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Alteration of Position of Parties.

435 N. W. Ry. Co. v. Whinray, 10 Ex. 77; 23 L. J., Ex. 261; but, not otherwise ; Sanderson v. Aston, L. R., 8 Ex. 73. See further Holme v. Brunskill, 3 Q. B. D. 495, C. A.

The contract for suretyship is sometimes severable, so that it is only discharged as to part, by an alteration in the position of the creditor and the principal debtor. Harrison v. Seymour, L. R., 1 C. P. 518; Skillett v. Fletcher, L. R., 1 C. P. 217; L. R., 2 C. P. 469, Ex. Ch. ; Croydon Commercial Gas Co. v. Dickinson, 2 C. P. D. 46, C. A.

If the rights against the surety are expressly reserved, the latter is not discharged ; Kearsley v. Cole, 16 N. & W. 128 ; Price v. Barker, 4 E. & B. 779; 24 L. J., Q. B. 130; Bateson v. Gosling, L. R., 7 C. P. 9; and, if the contract of suretyship contains a special clause allowing the creditor to compound with the principal debtor, the surety is not discharged by such compounding ; Cowper v. Smith, 4 M. & W. 519'; Union Bank of Manchester v. Beech, 3 H. & C. 672 ; 34 L. J., Ex. 133. The reservation of rights against the surety prevents the latter from being discharged, because the principal debtor cannot then complain that the surety, when he has been obliged to pay the debt, immediately claims to be indemnified by the prin cipal debtor, and that this claim makes the release illusory. Kearsley v. Cole, supra; Nevill's case, L. R., 6 Ch. 43, 47 ; Muir v. Crawford, L. R., 2 H. L., Sc. 456, 458.

Where the liabilities of the principal debtor have been changed by statute during the pendency of the guarantee, the surety is discharged; Pybus v. Gibb, 6 E. & B. 902; 26 L. J., Q. B. 41 ; unless the terms of the guarantee show that it is intended the suretyship should continue ; Oswald. V. Berwick, Mayor of, 5 H. L. C. 856 ; 25 L. J., Q. B. 383. See Skillett v. Fletcher, supra.

As a surety, on payment of the debt, is entitled to all the securities of the creditor, whether he is aware of their existence or not, even though they were given after the contract of suretyship, if the creditor who has had, or ought to have had, them in his full possession or power, loses them or permits them to get into the possession of the debtor, or does not make them effectual by giving proper notice, the surety to the extent of such security will be discharged; a surety, moreover, will be released if the creditor, by reason of what he has done, cannot, on payment by the surety, give him the securities in exactly the same condition as that in which they formerly stood in his hands. See notes to Recs v. Barrington, 2 White & Tudor, L. C.; Wulff v. Jay, L. R., 7. Q. B. 756. Thus, where the plaintiff held a bill of sale of the debtor's furniture, as security for a debt to him, for wh the defendant was surety, but neglected to register it, and although he had notice of the debtor's insolvency, did not seize the furniture under it; and the goods in consequence passed to the debtor's trustee in bankruptcy ; it was held that the defendant was discharged to the extent of the value of the goods. S. C., Id. See also Watts v. Shuttleworth, 5 H. & N. 235; 29 L. J., Ex. 229; and Mutual Loan Assoc. v. Sudlow, 5 C. B., N. S. 449 ; 28 L. J., C. P. 108; Lawrence v. Walmesley, 12 C. B., N. S. 799 ; 31 L. J., C. P. 143. These rules as to the right of the surety apply as between the acceptor and indorser of a bill where securities had been deposited to secure its payment, and it has been paid at maturity by the indorser. Duncan v. N. d: S. Wales Bank, 6 Ap. Ca.

, 1 D. P. In Polak v. Everett, 1 Q. B. D. 669, C. A., the distinction is explained between intentional acts which discharge the claim against the surety altogether, and negligent acts which discharge it only to the extent to which the surety has been thereby prejudiced.

In the case of two sureties, A. and B., contracting severally, the creditor does not, by releasing A., thereby break his contract, and so release B., unless

B. can show that he had a right to contribution, which has been taken away or injuriously affected. Ward v. National Bank of New Zealand, 8 Ap. Ca. 755, P. C.

A creditor, who holds security for his debt, does not discharge a surety for the debt, by surrendering his security to the trustee in the bankruptcy of the principal debtor, in order to entitle himself to prove for the whole debt. Rainbow v. Juggins, 5 Q. B. D, 138, 422, C. A.

As to revocation of guarantee, vide ante, pp. 432, 433.

