissible to apply the description, 21 
 
 if silent as to price parol evidence is admissible to show that price 
 was agreed upon, 22 
 
 evidence of usage or custom is competent, 59 
 
 must be evidence of intent in sales by sample, 93 
 
 but in action by vendor for price he must show that goods corre- 
 spond with sample, 93 
 
 parol evidence not admissible to add a warranty to a written con- 
 tract of sale, 108 
 
 in action for breach of warranty in sale of machine evidence of 
 cost to supply defect is admissible, 120 
 
 written warranty excludes evidence of oral warranty, 123 
 
 evidence of fraud competent to show that written order never be- 
 come operative, 123 
 
 evidence of how other similar machines worked not material, 121 
 
 unless fault in plan or design of construction be at issue, 124 
 
 evidence of working of machine for several harvests admissible to 
 show intrinsic defects, 128 
 EXPECTATION OR HOPE— 
 
 founded on a right in being may be the subject of sale, 5
 
 Index. 157 
 
 FURNITUHE— 
 
 cuiiditioiial sales of, sustaiiie<l in every state but Pennsylvania, 09 
 
 vendor not authorized to enter home of vendee in his absence, 
 
 without his consent, and without notice take the furniture, 69 
 
 GOODS TO ARRIVE, SALE OF— 
 
 can be either an executed sale subject to be defeated by non- 
 arrival of goods, 82 
 
 or an executory contract to sell and buy, 82 
 
 the English cases do not settle what language it is necessary to 
 use, 83 
 
 opinion in leading case by .ludge Blackburn, 83 
 
 quality, quantity, and jji-ice having been ascertained, bill of lading 
 assigned, there would be a constructive delivery, 84 
 
 any other act equivalent to assignment of bill of lading, the effect 
 held to be the same, 84 
 HOPE OR EXPECTATK^N OF MEANS— 
 
 if founded on a right of being may be the subject of sale, 5 
 
 INTE NT- 
 delivery must be with intent of vesting right of possession, 15 
 
 acceptance must also be with intent to take possession as 
 owner, 15 
 
 conditions precedent governed by intent, 27 
 
 where property has been separated title will pass, that being intent 
 of parties, 30 
 
 delivery is a question of intent, o3 
 
 symbolical delivery must be with intent to transfer title to the 
 property sold, 35 
 
 "C.O.D." manifests vendor's intent to control the jus disponendi, 48 
 
 acceptance of note does not extinguish indebtedness unless an 
 intent to do so is shown, 52 
 
 sale of goods to arrive governed by intent, 83 
 
 element of intent necessary to constitute a warranty, 86 
 
 in sales by sample intent necessary, 93 
 
 representations to amount to a warranty must be made with in- 
 tent to warrant, 103, 108 
 
 and with intent to have vendee rely thereon, 103 
 
 intent to warmnt may be inferred, 104 
 
 warranty of soundness may cover patent defects when so intended, 
 113 
 IRON— 
 
 contracts for sale of, within the statutes of frauds, 12 
 
 LEGAL REPRESENTATIVES— 
 
 who can give a valid title are administrators or executors, 4 
 officers of courts having jurisdiction, 4 
 bailees, mortgagees, pledges, or their assigns, 4 
 no implied warranty in sales by, 89
 
 158 Inde^.. 
 
 LUMBER— 
 
 sales of, to be taken and measured from a large bulk not complete, 
 
 even between parties, until selected and measured, 32 
 when sold subject to measurement by an inspector, vendee may 
 
 insist on actual measurement, 32 
 a mere estimate is not sufficient, 32 
 
 where by agreement the parties are to do the measuring, but dis- 
 agree, title does not pass, 32 
 though sale be of an entire lot, 32 
 
 when all is sold, and price ascertained, no such process is needed 
 to pass title, 32 
 MANUFACTURER'S OWN MAKE— 
 
 implied condition that goods shall be, 85 
 
 rule adopted in Scotland, 85 
 
 on sale of goods by manufacturer there is an implied condition 
 
 that they shall be his own make, 85 
 purchaser entitled to reject others, 85 
 although they are of the quality contracted for, 85 
 MARRIED WOMEN— 
 
 may contract where disability has been removed by statute, 4 
 
 MEASUREMENT— 
 
 where price is determinable by measurement, it is presumptively 
 a condition precedent, 31 
 
 employment of a person to do the measuring not sufficient, 31 
 
 in port of New York, purchase of grain governed by custom, 31 
 
 employment of measurer, is a substantial compliance there- 
 with, 31 
 
 sales of cotton not complete until weight and value have been as- 
 certained, 31 
 
 must be with the concurrence of the vendee, 31 
 
 there being no agreement therefore, weighing not necessary to 
 constitute a delivery, 31 
 
 sales of lumber to be taken and measured from a large bulk, not 
 complete, even between parties, until selected and measured, 32 
 
 when sold subject to measurement by an inspector, vendee may in- 
 sist on actual measurement, 32 
 
 a mere estimate not sufficient, 32 
 
 where by agreement the parties are to do the measuring, but disa- 
 gree, title does not pass, 32 
 
 though sale be of an entire lot, 32 
 
 when all is sold and price ascertained, no such process is needed 
 to pass title, 32 
 
 not necessary in sale of barrel staves, 32 
 MEASURE OF DAMAGES, for Breach of Warranty. 
 
 is difference between value as warranted and as it actually proves 
 to be, 120
 
 Index 159 
 
 Measure of damages — Contimud. 
 
 jturchase price is, prima facie value as warranted, 120 
 
 vendee may re-sell and recover loss and all proper expenses if 
 vendor refuse to rescind, 120 
 
 in action for breach of warranty of title, damages can only be re- 
 covered for actual loss, 120 
 
 no special form of pleading necessary, 120 
 
 in action for breach of warranty in sale of machine, evidence of 
 cost supply defect is admissible, 120 
 
 expenses in trying to make it work are recoverable, 120 
 
 in sale of plantain for clover seed, measure of damages would be 
 difference in value of seed and injury to land, 121 
 
 prospective profits can never be considered, 121 
 
 expenses in preparing seed for sowing have been recovered, 121 
 
 rule in sale of burglar roof safes, 121 
 
 in sale of material for manufacturing purposes, difference between 
 value defective article and value, if made from the material 
 as warranted, is measure of damages, 122 
 
 MEMORANDUM, Its Form— 
 
 statute requires evidence that the agreement or some note or 
 
 memorandum thereof be in writing, 19 
 signed by the party to be charged thereby, 19 
 or his lawful agent, 19 
 
 unless part payment, or delivery with acceptance is shown, 19 
 form of memorandum not limited by statute, 19 
 may consist of telegram, 19 
 bill of parcels, 19 
 statement of account, in which vendee charges himself with goods 
 
 received, 19 
 or the return of a slieriff on execution, 20 
 a vote of a corporation, entered on their records and signed by 
 
 their clerk, 20 
 or a written proposition if supported by oral evidence of accepts 
 
 ance, 20 
 any number of papers taken together may make out the note or 
 
 memorandum, 20 
 but each must be signed by party to be charged, 20 
 all the elements of contract must appear, 20 
 or be legally presumable by what is stated, 20 
 Parties to memorandum — 
 
 memorandum should show who are, 21 
 
 if signed by party to be charged, it is sufficient if it appear with 
 
 reasonable certainty who other party is, 21 
 thus a letter addressed to vendor and signed by vendee, 21 
 though addressed to and received by the agent of the vendor, 21
 
 160 Index. 
 
 Memorandum, Its form — Continued. 
 
 may be designated by their initials, 21 
 
 parol evidence being admissible to apply the description, 21 
 Price, must appear in memorandum — 
 
 no price having been agreed upon, none need be stated in mem- 
 orandum, 21 
 
 law presumes a promise to pay a reasonable price, 21 
 
 where price is fixed, that is part of the bargain, 21 
 
 and must be shown in writing, 21, 22 
 
 memorandum being silent as to price, parol evidence is admissible 
 to show that price was agreed upon, 22 
 
 price being indicated in the memorandum, by figures or letters, or 
 both, it is sufficient to that extent, 22 
 
 or if it appear that price is to be determined by arbitration, 22 
 
 or the agreement is to pay same for which the property had been 
 previously soL , 22 
 
 or a moderate price, 22 
 
 memorandum being silent as to time of payment, a cash sale will 
 be presumed, 22 
 
 if credit is given it must appear in the memorandum, 22 
 
 need not appear whether deferred payments are to be with inter- 
 est, 22 
 
 where price in gross of articles sold at same time exceed sum des- 
 ignated by statute, sale will fall within its provisions, lo 
 Siffnin<j/ of memorandum — 
 
 memorandum must be signed by the party to be charged, or his 
 agent, 23 
 
 signature must be some mark or emblem intended to denote a sig. 
 nature, 23 
 
 even though memorandum be in party's own hand, there must 
 still be a signature, 23 
 
 may consist of a mark, or initials, 23 
 
 or may be in printing, 23 
 
 or by stamp, if shown to have been adopted as a signature, 23 
 
 may be written with lead pencil, 23 
 
 location of signature is immaterial, 23 
 
 may be in body of the paper, or at the beginning or end, 23 
 
 must be with intent to obligate, 23 
 
 may be made by third party, at request and in presence of party 
 to be charged, 23 
 
 may be signed by the duly authorized agent, 23 
 
 or by a stranger, if afterward ratified, 23 
 
 a broker, or auctioneer, is agent of both parties, 23 
 
 memorandum signed by him is sufficient, 23 
 
 MEMORANDUM SALES— 
 
 in mercantile usage, have a special significance, 59
 
 Index. 161 
 
 Memorandum sales — Continued. 
 
 mean that goods are sent subject to approval, 59 
 
 title does not pass until approval, 50 
 
 evidence of usage or custom is competent, 59 
 
 presumed that parties contracted with reference to it, 59 
 
 acceptance must be in fact, 59 
 
 by means intended to be conveyed to the knowledge of ven- 
 dor, 59 
 
 ace iptance can not be by mental act, 59 
 
 or conduct unknown, and not communicated to the vendor, 59 
 
 assent may be by letter, or telegram, 59 
 
 though it is not necessary to prove their receipt by vendor, 59 
 
 vendee's right to assent is extinguished if he make an assignment 
 or part with the goods, 59 
 
 delivery of goods before receipt of terms is not necessarily a waiver 
 of the conditions, 60 
 
 there may be possession without conferring the right to posses- 
 sion, 60 
 
 MERCHANTABLE CHARACTER— 
 
 merchandise sold to arrive, which neither party can inspect, caveat 
 venditor should apply, 99 
 
 there is implied engagement that article should be merchanta- 
 able, 99 
 
 same rule applies where manufacturer or dealer undertakes to sup- 
 ply article, 99 
 
 vendee not having opportunity to inspect, 99 
 
 rule of board of trade will have no application to prevent implied 
 warranty, 99 
 
 rule of implied warranty of miTchantable character is extended 
 to merchants, 'J9 
 
 no implied warranty, where vendee has equal opportunity for 
 knowledge, and vendor is not the manufacturer, 99 
 
 in complete contracts, there being no warranty, false representa- 
 tions, or fraudulent concealments, vendee takes property regard- 
 less of defects, 99 
 
 in executory contracts, obligation always arises that article shall 
 be merchantable, 99 
 
 at least, without any reasonable defect, 100 
 
 vendee can not insist that article should be of any special degree 
 of fineness, 100 
 
 he may insist that it should be of medium cjuality or goodness, 
 100 
 
 free from such defects as would render it unmerchantable or unfit 
 for purpose for which ordinarily used, 100 
 11
 
