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freedom from incumbrances is infringed, i.e., it would seem (on the analogy of indemnities), when the buyer is damnified by payment (u).

S. 12 (3).

13. Where there is a contract for the sale of Sale by description. goods by description, there is an implied condition that the goods shall correspond with the description; and if the sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.

Bowen, L.J., makes (v) the following remarks on the subject. of implied warranties in general, which form an instructive introduction to the consideration of this and the two following sections:-"An implied warranty, or, as it is called, a covenant in law, as distinguished from an express contract or express warranty, really is, in all cases, founded upon the presumed intention of the parties and upon reason. The implication which the law draws from what must obviously have been the intention of the parties, the law draws with the object of giving efficacy to the transaction, and preventing such a failure of consideration as cannot have been within the contemplation of either side. . . . I believe if one were to take all the cases. . . it would be found that in all of them the law is raising an implication from the presumed intention of the parties. . . . In business transactions,

. what the law desires to effect by the implication is to give such business efficacy to the transaction as must have been intended, at all events, by both parties, who are business men— not to impose on one side all the perils of the transaction, or to emancipate one side from all the chances of failure, but to make each party promise in law as much, at all events, as it must have been in the contemplation of both parties that he should be responsible for in respect of those perils and chances." And, says Lord Esher, quoting the above words (x), "it is not enough that the implication should be a reasonable implication; it must be a necessary implication."

"When a seller sells an article by a particular description, it is a condition precedent to his right of action that the thing

(u) Collinge v. Heywood (1839), 9 A. & E. 633.

(v) In The Moorcock (1889), 14 P.

D. 64.

(x) In Hamlyn & Co. v. Wood & Co. (1891), 60 L. J. Q. B. at P. 736.

S. 13.

S. 13.

which he offers to deliver, or has delivered, should answer the description. Lord Abinger protested against the confusion which arises from the prevalent habit of treating such cases as warranty, saying: . . . 'In many of the cases the circumstance of a party selling a particular thing by its proper description has been called a warranty, and the breach of such a contract a breach of warranty; but it would be better to distinguish such cases as a non-compliance with a contract which a party has engaged to fulfil; as if a man offers to buy peas of another, and he send him beans, he does not perform his contract; but that is not a warranty: there is no warranty that he should sell him peas, the contract is to sell peas, and if he sell him anything else in their stead, it is a non-performance of it" (t). . . . If the sale is of a described article, the tender of an article answering the description is a condition precedent to the purchaser's liability, and if this condition be not performed, the purchaser is entitled to reject the article, or if he has paid for it, to recover the price paid as money had and received to his use (u). Whereas, in case of warranty, the rules are very different” (x).

"It is an utter fallacy, when an article is described, to say that it is anything but a warranty or a condition precedent that it should be an article of that kind, and that another article might be substituted for it. . . . If the description of the article tendered is different in any respect, it is not the article bargained for, and the other party is not bound to take it" (y).

...

The rule that the goods supplied shall agree with their description in the contract is the general rule, of which the other implied warranties or conditions mentioned in s. 14 are particular examples. "In some contracts," says Brett, J.A., in Randall v. Newson (z), "the undertaking of the seller is said to be only that the article shall be merchantable; in others, that it shall be reasonably fit for the purpose to which it is to be applied. In all, it seems to us, it is either assumed, or expressly stated, that the fundamental undertaking is, that the article offered or delivered shall answer the description of it contained in the contract. That rule comprises all the others; they are adaptations of it to particular kinds of contracts of purchase and sale. You must, therefore, first determine from the words used, or the circumstances, what, in or according to the contract, is the real mercantile or business description of the thing which is the

(t) Chanter v. Hopkins (1838), 4 M.

& W. at p. 404.

(u) See 8. 54, and notes.

(x) Benj. pp. 597, 598.

(y) Per Lord Blackburn, in Bowes v. Shand (1877), 2 Ap. Ca. at p. 480.

(z) (1877), 2 Q. B. D. at p. 109.

subject-matter of the bargain of purchase, or sale, or, in other words, the contract. If that subject-matter be merely the commercial article or commodity, the undertaking is that [it]. ... shall be that article or commodity, saleable or merchantable. If the subject-matter be an article or commodity to be used for a particular purpose, it must be that article or commodity, and reasonably fit for the particular purpose. The governing principle, therefore, is that the thing offered and delivered under a contract of purchase and sale must answer the description."

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The condition is not excluded by reason only that the contract also contains (1) an express warranty relating to some particular quality of the goods (a); (2) an express stipulation allowing for a certain latitude with regard to, or limiting the seller's liability for, their quality (b). But, apparently, when the seller expressly contracts against liability for errors of description, the condition will not be implied (c).

S. 13.

dition that

make.

When the goods are ordered of a manufacturer who is Implied connot also a dealer, there is, in the absence of any express goods are stipulation or trade usage under s. 55, allowing him to supply manufacgoods made by other manufacturers, an implied condition that turer's own he will supply only goods of his own make. This was first decided by the majority of the Court of Appeal in Johnson v. Raylton (d), and the law, as there laid down, is preserved by s. 61 (2) of this Act; and may also fall under this section if home-make be considered as an implied description of the goods superadded to their ordinary commercial description. The reason of the rule appears obvious in the case of such goods, for example, as Purdey's guns, or Moet's champagne, which class of cases, however, is probably sufficiently protected by the provisions of the Merchandise Marks Act, 1887; but it also applies generally, though the make of the particular manufacturer is no better than that of others. The buyer is, in fact, "assumed to have contracted with the particular manufacturers in reliance upon the general excellence of the work of their firm " (e); and "it cannot make any difference whether the goods happen to be in existence, or in stock, or whether they have still to be made" (ƒ). Brett, L.J., lays stress upon the fact that the buyer has had

(a) Nichol v. Godts (1854), 10 Ex.

