held a good defence against payment of the price, that the seller had not observed the terms of the order in detaining the goods. The Lord-President said that the property was not transferred by putting on board, as if the order had been observed; and that although if the sugars had been safe, it might have been no reason for refusing to receive them, that they had not come under convoy, yet as they came not safe, and were not transferred before arrival, the risk could not be the buyer's.(d)

The same rule is followed in England.

In giving particular directions as to delivery, there are some peculiarities which must be observed in the mode of transferring goods under bond, and which generally are stipulated. Where sugars, for example, in Great Britain *are sold for exportation, the seller is entitled to a bounty intended to encourage our sugar colonies, and it is usual for the purchaser [*93] for exportation to have a ship on board of which the seller puts his goods and receives his bounty. In such case, unless it be otherwise stipulated, the seller is not bound to deliver the goods to a foreign buyer or his agent, but is entitled to insist on putting them on board a foreign ship himself. This was held in a case where sugars in bond were sold by a note bearing "Bought 95 hogsheads, double loaves, at 78s., free on board a foreign ship, prompt two months—a bill at two months with interest." The buyer required the seller to weigh off and deliver the sugars to him. The seller refused to do any thing but to put the goods on board a foreign ship. Lord Ellenborough said, "The delivery for which the plaintiff undertook was on board a ship, to be named by the defendant; and he was always ready so to deliver the sugars, and offered to do so. But the defendant, instead of naming a ship, demands to have the sugars weighed off and delivered into his own hands, or transferred to his own name in the warehouse-keeper's books. The seller might have been exposed to some risk, or might have lost some advantage by agreeing to this, and he had a right to refuse, as it was not the mode of delivery for which he had stipulated." The jury fully concurred in this construction of the contract.(e)

The stipulated place of delivery is often important in the construction of the contract, and the seller does not complete the contract unless he comply with the direction.

*The general rule, independent of special agreement, is, that the seller's obligation to deliver is only at the place where the thing is [*94] when sold. Domat says, " Delivery is to be made at the place agreed on, or if none be stipulated, at the place where the thing sold happens to be, provided there be no indication of any intention that the delivery shall be elsewhere.(f)

Pothier lays down a similar rule: "If no place be expressed, the delivery ought to be where the thing is, and thither the buyer must send to demand it, the seller having no right, without necessity, to remove it to any other place, where the delivery may be more difficult or expensive to the buyer, at least without indemnifying the buyer."(g)

If the contract relates to fungibles indefinitely, to be delivered at a particular place, the goods are, till the delivery at the place appointed be performed,

(d) Harle v. Ogilvie, 24th Jan. 1749; Mor. 10,095; 1 Bell's Illus. p. 109.

(e) Wackerbath v. Masson, 1812; 3 Camp. 270; 1 Bell's Illus. p. 112. See also Austen v. Craven, 1812; 4 Taunt. 644.

(f) Domat, liv. i. tit. 2, § 2, No. 15.

(g) Pothier, Con. de Vente, No. 52.

in all respects the property of the seller, and of course the risk is with him. Thus, in Scotland, it was held that a quantity of barley sold, to be delivered at Stirling shore, was at the risk of the seller till delivered at that place.(h) The doctrine is similar as to the time of delivery. The seller is not bound to deliver, nor the buyer to receive the goods, till the time appointed, nor is delivery to be delayed beyond it.

2. Warranty. (1.) Of Title.-As no one can justly *sell any[ *95] thing without having a full title of ownership, or at least a right to dispose of the subject which he sells,(i) he, by the act of selling, gives an implied assurance to the buyer that he holds such powers as effectually to make the transfer to him. This assurance resolves into a right on the part of the buyer, and corresponding obligation on that of the seller, that the buyer shall be safe against eviction or disappointment from other parties.

1st, The seller is bound to protect the buyer from all evictions arising from circumstances anterior to the sale, of which the cause or the germ existed at the time of the sale, as debts chargeable on the thing sold, revenue duties to which the goods are liable, or such defects in the seller's title as form a labes realis.

