whether the breach be viewed as relating to the contract Sect. 12. itself according to the law of Scotland, or as arising out of a collateral contract of warranty according to the law of England. The first sub-section takes effect when the property passes and refers to the immediate effects of the contract; the second sub-section assumes that the buyer has had possession, but is afterwards disturbed by a title superior to that of the seller.1 warranty of A warranty that the buyer shall have and enjoy quiet Limitation of possession, clearly cannot imply an absolute warranty title. against unauthorised disturbance by third parties. "When a man covenants to indemnify against all persons, this is but a covenant to indemnify against lawful title. And the reason is, because, as it regards such acts as may arise from rightful claim, a man may well be supposed to covenant against all the world, but it would be an extravagant extension of such a covenant if it were good against all the acts which the folly or malice of strangers might suggest, and therefore the law has properly restrained it within its reasonable import; that is to rightful title.” 2 Under the third sub-section the "implied warranty" is, Charge or in Scotland, equivalent to a "condition," a breach of which incumbrance. gives the buyer the option of repudiating the contract or 3 claiming damages. If, however, the charge or incumbrance is not discovered until after possession and use of the thing 1 The warranty in the second sub-section is analogous to warrandice in a conveyance of heritage. In reference to the latter Lord M'Laren remarks in a recent case that the remedy of restitution of the subjects sold and repayment of the price is singularly inappropriate. "Suppose," he says, "that thirty-nine years after the sale of an estate, a cottage or an acre of moorland, which had been included in a description of subjects, was found to belong to another proprietor. Is it consistent with legal principle or with justice, that the heirs of the seller should be required to repay the price, or should be obliged to take back the estate diminished by the evicted acre? . . . It is evident from the nature of the obligation of warrandice that it must in the general case, and probably in all cases, resolve into a claim of pecuniary indemnification for the loss of the subject of sale or its diminution in value.' -Welsh v. Russell (1894), 21 Ret. 769 at p. 773. 2 Per Lord Ellenborough in Nash v. Palmer (1816), 5 M. & S. 379 at p. 380. 3 See Sect. 11 (2), and definition of "warranty" in Scotland, Sect. 62 (1). But the transference of a Bill of Lading takes with it the liabilities as well as the rights of a consignor-18 & 19 Vict. c. 111, Sect. 1, preserved by Sect. 61 (3) of this Act. Sect. 12. sold, the buyer's remedy will be limited to damages as in the case of the second sub-section. Sect. 13. SALE BY 13. Where there is a contract for the sale of goods DESCRIPTION. by description,(a) 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. NOTES. (a) "Description." The word has two different meanings in the Act. It may be used in a generic sense to denote the intrinsic nature or quality of the article sold, as where the goods are said to be "of a description" (i.e. kind) "which it is in the course of the seller's business to supply "1 [Sect. 14 (1)]; or it may refer, as in this section, to a term of the contract expressing, in written or spoken language, the particular nature or quality which it is intended that the article should possess.2 In the former case the word is applied to attributes generally; in the latter, the meaning is restricted to the form of words by which certain particular attributes are expressed in the contract. It would seem from the judgment in Randall v. Newson 3 (1877), that where a "description " is embodied in words in a contract, certain other words may be added by implication, so that in addition to an express description there may also be an implied description. If this be so, it involves serious confusion between this and the immediately succeeding section relating to implied warranties and conditions. The subject is discussed COM. infra, p. 64. (b) "Condition." Not a mere "warranty" in the English sense. (c) "Sale by sample." See Sect. 15. 1 The same meaning is intended in Sect. 30 (3) where the words are, "mixed with goods of a different description." 2 Section 14 (2) contains the word in both its applications. 32 Q.B.D. 102. "2 COMMENTARY. Sect. 13. contract. Although there is no implied warranty of quality or Description as fitness except as in Sect. 14, the seller is bound to furnish a term of the goods of the description1 specified in the contract. Thus delivery of an adulterated article in name of "Ichaboe "3 "flax yarn, guano," or "oxalic acid," ✦ or " or cluster oats," "5 will not free the seller from his obligation. The thing delivered must meet the description in the ordinary sense of the term." "If," said Lord Blackburn (adopting an illustration of Lord Abinger), "you contract to sell peas, you cannot oblige a party to take beans. If the description of the article tendered is different in any respect, it is not the article bargained for, and the other party is not bound to take it."7 A description may, however, be held to be substantially complied with, although from special circumstances the goods furnished do not correspond with its precise terms, while on the other hand a merely literal interpretation of a description may not convey its mercantile meaning to which the law will give effect." The rule is Description almost necessarily confined to executory contracts, for, where confined to goods are "identified and agreed upon at the time the con- contracts. tract is made," 10 they cannot, in the ordinary case, be said to be sold by description. 8 "10 The section provides that where 1 Description is here used in the sense of a term of the contract. See note (a) supra. A single word may stand as the descriptive name of an article consisting of many separate but necessary parts, e.g. a ship, which includes all necessary sailing gear. See Armstrong and Co. v. M'Gregor and Co. (1875), 2 Ret. 339. 