purpose. If the article or commodity does not in fact answer the description of it in the contract, it does not do so more or less because the defect in it is patent, or latent or discoverable.” 1 It was formerly thought that where provisions were sold by a dealer in provisions there was always an implied condition or warranty that they were fit for food,2 but it was afterwards held that there was no distinction between provisions and any other goods. For instance, if a man selected and bought a carcase in the market he took it at his own risk.3 This class of case will require careful reconsideration with reference to sub-sect. (1), ante, p. 31. In Scotland, formerly, as in France now, it was held that the seller guaranteed the buyer against all latent defects. But by sect. 6 of the Mercantile Law Amendment (Scotland) Act, 1856, it was provided that if the seller did not know the goods to be defective or of bad quality, the goods, with all faults, should be at the risk of the purchaser unless there was an express warranty or unless the goods were expressly sold for a particular and specified purpose. This enactment was intended to assimilate Scottish to English law, but it laid down a narrower rule for the former country. Now a uniform rule is laid down for both countries. Sale by Sample. 15.—(1.) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect. (2.) In the case of a contract for sale by sample- 5 (b.) There is an implied condition that the buyer shall 1 Randall v. Newson (1877), 2 Q. B. D. 102, at p. 109, C. A. (carriagepole). 2 Benjamin on Sale, 4th ed., p. 672. 3 lbid., and Emmerton v. Matthews (1862), 31 L. J. Ex. 139; Smith v. Baker (1878), 40 L. T. N.S. 261. But as to provisions bought by description, see Bigge v. Parkinson (1862), 31 L. J. Ex. 301. Bell's Princ. Law of Scotland, 9th ed., p. 78; French Civil Code, arts. 1641-1644. 5 Parker v. Palmer (1821), 4 B. & Ald. 387, at p. 391 (East India rice); Syers v. Jonas (1848), 2 Exch., at p. 117 (tobacco); Carter v. Crick (1859), 28 L. J. Ex. 238 (see barley). Sect. 14. Sect. 15. Sale by sample. Implied have a reasonable opportunity of comparing the bulk with the sample: 1 (c.) There is an implied condition that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample.2 Sub-sect. (1.) Evidence of usage is admissible to show that a sale was by sample, though the written contract may be silent on the point.3 On the other hand, the exhibition of a sample during the making of the contract does not necessarily make it a contract for sale by sample.1 The "The office of a sample," says Lord Macnaghten, "is to present to the eye the real meaning and intention of the parties with regard to the subject-matter of the contract which, owing to the imperfection of language, it may be difficult or impossible to express in words. sample speaks for itself. But it cannot be treated as saying more than such a sample would tell a merchant of the class to which the buyer belongs, using due care and diligence, and appealing to it in the ordinary way, and with the knowledge possessed by merchants of that class at the time." 5 Sub-sect. (2.) By sect. 62, post, p. 119, "quality of goods" includes conditions. their state or condition. As to negativing implied terms, see sect. 55, post, p. 108. In Parkinson v. Lee, it was held that the seller, who was a merchant and not the manufacturer, was not responsible for a latent defect which examination of the sample failed to disclose. 1 Lorymer v. Smith (1822), 1 B. & C. 1 (wheat); Benjamin on Sale, 4th ed., p. 592; Heilbutt v. Hickson (1872), L. R. 7 C. P., at p. 456 (shoes for French army); but see Heyworth v. Hutchinson (1867), L. R. 2 Q. B. 447 (wool). 2 Heilbutt v. Hickson (1872), L. R. 7 C. P. 438, at p. 456; Mody v. Gregson (1868), L. R. 4 Ex. 49; Drummond v. Van Ingen (1887), 12 App. Cas. 284 (worsted coatings); and see a Scotch case, Macfarlane v. Taylor (1868), L. R. 1 Sc. App. 245 (whiskey). 3 Syers v. Jonas (1848), 2 Exch. 111, approved Harnor v. Groves (1855), 24 L. J. C. P., at p. 56. * Hill v. Smith (1812), 4 Taunt. 520; see at p. 532, Ex. Ch.; Meyer v. Everth (1814), 4 Camp. 22; Gardiner v. Gray (1815), 4 Camp. 144; Benjamin on Sale, 4th ed., p. 641. 