description" than is here suggested as proper, including every case where the buyer has not seen the goods but relies solely on the description given by the seller. By this definition, even though there can be no question as to the identity of the goods in regard to which the parties were dealing, the sale is one by description if any attributes are ascribed to the property by the seller.97 The distinction is artificial between such a case and a case where the buyer sees the goods and agrees to buy what he sees, relying on a description given by the seller, the truth of which inspection cannot determine. Whether the buyer sees the goods or not, it is the description which induces him to buy, but it is not the description which identifies the goods.98 The question is important, however, only so far as the transfer of title is concerned. The words of description, if an inducement of the purchase, constitute an express warranty, whether the goods are identified otherwise or not.99

§ 1009. Warranty in sales by description.

In case of a contract to sell goods by description, using that term in the narrower sense suggested in the preceding section, namely, where the description is all that fixes the

97 The case is criticised on this ground in Benjamin, Sale (5th Eng. Ed.), 613. See also Wren v. Holt, [1903] 1 K. B. 610. In Cotter v. Luckie, [1981] N. Zeal. L. R. 811, the court called a sale of a bull at auction a sale by description and though the buyer removed the bull and kept him for four days until he discovered that he was impotent, it was held title never passed because the animal was only "nominally" a bull.

98 In Thornett v. Beers, [1919] 1 K. B. 486, Bray, J., intimates that there may be a sale by description though the buyer has seen the goods, if he relies partly on the description.

In Gage v. Carpenter, 107 Fed. 886, 47 C. C. A. 39, the case disclosed a sale of all the ice in five icehouses. This ice could not be inspected at

the time of the sale. Later it turned
out that the ice was in large part snow
ice and not merchantable.
It was
held that there was no warranty be-
cause the buyer did not rely on the
seller's judgment. The court dis-
tinguished the case of Murchie v.
Cornell, 155 Mass. 60, 29 N. E. 207,
14 L. R. A. 492, 31 Am. St. Rep. 526,
on the ground that in one view of
the evidence in that case which the
court held possible, the bargain was
a contract to sell unidentified ice.
"The case decided nothing concern-
ing a sale of specific ice like the sale
here before us." The distinction
seems sound, but Gage v. Carpenter
is inconsistent with Varley v. Whipp
infra, n. 5. Cf. also Campion v. Mars-
ton, 99 Me. 410, 59 Atl. 548.
99 See supra, § 969.

identity of the goods bargained for, there is no doubt that the buyer may refuse to take goods tendered if they do not fulfill the description, for the goods are not within the terms of his promise to buy. It is for this reason that English writers and others refer to the stipulation in regard to description as a condition. It is, however, also a promise, and that the seller is liable if he fails to furnish goods of the kind described, is clear.2

Whether acceptance of goods which do not conform to the description discharges this liability of the seller has previously been considered. In case the parties attempt to make an executed sale by description, again using the term in the narrow sense previously suggested, the same principles apply. The property cannot pass if the description does not apply to the goods in question because there has been no assent to give or receive the property in goods other than those described. Further, as an attempted sale imposes on the seller the obligation of one who contracts to sell he is liable for failure to deliver the goods he agreed to sell. If the term "contract to sell or sale by description" is used in the broad sense suggested by the English court, a difference must be observed. It is entirely possible for the goods in regard to

1 Chanter v. Hopkins, 4 M. & W. 399; Bowes v. Shand, 2 A. C. 455, 480; Azemar v. Casella, L. R. 2 C. P. 431; Vigers v. Sanderson, [1901] 1 K. B. 608; Manbre Saccharine Co. v. Corn Products Co., [1919] 1 K. B. 198; Pope v. Allis, 115 U. S. 363, 29 L. Ed. 393; Timken Carriage Co. v. Smith, 123 Iowa, 554, 99 N. W. 183; Morse v. Moore, 83 Me. 473, 22 Atl. 362, 13 L. R. A. 224, 23 Am. St. Rep. 783; Gould v. Stein, 149 Mass. 570, 5 L. R. A. 213, 14 Am. St. Rep. 455; Alden v. Hart, 161 Mass. 576, 37 N. E. 742; Day v. Mapes-Reeve Co., 174 Mass. 412, 54 N. E. 878; Fullam v. Wright & Colton Co. 196 Mass. 474, 82 N. E. 711; Northwestern Cordage Co. v. Rice, 5 N. Dak. 432, 67 N. W. 298, 57 Am. St. Rep. 563; Boothby v. Scales, 27 Wis. 626; Fairfield v.

4

Madison Mfg. Co., 38 Wis. 346. Where a contract for starch stated that it was to be in 280 lb. bags, a tender in 220 lb. bags was insufficient. Manbre Saccharine Co. v. Corn Products Co., [1919] 1 K. B. 198.

