Warranty deed

“ The burden of proof is on defendant. (6) The measure of damages is the purchase money and interest.' The defendants in error, by their deed, entered into a general covenant of warranty, but it is claimed that in virtue of the statute they are to be held, in addition, to a general covenant of seisin, a limited covenant as to incumbrances, and a general covenant of further assurance. ”

“ The question for our consideration is, what effect the discharge of a bankrupt has upon estoppels, arising by law from covenants of warranty contained in his deeds of conveyance of land.
To determine this, it is necessary to have in view the different modes of operation of such covenants. They are contracts, and an action lies for recovery of the damages sustained by their breach. At law, they run with the land; and if the covenantor subsequently acquire an outstanding paramount title, it enures by force of the covenant to him who claims under the deed of the covenantor. ”

“ By that agreement, the respondent contracted to sell and convey the premises by deed of warranty, provided the complainant should pay him the sum of one hundred and sixty-five dollars on the 1st day of October then next, or the sum of one hundred and ninety dollars by the 1st day of May, 1851, and the complainant agreed to purchase and pay for the premises in the manner, and to the amount specified. ”

“ In case of breach of implied warranty, the consumer may retain in the goods and recover damages, or reject the goods, cancel and contract and recover from the seller so much of the purchase price as has been paid, including damages. ”

“ He may refuse to receive the article at all. 2. He may receive it, and bring a cross action for the breach of the warranty. 3. He may, without bringing a cross action, use the breach of warranty in reduction of damages in an action brought by the vendor for the price.' The annotator proceeds to say, 'that it was once thought, and, indeed, laid down by Lord Eldon, in Curtis v. Hanney, 3 Esp., 83, that he might, on discovering the breach of warranty, rescind the contract, return the chattel, and, if he had paid the price, recover it back. ”

“ Another rule on which there are vast stores of forgotten learning will show how exactly the fiction fell in with the earlier law. Only those who were privy in estate with the person to whom the warranty was originally given, could vouch the original warrantor. Looking back to the early [376] procedure, it will be seen that of course only those in the same chain of title could even mediately get the benefit of a former owner's warranty. The ground on which a man was bound to warrant was that he had conveyed the property to the person who summoned him. ”

“ In case of a breach of warranty, the person to whom the warranty has been given may sue without a return of the goods. He is not obliged to rescind the sale. Thus the law is stated by Kent, 4 Com. 480. In Man. ”

“ You will find the expressman will not let you. He will say, "No, you must pay for the sealed package," and until you do so, you will have no right to the possession of the goods. If the goods are not all right you have redress by suing the seller, but you must pay your money first.
WARRANTIES.—Another and most important right which the buyer has is the enforcement of warranties. Warranties of a chattel may be either express or implied. An express warranty is a promise or an obligation imposed by the law because of a representation which the seller has made in regard to the goods. ”

“ A general contract to supply a pure article is not a sufficient warranty unless with every delivery there is something to identify the delivery as part of the contract. An invoice containing merely a description of an article as ``lard'' or ``pepper'' is not a warranty; but if there be added the words ``guaranteed pure'' it is a sufficient warranty. A label upon an article is not in itself a warranty, but a label bearing the words ``pure'' or ``unadulterated,'' coupled with an invoice which could be identified with the label, together were held to form an effective warranty. ”

“ Does such a warranty bind other persons than the warrantor, in other words are his heirs and persons to whom he may devise his lands also indefinitely bound by his warranty? The statutes in some states fix his liability. Where none exist the law limits the liability of parties to the amount of assets or property they have received from the warrantor; if they have received nothing they are not liable for anything.
A covenant to protect the buyer from encumbrances, claims, etc., does not always relieve him from the expense of a lawsuit. ”

“ When a dealer contracts to sell goods which he deals in, to be applied to a particular purpose, and the buyer has no opportunity to inspect them before delivery, there is an implied warranty that they shall be reasonably fit for that purpose. ”

“ If it be true that the failure of a vendee to exact a warranty when he takes a written contract precludes him from showing a warranty be parol, a multo fortiori when his written contract contains a warranty on the identical question, and one in its terms inconsistent with the one claimed. ”

“ The point of the assignment of error is that the prosecution of these suits upon the respective warranties therein propounded, and the recover of a part of the demands under the said warranties, namely, the prices of the lands, operated as a waiver and discharge of the other liabilities arising upon the same warranties, viz., the liabilities to restore the rents, revenues, etc.; that the contract of warranty is one and undividable ”

“ The action sounding in tort, the plaintiff, in order to charge the defendant, must show, in addition to his undertaking, some act by him, that is, a sale; but the owner was the seller, and not the friend or servant, in the cases supposed. A contract, again, is, properly, a promise to act or forbear in the future. But the action under discussion must be, as Choke, J., said, in the same case, upon a warranty of a thing present, and not of a thing to come. A vendor who gives a false warranty may be charged to-day, of course, in contract ”

“ Hidden defects are those which could not be discovered by simple inspection. (Civ. Code, art. 2,497.) In case the seller desires to rescind the contract by reason of the breach of such a warranty, he may do so by an action of redhibition. ”

“ In a sale of food there is no longer an implied warranty of fitness, unless the buyer expressly or by inspection acquaints the seller with the purpose of the purchase and unless it appears that the buyer relies on the seller's skill and judgment. Even then, if the buyer has examined the goods and has discovered a defect, there is no warranty. The burden of showing that he has made known his purpose and that he has relied on the seller is on the purchaser who claims the existence of an implied warranty. ”

