are quite irreconcilable, and it is only possible to state the two conflicting rules and cite the cases which severally support them. In the first place, many decisions maintain that a buyer is entitled to rescind for breach of warranty, without any provision in the contract giving him the right to do so, and without showing any fraud on the part of the seller; that is, he is entitled to receive an article corresponding in all particulars with the details warranted, and if the article delivered to him does not answer the warranty, it is his right to reject and return it and cancel the sale. But it is maintained by a body of authorities quite equal in number and importance to those just cited, that there can be no rescission for mere breach of warranty. If there is no provision in the contract contemplating the return of the article if not up to grade, and if no fraud or false representation on the part of the seller is shown, and if the seller will not consent to a return of the article and the cancellation of the sale, then, according to these authorities, the buyer has no privilege of rescission, but must resort to

66 Rubin v. Sturtevant, 80 Fed. 930, 26 C. C. A. 259; Millsapp v. Woolf, 1 Ala. App. 599, 56 South. 22; Connersville Co-operative Creamery Ass'n v. Baltz, 180 Ill. App. 376; Prickett v. McFadden, 8 Ill. App. 197; Matthews v. Fuller, 8 Ill. App. 529; Sparling v. Marks, 86 Ill. 125; Howe Machine Co. v. Rosine, 87 Ill. 105 (but as to Illinois, see the cases cited in the next note); Chicago Telephone Supply Co. v. Marne & Elkhorn Telephone Co., 134 Iowa, 252, 111 N. W. 935; Timken Carriage Co. v. C. S. Smith & Co., 123 Iowa, 554, 99 N. W. 183; Rogers v. Hanson, 35 Iowa, 283; Marston v. Knight, 29 Me. 341; Clements v. Smith, 9 Gill (Md.) 156; Taymon v. Mitchell, 1 Md. Ch. 496; McCeney v. Duvall, 21 Md. 166; Lane v. Lantz, 27 Md. 211; Putnam-Hooker Co. v. Hewins, 204 Mass. 426, 90 N. E. 983; Bryant v. Isburgh, 13 Gray (Mass.) 607, 74 Am. Dec. 655; Morse v. Brackett, 98 Mass. 205; Boardman v. Spooner, 13 Allen (Mass.) 353, 90 Am. Dec. 196; Dorr v. Fisher, 1 Cush. (Mass.) 271; Johnson v. Whitman Agricultural Co., 20 Mo. App. 100; Smith v. Means, 170 Mo. App. 158, 155 S. W. 454; Sinnamon v. Moore, 161 Mo. App. 168, 142 S. W. 494; Baskerville v. Johnson, 20 S. D. 88, 104 N. W. 913; Garr, Scott & Co. v. Young (Tenn. Ch. App.) 62 S. W. 631; Konnerup v. Allen, 56 Wash. 292, 105 Pac. 639; Klock v. Newbury, 63 Wash. 153, 114 Pac. 1032 (but compare Hulet v. Achey, 39 Wash. 91, 80 Pac. 1105); Kohl v. Bradley, Clark & Co., 130 Wis. 301, 110 N. W. 265; Woodle v. Whitney, 23 Wis. 55, 99 Am. Dec. 102; Boothby v. Scales, 27 Wis. 626; Bracken v. Fidelity Trust Co., 42 Okl. 118. 141 Pac. 6, L. R. A. 1915B, 1216.

his action for damages for breach of the warranty. In some of the states this matter has been regulated by statute, and it is provided that "the breach of a warranty entitles the buyer to rescind an agreement for sale, but not an executed sale, unless the warranty was intended by the parties to operate as a condition." But there is substantial authority for holding that a warranty of quality given on a sale, without any fraud, may be treated as making the sale one upon condition subsequent at the election of the purchaser, thus giving him the right to rescind on failure of the article to correspond with the warranty."9

But even if it is recognized as the right of the vendee to rescind the sale on account of a breach of warranty of quality or condition, without showing fraud, yet it is held that this cannot be done on account of slight defects, though they may constitute a breach of the warranty pro tanto, but only

