there defects only were provided against, while here allowance was to be made for neither defects nor errors. This was construed to include error of description, so far as it was clearly unintentional.

In Allan v. Lake (1852), 18 Q. B. 560, the defendant sold the plaintiff a quantity of turnip seed. In the sold note the seed was described as Skirving's Swede, though the invoice which accompanied it contained no such description. A few days later another parcel of seed was sold by the defendant to the plaintiff, the defendant stating that it was of the "same stock" as the former, and calling it Skirving's Swede. No bought or sold note was given on this occasion, and the invoice contained nothing of description beyond the word "turnips." The court held that the first parcel of seed was clearly sold under warranty as Skirving's Swede, and as to the second parcel there was evidence for the jury of the defendant's having warranted it also as the same.

In Wieler v. Schilizzi (1856), 17 C. B. 619, the defendant sold to the plaintiff certain parcels of Calcutta linseed. On the arrival of the seed the buyer objected to the quality, complaining that it contained a large admixture of rape and mustard seed, and therefore did not satisfy the contract, which called for Calcutta linseed. It appeared from the evidence that no seed comes to market with out some mixture, usually about two or three per cent., but that the seed

in question contained about fifteen per cent. of tares, rape and mustard. The jury were told to consider whether the plaintiff got what he bargained for,- whether there was such an admixture of foreign substances as to alter the distinctive character of the article, and prevent it from answering the description of it in the contract. The jury found for the plaintiff, and a new trial, on the ground of misdirection, was refused.

In Bannerman v. White (1861), 10 C. B. (N. S.) 844, the defendants agreed to buy a large quantity of hops from the plaintiff, who was a well-known hop-grower. The defendants first asked if any sulphur had been used in the treatment of the hops, saying that they would not even ask the price if sulphur had been used. The plaintiff said "No." and the agreement was then made. The hops were delivered and weighed, and subsequently it was discovered that sulphur had been used on five acres out of three hundred, but this fact was forgotten by the plaintiff, whose representation was without fraud. The question was put to the jury, "Was the affirmation that no sulphur had been used intended be tween the parties to be part of the contract of sale, and a warranty by the plaintiff?" The jury answered in the affirmative. It was therefore held to be the intention of the parties that the contract should be void if sulphur had been used.

In Josling v. Kingsford (1863), 13

C. B. (N. S.) 446, a contract was made for the sale of a quantity of "oxalic acid." The defendant, who sold the acid, was not the manufacturer. In making the contract he expressly disclaimed all responsibility as to the quality of the article, and at his suggestion the plaintiff, who nego tiated the sale on commission, himself inspected it in order to form his own judgment as to its nature and properties. The buyer, having found that the acid contained a large amount of foreign substance, sued the plaintiff, and the plaintiff brought an action against the defendant on his contract, alleging non-delivery of "oxalic acid" according to agree ment. The jury were told that the contract in question could be performed only by delivering that which in commercial language might be said to properly come under the denomination of oxalic acid. This direction was approved.

In Azemar v. Casella (1867), L. R. 2 C. P. 431, there was a contract for the sale by plaintiffs to defendants of "one hundred and twenty-eight bales of cotton, expected to arrive in London, per Cheviot, from Madras. The cotton guarantied equal to sealed sample in our [the brokers'] possession. Should the quality prove inferior to the guaranty, a fair allow ance to be made." The sample was "long-staple Salem" cotton, while the bales sent contained "Western Madras," an inferior grade. Willes, J., says: "In determining the question, it is impossible to exclude from one's mind the fact that when a man bar

gains for long-staple Salem cotton, and the seller offers him cotton of a totally different kind, and cotton which requires a different description of machinery for its manufacture, he is seeking to compel him to accept X when he bargained for Y. The allowance was to be in respect of inferiority of quality, and not of difference of kind: and the defendants were not bound to accept with an allowance cotton of a description different from that which they bargained for.”

