C. A. 1902 CLARKE V. ARMY AND NAVY purchasers of similar tins of the necessity for care in opening them. In the course of the trial, one of the tins which had formed part of the before-mentioned consignment being in court, the manufacturer of the article, who was called as a witness for the defendants, was asked by a juryman to open Co-OPERATIVE it, which he accordingly did. A considerable amount of force SOCIETY. was required in order to prise the tin open in the usual way, and, upon its being opened, a portion of the contents flew up to a considerable height in the air, and was scattered about, some falling over the witness. The evidence on the question whether there could have been an explosion of the contents of the tin was to some extent conflicting, and there was a considerable amount of evidence tending to negative the suggestion that there had been such an explosion. The jury found that there was no explosion, but that the tins were badly constructed, and conducive to danger, and that the defendants, having had warning from Mr. Stebbing, were negligent in not taking steps to stop further accidents; and they thereupon found a verdict for the plaintiffs for 1727. damages. R. M. Bray, K.C., and H. A. Colefax, for the defendants. The case for the plaintiffs as stated in their pleadings, and as fought at the trial, was that there had been an explosion, and that this chlorinated lime was explosive. The evidence on both sides was really directed to that point. The jury found that there was no explosion, and their further finding was really irrelevant to the case as contested between the parties. The verdict therefore ought to have been for the defendants. The defendants' rule, of which the plaintiffs must be taken to have had notice, distinctly states that no warranties are given with goods sold by the society, and, its terms being perfectly general, they exclude any implied warranty, such as an implied warranty of fitness for the purpose for which the article is sold. By s. 55 of the Sale of Goods Act, 1893, where any right, duty, or liability would arise under a contract of sale by implication of law, it may be negatived or varied by express agreement between the parties. As between the parties to the contract of sale, all obligations with regard to C. A. 1902 CLARKE v. ARMY AND the nature or quality of the goods must be looked for in the contract itself, and it is contended that in a case like this there cannot be a duty created by the relation of vendor and purchaser towards the purchaser, outside the contract, with reference to the quality or character of the goods sold. [COLLINS M.R. In George v. Skivington (1) Kelly C.B. distinctly states that there is in such cases a duty towards the purchaser imposed on the vendor to use reasonable care, independently of warranty.] That case has been unfavourably commented upon. [COLLINS M.R. It has been held, in cases of injuries to railway passengers and bailments, in relation to questions of costs and otherwise, that there was a liability for negligence ex delicto, apart from the contract: see, for instance, per Blackburn J. in Austin v. Great Western Ry. Co. (2); Taylor v. Manchester, Sheffield and Lincolnshire Ry. Co. (3); Kelly v. Metropolitan Ry. Co. (4)] Assuming that there could be any such duty to warn the purchaser of the dangerous character of goods sold, that duty can only arise in a case in which the goods are necessarily dangerous, and the danger is obvious to the defendants, which was not the case here. In the absence of any warranty, in any case the duty of the vendor of an article towards the purchaser could be no higher than his duty would be to a third person, for whose use the article was to his knowledge bought. In the cases in which a vendor of a dangerous article has been held liable to a third person for injuries thereby occasioned, there was something in the nature of active negligence or misfeasance on the part of the defendant, as, for instance, in George v. Skivington (1), where the deleterious hair-wash was compounded by the defendant himself. In Langridge v. Levy (5) the decision was based on the fact that the defendant had fraudulently represented the gun to be safe: see also Longmeid v. Holliday. (6) The cases do not shew that a (1) (1869) L. R. 5 Ex. 1. (2) (1867) L. R. 2 Q. B. 442, at p. 445. (3) [1895] 1 Q. B. 134. (4) [1895] 1 Q. B. 944. (5) (1837) 2 M. & W. 519; (1838) 4 M. & W. 337; 46 R. R. 689. (6) (1851) 6 Ex. 761. The vendor of goods can be liable in an action for mere passive [They also cited Foulkes v. Metropolitan Ry. Co. (1); Ward v. Hobbs (2); Winterbottom v. Wright. (3)] J. Eldon Bankes, K.C., and R. J. Neville, for the plaintiffs. The defendants are liable for a breach of the warranty which is implied by the law, as now embodied in the Sale of Goods Act, 1893, s. 14, sub-s. 1, namely, that an article sold for a particular purpose is reasonably fit for that purpose. The true construction of the clause in the defendants' rules is that it is intended to exclude only express warranties given by their servants on the purchase of goods, and not the condition. implied in the sale of an article for a particular purpose. [They cited on this point Randall v. Newson (4); Vogan & Co. v. Oulton. (5)] Secondly, the