contains (as said in these cases) two warranties, upon the breach of one of which the goods must be returned, but for the breach of the other (defective material) there may be a suit for damThus, McCormick Harvesting Co. v. Fields, 90 Minn. ages. 161.) Case 365. McCormick v. Dunville, 36 Ia. 645. Facts: Sale of a machine, warranty that it will operate in a certain manner, and if it does not, seller will take it back and refund, money. Suit to recover price of the machine. Cross-claim by defendant on breach of warranty. Point Involved: Whether, in case of a warranty with right to return if the warranty is broken, the buyer may keep the article and sue for damages from breach of warranty. DAY, J.: 66* Plaintiff, through his agent, agreed to take the machine back if it did not work as warranted; but it does not seem that it was made a condition of the defendant's right of recovery for a breach of the warranty, that he should return or offer to return the machine. In this respect the warranty differs from that contained in Bomberger, Wright & Co. v. Greiner, 18 Iowa, 477, in which there was an express agreement that the machine should be returned if it failed to work as warranted. Question 365: How does this case differ from the foregoing case? Case 366. Sanford v. Brown Bros. Co., 208 N. Y. 90, 50 L. R. A. N. S. 778. Facts: Suit brought to recover damages for breach of a warranty in sale of fruit trees. The defendant is a corporation engaged in the nursery business. Plaintiff is a farmer. He had never had any experience in the growing of peaches. He decided to plant 25 acres of land in peach trees and bought the trees from defendant under a contract by which it was provided that if any of the trees did not prove to be true to name, they were to be replaced free. This took place in 1902. In 1905, “concededly as early a date as discovery could be made," 2,700 of the trees were found to be of a different variety than those ordered. Plaintiff sues for damages. Defendant contends that the plaintiff's exclusive remedy is to have the trees replaced. It is conceded that there was no fraud on the part of the seller. Point Involved: That a contract providing a remedy of the nature stated will be construed according to the evident intention of the parties as shown by all the surrounding facts and circumstances. HOGAN, J.: "It is alleged by counsel for appellant that the language used in the contract, any stock which does not prove to be true to name as labeled is to be replaced free, or purchase price refunded,' should be construed as a limited liability on the part of the defendant for any damage resulting under the contract. In support of the reasonableness of such construction stress was laid upon the absence of fraud or misrepresentation in the sale; that in view of the price, the trees, which were two years old, substantially all budded, were sold, 82 cents each, out of which defendant paid the expense of boxing, freight, and agent's commissions, no nursery would or could have sold trees at such a price and assume risk greater than that specified in the contract, especially when such dealer had no more means of knowing that the variety of peaches were as labeled than that possessed by the purchaser. "The form of contract was furnished by the defendant, and under well-established principles, any doubt as to the meaning of the terms employed must be resolved in favor of the plaintiff. The defendant was engaged in the nursery business, for how long a time does not appear, except by implication. Mr. Brown, the president of defendant, testified that he had been in the nursery business twenty-five or twenty-six years, and we may assume that the defendant corporation succeeded, in whole or in part, to his business. The plaintiff was a farmer without previous experience in the culture of peaches; he could not discover for a period of three or four years the variety of peaches, if any, the trees would bear. When he purchased the trees, he was justified in relying upon the superior knowledge of the defendant as to the quality of the trees to be selected and furnished by defendant. The defendant was chargeable with notice of the purpose for which the trees were to be used, and also had knowledge that the trees would not attain to the bearing point for a period of three or four years, during which time plaintiff would be required to devote his time, together with labor and expense, to the cultivation of the orchard. It would be unreasonable to hold, under the terms of this contract, that at the end of three weeks, should the trees prove valueless, the only obligation was to furnish a supply of new trees, or refund the purchase price. In such a case, while defendant would sustain a loss to the extent of the original cost of the trees, the loss to plaintiff in the use of land, expenses of cultivation, etc., might prove very substantial. "The judgment should be affirmed, with costs." Question 366: (1) State the facts in this case, the question presented and the Court's decision. PART IV CHAPTER 47A CONDITIONAL SALES § 391a. The Uniform Conditional Sales Act. (Note: There appears to be a great need for uniformity of legislation in respect to conditional sales. The requirements of the various acts preceding the Uniform Conditional Sales Act are far from uniform, and many questions have arisen that are not covered by statute upon which there has been diversity of opinion. The Uniform Conditional Sales Act is in force at the time of this writing in a number of states. Each of its sections is set out below as a "Case," and some comment made thereon.) § 391b. Definition of terms. Case 367. Uniform Conditional Sales Act, Sec. 1. 1. Definition of Terms. In this Act "Conditional sale" means (1) any contract for the sale of goods under which possession is delivered to the buyer and the property in the goods is to vest in the buyer at a subsequent time upon the payment of part or all of the price, or upon the performance of any other condition or the happening of any contingency; or (2) any contract for the bailment or leasing of goods by which the bailee or lessee contracts to pay as compensation a sum substantially equivalent to the value of the goods, and by which it is agreed that the bailee or lessee is bound to become, or has the option of becoming the owner of such goods upon full compliance with the terms of the contract. "Buyer" means the person who buys or hires the goods covered by the conditional sale, or any legal successor in interest of such person. "Filing district" means the sub-division of the state in which conditional sale contracts, or copies thereof,, are required by this act to be filed. "Goods" means all chattels personal other than things in action and money, and includes emblements, industrial growing crops, and things attached to or forming a part of land which are agreed to be severed before sale or under the conditional sale. "Performance of the condition" means the occurrence of the event upon which the property in the goods is to vest in the buyer, whether such event is the performance of an act by the buyer or the happening of a contingency. "Person" includes an individual, partnership, corporation, and any other association. "Purchase" includes mortgage and pledge. "Seller" means the person who sells or leases the goods covered by the conditional sale, or any legal successor in interest of such person. Question 367: (1) A sells to B a set of books to be taken possession of by B and paid for $3.00 per month for twelve months, title retained in A until the last installment paid, at which time B is to become the owner. What is this transaction called? (2) A leases to B a piano for $20 a month, for a period of twelve months and it is provided that upon the payment of the last month's rent B shall be entitled to the piano. Is this a conditional sale and covered by the conditional sales act? § 391c. Primary rights of buyer. Case 368. Uniform Conditional Sales Act, Sec. 2. 2. Primary Rights of Buyer. The buyer shall have the right when not in default to retain possession of the goods, and he shall also have the right to acquire the property in the goods on the performance of the conditions of the contract. The seller shall be liable to the buyer for the breach of all promises and warranties, express or implied, made in the conditional sale contract, |