CHAPTER III. FOR FAILURE OF CONSID- IL As Ground of Action by the

Transcription

1 CHAPTER III. OF AVOIDANCE OF THE CONTRACT ERATION. FOR FAILURE OF CONSID- g 828, 829. Of the nture of the objection in generl. L As A Defense to the Buyer In wht cses pplicble s defense to buyer How in cse goods not delivered t ll, or in prt only, or were not such s buyer bound to ccept. 832, 833. How when rticle received of no vlue Cvet emptor. 83 How on sle of invlid ptent How in sles of commercil instruments How on sle of goods to which the seller hd no tle How in cse goods condionlly sold re retken by seller, IL As Ground of Action by the Btjyer Buyer my hve ction to recover price pid whout considertion Of the nture of th ohjeetion in generl. The objection of filure of considertion seems to hve n estblhed plce in our lw, but precely wht ment by or wht s lims nd effects my be, seem nowhere to be ccurtely defined. It often confused wh the defense of mtke. It often pplied where filure of performnce of some condion precedent the true reson. It often interposed where brech of n express or, especilly, n implied wrrnty the rel defense. It my lso be interposed where frud or illegly would be more pproprite defense. Thus, for exmple, person who hs pprently mde contrct for the purchse of n rticle my, when clled upon for performnce, show tht h pprent prome ws not rel prome, becuse the prties were mtken s to the subject-mtter, the person, nd the like. In such cses sometimes sid tht the considertion for h prome hs filed, but the true ground tht there ws no rel prome or consent. " 691,

2 ] LAW OF SALE. [book III. g So, where the prome of one prty ws not to be performed until the other hd done some ct which he hs filed to do, frequently sid tht the considertion for the first prty's prome hs filed ; but lso true nd probbly more ccurte to sy tht the contrct hs been dchrged by brech. Agin, where the purchser hs been given n rticle of no vlue where the seller hs expressly or impliedly wrrnted tht the thing should be of vlue, or where the purchser hs been given n rticle to Avhich ppers tht the seller hd no tle s he expressly or impliedly wrrnted tht he hd, often sid tht the purchser relieved from h obligtion to py by the filure of considenltion; but my lso be sid in eher cse tht h defense would be brech of wrrnty. And finlly, where there hs been such frud s will justy rescsion of the contrct, not infrequently sid tht the prty who hs been defruded my be relieved becuse there hs been filure of the considertion for h prome. I. As A Defense to the Buyer In wht cses pplicble s defense. Eeserving for other plces the considertion of the questions of mtke^ frud, illegly, wrrnty nd performnce, my be sked whether there re ny cses in which, in the bsence of mtke, frud, illegly, brech of wrrnty or filure of performnce, the buyer my be relieved from h obligtion becuse of filure of considertion How in cse goods not delivered t ll^ or in prt only, or not such s buyer bound to ccept. Where the goods contrcted for re never delivered t ll,^ or, though delivery were tendered, were not of such kind, quly or condion, or in such qunty, t such plce or time, tht the buyer ws bound to receive them, nd he rejected them,- or, delivered, 1 See, for exmple, Nsh v. Towne - See, for exmple. Pope v. All (1866), 72 U. S. (5 Wll.) 689. (1885), 115 U. S

