184 THE SALE OF TIMBER PRODUCTS 



chaser of logs has an opportunity to inspect them before pay- 

 ment therefor, or before the logs are manufactured into lum- 

 ber, the courts will ordinarily reject a contention that there 

 was an implied warranty that the logs were straight and 

 sound or adapted to the purposes to which the purchaser 

 intended to devote the material produced therefrom. l Even 

 a statement in a contract as to the amount of -logs sold may 

 be construed as a mere estimate and not a warranty, 2 and 

 where both parties could read and both had signed a con- 

 tract, it was held that proof of a misrepresentation by one 

 party as to the contents of the written contract, without evi- 

 dence that the other party was deprived of an opportunity 

 to read it, or that the first party had fradulently prevented 

 the other from reading it, did not establish the kind of legal 

 fraud necessary to make the contract void. 3 Where there 

 were representations as to the quality of lumber to be sold, 

 but a subsequent refusal on the part of the vendor to guar- 

 antee the grades, a Louisiana court held that one purchasing 

 after such refusal could not establish a breach of warranty 

 as to grades. 4 An agreement for the substitution of a cheap- 

 er grade of lumber for that called for by a contract and the 

 acceptance of it has been held by a Mississippi court not to 

 necessarily signify that the purchaser was to pay the same 

 price for the cheaper grade ; 5 but a Texas court has expressed 

 the opinion that in the- absence of evidence to the contrary 

 the legal inference would be that the purchaser agreed to 

 take the cheaper grade at the same rate. 6 



132. Legal Delivery and Transfer of Title. The 



general rule regarding sales of personal property is that the 

 seller's title divests and that of the purchaser vests at the 

 moment of the transfer of the right of possession from the 

 vendor to the vendee. This legal delivery does not neces- 

 arily involve a transfer of the physical possession of the 



1. Brewer v. Arantz, (Ala.) 26 So. 922; Maxwell v. Lee, 34 Minn. 511. 27 N. W. 



196; Ketchum v. Stetson Etc. Mill Co. 33 Wash. 92, 73 Pac. 1127. 



2. Switzer v. Pincomming Mfg. Co., 59 Mich. 488, 26 N. W. 762. 



3. Dunham Lbr. Co. v. Holt, (Ala.) 26 So. 663. 



4. E. B. Williams & Co. v. Louisiana Lbr. Co. (La.) 29 So. 491. 



5. Hunter v. Lake Mills (Miss.) 29 So. 519. 



6. Florida Athletic Club v. Hope Lbr. Co., (Tex. Civ. App.) 44 S. W. 10. 



