When the subject matter of the contract consists of a given quantity of an article, and not of any specific ascertained parcel of goods, the vendor is at liberty to give such goods as will answer the description given by him, but when the article is a certain and specified one, then the vendor must deliver the identical article so fixed, and not anything else of a corresponding nature. So where an order is given by the purchaser for certain specific articles to suit a certain market, the vendor would impliedly undertake to furnish the particular article specified (a). When the goods have not been delivered on the day agreed on, the true measure of damages is the difference between the contract price and that which goods of a similar quality and description bore on or about the day when the goods ought to have been delivered (b). When, in an agreement subject to the Statute of Frauds, the time has been fixed for the delivery of the goods, an agreement to substitute another day for that purpose must, in order to be valid, be in writing (c). When the delivery has been fixed to be made forthwith, and the price to be paid in a month, or at any other time, the delivery must be made without delay (d). So when the words, "term cash" are inserted in a contract, payment on delivery is not a condition precedent to the delivery of the goods (e). When the right of property in the specific chattel has passed by the bargain, the buyer has no right to refuse to accept it by reason of a difference in the quantity or quality. Where, however, the right of property has not passed, then the buyer has a right to refuse the goods, wherever they do not correspond in quantity or in quality with the goods bargained or ordered (ƒ). § 2. Warranty of Title: The owner of goods may dispose of them to whomsoever he pleases at any time, and in any manner, unless judgment has (a) Gardiner v. Gray, 4 Camp. 144; Powell v. Horton, 2 Bing. N. S. 668; Fisher v. Samuda, 1 Camp. 190. (b) Gainsford v. Carroll, 2 B. & C. 624. (c) Marshall v. Lynne, 6 M. & W. 109. (d) Staunton v. Wood, 16 Q. B. 638; Spartali v. Benecke, 10 C. B. 212. (f) Street v. Blay, 2 B. & Ad. 462 ; Measure of damage in case of non-deli very. Alteration as regards time writing. must be in How long extend. Rights of owner to dis- Sale after the issue of a writ of execution and before actual seizure. Sale in market overt. Sales of stolen goods. Mere possession not sufficient to give been obtained against him for a debt or damage (a). And although the goods of a debtor are bound from the delivery of a writ of execution to the sheriff, yet the property in them is not changed by it, and is still in the debtor, and therefore he may confer a good title on them to any person purchasing them bona fide, and for a valuable consideration, before the actual seizure or attachment, and without notice that such writ or any other writ has been issued by which the goods of such owner might be seized or attached had been delivered to, and remained unexecuted in the hands of the sheriff (b). Possession is the criterion of title to a personal chattel, therefore the finder of goods, or any person in possession, is able to give an indefeasible title by sale in market overt (c). Every shop in London is a market overt, and sales in such shops of goods usually sold there are sales in market overt (d). A sale at a wharf is not a sale in market overt to change the property, and goods sold there by a wrongful owner may be recovered at the suit of the true owner against the purchaser (e). So the sale of any goods wrongfully taken at any pawnbroker in London, or within two miles thereof, does not alter the property. The owner of goods stolen, who prosecutes the thief to conviction, is entitled to recover the value of them in trover from a person who had purchased them from a thief not in market overt. If such purchaser had notice of the felony, he would be liable to restore the goods to the true owner, even if he had resold them in market overt (f). But if the goods were purchased bona fide, without any notice, or any reasonable cause to suspect that the same had been stolen, no restitution would be awarded (g). The mere possession of the goods, with no further indicia of title than a delivery order, is not sufficient to give an indean indefeasible feasible title, and the pawner or assign of such delivery order from the fraudulent holder could not resist the claim of the true owner in an action of trover (h). In Scotland, no pur title. (a) Blac. Comm. 446. (b) 19 & 20 Vict. c. 97. (c) Hiern v. Mill, 13 Ves. 122. (d) Lyons v. De Pass, 11 Ad. & E. 326. The case of market overt, 5 Rep. 836. (e) Wilkinson v. King, 2 Camp. 335. (f) 8 Geo. 4, c. 29, s. 57; Peer v. Humphrey, 4 N. & M. 430. (g) 8 Geo. 4, c. 29, § 57. (h) Kingsford v. Merry, 5 Weekly Rep. 151. chaser of stolen goods can acquire an absolute right to them against the true owner. There is no implied warranty of title in the sale of a specified No implied ascertained chattel. In order to render the seller liable for a title. warranty of bad title, he must have given either an express warranty, or an equivalent to it, by declaration or conduct, or he must have practised fraud, as by concealing from the purchaser that he had no title (a). Such express warranty may be inferred from usage of trade, or from the nature of the trade being such as to lead to the conclusion that the person carrying it on must be understood to engage that the purchaser shall enjoy that which he buys against all persons (b). But although on the sale of a specified chattel there is no implied warranty of title, the purchaser, who should be compelled to give up the goods to the real owner, may recover his money as on a consideration that has failed (c). In an executory contract, however, when the subject is unascertained, and is afterwards to be