of the third person, (U. S. v. Robeson, 34 U. S. (9 Peters) 319; Flint v. Gibson, 106 Mass. 391; Robbins v. Clark, 129 Mass. 145; Nofsinger v. Ring, 71 Mo. 149; Conn. Granite Co. v. N. Y. Bridge Co., 32 N. Y. (A. D.) 83; Brogden v. Marriott, 2 Bing. (N. C.) 473; Thurnell v. Balbirnie, 2 M. & W. 786), or the securing of an architect's certificate, (Smith V. Briggs, 3 Den. (N. Y.) 73; Morgan v. Birnie, 9 Bing. 672).

"Their contract expressly provided that their work was to be done under the direction and to the satisfaction of a particular person, to be testified by a writing or certificate under his hand. The construction which this clause is to receive is settled. No right to the money earned under the contract accrues, and no action can be maintained to recover it until the certificate has been procured, or the contractor is entitled to it." Kirtland v. Moore, 40 N. J. Eq. (13 Stew.) 106, 111. Citing Byrne v. Sisters of St. Elizabeth, 45 N. J. L. (16 Vroom) 213.

Or a certificate of a justice of the peace or clergyman. Protection Ins. Co. v. Pherson, 5 Ind. 417; Leadbetter v. Etna Ins. Co., 13 Me. 265; Johnson v. Phoenix Ins. Co., 112 Mass. 49; Noonan v. Hartford Ins. Co., 21 Mo. 81; Inman v. Western Ins. Co., 12 Wend. (N. Y.) 452.

Where the certificate of a magistrate, notary public or clergyman most contiguous to the place of fire is required, it is a condition precedent to the liability of the insurance company to pay the loss which must be strictly complied with and even if the person whose certificate is required wrongfully and without cause refuses

to give it, the insured is bound by the terms of his contract; if it is a hardship, it arises from his own folly in subscribing to such terms. Where the clergyman certified to the plaintiff's character, and that the fire resulted from misfortune without fraud or evil practice, but declined to certify the amount of the loss "solely upon the ground of not having any such knowledge of the amount of property consumed, as to justify him in making any certificate," it was held a noncompliance with the condition. Roumage v. Mechanics' Fire Insurance Co., 13 N. J. L. (1 Green) 110. Citing The Columbian Ins. Co. v. Lawrence, 27 U. S. (2 Pet.) 25; Dawes v. Ins. Co., 7 Cow. (N. Y.) 462; Worsley v. Wood, 6 T. R. 710.

The vendor may recover quantum valebat for goods sold conditioned upon a valuation rendered impossible by the vendee. Benjamin on Sales, § 576; Clarke v. Westrope, 18 C. B. 765 (valuation of straw prevented by consumption by vendee); Batterbury v. Vyse, 2 H. & C. 42 (Payment of builder's claim conditioned on architect's certificate prevented by employer's collusion with architect).

36. Tasker v. Bartlett, 59 Mass. (5 Cush.) 359; Watson v. Walker, 23 N. H. 471; Clough v. Hoffman, 5 Wend. (N. Y.) 500; Benjamin on Sales, § 577.

The test is said to be "that if the obligee has reserved any option to himself by which he can control the event on which the duty of the obligor depends, then he must give notice of his own act before he can call upon the obligor to comply with his engagement." Benjamin on Sales, § 577.

37. Russell v. Nicoll, 13 Wend. (N. Y.) 112; Davis v. Shields, 26 Wend. (N. Y.) 341; Boyd v. Siffkin, 2 Camp. 326 (sale of hemp "on arrival" of vessel, which arrived without hemp); Hawes v. Humbell, 2 Camp. 327 n. (sale of goods "on arrival"); Idle v. Thornton, 3 Camp. 274 ("on arrival"); Lovatt v. Hamilton, 5 M. & W. 639 ("to arrive "); Alewyn v. Pryor, R. & M. 406; Johnson v. McDonald (1842), 9 M. & W. 600 ("to arrive "); Gorrissen v. Perrin, 2 C. B. (N. S.) 681 (goods "expected to arrive"); Vernede v. Webber, 1 H. & N. 311 ("per British vessel Minna"); Simond v. Braddon, 2 C. B. (N. S.) 324 ("per Severn on her way "); Hale v. Rawson, 4 C. B. (N. S.) 85 (" on safe arrival of a certain ship"); Smith v. Myers (1870), L. R. 5 Q. B. 429, L. R. 7. Q. B. 139 ("expected to arrive "); Covas v. Bingham, 2 E. & B. 836 (" cargo per Prima Donna."); Benjamin on Sales, § 578 et seq.

