A warranty may be made after the sale, in which case, under the English law at least, there must be a new consideration to support such subsequent war ranty.
Legal or implied warranty is that which arises by operation of law, without stipulation in the contract : it may also arise from usage or custom, or from the conduct of the parties. Thus it is an implied war ranty in the case of a sale of goods by sample that the goods sold shall correspond in quality with the sample. There is an implied warranty that goods sold are in a merchantable state or condition; that there is no latent defect in the thing sold such as will render it unfit for the use for which it was intended, or which will so diminish its usefulness that the buyer would not have bought it, or would not have given so large a price for it, had he known that the defect existed. Where, hoW ever, the defects are apparent and are such that the buyer might have known of them himself, the rule of caveat eznptor will apply.
Generally speaking, if the buyer buys on his own judgment, that is, if he selects or defines the specific thing or class of things which he requires, there is not an implied warranty on the part of the seller that the things bought will fulfil the purpose of the buyer. If, on the other hand, the buyer tells the seller that he wants certain goods for a certain purpose, and leaves the seller to exercise his judgment and supply the proper goods, then there will be an implied warranty on the part of the seller that the goods are not only merchantable but that they are fit for the purpose ex pressed. Again, there is an implied warranty that when a thing is sold it is in existence. If A sells B a cargo of fruit which is supposed to be in transit be tween Havana and New York, and the day before the sale the ship is wrecked and the fruit is destroyed, the sale is void, and B may recover what he has paid. It has been said that in such a case there is an implied warranty that the fruit is in existence when the con tract is made. It is also said that the warranty is rather in the nature of a condition precedent which is of the essence of the contract, and not a collateral un dertaking.
9. Implied tearranty of Civil Code of Quebec lays down a rule generally applicable. The seller, it says, is obliged by law to warrant the buyer against eviction of the whole or any part of the thing sold, by reason of the act of the former, or of any right existing at the time of the sale, and against encum brances not declared and not apparent at the time of the sale. In other words, the seller impliedlv war
rants his right to sell; that he has a title, and that he may give a free and clear title to the purchaser. If it turns out that the seller had not a good title, then the buyer may sue for a return of the price where he is compelled to surrender the thing to the true owner, as on a total failure of consideration, and may add to his claim a demand for damages, if he has suffered any.
If the thing sold is in the possession of the vendor, there is no doubt as to the presence of an implied war ranty of his title and his right to sell. In the United States apparently there is no implied warranty of title if the thing is in the hands of a third person when it is sold. In England, however, this view is not accepted. The mere fact that a person sells a chattel "implies an affirmation by the vendor that the chattel is his, and therefore he warrants the title unless it be shown by the facts and circumstances of the sale that the vendpr did not intend to assert ownership, but only to transfer such interest as he might have in the chattel sold." The vendor may have only the constructive posses sion of the things sold, as where he is the owner of an undivided portion of wheat stored in an elevator. The owner of the elevator has the actual possession, but the vendor has the constructive possession. In selling his undivided interest, however, there is an implied warranty of title.
There are one or two exceptions to the rule. If goods are sold by a sheriff or bailiff, as under the judg ment of a court, the sheriff is not held to any warranty. So, also, a vendor may merely sell or transfer such title as he may have in the goods, provided he does so with out positive knowledge that he has no title, and he will be held to no warranty. The liquidator or curator of the assets of an insolvent debtor is held to no warranty. It has been held that a contract for the sale or assign ment of a patent involves no warranty that the inven tion is new, but merely that the patent has been granted to the seller.