S. 14 (3).

8. 14 (4). Effect of

express condition in excluding implication.

Implied condition annexed by usage of trade.-This subsection is based upon the case of Jones v. Bowden, quoted in illustration. See also Syers v. Jonas (u), and Weall v. King (x). It will be observed that the buyer inspected the sample of the pimento, which did not disclose the defect; and the case is, accordingly, quite in accordance with the principle stated in the proviso to the preceding sub-section.

ILLUSTRATION.

A. sells to B. by auction a quantity of sea-damaged pimento, without stating it to be such. B. examines fair samples of the bulk, which show the goods to be of inferior quality, but not showing they were sea-damaged. There is a trade usage to state this fact if it exists. There is a warranty by A. that the pimento is not sea-damaged. Jones v. Bowden (1813), 4 Taunt. 847.

Express condition does not negative implied, etc.-This subsection adopts the law of Bigge v. Parkinson (y).

The maxims of the common law are modus et conventio vincunt legem, and expressum facit cessare tacitum; i.e., if the express agreement of the parties is inconsistent with the term implied by the law the latter must give place. This sub-section states merely a particular instance of that general principle which is again referred to in the notes to s. 55. The Court will not "by inference insert in a contract implied provisions with respect to a subject which the contract has expressly provided for. If a man sell a horse, and warrant it to be sound, the vendor knowing at the time that the purchaser wants it for the purpose of carrying a lady, and the horse, though sound, proves to be unfit for that particular purpose, this would be no breach of the warranty. So with respect to any other kind of warranty: the maxim expressum facit cessare tacitum applies to such cases. this were not so, it would be necessary for the parties to every agreement to provide in terms that they are to be understood not to be bound by anything which is not expressly set downwhich would be manifestly inconsistent" (z).

If

Subject to the above limitation, there is no reason why the buyer may not bargain for goods of various qualities, each guaranteed by an express condition by the seller. "The doctrine that an express provision excludes implication," says Willes, J. (a), does not affect cases in which the express provision appears on the true construction of the contract to

(u) (1848), 2 Ex. 111.

(x) (1810), 12 East, 452, quoted in Jones v. Bowden, supra.

(y) (1862), 7 H. & N. 955.

(2) Per Maule, J., in Dickson v. Zizania (1851), 10 C. B. at p. 610. (a) Mody v. Gregson (1868), L. R. 4 Ex. at p. 53.

have been superadded for the benefit of the buyer," where in fact there is "an independent and additional undertaking" by the seller (6). Thus, e.g., an express warranty that the goods are according to sample would not be inconsistent with the implied condition as to merchantable quality if the sample was deceptive, as in Mody v. Gregson (c). The express intention that the goods should conform to the sample is not inconsistent with the implied intention that they should be merchantable, where the sample represented a merchantable article; it would be otherwise if the sample truly represented the particular quality of the bulk (c). On the other hand, where the parties have agreed upon a particular standard by which the quality is to be gauged, any implied warranty of quality or fitness would ordinarily be negatived, as where they contract for goods of a particular description and quality, "as classified by official surveyors" (d), or for goods "of the same quality as the seller made" for other persons (e). In both these cases the express warranty would negative the implied.

ILLUSTRATIONS.

1. A., in answer to B.'s request for tenders for stores for troops which B. had contracted to convey to India, offers to supply B. with troop stores, guaranteed to pass the survey of the Honourable East India Company's officers. A. delivers the stores, which pass the survey, but are unsound. A. is liable to B. for a breach of warranty that the stores should be fit as troop stores, although the express warranty was satisfied, the two not being inconsistent. Bigge v. Parkinson (1862), 7 H. & N. 955.

2. A. agrees to sell B. a cargo of Indian corn, which he expressly warrants to be equal to the average of the shipments of that season, and should be shipped in good and merchantable condition. The corn is bought, to the knowledge of A., for a foreign voyage. A. has not warranted that the corn was fit for a foreign voyage, as his express warranty related only to the quality on shipment. Dickson v. Zizania (1851), 10 C. B. 602.