A "parcel" sale is a sale of a definite quantity of grain placed in an ocean vessel with any other freight to be delivered at a definite port to which a vessel is bound by its charter. A " cargo" sale means that the whole purchase must go in one vessel which carries no other freight in order that the whole purchase may be handled without any complications by the purchaser. Heyworth v. Miller Grain & Elevator Co., 174 Mo. 171.

In a sale of goods "to arrive" or “on arrival,” no liability attaches to either party unless and until the condition of arrival happens. Shields v. Pettee, 2 Sand. (N. Y.) 262, 4 N. Y. 122; Benedict v. Field, 4 Duer (N. Y.), 154, 16 N. Y. 595; Reimers v. Ridner, 2 Rob. (N. Y.) 11; Clark v. Fey, 121 N. Y. 470.

"A sale to arrive is conditional, and that if the article contracted for does not arrive, either from the ves

sel being lost or other cause by accident, and without any fraud or fault of the vendor, the contract is at an end. The contract is executory and does not pass the property in the goods to arrive. It is merely an agreement for the sale and delivery of the articles named, at a future period when they shall arrive. It is in the nature of a condition and not a warranty." Neldon v. Smith, 36 N. J. L. (7 Vroom) 148, 154. To the same effect is Dike v. Reitlinger, 23 Hun (N. Y.), 241; Hill v. Blake, 97 N. Y. 216; Abe Stein Co. v. Robertson, 167 N. Y. 101; Rogers v. Woodruff, 23 Ohio St. 632; Stockdale v. Dunlop, 6 M. & W. 224.

Benjamin's resume:

1. Goods sold "on arrival" or "to arrive " (synonomous expressions), "import a double condition precedent, viz., that the ship named shall arrive and that the goods sold shall be on board on her arrival."

2. Goods sold on board a vessel

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named import a warranty that the goods are on board and a single condition precedent, to wit, the arrival of the vessel."

3. The condition is not fulfilled "by the arrival of the goods answering the description of those sold, but not consigned to the vendor."

4. The condition is not fulfilled if the goods are not of the kind described and neither party is bound. Benjamin on Sales, § 586; 1 Mechem on Sales, § 652; Shields v. Pettee, 2 Sand. (N. Y.) 262, 4 N. Y. 122; Neldon v. Smith, 36 N. J. L. 148, 154.

Limitation of time of shipment.-if the time of shipment is limited, it is a condition precendent, and, if not complied with, terminates the contract and releases both parties; Benjamin on Sales, 588a; 1 Mechem on Sales, § 653. Citing Harrison v. Fortlage, 161 U. S. 57; Clark v. Lindsay, 19 Mont. 1; Hill v. Blake,

the absence of fraud or mistake, the written contract of sale,—that is, the bill of sale,-is complete in itself, but silent upon the subject of warranty, oral evidence is not admissible to show such warranty. Thompson v. Libby, 34 Minn. 374; Wheaton Roller-Mill Co. v. Noye Mfg. Co., 66 Minn. 156." McNaughton v. Wahl, 99 Minn. 92, 96.

"A warranty is an incident only of consummated or completed sales and has no force as a contract having present vitality and force in an executory agreement of sale." Osborne v. Gantz, 60 N. Y. 540; Manasquan Gravel Co. v. Ross, 73 N. J. L. (44 Vroom) 506, 512.

"When there is an express warranty, it is unimportant whether the sale be regarded as executory or in praesenti, for it is now well settled that the same rights and remedies attach to an express warranty in an executory as in a present sale.” Fairbank Canning Co. v. Metzger, 118 N. Y. 260. Citing Day v. Poole, 52 N. Y. 416; Parks v. Morris Axe Co., 54 N. Y. 586; Dounce v. Dow, 57 N. Y. 16; Brigg v. Hilton, 99 N. Y. 517.

"A warranty, although a collateral contract, must form part of the transaction involving the sale." Hexter v. Bast, 125 Pa. St. 52.

'Although the contrary was once held, it appears now to be firmly established that an express warranty may exist in connection with an executory contract. Day v. Poole, 52 N. Y. 416; Brigg v. Hilton, 99 N. Y. 517; Fairbank Canning Co. v. Metzger, 118 N. Y. 260; Polhemus v. HeiA warman, 45 Cal. 573. ranty is to be distinguished from

mere representation or expression of opinion. . When parties are negotiating concerning the sale of property then in existence, words of commendation by the seller may properly be held as merely expressions of opinion; but when a written contract is made for the sale of an article not yet in existence, and it is stipulated that it shall be of a particular quality, it would be un reasonable to hold that such stipulation was intended merely as expressing the seller's opinion as to what would be the quality of the article when it was manufactured or produced. Such a stipulation signifies a promise on the part of the seller that the acticle shall be of the quality named." Ellis v. Riddick, 34 Tex. Civ. App. 256, 261.

