Remedies of the buyer for breach of war ranty by the seller. The buyer may at his election keep the goods and set up against the seller the breach of warranty by way of recoupment in diminution of the price; Brad ley v. Rea, 14 Allen (Mass.) 20 ; Huntington v. Lombard, 22 Wash. 202, 60 Pac. 414; or keep the goods and maintain an action or counter claim for damages ; or refuse to accept the goods and maintain an action for the breach of warranty ; or rescind the contract or sale ; Hodge v. Tufts, 115 Ala. 366, 22 South. 422 ; Upton Mfg. Co. v. Huiske, 69 Ia. 557, 29 N. W. 621; Homer v. Parkhurst ; 71 Md. 110, 17 AU. 1027; Byers v. Chapin, 28 Ohio St. 300; Optenberg v. Skelton, 109 Wis. 241, 85 N. W. 356 ; but, contra, the buyer is denied any right of rescission of an executed sale for breach of warranty in Woodruff v. Graddy, 91 Ga. 333, 17 S. E. 264, 44 Am. St. Rep. 33 ; Wulschner v. Ward, 115 Ind. 219, 222, 17 N. E. 273; Day v. Pool, 52 N. Y. 416, 11 Am. Rep. 719 ; Eshle man v. Lightner, 169 Pa. 46, 32 Atl. 63; v. Achey, 39 Wash. 91, 80 Pac. 1105. Not simply in regard to rescission for breach of warranty but in regard to rescission of con tracts generally, it is the law that the party seeking to rescind cannot do so if he has ob tained a benefit under the contract which he cannot restore ; Wald's Pollock, Contracts (3d Ed.), 342. See RESCISSION.
The buyer must act promptly with refer ence to the election of his remedies which are mutually exclusive, for if the buyer elects the remedy of rescission he is thereby precluded from bringing an action for damages ; Mundt v. Simpkins, 81 Neb. 1, 115 N. W. 325, 129 Am. St. Rep. 670. The general measure of damage for breach of warranty of quality is the difference between the value of the article actually furnished the buyer and the value the article would have had if having the qualities which it was warranted to have; McDonald v. Kansas City Bolt Co., 149 Fed. 360, 79 C. C. A. 298, 8 L. R. A. (N. S.) In some cases the buyer suffers special dam age far exceeding the value of the goods promised him, and if the consequential dam ages thus caused are natural consequences of the breach of warranty, the plaintiff is generally allowed to recover them ; Dushane v. Benedict, 120 U. S. 630, 7 Sup. Ct. 696, 30 L. Ed. 810. The Sales Act makes no dis tinction in regard either to remedies or the measure of damages for the breach of war ranty of title and the breach of warranty of quality.
Considerable difference of decision exists in regard to warranties of title. Many juris dictions hold that no right of action accrues to the buyer until his possession has been disturbed ; Wanser v. Messier, 29 N. J. L. 256 ; Krumbhaar v. Birch, 83 Pa. 426; Bar num v. Cochrane, 143 Cal. 642, 77 Pac. 656.
Even jurisdictions which do not deny the right of action often hold that while the buy er retains undisturbed possession, be only recover nominal damages; Close v. Crossland, 47 Minn. 500, 50 N. W. 694; O'Bri en v. Jones, 91 N. Y. 193.
Sales in Bulk. It is within the police pow ers of a state to regulate sales of entire stocks in trade of merchants so as to pre vent fraud on innocent creditors, and a state statute prohibiting such sales except under reasonable conditions as to previous notice is not unconstitutional under the due process and equal protection clauses of the 14th Amendment; Lemieux v. Young, 211 U. S. 489, 29 Sup. Ct. 174, 53 L. Ed. 295, affirm ing Young v. Lemieux, 79 Conn. 434, 65 Atl. 436, 600, 20 L. R. A. (N. S.) 160, 129 Am. St. Rep. 193, 8 Ann. Cas. 452. The court, by White, J., considered this view as "too clear to require disCussion," and quoted at length from the dissenting opinion of Vann, J., in Wright v. Hart, 182 N. Y. 350, 75 N. E. 404, 2 L. R. A. (N. S.) 338, 3 Ann. Cas. 263. Such acts have been upheld in Squire & Co. v. Tel lier, 185 Mass. 18, 69 N. E. 312, 102 Am. St. Rep. 322; Walp v. Mooar, 76 Conn. 515, 57 Atl. 277; Neas v. Borches, 109 Tenn. 398, 71 S. W. 50, 97 Am. St. Rep. 851 ; McDaniels v. Connelly Shoe Co., 30 Wash. 549, 71 Pac. 37, 60 L. R. A. 947, 94 Am. St. Rep. 889. Acts declaring such sales to be presumptive ly fraudulent were assumed to be valid in Fisher v. Herrmann, 118 Wis. 424, 95 N. W. 392, and Hart v. Roney, 93 Md. 432, 49 Atl. 661. A contrary view was taken in Miller v. Crawford, 70 Ohio 207, 71 N. E. 631, 1 Ann. Cas. 558 ; Sol Block & Gruff v. Schwarz, 27 Utah 387, 76 Pac. 22 ; Williams v. Bank, 15 Okl. 477, 82 Pac. 496, 2 L. R. A. (N. S.) 334, 6 Ann. Cas. 970.
Such acts do not apply to a sale by one partner to another ; Taylor v. Folds, 2 Ga. App. 453, 58 S. E. 683; Fairfield Shoe Co. v. Olds, 176 Ind. 526, 96 N. E. 592; nor to giving a chattel mortgage on the goods ; Hannah & Hogg v. Brewing Co., 149 Mich. 220, 112 N. W. 713, 12 L. R. A. (N. S.) 178, 119 Am. St. Rep. 674, 12 Ann. Cas. 344. They do apply to a sale to a creditor to pay his debt ; Sampson v. Grocery Co., 127 Ga. 454, 56 S. E. 488, 9 Ann. Cas. 331. Such sale is not fraudu lent in law ; Gorham v. Buzzell, 178 Fed. 596. It is voidable only ; Dickinson v. Harbi son, 78 N. J. L. 97, 72 Atl. 941.
Sale to Arrive. A sale of goods to arrive per Argo, or on arrival per Argo, is construed to be a sale of goods subject to a double condition precedent: that the ship arrives and the goods are on board; 5 M. & W. 639. In such case, title to the goods does not pass till their arrival; Benedict v. Field, 16 N. Y. 597.