If the goods which are tendered to the buyer do not comply with the seller's warranties, either express or implied, the seller may treat the warranty as a condition to his obligation to accept, and may therefore reject the goods.
Provision of the Sales Act. "Where the property in the goods has not passed, the buyer may treat the fulfilment by the seller of his obligation to furnish goods as described and as warranted, expressly or by implication, in the contract to sell as a condition of the obli gation of the buyer to perform his promise to accept and pay for the goods." 102
The Sales Act states the law as it has developed by the weight of authority, although by artificial reasoning some courts had developed the view that if the warranty was express, the buyer must accept and sue upon his warranty. The general law of contract is that a party to a contract need not accept a defective performance. One is entitled to what he has bought and ought not to be compelled to receive anything inferior thereto. Whether he may receive it, and still reserve his right upon the warranty is considered elsewhere.
This subject has been developed in another section, and is noted here for purposes of completeness. If a buyer must make a trial or test in order to determine whether the goods are those which he has ordered, the buyer may make such trial or test in order to avail himself of his rights described in the preceding section.
If goods are tendered the buyer which do not comply with the warranty, he may reject, as above shown, or accept and sue for breach of warranty, express or implied.
Provision of the Sales Act. "In the absence of express or implied agreement by the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or sale. But if, after acceptance of the goods, the buyer fail to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor." 103
102. Uniform Sales Act, SEC. II, par. 2.
In some states the doctrine was developed that in case of an implied warranty, the warranty would not survive acceptance, that is, an acceptance was a waiver of the warranty, although in other states the right to accept the goods and sue on the warranty was recognized. The Sales Act adopts the majority view that one may accept goods whether the warranty is express or implied and still sue on the warranty provided he gives notice at the time or within a reasonable time thereafter that he intends to hold the seller on the warranty. This is the more sensible rule. To held that a buyer must reject in order to preserve his rights under an implied warranty was not only a hardship frequently upon him, but in many cases, as for instance, where the goods came from a distance, burdensome upon the seller himself.
The damages sustained for the breach of the warranty are those which reasonably result therefrom, and may include damages for personal injuries if such injuries can be said to be the natural and probable result of the breach.104
103. Uniform Sales Act, SEC. 49.
104. Bruce v. Fiss, D. & C. Horse Co., 62 N. Y. Suppl. 96.