defendant, nor has any satisfactory machine been furnished to plaintiff by defendant in place of the one furnished under said contract. 9. That previous to the commencement of this action plaintiff notified defendant of its rescission of said contract by reason of the failure of defendant to furnish a machine in accordance with the terms of said contract. Wherefore, plaintiff prays, that it be adjudged and decreed that said contract is void, and that plaintiff have judgment against defendant for the sum of $2,132.31, with interest on the payments made from the dates of said payments, and for costs of suit. [Verification.] M. B. Kellogg, A. E. Shaw, Attorneys for plaintiff. FORM No. 613-For breach of warranty on sale of work animals. (In Sierra L. & C. Co. v. Bricker, 3 Cal. App. 190; 85 Pac. 665.) [Title of court and cause.] Now comes the plaintiff, and for cause of action alleges: 1. [Averment of incorporation of plaintiff company.] 2. [Averment as to defendants as copartners.] 3. That on or about the 4th day of April, 1904, at Los Angeles, California, plaintiff purchased from defendants two mares upon the following express representations of defendants, and warranty in writing, that said animals were sound and without blemish, a copy of which is as follows, to wit: [Here copy of agreement is set out.] 4. That on or about the said 4th day of April, 1904, plaintiff paid defendants the sum of $360 for said animals, and expended [here are set forth other payments and expenses which defendants agreed to refund if the team was not as represented]. 5. That after a thorough test had been made plaintiff discovered that neither of said mares was sound or without blemish, in this: [Here defects are specified.] 6. That on or about April 23, 1904, plaintiff notified defendants that said animals were not satisfactory; that they were both unsound and blemished, and offered to return the same, and demanded a return of the purchase price, but defendants refused to receive the said animals, and still refuse to receive them. 7. That plaintiff has fed and cared for said team from April 5, 1904, and is still caring for the same; that $2 per day is a reasonable sum for the feed and care of the said animals [etc.]. [Prayer for judgment.] [Verification.] Hahn & Hahn, Attorneys for plaintiff. FORM No. 614—For breach of warranty on sale of stallion. (In Watson v. Roode, 43 Neb. 348; 61 N. W. 625.) [Title of court and cause.] 1. The plaintiff complains of the defendant for that on the 18th day of November, 1884, the defendant, as an inducement to plaintiff to purchase from him, defendant, a certain imported black stallion called "Knight of the Shires," for the sum of $2,000, warranted the said horse to be a foal-getter and sound in every respect; that his, defendant's, title to the same was clear, and that said horse was. registered in the studbook of England, as also was his dam and sire, and that he, defendant, would furnish the secretary's receipt for such pedigree; and plaintiff, relying on said warranty and statements, purchased said horse from the defendant for the sum of $2,000, then duly paid. 2. Plaintiff avers that said horse, at the time of said sale, was unsound in this: That [here the defects are set forth]; that because of said defects said horse was of no value whatever; that [here are stated other defects and maladies of the horse], all of which the said horse had at the time of the said purchase, and which, combined, caused the death of said horse on the 16th day of June, 1886. 3. Plaintiff avers that the pedigree of said horse was not as warranted by the defendant, and that the defendant never has furnished the secretary's receipt for such pedigree, as agreed to be done on the part of the defendant. 4. Plaintiff avers that said horse was not a foal-getter, and by reason of the above premises plaintiff has sustained damages in the sum of $5,000. [Prayer, etc.] FORM No. 615-For breach of warranty of fitness for designated purpose. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That on the day of 19 at the defendant sold and delivered to the plaintiff [stating what], for the purpose [stating what], for valuable consideration, and then and there, as part of the contract of sale, warranted the same to be fit and proper for such purpose. 2. That the said [articles] were not then, nor since, reasonably fit or proper to be used for [designating purpose]. 3. That the plaintiff, confiding and relying upon said warranty, did on the in using and applying said articles on day of 19 , expend $ 4. That by reason of the premises the plaintiff was misled and injured, to his damage in the sum of $ [Concluding part.] §311. ANSWERS. FORM No. 616-Defense of denial of warranty. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition]: Defendant denies that he promised or represented to the plaintiff that the said [horse] was sound or gentle or quiet in harness; but alleges that the plaintiff purchased said [horse] with notice [state defect, if any], and not confiding in or relying upon any representations of the defendant. [Etc.] FORM No. 617-Denial of breach of warranty. [Title of court and cause.] The defendant answers to the plaintiff's complaint [or petition]: Defendant alleges that at the time of the sale mentioned therein said horse was sound [etc., following terms of warranty]. [Etc.] FORM No. 618-Counterclaim on breach of warranty. [Title of court and cause.] The defendant, for a counterclaim herein, alleges that at the time of the sale of the goods in the complaint mentioned the plaintiff represented and warranted that [here allege the warranty]. [Allege breach of said contract of warranty, the particulars thereof, and the damages resulting to defendant therefrom.] [Etc.] § 312. ANNOTATIONS.