Sec 745

When the consideration has been in part received, but its complete reception is made impossible by casus, the price paid cannot be recovered back.7 Thus, where engines were to be constructed for a vessel at sea, to be fitted on her arrival at port, and to be paid for by instalments as the work progressed, and after some progress in the work, and some payments made, the vessel was lost at sea, so that the fitting of the engines was impossible, it was held that the payments made could not be recovered back.1 And with this is to be considered the "uniform though perhaps anomalous rule, that the money to be paid in advance of freight, must be paid though the goods are before payment lost by perils of the sea; and cannot be recovered back after, if paid before the goods are lost by perils of the sea."2

Money paid cannot be recovered back when contract is prevented by casus from completion.

1 Porter V. Bright, 82 Penn. St. 441.

2 Brewster V. Burnett, 125 Mass. 68.

3 Leake, 2d ed. 106; citing Burch-field V. Moore, 3 E. & B. 683; and see Neff V. Horner, 63 Penn. St. 327; and supra, sec 520, 699, et seq.

4 Leake, 2d ed. 106, citing Turner V. Stones, 1 D. & L. 122; Rogers V. Lang-ford, 1 C. & M. 637; Woodland V. Fear, 7 E. & B. 519; see comments by Blackburn, J., in Kennedy V. Mail Co., L. R. 2 Q. B. 580. In Rogers V. Walsh, 12 Neb. 28, where plaintiff was shown to have bought "county warrants" which turned out to be void, because issued without authority of law, he was held entitled to recover back the price.

5 Eagle Bank V. Smith, 5 Conn. 71; Canal Bank V. Bank of Albany, 1 Hill, N. Y. 87. In Jones V. Ryde, 5 Taunt. 488, above cited, the vendor of a forged navy bill was held bound to return the money received for it. In Gompertz V. Bartlett, 2 E. & B. 849, it appeared that a bill of exchange, which had been sold as foreign, was worthless, being domestic and unstamped; the purchaser was held entitled to recover back the price.

6 Frazer V. D'Invilliers, 2 Barr, 200.

7 Supra, sec 314 et seq. 520; Benj. on Sales, 3d ed. sec 336 et seq. 339 a.

Sec 746

We have already seen that by our law a bare sale of goods, supposing such a case to be put in evidence, is governed by the rule caveat emptor, and that in case the vendor turns out to have no title, the purchaser cannot fall back on the vendor for the return of the purchase money. We have also seen that a warranty of title may be implied from the mode of sale, as where a shopkeeper sells goods as his own over his counter.3 In such cases, if the vendor turns out to have no title, and the goods are taken from the purchaser, he may recover from the vendor the price paid by him as money had and received.4 The same rule applies when there is a breach of warranty, express or implied, going to the whole consideration.6 But it is a question of fact for the jury whether the thing delivered was not what was really intended by both parties; and if so, the sale will not be disturbed, and the parties will be held to their bargain.1 Thus, where the defendant, a stock broker, bought for the plaintiff certain certificates of stock, which were afterwards repudiated by the company as issued without authority, though they had for some time been in the market, and their character known, it was held that the buyer was bound by his bargain and could not recover the price.2

When title of goods is warranted, price can be recovered back, and so when there is breach of warranty as to whole consideration.

1 Anglo-Egypt. NaV. Co. V. Rennie, L. R. 10 C. P. 271. See reference supra, sec 300, 326. But see Schwartz V. Saunders, 46 Ill. 18, and comments, supra, sec 326 et seq.

2 Brett, J., Allison V. Ins. Co., L. R. 1 Ap. Cas. 226, adopted in Leake, 2d ed. 112. See supra, sec 520.

3 Supra, sec 230 et seq.

4 Supra, sec 520; Leake, 2d ed. 105; Benj. on Sarles, 3d Am. ed. sec 423, 629, 635-641, 893; Eichholz V. Bannister,.

17 C. B. N. S. 708; Chapman V. Speller, 14 Q. B. 621; Thurston V. Spratt, 52 Me. 202; Shattuck V. Green, 104 Mass. 42.

5 Supra, sec 520; Giles V. Edwards, 7 T. R. 181; Howe Machine Co. V. Willie, 85 Ill. 333; Harvey V. Harris, 112 Mass. 32; Cutts V. Guild, 57 N. Y. 229; and see cases cited supra, sec 221. As to effect of warranty see supra, sec 212 et seq., and see also infra, sec 909 et seq.