maxim is caveat emptor, let the buyer take the risk, for he is put upon inquiry. (a) As to quality, there is no implied warranty in any case where there has been an opportunity for inspection. In sales by sample, the only implied warranty is, that the bulk shall correspond to the sample; (b) and in sales by description, that the articles shall be of the kind described, and not a different article. With regard to the deception which will render the seller liable, it may be either an intentional concealment of the truth, or an intentional statement of falsehood. It is difficult to lay down any precise rule upon this subject. The law does not expect minds to be equal, or knowledge to be equal; but it expects men.to be honest; and this requires, first, that nothing shall be misrepresented; and secondly, that any peculiar or extraordinary information, which one of the parties has, and knows that the other has not, should be made known. As to the ordinary skill or information belonging to the subject-matter, the law expects each man to possess it, and will not relieve him against the want of it, (c) unless it amount to a case of idiocy, lunacy, or drunk

(a) Coolidge v. Brigham, 1 Met. 551; Dresser v. Ainsworth, 9 Barb. 619; Edick v. Crim, 10 id. 445; M'Coy v. Artcher, 3 id. 323; Darst v. Brockway, 11 Ohio, 462; Shattuck v. Green, 104 Mass. 42. Where the vendor is not in possession at the time of the sale, and had no title then, a good title to the goods subsequently acquired by him would not inure to the benefit of the grantor. Scranton v. Clark, 39 N. Y. 222. The rule of caveat emptor applies to purchasers at judicial sales. Creps v. Baird, 3 Ohio State, 277.

(b) Where the article is in packages in a sale by sample, the general rule is, that each package shall correspond to the sample; but where the goods consist of different varieties of the same articles, and the sample is usually formed by mixing proportionate parts of each package together, there is no breach, though some of the packages are inferior to the sample, if it fairly represents the whole. Leonard. Fowler, 44 N. Y. 289. And though the offer is made by sample, if opportunity for inspection is given, and the vendee inspects some, and is offered an opportunity to inspect the others, but declines, there is no warranty, though the goods were deceitfully packed, if the vendor was ignorant of it, and acted in good faith. Barnard v. Kellogg, 10 Wall. 384.

(c) 2 Kent, Com. 478-92; 1 Parsons on Contracts, 456-76. No warranty is implied from the payment of a fair price. Mixer v. Coburn, 11 Met. 559; Moses v. Mead, 1 Denio, 378. In executed contracts of sale of personal property, where there is an opportunity of inspection, and the defects are not latent, the rule of the common law is caveat emptor, and there is no implied warranty as to the quality of the article sold. The rule of caveat emptor does not apply, however, in cases where the vendor has acted fraudulently. Hadley v. Clinton Co. Imp. Co. 13 Ohio State, 502; Hoe v. Sanborn, 21 N. Y. 552; Weimer v. Clement, 37 Penn. State, 147; Deming v. Foster, 24 N. H. 165; Mason v. Chappel, 15 Grattan, 572; Emmerton v. Matthews, 7 Hurl. & Nor. 586. Contra, in Arkansas. Boyd v. Whitfield, 19 Ark. 447. But where articles are ordered to be made for a particular purpose, there is an implied stipulation that they shall be free from all such defects of material and workmanship as will render them unfit for that purpose. Rodgers v. Niles, 11 Ohio State, 48; Cunningham v. Hall, Sprague, 404; Overton v. Phelan, 2 Head, 445; Hamilton v. Gangyard, 34 Barb. 204; Brown v. Murphee, 31 Miss. 91. Lespard v. Van Kirk, 27 Wis. 142; Field v. Kinnear, 4 Kans. 476. Nor will taking from the manufacturer an express warranty in certain respects be a waiver of the implied warranty as to other qualities. Boothby v. Scales, 27 Wis. 626. Where manufactured articles are sold by the maker, there is an implied warranty against latent defects. Hoe v. Sanborn, supra. But not where they are sold by a person not the maker, who is ignorant of such defects. Dickenson v. Gay, 7 Allen, 29. In the case of the sale of articles to be used for food, there is an implied warranty that they are not unwholesome. Hoover v. Peters, 18 Mich. 51; Divine v. McCormick, 50 Barb. 116. In Kentucky, it

enness.

