Sec 228

Even where there is no warranty, a person selling an article so negligently made by him as to do injury,6 or of whose dangerous properties he, as seller, ought to.be cognizant,7 is liable in a suit for negligence; though there is no such liability on the part of a vendor, even though he be the manufacturer, to a party injured by the thing sold, where there is no contractual relation between the plaintiff and the defendant, or the plaintiff was not within the defendant's contemplation as the person to use the thing sold.8

Sec 229

A sale of an article "with all faults" excludes the hypothesis of warranty, and relieves the seller from liability, unless there be fraud or unless there be want of adaptation to the purpose of the sale.1 And it has been held by the House of Lords, that a sale "with all faults" not only covers secret faults, such as might be consistent with the article being merchantable, but protects the seller in case of a sale of animals which turn out to be unfit for the market in consequence of a contagious disease.2

Vendor may be liable for negligence.

1 Infra, sec 245, 907.

2 Infra, sec 245; Story on Cont. sec 1057; citing Butterfield v. Burroughs, 1 Salk. 211.

3 Infra, sec 245.

4 Benj. on Sales, 3d Am. ed. sec 618; Shepherd v. Kain, 5 B. & Ald. 240; Henshaw v. Robins, 9 Met. 89; Mead v. Bunn, 32 N. Y. 273; Thome v. Prentiss, 83 111. 99; Ruff v. Jarrett, 94 111. 475; and cases cited supra, sec 224; infra, sec 245.

5 Supra, sec 224; infra, sec 245.

6 Benj. on Sales, 3d Am. ed. sec 431, 904; George v. Skivington, L. R. 5 Exch. 1. See note to Chandeler v. Lopus, 1 Smith's L. C. 7th Am. ed. 299; and see infra, sec 1043 et seq.

7 Infra, sec 241; Benj. on Sales, sec 431, 668; Langridge v. Levy, 2 M. & W. 519; 4 M. & W. 337; Francis v.

Cockrell, L. R. 5 Q. B. 184; Farrant v. Barnes, 11 C. B. N. S. 553; Hayes v. Porter, 22 Me. 371; Davidson v. Nichols, 11 Allen, 519; Wellington v. Downer Co., 104 Mass. 64; Norton v. Sewall, 106 Mass. 143; Thomas v. Winchester, 6 N. Y. 397.

8 Cattle v: Stockton Water Works, L. R. 10 Q. B. 453; Loop v. Litchfield, 42 N. Y. 351; Losee v. Clute, 51 N. Y. 494. See comments in Wh. on Neg. sec 91, 92, 440, 441, 443, 774, 857. That none but a party can sue on a contract, see infra, sec 784. In Langridge v. Levy, the representation of soundness (the case being that of a gun which burst) was made to the plaintiff's father, but it was understood at the time that the gun was for the plaintiff's use. See distinction put in Coughtry v. Globe Woollen Co., 56 N. Y. 124.

The identity of the article, however, must be preserved.3

Sec 230

The prevalent opinion in the United States is, that there is a warranty of title in all cases of executory sales, when the owner of goods sells them while in his possession or in his agent's possession as his own, even though there be no affirmation of title.4 "It is also," says Mr. Benjamin,6 " universally conceded, that in the sale of an ascertained specific chattel, an affirmation by the vendor that the chattel is his is equivalent to a warranty of title; and that this affirmation may be implied from his conduct, as well as from his words, and may also result from the nature and circumstances of the sale. But it has been said, thirdly, that in the absence of such implication, and where no express warranty is given, the vendor, by the mere sale of a chattel, does not warrant his title and ability to sell; though all again admit, fourthly, that if in such case the vendor knew he had no title, and concealed that fact from the buyer, he would be liable on the ground of fraud." On the other hand, no such warranty is held to exist when the thing sold is not in the possession of the vendor or of his agent.1 -

Sale "with all faults" excludes warranty.

Warranty of title implied in sale.

1 Benj. on Sales, 3d Am. ed. sec 447, 602, 671; Schneider v. Heath, 3 Camp. 506; Baglehole v. Walters, 3 Camp. 154; Taylor v. Bullen, 5 Ex. 779.

2 Ward v. Hobbs, L. R. 4 App. Cas. 13, reversing L. R. 2 Q. B. D. 331, and aff. S. C. 3 Q. B. D. 150; see Shepherd v. Kain, 5 B. & Ald. 240. In Ward v. Hobbs, Lord Cairns, in his judgment, held that as the suit was on the warranty, no fraud being alleged, the warranty must be proved as a matter of contract, and that a contract of warranty was excluded by the statement that there was to be no warranty. See supra, sec 222.

3 Whitney v. Boardman, 118 Mass. 247.

4 Benj. on Sales, 3d Am. ed. sec 627, 630; Story on Cont. sec 1062; Thurston v. Spratt, 52 Me. 202; Sargent v. Currier, 49 N. H. 310; Sherman v. Trans. Co., 31 Vt. 162; Coolidge v. Brigham,.

1 Met. 551; Shattuck v. Green, 104 Mass. 42; Hoe v. Sanborn, 21 N. Y. 552; McCoy v. Archer, 3 Barb. 323; Burt v. Dewey, 40 N. Y. 283; McKnight v. Devlin, 52 N. Y. 399; Dorsey v. Jackman, 1 S. & R. 42; Boyd v. Bopst,.

2 Dall. 91; McCabe v. Morehead, 1 W. & S. 513; Charnley v. Dulles, 8 W. & S. 353; Darst v. Brockway, 11 Ohio, 462; Eagan V. Call, 34 Penn. St. 236; Whitaker v. Eastwick, 75 Penn. St. 229; Rice v. Forsyth, 41 Md. 389; Byrnside v. Burdett, 15 W. Va. 702; Williamson v. Simmons, 34 Ala. 691; Storm v. Smith, 43 Miss. 497; Marshall v. Duke, 51 Ind. 62; Morris v. Thompson, 85 111. 16; Chancellor v. Wiggins, 4 B. Mon. 201.

5 Sales, 3d Am. ed. sec 627.

1 Kent's Cora. ii. p. 278; Huntington v. Hall, 36 Me. 501; Emerson v. Brig-ham, 10 Mass. 202; McCoy v. Artcher, 3 Barb. 323; Edick v. Crim, 10 Barb. 447; Scranton v. Clark, 39 N. Y. 220; Andres v. Lee, 1 Dev. & Bat. Eq. 318; Fletcher v. Drath, 66 Mo. 126; Stephens v. Ells, 65 Mo. 456; Long v. Hicking-bottom, 28 Miss. 772. This distinction, however, is repudiated in Eichholz v. Banister, 17 C. B. N. S. 708, and Mor-ley v. Attenborough, 3 Ex. 500, in Purves v. Rayer, 9 Price, 488, and in Story on Cont. sec 1062, where it is stoutly contested, citing Hammond v. Allen, 2 Sumn. 394; 11 Pet. 71; Smith v. Fairbanks, 7 Foster, 521; Strong v. Barnes, 11 Vt. 221; Coolidge v. Brig-ham, 1 Met. 551; Defreeze v. Trumper, 1 Johns. 274; Swett v. Colgate, 20 Johns. 202; Ritchie v. Summers, 3 Yeates, 531; Willing v. Peters, 12 S. & R. 177; Mockbee v. Gardner, 2 Har. & G. 177; Payne v. Rodden, 4 Bibb, 304. See notes to Chandeler v. Lopus, 1 Smith's L. C. 7th Am. ed. 299 et seq.