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plaintiffs were entitled to recover the loss of profit on the whole 30,000 pairs which would have accrued to them if the shoes had been accepted by the French Government, as well as the price already paid to the defendants, and that the plaintiffs were entitled to throw back on the defendants' hands the whole of the shoes at Lille, as well as those which had been delivered at Fenning's Wharf and not forwarded to Lille. Referring to the alleged acceptance of the shoes by the plaintiffs after the inspection in London, Brett, J., said: "The defect, though known to the defendants' servants, was a secret defect, not discoverable by any reasonable exercise "of care or skill on an inspection in London. By the "necessary inefficacy of the inspection in London-an inefficacy caused by this kind of fault, viz., a secret defect of "manufacture which the defendants' servants committed"the apparent inspection in London could be of no more "practical effect than no inspection at all; the real "inspection at Lille being by the acts of the defendants' "servants the first possibly effective inspection, it seems to "me that such inspection was, by the acts of the persons for "whose acts the defendants were responsible, substituted for "the first inspection stipulated for by the contract "(a).

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The general rule of the common law in regard to quality under a contract of sale is expressed by the maxim caveat emptor. Except in cases of fraud, the buyer purchases at his own risk unless there has been a condition or warranty, either express or to be implied from the circumstances of the sale. The rules relating to implied conditions are to be found in section 14 of the Sale of Goods Act, which provides:

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"(1.) Where the buyer, expressly or by implication, makes "known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the "seller's skill or judgment and the goods are of a description "which it is in the course of the seller's business to supply "(whether he be the manufacturer or not), there is an implied. condition that the goods shall be reasonably fit for such

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(a) For a sale of goods "with all faults," see Ward v. Hobbs, 4 App. Ca. 13.

+

"purpose, provided that in the case of a contract for the sale "of a specified article under its patent or other trade name, "there is no implied condition as to its fitness for any particular "purpose:

"(2.) Where goods are bought by description from a seller "who deals in goods of that description (whether he be the "manufacturer or not) there is an implied condition that the "goods shall be of merchantable quality: provided that if the "buyer has examined the goods, there shall be no implied con"dition as regards defects which such examination ought to "have revealed:

(3.) An implied warranty or condition as to quality or "fitness for a particular purpose may be annexed by the usage "of trade.

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"(4.) An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent "therewith."

46

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This section supplies the exception to the maxim caveat emptor. In Brown v. Edgington (a), in 1841, Erskine, J., stated: "When a party undertakes to supply an article for any particular purpose, he warrants that it shall be fit and proper for such purpose. If a purchaser himself selects the "article, it has been held that the mere fact that the vendor "knew the use for which it was designed will not raise an implied warranty, because the skill and judgment of the "latter are not relied on in making the purchase" (b).

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In Chanter v. Hopkins (c), in 1838, the defendant sent the plaintiff a written order as follows:-"Send me your patent 'hopper and apparatus, to fit up my brewing copper with "your smoke-consuming furnace." The plaintiff accordingly furnished the desired article, but it was found to be useless for the purposes of a brewery, and the defendant refused to accept it. In an action for the price, it was held that there

(a) Brown v. Edgington, 2 M. & G. 279.

(b) See Randall v. Newsom (1877), 2 Q. B. D. 109; Jones v. Bright (1829), 5 Bing. 533; Shepherd v. Pybus (1842), 3 M. & G. 868; Drummond v. Van Ingen, 56 L. J. Q. B. 563; (1887), 12 App. Ca. 284.

(c) Chanter v. Hopkins, 4 M. & W. 399.

was no implied warranty (or condition) on the part of the plaintiff that the furnace supplied should be fit for the purposes of a brewery, and that, the defendant having defined by the order the particular machine to be supplied, the plaintiff had performed his part of the contract by supplying that machine.

In Gardiner v. Gray (a), in 1815, the plaintiff purchased 12 bags of waste silk from the defendant. The silk was found to be of a quality not saleable under the denomination of "waste silk." Lord Ellenborough, in delivering judgment, said that, in the absence of any particular warranty, it was an implied term of every such contract that the purchaser should receive a saleable article answering the description in the contract, and that where there was no opportunity of inspecting the commodity, the maxim caveat emptor did not apply. Where, however, the seller undertakes to supply goods of his own manufacture, or goods in which he deals, which the buyer has not had the opportunity of inspecting, the buyer is presumed to be buying on the strength of the seller's judgment, because he only orders goods of a class, and the seller must be presumed to have a special knowledge of such goods (b).

