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Patent Defects.-A general warranty does not usually extend to defects apparent on simple inspection, requiring no skill to discover them, nor to defects known to the buyer, but the warranty may be so expressed as to protect the buyer against consequences growing out of a patent defect.1

Executory Contracts.-Acceptance of property, manufactured under an executory contract, by the vendee, after a full and fair opportunity of inspection, estops him, in the absence of fraud, from thereafter raising any objections as to visible defects and imperfections, whether discovered or not, unless such delivery and acceptance were accompanied by some warranty of quality manifestly intended to survive acceptance.2 Dearborn, 77 Me. 457, 458; Hoult v. ary. It is also well settled that a warBaldwin, 67 Cal. 610, and note 443; ranty, even in an executed contract, does Cunningham v. Hall, 4 Allen (Mass.) not extend to known defects. (Schuy. 268, 274; Randall v. Newson, L. R., 2 ler v. Russ, 2 Caines (N. Y.) 202; Q. B. 102, 109; s. C., 19 Eng. Rep. 243, Jennings v. Chenango etc. Ins. Co., 2 249. Consult also article on Implied Denio (N. Y.) 75; Bennett v. Buchan, Warranty of Fitness of a Chattel, 17 76 N. Y. 386; Day 7. Pool, 52 N. Y. Am. L. Řev. 423 (1883).

416; Parks v. Morris etc. Tool Co., 54 Rescission on Discovery of.—A person N. Y. 586; Van Schoick v. Niagara who purchases by sample, a chattel in- etc. Ins. Co., 68 N. Y. 434); and for tended for a particular purpose, known obvious reasons fraud in respect to the to the seller, may, even after accept- quality and condition of property sold ance, rescind the sale on discovering a cannot be predicated of defects which latent defect. Hudson v. Roos, 40 N. were visible, and known to the party W. Rep. (Mich.) 467.

alleged to have been defrauded. 1. Storrs v. Emerson, 72 Iowa 390, The claim here (as to a contract with a 391; holding, accordingly, that an ex- lithographic printer in colors and othpress warranty against all unsoundness erwise to get out an edition of a book protected the buyer of a span of horses called Studies of Birds of North against defects arising from diseases of America,') is, however, that there was the kidneys or spine, where these de- an implied warranty of the quality of fects were not apparent to the eye, the material to be used, and the charalthough symptoms of the disease acter of the work to be done, which were apparent, if they were not known survived the acceptance of the propto the buyer as such. Concerning war- erty sold, and gave a right of action for ranty in its relation to patent defects, defects subsequently discovered in such see further Kenner z'. Harding, 85 Ill. property

The action must 264; s. C., 28 Am. Rep. 615; Tabor v. be supported, if it can be held Peters, 74 Ala. 90; s. C., 49 Am. Rep. to lie at all, upon the claim of warranty 804; Mickley v. Parsons, 66 Iowa 63; to be implied from the description of s. c., 55 Am. Rep. 261, 262; President the work contained in the contract. of Connersville 7'. Wadleigh, 7 Blackf. We entertain doubt that this (Ind.) 102; s. C., 41 Am. Dec. 214, 216. was an executory contract for the man

2. Steeder v. Bleistein, 29 Cent. L. J. ufacture and sale of personal property, 449; N. Y. Ct. App. October 8th, 1889; which, upon performance by the venciting Reed v. Randall, 29 N. Y. 358; dor, entitled the vendee to an opporGaylord Mfg. Co. v. Allen, 53 N. Y. tunity of inspection, and the right to 515; Gurney 7. Atlantic etc. R. Co., 58 accept or reject such property as he N. Y. 358; Norton r'. Dreyfuss, 106 N. should determine after examination. Y. 90; Coplay Iron Co.z'. Pope, 108 N.

The rule stated in Norton v. Y. 232; Brown v. Foster, 10S N. Y. Dreyfuss [106 N. Y. 90), assuming 387; and further remarking: “ The that there was no fraud inducing the general rule that acceptance of prop- acceptance, was 'that the acceptance by erty manufactured under an executory the vendee of articles manufactured for contract by the vendee precludes him him under an executory contract, after from subsequently claiming damages an opportunity to examine them, prefor defects in such property, is element- cludes him from raising any question 12 C. of L.-59