ACTION ON WARRANTY.

A warranty is either express or implied. "Warranties implied by law are for the most part founded on the presumed intention of the parties, and ought, certainly, to be founded on reason, and with a just regard to the interests of the party who is supposed to give the warranty, as well as of the party to whom it is supposed to be given." Readhead v. Midland Ry. Co., L. R., 4 Q. B. 392, Ex. Ch., per cur. ; accord. Francis v. Cockrell, L. R., 5 Q. B. 184, 193, per cur.

Where plans and a specification of a certain work, to be done for A., are prepared as the basis of tenders, A. does not warrant that the work can be done under such plans and specification. Thorn v. Mayor of London, 1 Ap. Ca. 126, D. P. So, where the architect takes out the quantities, A. does not warrant their correctness. Scrivener v. Pask, L. R., 1 C. P. 715, Ex. Ch.

The most frequent cases in which an action is brought on a warranty, is on the occasion of the sale of goods, and of a representation of authority to enter into a contract on behalf of another person.

63 ;

Action on Warranty on Sale of Chattels. Warranty of title.] If a man sells goods, affirming them to be his own, that amounts to a warranty of title. Cross v. Garnett, 3 Mod. 261; 1 Show.

Medina v. Stoughton, 1 Salk. 210; 1 Ld. Raym. 593. But, it would seem that there is in general no implied warranty of title, any more than of quality, on the bare sale of a personal chattel. Per cur., Morley v. Attenborough, 3 Exch. 500 ; Bagueley v. Hawley, infra. Where a pawnbroker sold an unredeemed pledge at an auction of such pledges, which was bought by the plaintiff, and was afterwards claimed by the right owner, it was held that there was no warranty of title. Morley v. Attenborough, supra. So, there is no warranty of title on a sale under an execution, nor, on a sale by the purchaser on that occasion to another purchaser, privy to the first sale. Chapman v. Speller, 14 Q. B. 621. So, in Bagueley v. Hawley, L. R., 2 C. P. 625, the defendant had bought at a public auction a boiler set in brickwork, which had been seized as a distress for poor rate ; the plaintiffs bought it of the defendant, with notice of the circumstances under which it had been originally sold, and were to remove the boiler at their own expense, but were prevented so doing by the mortgagees of the premises : it was held that the seller had not warranted his title to the boiler, or that the plaintiffs would be permitted to remove it; Willes, J., dissented, observing that the plaintiffs had purchased a boiler and not a lawsuit. In order to make the seller of personal property liable for a bad title, there must be shown fraud, or exWarranty of Title.- Warranty of Quality.

437

press warranty, or an equivalent to it by declaration, or conduct, or usage of trade. When articles are bought in a shop, professedly kept for the sale of goods, there can be no doubt that the shopkeeper must be considered as warranting that a purchaser will have a good title to keep the goods purchased. In such case the vendor sells as his own, and that is what is equivalent to a warranty of title. So, in the case of an executory contract of sale, there is a warranty of title. Morley v. Attenborough, per cur., ante, p. 436. Although, therefore, the maxim of caveat emptor applies, yet the exceptions 'wellnigh eat up the rule . . . . so that there may be difficulty in finding cases to which the rule would practically apply." Sims v. Marryatt, 17 Q. B. 291, per Ld. Campbell, C. J. Accord. Eichholtz v. Bannister, 17 C. B., N. S. 708 ; 34 L. J., C. P. 105, per cur. Where the plaintiff had purchased some pieces of print in the warehouse of the defendant, and received an invoice in which the defendant was described as dealer in prints; the goods had been stolen, and the true owner claimed them ; and it was held that the defendant had warranted his title to the goods. S. C.

Warranty of quality.] The following arrangement of the different classes of sales, for the purpose of showing in which cases there is an implied warranty of quality, is taken from the judgment in Jones v. Just, L. Ř., 3 Q. B., 197, at p. 202 et seq. ; a few cases subsequent to, or not referred to in, that judgment being added :

1st. Where the goods are in esse, and may be inspected by the buyer, and there is no fraud on the part of the seller, the maxim caveat emptor applies, even though the defect is latent and not discoverable on examination, at least where the seller is neither the grower nor manufacturer. Parkinson v. Lee, 2 East, 314. So, in the case of the sale in a market of meat, which the buyer has inspected, there is no warranty that the meat is fit for human food. Emmerton v. Matthews, 7 H. & N. 586 ; 31 L. J., Ex. 139. A sale by sample falls under this rule, if the sample truly represent the bulk. Smith v. Hughes, L. R., 6 Q. B. 597.