 162 Index. 
 
 Merchantable character — Continued. 
 
 rule applied to sales of wheat, guano, superphosphate, ice, and 
 
 lumber, 100 
 rule does not apply to sales of residuum or refuse of manufactur- 
 ing establishments, 100 
 MORE OR LESS THAN CONTRACTED FOR— 
 
 vendor does not comply with contract by delivery of, 37 
 
 or by delivery of goods sold mixed with other goods, 37 
 
 if so delivered, may be held subject to order, 37 
 
 if delivered in an essentially altered condition, contract will not 
 
 have been complied with, 37 
 where goods are ordered from correspondent, or purchasing agent, 
 
 rule is less rigid, 37 
 vendee may refuse to receive, if goods tendered either exceed or 
 
 are less in quantity than agreed upon, 37 
 is bound to pay for any part accepted, 37 
 moderate and reasonable latitude in performance allowed, if 
 
 words of qualification are used; such as "about," or "more or 
 
 less," 38 
 
 MORTGAGE— 
 
 covering after-acquired property will not affect vendor's title, 63 
 mortgagor acquires no title until terms of sale have been complied 
 
 with, 63 
 vendee has a right to mortgage, 63 
 and mortgage will take precedence of attachment, 63 
 execution of mortgage is an assumption of ownership, 63 
 of railroad equipment, 72-75 
 
 MORTGAGEES— 
 
 are legal representatives wno can give a valid title, 4 
 
 take just such interest as mortgagor acquired, no more no 
 
 less, 63 
 mortgagor acquires no title until terms of sale shall have been com- 
 plied with, 63 
 MUTUAL ASSENT— 
 
 of competent parties essential in contracts of sale, 5 
 
 OFFICERS OF COURTS— 
 
 having jurisdiction, are legal representatives who can give a valid 
 
 title, 4 
 no implied warranty of title, in sales by. 89 
 
 ORGANS— 
 
 conditional sales of, sustained, 68 
 
 PAYMENT A CONDITION PRECEDENT— 
 
 unless otherwise expressed, payment is an implied condition, 47 
 delivery and payment presumed to be simultaneous and concur- 
 rent, 47
 
 Index. 163 
 
 Payment a condition precedent — Continued. 
 
 delivery, with expectation of immediate payment, is not abso- 
 lute, 47 
 
 title does not vest until price is paid, 47 
 
 at common law vendee can not delay payment until demand, 47 
 
 must pay as soon as due, 47 
 
 where price is made payable only after demand, a reasonable time 
 must be allowed to make payment, 47 
 
 payment by check being refused, it is not unreasonable delay for 
 vendee to offer payment in money on morning of next banking 
 day 47 
 
 payment made by mode requested by vendor discharges ven- 
 dee, 47 
 
 if made by mail, it is at vendee's risk, 47 
 
 unless vendor direct or assent to that mode of payment, 47 
 
 assent of vendee may be implied, 47 
 
 from conduct or usual course of business, 47 
 Cash payment — 
 
 may be express or implied condition, 48 
 
 is a condition precedent, 48 
 
 until performed property does not vest in vendee, 48 
 
 delivery may be accompanied or followed by terms, 48 
 
 if delivery is unconditional, title vests, 48 
 
 C. O. D. manifests vendor's intention to control jj<5 disponendi, 48 
 
 time in which to pay the cash may be varied by custom, 49 
 
 assignment prior to payment prevents performance, and no title 
 vests, 49 
 
 assignee takes no better title than vendee had, 49 
 
 vendee may recover goods if guilty of no laches, 49 
 
 even from one who has purchased in good faith, and without 
 notice, 49 
 
 rule questioned in New York, 49 
 
 there, purchasers from conditional vendee acquire a good 
 title, 49 
 
 vendee having been allowed to assume position of owner, 49 
 
 but no title can be acquired where contract partakes of bailment 
 with executory agreement for purchase, condition not having 
 been performed, 49 
 Payment by check or dmft — 
 
 is a mode of making cash payment, 50 
 
 is not the acceptance of a security, 50 
 
 such payment is conditional, 50 
 
 if check is dishonored, vendor may retake the goods, 50 
 
 check will operate as absolute payment if presentment is delayed 
 to the injury of drawer, 50
 
 164 Index. 
 
 Payment a condition precedent — Continued. 
 
 if payment be by check indorsed by vendee, acceptance thereof 
 
 releases vendee, except as indorser, 50 
 payment by draft is also conditional, 50 
 burden on vendee to prove an agi-eement to receive as absolute 
 
 payment, 51 
 fraud of one partner to induce vendor to receive his individual 
 
 acceptance will not release other partner, 51 
 where payment is by exchange, vendee not rendered liable by un- 
 expected failure of bank, 51 
 if he has exercised care in purchasing bill of exchange, 51 
 Payment by note — 
 
 if provided by contract, becomes a condition precedent, 52 
 
 title will not vest without such payment, 52 
 
 or its waiver by the vendor, 52 
 
 giving of note does not extinguish indebtedness, 52 
 
 an intent to extinguish must be shown, 52 
 
 intent may be expressed or implied, 52 
 
 if note is to be indorsed, the taking of it without will not amount 
 
 to a waiver of condition, 52 
 if note be indorsed by vendee, and given as collateral security, 
 
 laches of vendor will constitute the note as absolute pay- 
 ment, 52 
 payment by paper to which vendee is not a party, is equivalent 
 
 of cash payment, 52 
 if securities thus passed were forged, vendor could rescind sale 
 
 for failure of consideration, 53 
 if genuine, though known to vendee to be worthless, sale could be 
 
 rescinded, 53 
 if worthless character is unknown to both, it would be a case of 
 
 mutual mistake, 53 
 purchase by agent for an unknown principal, tender of agent's note 
 
 does not release principal, 53 
 if payment be by partnership note, and one repudiates his liability 
 
 thereon, it can not then be regarded as payment, 53 
 if by mistake note is given for less amount than due, title does 
 
 not pass, 53 
 delivery having been made without demand of notes within a 
 
 reasonable time, title passes, 53 
 2'ender — 
 if proper, is equivalent to 2)ayment, 54 
 requires a production and offer to vendor of an amount of money 
 
 equal to price, 54 
 production of money may be dispensed with by vendor, 54 
 the mere offer to pay does not amount to, 54
 
 Index. 165 
 
 Payment a condition precedent — Continued. 
 
 if vendee is jjievented I'rom producing the money by the con- 
 trivance or evasion of vendor, it will be :i sufficient excuse, 54 
 tender of larger sum than due, with demand for change, is not 
 
 good, 54 
 nor of a part of the sum due, 55 
 
 may tender payment of one or more of several distinct pur- 
 chases, 55 
 may tender gross amount of several demands, 55 
 tender of balance due after deducting set-off not good, 55 
 may pay entire sum due into court, and then plead a set-off, 55 
 offer of a promissory note signed by vendor is not a good ten- 
 der, 55 
 tender must be an unconditional offer of money, 55 
 vendee has no right to insist that vendor shall admit that no 
 more is due, 55 
 To ivhom payment can be made — 
 can be made to vendor or his ageni, jo 
 or to one who appears to be clothed with authority, 56 
 each case must depend on the facts surrounding the payment, 56 
 payment to vendor's attorney held sufficient, 56 
 has authority to receive before or after judgment, 56 
 authority limited to receipt of money only, 56 
 vendor may be estopped from denial of agent's apparent author- 
 ity, 56 
 thus payment to clerk in vendor's --lace of business is sufficient, 56 
 custom may regulate, 57 
 or former dealings, 57 
 Delivery without payment — 
 
 with express agreement that title shall remain in vendor until 
 
 payment, payment is a condition precedent, 60 
 though part of the goods may have been paid for, 60 
 vendee can convey no title by sale, 60 
 
 goods may be recovered though in hands of innocent vendee, 60 
 property is not subject to seizure by creditor's of the vendee, 60 
 until they pay or tender to vendor amount due, 60 
 tender of amount due not sufficient if the property has been taken 
 
 possession of by the vendor, 60 
 vendee may have power to sell portion of goods and condition still 
 
 be enforcible against remainder, 61 
 vendor must not have been guilty of laches in asserting his 
 
 rights, 61 
 nor his conduct amount to a waiver of performance, 61 
 condition of payment not waived by taking vendee's note, 61 
 delivery under condition that payment shall be by note is con- 
 ditional, 62
 
 166 Index. 
 
 Payment a condition precedent — Continued. 
 
 upon vendee s refusal to give note goods may be replevied, 63 
 failure to pay an installment on time entitles the vendor to po8- 
 
 ession 62 
 vphere time is essence of contract, 62 
 commencing suit or issuing attachment for amount due does not 
 
 amount to a waiver of vendor's right to retake the goods, 62 
 forfeiture is vraived if vendor makes a new contract, 62 
 waiver of one forfeiture is not evidence of waiver of subsequent 
 
 forfeitures, 62 
 mortgage covering after-acquired property will not affect vendor's 
 
 title, 63 
 mortgagor acquires no title until terms of sale have been com- 
 plied with, 63 
 vendee has a right to mortgage, 63 
 
 and mortgage will take precedence of an attachment, 63 
 execution of mortgage is an assumption of ownership, 63 
 vendor may repossess himself of chattels without refunding par- 
 tial payments, 63 
 duty is to notify vendee of his claim, 63 
 right of vendor to retake does not confer upon vendee the right 
 
 to return the property, 03 
 conditional contracts of sale not per se fraudulent, 63 
 secret liens are constructively fraudulent as to creditors, 64 
 conditional sales may be modified so as to make the contract a 
 
 mortgage, 64 
 special cases, 65 
 
 PIANOS— 
 
 conditional sales of, sustained, 68 
 
 vendor has no right of action for price, 68 
 
 remedy is to retake the piano, 68 
 
 where vendee is allowed to assume apparent ownership, burden is 
 on party claiming adversely to show non-fulfillment of condi- 
 tions of sale, 68 
 PLACE OF DELIVERY— 
 
 law implies place of delivery is at place where property is at 
 time of sale, 33 
 
 different rule prevails where time and place of delivery is provided 
 by contract, 34 
 
 delivery must be at place designated by contract, 41 
 
 unless it becomes impossible through act of vendee, 41 
 
 delivery at time and place suflBcient, 41 
 
 acceptance of vendee need not be shown, 41 
 
 vendor may resell, after due delay, if vendee unreasonably neglect 
 or refuse to receive the goods, 41 
 
 and recover deficit in price from vendee, 41.
 