Markets overt, as they exist in England, are not known in this country; (a) and we have adopted the broad, though sometimes unjust, principle, that no person can transfer a greater right or better title to any chattel than he himself possesses. If therefore a thief, or even the bailee of a chattel, sell it to a person who does not know that he is not the owner, and it pass through ever so many hands of innocent purchasers without notice, still the original owner may reclaim it wheresoever he can find it. (b)

Other Matters. (c) When the bargain has been struck, and the sale is complete, the goods are entirely at the risk of the buyer. And the sale is complete, when the seller has done all he has to do with respect to the goods. (d) A delivery to the carrier, or to the agent of the buyer, is a delivery to the buyer himself. As to the time of delivery and payment, the rule is, that when no time is agreed upon, they are concurrent acts to be performed forthwith. Either may tender performance, and then demand performance of the other; and on the other hand, either may refuse to perform, unless the other will. But if goods have been actually delfvered and received in good faith, before payment, the buyer has acquired a title to the goods, and the seller can only recover the price agreed upon; or if no price was agreed upon, then a reasonable price. To this rule, however,

is held that where an article is sold for a particular purpose, there is an implied warranty that it is fit for that purpose. Miller v. Gaither, 3 Bush (Ky.), 152.

(a) Roland v. Gundy, 5 Ohio, 202; Hoffman v. Carow, 22 Wendell, 285; Fawcett v. Osborn, 32 Ill. 411.

(b) A sale of goods conditional upon the payment of the price, passes no title to the vendee until the price is paid, even in favor of a bonâ fide purchaser from the vendee to whom they had been delivered. Coggill v. H. & N. H. R. R. Co. 3 Gray, 545; Sargent v. Metcalf, 5 id. 306; Blanchard v. Child, 7 id. 155; Burbank v. Crooker, 7 id. 158; Sanders v. Keber & Miller, 28 Ohio State, 630. See Sawyer v. Fisher, 32 Maine, 28; Dudley v. Osborn, 41 N. H. 326; Ballard v. Burgett, 40 N. Y. 314; Putnam v. Lamphear, 36 Cal. 151. But see Wait v. Green, 36 N. Y. 556; Murch v. Wright, 46 Ill. 48. Where one agrees to buy, and the other to sell, an article for a certain price, without any other stipulations, it is a sale for cash; the delivery of the goods in the expectation of immediate payment is not an absolute delivery, and vests no title in the purchaser until the payment of the price. Wabash Elevator Co. v. First National Bank of Toledo, 23 Ohio St. 311. But where the possession is delivered under fraudulent representations, though the sale may be rescinded, the title passes to the vendee so far that he may give a good title to a bona fide purchaser. Padden v. Taylor, 44 N. Y. 371. But an attaching creditor of the fraudulent vendee stands in no better position than his debtor. Field v. Stearns, 42 Vt. 106.

(c) Macomber v. Parker, 13 Pick. 183; Tarling v. Baxter, 6 B. & C. 360; Farnum v. Perry, 4 Law Reporter, 276; Riddle v. Varnum, 20 Pick. 280.

(d) Where a quantity of corn is sold to be delivered in lots at a future time and place, and to be paid for as delivered, at a specified rate per bushel, the contract is executory, and no title passes until delivery. Ormsby v. Machis, 20 Ohio St. 295. Where the article is to be manufactured, the title does not pass until it is complete, and in some way delivered to or accepted by the vendor. West Jersey R. R. Co. v. Trenton R. R. Co. 3 Vroom (N. J.), 517. Where the goods are in bulk, a separation is necessary. Randolph v. Elliott, 34 N. J. L. 184. Though the contract is entire when the vendor has performed every thing that he is to do as to a portion, the title to that portion passes, though the vendor has still something more to do as to the rest. Thompson v. Conover, 3 Vroom (N. J.), 466. Where the contract is that the title shall not pass until the whole purchase money is paid, the payment of a part does not give the vendee any interest which can be levied on. Sage v. Sleutz, 23 Ohio St. 1.

This

the right of stoppage in transitu, forms a partial exception. is an equitable right, which the law gives to the vendor, when the vendee becomes insolvent, and the goods were sold on credit, to resume possession of the goods anywhere on their transit to the vendee, and before they come into his actual possession. There is much nice learning connected with this right, for which I have not room. The right is confined strictly to vendor and vendee, and the chief question is, when the transit begins and terminates. This being settled, the rule is clear, that while the goods are in transit, the vendor may stop them for his own security, as against the insolvent vendee. But if the vendee is actually in possession of the goods; or if before reaching him, he has honestly sold them to a third person, the vendor cannot seize them. He must then take his chance with the rest of the creditors. (a) When the sale has been perfected, and the buyer refuses to accept the article, the vendor may sell it at auction, and recover the difference. (b) When no place of delivery is specified in the contract, the law implies that it is the place where the article is at the time of sale. (c)