2ndly. Where there is a sale of a definite existing chattel, specifically described, the actual condition of which may be ascertained by either party, there is no implied warranty. Barr v. Gibson, 3 M. & W.390. So, on the sale of a patent there is no warranty that it is valid. Hall v. Conder, 2 C. B., N. S. 22, 53 ; 26 L. J., C. P. 138, 288, Ex. Ch.; Smith v. Buckingham, 18 W. R. 314, H. T. 1870, Q. B.

3rdly. Where a known, described and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the known, described, and defined thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer. Chanter v. Hopkins, 4 M. & W. 399; Ollivant v. Bayley, 5 Q. B. 288. See Chalmers v. Harding, 17 L. T., N. S. 571, H. T. 1868, Ex.

4thly. Where a manufacturer or dealer contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in that case, an implied warranty that it shall be reasonably fit for the purpose to which it is to be applied. Brown v. Edgington, 2 M. & Gr. 279; Jones v. Bright, 5 Bing. 533; Mallan v. Radcliffe, 17 C. B., N. S. 588 ; and, there is no exception as to latent undiscoverable defects ; Randall v. Newson, 2 Q. B. D. 102, C. A.

5thly. Where a manufacturer undertakes to supply goods manufactured by himself, or in which he deals, but which the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article ; Laing v. Fidgeon, 4 Camp. 169; 6 Taunt. 108 ; Shepherd v. Pybus, 3 M. & Gr. 868 ; even though the sale be by sample; Mody v. Gregson, L. R., 4 Ex. 49, Ex. Ch.; see Macfarlane v. Taylor, L. R. 1 H. L. Sc. 245. A manufacturer of goods, who is not a dealer, warrants that such goods are made by him. Johnson v. Raylton, 7 Q. B. D. 438, C. A.

6thly. Where the contract is to supply goods of a specified description, which the buyer has had no opportunity of inspecting, the goods must not only, in fact, answer the specific description, but, must also be merchantable or saleable under that description. Bigge v. Parkinson, 7 H. & N. 955 ; 31 L. J., Ex. 301 ; Gardiner v. Gray, 4 Camp. 144; Jones v. Just, L. R., 3 Q. B. 197; see also Mody v. Gregson, supra. And, even although the buyer has inspected the bulk, the goods must answer the specified description. Josling v. Kingsford, 13 C. B., N. S. 447 ; 32 L. J., C. P. 94.

By the Merchandise Marks Act, 1862 (25 & 26 Vict. c. 88), ss. 19, 20, on the sale or contract to sell (whether in writing or not) any article with any trade mark on it, or on what it is contained in, or with any description or indi. cation of the number, quality, measure, or weight, or of the place where it was manufactured or produced, there shall be deemed to have been a warranty of the genuineness of the trade mark, or of the truth of the description, &c., unless the contrary shall have been expressed in writing, signed by or on behalf of the vendor, and delivered to and accepted by the vendee, And by sect. 22, cited sub tit. Action for infringement of Trade Marks, post, a right of action is specially given to every person aggrieved by the forging or improper use of trade marks..

Remedy where there is a warranty.) Where a horse or other article has been sold warranted, but is in fact not according to the warranty, the purchaser may of course maintain an action upon the warranty ; but, in some cases he may rescind the contract, and recover the money paid under a claim for money had and received : as, where by the contract the purchaser has the power of returning the article, if not approved ; Touers v. Barrett, 1 T. R. 133; or, where the contract is rescinded with assent of the defendant; per Buller, J., Ib.; and, the article is returned within a reasonable time ; Compton's case, cited by Buller, J., in 1 T. R. 136 ; Adam v. Richards, 2 H. Bl. 573; Street v. Blay, B. & Ad. 456 ; and, in the same state as sold, and without using the thing sold after the discovery of the breach ; Harnor v. Groves, 15 C. B. 667 ; 24 L. J., C. P. 53; Curtis v. Hannay, 3 Esp. 82.

But, on the purchase of a specific chattel, it is only where there is a condition in the contract authorising the return, or the vendor has received back the horse or other article, and has thereby rescinded the contract, or has been guilty of a fraud which avoids the contract altogether, that the purchaser may thus recover back the price ; Street v. Blay, 2 B. & Ad. 462, and the cases there cited ; Gompertz v. Denton, 1 Cr. & M. 207. Where there is a breach of warranty and no condition for rescinding the sale, the vendee must keep the article and rely upon a cross action, or counter-claim, or prove the breach in reduction of damages when sued for the price. Street v. Blay, supra ; Poulton v. Lattimore, 9 B. & C. 259 ; Dawson v. Colis, 10 C. B. 523 ; 20 L. J., C. P. 116.

