on the same case, Brett, J.A., added, "The decision, therefore, is that the commodity offered and delivered must answer the description of it and be saleable waste silk. The principle is that the commodity offered must answer the description of it in the contract." After reviewing Wieler v. Schilizzi, Nichol v. Godts,2 and Josling v. Kingsford,s in order clearly to ascertain what is the primary or ultimate rule from which the rules which have been applied to contracts of purchase and sale of somewhat different kinds have been deduced, the judgment continues: "In all (cases) 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. . . . The governing principle, therefore, is that the thing offered and delivered under a contract of purchase and sale must answer the description of it, which is contained in words in the contract, or which would be so contained if the contract were accurately drawn out." Compare cases cited in Benjamin on Sale, 4th ed., 602, "in which it has been held that the vendor who sells bills of exchange, notes, shares, certificates, and other securities is bound, not by the collateral contract of warranty, but by the principal contract itself, to deliver as a condition precedent that which is genuine, not that which is false, counterfeit, or not marketable, by the naine or denomination used in describing it." There is a somewhat different class of cases in which 'description" plays an important part: it is for the Court to decide whether upon a right construction of the contract some expression called in question is really part of the "description" of the goods sold or not. Example 5.—A. agreed to buy "about 600 tons Madras and rice, to be shipped, &c., during the months of March 1 17 C. B. 619, 622; 25 L. J. C. P. 89 (Calcutta linseed). [1855.] 2 10 Ex. 191; 23 L. J. Ex. 314. [1854.] or 313 C. B. N. S. 447; 32 L. J. C. P. 94; 7 L. T. 790; 11 W. R. 377. [1863.] 64 April, &c. ;" most of it was shipped in February, only th being put on board in March. A. was held entitled to refuse the cargo because it was clearly a February shipment, and not a tender of goods according to the description in the contract (Bowes v. Shand1). Example 6.—A. agreed to buy "a cargo of from 2,500 to 3,000 barrels (seller's option) American petroleum, to be shipped, &c." B., the seller, loaded 3,000 barrels, and an additional 300 under a separate bill of lading. A. refused to accept the 3,000 barrels or any other quantity, and was held not bound to accept " part of a cargo," when the contract was for "a cargo," i.e., the entire load of the vessel which carries it (Borrowman v. Drayton3). In his judgment in the House of Lords, in Bowes v. Shand1 (2 App. Ca., at p. 480), Lord Blackburn, having quoted with approval Lord Abinger's illustration (mentioned above), said, "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. And Mellish, L.J., in delivering the judgment of the Court of Appeal, in Borrowman v. Drayton,3 said, “We, however, are of opinion that an agreement to sell a cargo is, according to the plain and natural meaning of the words, an agreement to sell the entire quantity of goods loaded on board a vessel on freight for a particular voyage." Compare Behn v. Burness,3 where the plaintiff's ship was chartered as being "now in the port of Amsterdam,” but did not in fact arrive there till four days afterwards. Williams, J., in giving judgment in the Exchequer Chamber, said, " But with respect to statements in a contract, descriptive of the subject-matter of it, or of some material incident thereof, the true doctrine established by principle, as well as authority, appears to be, 1 2 App. Ca. 455, 480; 46 L. J. Q. B. 561; 36 L. T. 857; 25 W. R. 730. [1877.] 2 2 Ex. D. 15; 46 L. J. Ex. 273; 35 L. T. 727; 25 W. R. 194. [1876.] 3 32 L. J. Q. B. 204, 206; 3 B. & S. 751; 8 L. T. 207; 9 Jur. N. S. 620. [1863.] generally speaking, that if such descriptive statement was intended to be a substantive part of the contract, it is to be regarded as a warranty, that is to say, a condition on the failure or non-performance of which the other party may, if he be so minded, repudiate the contract in toto, and so be relieved from performing his part of it, provided it has not been partially executed in his favour." Note.