warranted title to the goods sold, 10 and it was not until 1868 that the English court clearly stated the modern law of implied warranty of quality." The ground of implying a warranty of quality must be that the buyer is justified in assuming that the seller represents that the goods to which the bargain relates are merchantable, and such an implication is now made in many cases. At the present time, therefore, it seems clear that the test of whether an article answers the description of it given by the contract is not adequate. The description may be in such general terms as to be accurate and yet the quality of the goods may be materially inferior to what the buyer is entitled to expect. If no representation can be implied but both parties justifiably suppose that they are dealing with goods in ordinary merchantable condition, and the goods are not in such condition, whether because of some accident or because they never were in good condition, even though the circumstances are such that the seller is not liable as a warrantor, at least there is a mutual mistake of a material fact, which should excuse the seller from liability and justify the buyer in rescinding the transaction. It may well be that even under the English statute nearly this result would be reached by treating goods as having "perished" within the meaning of the Sale of Goods Act, "not only if they were physically destroyed, but also if they had ceased to exist in a commercial sense; that is, if their merchantable character as such has been lost." 12 It seems better, however, to reach the desired result directly than by putting an artificial meaning 10 Morley v. Attenborough, 3 Ex. 500. The case related to a sale by a pawnbroker and Parke, B., distinguished it from the case of an ordinary shopkeeper selling goods. 11 Jones v. Just, L. R. 3 Q. B. 197. 12 This suggestion is made in Benjamin, Sale (5th Eng. ed.), 140, citing several cases where freight was held not payable under a charter party requiring delivery of the goods as a condition, when the goods were SO deteriorated as to be unfit for the purposes for which such goods are ordinarily used. Duthie v. Hilton, L. R. 4 C. P. 138; Asfar v. Blundell, [1896] 1 Q. B. 123. See also Nickoll v. Ashton, [1901] 2 K. B. 126. This result was reached in Rendell v. Turnbull, 27 N. Zealand, L. R. 1067, under the New Zealand Sale of Goods Act (which is identical with the English Act in the section in question), where a lot of potatoes unknown to the parties at the time of the bargain had started "second growth" to such an extent as to be unfit for human food. See also infra, §§ 1569, 1570. upon such words as "perished" or "destroyed." If the seller knows of the destruction or deterioration of the goods the case would not fall within the terms of section 7 of the Sales Act, but the seller would then be liable if not in deceit at least on an implied warranty, and the buyer would thus be fully protected. The right of the buyer, however, to take the goods if he wishes seems clear. 13 § 1564. Rules of the Civil law. The question of the destruction of the subject-matter of the sale has been much discussed in the Civil law, and the rules of the Roman Law have been thus summarized: "If the thing which it has been agreed to buy and sell has, unknown to both parties, ceased to exist at the time at which the contract is made, the contract is void. The vendor must return the purchase money, if he has been paid; and if he alone knew that the property no longer existed he is further liable to compensate the purchaser in damages for any loss which he may sustain through nonperformance, whereas if the purchaser alone knew it, he is bound to pay the purchase money, and has 13 In Scott v. Littledale, 8 E. & B. 815, 820, a contract was made to sell the cargo of the "Star" and it was agreed that the cargo was equal to a certain sample. The sample on which the contract was made was by mutual mistake supposed to be a sample taken from the cargo which was bought and sold, whereas it was not. The consedefendants quence was that the by his declaration says that he was always ready and willing to accept the cargo ex Star; if he was, were not you bound at least to deliver that cargo? Do you not claim too large a relief?" Counsel replied: "In the contemplation of a court of equity there was no contract, because the contract was founded on a mistake of both parties to it;" but Lord Campbell, C. J., delivering the opinion of the court, said: "We are all of opinion that the plea cannot be supported. It is founded on the assumption that in equity this contract would be void at the option of the vendor. But we are of opinion that the contract would be held to be still subsisting, and that the relief in equity, if any, would be partial or conditional. We have no authority in this Court to settle such equities." no rights himself against the vendor. If both were aware that the property no longer existed, the contract is void. Where the thing has ceased to exist only in part, the contract is void, and the purchaser can recover any purchase money which he has paid, only where less than half of it is left, or where the portion wanting is the portion for which mainly the purchaser can show that he bought it. Otherwise the contract stands, the purchase money being proportionately abated. On the same principle a sale of the inheritance of a living third person, or of a person who does not and never has existed, is void, though Justinian legalized sales of the inheritance of a living person to which the vendor hoped to succeed, provided that person assented, though he was not thereby bound to leave it to the vendor at all." 14 It may be assumed that the modern Civil law would follow the same principles except in so far as express Code provisions may modify them. In France the Civil Code provides: "If at the moment of the sale the thing sold had wholly perished, the sale shall be void. If a part only of the thing has perished it is at the option of the buyer to abandon the sale or to demand the remaining part, having the price determined by valuation." 