Sec 565

On a sale by sample it is a condition precedent to the perfecting the sale that the purchaser should have an opportunity of comparing the bulk with the sample.2 Should the vendor refuse to allow this opportunity, this will justify the purchaser in throwing up the contract.3

Sec 566

"The vendor," says Mr. Benjamin,4 "who sells bills of exchange, notes, shares, certificates, and other, securities, is bound, not by the collateral contract of warranty, but by the principal contract itself, to deliver as a condition precedent that which is genuine, not that which is false, counterfeit, or not marketable by the name or denomination used in describing it."5 In this country, while the above rule has been frequently recognized, and the soundness of the English rulings has been unquestioned,6 the distinction between covenants and warranties in this relation has not always been maintained, and there are rulings to the effect that the purchaser of invalid paper may pursue the vendor on an implied warranty that the paper is valid.

2. Notice.

Sec 567

When it is one of the terms of a contract that notice should be given as a condition precedent of indebtedness, then notice must be proved to have been given.7 Thus where it was provided that the defendant should forward to the plaintiff one thousand barrels of flour at any time within six months upon tion; and so of waiver.

On sample sale purchaser should have opportunity of inspection.

Sale of negotiable paper implies genuineness.

When required by contract, notice should be given.

1 Infra, sec 604 et seq.; Benj. on Sales, 3d Am. ed. sec 564.

2 Supra, sec 225.

3 Benj. on Sales, 3d Am. ed. sec 594; Lorymer v. Smith, 1 B. & C. 1.

4 Sales, 3d Am. ed. sec 607.

5 To this are cited Jones v. Ryde, 5 Taunt. 488; Young v. Cole, 3 Bing. N. C. 724; Westropp v. Solomon, 8 C. B. 345; Gompertz v. Bartlett, 2 E. & B. 849; Gurney v. Womasley, 4 E. & B. 133. In Young v. Cole, Tindal, C. J., said: "it was not a question of warranty, but whether the defendant had not delivered something which, though resembling the article contracted to be sold, is of no value.".

6 See infra, sec 953 et seq.

7 Childe v. Horden, 2 Bulstr. 144; Baker p. Mair, 12 Mass. 121; Newcomb v. Brackett, 16 Mass. 161; Topping v. Root, 5 Cow. 404; Mansfield v. Beard, 82 N. Y. 60.

six months' notice, it was held that the notice was a condition precedent of the delivery.1 - The subject of notice of election in alternative contracts is hereafter distinctively considered.2 sec 568. We have already noticed cases in which the description "to arrive " in contracts for the sale of goods has been held to be a condition precedent.3 We have next to consider contracts in which it is provided that the vendor shall give notice of the name of the ship on which the goods are expected as soon as the arrival becomes known to him. It has been held that he cannot enforce such contract without complying with this condition.4 sec 569. A marine insurer is supposed to have opportunities of knowing what occurs within the range of the insurance at least equal to the opportunities possessed by the insured; and hence it is not necessary, unless so stipulated, in order to fix the insurer with a loss, that he should be notified of the loss by the insured.5 Notice of abandonment is only necessary when total loss cannot be proved, and when the object is to compel the insurer to take possession of the wreck.6 In fire insurance the same reasoning does not apply. As a rule, a marine insurer has more opportunities to be informed of marine disasters than have the owners of particular vessels: as a rule, on the other hand, the owner of a particular house is more likely to be promptly and accurately informed of injury to it than would its insurer. It is for this reason that stipulations, that the insurer should be advised, either at once or within a stated period, of the burning of the insured premises, are almost universally introduced into policies of fire iusurance; and when so introduced, notice being given in conformity with the limitation is a condition precedent to a claim on the policy.7 And when not required in the policy, the relations of the parties are usually such as to make prompt notice a condition precedent. - The time limited in the policy may be a material part of the condition.1

Notice of goods to arrive.

In insurance, notice of loss not required unless stipulated.

1 Quarles v. George, 23 Pick. 400.

2 Infra, sec 621. 3 Supra, sec 563.

4 Benj. on Sales, 3d Am. ed. sec 588; Busk v. Spence, 4 Camp. 329; Graves v. Legg, 9 Ex. 709; 11 Ex. 642.

5 Dawson v. Wrench, 3 Ex. 359.

6 Roux v. Salvador, 3 Bing. N. C. 266; Knight c. Faith, 15 Q. B. 649; Potter v. Rankin, L. R. 5 C. P. 341. See Smith v. Ins. Co., 7 Met. 448; Am. Ins. Co. v. Francia, 9 Barr, 390.

7 Roper v. Lendon, 1 E. & E. 825.