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the goods unless he has notified his disaffirmance Damages. immediately (e); or a custom that he is bound to accept an allowance for the inferior quality (/). Nor is the purchaser bound to offer to return the chattel (g). For, although, after acceptance and acquiescence on the part of the purchaser, a breach of the warranty does not work such a rescission of the contract as to enable him to sue for money had and received (h), or to set up the breach in bar of an action for the price (z), yet, keeping the chattel is not such a waiver of the breach as to discharge the vendor's liability on his express undertaking: because " no length of time elapsed after the sale can alter the nature of a contract originally false "(A). So, the vendee is not precluded from recovering, by a resale of the chattel (/), nor by keeping it after discovering the defect, and using means to cure such defect, so as to put the
(e) Yeats v. Pirn, 2 Marsh. 141.
(/) Hibbert v. Shee, 1 Campb. 113.
(g) Fielder v. Starkin, 1 H. Bl. 17; Buchanan v. Parnshaw, 2 T. R. 745. See 3 Esp. 84; Anon., cited by Willes, J., 1 H. Bl. 20.
(A) Supra, p. 328, note (I).
(i) Supra, p. 268.
(A) Per Lord Loughborough, C. J., 1 H. Bl. 19. And if the vendor has filed a bill for the price, and the purchaser has paid the money without disputing the claim, this is not such an acquiescence as to bar his action; Jeudxoine v. Slade, 2 Esp. 573.
(0 Selw. N. P. 657, (8th Ed.); 2 Ad. & Ell. 132. See 9 B. & C. 265; 4 Man. & Ry. 208.
Dam«g«. chattel in a different plight from that in which it was at the time of the sale(7«).
But, if the express agreement was, that the vendor should take back the chattel if on trial it should be found not to correspond with the warranty, the purchaser cannot recover damages for the breach of warranty if he has kept it for a longer period than is necessary for trial (n). And, even in the absence of such an agreement, the not giving notice will afford a strong presumptionagainst the buyer (not, that he has waived the breach, but) that the chattel at the time of the sale had not the defect complained of, and will make the proof on his part more difficult (o): thus, where the vendor warranted certain saffron to be of merchantable quality, and the vendee kept it for six months and sold part, it was held, in an action for the breach, to be properly left to the jury to infer that the article was such as the plaintiff intended to purchase (p).
(m) Patteshall v. Tranter, 4 Nev. & Man. 649.
(n) Adams v. Richards, 2 H. Bl. 573. The stipulation, that a trial shall be allowed, will be intended to mean a reasonable trial; id. 574.
(o) Per Lord Loughborough, C. J., 1 H. Bl. 19. See 1 Ad. & Ell. 42. In 2 Marsh. 143, Gibbs, C. J., said, " that the plaintiff did not make his complaint at first, might lead to a conclusion that the damage did not exist at the time of the sale."
(/)) Prosser v. Hooper, 1 B. Moore, 106. Especially where a low price had been given, id.
RIGHTS AND LIABILITIES OF VENDOR IN RESPECT OF
I. PARTNERS OF VENDEE.
RIGHTS AND LIABILITIES OF VENDOR IN RESPECT OF
A purchase by one partner binds the firm (a); even Purchase
(a) Hyat v. Hare, Comb. 383; Col!. Partn. 215. So, in the drawing, accepting, or indorsing of bills; Swann v. Steele, 7 East, 210; Baker v. Charlton, Peake, 80; Wintle v. Crowther, 1 Cr. & Jer. 316; Carolina Bank v. Case, 8 B. & C. 427; unless there be covin and collusion on the part of the plaintiff, Sherriffw Wilks, 1 East, 48.
(b) Bondv. Gibson, 1 Campb. 185; Rapp v. Latham, 2 B. & A.
Extent of the partnership^); or in the words of Lord Kenyon, "one partner may pledge the credit of the firm to any extent." And no private understanding, or express arrangement, among the partners themselves, with the view of limiting their liability, can avail them in respect of third parties without notice (</).
I. HOW PARTNERSHIP LIABILITY MAY BE CREATED.
Persons may become liable as partners, as well where the legal relation of partnership actually subsists inter se, as where the relation is implied from the fact that they have held themselves out to the world as partners (e). And the liability may be founded either on the ground of a general trading partnership, or the course of dealing in a particular transaction. Therefore partnership liability may be considered under two heads, viz. partnership in name and partnership in interest. Under the former are included,—the general case of nominal partners of a firm, whether really interested or not, and the particular case of parties
(c) See 1 East, 48; 2 B. & A. 679. Anon. v. Layfield, 1 Salk. 292.
(d) Waugh v. Carver, 2 H. Bl. 235; Sandilands v. Marsh, % B. & A. 679, per Lord Tenterden, C. J.; Rex v. Dodd, 9 East, 527, per Lord Ellenborough, C. J.; Gleadon v. Tinkler, Holt, N. P. C. 586; Biggs v. Fellows, Dan. & Lloyd, Merc. Ca. 121.
(e) See Dickenson v. Valpy, 10 B. & C. HO; S. C. 5 M. & Ry. 126; Hoare v. Dawes, 1 Dougl. 371; Braithwaite v. Skojield, 9 B. & C. 401; Coll. Partn. p. 3.
holding themselves out as partners in any individual Creation of transaction. Under the latter are included,—the general case of dormant or secret partners in a firm (who are decided to be liable when discovered), and the particular case of parties becoming liable as partners in an individual transaction, on the ground of a participation in the profits and losses of the adventure (/).
1. Partners in Name.
A nominal partner, or one who allows his name Nomina| to be used, is liable, although he may not partici- £"„""'"a pate in the profits (g). Thus a clerk whose name has been used in the firm with his own consent, is liable, though he receive a fixed salary, and have no share in the profits (A). "Where a person allows his name to appear in a firm, exposed to the public over a shop-door, or to be used in printed invoices or bills of parcels, or to be published in advertisements, the knowledge of the party that
(/) A partner in name is held liable on the ground, that, by holding out as partners persons not in fact interested, a false appearance of credit and responsibility might be assumed :—while the liability of partners in interest is founded on this, that they lessen that fund on which the creditor relies for payment.
(g) Ex parte Watson, 19 Ves. Jun. 459. Yet, upon a plea of abatement for nonjoinder, evidence may be given to show that the nominal partner was not really interested. See the distinction, Kell v. Nuinby, 10 B. & C. 21 ; Davenport v. Rackstrow, 1 C. & P. 89.
(h) Guidon v. Robertson, 2 Campb. 302.