Where the buyer has accepted the goods, it is held in England and in many jurisdictions in this country that he cannot afterwards reject them.80 By accepting he waives his right to reject them, and must seek his remedy by action on the warranty or by setting up the breach in diminution of the price. And this applies whether the sale is of specific goods unconditionally - that is, goods ascertained and agreed upon at the time of the contract - or whether the sale is of unascertained goods, which are subsequently accepted. In some states, however, where there is an express warranty, it is held that the buyer may rescind the contract for breach of the warranty, notwithstanding acceptance, and may return the goods.81
morton Cas. Contracts, 398; Anson, Cont (8th Ed.) 302. See "Sales," Dec. Dig. (Key-No.) § 166; Cent. Dig. §§ S91-J,02.
28 Street v. Blay, 2 Barn. & Adol. 456; Syers v. Jonas, 2 Exch. 1ll, 117; Heilbutt v. Hickson, L. R. 7 C. P. 438, 451; Dailey v. Green, 15 Pa. 126; Doane v. Dunham, 65 111. 512; Id., 79 111. 131; Cox v. Long, 69 N. C. 7, 9; Lewis v. Rountree, 78 N. C. 323; Byers v. Chapin, 28 Ohio St. 300; Bigger v. Bovard, 20 Kan. 204; Polhemus v. Heiman, 45 Cal. 573. See "Sales," Dec. Dig. (Key-No.) § 166; Cent. Dig. §§ 391-402.
292 Smith, Lead. Cas. (8th Am. Ed.) 31; POPE v. ALLIS, 115 U. S. 363, 6 Sup. Ct. 69, 29 L. Ed. 393, Throckmorton Cas. Contracts, 398; Benj. Sales. § 895; El Paso & S. W. R Co. v. Eichel & Weikel (Tex. Civ. App.) 130 S. W. 922 (delivery of machine of less capacity than that contracted for). See "Sales," Dec. Dig. (Key-No.) § 166; Cent. Dig. §§ 391-402.
30 Street v. Blay, 2 Barn. & Adol. 456; Gompertz v. Denton, 1 Cromp. & M. 207; Poulton v. Lattimore, 9 Barn. & C. 259; Thornton v. Wynn, 12 Wheat 183, 6 L. Ed. 595; Matteson v. Holt, 45 Vt. 336; Freyman v. Knecht, 78 Pa. 141; Muller v. Eno, 14 N. Y. 597; Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 269, 23 N. E. 372, 16 Am. St. Rep. 733; Hoover v. Sidener,98 Ind. 290; Merrick v. Wiltse, 37 Minn. 41, 33 N. W. 3; Wright v. Davenport, 44 Tex. 164; ISAACS v. WANAMAKER, 71 Misc. Rep. 55, 127 N. Y. Supp. 346, Throckmorton Cas. Contracts, 402. See "Sales" Dec. Dig. (Key-No.) § 179; Cent. Dig. §§ 456-468.
BRYANT v. ISBURGH, 13 Gray (Mass.) 607, 74 Am. Dec. 655, Throckmorton Cas. Contracts, 401; Smith v. Hale, 158 Mass. 178, 33 N. E. 493, 35 Am. St. Rep. 485; Marshall v. Perry, 67 Me. 78; Franklin v. Long. 7 Gill
In the cases with which we have just been dealing, one of the parties to a contract has been excused from performance of his promise by reason of the entire failure of the other party to perform his promise. We now come to what Sir William Anson calls conditions precedent in the narrower and more frequent use of the term as meaning a single term in the contract, but a term possessing a particular character. In this sense a condition precedent is a statement or promise, the untruth or nonperformance of which discharges the contract.32
The chief difficulty with regard to conditions precedent consists in determining whether or not the parties to a contract regarded a particular term as essential. If they did, the term is a condition, and its failure discharges the contract;33 if they did not, the term is a warranty, and its failure can only give rise to an action for such damages as have been sustained by the failure of that particular term.34 Conditions are to be distinguished from warranties, although both terms are often loosely, and even interchange-
& J. (Md.) 407; Sparling v. Marks, 86 111. 125; Branson v. Turner, 77 Mo. 4S9; Upton Mfg. Co. v. Huiske, 69 Iowa, 557, 29 N. W. 621; Bothby v. Scales, 27 Wis. 626. This rule has been embodied in the Uniform Sales Act (Acts Mass. 1908, c. 237) § 69, (1), (d). And see ante, p. 574. See "Sales," Dec. Dig. (Key-No.) § 288; Cent. Dig. §§ 817-823.
