21 quantity, or at the time or place required by the terms of the contract,16 or to which the seller has no title," are tendered, the seller has failed to perform the contract and the buyer is released from his promise to perform, because the consideration of his promise has failed,18 and if he has not paid the price he may refuse to do so and defend on that ground.19 If the buyer has paid for the goods, and the goods are not delivered,20 or do not correspond to the terms of the contract, or the title fails,22 the buyer may recover the price;23 or, if part of the goods are delivered and the contract is divisible, that portion of the price in excess of the price of the goods received. If the contract is indivisible, he must return the part received and rescind the contract in toto; and recover the price.25 If, however, he has used a portion of the goods delivered, he cannot rescind for failure of consideration,26 but the provisions of section 44 apply." A hope of a crop is a presently existing thing, and not being susceptible of delivery, its delivery accompanies the act of sale, and the seller does not warrant its continued existence. Losecco v. Gregory, 108 La. 648. 16. Pope v. Allis, 115 U. S. 363; Chapman v. Speller, 14 Q. B. 621; Benjamin on Sales, § 423. 17. 2 Mechem on Sales, 836. 18. 2 Mechem on Sales, 831. First Nat. Bank v. Stringer, 133 Mich. 630. 19. Failure of consideration. Pac. Iron Works v. Newhall, 34 Conn. 67; 2 Mechem on Sales, § 1845. 20. Dalton v. Bentley, 15 Ill. 420; Cleveland v. Sterrett, 70 Pa. St. 204; Nash v. Towne, 72 U. S. (5 Wall.), 689. 21. Meader v. Cornell, 58 N. J. L. 375; Pope v. Allis, 115 U. S. 363; Giles v. Edwards, 7 T. R. 181; Benjamin on Sales, 423. 22. Ledwich v. McKim, 53 N. Y. 307; Wilkinson v. Ferre, 24 Pa. St. 190; Eicholtz v. Bannister, 17 C. B. (N. S.) 708. 23. "It is a principle well established, if the purchaser has paid in part of the purchase money, and the seller refuses to complete his part of the contract, that the purchaser may make us election either to affirm the contract, by bringing an action for its non-performance, or disaffirm it ab initio and bring an action for money had and received to his use." Lyon v. Annable, 4 Conn. 350, 355. The money paid may be recovered in an action of money had and received. Biggerstaff v. Rowett's wharf (1896), 2 Ch. 93 C. A; Devaux v. Conolly, 8 C. B. 640 (part delivery). 24. Devine v. Edwards, 87 Ill. 177; 101 Ill. 138; Hill v. Rewee, 52 Mass. (11 Met.), 268; Wheaton v. Olds, 20 Wend. (N. Y.), 174; Devaux v. Connolly, 8 C. B. 640; Benjamin on Sales, 426. See sec. 44. 25. Morse v. Brackett, 98 Mass. 205; 104 Mass. 494; Mansfield v. Triggs, 113 Mass. 350; Clark v. Baker, 46 Mass. (5 Met.), 452; Miner v. Bradley, 39 Mass. (22 Pick.) 457; Benjamin on Sales, 426. 26. Benjamin on Sales, § 426. A partial failure of consideration may be shown to reduce the damages. Pulsifer v. Hotchkiss, 12 Conn. 234, 241; Andrews v. Wheaton, 23 Conn. 112, 118; Benjamin on Sales, §§ 426, 427. In present sales of specific ascertained property, open to inspection, if the specific goods are delivered, there is no failure of consideration, even if the goods are entirely worthless. 28. There is no failure of consideration to enable a vendee to recover the purchase price, where, in the absence of express warranty or fraud, the goods, when sold, are totally worthless, by reason of a latent defect unknown to both parties; the vendee takes the risk of quality or condition. Dean v. Mason, 4 Conn. 428, 432; Frazier v. Harvey, 34 Conn. 469, 472; Pollard v. Lyman, 1 Day (Conn.), 167; Bryant v. Pember, 45 Vt. 487. In a present sale of specific tobacco hanging in a curing house there were latent defects. "When the contract was made, the defect which was subsequently developed was latent and unknown to both parties, and in the absence of a warranty and fraud the defendant assumed the risk of its quality and condition. It then possessed, or by both parties was sup 28 posed to possess, a particular value in the market, and the defendant received precisely what he agreed to purchase and what the plaintiff in tended to sell, namely, an apparently merchantable quality of tobacco, and therefore there cannot properly be said to have been a failure of consideration. Unless the defendant intended to take upon himself the risk of deterioration in quality from the existence of secret defects he should have guarded against it by requiring a warranty, and the principle of indemnity for failure of consideration which he seeks to enforce is not applicable to the circumstances of the case. Fortune v. Lingham, 2 Camp. 416; Mason v. Chapell, 56 Va. (15 Gratt.), 572; Frazier v. Harvey, 34 Conn. 469." Drew v. Roe, 41 Conn. 41, 50. PART VI INTERPRETATION. Section 71. Variation of Implied Obligations.