191.

(b) Azemar v. Casella (1867), L. R. 2 C. P. 677; Gorton v. Macintosh Co. (1883), 31 W. R. 232.

(c) Taylor v. Bullen (1850), 5 Ex. 779. See also Drysalters' Co. v.

Benjamin, Law Gazette, May 26,
1891.

(d) (1881), 7 Q. B. D. 438.
(e) Per Cotton, L.J., ibid. at pp.
445, 446.

(f) Per Brett, L.J., ibid. at p.

452.

S. 13.

Time of shipment may form part of description.

no inspection of the goods. If, however, the home manufacture of the goods be treated as part of their description, it would appear immaterial whether or not the buyer had inspection, unless such inspection revealed the fact (g). Cotton, L.J., states the rule simpliciter.

In view, however, of the powerful dissentient judgment delivered by Bramwell, L.J., in Johnson v. Raylton, the question is one which cannot be regarded as finally settled, until it has been adjudicated upon by the House of Lords.

In some cases the time of shipment of the goods sold is part
of their description (h). The rule as to the fulfilment of this
condition may be stated as follows:-
:-

The condition as to shipment will be fulfilled-
(1.) If the respective dates of the commencement and com-

pletion of the loading fall within the specified period,
although a bill of lading may not be given till after-
wards (i); and

(2.) [Perhaps] also, when the shipment takes place as one continuous transaction, which is finally completed within the period (k).

And shipment by the seller is prima facie unnecessary, if the goods otherwise fulfil the condition (7).

And if the sale be also by sample.-When goods are bought under a specified commercial description, either by sample, or even after an inspection of the bulk, "it is an implied term, notwithstanding the sample and inspection, that the goods shall reasonably answer the specified description in a commercial sense" (m). The sample in such cases is looked upon as a mere expression of the quality of the article, and not of its essential

character.

For the additional conditions implied on a sale by sample, see s. 15 (2), post, p. 103.

ILLUSTRATIONS.

1. A. agrees to sell to B. a quantity of Calcutta linseed, tale quale, then at sea. Calcutta linseed generally contains from two to three per cent. of foreign seeds. The seed delivered by A. contains fifteen per The jury find that the admixture destroys the distinctive

cent.

(g) See Josling v. Kingsford (1863), 13 C. B. N. S. 447.

(h) Bowes v. Shand (1877), 2 Ap. Ca. 455. In America, Norrington v. Wright, 115 U. S. 188; Tilley v. Pope, ib. 213.

(i) Bowes v. Shand, supra.

(k) S.C., and Alexander v. Vanderzee (1872), L. R. 7 C. P. 530.

(7) So in America, in Cunningham v. Judson, 100 N. Y. 179.

(m) Per Willes, J., in Mody v. Gregson (1868), L. R. 4 Ex. at p. 55.

character of the seed as Calcutta linseed. A. is liable to B. for a S. 13. breach of warranty. Wieler v. Schilizzi (1856), 17 C. B. 619.

2. A., a dealer in acid, sells to B. oxalic acid, of which B. inspects both samples and the bulk. A. declines to warrant the quality. The acid contains ten per cent. of sulphate of magnesia, which could not be detected, and which destroys the character of the acid. A. is liable to B. for breach of warranty. Josling v. Kingsford (1863), 13 C. B. N. S. 447.

3. A. agrees to sell to B. five parcels of foreign refined rape oil, warranted only equal to samples. A. delivers the oil, which corresponds with the samples, but is rape oil adulterated with hemp oil. The jury find that oil so adulterated is not rape oil. B., although the bulk corresponded with the sample, is not bound to take it, as there was a difference in kind. Nichol v. Godts (1854), 10 Ex. 191.

4. A. agrees to sell to B., by sample, certain cotton. The sample is long staple Salem cotton. A. expressly warrants it equal to sample, and also agrees that, if the cotton be inferior to sample, a fair allowance shall be made. A. delivers to B. Western Madras cotton, inferior to the Salem sample. B. is not bound to accept the cotton with an allowance, as there was a difference in kind. Azemar v. Casella (1867), L. R. 2 C. P. 677.

5. A., a calico printer, agrees to sell to B., a dye extract manufacturer, a quantity of spent madder, which is the refuse of A.'s processes of manufacture. A. delivers spent madder, which is found useless by B. B. must pay for it, as the article delivered answered the description. Turner v. Mucklow (1862), 6 L. T. N. S. 690.

and

or

6. A. agrees to sell to B. 300 tons of Madras rice, to be shipped at Madras during March April. Nearly all the rice is put on board in February. B. is not bound to accept the cargo, as it was substantially a February shipment, and the time of shipment was part of the description of the rice, and A. has consequently not tendered the thing contracted for. Bowes v. Shand (1877), 2 Ap. Ca. 455 (n).

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7. A., an iron manufacturer, agrees to sell to B., a shipbuilder, 2,000 tons of iron ship-plates, of the quality known as "Crown (which is A.'s trade mark), to pass Lloyd's survey. A. is not a dealer in iron. A. makes some deliveries, and then closes his works, and claims to supply plates made by other manufacturers of Crown quality, and equal to Lloyd's survey, and as good as A.'s own manufacture. There is no custom of trade allowing A. to supply other makers' goods. B. is not bound to accept the plates, as the description of plates he contracted for was plates manufactured by A. Johnson v. Raylton (1881), 7 Q. B. D. 438.

14. Subject to the provisions of this Act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:

(1.) Where the buyer, expressly or by implica- Implied contion, makes known to the seller the particular quality or

(n) Some of the Lords in this case said they would not go outside the words of the contract to seek for

motives. Others showed how the
stipulation as to time might be very
material.

ditions as to

fitness.

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