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property as good or sound, the buyer is relieved from filling his part of the contract.
Warranty.-If the seller of goods makes any assertion respecting the kind, quality, or condition of the article upon which he intends the purchaser should rely as a fact, and upon which he does rely, that is a warranty. Where goods are sold by sample there is an implied warranty that the goods correspond with the sample.
It is a general rule that the employer will be bound by the warranty of his clerk or shopman, if acting within the scope of his authority.
Warranty must be at the time of sale; if it be made after, it is void for want of consideration.
Fraud on Part of the Buyer.-If the buyer has been guilty of such fraud as entitles the seller to rescind the sale; or if the buyer is actually insolvent; or if he has misrepresented his condition or made false pretenses in buying; or if he be so embarrassed that in reasonable probability he cannot pay for the goods, the seller has a right to stop them in transit.
If the goods were sent to pay a debt of the seller's they cannot be stopped.
Sales at Auction.-A public sale of property to the highest bidder is an auction sale and must be so conducted that free and fair competition may be had. Bybidding and combination bidding is unlawful and renders the sale voidable at the option of an honest buyer.
Sale of "Good-Will."-By good-will is meant a man's business or the business of a firm as distinguished from the stock in trade or capital. It is the reputation which a firm acquires by their business methods. A purchaser of a business including the good-will should insist upon a contract specifying the amount he shall receive as damages should the seller become interested in a competing business.
The word tort is used to describe that branch of the law which treats of the redress of injuries, which are neither crimes nor arise from the breach of contracts. This branch of the law is of growing interest to the business man because of the frequent institution of suits by employes for damages incurred in service.
Doctrines of Ordinary Prudence.- Ordinary prudence is generally that course of conduct which prudent persons take for the safety and protection of their own persons from an injury which is liable to occur to them in the place and under the circumstances which surround them. This is opposed to negligence which must be shown by the plaintiff in an action for damages.
Liability of Employer.-A master owes to his servant certain inalienable non-assignable duties peculiar to that relationship, based in general upon the duty not to expose him to unnecessary or unreasonable risks. The servant has a right to assume that his employer has performed these duties. They consist in the exercise of reasonable care with reference to (1) providing and maintaining suitable appliances, machinery, and places to work; (2) providing proper fellow servants in sufficient number; (3) making and promulgating rules for the regulation of servants and giving warning and instruction especially to youthful and inexperienced employes with reference to danger; (4) inspecting appliances, machinery, and places to work, supervising fellow servants, and securing the observance of rules. However, a master is liable only for failure to exercise reasonable care in the performance of his duties to his servant. He is not an insurer.
Ordinary and Extraordinary Risks.-The law assumes that a servant possesses ordinary knowledge of and will exercise ordinary prudence in the occupation which he undertakes and, excluding the negligence of fellow servants, assumes the ordinary risks of his employment. If the risks of an employment are extraordinary and are knowingly assumed by the servant, he cannot recover from his employer.
Strikes and Boycotts.-Webster's Imperial Dictionary defines a strike as, “The act of workers in any branch of industry discontinuing work with the object of inducing their employer to concede certain demands made by them; sometimes marked by violence on the part of those striking or their sympathizers, or by active attempts to injure the business of the employer, as by boycott, intimidation, and the picketing of the employer's place of business to prevent the employment of other help, and to dissuade those employed from remaining at work.” In order to come within the law of torts and be actionable as such, strikes and boycotts must have as essential elements (1) A combination of persons to do harm to another; (2) malicious intent; (3) damage to complainant. The common-law right of laborers to combine and use peaceful means to advance their interests, and, more specifically, the price of labor, has been generally broadened by statute. When such a statute extends the common-law rights as to combinations of labor, the courts recognize corresponding changes in the rights of employers to combine to resist employes. Employers' unions, formed in opposition to employes' unions are lawful, not being made to lower the price of labor. As regards the act of strikers leaving in a body, such is held to be a combination in itself wrongful and illegal. The intent to injure another without lawful provocation must, however, be clearly shown.