In Hopkins v. Hitchcock (1863), 14 C. B. (N. S.) 65, the defendant received an order from a correspondent at Bremen to purchase for him bar iron of a description known there as S. & H. crown iron. Upon inquiry he found that the firm of Snowden & Hopkins, whose mark that was, had ceased to exist, and had been suc ceeded by the firm of Hopkins & Co. (the plaintiffs); and he accordingly bought, through a broker,sixty-seven tons of iron from the plaintiffs, which was described in the bought and sold notes as "S. & H. (crown) common bars." The iron when tendered was found to bear the mark of the new firm "H. & Co.," with a crown, and was rejected by the defendant. The jury found that the mark “S. & H.” was not material. Accordingly the court held that the contract was not for iron of a particular brand, but for iron of a known quality, and that the plaintiff tendered the article for which the defendant contracted.

1 In Wolcott v. Mount, 36 N. J. L. 262, 13 Am. R. 438, it is said that, so long as the contract remains so far executory that repudiation or rescission is possible, the description may properly be treated as a condition; but that when repudiation or rescission are no longer possible, the buyer may then regard it as a warranty. Referring to this case, it is said in Morse v. Union Stock Yards, 21 Oreg. 289, 28 Pac. R. 2, 14 L. R. A. 157, that, "strictly speaking, the conditions do not become warranties, but, the sale having become consummated, the same facts which before constituted conditions precedent now constitute warranties."

The distinction is of no consequence in those States (see ante, § 816) which permit rescission for mere breach of warranty.

2 The old English case of Chandelor V. Lopus, 2 Cro. Jac. 2, Smith's Lead. Cases, vol. I, 238, in which an assertion

2

by the seller that a jewel sold was a Bezoar stone was held not to amount to a warranty that it was such, has, upon this point, been overruled in England, and in this country has been quite generally disapproved; and the early New York cases (which were based upon Chandelor v. Lopus), e. g. Seixas v. Woods, 2 Caines, 48, 2 Am. Dec. 215, and Swett v. Colgate, 20 Johns. 196, 11 Am. Dec. 266, have been disapproved in many of the other States, and have been prac tically overruled in New York, so far as the point now under consideration is concerned. See Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. R. 595; White v. Miller, 71 N. Y. 118, 27 Am. R. 13.

Chandelor v. Lopus has, however, been quite persistently adhered to in Pennsylvania and the warranty by description is limited to executory sales. See Ryan v. Ulmer, 108 Pa. St. 332, 56 Am. R. 210, 137 Pa. St. 310, 20

Atl. R. 705; Selser v. Roberts, 105 Pa. St. 242; Fogel v. Brubaker, 122 id. 7. 1 Thus in Edgar v. Breck & Sons (1899), 172 Mass. 581, 52 N. E. R. 1083, it is said that "when an executory contract is made for the sale of a described article, the correspondence between which and the description cannot be ascertained until after acceptance, words which before are words of description may be found to operate as a warranty after the goods are accepted and the sale is complete. It would work injustice to treat an essential term of the contract as performed or waived at a time when the purchaser still is unable to tell whether it has been performed or not. White v. Miller, 71 N. Y. 118, 129; Shaw v. Smith, 45 Kan. 334, 338. See Henshaw v. Robins, 9 Metc. 83."

A sale of seeds described in the catalogue and in the bill of parcels as "large Bristol cabbage seed" implies a warranty that the seed is of that variety. White v. Miller, 71 N. Y. 118, 27 Am. R. 13. Practically identical are Wolcott v. Mount, 36 N. J. L. 262, 13 Am. R. 438, 38 N. J. L. 496; Van Wyck v. Allen, 69 N. Y. 61, 25 Am. R. 136.

A sale of bulbs as being of a certain variety imports a warranty that they shall prove to be of that variety. Edgar v. Breck & Sons, supra.

A customer inquired of a storekeeper if he had rape-seed for sale, and the latter replied that he had. The customer then said he would take twenty-five pounds, and the store-keeper weighed out that quantity of seed from a sack, which the

other took and paid for. It was not rape-seed but wild mustard seed, though both seller and buyer were ignorant of that fact. Held, a warranty would be implied that the seed was rape-seed. Hoffman v. Dixon (1900), 105 Wis. 315, 81 N. W. R. 491, 76 Am. St. R. 916.

