1 Cory v. Thames Iron Works Co., Law R. 3 Q. B. 181 (1868), explaining Hadley v. Baxendale, 9 Exch. 341.
2 Where pork was sold with a warranty that the barrels would not leak, the purchaser stored it in a suitable place, and found afterwards that some of the barrels were leaking. He filled the leaky barrels with new brine, but did not repack the pork as it was customary for dealers to do. It was held that the only damages he could recover for the breach of the warranty were the cost of new barrels and of repacking the pork in them. Hitchcock v. Hunt, 28 Conn. 343 (1859).
3 See Passinger v. Thorburn, 34 N. Y. 634; Milburn v. Belloni, 39 N. Y. 53 (1868). Damages for breach of warranty are the difference bebefore discovering the defect or unsoundness of the goods which he has bought under a warranty, sells them under a similar warranty, and is sued thereon, he may recover of his vendor the costs of such suit, as a part of the damages actually sustained by him in consequence of the original breach of warranty.1 He should, however, give reasonable notice of the suit to the original vendor.2 But selling a glandered horse without fraud or warranty gives no right of action, although he communicates the disease to other horses of the vendee.3
§ 1100. Where the sale is conditional upon the performance of some future act by the vendee, and possession of the property is transferred, the vendor may, upon the failure of the vendee to perform the condition, rescind the contract, and maintain trover or replevin for the goods; but he cannot maintain trover until he has a right to demand possession, and until he has actually made a demand and rescinded the contract.4 During the intermediate time between the delivery tween the real market value and the contract price when it has been sold again. Dingle v. Hare, 7 C. B. (n. s.) 145 (1859). And see Tuttle v. Brown, 4 Gray, 457 (1855). So in an action of deceit and fraud in the sale. Page v. Parker, 43 N. H. 363 (1861). And this rule is not affected by proof that the purchaser subsequently resold it for an increased price, especially if it does not appear that such sale by him was without warranty. Brown v. Bigelow, 10 Allen, 242 (1865).
1 Lewis v. Peake, 7 Taunt. 153; Armstrong v. Percy, 5 Wend. 535.
2 Ibid.; Reggio v. Braggiotti, 7 Cush. 166. If a buyer with a warranty sells with a like warranty, he may recover from his vendor any sum for damages which he is compelled to pay to his own vendee for such breach: Randall v. Raper, El., B. & E. 84 (1858); Reggio v. Braggiotti, 7 Cush. 166; Armstrong v. Percy, 5 Wend. 535; Blasdale v. Bab-cock, 1 Johns. 518; and in such case the original vendee might recover of the original vendor, although the second vendee had never made any claim upon him. Muller v. Eno, 4 Kern. 597.
3 Hill v. Balls, 2 H. & N. 299. But if a person sells, for the purpose of being fed to a cow, part of a lot of hay in which he knows white lead to have been spilt, and the cow dies from the effect of the lead in the hay, he is liable for her loss, although he carefully endeavored to separate and remove the damaged hay, and thought that he had succeeded. French v. Vining, 102 Mass. 132 (1869).
4 Fairbank v. Phelps, 22 Pick. 536; Ayer v. Bartlett, 9 Pick. 156; Smith v. Plomer, 15 East, 607; Gordon v. Harper, 7 T. R. 9; Wheeler v. Train, 3 Pick. 255; Herring v. Hoppock, 15 N. Y. 409.
of the property and the performance of the condition, and while the property remains in the hands of the vendee, it may be attached in invitum for the debts of the vendee, although he could not ex suo proprio motu sell it.1
§ 1101. Where there is a breach of the agreement or warranty, accompanied with fraud, the buyer may always return the goods or not, at his pleasure. Where there is no fraud, and the warranty goes to the fitness of the article, and it proves wholly unsuitable, or to the identity of the article, and it proves another thing from that for which it was sold, it may be returned upon breach of the agreement or warranty.3 But if the warranty goes to the degree of fitness or to the quality, and it proves to be of an inferior quality or fitness, the goods cannot be returned, and the remedy is by action for damages;3 the measure of which is the difference between the value of the article as it is and as it was represented to be. Thus, if a machine be sold for a particular purpose, with a warranty, and it will perform none of its functions, it may be returned; but if it only performs them badly, the remedy is by action for damages. And this seems to be the English rule on a sale of specific goods with a warranty that they correspond to a sample.4
§ 1102. Where there is a total defect of title, the buyer may rescind the contract. So, also, a partial defect of title, which would render the thing sold unfit for the use known to be intended, and not within the inducement to the purchase, is sufficient to entitle the buyer to rescind the contract. But such a partial failure of title must be in regard to a part essential to the enjoyment of the residue; and the failure of title in respect to a trifling or non-essential portion will only afford a ground for a pro tanto reduction of the price.1
1 Ibid.; Ayer v. Bartlett, 9 Pick. 156.
2 Stinson v. Walker, 21 Me. 211. A warranty of slaves is not broken by their subsequent emancipation by law. Blewett v. Evans, 42 Miss. 804 (1869).
3 In some States a breach of an express warranty of soundness upon the sale of a horse authorizes the purchaser to rescind the contract and return the horse, although there was no express agreement to that effect, and no fraud. Bryant v. Isburgh, 13 Gray, 607 (1859).
4 Dawson v. Collis, 10 C. B. 523; 4 Eng. Law & Eq. 338.
§ 1103. Where a person acquires property under a contract of sale, by means of false and fraudulent representations in respect to his solvency and means of paying therefor, he acquires no right either of property or of possession; and the vendor may retake the property, using no more force than is necessary for that purpose; and if he be resisted by the vendee, he may still use such force as is necessary;2 or the vendor may recover the goods in an action of trover or replevin, unless they have passed to a third person holding them bond fide for a valuable consideration, without notice.8 And where a person makes a fraudulent purchase of goods, and gives his acceptance therefor, and deposits them with a third person, it is not necessary that a tender should first be made, in order to enable the seller to retake the goods.4