discharged in his possession: Burt v. Dewey, 40 N. Y. 283; Bardwell v. Colley, 45 N. Y. 494.

In this country there is also an implied warranty of identity, viz.: that the articles shall be of the kind or species it purports to be, or is described to be; that is, that the article delivered shall be the same thing contracted for. This, in England, is called an implied condition; in America, an implied warranty. In the former country it is called a condition, because the vendee has more right of return in case of breach of condition than he has for breach of warranty, and so it is more favorable for him to hold it a breach of condition. But, as there is in America a generally recognized right of return for breach of warranty, as well as for breach of condition, the practical difference between the two countries is slight.

Warranty of genuineness in the sale of commercial paper comes under this head; a warranty that it really is what it purports to be-a real note, and not a false one. On every such sale the vendor impliedly guarantees (a) that the sig natures to the paper are genuine, and not forged: Herrick v. Whitney, 15 Johns. 240; Thrall v. Newell, 19 Vt. 202; Worthington v. Coles, 112 Mass. 30; Ross v. Terry, 63 N. Y. 613;

Though, of course, no such

Ward v. Haggard, 75 Ind. 381. warranty is implied when the vendor at the sale expressiy refuses to warrant the genuineness: Bell v. Dagg, 60 N. Y. 528. The doctrine of Baxter v. Durand, 29 Mc. 434, and o Fisher v. Riccan, 12 Md. 497, that this implied warranty of genuineness of signature does not apply where a note. is sold in market, like other goods and effects as an article of merchandise, but only where it passes in payment of a debt, can hardly be supported. In both cases alike, the thing transferred is not what it purports to be, but only a semblance of it. It is not a question of quality, but of kind or species. It is not a contract at all, if forged. And as goods and chattels sold must conform to their name and description, and be what they purport to be, so must a note: Hussey v. Libley, 66 Me. 192; Merriam v. Walcott, 3 Allen, 258.

(b) That the signers are competent to contract, and not miners, &c.: Lobdell v. Baker, 1 Met. 192.

(c) But not ordinarily that they are pecuniarily responsible or solvent; for this is a warranting of quality of the article: Day v. Kinney, 131 Mass. 37; Burgess v. Chapin, 5 R. I. 225.

There is no doubt, therefore, that the article delivered must correspond in species and kind with that soid: Lamb v. Crafts, 12 Met. 353.

Some words of quality may be so positive and definite as not to be merely expressions of opinion or recommendation, but words of positive affirmance. In such cases they may be considered as warranties of quality as well as kind: Forcheimer v. Stewart, 65 Iowa, 593; Chisholm v. Proudfort, 15 Up. Can. Q. B. 203.

The maxim of caveat emptor is universally adopted in America, save, perhaps, in South Carolina, and therefore, in the sale of an existing specific chattel inspected or selected by the buyer, or subject to his inspection, there is no implied warranty of quality; or, as sometimes stated "a sound price does not in and of itself, import of sound quality." The doctrine of caveat emptor, however, has so many limitations that it must be read in the light of what are sometimes called exceptions, but which are really independent rules and principles. The purchaser must examine for himself the article offered to him for sale, and exercise his own judgment respecting it. If he purchases without examination or after a hasty examination, or in mere reliance upon the seller, and the article turns out to be defective, it is his own fault, and he has no remedy against the seller unless the latter expressly warrants the article, or made a fraudulent representation concerning it, or knowing it to be defective, used some art to disguise it. This is the leading maxim of law relating to the contract of sale; and its application is not affected by the circumstance that the price is such as is usually given for a sound commodity; 1 Smith's Leading Cases, 78; 2 Kent's Commentaries, 478.

It seems to have been originally applicable not to the quality but the title of the goods sold. In modern law, however, the rule is, that if the seller has possession of the article and sells it as his own, and not as agent for another, and for

a fair price, he is understood to warrant the title: 2 Kent's Commentaries, 478; Ryan v. Ulmer, 108 Pa. 332; Bryant v. Pembler, 45 Vt. 487; Hadley v. Clinton, etc., Co., 13 Ohio, 502; Day v. Poole, 52 N. Y. 416; Drew v. Rose, 41 Conn. 50; Morris v. Thompson, 85 Ill. 16; Bowman v. Clemmer, 50 Ind. 10; Richardson v. Bouck, 42 Iowa, 185; West v. Cunningham, 9 Porter (Ala.), 104; Johnson v. Povers, 65 Cal. 181.

In South Carolina, from the earliest time, it has been held that "selling for a sound price raises, in law, a warranty of soundness to the seller." The earliest reported cases being: Fimrod v. Shelbred, 1 Bay, 324; Crawford v. Wilcox, 2 Mill, 353: Pulcinkle v. Cramer, 27 S. C. 376.

Where the parties have not an equal opportunity of examination, but the seller has the better, or where the buyer relies on seller's skill, knowledge, or experience, the risk of quality falls on the seller, and he is said to warrant impliedly the quality of the goods sold,

In sales actually made by sample there is an implied warranty that the bulk shall be of equal quality to the sample: Hughes v. Gray, 60 Cal. 284; Wilcox v. Howard, 51 Ga. 298; · Webster v. Granger, 78 Ill. 230; Myer v. Wheeler, 65 Iowa, 390; Proctor v. Spratley, 78 Va. 254; Osborne v. Gantz, 60 N. Y. 540.

