304 to 338 (inclusive), each cask having its weight set down, &c." On the trial it was proved that Neilson's broker got a specification from him of 35 casks of soda ash, afloat, of 48 degrees strength, English test; that the sale was made by the broker on the distinct understanding that the soda was 48 degrees English test; that he was authorized to represent the soda as of that test. The defendants offered further to prove that the soda ash was far below the 48 pr. ct. agreed upon in the contract, and was unmerchantable, not being what it was sold for. This was rejected by the court. They further offered to show that it was so far below the English test as to be useless for what it is usually sold, and that there was a custom of the trade at the place of contract, to the effect that soda ash is sold upon the representation of the seller as to the percentage of alkali contained in it, without sample or warranty, and that the soda in question was sold on such representation. All this the court rejected, and on appeal was affirmed.

In Whitaker v. Eastwick, supra, plaintiffs purchased a cargo of coal, without seeing it, on the representation of the defendant that it was "good coal well adapted for generating steam." On a suit to recover back the price, the plaintiff offered to show that there was at least twenty per cent. of slate and dirt in it, and that it was unmerchantable, which offer was admitted by the court. On appeal the action of the lower court was reversed, MERCUR, J., saying: "It is well settled as a general rule that the purchaser takes the risk of the quality of an article purchased, unless there be fraud or warranty. In this case no fraud is alleged, and there was no express warranty. The action is assumpsit on an implied warranty. There is an implied warranty of title, and generally of species, in a sale, but not of quality. *They got the kind of coal for which they bargained. *** The fact that it was represented as being well adapted for generating steam, and that by reason of its impure quality a larger quantity is required to generate a given amount of steam, are all insufficient to raise an implied assumpsit.'

* *

In Warren v. Philadelphia Coal Co., 3 Weekly Notes of Cases (Phila.) 525, C., having previously sold coal to W., offered him a lot at a certain price, and on W.'s inquiring of the quality, informed him it was as good as the former lot; thereupon W. purchased it. Held, evidence was admissible to show the coal was not so good as the former.

In Scheppers v. Stewart, 11 Weekly Notes of Cases (Phila.) 106, an action to recover the price of a reed-making machine, the defendant in his affidavit of defence set up that the machine when shown him was in a dark room, and he was unable to examine it thoroughly, but was obliged to rely on the representations of the plaintiff's salesman, which proved to be untrue in many specified particulars, and that the machine had not been delivered. The court below allowed the case to go to the jury, and the court, on appeal, upheld their action.

66

In Havemeyer v. Wright, not yet reported, tried during the current year in the Circuit Court of the United States for the Eastern District of Pennsylvania, plaintiff's contracted to deliver to defendants a certain quantity of "old rails," and in fulfilment of their contract offered to deliver a quantity of “new rails," which, proving worthless, defendants declined to receive, and rescinded the contract. In an action for the price, plaintiffs contended that "old rails" were substantially the same commodity as "new rails," and that a contract for "old rails" was satisfied by a delivery of new rails." It was shown, however, that "old rails" had a special signification in the trade, and were principally of value because, having been used, their quality had been tested; that "old rails" were, in short, a particular commodity, different from "new rails." MCKENNAN, C. J., substantially charged the jury that there were two questions to consider: The first was, whether, assuming that "old rails" had a special value from having been used, the term "old rails," in a commercial sense, included "new rails," and the two things were substantially the same commodity; and, secondly, even if the two were the same commodity, were these new rails" delivered merchantable, or were they so worthless as to be unmerchantable as "old rails." Verdict and judgment for defendants. BUTLER, D. J., concurred.

"

The rule deducible from these cases may then be thus stated: Where goods are sold by a particular description or designation, the goods delivered must strictly correspond with that designation or description. In England this is put, as we have stated, on the ground that the identity of the goods described and bargained for, with those delivered, is a condition precedent to the contract. In America it is usually on that of an implied warranty. In both countries the result reached is the same. It is true that there are some cases in Pennsylvania which are in antagonism with this rule, but

the cases in that state cannot all be reconciled with each other, as we have seen with respect to Neilson v. Wetherill, supra, and Whitaker v. Eastwick, supra, and the other Pennsylvania cases quoted by us, and it would not be safe to say what the law in that state on this subject is.

(b) Sale of Negotiable Instruments, &c.

In the same category of cases as those we have just discussed fall those in which the courts have said, that in a sale of securities, maps, books, &c., by prospectuses, the seller is bound to deliver an article strictly corresponding to the description; and these authorities, like those we have just reviewed, are usually put, in America, on the ground of an implied warranty, and not generally on that of a condition precedent.

Thus in Merriam v. Wolcott, 3 Allen (Mass.) 258, the plaintiff had purchased of the defendant two promissory notes, for a sum less than their face value, both of which, without the knowledge of the parties, had forged endorsements. Held, an action would lie to recover back the money.

In Lobdell v. Baker, 1 Metc. (Mass.) 193, the note was endorsed by a minor, and it was held that upon the sale there was an implied warranty that the endorsement was by one capable of binding himself by a valid contract.

