SALE of goods. If a man agrees for the purchase of goods, he shall pay for them, before he carries them away, un less some term of credit is expressly agreed upon.
If a man, upon the sale of goods, war rants them to be good, the law annexes to this contract a tacit warranty, that if they be not so, he shall make compensation to the purchaser ; such warranty, however, must be on the sale. But if the vender knew the goods to be unsound, and has used any art to disguise them, or it; in any respect, they differ from what he repre sents them to be to the purchaser, he will be answerable for their goodness, though no general warranty will extend to those defects that are obvious to the senses.
If two persons come to a warehouse, and one buys, and the other, to procure him credit, promises the seller, " if he do not pay you, I will ;" this is a collateral undertaking, and void, without writing, by the statutes of frauds ; but if he say, "let him have the goods, I will be your paymaster ;" this is an absolute undertak ing as for himself, and he shall be intend ed to be the real buyer, and the other to act only as his servant. The question in
these cases is always which party was ori ginally trusted. For if the party to whom the goods are delivered was ever consi dered as responsible, the engagement of the other is void, unless it is in writing ; after earnest is given, the vender cannot sell the goods to another without a de fault in the vender ; and therefore, if the vendee does not come and pay, and take the goods, the vender ought to give him notice for that purpose ; and then if he does not come and pay, and take away the goods, in convenient time, the agree ment is dissolved, and he is at liberty to sell them to any other person.