 Index- 167 
 
 Place or delivery — Continued, 
 
 common in such case to sell at auction, 41 
 but it is not necessary, 41 
 
 PLEDGEES— 
 
 are legal representatives, who can give a valid title, 4 
 
 PORTABLE ENGINES— 
 
 conditional sales of, sustained, 66 
 
 POSSIBILITY OR CONTINGENCY— 
 
 not founded on a right or coupled with an interest, not the sub- 
 ject of sale, 5 
 
 PROMISSORY NOTES— 
 
 contracts for sale of, within the statutes of frauds, 12 
 
 given for goods to be delivered at a future day, a failure to so de- 
 liver constitutes a failure of consideration, 40 
 
 payment by, may be a condition, 52 
 
 containing provision authorizing vendor to declare them due upon 
 happening of some event, are not negotiable, 67 
 PROPOSITION— 
 
 may be by letter or telegram, 5 
 
 acceptance of, may be by same means, 5 
 
 must be before expiration of time limited, 5 
 
 QUALITY, WARRANTY OF— 
 
 on a fair sale, no implied warranty of, 90 
 
 caveat emptor applies in absence of fraud, 90 
 
 warranty will not be implied from payment of full price, 91 
 
 vendee may rely upon supposition that vendor knows condition 
 and quality of goods, 91 
 
 unreasonable rules of board of trade as to inspection of provisions 
 do not apply, 91 
 
 representations made by vendor relied upon by vendee amount to 
 a warranty, 91 
 
 words of description in contract or hill of parcels will not amount 
 to a warranty, 91 
 
 nor will a mere praise of personal property, if vendee has an op- 
 portunity to examine, 91 
 
 where goods are open to inspection and are examined, there is no 
 implied warranty of quality, 91 
 
 same rule applies where goods are in possession of vendee at time 
 of sale, 91 
 
 no implied warranty of quality beyond conformity to model or de- 
 sign in sales by, 91 
 
 vendor who makes no warranty or assurance can not be answerable 
 for defects, latent or otherwise, of which he had no knowledge, 91 
 
 question of warranty of quality is for court, if contract of sale is 
 made solely by correspondence, 92
 
 168 Index. 
 
 RAILROAD EQUIPMENT— 
 
 first leading case on the subject, 70 
 
 opinion by Mr. Chief-Justice Waite, 70 
 
 conditional sales of equipment sustained, 70 
 
 not covered by mortgage of property company then owned or 
 might thereafter acquire, 72-75 
 
 mortgagees take just such an interest in the property as mort- 
 gagor acquired — no more, no less, 72-75 
 
 rule not applicable in case of property capable of becoming afSxed 
 to railroad, 76 
 
 such becomes a part of railroad and is covered by prior mort- 
 gage, 76 
 
 in Ohio, subject provided for by special statute, 76 
 
 REAPERS AND MOWERS— 
 
 conditional sales of, sustained, 66 
 sales with warranty, 122 
 
 RIGGING OF VESSEL— 
 
 may be sold to be paid for a certain number of days after first re- 
 turn trip, 6 
 if lost, price is due after the time usually required for the trip, 6 
 
 REQUISITES OF CONTRACTS OF SALE— 
 Elements of contract, 3 
 Competent parties, 3 
 only the owner, his agent, or legal representative can give a 
 
 valid title, 4 
 administrators or executors, officers of courts having jurisdiction, 
 bailees, mortgagees, pledgees, or their assigns, are legal repre- 
 sentatives, 4 
 vendee acquires no better title than his vendor, 3 
 title can not be acquired in property lost or stolen, 4 
 property lost or stolen may be recovered, 4 
 all persons competent to contract may buy, 4 
 disabilities render contract voidable, not void, 4 
 disabilities may be permanent or temporary, 4 
 permanent disabilities are indiocy or insanity, 4 
 temporary disabilities are intemperance, infancy, or coverture, 4 
 coverture, disability of, removed in many states, 4 
 married women may then contract as /erne soles, 4 
 Mutual assent, 5 
 
 assent of competent parties essential, 5 
 
 must be mutual and voluntary, 5 
 
 need not be expressed, 5 
 
 may be implied, 5 
 
 may be by same means as proposition, 5 
 
 must be before expiration of limit, 5
 
 Index. 169 
 
 Requisites of contracts ok sale — Continued. 
 iHuiject of sale, 5 
 
 must be tiomething which is the subject of sale, 5 
 
 a hope or expectation may be the subject of sale, 5 
 
 mere possibility or contingency not, 5 
 
 if subject of sale has ceased to exist by any cause at time o/ 
 sale, there would be no sale, 5 
 
 if price had been paid, it may be recovered, 5 
 Consideration, 6 
 
 price is an element of every valid sale, 6 
 
 must be either determined or determinable, 6 
 
 need not be paid down, 6 
 
 must be an agreement to pay, 6 
 
 law implies an agreement to pay what property is reasonably 
 worth, 6 
 
 may be fixed by appraisement, 6 
 
 or quotations upon a day to be fixed, G 
 
 time of payment may by contract be determinable by the usual 
 time required for the trip of a ship, 6 
 Transfer of property, 7 
 
 has been held not essential to pass title to property, 7 
 
 becomes essential if delivery, by the terms of contract, is one 
 of the conditions thereof, 7 
 Statutory requirements — 
 Statutes of frauds, as applied to sales, 8 
 Provisions of statutes of various states, 8 
 
 prevalence of adoption, 8 
 
 contracts not to be performed within a year, 8 
 
 must be in writing, signed by party to be charged, or by his 
 agent, 9 
 
 some states, statute not applicable where contract by its terms 
 does not indicate that it is not to be performed within a year, 9 
 
 some states, he who is authorized to sign the contract or memo- 
 randum for party to be charged must be authorized in writ- 
 ing, 9 
 
 contracts for sale of goods in excess of certain sums not valid 
 except the vendee accept and receive part of the goods, 9 
 
 or some note or memorandum is signed, 9 
 
 or some thing is given in earnest, 9 
 
 or part payment, 9 
 
 in Georgia, statute applicable whether goods are in esse or 
 not, 10 
 
 not applicable in Iowa, if labor, skill, or money are necessary to 
 produce, 10 
 
 while in California and Dakota, an agreement to manufacture is 
 excepted, 10
 
 170 Index. 
 
 Kequisites op contracts ov sale — Continued. 
 
 statute does uot abridge powers of court to compel specific per 
 
 formance, 10 
 Affects remedy only — 
 purpose of statutes, 10 
 do not declare contract void, 10 
 it executed, rights of parties not changed, 10, 11 
 its operation, 10, 11 
 
 no enforcement of contract can be had until provisions of stat- 
 ute have been comijlied with, 11 
 Application of statute — 
 
 decisions as to, varied and conflicting, 1 1 
 
 shares of stock and choses in action — contracts for sale of, held 
 
 not within the statute, 1 1 
 bank-notes, promissory notes, shares of stock in an incorporated 
 
 company, wheat, cotton, and iron — contracts for sale of, held 
 
 within the statute, 12 
 auction sales are within statute, 12 
 contracts executory not excluded, 12 
 
 nor will the future delivery take the case out of the statute, 12 
 but if skill, labor, care, or knowledge is to be used in producing, 
 
 it is not within the statute, 12 
 contract to send to Europe and have goods manufactured for 
 
 another is a contract of agency and not of sale, 13 
 where price in gross of articles sold at same time exceed sum 
 
 designated by statute, sale will fall within its provisions, 13 
 statute does not apply where delivery takes place within a 
 
 year, 1 3 
 although price is not paid until after the lapse of that time, 13 
 Acceptance of goods — 
 
 under the statutes of fraud, acceptance is essential, 14 
 
 vendee must both accept and receive, 14 
 
 there may be an actual receipt without any acceptance, 14 
 
 so may there be an acceptance without any receipt, 14 
 
 so long as vendee can, without self-contradiction, declare that 
 
 the goods are not to be taken in full payment of the contract, 
 
 he has not accepted them, 14 
 immaterial whether his refusal be reasonable or not, 14 
 question is not whether he ought to accept, but wlaether he has 
 
 accepted, 15 
 receipt of part of the goods, 15 
 or acceptance of actual control is sufficient, 15 
 delivery must be with intent of vesting the right of posses 
 
 sion, 15 
 acceptance must also be with intent to take the possession as 
 
 owner, 15 
 no act of the vendor alone will satisfy the statute, 15
 
 Index. 171 
 
 BkQUISITES op CONTBACTS op sale — Continued. 
 
 thoro must be some act of the vendee, 15 
 
 neither is mere delivery sufficient, 15 
 
 there must be acceptance and receipt, 15 
 
 they need not be simultaneous with tlie verbiil contract of 
 
 sale, 15 
 sufficient if they take place within a reasonable time after- 
 ward 15 
 acceptance may be by sample, if that taken diminishes the 
 
 bulk, 15 
 not if otherwise, 15 
 Constructive acceptance, 16 
 acceptance required by statute may be constructive, 16 
 question whether facts proven amount to a constructive accept- 
 ance, is one of fact, not of law, 16 
 if facts are not in dispute, it belongs to the court to determine 
 
 their legal effect, 16 
 acceptance may be inferred when vendee deals with the goods 
 
 as his own, 16 
 as taking possession of bill of lading, 17 
 marking or permitting another to mark goods with name of 
 
 vendee, 17 
 acceptance of an order for the goods, 17 
 acceptance of part of the goods sufficient, 17 
 although a portion is still to be manufactured, 17 
 but there must be acts of such a character as to place the goods 
 
 within the power of the vendee as absolute owner, 17 
 discharging all lien for the price, 17 
 delivery to a common carrier would constitute a receipt, but not 
 
 an acceptance, 17 
 receipt and unpacking of the goods by the vendee do not 
 
 amount to acceptance, 17 
 unless he keep them for an unreasonable time, 1 7 
 there is no acceptance, unless vendee has exercised his option 
 
 to receive the goods, 17 
 or has done something to deprive him of his option. 17 
 Earnest and part jiayment-' 
 
 verbal contract valid, and proof of it competent, if something 
 
 in earnest of part payment of the price be given, 18 
 common law rule not changed by statute, IS 
 payment may be shown by parol evidence, but proof of tender 
 
 is not competent, IS 
 there must be an actual acceptance of the money tendered, 19 
 not sufficient if money be deposited with a third person. 19 
 payment must be in money or its equivalent, 19 
 time of payment is not essential, except in New York, 19
 