- Where any right, duty, or liability would arise under a contract to sell or a sale by implication of law, it may be negatived or varied by express agreement, or by the course of dealing between the parties, or by custom if the custom be such as to bind both parties to the contract or the sale. EXPRESS CONTRACT.-The parties may, by the terms of their contract, expressly agree upon and define their rights, duties and liabilities. In such cases, the law will imply nothing. It is only where the parties have failed to define their rights, duties and liabilities that the law intervenes to supply the omission and infer what the parties tacitly understood.2 The parties thus have the power to prevent by express agreement the necessity of the law's implication, the result of which is to negative or vary rights, duties or liabilities which the law would otherwise imply. This section is but a particular application of 1. "The law will not imply anything as to matters about which the parties have expressly agreed." Bucy v. Pitts Agricultural Works, 89 Iowa, 464. See Broome's Legal Max. p. 651. 2. "There is no rule of law to prevent the parties from making any bargain they please." Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B. 309. "Merchants are not bound to make their contracts according to any rule of law." Honck v. Muller (1881), 7 Q. B. D. 92, 103, C. A. "The law, as we have already had occasion to say in reference to various topics, frequently supplies by its implications the wants of agreements between the parties. But it never overcomes express by its implications the express provisions of parties. If these are il legal, the law avoids them; if they are legal it yields to them, and does not put in their stead what it would have put by implication if the parties had been silent. The general ground of a legal implication is that the parties to the contract would have expressed that which the law implies had they thought of it, or had they not supposed it was unnecessary to speak of it because the law provided it; but where the parties do themselves make express provision, the reason of the implication fails." 2 Parsons on Contracts (8th Ed.), p. 631. 3. Ward v. Hobbs (1887), 4 App. Cas. 13, 3 Q. B. D. 150. 5 the general rule expressum facit cessare tacitum. The rule finds familiar illustration in the express varying of the implied obligation of the buyer to pay concurrently with delivery so that the buyer is liable to pay the price before delivery of the goods or the transfer of the title, and the exclusion of implied warranties by express warranties. This right to make express contracts negativing or varying implied rights, duties and liabilities is not absolute and unlimited, but may be expressly or impliedly prohibited or limited by law as against public policy.' 4. Gage v. Tirrell, 91 Mass. (9 Allen), 299, 306; Britton v. Turner, 6 N. H. 481. Expressio unius est exclusio alterius. Co. Litt. 210a. The maxim expressum facit cessare tacitum is never to be applied in the construction of contracts peremptorily and absolutely, so as to exclude from the contract everything not embraced in the stipulations of the parties. Its legitimate and proper use is to shut out implied agreements on the same or similar subjects as those concerning which the contract speaks. Even such exclusion should be extended only so far as to subserve the plain intent of the parties." Gage v. Tirrell, 91 Mass. (9 Allen), 299, 306, 307. "The doctrine that an express pro vision excludes implication does not affect cases in which the express provision appears on the true construction of the contract to have been superadded for the benefit of the buyer." Mody v. Gregson (1868), L. R. 4 Exch. 53. Approved in Drummond v. Van Ingen (1887), 12 App. Cas. 284, 294. 5. White v. Solomon, 164 Mass. 516; see "Conditional Sales," Gen. St. of Conn., § 4864. 6. See sec. 12. The express warranty of soundness in the sale of a horse excludes an implied warranty of any other quality. Budd v. Fairmaner, 8 Bing. 48, 52; Mullain v. Thomas, 43 Conn. 252. The express warranty that the bulk corresponds with the sample excludes an implied warranty of quality, although both the sample and bulk had a latent defect. Parkinson v. Lee, 2 East. 314. See Laing v. Fidgeon, 4 Corp. 169; 6 Taunt. 