arranged, both parties must be taken to have meant that a good title to the subject should be transferred (d). When a person sells goods which are not his own, and the real owner is found, the purchaser is entitled to pay him the price, and the wrongful vendor could not maintain an action against the purchaser for the price (e). When the vendor sells goods in his peculiar character, such as auctioneer, agent, sheriff, pawnbroker, or pledgee, it becomes the duty of the purchaser to inquire into the title, and if it be afterwards found that the vendor had no title to sell, and the purchaser is evicted, he cannot recover compensation except he can establish a case of fraud (f). § 3. Warranty of Quality. Title of the real owner when found. A fair price given for an article does not imply a warranty No warranty that the article is merchantable, and the seller is not answerable implied any for latent defect unknown to him. When the article turns out not to be that which it was supposed, the purchaser bears against latent defects. (d) Ibid. It is different when an article is sold for a particular purpose. What amounts to a warranty. the loss (a). Both in England and Scotland, if the seller had no knowledge at the time of the sale that the goods were defective, or of bad quality, he is not held to have warranted their quality or sufficiency, and goods sold with all faults are at the risk of the purchaser, unless the seller has given an express warranty of the quality or sufficiency of such goods, or unless the goods have been expressly sold for a specified and particular purpose, in which case the seller is considered without such warranty to warrant that the same are fit for such purpose (b). When an article is ordered to be used for a particular purpose, as copper for sheathing a ship, the seller in executing the order is held to warrant that the copper shall be fit for the purpose for which it is required (c). But where a party orders a known ascertained article, stating the purpose for which he intends to apply it, there is no implied warranty on the part of the seller that the article is suitable for that purpose (d). Every affirmation made by a seller at the time of sale is a warranty, provided it appears to have been so intended, but a mere representation by the seller of the quality of the article sold does not furnish a ground of action against the seller, on the representation turning out to be untrue, unless the representation be fraudulent (e). A representation made at the time of the sale, and in relation to the subject matter material to the contract, may amount to a warranty when the representation refers to matters within the special knowledge of the seller (f). A warranty may be inferred from a description in an invoice of the goods sold, but the ordinary praise or commendation by a vendor of the goods he sells does not amount to a warranty. The seller is not bound to disclose to the buyer such defects as are susceptible of a discovery by a rigid examination of the goods (g). Where goods have been sold warranted sound, which can be proved were unsound at the time of sale, the seller is liable to an action on the warranty, without either (a) Jones v. Bright, 3 M. & P. 155. (ƒ) Haycraft v. Creasy, 2 East, 103; Moans v. Heyworth, 10 M. & W. 155; Calverley v. Williams, 1 Ves. 212. (g) Baglehole v. Walters, 3 Camp. 154; Schneider v. Heath, 3 Camp. 506; Pickering v. Dowson, 4 Taunt. 779. the goods being returned, or notice given of the unsoundness (a). The breach of a warranty is no answer to an action for the price of goods sold, although it may be used in reduction of the price, or made the subject matter of a cross action (b). misrepresen A misrepresentation will not vitiate a contract, unless bot- Effect of a tomed on fraud, and made with an intention to deceive; if, tation. however, such a representation amounted to a warranty, and the purchaser bought upon the faith of such a warranty, then the contract would be void, even though the seller was not aware of the fact at the time he gave the warranty (c). A purchaser of a commodity to be delivered according to Purchase by sample. sample is not bound to receive the bulk which may not agree with it, nor after having received what was tendered and delivered as being in accordance with the sample will he be precluded by the simple receipt from returning the article after having kept it a reasonable time for the purpose of examination and comparison (d). If, however, the purchaser acts on the contract, and avails himself of the privilege of selling, that would be equivalent to an acceptance (e). The buyer of goods by sample has a right to inspect the whole in bulk at any proper and convenient time, and if the seller refuses to show it, the buyer may rescind the contract (f). When goods are sold by sample, and a custom exists that the purchaser should either return them within a reasonable time, or have an allowance for so much of the goods as do not answer, if the buyer neglects to examine the bulk and signify his rejection of the same, he cannot afterwards refuse to pay the whole price (g). Rights of buyer to inspect the goods. and return. Where there is an agreement to take the goods back if on Sale by trial trial" they should be found faulty, though they were accompanied with an express warranty, it is incumbent on the purchaser to return the goods as soon as the faults are discovered (h). If the purchaser, after giving a reasonable trial to the goods (a) Fielder v. Starkin, 1 H. Bl. 17. (b) Dawson v. Collis, 10 C. B. 523. (c) Williamson v. Allison, 2 East, 446; Jones v. Bright, 3 M. & P. 155. (d) Street v. Blay, 2 B. & Ad. 463. (e) Parker v. Palmer, 4 B. & Ald. 394. (f) Lorymer v. Smith, 1 B. & C. 1. (g) Cooke v. Riddlelien, 1 C. & K. 561; Sander v. Jameson, 2 C. & K. 557. (h) Adams v. Richard, 2 H. Bl. 574. |