 172 Index. 
 
 Requisites oP contracts of sale — Continued. 
 
 may be at time of sale or afterward, 19 
 
 by the vendee or his agent, 19 
 Memorandum — its form — 
 
 statute requires evidence that the agreement, or some note or 
 memorandum thereof, be in writing, 19 
 
 signed by party to be charged thereby, 19 
 
 or his lawful agent, 19 
 
 unless part payment, or delivery with acceptance, is shown, 19 
 
 form of memorandum not limited by statute, 19 
 
 may consist of a telegram, 19 
 
 a bill of parcels, 19 
 
 a statement of account, in which vendee charges himself with 
 goods received, 19 
 
 or the return of a sheriff on execution, 20 
 
 a vote of a corporation, entered on their records, signed by their 
 clerk, 20 
 
 or a written proposition, if supported by oral evidence of accept- 
 ance, 20 
 
 any number of papers taken together may make out the note or 
 memorandum, 20 
 
 but each must be signed by party to be charged, 20 
 
 and all the elements of the contract must appear, 20 
 
 or be legally presumable by what is stated. 20 
 Parties — 
 
 memorandum should show who are, 21 
 
 if signed by party to be charged, it is sufficient, if it appear with 
 reasonable certainty who other party is, 21 
 
 thus a letter addressed to vendor and signed by the vendee, 21 
 
 even though addressed to and received by the agent of the 
 vendor, 21 
 
 may be designated by their initials, 21 
 
 parol evidence being admissible to apply the description, 21 
 Price — 
 
 no price having been agreed upon, none need be stated in mem- 
 orandum, 21 
 
 law presumes a promise to pay a reasonable price, 21 
 
 where price is fixed, that is part of the bargain, 21 
 
 and must be shown in writing, 21, 22 
 
 memorandum being silent as to price, parol evidence is admissi- 
 ble to show that price was agreed upon, 22 
 
 price being indicated in the memorandum by figures or letters, 
 or both, it is sufficient to that extent, 22 
 
 or if it appear that price is to be determined by arbitration, 22 
 
 or the agreement is to pay same for which the property had been 
 previously sold, 22 
 
 or a moderate price, 22
 
 Index, 173 
 
 Requisites of contracts of sale — Continued. 
 
 memorandum being silent as to time of payment, a cash sale 
 will be presumed, 22 
 
 if credit is given, it must appear in memorandum, 22 
 
 need not appear whether deferred payments are to be with in- 
 terest, 22 
 
 where price in gross of articles sold at same time exceed sum 
 designated by statute, sale will fall within its provisions, 13 
 Signing — 
 
 memorandum must be signed by the party to be charged, or his 
 
 agent, 23 
 signature must be some mark or emblem intended to denote a 
 
 signature, 23 
 even though memorandum be in party's own hand, there must still 
 
 be a signature, 23 
 may consist of a mark, or initials, 23 
 or may be in printing, 23 
 
 or by stamp, if shown to have been adopted as a signature, 23 
 may be written with lead pencil, 23 
 location of signature is immaterial, 23 
 
 may be in the body of the paper, or at the beginning or end, 23 
 must be with intent to obligate, 23 
 may be made by third party at request, and in presence of party 
 
 to be charged, 23 
 may be signed by duly authorized agent, 23 
 or by a stranger, if afterward ratified, 23 
 a broker or auctioneer is agent of both parties, 23 
 memorandum signed by him is suflBcient, 23 
 SAFES— 
 
 conditional sales of sustained, 68 
 
 measure of damages for breach of warranty in sales of, 121 
 SALE OF GOODS TO ARRIVE— 
 
 can be either an executed sale subject to be aefeatea oy non-ar- 
 rival of goods, 82 
 or an executory contract to sell and buy, 82 
 the English cases do not settle what language it is necessary to 
 
 use, 83 
 opinion in leading case by Judge Blackburn, 83 
 quality, quantity, and price having been ascertained, and bill of 
 
 lading assigned, there would be a constructive delivery, 84 
 any other act ecjuivalent to assignment of bill of lading, eflfect 
 
 held to be the same, 84 
 SALE OR RETURN— 
 
 explained by queen's Dench, 81 
 
 sale with right to return within a reasonable time, 81
 
 174 Index. 
 
 Sale or return — Continued — 
 
 property passes and action will lie for price if not returned within 
 a reasonable time, 81 
 
 such is holding of our courts, 81 
 
 what is a reasonable time is a question of law, 81 
 
 to be determined by a view of all the circumstances of the partic- 
 ular case, 81 
 
 parol evidence of conversation of the partie? is admissible to show 
 the circumstances under which contract was made, 81 
 
 whether vendee has terminated sale by a return of the goods is a 
 question of fact, 81 
 
 if vendee materially impair the condition of the chattel, he can 
 not take advantage of the condition under which it was de- 
 livered, 82 
 
 but if injury be occasioned without vendee's fault, it has sometimes 
 been held not to lose his privilege of return, 82 
 SALES ON TRIAL OR APPROVAL— 
 
 no sale until approval is given, 58 
 
 either expressly or by implication, 58 
 
 failure to return in time specified makes sale absolute, 58 
 
 vendee is entitled to full time agreed upon for trial, 58 
 
 no time having been agreed upon, a reasonable time will be pre- 
 sumed, 58 
 
 vendee can not avoid payment by failure to make trial, 58 
 
 nor by the exercise of an arbitrary discretion, 58 
 
 day for trial, means entire day, 58 
 
 if trial involves consumption of what is tried, it becomes question 
 for jury, whether quantity consumed was more than was neces- 
 sary for trial, 58 
 SAW-MILLS— 
 
 conditional sales of sustained, 66 
 SAMPLE, SALES BY— 
 
 is equivalent to sale by description, 92 
 
 it implies that goods sold are of the quality of sample, 92 
 
 goods must be equal to sample by which they are sold, 93 
 
 in Pennsylvania it is a guaranty only that article to be delivered 
 shall follow its kind and be merchantable, 93 
 
 sale by sample must exclude an opportunity of inspection, 93 
 
 mnst be evidence that sale by sample was intended, 93 
 
 both parties must deal with sample with mutual understanding 
 that bulk is like it, 93 
 
 whether sale is by sample or not is a question of fact to be left to 
 jury, 93 
 
 vendor not being manufacturer, there is no implied warranty 
 against latent defects in sample or bulk, 93
 
 Index. 175 
 
 Sample, Salfs by — OmUnned. 
 
 but in action of vendor lor price, he must show that they corre- 
 spond with the sample, 94 
 vendee entitled to reasonable time to te^;t quality, 93 
 if defective, might set up damages for breach of warranty, 93 
 though not offering to return the goods, but retaining and using 
 them, 94 
 Acceptance by sample — 
 
 acceptance under statutes of frauds may be by, 15 
 that taken must diminish the bulk, 15 
 SEPARATION— 
 
 sales by number, weight, or measure, not complete until quan- 
 tity is ascertained, 30 
 if mixed with others not until separated, 30 
 that portion separated becomes property of vendee, 30 
 no difference whether contract is an entirety or not, 30 
 if in separation property deteriorates, through fault of the ven- 
 dor, vendee is not bound to receive, 30 
 in a contract to manufacture goods and sell them to another, no 
 
 property in material passes, 30 
 although a portion of the price be paid, 30 
 they must have been finished and set apart for the vendee, 30 
 with his assent and acceptance, 30 
 property having been separated title will pass, 30 
 that being intent of parties, 30 
 
 though vendor is required to do something in addition thereto, 30 
 SEWIXa MACHINES— 
 
 conditional sales of sustained, 68 
 
 rights of vendor not affected by replevin of machine, 68 
 this class of sales are neither chattel mortgages nor bailments, 68 
 machine being voluntarily given up, vendee has no right of ac- 
 tion, 08 
 
 SHARES OF STOCK— 
 
 contracts for sale of, held not within the statutes of frauds, 1] 
 
 also held to be within, 12 
 SOUNDNESS— 
 
 sound price implies a warranty of soundness is a much questionod 
 doctrine, 101 
 
 relates only to secret defects which can not by ordinary skill and 
 diligence be discovered, 101 
 
 such a warranty not excluded by a written contract of sale con- 
 taining an express warranty of title, 101 
 
 sale by maker implies a warranty against latent defects growing 
 out of the process of manufacture, 101
 
 176 Index. 
 
 Soundness — Continued. 
 
 but if unsoundness is understood and price is lesson that account, 
 no warranty arises, 101 
 
 vendee liable for a defect known to him and undisclosed, 101 
 
 perishable goods sold to be shipped to distant market implied war- 
 ranty arises that they are properly packed, 101 
 
 not that they will continue sound for any particular period, 102 
 
 unforeseen contingencies not covered by implied warranty, 102 
 
 proof of worthlessness of goods received not admissible to defeat 
 vendor's claim for price, 102 
 
 on sale of provisions as merchandise no implied warranty arises 
 that all are sound, 102 
 
 warranty that provisions are wholesome, if implied at all, arises 
 only where sold for immediate domestic use, 102 
 
 if sold for immediate domestic use, vendor, at his peril, is bound 
 to know they are sound and wholesome, 102 
 
 if not so he is liable on suit of vendee, 102 
 SPECIAL PURPOSE— 
 
 manufacturer or dealer contracting to supply article for particu- 
 lar purpose there is an implied warranty that it shall be reason 
 ably fit for that purpose, 95 
 
 on sale by manufacturer there is implied warranty that it will an- 
 swer purpose for which made, 95 
 
 if vendee inspects the article there is no warranty, 95 
 
 vendor not being manufacturer and particular use is not commu- 
 nicated there is no implied warranty, 95 
 
 vendor being manufacturer there is implied warranty of fitness 
 for special purpose, 95 
 
 particular use not being disclosed, there would be implied warranty 
 of reasonable fitness for purpose for which ordinarily used, 95 
 
 if manufactured in accordance with specific directions given, no 
 implied warranty arises, 96 
 
 sufficient if article so manufactured fill the terms of contract, 96 
 
 manufacturer who for a fair price undertakes to manufacture for 
 a particular purpose impliedly warrants that it will perform all 
 operations and purpose of articles of a particular kind, 96 
 
 not of articles of a different kind though of same general class, 96 
 
 purpose being made known to manufacturer, warranty arises not 
 only that article is fit for such purpose, but free from latent de- 
 fects, 96 
 
 rule applied to sales of steam boilers, 96 
 
 leather by a manufacturer to a shoemaker, 96 
 
 pianos to a dealer, 96 
 
 a wind-mill, 96 
 
 and whisky barrels, 96
 
 Index 177 
 
 Spbcial prRPOSE — Cnntinued. 
 
