*C. J., said: "If the word bale' had acquired a particular *687] meaning in regard to the trade of Liverpool and Alexandria, I should consider that that meaning should apply in this case; but there should be distinct evidence that the word has that particular meaning." Here there was distinct evidence upon the subject. The contract is for 1170 bales of gambier. Would that be satisfied by the delivery of 1170 packages of any size or description? If not, evidence clearly must be admissible to show what the things are with respect to which the parties are contracting. [COCKBURN, C. J.-If the term "bale," as applied to gambier, has acquired in the particular trade a signification differing from its ordinary signification, evidence must be received on the subject, otherwise effect is not given to the contract.] It is difficult to perceive upon what foundation the objection to the evidence rests. Then, as to the construction of the contract. The declaration contains two counts: the first treats the statement in the contract that the bales were then on passage from Singapore," as a warranty, alleging for breach that the 1170 bales of gambier were not at the time of making the agreement on passage from Singapore; and the second proceeds upon the assumption that the stipulated quantity of bales had arrived by the ships in question, and alleges for breach their non-delivery. Whatever be the construction, therefore, which the court put upon the contract, one or other of these counts must be supported; for, if the first is not made out, it is by reason of a fact which entitles the plaintiffs to a verdict upon the second count, viz., that the goods contracted for did arrive. [COCKBURN, C. J.-Do you contend, that, if a man contracts to sell you goods expected to arrive by such a ship, he is bound to deliver to you somebody else's goods?] Such seems to have been the impression of this court in Fischel v. Scott, 15 C. B. 69. [CRESSWELL, J.-*There was no decision in that case; the de*688] fendants elected to amend, though, as appears from the note at the end of the case, they ultimately declined to avail themselves of the leave to do so.] Assume, for the present, that the contract is confined to gambier the property of the defendants,-in order to establish their right to recover upon the first count, the plaintiffs must make out that the contract involves a warranty that the articles contracted for were "bales of gambier" in the sense found by the jury, and that they were then on passage from Singapore. [COCKBURN, C. J.-The argument on the other side, as to this part of the case, is, that the contract is conditional on the contingency of the ships' arrival each with the stipulated number of bales of gambier on board.] A contract for the sale of goods, "on arrival" (Boyd v. Siff kin, 2 Campb. 326), "to be shipped" or to arrive" by a particular ship (Splidt v. Heath, 2 Campb. 57, Lovatt v. Hamilton, 5 M. & W. 639,† Stockdale v. Dunlop, 6 M. & W. 224,† Johnson v. Macdonald, 9 M. & W. 600+), or "that may be loaded" (Hayward v. Scougall, 2 Campb. 56), has been held to be sub

n.,

-"now

ject to the double contingency of the arrival of the vessel named, and of the goods being on board. But no case has yet held the contract to be conditional where the words used are at all like those used in the present case, now on passage from Singapore, and expected to arrive in London per Ravenscraig and Lady Agnes Duff." If these words do not amount to a warranty on the part of the seller that the goods were then on their passage from Singapore, it is impossible to conceive any words which would amount to a warranty. The introduction of "expected to arrive" cannot control the absolute and unconditional words. by which they are preceded, now on passage from Singapore." In Ollive v. Booker, 1 Exch. 416,† to an action for not loading a vessel in pursuance of the terms of a *charter-party, the defendant pleaded, [*689 setting out the whole of the charter-party, which stated that it was agreed between the plaintiff, "original charterer of the good ship or vessel Dove, A. 1, of the measurement of 149 tons, or thereabouts, now at sea, having sailed three weeks ago, or thereabouts," and the defendant, that the ship, being tight, staunch, &c., should proceed to Marseilles (after having delivered her cargo at Genoa), and there load certain goods of the defendant, and therewith proceed to a safe port in the United Kingdom, calling at Cork or Falmouth, for a certain rate of freight, &c. The plea then averred, that time was an essential and material part of the contract; that the probable situation of the vessel with reference to the date of her sailing, and the object of her voyage, was also an essential and material part of the contract; and that, in point of fact, at the time of the making of the charter-party, the vessel had not sailed three weeks before, but, on the contrary, had sailed at a materially and unreasonably later time, to wit, one week later, of which the defendant had no notice or knowledge, for which cause the defendant neglected and refused to load the vessel. It was held that the time. at which the vessel sailed was material, and that the statement in the charter-party amounted to a warranty. The main question," says Parke, B., " is, whether the allegation in the charter-party, of the vessel being now at sea, having sailed three weeks ago,' is a warranty or a representation. In the construction of agreements, as in the case of contracts under seal, we should endeavour to discover the intention of the parties. Here it is stated that the vessel was now at sea, having sailed three weeks: and, if time is of the essence of the contract, no doubt it is a warranty, and not a representation. Such also is the case in policies of insurance. It appears to me that it is a warranty, and not a representation, that the *vessel had sailed three weeks. It [*690 is, therefore, a condition precedent. The rule depends upon each particular contract, and here time was of the essence of the contract, as much so as the statement that she was a sound vessel." So, here, the statement that the goods were then on passage was of the very essence of the contract, and could not have been intended as mere

