10. Implied warranty of quality, caveat emptor. In so far as the quality of goods is concerned, the maxim caveat emptor (let the buyer beware) is the general rule. In other words, if there is no fraud, and the seller has not given an express warranty, or unless a warranty is implied from the nature and circum stances of the transaction, the buyer purchases at his own risk. This is the more true if the buyer inspects the goods or is given a reasonable opportunity to do so. If after being given such an opportunity, the buyer neglects to inspect the goods, it has been held that it is not the duty of the seller to point out defects. On the other hand, the seller must not assist in deceiving the buyer.
For example, the seller must not hinder the buyer in his inspection of the goods in an endeavor to dis cover defects. If the buyer purchases goods on his own judgment, or selects or defines the particular goods or class of goods which he wants, the seller need only furnish merchantable goods of the class indi cated, altho he may know that the buyer wants the goods for some special purpose.
If, however, the buyer indicates that he wants the goods for a specific purpose and asks the seller to sup ply him with goods fit for that purpose, and he leaves the choice to the seller, a warranty at once arises on the part of the seller that the goods chosen by him will meet the buyer's requirements for the purpose men tioned.
If the goods are bought by sample, the buyer has acted upon his own judgment in that he has examined the sample, but he relies on the seller's judgment to supply a bulk of the goods sold which will correspond with the sample; there is, therefore, an implied war ranty on the part of the seller that the goods which he will deliver will be of the same quality as the sample, and thaythey will be merchantable. If the goods are sold by description, a similar warranty arises that the goods sold are of the kind described. Apparently in such a case there is not a warranty of merchantability, unless the seller deals in the goods sold. Thus, where a man 1 ordered a quantity of "spent madder," and this substance was not manufactured by the seller, but was merely a refuse product of his manufacture and was sold only as such, the buyer's intention being to pro duce garrancine, which it was found the madder would not produce, it was held that the purchaser took the risk that the madder might not produce the desired by-product. The seller was not a dealer in spent mad der.
11. Remedies for breach of an express warranty.— Under the English law, in the case of an express war ranty, the general rule is that if the goods tendered under the sale are not as warranted, the purchaser's remedy is an action in damages, if the title to the goods has passed to him. If the title has not passed to him, he may, upon discovering the breach of an express warranty, reject them. So if A sells to B a certain engine, and warrants that it will develop 200 h. p.; the engine is actually delivered to B, and B tries it out and finds that it will only develop 150 h. p., B cannot, if the title in the engine has passed to him, tender the engine back and demand the return of what he has paid. B would have an action in damages for breach of the warranty, and his damages would probably be the difference in value between the engine as repre sented and the engine as it really proved to be.
If, however, A sells B certain wheat stored in an ele vator and warrants it to be first quality, and nothing is done by which B is given delivery, and B, having agreed to pay so much a bushel, inspects the wheat and finds it is only of second quality, B may refuse to ac cept the wheat, because the title has not passed to him, and there has been a breach of the warranty of quality. In the previous case, however, if A, when he made the warranty that the engine would develop 200 h. p., was aware that it could not do so, B would then be entitled to hand back the engine and demand the return of what he had paid.
12. Remedies for breach of an implied warranty.— If the goods sold do not conform with the implied war ranties as to quality, fitness, condition, or otherwise, the buyer has several remedies.
(a) He may, if he thinks fit, reject the goods and recover what he has paid.
(b) He may accept and keep the goods and sue for the damages he has suffered by the breach of the war ranty.
( c) If lie has not paid the purchase price, he may set up the damage he has sustained in diminution of the price.
If the buyer decides to reject the goods and rescind the sale, he must do within a reasonable time. If the seller refuses to take back the goods, the buyer may bring action to have the sale declared null and for the return of what he has paid, meanwhile holding the goods as bailee for the seller: that is, he holds them at the risk of the seller, and if they perish thru no fault of the buyer he is not liable for the loss.