This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
18Lunsford v. Malsby, 101 Ga. 39, 28 S. E. 496.
19Delaware. Love v. Mfg. Co., 3 Penn. (Del.) 152, 50 Atl. 536.
Iowa. Myer v. Wheeler, 65 la. 390, 21 N. W. 692.
Massachusetts. Gascoigne v. Cary Brick Co., 217 Mass. 302, 104 N. E. 734.
Minnesota. Leitch v. Mfg. Co., 64 Minn. 434, 67 N. W. 352.
North Carolina. E. F. Main Co. v. Field, 144 N. Car. 307, 119 Am. St. Rep. 956, 11 L. R. A. (N.S.) 245, 56 S. E. 943.
Ohio. Dayton v. Hooglund, 39 O. S. 671.
South Carolina. Greenwood Cotton Mill v. Tolbert, 105 S. Car. 273, 89 S. E. 653.
Virginia. Jacot v. Grossman Seed & Supply Co., 115 Va. 90, 78 S. E. 646.
20Illinois. Morris v. Wibaux, 159 111. 627, 43 N. E. 837; Peoria Grape Sugar Co. v. Turney, 175 111. 631, 51 N. E. 587 [affirming 70 111. App. 589].
Massachusetts. Gossler v. Sugar Refinery, 103 Mass. 331.
Michigan. Kronman v. Gardella, 190 Mich. 645, 157 N. W. 377.
Nebraska. Patrick v. Norfolk Lumber Co., 81 Neb. 267, 115 N. W. 780.
New Hampshire. Gregg v. Belting Co., 69 N. H. 247, 46 Atl. 26.
New Jersey. Ivans v. Laury, 67 N. J. L. 153, 50 Atl. 355.
North Dakota. Northwestern Cordage Co. v. Rice, 5 N. D. 432, 57 Am. St. Rep. 563, 67 N. W. 298.
For an explanation of an apparently contra case as decided on a question of pleading, see Chandelor v. Lopus, R. C. McMurtrie, 1 Harvard Law Review 191.
21Baer Grocer Co. v. Barber Milling Co., 223 Fed. 969; Burnett v. Hensley, 118 la. 575, 92 N. W. 678.
warrants that they are up to the usual standard of such brick, but not that they are suitable for the use to which vendor knows they are to be put.22
If goods are sold without a chance for inspection there is at least an implied warranty that they are merchantable.23 Where there is a chance for the vendee to examine the goods sold, there is, at least, an implied warranty that there are no latent defects known to the vendor and not disclosed to the vendee.24 Since vendor knows such facts, such non-disclosure is in many states held to amount to fraud.25 Thus where animals are sold, apparently sound, but really diseased, and vendor knows thereof, such sales are voidable.26 In some of the cases cited on this point, false statements were made intentionally; as where vendor said that an animal was "sound as far as he knew," when he knew of a latent defect,27 or there has been a partial and misleading disclosure.28 Thus a sale of an impotent animal for breeding purposes was held fraud,29 unless such animal is sold by one who does not raise or import such animals for breeding purposes.30 A sale of a blind
22Day v. Mapes-Reeve Construction Co., 174 Mass. 412, 54 N. E. 878.
23California. Blackwood v. Packing Co., 76 Cal. 212, 9 Am. St. Rep. 199, 18 Pac. 248.
Iowa. Davis v. Sweeney, 75 la. 45, 39 N. W. 174.
Massachusetts, Murchie v. Cornell, 155 Mass. 60, 31 Am. St. Rep. 526, 14 L. R. A. 492, 29 N. E. 207.
Mississippi. D. Rosenbaum's Sons v. Davis & Andrews Co., Ill Miss. 278, 71 So. 388.
South Dakota. Standard Rope & Twine Co. v. Olmen, 13 S. D. 296, 83 N. W. 271.
24Wisconsin, etc., Co. v. Refrigerator Co., 60 Minn. 401, 51 Am. St. Rep. 539, 62 N. W. 550; Greeenwood Cotton Mill v. Tolbert, 105 S. Car. 273, 89 S. E. 653; McGavock v. Wark, 3 Tenn. (Cooke) 403.
