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1 Burnby v. Bollett, 16 M. & W., 644.

Moses v. Mead, 1 Denio, 379; 5 id., 617; Goldrich v.
Ryan, 3 E. D. Smith, 324; Hyland v. Sherman, 2 id.
234.

Van Bracklin v. Fonda, 12 Johns., 468. In a recent
English decision (Emmerton v. Mathews, 7 H. & N.,
586), it was held that no such warranty is implied;
that the seller's liability rests solely upon the ground
of fraud; and, therefore, that he is not liable unless
he knows that the provisions are bad.

on sale of

$890. One who sells the good will of a business, Warranty thereby warrants that he will not endeavor to draw goodwill. off any of the customers.

upon judi

cial sale.

S891. Upon a judicial sale,' the only warranty Warranty implied is that the seller does not know that the sale will not pass a good title to the property."

The Monte Allegre, 9 Wheat., 644; Morgan v. Fencher,

1 Blackf., 10; Bashore v. Whisler, 3 Watts, 490. Peto v. Blades, 5 Taunt., 657.

general

$ 892. A general warranty does not extend to Effect of defects inconsistent therewith, of which the buyer warranty was then aware, or which were then easily discernable by him,' without the exercise of peculiar skill;

but it extends to all other defects.3

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Price, when to be paid.

Right to inspect goods.

Rights in case of

breach of warranty

S893. A buyer must pay the price of the thing sold on its delivery; and must take it away within a reasonable time' after the seller offers to deliver it."

Tipton Feitner, 20 N. Y., 423. Of course this rule,

like most of the others, may be varied by agreement.

2 He is allowed a reasonable time for this purpose, according to circumstances (Buddle v. Green, 27 L. J. [Ex.], 33; 3 H. & N. [Am. ed.]. 996).

'The seller must put the buyer in motion, before he can take advantage of this provision (Jones v. Gibbons, 8 Exch., 922).

$894. On an agreement for sale, with warranty, the buyer has a right to inspect the thing sold, at a reasonable time, before accepting it; and may rescind the contract if the seller refuses to permit him to do so.

Lorymer v. Smith, 1 B. & C., 1; 2 D. & R., 23.

S895. The breach of a warranty entitles the buyer to rescind an agreement for sale,' but not an executed sale, unless the warranty was intended by the parties to operate as a condition."

2

1 Barker v. Palmer, 4 B. & Ald., 387; see Muller v. Eno, 14 N. Y., 597, 610.

There has been much doubt upon this point, but it is now settled that a warranty is not presumptively a condition (Kiernan v. Rocheleau, 6 Bosw., 148; Voorhees v. Earl, 2 Hill, 288; Thornton v. Wynn, 12 Wheat., 183; Street v. Blay, 2 B. & Ad., 456; Gompertz v. Denton, 1 Cr. & M., 207; Parsons v Sexton, 4 C. B., 907; see Muller v. Eno, 14 N. Y., 597; Behn v. Burness, 1 Best & Sm., 877). ⚫ Bannerman v. White, 10 C. B. [N_S.], 844.

CHAPTER IV.

SALE BY AUCTION.

SECTION 896. Sale by auction, what.
897. Sale, when complete.

898. Withdrawal of bid.

899. Sale under written conditions.

900. Rights of buyer upon sale without reserve.

901. By-bidding.

902. Auctioneer's memorandum of sale.

§ 896. A sale by auction is a sale by public outcry Sale by to the highest bidder on the spot.

auction, what.

complete.

$ 897. A sale by auction is complete when the Sale, when auctioneer publicly announces, by the fall of his hammer, or in any other customary manner, that the thing is sold.

of bid.

S 898. Until the announcement mentioned in the Withdrawal last section has been made, any bidder may withdraw his bid, if he does so in a manner reasonably sufficient to bring it to the notice of the auctioneer." 1 Payne v. Cave, 3 T. R., 148.

2 Jones v. Nanney, 11 Price, 103; M'Clel., 39.

written

$899. When a sale by auction is made upon writ- Sale under ten or printed conditions, such conditions cannot be conditions modified by any oral declaration of the auctioneer, except so far as they are for his own benefit.

