Breach of Warranty.— In sales of personal property an express warranty is one by which the warrantor covenants or undertakes to insure that the thing which is the subject of the con tract is, or is not, as there mentioned; as that a horse is sound, that he is not five years old, etc.
An implied warranty is one which, not being expressly made, the law implies by the fact of the sale. For example, the seller is understood to warrant the title of goods he sells when they are in his possession at the time of the sale. (1 Ld. Raym. 593). In general there is no im plied warranty of the quality of the goods sold. The rule of the civil law was that a fair price implied a warranty of quality. This rule has been adopted in Louisiana and South Carolina. There may be an implied warranty as to char acter, and even as to quality, from statements of the seller or a purchase for a specified pur pose. Any substantial failure, in the article supplied to the buyer in pursuance of the con tract of sale, to come up to the quality war ranted, amounts to a brdach of the warranty, and proof of it establishes the buyer's right to an action therefor. This rule applies to all cases where the remedy sought is by an action on the warranty for damages or by way of set off in a suit for the purchase-money; in such cases the buyer is bound to prove the breach and the damages suffered by him in conse quence of it and can recover only to the extent of the damage so proved. A warranty of sound ness does not extend to a visible defect. A vendor of personal property is not liable for latent defects, known to him but unknown to the purchaser, unless he has used some artifice to deceive the purchaser in regard to such de fects or has warranted the article. Where an article is warranted as fit for a certain purpose, the seller is liable for an injury sustained by the vendee in consequence of its unfitness. Un der an executory contract to sell goods in tran situ, the vendor is obliged to tender a merchant able article. On a sale of an article known to be intended for food there is an implied war ranty that it is sound, wholesome and fit to be used as an article of food. (15 Hun 504). The authority of an agent to warrant goods sold will be implied where it is usual in the market to give a warranty on the sale of such goods ; such authority, however, will be implied only as to goods sold at the time of the warranty, which will not extend to subsequent sales in the ab sence of express warranty.
Breach of Duty.— The non-performance of a duty, or the performance of it in such a man ner that injury is done to one's employer, through want of integrity or due diligence and skill. It is assumed that there is an implied contract between an employer and the person that he employs, according to which the latter agrees to perform the duties entrusted to him in such a manner that the interests of his em ployer shall not suffer. In case of breach of duty, what is called an action in assumpsit — that is, an action for the recovery of damages for the non-performance of a promise, which, though not under seal, is yet founded on proper consideration — may he brought by the one who has sustained an injury against the persons by whom the breach has been committed.
Breach of Peace.— The taking part in any riot, affray or tumult which is destructive to the public tranquillity, or the causing others to do anything to injure the public tranquillity.
The former are actual, the latter constructive breaches. In both cases the breach of the peace may be either felonious or not felonious. The felonious breaches of the peace are three in number: (1) The riotous assembling of 12 or more persons and not dispersing upon procla mation; (2) the riotous demolishing of churches, houses, buildings or machinery; (3) maliciously sending, delivering or uttering, or directly or indirectly causing to be received. knowing the contents thereof, any letter or writing threatening to kill or murder any per son. The remaining offenses are not felonious and include: (1) Affrays; (2) riots, routs and unlawful assemblies, which must have at least three persons to constitute them; (3) tumultu ously petitioning; (4) forcible entry or de tainer, which is committed by violently taking or keeping possession of lands or tenements with menaces, force and arms and without the authority of the law; (5) riding or going armed with dangerous or unusual weapons, terrifying the good people of the land; (6) spreading false news; (7) false and pretended prophecies, with intent to disturb the peace. Finally, there are two constructive breaches of the peace, namely, challenging another to fight, or bearing such a challenge, and the making public by either printing, writing, signs or pictures, malicious defamations of any person, especially a magis trate, in order to provoke him to wrath or ex pose him to public hatred, contempt and ridicule.
Breach of Trust.--A violation of duty by a trustee, executor or any other person in a fidu ciary position. A trustee is not permitted to manage an estate entrusted to him in such a manner as to derive any advantage to himself, and at the same time he is bound to manage it in such a manner that the person for whom he has it in trust shall reap from it the greatest possible advantage. Accordingly money held in trust by a trustee must be invested by him in government stock, or in certain other special securities, for the behoof of him for whom he has the money in trust; and if he has not done so he is, as a general rule, liable for interest on the trust funds. Formerly it was 'the duty of the trustee to invest money in government se curities alone, but under certain acts (unless the trust deed expressly forbids) a number of other sound investments are allowed. A trustee who has grossly mismanaged his trust may have to repay money lost, with interest, and some times compound interest. (See TRUSTEE). The Court of Chancery has adopted two rules to guide the decisions with respect to the liability consequent upon a breach of trust. The pur port of the first is, that, with a view not to strike terror into persons acting for the benefit of others, the court will deal leniently with trustees who have endeavored fairly to dis charge their duty, and in case of any misap plication of the trust money the court will not hold the trustees liable on slight grounds. The second rule is, that care must be had to guard against any abuse of their trust on the part of the trustees. A fraudulent misuse of trust funds is punishable as a misdemeanor with fine and imprisonment.