2 Heilbutt v. Hickson, L. R. 7 C. P. 438; Johnston v. Lanter, 87 Kans. 32, 123 Pac. 719; Munford v. Kevil, 109 Ky. 246, 58 S. W. 703; Lenz v. Blake, 44 Or. 569, 76 Pac. 356; Handy v. Roberts (Tex. Civ. App.), 165 S. W. 37. And see cases cited in the preceding note, and supra, §§ 1000-1002. 3 See supra, §§ 700 et seq.

Lunn v. Thornton, 1 C. B. 379 Bates v. Smith, 83 Mich. 347, 47 N. W. 249; Battle Creek Bank v. First Bank, 62 Neb. 825, 88 N. W. 145, 56 L. R. A. 124.

5

which the parties are dealing to be identified, although the buyer does not see them and relies on the description by the seller. In such a case the English court holds that the property in the goods does not pass. That court was without doubt led to this result by its doctrine that the buyer of goods who has taken title cannot rescind the title for breach of warranty, and in jurisdictions where such a doctrine is held,' undoubtedly the buyer must be compelled to seek his remedy in damages against the seller unless the unnatural meaning which the English court has given to the term "sale by description" is adopted. In jurisdictions where rescission is allowed for breach of warranty as provided by the Sales Act, there is no necessity of adopting the strained nomenclature of the English court in order to reach the same result. If the goods are identified the property in them will pass if the parties so intended, but if a description of them was also given by the seller and relied on by the buyer, there will be a breach of warranty if the description is untrue and the buyer may rescind the transfer of title. Even if the broad definition of sales by description which the English court has adopted be accepted, there are still many cases where the seller describes the goods which cannot be called sales by description. Thus, if the goods are seen by the buyer and his agreement is to purchase those goods, it is not a case of sale by description though the buyer's inspection could reveal nothing because the defect in quality was latent, and the seller's description was the inducement to the sale. But as has already been seen, such a description amounts to a warranty. It is an advantage of the doctrine allowing rescission for breach of warranty that

Varley v. Whipp, [1900] 1 Q. B. 513. In this case the parties were dealing in regard to a reaping maIchine which the defendants had never seen and which the plaintiff said was new the previous year, and had been used to cut only fifty or sixty acres. These statements were untrue, and though the machine was delivered it was held the title never passed. It can hardly be fairly said, however, that the machine delivered to the buyer was

9

it will generally render unnecessary any nice distinction between cases where the description is the agreed means of identifying the goods sold and cases where the description is merely an assertion of qualities of goods otherwise identified. In either class of cases, where rescission is allowed, if the buyer has not received the goods he need not take them unless they conform to the description, and if he has taken them he may promptly return them. He may also bring an action against the seller if he fails to deliver such goods as he agreed.

§ 1010. Sales to arrive.

A bargain either in the form of a contract to sell or of an immediate sale, if in terms conditional upon the arrival of the goods, may by general usage be called a "sale to arrive." 10 In a contract to sell, the arrival of the goods is a condition precedent to any sale. In a sale, if the goods existed at the time of the bargain but do not arrive, the condition is subsequent, the property in the goods transferred by the bargain being divested by the failure to arrive. If the vessel arrives but without the goods which were the subject of the bargain, whether the seller's contract was conditional not simply on the arrival of the named vessel but also of the goods is a question of fact. But generally as the power of the seller to deliver the goods and the value of the bargain to the buyer both depend on the arrival of the goods, the true construction will be that the condition is not satisfied by the arrival of the vessel.11 There may, however,

10 It is true that in Neldon v. Smith, 36 N. J. L. 148, the court said of a sale to arrive: "The contract is executory and does not pass the property in the goods to arrive. It is merely an agreement for the sale and delivery of the articles named at a future period when they shall arrive," and similar statements may be found in other cases. Shields v. Pettie, 4 N. Y. 122; Dike v. Reitlinger, 23 Hun, 241. Doubtless there is no liability on either side unless the goods arrive, which is the point courts have been primarily interested in establishing. For this

be cases where the only point it is immaterial whether the title passed subject to be divested or whether the bargain was executory. It seems impossible to doubt, however, that the parties may pass title to existing goods subject to a condition subsequent if the goods do not arrive; and where goods in course of transportation are specifically described, and the parties expressly state that they have been bought and sold, it seems most accurate to give their language its natural meaning.

11 In Boyd v. Siffkin, 2 Campb. 326, the bargain was for the sale of "32

condition is that of the arrival of the vessel, so that if the vessel arrives without the goods the seller is not protected from liability on his promise to sell. 12 The converse case is not so clear. Suppose goods arrive but the vessel does not, or the goods arrive and the vessel also arrives but not carrying the goods. Here again the question is one of construction. If the parties clearly indicate by their language that the goods must arrive in the named vessel, there will be no liability otherwise. 13 As it is the arrival of the goods, however, which makes it possible to perform the contract, and the arrival of the vessel merely affects the means or time of performance, a contract may well bear the contrary construction.14