Furthermore, it may be possible that the seller tenders to the buyer precisely the goods contracted for, in inherent nature, but does not tender them at the place agreed upon, or at the right time, or in the right way, etc. In such case, if the matter failed in is of essential importance in the agreement, the seller has not performed his agreement. And not having himself performed, he cannot sue the buyer if the latter refuses to pay. It might be said that, in these cases the very goods described in the contract having been tendered, title would be presumed to have passed, although the buyer incurs no "liability" as to payment until the seller shall have performed according to the terms. But, on the other hand, the goods not having been specific at the time of the making of the contract, title could not have passed then and would not pass thereafter without some actual or constructive assent of the buyer. The buyer not having accepted the goods, the title would not be in him, whatever might have been his reason for refusing to take it. The question of title is not specifically raised in the cases involving these circumstances, but the courts do agree that, at least, there is no liability on the part of the buyer.

These provisions of the contract, also, since they must be complied with to make the buyer liable, are called "conditions." And, indeed, in some cases such terms as the time and place of delivery-which seem normally related to performance rather than to identity-are said to be essential to the identity of the goods. Thus one court says, "The date of the shipment is a material element in the identification of the property."26 Other courts treat them as having the same effect, without specifically saying that they do affect the identity. For example, the Supreme Court says,27 "A statement descriptive of the subject matter, or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a war

26-Clark v. Fey, 121 N. Y. 470.

27-Norrington v. Wright, 115 U. S. 188.

ranty, in the sense in which that term is used in insurance and maritime law, that is to say, a condition precedent, upon the failure or non-performance of which the party aggrieved may repudiate the whole contract.''28 It seems unavoidable, therefore, to discuss both kinds of these conditions, viz., those relating to performance as well as those affecting identity, on whose performance by the seller the buyer's liability depends, without particular distinction.

-What Are Conditions.-This brings us to the inquiry, what terms in the contract are "conditions" to which the seller must conform to render the buyer liable. When the contract is for the sale of an article specifically identified at the time, a tender by the seller of that particular article would seem clearly to be a performance of his agreement, so far as his part in the transfer of title is concerned, no matter what statements he may have made in regard to the character or qualities of that article. This is fully sustained by the authorities which hold that title to a specific chattel is presumed to have passed at the time of the contract,29 in conjunction with those

28-"The quality is a part of the description of the thing agreed to be sold, and the vendor is bound to furnish articles corresponding with the description. If he tenders articles of an inferior quality, the purchaser is not bound to accept them." Pierson v. Crooks, 115 N. Y. 539; "What is sold is not 300 tons of rice in gross, or in general. It is 300 tons of Madras rice to be put on board at Madras during the particular months", Bowes v. Shand, 2 App. Cas. 455; Salmon v. Boykin Co., 66 Md. 541, quantity and place of shipment; Crane v. Wilson, 105 Mich. 554; Cleveland Rolling Mill v. Rhodes, 121 U. S. 255; Pope v. Porter, 102

N. Y. 366; Rommel v. Wingate, 103 Mass. 327; Cromwell v. Wilkinson, 18 Ind. 365; Filley v. Pope, 115 U. S. 213, "The term 'shipment from Glasgow' defines an act to be done by the sellers at the outset, and a condition precedent to any liability of the buyer." Van Valkenberg v. Mason, 45 Neb. 654. Quan tity also may be a condition precedent, Tamvaco v. Lucas, 1 El. & El. 592; Downer v. Thompson, 2 Hill (N. Y.) 137, delivery of too much; Cunliffe V. Harrison, 6 Exch. 903, idem; Hoffman King, 58 Wis. 314. Cf. Brownfield v. Johnson, 128 Pa. 254.

29-Ante, p. 19 ff.

V.

which hold that a specific chattel so sold can not be returned to the seller in the absence of fraud.80

The converse of this is equally true; a contract to sell a specific chattel is not satisfied by a tender of some other chattel, even though the one tendered has all the qualities ascribed to the one contracted for. Thus, in Columbia Iron Works v. Douglass,31 the contract was for the sale of steel scrap from the plates of certain boats which the seller was building. The court held that a tender of steel scrap which was not from the plates of those boats was not performance of the contract, even though that which was tendered was of precisely equal quality. "It was," said the court, "an agreement for the purchase by the appellee and for the sale by the appellant of a specific, designated thing; and that thing was not steel of a described grade free from a named percentage of sulphur and phosphorous, but steel scrap from the plates, beams, and angles of the United States cruisers built by the appellant. This was the named and designated-the specific and identical-thing contracted for; and the substitution of any other or different material, no matter what its quality or chemical test might be, was a clear breach of the undertaking entered into by the parties. When a person buys a particular thing, he can not be compelled to take some other thing, even if like the thing he bought. He has a right to insist on the terms of his contract."

