to transfer the title to him, that upon being goods as the property of K. Held, that he was called on for payment he replied "that when liable to the plaintiffs in an action of trespass. the defendant furnished lumber according to Shloss v. Cooper, 27 Vt. 623. the contract, he would pay for it." Fletcher v. Cole, 23 Vt. 114.

60. Special cases. Where A agreed to build a barn for the plaintiff by a specified 56. Where the owner of goods in the pos- time, for which the plaintiff was to furnish session of his bailee proffered to sell them to timber standing in his woods ;-Held, that the the bailee, and the bailee thereupon proceeded timber drawn and sawed into boards by A, for to use and sell them as his own;-Held, that that purpose, remained the property of the he was liable as for goods sold. Jones v. Hard, plaintiff and was not subject to attachment as 32 Vt. 481. the property of A. Gallup v. Josselyn, 7 Vt.

57. Election. The plaintiff let the defend- 334. ant have, under a written contract, a yoke of 61. I agreed to cut and draw for Pa oxen "to work and use well and run all risk quantity of wood which P had a right to cut of accident, sickness and death for one year, upon the land of a third person, and by the for $115, and interest." If returned, the agreement I was to "own and possess " the defendant was to pay $12 for the use of the wood until he should be paid for cutting and oxen; and if he paid $115, and interest, in one drawing. I cut and drew the wood and year, he was to own them. Near the end of deposited it in the highway and on land the year the defendant informed the plaintiff belonging to R, by consent of all parties, where that he should not return the oxen, and he it was attached by a creditor of P, as his propcontinued to use them until after the end of the erty. After the attachment, I sold the wood year, and until one of them died. In an action to the defendant. The wood was then sold on for goods sold;-Held, that the defendant, by his notice, had elected to become the purchaser, and that the bringing of the suit was an affirmance by the plaintiff of such election. Fuller v. Buswell, 34 Vt. 107.

the execution against P to the plaintiff. After this, the defendant drew away the wood. P had paid nothing towards the cutting and drawing of the wood. In trespass, held, that I under his agreement with P, had a special 58. The plaintiff's intestate (Roberts) and property in the wood binding against P, and, the defendant (Mann) made the following upon these facts, against his creditors, which written agreement: "Springfield, March 22, passed by the assignment of I to the defendant 1865. Received of G. H. Roberts $300 on a and that the plaintiff could not recover. lot of assorted fur skins, billed at $347.25. mond v. Plimpton, 30 Vt. 333.

This money is to be applied in payment for the

tions.

Ham

skins if we can agree on the prices; otherwise, 4. Rescission-Acceptance as a waiver of objecthe skins are to be returned to Brattleboro, Vt., by Roberts, and I am to return the $300.

Gilbert H. Mann." The defendant having 62. Right to rescind. In case of sales, refused after more than three days to receive assumpsit will lie for breach of warranty, or back the skins, Roberts sold them in market an action of deceit for fraud in the sale; and, for less than $300, and brought this suit to in some cases, the purchaser may, for fraud in recover the difference. Held, that the written the seller, rescind and demand back the considcontract contemplated a future agreement sup- eration paid. In such case, he may rescind the plementary to the written contract as to price, contract, or affirm it, at his election; as, by and that it was competent for the defendant to bringing his action for damages. If he would testify, that immediately after the execution of put an end to the contract and recover back the written contract, at the same interview, the consideration, he must, in due time, offer Roberts agreed to notify the defendant in three to rescind and demand a repayment of the days whether he would keep the skins and pay consideration. Warner v. Wheeler, 1 D. Chip. the price for them or not. Field, Admr., v. 159.

Mann, 42 Vt. 61. Held (Peck, J., dissenting), 63. Where one purchased goods upon credit, that this evidence tended to prove a sale at the upon the recommendation of a third person to price named, if Roberts did not within the whom the buyer had referred the seller for three days notify the defendant whether he information ;-Held, that the buyer was responwould take the skins at the price named or sible for the representations made, the same as not. Ib. if made by himself, on the common principles 59. To sell or return. The plaintiffs of agency; and, the recommendation which left with K, a trader, goods "to sell or return induced the credit being materially false and on demand at prices set in the bill receipted, this known to the buyer, that the seller upon K's commission, or compensation, to be what obtaining knowledge of the falsehood could he could sell the goods for above the prices rescind the sale, and recover the goods from named. The defendant attached the unsold the buyer, or his attaching creditor. Fitzsim

