Warranty, what. No implied warranty in mere contract of sale. Warranty of title to personal property. Warranty on sale by sample. When seller knows that on his staterent, etc. SECTION 1773. Other marks. 1774. Warranty on sale of written instrument. 1775. Warranty of provisions for doméstic use. 1777. Warranty upon judicial sale. SEC. 1763. A warranty is an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction, whether past, present or future. N. Y. C. C., Sec. 877. SEC. 1764. Except as prescribed by this article, a mere contract of sale or agreement to sell does not imply a warranty. N. Y. C. C., Sec. 878. SEC. 1765. One who sells or agrees to sell personal property, as his own, [whether in or out of possession thereof] thereby warrants that he has a good and unencumbered title thereto. Defreeze vs. Trumper, 1 Johns., 274; Reid vs. Barber, 3 Cow., 272; and see Hoe vs. Sanborn, 21 N. Y., 555. Whether this warranty is now implied, where the property is not in possession of the vendor, is in dispute. It is held that it is not, in M'Coy vs. Archer, 3 Barb., 323; Huntington vs. Hall, 36 Me., 501; that it is, in Smith vs. Fairbanks, 7 Foster, 521; see Strong vs. Barnes, 11 Vt., 221. It certainly is implied, when the property is in his possession (Burt vs. Dewey, 31 Barb., 540.) N. Y. C. C., Sec. 879. NOTE. The words in brackets are new-inserted to harmonize with "Transfers of Real Property." See Sec. 1047. Either this, or make clear the other proposition by substi tuting for the words in brackets, the following, "when in possession thereof." SEC. 1766. One who sells or agrees to sell, goods by sample, thereby warrants the bulk to be equal to the sample. N. Y. C. C., Sec. 880. SEC. 1767. One who sells or agrees to sell personal buyer relies property, knowing that the buyer relies upon his advice or judgment, thereby warrants to the buyer that neither the seller, nor any agent employed by him in the trans action, knows the existence of any fact concerning the thing sold which would, to his knowledge, destroy the buyer's inducement to buy. It is utterly impossible to reconcile the cases on this subject. This rule is perhaps as near their result as any that could be stated in as few words (see Hoe vs. Sanborn, 21 N. Y., 552; Brown vs. Montgomery, 20 id., 487; 2 Kent Com., 480). It will be observed that it is only facts concerning the thing that are required to be disclosed. This restricts the range of the section to matters which, in morals, ought perhaps to be disclosed in even a broader class of cases. N. Y. C. C., Sec. 881. not in exist SEC. 1768. One who agrees to sell merchandise not Merchandise then in existence, thereby warrants that it shall be sound ence. and merchantable at the place of production contemplated by the parties, and as nearly so, at the place of delivery, as can be secured by reasonable care. This principle, though not directly adjudicated, is clearly at the foundation of the decisions in regard to sales of goods to be manufactured by the seller (see Sec. 883), and is a necessary corollary of the rule which implies a warranty of goods which the buyer has had no opportunity to inspect (see Sec. 885). Hamilton vs. Ganyard, 34 Barb., 204, supports the rule here stated. The absolute warranty extends only to the place of production. The inevitable injuries of transportation must be borne by the buyer (Bull vs. Robison, 10 Exch., 342). But of course this is to be construed in view of the intention of the parties. If an article is purchasable in New York, in perfect condition, and the same kind of thing is imported from London, but is always injured by the voyage, the seller cannot compel the buyer to accept the latter article, unless the parties contemplated London as the place of production. N. Y. C. C., Sec. 882. SEC. 1769. One who sells or agrees to sell an article of his own manufacture, thereby warrants it to be free from any latent defect, not disclosed to the buyer, arising from the process of manufacture, and also that neither he nor his agent in such manufacture has knowingly used improper materials therein. N. Y. C. C., Sec. 883. SEC. 1770. One who manufactures an article under an order for a particular purpose, warrants by the sale that it is reasonably fit for that purpose. N. Y. C C., Sec. 884. SEC. 1771. One who sells or agrees to sell merchandise inaccessible to the examination of the buyer, thereby warrants that it is sound, and merchantable. N. Y. C. C., Sec. 885. Trade marks Other marks Warranty on sale of written instrument. Warranty of provisions use. SEC. 1772. One who sells or agrees to sell any article to which there is affixed or attached a trade mark, thereby warrants that mark to be genuine, and lawfully used. From Stat. 25 and 26 Vict., Chap. 88, Sec. 19. This statute enacts that this