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ARTICLE III.

$ 1739. 8 1740.

1741.

FORM OF THE CONTRACT.
Contract for sale of personal property.
Contract to manufacture.
Contract for sale of real property.

8 1739. Contract for sale of personal property. No sale of personal property, or agreement to buy or sell it for a price of two hundred dollars or more, is valid, unless:

1. The agreement or some note or memorandum thereof be in writing, and subscribed by the party to be charged, or by his agent; or,

2. The buyer accepts and receives part of the thing sold, or when it consists of a thing in action, part of the evi. dences thereof, or some of them; or,

3. The buyer, at the time of sale, pays a part of the price. En. March 21, 1872. Am'd. 1873-4, 243. Cal.Rep.Cit. 67, 93; 68, 17; 70, 400; 70, 402; 91, 670;

105, 519; 119, 551; 123, 549. Statute of frauds: See Code Civ. Proc., secs. 1971-1974.

8 1740. Contract to manufacture. An agreement to manufacture a thing, from materials furnished by the manufacturer, or by another person, is not within the provisions of the last section. En. March 21, 1872.

Cal.Rep.Cit. 91, 670.

$ 1741. Contract for sale of real property. No agreement for the sale of real property, or of an interest therein, is valid, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged, or his agent, thereunto authorized, in writing; but this does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof. En. March 21, 1872. Am'd. 1873-4, 243.

Cal.Rep.Cit. 64, 26 ; 78, 534; 87, 54; 91, 446; 93, 495.
Statute of frauds: See Code Civ. Proc., secs. 1971-1974.

CHAPTER II.

RIGHTS AND OBLIGATIONS OF THE SELLER.
Article 1. Rights and Duties before Delivery, $$ 1748, 1749.

II. Delivery, $$ 1753-1758.
III. Warranty, 38 1763-1778.

ARTICLE I. RIGHTS AND DUTIES BEFORE DELIVERY. 1748. When seller must act as depositary. 1749. When seller may resell.

$ 1748. When seller must act as depositary. After personal property has been sold, and until the delivery is completed, the seller has the rights and obligations of a depositary for hire, except that he must keep the property, without charge, until the buyer has had a reasonable opportunity to remove it. En. March 21, 1872.

$ 1749. When seller may resell. If a buyer of personal property does not pay for it according to contract, and it remains in the possession of the seller after payment is due, the seller may rescind the sale or may enforce his lien for the price, in the manner prescribed by the title on liens. En. March 21, 1872.

Cal.Rep.Cit. 58, 435; 86, 536; 120, 419; 120, 420.

Rescission of contracts, generally: See ante, secs. 1688 et seq; post, secs. 3406 et seq.

Rescission of contract for sale by buyer: See post, secs. 1785, 1786.

Liens: See post, secs. 2872 et seq.

ARTICLE II.

DELIVERY. 1753. Delivery on demand. 1754. Delivery, where made. 1755. Expense of transportation. 1756. Notice of election as to delivery. 1757. Buyer's directions as to manner of sending thing sold. 1758. Delivery to be within reasonable hours.

| 1753. Delivery on demand. One who sells personal property, whether it was in his possession at the time of sale or not, must put it into a condition fit for delivery, and

deliver it to the buyer within a reasonable time after demand, unless he has a lien thereon. En. March 21, 1872.

Cal.Rep.Cit. 82, 479.
Performance generally: See ante, secs. 1473, 1485 et seq.

Delivery sufficient as to third persons: See sec. 3440, post.

$ 1754. Delivery, where made. Per al property sold is deliverable at the place where it is at the time of the sale or agreement to sell, or if it is not then in existence, it is deliverable at the place where it is produced. En. March 21, 1872.

Cal.Rep.Cit. 84, 213.

$ 1755. Expense of transportation. One who sells personal property must bring it to his own door, or other convenient place, for its acceptance by the buyer, but further transportation is at the risk and expense of the buyer. En. March 21, 1872.

$ 1756. Notice of election as to delivery. When either party to a contract of sale has an option as to the time, place, or manner of delivery, he must give the other party reasonable notice of his choice; and if he does not give such notice within a reasonable time, his right of option is waived. En. March 21, 1872.