words of representation or description. In Shepherd v. Kain, 5 B. & Ald. 240 (E. C. L. R. vol. 7), where an advertisement for the sale of a ship described her as "a copper-fastened vessel," adding that the vessel was to be taken with all faults, without any allowance for any defects whatsoever, and it appeared that she was only partially copper-fastened, it was held, that, notwithstanding the words "with all faults, &c.," the vendor was liable for the breach of the warranty. In giving judgment, the court there say: "The meaning of the advertisement must be, that the seller will not be responsible for any faults which a copper-fastened ship may have. Suppose a silver service sold with all faults,' and it turns out to be plated; can there be any doubt that the vendor would be liable? With all faults' must mean, with all faults which it may have consistently with its being the thing described. Here, the ship was not a copper-fastened ship at all."(a) In Barker v. Windle, 6 Ellis & B. 675 (E. C. L. R. vol. 88), the statement in the charter-party that the ship was A. 1, was mere matter of description, or, as was said in Hurst v. Usborne, 18 C. B. 144 (E. C. L. R. vol. 86), a warranty of her then state only. In Allan v. Lake, 18 Q. B. 560 (E. C. L. R. vol. 83), the defendant, by his agent, sold the plaintiffs a parcel of turnip-seed, and gave the following sold-note :- Mr. T. C. R. (defendant's agent). Sold Messrs. B. & Co. (plaintiffs), for Mr. C. Lake (defendant), 14 quarters Skirving's Swedes, at 178. per

bushel:" and it was held *that this description of the seed in

*691] the sold-note amounted to a warranty that it was Skirving's

Swedes." So, in Nichol v. Godts, 10 Exch. 191,† it was held that an agreement for the sale and delivery of certain oil, described as "foreign refined rape-oil, warranted only equal to samples," is not complied with by the tender of oil which is not "foreign refined rape-oil, although it be equal to the quality of the samples. Pollock, C. B., there says: "The important words in the contract are these: foreign refined rape-oil, warranted only equal to samples.' My Brother Parke told the jury, that, according to the true construction of this contract, not only the article delivered must agree with the samples in quality, which was the meaning of the words warranted only equal to samples,' but also that the oil ought to agree with the description of it in the contract as to its character. It was contended by Mr. Watson that the expression warranted only equal to samples' excluded every other description of warranty; and, provided the oil delivered was equal to the samples, that was sufficient to render the defendant liable to take it and pay for it, although, in point of fact, it did not answer the description of being foreign refined rape-oil. The effect of that argument is, to render the words foreign refined rape-oil' of no avail. Such a proposition cannot be supported. I think the direction was perfectly correct; for, as my Brother Platt observed, it could not be contended