mons v. Joslin, 21 Vt. 129. 25 Vt. 234. 31 Vt. [answer the description, if the party giving the 109. 36 Vt. 198. 42 Vt. 111. order would avail himself of the right to return 64. The mere insolvency of the purchaser the goods, he should do so as soon as he has of goods, together with a consciousness on his time and opportunity to ascertain the fact. part of inability to pay for them, does not Boughton v. Standish, 48 Vt. 594. amount to such a fraud as to enable the seller 73. In an action for a false warranty on the to avoid the contract of sale and reclaim the exchange of horses, the defendant cannot object goods. Redington v. Roberts, 25 Vt. 686. that at the time of the exchange there existed a 65. The plaintiff sold the defendant certain lien upon the horse he received, in behalf of a teas at a price named, as and for good teas, but former conditional vendor for part of the purnot by sample, nor was there any fraud, nor chase price, where such lien has been discharged warranty. The defendant received the teas, before the trial, the defendant never having whose quality was ascertainable on inspection, been disturbed in his title or possession, and and sold part thereof, and within five or ten never having offered to rescind the contract. days after the receipt of the teas, but before Clayton v. Scott, 43 Vt. 553.

discovering their inferiority, gave his note for 74. Case of duress. Where a party had the price. In an action on the note;-Held, made sale of property by duress and taken the that the inferiority of the teas, they not being purchaser's note for a sum which included that worthless, was no defense to the note, in whole and other matters, and gave notice that he or in part. Henderson v. Ward, 27 Vt. 432. repudiated the trade and all of the note which 66. Acceptance as a waiver. Waiver embraced it ;-Held, that it was not necessary of condition in a contract, and of objection to to offer to return the note in order to such quality of goods purchased, by receiving part, repudiation-he never having offered to collect and use and payment. Cole v. Champ. Tr. Co., or negotiate the note, and bringing it into court. 26 Vt. 87. Brownell v. Talcott, 47 Vt. 243.

67. A person contracting for the purchase 75. Articles agreed to be manufacof articles to be in good condition, is bound to tured. Where an article is to be manufactured pay the price stipulated, although they were in to order, and the contract is silent as to quality bad condition and depreciated, if he has accept- of the material to be used, it is implied that the ed them with knowledge of their condition and material shall, at least, be of an ordinary without objection. Cram v. Watson, 28 Vt. quality as to goodness. Brown v. Sayles, 27 22. Vt. 227.

68. The plaintiff sold the defendant a horse 76. Where the plaintiff under a written for which the defendant agreed to pay a wagon contract had, at the time and place specified, worth $60, to be delivered at a future day delivered articles of the number and description named, and $10 in money. Held, that the agreed to be manufactured, and the defendant value of the wagon was an essential part of the used a part of them, and paid part of the price, contract, and not matter of description merely; and promised to pay the balance ;— Held, that and that the delivery and acceptance of a this was such an acceptance of all, that he wagon worth only $25, in consequence of could not object on account of any apparent defects not known to the plaintiff, and which defects in them. Wilkins v. Stevens, 8 Vt. 214. he could not have discovered on careful inspec- 18 Vt. 581.

tion at the time of his acceptance, should count 77. The purchaser of an article manufacas but $25 towards the $60. Brown v. Sayles, tured for him at a stipulated price, under an 27 Vt. 227.

order specifying style, quality, &c., may reject 69. Time to rescind. Where the right to it, if not made according to the contract, and rescind a purchase of varnish, on trial of the give notice of non-acceptance, and bring his article, was reserved in the contract;—Held, action for non-performance of the contract; but that the using of it to a greater extent than was necessary to test it, barred the right to rescind. Mayer v. Dwinell, 29 Vt. 298. 32 Vt. 182.

if he accepts it, there being no warranty or fraud, he becomes liable to pay the stipulated price. He cannot accept it, and impose con70. Acceptance of an article by non-return ditions, and sue for non-compliance with such after expiration of time given for trial. Waters conditions. Gilsom v. Bingham, 43 Vt. 410. Heater Co. v. Mansfield, 48 Vt. 378. 78. Where articles are manufactured and

71. Where the right of rescinding a sale delivered, inferior or different in some respects exists it must be exercised within a reasonable from those contracted for, and the sale is not time, or the property becomes the purchaser's repudiated by notice of non-acceptance within and he must pay for it according to the con- a reasonable time, this will be a ratification of tract, subject to the right of recoupment for the sale. Esty v. Read, 29 Vt. 278. fraud. Tilton Safe Co. v. Tisdale, 48 Vt. 83. 79. The acceptance of an article manufac72. Where goods of a specific description tured to order, which the purchaser supposes to are ordered, and when received they do not be without defects, is not conclusive upon him

if the defect could not be ascertained by careful, P. The bills of lading described Fas consignee, inspection, or there was no opportunity to Ogdensburgh, "to be forwarded to P, Burlinginspect it. In such case, the purchaser is not ton." The flour arrived by steamer at Ogdensliable for the contract price, but for what the article was worth. Brown v. Sayles, 27 Vt. 227.

