For Breach of Warranty on a Sale of Goods by Sample (d).

1. The defendant, by warranting to the plaintiff that pockets of hops were equal in quality to a sample thereof then shown by him to the plaintiff, sold the said pockets of hops to the plaintiff for £, [and the plaintiff afterwards, in reliance upon the said warranty, took delivery of the said pockets of hops from the defendant and paid him the said price for them].

2. The said

pockets of hops were not at the time of the said sale equal in quality to the said sample, and were greatly inferior thereto.

Particulars of damage :—

For Breach of an Implied Warranty that Goods sold and supplied by the Defendant in the course of his Business for a particular Purpose were reasonably fit for that Purpose (e).

1. The plaintiff has suffered damage from the breach of a warranty by the defendant that certain goods, that is to say

(d) As to sales by sample, see s. 15 of the Sale of Goods Act, 1893, post, p. 812; Benjamin on Sales, 4th ed., p. 640.

Where unascertained goods, or goods which the buyer has no opportunity of inspecting, are sold by sample, it is a term of the contract that the goods to be supplied under the contract shall correspond in kind and quality with the sample, and if the goods delivered or tendered do not correspond with the sample, the buyer may treat this failure to comply with the contract as a condition entitling him to reject the goods and to recover the price, if already paid, for them; or, if he retains the goods, as a breach of contract entitling him to recover damages. (See s. 11 (1), s. 53 (1), cited ante, pp. 355, 356; Grimoldby v. Wells, L. R. 10 C. P. 391; 44 L. J. C. B. 203; Heilbutt v. Hickson, L. R. 7 C. P. 438; 41 L. J. C. P. 228; and "Sale of Goods," ante, p. 361.)

Where there is a contract for the sale of goods "by sample, as well as by description, it is not sufficient that the bulk corresponds with the sample, if the goods do not correspond with the description." (See s. 13; and see Nichol v. Godts, 10 Ex. 191.)

As to the measure of damages in actions for breach of contract to supply goods in accordance with samples, see s. 53 (2) and (3), cited note (b), supra.

(e) Seo s. 14 (1), cited ante, p. 357; and see Brown v. Edgington, 2 M. & G. 279; Jones v. Bright, 5 Bing. 533; Jones v. Just, L. R. 3 Q. B. 197, 203; Randall v. Newson, 2 Q. B. D. 102; 46 L. J. Q. B. 259; Jones v. Padgett, 24 Q. B. D. 650; 59 L. J. Q. B. 267.

This implied warranty of fitness may be broken by the existence of even latent defects. (Randall v. Newson, supra; Drummond v. Van Ingen, 12 App. Cas. 284; 56 L. J. Q. B. 563.)

of

[state the goods], which were sold and supplied by the defendant to the plaintiff on the 18, were reasonably fit for the purpose for which the same were required, viz. [state the

purpose.

2. The warranty was implied under the following circumstances. It was in the course of the defendant's business, as a

- at, to sell and supply goods of the description aforesaid, and the said purpose for which the said goods were required was, before and at the time of the said sale, made known by the plaintiff to the defendant, so as to show, as was the fact, that the plaintiff relied on the defendant's skill and judgment to supply goods reasonably fit for the said purpose.

3. The said goods were not reasonably fit for the said purpose. Particulars :

Statement of Claim upon a Warranty of Title and quiet Possession on a Sale of Goods (ƒ).

1. The defendant on the of -, 18-, by warranting that he then had good right and title to sell certain goods, that

Where a purchaser orders goods from a manufacturer of such goods, who is not otherwise a dealer in them, it seems to be, in general, an implied term of the contract that the goods supplied shall be of such manufacturer's own make. (Johnson v. Raylton, 7 Q. B. D. 438; 50 L. J. Q. B. 753; Starey v. Chilworth Gunpowder Co., 24 Q. B. D. 90.)

(f) By s. 12, "In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is-(1) an implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass: (2) an implied warranty that the buyer shall have and enjoy quiet possession of the goods: (3) an implied warranty that the goods shall be free from any charge or incumbrance in favour of any third party, not declared or known to the buyer before or at the time when the contract is made."

