Sec. 45. Generally Of The Implied Warranties

Under the law of sales, warranties of an implied nature arise, from different classes of fact, unless negatived by the agreement of the parties.

Under the law of sales as it has developed from the decision of cases, and now, by statute, under the Uniform Sales Act, sales of personal property carry affirmations of fact of an implied nature arising out of different classes of facts. That is to say, when one sells personal property, he thereby by that very act, makes representations in respect to such property upon which the buyer can rely, and for the breach of which he may refuse the goods or sue for damages. The seller may of course negative the fact of the warranty by providing against it; or may replace it by an express warranty covering the same point. The various implied warranties are discussed severally in following sections.

Sec. 46. Implied Warranties In Express Sales

Warranties of an implied nature attach to express contracts, whether oral or in writing, unless stipulated

29. Williston on Sales, SEC. 233.

against, or unless the same point is covered by an express warranty.

As few contracts are implied, except in part, the law of implied warranties would have comparatively small importance if implied warranties arose only in the case of implied contracts. If a contract is totally in writing, so that any attempt to incorporate anything further therein by way of extrinsic agreement would violate the parol evidence rule, nevertheless the contract will carry with it the proper warranties by implication, unless they have been stipulated against, or unless there is an express warranty on the same point.

The expression is frequently met with in the cases that an express warranty will prevent an implied warranty; but this is a loose statement. An express warranty will not prevent a warranty from being implied except upon the same point. This is provided in the sales act under this language:

"An express warranty or condition does not negative a warranty or condition implied under this act, unless inconsistent therewith." 30

Sec. 47. The Implied Warranties Of Title

In every sale or contract to sell there are the implied warranties of title that the seller has, or will have when the title is to pass, an unencumbered ownership in the goods or right to sell them.

It will be seen hereafter, that under certain conditions a buyer of personal property may ignore the true state of the title, and take a better title than his vendor had. But that is not the rule (in case of negotiable paper it is the

30. Uniform Sales Act, SEC. 15 (6).

rule), but the exception, based upon estoppel, non-compliance with recording laws, etc. The rule is that an owner of personal property can follow it and retake it from any one who has purchased it from another who had no right or authority to sell it. Or, to be more specific, if A has property which is in B's hands without any right or authority on B's part to sell it, and C purchases it from B supposing him to be the owner, A may retake from C. Now C has sustained a damage and ought to have a remedy against B, and that remedy is given him under the theory of a warranty by B in making the sale that he was the owner, or had power to sell. The rule that one who sells impliedly warrants the title is thus complementary to the rule that he who buys personal property buys it at the peril of an unknown owner taking it fom him. And this warranty does not depend at all on B's state of mind. He may think he is the owner, or he may know he is not the owner. Impliedly in either case, he warrants that he is the owner or has the power of sale. This warranty may be rebutted by evidence that he negatived the warranty in making the sale.31 The implied warranties of title are:

(1) In sales, that he has a right to sell; in contracts to sell, that he will have a right to sell.

(2) That the buyer will have and enjoy quiet possession against lawful claims existing at the time of the sale.

(3) That the goods are free from any incumbrance not known to buyer.32 These implied warranties do not exist as against sheriffs, auctioneers, mortgagees, or any person professing to sell under authority of law or fact.

31. George v. Smith, 122 N. E. (Ind.) 351.

32. Uniform Sales Act, SEC. 13.