Delivery. where made Expense of transportation. Notice of election as person in possession, even though unjustifiable on his part (Ib.). 'Terwilliger v. Knapp, 2 E. D. Smith, 86; see Kipp v. Wiles, 3 Sandf., 585. See Jones v. Gibbons, 8 Exch., 922; Bach v. Owen, 5 S 872. Personal property sold is deliverable at 1 3 Watts & S., 295. 'Rice v. Churchill, 2 Denio, 145. S873. One who sells personal property must bring it to his own door, or other convenient place, for its acceptance by the buyer, but further transportation is at the risk and expense of the buyer. S874. When either party to a contract of sale to delivery. has an option as to the time, place, or manner of delivery, he must give the other party reasonable notice of his choice; and if he does not give such notice within a reasonable time, his right of option is waived.2 1 So held as to place (Rogers v. Van Hoesen, 12 Johns., 221; Peck v. Hubbard, 11 Verm., 612), and the same principle seems to apply to the time and mode of delivery. 'The obligation is not extinguished by the failure of either party to give notice of his election as to the mode of its performance (Gilbert v. Danforth, 6 N. Y., 585; Livingston v. Miller, 11 id., 80). S875. If a seller agrees to send the thing sold to the buyer, he must follow the directions of the latter as to the manner of sending, or it will be at his own risk during its transportation. If he follows such directions, or if, in the absence of special directions, he uses ordinary care in forwarding the thing, it is at the risk of the buyer. Bull v. Robison, 10 Exch., 342; Orcutt v. Nelson, 1 Gray, 536: Jones v. Sims, 6 Porter, 161. be within S876. The delivery of a thing sold can be offered Delivery to or demanded only within reasonable hours of the day. reasonable Startup v. Macdonald, 2 M. & G., 395. hours. ARTICLE III. WARRANTY. SECTION 877. Warranty, what. 878. No implied warranty in mere contract of sale. 879. Warranty of title to personal property. 880. Warranty on sale by sample. 881. When seller knows that buyer relies on his statements, &c. 883. Manufacturer's warranty against latent defects. 884. Thing bought for particular purpose, 885. When thing cannot be examined by buyer. 886. Trade marks. 887. Other marks. 888. Warranty on sale of written instrument. 889. Warranty of provisions for domestic use. 891. Warranty upon judicial sale. what. 877. A warranty is an engagement by which a warranty seller assures to a buyer the existence of some fact affecting the transaction, whether past, present, or future. See Roberts v. Morgan, 2 Cow., 438; Carley v. Wilkins, 6 Barb., 557; Cook v. Mosely, 13 Wend., 277; Ender S878. Except as prescribed by this article, a mere contract of sale or agreement to sell does not imply a warranty. As to personal property, caveat emptor is the general As to real property, no warranty is implied from a deed No implied mere con warranty in tract of sale. Warranty of title to personal property. Warranty on sale by sample. When seller knows that buyer relies ment, &c. $879. One who sells or agrees to sell personal property, as his own, thereby warrants that he has a good' and unincumbered title thereto." 'Defreeze v. Trumper, 1 Johns., 274; Reid v. Barber, 3 Cow., 272; and see Hoe v. Sanborn, 21 N. Y., 555. Whether this warranty is now implied, where the property is not in possession of the vendor, is in dispute. It is held that it is not, in M'Coy v. Archer, 3 Barb., 323; Huntington v. Hall, 36 Me., 501; that it is, in Smith v. Fairbanks, 7 Foster, 521; see Strong v. Barnes, 11 Vt., 221. It certainly is implied, when the property is in his possession (Burt v. Dewey, 31 Barb., 540). 2 Dresser v. Ainsworth, 9 Barb., 619. $880. One who sells or agrees to sell goods by sample, thereby warrants the bulk to be equal to the sample. Waring v. Mason, 18 Wend., 425; Bradford v. Manley, 13 Mass., 139; Williams v. Spafford, 8 Pick., 250; see Beirne v. Dord, 5 N. Y., 95; Hargous v. Stone, id., 73. S881. One who sells or agrees to sell personal proon his judge perty, knowing that the buyer relies upon his advice or judgment, thereby warrants to the buyer that neither the seller, nor any agent employed by him in the transaction, knows the existence of any fact concerning the thing sold which would, to his knowledge, destroy the buyer's inducement to buy. Merchan dise not in existence. It is utterly impossible to reconcile the cases on this subject. This