3 CH. III.] AVOIDANCE FOE FAILURE OF CONSIDERATION. [ were returned by virtue of n express or implied right to do so,^ there would clerly be such n entire filure of considertion s would defet recovery Dy the seller. These mtters, s will be seen/ stnd s condions precedent to the buyer's libily. And the sme result would ensue the seller filed, in such respects, in prt only where the contrct ws entire'' OY pro tnto where ws severble.* 832. How when rticle of no vlue Cvet emptor. Such defense, however, cnnot be interposed merely becuse the rticle sold proves to be of no vlue; for well settled tht, in the bsence of frud or wrrnty, eher express or implied, purchser of n rticle open to inspection cnnot be relieved from h prome to py becuse subsequently dcovered tht the rticle for which he hs greed to py of no vlue. In such cses the doctrine of cvet emptor pplies. If he gets the rticle greed upon, he must py for, though proves to be vlueless.^ There my, of course,be express wrrnties given, nd, s will be seen,* the lw in certin cses will imply wrrnty, s where goods, not open to inspection, re sold by description or smple, or where mnufcturer or deler undertkes to supply goods of certin kind or for certin purpose; but none of these cses the one now under considertion. "No principle of the common lw," sid Mr. Justice Dv of the supreme court of the Uned Sttes,'^ " hs been better estblhed 226. or more often flbrmed, both in th country nd 1 See nte, %% treted by the buyer s severbl 2Seepos<, 1206 et seq. Avery v. Wilson (1880), 81 N. Y. 31, 3 See Norr v. Hrr (1860), 15 Cl. 37 Am. E ^Brynt v. Pember (1873), 5 Vt. See Young Mfg. Co. V. Wkefield 87; Brnrd v. Kellogg (1870), 10 (1876), 121 Mss. 91; Whedon v. Olds Wll. (II. S.) 383; Kircher v. Conrd (1838), 20 Wend. (N. Y.) 17: Hill v. (1890). 9 Mont 191, 18 Am. St. R 731, Rewee (185), 11 Mete. (Mss.) 268; 23 Pc. R. 7, nd mny other cses Morgn t. McKee (187), 77 P. St. ced in notes to 1311, po.s-^. 228; Richrds v. Shw (1878), ^See post, i 1320 et seq Or, though originlly entire, "^In Brnrd v. Kellogg, supr. 693

4 83.] LAW OF SALE. [book III. in Englnd, thn tht in sles of personl property, in the bsence of express wrrnty, where the buyer hs n op])ortuny to inspect the commody, nd the seller guilty of no frud, nd neher the mnufcturer nor grower of the rticle he sells, the mxim of emet emjptor pplies. Such rule, requiring the purchser to tke cre ^of h own interest, hs been found best dpted to the wnts of trde in the business trnsctions of le. And there no hrdship in becuse, the purchser dtrusts h judgment, he cn require of the seller wrrnty.", 83, How in sles of ptents. Th question hs ren frequently in ctions brought to recover upon notes or other obligtions given upon the sle or ssignment of ptents for inventions which hve subsequently proven to be of ltle or no vlue. In such cses well settled tht the ptent prove to be void, eher becuse the lleged invention ws not new or ws not useful or becuse of defects in the sue of the ptent, the note or other prome to py whout considertion, nd the money, pid, cn be recovered,^ or, not pid, no ction cn be mintined, even though the seller cted in good fh nd both prties supposed the ptent to be vlid.^ Sndge V. Studbker Bros. Mfg. th sense, ptentble, nd the Co. (1895), 12 Ind. 18, 1 N. E. R. 380, degree of s utily or prcticl vlue 51 Am. St. R does not ffect the vlidy of the In Nsh V. Lull (1869), 102 Mss. 60, ptent; not useful, ptent Am. R. 35, Gry, J., sid: "Letters for void. Lowell v. Lew, ptent of the Uned Sttes cn be Mson, 185, 186; Bedford v. Hunt, id. lwfully gi-nted only for new nd 303, 30; Kness v. Schuylkill Bnk, useful inventions; nd re butprwirt Wsh. C. C. 12; Lngdon v. De fcie evidence of the novelty nd Groot, Pine, 203; Roberts v. Wrd, utily of the invention described. McLen, 565. In su brought on U. S. Stt. 1837, ch. 5; Corning v. promsory note, the only consider- Burden, 15 How. (U. S.)270, 271. All tion for which the ssignment tht required to mke n inven- of n interest in or right under tion useful, under the ptent lws, ptent, the question of considertion tht should be cpble of being depends upon the vlidy of the pplied to some prcticl nd bene- ptent; the ptent void, the note ficil purpose, nd not to be frivolous of course whout considertion; or injurious to the well being or but vlid, the court will not morls of society. If useful in inquire into the dequcy of the con

