tenance of the security, inasmuch as the assignment there was of all chattels brought on the premises "in substitution for or renewal of, or in addition to" the scheduled chattels; and he refers to the judgment of Lord Halsbury in Thomas v. Kelly (1) as indicating that, if a bill of sale only comprised chattels substituted for the chattels specifically described in the schedule by way of maintenance of the security, it would not be bad. I think the decision in Seed v. Bradley (2) covers this case, because in my opinion the terms of the assignment in this bill of sale only contemplate such chattels as may be substituted for the chattels specifically described in the schedule under the covenant for the maintenance of the security. For these reasons I think that the appeal must be dismissed. STIRLING L.J. I agree. I also think that this case is covered by the authorities referred to by the Master of the Rolls. MATHEW L.J. I see no reason to differ from the authorities which support the plaintiff's contention. Appeal dismissed. Solicitors for plaintiff: Ledgard, Street & Co., for Cecil B. Taylor, Liverpool. Solicitors for defendant: Sharpe, Parkers & Co., for Richardson & Marsh, Liverpool. (1) 13 App. Cas. 506. (2) [1894] 1 Q. B. 319. E. L. C. A. 1903 COATES MOORE. Collins M.R. C. A. 1903 May 28. [IN THE COURT OF APPEAL.] PREIST v. LAST. Sale of Goods-Implied Warranty-Fitness for particular Purpose-Sale of The particular purpose for which an article purchased is required may, under the Sale of Goods Act, 1893, s. 14, be made known to the seller by the recognised description by which the article is purchased. The question whether, on a sale of goods, the buyer made known to the seller the purpose for which the goods were required so as to shew that he relied on the seller's skill or judgment is one of fact depending on the circumstances of the particular case. The plaintiff, a draper, went to the shop of the defendant, a retail chemist, and asked for a "hot-water bottle." An article was shewn to him as such. He inquired whether it would stand boiling water, and the defendant told him that it was meant for hot water, but would not stand boiling water. He then purchased it. Some days afterwards the bottle, while in use by the plaintiff's wife, burst, and she was in consequence scalded. The plaintiff sued the defendant as for breach of a warranty that the bottle was fit for use as a hot-water bottle. The jury found at the trial that it was not, when sold, fit for that purpose, and that this was the cause of its bursting. The judge, to whom power was given by consent to draw any inferences of fact, if necessary, on further consideration, found that the plaintiff had, when purchasing the bottle, made known to the defendant the particular purpose for which it was required, so as to shew that he relied on the skill and knowledge of the defendant; and held that the case therefore came within s. 14, sub-s. 1, of the Sale of Goods Act, 1893, and there was, consequently, an implied warranty that the bottle was fit for the purpose of holding hot water, of which there had been a breach. He therefore gave judgment for the plaintiff :— Held, that the facts justified the conclusion arrived at by the judge. APPLICATION by the defendant for judgment or a new trial in an action tried before Walton J. with a jury. The action was for breach of an implied warranty that a hot-water bottle sold by the defendant to the plaintiff was reasonably fit for the purpose for which it was sold. (1) It appeared that the plaintiff, who was a draper, requiring a hot-water bottle for use by his wife for the relief of cramp, (1) There was an alternative claim for breach of an express warranty that the bottle was fit to hold boiling water, but the jury negatived the existence of such a warranty. went to the shop of the defendant, who was a retail chemist, and asked for a hot-water bottle. The defendant shewed him an article as such, which he examined. The defendant's evidence in substance was that the plaintiff, when asking for the bottle, said that he did not want an expensive article; that he wanted it for a special case (without specifying it); and he asked whether the article shewn him would stand boiling water; and that he, the defendant, replied that it was meant for hot water, but would not stand boiling water. The plaintiff purchased the article, the price of which was 3s. 6d., and it was used by his wife for four or five days, when it burst, while in use by her, and she was in consequence scalded. The plaintiff sued to recover expenses incurred in the treatment of his wife for the injury so occasioned to her. The bottle, which appeared to be made of india-rubber, was of American make, and the defendant did not know anything about the composition of the material of which it was made. Evidence was given at the trial with regard to the composition of the material. The jury found, in answer to questions put to them by the learned judge, that the defendant did not tell the plaintiff that the bottle was fit for use with boiling water, that the bottle when sold was not fit for use as a hot-water bottle, and that this was the cause of its bursting; and they assessed the damages at 401. It appeared to have been