5 Huyett & Smith Co. v. Gray, 111 N. C. 87, 15 S. £.939. See also Herring r. Skaggs, 62 Ala. 180, 34 Am. Rep. 4, 73 Ala. 446; Jones v. Ross, 98 Ala. 448, 13 So. 319; Fuller v. Curtis, 100 IncL 237, 50 Am. Rep. 795; Schurmeier v. English, 46 Minn. 306, 48 N. W. 1112, cited supra, note
6 Nashua Steel Co. v. Brush, 91 Fed. 213, 50 U. S. App. 461, 33 C C. A. 456; Rasey v. J. B. Colt Co., 108 N. Y. App. Div. 103, 94 N. Y. S. 50; Cedar Rapids Ac. Co. v. Sprague etc. Co., 280 III 386, 117 N. £. 461, L. R. A. 1918 B. 200; Swift v. Red-bead, 147 la. 94, 122 N. W. 140; Rice v. Friend Bros. Co., 179 la, 355, 161 N. W. 310; Major v. Hefley-Coleman Co. (Tex. Civ. App.), 164 S. W. 445.
7 British Westinghouse, etc., Mfg. Co. p. Underground Electric, etc., Co., U912] A C. 673. The buyer having bought certain machines which failed to comply with a warranty as to the amount of coal used, sued the seller for damages. After using the machines for a time the buyer had bought other machines to take their place. It was found as a fact that not only was the purchase of the new machines to the pecuniary advantage of the buyer, but that their superiority in efficiency and economy over those manufactured by the defendant was so great that even if the latter had delivered machines in all respects complying with the terms of the contract it would have been to the pecuniary advantage of the buyer at its own cost to have replaced them by the new machines. The House of Lords held it was error to allow in addition to the increased cost of coal while the old machines were in use, the full price of the new machines. 8 The Uniform Sales Act makes no distinction in regard either to the remedies or the measure of damages. No attempt is made to define what damages "directly and naturally re*
Considerable difference of decision exists in the law of this country, however, in regard to warranties of title. As has been previously stated,9 many jurisdictions hold that no right of action accrues to the buyer until his possession has been disturbed.10
Even jurisdictions which do not directly deny the right to an action often hold that while the buyer retains undisturbed possession, he can recover only nominal damages.11 A distinction should here be observed, failure to notice which has perhaps caused confusion. If the seller has not title to the goods the buyer not only may sue upon the warranty for damages, but may also rescind the transaction for failure of consideration.12 This latter right must certainly be allowed wherever rescission is allowed for breach of warranty of quality, and probably courts which do not allow the remedy of rescission in that case would generally do so where the title was defective, on the ground of total failure of consideration.12 It is obvious that such redress cannot be allowed to a buyer who ptill retains possession of the goods. This would be inconsistent with the principle that one who seeks rescission must return anything that he has received. Accordingly the buyer must return the goods to the seller or discharge his duty in the premises by surrendering them to the true owner. If the buyer has not already paid the price, the natural way of asserting rescission is in answer to an action for the price. Decisions which hold that the buyer has no defence while still retaining the goods 14 do not necessarily involve the conclusion that the buyer has no right of acsult" from breach of a warranty of title. The whole of section 69 is applicable both to warranties of quality and warranties of title except subsection (7), which is applicable to warranties of quality only.
9 Supra, Sec. 980.
10 See supra, Sec.980.
11 Patrick, etc., v. Swinney, 5 Bush, 421; Close v. Crossland, 47 Minn. 500, 50 N. W. 694 (covenant against incumbrances); Burt o. Dewey, 40 N. Y. 283, 100 Am. Dec. 482; Mo Giffin v. Baird, 62 N. Y. 329; O'Brien v. Jones, 91 N. Y. 193.
12 See infra, J1457.
13 Eichols ir. Bannister, 17 C. B. (N. S.) 708. This was an action to recover back the price. But see Hull v. Caldwell, 3 S. Dak. 451, 454, 54 N. W. 100.
14 For example, Johnson v. Oehmi& 95 Ala. 189, 10 So. 430, 36 Am. St Rep. 204; Sumner v. Gray, 4 Ark. 467, 38 Am. Dec. 39; Joelin o. Caughlin, 27 Miss. 852; Wanser v. Messier, 29 N. J. L. 256; Hull v. Caldwell, 3 S. Dak. 451, 64 N. W. 100.
tion, though often cited as so deciding. Jurisdictions which deny the buyer more than nominal damages until eviction sometimes take fine and hardly tenable distinctions in this respect between different kinds of actions or warranties. Thus, where the seller fraudulently represents that he has title, it seems to be admitted that an immediate cause of action for substantial damages lies.15 In some jurisdictions the distinction is taken between express and implied warranties. It has been held in Kentucky that though no right of action arises immediately for breach of express warranty,16 a right of action arises immediately on the sale where there has been merely an implied warranty.17 But, this distinction has been properly disapproved.18 In Missouri with as little reason the converse of the Kentucky rule was suggested; namely, that for breach of an express warranty an action arises immediately, but for breach of an implied warranty no action arises until damage.19