32 Anson, Cont (4th Ed.) 303. See Behn v. Burness, 3 Best & S. 751; Glanholm v. Hays, 2 Man. & G. 257; Bowes v. Shand, 2 App. Cas. 455; Low-ber v. Bangs, 2 Wall. 728, 17 L. Ed. 768; Cleveland Rolling-Mill v. Rhodes, 121 U. S. 255, 7 Sup. Ct. 8S2, 30 L. Ed. 920; Filley v. Pope, 115 U. S. 213, 6 Sup. Ct. 19, 29 L. Ed. 372; Davison v. Von Lingen, 113 U. S. 40, 5 Sup. Ct. 346, 28 L. Ed. 885; People v. Glann, 70 111. 232; Tobias v. Lissberger, 105 N. Y. 404, 12 N. E. 13, 59 Am. Rep. 509; Newhall v. Clark, 3 Cush. (Mass.) 376, 50 Am. Dec. 741; Husted v. Craig, 36 N. Y. 221; Ogden v. Kirby, 79 111. 555; Harder v. Commissioners, 97 Ind. 455; Bell v. Hoffman, 92 N. C. 273; Salmon v. Boykin, 66 Md. 541, 7 Atl. 701. "A statement descriptive of the subject-matter or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty, in the sense in which the term is used in insurance and maritime law; that is to say, a condition precedent upon the failure or nonperformance of which the party aggrieved may repudiate the whole contract." NORRINGTON v. WRIGHT, 115 U. S. 188, 203, 6 Sup. Ct. 12, 29 L. Ed. 366, Throckmorton Cas. Contracts, 386. See "Contracts," Dec. Dig. (Key-No.) '§§ 221, 278; Cent. Dig. §§ 1015-1032, 1207-1218.
33 Daly v. City of Carthage, 143 Mo. App. 564, 128 S. W. 265, in which it is said, per Cox, J.: "If a breach cannot be compensated for in damages, then the covenants are dependent, and must of necessity be so, else there could be no remedy at all." See "Contracts," Dec. Dig. (Key-No.) § 221; Cent. Dig. §§ 1015-1032.
34 Cavanagh v. Iowa Beer Co., 136 Iowa. 236, 113 N. W. 856. See "Contracts," Dec. Dig. (Key-No.) § 221; Cent. Dig. §§ 1015-1032.
ably, used. In its proper sense, a warranty is "an express or implied statement of something which the party undertakes shall be a part of a contract; and though part of the contract, yet collateral to the express object of it." 85 If the statement of a party in a contract that a certain thing is true is a condition, the other party is discharged if it is false; but if the statement is a warranty, only, the other party is not discharged, but merely has a right of action for breach of the warranty. A warranty is a mere promise to indemnify.36
The question whether a particular term in a contract is a condition precedent or a warranty depends upon the construction of each particular contract. The question is to be determined by the intention of the parties, and by the application of common sense to each particular case; and, when the intention is once discovered, it will control technical forms of expression.37 As said in a leading case: "Parties may think some matter, apparently of very little importance, essential, and, if they sufficiently express an intention to make the literal fulfillment of such a thing a condition precedent, it will be one; or they may think that the performance of some matter, apparently of essential importance and prima facie a condition precedent, is not really vital, and may be compensated for in damages, and, if they sufficiently express such an intention, it will not be a condition precedent." 38 In other words, the question in each case, where it is to be determined whether a breach of a particular term operates as a discharge, is whether or not the breach goes to the essence of the contract.39
35 Chanter v. Hopkins, 4 Mees. & W. 399, 1 H. & H. 377, 8 L. J. (N. S.) Ex. 14, 3 Jur. 58, 51 Rev. Rep. 650, per Lord Abinger, C. B. See, also, Dorr v. Fisher, 1 Cush. (Mass.) 271. See "Contracts," Dec Dig. (Key-No.) § 221; Cent. Dig. §§ 1015-1032.
36 Ante, p. 261.
37 Stavers v. Curling, 3 Bing. N. C. 355. See "Contracts," Dec. Dig. (Key-No.) § 221; Cent. Dig. §§ 1015-10S2; "Sales," Dec. Dig. (Key-No.) § 250; Cent. Dig. § 709.
38 Bettini v. Gye, 1 Q. B. Div. 183. And see Graves v. Legg, 9 Exch. 709; Behn v. Burness, 3 Best. & S. 756; Watchman v. Crook, 5 Gill & J. (Md.) 239; Maryland Fertilizing & Mfg. Co. v. Lorentz, 44 Md. 218; Grant v. Johnson, 5 N. Y. 247; Knight v. Worsted Co., 2 Cush. (Mass.) 271, 287; Mill-Dam Foundry v. Hovey, 21 Pick. (Mass.) 417, per Shaw, C. J.; ante, p. 566. See "Contracts," Dec. Dig. (Key-No.) § 221; Cent. Dig. §§ 1015-1032.
39 Freeman v. Taylor, 8 Bing. 124; Franklin v. Miller, 4 Adol. & E. 599; Tarrabochia v. Hickie, 1 Hurl. & N. 183; McAndrew v. Chappie, L. R. 1 C. P. 70G; Bradford v. Williams, L. R. 7 Exch. 259; Jackson v. Insurance Co., L. R. 10 C. P. 125; Poussard v. Spiers, 1 Q. B. Div. 410; Rioux v. Brick Co., 72 Vt 148, 47 Atl. 40G; West v. Bechtel, 125 Mich. 144, 84 N. W. G9, 51 L. R. A. 791. As to waiver of full performance. District of Columbia v.
A condition precedent may assume the form either of a statement or of a promise.