quality or chemical test might be, was a clear breach of the undertaking entered into by the parties."

§ 1210. Correspondence to description a condition precedent." When a person buys a particular thing," continued the court, "he cannot be compelled to take some other thing, even if like the thing bought. He has a right to insist on the terms of his contract. If he has unwittingly received that which he has not bought he has the right to return it, or, keeping it, to recoup, when sued for the stipulated price, the damages which a failure to comply with the contract has caused him; or finally, if he has paid the purchase price he has the legal right to sue for and to recover back the difference in value between the price which he paid for an article he did not get and the market price of the substituted article delivered to and retained by him. He cannot, if he has purchased a cargo of peas, be required to take a cargo of beans. Before a defendant can be compelled to take anything in fulfillment of a contract of sale, it must be shown not merely that it is equally as good as the article that was sold, but that it is the same article he has bargained for and none other.

"In other words, if the sale is of a described article, the tender of an article answering the description is a condition precedent to the purchaser's liability, and if this condition be not performed the purchaser is entitled to reject the article, or, if he has paid the purchase price, he is entitled to recover back the price as money had and received for his use.

"It can make no possible difference whether the failure of the plaintiff to receive what he contracted to get grew out of the fraud of the defendant or out of an accident unmixed with bad faith."

§ 1211. Opportunity for inspection.-In another case" the court said: "When a vendor sells an article by a particular description it is a condition precedent to his right of action

1 In Columbian Iron Works v. Douglass, supra.

2 Fogel v. Brubaker (1888), 122 Pa. St. 7, 15 Atl. R. 692.

that the thing which he offers to deliver, or has delivered, should answer the description. If this condition be not performed the purchaser is entitled to reject the article, or, if he has paid for it, he may recover back the price as money had and received to his use. The right to repudiate the purchase for non-conformity of the article delivered to the description under which it was sold is universally conceded; and it comports with sound legal principles to treat such engagements as conditions in order to afford a purchaser a more enlarged remedy by rescission than he would have on a simple warranty; and, as an inspection of the goods is necessary to enable the buyer to ascertain whether they answer the description by which they were sold, it follows that a seller is bound to give the buyer an opportunity to make such inspection, and an acceptance by a buyer for that purpose will not be a waiver of his right to reject if the goods do not answer the description."

§ 1212. Conformity to sample a condition precedent.For like reasons, where goods have been sold by sample it is also a condition precedent1 to the seller's liability that the bulk, both in nature and quality, shall correspond to the sample. If it does not the buyer need not receive it, and if, on examination after receipt,- and for this purpose the buyer is entitled to a reasonable opportunity,-it proves not to corrrespond, he may reject it.2

§ 1213. Merchantability a condition precedent. So, also, "in every contract to supply goods of a specified description which the buyer has had no opportunity to inspect, the goods must not only answer the specific description, but must also be salable or marketable under the description." Even in the

1 Usually called a warranty; as to Waring v. Mason (1837), 18 Wend. which, see post. § 1320 et seq. (N. Y.) 425; Bach v. Levy (1886), 101 N. Y. 511, 5 N. E. R. 345, and many other cases cited under the same heading in the following chapter on Warranty.

2 Heilbutt v. Hickson (1872), L. R. 7 C. P. 438; Magee v. Billingsley (1842), 3 Ala. 679; Beirne v. Dord (1851), 5 N. Y. 95, 55 Am. Dec. 321:

absence of any express stipulation, "this is an implied term1 in every such contract." If they are not such the buyer may reject them.

§ 1214. Fitness for intended use a condition precedent.And again, where a manufacturer or dealer undertakes to furnish an article which he manufactures or in which he deals, in order that the buyer may apply it to some purpose which he discloses to the seller, and the contract is made under such circumstances as to indicate a purpose to put upon the seller the responsibility of furnishing an article fit for the purpose so disclosed, it is an implied condition' that the article supplied shall be reasonably adapted to the purpose to be so subserved. If the article be not so fit, the buyer may refuse to accept it when tendered, or, on discovery after reasonable opportunity for examination, may reject it.