In sales by sample, as has been indicated (c), no property will pass unless and until certain conditions have been fulfilled. This subject is dealt with by section 15 of the Sale of Goods Act, which is as follows:

"(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"(a) There is an implied condition that the bulk shall "correspond with the sample in quality :

"(b) There is an implied condition that the buyer shall "have a reasonable opportunity of comparing the "bulk with the sample (d):

(a) Gardiner v. Gray, 4 Camp. 144.

(b) Jones v. Just, 37 L. J. Q. B. 89; L. R. 3 Q. B. 197.

(c) Ante, p. 209.

(d) Lorymer v. Smith (1822), 1 B. & C. 1; Heilbutt v. Hickson, 41 L. J. C. P.

"(c) There is an implied condition that the goods shall be "free from any defect, rendering them unmerchant"able, which would not be apparent on reasonable "examination of the sample" (a).

In Polenghi v. Dried Milk Co. (b), in 1904, there was a provision in a contract of sale by sample in these terms, "pay"ment to be made in cash in London on the arrival of the " goods "against shipping or railway documents," and the question was whether, in view of that clause, the buyers were entitled, as a condition precedent to payment of the price, to have an opportunity of comparing the bulk with the sample. It was held by Kennedy, J., that by the express term of the contract the buyers were bound to pay on arrival of the goods and production of the documents, although they would still have the right to reject if, on subsequent examination, it was found that the bulk did not correspond with the sample.

In certain cases (c) if the buyer does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of that time, and if no time has been fixed, on the expiration of a reasonable time (which is a question of fact), the property passes to the buyer. In regard to sales by description, section 13 of the Sale of Goods Act provides that 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.

228; (1872), L. R. 7 C. P. 438; but of. Heyworth v. Hutchinson, 36 L. J. Q. B. 270; (1867), L. R. 2 Q. B. 47; Polenghi v. Dried Milk Co. (1904), 10 Com. Cas. 42. (a) Heilbutt v. Hickson, supra; Mody v. Gregson, 38 L. J. Ex. 12; (1868), L. R. 4 Ex. 49; Drummond v. Van Ingen, 56 L. J. Q. B. 563; (1887), 12 App. Ca. 284.

(b) Polenghi v. Dried Milk Co. (1904), 10 Com. Cas. 42.

(c) Sale of Goods Act, s. 18, rule 4; see Beverley v. Lincoln Gas Light Co., in 1837, 6 Ad. & El. 829; Moss v. Sweet, in 1851, 20 L. J. Q. B. 167; 16 Q. B. 493; Ray v. Barker, in 1879, 48 L. J. Ex. 569; L. R. 4 Ex. D. 279; Couston v. Chapman, in 1872, L. R. 2 Sc. Ap. 250; Sanders v. Jameson, in 1848, 2 Car. & Kir. 537; Re Walkers and Shaw, 73 L. J. K. B. 325; [1904] 2 K. B. 152, on custom in such cases; and Sale of Goods Act, s. 35.

The implication must be a necessary implication, and not merely a reasonable one (a).

In Varley v. Whipp (b), in 1900, the plaintiff agreed to sell and the defendant to buy a reaping machine which the defendant had never seen, and which was stated by the plaintiff to have been new the previous year and used to cut only fifty or sixty acres. After delivery the defendant complained that it did not correspond with the plaintiff's statements, and he accordingly returned it. In an action by the plaintiff to recover the price it was held that the contract was one for a sale by description within the meaning of section 13, and that there was an implied condition that the machine should correspond with the description.

In Vigers v. Sanderson (c), in 1901, the plaintiffs sold to the defendants certain parcels of sawn laths, to be of "about "the specification" mentioned in the contract: 33 per cent. of the laths shipped under the contract were not of "about" the specification, nor commercially within its meaning, and it was held by Bigham, J., that the defendants were entitled to reject the whole consignment.

In Gillespie v. Cheney (d), in 1896, coals were supplied under a written contract of sale which contained no mention of the particular purpose for which they were required, viz., bunkering, although prior to the contract the buyers made known to the sellers, who were coal agents, that purpose. It was held that evidence of what took place between the parties prior to the contract was admissible to raise the implication of the condition specified in section 14 of the Act, and that there was an implied condition that the coals were reasonably fit for bunkering, the purpose for which they were required. It was also held in this case that a contract for the sale of coals under a particular description known in the coal trade was not a contract for the sale of a specified article

(a) Per Esher, M. R., in Hamlyn v. Wood, in 1891, 60 L. J. Q. B. 734; 2 Q. B. 488, at p. 491.

(b) Varley v. Whipp, 69 L. J. Q. B. 333; [1900] 1 Q. B. 513.

(c) Vigers v. Sanderson, 70 L. J. K. B. 383; (1901), 6 Com. Cas. 99.

(d) Gillespie v. Cheney, 56 L. J. Q. B. 552; [1896] 2 Q. B. 59.