Shelton v. Livius, 2 Cr. & J., 411; Bradshaw v. Bennett,
5 Car. & P., 48; Powell v. Edmunds, 12 East, 6.

$ 900. If, at a sale by auction, the auctioneer, having authority to do so, publicly announces that the sale will be without reserve, or makes any announcement equivalent thereto, the highest bidder in good faith has an absolute right to the completion of the sale to him; and upon such a sale, bids by the seller or any agent for him are void.

Warlow v. Harrison, 1 El. & El., 309; 6 Jur. [N. S.], 66;
29 L. J. [Q. B.], 14.

The Revised Statutes (i. 529, § 2) prescribe that "goods
sold by auction shall in all cases be struck off to the
highest bidder." This section does not appear to have
been construed as meaning that goods offered at auction
cannot be withdrawn.

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S901. The employment by a seller at a sale by By bidding auction, without the knowledge of the buyer, of any person to bid at the sale, without an intention on the `part of such bidder to buy, and on the part of the seller to enforce his bid, is a fraud upon the buyer, which entitles him to rescind his purchase.

Auctioneer's memorandum of sale.

Green v. Baverstock, 14 C. B. [N. S.], 204; Crowder v. Austin, 3 Bing., 368; Rex v. Marsh, 3 Y. & J., 331; Howard v. Castle, 6 T. R., 642; Wheeler v. Collier, Moo. & M., 126; Baham v. Bach, 13 La., 287; Moncrieff v. Goldsborough, 4 Harr. & McH., 282; Donald. son v. M'Roy, 1 P. A. Browne, 346; Thornett v. Haines, 15 M. & W., 371. But see Woodward v. Miller, 2 Colly., 279; Bramley v. Alt, 3 Ves., 619, n.; Smith v. Clarke, 12 Ves., 477. This rule is sustained in all its stringency, by Chancellor Kent (2 Kent Com., 539).

S 902. When property is sold by auction, the auctioneer, or his partner or clerk, may enter in a sale book, at the time of the sale, a memorandum specifying the name of the person for whom he sells, the thing sold, the price, the terms of sale, and the name of the buyer. A memorandum thus made binds both the parties in the same manner as if made by themselves.

2 R. S., 136, modified in form, but not in effect.

TITLE II.

EXCHANGE.

Exchange, what.

Form of contract.

Parties

have rights

and obliga

SECTION 903. Exchange, what.

904. Form of contract.

905. Parties have rights and obligations of sellers and buyers. 906. Warranty of money.

$903. Exchange is a contract by which the parties mutually give, or agree to give, one thing for another, neither thing, or both things, being money only.

S904. The provisions of section 865 apply to all exchanges in which the value of the thing to be given by either party is fifty dollars or more.

S905. The provisions of the Title on SALE apply tions of sel- to exchanges. Each party has the rights and obligations of a seller as to the thing which he gives, and of a buyer as to that which he takes.

lers and

buyers.

of money.

$906. On an exchange of money, each party there- Warranty by warrants the genuineness of the money given by him.

See Timmins v. Gibbins, 18 Q. B., 722; Young v. Cole, 3
Bing. N. C., 724; 4 Scott, 489.

TITLE III.

DEPOSIT.

CHAPTER I. Deposit in general.
II. Deposit for keeping.
III. Deposit for exchange.

CHAPTER I.

DEPOSIT IN GENERAL.

ARTICLE I. Nature and creation of deposit.
II. Obligations of the depositary.

ARTICLE I.

NATURE AND CREATION OF DEPOSIT.

SECTION 907. Deposit, kinds of.

908. Voluntary deposit, how made.

909, 910. Involuntary deposit, how made.

911. Deposit for keeping, what.

912. Deposit for exchange, what.

kinds of

S 907. A deposit may be voluntary or involuntary; Deposit, and for safe keeping or for exchange.

deposit,

S908. A voluntary deposit is made by one giving Voluntary to another, with his consent, the possession of how made personal property to keep for the benefit of the former, or of a third party. The person giving is called the depositor, and the person receiving the depositary.

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