2d, The seller is liable for evictions which, though taking place after the sale, proceed from a previous act of the seller, as for revenue duties arising subsequent to the sale, but for which a hypothec is given over all the moveables which belong to the trader at the time the duties should have been paid. Strictly speaking, eviction is by judicial sentence only; but where a clear right appears in the evictor, and the only consequence of resistance would be to accumulate expense, the buyer will be entitled to abandon the thing, and to insist on the seller's warranty.

This general doctrine is laid down as a necessary result of the principles of the contract by the institutional writers of all countries.(k)

*Ownership in common moveables being presumed from posses[*96] sion, no objection is pleadable to suspend the bargain on mere suspicion or probability of a challenge of the ownership.

The effect of eviction is to make the seller liable on his implied obligation for the price paid, and the whole loss or damage directly occasioned by the eviction, deducting the intermediate profits drawn.

(2.) Warranty of Quality.-This may be implied or express.

IMPLIED WARRANTY.-In the doctrine relative to the implied warranty of quality, there is a remarkable distinction between the laws of Scotland and France and those of England and America.

In the Roman, and in the Scottish, and French law, an obligation is understood to be undertaken by the seller that the thing sold at the full price, is of quality suitable to the declared or avowed purpose of the purchaser,(7) and

(h) Milne and Co. v. Millar, 1st Feb. 1809; Fac. Coll.; 1 Bell's Illus. p. 88. Confirm. ing Spence v. Ormiston, 25th Jan. 1687; 1 Fount. 442; Mor. 3153; 1 Bell's Illus. p. 88. (i) See above, p. 79.

(k) In England, 2 Backst. 451; Cress v. Gardener, 1689; 3 Mod. Rep. 261. Medina v. Stoughton, 1700; 1 Lord Raymond, 593. See also Pasley v. Freeman, 1789; 3 Term Rep. p. 59; 1 Bell's Illus. p. 208.-In Scotland, 3 Ersk. 3.9; and 2 Ersk. 3, 30.-In America, 2 Kent's Com. p. 478.-In France, Domat, lib. 2, tit. 2, § 10; Pothier Tr. de Vente, No. 81; Code Civile, § 1625 et seq.—In Holland, Van Leeuwen, Com. on RomanDutch Law, p. 384.

() 1 Stair 9, 10, 11; 3 Ersk. 3. 10; 2 Pardessus, No. 282, et seq.; 1 Bell's Princ., § 93, with the authorities there cited. Muil v. Gibb, June 27, 1840; 2 D. 1227.

generally that the article is of merchantable quality, not merely that it will sell at market, but that it will bring a fair average market price. (m) This implied undertaking suffers exception only in the case of faults so obvious that they cannot be supposed to *escape ordinary observation,(n) the law never implying an engagement to warrant an article different from [*97] what it obviously appears to be, but the natural presumption being that the seller parts with it, and the buyer means to take it, according to its manifest and obvious appearance.

This doctrine of the implied meaning and undertaking of the parties is, in those countries, thought to operate wholesomely in the avoiding of law-suits and preventing the defeating of bargains on slight and frivolous pretences.

In England, (o) a different view has been taken; and, after much discussion in America, it has been there adopted almost universally.(p) The great maxim of the English common law on this subject is, not to interfere with bargains, but to hold every man who enters into a contract to be able and bound to defend himself, instead of trusting to the interposition of the law to supply that ordinary vigilance and common sense which every man should exert for himself, and which it is held most expedient to maintain and encourage. The general rule thus established is Caveat emptor:-Let every man look to his own interest, and be vigilant to observe defects in what he buys, or to stipulate a special warranty.