If the purchaser sue upon the warranty, he need not return the article sold. Fielder v. Starkin, 1 H. Bl. 17; Pateshall v. Tranter, 3 Ad. & E. 103.

Proof of the sale and warranty.) Where there is no written contract, and the warranty is, (as it often is,) mentioned in the receipt for the purchasemoney, the sale and warranty may be proved by the production of the . receipt without an agreement stamp. Skrine v. Elmore, 2 Camp. 407.. A sale for the price of 10l. and upwards is within the Stat. of Frauds, s. 17;

Proof of the Sale and Warranty.

439 but, as the breach of warranty is not usually discovered till after delivery and acceptance of the goods sold, the statute is then complied with, and the contract may be proved by oral evidence.

The plaintiff must in general prove an express warranty ; a high price is not tantamount to an implied warranty. Stuart Wilkins, 1 Doug: 20; Parkinson v. Lee, 2 East, 322. The word “warranty” is not essential; but, there may be a mere misrepresentation or opinion of the seller without any intention on either side to give or require a warranty, and this will be a question for the jury. Generally, however, a representation made at the sale is part of the contract, and equivalent to a warranty: Wood v. Smith, 5 M. & Ry. 124; Salmon v. Ward, infra. But, not if the contract bé reduced into writing. Pickering v. Dowson, 4 Taunt. 779. But, where the evidence of the contract of sale consists of a series of letters which are ambiguous in their terms on the question of warranty, oral evidence of all the surrounding facts and circumstances of the sale is admissible, for the purpose of showing that a warranty was not contemplated between the parties. Stucley v. Baily, 1 H. & C. 405 ; 31 L. J., Ex. 483. A mere invoice describing articles sold does not amount to a warranty of quality. Rook v. Hopley, 3 Ex. D. 209. On the sale of pictures, with a bill of parcels having the artist's name attached, it is for the jury to find whether the seller has guaranteed that they are really the works of the artist, or merely intimated his opinion as to the authorship. Power v. Barham, 4 Ad. & E. 473. A., a corn-dealer, sold to B., another coin-dealer, some barley as “ seed barley," just before bought by sample from a third person. B. knew that A. had so bought it by sample as "seed barley," and that he had not seen it in bulk : held, that this was not evidence of a warranty, but was a mere expression of A.'s belief. Carter v. Crick, 4 H. & N. 412; 28 L. J., Ex. 238.

Where the plaintiff wrote to the defendant, “You will remember that you warranted a horse as a five-year old,” &c., to which the defendant answered, “The horse is as I represented it,” it was ruled that this was evidence of a warranty at the time of sale. Salmon v. Ward, 2 C. & P. 211. Where the seller said, “The horse is sound to the best of my knowledge, but I will not warrant it," and the seller knew it to be unsound, he was held answerable on this qualified warranty, viz., that "it was sound to the best of his knowledge." Wood v. Smith, supra. But quare ; for this seems to be rather a case of fraud than of qualified warranty. Where the warranty was “To be sold, a black gelding, five years old ; has been constantly driven in the plough. Warranted, this was held to be only a warranty of soundness. Richardson) v. Brown, 1 Bing. 344. So, “ Received of B. iol., for a grey four-year old colt, warranted sound," is not a warranty of age. Budd v. Fairmaner, 8 Bing: 48. Where there is a manifest defect, a general warranty of soundness will not be deemed to extend to it. Margetson v. Wright, 7 Bing. 603. A splint has been held not to be such a manifest defect ; S. C., 8 Bing. 454 ; nor convexity of the cornea of the eye; Holliday v. Morgan, 1 E. & E. 1; 28 L. J., Q. B. 9. When a horse is sold with a warranty, by private sale at a repository for the sale of horses, where the terms of the sales are painted upon a board fixed up in a conspicuous situation, a purchaser must be taken to be cognizant of those terms, though nothing is said respecting them, at the time of sale ; and if one of the terms is that the warranty of soundness should remain in force until noon next day, unless in the meantime notice of unsoundness should be given by the purchaser, it must be complied with, though the unsoundness is of such a nature as may not be discovered within that time. Bywater v. Richardson, 1 Ad. & E. 508. So, where the condition was that a horse not answering the warranty must be returned before a given time after the sale. Hinck

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