5 CH. III.] AVOIDANCE FOR FAILUEE OF CONSIDERATION. [ 835. But the ptent vlid there my be recovery notwhstnding the invention proves to be of ltle vlue, for the court will not inquire into the dequcy of the considertion.^ Th rule bsed, not upon the ground of implied wrrnty of vlidy for held tht no such wrrnty implied, but upon the ground of filure of the considertion.' 835. How in sles of commercil instruments. The sme kind of question sometimes red in ctions upon promes to py for notes, bonds, scrip nd other commercil pper which hs proven not to be genuine. There here filure of considertion which will constute defense;^ but the lw sidertion. The sue in such cse (Tenn.) 18; Myers v. Turner (1855),, therefore, the sme s in su in the courts of the Uned Sttes for the infringement of ptent, the vlidy of which denied by the defendnt; nd so hs been repetedly djudged in th nd other courts. Bls v. Negus, 8 Mss. 6; Dickinson v. Hll, 1 Pick. 217, 25 Am. Dec. 390; Bierce v. Stocking, 11 Gry, 17; Lester v. Plmer, Allen, 15; Dunbr v. Mrden, 13 N. H. 311 ; Cross V. Huntly, 13 Wend. (N. Y.)385; Geiger v. Cook, 3 W. & S. (P.) 266; McClure v. Jeffrey, 8 Ind. 79; Myers V. Turner, ; Jollfe v. Collins, 21 Mo. 338." Clough v. Ptrick, 37 Vt. 21, ws dtinguhed', nd Elmer v. Pennel, 0 Me. 30, ws denied. To the like effect, tht prome to py for void ptent whout considertion, see Hrlow V. Putnm (1878), 12 Mss. 553; Jckson V. xvuen, 120 Mss. 6; Shepherd V. Jenkins (1881), 73 Mo. 510; Cown V. Dodd (1866), 3 Coldw. (Tenn.) 278; Bells V. Hys (1819), 5 S. & R. (P.) 27, 9 Am. Dec. 385; Keh v. Hobbs (1878), 69 Mo. 8; Rowe v. Blneiird (186), 18 W. 1; Ntionl Bnk v. Peck (1871), 8 Kn See lso Mc- Kee v. Eton (1881), 26 Kn Green v. Sturt (187), 7 Bxt , nd other cses supr. An Englh ptent, regulr in form nd in extence s document,. by force of the Englh decions (see Hll v. Conder, 2 C. B. (N. S.)22, 53; Notoii V. Brooks, 7 Hurl. & N. 99; Trotmn v. Wood, 16 C. B. (N. S.) 79; Adie v. Clrk, L. R. 3 Ch. Div. 13; Lwes v. Purser. 6 El. & Bl. 930; Smh V. Nele, 2 C. B. (N. S.) 67; Bowmn V. Tylor, 3 Ad. & El. 278: Hills V. Lming, 9 Exch. 256; Wiles v. Woodwrd, 5 id. 557; Cutler v. Bower, 1 1 Ad. & El. (N. S.) 973), sufficient considertion to support promsory note mde in Msschusetts, even though the ptent in fct invlid for wnt of novelty, nd notwhstnding the fct tht under the Msschusetts decions note given for n invlid Uned Sttes ptent whout considertion. Chemicl Electric Co. v. Howrd (1889), Mss. 352, 3 L. R. A. 168, 20 N. E. R. 93. ^Hitt v. Twomey (1836), 1 Dev, & Bt. (N. C.) Eq. 315; 3 Robinson on Ptents, , where th subject more fully dcussed. 3 Wood V. Slieldon (1880), 2 N. J. L. 21, 36 Am. R. 523; Thrll v. Newell (187), 19 Vt. 203, 7 Am. Dec. 683; Aldrich v. Jckson (1858), 5 R. L 218.

