If the article to be made is something which can be sold to someone else, the contract is one of sale and must satisfy the requirements of the Statute of Frauds. The foregoing is a statement of the law where the Uniform Sales Act applies. There have been two other views of the case: one of them, the English rule that if any article was to be made as a result of work and services, the contract was one of sale; the other, the former New York rule, that if there was any work to be performed on the article, the contract was not a sale but for work and services, and the Statute of Frauds did not apply to it. Either of these two rules may still apply in a state which has not adopted the Uniform Sales Act. Note: I. Have a written contract in all cases where the price is more than you can afford to lose. REVIEW QUESTIONS 1. Distinguish between a "sale" and "contract to sell." 2. Has the Uniform Sales Act been adopted in your state? 3. 4. In your state what is the amount over which contracts must be 5. When should the memorandum required by the Statute of Frauds be made and what should be its form? 6. What exceptions are there to the rule in the Statute of Frauds as to the written memorandum? 7. What is the rule in your state as to contracts for work and services? 8. What are "goods, wares and merchandise" within the meaning of the Statute of Frauds? CHAPTER XVIII WARRANTIES1 § 108. Introductory is: The definition of a warranty in the Standard Dictionary An assurance or undertaking by the seller of property, express or implied, that the property is or shall be as it is represented or promised to be, as to quantity, quality, or title. If a farmer goes into an agricultural warehouse and asks to look at mowing machines, and after having inspected the stock and obtained prices to his satisfaction, says he will take the one which he has selected, he has assumed the responsibility for its fitness himself and has no recourse as to the seller for damages afterward if it should prove unsatisfactory. The court would apply the maxim caveat emptor, the ancient and harsh doctrine of the common law, signifying, "let the buyer beware." The common law took a sporting view of the dealings between buyer and seller, and did not wish to discourage skill in barter by stressing too much any ethical considerations. At the present day, however, both law and trade morality have advanced a long way beyond this primitive conception of the rights of buyer and seller. Nearly all trade transactions are now based on certain contract conditions, expressed or implied, by which the risk to the buyer is largely eliminated. A change of property for a consideration rarely takes place 1 For form of warranty contract, see Chapter CI, Form 25. without some conditions or warranties as to quality, utility, or other characteristics of the commodity sold. Note: I. The buyer should take care that he has a warranty that what he purchases will serve his purpose. § 109. Conditions Precedent An agreement that an article must be up to a certain standard is known as a condition precedent. A condition precedent is a specification of the kind of article that is wanted with which the article must comply before there can be any sale at all. If it is agreed that the article to be sold is to conform to a certain standard, there is no sale until an article is produced according to that standard. For instance, if the seller agreed to furnish a steam pump that would raise 100 gallons a minute to a height of 50 feet, he must furnish a pump that will do exactly this before the buyer is obliged to take it. Another example of a condition precedent occurs in a provision that work to be done or goods to be delivered must be satisfactory to or approved by some third party, as when a church organ is installed, to be approved by some musical expert. All executory contracts are, in fact, contracts with performance as a condition precedent to payment. Note: 1. Where there has been an agreement that the article to be sold shall be of a certain kind and quality, the buyer is not obliged to take any article that is not of that kind and quality. § 110. Conditions Subsequent A condition subsequent is a condition that may defeat the sale after its completion, and give the buyer the right to return it and recover the price if he had paid for it. The technical distinction between a condition subsequent and a warranty has been wiped out by the Uniform Sales Act. Formerly, a breach of warranty entitled the injured party only to damages, while a breach of condition gave him his choice of suing for damages or returning the goods. By the Uniform Sales Act the buyer who suffers a breach of warranty now has the same choice of remedies that the buyer who suffers a breach of condition has always had. Wherever this act is in force the buyer, whether under warranty or under condition, has his choice of suing or of returning the goods. SIII. Express Warranties An express warranty is a statement made by the seller about the quality, durability, working ability, etc., of the article sold in order to induce the buyer to purchase. The purchaser must have bought the goods in reliance on that statement. If he relies on his own judgment and selects the goods himself, there is no warranty even though the seller makes a statement of fact. Any statement of fact or any promise by the seller in regard to the quantity, quality, or title of a commodity is an express warranty, if the natural effect of such a statement is to induce the buyer to purchase the goods, and if the buyer does purchase the goods relying on such statements. If there is a warranty, and upon using the goods it turns out to be untrue, under the Uniform Sales Act the buyer may return the goods, or he may sue the seller and recover damages in the amount of the difference between what the article is actually worth to him and what it would have been worth had the warranty been true. (See § 114.) If a merchant tells you that his goods are the best on the market, this is not an express warranty, as it amounts merely to his opinion of them, and is what is called "merchant's puffing." If, on the other hand, he makes an express statement that these goods will wear better than certain similar .goods manufactured by another firm, you may rely on his statement as an express warranty. It is always well to get a warranty in the most definite terms possible, for if a merchant is really willing to warrant his goods he will not be afraid to say so in plain language if the buyer insists upon it. If the merchant is not willing to make a definite warranty, it is better for the buyer to know it beforehand and to realize that he is relying on his own judgment and can claim nothing from the merchant-in case the goods prove unsatisfactory. A written warranty prevents forgetfulness on the part of the seller. Notes: I. In all purchases, make sure that all terms are plainly written out, in positive language. 2. In all prospectuses, analyze the statements and note the positive assertions as to material matters. § 112. Implied Warranties In every sale today there are certain implied warranties which the law compels the seller to make good. In regard to his right to sell the property, he warrants by the mere act of selling goods: I. That he has a right to sell the goods, or, if it be a |