condition or warranty is negatived. But it has been judicially declared that a contract of sale of letters patent will not be construed as a sale of whatever right the seller had under the letters, the buyer assuming the risk of their validity, unless there is very clear evidence that the parties intended to make such an agreement. On the other hand, an eminent English writer asserts: "But in the sale of a patent every one knows that the right to a lawsuit is exactly what is bought. . . . The purchaser as a rule buys, not on the faith of any statement made by the patentee, but on his own judgment as to its worth, taking his chance of being enabled to establish its validity in a court of law." 2

163. Sale of Goods not in Vendor's Possession. - It has been held to be negatived, also, when the goods offered for sale are not in the seller's possession. The judicial deliverances in support of this view, however, are mainly dicta. Ordinarily the language of the contract and the attending circumstances, exclusive of the seller's lack of possession, will disclose the intention of the parties.1

164. To furnish the Agreed Article. -When the parties contract for the sale and purchase of a specific chattel, which each can examine and judge of for himself, this engagement of the seller is satisfied by the delivery of such chattel. The doctrine of caveat emptor applies, and the buyer must take the agreed

1 Herzog v. Heyman, 151 N. Y. 587; 45 N. E. 1127 (1897); Burdick's Cases on Sales, 682. But "the purchaser of machinery is not entitled to rescind the contract merely because the patents under which it is manufactured are in dispute.' Computing Scales Co. v. Long, 66 S. C. 379; 44 S. E. 963; 65 L. R. A. 294 (1903), and cases cited. Cf. The Electron, 74 Fed. 689; 21 C. C. A. 12 (1896).

2 Campbell on Sales (2d ed.), 449, citing Smith v. Cropper, 10 App. Cas. 249 (1884).

Huntingdon v. Hall, 36 Me. 501 (1853); Scranton v. Clark, 39 N. Y. 220 (1868).

Eichholz v. Bannister, 17 C. B. N. s. 708 (1864), opinion of Byles, J.; Burdick's Cases on Sales, 279. See Hartley v. Rotman, 200 Mass. 372; 86 N. E. 903 (1909), applying Uniform Sales Act, § 13 (1).

Salisbury v. Stainer, 19 Wend. (N. Y.) 159 (1838); Burdick's Cases on Sales, 295; Barnard v. Kellogg, 10 Wall. (U. S.) 383 (1870); J. I. Case Threshing Mach. Co. v. Bailey, 89 Ark. 108; 115 S. W. 949 (1909); Wieland Bros. v. Chlopeck Fish Co., 55 Wash. 508; 104 Pac. 789 (1909).

article for better or for worse,' in absence of legislation prohibiting the sale of such article.2

165. If, however, the character of the article cannot be discovered upon a reasonable examination by the buyer, and the parties are treating, not for a specific chattel, whatever its character may turn out to be, but for a chattel possessing certain characteristics, then its possession of those characteristics is of the essence of the contract. The seller is bound to furnish, and the buyer has a right to demand, not simply a particular mass of materials, but that mass possessed of the stipulated characteristics. Accordingly, if the subject-matter of the contract is a crop of Skirving's Swede turnip-seed then growing on certain land; or a particular parcel of blue vitriol or of Paris green; or specified stacks of hemp; or certain letters patent, the seller does not satisfy his obligations by delivering that crop of seed, if it is in fact not Skirving's Sweed turnip-seed;❜ or that particular parcel of vitriol, if it is saltsburger and not blue vitriol; or the particular green substance, if it is chrome and not Paris green; 5 or the specified stacks, if they are composed mainly of weeds and not of hemp; or the described letters patent, if they are void, as in infringement of another patent." But this doctrine does not extend to engagements which are collateral or non-essential to the sale contract.8

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1 Kirkpatrick v. Gowan, 9 Ir. R. C. L. 521 (1875). ["A stack of Cumberland and small Welsh coal mixed, lying in a shed in my yard," and no allegation that this description was an essential term of the contract.] And he has a right to refuse any other article. Webster Co. v. Dryden, 90 Ia. 37; 57 N. W. 637 (1894); cf. Briggs v. Hunton, 87 Me. 145; 32 At. 749 (1895); Burdick's Cases on Sales, 297; Thompson v. Miser, 82 Ohio St. 289; 92 N. E. 420 (1910). Sale of stallion upon inspection by one who was not a raiser or dealer in stallions for breeding purposes. Kinkle v. Winne, 67 Kan. 100; 72 Pac. 548 (1903).

