C. A. 1903 PREIST v. LAST. Parkinson v. Lee (1); Randall v. Newson (2); Gray v. Cox (3) ; W. F. K. Taylor, K.C., and F. A. Greer, for the plaintiff, were not called upon to argue. COLLINS M.R. I entirely agree with the judgment of Walton J., and the reasons which he gave for it; but, in deference to the argument which has been addressed to us, I will state my view of the case in order to shew that the argument has been appreciated. The action in this case is by the purchaser of a hot-water bottle against the vendor for damages for the breach of an implied warranty that the article sold was fit for the purpose for which it was sold, or, in other words, for failure by the defendant to perform the contract of sale which he made. The jury have found that the bottle in question, when sold, was not fit for use as a hot-water bottle, and that this was the cause of its bursting. The plaintiff, who was a draper, and had no special skill or knowledge with regard to hot-water bottles, went to the shop of the defendant, who was a chemist, and who sold such articles, and asked him for a "hotwater bottle"; and the judge has inferred that the article was bought by the plaintiff, and sold by the defendant, for the specific purpose of being used as a hot-water bottle. The argument addressed to us with reference to the terms of s. 14, sub-s. 1, of the Sale of Goods Act, 1893, was that, the subsection requiring that the particular purpose for which the article is purchased should be made known to the seller, this can only be done by something beyond what is contained in the recognised description of the article itself. The words of (1) (1802) 2 East, 314; 6 R. R. 429. (3) (1824-5) 4 B. & C. 108; 28 (4) (1815) 6 Taunt. 108; 16 R. R. 589. (5) (1815) 4 Camp. 144; 16 R. R. 764. (6) (1862) 7 H. & N. 586. (7) (1868) L. R. 4 Ex. 49. (8) (1877) 46 L. J. (Q.B.) 677. (9) (1877) 2 Q. B. D. 331; 3 Q. B. D. 150; (1878) 4 App. Cas. 13. (10) (1847) 16 M. & W. 644. the sub-section are as follows: "Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to shew that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose (provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose)." The argument appears to be that the purpose for which this article was sold was merely the ordinary purpose of use as a hot-water bottle, and, that being its ordinary purpose, the case is not brought within the words "makes known to the seller the particular purpose for which the goods are required." I do not think that this contention is sound. I think that, regard being had to the state of the law as it existed previously to the passing of the Act, the object with which. those words were introduced is clear. There are many goods which have in themselves no special or peculiar efficacy for any one particular purpose, but are capable of general use for a multitude of purposes. In the case of a purchase of goods of that kind, in order to give rise to the implication of a warranty, it is necessary to shew that, though the article sold was capable of general use for many purposes, in the particular case it was sold with reference to a particular purpose. But in a case where the discussion begins with the fact that the description of the goods, by which they were sold, points to one particular purpose only, it seems to me that the first requirement of the sub-section is satisfied, namely, that the particular purpose for which the goods are required should be made known to the seller. The fact that, by the very terms of the sale itself, the article sold purports to be for use for a particular purpose cannot possibly exclude the case from the rule that, where goods are sold for a particular purpose, there is an implied. warranty that they are reasonably fit for that purpose. The sale is of goods which, by the very description under which they are sold, appear to be sold for a particular purpose. The C. A. 1903 PREIST v. LAST. Collins M.E. learned judge had in the present case power to draw inferences of fact, and it appears to me that he has drawn the inference which necessarily arises in this case from the nature of the transaction itself. A draper, who is unskilled in the matter of hot-water bottles, goes to the shop of a person who makes it part of his business to supply such bottles, and asks for a "hot-water bottle"; and an article is supplied to him as such. It seems to me that the transaction amounts to a contract to supply him with an article reasonably fit for use as a hot-water bottle under any circumstances in which such bottles are usually applicable, including the purpose of applying heat to any part of the human body. In the circumstances of this case, I think there was evidence which justified the learned judge in finding that there was a purchase of a specific chattel for a particular purpose under circumstances which shewed that the buyer