6

(a) But see Taylor v. Bullen, 5 Exch. 779.†

that, if it had turned out that the oil was whale-oil, the contract would have been performed." That affords a decisive answer to any argument that may be founded upon the words "expected to arrive," in this case. [CRESSWELL, J.-Suppose the defendants had tendered, as a fulfilment of their contract, 1170 packages of gambier of 2 cwt. each, but not properly packed,―could the plaintiffs have objected to receive them? The argument must go that length upon this part of the case.] *If the packages were such as not to answer the description of [*692 "bales of gambier," it is submitted that they might be rejected. The description on the sale of goods is an express warranty. (a) Should the court be of opinion that the contract does not amount to a warranty that the goods contracted to be sold were actually shipped, the plaintiffs are still entitled to recover upon the second count. The Ravenscraig and Lady Agnes Duff arrived in London, with the stipulated quantity of bales of gambier on board, although not belonging to the defendants. There is nothing illegal in a man contracting to sell goods which he has not: Hibblewhite v. M'Morine, 5 M. & W. 462.† A man may lawfully contract to sell to another the horse that shall win the next Derby.(6) [COCKBURN, C. J.-We must put a reasonable construction upon the contract: it cannot be assumed that the defendants meant to sell somebody else's goods. The case of Fischel v. Scott, 15 C. B. 69 (E. C. L. R. vol. 80), though not precisely a decision upon the point, contains a pretty strong intimation of the opinions of two mem[*693 bers of the court. The contract there was for 100 hhds. of Gingelly oil expected to arrive by the ship Resolute from Madras:" the Resolute arrived with 100 hhds. of Gingelly oil on board, but it turned out that 34 hhds. only were consigned to or under the power or control of the seller. Maule, J., said: "The oil is described pretty clearly: the question is, whether the oil which came was oil expected to arrive per Resolute.'" And Jervis, C. J., said: "The oil which was expected did arrive. The defendant expected it to come consigned to him; but it turned out that it was consigned to some one else." In Vernede v. Weber, 1 Hurlst. & N. 311,† special words were introduced into the contract to avoid this difficulty," provided the same be shipped for seller's account." Upon the whole, it is submitted that there was here a warranty on the part of the seller that the goods were actually shipped

(a) See Simond v. Braddon, ante, p. 324.

(b) In Pothier on Obligations, Vol. I., P. 1, c. 1, S. 4, ? 2, p. 78, it is said: "Even things which do not belong to the debtor, but to another person, may be the object of an obligation, as he is thereby obliged to purchase or otherwise procure them in order to fulfil his engagement; and, if the real owner will not part with them, the debtor cannot insist that he is discharged from his obligation under the pretext that no man can be obliged to perform an impossibility. For, this excuse is only valid in case of an absolute impossibility; but, where the thing is possible in itself, the obligation subsists, notwithstanding it is beyond the means of the person obliged to accomplish it; and he is answerable for the damages occasioned by the non-performance of his engagement. The thing being possible in its nature, is sufficient to induce the creditor to rely upon the performance of the promise. The fault is imputable to the debtor, for not having duly examined whether it was in his power to accomplish what he promised or not."

and on passage, or, if there was no warranty, but the contract was conditional only, that the condition has been fulfilled by the arrival of the vessel with a sufficient quantity of bales of gambier on board to answer the contract, and that the plaintiffs were entitled to have them delivered to them.

James Wilde, Q. C., and Blackburn, in support of the rule.-The substantial question here is that which arises upon the meaning of the contract. Three constructions are proposed: it may mean compressed bales, which averaged 2 cwt. each, and which were on board the two vessels named, but were consigned to strangers,-or compressed bales of 2 cwt. which never were on passage at all, and about which the vendors are supposed to warrant that they were on passage,-or the bales or packages which were on board, and which did belong to the vendors. If the court are to choose between *these three, inde*694] pendently of authority, there can be little doubt that they would conclude that the vendors intended to sell and the vendees to buy that which the former had to sell. 1. What reason is there for presuming that the parties intended to deal with goods in which the vendors had no interest? Fischel v. Scott, 15 C. B. 69 (E. C. L. R. vol. 80), is supposed to be an authority against the defendants upon this point. There, the plaintiff declared, not setting out a mercantile contract, but merely alleging that it was agreed between himself and the defendants to buy of them certain oil "expected to arrive from Madras" by a particular vessel, that the oil did arrive, and the defendants refused to deliver it: the defendants did not by their plea answer, as they should have done, that the oil which was expected belonged to them, but did not arrive; but they simply denied that the oil which did arrive belonged to them: and the court in effect say that the plea admits that the oil which was the subject of the contract did arrive, but seeks to exonerate the defendants from liability to deliver it, by saying that it was not their property. There was no contract before the court upon which to put a construction. (a) This, therefore, is a totally different case from that. Here, the exact number of packages contracted to be sold did arrive by the vessels named,-805 by the Ravenscraig, and 365 by the Lady Agnes Duff, the whole of which were consigned to the person from whom the defendants bought: and the court are asked to hold, that, under these circumstances, the parties were contracting about the bales of some other *people, of which there *695] were enough on board of either vessel to satisfy the contract, but it was not shown that a sufficient quantity belonged to any one consignee. Hayward v. Scougall, 2 Campb. 56, is precisely in point.

(a) The learned counsel stated that he had been informed by Mr. Tomlinson, who argued that case, that the reason why the defendants declined to avail themselves of the leave to amend, was, that the matter in dispute was of such small value that it was thought not worth while further to contest it.