3. B., a cloth merchant, orders of A., a cloth manufacturer, for the purpose (as A. knows) of re-selling to tailors, a quantity of worsted coatings. The goods are to be in quality and weight equal to samples previously furnished. The samples and the goods supplied contain a latent defect which renders them unfit as coatings and unmerchantable. A.'s express warranty, that the goods should be equal to sample, is not inconsistent (so far as latent defects are concerned) with the implied condition that the goods should be merchantable and fit. Drummond v. Van Ingen (1887), 12 App. Cas. 284.

4. A. agrees to sell to B. "bright fresh spruce deals averaging second quality, as classified by official surveyors.' A. delivers deals of that description and quality as classified. A. has fulfilled the condition, though the goods may be unmerchantable to B. Stewart (1883), 12 L. R. Ir. 125.

(6) Per Brett, L.J., in Johnson v. Raylton (1881), 7 Q. B. D. at p. 451. (e) (1868), L. R. 4 Ex. 49,

McLelland v.

(d) McLelland v. Stewart (1883), 12 L. R. Ir. 125.

(e) Dewitt v. Berry, 134 U. S. 306.

S. 14 (4).

S. 15.

Sale by sample.

S. 15 (1).

Sale by Sample.

15. (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.

"A sale by sample, properly so called, is merely a particular case of a sale by description. The goods are impliedly described as being of a homogeneous bulk, out of which the sample has been drawn, and the quality of which is therefore represented by the sample" (e).

But the sample must be a sample of that which the buyer agreed to buy (f), i.e., the condition as to the description of the goods must first be satisfied. See s. 13, ante, p. 88.

Sometimes goods are contracted to be sold according to an "average sample." For the meaning of this, see the American cases cited in the note (g).

A term to that effect. "It must not be assumed that, in all cases where a sample is exhibited, the sale is a sale by sample.' The vendor may show the sample, but decline to sell by it, and require the purchaser to examine the bulk at his own risk; or the buyer may decline to trust to the sample and the implied warranty, and require an express warranty, in which case there is no implied warranty, for expressum facit cessare tacitum" (h).

"This was not a sale by sample. The sample was not produced as a warranty that the bulk corresponded with it, but to enable the purchaser to form a reasonable judgment of the commodity (i).

ILLUSTRATION.

A. exhibits to B. a sample of Sassafras wood, which B. inspects, and A. then agrees to sell the wood to B., described in the sale note as "fair merchantable Sassafras wood." This is a sale on an express condition or warranty that the wood shall be as described, and not a sale by sample, the sale note being silent as to any sample. Tye v. Finmore (1813), 3 Camp. 462 (k).

(e) Campb. on Sale of Goods (1st ed.), p. 305.

(f) Nichol v. Godts (1854), 10 Ex.

191.

(g) Leonard v. Fowler (1871), 44 N. Y. 289; Schnitzer v. Oriental Print Works, 114 Mass. 123.

(h) Benj. p. 641. See per May,

C.J., in McMullen v. Helberg (1879), 4 L. R. Ir. at p. 121.

(i) Per Lord Ellenborough, in Gardiner v. Gray (1815), 4 Camp. at p. 144.

(k) See also Meyer v. Everth (1814), 4 Camp. 22; Gardiner v. Gray (1815), ib. p. 144.

(2.) In the case of a contract for sale by sample—S. 15 (2). (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:

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

Implied

condition

Bulk shall correspond with sample.-Sub-s. (2) (a) must be S. 15 (2) (a). read subject to s. 13, supra. "The sale by sample is a contract to sell a quantity that bulk of goods answering to the sample" (7). And "the purchaser corresponds with sample may reject the commodity if it does not correspond with the in quality: sample" (m).

"If I buy a commodity wholly discordant to that which is promised me, I am not bound to accept of a compensation for the dissimilarity. This is not a performance of the contract" (n).