 material to be used being specified, manufacturer not liable upon 
 
 implied warranty thereof, 96 
 having exercised ordinary diligence in selecting material, 96 
 special tiling being ordered, though for special purpose, warranty 
 
 does not arise, 97 
 same true of sale of specific article selected by vendee. 97 
 if sale be of specific article in its then state, there is no implied 
 
 warranty of fitness or merchantable quality, 97 
 but if sold for particular purpose there would be, 97 
 failure of warranty ground of rescission of contract, 97 
 part payment, in ignorance of unfitness, will not estop vendee 
 
 from setting up breach, 97 
 vendee seeking rescission, where it is his duty to expend labor 
 
 and skill, impliedly warrants that unfitness is not occasioned by 
 
 his fault, 97 
 
 SPECIFIC PERFORMANCE— 
 
 statutes of frauds does not abridge powers of court to compel, 10 
 
 STATUTE OF FRAUDS, as applied to sales, 8 
 Provisions of statutes of various states, 8 
 
 prevalence of adoption, 8 
 
 contracts not to be performed within a year must be in writing, 
 signed by the party to be charged, or by his agent, 9 
 
 some states, statute not applicable where contract does not indi- 
 cate that it is not to be performed within a year, 9 
 
 some states, he who is authorized to sign the contract or memo- 
 randum for party to be charged must be authorized in writing, 9 
 
 contracts for sale of goods in excess of certain sums not valid, ex- 
 cept the vendee accept and receive part of the goods, 9 
 
 or some note or memorandum is signed, 9 
 
 or some thing is given in earnest, 9 
 
 or part payment, 9 
 
 in Georgia, statute applicable whether goods are in esse or not. 10 
 
 not apijlicable in Iowa, if labor, skill, or money are necessary to 
 produce, 10 
 
 while in California and Dakota, an agreement to manufacture is 
 excepted, 10 
 
 statute does not abridge powers of court to compel specific per- 
 formance, 10 
 Affects remedy only — 
 
 purpose of statutes, 10 
 
 do not declare contract void, 10 
 
 if executed, rights of parties not changed, 10, 11 
 
 its operation, 10, 11 
 
 12
 
 178 Index. 
 
 Statute of T^A^r^'?:— Continued. 
 
 no enforcement of contract can be liad until provisions of statute 
 
 have been complied with, 11 
 Application of sUitutrs of frauds — 
 
 decisions as to varied and conflicting, i I 
 
 shares of stock and choses in action, contracts for sale of. held not 
 
 within the statute, 1 1 
 bank notes, promissory notes, shares of stock in an incorporated 
 
 company, wheat, and iron, contracts for sale of, field within the 
 
 statute, 12 
 auction sales are within statute, 12 
 contracts executory not excluded, 12 
 
 nor will the future delivery take the case out of the statute, 12 
 but if skill, labor, care, or knowledge is to be used in producing, 
 
 it is not within the statute, 12 
 an agreement to manufacture is not within the statute, 12 
 contract to send to Europe and have goods manufactured for 
 
 another is a contract of agency, and not of sale, 13 
 where price in gross of articles sold at same time exceed sum 
 
 designated by statute, sale will fall within its provisions, 13 
 statute does not apply where delivery takes place within a year, 13 
 although price is not paid until after the lapse of that time, 13 
 Acceptance of goods under the statutes of fraud — 
 acceptance is essential, 14 
 vendee must both accept and receive, 14 
 there may be an actual receipt without any acceptance, 14 
 60 there may be an acceptance without any receipt, 14 
 so long as vendee can, without self-contradiction, declare that the 
 
 goods are not to be taken in fulfillment of the contract, he has 
 
 not accepted them, 14 
 immaterial whether his refusal be reasonable or not, 14 
 question not whether he ought to accept, but whether he has ac- 
 cepted, 15 
 receipt of part of the goods, 15 
 or acceptance of actual control is sufficient, 15 
 delivery must be with intent of vesting right of possession, 15 
 acceptance must also be with intent to take the possession as 
 
 owner, 15 
 no act of vendor alone will satisfy the statu' 15 
 there must be some act of the vendee, 15 
 mere delivery is not sufficient, 15 
 there must be acceptance and receipt, 15 
 
 they need not be simultaneous with the verbal contract of sale, 15 
 sufficient if they take place within a reasonable time afterward, 15 
 acceptance may be by sample, if that taken diminishes the buifc, 15 
 not, if otherwise, 15
 
 Index. 179 
 
 Stitute of frauds — Continued. 
 
 Chnstrucl'ive acceptance under the statute of frauds — 
 
 acceptance required by statute may be constructive, 16 
 
 question whether facts proven amount to a constructive accept- 
 ance is one of fact, not of law, IG 
 
 if facts are not in dispute, it belongs to the court to ietermine 
 their legal effect, 16 
 
 acceptance may be inferred when vendee deals with tlie goods aa 
 his own, 16 
 
 as taking possession of bill of lading, 17 
 
 marking or ))ermitting another to mark goods with name of ven- 
 dee, 17 
 
 acceptance of an order for the goods, 17 
 
 acceptance of part of the goods, 17 
 
 although a portion is still to be manufactured, 17 
 
 but there must be acts of such a character as to place the goods 
 within the power of the vendee as absolute owner, 17 
 
 discharging all lien for the price, 17 
 
 delivery to a common carrier would constitute a receipt, but not 
 an acceptance, 17 
 
 receipt and unpacking do not amount to acceptance, 1 7 
 
 unless goods are kept an unreasonable time, 17 
 
 vendee must exercise his option to receive, 17 
 
 or have done something to deprive him of his option, 17 
 Earnest and part payment — 
 
 verbal contract valid, and proof of it competent if eometbing in 
 earnest or part payment of the price be given, 18 
 
 common-law rule not changed by statute, 18 
 
 payment may be shown by parol evidence, 18 
 
 but proof of tender is not competent, 18 
 
 money tendered must be actually accepted, 19 
 
 not sufficient if money deposited with a third person, 19 
 
 payment must be in money or its equivalent, 19 
 
 time of payment is not essential, except in Xew York, 19 
 
 may be at time of sale or afterward, 19 
 
 by the vendee or his agent, 19 
 Memorandum, its form — 
 
 statute requires evidence that the -agreement or some note or memo- 
 randum thereof be in Avriting, 19 
 
 ^gned by tiie party to be charged thereby, 19 
 
 or his lawful agent, 19 
 
 unless part payment, or delivery with acceptance is shown, 19 
 
 form of memorandum not limited by statute, 19 
 
 may consist of telegram, 1 9 
 
 a bill of parcels, 19
 
 180 Index. 
 
 Statute op frattds — Continued. 
 
 a statc-ment of account, in which vendee charges himself with 
 goods received, 19 
 
 or the return of a sheriflF on execution, 20 
 
 a vote of a corporation entered on their recoras and signed by 
 their clerk, 20 
 
 or a ^vritten proposition, if supported by oral evidence of accept- 
 ance, 20 
 
 any number of papers taken together may make out the note or 
 memorandum, 20 
 
 but each must be signed by party to be charged, 20 
 
 all the elements of contract must appear, 20 
 
 or be legally presumable by what is stated, 20 
 Parties — • 
 
 memorandum should show who are, 21 
 
 if signed by party to be charged, it is sufficient if it appear with 
 reasonable certainty who other party is, 21 
 
 thus a letter addressed to vendor and signed by the vendee, 21 
 
 even though addressed to and received by the agent of the ven- 
 dor, 21 
 
 may be designated by their initials, 21 
 
 parol evidence being admissible to apply the description, 21 
 Price — 
 
 no price having been agreed upon, none need be stated in memo- 
 randum, 21 
 
 law presumes a promise to pay a reasonable price, 21 
 
 where price is fixed, that is part of the bargain, 21 
 
 and must be shown in writing, 21, 22 
 
 memorandum being silent as to price, parol evidence is admissi- 
 ble to show that price was agreed upon, 22 
 
 price being indicated in the memorandum by figures or letters or 
 both, it is sufficient to that extent, 22 
 
 or if it appear that price is to be determined by arbitration, 22 
 
 or the agreement is to pay same for which the property had been 
 previously sold, 22 
 
 or a moderate price, 22 
 
 memorandum being silent as to time of payment, a cash sale will 
 be presumed, 22 
 
 if credit is given, it must appear in memorandum, 22 
 
 need not appear whether deferred payments are to be with inter- 
 est, 22 
 
 where price in gross of articles sold at same time exceed sum 
 designated by statute, sale will fall within its provisions, 13 
 Signing — 
 
 memorandum must be signed by the party to be charged, or his 
 agent, 23
 
 Index. 181 
 
 Statute of frauds — Continued. 
 
 signature must be some mark or emblem intended to denote a 
 signature, 23 
 
 even though memorandum be in party's own hand, there must be 
 a signature, 23 
 
 may consist of a mark or initials, 23 
 
 or may be in printing, 23 
 
 or by stamp, if shown to have been adopted as a signature, 23 
 
 may be written with lead pencil, 23 
 
 location of signature is immaterial, 23 
 
 may be in body of the paper; or at the beginning or end, 23 
 
 must be with intent to obligate, 23 
 
 may be made by third party, at request and in presence of party 
 to be charged, 23 
 
 may be signed by the duly authorized agent, 23 
 
 or by a stranger if afterward ratified, 23 
 
 a broker or auctioneer is agent of both parties, 23 
 
 memorandum signed by him is sufficient, 23 
 STATUTORY REQUIREMENT, 77 
 
 only applicable to contracts containing express conditions of 
 sale, 78 
 
 in many states, to be valid as against third parties, contract must 
 be filed as chattel mortgage, 78 
 
 filing must be in town or township where vendee resides, 78 
 
 except in New Hampshire, Vermont, and Nebraska, where, if 
 vendee is a non-resident, filing may be at residence of ven- 
 dor, 78 
 
 in Vermont, such filing must be within thirty days of the sale, 78 
 
 in New Hamj)shire, time shortened to ten days, 78 
 
 eflfect of record will not extend beyond one year in Wisconsin, 78 
 
 and five in Nebraska, 78 
 
 unless renewed from time to time, 78 
 
 contract good in other states without filing, 78 
 
 only a note or other evidence of indebtedness given, is void as 
 against creditors and subsequent purchasers, unless recorded, 79 
 
 in New York and Minnesota, record ceases to be noticed after one 
 year, 79 
 
 in New York, provisions of statute do not apply to sales of house- 
 hold goods, pianos, engines, and machinery, 79 
 
 if contract is executed in duplicate, 79 
 
 in New Hampshire, aflSdavit of good faith, signed by both parties 
 is required, 79 
 
 foreclosures, mode of, prescribed in but few states, 79 
 
 in New York and Vermont, vendor may retake the property thirty 
 days after condition broken, 79 
 
 but in Maine, property is subject to redemption, 79
 
 182 Index. 
 
 Statutory REpriREMENT — Continued. 
 