burgh, whence there was a railroad to Burlington, run in connection with the steamers. The freight and government duties being unpaid, 80. A manufactured a pump for B, under the flour was placed, subject to the provisions an agreement that if the pump was not a good of the U. S. warehousing system, in a wareone he should have nothing for making it. The house of the R. R. Co., but under the charge of pump was put in B's well, and B paid part of the owners of the steamers, from which warethe price of the pump. On trial, the pump house it could not be moved until the freight proved not to be a good one, not being con- and duties were paid, or the latter were secured structed on an approved plan, and answered its according to U. S. laws. The flour in the purpose but imperfectly. A tried to fix the warehouse was held subject to the special direcpump several times, and not succeeding, B❘tion of F, and would not be forwarded without several times requested him to take it away. his direction. P having become insolvent, his Held, that the pump never became B's pro-assignees notified F of the assignment, and perty; that no acceptance of it could be pre-directed him to hold the flour subject to their sumed, under the circumstances, and that A order. F thereupon went to the warehouseman could not recover either for the pump, or for his labor in fixing it. Sias v. Bates, 18 Vt. 579.

5. Stoppage in transitu.

and countermanded a previous order to forward the flour, and gave directions to have it remain in the warehouse for further orders. Held, that the transitus was ended, and that G, the vendor, could not thereafter, by paying the freight and complying with the U. S. customs regulations, 81. The right. Where goods are pur- exercise the right of stoppage in transitu. Ib. chased and paid for by the order, note, or 85. Where goods purchased in N. Y. accepted bill of a third party, without any arrived on the railroad cars at R, in Vt., their indorsement or guaranty of the purchaser, the place of destination, subject to charges, but vendor has no right of stoppage in transitu for before unloading or delivery and while in the the insolvency of such third person. Eaton v. hands of the carriers as such, they were attached Cook, 32 Vt. 58. by a creditor of the purchaser and removed 82. Where the transitus ends. Goods on payment of charges;-Held, that the transold and shipped at Troy, N. Y., were directed situs was not ended; that the unpaid vendor to the vendee at Vergennes, and were landed on | had the right of stoppage in transitu, and that the wharf at Vergennes, which was half a mile after demand, he could recover in trover from the vendee's place of business. This against the attaching creditor. Kitchen v. wharf was the usual place of the vendee's Spear, 30 Vt. 545. receiving such goods, and, after landed, neither 86. Where goods are sold to A, who, before the wharfinger, nor any one for him or for the delivery, resells them to B, and this being carriers, had any charge of the goods, and they known to the first vendor, he consigns them would in the usual course of business have to B, this new destination is a final and been taken away by the vendee without any irrevocable delivery, and the right of stoppage claim for payment of freight. Held, that the in transitu is gone. Eaton v. Cook, 32 Vt. 58. wharf was the place of ultimate destination named by the consignor, and that when the goods passed from the hands of the carrier they

II. WARRANTIES.

express; particular warranties.

came into the constructive possession of the 1. What constitutes a warranty; implied; vendee, and that the right of stoppage in transitu had ceased. Sawyer v. Joslin, 20 Vt. 172. 23 Vt. 212. 30 Vt. 552.

87. Implied warranty of title. If one 83. When goods are delivered at a place affirms that he has an interest in a chattel, and where they will remain until a fresh impulse is releases that interest upon a sale, when in fact communicated to them by the vendee, the tran- he has none, he is liable as for a warranty, situs is at an end, and the vendor's right of whether he sells the chattel itself, or his interstoppage in transitu is ended. Guilford v. est, right or title in it. Strong v. Barnes, 11 Smith, 30 Vt. 49. 40 Vt. 149.

Vt. 221.

84. P, residing at Burlington, Vt., purchased 88. In the conveyance of personalty there flour on credit of G at Toronto, Canada, and is always an implied warranty of title, unless it ordered it shipped to F at Ogdensburgh, N. Y., be the vendor's title, and not the thing itself, who was P's agent for the purpose of receiving which is intended to be conveyed; and a subsethe flour there and forwarding it as directed by quently acquired title in the vendor will inure

to the benefit of the vendee. Sherman v. having been badly burned in the manufacture Champlain Transportation Co., 31 Vt. 162. of potash. Held, that here was no implied 89. A warranty of title is implied upon an warranty of fitness for use, and that the defendexchange, the same as upon the sale, of chattels. ant was liable for the full price agreed. Stevens Patee v. Pelton, 48 Vt. 182. v. Smith, 21 Vt. 90.