§ 1215. Time, place and quantity as conditions precedent-Time. So, as has been seen in the preceding chapter on delivery, stipulations in executory contracts concerning the time and place of shipment or delivery and the amount to be so shipped or delivered are usually regarded as being of the essence of the contract, and compliance is a condition precedent to the buyer's liability. To recall a rule already quoted, it is said by Mr. Justice Gray in the supreme court of the United

1 Usually denominated a warranty, and so dealt with in the following chapter, § 1340 et seq.

2 Jones v. Just, L. R. 3 Q. B. 197; Warner v. Arctic Ice Co. (1883), 74 Me. 475; Hood v. Bloch (1886), 29 W. Va. 244; Fogel v. Brubaker (1888), 122 Pa. St. 7, 15 Atl. R. 692; Swett v. Shumway (1869), 102 Mass. 365, and many other cases under the same heading in the following chapter on Warranty.

Usually designated a warranty, and as such fully considered in the following chapter, § 1343 et seq.

4 Jones v. Just, L. R. 3 Q. B. 197; Gerst v. Jones (1879), 32 Gratt. (Va.) 518; Jones v. Padgett, 24 Q. B. Div. 650; Breen v. Moran (1892), 51 Minn. 525, 53 N. W. R. 755; Best v. Flint (1886), 58 Vt. 543; Hight v. Bacon (1878), 126 Mass. 10, and many other cases cited under the same heading in the following chapter on Warranty.

5 See ante, §§ 1129-1153, where the question of the time of delivery is fully considered.

States: "In the contracts of merchants time is of the essence. The time of shipment is the usual and convenient means of fixing the probable time of arrival, with a view of providing funds to pay for the goods, or of fulfilling contracts with third persons. A statement descriptive of the subject-matter, or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty in the sense in which that term is used in insurance and maritime law,- that is to say, a condition precedent, upon the failure or non-performance of which the party aggrieved may repudiate the whole contract." 1

§ 1216. Quantity. And in the same case it is said: "The seller is bound to deliver the quantity stipulated, and has no right either to compel the buyer to accept a less quantity, or to require him to select part out of a greater quantity; and when the goods are to be shipped in certain proportions monthly, the seller's failure to ship the required quantity in the first month gives the buyer the same right to rescind the whole contract that he would have had if it had been agreed that all the goods should be delivered at once."

§ 1217. Place. Like effect usually is to be given to stipulations respecting the place of delivery. The contract may be silent as to the place, and then the law supplies the deficiency, or there may be an express stipulation concerning the place, and then the contract prevails. Where the place at which the seller is to deliver is thus stipulated, performance by delivery at that place is, unless waived, a condition precedent to the buyer's liability.

The several matters of time, place and quantity have, however, been so fully dealt with in the preceding chapter that

1 In Norrington v. Wright (1885), 115 U. S. 188, 203.

2 Norrington v. Wright, supra, pp. 204, 205. See also as to quantity the full discussion in preceding chapter, § 1157 et seq.

3 See preceding chapter, SS 11241128, as to place of delivery.

4 Van Valkenburgh v. Gregg (1895), 45 Neb. 654, 63 N. W. R. 949.

nothing more is necessary here than to call attention to their nature as conditions.

§ 1218. Difference in legal effect between condition and warranty. The distinction in legal effect between a condition precedent and a warranty is important. The non-performance of the condition, unless it be waived, prevents the buyer's liability from attaching; it justifies him in rejecting the goods, repudiating the contract and treating it as at an end. The breach of a warranty, however, as will be seen in the following chapter, hàs no such effect. The buyer's liability attaches, he may not usually reject the goods or rescind the contract, and he must find his remedy in an action for damages for the injury caused him by the breach.

§ 1219. Condition precedent becoming warranty after acceptance. But may this condition precedent have any other effect than to give the buyer the right of rejection? Supposing that the goods when tendered by the seller are obviously not such as the contract contemplated, if the buyer accepts them does he thereby waive any right of recovery or recoupment because of such defects? Supposing that the goods when tendered are apparently in conformity to the contract and the buyer accepts them only to discover later that they are subject to latent defects not discoverable by ordinary examination has he now any remedy? As will be seen in a later chapter1 in which this subject is fully discussed, there is much difference of opinion.

§ 1220. It is held in certain cases that as to all defects at least which were discoverable upon examination, the buyer, in the absence of fraud, is conclusively estopped by his acceptance, and can afterwards neither reject the goods nor recover upon any surviving warranty. By other cases, however, it is held that the buyer's acceptance even as to discoverable defects

1 Post, ch. VII, on Acceptance by the Buyer, § 1363 et seq.

"See these cases fully collected, post, § 1391 et seq.