 in Missouri and Oliio, it is unlawful for vendor to seize the prop- 
 erty without refunding a portion of payments, 79 
 
 statutes not interpreted by courts, 79 
 
 can only apply where vendor seeks to take jiossession without in- 
 tervention of law, 79 
 
 can not abridge remedial rights, 79 
 
 statutes not applicable in sales on consignment, 80 
 
 nor sales to an agent or sub-agent of vendor, 80 
 STOCK— 
 
 conditional sales of, do not cover increase accruing before per- 
 formance of condition, 65 
 
 increase belongs to vendor, 65 
 
 need not be mentioned in memorandum, 65 
 
 to protect vendor's title to increase, even against a bona fide pur- 
 chaser, 65 
 STOLEN OR LOST PROPERTY— 
 
 no title can be acquired in stolen or lost property, 4 
 
 may be recovered, 4 
 SUBJECT OF SALE— 
 
 a hope or expectation may be, 5 
 
 mere possibility or contingency not, 5 
 
 if subject of sale has ceased to exist at time of sale, there would 
 be no sale, 5 
 
 if price had been paid, it may be recovered, 5 
 
 SYMBOLICAL, OR CONSTRUCTIVE DELIVERY— 
 rule formulated by Lord Ellenborough, 34 
 where goods are ponderous, delivery may be, 34 
 each case dependent upon nature and situation of property, 35 
 delivery of deed of transfer of ship at sea passes title, 35 
 cargo may be transferred by bill of lading or invoice, 35 
 in each case must be with intent to transfer title, 35 
 
 TELEG RAM- 
 acceptance of proposition may be by, 5 
 
 TENDER— 
 
 if proper, is equivalent to payment, 54 
 
 requires a production and offer to vendor of an amount of money 
 equal to price, 54 
 
 production of money may be dispensed with by vendor, 54 
 
 the mere offer to pay does not amount to a tender, 54 
 
 if vendee is prevented from producing the money by the contriv- 
 ance or evasion of vendor, it will be a sufficient excuse, 54 
 
 tender of larger sum than due, with demand for change, is not 
 good, 54 
 
 nor of a part of the sum due, 55
 
 Index. 183 
 
 Tender — Continued. 
 
 may tender gross amount of several demands, 55 
 
 tender of balance due, after deducting set-off, not good, 55 
 
 may pay entire sum due into court, and then plead a set-off, 55 
 
 offer of a promissory note signed by vendor is not a good ten* 
 der, 55 
 
 vendee has no right to insist that vendor shall admit that no more 
 is due, 55 
 THRESHING MACHINES— 
 
 conditional sales of, sustained, 66 
 
 conditions may be embodied in note, 66 - 
 
 representations that it is a good machine do not amount to a war- 
 ranty, 123 
 
 execution of renewal notes, held presumptive evidence of waiver 
 of damages for breach of warranty, 127 
 TIME OF DELIVERY— 
 
 where contract expresses the time of delivery, it is a question of 
 construction for the court, 38 
 
 when not fixed by contract, must be within a reasonable time, 34 
 
 month is construed as a calendar month, 38 
 
 unless contrary meaning clearly indicated, 38 
 
 certain number of days construed as consecutive, 39 
 
 Sundays included, 39 
 
 day of making contract should be excluded in computing time, 39 
 
 between two days includes the last day, 39 
 
 readiness at time and place designated held sufficient, 39 
 
 place not being designated, tender a convenient time before mid- 
 night sufficient, 39 
 
 place being designated, tender must be during day light, and a 
 convenient time before sunset, 39 
 
 contract to deliver " as fast as produced " construed, 39 
 
 "prompt shipment" construed, 39 
 
 contract to ship within "certain specified months" construed, 40 
 
 delivery and acceptance after the agreed time does not of itself 
 work a reduction of price, 40 
 
 if notes are given for goods to be delivered at a future day, a fail- 
 ure to so deliver will constitute a failure of consideration, 40 
 TITLE— 
 
 only the owner, his agent, or legal representatives can give valid 
 title, 4 
 
 who are legal representatives, 4 
 
 vendee acquires no better title than his vendor, 4 
 
 title can not be acquired to lost or stolen property, 4 
 
 lost or stolen property may be recovered, 4 
 Warranbi of title — 
 
 arises where one in possession of property sells it as nis own, 88
 
 184 Index. 
 
 Title — Continued. 
 
 unless circumstances show intent to transfer interest only, 88 
 
 held that possession is equivalent to an affirmation of title, 88 
 
 held that warranty of title is always implied, 88 
 
 though nothing whatever is said about title, 88 
 
 same rule applies in settlement between debtor and creditor, 88 
 
 where property wholly outside of difference between the parties 
 
 is given in payment, 88 
 caveat emptor applies if possession be in another, 88 
 constructive possession is sufficient to warrant title, 89 
 not essential to have immediate physical control, 89 
 no implied warranty if vendor have neither title nor possession at 
 
 time of sale, 89 
 where title, and not the thing itself, is subject of sale, there is no 
 
 implied warranty, 89 
 but after acquired title will inure to benefit of vendee, 89 
 subject of sale being exclusive right to manufacture there is t^ 
 
 warranty of title, 89 
 written bill of sale containing no warranty, one can not be im- 
 plied, 89 
 no implied warranty of title in sales by a known agent, 89 
 administrators, executors, or sheriff, or other officer of law, 89 
 nor on execution sales, 89 
 TRANSFER OF PROPERTY— 
 
 held not essential to pass title, 7 
 
 becomes essential, if delivery, by the terms of contract, is one of 
 
 the conditions thereof, 7 
 VOLUNTARY ASSENT— 
 
 of competent parties essential in contracts of sale, 5 
 WARRANTIES, IMPLIED— 
 
 warranty not an essential element of contract, 86 
 
 it is a collateral undertaking, a mere incident, 86 
 
 forms part of contract by agreement, 86 
 
 are of two kinds, implied or expressed, 86 
 
 a mere contract of sale does not imply a warranty, 86 
 
 element of intent necessary to constitute a warranty, 86 
 
 where there is no express warranty, an implied warranty m**^ 
 
 arise, 86 
 written memorandum containing express warranties upon some 
 
 points does not preclude warranty otherwise implied by law, 86 
 vendor refusing to warrant, there can be no pretense of raising an 
 
 implied warranty, 86 
 what amounts to a refusal to warrant is a question for jury, 87 
 evidence of usace inadmissible to affect an implied warranty, 87 
 doctrine of implied warranties applies to property exchanged, 87
 
 Index. 186 
 
 Warranties, Implied — CoiHinned. 
 
 may arise in case of executory contract where defect is incapable 
 
 of discovery at time of sale, 87 
 in such cases vendee may retain property and sue upon war- 
 ranty, 87 
 warranty will not be implied to cover defects visible, 87 
 caveat emptor applies where vendee has an opportunity to in- 
 spect, 87 
 caveat emptor not iipplicable to sales of drugs, 87 
 Warranty of title — 
 arises where one in j^ossession of property sells it as his own, 88 
 unless circumstances show intent to transfer interest only, 88 
 held that possession is equivalent to an affirmation of title, 88 
 held that warranty of title is always implied, 88 
 though nothing whatever is said about title, 88 
 same rule applies in settlement between debtor and creditor, 88 
 where property wholly outside of difference between the p9,rtie8 is 
 
 given in payment, 88 
 caveat emptor applies if possession be in another, 88 
 constructive possession is sufficient to warrant title, 89 
 not essential to have immediate physical control, 89 
 no implied warranty if vendor have neither title nor possession at 
 
 time of sale, 89 
 where title, and not the thing itself, is subject of sale, there is no 
 
 implied warranty, 89 
 but after acquired title, will inure to benefit of vendee, 89 
 subject of sale being exclusive right to manufacture, there is a 
 
 warranty of title, 89 
 written bill of sale containing no warranty, one can not be im- 
 plied, 89 
 no implied warranty of title in sales by a known agent, 89 
 administrators, executors, or sheriff, or other officer of law, 89 
 nor on execution sales, 89 
 Quality, warranty of — 
 on a fair sale, no implied warranty of, 90 
 caveat emptor applies in absence of fraud, 90 
 warranty will not be implied from payment of full price, 91 
 vendee may rely upon supposition that vendor knows condition 
 
 and quality of goods, 91 
 unreasonable rules of board of trade as to inspection of provisions 
 
 does not apply, 91 
 representations made by vendor relied upon by vendee amount to 
 
 a warranty, 91 
 words of description in contract or bill of parcels will not amount 
 
 to a warranty, 91 
 nor will a mere praise of personal property, if vendee has an op- 
 portunity to examine, 91
 
 186 Index. 
 
 Warranties, Implied — Continued. 
 
 where goods are open to inspection and are examined, there is no 
 implied warranty of quality 91 
 
 same rule applies where goods are in possession of vendee at time 
 of sale, 91 
 
 no implied warranty of quality beyond conformity to model or de- 
 sign in sales by, 91 
 
 vendor who makes no warranty or assurance can not be answer- 
 able for defects, latent or otherwise, of which he had no knowl- 
 edge, 91 
 
 question, of warranty of quality is for court, if contract of sale is 
 made solely by correspondence, 92 
 Sale by sample — 
 
 is equivalent to sale by description, 92 
 
 it implies that goods sold are of the quality of sample, 92 
 
 goods must be equal to sample by which they are sold, 93 
 
 in Pennsylvania, it is a guaranty only that article to be delivered 
 shall follow its kind and be merchantable, 93 
 
 sale by sample must exclude an opportunity of inspection, 93 
 
 must be evidence that sale by sample was intended, 93 
 
 both parties must deal with sample, with mutual understanding 
 that bulk is like it, 93 
 
 whether sale is by sample or not is a question of fact to be left to 
 jury, 93 
 
 vendor not being manufacturer, there is no implied warranty 
 against latent defects in sample or bulk, 93 
 
 but in action of vendor for price, he must show that they corre- 
 spond with the sample, 93 
 
 vendee entitled to reasonable time to test quality, 93 
 
 if defective, might set up damages for breach of warranty, 93 
 
 though not offering to return the goods, but retaining and using 
 them, 94 
 Description — 
 
 sales of article known in the market by a particular name, a war- 
 ranty is implied that article is of kind, character, and descrip- 
 tion, 94 
 
 vendee not having seen the article, and meaning of description 
 being known to the parties, 94 
 
 not necessary that article, when delivered, should be of any certain 
 quality of the brand, 94 
 
 in absence of fraud, vendor can only be called upon to deliver 
 article of the specified brand, 94 
 Special purpose — 
 
 manufacturer or dealer contracting to supply article for particular 
 purpose, there is an implied wari'anty that it shall be reasonably 
 fit for purpose, 95
 
