Form No. 612. Against a foreign corporation, to rescind a con- 1244 1245 1246 1246 1247 1247 1247 .... 1247 1248 Form No. 616. Defense of denial of warranty. California, § 1721. Sale is a contract by which, for a pecuniary consideration, called a price, one transfers to another an interest in property. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing: Montana, Rev. Codes 1907, § 5079. North Dakota, Rev. Codes 1905, § 5394. South Dakota, Rev. Codes 1903, C. C. § 1299. For agreements to sell and purchase, see ch. LXXXV. Warranty on sale by sample. California, § 1766. One who sells or agrees to sell goods by sample, thereby warrants the bulk to be equal to the sample. (Kerr's Cyc. Civ. Code.) The following statutes treat of the same subject as the foregoing. Where the provisions differ materially from the above, a further reference is made in a lettered note succeeding and the difference there shown: • Arizona, Laws 1907, p. 229, § 16(a). Idaho, Rev. Codes 1909, § 3325. Montana, Rev. Codes 1907, § 5106. North Dakota, Rev. Codes 1905, § 5420. South Dakota, Rev. Codes 1903, C. C. § 1325. ■ Arizona, Laws 1907, pp. 229, 235, § 16. (a) There is an implied warranty that the bulk shall correspond with the sample in quality. (Enacted March 17, 1907.) § 310. COMPLAINTS [OR PETITIONS]. FORM No. 607-For breach of warranty of title. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: sold and delivered to the plaintiff [state what], for the sum of $ then paid him by the plaintiff. 2. That by the said contract of sale it was understood by the plaintiff and defendant to be, and it was a part of the terms and consideration of said contract of sale, that the defendant had the lawful right and title to so sell and to transfer the ownership of said goods to the plaintiff. day of 3. That the defendant had in fact no title in or to or right to sell said goods, but the same belonged to one L. M., who thereafter, on the 19, demanded possession of the same from the plaintiff; that the plaintiff was compelled and did then deliver them up to L. M., and they were wholly lost to the plaintiff. 4. That by reason of the premises the plaintiff was misled and injured, to his damage in the sum of $ [Concluding part.] FORM No. 608—On warranty of note. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That on the day of 19 , the defendant, for a valuable consideration, offered to pass to the plaintiff a promissory note, of which the following is a copy: [Copy of note], then and there warranting said note to have been made by the said L. M. 2. That the plaintiff, confiding in and relying upon said warranty, purchased said note of the defendant, and paid him therefor the sum of $ 3. That the said note was not made by said L. M., but that his name was forged thereto. 4. That by reason of the premises the plaintiff was misled and injured, to his damage in the sum of $ [Concluding part.] FORM No. 609-For breach of warranty as to judgment. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: able consideration, duly assigned to the plaintiff a judgment which day of wherein Y. Z., the defendant herein, was plaintiff, and one L. M. was defendant. 2. That said assignment contained a covenant on the part of the defendant, whereby he warranted that there was due upon said judgment from the said L. M. the said sum of $ with interest 3. That in truth, at the time of said assignment, said judgment had been paid in full to the defendant, and no part thereof was or now is due thereon. 4. That by reason of the premises the plaintiff was misled and injured, to his damage in the sum of $ [Concluding part.] FORM No. 610-For breach of warranty on sale by sample. [Title of court and cause.] day of The plaintiff complains of the defendant, and alleges: 1. That on the 19, the defendant sold to the plaintiff [state what], by producing to him a pretended sample thereof, and warranted said [article] to be equal in quality and description to such sample. 2. That said [article] was not equal in quality and description to said sample, but, on the contrary, was greatly inferior in quality thereto. 3. That by reason of the premises the plaintiff was misled and injured, to his damage in the sum of $ [Concluding part.] FORM No. 611-For breach of warranty of quality of fruit-trees. (In Murphy v. Stelling, 8 Cal. App. 702; 97 Pac. 672.) [Title of court and cause.] Plaintiff complains of defendants, and alleges: 1. That on or about the 25th day of February, 1894, the plaintiff applied to the defendants to purchase apricot trees of the number and variety hereinafter mentioned, and the defendants on said date sold and delivered to the plaintiff, 521 apricot trees, and then and there, at the time of said sale, represented and warranted to plaintiff that said trees were of the Blenheim variety. 