agreed that, in dealing with the case upon the findings of the jury on further consideration, the learned judge should have power to draw further inferences of fact, if necessary. The learned judge subsequently gave a judgment which was, in substance, to the following effect, namely, that the case came within s. 14, sub-s. 1, of the Sale of Goods Act, 1893; that the plaintiff, the buyer, had made known to the defendant, the seller, the particular purpose for which the article sold was required, namely, holding hot water, so as to shew that the buyer relied on the seller's skill and judgment, and the article was of a description which it was in the course of the seller's business to supply; that there was therefore an implied condition that the article should be reasonably fit for the purpose C. A. 1903 PREIST v. LAST. of holding hot water; and that, the jury having found that it was not fit for that purpose, when sold, there was breach of that implied condition; and he therefore gave judgment for the plaintiff for 401., the damages found by the jury. In Horridge, K.C., and A. P. Thomas, for the defendant. order to bring a case within the Sale of Goods Act, 1893, s. 14, sub-s. 1, the particular purpose for which the goods are required must be made known by the buyer to the seller, and the circumstances must be such as to shew that the buyer relied on the skill or judgment of the seller. Upon the facts of the present case neither of those requirements is fulfilled. It is submitted that the sub-section was not intended to alter the law, as it existed before the passing of the Sale of Goods Act, 1893, but merely to express the result of the previous decisions in which it was held that, where goods were purchased for a special purpose particularized by the buyer upon making the purchase, there was an implied warranty that the goods were reasonably fit for that purpose. The circumstances of this case do not bring it within any of those decisions. According to the law, as it existed previously to the Act, there was no implied warranty of quality in a case like this, i.e., where a specific chattel is sold over the counter of a shop to a person who has an opportunity of examining the article sold. Nothing turns in such cases as this on the fact that the purchaser has no special knowledge, or competency to judge, of the article sold. The case of a sale of unascertained goods, or where the vendor is the manufacturer, involves different considerations. Goods sold by a description must no doubt answer that description, in the sense that they must be merchantable under it; but so long as they do that, there is no breach of contract, in the absence of any further warranty express or implied. The fact that goods sold are not fit for some particular purpose does not constitute a breach of an implied warranty, unless it is really, either expressly or by necessary implication, a term of the contract of sale that they should be fit for that purpose. There was no such specification of a particular purpose upon the purchase of the hot-water bottle in this case as to bring it within the cases in which, before the Sale of Goods Act, 1893, a warranty that goods sold were fit for a particular purpose was implied. The term "hot-water bottle" is really a mere trade description of the article, the name by which such articles are known; and the use of it does not involve a communication that the article was required for any particular purpose, such as the application of heat to the human body for the relief of pain. Hot-water bottles are used for many purposes. The article sold was a "hot-water bottle," though made of inferior materials, and it was used as a hot-water bottle for five days. In all the cases in which a warranty of this kind has been implied, such as Jones v. Bright (1), Brown v. Edgington (2), and Shepherd v. Pybus (3), it will be found that there was some distinct communication of the particular purpose for which the article was purchased, beyond what might be implied from the mere name of the article, or the description by which an article had become generally known. For example, in Jones v. Bright (1) the copper was purchased for the express purpose of sheathing the plaintiff's ship. There was really no evidence here to shew that the plaintiff relied on the skill or judgment of the defendant. The defendant was not, and could not have been supposed to be, the manufacturer of the article. He was a retail chemist, and there was no reason why he should be presumed to know more about india-rubber goods than a draper. It is not like a case where the vendors are manufacturers, or large wholesale merchants of a particular kind of goods, in which case a purchaser might presume that they had special knowledge with regard to the article sold. It would involve a very serious extension of the liability of small retail shopkeepers, who sell a number of miscellaneous articles of which they are not manufacturers, if, under such circumstances as these, it is held that there is an implied warranty of the quality of the article sold. (4); Bluett v. Osborne (5); [They also cited Jones v. Just (1) (1829) 5 Bing. 533; 30 R. R. 728. (2) (1841) 2 Man. & G. 279; 58 R. R. 408. (3) (1842) 3 Man. & G. 868. |