value of such of his own cattle as had died from the disease communicated to them by the infected animal, (k) the court distin Hill v. Balls. Damages for personal injury from quality of the guishing the case from Hill v. Balls (7) on the ground that in this latter case there had been no misrepresentation to induce the buyer to put a glandered horse in the same stable with others. In George v. Skivington (m) it was held that the buyer might recover damages for personal injury resulting to him from the use of a deleterious compound furnished by a chemist and unfit for the purpose for which he professed to sell it. (n) thing sold. (k) [Marsh v. Webber, 16 Minn. 418. And so in a similar case it was decided that if certain animals in a drove are sold, under a warranty that all the animals in the drove are free from contagious or infectious diseases, the purchaser may recoup in damages, in an action for the price, the whole loss occasioned to him by the existence of such a disease in the drove at that time, although some of the animals purchased by him did not take the disease until afterwards. Bradley v. Rea, 14 Allen, 20. See Ward v. Hobbs, 2 Q. B. Div. 331; 3 Ib. 150.] (1) 2 H. & N. 299; 27 L. J. Ex. 45. (m) L. R. 5 Ex. 1; 29 L. J. Ex. 8. [See Randall v. Newson, 2 Q. B. Div. 102, cited and stated ante, § 657 note (1).] (n) [See Wellington v. Downer Kerosene Oil Co. 104 Mass. 64, 68. In an action on a warranty, it is necessary for the plaintiff to prove clearly the breach thereof. But the defendant's knowledge of the defect or bad quality of the goods need not be proved. Williamson v. Allison, 2 East, 446; Carley v. Wilkins, 6 Barb. 557; Bartholomew v. Bushnell, 20 Conn. 271; Tyre v. Causey, 4 Harring. 425. Even if the knowledge be charged in the declaration. House v. Fort, 4 Blackf. 293; Massie v. Crawford, 3 Mon roe, 218. See Ross v. Mather, 51 N. Y. 108. But if an action be brought for fraud in the sale by representations which the vendor knew to be false, the knowledge of the defect or bad quality of the goods must be brought home to the vendor. Bartholomew v. Bushnell, 20 Conn. 271; Vail v. Strong, 10 Vt. 457; Kingsbury v. Taylor, 29 Maine, 508. Where the representations of the vendor amount to a warranty of the goods sold, and he knew the representations to be untrue, the purchaser may sue him either in an action of tort or in contract on the warranty. See Hillman v. Wilcox, 30 Maine, 170; Kingsbury v. Taylor, 29 Ib. 508; Salem India Rubber Co. v. Adams, 23 Pick. 256; Lassiter v. Ward, 11 Ired. 443; Mahurin v. Harding, 28 N. H. 128; Pierce v. Carey, 37 Wis. 232. In Kingsbury v. Taylor, 29 Me. 508, it was held, that where winter rye was sold for seed spring rye, and the purchaser thereby lost his crop, an action of deceit would not lie, unless the vendor knew it to be winter rye. See Salem India Rubber Co. v. Adams, 23 Pick. 256; Stone v. Denny, 4 Met. 151; Emerson v. Brigham, 10 Mass. 197; Randall v. Newson, 2 Q. B. Div. 102, cited and stated ante, § 657, in note (k1).] acceptance of sample is sufficient under statute, when sample is part of bulk, 141, 143, n. (/). but not, if not received as part of bulk, 143, and n. (1). whether specimen, or part of bulk, is for the jury, 143, n. (1). need not be by vendee personally, 144, n. (p). agent of both parties cannot make valid acceptance, 144, n. (p). implies delivery, 187, n. (a). whether buyer has accepted, is fact for the jury, 144, and n. (q). acceptance may be effected by dealing with the bills of lading, 148. acceptance may take place without the buyer's examining the goods, 149. acceptance in forming the contract must be distinguished from accept- vendee does not accept till he has had the means of exercising the how in case of specific articles, 155, n. (o). no act of vendor will satisfy statute, 142, n. (g). acts of buyer must concur, 142, n. (g), 187, n. (a). mere words not sufficient, 142, n. (g). mere delivery not sufficient, 142, n. (g). mere possession by vendee not enough, 150, n. (ď1). acceptance may precede receipt, 157. there may be an acceptance of goods still in possession of the seller, how when seller refuses to deliver goods sold, claiming a lien for the how when goods delivered, but title not to pass until payment, is not sufficient after action brought, 159. acceptance and receipt following contract of sale, 143, n. (i). when acceptance may precede delivery, 155, n. (0). mere delivery without acceptance, 142, n. (g). test is, whether acceptance and receipt are in pursuance of previous and with intent to perform the whole contract, 170, n. (q). by carrier, is not acceptance under the statute, 160, and