(c.) Where a contract of sale is not severable, and the buyer has accepted the goods, or part thereof, or where the contract is for specific goods, the property in which has passed to the buyer, the breach of any condition to be fulfilled by the seller can only be treated as a breach of warranty, and not as a ground for rejecting the goods and treating the contract as repudiated, unless there be a term of the contract, express or implied, to that effect.

See definition of warranty, post, section 61, Interpretation.

The decision in Simpson v. Crippin1 (6,000 to 8,000 tons coal monthly) shews that this was a rule of law when that case was decided. See comments upon it in the judgment of Bramwell, L.J., in Honck v. Müller 2 (2,000 tons pig-iron, "Nov., Dec., Jan.") In the same year Bovill, C.J., laid down the law on the subject in Heilbutt v. Hickson 3 (boots for French army).

See section 31, Instalment deliveries; and section 53, Remedy for breach of warranty.

specific goods.

Example.-A. agreed to buy from B. 413 ear-marked bales of wool to arrive by ship, guaranteed about similar to samples, disputes to be decided by selling brokers. Though the wool turned out not similar to samples, and brokers allowed abatement, A. could not reject it for inferiority (Heyworth v. Hutchinson 1).

For the buyer's remedy see section 53.

1 L. R. 8 Q. B. 14; 42 L. J. Q. B. 28; 27 L. T. 546; 21 W. R. 141. [1872.]

2 7 Q. B. D. 92, 100; 50 L. J. Q. B. 529; 45 L. T. 202; 29 W. R. 830. [1881.]

3 L. R. 7 C. P. 438, 450; 41 L. J. C. P. 228; 27 L. T. 336; 20 W. R. 1035. [1872.]

4 L. R. 2 Q. B. 447; 36 L. J. Q. B. 270. [1867.]

(2.) In Scotland, failure by the seller to perform. any material part of a contract of sale is a breach of contract, which entitles the buyer either within a reasonable time after delivery to reject the goods and treat the contract as repudiated, or to retain the goods and treat the failure to perform such material part as a breach which may give rise to a claim for compensation or damages.

See the judgment of Lord Chelmsford in Couston v. Chapman1 (wine sold by auction). "In England if a horse is sold with a warranty of soundness, and it turns out to be unsound, the purchaser cannot return the horse unless there is a stipulation in the agreement that if the horse does not answer to the warranty the purchaser shall be at liberty to return it. . . . In Scotland, as I understand the law of that country, there would be an absolute right to return the horse upon the discovery of its unsoundness, without any stipulation to that effect in the agreement."

(3.) Nothing in this section shall affect the case of any condition or warranty, fulfilment of which is excused by law by reason of impossibility or otherwise.

impossibility.

See section 7, Goods perishing before sale, but after agreement to sell.

taking as to

12.—In a contract of sale, unless the circum- Implied under stances of the contract are such as to show a title, &c. different intention, there is

N.S.G.

1 L. R. 2 H. L. Sc. 250, 254. [1872.]

D

(1.) An implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass:

(2.) An implied warranty that the buyer shall have and enjoy quiet possession of the goods: (3.) An implied warranty that the goods shall be free from any charge or encumbrance in favour of any third party, not declared or known to the buyer before or at the time when the contract is made.

(1) right to sell.-In accordance with the decision in Edwards v. Pearson,1 this sets at rest the much-vexed question whether there is any implied warranty of title on the sale of a chattel, where there is nothing to shew that the seller merely intends to pass what rights he has, and considerably narrows the application of the maxim caveat emptor, which came into force when it was no longer necessary to sell goods of the value of £10 and upwards in market overt or before credible witnesses. The Court, consisting of Lord Coleridge, L.C.J., and Lord Esher, M.R., held that when a man buys a horse in the ordinary way, he does not intend to buy a lawsuit. See also Eicholtz v. Bannister, (sale of stolen prints, yarns, &c.).

