Same - Executory Contract Of Sale

In every executory contract of sale, where the goods are sold by description, there is an implied condition, often miscalled an implied warranty,22 that the goods shall conform to the description. In such cases the tender of goods answering the description is a condition precedent to the buyer's liability, and if the condition is not performed he is entitled to reject the goods.23 Moreover, in a sale of goods by description, where the buyer has not an opportunity to examine the goods, there is also an implied condition that the goods shall be salable or merchantable,24 and under some circumstances a condition that goods ordered for a particular purpose are reasonably fit for that purpose is implied.25 These implied conditions are frequently spoken of as warranties, but inasmuch as they go to the essence of the contract the latter term is misleading. The courts in different jurisdictions differ as to whether such a condition survives acceptance.2* But all cases agree that where the property has not passed, the buyer is discharged by a failure of such an implied condition; and that he may reject the goods, and may also bring an action for such damages as he has sustained.27

22"Two things are often confounded. * * * 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." Per Lord Abinger in Chanter v. Hopkins, 4 Mees. & W. 899. See, also, Bowes v. Shand, 2 App. Cas. 455, 480; POPE v. ALLIS, 115 U. S. 371, 6 Sup. Ct. 69, 29 L. Ed. 393, Throckmorton Cas. Contracts, 398. See "Sales," Dec. Dig. (Key-No.) § 166; Cent. Dig. §§ 891-402.

23 Josling v. Kingsford, 32 L. J. C. P. 904; Allan v. Lake, 18 Q. B. 560; POPE v. ALLIS, 115 U. S. 363, 371, 6 Sup. Ct. 69, 29 L. Ed. 393, Throckmorton Cas. Contracts, 398; Bagley v. Rolling-Mill Co. (C. C.) 21 Fed. 159, 162. See, also, NORRINGTON v. WRIGHT, 115 U. S. 188, 203, 6 Sup. Ct. 12, 29 L. Ed. 366, Throckmorton Cas. Contracts, 3S6, per Gray, J.; Filley v. Pope, 115 U. S. 213, 6 Sup. Ct. 19, 29 L. Ed. 372; Jones v. George, 61 Tex. 345, 349, 48 Am. Rep. 280; Avery \. Miller, 118 Mass. 500; Haase v. Nonnemacher, 21 Minn. 486, 490; Dailey v. Green, 15 Pa. 118; Woodle v. Whitney, 23 Wis. 55, 99 Am. Dec. 102; Wolcott v. Mount, 36 N. J. Law, 262, 13 Am. Rep. 438; Morse v. Moore, 83 Me. 473, 479, 22 Atl. 362, 13 L. R. A. 224, 23 Am. St. Rep. 783. Although the sale is by sample, it is not enough that the bulk corresponds with the sample if it does not correspond with the description. Michals v. Godts, 10 Exch. 191. See "Sales," Dec. Dig. (Key-No.) § 166; Cent. Dig. §§ 391-402.

24Jones v. Just, L. R. 3 Q. B. 197; Murchie v. Cornell, 155 Mass. 60, 29 N. E. 207, 14 L. R. A. 492, 31 Am. St. Rep. 526; English v. Commission Co., 57 Fed. 451, 6 C. C. A. 416. See "Sales," Dec. Dig. (Key-No.) § 166; Cent. Dig. §§ 391-402.

25 Jones v. Just, L. R. 3 Q. B. 197; Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 3 Sup. Ct. 537, 28 L. Ed. 86; Hoe v. Sanborn, 21 N. Y. 552, 78 Am. Dec. 163. See "Sales," Dec. Dig. (Key-No.) § 166; Cent. Dig. §§ 391-402.

26 Post, p. 584.

27 POPE v. ALLIS, 115 U. S. 363, 371, 6 Sup. Ct 69, 29 L. Ed. 393, Throck-

For the same reason, the buyer may reject the goods if they fail to conform to the quality which the seller warranted they should possess;28 for an undertaking that goods shall possess a certain quality, whether in the form of a description or a warranty, is "a condition, the performance of which is precedent to any obligation upon the vendee under the contract, because the existence of these qualities, being part of the description of the thing sold, becomes essential to its identity, and the vendee cannot be obliged to receive and pay for a thing different from that for which he contracted." 29