*But to this general rule there naturally is an exception, where the buyer is misled by fraud, deceit, or undue concealment ; and on [*98] this ground there at one time arose some tendency to disturb the general rule, The principle of the law of England being, that, by the completion of the contract, the property of the thing sold is transmuted, so that, strictly under the contract there being no remedy to the buyer, every case of a breach of warranty came to be tried on one of two grounds,-1. On a special warranty by assumpsit; or, 2. On an action for deceit, in which the buyer relied on being able to prove that the seller, directly or indirectly, had deceived him into a sale, being aware of a fault which was not manifest; as, for example, that a jeweller skilled in precious stones, had sold as a jewel what was only some common fossil. In this way arose in England the doctrine that wilful misrepresentation, studied concealment or suppression of a known fault, raised an implied warranty, contrary to the general rule of caveat emptor. And gradually a considerable relaxation took place in the whole doctrine.

Instead of the action of deceit, that of assumpsit was adopted for all such cases, i. e. that there had been an undertaking, express or implied, that the commodity sold was, in the fair meaning of the contract, such as the contract and price indicated; and that, if it should prove otherways, the buyer should have his action for deduction from the price, or for indemnification if the price were paid. This construction is said to have been introduced by Lord Holt, who having ruled that an affirmation at the time of the sale was a warranty,

(m) Whealler v. Methven, Jan. 9 and 10, 1843; 5 D. 402.

(n) See Gilmer v. Galloway, 8 S. 420, 1 Bell's Illus. p. 99, where a cow having been sold, and having died in six weeks after, of an internal injury existing at the time of the sale, though unknown, the buyer was held entitled to have back the price. Contrast with this the case of Muil v. Gibb, June 27, 1840, 2 D. 1227, where the buyer of wheat, having seen and examined it, was not entitled afterwards to reject it on the ground of its not having been properly dressed.

(0) 2 Blackst. 452; 2 Comyn on Cont. 263.

(p) 2 Kent, Com. 478 and 479.

provided it appeared in evidence to have been so intended, a whole class of constructive warranties was let in.

*One of the most natural and obvious indications of warranty un[*99] der this course of administration, was attempted to be made out, on the ground that, as a full price could be agreed to only for a sound article, this inferred that the seller, by taking the price, gave his assurance as an honest man that it was so.

But this was at last rejected as a sufficient indication of a warranty.(r) It has, however, been held,

1. That parties dealing in a particular line of trade are understood to conform to its usage ;(s) so, where, in the sale of a commodity, the custom of trade is to specify whether it has received sea damage, the omission to state this fact raises an implied warranty that it is undamaged.

2. That the article shall answer to its description, as understood in the trade; Thus a sale of waste silk was held to imply a warranty that the article was that which goes in the market by that denomination, though it was not a warranty of any particular fineness or quality.(t) The same was held as to scarlet cuttings.(u)

3. That in regard to articles sold by a dealer, which the buyer has had an opportunity of examining, there is no implied warranty, further than that the article should be of the description purchased; but that, in regard to an article ordered from a manufacturer, he is *under an implied engagement [*100] that it shall be fit for the avowed purpose.(v)

Where the article is objectionable for a breach of warranty, express or implied, it may, in Scotland or France, be rejected, provided that is done as soon as the defect is discovered, to the effect of the buyer being entitled to be free of the bargain, and of the payment of the price, or to recover the money, if the price had been paid. (w) In England, the breach of warranty does not seem to entitle the buyer to send back the goods, but only to demand an abatement in the price, or to recover from the seller indemnification for the loss sustained by the defect.(x)

The English lawyers contend, as the result of the whole doctrine,

That in the simple sale of goods and merchandise, there is, in the general case, no implied warranty of quality.

That from usage of the particular line of trade, a warranty may be implied. That the executory contract with, or order to, a manufacturer, implies a a warranty that the article shall be fit for the purpose of the order. But, finally,

(r) Parkinson v. Lee, 1802; 2 East, 314; 1 Bell's Illus. p. 97. Budd v. Fairmaner, 1831; 8 Bingh. 48; 1 Bell's Illus. p. 117, Baglehole v. Walters; 3 Camp. 154; 1 Bell's Illus. p. 98. (s) Jones v. Bowden, 1813; 4 Taunt. 847.

