Sec 560

Throwing out of consideration misrepresentations which do not amount to misdescriptions, we have now, in the present relation, to recur to the important distinction between descriptions amounting to conditions precedent, on the one side, and warranties, on the other side. This distinction is noticed by Lord Abinger in a passage adopted by Mr. Benjamin:l "A good deal of confusion has arisen in many of the cases on this subject, from the unfortunate use made of the word warranty. Two things have been confounded together. A warranty is an express or implied statement of something which a party undertakes shall be part of a contract, and though part of the contract, collateral to the express object of it. But in many of the cases, the circumstance of a party selling the particular thing by its proper description has been called a warranty, and the breach of such a contract a breach of warranty; but it would be better to distinguish such cases as a non-compliance with a contract which a party has engaged to fulfil; as, if a man offers to buy peas of another, and he sends him beans, he does not perform his contract; but that is not a warranty; there is no warranty that he should sell him peas; the contract is to sell peas, and if he sell anything else in their stead, it is a nonperformance of it." In other words, a warranty supposes a contract, since there can be no warranty without a contract to which it is collateral; while a misdescription going to the identity of the thing excludes the idea of a contract, since there can be no contract when the parties have essentially different things in contemplation.2 Hence a description going to identity or substantial character of a thing sold is a condition precedent, the non-compliance with which bars a suit by the vendor, or justifies the vendee in throwing up the contract.3 As illustrating the distinction above given, may be under a misdescription so essential as to amount to a condition precedent, can, by accepting the goods and waiving his right to throw up the contract, proceed against the vendor for breach of warranty. As we have already seen, the line between essential and non-essential representations is very shadowy, and there are many representations as to which, in this respect, great difference of opinion would exist. A bushel of peas, it is true, to take Lord Abinger's illustration, could not be held to be covered by a sale of a bushel of beans; yet while between different kinds of peas there may be, in reference to the purpose of the sale, as great a difference as between peas and beans, it would, without proof of the purpose, not ordinarily be a misdescription which avoids a sale for the article delivered to be of a different grade of pea from that described in the contract. Hence, in cases of this class, the purchaser, by accepting the goods, virtually says: "The true construction of this description is, that it does not go to the identity or the substance of the thing, but touches only quality. The misdescription is therefore a warranty of quality, and on this I bring suit." - It is in this sense that we are to understand the language of Shaw, C. J., as adopted by Judge Bennett, in a learned note to Mr. Benjamin's treatise: "There is no doubt that, in a contract of sale, words of description are held to constitute a warranty that the articles sold are of the species and quality so described."1

Description may be a condition precedent.

1 Chanter v. Hopkins, 4 M. & W. 399; Benj. on Sales, 3d Am. ed. sec 600.

2 Supra, sec 4 etseq., 186, 218.

3 Supra, sec 186-7. Mr. Benjamin (Sales, sec 600), after citing the above given passage from Lord Abinger, says: "There can be no doubt of the correctness of the distinction here pointed out. If the sale is of a described article, the tender of an article answering the description is a condition precedent to the purchaser's liability, and if this condition be not performed, the purchaser is entitled to reject the article, or, if he cited an English case,1 where the sale was of "foreign refined rape oil, warranted only equal to samples." The oil corresponded with sample (the italics are Mr. Benjamin's), but the jury found that the article sold was not " foreign refined rape oil." There was a difference, therefore, not as to quality but as to identity. It was held that the sample warranty only extended to quality, and did not touch the generic question of identity. "If a man contracts to buy a thing," said Pollock, C. B., "he ought not to have something else delivered to him."2 A more recent illustration, to the same effect, is to be found in a case3 where a sale was of cotton, through a broker, in what was known as a certified London contract, which was as follows: " Sold by order and for account of Messrs. J. C. Azemar & Co.

D C to Messrs. Casella & Co., the following cotton, viz., D.C/C.: 128 bales, at 25d. per pound, expected to arrive in Loudon, per Cheviot, from Madras. The cotton guarantied equal to sealed sample in our possession," etc. The cotton, when delivered, turned out to be " Western Madras," an article not only inferior to " Long Staple Salem," of which was the sample, but requiring different machinery for its manufacture. The contract contained a clause," Should the quality prove inferior to the guaranty, a fair allowance to be made." It was held that this was not a question of quality but of kind; that it was a condition precedent that the cotton should be " Long Staple Salem," and that it being generically different, the purchaser was not bound to accept the goods. The ruling to this effect in the common pleas was unanimously affirmed in the exchequer chamber.