length of time, and beyond that it is null and void.

Consequently,

if the mortgagee would avail himself of the advantage of his mortgage, he must do so during its life, or if he does not he may find himself postponed to other creditors.

319. Presumption.-When a sale is made the parties do not always definitely agree upon all the details of the contract. In this case it remains for the law to supply by inference what they have omitted. As we have previously remarked, they do not always agree on the price, but the law presumes that a reasonable price was intended. In like manner, nothing being said about the manner of payment, it is presumed that cash was intended. All these presumptions may, however, be overcome by the circumstances of the case, and the previous dealings of the parties.

320. Warranty.—A warranty is an express or implied statement of something which a party undertakes shall be a part of a contract. It is usually an undertaking on the part of the seller that the thing sold is as represented. A representation is not always a warranty. Only the representations that are made in such a way as to become a part of the contract, and one of its inducements, are warranties. A mere matter of opinion, stated as such, will not amount to a warranty.

A enters B's store to buy a case of blackberries. B shows him the berries and remarks that they are the finest that have been or will be on the market this season. This is a representation but not a warranty.

321. Caveat Emptor.-It is an old rule of law that the buyer of personal property takes it at his own risk. Caveat Emptor, “let the buyer beware." This rule applies, as we shall see, more especially to the quality of the subject matter, and throws all risk in this respect on the buyer. The seller may have given an express warranty of quality, but, as a rule, it is not presumed.

322. Time When the Warranty Was Made.-The time when a statement is made has much to do in determining whether it amounts to a warranty or not. An offer to warrant, made at the time of making the proposition, was held good when the proposition was accepted, some days later, upon the faith of the warrant. The intention and circumstances largely govern such cases, but in general, statements to be binding as warranties, should be contemporaneous with the sale. If made after the sale has been completed, the warranty is void for want of consideration.

A bought a bicycle from B, a dealer. After the price had been paid, and when A was leaving, he asked if there was a warrant on the machine, and was told by B that he would warrant it for a year. This is of no value for lack of consideration.

323. Kinds. Warranties are either expressed or implied, and in reference to the thing warranted, are either of title or of quality.

324. Warranty of Quality.-Whether a statement made at the time of sale will amount to an express warranty or not depends, as we have said, upon the circumstances of each case. If there was a serious defect covered by the seller's statement, and one peculiarly within his knowledge, and not open to the buyer's inspection, it will have great weight in deciding his statement to be a warranty. But it must be remembered that Caveat Emptor is the general rule and that these are only exceptions or modification of it.

325. When Warranty of Quality Is Implied. —When the buyer is not permitted to inspect the goods, or where inspection from the nature of the case is impossible, the rule of Caveat Emptor does not apply, and a warranty is implied. This is the case when goods are sold by sample or description. When goods are ordered for a particular purpose, and the buyer must necessarily rely on the judgment and expert knowledge of the seller, a warranty is implied that such knowledge will be used.

326. When Warranty of Title Is Implied.--On this question the courts make a distinction between goods in the possession of the seller at the time of sale, and those not in his possession. As to the former, a warranty of title is implied, but not as to the latter. If the seller be an officer of the law, or a trustee, no warranty of title is implied, consequently he who buys at such a sale merely buys what right or interest the seller may have had.

327. Lost Property.-The finder of lost property has a valid title thereto against every one, except the true owner. One who purchases such property from the finder, for value, acquires no title against the real owner, who can recover it at any time.

The buyer,

in such case, has no recourse but the implied warranty of title by possession on which to rely.

PRACTICAL REVIEW.

I. A buys of B all the lumber of a certain quality in a certain pile and is given possession of it all to select his portion. Before he makes the selection the pile is seized by a creditor of B. What rights has A?

II. A sells to B 100 barrels of salt lying in a warehouse and endorses the warehouse receipt to B. If A's creditors should attach the salt what would 'be B's rights?

· III. A ordered a wagon of B.

A examined it while it was being painted and was pleased with it. The shop and wagon were burned. Who must bear the loss?

IV. A gave a bill of sale of his furniture to B, who did not was afterwards attached by A's creditors when B claimed it. rights?

V. A orders goods of B by sample. them, but finds them not up to sample. liability?

remove it. It What are B's

When the goods arrive he opens
What should A do to prevent

VI. A sells his piano to B and gives a bill of sale but the piano is not removed. Afterwards A sells it to С who removes it, when B claims it and produces his bill of sale. Who is entitled to it and why?