2. That plaintiff relied solely upon the representations and warranty so made to him by defendants, as aforesaid, that said trees were of the Blenheim variety, and paid defendants therefor the sum and price by them demanded, to wit, the sum of $65. 3. That plaintiff, on and about the 10th day of March, 1894, planted said trees upon land owned by him, and has continually from the date of said planting up to August, 1898,-that is to say, for a period of four years,-bestowed upon said trees, in the care thereof, great skill, attention, and proper cultivation. 4. That said trees did not bear fruit until in or about the month of August, 1898, and plaintiff then first discovered that 207 of said trees were not of the Blenheim variety, but that they were, and each of them was, of another and inferior and worthless variety, and of no value whatever to plaintiff; that plaintiff did not know, nor could he ascertain prior to the fruitage season of 1898, that said 207 trees were not of the Blenheim variety so purchased and paid for by him, and so represented and warranted by defendants as aforesaid, nor could he know or discover by ordinary diligence that they were not of said Blenheim variety prior to said fruitage season, and until in or about August of said last-named year. 5. That the land of plaintiff upon which said inferior and worthless trees were planted, and upon which the same are now growing, is worth the sum of $1,000 less than said land would be worth were the said trees growing thereon of the Blenheim variety, which plaintiff supposed he had purchased, and which he had paid for as aforesaid. 6. That by reason of the loss of the crops from said 207 trees for the years 1898 and 1899, plaintiff has sustained great loss and damage in the further sum of $387.50; that by reason of the care and cultivation bestowed upon said 207 trees of said inferior and worthless variety, plaintiff has sustained further loss and damage in the sum of $120; that by reason of the failure of said defendant to furnish plaintiff said 207 trees of said Blenheim variety, so paid for and supposed to have been purchased by plaintiff as aforesaid, plaintiff has sustained further loss and damage in the amount so paid defendant by plaintiff for said 207 trees, namely, the sum of $25.85. Wherefore, plaintiff prays judgment for the several amounts hereinabove set forth,-that is to say, for the sum of $1,533.35, together with his costs herein expended. [Verification.] Nicholas Bowden, Attorney for plaintiff. FORM No. 612—Against a foreign corporation, to rescind a contract for breach of warranty of quality, and to recover part of purchase price paid. (In Kullman, Salz & Co. v. Sugar A. M. Co., 153 Cal. 725; 96 Pac. 369.) [Title of court and cause.] Now comes the plaintiff in the above-entitled action, and for cause of action, alleges: 1. [Averment as to incorporation of the plaintiff company.] 2. [Averment as to defendant company as a foreign corporation.] 3. That heretofore, to wit, on or about the 20th day of June, 1900, the plaintiff and the defendant entered into a contract in writing for the purchase and sale of a Lillie triple-effect evaporator, which said contract is in words and figures as follows, to wit: [Here follows copy of contract.] 4. That the said apparatus mentioned in said written contract was warranted to evaporate 300 gallons of water per hour, as specified therein; that the apparatus delivered to plaintiff under said contract was not capable, under the conditions specified, all of which were observed fully by plaintiff, to evaporate 300 gallons of water under the conditions as specified in said contract, but failed very largely to accomplish the work required thereof, and was incapable of evaporating more than [200] gallons per hour under said conditions. 5. That plaintiff believed the representations of defendant, and entered into said contract solely by reason of said representations and the said warranty therein contained, and plaintiff was unable to ascertain the truth or falsity of said representations before entering into said contract. 6,7. [Here follow averments as to the inefficiency of the machine supplied, and notice given to defendant that it did not meet the requirements of the contract.] And plaintiff offered to return said apparatus to defendant upon receiving a satisfactory machine or the amount theretofore paid by plaintiff on account of the purchase price of said apparatus. 8. That plaintiff has paid on account of the purchase price of said machine, and expended thereon in an endeavor to cause the same to perform the work required as specified in said contract, the sum of $2,132.31, no part of which sum has been paid to plaintiff by |