rule is perhaps as near their result as any that could be stated in as few words (see Hoe v. Sanborn, 21 N. Y., 552; Brown v. Montgomery, 20 id, 487; 2 Kent Com., 480). It will be observed that it is only facts concerning the thing that are required to be disclosed. This restricts the range of the section to matters which, in morals, ought perhaps to be disclosed in even a broader class of cases. $882. One who agrees to sell merchandise not then in existence, thereby warrants that it shall be sound and merchantable' at the place of production contemplated by the parties, and as nearly so, at the place of delivery, as can be secured by reasonable care.2 'This principle, though not directly adjudicated, is clearly at the foundation of the decisions in regard to sales of goods to be manufactured by the seller (see § 883), and is a necessary corollary of the rule which implies a warranty of goods which the buyer has had no opportunity to inspect (see § 885). Hamilton u. Ganyard, 34 Barb., 204, supports the rule here stated. The absolute warranty extends only to the place of production. The inevitable injuries of transportation must be borne by the buyer (Bull v. Robison, 10 Exch., 342). But of course this is to be construed in view of the intention of the parties. If an arti cle is purchasable in New York, in perfect condition, and the same kind of thing is imported from London, but is always injured by the voyage, the seller cannot compel the buyer to accept the latter article, unless the parties contemplated London as the place of production. rer's war against fects. 883. One who sells or agrees to sell an article of Manufactu his own manufacture, thereby warrants it to be free ranty from any latent defect, not disclosed to the buyer, latent dearising from the process of manufacture, and also that neither he nor his agent in such manufacture has knowingly used improper materials therein. Hoe v. Sanborn, 21 N. Y., 552, 566. bought for 884. One who manufactures an article under an Thing order for a particular purpose, warrants by the sale particular that it is reasonably fit for that purpose. Brown v. Edgington, 2 M. & G., 279; Shepherd v. Pybus, $885. One who sells or agrees to sell merchandise inaccessible to the examination of the buyer, thereby warrants that it is sound and merchantable. Wieler v. Schilizzi, 17 C. B., 619; Cleu v. M'Pherson, 1 purpose. When thing can not be ex amined by buyer. marks. S886. One who sells or agrees to sell any article to Trade which there is affixed or attached a trade mark, there Other marks. by warrants that mark to be genuine, and lawfully used. From stat. 25 & 26 Vict., c. 88, § 19. This statute enacts that this warranty can be dispensed with only by a written refusal to warrant. $887. One who sells or agrees to sell any article to which there is affixed or attached a statement or mark to express the quantity or quality thereof, or the place where it was, in whole or in part, produced, manufactured or prepared, thereby warrants the truth thereof. Warranty on sale of written instrument. Warranty of provigions for domestic use From the same statute. S888. One who sells or agrees to sell an instrument purporting to bind any one to the performance of an act, thereby warrants the instrument to be what it purports to be,' and to be binding according to its purport upon all the parties thereto; and also warrants that he has no knowledge of any facts which tend to prove it worthless, such as the insolvency of any of the parties thereto, where that is material,3 the extinction of its obligations, or its invalidity for any cause.1 1 Gurney v. Womersley, 4 El. & Bl., 133; Cabot Bank v. Morton, 4 Gray, 156; Herrick v. Whitney, 15 Johns., 240; Gompertz v. Bartlett, 2 El. & Bl., 849; Canal Bank v. Bank of Albany, 1 Hill, 287. Delaware Bank v. Jarvis, 20 N. Y., 226; Furniss v. Ferguson, 15 id., 437; Young v. Cole, 2 Bing. N. C., 724; 4 Scott, 489. In some cases the value of an obligation may be en tirely independent of the solvency of the party bound thereby, as for example, where he is bound to execute a power. Brown v. Montgomery, 20 N. Y., 287. He does not warrant the solvency of the parties (Elwell v. Chamberlain, 4 Bosw., 320). $889. One who makes a business' of selling provisions for domestic use warrants, by a sale thereof, to one who buys for actual consumption, and not for the purpose of sale,' that they are sound and wholesome.3 |