The above extracts show clearly that, by the previous law, the warranty of accordance with sample was really a condition, as it is now expressly stated to be.

It will be observed that the only condition implied in this clause is that the goods should conform to the sample in quality, which includes, by s. 62 (1), "state or condition." The use of a sample usually negatives the implication that the goods should be of any particular quality (o), and naturally so, as "the office of a sample is to present to the eye the real meaning and intention of the parties with regard to the subject-matter of the contract" (p); and they are presumed to be contracting for goods of a quality only similar to the sample. This rule is quite consistent with the rule laid down in s. 13, that the goods should also conform to their description, as the sample must be a sample not only of the quality of the goods contracted

(1) Per Cur. in Hill v. Smith (1812), 4 Taunt. at p. 532.

(m) Per Abbott, C.J., in Parker v. Palmer (1821), 4 B. & A. at p. 392.

(n) Per Lord Ellenborough, in Hibbert v. Shee (1807), 1 Camp. at p.

114.

(0) Per Cur. in Mody v. Gregson (1868), L. R. 4 Ex. 49.

(p) Per Lord Macnaghten, in Drummond v. Van Ingen (1887), 12 Ap. Ca. at p. 297.

8. 15 (2) (a). for, but must be a sample of the goods contracted for, and not of

S. 15 (2) (b). and that buyer shall

have reasonable opportunity of comparing the bulk:

something else (q).

In some cases the sample will be the only description of the goods contracted for, e.g., when the seller sells by sample a white mineral of which he had found a vein, and does not know what it is (r); or a seed which he cannot identify (s). In such cases conformity of the bulk with the sample satisfies not only the condition as to quality under this sub-section, but also that of description under s. 13. The case is otherwise when the sale is of goods generally known in commerce according to sample. Here the buyer has not, as he has in the case above, information of the character of the bulk, and the latter must be merchantable (r). This is dealt with in sub-s. 2 (c), infra.

A mistake by the seller in exhibiting the wrong sample is no ground for avoiding the sale (t), as the seller is, "by his own fault, precluded from setting up that he had entered into [the contract] in a different sense to that in which it was understood by the other party" (u).

ILLUSTRATIONS.

1. A. agrees to sell to B. seventeen pockets of hops according to sample, to be paid for by a bill of exchange. B. draws a bill and indorses it to A. A. delivers hops which are not in accordance with sample, which B. refuses to accept. A. cannot sue B. on the bill, as the consideration for the bill has wholly failed. Wells v. Hopkins (1839), 5 M. & W. 7.

The

2. A. agrees to sell to B., by sample, a seed which A. calls "seed barley," but does not bind himself as to its exact character. bulk delivered by A. corresponds to the sample, but is not seed barley. A. has fulfilled the condition of the contract. Carter v. Crick (1859), 4 H. & N. 412.

3. B. buys of A. at a public sale, by sample, sixteen hogsheads of sugar. The sugar, when delivered, is not according to sample, and B. rejects it. A. cannot recover the price of the sugar from B. Hibbert v. Shee (1807), 1 Camp. 113.

Opportunity of comparing the bulk with the sample.-This clause is founded on the case of Lorymer v. Smith, quoted in illustration (x).

As the buyer has a right of rejection if the bulk of the goods delivered do not agree with the sample, he has also a right to a

(g) Nichol v. Godts (1854), 10 Ex. 191; see under s. 13, ante, p. 88.

(r) Per Cur., in Mody v. Gregson (1868), L. R. 4 Ex. 49.

(s) Carter v. Crick (1859), 4 H. & N. 412.

(t) Scott v. Littledale (1858), 8 E. & B. 815; see Benj. p. 63,

(u) Per Hannen, J., in Smith v. Hughes (1871), L. R. 6 Q. B. at p. 609. (x) Cf. with that case, Pettitt v. Mitchell (1842), 4 M. & G. 819, which was an express contract, and held under the circumstances that the buyer had no right to measure the goods.