VII. A orally agrees to sell to B a certain bin of wheat holding about 500 bushels at 90 cents per bushel. The next day C offers him $1 per bushel for half of it. He accepts C's offer and delivers the wheat to C. What are B's

rights?

VIII. A sells to B 500 bushels of corn at 40 cents per bushel to be delivered at a certain future time. One hundred dollars were paid down by B as earnest money. A delivers 300 bushels according to contract, but refuses to deliver more. What are B's rights?

IX. A ships goods at Chicago to B of Baltimore. The next morning B's failure is announced in the papers. If the sale be on credit, what can A do? X. A sells a number of hats to B. The hats are in the next room and A offers to show them, but B says it is unnecessary. When they are delivered he finds that they are not of the quality he supposed. What, if anything, can B do about it?

XI. A agrees to sell B 6,000 bushels of corn at 35 cents per bushel and was to have six weeks in which to deliver it. He delivered 3,000 bushels in two weeks when he refused to deliver any more. What are the rights of

each party?

XII. In the above case suppose the seventh week A tenders the remaining 3,000 bushels, must B receive it?

XIII. A, a drover, bought a carload of cattle from a farmer who was to deliver them to the railroad company on a certain day for transportation. The day the farmer was to deliver the stock he was otherwise engaged and did not make the delivery until three days afterwards. Between the time when he should have made the delivery according to agreement and the day when he did make it, two of the cattle died. On whom will the loss fall?

REVIEW QUESTIONS.

1. Define a sale of personal property. 2. Designate the parties to a sale. 3. What are the essentials of a sale? 4. What may be subject matter of a sale? 5. Can property not now in existence be the subject of sale? 6. Name something which cannot be sold. 7. How does the Statute of Frauds affect a sale in your State? 8. What must be done to comply with the statute? 9. Must the memorandum be formal? 10. Who must sign it? 11. How does

the rule in this regard differ from the ordinary rule of contracts? 12. What must the memorandum contain? 13. What is a bill of sale? 14. Is it acknowledged? 15. Is the Statute of Frauds a rule of evidence or does it relate to the validity of the contract? 16. Why is this a material question? 17. What is delivery? 18. Why is the question of the exact time of delivery important? 19. Can one sell and deliver goods and still retain, their possession? 20. Give an illustration. 21. In what capacity does one hold goods that he has sold? 22. When one buys goods that are to be delivered by the seller, whose loss is it in case of their destruction? 23. What is the English rule on this question? 24. What is the test laid down by Kent? 25. In the absence of agreement or custom where is delivery presumed? 26. In the absence of an agreement when is it presumed that payment is to be made? 27. How can one deliver without a change of possession? 28. What is the rule for delivery by installments? 29. Whose agent is a carrier, the buyer's or the seller's? 30. How is a sale without change of possession often a fraud on third persons? 31. What is constructive delivery? 32. What is meant by stoppage in transitu? 33. How and when may it be exercised? 34. What is its effect? 35. How does a sale "on trial" differ from a sale with privilege of returning? 36. What is a chattel mortgage? 37. How are they usually executed? 38. What is a warranty? 39. What is meant by "Caveat Emptor"? 40. When will a statement be construed as a warranty? 41. When will a warranty of title be implied? 42. When will a warranty of quality be implied? 43. Who is entitled to lost property?

BAILMENT.

CHAPTER XXIX.

328. Introduction.-Bailment is a very important branch of the law. When we learn that it includes the law in reference to the borrowing, lending, hiring and the keeping of chattels, and the carrying or working upon them for another, we can realize the force of the above statement. The word comes from the Norman-French bailler, meaning to deliver. Hence that which is delivered to another for any of the purposes named above, is bailed to him. The law which determines the rights and duties of the parties in relation to the property and to each other, is the law of bailment. The one who delivers the goods is called the bailor, and the one to whom delivery is made is called the bailee.

Bailment is defined as a delivery of goods or money by one person to another in trust for some special purpose upon a contract expressed or implied that the trust shall be faithfully executed.

329. Kinds. The subject of Bailment is divided on the basis of the thing to be done to the property into five classes, viz: I Deposit; II Commission; III Gratuitous Loans; IV Pledge; V Hire. These will be considered separately.

330. Degrees of Care.-One of the most important questions in reference to bailments, and one which the bailee should answer immediately upon receipt of the chattel, is in regard to the degree of care required of him to save himself harmless in case of its loss or destruction. Courts have established and defined for this purpose three kinds of care, viz.: 1. Slight care, or that degree of care which every man of common sense, though very absent minded and inattentive, applies to his own affairs. 2. Ordinary care, which is that degree of care which every person of common and ordinary prudence takes