however, the purchaser does not choose to repudiate the contract altogether, he may accept the property delivered as satisfying the contract in whole or in part, and may either recoup against the purchase price or recover damages for the defect. Illustrations of the application of these rules are frequently seen in the case of machinery ordered and delivered, which proves on inspection or trial to be materially different from what the buyer intended to purchase, or below the specifications of the contract, or inadequate to the purpose for which it was sold. Thus, where one purchases a soda fountain and apparatus, giving notes for the price, and the seller retains title until full payment, with the right to retake possession on default in any payment, and the fountain and apparatus prove to be worthless and not in accordance with the seller's representations and covenants as to their condition and quality, the buyer has the right to rescind without the vendor's consent, if able to restore him to his former condition. So where a windmill pump which plaintiff put up for defendant is so defective as to be useless, defendant is not obliged to accept it and sue for breach of contract, but may rescind the contract and return the property. And sufficient ground for rescission likewise exists where one sells an old sewing machine as a new one,' or where old and shopworn goods are represented and sold as new stock, the deception being aided by a false invoice, or where a person unacquainted with musical instruments is induced to purchase a piano by fraudulent representations concerning its quality and value, or where one has ordered a bill of

3 Fox v. Wilkinson, 133 Wis. 337, 113 N. W. 669, 14 L. R. A. (N. S.) 1107.

4 Simrall v. American Multigraph Sales Co., 172 Mo. App. 384, 158 S. W. 437; Western Union Tel. Co. v. Jackson Lumber Co., 187 Ala. 629, 65 South. 962; Electric Vehicle Co. v. Price, 138 Ill. App. 594; Fairbanks, Morse & Co. v. Walker, 76 Kan. 903, 92 Pac. 1129, 17 L. R. A. (N. S.) 558.

5 Tufts v. Cheatham, 75 Ga. 865.

• Wernli v. Collins, 87 Iowa, 548, 54 N. W. 365.

7 Howe Machine Co. v. Rosine, 87 Ill. 105.

8 Strand v. Griffith, 97 Fed. 854, 38 C. C. A. 444.

9 Couch v. O'Brien, 41 Okl. 76, 136 Pac. 1088. But where the player part of a player piano was separable and replaceable, it

square-edged lumber for a building which he is about to erect, and finds, on delivery, that some of it is wany-edged.10 When the buyer is a retailer or jobber or intends to sell again, there is always a covenant or undertaking on the part of the seller, implied at least, that the goods shall be of merchantable quality or in merchantable condition, and if they are found to be not so, the purchaser may rescind.11 This rule is perhaps especially applicable in the case of food products. Thus, one contracted to buy from a dairy company, for a period of one year, condensed milk averaging a designated amount of butter fat, of good flavor, uniform texture, and proper solubility. The dairy company furnished inferior milk, and though it was notified of the fact, it failed to fulfill the requirements of the contract, whereupon it was held that the buyer was justified in rescinding.12 And again, although land leased for mining purposes may contain the ore expected to be found there, yet if it is not of such quality as to be workable, or fit for use when extracted, this will excuse the lessee from paying the stipulated rent or royalty.18

These rules may also be extended so as to apply to contracts for personal services. If the work performed is inferior in quality to that which was expected and contracted for, that is to say, if it is performed in an unskillful, slovenly, or unworkmanlike manner, or is lacking in that degree of merit or excellence which the person contracted with is capable of infusing into it and which he was expected to impart to it, then the other party to the contract may reject the work and rescind the contract.1 This is illustrated

was held that the seller's fraud in inducing the buyer to purchase the instrument did not entitle the buyer to rescind, when it appeared that the piano itself complied with the representations. Smith & Nixon Co. v. Morgan, 152 Ky. 430, 153 S. W. 749. 10 Montgomery v. Ricker, 43 Vt. 165.

11 Olson v. Mayer, 56 Wis. 551, 14 N. W. 640; Heidenheimer v. Camp (Tex. Civ. App.) 142 S. W. 628.

12 Grafeman Dairy Co. v. St. Louis Dairy Co., 96 Mo. App. 495, 70 S. W. 390.

13 Kemble Iron Co. v. Scott, 15 Wkly. Notes Cas. (Pa.) 220. 14 Husted v. Craig, 36 N. Y. 221; Ferris v. Hoglan, 121 Ala. 240, 25 South. 834; Feinberg v. Weiher (Com. Pl.) 19 N. Y. Supp.

by a case in which the plaintiff, who was an actor, contracted to perform a particular "comedy act" known by a particular name, at the theater owned and operated by the defendant, and which the defendant had previously seen the plaintiff perform elsewhere. But the performance as presented under the contract was materially different from that previously given, by which the comedy was known, and with respect to which defendant had contracted, and it was held that he was entitled to terminate the contract.15 But it is said that the purchaser cannot rescind for defects in quality where the seller has expressly refused to give a warranty, and no fraud is alleged or shown,1 nor where the defect is in any way due to the buyer's own fault or neglect, nor where the contract, fairly interpreted, is sufficiently flexible to admit of minor variations from the standard of quality prescribed.18

19

§ 178. Rule of Caveat Emptor.-"Caveat emptor" is a rule of the common law, which implies that the purchaser must take care to examine and ascertain the kind or quality of the article he is purchasing, or provide against any loss he may sustain from his ignorance of the kind or quality of the article sold and from his inability to examine it fully, by an express agreement of warranty." This rule or maxim has no application in cases of fraud. That is, if the purchase of an inferior or defective article is induced by the fraudulent misrepresentations of the seller, or by his intentional and unjustifiable concealment of the defect or cause of inferiority, whereby the purchaser is deceived or misled, then the rule requiring the purchaser to be on his guard cannot be invoked, but he may rescind the purchase on discovering the fault or defect.20 But if the seller does

15 McLaughlin v. Hammerstein, 99 App. Div. 225, 90 N. Y. Supp. 943.

16 Grojean v. Darby, 135 Mo. App. 586, 116 S. W. 1062.

17 Bonds v. Thos. J. Lipton Co., 85 Miss. 209, 37 South. 805. 18 International Agricultural Corporation v. Stadler, 212 Fed. 378, 129 C. C. A. 54.