90. of genuineness. The defendant 98. The plaintiffs, manufacturers of safes, assigned by writing to the plaintiff a promissory sent the defendants a safe answering the terms note, describing the paper as a note signed of their written order, viz.: "A No. 4 safe with by," &c. Held, that this was an express war- combination lock of their make." Held, that ranty that the note was a valid note, and that there was no implied warranty as to the merit the signer had sufficient capacity to make it. or usableness of the lock. Tilton Safe Co. v. A warranty to this extent would probably be Tisdale, 48 Vt. 83. implied from the sale itself. Thrall v. Newell, 19 Vt. 202.

99. The words, in a bill of sale of a horse, "considered sound," were held not to be a 91. Sound price not a warranty. A sound warranty of soundness, but only a representaprice is not per se a warranty of the soundness tion of soundness, bearing upon the question of of an article sold, and the seller is not liable for deceit practiced. Wason v. Rowe, 16 Vt. 525. defects or unsoundness without an express warranty, or unless guilty of fraud. Penniman v. Pierson, 1 D. Chip. 394. 1 Aik. 272.

100. A warranty that a horse is "sound and right,” means that the horse is right in conduct and behavior, as to all matters materially

92. In an action for the agreed price of a affecting its value, as well as in physical conpatent right sold without warranty or fraud, dition. Such a warranty covers a case of "cribthe plaintiff is entitled to recover the full price, bing," whether or not that be a physical if the patent is of any value. Vaughan v. Porter, unsoundness. Walker v. Hoisington, 43 Vt.

93. It is no defense to an action to recover 101. Representations constituting a the price of a cow sold, that the cow was so warranty-Question of intent. Where the diseased as to be worthless, where the sale was declarations of the vendor as to the character without fraud, or warranty. Bryant v. Pem- and quality of the thing sold, form the basis of ber, 45 Vt. 487. the sale, such declarations are ordinarily to be

94. Sale for a particular use. Where an regarded as a warranty. They should be subarticle is bought, and sold, for a particular mitted to the jury, unless it is apparent that known use, the sale ordinarily implies a war- they were understood by the parties at the ranty that the article is fit for that use. Beals time as nothing more than recommendation v. Olmstead, 24 Vt. 114.

and matter of opinion, leaving the purchaser to understand that he must examine and judge for himself.. Beals v. Olmstead, 24 Vt. 114.

102. A simple affirmation made in the sale of property as to soundness or the like, is not a warranty, nor can it be held such by the court, unless it is found by the triers of fact that it

95. The plaintiff purchased of the defendant, for a sound price, cheese made by the defendant, and for the purpose, made known to the defendant, of sale in a foreign market. The cheese was maggoty and so unfit for market, which was from a fault of the manufacture and was a latent defect. Held, that the defendant was intended and understood by the parties as was liable upon an implied warranty that the cheese was fit for the purpose stated. Pease v. Sabin, 38 Vt. 432.

96. Particular terms. The terms "good cooking stoves" in a contract of sale were held not to imply a warranty of quality. Barrett v. Hall, 1 Aik. 269.

a warranty. Bond v. Clark, 35 Vt. 577. Foster v. Caldwell, 18 Vt. 177. Beeman v. Buck, 3 Vt. 53.

103. In an action for the breach of warranty as to the quality of butter sold, the referee reported what was sold by the parties during the negotiations for the sale, and found that "the 97. The plaintiff bargained and sold to the language used imported that the butter should defendant, at a specified price per pound, "old be of the best quality, &c.; that both parties potash kettles," which, as the plaintiff knew, so understood it, and intended it to make a the defendant intended to melt up and use in part of the contract as to the quality of the his business of manufacturing stoves. There butter;" and reported, as a conclusion of law, was no express warranty of the quality; the that such language amounted to a warranty. plaintiff knew of no defect and was guilty of no Held (with hesitation), that this was a finding fraud. The defendant had an opportunity to of a warranty as matter of fact, and the report examine the kettles, knew that they had been was confirmed. Houghton v. Carpenter, 40 used in the manufacture of potash, and received Vt. 588.

them without objection. On breaking them up 104. Apparent defects-Special warfor melting, one-half the entire weight was ranties. The rule excluding from a general found wholly unfit for use, by reason of their warranty of soundness such defects as are

Parlin v. Bundy, 18 Vt. 582.

