gained for, and the other party is not bound to take it.” But the bargain and sale of goods as being of a particular description does imply a contract that the article sold is of that description. The contract is for the sale of the subject absolutely, and not with reference to collateral circumstances. If the contracting parties intend to provide for any particular state or condition of the goods, they should introduce an express stipulation to that effect. And if the goods tendered answer to the description, the buyer must take the risk as to their quality and condition apart from either an express or implied warranty.

Whatever a party warrants, he is bound to make good to the letter of the warranty, whether the quality warranted be material or not; it is only necessary for the buyer to show that the article is not according to the warranty. But if an article is sold by description merely, and the buyer afterwards discovers a latent defect, he must go further, allege the knowledge, and shew that the description was false within the knowledge of the seller. Moreover, where there is an express warranty as to any single point, the law does not, beyond that, raise an implied warranty that the commodity sold shall also be merchantable. A party who makes a simple representation stands, therefore, in a very different position from a party who gives a warranty. A written instrument must, like all other instruments, be interpreted according to the intention of the parties, as, for instance, where the dealing is by a contract note, the article

delivered must agree with the terms of the note. The words " contract for the sale of goods by description," used in Section 13 of the Sale of Goods Act, 1893, have application to all cases where the buyer has not seen the goods, but relies solely on the description given by the seller. (This is the latest reported case on the subject.)

Taking into consideration the provisions of the Sale of Goods Act, 1893 (of which Sections 13 and 14 must be read together), and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular class of goods supplied under a contract of sale, except as follows: (1) where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show 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, if, 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; (2) where goods are bought by description from a seller who deals in goods of that description (whether he be manufacturer or not), there is an implied condition that the goods shall be of merchantable quality; but if the buyer has examined the goods, there will be no implied condition as regards defects which such examination

ought to have revealed; (3) an implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of the trade; and (4) an express warranty or condition does not negative a warranty or condition implied by the Sale of Goods Act, 1893, unless inconsistent with it.

The bargain and sale of specific goods, by the English law, undoubtedly transfers all the property the seller has, where nothing further remains to be done according to the intent of the parties to pass it. But it is made a question, whether there is annexed by law to such a contract, which operates as a conveyance of the property, an implied agreement on the part of the seller that he has the ability to convey. With respect to executory contracts of purchase and sale, where the subject is unascertained, and is afterwards to be conveyed, it would probably be implied that both parties meant that a good title to that subject should be transferred, in the same manner as it would be implied under similar circumstances, that a merchantable article was to be supplied. Unless goods, which the party could enjoy as his own were delivered, the contract would not be performed. The purchaser could not be bound to accept if he discovered the defect of title before delivery, and if he did, and the goods were recovered from him, he would not be bound to pay, or having paid he would be entitled to recover back the price, as on a consideration which had failed. However, when there is a bargain and

66

sale of a specific ascertained article, which operates to transmit the property and nothing is said about title, the result of the older authorities is by the law of England, there is no warranty of title in the actual contract of sale, any more than there is of quality. Be this as it may, the older authorities are strong to shew that there is no such warranty implied by law from the mere sale. In contracts of sale it is constantly understood that the seller undertakes that the commodity he sells is his own." At all times, however, the seller was liable if there was a warranty in fact. Where one in possession of a personal chattel [e.g., chair, horse, etc.] sells it, the bare affirming it to be his own amounts to a warranty." If a man sells goods as his own, and the title is deficient, he is liable to make good the loss. There is no implied warranty of title on the sale of goods (except in the cases given above), and that if there be no fraud, a seller is not liable for a bad title, unless there is an express warranty, or an equivalent to it, by declarations or conduct; and the question in each case, where there is no warranty in express terms, will be, whether there are such circumstances as to be equivalent to such a warranty. Usage of

trade, if proved as a matter of fact, would of course be sufficient to raise an inference of such an engagement; and without proof of such usage the very nature of the trade may be enough to lead to the conclusion that the person carrying it on must be understood to engage that the purchaser shall enjoy that which he buys as against all persons.

It is quite clear according to English law that there is no implied warranty as to the quality of goods; yet if the goods are ordered of a tradesman in the way of his trade, for a particular purpose, he may be considered as engaging that the goods supplied are reasonably fit for that purpose. It cannot be doubted that if the articles are bought in a shop professedly carried on for the sale of goods that the shopkeeper must be considered as warranting that those who buy will have a good title to keep the goods bought. In such a case the seller sells "as his own," and that is what is equivalent to a warranty of title. The common law rule is, that there is no implied warranty from the mere contract of sale itself.

However, though there is no implied warranty of title, and therefore the seller would not be liable for a breach of it to unliquidated damages, yet the purchaser may recover back the purchase money, if it could be shown that it was the understanding of both parties that the bargain should be put an end to if the purchaser should not have a good title, and where consideration had been given; and in a case of this kind there would have been a failure of consideration. But if there is no implied warranty of title, some circumstances must be shown to enable the person suing to recover for money had and received.