2 Church v. Knowles, 101 Me. 264; 63 At. 1042 (1906); Johnson County Sav. Bk. v. Walker, 80 Conn. 15; 69 At. 15 (1908). Allan v. Lake, 18 Q. B. 560 (1852);

113 C. C. A. 329 (1912).

Malone v. Hastings, 193 Fed. 1;

Hawkins v. Pemberton, 51 N. Y. 198 (1872).

5 Jones v. George, 61 Tex. 345 (1884).

• Foggs' Adm'r v. Rodgers, 84 Ky. 559; 2 S. W. 248 (1886).

7 Herzog v. Heyman, 151 N. Y. 587; 45 N. E. 1127 (1897); Burdick's Cases on Sales, 682. Accord, Union Bk. of Richmond v. Oxford & C. L. Ry., 143 Fed. 193; 74 C. C. A. 323 (1906).

8 Jardine, Matheson Co. v. Huguet Silk Co., 203 N. Y. 273; 96 N. E. 449

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166. This Rule is applied most frequently to Contracts to sell. -The rule, that when goods are sold by description there is an implied condition that they shall correspond with the description, is much more frequently applied to agreements to sell than to contracts of present sale.1 If the buyer orders "Calcutta linseed," or "xx pipe-iron," or "strictly No. 1 long berry sound red wheat," or "steel scrap consisting of clippings and punchings from the steel plates and angles and beams used in the construction of the U. S. cruisers built by the seller," the seller is bound to appropriate to the contract goods which answer to that description. "When the subjectmatter of a sale is not in existence or not ascertained at the time of the contract, an undertaking that it shall, when existing or ascertained, possess certain qualities is not a mere warranty, but a condition, the performance of which is precedent to any obligation upon the vendee under the contract; because the existence of those qualities being part of the description of the thing sold becomes essential to its identity, and the vendee cannot be obliged to receive and pay for a thing different from that for which he contracted." 6

(1911); certificates as to qualities had the name of the person to whom the certificates were issued cut out; and some of the silk was not imported by the seller.

The rule is almost necessarily confined to executory contracts, for where goods are identified and agreed upon at the time the contract is made, they cannot, in the ordinary case, be said to be sold by description. Brown's Sale of Goods Act (1st ed.), p. 63.

2 Wieler v. Schlizzi, 17 C. B. 619 (1856); Burdick's Cases on Sales, 299. Dounce v. Dow, 64 N. Y. 411 (1876).

Fogel v. Brubaker, 122 Pa. St. 7; 15 At. 692 (1888); cf. Shisler v. Baxter, 109 Pa. St. 443 (1885), holding that on a sale of "Wakefield cabbage-seed" by dealer, there is no undertaking that the seed corresponds with the description. Gardner v. T. J. Winter & Co., 117 Ky. 382; 78 S. W. 143 (1904).

' Columbian Iron Works v. Douglas, 34 At. 1118; 84 Md. 44 (1896).

Pope v. Allis, 115 U. S. 363, 371, 372; 6 Sup. Ct. 69 (1885); Burdick's Cases on Sales, 305; Markham Warehouse & El. Co. v. Plotner & Stoddard, - Tex. Civ. App. ; 140 S. W. 356 (1911). Seller of binding twine of a specified brand does not perform by tendering twine of a different brand, though of a better quality. Am. Canning Co. v. Flat Top Grocery Co., 68 W. Va. 698; 70 S. E. 756 (1911).

In such cases the burden is on the seller to show that the goods which he tenders conform to the contract.1

167. Sale with all Faults. - The description of the goods does not cease to be of the essence of the contract, although the sale is with all faults. This additional provision means "such faults or defects as the article sold might have, retaining still its character and identity as the article described." 2

But if the seller stipulates that the goods shall be taken by the buyer without any warranty express or implied, the description of the goods does cease to be of the essence of the contract.3

168. Sale by Description and by Sample. — The contract may be for the sale of goods by description, and also by sample: when there are two implied conditions, one that the goods shall conform to the description, and the other that they shall conform to the sample. In fact, a sale by sample is but a species of sale by description. The sample is employed instead of words as a means of communication between the parties. Its function is to inform the buyer

1 Bauer Cooperage Co. v. C. L. Tartar Co., 144 Ky. 728; 139 S. W. 947 (1911).

Whitney v. Boardman, 118 Mass. 242, 247 (1875); cf. Taylor v. Bullen, 5 Exch. 778 (1850). Ship described as "teak-built," but to be taken with all faults and without allowance for any defect or error whatever. It was not teak-built, but this misdescription, it was held, was nullified by the subsequent stipulation as to "any error whatever." Also Ward v. Hobbs, 4 App. Cas. 13 (1878).