-Sale and warranty. 1, 2. Remedies where breach of warranty occurs. 6. Liability of vendor of article to third person. 1. Remedies where breach of warranty occurs. In the case of an executed sale, the buyer may accept, although the goods do not comply with the warranty, and recover damages for the breach: Davidson Bros. Co. v. Smith (Iowa), 121 N. W. 503. 2. The defendant is entitled to rely on whichever defense the evidence tends to establish, where the question is submitted by the pleadings as to whether the acts of defendant constituted a rescission, or whether they were consistent with an intention to claim damages for breach of warranty: Davidson Bros. v. Smith (Iowa), 121 N. W. 503; Bruner v. Brotherhood of American Yeomen, 136 Iowa 612, 111 N. W. 977; Cole v. Laird, 121 Iowa 146, 96 N. W. 744; Mallory Com. Co. v. Elwood, 120 Iowa 632, 95 N. W. 176; Thorson & C. Co. v. Baker, 107 Iowa 49, 77 N. W. 510. 3. Profits as general damages.-Damages which plaintiff sues for in a case to recover for breach of warranty of quality of goods sold by defendant, and profits which plaintiff alleges it would have made if the goods had been as warranted, may be recovered as general damages, and it is not necessary that the "profits" be specially alleged: Germain Fruit Co. v. Armsby Co., 153 Cal. 585, 590, 96 Pac. 319; Tahoe Ice Co. v. Union Ice Co., 109 Cal. 242, 41 Pac. 1020. 4. Defense of failure of consideration. -Proof of failure of consideration, standing alone, would, if properly pleaded, be a good defense in a suit on a note by the payee against the makers, but will not support a case bottomed on a warranty and a breach thereof: Crenshaw v. Looker, 185 Mo. 375, 84 S. W. 885; Brown v. Weldon, 27 Mo. App. 251, 99 Mo. 564, 18 S. W. 342. 5. But this does not mean that proof of want of consideration, when pleaded in a case on breach of warranty, would not be good. In an action upon a promissory note given for the purchase price of an article bought for a particular purpose, whether upon an express or implied warranty, with ог without fraud, it is not necessary that the purchaser should return the article or offer to return it, or to rescind the contract, or that such article should be wholly worthless, in order that he may avail himself of his plea of failure of consideration; yet, if he retains the article, and does not offer to return it, and such article is not wholly worthless, such plea can avail him only so far as to defeat a recovery on the note to the extent of the difference between the value of the article, had it been such as it was represented to be, and its value such as it was shown really to be: Broderick v. Andrews, 135 Mo. App. 57, 115 S. W. 519, 520; Brown v. Weldon, 27 Mo. App. 251, 99 Mo. 564, 13 S. W. 342; Shepherd v. Padgitt, 91 Mo. App. 473; Miles v. Withers, 76 Mo. App. 87; Fairbanks v. Baskett, 98 Mo. App. 53, 71 S. W. 1113; Williams v. Baker, 100 Mo. App. 284, 73 S. W. 339; Ferguson Implement Company v. Parmer, 128 Mo. App. 300, 107 S. W. 469. 6. Liability of vendor of article to a third person.-The manufacturer of machinery is not liable to a person, other than the vendee, for an injury caused by breakage, in those cases where the article sold is not inherently of a dangerous character: Heizer v. Kingsland etc. Mfg. Co., 110 Mo. 605, 19 S. W. 630, 33 Am. St. Rep. 482, 15 L. R. A. 821. See Roddy v. Missouri Pacific R. Co., 104 Mo. 234, 15 S. W. 1112, 24 Am. St. Rep. 333, 12 L. R. A. 746; Gordon v. Livingston, 12 Mo. App. 267; Loop v. Litchfield, 42 N. Y. 351, 1 Am. Rep. 513; Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 638; National Sav. Bank v. Ward, 100 U. S. 195, 25 L. ed. 625. CHAPTER LXXXV. Breach of Contracts of Sale and Purchase, and of Miscellaneous Contracts. Form No. 619. For breach of contract of sale and to recover 1251 Form No. 620. For breach of contract to furnish engine and 1252 plant. 1253 .... Form No. 622. Upon contract to purchase stock in default of 1254 ...... Form No. 623. For breach of an option contract to repurchase Form No. 624. For breach of contract for purchase of fruit... 1255 1256 tract to purchase oil 1258 §315. Answers 1259 Form No. 626. Defense of non-compliance with contract.. 1259 1259 1259 § 316. Judgment [or decree] .... 1261 Form No. 629. For plaintiff.-Damages for breach of contract California, § 1727. An agreement to sell is a contract by which one engages, for a price, to transfer to another the title to a certain thing. (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, § 1, sub. 1. North Dakota, Rev. Codes 1905, § 5397. C. C. 1302. Montana, Rev. Codes 1907, § 5082.. ■ Arizona, Laws 1907, p. 229, § 1. (1) A contract to sell goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price. (Enacted March 21, 1907.) Jury's Pl.-79. |