Where a purchaser was notified that certain goods which lie had bought were lying at a designated wharf ready for delivery on payment of the price, and he went to the wharf and applied for permission to ex amine the goods, and was shown two closed casks which were said to contain them, but was refused per mission to open the casks, it was held that no valid offer of delivery had been made to him.
It has also been held that where a buyer had in spected the goods before the sale, and by the contract the goods were to be held by the seller subject to the buyer's orders and in good condition, lie was entitled to further inspection before taking delivery. This further inspection was refused, and the buyer was held entitled to refuse delivery. If, on the other hand, the seller offers the buyer a reasonable opportunity to in spect the goods, and the buyer refuses to inspect them, the seller might be justified in refusing to make deliv ery.
7. Symbolic or constructive actual physical transfer of the thing sold to the buyer is not always essential to constitute delivery and to pass title. Where, for example, the goods sold are ponderous and incapable of being handed over physically from seller to buyer, an actual delivery will be dispensed with. In such a case the delivery of a key to the warehouse in which the goods are lodged will be sufficient. Simi larly, the transfer to the buyer of bills of lading which represent the goods is a sufficient delivery. This would not be sufficient, however, if the goods are sub ject to liens or charges in favor of the bailee or other person who has the physical possession of the goods, and who may retain them until his charges are paid. For example, if A ships goods to B by rail, and A has undertaken to pay the freight, but does not do so, the railway is entitled to hold the goods until its charges are paid. A may have forwarded documents of title to B, but these will not constitute delivery to B until A pays the freight charges.
8. Warranties: definition and classification.—A warranty is an agreement of indemnity, relating to the character, quality or title of the thing sold, and form ing part of the contract of sale, tho collateral to its express object, by which the seller insures the buyer against loss or against failure of one or more of its terms. Warranties may be express or implied.
The parties may by special agreement add to the obligation of legal or implied warranty, or diminish its effect, or exclude it altogether.
An express warranty, therefore, is an explicit state ment by the seller of some material fact concerning the subject matter of the sale, and in virtue of which the buyer is induced to make the contract. Such a war ranty is collateral to the main purpose of the contract, and the breach of it as a rule gives rise to a claim for damages, but not to a right to reject the goods and to treat the contract as repudiated. The warranty may be oral or written. If the contract of sale is a com plete document in writing, an oral warranty may not be admissible under the Parol Evidence Rule, unless it is fraudulent.
As a rule, antecedent representations made as an inducement to the buyer, but which do not form part of the contract when completed, are not warranties. If the representation is made in the course of the dealings leading up to the bargain, it will be a warranty, pro vided it is incorporated into the bargain as part of it. Thus a man bought a horse at auction without war ranty. The day before the sale he examined the horse at the stables, and in the course of his examination the auctioneer said to him: "You have nothing to look for; I assure you he is perfectly sound in every re spect," to which he replied: "If you say so, I am sat isfied," and made no further examination. The horse proved to be unsound, tho the seller did not know it, and therefore there was no fraud. The purchaser brought action, and claimed that the conversation in question was a private warranty to him, altho the auc tioneer put up the horse without warranty. It was held that this private conversation, and the representa tion therein made, did not form part of the contract which was made by the buyer when he bid for the horse. The representation was held to be merely an expression of the seller's opinion and judgment, and that he could not be held responsible for it, if, when he made it, he was in good faith.