33 The cases are instructive, however, on the question whether an owner to whose property valuable building materials have been attached as part of a structure can be regarded as having received a benefit if the materials are destroyed before the structure is finished. See infra, Sec. 1975.
34 See the following sections.
35 Owen v. Button, 210 Mass. 219, 223, 96 N. £. 333; citing Morse v. Woodworth, 155 Mass. 233, 249, 27 N. E. 1010, 29 N. E. 525; Illustrated Card etc. Co. v. Dolan, 206 Mass. 53, 55, 94 N. E. 299.
36 Wilson v. Burks, 71 Ga. 862; Todd v. Leach, 100 Ga. 227, 28 8. E. 43; Putnam v. Bolster, 216 Mass. 367, 103
N. E. 942; Todd v. McLaughlin, 125 Mich. 268, 84 N. W. 146; Brewster v. Wooster, 131 N. Y. 473, 30 N. E. 489; Totten v. Stevenson, 29 S. Dak. 71,135 N. W. 715; Mason v. Lawing, 10 Lea, 264.
In Higby v. Whittaker, 8 Ohio, 198, and Hood v. People's, etc., Assoc., 8 Tex. Civ. App. 385, the vendor was allowed to recover land for which he had received part payment without returning what he had received, on the ground that the possession which the vendee had enjoyed equalled in value this part payment. See also McDaniel v. Gray, 69 Ga. 433; Travelers' Ins. Co. v. Redfield, 6 Col. App. 190,40 Pac. 195.
37 Sec. 6 Pomeroy's Eq. Jur. Sec. 678.
generally admitted remedies for breach of a warranty of goods sold; but the third remedy, that of rescission, has been the cause of much discussion. More seriously than that the restoration of the status quo is impossible, it has been urged that rescission, as it involves a transfer of title back from the buyer to the seller, can be accomplished only by mutual assent and, further, that even if rescission were ordinarily permissible by the act of one party, it cannot properly be allowed where the obligation is collateral to the main contract as a warranty is said to be. As to the first of these objections, it has been shown in another connection that in many cases a transfer of title by the act of one party is allowed.38 As to the other objection, it should be observed that a warranty in the English law is not always collateral - in form at least. A promise which forms part of the description becomes a warranty when title passes.39 Still it is doubtless true that the typical warranty is collateral. Thus, a seller may sue for the price of a horse which he has sold and warranted sound without alleging in his declaration anything about the warranty.40 From this the inference may be drawn that the price of the horse is promised in return for the transfer of title, and that the warranty is a collateral promise of which the consideration is not the price but the sale. This is doubtless the form the transaction takes, but the collateral character of the warranty is only formal. After reflection, no one can doubt that in such a bargain the inducement for the payment or promise to pay the price is in part, and in an essential part, the giving of the warranty.41 The form which the. transaction takes justifies the court in applying the rules of pleading and procedure applicable to collateral stipulations and conditions subsequent; that is, the plaintiff need allege nothing about the matter, and the burden is on the defendant to allege and prove the existence of the collateral stipulation. To go farther than this, however, is to confuse matters of form with matters of substance. The remedy of rescission, if allowed at all, is allowed on broad principles of justice. The basis of the remedy is that the buyer has not received what he bargained for. The desirability of such a remedy depends purely on the business customs of a community and on whether it appeals to the natural sense of justice. Do merchants who value their reputation for fair dealing take back goods which they have untruthfully, though innocently, asserted possessed particular qualities? Do reasonable buyers who have bought gopds under such circumstances expect the seller to take back the goods and refund the price? These are the essential inquiries, and there can be little doubt of the answers. If a sale is induced by fraudulent statements, rescission is admittedly proper.42 And if a seller knows of the falsity of the statements he makes which constitute a warranty, he is fraudulent, and the bargain may be rescinded in jurisdictions which deny the remedy of rescission for breach of warranty generally.43 The morality of taking advantage afterward of false statements innocently made, by insisting on retaining the advantage of a sale induced thereby, is almost as questionable as that of making knowingly false statements to bring about the sale.44 It is a difficult question of fact, and one which arises in very many cases of broken warranty, how far the seller knew that his warranty was false. It is a practical advantage if the decision of this question becomes immaterial as it does where rescission is allowed for breach of warranty.46
38 See supra, Sec.Sec. 1370-1372.
39 Supra, Sec. 969. For this reason in Benjamin, Sale (5th Eng. ed.), p. 1003, it is said that the question whether the promise is collateral depends upon whether the property in the goods has passed or not. But if a promise is originally part of the seller's primary obligation, a mere transfer of the property can hardly change its character in this respect.
40 Parker v. Palmer, 4 B. 6 Aid. 387; Rogers v. Brown, 103 Me. 478, 70 AtL 206.
41 This is often recognised in the cases, e. g. in McCauley v. Ridgewood, 81 N. J. L. 86, 79 Atl. 327.
42 Seeinfra, Sec.1623.
43 DawBon v. Pennaman, 66 Ga. 698; Johnson v. Harley, 121 Ga. 83, 48 8. E. 685; Owens v. Sturges, 67 111. 366; Freyman v. Knecht, 78 Fa. St. 141, 144; Nelson v. Martin, 106 Pa. St. 229; Gates v. Bliss, 43 Vt. 299.
44 In Prewitt v. Trimble, 92 Ky. 176,183,17 S. W. 366,36 Am. St. Rep. 686, the court said: "It is a settled rule that even when one who brings about a contract by misrepresentation commits no fraud because his representation was, when made, innocent in the ordinary sense, still, if when the fact of its falsity becomes known he refuses to relinquish the advantage, upon offer of reciprocal relinquishment received by the injured party, it would make him guilty of constructive fraud and the contract subject to rescission by a court of equity."
45 An interesting analogy to the allowance of this remedy may be found in the law governing innocent misrepresentation. Though it is not yet