A more troublesome case arises where none of the goods are totally destroyed but ally or a material part of them, are inferior in condition to what the parties supposed when the bargain was made. In regard to such a case it has been said that "the only question is whether the article has been so far destroyed as no longer to answer to the description of it given by the contract," 8 and this statement is warranted by the language of the leading English case.9 This language, however, was used at a time when the doctrines of implied warranty had not been developed. More than ten years later the same eminent judge who wrote the opinion in that case was unwilling to lay down broadly as a general rule of law that a seller impliedly warranted title to the goods sold,10 and it was not until 1868 that the English court clearly stated the modern law of implied warranty of quality.11 The ground of implying a warranty of quality must be that the buyer is justified in assuming that the seller represents that the goods to which the bargain relates are merchantable, and such an implication is now made in many cases. At the present time, therefore, it seems clear that the test of whether an article answers the description of it given by the contract is not adequate. The description may be in such general terms as to be accurate and yet the quality of the goods may be materially inferior to what the buyer is entitled to expect. If no representation can be implied but both parties justifiably suppose that they are dealing with goods in ordinary merchantable condition, and the goods are not in such condition, whether because of some accident or because they never were in good condition, even though the circumstances are such that the seller is not liable as a warrantor, at least there is a mutual mistake of a material fact, which should excuse the seller from liability and justify the buyer in rescinding the transaction. It may well be that even under the English statute nearly this result would be reached by treating goods as having "perished" within the meaning of the Sale of Goods Act, "not only if they were physically destroyed, but also if they had ceased to exist in a commercial sense; that is, if their merchantable character as such has been lost." 12 It seems better, however, to reach the desired result directly than by putting an artificial meaning upon such words as "perished" or "destroyed." If the seller knows of the destruction or deterioration of the goods the case would not fall within the terms of section 7 of the Sales Act, but the seller would then be liable if not in deceit at least on an implied warranty, and the buyer would thus be fully protected.

8 Chalmers, Sale of Goods Act (6th ed.), 20.

9 Barr v. Gibson, 3 M. & W. 390. In this case the defendant sold to the plaintiff, in England, by deed poll, a vessel, and covenanted that he had then "good right, full power, and lawful authority" to sell the same. At the time the transaction took place the ship was aground on the coast of the Prince of Wales island, and had been left by the crew. She was five feet above water on one side and with her masts standing. Her bulk ends were strained. If there had been facilities at hand, and it had been a different season of the year, she might have been got off and repaired. The captain, in fact, sold the ship as she lay for 10 three days after the sale to the plaintiff. The plaintiff sued the defendant in an action of covenant for breach of the covenant quoted above. The court held that the question was whether the subject of the transfer bore the character of a ship and held that "the ship did continue to be capable of being transferred as such at the time of the conveyance though she might be totally lost within the meaning of a contract of insurance. . . . The covenant ... of the defendant that he had power to transfer her as a ship at the time of executing the deed was not broken." This decision may be supported. The action was upon a covenant and the decision depended simply on the question whether the defendant had broken that covenant. No question of mistake or failure of consideration could enter into the case. The language of Parke, B., however, goes farther than the case required. He said: "In the bargain and sale of an existing chattel, by which the property the law does not (in the absence of fraud) imply any warranty of the good quality or condition of the chattel so sold. Parkinson v. Lee, 2 East, 314-Keilw. 91; 1 Rolle's Abr., Action sur case (P.), pl. 4, p. 90. The simple bargain and sale, therefore, of the ship does not imply any contract that it is then seaworthy or in serviceable condition." At the present day it is clear that there would be a warranty of quality if the buyer had no opportunity of inspection, as was the case here. It seems also clear that the fact that the ship was aground at the time of the bargain was so material that the buyer could have rescinded the transaction on account of mistake.

10 Morley v. Attenborough, 3 Ex. 600. The case related to a sale by a pawnbroker and Parke, B., distinguished it from the case of an ordinary shopkeeper selling goods.

11 Jones v. Just, L. R. 3 Q. B. 197.

12 This suggestion is made in Benjamin, Sale (5th Eng. ed.), 140, citing several cases where freight was held not payable under a charter party requiring delivery of the goods as a condition, when the goods were so deteriorated as to be unfit for the purposes for which such goods are ordinarily used. Duthie v. Hilton, L. R. 4 C. P. 138; Asfar v. Blundell, [1896] 1 Q. B. 123. See also Nickoll v. Ashton, [1901] 2 K. B. 126. This result was reached in Rendell v. Turn-bull, 27 N. Zealand, L. R. 1067, under the New Zealand Sale of Goods Act (which is identical with the English Act in the section in question), where a lot of potatoes unknown to the parties at the time of the bargain had started "second growth" to such an extent as to be unfit for human food. See also infra, Sec.Sec. 1569, 1570.

The right of the buyer, however, to take the goods if he wishes seems clear.13