In sales by sample there is no warranty that there is no latent defect in the sample or in the bulk; they must be alike, but neither of them need be perfect. We speak of sellers merely; whether it be otherwise or not as to manufacturers, we will examine later; Bradley v. Manly, 13 Mass. 139.

But there may be an express warranty of quality in goods sold by sample as well as in other cases, and in such instances a breach of the warranty of quality is actionable, although the goods might be equal to the sample: Goold v. Stein, 149 Mass. 570

In DeWitt v. Berry, 134 U. S. 306, it was held that no implied warranty of quality exists in sales by sample. Pennsylvania, however, has a modified rule on this subject, holding apparently that an ordinary sale by sample does not imply any warranty that the quality of the bulk shall be the same as that

of the sample, but only that the bulk must be of the same species or kind as the sample, and also shall be merchantable: Boyd v. Wilson, 83 Pa. 319; West Republic Co. v. Jones, 108 Pa. 55.

To constitute a sale by sample in the legal sense of the term, it must appear that the parties contracted solely in reference to the sample or article exhibited, and that both mutually understood they were dealing with the sample, with an understanding that the bulk was like it: Beirne v. Dord, 5 N. Y. 95; Day v. Raquet, 14 Minn. 282.

If

Or, as sometimes stated, to raise the implied warranty of conformity between sample and bulk, it must appear that the alleged sale by sample was really such; that the portion shown was intended and understood to be a standard of the quality and not merely that it was in fact taken from the bulk. that was all that was understood, it would not raise the implied warranty. Merely showing a portion of the goods instead of the whole, does not necessarily constitute a sale by sample: Selser v. Roberts, 105 Pa. 242; Proctor v. Spratley, 78 Va. 254; Ames v. Jones, 77 N. Y. 614.

Whether a sale was strictly by sample, or whether the buyer acted on his own judgment is ordinarily a question for the jury: Waring v. Mason, 18 Wend. 445.

When implied warranties arise :

(1) In a sale of goods by description there is a double warranty. (a) that the goods shall correspond to the description, and (b) that the goods shall be of a merchantable quality and condition: Hawkins v. Pemberton, 51 N. Y. 198; Walcott v. Mount, 36 N. J. Law, 262; Morse v. Union Stock Yards Co., 21 Orc. 289; Murchie v. Cornell, 155 Mass. 50; Chalmer's Digest, § 16.

As to the first proposition, Rogers, J., in Borrekins v. Bevan, 3 Rawle, 23, 43, said: "In all sales there is an implied warranty that the article corresponds in specie with the commodities sold. It may be safely ruled, that a sample or description in a sale-note, advertisement, bill of parcels, or invoice, is equivalent to an express warranty, that the goods are what they are described, or represented to be by the vendor."

There is no doubt that in a contract of sale words of description are held to constitute a warranty that the articles sold are of the species and quality so described: Hogins v. Plympton, 11 Pick. 97; Windsor v. Lombard, 18 Pick. 57; Bach v. Levy, 101 N. Y. 511; Fleck v. Weatherton, 20 Wis. 392; Webber v. Davis, 44 Me. 147.

As an inspection of the goods is necessary to enable the buyer to ascertain whether they answer the description by which they were sold, it follows that the seller is bound to give the buyer an opportunity to make such inspection, and an acceptance for that purpose will not be a waiver of the right to object: Doane v. Dunham, 79 Ill. 131.

Goods not equal to sample or description, may be rejected by the buyer, but if he accepts them he may recover on the warranty: Cox v. Long, 69 N. C. 7; Rogers v. Niles, 11 Ohio, 48; Field v. Kinnear, 4 Kan. 476; Boothby v. Plaisted, 51 N. H. 436.

As to the second proposition, their merchantable quality and condition, we find, where goods are sold by description and not by the buyers selection or order, and without any opportunity for inspection, there is ordinarily an implied warranty, not only that they conform to the description in kind and species as before stated, but also that they are merchantable; not that they are of the first quality or the second quality, but that they are not so inferior as to be unsalable among merchants or dealers in the article; i. e., that they are free from any remarkable defects. In such sales the doctrine of caveat emptor does not apply. This is especially true where the vendor is the manufacturer, or the sale is executory for future delivery: Gallagher v. Waring, 9 Wend. 28; Brantley v. Thomas, 22 Tex. 270; McClung v. Kelly, 21 Iowa, 508; Fogel v. Brubaker, 122 Pa. 15; Hood v. Block, 29 W. Va. 445.

An exception to this rule was held to exist in Chicago, etc., Co. v. Tilton, 87 Ill. 180, where both parties were dealers in a board of trade, under rules providing that one who took property without inspection, took it at his own risk. This implied warranty of merchantability by a manufacturer, has sometimes been implied even when there was express warranties as