 In<hx. * 187 
 
 Warranties, Implied — Omtiymed. 
 
 on sale by manufacturer, there is implied warranty that it will an- 
 swer purpose for which made, 95 
 
 if vendee inspects the .-irtiole, there is no warranty, 95 
 
 vendor not being manufacturer, and particular use is not commu- 
 nicated, there is no implied warranty, 95 
 
 vendor being manufacturer, there is implied warranty of fitness 
 for special purpose 95 
 
 particular use not being disclosed, there would be implied war- 
 ranty of reasonable fitness for purpose for which ordinarily 
 used, 95 
 
 if manufactured in accordance with specific directions given, no 
 implied warranty arises, 96 
 
 sufficient if article so manufactured fill the terms of contract, 96 
 
 manufacturer who for a fair price undertakes to manufacture for 
 a particular purpose, impliedly warrants that it will perform 
 all operations and purpose of articles of particular kind, 96 
 
 not of articles of a different kind, though of same general class, 96 
 
 purpose being made known to manufacturer, warranty arises not 
 only that article is fit for such purpose, but free from latent de- 
 fects 96 
 
 rule applied to sales of steam boilers, 96 
 
 leather by a manufacturer to a shoemaker, 90 
 
 pianos to a dealer, 96 
 
 a wind-mill, 96 
 
 and whisky barrels 96 
 
 material to be used being specified, manufacturer not liable upon 
 implied warranty thereof, 96 
 
 having exercised ordinary diligence in selecting material, 96 
 
 special thing being ordered, though for special purpose, warranty 
 does not arise, 97 
 
 same true of sale of specific article selected by vendee, 97 
 
 if sale be of specific article iu its then state, there is no implied 
 warranty of fitness or merchantable quality, 97 
 
 but if sold for particular purpose there would be, 97 
 
 failure of warranty ground of rescission of contract, 97 
 
 part payment, in ignorance of unfitness, will not estop vendee 
 from setting up breach, 97 
 
 vendee seeking rescission, where it is his duty to expend labor 
 and skill impliedly warrants that unfitness is not occasioned by 
 his fault. 97 
 Merchantable character — 
 
 merchandise sold to arrive, which neither party can inspect caveat 
 venditor should apply, 99 
 
 there is implied engagement that article should be merchant- 
 able, 99
 
 188 Index. 
 
 Warranties, Implied — Continued. 
 
 same rule applies where manufacturer or dealer undertakes to 
 supply article, 99 • 
 
 vendee not havinjr opportunity to inspect, 99 
 
 rule of board of tr;ide will have no application to prevent implied 
 warranty, 99 
 
 rule of implied warranty of merchantable character is extended 
 to merchants, 99 
 
 no implied warranty, where vendee has equal opportunity for 
 knowledge, and vendor is not the manufacturer, 99 
 
 in complete contract, there being no warranty, false representa- 
 tions, or fraudulent concealments, vendee takes property re- 
 gardless of defects, 99 
 
 in executory contracts obligation always arises that article shall 
 be merchantable, 99 
 
 at least without any unreasonable defect, 100 
 
 vendee can not insist that article shall be of any special degree of ' 
 fineness, 100 
 
 he may insist that it shall be of medium quality or goodness, 100 
 
 free from such defects as would render it unmerchantable, or un- 
 fit for purpose for which ordinarily used, 100 
 
 rule applied to sale of wheat, gnano, superphosphate, ice, and 
 lumber, 100 
 
 rule does not apply to sales of residuum, or refuse of manufactur- 
 ing establishments, 100 
 Soundness — 
 
 sound price implies a warranty of soundness is a much questioned 
 doctrine, 101 
 
 relates only to secret defects which can not by ordinary skill and 
 diligence be discovered, 101 
 
 such a warranty not excluded by a written contract of sale con- 
 taining an express warranty of title, lUl 
 
 sale by maker implies a warranty against late-nt defects growing 
 out of the process of manufacture, 101 
 
 but if unsoundness is understood, and price is less on that ac- 
 count, no warranty arises, 101 
 
 vendee liable for a defect known to him and undisclosed, 101 
 
 perishable goods sold to be shipped to distant market implied 
 warranty arises that they are properly packed, 101 
 
 not that they will continue sound for any particular period, 102 
 
 unforeseen contingencies not covered by implied warranty, 102 
 
 proof of worthlessness of goods received not admissible to de- 
 feat vendor's claim for price, 102 
 
 on sale of provisions as merchandise no implied warranty arises 
 that all are sound, 102
 
 Index. 189 
 
 Warbantiks, Implied — Continued. 
 
 warranty that provisions are wholesome, if implied at all, arises 
 
 only where sold ior immediate domestic use, 102 
 if sold for immediate domestic use, vendor, at his peril, is bound 
 
 to know they are sound and wholesome, 102 
 if not so he is liable on suit of vendee, 102 
 Express warranties — 
 
 What amounts to a v)arranty — 
 no precise form of expression required, 103 
 must be an affirmation to the quality or condition of the thing 
 
 sold made at the time of sale, 103 
 must be with purpose of assuring the vendee, and inducing him 
 
 to purchase, 103 
 and must have been so received and relied on by vendee, 103 
 distinction as to legal effect of expressions, 103 
 when representation is positive, and relates to a matter of fact, 
 
 it constitutes a warranty, 103 
 when it is a matter of opinion, or fancy, it does not amount to 
 
 a warranty, 103 
 also depends upon understanding or intent of parties, 103 
 representations to be relied on to make a warranty, must be so 
 
 made as to show that vendor intended to be bound, 104 
 and must have been relied upon by the vendee, 104 
 whether what passed between the parties amounted to a war- 
 
 anty or not is a question for jury, 104 
 unless language used has a fixed or technical meaning, 104 
 questionfor jury isnot as to intent, but as to fact of wairanty, 104 
 intent to warrant may be inferred from words used, the circum- 
 stances and subject-matter, 104 
 question whether express warranty was, or was not made, is 
 
 one alone for jury, 104 
 representations as to kind and quality of article sold on which 
 
 vendee relies, and is known, and intended by vendor to rely, 
 
 the article not being present, such representations amount to 
 
 a warranty, 104 
 use of words descriptive of quality in sale note of flour amount 
 
 to a warranty, 104 
 use of words, "goori milling Hour,'' constitutes a warranty of 
 
 quality, 104 
 so of flour in barrels that it is in quality superfine, 105 
 of fruit, that it was first class, 105 
 of oil, that it was prime winter oil, 105 
 of wool in sacks, quality being marked on sacks, 105 
 an agreement to protect the sale from infringement construed 
 
 as a warranty that article sold was not an infringement of any 
 
 patent, 105
 
 190 Index. 
 
 Warranties, Express — Continued. 
 
 representations as to fitness of thing sold for a particular pur- 
 pose, intended as part of contract and relied upon by vendee, 
 
 amount to a warranty, 105 
 as in sale of hay elevator that it would work in all kinds of 
 
 hay, grain, straw, and other grass, 105 
 of machinery ordered for a special purpose, 105 
 of goods to be manufactured to correspond in quality to certain 
 
 other goods, 105 
 of material to be equal in quality to any brand of the same 
 
 material, 105 
 misrepresentations as to character or condition of article made 
 
 to influence the bargain, and having that effect, are equivalent 
 
 to warranties, 105 
 whether made innocently or fraudulently, 105 
 whether inserted in contract or not, 105 
 representations amounting to warranty not deprived of that 
 
 character by fact that they were false and fraudulently 
 
 made, 105 
 transaction can not be characterized as a warranty and a fraud 
 
 at the same time, 105 
 warranty may arise by designating goods in bill of parcels by 
 
 name well understood, 106 
 by a reasonable and established custom or usage of trade, 106 
 by reference to a printed warranty contained in a circular, 106 
 any thing may, by contract, be made the subject of sale, 106 
 but a warranty of title in bill of sale is an exclusion of all other 
 
 warranties, 106 
 can not, however, be fairly construed to intend an exclusion of 
 
 implied warranty of soundness, 106 
 warranty may be verbal or in writing, 106 
 may be made while parties are in treaty for sale, 106 
 although sale does not take place until some time afterward, 106 
 may be made at close of sale, 106 
 
 if made after contract of sale is completed, it is inoperative, 106 
 unless there is some new consideration, distinct from that of the 
 
 sale to sustain it, 106 
 agent authorized to sell may warrant, 106 
 
 notwithstanding any private instructions unknown to vendee, 107 
 joint owner not bound by false representations or warranty of 
 
 other joint owners, 107 
 but where joint owner of property authorized to sell warrants, 
 
 other joint owners bound to contribute to the loss, upon fail- 
 ure of warranty, 107 
 What does not amount to a warranty — 
 mere aflBrmation that thing is good or sound, 108
 
 Index. 191 
 
 Warranties, Expkejjs — Cmtinurd. 
 