Remedy on Divergence from Description. The buyer may accept an article sold with a warranty though he may know it is not such as is warranted, and may recover damages for the breach. But if there be no warranty, and the article tendered be not such as is described in the contract, and this be known to the purchaser, he must either refuse it and rescind the contract or accept it and abide by the agreement. If, however, the property be not such as is described, and the defect be such as cannot be discovered by the exercise of reasonable care, and the buyer do not discover it until he has made such disposition of the property

as to defects or imperfections which testator (who was the lithographic were visible and capable of discovery printer before mentioned) as having on inspection, unless there is a warranty been performed by assuming the ownerof their quality, which was intended to ship and control of the property theresurvive their acceptance and give the after; directing the style and mode of vendee further time for trial and exam- binding, and making sales of the books ination. After quoting from Gurney v. thus bound, and requiring their deliva Atlantic etc. R. Co., 58 N. Y. 358; ery to his vendees for a period of nearly from Coplay Iron. Co. v. Pope, 108 N. a year after such acceptance. Under Y. 232; and as peculiarly applicable to such circumstances he is not at liberty the case under consideration, the opin- to claim that there was no acceptance of ion of CHIEF JUDGE Church, in Dutch- the property sold, or to claim damages ess Co. v. Harding, 49 N. Y. 321; and for defects in the articles so accepted. distinguishing Day v. Pool, 52 N.Y.416; Brown v. Foster ( 108 N. Y. 387) supra, and stating the rulings in Muller v. Eno, Lilley white v. Devereux, 13 Meas. & 14 N. Y. 597; and Brigg v. Hilton, 99 W. 285. The facts of this case bring it N. Y. 529; it was further said : “We clearly within the authorities cited. think the authorities are uniform to the The ground upon which any claim effect that a deliberate, intelligent and of warranty can be founded' relates intentional acceptance of property, solely to the description of property manufactured under an executory con- contained in the contract of sale. It tract of sale, after inspection, preciudes refers only to those qualities which were the vendee from claiming damages for readily discernible upon inspection, and any visible or discernible defect in the was not collateral to, but a necessary property sold. The acceptance dis- part of, the contract of sale, and affords closed by this case is not one to be in- noground for the inference that any warferred from the receipt of the property ranty was intended which should surwithout objection, but is founded upon vive the acceptance of the property." an actual inspection made with the view Goods Not Properly Packed, etc. - Acof determining the question whether cordingly where goods are sold by samthe property should be received as a ple without any representation as to performance of the contract or not. their condition, and are accepted and reWe think the acceptance was unequiv- tained by the purchaser, the facts that ocal, with a full understanding on the they are not properly packed, and that plaintiff (who was the author and the brands on the cases have been editor of the work in question) of its effaced, constitute no defence to an acdesign and effect. The inspection of tion on the price, as the defects comthe goods was invited for the purpose plained of are patent on first inspection. of obtaining authority to deliver the Bolles v. Valentine, 2 N. Y. Supp. 710, goods, on behalf of the plaintiff, to the 711. parties who had contracted to print and Tiles Melting in the Furnace.- Where, bind the plates into books for him. The however, one manufacturer made tiles goods were clearly accepted for this for others under a contract that they purpose, and they were immediately were to be skilfully made and of extra handed over to those parties for the materials, and that they would withperformance of the work they had con- stand the heat of the furnaces of the tracted to do upon them. The plaintiff parties supplied, such contract being well understood this purpose, and entered into with knowledge that they treated the contract of the defendant's were to be subjected to the greatest

that he cannot return it to the seller, then he may recover his damages by reason of the seller's failure to comply with the terms of his contract.1

Fraudulent Concealment of Latent Defect.-It is sometimes broadly said that where a vendor sells property having a latent dcíect, of which he knows, but which he fails to disclose to the vendce, knowing that the latter is acting upon the supposition that no such fact exists, he is guilty of a fraud, and the fraud may be pleaded as a defence to an action for the price of the property. But it has been very properly pointed out that though, doubtless, “ the cases in which it was held that a vendor was bound to disclose a latent and material defect in the thing sold, known to him and unknown to the vendee, were each of them correctly decided;" yet the error has been in deducing a general rule of law applicable in all cases of a like character, from the evidence in a particular case. The better doctrine upon the subject would appear to be that the omission to disclose a latent and material defect, known to the vendor and unknown to the vendee is nierely evidence of fraud, the effect of which the cir·cumstances may strengthen or destroy.3