(t) Gardiner v. Gray, 1815; 4 Camp. 144; 1 Bell's Illus. p. 98.

(u) Bridge v. Wain, 1816; 1 Stark. 504; 1 Bell's Illus. p. 92. Laing v. Fidgeon, 1815; 6 Taunton, 108; 1 Bell's Illus. p. 98.

(v) Jones v. Bright, May, 1825; 5 Bing. 533; 1 Bell's Illus. p. 101. Gray v. Cox, 1825; 4 Barn. and Cr. 108; 1 Bell's Illus. p. 99.

(w) Watson v. Stewart, 5th Jan. 1694; 1 Fount. 589; 1 Bell's Illus. p. 102. Baird v. Aitken, 13th Feb. 1788; Mor. 14,243; 1 Bell's Illus. p. 102. Hill v. Pringle, 11th Dec. 1827; 6 S. 229; 1 Bell's Illus. p. 102-3. Seton v. Carmichael, 28th Jan. 1680; Mor. 14,234, and other cases; 1 Bell's Illus. p. 101-4; 2 Pardessus, No. 286, et seq.

(x) See Curtis v. Hannay, 1800; 3 Esp. 82. Street v. Blay, 1831; 2 Barn. and Ad. 456.

*That beyond these relaxations, the old rule of the law is good, as being clear and peremptory, while the modern tendency to greater looseness of implication promotes vexatious litigation.

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In contrasting, then, the law of England and of Scotland it may be stated1. The law of Scotland gives an implied warranty of merchantable quality, unless the fault be open to ordinary observation, the article being shewn to the buyer and taken by him without objection.

2. In England the buyer is his own merchant, and has no implied warranty to rely on, unless there be a distinct usage in the trade, or a latent fault known to the seller and fraudulently concealed, or the condition of the thing misrepresented, or in the case of an executory contract by a manufacturer.

3. Practically in England if the buyer is not satisfied, or is suspicious of any thing wrong, he is to protect himself by a special warranty. In Scotland, if the seller is not sure of his goods, he sells without warranty, which makes the buyer look sharp in taking the article with all its faults.

4. A sale of an article with all faults," avoids every warranty on the part of the seller, who can then be made liable only for fraud.

5. Where a particular purpose is avowed, there is in Scotland an implied warranty that the article shall be fit for it; but in England there is no such warranty implied, except in an article manufactured on order.

6. The thing bought must, if it is meant to be challenged on a warranty, express or implied, be instantly rejected, in Scotland; or notice given. of the objection in England; that is to say, as soon as the buyer has a *fair opportunity of being aware of the breach of warranty.

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7. In England the remedy in case of breach of warranty is to give to the buyer an abatement of the price, or indemnity for the loss, by defect in the quality, while in Scotland the buyer is entitled to reject the article and claim damages for any loss sustained from the disappointment.

EXPRESS WARRANTY.-Express warranty is introduced to alter the implied contract, or to give an assurance which law alone will not give.

The warranty implied in the law of Scotland extends only to the present condition of the thing. In order to warrant de futuro, there must be an express warranty, as in the sale of a horse, that he will be sound some months after the sale.

It was at one time held in England, that no such warranty could be granted, and so it is laid down, 3 Blackst., 166. But Lord Mansfield denied this to be law,(y) and said, "There is no doubt but you may warrant a future

event."

The specifying of the quantity has the effect of a warranty. Such questions most frequently occur in sales of land, but they may arise respecting commodities sold by number, weight, or measure.

In sales of horses it is often questioned what the meaning and extent is of a warranty of soundness. It seems to comprehend,-All constitutional diseases affecting life; All injuries affecting life in the consequence; All diseases and accidents attended with lameness, or tending to render the horse prematurely unfit *for work; All defects or bad habits indicative or symptomatic of disease; And of slighter faults, bad corns, running

(y) Eden v. Parkinson, 1781; Douglas, 705.

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