Previously to this enactment, the rule was that, on the sale of a specific chattel or specific goods there was, primâ facie, no warranty as to title on the part of the seller, but such a warranty might be inferred from the usage or nature of a particular trade, or from the circumstances of the sale. Thus, upon a sale of goods in a shop, the shopkeeper was considered as warranting that the goods were his to sell, and if the purchaser was deprived of the goods by reason of a defect of title he could recover back the price. (Eichholz v. Bannister, 17 C. B. N. S. 708; 34 L. J. C. P. 105.) But a pawnbroker who had sold an article as a forfeited pledge was held to warrant only that it had been pledged with him and was irredeemable, and that he knew of no defect of title, and was not liable for breach of an implied warranty of title upon the article being claimed by the true owner (Morley v. Attenborough, 3 Ex. 500); and it was held that a sale of

is to say,, [and that the plaintiff should have and enjoy quiet possession thereof] sold the said goods to the plaintiff for [which sum the plaintiff then paid to the defendant].

2. The defendant at the time of the said sale had not lawful right or title to sell the said goods or any of them [and the plaintiff did not have or enjoy quiet possession of the said goods after the said sale], and the plaintiff was afterwards obliged to deliver up the said goods to E. F., who had the lawful right and title thereto, and the plaintiff has lost the said goods [and the said sum of £ which he paid the defendant for the

same]. Particulars :

:

The warranty was made orally at the time of the sale [or, was contained in a letter dated, &c., or, was implied from the following circumstances, viz., (here state same)].

WITNESS (a).

goods taken in execution imported no warranty of title (see Chapman v. Speller, 14 Q. B. 621; 19 L. J. Q. B. 239).

A concealment by the vendor of defects in his title, which are known to him, and which it is his duty to disclose, amounts to fraud, and is actionable as such. (See Early v. Garret, 9 B. & C. 932.)

(a) A witness may maintain, an action for his expenses against the party by whom he is subpoenaed, and this is so even where he was not examined at the trial because he had refused to give evidence unless his expenses were paid. (Hallett v. Mears, 13 East, 15; and see Hale v. Bates, E. B. & E. 575; 28 L. J. Q. B. 14; Chamberlain v. Stoneham, 24 Q. B. D. 113.) It would seem that on taxation, compensation for loss of time is not in general allowed in the case of an ordinary witness, though in the case of a professional witness it is otherwise (Chitty's Prac., 14th ed., pp. 563, 716; Collins v. Godfrey, 1 B. & Ad. 950); and that consequently an ordinary witness cannot usually, in an action, recover compensation for loss of time in addition to his expenses (Ib.; but see Chamberlain v. Stoneham, supra.)

An action for money received is maintainable to recover back conduct money paid to a person upon a subpoena to attend a trial as a witness, where he does not attend upon the subpoena. (Martin v. Andrews, 7 E. & B. 1.)

The solicitor in an action is not, in general, personally liable to a witness for his expenses. (Robins v. Bridge, 3 M. & W. 114; Lee v. Everest, 2 H. & N. 285; 26 L. J. Ex. 334; and see Fendall v. Nokes, 7 Scott, 647; see further " Witness," post, p. 542.)

WORK.

Statement of Claim for Work done and Materials provided (a). (R. S. C., 1883, App. E. Sect. II.)

The plaintiff's claim is for work done and materials provided by the plaintiff for the defendant at his request.

Particulars :

1882. January 1 to 31 May.-To re-building
house at Wigan, as per contract dated the
24th December, 1881

To extras as per account delivered

Paid on account

Balance due

£ 8. d.

. 3,400 0 0 243 0 0

3,643 0 0

3,000 0 0

£643 0 0

The plaintiff also seeks to recover interest on the above balance from the 31st May, 1882, till payment or judgment. Place of trial, Lancashire, Northern Division.

(Signed)

Delivered the 1st of January, 1883.

(a) Under the general term "work" any species of labour may be given in evidence (Clark v. Mumford, 3 Camp. 37), whether mental or physical, or both (Grafton v. Armitage, 2 C. B. 336; Clay v. Yates, 1 H. & N. 73; 25 L. J. Ex. 237); but it is usual and proper to describe the kind of work or the character in which the work has been done, as, work done by the plaintiff as a solicitor, an auctioneer, a broker, &c. If there is a claim for materials provided it must be stated. (Heath v. Freeland, 1 M. & W. 543.)