19 Wright v. Hart, 18 Wend. (N. Y.) 449.

20 Kell v. Trenchard, 142 Fed. 16, 73 C. C. A. 202; Hennessy v. Damourette, 15 Colo. App. 354, 62 Pac. 229; Sunasack v. Morey, 157 Ill. App. 278; Reval v. Miller, 178 Ill. App. 208; Burnett v.

1

nothing to trick or deceive the purchaser, and if the latter examines the subject of the sale, and its inferiority or defect is apparent, or if he has a full opportunity to inspect it and could have ascertained its character by the exercise of ordinary care, then the presumption is that he acted entirely upon his own judgment, and he cannot reject the article because it is not of the kind, quality, or degree of excellence which he supposed he was bargaining for.21 "As applied to sales of personalty, in the absence of express warranty, where the buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud, and is not the manufacturer or grower of the article he sells, the rule of caveat emptor applies, and the seller is not liable for defects in the article sold. If the purchaser distrusts his judgment, he can require of the seller a warranty as to quality or condition, and he cannot relieve himself and charge the seller on the ground that the examination will occupy time and is attended with labor and inconvenience. The rule applies even in the case of sales by sample, since the buyer may in such case protect himself by requiring a warranty that the goods to be delivered shall be the same as the sample exhibited." 22 But if goods are sold by description, and not on the buyer's selection, and he has no opportunity to inspect them until after delivery, he has the right to reject them and rescind the contract on discovering that they are defective or inferior, either on the ground that the seller

Hensley, 118 Iowa, 575, 92 N. W. 678; Tarnow v. Carmichael, 82 Neb. 1, 116 N. W. 1031; Wolf v. Michael, 21 Misc. Rep. 86, 46 N. Y. Supp. 991; Sockman v. Keim, 19 N. D. 317, 124 N. W. 64; Hadley v. Clinton County Importing Co., 13 Ohio St. 502, 82 Am. Dec. 454; Beetle v. Anderson, 98 Wis. 5, 73 N. W. 560. And see, supra, §§ 61, 64.

21 Kellogg Bridge Co. v. Hamilton, 110 U. S. 116, 3 Sup. Ct. 542, 28 L. Ed. 86; Shackelford v. Fulton, 139 Fed. 97, 71 C. C. A. 295; Hansen v. Baltimore Packing & Cold-Storage Co. (C. C.) 86 Fed. 832; Long v. Duncan, 14 Ky. Law Rep. 812; Farrell v. Manhattan Market Co., 198 Mass. 271, 84 N. E. 481, 15 L. R. A. (N. S.) 884, 126 Am. St. Rep. 436, 15 Ann. Cas. 1076; Galbraith v. Whyte, 2 N. C. 464; Springfield Shingle Co. v. Edgecomb Mill Co., 52 Wash. 620, 101 Pac. 233, 35 L. R. A. (N. S.) 258. Compare Walker, Evans & Cogswell Co. v. Ayer, 80 S. C. 292, 61 S. E. 557.

22 Barnard v. Kellogg, 10 Wall. 383, 19 L. Ed. 987. As to sales by sample, see infra, § 182.

commits a fraud in substituting inferior articles, or for breach of the implied warranty that the goods delivered shall correspond to the description.23 This applies also, it seems, to goods sold in closed boxes or barrels or in bales, so that the buyer has no opportunity of determining the quality of the articles, or the extent to which they may be damaged or inferior, until he has opened the containers and examined the contents in detail.24

Other exceptions to the rule of caveat emptor are found in the case where the seller is the manufacturer or producer of the article sold, in which case he is supposed to have a knowledge of its constituents, quality, or mode of production which the buyer cannot possess,25 and in the case where the seller knows that the purchaser is buying the article for a particular use, in which case there is an implied warranty that it is fit for that specific use,20 and also in cases where the defect in the article sold could only be discovered by one possessing a certain special or technical skill or knowledge, which the particular buyer does not possess.27

§ 179. Redhibitory Defects.-In the civil law, as administered in Louisiana, "redhibition" is the avoidance of a sale on account of some vice or defect in the thing sold which renders it either absolutely useless, or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice or defect. And a "redhibitory vice" or defect in an article sold is one for which the seller may be compelled to take it back, or a defect against which the seller is bound to warrant.2 28 The statute law of that state excludes from the category of redhibitory vices such defects as are appar

23 Hoyle v. Southern Saw Works, 105 Ga. 123, 31 S. E. 137; Richard P. Baer & Co. v. Mobile Cooperage & Box Mfg. Co., 159 Ala. 491, 49 South. 92.

24 Richards v. Burke, 7 La. Ann. 242; Summers Fiber Co. v. Walker, 33 Ky. Law Rep. 153, 109 S. W. 883.

25 Infra, § 189.

26 Infra, §§ 190, 191.

27 See Sanford & Brooks Co. v. Columbia Dredging Co., 177 Fed. 878, 101 C. C. A. 92. And see, supra, §§ 61, 64.

28 Civ. Code La. art. 2520; Pothier, Contract of Sale, No. 203.