warranty can be dispensed with only by a written refusal to warrant. N. Y. C. C., Sec. 886. SEC. 1773. One who sells or agrees to sell any article to which there is affixed or attached a statement or mark to express the quantity or quality thereof, or the place. where it was, in whole or in part, produced, manufactured or prepared, thereby warrants the truth thereof. N. Y. C. C., Sec. 887. SEC. 1774. One who sells or agrees to sell an instrument purporting to bind any one to the performance of an act, thereby warrants the instrument to be what it purports to be, and to be binding according to its purport upon all the parties thereto; and also warrants that he has no knowledge of any facts which tend to prove it worthless, such as the insolvency of any of the parties thereto, where that is material, the extinction of its obligations, or its invalidity for any cause. Gurney vs. Womersley, 4 El. & Bl., 133; Cabot Bank vs. Morton, 4 Gray, 156; Herrick vs. Whitney, 15 Johns., 240; Gompertz vs. Bartlett, 2 El. & Bl., 849; Canal Bank vs. Bank of Albany, 1 Hill, 287. Delaware Bank vs. Jarvis, 20 N. Y., 226; Furniss vs. Ferguson, 15 id., 437; Young vs. Cole, 2 Bing. N. C., 724 ; 4 Scott, 489. In some cases the value of an obligation may be entirely independent of the solvency of the party bound thereby, as for example, where he is bound to execute a power. Brown vs. Montgomery, 20 N. Y., 287. He does not warrant the solvency of the parties (Elwell vs. Chamberlain, 4 Bosw., 320). N. Y. C. C., Sec. 888. SEC. 1775. One who makes a business of selling pro for domestic visions for domestic use warrants, by a sale thereof, to one who buys for actual consumption, and not for the purpose of sale, that they are sound and wholesome. Burnby vs. Bollett, 16 M. & W., 644. Moses vs. Mead, 1 Denio, 379; 5 id., 617; Goldrich v3. Ryan, 3 E. D. Smith, 324; Hyland vs. Sherman, 2 id., 234. Van Bracklin vs. Fonda, 12 Johns., 468. In a recent English decision (Emmerton vs. 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. N. Y. C. C., Sec. 889. SEC. 1776. One who sells the good will of a business, thereby warrants that he will not endeavor to draw off any of the customers. N. Y. C. C., Sec. 890. SEC. 1777. Upon a judicial sale, the only warranty implied is that the seller does not know that the sale will not pass a good title to the property. N. Y. C. C., Sec. 891. Warranty on sale of good will. Warranty cial sale. upon judi. ger.eral warranty. SEC. 1778 A general warranty does not extend to Effect of defects inconsistent therewith, of which the buyer was then aware, or which were then easily discernable by him, without the exercise of peculiar skill; but it extends to all other defects. N. Y. C. C., Sec. 892. CHAPTER III. RIGHTS AND OBLIGATIONS OF THE BUYER. SECTION 1784. Price, when to be paid. 1785. Right to inspect goods. 1786. Rights in case of breach of warranty. to be paid. SEC. 1784. A buyer must pay the price of the thing Price, when sold, on its delivery; and must take it away within a reasonable time after the seller offers to deliver it. N. Y. C. C., Sec. 893. spect goods. SEC. 1785. On an agreement for sale, with warranty, Right to inthe 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. N. Y. C. C., Sec. 894. SEC. 1786. 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. N. Y. C. C., Sec. 895. NOTE.-See Sec. 3307 of this Code, on "Rescission of Rights in breach of case of warranty. Sale by auction, what. Sale, when complete. Withdrawal of bid. Sale under written conditions. Rights of buyer upon reserve. CHAPTER IV. SALE BY AUCTION. SECTION 1792. Sale by auction, what. 1794. Withdrawal of bid. 1795. Sale under written conditions. 1796. Rights of buyer upon sale without reserve. 1798. Auctioneer's memorandum of sale. SEC. 1792. A sale by auction is a sale by public outery to the highest bidder on the spot. N. Y. C. C., Sec. 896. SEC. 1793. A sale by auction is complete when the auctioneer publicly announces, by the fall of his hammer. or in any other customary manner, that the thing is sold. SEC. 1794. N. Y. C. C., Sec. 897. Until the announcement mentioned in the 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. N. Y. C. C., Sec. 898. SEC. 1795. When a sale by auction is made upon writ ten or printed conditions, such conditions cannot be modified by any oral declaration of the auctioneer, except so far as they are for his own benefit. N. Y. C. C., Sec. 899. SEC. 1796. If, at a sale by auction, the auctioneer, sale without 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. By bidding. N. Y. C. C., Sec. 900. SEC. 1797. The employment by a seller, of any person to bid at a sale by auction, without the knowledge of the buyer, without an intention on the part of such bidder to buy, and on the part of the seller to enforce his |