25Arkansas. Merritt v. Robinson, 35 Ark. 483.
Kentucky. Reading v. Price, 26 Ky. (3 J. J. Mar.) 61, 19 Am. Dec. 162.
Maine. Downing v. Dearborn, 77 Me. 457, 1 Atl. 407.
Missouri Grigsby v. Stapleton, 94 Mo. 423, 7 S. W. 421.
Vermont. Maynard v. Maynard, 49 Vt. 297.
26Johnson v. Wallover, 15 Minn. 472, 18 Minn. 288; McAdams v. Cotes, 24 Mo. 223. (Sale of a filly that has lost her teeth.) Barron v. Alexander, 27 Mo. 530; Salmonson v. Horswill, 39 S. D. 402,164 N. W. 973; Paddock v. Stro-bridge, 29 Vt. 470.
Contra, that such sale is not fraud unless the vendor intended to deceive. Hanson v. Edgerly, 29 N. H. 343.
27Lunn v. Shermer, 93 N. Car. 164.
28Paddock v. Strobridge, 29 Vt. 470.
29Maynard v. Maynard, 49 Vt. 297. (The vendor was held liable for loss of milk because the cows were not with calf.) Compare cases cited post, this section, note 40.
30Thompson v. Miser, 82 O. S. 289, 92 N. E. 420 horse, vendor knowing such fact, was held to amount to fraud.31 So where vendor knows that his animals are suffering from a contagious disease it has been held fraud for him to sell them to a vendee ignorant thereof; and vendor has been held liable for loss of vendee's other stock.32 Under a statute which makes it a criminal offense to sell or dispose of "any animal infected or known to have been exposed to infection within one year after such exposure," the sale of infected animals is made a crime, irrespective of the knowledge of the vendor; and the vendor can not recover on a note given for the purchase price of such animals, even if he did not know of the fact that they were infected.33 If A sells to B cattle which are infected with Texas fever ticks, there is said to be no implied warranty and A is not liable therefor unless he knew such fact and failed to disclose it.34
It is said to amount to fraud if one who sells the note of another does not disclose the known insolvency of such other.35 In some jurisdictions it is held that one who sells personalty without an express warranty or representation of value warrants the article which is sold to be of value for the purpose to which it is ordinarily applied.36 A contract of sale to one by whom the goods are to be resold contains an implied warranty that they are salable.37 This classification of implied warranties, while not exhaustive, furnishes examples of the more common types.
In other cases there is no implied warranty. The vendee must judge for himself or exact an express warranty.38 Under a statute which provides that a contract of sale implies that the article sold is reasonably suited to the use intended, and that the seller knows of no undisclosed latent defects, a contract to sell copper wire of a certain diameter and of a certain degree of conductivity, which it is known will be used to transmit electricity, does not imply a warranty that it will accomplish what the purchaser intends, but it does imply that it is properly constructed wire of the diameter and weight provided for in the contract and reasonably suited for the use to which wire of such size is to be put.39 So if an animal is sold for breeding purposes, there is no implied warranty that it is fit for such purpose.40
31Dowling v. Lawrence, 58 Wis. 282, 16 N. W. 552.
32Skinn v. Reuter, 135 Mich. 57, 106 Am. St. Rep. 384, 63 L. R. A. 743, 97 N. W. 152; Grigsby v. Stapleton, 94 Mo. 423, 7 S. W. 421; PuIb v. Horn-beck, 24 Okla. 288, 103 Pac. 665.
So by statute in Georgia providing for an implied warranty of merchantability, even if vendor is ignorant of the disease. Snowden v. Waterman, 105 Ga. 384, 31 S. E. 110; same case, 100 Ga. 588, 28 S. E. 121.
Contra, Ward v. Hobbs, 3 Q. B. D. 150. (Where the animals were sold in violation of a penal statute, but "with all faults.") Hill v. Balls, 2 H. & N. 299.
33Church v. Knowles, 101 Me. 264, 63 Atl. 1042.
34Puls v. Hornbeck, 24 Okla. 288, 103 Pac. 665.
