Contracts - Legal "Necessaries"
While on the subject of warranty it may be stated that the distinctions between the leading cases are a little difficult to follow. In the case quoted on page 2584, Part 21, damages were obtained on the ground that the hot-water bottle in question was not fit for the purpose for which it was sold.
But here is a very similar case in which the purchaser was not so fortunate. A man bought a lamp to be used by his wife in their shop, but it, being defective, exploded, and burnt the woman so severely that she had to be taken to the hospital. When husband and wife brought an action against the maker and seller of the lamp they were nonsuited on the ground that the article had been sold in good faith and that the wife was not a party to the contract.
Yet another illustration of injury to a wife arising out of a contract with her husband. A man bought of a chemist a preparation for washing the hair for the use of his wife; the ingredients of the compound were known only to the chemist, who declared that it could be used without personal injury. Through the chemist's negligence or ignorance in making up the hair-wash, the wife's hair was destroyed. In this case judgment was given for the husband and wife.
A father bought a gun warranted by the shopkeeper, whom he told that he wanted it for the use of himself and his sons. The warranty was false and fraudulent. One of the sons was using the gun when it burst and blew off his hand. He brought an action against the gunsmith, and the defence set up was that there was no contract between him and the gunsmith, and that if anyone had a right to bring an action, it was his father. The son, however, won his case, probably on the ground that a person who makes a false statement is liable for the damage caused to another person to whom the statement is communicated.
The following is an example of an implied contract: A lady had her photograph taken paying for the copies which she purchased, but subsequently learnt that her photograph was being exhibited in the shop-window, got up as a Christmas card. It was held that the photographer was not entitled to sell or publicly exhibit copies of the photograph without the authority of the customer, there being an implied contract that he should only take copies of the negative to her order.
To bind a contract for the sale of any goods of the value of £10 or upwards the buyer must accept part of them and actually receive them, or give something in earnest, or in part payment, or some note or memorandum in writing must be made and signed by the party to be charged. If you buy a ready made article at a linen-draper's and order a costume to be made for you, the whole bill exceeding the value of £10, the acceptance of the ready-made article will take the case out of the statute, and without a written memorandum you will be liable to pay.
Dispute About Fit If you order a costume to be made which does not fit, and refuse to accept it or to pay for it, the result will probably be a summons to appear at the County Court. If it then transpires that the costume can be made to fit with a slight alteration, the fact that you have taken a dislike to the costume through the trouble it has caused you will not be taken into consideration, and you will have to take it and pay for it, and probably for the expenses of the case into the bargain. If, on the other hand, you can show that the costume is not made of the material chosen or ordered, but of some material of inferior quality, or you can convince the judge that it is so badly made that nothing in the way of ordinary alteration can make it fit, the dressmaker will have to take it back, and her action will be dismissed, with costs.
Where time is the essence of the contract, and the fact is made perfectly clear to both parties, failure to comply with the conditions may cause the contract to be rescinded. Take, for instance, the case of a dressmaker who, knowing a costume is required for a bridesmaid to wear at a wedding, fails to deliver it in time for the ceremony. Under such circumstances, unless the dressmaker has warned her customer that she was doubtful about being able to supply the dress in time, the latter would probably be justified in refusing to accept it.
Goods left on sale or return must be returned within a reasonable time, or they will be regarded as sold outright. But where articles are left at a house without being ordered there is no obligation on the occupier to purchase on failure to return them; the people who left them must call for them and take them away.
A purchaser of anything except a horse in market overt acquires a perfect title to it, provided he buys in good faith and without knowledge of any defect in the vendor's title; he may accordingly keep stolen goods so purchased. But if the thief is prosecuted and convicted the goods must be restored to the owner. Where goods have been obtained by fraud or other wrongful means not amounting to larceny, the property in the goods does not revert to the person who was the owner by reason only of the conviction of the offender. No action lies against an innocent purchaser of stolen goods in market overt, who disposes of them before the conviction of the thief.
In the country the privilege of market overt applies only to those particular days and places specified by charter or prescription. In the City of London it applies to every week-day between sunrise and sunset, and to every shop, but the sale must be of such articles as are usually dealt in at the shop, and everything must be open and above board. The privilege covers only the sale from shopkeeper to stranger, and does not apply to a sale by a stranger to the shopkeeper.