Legal authorities are not in accord as to what constitutes a (legal) voluntary association and an (illegal) boycott. The rule having most ample support, is that while a trader may lawfully engage in the sharpest competition with those in a like business by holding out extraordinary inducements, by representing his own wares to be better and cheaper than those of others, yet when he oversteps that line, and commits an act with the malicious intent of inflicting injury upon his rival's business, his conduct is illegal, and if damage results from it, the injured party is liable to redress.
COMMERCIAL PAPER Negotiable Instruments.-Practically every written contract or agreement involving the payment of money is negotiable in the sense that the owner can sell it to another and that the purchaser can enforce it to the same extent that the original owner could if he had not assigned it. Bonds and mortgages, contracts for sales, leases, etc., would be negotiable, but in the strictest sense there are but three forms of negotiable commercial paper in common use-checks, promissory notes, and bills of exchange or drafts.
Form.-While there is no regular prescribed form for these instruments, there are certain orderly forms which are usually followed and there are certain prerequisites without which they are non-negotiable instruments: (1) They must be in writing (ink, pencil, or type impressions), and signed by the maker or drawer; (2) they usually state the place and date of making; (3) they must be payable on demand, at a fixed time, a determinable future time or at a time certain to occur; (4) the promise to pay must be unconditional and "to order” or “to bearer," and in money; (5) a place of payment is usual, if not stated, the place or business or residence of the maker or the acceptor or drawee is assumed; (6) they must not show any alterations-erasures or additions-on their face; (7) they must not carry on their face any information that would lead a prudent man to inquire further as to their validity; (8) the time of payment expressed in the in. strument must not have passed.
Consideration.-It is not positively necessary to express consideration in negotiable papers, but it is best to do so. In the hands of an innocent holder the law assumes that there was a valuable consideration.
Promissory Notes.-A promissory note is a written promise to pay a certain sum of money at a specified time. There are three kinds, individual promissory notes, or those made by one party to pay another a certain sum of money at a specified time; joint promissory notes, the same as the foregoing, only signed by two or more parties, in which case all are liable jointly but not severally; joint and several promissory notes, in which two or more parties severally and separately agree to pay a certain sum at a specified time. Each signer of such note is responsible for the whole pay. ment.
Negotiability.-A paper is made negotiable by the words "or bearer," or "or order.” In the former case endorsement is not necessary or customary except in
the case of forwarding banks: in the latter case it is negotiable only by the endorsement of the payee.
Holder for Value.-Negotiable paper passing into the hands of an innocent holder for fair and full considera. tion and in good faith carries with it a good title, providing (1) The instrument is negotiable; (2) was ob tained in good faith and for a valuable consideration before maturity; (3) the purchaser must not be aware of any legal or equitable defense.
Parties to Negotiable Instruments. --The rule goyerning the capacity of a party to incur liability on commercial paper is the same as that holding good regarding contracts.
Protests.-A protest of a note is a formal statement by a notary that the paper was presented for payment and payment refused. When a note is not duly paid on presentation, it is said to be “dishonored" and is taken to a notary public, who again presents it, and, if not paid, he notes its non-payment, and afterwards draws up a formal protest, that legal proceedings may be taken for recovering the amount due. Should there be indorsers and no protest is made, the indorsers in some states are released.
The holder of a note may give notice of protest either to all the previous indorsers or only to one of them; in the latter case he must select the last indorser, and the last must give notice to the last before him, and so on.
Where notice of protest is duly addressed and deposited in the postoffice, the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails.
Where days of grace are allowed by statute on notes, they are not considered due until the expiration of the days of grace. If a note is presented and payment demanded on the last day of grace, and payment refused, the maker is in default, and notice of dishonor may forthwith be given to the indorser. For days of grace allowed by the statutes of different states, see Interest Laws and Statutes of Limitation.
A note made payable at a bank and held there for payment until the usual hour for closing, need not be