Sec 561

Yet there is a strong line of cases in this country which hold that a purchaser, to whom an article has been sold has paid for it, to recover the price as money had and received to his use," etc.

1 Nichols v. Godts, 10 Ex. 191.

2 And see, as sustaining the same distinction, Shepherd p. Kain, 5 B. & A. 240; Taylor v. Bullen, 5 Ex. 779; Allen v. Lake, 18 Q. B. 560; Wisler v.

Schilizzi, 17 C. B. S19; Hopkins v. Hitchcock, 14 C. B. N. S. 65; Mansfield v. Trigg, 113 Mass. 354; Whitney v. Boardman, 118 Mass. 247; Doane v. Dunham, 65 111. 512; cited Benj. on Sales, 3d Am. ed. sec 600 et seq.

3 Azemar v. Casella, L. R. 2 C. P. 431.

Sec 562

Where goods are sold under a specific description, and the purchaser, after due opportunity of inspection and examination, retains the goods, he cannot, on account of obvious and patent variances in matters the terms "expected to arrive by," or even "to arrive by," or "on arrival by,"a particular ship; and in such case the delivery will be dependent not only on the arrival of the ship, but on the arrival of the ship with the goods on board.1 The vendor is not liable, on such a contract, where the goods intended to have been sold were not shipped, though others of a similar character, consigned to the same vendor, but sold to other parties, were on the same ship;2 nor where goods of the same class were shipped, but consigned to another person;3 nor where goods were on the ship, belonging to the same vendor, and unsold, but substantially different.4

But this may be waived and suit brought on warranty.

When goods are accepted and reas to which there was no concealment or fraud, either claim to vacate the sale or sue for damages for false description.1 In all matters of description, it is open to the parties to show by extrinsic proof that wrong words were used by mutual mistake.2 When a party elects to hold goods erroneously described in the contract of sale, after he has become cognizant of the misdescription, this may be regarded as agreeing with the vendor to reform the contract so as to make it conform to the facts. At all events, the description cannot be regarded in such case as a condition precedent, non-compliance with which vacates the contract.3 On the other hand, where there is an express warranty, the purchaser may fall back on the warranty as a collateral stipulation, not either expressly or by implication agreeing to reform the contract so as to make the description conform to the thing actually delivered.4

1 Shaw, C. J., Hogins v. Plympton, 11 Pick. 100; cited Benj. on Sales, 3d Am. ed. sec 600, citing also Beals v. Olmstead, 24 Vt. 114; Lamb v. Crafts, 12 Met. 355; Bradford v. Manly, 13 Mass. 139; Hastings v. Lovering, 2 Pick. 214; Morrill v. Wallace, 9 N. H. 14; Wolcott v. Mount, 36 N. J. L. 262; 38 N. J. L. 496. It will be observed that in Windsor v. Lombard, 18 Pick. 60, there is the same cautious limitation of warranties to articles "of the species, kind, and quality thus expressed in the contract of sale," excluding generic misdescriptions, which preclude a contract from attaching. Hawkins v. Pemberton, 51 N. Y. 204; Dounce v. Dow, 64 N. Y. 411; Borrekins v. Bevan, 3 Rawle, 23; Batturs v. Sellers, 5 H. & John. 117; 6 H. & John. 249.