In Terry v. Bissell, 26 Conn. 23, defendants sold the plaintiffs. a note not then due purporting to be signed by A., and endorsed by G. & S. The signature of A. was genuine, but those of G. & S. forged. Both parties were ignorant of the forgery. On the discovery of the forgery, plaintiffs offered to return the note, which defendants declined to receive. Held, an action lay for money had and received. ELLSWORTH, J., said: "In the first place, there was no sale, because the subject-matter of the sale had no existence *** the existence of the thing to be sold, or the subject-matter of the contract, is essential to the validity of the contract. If a horse which has died, a fact unknown by the parties, is sold at the present time, or goods which have been burned, the sale is not good, for the very basis of the negotiation and transfer is wanting. Indeed it is clear law that if a substantial part of the thing sold be non-existent, there is no sale. ***The signatures of Mr. Gorton and Mr. Smith, which alone gave value and credit to the note, not being legally attached to the note, it is not the thing which was negotiated for between the parties, any more than the dead

The

horse can he said to be the horse sold, because the lifeless body remains, and the hide and shoes are of some little value. names of Mr. Gerton and Mr. Smith are no more on the note than if nothing was written on it at all, and without these names the thing is substantially worthless.***We think the purchaser was entitled to have a thing of the kind and description which the thing sold purported and was understood to be." See also Ross v. Terry, 63 N. Y. 613; Ellis v. Grooms, 1 Stewart (N. J.) 47; Faulks et al. v. Kamp, 3 Fed. Rep. 898. Whether, however, the thing is or is not what it really purports to be is undoubtedly a question of fact for the jury to decide.

(c) Merchantability implied in a sale of Goods by Description. In a sale of goods by description, where the goods have not been inspected by the buyer, there is always, in addition to the condition precedent above discussed, an implied warranty that they are merchantable, under the designation or description mentioned in the sale. Thus in Gaylord Manf. Co. v. Allen, 53 N. Y. 518, ALLEN, J., said: "A contract to manufacture and deliver an article at a future day, carries with it an obligation that the article shall be merchantable, or, if sold for a particular purpose, that it shall be suitable and proper for such purpose," quoting Hargous v. Stone, 1 Selden 73; Reed v. Randall, 29 N. Y. 318; Dutchess v. Harding, 49 Id. 321. The same rule was laid down in McClung v. Kelley, 21 Iowa 509, viz.: "The contract always carries with it an obligation that the article shall be merchantable, at least not have any remarkable defect." See also Hyatt v. Boyle, 5 Gill & J. (Md.) 110.

In Hargous v. Stone, 1 Selden (N. Y.) 73, PAIGE, J., reviewed at considerable length the cases in which were involved the principle of implied warranties in sales, and in speaking on this point said, "executory sales do not depend on the same principle as executed contracts of sale. The doctrine of implied warranty has properly no application to the former. Whether a contract is executory, that is, to deliver an article not defined at the time, on a future day, whether the vendor has at the time an article of the kind on hand, or it is afterwards to be procured or manufactured, the contract carries with it an obligation that the article shall be merchantable, at least of medium quality or goodness. If it comes short of this the vendee may rescind the contract and return the article after he has had a reasonable time to inspect it. He is not

Bound to receive or pay for it, because it is not the thing he agreed to purchase: Howard v. Hoey, 23 Wend. 351; Hart v. Wright, 17 Id. 277; 2 Kent's Com. 480; Chanter v. Hopkins, 4 Mees. & W. (Exch.) 399. *** But if the article is at the time of the sale in existence and defined and is specifically sold, and the title passes in præsenti to the vendee, there will be no implied warranty that the article is merchantable. * * *Where the sale is executory if the goods purchased are found on examination to be unsound, or not to answer the order given for them, the purchaser must immediately return them to the vendor or give him notice to take them back, and thereby rescind the contract, or he will be presumed to have acquiesced in the quality of the goods: 2 Kent Com. 480; Fisher v. Samuda, 1 Camp. 190; Hopkins v. Appleby, 1 Stark. 477; Milner v. Tucker, 1 Car. & P. 15; 23 Wend. 352."

(To be continued.)

ARTHUR BIDDLE.

RECENT ENGLISH DECISIONS.

High Court of Chancery; Queen's Bench Division.

CASTELLAIN v. PRESTON.

The owners of houses which were insured against fire contracted to sell the property, and reserved power under the contract to name the time for completion. The property was burned, and the insurance company, in ignorance of the contract, paid the vendors for the damage done. The vendors neither reinstated the premises nor handed the insurance money to the purchasers, but they subsequently named a time for completion, and the purchase was eventually completed.

Held, that the insurance company could not recover from the vendors the amount of the insurance money which they had paid.

The fact that an insurance company is ignorant of a contract for sale at the time of payment is, in such a case, immaterial.

The only principle applicable to such a case is that of subrogation in the full sense of that term, and where the right claimed by an insurance company is under a contract between the insured and third parties, it must be confined to the case of a contract relating to the subject-matter of the insurance. A contract for sale is not a contract directly or indirectly for the preservation of the buildings insured. Darrell v. Tibbitts, L. R., 5 Q. B. Div. 560, considered.

Semble, the contract must be one which subsists at the time when the claim under the policy has matured.

FURTHER consideration of action.

This was an action brought by the plaintiff as chairman of the