-Selling by sample excludes implied warranties only with respect to such matters as can be judged of by the sample (Mody v. Gregson1). Sale by sample: see section 15. Goods ordered by description; merchantability see section 14 (3). tions as to fitness. 14.—Subject to the provisions of this Act, and Implied condiof any statute in that behalf, there is no implied quality or warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows: Subject to the provisions of this Act.-See section 15, post. Sale by sample, section 55. Implied duties, &c., be expressly excluded. may any statute in that behalf.—The Chain Cables and Anchors Act, 1874,2 raises the implied warranty on the sale of a cable that it has been duly tested and stamped; and the Merchandise Marks Act, 1887,3 implies a warranty of the genuineness of a Trade-mark. 4 It might be expected that since the Sale of Food and Drugs Act, 1875 (amended 1879), goods coming under that description would be sold with an implied warranty of purity, in the absence of a statement to the contrary; but this is distinctly negatived by the rule laid down in 1 L. R. 4 Ex. 49; 38 L. J. Ex. 12; 19 L. T. 458; 17 W. R. 176 (Grey shirtings; sample; China clay). [1868.] 2 37 & 38 Vict. c. 51, s. 4. Ward v. Hobbs,1 where it was settled that an act on the part of the seller, though a public offence against a statute, does not of itself amount by implication to a representation, upon a sale, that the particular statute has not been infringed. See also Burnby v. Bollett (carcase of pig). 3 no implied warranty.-This is the old rule of caveat emptor which has now been almost eaten up by exceptions. In Barr v. Gibson, Parke, B., said, "In the bargain and sale of an existing chattel by which the property passes, the law does not (in the absence of fraud) imply any warranty of the good quality or condition of the chattel so sold ;" and Lopes, J., recited the rule in Smith v. Baker (white Scotch beef). 4 "A salesman offering for sale a carcase with a defect of which he is not only ignorant, but has not any means of knowledge (the defect being latent), is not liable to any penalty, and does not, as a matter of law, impliedly warrant that the carcase is fit for human food" (Pollock, C.B., in Emmerton v. Mathews 5). The contract in this case was not made by the buyer "in reliance on the seller's skill or judgment," but the judgment of Pollock, C.B., as quoted, is at variance with this section. See sub-section (1.). (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 1 4 App. Ca. 13; 48 L. J. C. P. 281; 40 L. T. 73; 27 W. R. 114. [1878.] 2 16 M. & W. 644; 17 L. J. Ex. 190; 11 Jur. 827. [1847.] 33 M. & W. 390, 399. [1838.] 4 40 L. T. N. S. 261, 263. [1878.] 57 H. & N. 586, 594; 31 L. J. Ex. 139; 5 L. T. 681; 8 Jur. N. S. 61; 10 W. R. 346. See below, sub-s. 1. [1862.] 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, provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose: particular purpose.-It was perhaps not intended that this Act should over-ride the decision in Emmerton v. Mathews,1 supra, but when meat is sold by a butcher, or dealer, or even by a "salesman," it is presumably bought to be eaten, and must therefore be wholesome to be "reasonably fit for such purpose," and the seller must be deemed to know more about its condition than a buyer who has to judge by a momentary inspection; “the law will protect purchasers, who are necessarily ignorant of the commodity sold," said Best, C.J., in Jones v. Bright 2 (copper sheathing for ship). In Smith v. Baker3 the sellers were salesmen selling meat consigned to them, and the buyer was a butcher. Grove, J., however, said, “If the butcher had not gone and selected his meat, but had ordered it, there would have been no doubt an implied warranty on the part of the butcher [seller] that it was of merchantable quality." Emmerton v. Mathews1 was, however, followed. Example 1.-Troop stores were sold with an express warranty that they should pass the survey of the East India Company's officers; this did not exclude the warranty implied by law that the stores should be reasonably 1 7 H. & N. 586; 31 L. J. Ex. 139; 8 Jur. N. S. 61; 5 L. T. 681; 10 W. R. 346. [1862.] 25 Bing. 533, 546; 2 M. & P. 155. [1829.] 3 40 L. T. N. S. 261. [1878.] |