35Gordan v. Irvine, 105 Ga. 144, 31 S. E. 151; Sebastian May Co, v. Codd, 77 Md. 293, 26 Atl. 316; Bridge v. Batchelder, 91 Mass. (9 AH.) 394. (There were representations in this case that the note was good and was for value.) Brown v. Montgomery, 20 N. Y. 287, 75 Am. Dec. 404. (Sale of a post-dated check of a third person.)
36Walker, Evans & Cogswell Co, v. Ayer, 80 S. Car. 292, 61 S. E. 557.
37Ashford v. Shrader, 167 N. Car. 45, 83 S. E. 29.
38Alabama. Moore v. Paving Co., 118 Ala. 563, 23 So. 798.
Illinois. Telluride Power Transmission Co. v. Crane Co., 208 111. 218, 70 N. E. 319.
Even where an implied warranty would usually exist, an express warranty excludes an implied warranty.41
If the contract of sale contains a provision for testing the quality of the goods in a specified manner, such a provision is said to exclude an implied warranty.42 A contract by a dealer to sell cement subject to certain specified tests, does not imply a warranty that the cement will be fit for the use to which it is to be put.43
A provision for replacing defective articles or parts does not exclude an implied warranty.44
In most jurisdictions there is no implied warranty of a secondhand article.45 A sale by a manufacturer of a new part for a second-hand article which was manufactured originally by such manufacturer, does not imply a warranty that such second-hand article will render satisfactory service after such new part is installed.46 In some jurisdictions, however, it has been held that one who sells a second-hand article, knowing the use to which it is to be put, impliedly warrants that the article is reasonably adapted for such purpose.47 It is said that the vendor of a second-hand hearse impliedly warrants that it is capable of being used, even if he ex-pressly refuses to warrant its condition and advises the purchaser to inspect it.48 If the seller of a second-hand machine agrees to overhaul it and put it in first-class shape, such contract implies a warranty that the machine is understood to be reasonably certain, when properly handled, to do the work intended and to be free from structural defects.49
Indiana. Court v. Snyder, 2 Ind. App. 440, 50 Am. St. Rep. 247, 28 N. E. 718.
Kansas. Woods v. Nicholas, 92 Kan. 258, 140 Pac. 862.
Kentucky. Scott v. Renick, 40 Ky. (1 B. Mon.) 63, 35 Am. Dec. 177.
West Virginia. Showalter v. Chambers, 77 W. Va. 720, 88 S. E. 1072.
39John A. Roebling's Sons Co. v. Southern Power Co., 142 Ga. 464, L. R. A. 1915B, 900, 83 S. E. 138.
40 Griffin v. Runnion, 74 W. Va. 641, 82 S. E. 686; McQuaid v. Ross, 85 Wis. 492, 39 Am. St. Rep. 864, 22 L. R. A. 187, 55 N. W. 705.
41Malsby v. Young, 104 Ga. 205, 30 8. E. 854; Reeves v. Byers, 155 Ind. 535, 58 N. E. 713.
Under a contract for publishing a biography which, by its express provisions, excludes all guaranties not therein expressed, there is no implied warranty as to the character of the other biographies to be printed in such book, or of the typography. American Historical Society v. Storer, - Mass. - , 122 N. E. 392.
42International Filter Co. v. Cox Bottling Co., 89 Kan. 645, 132 Pac. 180; Sheafe v. Zastrow, 30 S. D. 159 138 N. W. 16; Hurley-Mason Co. v Stebbins, 79 Wash. 366, L. R. A. 1915B, 1131, 140 Pac. 381.
43Hurley-Mason Co. v. Stebbins, 79 Wash. 366, L. R. A. 1915B, 1131, 140 Ac. 381.
44Main v. Dearing, 73 Ark. 470, 84 S. W. 640; Timken Carriage Co. v. Smith, 123 la. 554, 99 N. W. 183.
45Alabama. Johnson v. Carden, 187 Ala. 142, 65 So. 813.
Where warranties are implied the vendor if ignorant of the defect warranted against is liable as on breach of contract; while if he knows of the defect when he makes the sale, he is also liable as for fraud.50 The application of this doctrine, therefore, limits the right of the vendor to refrain from disclosing defects known to him; though, as has been said, the doctrine applies even if the vendor acted in good faith.51