2. Effect of breach, and remedy.

110. Effect. A breach of warranty in the

known to the purchaser, only applies to such laration averring his knowledge of the unsoundas are perfectly obvious to the senses, and the ness. effects and consequences of which may be accurately estimated, so that no purchaser would expect the seller intended to warrant against them. Such general warranty embraces all other defects, though apparent to some extent, sale of goods, where there was no fraud nor but still equivocal and doubtful in their charac- agreement for a rescission, does not entitle the ter, whether they are permanent, or temporary, purchaser to rescind the contract, but only to or whether they are mere harmless blemishes, claim a deduction from the agreed price, or or but partially developed unsoundness. Po- damages for a breach of the warranty. Mayer land, C. J., in Hill v. North, 34 Vt. 615; and v. Dwinell, 29 Vt. 298. West v. Cutting, 19 Vt. embraces those apparent defects, to understand 536. 27 Vt. 232. Matteson v. Holt, 45 Vt. the true nature and extent of which requires 336. the aid of skill, experience or judgment. 111. Where property is bought upon inspecWilson, J., in Pinney v. Andrus, 41 Vt. 641. tion, with warranty as to quality, no duty is 105. This rule as to general warranties has imposed upon the purchaser to give notice of no application to the case of a special warranty the defect, or to offer to return the property, in against a specified defect; for the seller may order to entitle him to an action for breach of warrant against a defect which is patent and warranty. Nor has he generally a right in obvious, as well as against any other. such case to return the property; but he has,

Ib.

106. Thus, where the declaration counted if there was fraud in the sale. But when the upon a special warranty that the sheep pur- property is not bought upon inspection, but the chased had not the foot-rot, and averred a sale is executory, and the seller, contracting to breach that they had the foot-rot;-Held, that furnish goods of a particular quality, forwards on proof of the special warranty and breach, them, and they do not answer the contract, the plaintiff was entitled to recover without the buyer may return them; and if he neglects any regard to whether the existence of the to do so, but keeps and appropriates them to disease was obvious and discoverable, or was his own use, it is often held that the objection discovered and known by the plaintiff when he to the quality is thereby waived. Houghton v. made the purchase. Pinney v. Andrus. Carpenter, 40 Vt. 588.

107. Where the parties to a sale of sheep 112. In the sale of chattels, or of an article settled the terms of the trade, agreeing upon manufactured to order, if there be a warranty the price and the time and place of future or fraud, an action by the purchaser will lie delivery, and a part of the purchase price was therefor, though the property be retained by paid, and as part of that agreement the seller him. Gilson v. Bingham, 43 Vt. 410. warranted the sheep to be sound, and on the 113. Action Pleadings. In an action next day the purchaser went to pay the balance for breach of warranty of soundness of a horse, for the sheep, and then discovered that the it is sufficient to assign the breach in the negsheep were unsound, and offered to rescind the ative of the terms of the contract, without trade, when the seller repeated his warranty alleging wherein the unsoundness consisted. made on the first day;-Held, that the two Dictum contra, in Martin v. Blodgett, 1 Aik. interviews were to be regarded as parts of the 375, denied. Wheeler v. Wheelock, 33 Vt. 144. one trade and sale, and whatever was said or Parlin v. Bundy, 18 Vt. 582. done at either interview, in relation to the trade, was part of the contract. Ib.

114. In an action on the case for a false warranty, in the common form-warrantizando 108. In an action for breach of warranty of vendidit,—alleging a scienter of the falsity of the a horse, the declaration averred a warranty of warranty, the plaintiff may recover on proof of soundness of the horse except a bunch on one the warranty and its breach, without proof of hind leg, and averred that the horse was the scienter; or if he fails in proof of the warunsound in other particulars specified; but did ranty, but proves the scienter, he may recover not aver that the bunch, in its effects upon the for the deceit and if he proves the warranty horse, was other than and beyond what was and the scienter, his right of recovery on both obvious, and what the defendant warranted. grounds is made out. Beeman v. Buck, 3 Vt. The court below charged, that if the horse was 53. Vail v. Strong, 10 Vt. 457. Goodenough sound "except so far as that bunch made him v. Snow, 27 Vt. 720. Pinney v. Andrus, 41 unsound," then there was no breach of the Vt. 631.

:

warranty, "even if the bunch made him lame." 115. Evidence. A declaration in assumpHeld correct. Morrill v. Bemis, 37 Vt. 155. sit counting upon an express warranty of 109. Limited warranty. Assumpsit lies soundness in a sale, was held not sustained by upon a limited warranty of soundness-as, mere proof of fraud in this respect. Shepherd sound so far as the warrantor knows—the dec- v. Worthing, 1 Aik. 188.