15 The German Code contains no specific provision in regard to the matter, but it is covered by the general provisions in regard to impossibility, mistake, and dependency of the obligations in bilateral contracts, 16 The Code of Louisiana contains the following provision: "When the certain and determinate substance, which was the object of the obligation, is destroyed, is rendered unsaleable, or is lost, so that it is absolutely known not to exist, the obligation is extinguished, if the thing has been destroyed or lost, without the fault of the debtor, and before he was in default. Even when the debtor is in default, if he has not taken upon himself fortuitous accidents, the obligation is extinguished, in case the thing might have equally been destroyed in the possession of the creditor, if it had been delivered to him. The debtor is bound to prove the fortuitous accident he alleges. In whatever manner a thing stolen may have been destroyed or lost, its loss does not dis 14 Moyle, Contract of Sale in the Civil Law, 21. 15 Art. 1601. 16 German Civ. Code, Secs. 306, 319, 320, 323. charge the person who carried it off, from the obligation of restoring its value." 17 § 1565. Mistake as to title to personal property. As the seller of personal property impliedly warrants his title, 18 unless the buyer clearly agrees to take merely such title as the seller may have, it is seldom necessary in jurisdictions where rescission is allowable for breach of warranty 19 to invoke the doctrine of mistake as a justification of the buyer's right of rescission for defective title to goods which he has bought, since there will be either a warranty or the buyer will have agreed to buy and pay for only such right as the seller might have; but wherever the parties have based their contract on the assumption that the seller has title there seems no reason why there should not be rescission on the ground of mistake even though there is no warranty.20 Thus where the plaintiff bought chattels for value at an execution sale which were not the property of the judgment debtor but of a third person, recovery was allowed from the judgment creditor of the money paid.2 21 17 Art. 2219. 18 See supra, §§ 975-979, 1063, 1129, 1162. 19 See supra, § 1461. 20 Claflin v. Godfrey, 21 Pick. 1; King v. Doolittle, 38 Tenn. 77; Stocks v. Sheboygan, 42 Wis. 315. As to bargains for patents which turn out to be invalid, see supra, § 137. 21 Dresser v. Kronberg, 108 Me. 423, 81 Atl. 487, 36 L. R. A. (N. S.) 1218, Ann. Cas. 1913 B. 542. The court said (page 425): "We are aware that the courts in some jurisdictions notably in Indiana and Illinois, have denied recovery from the judgment creditor, but we are unable to assent to the force of the reasoning by which that conclusion is reached. Dunn v. Frazier, 8 Blackf. (Ind.) 432; Lewark v. Carter, 117 Ind. 206, 10 Am. St. Rep. 40, see note to same, 3 L. R. A. 440; England v. Clark, 5 Ill. 487. The decisions in Indiana are placed upon the ground that the doctrine of caveat emptor applies with full force in all judicial sales and that the purchaser buys at his peril. This statement when rightly interpreted is true but it simply means that there is no guaranty or warranty of title because the purchaser takes and can only take whatever title the debtor has. Therefore in the absence of fraud the law will not ordinarily relieve a purchaser from a defective title and a partial failure of consideration, as for instance an outstanding incumbrance or a lien for taxes. Ritter v. Henshaw, 7 Iowa, 97; Parker v. Rodman, 84 Ind. 256. But the doctrine is not carried to the extent that in case of absolute failure of title the purchaser is without remedy. Even the States which deny a right of action against the creditor, grant it against the judgment debtor. McGhee v. Ellis, 4 Litt. (Ky.) 244, 14 Am. Dec. 124; Price v. Boyd, 1 Dana § 1566. Mistake as to existence or title to real estate. In contracts to sell real estate the contract is construed unless a contrary intention is expressed, as binding the seller to convey a good title; 22 but when an actual conveyance has been made there are certainly no implied warranties and generally the assumption is made that the buyer takes the risk of the seller's title except to the extent that the seller by the express terms of the deed warrants its validity.23 Where, however, the property to which the contract relates has no existence (not simply is not owned by the seller), it seems probable that an attempted conveyance could be set aside for mistake; 24 and it seems, further, that if the grantor's supposed title or right to convey was based on his holding some office or having some authority, or upon some other fact and it clearly appeared that the parties contracted on the mutual erroneous assumption that the grantor had the office, or the authority, or that the necessary facts existed, the transaction will be rescinded, 25 (Ky.), 434; Geoghegan v. Ditto, 59 22 See supra, § 923. 23 See supra, § 926. 24 In Hitchcock v. Giddings, 4 Price, 135, Richards, C. B., said: "Suppose I sell an estate innocently, which at the time is actually swept away by a flood, without my knowledge of the fact; am I to be allowed to receive 5,000l. and interest, because the conveyance is executed and a bond given for that sum as the purchase money, when, in point of fact, I had not an inch of the land, so sold, to sell?" In the actual case the plaintiff had purchased and taken a conveyance from the defendant of an interest in real estate which had, however, been cut off by the suffering of a common recovery. It was held that a bond given by the plaintiff for the price must be delivered up for cancellation. Cf. with cases cited, supra, § 926. See also Blakeman v. Blakeman, 39 Conn. 320. 25 Hitchcock v. Giddings, 4 Price, 135; United States v. Gridley, 186 Fed. 544; O'Neal v. Phillips, 83 Ga. 556, 10 S. E. 352; Phillips v. O'Neal, 85 Ga. 142, 11 S. E. 581, 87 Ga. 727, 13 S. E. 819; Julian v. Beal, 26 Ind. 220, 89 Am. Dec. 460; Fleetwood v. Brown, 109 Ind. 567, 9 N. E. 352, 11 N. E. 779; Earle v. Bickford, 6 Allen, 549, 83 Am. Dec. 651; Griffith v. Townley, 69 Mo. 13, 33 Am. Rep. 476; Clark v. Carter, 234 Mo. 90, 136 S. W. 310; Martin v. McCormick, 8 N. Y. 331; Thomas v. Bartow, 48 N. Y. 193, 198; McKibben v. Doyle, 173 Pa. 579, 34 Atl. 455, 51 Am. St. Rep. 785; Bigham v. Madison, 103 Tenn. 358, 52 S. W. 1074, 47 L. R. A. 267; Irick v. Fulton, 3 Gratt. 193. See also Miller v. Thompson, 40 Nev. 35, 160 Pac. 775. Cf. Erkens v. Nicolin, 39 Minn. 461, 40 N. W. 567. On their facts some of these cases are not easy to reconcile with those cited supra, § 926. |