$ 1757. Buyer's directions as to manner of sending thing sold. If a seller agrees to send the thing sold to the buyer, he must follow the directions of the latter as to the manner of sending, or it will be at his own risk during its transportation. If he follows such directions, or if, in the absence of special directions, he uses ordinary care in forwarding the thing, it is at the risk of the buyer. En. March 21, 1872.

8 1758. Delivery to be within reasonable hours. The delivery of a thing sold can be offered or demanded only within reasonable hours of the day. En. March 21, 1872. ARTICLE III.

WARRANTY. $ 1763. Warranty, what. $ 1764. No implied warranty in mere contract of sale. $ 1765. Warranty of title to personal property. $ 1766. Warranty on sale by sample. $ 1767. When seller knows that buyer relies on his statements, etc. $ 1768. Merchandise not in existence. $ 1769. Manufacturer's warranty against latent defects. $ 1770. Thing bought for particular purpose. $ 1771. When thing cannot be examined by buyer. $ 1772. Trade-marks. $ 1773. Other marks. $ 1774. Warranty on sale of written instrument. $ 1775. Warranty of provisions for domestic use. $ 1776. Warranty on sale of good-will. § 1777. Warranty upon judicial sale. $ 1778.

Effect of general warranty. § 1763. Warranty, what. A warranty is an engagement by which a seller assures to a buyer the existence of some fact affecting the transaction, whether past, present, or future. En. March 21, 1872.

Cal.Rep.Cit. 66, 239.

8 1764. No implied warranty in mere contract of sale. Except as prescribed by this article, a mere contract of sale or agreement to sell does not imply a warranty. En. March 21, 1872.

Cal.Rep.Cit. 65, 274; 66, 239; 92, 123.

Warranty of genuineness on exchange of money: Post, sec. 1807.

$ 1765. Warranty of title to personal property. One who sells or agrees to sell personal property as his own, thereby warrants that he has a good and unincumbered title thereto. En. March 21, 1872.

Cal.Rep.Cit. 113, 353.

$ 1766. Warranty on sale by sample. One who sells or agrees to sell goods by sample, thereby warrants the bulk to be equal to the sample. En. March 21, 1872.

g 1767. When seller knows that buyer relies on his statements, etc. One who sells or agrees to sell personal property, knowing that the buyer relies upon his advice or judgment thereby warrants to the buyer that neither the seller, nor any agent employed by him in the transaction, knows the existence of any fact concerning the thing sold which would to his knowledge destroy the buyer's inducement to buy. En. March 21, 1872.

$ 1768. Merchandise not in existence. One who agrees to sell merchandise not then in existence, thereby warrants that it shall be sound and merchantable at the place of production contemplated by the parties, and as nearly so, at the place of delivery, as can be secured by reasonable care. En. March 21, 1872.

Cal.Rep.Cit. 75, 561; 76, 214; 116, 245.

§ 1769. Manufacturer's warranty against latent defects. One who sells or agrees to sell an article of his own manufacture, thereby warrants it to be free from any latent defect, not disclosed to the buyer, arising from the process of manufacture, and also that neither he nor his agent in such manufacture has knowingly used improper materials therein. En. March 21, 1872.

Cal.Rep.Cit. 67, 613; 75, 561; 134, 328.

$ 1770. Thing bought for particular purpose. One who manufactures an article under an order for a particular purpose, warrants by the sale that it is reasonably fit for that purpose. En. March 21, 1872. Cal.Rep.Cit. 63, 576; 65, 274; 67, 613; 75, 561; 76, 214;

120, 229; 120, 231 ; 134, 328. § 1771. When thing cannot be examined by buyer. One who sells or agrees to sell merchandise inaccessible to the examination of the buyer, thereby warrants that it is sound and merchantable. En. March 21, 1872.

Cal.Rep.Cit. 65, 275; 76, 214.

$ 1772. Trade-marks. One who sells or agrees to sell any article to which there is affixed or attached a trademark, thereby warrants that mark to be genuine and lawfully used. En. March 21, 1872.

Selling goods with counterfeit trade-mark: See Pen. Code, sec. 351.

§ 1773. Other marks. One who sells or agrees to sell any article to which there is affixed or attached a statement or mark to express the quantity or quality thereof, or the

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