5 Drummond v. Van Ingen (1887), 12 App. Cas., at p. 297; cf. Mody v. Gregson (1868), L. R. 4 Ex., at p. 53, per Willes, J. • Parkinson v. Lee (1802), 2 East, 314 (hops). Sect. 15. conditions But Lord Esher expressed an opinion that that case was no longer law, and the Act now draws no distinction between a manufacturer and anybody else. Take the case suggested by Willes, J., namely, Implied "brandy sold by sample, coloured with some new stuff which turned out to be a violent purgative, but the effect of which could not be sample. discovered by tasting in the usual way." Should it be any answer to say the seller was a wine merchant and not the manufacturer? Text writers and the older cases always speak of the term that the bulk shall agree with the sample as a warranty, collateral to the contract. But Blackburn, J., in a case where goods were guaranteed "about equal to sample," says: "Generally speaking, when the contract is as to any goods such a clause is a condition going to the essence of the contract, but when the contract is as to specific goods the clause is only collateral to the contract, and is the subject of a cross action, or matter in reduction of damages.' Mr. Benjamin, after reviewing the cases, argues that the buyer may always reject the goods if the bulk do not correspond with the sample, unless (1) he has finally accepted them, or (2) the contract relates to specific goods the property in which has passed to him.5 The Act adopts this view by describing the term as a condition and not a warranty. See sect. 11 (1) (c.), ante, p. 26. 994 Prima facie the place of delivery is the place for comparing the bulk with the sample. But this presumption may be rebutted, and Lord Esher has expressed the opinion that "such a contract always contains an implied term that the goods may under certain circumstances be returned, that such term necessarily contains certain varying or alternative applications, and amongst others the following, that if the time of inspection as agreed upon be subsequent to the time agreed for the delivery of the goods, or if the place of inspection as agreed upon be different from the place of delivery, the purchaser may, upon inspection at such time and place, if the goods be not equal to sample, return them then and there on the hands of the seller."7 1 Randall v. Newson (1877), 2 Q. B. D., at p. 106 (carriage-pole). 2 Mody v. Gregson (1868), L. R. 4 Ex., at p. 53 (grey shirtings). 3 Benjamin on Sale, 4th ed., p. 640; Parker v. Palmer (1821), 4 B. & Ald., at p. 391, per Ld. Tenterden (East India rice). Heyworth v. Hutchinson (1867), L. R. 2 Q. B. 447, at p. 451; cf. Syers v. Jonas (1848), 2 Exch. 111, at p. 117, per Parke, B. • Perkins v. Bell (1893), 1 Q. B. 193, C. A. (barley delivered at T. station). › Heilbutt v. Hickson (1872), L. R. 7 C. P. 438, at p. 456; cf. Grimoldby v. Wells (1875), L. R. 10 C. P. 391, at p. 395, per Brett, J. (tares). on sale by Sect. 15. This certainly seems to be the law in Scotland,1 but the question perhaps requires further consideration in England. When the goods are specifically described by the contract, they must answer to their description as well as correspond with the sample. See sect. 13, ante, p. 29. Thus where there was a contract for foreign refined rape oil equal to sample, a tender of oil which was not foreign refined rape oil, though equal to sample, was held insufficient.2 1 Couston v. Chapman (1872), L. R. 2 Sc. App. 250, at p. 254, per Lord Chelmsford (wine sold by auction). PART II. EFFECTS OF THE CONTRACT. Transfer of Property as between Seller and Buyer. 16. Where there is a contract for the sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained.1 Sect. 16. Goods must be ascer "In the case of executory contracts," says Bovill, C.J., "where the tained. goods are not ascertained or may not exist at the time of the contract, from the nature of the transaction, no property in the goods can pass to the purchaser by virtue of the contract itself; but where certain goods have been selected and appropriated by the seller, and have been approved and assented to by the buyer, then the case stands as to the vesting of the property very much in the same position as upon a contract for the sale of goods which are ascertained at the time of the bargain." "2 Unascertained or generic goods, that is to say, goods defined by Generic description only, must be distinguished from specific goods, that is to goods. say, goods identified and agreed upon at the time when the contract is made. Suppose A. agrees to sell to B. "fifty Southdown sheep," no property in any sheep can pass to B. till the sheep are appropriated to the contract. A. fulfils his contract by delivering at the appointed time any fifty Southdown sheep. But if he agreed to sell "the fifty 1 For statement of rule, see Dixon v. Yates (1833), 5 B. & Ad., at p. 340; Aldridge v. Johnson (1857), 26 L. J. Q. B. 296, at p. 299, per Ld. Campbell; Mirabita v. Imp. Ottoman Bank (1878), 3 Ex. D., at p. 172. For examples, see Rohde v. Thwaites (1827), 6 B. & C. 388, 393; Campbell v. Mersey Docks (1863), 14 C. B. N.S. 412; Jenner v. Smith (1869), L. R. 4 C. P. 270; cf. French Civil Code, art. 1585; Pothier, Contrat de Vente, No. 308. 2 Heilbutt v. Hickson (1872), L. R. 7 C. P. 438, at p. 449, per Bovill, C.J., and Byles, J. |