Blizzard Brothers v. Growers' Canning Co., 152 Ia. 257; 132 N. W. 66 (1911); Leonard Seed Co. v. Crary Canning Co., 147 Wis. 166; 132 N. W. 902 (1911).

Bach v. Levy, 101 N. Y. 511; 5 N. E. 345 (1886); Gould v. Stein, 149 Mass. 570; 22 N. E. 47 (1889); Burdick's Cases on Sales, 308; Ungerer & Co. v. Cheese & Frith Co., 155 Mo. App. 95; 134 S. W. 56 (1911); Lissberger v. Kellogg, 78 N. J. L. 85, 88; 73 At. 67 (1909), referring to § 14 of the Uniform Sales Act as declaratory of the common law. Stewart v. Voll & Son, 81 N. J. L. 323; 79 At. 1041 (1911). In Parker v. Palmer, 4 B. & Ald. 387, 391 (1821), it is said: "The words 'per sample' are not a description of the commodity sold, but a mere collateral engagement on the part of the seller that it shall be of a particular quality." This view has been discarded in England, and is unsound in principle. See Borden v. Fine, 212 Mass. 425; 98 N. E. 1073 (1912).

of the essential characteristics of the article he is contracting

169. When a Sale is by Sample. -A specimen of an article may, indeed, be used during the negotiation for a different purpose. It may be presented by the seller and examined by the buyer, to enable the latter "to form a reasonable judgment of the commodity." In this case the seller does not engage for the conformity of the bulk to the sample. His only undertaking is that the sample is an honest and not a fraudulent one; 3 that it has been taken from the bulk in the usual way. The sale is made upon inspection, not by description. Caveat emptor applies."

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To which of these classes a particular transaction belongs is a question of fact, and often a difficult one. If the contract has been committed to writing, and no reference is made to a sample, it is clear that conformity of the bulk to the sample is not an agreed term. So if the buyer is required to inspect

the goods for himself before buying."

1 Drummond v. Van Ingen, 12 App. Cas. 284, 297 (1887); Burdick's Cases on Sales, 311; Remy, Schmidt & Pleissner v. Healy, 161 Mich. 266; 126 N. W. 202 (1910).

2 Bradford v. Manly, 13 Mass. 138 (1816); Burdick's Cases on Sales, 315; Russell v. Nicolopulo, 8 C. B. n. s. 362 (1860); H. Kupfer & Co. v. Pellman, 121 N. Y. Supp. 1081; 67 Misc. 149 (1910), quoting text; Dickinson Fire & Pressed Brick Co. v. F. T. Crowe & Co., 63 Wash. 550; 115 Pac. 1087 (1911).

Gardiner v. Gray, 4 Camp. 144 (1815); White v. Dougherty, 18 Ret. (Sc. Sess. Cas. 4th ser.) 972 (1891).

Waring v. Mason, 18 Wend. (N. Y.) 425, 434 (1837).

Cf. Williamson v. Holt, 147 N. C. 515; 61 S. E. 384 (1908).

• Beirne v. Dord, 5 N. Y. 95, 99 (1851); Sale of Goods Act, § 15, Uniform Sales Act, § 16; Meyer v. Everett Pulp & Paper Co., 193 Fed. 857 (1912); Borden v. Fine, 212 Mass. 425; 98 N. E. 1073 (1912).

7 Ames v. Jones, 77 N. Y. 614 (1879); Atwater v. Clancy, 104 Mass. 369 (1871); Ankeny v. Young Bros., 52 Wash. 235; 100 Pac. 736 (1909); a question for the jury in this case.

Meyer v. Everth, 4 Camp. 22 (1814); Imperial Portrait Co. v. Bryan, 111 Ga. 99; 36 S. E. 291 (1900), citing and applying this statement in the text. A bill of parcels, or memorandum of certain facts connected with the transaction, is not a written contract. Bradford v. Manly, 13 Mass. 139 (1816). Burdick's Cases on Sales, 315; American Canning Co. v. Flat Top Co., 68 W. Va. 698; 70 S. E. 756 (1911), citing Harrison v. McCormick, 89 Cal. 327; 23 Am. St. R. 469 (1891).

• Barnard v. Kellogg, 10 Wall. (U. S.) 383 (1870); White v. Dougherty,