§ 182. Contract of Bailment. (d) The most approved defini

(a) 1 Parsons on Contracts, 476-91; 2 Kent, Com. 540-52; O'Neil v. Garrett, 6 Clarke (Iowa), 480; Rogers v. Thomas, 20 Conn. 54; Newhall v. Vargas, 15 Maine, 314; 13 id. 93; Sawyer v. Joslin, 20 Vt. 172; Mottram v. Heyer, 5 Denio, 628; s. c. 1 id. 483; Chandler v. Fulton, 10 Texas, 2; Benedict v. Schaettle, 12 Ohio State, 515; Lee v. Kimball, 45 Maine, 172; Pottinger v. Hecksher, 2 Grant's Cases, 309; Blackman v. Pierce, 23 Cal. 508; Reynolds v. Boston, &c. R. R. Co., 43 N. H. 580; Caheen v. Campbell, 30 Penn. State, 254; Gilford v. Smith, 30 Vt. 49; Markwald v. Creditors, 7 Cal. 213. Seizure by the creditors of the vendee before delivery to him does not terminate the right; nor is the commencement of a suit for the price, by the vendor's agent, without his knowledge, necessarily a waiver of it. Callahan v. Babcock, 21 Ohio St. 281. Though a portion of the goods have been delivered, the right still exists as to those not delivered. Mohr v. Boston, &c. R. R. Co. 106 Mass. 67.

(b) Girard v. Taggart, 5 S. & R. 19; Sands v. Taylor, 5 Johns. 395. And in New York, it is held that the sale need not be at auction, but may be in the ordinary manner upon notice to the purchaser. Crooks v. Moore, 1 Sandf. 397; Conway v. Bush, 4 Barb. 564. The vendee cannot recover back the consideration which he has paid, where, through his own default, the contract has not been completed, although, after such default, the vendor sells the goods to another party. Ashbrook v. Hite, 9 Ohio State, 357. Where the vendee fails to comply with his contract, the vendor has the choice of three courses. 1. He may hold the property for the purchaser, and recover the entire price from him. 2. He may sell the goods as agent of the purchaser, and recover the difference between the contract price and that realized on the sale. 3. He may rescind the contract and recover the difference between the contract price and the market price at the time and place of delivery. If he elects to resell the goods, he must use reasonable care and diligence like any other agent. Dustan v. McAndrew, 44 N. Y. 72.

(c) Goodwin v. Holbrook, 4 Wendell, 380; Bronson v. Gleason, 7 Barb. 472. Actual delivery is not essential to pass the title to personal property. Hooban v. Bidwell, 16 Ohio, 509. In the absence of express stipulation, the law implies that the payment is to be made in money at the time and place of delivery. Coil v. Willis, 18 Ohio, 28.

(d) The outline of the law of bailments, originally derived from the civil law, was indicated by Lord Holt, in the celebrated case of Coggs v. Bernard, 2 Lord Raymond, 909. Afterwards Sir William Jones wrote a small treatise on the subject, which every student ought to read for the sake of its admirable style and analysis. The fortieth lecture of Kent is also an excellent summary of this branch of law. But the recent treatise by Judge Story will supersede the necessity of referring to any other source. On the subject of Carriers, see the treatise of J. K. Angell, Esq.; also, Edwards on

tion of this contract is, a delivery of goods in trust, upon a contract, express or implied, that the trust shall be duly executed and the goods restored to the owner, as soon as the purpose of the delivery shall be answered. The person making the delivery is called bailor, and the person receiving it bailee. The transaction itself, and sometimes the thing bailed, is called bailment. The term is derived from a French word, signifying to deliver. It will be obvious from the above definition, that bailments bear a strong analogy to trusts, which have been before described. In fact, courts of law have, in an eminent degree, applied to them the equitable doctrines which govern trusts. You will, however, observe that parties may make such express stipulations in regard to liability, as they please. The only question arises, when there are no express stipulations. Then the law deduces a contract from the nature of the transaction. The law of bailments, therefore, is chiefly the law of implied contracts. Bailments are divided into five sorts, namely, deposits, mandates, loans, pledges, and lettings. I shall speak briefly of each.

