siderable degree of order out of confusion, and in declaring, with its supreme authority, what undertakings on the part of the seller are conditions and what are warranties.

1

139. Warranty should be used in a Single Sense. - The Sale of Goods Act defines warranty as "an agreement with refer ence to goods which are the subject of a contract of sale, but collateral to the main purpose of such contract, the breach of which gives rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated: "Tis a consummation devoutly to be wished" that the word should be thus limited in the law of sales in this country; but a consummation attainable only by legislation. And yet it would seem to be the duty of every writer, or. judge dealing with this subject to use the word in its narrow and legitimate sense, defined in the English statute, and in that sense only.2

§ 2. (A) Classification of Conditions.

140. While the Sale of Goods Act does not classify conditions, nor specifically define the term, its learned draughtsman has called attention to the "important distinction between what may be called promissory conditions, and contingent or casual conditions. In the latter case the obligations of both parties are suspended till the event takes place. In the former case the non-performance of the condition by the promisor (unless excused by law) gives a right to the promisee to treat the contract as repudiated; that is to say, he is discharged from his part of the contract, and, further, he has a claim for damages. In the one case the obligation of the contract does not attach. In the other case the contract is broken." 3

The Uniform Sales Act denominates a promissory condition "a warranty," but gives to the promisee the option of treating

1 Sale of Goods Act, 1893, § 62.

2 Lewis v. Pope Motor Car Co., 202 N. Y. 402, 406; 95 N. E. 815 (1911) employs the term in the sense approved in the text; but that sense has been discarded in New York by the Uniform Sales Act. See L. 1911, ch. 571, § 150, and §§ 94, 95, 96 & 97.

3 Chalmers' Sale of Goods Act (7th ed.), 194.

Mass. L. 1911, ch. 237, § 19 (1). "If the other party has promised that the condition should happen or be performed, such first-mentioned

it as a condition subsequent, upon the breach of which he may reject the goods and treat the contract as rescinded.1

141. The Nature of Promissory Conditions. It is well settled in many jurisdictions that every engagement of the seller, which is an essential term of a contract to sell, is a promissopy.condition, using the term as defined in the foregoing paragraph. This view appears to be correct, although very able judges have ignored or repudiated it.2 Upon the seller's failure to perform ah engagement of this character the buyer can defend an action brought by the seller upon the contract; and also he can recover damages for the seller's breach of such engagement."

142. An Essential. Term as a Condition Precedent. - In Graves v. Legg," the plaintiff contracted to sell to the defendant fleece-wool to be shipped from Odessa to English ports with all despatch, and the names of the vessels to be declared as soon as the wools were shipped. With reference to the last stipulation, Baron Parke said: "In the state of things on this record, the simple question is whether this contract was originally a condition precedent or not. Looking at the nature of the contract, and the great importance of it to the object with which the contract was entered into with the knowledge of both parties, we think it was a condition precedent, quite as much, indeed, as the shipping of the goods at Odessa with all despatch after the end of August." He also declared that if the buyer had accepted the goods, he "could not have insisted on the neglect to name in due time, but if there had been any such neglect, would, nevertheless, have had his remedy for the damage by cross action on the contract to declare the names." " party may also treat the non-performance of the condition as a breach of warranty."

1 Ibid. § 69 (1), (d). For a classification of conditions in La., see W. T. Adams Mach. Co. v. Newman, 107 La. 702; 32 So. 38 (1902).

2 Coplay Iron Co. v. Pope, 108 N. Y. 232; 15 N. E. 335 (1888); Burdick's Cases on Sales, 410; Milling Co. v. Supply Co., 36 Utah, 121; 103 Pac. 242 (1909).

Graves v. Legg, 9 Exch. 709; 23 L. J. Ex. 228 (1854).

Josling v. Kingsford, 13 C. B. N. s. 447 (1863); Hamilton v. Ganyard, 2 Abb. App. Dec. 314; 3 Keyes, 45 (1866); Burdick's Cases on Sales, 671. 9 Exch. 709; 23 L. J. Ex. 228 (1854).

Avery v. Burrall, 118 Mich. 672; 77 N. W. 272 (1898); Burdick's Cases on Sales, 673.

143. Damages for its Breach, when its Effect as a Condition is waived. The law upon this point in England is well stated by Justice Brett' as follows: "In this action, we must decide whether there was not only a breach of contract, but such a breach of contract as entitled the charterer to refuse to load or reload. The question in such cases is said to be whether the warranty was a condition. I apprehend that a stipulation amounting to a condition is necessarily also a warranty, and there may be circumstances preventing its being treated as a condition, and then it is available as a warranty; as, for instance, when the stipulation is that the ship shall be ready to load within a fixed time or a reasonable time, and the cargo is loaded and carried; though before loading this might be a condition precedent, inasmuch as the charterer has loaded and derived benefit from the charter, he cannot rely on it as a condition, but must treat it as a warranty.

