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.
A sale of a chattel in possession of the vendor implies a warranty of title in the absence of a specific agreement to the contrary. In case of total failure of title to a chattel which is the subject-matter of a contract, failure of consideration exists, and if the adversary party has paid for such chattel he may recover the purchase money.1 If several chattels have been sold by an indivisible contract, it has been held in case of a failure of title to a part of such chattels that a pro rata recovery of the purchase price may be had.2 This principle seems contrary to the analogy of the law. Recovery should be had for the value of the chattel which may be more or less than a pro rata part of the purchase price. In an executed contract of sale there is, as a rule, no implied warranty of quality, and in the absence of such warranty the vendee is without remedy for defects in quality.3 If a contract provides for passing the title to chattels in the future and there is an express or implied warranty as to quality the question arises whether tender of a chattel which does not possess such qualities operates as a discharge of such contract or whether the only remedy of the vendee is an action for damages. The determination of this question turns on the further question whether the parties were contracting for transfer of title to a specific existing chattel or not. If they were contracting with reference to a specific existing chattel, tender of such chattel is a performance of the contract, and the fact that it does not possess the qualities agreed upon does not discharge the contract but merely gives the vendee a right of action for damages. If they were contracting, not with reference to a specific existing chattel, but for undetermined chattels, to conform to a given description or to correspond to a given sample, tender of chattels not possessing the qualities specified discharges the contract.* In case of tender of a chattel under an executory contract of sale, which does not conform to the terms of the contract as to kind or quality, the vendee may reject it, and treat the tender as a breach.5 If the title to a chattel has passed, but the chattel does not possess the qualities which it was agreed that it should have, the question arises whether the vendee may avoid the contract and resist payment of the purchase price if the contract is still executory on his part; or whether he may only sue for damages; or whether he has an election between these two remedies. In some jurisdictions the vendee may treat a breach of warranty as a discharge of the contract, and resist payment of the purchase price if the contract is executory on his part, or recover what he has already paid under it.6 To exercise this right the vendee must return what he has received under the contract.7 Other cases hold that the vendee can only recoup damages, such breach not amounting to a discharge.8 Whether the invalidity of a patent amounts to failure of consideration is a question on which there is a conflict of authority. The English courts hold that it does not amount to failure of consideration.9 The American courts hold that the invalidity of a patent issued by the United States amounts to a failure of consideration,10 though where the patent is an English one, the view of the English courts has been taken.11
V. Knoll, 57 Neb. 790; 78 N. W. 394; Meader v. Cornell, 58 N. J. L. 375; 33 Atl. 960; Smith v. Mfg. Co., 58 N. J. L. 242; 33 Atl. 244.
8 Egan v. Yeaman (Tenn. Ch. App.), 46 S. W. 1012.
9 Union Pacific Ry. v. Barnes, 64 Fed. 80; Woodbury v. Evans, 122 N. C. 779; 30 S. E. 2.
10 Harrison v. Palo Alto County, 104 la. 383; 73 N. W. 872.
11 Carrier v. Eastis, 112 Ala. 474; 20 So. 595.
12 Cook v. Mix. 11 Conn. 432;
Slack v. McLagan. 15 111. 242; Rice v. Goddard, 14 Pick. (Mass.) 293; Durment v. Tuttle, 50 Minn. 426; 52 N. W. 909.
13 Loring v. Oxford, 18 Tex. Civ. App. 415; 45 S. W. 395.
14 Wilson v. Breyfogle, 63 Fed. 379; 11 C. C A. 248.
15 Black v. Walker, 98 Ga. 31; 26 S. E. 477.
1 Ledwich v. McKim, 53 N. Y. 307; Wilkinson v. Ferree, 24 Pa. St. 190.
2 Moorhead v. Davis, 92 Ind. 303.
3 Barnard v. Kellogg, 10 Wall. (U. S.) 383; Horner v. Parkhurst, 71 Md. 110; 17 Atl. 1027; Hight v. Bacon, 126 Mass. 10; 30 Am. Rep. 639; Mixer v. Coburn, 11 Met. (Mass.) 559; 45 Am. Dec. 230; Mc-Cray Refrigerator Co. v. Woods, 99 Mich. 269; 41 Am. St. Rep. 599; 58
N. W. 320; Dickson v. Jordan, 11 Ired. (N. C.) L. 166; 53 Am. Dec. 403; Lord v. Grow, 39 Pa. St. 88; 80 Am. Dec. 504; Scott Lumber Co. v. Mfg. Co., 91 Wis. 667; 65 N. W. 513; Milwaukee Boiler Co. v. Duncan. 87 Wis. 120; 41 Am. St. Rep. 33; 58 N. W. 232.
4 Pope v. Allis, 115 U. S. 363; Ripley v. Case, 78 Mich. 126; 18 Am. St. Rep. 428: 43 N. W. 1097,-McCormick Harvesting Machine Co.
5 St. Louis Paper Box Co. v. Hub-inger Bros. Co., 100 Fed. 595; 40 C. C. A. 577; Hallwood Cash Register Co. v. Lufkin, 179 Mass. 143; 60 N. E. 473; Smith v. Mfg. Co., 58 N. J. L. 242; 33 Atl 244; Cohen v. Piatt. 69 N. Y. 348; 25 Am. Rep. 203; Virginia Carolina Chemical Co. v. Carpenter, 99 Va. 292; 38 S. E. 143.
6 Timken Carriage Co. v. Smith, 123 la. 554; 99 N. W. 183; McCor-mick Harvesting Machine Co. v. Brower, 94 la. 144; 62 N. W. 700; Aultman v. Trainer, 80 la. 451; 45 N. W. 757; Toledo Savings Bank v. Rathmann, 78 la. 288; 43 N. W. 193; Gale, etc., Co. v. Stark. 45 Kan. 606; 23 Am. St. Rep. 739; 26 Pac. 8; French v. Gordon. 10 Kan. 370: Libby v. Haley. 91 Me. 331; 39 Atl. 1004; Milliken v. Skillies. 89 Me. 180; 36 Atl. 77; Smith v.
Hale, 158 Mass. 178; 35 Am. St. Rep. 485; 33 N. E. 493; Morse v. Brackett, 98 Mass. 205; Bryant v. lsburgh, 13 Gray (Mass.) 607; 74 Am. Dec. 655; Compton v. Parsons, 76 Mo. 455; Aultman, Miller & Co. v. Hunter, 82 Mo. App. 632; Punt-enney-Mitchell Mfg. Co. v. North-wall Co., - Neb. - ; 91 N. W. 863; Selig v. Rehfuss, 195 Pa. St. 200; 45 Atl. 919; Merrill v. Nightingale, 39 Wis. 247.
7 Massillon, etc., Co. v. Sehirmer (la.), 93 N. W. 599.
8 Street v. Blay, 2 B. & Ad. 456; Lyon v. Bertram, 20 How. (U. S.) 149; Trumbull v. O'Hara, 71 Conn. 172; 41 Atl. 546; Hoover v. Sidener, 98 Ind. 290; H. W. Williams Transportation Line v. Transportation Co.. 129 Mich. 209; 56 L. R. A. 939; 88 N. W. 473: Lynch v. Curfman. 65 Minn. 170; 68 N. W. 5; Allen v. Anderson. 3 Humph. (Tenn.) 581; 39 Am. Dec. 197; Hoadley v. House, 32 Vt. 179; 76 Am. Dec. 167.