6 ] LAW or sle. [book hi. lso implies wrrnty in such cses, nd the subject reserved for fuller considertion when the subject of implied wrrnties reched.^ 836. How on sle of goods to which seller hd no tle. A similr question res lso where the purchser hs been divested of the goods by tle superior to tht of h vendor, or where the goods hve been tken from him s the goods of the vendor upon some clim or process to which the ttempted sle must hve been subject. Here lso n unquestionble filure of considertion, which will defet recovery,- There lso, usully, s will be seen, n implied wrrnty of tle, nd the whole question will be considered lter.^ 837. How in ese goods sold condionlly re retlten hy the seller. The defense of filure of considertion hs likewe been interposed in ctions brought upon promes to py for goods which hve been delivered upon contrct of purchse or condionl sle, nd which hve been subsequently retken by the vendor. In such cses hs been held by some courts tht, upon such retking, the prome to py for the goods fils, nd tht therefore no recovery cn be hd.* The true defese, however, undoubtedly tht considered in n erlier ction, nmely, tht the retking must hve been rescsion of the contrct which releses both prties.^ II. As Geound of Action by Buyer. 83. Bnyer my hve ction to recover price pid whont considertion. The objection of wnt or filure of con- Compre Chrty v. Sullivn (1875), ^gge post, Cl. 337, 19 Am. R * Minnepol Hrvester Works" v. isee post, Hlly (1881). 27 Minn. 95, 8 N. W. R. 2Mtheny v. Mson (1881), 73 Mo. 597 (but see, s to tli, Aultmn v. 677, 39 Am. R. 51; Biley v. Foster Olson, 3 Minn. 09, 5 N. W. R. 852); (1829), 9 Pick. (I\[ss.) 139; Dyer v. Howe Mchine Co. v. Willie (1877), Homer (1839), 22 Pick. (Mss.) 253; See lso?tie, g 620, where Hunt V. Sckett (1875), 31 Mich. 18; the cses re more fully collected. Costign v. Hwkins (1867), 22 W. ^See nte, ; Mrshll v. Duke (1875), 51 Ind

7 CH. III.] AYOIDAXCE FOK FAILURE OF COXSIDERATION. [ 839. sidertion my lso to nticipte somewht mtters more fully considered in lter chpter furnh the foundtion for n ction by the buyer to recover the price pid. Thus, for exmple, the buyer hs pid the price, but the tle hs filed nd he hs been divested by the true owner ;^ or he hs pid for ptent which proves to be invlid ^ ; or he hs pid for commercil instruments, such s notes, bonds, scrip, nd the like, which prove not to be genuine,' in these nd the like cses he my recover h money s pid whout considertion So, the buyer hs pid the price in dvnce, but hs never received the goods t ll ; * or hs rejected them wdiolly, s he hd the right to do becuse they were not such s the contrct contemplted;* or they were not s greed, but entirely worthless;^ or the greed rticle hs not been delivered, but nother substuted for nd the ltter hs been returned,^ in these nd similr cses there totl filure of considertion, nd the buyer my recover h money. He my likewe do so jpro tnto where he hs pid for more thn he hs received.^ leichoitz V. Bnnter (186), 17 Com. B. (N. S.) 708; Ledwich v. Mc- Kim (1873), 53 N. Y. 307; Wilkinson V. Ferree (1855), 2 P. St Drst V. Brock wy (182), 11 Ohio, Frnk v. Lnier (1883), 91 N. Y. 112; Wood V. Sheldon (1880), 2 N. J. L. 21, 36 Am. R 523; Thompson v. McCullough (1860), 31 Mo. 22, 77 Am. 3 Dec. 6; Gurney v. Womersley (185), EI. & Bl. 133, 82 Eng. Com. L. 132; Pul V. Kenosh (1867), 22 W. 256, 9 Am. Dec. 598; Terry v. Bsell (1857). 26 Conn. 23. Nsh V. Towne (1866), 72 U. Wll.) 689; Dlton v. Bentley (185), ; Clevelnd v. Sterrett (1871), 70 P. St. 20. (5 Pope V. All (1885), 115 U. Heder v. Cornell (1895), 58 N , 33 Atl. R S. S. 363; L. J. 697 ^, Petersen v. Door, Ssh & Lumber Co. (1883), 51 Mich. 86, 16 N. W. R. 23; Ripley v. Cse (1889), 78 Mich. 126, 3 N. W. R. 1097, 18 Am. St. R. 28. The considertion fils entirely where the seller of trees grees to set them out nd cre for them, but neglects to do so. whereby they become totlly worthless. Perkins v. Brown (1897), 115 Mich. 1, 72 N. W. R " Howe Mchine Co. v. Willie (1877), Devux v. Conolly (189), 8 8 C. B. 60, 65 Eng. Com. L. 639; Whedon v. Olds (1838), 20 Wend. (N. Y.) 17; Hill V. Rewee (186), 11 Mete. (Mss.) 268; Devine v. Edwrds (1877), ; (1881)