“ The authorities to which we have referred, although differing in the form of stating the qualifications and limitations of the general rule, yet indicate with reasonable certainty the substantial grounds upon which the doctrine of implied warranty has been made to rest. ”

“ Shall he be told that he must rely solely on the insolvent vendor's warranty?
If the purchaser has dealt with his eyes open, and with a knowledge of the facts,-has obtained and yet peaceably enjoys the possession,-he may have no right to anticipate his legal remedy upon the warranty to which he has fairly trusted. But it would be unjust to throw a party upon a warranty in a case where, from the fraud of the other party, he did not think he should ever have need to rest upon it. To hold him bound in such a case would be to make, not to enforce, a contract. ”

“ At common law, as is familiar to all of us, when an action is brought to recover real estate which a defendant holds by purchase from another, accompanied with a covenant of warranty, the defendant may, at his option, elect either to give notice of the pending action to his vendor and warrantor, or to await the result of the suit, and, if judgment passes against him, sue upon his covenant of warranty. ”

“ By it, the warrantor is formally vouched or cited in to defend his vendee's title, as soon as proceedings are commenced against the latter. If the seller thus called in cannot defend, 'the judge condemns him to indemnify the defendant, by the same sentence by which he pronounces in favor of the original plaintiff.'
In this from of proceeding, the cause of action may be said to arise as soon as the vendee is troubled in his possession by a suit, for at that moment his right to call in his vendor in warranty accrues. ”

“ If, however, any property is attached, and he who is in possession of it has no such witnesses, no vouching to warranty shall be allowed, but the property shall be given up to its rightful owner and also the supplementary payment, and the fine to the party who is entitled thereto. And if he has witnesses in accordance with what we have declared above, vouching to warranty shall take place three times. On the fourth occasion he shall prove his claim to it or give it back to its rightful owner. No one shall claim ownership where fraud is involved. ”

“ Another remedy, which is universally allowed, is to sue for whatever damage the breach of warranty may have caused, and one or two cases will show how serious these damages may be. A seller sells a pair of sheep to a buyer with a warranty, express or implied, of their soundness. They have an infectious disease, and when put with a large flock of the buyer's sheep they infect the whole flock, and the damage is the loss of the whole flock. ”

“ But trouble and expense incurred by the seller of finding a new purchaser or other goods may be taken account of in assessing the damages.
Where the goods delivered are not as contracted the buyer may as a rule sue the seller for a breach of warranty, or set it up as reduction of price. ”

“ The principal distinction between a warranty in connection with sale of personal property, and in connection with contracts of insurance, is that in the former case, breach of warranty usually does not discharge the contract, but simply gives rise to an action for damages, while in case of contracts of insurance, breach of warranty discharges the contract itself. Life insurance companies generally require formal written application by which the applicant for insurance is required to answer questions. ”

“ Its purpose is to decrease litigation, and make men rely upon their own judgment. If a purchaser is unwilling to rely upon his own judgment, he must exact a warranty from the seller. In the absence of warranty or fraud, the purchaser must abide by the result of his purchase. If the article purchased has defects apparent to anyone upon inspection, the purchaser cannot complain. ”

“ When the subject-matter of a sale is not in existence, or not ascertained at the time of the contract, an undertaking that it shall, when existing or ascertained, possess certain qualities, is not a mere warranty, but a condition, the performance of which is precedent to any obligation upon the vendee under the contract ”

“ But ordinarily the risk was not taken by the speaker unless the statement was fraudulent; and it was precisely because it was a warranty,-that is, an absolute undertaking by contract that a fact was true,-that, if a warranty was alleged, it was not necessary to lay the scienter. Schuchardt v. Allen, 1 Wall. 359, 17 L. ed. 642; Norton v. Doherty, 3 Gray, 372, 63 Am. Dec. 758. In other words, a claim on a warranty, as such, necessarily was a claim arising out of a contract, even if, in case of actual fraud, there might be an independent claim purely in tort. ”

“ First. The contract between the parties was in writing, and contained an express warranty as to the quality. It says: 'These goods [are] to be exactly the same quality as we make for the De Witt Wire Cloth Company, of New York, and as per sample bbls. delivered.' Now, there is good authority for the proposition that if the contract of sale is in writing, and contains no warranty, parol evidence is not admissible to add a warranty. ”

“ In support of the claim, on the ground of warranty, it is said, this was a sale by sample, and that all such sales carry with them a guaranty, that the article, in bulk, is of the same quality, in all respects, as the sample exhibited. If the rules of law which govern sales by sample, are at all applicable to this case, it becomes necessary to ascertain by whom the warranty is made. In private transactions, no difficulty on this head can arise. A merchant, who employs a broker to sell his goods, knows, or is presumed to know, the state and condition of the article he offers for sale ”

“ If the buyer relied, and under the circumstances had reason to rely, on the judgment of the seller, who was the manufacturer or maker of the article, the law implies a warranty that it is reasonably fit for the use for which it was designed, the seller at the time being informed of the purpose to devote it to that use. ”

“ If the defects are not apparent upon inspection, he must bear the loss. He should have required the seller to warrant the goods against latent defects, if he was unwilling to purchase on his own judgment. In all sales by an owner, however, title to the goods is impliedly warranted, and in case of sale of goods grown or manufactured by the seller, there is an implied warranty against latent defects. In all other sales, the purchaser buys at his own risk, and has no redress against the seller unless the latter warrants the goods. ”