defendants are liable for a breach of duty, apart from any question of warranty. The authorities shew that there is cast on any person who supplies or delivers an article, which he knows, or ought to know, to be dangerous, to another person, who presumably is ignorant of the danger, for use by that person, a duty to warn him of the danger. The existence of a contract between the two persons does not prevent the existence of that duty by law independently of the contract. That duty exists as between the vendor and purchaser of an article, independently of any question of warranty, just as much as between any other persons respectively delivering and receiving a dangerous article: see per Lord (1) (1879) 4 C. P. D. 267. (3) (1842) 10 M. & W. 109. (5) (1898) 79 L. T. 384. C. A. 1902 CLARKE v. ARMY AND C. A. 1902 CLARKE V. ARMY AND NAVY Esher in Heaven v. Pender (1); George v. Skivington. (2) In this case the tin was clearly dangerous in fact, but the danger was not of a character that could be known to a purchaser without warning of it. It is not really material whether the tin was dangerous by reason of liability to explode or for some other reason. The statement of claim sufficiently raised the question whether it was dangerous for any reason, and there was abundant evidence to justify the finding of the jury that it was, even though they negatived the suggestion that there had been an explosion. The defendants' manager had reason to suppose that the tin was likely to be dangerous on account of the accident which had previously happened in. Mrs. Stebbing's case, and he clearly appreciated the danger, because he gave instructions that the tins were not to be sold without warning to the purchaser. [They also cited Brass v. Maitland. (3)] R. M. Bray, K.C., for the defendants, in reply. COLLINS M.R. In this case the action is brought by the plaintiffs in respect of personal injury caused to the female plaintiff, while opening a tin of chlorinated lime, which she had purchased from the defendants. She appears to have thought that the tin exploded; but in any case there is no doubt that, in the process of opening the tin, a portion of its contents flew out, and some got into the female plaintiff's eyes. The cause of action, as stated in the plaintiffs' statement of claim, appears to me to cover a breach of duty by the defendants in neglecting to warn the female plaintiff of the dangerous nature of an article sold, whether the danger arose. from its liability to explode or from any other cause. The jury found that there was no explosion; but they found that the tins were badly constructed and conducive to danger, and that the defendants, having had warning from Mr. Stebbing, were negligent in not taking steps to stop further accidents; and they then proceeded to give a verdict for the plaintiffs. It seems to me that there was sufficient evidence to support that (2) L. R. 5 Ex. 1. (3) (1856) 6 E. & B. 470. (1) (1883) 11 Q. B. D. 503, at pp. 507, 510. verdict; and I see nothing inconsistent with it in the special findings which the jury gave. C. A. 1902 CLARKE V. NAVY The facts of the case appear to have been as follows. The female plaintiff went to the defendants' branch store at Ply- ARMY AND mouth, and asked for some chloride of lime. She was recommended to have another disinfectant instead, namely, chlorinated lime, and accordingly she purchased some in a tin. Collins M.R. Nothing further of a material nature passed on the occasion of the purchase. She took the tin home, and, in the process of opening it, the accident, which she called an explosion, happened, that is to say, some of the contents of the tin flew up and went into her eyes. This accident happened upon her opening the tin in the ordinary way, and the defendants were unable to shew any negligence on the part of the plaintiff with regard to the manner in which she opened it. The question is whether under the circumstances the defendants are liable for the consequences of that accident to the female plaintiff. It was proved that the tin in question was one out of a particular small consignment, from tins forming part of which accidents had arisen in three cases besides the present. There was evidence which shewed that the defendants had been informed of one of these accidents before the tin was sold to the plaintiff and that the defendants' manager, whose business it was to attend to such matters, considered the tins to be so far dangerous that they ought not to be sold without warning purchasers of the possibility of danger in opening them. I do not think it is very material whether he attributed their being dangerous to the right reason or not. He clearly knew that the tins were potentially dangerous, for he instructed his assistants not to sell them without giving a warning to purchasers. The assistant who sold the tin to the female plaintiff,. notwithstanding these instructions, sold it to her without any warning, the result being, as I have said, that, upon her opening the tin in the ordinary way, without taking any special precautions, the accident happened. It was argued for the defendants that, upon the finding of the jury that there was no explosion, they were entitled to the verdict, and that the other finding of the jury was really |