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Warranty. been given, the defendants would not have gone on with the treaty which resulted in the sale. In this sense it was the condition upon which the defendants contracted, and it would be contrary to the intention expressed by this stipulation that the contract should remain valid if sulphur had been used. The intention of the parties governs in the making and in the construction of all contracts. If the parties so intend, the sale may be absolute, with a warranty superadded, or the sale may be conditional to be null if the warranty is broken; and upon this statement of facts we think the intention appears to have been that the contract should be null if sulphur had been used."-Per Erle, C.J., Bannerman v. White (1861), 31 L. J. C. P. 28, at p. 32.

14.—“I agree with what Maule, J., and Crowder, J., say in Hopkins v. Tanqueray. Crowder, J., says, in the plainest terms, in that case, that conversation was a mere representation, and was evidently not made with an intention to warrant the horse. A representation to constitute a warranty, must be shewn to have been intended to form part of the contract.' It seems to me that that is perfectly correct."Per Martin, B., in Stucley v. Baily (1862), 31 L. J., Ex. 483, at p. 489.

15.-" But with respect to statements in a contract descriptive of the subject-matter of it, or of some material incident thereof, the true doctrine established by principle, as well as authority, appears to be, generally speaking, that if such descriptive statement was intended to be a substantive part of the contract, it is to be regarded as a warranty, that is to say, a condition on the failure or non-performance of which the other party may, if he be so minded, repudiate the contract in toto, and be so relieved from performing his part of it, provided it has not been partially executed in his favour. If, indeed, he has received the whole, or any substantial part, of the consideration for the promise on his part, the warranty loses the character of a condition, or, to speak more properly, perhaps, ceases to be available as a condition, and becomes a warranty in the narrow sense of the word, namely, a stipulation by way of agreement for the breach of which a compensation must be sought in damages."-Per Williams, J., in Behn v. Burness (1863), 32 L. J. Q. B. 204, at p. 206.

26.-"The wools are guaranteed 'about similar to samples.' Now such a clause may be a simple guarantee or warranty, or it may be a condition—generally speaking when the contract is as to any goods, such a clause is a condition going to the essence of the contract; but when the contract is as to specific goods the clause is only collateral to the contract, and is the subject of a cross action or matter in reduction

of damages. Here there is, I think, merely a warranty as distinguished from a condition."-Per Blackburn, J., Heyworth v. Hutchinson (1867), L. R. 2 Q. B. 447, at p. 451.

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NOTE B.-CONSTRUCTION OF TERMS AND CONDITIONS. There is no canon of construction peculiar to contracts of sale. In a case arising on a contract of sale where the material words were delivering on April 17th; complete 8th May," Kelly, C.B., says: "The rule of construction applicable in general to all written contracts is, that they are to be construed according to the real intention of the parties, to be collected from the language they have used; that effect is to be given, if possible, to every word used, and that every word is to be interpreted according to its natural and ordinary meaning, unless such construction would be contrary to the manifest intention of the parties, or would necessarily lead to some contradiction or absurdity. But this rule, though applicable to contracts in general, must be received with some qualification, when the contract or a portion of the contract in question consists of an incomplete sentence, ambiguous in its terms, and upon which a literal construction of every word would either be impracticable or would leave the contract indeterminate and uncertain. And such is the case with the contract in question, which I think is to be construed according to what we can collect to have been the substantial intention of the parties, applying our common sense, and such knowledge as we may possess, to the language in which they have expressed themselves." 1

The rule for construing conditions as to delivery and payment is thus given by Williams, J.: "Where there is an agreement to deliver to a vendee on a certain condition and the condition (without any fault on the part of the vendor) never comes to pass, it is plain that he will not be liable for a non-delivery. But where the agreement is absolute or conditional on an event which happens, the vendor will be liable for a breach, although he could not help the non-performance; for it is his own heedlessness if he runs the risk of undertaking to perform an impossibility, when he might have provided against it by his contract." And see note C., post, pp. 187, 188.

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Some useful rules are given by Stephen, J., for the construction of

1 Coddington v. Paleologo (1867), L. R. 2 Ex. 193, at p. 200; cf. Honch

v. Muller (1881), 7 Q. B. D. 92, at p. 103, per Lord Esher.

2 Hale v. Rawson (1858), 27 L. J. C. P. 189, at p. 191 (sale of cargo to arrive by ship).

Construction of con

tracts of

sale.

Usage.

conditions incorporated by reference into contracts of sale in Watkins v. Rymill (1878), 10 Q. B. D. 178, at p. 188.

...

As regards explaining contracts by usage, Lord Wensleydale says: "In commercial transactions extrinsic evidence of custom and usage is admissible to annex incidents to written contracts in matters with respect to which they are silent . . . and this has been done upon the principle of presumption that, in such transactions, the parties did not mean to express in writing the whole of the contract by which they intended to be bound, but to contract with reference to those known usages; "1 and Blackburn, J., says: "This is in conformity with the maxim, In contractibus tacite insunt ea quæ sunt moris et consuetudinis. Pothier, in his Traité des Obligations, § 95, expresses the same rule thus: On sousentend dans un contrat les clauses qui y sont d'usage quoiqu'elles ne soient pas exprimées.' And this tacit variation of the terms from those which would otherwise be implied by law, has the same effect as if it was express." But this must be taken with the qualification, that as regards a person who does not know and assent to a usage, "a custom of trade may control the mode of performance of a contract, but cannot change its intrinsic character." 3

"2

The following terms and stipulations, among others, have been judicially construed, namely

Stipulations judicially construed.

Terms as to shipment, i.e.

