Putnam's Handy Law Book for the Layman

by Albert Sidney Bolles

The liability of a manufacturer, seller, lender, or user of things is not that of an insurer in making, selling, lending or using them. But he does incur liability whenever he fails to exercise such care as is fairly needful to protect others against the hazard in buying and using them. A druggist, therefore, who affixes a wrong label to a bottle of medicine and thereby injures a person who uses it is responsible. And the rule would apply whether the taker was the purchaser or some other person.

When persons are invited on one's premises for mutual advantage, the inviter owes the duty of ordinary care. He is not an insurer of their safety, nor need he exercise extraordinary care in guarding them from harm, unless there was unusual danger. Suppose a man had a way which persons used in going to and from his business, and he began to dig a well near the way and left the place unprotected during its construction, undoubtedly the owner would be liable. Suppose the well was a considerable distance from the way where persons did not usually go and had no occasion for going. Then he would not be liable. How far away from the road could he dig without thought of the public? The answer would depend on the facts in the case.

A somewhat different rule has been applied to children. Although a child of tender years who meets with an injury on the premises of a private owner may be a technical trespasser, yet the owner may be liable, if the things causing the injury have been left exposed and unguarded, and are of such a nature as to be attractive to children, appealing to their childish curiosity and instincts. Unguarded premises, which are thus supplied with dangerous attractions, are regarded as holding out implied invitations to children. There has been a great deal of controversy over this important rule. Those opposed say, if everywhere applied, it would render the owner of a fruit tree, for example, liable for damages to a trespassing boy who, in attempting to get the fruit, should fall from the tree and be injured. Professor Burdick, after a full review of the cases, says that the tide of judicial opinion is setting the other way. Children, therefore, who invade the premises of a person without any right are trespassers like older people. The duty of caring for children remains with their parents and guardians; and if they are injured while unlawfully going on the land of others their parents cannot visit the consequences of their neglect on the owners of the land where the injuries happened.

Warranty.—The law, assuming that the purchaser knows or can find out the quality and worth of things, does not make an implied warranty of them generally. The legal maxim is, "Let the purchaser beware." He must take care of himself. In many cases, though, he does obtain a warranty. He must, however, distinguish between this and a mere representation. It may be difficult to draw the line always, but it exists. A statement that is not intended as a warranty, made simply to awaken the buyer's interest in the thing for sale, is not a warranty. Nor does the law imply a warranty from the payment of a full price. Formerly, when a commodity was adulterated, it could be returned, and the courts became sorely troubled to defend an adulteration. More recently, statutes have cleared away the difficulty, and are a great protection to buyers. In many cases, doubtless, they know more about the quality and condition of the things they buy than the inexperienced salesmen who are behind the counters, so they need no protection from the law; when they do need it a warranty may serve a good purpose. In articles concerning which the seller does possess a superior knowledge, precious stones, drugs, medicines, and the like, the modern law has raised an implied warranty for the buyer's protection. In this class of cases the buyer and seller do not deal on equal terms. The vendor is professedly an expert.

In a sale of food there is no longer an implied warranty of fitness, unless the buyer expressly or by inspection acquaints the seller with the purpose of the purchase and unless it appears that the buyer relies on the seller's skill and judgment. Even then, if the buyer has examined the goods and has discovered a defect, there is no warranty. The burden of showing that he has made known his purpose and that he has relied on the seller is on the purchaser who claims the existence of an implied warranty.

There is another implied warranty, that of the seller's title, when he is in possession of the goods. This is limited to persons who are acting for themselves, and not agents, trustees, officers of the law, who are acting for others. An innocent purchaser of goods, therefore, for a good consideration obtains a good title, even from a vendee who has obtained them by fraud, as against the original vendor. This rule, though very broad, does not prevent a lawful owner from recovering his property. Thus, if a farmer's oxen were stolen and the thief should sell them as his own, and the purchaser should pay for them, nevertheless the farmer could recover them. The only exception to this rule is negotiable paper. This is made in order to surround it with greater protection.

Where goods are sold by sample there is a warranty that the goods will be like the sample, but there is no warranty of the sample itself. In one of the well-known cases hops were sold by sample, and after the hops had been delivered the discovery was made that they had been injured by heating. The buyer sued though failed to recover anything, for it was proved that they were like the sample, which had been shown several months before, and at that time the heating had not begun. As they were sold at the earlier period, their condition at the time of the delivery did not affect the sale. See Deceit; Sale.

Will.—A will is a disposition of one's property to take effect after his death. He is called a testator, and must possess a sound mind to make an effective will. He must be able to comprehend what he is doing. Wills are often contested on the ground that the testator's mind was feeble and that undue influence was exercised over him in disposing of his property. Married women can make wills like their husbands and so can a minor in many states.

All of the states have enacted statutes on the subject which require various things; one of the most important is the witnessing of wills. Generally, three witnesses are required. An eminent judge, not long since, made a will to please his wife leaving a large sum to found an institution. He was opposed to the thing. The astute judge had no witnesses, so he both fooled his wife and pleased himself, for his will was worthless. The statutes require the witnesses to sign in the testator's presence, who often give important testimony of his competency whenever his will is contested. As they may be called for this purpose, intelligence should be used in selecting persons to become witnesses. A witness who is competent at the time of signing does not become incompetent by reason of anything that may happen to him afterward. A witness should not be given anything in the will, for, if this is done, his act of witnessing in perhaps all the states violates the gift. Though this may be the consequence the rest of the will is not thereby impaired. The property given is either real or personal. Real property consists of land extending indefinitely upward and downward, every building thereon, every growing thing, likewise all minerals and in some cases even ice. Personal property includes everything of a movable nature. A transformation is often effected. A tree while standing on the land is a part thereof; cut down it becomes personal property.

A will should be in writing; and this in most states is a statutory requirement, to guard against the wrongs and frauds that might otherwise arise. A testator may write his own will, indeed to do so would be a good test of will-making capacity. If he is unable to write his name, he may make his mark. When this is done, there should be ample proof that he did so, for a mark can be so easily made by any one.