 gencnil praise, commendation or beliof, 108 
 
 representation made in course of negotiating contract of sale after- 
 ward f>mitled from written contract, I OS 
 
 parol evidence not being admissible to add a warranty to a written 
 contract of sale, lOS 
 
 written warranty gratuitously given after the sale will not super- 
 sede an oral one given at time of sale, 109 
 
 statements in circulars can not be relied upon as a warranty, 109 
 
 warranty as to quality not a warranty of value, 109 
 
 statements as to price not jealously watched in law, 109 
 
 representations may relieve vendee from use of care, caution, and 
 observation required if not made, 109 
 
 but obvious defect is not cured by warranty, 109 
 
 same prirtciple should apply in case of false representations, 109 
 
 if representations prove to be utterly false, that will not amount 
 to a warranty in itself, 109 
 
 for jury to say whether representations were fraudulently made, 
 
 . 109 
 
 all representations made at time of sale do not amount to a war- 
 ranty, 110 
 
 they must have been relied on by vendee, and understood by th«» 
 parties as an absolute assertion, 110 
 
 not the expression of an opinion, 110 
 
 mere " dealers' talk" will not amount to a warranty, 110 
 
 or representation that plow stock would sell well, 1 10 
 
 statement that co.st of goods would amount to a certain sum, 110 
 
 description of iron as mill iron, 110 
 
 description of tobacco as good, first, and second rate, 110 
 
 each held mere expressions of opinion not amounting to a war- 
 ranty, 110 
 
 use of words approved standard quality, 110 
 
 and blue vitriol sound and in good order, 110 
 
 held not to raise an express warranty, 110 
 
 having been used as a commercial designation, 111 
 
 designating merchandise in bill as particular kind imposes no ob- 
 ligation as to quality. 111 
 
 failure to deliver quality mentioned, is a failure of contract, not of 
 warranty, 111 
 
 express warranty of quality excludes implied warranty of fitness 
 for intended purpose. Ill 
 
 public officer making an official sale, makes no warranty, unless by 
 express contract. 111 
 Effect of a warrant'/ — 
 
 article not being as warranted, vendee may return it, 112
 
 192 Index. 
 
 Warraxtiics, Expkf.s? — Continued. 
 
 or offer to leturu it witliin a reasonable time where the time is not 
 fixed by contract, 112 
 
 or may retain it and recover damages for breach, 1 12 
 
 may by taking express warranty, be relieved of oljligalion to re- 
 turn the property, 112 
 
 and still hold vendor responsible for deficiency, 112 
 
 vendee can not avoid payment by exercise of an arbitrary opinion, 
 112 
 
 defect must be such as to amount to a breach of contract, 1 12 
 
 retention of goods after time limited renders vendee liable for 
 price, 1 1 3 
 
 express warranty extends to. all defects, 113 
 
 warranty of soundness may cover patent defects, 113 
 
 examination and appropriation of warranted articles is not a 
 waiver of the contract, 113 
 
 vendee not bound to rescind on discovering a breach, 1 13 
 
 may recover damages for breach, 1 13 
 
 in the sale of material to be manufactured into articles of mer- 
 chandise, vendee not bound to apply tests before using, 113 
 
 if bought to combine with other material, and part are found de» 
 fective, vendee may refuse to use, 113 
 
 if sold for particular use and warranted " perfect," it means per- 
 fect for intended use, 1 14 
 
 "to satisfy trade," meaning of, 114 
 
 obligations of express warranty are concurrent, 114 
 
 yet obligations may be waived, 1 14 
 
 failure to insist on payment for breach of warranty will not 
 amount to waiver, 114 
 Breach of warranty, and rescission — 
 
 latent defect which develops into a serious injury is a breach of 
 warranty, 115 
 
 as in sale of a soda fountain defective in construction, 115 
 
 if article is to be set up and operated in a certain way, it must so 
 be operated, 115 
 
 one seeking rescission because of fraud must offer to rescind on 
 discovery, 1 16 
 
 must offer to return the consideration or thing received, 116 
 
 unless it be worthless, 116 
 
 and notify vendor of election to rescind, 116 
 
 if vendee be resident of foreign state, must give notice through 
 post-office, 116 
 
 right to rescind may be deemed waived, 116 
 
 keeping property an unreasonable time without objection amounts 
 to a waiver, 116
 
 Index. 193 
 
 Wakrantiks, Express — Continued. 
 Whcyi action lies for brcacli — 
 money may be recovered paid for goods which prove to be diflfer- 
 
 ent from warranty, if vendee offer to return, 117 
 right of action arises irrespective of fraud of vendor, 117 
 if property is of any value, vendee must return, or offer to return 
 
 it, 117 
 if vendee sues for breach of warranty, he thereby affirms the con- 
 tract, 117 
 acceptance of goods under an express warranty does not preclude 
 
 action for breacli, 117 
 though a portion of goods may have been used, 117 
 notice on bill requiring all claims for damages to be made imme- 
 diately will not avail, 117 
 payment of price after discovery of defect will not prevent action 
 
 for damages, 117, 118 
 to maintain action for breach of warranty of title vendee need 
 
 not have waited to be dispossessed, 118 
 judgment against vendee for conversion of property need not 
 have been paid before action on covenant of warranty, 1 18 
 When action does not lie for breach — 
 reasonable compliance with conditions precedent is essential be- 
 fore warranty can be enforced, 118 
 chancery has no jurisdiction to decree relief on a warranty, 119 
 where vendee fails to notify vendor of defects, or sells the goods, 
 
 he is deprived of his remedy against vendor, 119 
 if vendee puts machinery in operation, knowing it to be defective, 
 
 he is not entitled to damages, 119 
 where vendee directs how machine shall be constructed, vendor is 
 
 not liable for defective operation, 119 
 nor is he liable for want of parts, 119 
 
 if warranty be for a year, no action can be maintained without no- 
 tice of breakage and failure to remake, 1 19 
 no action maintainable upon parol warranty where there is a writ- 
 ten one, 1 19 
 nor upon a warranty made after the contract of sale had been en- 
 tered into, 119 
 without a new consideration to supjjort it, 119 
 Measure of damages — 
 
 is difference between value as warranted and as it actually proves 
 
 to be, 120 
 purchase price is prima facie value as warranted, 120 
 vendee may resell, and recover loss and all proper expenses, if 
 
 vendor refuse to rescind, 120 
 in action for breach of warranty of title, damages can only be re- 
 covered for actual loss, 1 20 
 13
 
 194 index. 
 
 Waruaxties, Express — Continued. 
 
 no special form of pleading necessary, 120 
 
 in action for breach of warranty in sale of machine, evidence of 
 cost to supi)ly defect is admissible, 120 
 
 expenses in trying to make it work are recoverable, 120 
 
 in case of sale of plantain seed for clover seed, measure of dam- 
 ages would be diflference in value of seed and injury to land, 
 121 
 
 prospective profits can never be considered, 121 
 
 expenses in preparing seed for sowing have been recovered, 121 
 
 rule in sale of burglar proof safes, 121 
 
 in sale of material for manufacturing purposes, difference between 
 value of defective article and value if made from the material 
 as warranted, is measure of damages, 122 
 Xgricultural implements — 
 
 warranties of, may be oral or written, 122 
 
 must be made a part of contract, 122 
 
 if printed on back of contract, becomes a part of same, though 
 blanks are not filled out, 123 
 
 and signed only by printed name of vendor, 123 
 
 delivery by agent, authorized to make sales, of a printed warranty 
 is sufficient, though not countersigned, 123 
 
 provisions in contract executed in duplicate, limiting authority of 
 agent to change warranty, is notice to vendee, 123 
 
 written warranty excludes evidence of oral warranty either in sub- 
 stitution or addition thereto, 123 
 
 evidence of fraud competent to show that written order never 
 became operative, 123 
 
 representations that machine would do good work do not amount 
 to a warranty, 123 
 
 in action upon warranty, vendee must show in what particular 
 machine failed, 123 
 
 can not rescind without proving that machine was not as war- 
 ranted, 123 
 
 evidence of how other similar machines worked not admissible, 124 
 
 unless fault in plan or design of construction be at issue, 124 
 
 notice of failure not necessary, unless provided for in contract, 
 124 
 
 notice required if contract provides for rescission, on failure to 
 comply with warranty, 124 
 
 time of trial being limited to one day, vendee must show diligence 
 and care in operating, 124 
 
 if cutting five acres was to be conclusive evidence of fulfillment 
 
 of warranty, it is not material when done, 125 
 if contract provided for notice of failure, notice must be given, 125 
 warranty of self-binder covers binding and cutting apparatus, 125 
 of combined machine covers reaping and mowing apparatus, 125
 
 Index. 195 
 
 Warrantiks, Express — Continued. 
 
 and vendee is not bound to give notice of defect until trial of 
 both, 125 
 
 keeping machine during harvest without notice of defect may be 
 deemed conclusive evidence of fulfillment if so provided in con- 
 tract, 12') 
 
 harvest means usual harvest season, 125 
 
 keeping machine after notice of defect is not conclusive evidence 
 of fulfillment, 126 
 
 if testing time be extended, notice of defect must be given at end 
 of extended time, 126 
 
 notice can not be waived by agreement of sub-agent to give the 
 notice, 126 
 
 oral notice to agent who happened to be in vicinity not sufficient, 
 126 
 
 voluntary examination by agent and attempt to repair held to be 
 actual notice, 126 
 
 presence of agent when machine broke down held to be actual 
 notice, 126 
 
 if friendly assistance in repairing is by contract required of ven- 
 dee, he must comply, 126 
 
 if return of defective machine is provided for, there must have 
 been a substantial compliance, 126 
 
 keeping machine beyond time limited for trial will prevent re- 
 scission, 126 
 
 no limit provided, retaining machine any considerable length of 
 time, will estop rescission, 127 
 
 giving note for price of machine does not prevent action for 
 breach of warranty, 127 
 
 giving of notes, or collateral security, or part payment, will not 
 amount to waiver of defects where vendor at time promises to 
 repair, 127 
 
 but execution of renewal notes have been held presumptive evi- 
 dence of waiver, 127 
 
 if vendee examine machine, and knew of defects at time of pur- 
 chase, he can not afterward rescind, 127 
 
 measure of damages is diflference in value of machine as repre- 
 sented and as it actually proves to be, 127 
 
 purchase price prima facie its value as warranted, 127 
 
 though amount of damages not limited by priee, 127 
 
 expenses of reasonable changes to make machine work may be 
 shown, 127 
 
 but not time and expenses incurred in experimenting after ma- 
 chine proves defective, 128 
 
 injury to grain by delay in harvesting not element of damages, 128
 
 196 Index. 
 
 Warranties, Express — Continued. 
 
 evidence of working of machine for several harvests admissible 
 to show its intrinsic defects, 128 
 
 expenses of counsel may be recovered as damages, where they 
 are a legitimate consequence of vendor's wrongful act, 128 
 WHEAT— 
 
 may be sold and delivered, price to be determined by quotations 
 upon a day to be fixed by vendee, 6 
 
 vendor entitled to pay, notwithstanding destruction of wheat be- 
 fore day named, 6 
 
 contracts for sale of, within the statutes of frauds, 12 
 
 measurement governed by custom in port of New York, 31 
 
 employment of measurer is a substantial compliance therewith, 31
 
 liAW LIBRARY 
 
 UNIVERSITY OF CALIFORNIA 
 LOS ANGELES
 
 AA 000 746 648 ■.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 f 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 -*>•- ^-%t^ # U^, .,;,,