A description of an article in a bill of parcels as "blue paint" amounts to a warranty that it shall be blue paint. Borrekins v. Bevan, 3 Rawle (Pa.), 23, 23 Am. Dec. 85. A description of goods as "strained rosin" imports a warranty that it is such, and the fact that the buyer made some examination of the goods does not prevent his relying on the warranty where the defect could not have been fully discovered without tearing apart the barrels in which it was packed and in which the buyer designed to ship it to market. Lewis v. Rountree, 78 N. C. 323.

A. description in an advertisement and in a bill of parcels of an article as "indigo" amounts to a warranty that it is indigo: Henshaw v. Robins, 9 Metc. (Mass.) 83, 43 Am. Dec. 367; a description of the article as "blue vitriol" imports a warranty that it is such, and not green vitriol: Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. R. 595; a description of the article as "Paris green" amounts to a warranty that it is Paris green and not "chrome green." an article of similar appearance but less value: Jones v. George, 61 Tex. 345, 48 Am. R. 280, relying upon Wolcott v. Mount, 36 N. J. L. 262, 13 Am. R. 438, cited supra.

A description in a bill of parcels of

goods sold as "winter-pressed sperm oil" amounts to a warranty that it is winter pressed and not summer pressed, which is inferior. Osgood v. Lewis, 2 H. & G. (Md.) 495, 18 Am. Dec. 317. Hastings v. Lovering, 2 Pick. (Mass.) 214, 13 Am. Dec. 420, is. substantially identical.

A sale made by the descriptive words "No. 2, white mixed corn," imports a warranty both as to quality and variety. Miller v. Moore, 83 Ga. 684, 10 S. E. R. 360, 6 L. R. A. 374, 20 Am. St. R. 329.

A sale of a quantity of "pure Manilla twine" imports a warranty that it shall be such. Northwestern Cordage Co. v. Rice (1896), 5 N. Dak. 432, 67 N. W. R. 298, 57 Am. St. R. 563.

A contract to deliver ice of a described quality and thickness imports a warranty that the ice shall be of that quality and thickness. Morse v. Moore, 83 Me. 473, 22 Atl. R. 362, 23 Am. St. R. 783, 13 L. R. A. 224. On an order for two carloads of "beef cattle," which order the seller accepts, and then selects and ships without inspection by the buyer, there is an implied warranty that the cattle correspond to the description. Morse v. Union Stock Yards, 21 Oreg. 289, 28 Pac. R. 2, 14 L. R. A. 157. In Foos v. Sabin, 84 Ill. 564, the sale was of "fat cattle," and it was held that, though there was no implied warranty that the cattle would be of any particular weight, there

was an implied undertaking that they would be fit for sale in the market as "fat cattle."

See also Hogins v. Plympton, 11 Pick. (Mass.) 97; Drew v. Edmunds, 60 Vt. 401, 15 Atl. R. 100, 6 Am. St. R. 122.

Description must be basis of sale. If the goods are really sold upon some other basis than description, then the mere fact that in a bill of parcels or otherwise they are subsequently described as of a certain kind will not change the sale to one by description with its attendant warranty. "This," said the court in Carson v. Baillie, 19 Pa. St. 375, 57 Am. Dec. 659, "would be equivalent to declaring the bill to be the only evidence of the contract, a proposition that was never thought of; and all the cases on implied warranty show that no such decision was ever intended. When a sale is by sample, then the sample, and not the name given in the bill of sale, is the standard by which the article is to be tested, because the purchase is made on the faith of the correspondence between the sample and the goods sold. Where goods are sold on inspection, there is no standard but identity, and no warranty implied other than that the identical goods sold, and no others, shall be deliv ered."

1 How where defect was latent.But where the goods are sold by description, the fact that the buyer