1. Deposit, or depositum. This is a delivery of goods to another to be safely kept until called for, without recompense. Here, if there be no special undertaking to the contrary, the trouble of safekeeping being without reward, the depositary impliedly undertakes for no more than slight diligence in keeping the deposit; and in case of loss or injury, is only liable for gross negligence. The terms diligence and negligence, being the opposites of each other, both admit of the same degrees, of which the law makes three. Thus, ordinary diligence is that which men of common prudence use with respect to their own affairs; and the absence of it is ordinary negligence. Slight diligence is that which even careless men use with respect to their own concerns; and the absence of it is extraordinary or gross negligence. Extraordinary diligence is that which very prudent men use with respect to their own concerns; and the absence of it is slight negligence. These specifications are, perhaps, as accurate as the nature of the subject admits of. A jury, looking at the circumstances of a case, will readily determine between these three degrees; and then the law will apply the rule. And the general rule is, that a depositary for safe-keeping merely, without recompense, only undertakes for slight diligence, as above defined; but the degree of diligence varies somewhat with circumstances. (a) Thus, if I deliver to you a box of jewels or precious

Bailments; 1 Parsons on Contracts, ch. xi. The bailee cannot set up title in himself to justify his refusal to return the thing bailed. Simpson v. Wrenn, 50 Ill. 222. But this rule, that the bailee cannot dispute the title of the bailor, does not apply where the bailee has been compelled to pay for the property to one having actual title, in a suit of which the bailor had notice. Cook v. Holt, 48 N. Y. 275. In case of adverse claims, the bailee may delay a reasonable time to examine into the facts. Ball v. Liney, 48 N. Y. 6.

(a) Foster v. Essex Bank, 17 Mass. 479. The distinction between "negligence" and "gross negligence," has of late been discountenanced as unintelligible. Steamboat New World v. King, 16 How. 471. The term is well defined by Alderson, B.,

metals, for safe-keeping, and you know them to be such, you will be held to greater care than if the articles had been less valuable. In other words, slight diligence in keeping gold, is more than slight diligence in keeping iron. (a) So if you become the depositary in consequence of your own voluntary or officious proposal, you are held to greater diligence than if the request had first come from the depositor; (b) but still the general rule for this kind of bailments is the equitable one above stated; that slight diligence only is required, and nothing but gross negligence makes the depositary liable.

2. Mandate, or mandatum. This is a delivery of goods to another, to have some act done with respect to them, in addition to safe-keeping, without recompense. Here, then, are two things to be considered, custody and feasance. As to custody, the mandate does not differ from a deposit, and the rule of liability is the same. But feasance is the principal thing, and here if there be no special undertaking to the contrary, the trouble of doing the thing required being without reward, the mandatary impliedly undertakes only for slight diligence, and is liable only for gross negligence. There is no liability for mere nonfeasance, or an omission to do the thing undertaken; but only for misfeasance, which is doing it improperly; or malfeasance, which is doing some other wrong. (c) But the amount of diligence varies according to the nature of the thing to be done. Thus, an undertaking to carry glass requires greater care than to carry cloth; and an undertaking to repair a watch requires greater care than to grind an axe. (d) So where the very nature of the thing to be done presupposes a certain kind of professional skill, the mandatary is responsible for possessing that skill. (e) Still the general rule is the equitable one before stated; that slight diligence only is required, and nothing but gross negligence makes the mandatary liable. (f)

3. Loan, or commodatum. This is a delivery of goods to another,

in Blyth v. Birmingham Water Works Co., 36 Eng. L. & Eq. 506, 508; Maury v. Coyle, 34 Md. 235.

(a) Tracy v. Wood, 3 Mason, 132; Dorman v. Jenkins, 2 Ad. & El. 256.

(b) Jones on Bailments, 48. In a regular deposit the specific thing deposited must be returned, and if the depositary has the option of returning another of like kind and value, the property in the thing passes to him. Chase v. Washburn, 1 Ohio State, 244. As to the liability in the case of a gratuitous deposit of money, see Spooner v. Mattoon, 40 Vt. 300.

(c) Elsee v. Gatward, 5 T. R. 143; Thorne v. Deas, 4 Johns. 84; Balfe v. West, 22 Eng. Law & Eq. 506; Lyons v. Tams, 6 Eng. (Ark.) 189; Fellowes v. Gordon, 8 B. Monr. 415; Dart v. Lowe, 5 Ind. (Porter) 131.

(d) Tracy v. Wood, 3 Mason, 182; Whitney v. Lee, 8 Met. 93; Grant v. Ludlow, 8 Ohio State, 10.

(e) Shiells v. Blackburne, 1 H. Bl. 158; Wilson v. Brett, 11 M. & W. 113; Leighton v. Sargent, 7 Foster (N. H.), 460.

(f) A distinction has been taken in some cases between the diligence required where the bailment was solicited by the bailee and where it was not, he being held to greater diligence in the former case than in the latter. Jourdan r. Reed, 1 Clarke, 135; Newhall v. Paige, 10 Gray, 366: Hills v. Daniels, 15 La. An. 280; Dougherty v. Posegate, 3 Clarke, 88. And in Mississippi, it has been held, that a bailee without compensation, if he accepts the bailment, will be bound to use ordinary diligence. Moore v. Gholson, 34 Miss. 372.