"The names of the vessels to be declared as soon as the wools are shipped." "

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"Shipped per Diletta as per bill of lading dated September or October." 5

"For shipment in June and [or] July."6

"Shipment by steamer or steamers during February."7

or

"To be shipped during the months of March April."8

and

1 Hutton v. Warren (1836), 1 M. & W., at p. 475.

2 Mollett v. Robinson (1872), L. R. 7 C. P., at p. 103.

3 Ibid. (1870), L. R. 5 C. P., at p. 656, per Willes, J., and in H. L.

L. R. 7 H. L. 802.

+ Graves v. Legg (1854), 9 Exch. 709.

5 Gattorno v. Adams (1862), 12 C. B. N.s. 560.

6 Alexander v. Vanderzee (1872), L. R. 7 C. P. 530, Ex. Ch.

' Brandt v. Lawrence (1876), 1 Q. B. D. 314, C. A.; but see Reuter v.

Sala (1879), 4 C. P. D. 239, C. A.

8 Bowes v. Shand (1877), 2 App. Cas. 455.

"To be shipped by sailer or sailers from the Philippine Islands Stipulabetween May 1st and July 31st.”1

tions

As to arrival of ship or cargo, i.e.

"On arrival." 2

“Payment, bill at two months from the date of landing.” "150 tons of soda to arrive ex Daniel Grant." 4

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"100 hogsheads of oil expected to arrive by the ship Resolute from Madras." 5

"100 bales cotton now on passage from Singapore and expected to arrive at London per the Ravenscraig." 6

"50 cases of tallow to be delivered on the safe arrival of the ship Elgin."7

"The cotton to be taken from the quay.” 8

"600 tons of nitrate of soda expected to arrive at port of call per Precursor." 9

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As to priority of delivery and payment.

'Payment, bill at two months from the date of landing." 10

"To be paid for by cash in one month.” 11

"Delivery forthwith; payment, cash in 14 days from the making of the contract." 12

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Delivery order running, we engage to deliver on presentation of this document." 13

"To be free delivered and paid for in 14 days in cash." 14

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Payment, cash in London in exchange for shipping documents." 15

1 Ashmore v. Cox (1899), 1 Q. B. 436.

2 Alewyn v. Pryor (1826), R. & M. 406.

3 Alexander v. Gardner (1835), 1 Bing. N. C. 671. Johnson v. Macdonald (1842), 9 M. & W. 600.

5 Fischel v. Scott (1854), 15 C. B. 69.

• Gorrissen v. Perrin (1857), 27 L. J. C. P. 29.

'Hale v. Rawson (1858), 27 L. J. C. P. 189.

8 Neill v. Whitworth (1865), 34 L. J. C. P. 155, affirmed by Ex. Ch. (1866), L. R. 1 C. P. 684.

9 Smith v. Myers (1871), L. R. 7 Q. B. 139, Ex. Ch.

10 Alexander v. Gardner (1835), 1 Bing. N. C. 671.

11 Spartali v. Benecke (1850), 10 C. B. 212; but see Field v. Lelean

(1861), 30 L. J. Ex. 168, Ex. Ch., as to usage.

12 Staunton v. Wood (1851), 16 Q. B. 638.

13 Bartlett v. Holmes (1853), 22 L. J. C. P. 182.

14 Godts v. Rose (1855), 17 C. B. 229.

15 Tamvaco v. Lucas (1861), 30 L. J. Q. B. 231.

judicially construed.

Stipulations judicially

construed.

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"The balance in cash on right delivery at Rangoon." "Freight to be payable on right delivery of the cargo.” 2 "Payment to be made in net cash in London in exchange for bills of lading of each cargo or shipment." 3

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"10 tons of oil to be delivered within the last 14 days of March." 5 "5 tons oilcake to be put on board directly." 6

"Delivery forthwith.”7

Goods to be delivered "as required." 8

"Delivery on April 17th, complete 8th May.""

"The lots to be cleared away within three days after the sale at

the purchaser's expense." 10

"To be finished as soon as possible." 11

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"Free on board," or, "F. O. B." 13

"The cotton to be taken from the quay." 14

Goods to be taken "from the deck." 15

C. F. I. at a price to cover "cost, freight, and insurance." 16

1 Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B. 322.

2 Paynter v. James (1867), L. R. 2 C. P. 348.

3 Sanders v. Maclean (1883), 11 Q. B. D. 327, C. A.

4 Cox v. Todd (1825), 7 D. & R. 131.

5 Startup v. Macdonald (1843), 6 M. & G. 593, Ex. Ch. (tender at 8.30

on Saturday night).

• Duncan v. Topham (1849), 8 C. B. 225.

7 Staunton v. Wood (1851), 16 Q. B. 638.

8 Jones v. Gibbons (1853), 8 Exch. 920.

9

Coddington v. Paleologo (1867), L. R. 2 Ex. 193.

10 Woolfe v. Horne (1877), 2 Q. B. D. 355, C. A.

11 Hydraulic Co. v. McHaffie (1878), 4 Q. B. D. 670, C. A.

12 Wackerbarth v. Masson (1812), 3 Camp. 270.

13 Cowasjee v. Thompson (1845), 5 Moore, P. C. C. 165, see at p. 173; Brown v. Hare (1858), 27 L. J. Ex., at p. 377; Stock v. Inglis (1884), 12 Q. B. D. 564, at p. 573; affirmed (1885), 10 App. Cas. 263.

14 Neill v. Whitworth (1865), 34 L. J. C. P. 155; affirmed (1886), L. R. 1 C. P. 684, Ex. Ch.

15 Playford v. Mercer (1870), 22 L. T. N.s. 41.

16 Ireland v. Livingston (1872), L. R. 5 H. L., at p. 406.

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