108; Chanter v. Hopkins, 4 M. & W. 399; Pacific Steam Navigation Co. v. Lewis, 16 M. & W. 783; Prideaux v. Bunnett, 1 C. B. (N. S.) 613, 617; Dickinson v. Gay, 89 Mass. (7 Allen), 29. Express negation of implied warranties-with all faults. Boardman v. Spooner, 95 Mass. (13 Allen), 353; Gossler v. Eagle Sugar Ref. Co., 103 Mass. 331; Whitney v. Boardman, 118 Mass. 242; Shepherd v. Kain, 5 B. & Ald. 240; Schneider v. Heath, 3 Camp. 506. 7. A contract made in advance by a purchaser under a contract of couditional sale to waive his right to a demand in writing and an itemized account, and his rights in regard to redemption and sale given by Mass. Rev. L. Ch. 198, sec. 13, is void as against public policy. "The reason of the rule is that improvident persons in straits to obtain money would be likely to make contracts, the literal enforcements of which would work great hardship on them, to the detriment of the public as well as themselves." Desseau v. Holmes, 187 Mass. 486, 488. See, also, Bayley v. Bailey, 71 Mass. (5 Gray), 505; Waters v. Randall, 47 Mass. (6 Met.), 479; Corey v. Griffen, 181 Mass. 229; Wall v. Met. Stock Exch., 168 Mass. 282. USAGE.-Implied rights, duties and liabilities may also be negatived or varied by the course of dealings between the parties, or the custom of merchants; as the custom that upon the sale by sample of berries in bags, the sample represents the average' quality of the entire lot, and not the average quality of each bag; that the buyer may rescind the contract and return the goods within a given time for breach of warranty;10 that when cider is sold in 8. "A commercial usage, having existed a sufficient length of time to have become generally known, and to warrant a presumption that contracts are made in reference to it, is evidence of the intention of the parties and illustrative of their agreement. Parr v. Anderson, 6 East, 202; Lethulier's Case, 2 Salk. 443; Noble v. Kennoway, 2 Doug. 510; Halsey v. Brown, 3 Day (Conn.) 346; Vallance v. Dewar, 1 Camp. 503; Coit v. Com. Ins. Co., 7 Johns (N. Y.), 385, 390." Barber v. Brace, 3 Conn. 9, 13. To the same effect is Crosby v. Fitch, 12 Conn. 410. "In the absence of clear stipulations in contracts, usage of trade or business is often proved, to show the actual intent and purpose of the parties, though not expressed. Such usage must be lawful and reasonable, and so certain and general, in the place where the business is to be done, or the contract performed, or among those engaged in such business, that the parties to the contract may reasonably be supposed to know it, and to act in reference to it. In such case it may be taken that the usage entered into and became part of the contract. A general usage affecting any branch of business, furnishes good evidence of what is regarded as right and reasonable in that respect, and when it is conformed to, negligence or misconduct cannot be imputed. Barber v. Brace, 3 Conn. 9; Casco Mfg. Co. v. Dixon, 3 Cush. 408." Leach v. Beardslee. 22 Conn. 404, 409. 9. Lauchheimer & Sons v. Jacobs, 126 Ga. 261; Schnitzer v. Oriental Print Works, 114 Mass. 123; Leonard v. Fowler, 44 N. Y. 289. If manufactured goods are sold by sample by a merchant who is not a manufacturer, and both the sample and the bulk of the goods contain a latent defect, there is no implied warranty against the defect, and evidence is inadmissible to show that by the usage of merchants, the seller is responsible therefor. Dickinson V. Gay, 89 Mass. (7 Allen), 29. Citing Parkinson v. Lee, 2 East, 313; Sands v. Taylor, 5 Johns. (N. Y.) 395. 10. Randall v. Kehlor, 60 Me. 37. Evidence that according to the custom of merchants, goods were returned by purchasers at auction to the owners, and received by them, an allowance made after the expiration of three days, if within a reasonable time after the sale, is admissible. Atkins v. Howe, 35 Mass. (18 Pick.), 16. Conversely, when the law implies a warranty, it cannot be contradicted by usage. The usage by which the manufacturer is held not to warrant against latent defects where the law implies a warranty is held void. "There is no necessity for such usages, because if the parties agree that there shall be a warranty where the law implies none, they can insert the warranty in the bill of sale, or if the manufacturer sells without warranty, he can so express it; but if such usages were to prevail, they would be productive of misunderstanding, litigation and frequent injustice, and would be deeply injurious to the interests of trade and commerce." Dickinson v. |