In the case of Jones v. Just, 1868, L.R. 3 Q.B. 197. at pp. 202-3, 23 R.C. 466, at pp. 471-2, Mellor J. delivering the judgment of the Court of Queen's Bench (Cockburn C.J., Blackburn and Mellor Jj.) stated and discussed, with reference to many earlier cases, the following rules:

First, where goods are in esse, and may be inspected by the buyer, and there is no fraud on the part of the seller, the maxim caveat emptor applies, even though the defect which exists in them is latent, and not discoverable on examination, at least where the seller is neither the grower nor the manufacturer. The buyer in such a case has the opportunity of exercising his judgment upon the matter; and if the result of the inspection be unsatisfactory, or if he distrusts his own judgment he may if he chooses require a warranty. In such a case, it is not an implied term of the contract of salethat the goods are of any particular quality or are merchantable.

Secondly, where there is a sale of a definite existing chattel specifically described, the actual condition of which is capable of being ascertained by either party, there is no implied warranty.

Thirdly where a known, described and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still if the known, described and defined thing be actually supplied, mere is no warranty that it shall answer the particular purpose intended by the buyer.

Fourthly, where a manufacture or dealer contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, mere is in that case an implied term or warranty that it shall be reasonably fit for the purpose to which it is to be applied. In such a case the buyer trusts to the manufacturer or dealer, and relies upon his judgment and not upon his own.

Fifthly, where a manufacturer undertakes to supply goods manufactured by himself, or in which he deals, but which the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article.

These rules have been frequently quoted and discussed in later cases, and they form the basis of the present statutory provisions upon the subject.

It will be noted, however, that the word "warranty" is used in the rules. In accordance with modern usage and with the distinction consistently drawn in the Sale of Goods Act between conditions and warranties, the term in question is now more correctly described as a condition.

The Sale of Goods Act (Ont. s. 16; U. K. s. 14) provides:

16. Subject to the provisions of this Act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:

(a) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description which it is in the course of the seller's-business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose; provided that in the case of a contract ior the sale of a specified aricle under its parent or other trade name, mere is no implied condition as to its fitness for any particular purpose;

(6) Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality; provided that if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed;

(c) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade;

(d) An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith.

The statute further provides (Ont. s. 2; U. K. s. 62) that the quality of goods includes their state or condition.

Prior to the passing of the Sale of Goods Act it was held that where there was a contract for the sale of goods by a manufacturer, as such, and not as a dealer, there was an implied condition that the roods were of the seller's own manufacture. Johnson v. Raylton, 1881, 7 Q.B.D. 438; followed in Ontario in Randall v. Sawyer-Massey Co., 1918, 43 O.L.R. 602. A provision to the same effect was contained in the Sale of Goods Act as originally drawn by Chalmers, but was struck out in the House of Lords. Apart from any usage of trade such a condition may still be implied, unless it can be considered as excluded by the provision that "there is no implied warranty or condition as to the quality of goods supplied under a contract of sale, except" as provided in the statute.

See 25 Halsbury, Laws of Englanfl, p. 162, note (t)

Chalmeis, Sale of Goods, 7th ed. 1910 p. 46.

Examples of the application of the rule caveat emptor.

Ward v. Hobbs, 1878, 4 App. Cas. 13 (diseased pigs) ; cf, McKay v. Davey, 1913, 28 O.Lr. 322, 12 D.L.R. 458; O'Mealey v. Swartz, 1918, 11 Sask L.R. 376.

Barthwick v. Young, 1886, 12 O.A.R. 671 (apples; opporunity for inspection).

Oldrieve v. C. G. Anderson C, 1916, 35 O.L.R. 396, 27 D.L.R. 231 (goods in esse inspected and accepted/.

Hall Motors v. Rogers, 1918, 44 O.L.R. 327, 46 D.L.R. 639 (second-hand motor trucks).

Examples of exclusion of implied conditions or warranties by express term:

Dickson v. Zizinia, 1851, 10 C.B. 602, 23 R.C. 494; Ward v. Hobbs, 1878, 4 App. Cas. 13 (diseased pigs sold "with all faults"- "no warranty will be given".

57.

Sawyer-Massey Co. v. Ritchie, 1910, 43 Can. S.C.R. 614.

Clark v. Waterloo Mfg Co., 1910, 20 Man. R. 289.

Examples of implied condition of fitness for particular purpose:

Randall v. Newson, 1877 2 Q.B.D. 102, 23 R.C. 480 (pole for carriage).

Preist v. Last, [1903] 2 K.B. 148 (hot water bottle).

Frost v. Aylesbury Dairy Co.. [1905] 1 K.B. 609 (milk).

Bristol Tramways Co. v. Fiat Motors, [1910] 2 K.B. 831 (motor omnibus).

Geddfing v. Marsh. [1920] 1 K.B. 668 (bottle containing mineral water).

Grocers Wholesale Co. v. Bostock, 1910, 22 O.L.R. 130 (goods sold for human consumption)

Canadian Gas Power v. Orr, 1911, 23 O.L.R. 616, 46 Can. S.C.R. 636 (engine and dynamo).

Hill v. Rice, Lewis & Son, 1913, 28 O.L.R. 366, 12 D.L. R. 588 (box of cartridges; buyer relying on his own judgment)

Hopkins v. Jannison, 1914, 30 O.L.R. 305, 18 D.L.R. 88 (steam shovel)

Alabastine Co. v. Canada Producer Co., 1914. 30 O.L. R. 394, 17 D.L.R. 813 (gas engine).

Wood v. Anderson. 1915, 33 O.L.R. 143, 21 D.L.R. 247 (stallion).

Dominion Paper Box Co. v. Crown Tailoring Co., 1918, 42 O.L.R. 249, 43 D.L.R. 557 (paper boxes).

Randall v. Sawyer-Massey Co., 1918, 43 O.L.R. 602 (motor truck)

Examples of implied condition that goods shall be of merchantable quality:

Wren v. Holt, [1903] 1 K.B. 610 (sale of beer over counter).

Mooers v. Gooderham, 1887, 14 O.R. 451 (rye).

The proviso that "if the buyer has examined the goods," there shall be no implied condition as regards defects which such examination ought to have revealed, as originally drawn was confined to cases where the buyer "had no opportunity of examining the goods" (Chalmers, Sale of Goods, 7th ed. 1910, p. 46), in accordance with the rules stated by Mellor J., in Jones v. Just, supra. Under the present wording, it is not sufficient that the buyer should have had the opportunity or inspecting the goods, he must have examined them. Thornett v. Beers, [1919] 1 K.B. 486.