67 Thornton v. Wynn, 12 Wheat. 183, 6 L. Ed. 595; Hafer v. Cole, 176 Ala. 242, 57 South. 757; Buckingham v. Osborne, 44 Conn. 133; Dawson v. Pennaman, 65 Ga. 698; Clark v. Neufville, 46 Ga. 261; Tokheim Mfg. Co. v. Stoyles, 142 Ill. App. 198; Sturges & Burn Mfg. Co. v. Great Western Smelting & Refining Co., 156 Ill. App. 474; Mayes v. Rogers, 47 Ill. App. 372; Hoover v. Sidener, 98 Ind. 290; Marsh v. Low, 55 Ind. 271; Nave v. Powell, 52 Ind. App. 496, 96 N. E. 395; Lightburn v. Cooper, 1 Dana (Ky.) 273; H. W. Williams Transp. Line v. Darius Cole Transp. Co., 129 Mich. 209, 88 N. W. 473, 56 L. R. A. 939; Wirth v. Fawkes, 109 Minn. 254, 123 N. W. 661, 134 Am. St. Rep. 778; Lynch v. Curfman, 65 Minn. 170, 68 N. W. 5; Minneapolis Harvester Works v. Bonnallie, 29 Minn. 373, 13 N. W. 149; Knoblauch v. Kronschnabel, 18 Minn. 300 (Gil. 272); Walls v. Gates, 6 Mo. App. 242; Gelb v. Waller (Sup.) 115 N. Y. Supp. 201; Giordano v. Nizzari, 115 N. Y. Supp. 719; Brown v. Warwick, 80 Misc. Rep. 241, 141 N. Y. Supp. 919; Langworthy v. Beardsley, 1 City Ct. R. (N. Y.) 170; Kauffman Milling Co. v. Stuckey, 40 S. C. 110, 18 S. E. 218; Lewis v. Rountree, 78 N. C. 323; Simonson v. Jenson, 14 N. D. 417, 104 N. W. 513; Kase v. John, 10 Watts (Pa.) 107, 36 Am. Dec. 148; Freyman v. Knecht, 78 Pa. 141; Belew v. Clark, 4 Humph. (Tenn.) 506; Wright v. Davenport, 44 Tex. 164; Jesse French Piano & Organ Co. v. Garza, 53 Tex. Civ. App. 346, 116 S. W. 150; Fetzer v. Haralson (Tex. Civ. App.) 147 S. W. 290; West v. Cutting, 19 Vt. 536; Eagle Glass & Mfg. Co. v. Second Hand Pipe & Supply Co., 74 W. Va. 228, 81 S. E. 976.

68 Civ. Code Cal., § 1786; Rev. Civ. Code Mont., 1907, § 5121; Harron, Rickard & McCone v. Sisk, 19 Cal. App. 628, 127 Pac. 355. 69 Milliken v. Skillings, 89 Me. 180, 36 Atl. 77; Dorr v. Fisher, 1 Cush. (Mass.) 271.

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70

on account of defects which render the article substantially worthless. And further, the right of rescission for breach of warranty can be exercised only in cases where the seller can be restored to his original situation." On the other hand, if rescission for breach of warranty is denied, the rule must be restricted to cases where specific and definitely ascertained personal property is sold and delivered; 72 it does not apply to sales of property not identified or separated out, but sold generally with a guaranty that what is delivered shall conform to a certain standard.

§ 186. Same; Seller's Fraud or Knowledge of Unsoundness. If a vendor warrants the article to be of a certain grade or quality, or to be sound or free from defects, when in fact he knows that it is not so, his false representations constitute such a fraud as will justify the purchaser in rescinding the contract, and returning the article, irrespective of the breach of the warranty.78 Thus, where defendant sold plaintiff horses and other personal property, falsely and fraudulently representing the horses to be sound, on which representations the plaintiff relied, and afterwards defendant delivered the horses and some personal property corresponding to that sold, but of less value, it was held that the contract was effectually rescinded when, the next day, on discovering the fraud, plaintiff notified the defendant that he would not accept the property and requested him to take it away."

§ 187. Same; Agreement for Return if Defective.-If the contract of sale contains an express or implied agreement that the article sold with warranty may be returned to the seller if found defective or not to correspond with

70 Skinner v. Mulligan, 56 Ill. App. 47; Isaacs v. Wanamaker, 71 Misc. Rep. 55, 127 N. Y. Supp. 346; Rivers v. Gruget, 2 Nott & McC. (S. C.) 265.