It has always been the law that a tradesman selling goods in a shop in the ordinary way of business warrants his right to do so, and that where the buyer knows he will only get just what right to the goods the seller had, no such implied warranty arises (Morley v. Attenborough 3)

1 6 Times Rep. 220. [1890.]

2 17 C. B. N. S. 708; 34 L. J. C. P. 105; 11 Jur. N. S. 15; 12 L. T. 76; 13 W. R. 96. [1864.]

3 3 Ex. 500; 18 L. J. Ex. 148; 13 Jur. 282. [1849.]

(unredeemed pledges); cp. Hall v. Conder1 (boiler explosions patent method).

implied condition. This is contrasted with implied warranty in (2) and (3). See section 61, Interpretation, Warranty."

66

(2) quiet possession. (3) free from ... encumbrance. -These appear to be new as regards the sale of goods; they correspond, of course, to the ordinary covenants in a conveyance of real estate.

13. Where there is a contract for the sale of Sale by description. goods by description, there is an implied condition that the goods shall correspond with the description; and if the sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.

Example 1.—A druggist agreed to buy "2 tons of fair merchantable sassafras wood," and a specimen was given to him which he had full opportunity to examine; this was not a sale by sample, and he was not bound to accept wood which did not come under the above trade description, as he had "an express undertaking from the vendor as to the quality of the commodity." Per Lord Ellenborough in Tye v. Fynmore.2

3

Lord Abinger said, in Chanter v. Hopkins (patent hopper for brewing-copper), “if a man offers to buy peas of another, and he sends him beans, he does not perform his contract . . . the contract is to sell and if he peas, sell him anything else in their stead it is a non-performance of it."

...

This was approved of by Lord Blackburn in Bowes v. Shand.

1 2 C. B. N. S. 22; 26 L. J. C. P. 138; 3 Jur. N. S. 366. [1857.]

23 Camp. 462. [1813.]

3 4 M. & W. 399; 1 H. & H. 377; 3 Jur. 58. [1838.]

4 2 App. Ca. 455, 480; 46 L. J. Q. B. 561; 36 L. T. 857; 25 W. R. 730. [1877.]

Example 2.—A. bought "Oxalic Acid," after inspection, and without a warranty. The bulk delivered was found by the jury not properly commercially so called. A. was held entitled to have goods delivered to him that came within the description, although the seller expressly declined responsibility, and no fraud was suggested (Josling v. Kingsford 1).

Example 3.—A purchaser who had agreed to buy oil called, "foreign refined rape oil," which was guaranteed equal to sample," was held entitled to refuse the bulk, although it corresponded with the sample, because it was not "foreign refined rape oil" (Nichol v. Godts 2).

Example 4.-A. agreed to buy "Long staple Salem cotton," guaranteed equal to sample, to arrive, allowance to be made for inferior quality. He was not bound to accept a cargo of "Western Madras", which was not only inferior but of a different description, requiring different machinery to work it (Azémar v. Casella 3).

4

The principle laid down seems plain enough on the face of it, but has been the subject of much litigation. Parke, B., in Barr v. Gibson, said that "the bargain and sale of a chattel as being of a particular description, does imply a contract that the article sold is of that description," citing authorities; and in Randall v. Newson 5 (coach-pole: latent defect), Brett, J.A., quoted Lord Ellenborough's judgment in Gardiner v. Gray, where he said, "I am of opinion that under such circumstances (i.e. a sale of silk as waste silk) the purchaser has a right to expect a saleable article answering the description in the contract. Without any particular warranty this is an implied term in every such contract." such contract." And commenting

1 13 C. B. N. S. 447; 32 L. J. C. P. 94; 7 L. T. 790; 11 W. R. 377. [1863.]

5 2 Q. B. D. 102, 106; 46 L. J. Q. B. 259; 36 L. T. 164; 25 W. R 313. [1876.]

6 4 Camp. 144. [1815.]