The Sale of Goods Act (Ont. s. 15; U. K. s. 13) provides: 15. Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description, and if the sale is by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description. The term " sale of goods by description" must apply to all cases where the purchaser has not seen the goods, but is relying on the description alone. It would most frequently apply to unascertained goods, but it may be applicable to specific goods where there is no identification otherwise than by description.

Varley v. Whipp, [1900] 1 Q. B. 513, Channel J, at p. 516; sed cf. New Hamburg Mfg. Co. v. Webb, 1911, 23 O.L.R. 44, at p. 55; Thornett v. Beers, [1919] 1 K.B. 486, at pp. 488-9.

To say that there is an implied condition that the goods shall correspond with the description is equivalent to saying that the buyer is entitled to get what he bargained for. As Lord Abinger said in Chanter v. Hopkins, 1838, 4 M. & W. 399, " If a man offers to buy peas of another and he sends him beans, he does not perform his contract; the contract is to sell peas, and if he sends him anything else in their stead it is a non-performance of it"

Cf. Willis, Sale of Goods, pp. 140, 141; Bowes v. Shand, 1877, 2 App. Cas. 455, at p. 480; but if peas are delivered which correspond with the description (and the sample, in case of sale by sample), the buyer must ordinarily take his chances as to the quality: see 57.

i Examples of sales by description:

Niagara Grain Co. v. Reno, 1916,8 O.L.R. 159, 32 D. L.R. 576 (contract for "No. 1 timothy" hay; No. 3 supplied)

Alibastine Co. v. Canada Producer Co., 1914, 30 O.L. R. 394, 17 D.L.R. 813 (engine of specified type and power).

Examples of contract by description as well as by sample:

Aemar v. Casella, 1867, L.R2 C.P. 431, 677, 23 R.C. 440 (cotton "guaranteed equal to sealed sample" - buyer entitled to kind of cotton which he bargained for as well as quality equal to sample).

Wallis v. Pratt, [1911] A.C. 394, at p. 399, [1910] 2 K.B.U003 (sale by sample with description added: "com-mon English sainfoin." Seed supplied in accordance with sample, but not with description).

The Sale of Goods Act (Ont. s. 17; U. K. s. 15) provides:

17. - (1) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect.

(2) In the case of a contract for sale by sample.

(a) there is an implied condition that the bulk shall correspond with the sample in quality; (b) there is an implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample and (c) there is an implied condition that the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample. The statute (Ont. s. 2; U. K. s. 62) provides that the "qual-ity" of goods includes their state or condition.

As to the general right of a buyer to a reasonable opportunity of examining goods which he has not previously examined, see chapter 6, 66.

Although a sample is exhibited at the time of the contract, it does not follow necessarily that the contract is for sale by sample. If the sample is exhibited merely to show the kind of goods which the seller has to sell, and the contract makes no reference to the sample, the contract may be one for sale by description, but is not one for sale by sample.

Tye v. Fynmose, 1813, 3 Camp. 462, 23 Rc. 40; Gar-diner v. Gray, 1815, 4 Camp. 144; Willis. Sale of Goods, pp. 145-6; cf. Re Faulkners, 1917, 40 O.L.R. 75, at pp. 83-4, 38 D.L.R. 84 sale from samples distinguished from sale by sample) Dominion Paper Box Co. v. Crown Tailoring Co., 1918, 42 O.L.R. 249, 45 D.L.R. 557. The fact that there has been such inspection and acceptance of the goods as results in the passing of the property in the goods does not necessarily preclude the buyer from claiming damages on account of the goods not being equal to the sample. See chapter 6, 66.