A vendor is liable for a fraudulent concealment of a latent defect where he sells cattle at a sound price, knowing that they heat, and that great damage would re- tion of material facts in general, and sult if they proved defective, but they contagious disease of animal in parwere not made as agreed, and soon ticular, see Wintz v. Morrison, 17 Tex. melted in the furnace, it was held that 372; s. C., 67 Am. Dec. 658; and notes the defects being latent, the implied 664. warranty that the tiles were reasonably 3. Hadley v. Clinton County Imfit for the purpose for which they were porting Co., 13 Ohio St. 502; s. c., 82 made survived the acceptance and con- Am. Dec. 454, 462. It is further said stituted a good defence and counter in this case (82 Am. Dec. 459) that claiin to an action for the price. Web- "good sense and the law will more ber v. Demuth, 3 N. Y. Supp. 658. readily authorize the finding that there

1. Parks v. O'Connor, 70 Tex. 377, was an obligation to disclose a latent, 359, 390.

intrinsic defect in the article sold, more 2. Cecil v. Spurger, 32 Mo. 462; S. C., peculiarly in the knowledge of the 82 Am. Dec. 140, 141; citing McAdams vendor, than extrinsic facts affecting its 7'. Cates, 24 Mo. 223; Barron v. Alex- value, as to which the means of knowlander, 27 Mo. 530. It has also been de- edge are equally accessible to both parclared that where the unsoundness is ties. The important point in any case latent, that is, such as could not be dis- where there is a material latent defect, covered by the exercise of ordinary known to the vendor and unknown to diligence, mere silence on the part of the vendee, is whether, under the cirthe vendor is sufficient to establish the cumstances, the omission to disclose it deceit, provided he knows of the un- constituted a fraud. It may or may soundness; for as the thing is not what not, under the circumstances, be a it appears to be, and diligence does not fraudulent act giving a right of action enable the purchaser to discover its un- for deceit. Whether it be so is, at least, soundness, he is deceived unless the generally, a question of fact upon which fact is disclosed; so that in such a case the jury should be allowed to pass, and without what the law considers laches as the diversity in the circumstances is on the part of the purchaser, the deceit infinite, and any rules to aid the jury in is accomplished by the suppressio veri. their enquiry apply to classes of cases, Brown v. Gray, 6 Jones (N. Car.) L. care should be taken that the circum103; s. C., 72 Am. Dec. 563. Concern- stances of the case show that it may ing concealment and misrepresenta- properly fall under the class to which

have Texas fever or any other disease affecting their value for the purposes for which they are being bought, if the disease is not easily detected by those who have had no experience with it, and if the seller does not disclose his knowledge to the vendee.

Evidence Concerning Fraud.While a written contract for the sale of goods by sample cannot be shown by oral evidence to be made with warranty when none is set out in the contract, yet the statements of the broker falsely recommending the quality of the article, the defects of which cannot be assumed to be patent instead of latent, are admissible to show that the sale was fraudulently procured.2 the rule given in [the] charge to the ment and observations, and the seller jury applies.”

makes no representations that are un1. Grigsby v. Stapleton, 94 Mo. 423. true, or says nothing, the buyer takes "Careat emptor," says BLACK, J., in the property at his own risk. This inthis case, “is the general rule of the struction was held to be erroneous, the common law. If detects in the prop- court saying: 'If the seller knows of a erty sold are patent and might be dis- latent defect in the property that could covered by the exercise of ordinary at- not be discovered by a man of ordinary tention, and the buyer has an oppor- observation, he is bound to disclose it.' tunity to inspect the property, the law In Jeffrey r». Bigelow, 13 Wend. 518, does not require the vendor to point the defendants, through their agent, out defects. But there are cases where sold a flock of sheep to the plaintiff; it becomes the duty of the seller to soon after, a disease known as the scan point out and disclose latent defects. made its appearance among the sheep. Parsons says the rule seems to be that it was, in substance, said, had the de. a concealment or misrepresentation as fendants made the sale in person, and to extrinsic facts, which affects the mar- known the sheep were diseased, it ket value of the thing sold, is not would have been their duty to have in. fraudulent, while the same concealment formed the purchaser; and the defendof defects in the articles themselves, ants were held liable for the deceit. In would be fraudulent. 2 Pars. on Cont. the case of McAdams 7o. Cates, 24 Mo. [6th ed.) 775. When an article is sold 223, the plaintiff made an exchange or for a particular purpose, the suppres- swap for a filly, unsound from loss of sion of a fact by the vendor, which fact her teeth. The court, after a careful makes the article unfit for the purpose review of the authorities, as they then for which it was sold, is a deceit; and stood, announced this conclusion: If as a general rule, a material latent de the defect complained of in the present ject must be disclosed when the article case was unknown to the plaintiff, and is offered for sale, or the sale will be of such a character that he would not avoided. 1 Whart. on Cont., § 248. have made the exchange had he known The sale of animals which the seller of it, and was a latent detect such as knows, but the purchaser does not, have would have ordinarily escaped the oba contagious disease, should be regarded servation of men engaged in buying as a fraud when the fact of the disease horses, and the defendant knowing this, is not disclosed. Cooley on Torts 481. allowed the plaintiff to exchange withKerr says: 'Defects, however, which out communicating the defect, he was are latent, or circumstances materially guilty of a fraudulent concealment, and affecting the subject matter of a sale, of must answer for it accordingly. This which the purchaser has no means, or case was followed, and the principle at least has no equal means of knowl- reasserted, in Barron 2. Alexander, 27 edge, must, if known to the seller, be Mo. 530; Hill v. Beals, 2 H. & N. 299. disclosed.' Kerr on Fraud & Mis. seems to teach a different doctrine, but (Bump's ed.) 101. In Cardwell t'. Mc- the cases in this court, supported as Clelland, 3 Sneed 150, the action was they are, must be taken as the es: for fraud in the sale of an unsound tablished law of this State." horse. The court had instructed that 2. Mayer v. Dean, 22 N. E. Rep. (N. if the buyer relies upon his own judg. Y.) 261; s. C., 29 Cent. L. J. 415. "The