n. (a). cases in which court has set aside verdict because not sufficient evi- dence of acceptance, 161. by agent, 144, n. (p). receipt by carrier, after acceptance, sufficient, 160, n. (a). acceptance may be inferred from silence and delay, 162 et seq. marking the goods with buyer's name, by his consent, is acceptance, acceptance of part suffices under the statute to prove the whole con- or where the goods are of different kinds, 168. or where the bargain is for resale also, on certain conditions, 169, and acceptance and receipt prove the contract, though some of its terms acceptance and receipt of part of the goods take the case out of stat- acceptance and receipt sufficient, though they occur after oral contract acceptance too late after vendor has disaffirmed contract, 156, 171. In performance of the contract, 699. buyer must fetch goods bought, 699. what plaintiff must show in an action for goods sold and delivered, within a reasonable time, or he will be responsible for default, 700. what is reasonable time, question of fact for jury, 700. where contract is for delivery "as required," 700. buyer has right to inspect before acceptance, 701, and n. (d1). mere receipt is not acceptance, 703, 704, n. (9). Figures refer to Sections. ACCEPTANCE OF GOODS- Continued. but becomes so, by delay in rejecting, or by act of ownership, 703. and may be retracted, if samples false, 650, 667, 705. must be of all or none, of an entire lot, 426, and n. (m). by purchaser, need not be shown in action for price of goods sold ACCEPTANCE OF OFFER, force of, 39, n. (c). before retraction of offer completes contract, 41, n. (q). time within which may be made, 41, n. (q). what constitutes, 41, and n. (9). must meet and correspond with offer, 39, n. (c). by whom may be made, 41, n. (9). various forms of, 44, n. (a). ACCEPTANCE OF PROPOSAL. (See ASSENT.) ACCOUNT CURRENT, rule of appropriation of payments in accounts current, 749. a set-off in an ordinary account current is not equivalent to payment, ACCOUNT STATED, set-off in account stated is equivalent to payment, 711. when an excuse for non-performance of contract, 570, n. (a). ACTIONS, PERSONAL AGAINST THE BUYER, 758. Where property has not passed, sole action of vendor is for damages for non-acceptance, 758. date of the breach, 759. not changed by buyer's bankruptcy, 759. effect of buyer's bankruptcy after partial delivery, 759, 759 a. vendor may maintain action without completing contract, if buyer measure of damages, 761. (See DAMAGES.) vendor may sometimes have the right to rescind a contract partly ex- Where property has passed, 764. vendor has only a personal action if the buyer has received actual the action is for the price, 764, 765, and n. (x). and not for rescission of the contract for default in payment, 764. nature of his personal action, 764. cannot rescind because of buyer's bankruptcy, 759, 764. where the property has passed, vendor may recover on the common ACTIONS- Continued. Figures refer to Sections. but declaration must be special for not accepting, where property has also where the payment is to be made wholly or partially by bills, form of remedy where vendee obtains the goods by fraud and the term vendor who has received conditional payment in a bill must account PERSONAL ACTION AGAINST THE VENDOR. (See AVOIDANCE OF THE AGENT. (See PRINCIPAL AND AGENT.) AGREEMENT, for sale. (See EXECUTORY AGREEMENT.) frauds, 245. ALIEN ENEMY, sale to, illegal, 510. agreement" and "bargain” under statute of "ALL FAULTS," sale with, 477, 477 a, 602, and n. (¿1). ALTERATION, of written contract by subsequent parol agreement, at common law, 216. of memorandum under statute of frauds, by subsequent parol agree- ordered by buyer in chattels made for him, 217. of bought and sold notes, 306. AMERICAN LAW, AND DECISIONS UPON, when offer is left open, 64-67. criticisms on Cooke v. Oxley, 64, 65, and n. (i), 66. assent by correspondence, 68, 69, 75. executory agreement, when property is afterwards acquired, 83. contracts under statute of frauds-distinction between "sales" and acceptance and receipt of goods under statute, 140, 179, 181. memorandum in writing, 254. as to sales of specific chattels conditionally, 318-351, and notes. effect of delivery to carrier in passing the property, 362. action for deceit, 432. effect of fraud on vendor, in respect of passing the property, 451. fraud of vendor in sale of a horse, 482. fraud against creditors by sales without delivery, 502. illegal sales, 556. as to sales on Sunday, 557, 558. as to impossibility as an excuse, 570. as to waiver of condition precedent, 569. implied warranty of title, 641. |