71 Milliken v. Skillings, 89 Me. 180, 36 Atl. 77.

72 Trumbull v. O'Hara, 71 Conn. 172, 41 Atl. 546.

73 Clark v. Wooster, 79 Conn. 126, 61 Atl. 10; Muller v. Eno, 14 N. Y. 597; Kiernan v. Rocheleau, 19 N. Y. Super. Ct. 148; Voorhees v. Earl, 2 Hill (N. Y.) 288, 38 Am. Dec. 588; Kase v. John, 10 Watts (Pa.) 107, 36 Am. Dec. 148; Allen v. Anderson, 3 Humph. (Tenn.) 581, 39 Am. Dec. 197.

74 Spaulding v. Hanscom, 67 N. H. 401, 32 Atl. 154.

75

the warranty, in that case the purchaser is not confined to an action upon the warranty, but may rescind the contract on discovering the defective or inferior character of the article. Thus, where defendant sold plaintiff a stallion, with a warranty of its soundness and of good capacity as a foal-getter, and it was agreed that if the warranties were untrue the horse might be returned and another delivered in its place, it was held that, on refusal of the seller to deliver another stallion as agreed, the purchaser was not confined to an action for damages, but might rescind." And it is said that there is no legal distinction between the sale of a horse with warranty, and an exchange of horses with the same warranty; and if the right of returning the horse is superadded, the right to rescind the contract is unquestionable." But where such an agreement for return exists, if the purchaser returns the property, declaring it to be inferior or unsound, when such is not the case, there is no rescission of the sale, and the purchaser remains liable.78 In any case, it is not sufficient for him to tender a return of the article and declare that he does so because of its defective or inferior quality, but, if this is not assented to by the seller, the purchaser must be prepared to prove that the article does not correspond with the terms of the warranty.79

§ 188. Same; Warranty Against Future Defect or Failure. It has been shown in an earlier section that representations by the seller of an article as to its future utility, capacity, efficiency, or durability, are generally regarded as merely promissory representations, and as statements of opinion rather than assertions of fact, and therefore the failure of the article to redeem the promises made for it will not give ground for rescission of the sale.80 But it is oth

75 Latham v. Hartford, 27 Kan. 249; Ohio Thresher & Engine Co. v. Hensel, 9 Ind. App. 328, 36 N. E. 716; Nave v. Powell, 52 Ind. App. 496, 96 N. E. 395; Texas Machinery & Supply Co. v. Ayers Ice Cream Co. (Tex. Civ. App.) 150 S. W. 750.

76 Berkey v. Lefebure & Sons, 125 Iowa, 76, 99 N. W. 710.

77 Miller v. Grove, 18 Md. 242.

78 Swann v. West, 41 Miss. 104.

79 Edgerly v. Gardner, 9 Neb. 130, 1 N. W. 1004.

80 Supra, § 86.

erwise where the seller gives a written warranty of future performance. By so doing, he backs his opinion by an agreement to assume responsibility for its correctness, and converts his promises into conditions. Thus where, on the sale of an automatic piano, the seller represented and warranted that the piano, properly used and handled, would give the buyer no trouble, and would require no repairs for five years, and the buyer relied on the truth of these representations, and they were the consideration for the sale, but they were untrue and incorrect in that, although the piano was carefully used, it began to get out of order and failed to operate, though properly connected with a sufficient electric current, immediately after the sale, and continued from time to time since the sale to fail to operate, and the buyer could not discover the exact nature of the defect, it was held that these facts stated a good cause of action for the rescission of the sale.81 It is also a rule that if one offers to sell an article of a certain kind and description, with a warranty as to its future efficiency or durability, but delivers to a purchaser an article of a different kind or description, the purchaser is not obliged to accept the delivery and rely on his remedy on the warranty, but may refuse to accept the property offered and rescind the contract of sale.82 And further, if a machine is offered to the public generally, by means of printed circulars, stating that a written warranty of its durability will be given, and the offer is accepted by an intending purchaser, the seller cannot thereafter restrict his proposed warranty by further conditions or limitations, and if he insists upon so doing, the purchaser may refuse to accept the property, and an action for the price cannot be maintained.83

§ 189. Sale by Producer or Manufacturer of Article.Where an order for a particular article is sent directly to

81 Jesse French Piano & Organ Co. v. Garza, 53 Tex. Civ. App. 346, 116 S. W. 150.

82 Huson Ice & Machine Works v. Bland, 167 Ala. 391, 52 South. 445; Puritan Mfg. Co. v. Renaker, 32 Ky. Law Rep. 593, 106 S. W. 813.

83 Becker v. Calderwood, 102 Iowa, 529, 69 N. W. 536, 71 N. W.