LATERAL-(See EASEMENT; LATERAL AND SUBJACENT SUPPORT). In ordinary language used in the sense of sideways, directed towards the side ; in technical language it is used in the sense of longitudinal.1


3. Rights and Liability of Adjoining 2. How the Right May be Acquired,

Owners, 937 935.

4. Damages, 939. I. Definition.-The right of lateral and subjacent support is that right which the owner of land has to have his land supported by the adjoining land or the soil beneath.

As applied to land only, in its natural state, this is a right ex jure naturæ; but when applied to any structure erected upon the land, it is an easement, and can only exist when acquired in some one of the ways recognized by law.2 case shows," said the court. "that the determine whether the defendants were defendants, on the trial, offered to prove in fact deceived by the representation. that the broker making the contract for This evidence was expressly offered for the plaintiff represented that the seed the purpose of showing fraud, and we proposed to be sold was clean and free think it was competent upon that isfrom impurities. This evidence was Hall v. Erwin, 66 N. Y. 649; objected to by the plaintiff, and excluded Johnson v. Hathorn, 2 Abb. Dec. (N. by the court, upon the ground that it Y.) 465; Mead v. Bunn, 32 N. Y. 275. tended to vary, enlarge and contradict Whether the defect was invisible, and the contract of sale. There can be no the defendants were in fact deceived, question about the correctness of this relying upon the representation and ruling, if the evidence merely tended to onnitted to make such an examination establish a warranty different from that of the seed as they might otherwise expressed in the contract.

The con- have made, would be for the jury to tract, by its terms, secured to the de- determine upon all the evidence. Day fendants a right to have the bulk of the v. Pool, 52 N. Y. 416.

In an goods sold correspond as to quality and action between vendor and vendee, appearance with the sample (Hargons knowledge possessed by either the 7. Stone, 5 N. Y. 73; Beirne v. Dord, 5 principal or the agent is respectively N. Y. 95), and the defendants were pre- imputable to each other, and an agent cluded by well settled rules from show- whose principal has knowledge of laing by parol a more enlarged or differ- tent defects in property proposed to be ent contract. The offer in this case, sold cannot honestly represent to its however, went further than this, and intending purchaser that it is free from tended to show that the contract itself such defects." was procured by fraudulent representa- 1. Thus, in charging the jury upon a tion. The representation attempted question of patent law, McLean, J., to be proved related to the character said: “ The words 'lateral motion,' in and quality of the thing offered for sale, mechanics, do not mean, as the term and was material upon one of the de- ordinarily signifies, a side motion, but fences set up in the answer. The mani- a longitudinal one." Brook & Morris fest tendency of such a representation V. Jenkins & Bicknell, 3 McLean (U. was to throw the purchaser off his S.) 432, 454. guard, and lead him to forego an ex- 2. “Every person has a natural right, amination which he might otherwise ex jure naturæ, to support to his land make. Under the evidence in this from the adjacent and subjacent soil. case it cannot be assumed, as matter of This natural right is incident to land, law, that these defects were visible or and the owner is as much entitled to it known to the purchaser, and it there- as he is to the land itself, without any fore became a question for the jury to grant by the servient owner

or any

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