218. Implied Warranty in Sales by Sample. When goods are not inspected by the buyer, but a sample is furnished him, from which he purchases, there is an implied warranty that the goods sold correspond with the sample. The fact that a sample of goods is exhibited by the seller and examined by a purchaser does not necessarily mean that a resulting sale is one by sample. The sample exhibited may not be claimed by the seller to represent in every respect the article to be furnished, or the purchaser may not desire to purchase according to the sample. To constitute a sale by sample, a sample must be exhibited by the seller upon a representation that it is a sample of the goods to be sold. If exhibited for any other purpose, the resulting sale will not be a sale by sample. The purchaser must make the purchase relying upon the sample, and with the understanding that the goods are to correspond with the sample. If the goods are present at the time the sale is made, and the purchaser inspects them, or has the opportunity to inspect them, in the absence of fraud, he cannot claim that the sale is by sample.

219. Implied Warranty of Merchantability. Where goods which have not been inspected or selected by the purchaser are ordered to be delivered in the future, there is an implied warranty that they are of average quality. This is called an implied warranty of merchantability. A ordered a "Buckeye" mowing machine of B, to be delivered the following week. B delivered a machine which would not cut grass. B was held liable to A upon an implied warranty of merchantability. If A had inspected the machine, and made the purchase upon his own selection, in the absence of fraud on the part of B, A would have no redress. But, in case the article is purchased without opportunity for inspection, to be manufactured or delivered in the future, there is an implied warranty that the article is an average one of its kind.

220. Implied Warranty of Fitness of Goods for the Purpose for Which They are to Be Used. When a purchaser makes known to a seller the purpose for which the article is to be used, and the seller is himself the manufacturer or grower of the article, there is an implied warranty that the article is fit for the purpose for which it is to be used. This applies only to articles to be manufactured or delivered in the future, and not to articles inspected and selected by the purchaser. If A goes to B, a manufacturer, and tells him he desires to have manufactured an instrument to hold liquid soap suitable for the use of workingmen in shops, and B agrees to manufacture and sell such an article, there is an implied warranty on B's part that the soap-holders will be suitable for the purpose for which they are to be used. If, however, A furnishes B plans for the manufacture of a liquid soap-holder, and orders a quantity, there is no implied warranty on B's part that the articles will be fit for the purpose intended. A in this case relied upon his own judgment. B's contract is fulfilled when he furnishes the article according to A's plans. The work must, of course, be done in a workmanlike manner, free from defects of material and workmanship. This implied warranty of fitness of an article for the purpose for which it is to be used, applies only where the purchaser reveals the purpose of the article to the grower or manufacturer who agrees to furnish such an article. It does not apply to articles furnished according to furnished plans, or to articles selected by the purchaser.

221. Remedies for Breach of Warranty. In case of breach of warranty, the purchaser may bring a suit for damages against the seller, or he may promptly return the goods, and recover the purchase price. The latter remedy is called rescission. In case of breach of an express warranty, in most jurisdictions the remedy is the same as for breach of implied warranty. In some states, however, the seller is not permitted to return the goods and sue for the purchase price, but is restricted to an action for damages.

222. Seller's Lien, Delivery to Carriers, and Stoppage in Transitu. In case of sales for cash, the seller has the right to retain possession of the goods until he receives payment of the purchase price. If the goods are sold on credit, or if the seller agrees to deliver at a certain place, the seller must comply with his contract. But if the purchaser becomes insolvent before the goods are delivered, the seller may retain possession until paid. He is not obliged to deliver goods on credit, even though such is his contract, if the purchaser subsequently becomes insolvent. The right of a seller to retain possession of goods until the purchase price is paid is called the seller's lien. This lien is lost by the seller's delivery of the goods to the purchaser. If the possession is obtained by fraud on the part of the purchaser, it is regarded as no possession, and the seller may still enforce his lien by retaking possession of the property.

Where goods are ordered by a person in one town from a person in another town, necessitating delivery by a carrier, in the absence of express stipulation to the contrary, title to the goods passes to the vendee upon delivery of same by the vendor to the carrier. If A, in Cleveland, orders a car of pine lumber from B, in Milwaukee, for $1,500.00, title to the lumber passes to A when B delivers the lumber to the transportation company in Milwaukee. If A orders the lumber delivered F. O. B. Cleveland, title does not pass to A until the lumber reaches Cleveland. If A orders the lumber, agreeing to pay $1,500.00 for the same, "freight allowed" to Cleveland, title passes to A when B delivers the lumber to the transportation company in Milwaukee, even though B must allow A to deduct the freight from the purchase price of $1,500.00. This question is important in determining upon whom the loss falls in case of damage of the goods while in the hands of the transportation company. The one who has the title at the time the loss occurs must stand the loss. Such party may recover from the transportation company. This question is discussed in the chapter on Carriers.

While a seller loses his lien by delivery of possession of the goods to the purchaser, if the goods are delivered to a carrier and the purchaser becomes insolvent before the carrier delivers the goods to him the seller may stop delivery of the goods, and retake possession even though title has passed to the purchaser. The seller's lien in this event revives. By insolvency is meant inability to pay one's debts. The right of a seller to stop a carrier from delivering goods to a vendee, in case of insolvency of the latter, is called stoppage in transitu. This question is also discussed in the chapter on Carriers.

A seller may enforce his lien by keeping the goods, and suing the purchaser for damages, or by selling the goods at private or public sale, with notice to the purchaser of the time and place of sale, and then by suing the original purchaser for the difference between the amount he receives for the goods on resale, and the amount the original purchaser agreed to pay. The seller may, of course, hold the goods and demand the original purchase price of the purchaser, and not yield possession until he receives the purchase price.

223. Remedies of Seller. The seller's lien described in the previous section is one of the remedies of a seller. If the purchaser refuses to accept the goods, the seller may keep or resell the goods, and if he receives less than the original purchaser agreed to pay, he may recover the difference as damages from the original purchaser. For example, A agreed to manufacture and deliver a specially constructed cash register for B for $500.00. When it was completed, B refused to accept same. A sold it for $200.00, the fair market price, and recovered from B, $300.00 as damages for B's breach of contract. If the purchaser accepts the goods and fails to pay for them when due, the seller may sue and recover the entire purchase price, together with damages and expenses which are necessarily connected therewith.

224. Remedies of Purchaser. Where title has not passed to the purchaser, if the seller refuses or fails to deliver goods according to the contract of sale, the purchaser may go into the market at the time and place of delivery and purchase goods, and if obliged to pay more than the original contract price, he may recover the excess from the seller. For example, suppose A purchases five hundred pounds of lard of B for $60.00, B agreeing to deliver the lard October 30th, at Chicago. If B fails to deliver the lard in Chicago, October 30th, A may purchase lard of the same quality in Chicago, and if he is obliged to pay $90.00 for the same, he may recover $30.00 damages from B. If there is no market at the place of delivery mentioned in the contract, the purchaser may purchase at the nearest market. If the purchaser makes the purchase for a particular purpose, which he makes known to the seller at the time the sale is made, and he is specially damaged by reason of the failure of the seller to keep his contract, special damages may be recovered for losses arising by reason of the special circumstances. If title to the goods has passed to the purchaser, in case the seller refuses to deliver them, the purchaser may bring an action of replevin to recover their possession. Replevin is a possessory action. (See chapter on Courts and Legal Remedies.)