C. A. 1905 BUTTON, In re. Voss, Stirling L.J. statute requires him, if he is a secured creditor, either to give up his security for the benefit of the creditors, or to give an estimate of the value of his security. It is said that if the petitioning creditor takes the latter course and gives an estimate in his petition of the value of his security, he is not bound by Ex parte. it, but may, when he comes in to prove his debt, prove on the footing of a different valuation. I cannot agree. If he states that he is willing to give up his security for the benefit of the creditors if the debtor is adjudged bankrupt, he is not allowed to prove unless he gives up his security; and if he gives an estimate, it would be most unjust without evidence of mistake to allow him to depart from that estimate and to prove on a different footing. I think that in the absence of mistake he ought to be held bound by his estimate for the purposes of the bankruptcy proceedings. It is in that sense that I understand the decision in Ex parte Taylor, In re Lacey. (1) I should be slow to depart from that decision given twenty years ago by two very eminent judges, Cave and A. L. Smith JJ., of whom the former had a special knowledge of the bankruptcy law. But I see that a difficulty may arise, as was pointed out by Wright J. in In re Vautin, Ex parte Saffery. (2) Suppose a petitioning creditor, after getting an adjudication, chooses to abstain from taking any further benefit in the bankruptcy, and sits on his security. I have great difficulty in seeing how his estimate in that case is to be enforced against him. I see the difficulty that presented itself to Wright J., and I feel the force of his observation that the Act contains no provision to meet that case; but justice requires that a creditor who comes in to prove shall be bound by his estimate. I wish to reserve consideration of the question whether he is entitled to alter his estimate if he proves that it has been made under a mistake as to the value. Wright J. has decided it, but I prefer to reserve consideration of that question until it arises. I agree that this appeal must be dismissed. Appeal dismissed. Solicitors: M. Edward Williams & Co.; R. Voss & Son. (1) 13 Q. B. D. 128. (2) [1899] 2 Q. B. 549. Sale of Goods-Purpose for which Goods required—Reliance on Seller's Skill -Milk supplied for Consumption-Implied Warranty of Fitness-Sale of Goods Act, 1893 (56 & 57 Vict. c. 71), s. 14, sub-s. 1. By s. 14, sub-s. 1, of the Sale of Goods Act, 1893, it is enacted that"Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to shew that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply. . . . there is an implied condition that the goods shall be reasonably fit for such purpose." The defendants, who were milk dealers, supplied the plaintiff with milk which was consumed by himself and his family. A book in which the daily supply was entered was interleaved with a printed notice of the precautions taken by the defendants to supply milk, pure and unadulterated and free from the germs of disease. The milk supplied contained germs of typhoid fever, and the plaintiff's wife was infected thereby and died. The existence of the germs could only be discovered by prolonged investigation. In an action, upon an implied warranty. under s. 14, sub-s. 1, of the Sale of Goods Act, 1893, to recover the expenses to which the plaintiff had been put by the illness and death of his wife : Held, that the purpose for which the milk was supplied was sufficiently made known to the sellers by its description, that there was evidence that the buyer relied on the seller's skill, and that there was an implied condition under the Act that the milk was reasonably fit for consumption, although the defect was not discoverable at the time of the sale. APPLICATION for a new trial or that judgment should be entered for the defendants in an action tried before Grantham J. with a jury. The action was brought to recover damages for breach of warranty in respect of milk purchased by the plaintiff from the defendant company. The case for the plaintiff was that the defendants carried on business as vendors of milk, and that they supplied and sold milk to the plaintiff for consumption by himself, his wife, and family on the terms that the defendants should take certain precautions to insure that only pure milk, free from all germs of disease and from adulteration, was supplied. The terms were stated to be contained in a passbook supplied by the defendants to the plaintiff, and certain of the terms were set out in the statement of claim; and it was alleged that during the month of July, 1903, and the months immediately preceding the defendants did not comply with the terms in certain respects that were set out, and that in the month of July, 1903, the milk supplied was not free from germs of disease, but was infected with the germs of typhoid fever, and was not reasonably fit for the purpose for which it was required, nor of merchantable quality. It was further alleged that the plaintiff's wife contracted typhoid fever, the infection being communicated to her by the milk supplied by the defendants, and that she died of the fever. The plaintiff claimed damages in respect of the loss and expense to which he had