2 Paterson v. Dickson (1850), 12 D. 502. 3 Jaffé v. Ritchie (1860), 23 D. 242. Josling v. Kingsford (1863), 13 C.B. N.S. 447. 5 Carter and Co. v. Campbell (1885), 12 Ret. 1075. 6 If the name of the article indicates its purpose, it must be fit for that purpose-Van Oppen v. Arbuckle (1855), 18 D. 113 ("pint cork "). 7 Bowes v. Shand (1877), 2 App. Ca. 455 at p. 480. See also Tye v. Fynmore (1813), 3 Camp. 462 (" pimento"); Gardiner v. Gray (1815), 4 Camp. 144 ("waste silk"); Allan v. Lake (1852), 18 Q.B. 560 ("Skirving's Swedes"); Nichol v. Godts (1854), 10 Ex. 191 ("foreign refined rape oil"); Wieler v. Schilizzi (1856), 17 C.B. 619 ("Calcutta linseed"); Azémar v. Casella (1866), L. R. 2 C.P. 677 ("Salem cotton "); Borrowman v. Drayton (1876), 2 Ex. Div. 15 ("cargo" of goods). 8 Hopkins v. Hitchcock (1863), 14 C. B. N.S. 65. executory Sect. 13. Is undertaking as to quality or fitness an implied description? the sale is by sample as well as by description the bulk must correspond with both. Such a combination does not alter the character of the sale, which, except in some rare cases, will be executory. Though sample is often given in sales of specific goods a description rarely forms a term of the contract except where the goods are furnished upon the buyer's order.1 The exceptions in Sect. 14 to the rule of "Caveat emptor" are sometimes based upon the theory of description. Thus in delivering the judgment of the Court of Appeal in Randall v. Newson2 (1877) Brett, J., sums up a review of the authorities as follows:-"In some contracts the undertaking of the seller is said to be only that the article shall be merchantable; in others that it shall be reasonably fit for the purpose to which it is to be applied. In all cases it seems to us it is either assumed or expressly stated that the fundamental undertaking is that the article offered or delivered shall answer the description of it contained in the contract. That rule comprises all the others." In a case regarding "waste silk" Lord Ellenborough said: The purchaser has a right to expect a saleable article answering the description in the contract." Commenting on this "4 The distinction is clearly pointed out in Couston, Thomson, and Co. v. Chapman (1872), 10 Macp. H.L. 74, where in comparing the circumstances with those of Jaffé v. Ritchie (1860) 23 D. 242, cited in argument, Lord Chancellor Hatherly says: "The case cited was a case in which a person engaged to supply certain quantities of yarn according to sample. He might supply the yarn from whencesoever he pleased (there might not be a single hank of it in esse at the time beyond the sample of it), and he furnished some jute instead of flax. There, the very contract was for flax, not for jute, a thing different in rerum natura. But here, the contract was for certain specified wines lying in certain specified cellars" (10 Macp. H.L. at p. 80). See also Lord Colonsay to the same effect (at p. 84). The following cases illustrate executory sales by sample as well as by description :-Van Oppen v. Arbuckle (1855), 18 D. 113; Kerr and Sons v. M'Dowall (1828), 6 Sh. 1029; Nichol v. Godts (1854), 10 Ex. 191; Azémar v. Casella (1867), L. R. 2 C.P. 677; Mody v. Gregson (1868), L.R. 4 Ex. 49; Macfarlane and Co. v. Taylor and Co. (1868), 6 Macp. H.L. 1 (see specially p. 13). 2 2 Q. B.D. 102. 32 Q.B.D. at p. 109. The authorities specially referred to by Brett, J., are-Gardiner v. Gray (1815), 4 Camp. 144; Laing v. Fidgeon (1815), 4 Camp. 169; Gray v. Cox (1825), 4 B. & C. 108; Jones v. Bright (1829), 5 Bing. 533; Brown v. Edgington (1841), 2 M. & G., 279; Nichol v. Godts (1854), 10 Ex. 191; Wieler v. Schilizzi (1856), 17 C.B. 619; Josling v. Kingsford (1863), 13 C. B. N. S. 447; and Jones v. Just (1868), L. R. 3 Q.B. 197. 4 In Gardiner v. Gray (1815), 4 Camp. 144 at p. 145. manufacturer. dictum Brett, J., says: "The decision is that the commodity Sect. 13. offered and delivered must answer the description of it, and be 'saleable waste silk." But if the expressed description "waste silk" becomes, by the addition of an implied term, “saleable waste silk," and "carriage-pole " becomes "reasonably-fit-andproper-carriage-pole," 2 it is equally competent to imply any adjective or number of adjectives expressive of quality or fitness. In this view, the present section and the one immediately following deal with the same subject, but the one provides without limitation that the goods must correspond with the description, while the other provides that there is no implied warranty or condition as to quality or fitness, except in the special cases mentioned. This combination of description and implied condition of quality or fitness, raises a question of importance, and may lead to consequences not foreseen by the legislature. Thus it has Sale by a been suggested by commentators entitled to respect, that the rule laid down in Johnson v. Raylton 5 (1881), that where a manufacturer sells goods he warrants them of his own manufacture, forms an instance of implied description, and continues to be the law of England under this section." the original bill the rule was treated as an implied condition, and was embodied in Sect. 147 in the following terms- "Where there is a contract for the sale of goods by a manufacturer as such, there is, in the absence of any trade usage to the contrary, an implied undertaking that the goods are of the seller's own manufacture." This provision was deleted in Select Committee of the Lords, the understanding being that by this means the law of England was assimilated to that of Scotland, where by two decisions of earlier date a rule contrary to that of Johnson v. Raylton had been established. If, however, the rule of Johnson v. Raylton is preserved by the present section, the mere In 8 West Stockton Iron Co. v. Neilson and Maxwell (1880), 7 Ret. 1055; Johnson and Reay v. Nicoll and Son (1881), 8 Ret. 437. F Johnson v. Raylton. |