relied upon the skill or judgment of the seller. The inference is one of fact which must depend on all the circumstances of the case: and it cannot, in my opinion, be excluded, as suggested, by the fact that the article was generally known, and was sold, by a name which indicated the purpose for which it was required. I think the judgment of Walton J. was quite correct. The learned judge in giving judgment confined himself to dealing with the terms of s. 14, sub-s. 1, of the Sale of Goods Act, 1893, without reference to the question whether that sub-section did or did not alter the law on the subject. Speaking for myself, I regard that sub-section as merely expressing the law as it existed at the time of the passing of the Act. For these reasons I think the application must be dismissed. STIRLING L.J. I am of the same opinion. I think that the question with which we have to deal in this case is ultimately one of fact, and that the findings of the jury together with the inferences of the judge on questions of fact really decide the The jury have found that the bottle, when sold, was not fit for use as a hot-water bottle, and that this was the cause of its bursting. The judge has found as a fact that the plaintiff, who had no special knowledge on the subject of hot-water case. bottles, did convey to the mind of the defendant, part of whose business it was to sell such bottles, that the article was required for a particular purpose, namely, for use as a hot-water bottle, in such a way as to shew that he relied on the skill and judgment of the seller. I have looked at the judge's note of the evidence, and the defendant's own account of the transaction is that the plaintiff asked for a hot-water bottle; that he said that he wanted it for a special purpose, and asked whether it would stand boiling water; and that he, the defendant, said that it was meant for hot water, but that it would not stand boiling water. There was, therefore, as it appears to me, in the evidence of the defendant himself, ample ground for the conclusion that it was made known to the defendant that the article sold was required for the particular purpose of holding hot water, and that the case came within the terms of s. 14, sub-s. 1, of the Sale of Goods Act, 1893. MATHEW L.J. I am of the same opinion, and do not desire to add anything to what the Master of the Rolls and my brother Stirling have said. Application dismissed. Solicitors for plaintiff: Maples, Teesdale & Co., for Oppenheim & Malkin, St. Helen's and Liverpool. Solicitors for defendant: Cartwright & Cunningham, for Donnison & Edwards, Liverpool. C. A. 1903 PREIST V. LAST. Stirling L.J. E. L. C. A. 1903 May 18. [IN THE COURT OF APPEAL.] In re JAMES BRIGGS & SON. Practice-Mayor's Court-Taxation of Costs-Solicitor and Client—Amount recovered under 50l.—Certificate by Judge for Costs on Higher Scale— Rule 13 of the Mayor's Court Rules, 1890. Where, in an action in the Mayor's Court for 401., the plaintiff succeeded, and the judge, under rule 13 of the Mayor's Court Rules, 1890, certified for costs on the Mayor's Court scale applicable to cases in which an amount of or exceeding 501. has been recovered : Held, that, upon taxation of the bill delivered by the defendants' solicitors in respect of their costs in the action as between them and the defendants under the Solicitors Act, 1843, the master was right in taxing upon the same scale. APPEAL from the refusal of Phillimore J. at chambers to order a review of taxation. An action having been brought against the appellants in the Mayor's Court for the sum of 407., they employed the respondents, James Briggs & Son, as their solicitors in the action. The plaintiff succeeded in the action, and the Recorder, who tried the case, made an order under rule 13 of the Mayor's Court Rules, 1890, awarding costs to the plaintiff on the scale applicable in the Mayor's Court to cases in which an amount of or exceeding 501. has been recovered. But for this order the plaintiff's costs would have been taxed on the scale applicable in the Mayor's Court to actions in which a sum of or exceeding 201., but under 50l., has been recovered. (1) The respondents delivered to the appellants a bill of costs which included their costs and charges in the Mayor's Court action as well as their costs and charges in respect of certain conveyancing and other matters, in which they had acted as solicitors for the appellants. The appellants obtained the common order for taxation of the bill under s. 37 of the Solicitors Act, 1843. The taxing master taxed the costs relating to the action in the (1) By the Mayor's Court Rules, 1890, the scale applicable in the case of a successful plaintiff depends on the amount recovered, while that applic able in the case of a successful defendant depends on the amount claimed: see rule 14 of Mayor's Court Rules, 1890. |