been put by the illness and death of his wife. The defendants denied that they supplied milk on the terms alleged, and asserted that if they did supply milk upon those terms they had not failed to comply with them, and they denied the allegations that the milk was affected with germs of typhoid fever and that typhoid fever was communicated to the plaintiff's wife by any milk supplied by them. They also denied that they were liable under the Sale of Goods Act, 1893, or at common law. The jury found that the milk was the cause of the fever and returned a verdict for the plaintiff, for whom judgment was entered. The principal ground of appeal was that the defendants were not liable under the provisions of the Sale of Goods Act, 1893, or at common law, and that there was no warranty or condition by the defendants that the milk was reasonably fit for the purpose for which it was supplied, or of merchantable quality or free from the germs of typhoid. Other grounds of appeal were that the verdict was against the weight of the evidence and misdirection. Upon the first of these grounds the Court came to the conclusion that there was abundant evidence to support the finding of the jury, and upon the second that the misdirection (if any) had not affected the C. A. 1905 FROST v. AYLESBURY DAIRY COMPANY. C. A. 1905 FROST v. AYLESBURY result of the case. Further reference to these points is omitted from the arguments and the judgments. The defendants appealed. Macmorran, K.C., and W. Mackenzie, for the defendants. Admitting that from the nature of the goods supplied there is an implication that the milk is wanted for consumption, that particular purpose must be made known in such a way as to shew that the buyer relies on the seller's skill or judgment. It might well be that reliance would be placed on the seller's skill where the demand is for particular milk supplied by the defendants, such as peptonized or sterilized milk, or possibly on a demand for selected milk or milk suitable for an invalid, and in such cases the section might apply. A mere demand to be supplied with milk not of any special quality or description does not contain any element that can be said to shew that the buyer relies on the seller's skill or knowledge. To hold otherwise would be to give no effect to the limitation in the section, and to make it applicable universally on every transaction of sale and purchase. There is a further objection in that it was shewn by evidence given in the course of the trial that the typhoid germ is only discoverable by a bacteriological examination to ascertain if the bacillus exists. This is a process that would take a considerable time, while the milk is required for immediate consumption. The existence of the germs being undiscoverable before the sale of the milk, no skill or judgment of the seller would avail anything, and if so it cannot be that the buyer relies on that which cannot be applied to the subjectmatter of the sale. No doubt the fact that a defect is latent is no bar to the application of the section, but it has never been held that a defect that is undiscoverable makes the seller liable on an implied warranty, and it is submitted that the terms of the section do not warrant such a conclusion. [Reference was made in the course of the argument to Randall v. Newson (1); Wallis v. Russell (2); Wren v. Holt (3); Preist v. Last. (4)] (1) (1877) 2 Q. B. D. 102. (3) [1903] 1 K. B. 610. Duke, K.C., and Holman Gregory, for the plaintiff, were not called on to argue. COLLINS M.R. This is an appeal by the defendants in an action in which the plaintiff sued to recover expenses to which he was put by the illness and death of his wife, caused, as he alleged, by typhoid fever. of which the infection was caught from milk supplied by the defendants. The jury found that the milk was the cause of the fever, and gave a verdict for the plaintiff, for whom judgment was entered. The first point taken is whether in point of law, on the facts as ascertained, there can be any liability on the defendants even if it is admitted that the milk was the cause of the fever, and on this it is contended for the defendants that there was no actionable wrong on their part. The point is whether the circumstances under which the milk was bought bring the case within the provisions of s. 14, sub-s. 1, of the Sale of Goods Act, 1893. That section provides that, "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 implication, makes known to the seller the particular purpose for which the goods are required, so as to shew that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose." It was admitted that the milk was bought by the plaintiff from the defendants, and that it fell within the category "goods of a description which it was in the course of the seller's business to supply," but it was said that the buyer had not made known to the seller the particular purpose for which the goods were required so as to shew that he relied on the seller's skill or judgment. Considering the matter by steps, it appears that there was no specific evidence as to the inception of the relation of buyer and seller, because, as a matter of fact, people do not, when they want a milk supply, C. A. 1905 FROST v. AYLESBURY DAIRY COMPANY. |