When the contract relates to goods not existing, or not specific, at the time, then all terms in the description which are reasonably necessary to identify the goods tendered with the goods intended by the contract are conditions and must be complied with. In general, all terms which the parties may reasonably be supposed to have considered essential to the correct identification are a part of the description which must be complied with. If, for instance, one agree to sell "blue vitriol, sound, and

30-Post, p. 177. Cf. also, Webster, Gruber Co. v. Dryden, 90

Iowa 37; Scott v. Buck, 85 Ill. 333. 31-84 Md. 44.

in good order," his contract is not performed by a delivery of vitriol, however sound and in good order, which is not blue vitriol. "Saltzberger," or "green,” vitriol does not suffice.32 It is impossible to formulate a rule as to just which terms of a contract are essential to the identification of the goods intended and which are mere description of character or quality collateral to the identification.33 Whether a particular term is in fact an essential part of the contract of sale, or is only an obligation collateral to the matter of passing title, is a matter that will be decided by each court to suit itself in the particular case. For precedent decisions, which may by the similarity of their facts influence a particular judge, one must refer to the digests.

Opinions as Conditions.-A statement of opinion as to the characteristics or qualities of the goods contracted for, is not a part of the identifying description, even though, in expression, it may be interwoven with the description. It is not a condition precedent to performance, therefore, that the goods shall actually conform to that statement of opinion.

The great difficulty is to distinguish precisely between description for the purpose of identification and mere coincident expressions of opinion. There are no rules for determining this-it is a question of particular conclusion. But if this question be settled in the particular case, the law is certain; description must be complied with, opinion is immaterial.34

32-Hawkins v. Pemberton, 51 N. Y. 98.

33-As to the effect of statements, by way of description or otherwise, in regard to goods which are specific and identified at the time of sale, see the discussion under "warranty," post, p. 182.

34-Bartlett v. Hoppock, 34 N. Y. 118, a statement by a hog

drover to an experienced market man that his hogs were "suitable for New York market" was a mere expression of opinion; Farrow v. Andrews, 69 Ala. 96; Power v. Barham, 4 Ad. & El. 473, "It was, therefore, for the jury to say, under all circumstances, what was the effect of the words, and whether they implied a warranty of gen

-Implied Conditions.-An important proposition in respect to these conditions, or terms of the description, is that they need not be wholly express. Terms which must be complied with to constitute performance may be implied by the other provisions of the contract.*

Thus, "It is understood of every contract for the future sale and delivery of an article of merchandise, (not specific at the time), even without express terms, that it shall be of merchantable quality." And this is a condition precedent.35 Howard v. Hoey,36 arose out of a sale of ale. On delivery it was discovered to be sour, ropy and unfit for use and the buyer refused to keep it. The seller contended that there was no express statement in the contract that it should not be sour. But the court held an express statement to be unnecessary, saying, "It stands conceded, that, where the contract is executory, or, in other words, to deliver an article not defined at the time, the promisee can not be compelled to put up satisfied with an inferior commodity. The contract always carries an obligation that it shall be at least merchantable—at least of medium quality and goodness. If it come short of this it may be returned after the vendee has had a reasonable time to inspect it.

There is always a warranty or promise implied that the indeterminate thing to be delivered should, at least, not have any remarkable defect."'87 The implication is not that the goods otherwise described shall be of the best quality, but only that they shall be of a normally good

uineness, or conveyed only a description, or an expression of opinion." Jendwyn v. Slade, 2 Esp. 572.

The frequency with which statements by the seller in regard to the goods are held to be only expressions of opinion is vigorously condemned by the Supreme Court of Kansas, in Foote v. Wilson, 104 Kan. 191, 178 Pac. 430.

This is a question for the jury, Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. Rep. 595; Allen v. Lake, 18 Q. B. 560.

35-Reed v. Randall, 29 N. Y.

361.

36-23 Wend. (N. Y.) 350.
37-Farren v. Dameron, 99 Md.

323.

*See Uniform Sales Act, Sections 12, 13, 14, 15.