"A warranty is an express or implied statement of something which the party undertakes, shall be part of a contract, and though a part of the contract, yet collateral to the express object of it." Chanter v. Hopkins (1838), 4 M. & W. 399, 404. To the same effect are: Ehrsam V. Brown, 64 Kan. 466; Mansfield Trigg, 113 Mass. 350, 355; Wilson v. Lawrence, 139 Mass. 318, 321; McNoughton v. Wahl, 99 Minn. 92.

V.

A warranty made on Sunday is not valid. See, also, sec. 73. Grant v. McGrath, 56 Conn. 333, 336.

2. Ellis v. Riddick, 34 Tex. Civ. App. 256; 2 Mechem on Sales, § 1224, et seq.; Benjamin on Sales, § 610.

Whether a statement is a representation or a warranty is a question of fact for the jury, or, upon an agreed statement of facts, of law for

the court. Bradford v. Bush, 10 Ala. 386; House v. Fort, 4 Blackf. (Ind.) 293; Kinley v. Fitzpatrick, 5 Miss. (4 How.) 59; Morrill v. Wallace, 9 N. H. 111; Baum v. Stevens, 24 N. C. (2 Ired.) 411; Foggart v. Blackweller, 26 N. C. (4 Ired.) 238; Wetherill v. Neilson, 20 Pa. St. 448. Affirmation of fact.-The false representation that some one else wants the property and is willing to pay the price being asked is sufficient to support an action. Ives v. Carter, 24 Conn. 392, 405; Benton v. Pratt, 2 Wend. (N. Y.) 385; Risney v. Selby, 1 Salk, 211.

The plaintiff bought a horse at auction without warranty. The day before he was examining the horse when the defendant said to him, "You have nothing to look for. I assure you he is perfectly sound in every respect." The plaintiff replied, "If you say so I am satisfied," and examined no further. The horse was unsound; held, an antecedent representation and no part of the contract. Hopkins v. Tanqueray, 15 C. B. 130; 23 L. J. C. P. 162. also, James V. Bocage, 45 Ark. 284; Zimmerman v. Morrow, 28 Minn.

See,

367; Torkelson V. Jorgenson, 28

Tyson, 147 Pa.

Minn. 383; Holmes v. St. 305; 15 L. R. A. 209; Crossman v. Johnson, 63 Vt. 333; 13 L. R. A. 678.

66

As regards express stipulations, the following points may be noted: A warranty may be either included in the contract of sale [Hopkins v. Tanqueray (1854), 15 C. B. 130 (horse); 23 L. J. C. P. 162; cf. Bannerman v. White (1861), 10 C. B. (N. S.) 844, L. J. C. P. 28 (hops sold by sample); Stucley v. Bailey (1862), 31 L. J. Ex. 483 (yacht)], or may be given after the contract of sale is completed. [Roscorla v.

Thomas (1842), 3 Q. B. 234 (warranty of horse); cf. Heilbutt v. Hickson (1872), L. R. 7 C. P. 438 (army boots)].

Where a warranty is given after the contract of sale is completed it must be supported by fresh consideration. [Roscorla v. Thomas (1842), 3 Q. B. 234. As to an alleged warranty previous to the contract of sale, see Malcolm v. Cross (1898), 35 Sc. L. R. 794.]

The warranty in such case is a supplemental contract. In Scotland, consideration is not necessary to support a simple contract, so there a warranty might be added without fresh consideration.

Any affirmation made at the time of sale may amount to a warranty provided it is intended as such—that is to say, if it is intended to form part of the contract. [Pasley v. Freeman (1789), 3 T. R. 51; 2 Sm. L. C., 9th ed. p. 87, per Buller, J.; Stucley v. Bailey (1862), 31 L. J. Ex. at p. 483, 489.] If, however, the contract be reduced to writing, evidence of a contemporaneous verbal warranty would not be admissible. [Harnor v. Groves (1855), 15 C. B. 667; Aliter if the writing be a mere memorandum of the contract; Allen v. Pink (1838), 4 M. & W. 140 (horse.)] A representation, anterior to the contract, does not constitute a warranty, [Hopkins v. Tanqueray (1854), 15 C. B. 130 (horse); 23 L. J. C. P. 162; but see Bannerman v. White (1861), 31 L. J. C. P. 28 (hops sold by sample], where the representation constituted the basis on which the parties subsequently entered into contract. In such case the untruth of the representation may avoid the contract altogether, though it may give rise to an action for deceit if made fraudulently.