144. A Promissory Condition is not a Collateral Agreement. - Although an essential term of a contract is spoken of, in the foregoing extract, as "necessarily also a warranty," the English decisions draw a sharp distinction between such an engagement and the collateral agreement of warranty. In a comparatively early case brought by the buyer against the seller for damages, the buyer alleged a special warranty by the seller that goods ordered and furnished as scarlet cuttings were of a merchantable quality; and in another count, "an undertaking that they were scarlet cuttings." No special warranty was proved, but Lord Ellenborough ruled that if the goods "were sold by the name of scarlet cuttings, and were so described in the invoice, an undertaking that they were such must be inferred;"3 and the plaintiff recovered damages for the breach of such undertaking, but not on the special warranty.

145. A modern case brings out the distinction between an essential term, which is a promissory condition, and a collateral agreement, which is a mere warranty, still more clearly. The plaintiff contracted for the purchase of a quantity of

1 Stanton v. Richardson, L. R. 7 C. P. 421, 436; 45 L. J. C. P. 78 (1872). 2 Cf. Behn v. Burness, 3 B. & S. 751, 756; 32 L. J. Q. B. 204 (1863). 'Bridge v. Wain, 1 Stark. 504; 18 R. R. 815 (1816).

oxalic acid from defendant, for the quality of which the defendant declined to become responsible. After a considerable part of the acid had been used by the plaintiff, he had it analyzed, when it was found to contain a considerable admixture of sulphate of magnesia, a defect not discoverable by ordinary inspection. He declined to take more of the article, and sued the defendant upon his contract, charging in one set of counts the non-delivery of oxalic acid in accordance with the contract, and in another set a breach of warranty, averring special damage. Chief Justice Erle charged the jury that there was no evidence of any warranty; but "that the defendant could only perform his part of the contract by delivering that which in commercial language might properly be said to come under the denomination of oxalic acid; and that, if they should be of opinion that the article delivered by the defendant as oxalic acid did not properly fulfil that description, they should find for the plaintiff." They returned a verdict for the plaintiff for £400. The ruling was sustained on appeal.1

146. Distinction between Promissory Conditions and Warranties. The question, what engagements on the part of the seller are essential terms of his contract, or promissory conditions, and what are collateral agreements, or mere warranties, will be more fully discussed in the next section; and an attempt will be made to state the leading views on this subject which obtain in various jurisdictions.

147. Classification of Sale Contract Provisions. These may be divided into three classes, at common law:

First. Mere conditions, that is, provisions which are available as a defence to the party in whose favor they are made, but the non-fulfilment of which does not subject the other party to any legal liability.

Second. Engagements, which are available to the party in whose favor they exist as conditions precedent, and the nonperformance of which also subjects the other party to a liability for damages.

Third. Engagements, which from the beginning are collateral to the main object of the sale contract, are never avail

1 Josling v. Kingsford, 13 C. B. n. s. 447; 32 L. J. C. P. 94 (1863).

able as conditions precedent to the party in whose favor they are made, and a breach of which subjects the other party to a liability for damages only.1

(B) Provisions which are Mere Conditions.

148. The non-fulfilment of a provision of this character is available only as a defence, and may so operate that the obligation of the contract will not attach to either party. For example, if the contract is for the sale of goods of a certain description to arrive by a designated vessel, neither party is bound, unless the described goods arrive by the specified ship.2 In other words, the contract is subject to a double condition precedent; and the seller does not promise to perform either condition. So, if it is for the future sale of specific existing goods, or goods to be obtained from a specific source, neither party is bound in case, without the seller's fault, the goods perish or cannot be obtained from the stipulated source.

3

4

This doctrine, however, does not apply to contracts by manufacturers to supply a customer with goods made by them. Such cases fall under the rule "that where parties by their own con

1 This classification has been modified by the Uniform Sales Act, as pointed out in ¶ 140. The extent of the changes made by this statute will be described in appropriate connections hereafter.

2 Shields v. Pettee, 4 N. Y. 122 (1850); Burdick's Cases on Sales, 265. But the seller may lose the advantage of either of these conditions. If he engages that the goods in question are on board, Hale v. Rawson, 4 C. B. N. s. 85 (1858), Burdick's Cases on Sales, 675, or that they are equal to sample, Dike v. Reitlinger, 23 Hun (N. Y. Sup. Ct.), 241 (1880), his contract obligation attaches upon the arrival of the ship. See also Abe Stein Co. v. Robertson, 57 N. Y. Supp. 46; 38 App. Div. 311 (1899); 167 N. Y. 101, 106 (1901); Burdick's Cases on Sales, 676. In the last cited case, the Court of Appeals declared that the doctrine of Shields v. Pettee, 4 N. Y. 122, "has no application where the contract contains either a warranty that the shipment has been made, or an express agreement to make shipment."

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Dexter v. Norton, 47 N. Y. 62 (1871); Burdick's Cases on Sales, 24 (apparently this was a present sale, but the court treated it as a contract to sell).

Howell v. Coupland, L. R. 9 Q. B. 462 (1874), opinion of Blackburn, J.; 1 Q. B. D. 258 (1876), opinion of Cleasby, B; Pearson v. McKinney, 160 Cal. 649; 117 Pac. 919 (1911); Russell v. Camp, 9 Ga. App. 691; 72 S. E. 60 (1911).