Where the work has been done by the plaintiff upon his own materials in making an article to be delivered to the defendant under a contract of sale, the work is done by the plaintiff for himself, and not for the purchaser, and the subject of the contract should be treated as goods sold, and not as work and labour. (Atkinson v. Bell, 8 B. & C. 277; Lee v. Griffin, 1 B. & S. 272; 30 L. J. Q. B. 252.) Contracts which fall under the description of work and labour, although they result in the delivery of completed goods, are not within the 17th section of the Statute of Frauds, or the 4th section of the Sale of Goods Act, 1893. (See Clay v. Yates, 1 H. & N. 73; 25 L. J. Ex. 237; Lucas v. Godwin, 3 Bing. N. Č. 737; Grafton v. Armitage, 2 C. B. 336.)

Where work is done by one party under a special contract, but not according to its terms, the other may refuse to accept it (Ellis v. Hamlen, 3 Taunt. 52); but if he does accept it and takes the benefit of it, he may

By a Servant against a Master for Salary or Wages due: see "Master and Servant," ante, p. 286.

For other Forms of Statements of Claim for Remuneration for Services rendered in various capacities, see "Agent," ante, p. 87; "Auctioneer," ante, p. 110; "Broker," ante, p. 166; "Carrier," ante, pp. 170, 174; "Medical Attendance," ante, p. 288; "Solicitors," ante, p. 351.

be sued for the value of it (Burn v. Miller, 4 Taunt. 745). If, however, the work is of such a nature that it cannot be rejected, so that the party has no option in accepting it, he is not necessarily liable for the value; as work done in building upon the defendant's land, but not according to contract. (Ellis v. Hamlen, supra; Milner v. Field, 5 Ex. 829; Burn v. Miller, supra; Munro v. Butt, 8 E. & B. 738.)

Where the terms of the contract are such as to make the remuneration contingent upon the completion of the services, a partial performance will not alone give any claim against the employer. (Hulle v. Heightman, 2 East, 145; Cutter v. Powell, 6 T. R. 320; 2 Sm. L. C., 10th ed., p. 1; 6 T. R. 320; Appleby v. Dods, 8 East, 300; Jesse v. Roy, 1 C. M. & R. 316; Moffatt v. Laurie, 24 L. J. C. P. 56; Sinclair v. Bowles, 9 B. & C. 92; Green v. Mules, 30 L. J. C. P. 343.) So if the completion is prevented by some accident or event that may excuse the further performance, yet if there be no default in the employer, he is not liable for the value of the part performed where by the contract payment is contingent on completion. (Appleby v. Myers, L. R. 2 C. P. 651; 36 L. J. C. P. 331; Adlard v. Booth, 7 C. & P. 108; Gillett v. Mawman, 1 Taunt. 140; Metcalfe v. Britannia Ironworks Co., 1 Q. B. D. 613; 45 L. J. Q. B. 837; 2 Q. B. D. 423; Hopper v. Burness, 1 C. P. D. 137; 45 L. J. C. P. 377.)

But where the contract is to do work or render services to be paid for on completion, and the employer revokes the retainer before the work is completed, or prevents the completion of it, he must nevertheless reimburse the party employed for his labour expended in pursuance of the employment, unless the contract is such as to admit the power of revocation in the employer without any compensation for the services rendered, as to which see "Agent," ante, p. 88.

It is common in building contracts and the like to make it a condition precedent to the payment of the price that the architect or engineer give his certificate of approval; and then there can be no claim for payment under the contract until it is given (Morgan v. Birnie, 9 Bing. 672; Milner v. Field, 5 Ex. 829; Richards v. May, 10 Q. B. D. 400; 52 L. J. Q. B. 272); and that is so even where the certificate is wrongly or unreasonably withheld (Clarke v. Watson, 18 C. B. N. S. 278; 34 L. J. C. P. 148; Scott v. Corporation of Liverpool, 3 D. & J. 334; 28 L. J. Ch. 230; De Worms v. Mellier, L. R. 16 Eq. 554). There may, however, be a claim or right of action on the ground of fraud where the certificate is withheld by the procurement of the employer in collusion with the architect. (Batterbury