followed by notice to the purchaser and his promise to take it away;' or where a carriage was seen and paid for when finished, and an alteration ordered by the purchaser, who continued to importune the maker and to receive promises of delivery, till at last, as the alteration was not made, he gave orders for the carriage to be sold;' in these cases it was held that the property had passed to the purchaser. But where A., having received an order from B. for spinning frames, employed C. to make them for B. who had notice thereof; and they were made and altered according to A.'s order, and packed up for B. who however refused to accept them; it was held that the count for goods bargained and sold would not lie for the maker, since the property in the frames had not passed to the purchaser. A ship-builder at Pictou, in Nova Scotia, being under contract to build a ship for the plaintiffs, merchants at Glasgow, received advances of money in the course of the work, and, before it was completed, gave them a bill of sale on the vessel in progress, which, after stating that it was given for the security and repayment of the money advanced, proceeded in the usual terms of a deed-" Have bargained and sold, and do, &c.," but habendum to the plaintiffs "when the said ship shall be completed and finished;" and the vessel was at the same time duly registered in the names of the plaintiffs. The builder afterwards borrowed money of the defendants to finish the ship, registered her anew in his own name, and duly executed another bill of sale to the defendants, who received possession of the vessel accordingly. It was held that the property in the ship passed presently by the first bill of sale to the plaintiffs, and that the obvious intention of the parties was not controlled by the habendum. Rohde v. Thwaites, 6 B. & C. 388; Wilkins v. Bromhead, 6 M. & Gr. 963, S. P. 2 Carruthers v. Payne, 5 Bing. 269. 3 Atkinson v. Bell, 8 B. & C. 277, 278, 282. 4 Read v. Fairbanks, 22 L. J. (C. P.) 206; 13 C. B. 692. In determining what the plaintiffs were, in this case, entitled to recover, it was suggested by Jervis, C. J., that the damages should So in Woods v. Russell,' the be the value of the vessel, &c., at the fact, which ultimately determined the Court to decide that the general property in the ship had vested in the purchaser, was the signing of the certificate by the builder, to enable the other to register the vessel in his own name. In the last-mentioned case, the rule, now recognised as a rule of the English law, that the property in an unfinished chattel, during its progress to completion, may vest, under a contract for the construction of it, in the purchaser, was for the first time propounded by Lord Tenterden, and in the following terms:-"This ship is built upon a special contract, and it is part of the terms of the contract, that given portions of the price shall be paid according to the progress of the work; part when the keel is laid, part when they are at the light plank. The payment of these instalments appears to us to appropriate specifically to the defendant the very ship so in progress, and to vest in the defendant a property in that ship, and that, as between him and the builder, he is entitled to insist upon the completion of that very ship, and that the builder is not entitled to require him to accept any other." The principle contained in these observations, is now an established rule of law, based upon the intention of the parties, either entirely expressed in their written contract, or to be collected from a concurrence of mutual acts and stipulations in the same transaction. In Clarke v. Spence, however, the Court, by a singular use of criticism, seeming to deny that there can be any inference from a concurrence of many circumstances, which is not as obviously justified by each particular, impeached the authority of Woods v. Russell; and then followed nevertheless, in the case before them, the rule which they had thereby somewhat unsettled. The case which they thus decided is since regarded as of little authority in consequence. Woods v. Russell, 5 B. & Ald. 942, 945; and per Bayley, J., Atkinson v. Bell, 8 B. & C. 277, 282. Baker v. Gray, 17 C. B. 462. 3 Wood v. Bell, 5 E. & B. 772; (in error) 6 E. & B. 355; Spanish and Portuguese Screw Steam Shipping Company r. Bell, ibid. 4 Clarke v. Spence, 4 A. & E. 448; I cannot escape the impression, that a marked disapproval of the judgment in that case is obvious in the judgment pronounced in Wood v. Bell in the Court below, and also in the Court of Exchequer Chamber. In Wood v. Bell' there was a stipulation in the contract for payment of the price by instalments at specified stages of the work; the vessel was built under the superintendence of a person appointed by the purchaser with the consent of the other; the builder at his instance, during the progress of the work, punched the purchaser's name on the keel for the purpose of securing the ship to him; and afterwards, although the builder refused to execute a formal assignment, being himself already in embarrassed circumstances, he admitted that the vessel was the purchaser's property,-on a review of all these circumstances, concurring in the same case and evincing the intention that existed between the parties, the Court held that the property in the ship passed to the purchaser as she advanced in her progress towards completion. Materials and parts, designed for a ship being built under such a contract, but not fastened to her at the time of the bankruptcy, do not pass to the purchaser as against the builder's assignees, unless they have previously gone through the ordeal of being approved as parts of the vessel. Perhaps the rudder and cordage in Woods v. Russell fall within the rule, 1 Wood v. Bell, 5 E. & B. 772 (in error) 6 E. & B. 355. Before this principle was propounded in Woods v. Russell it had already been applied by the Court of Session in Scotland to a contract of the same nature. It was a contract to build a ship for the purchaser in consideration of his paying the price in three sums, the first at the laying of the keel, the second when she was built up and planked to the top of the gunwale, and the remaining sum when she was launched; but the builder became bankrupt after receiving the first instalment, and his creditors claimed the vessel. The report says: "The determination of the case, was thought by the judges to depend not so much on the general principles of law, as on the special terms of the agreement. By these the employer was to pay the price in different portions. Before payment, however, he had a right to see the work so far properly performed. Thus, as the builder proceeded, such an appropriation took place as prevented his creditors from touching the ship without refunding the sums advanced." The report adds: "The Lords found the claim of Mr. Simpson preferable to that of the creditors of the bankrupt."--Simpson v. The Creditors of Duncannon, Aug. 2, 1786. Faculty's Coll. No. 290, p. 446; M. 14204, S. C. Contrary to this idea of refunding by the creditors, Lord Tenterden says: "the general property" vested in the purchaser, and the builder would have a lien on the ship, when completed, for the residue of the price, 5 B. & Ald. 948; but the Court, in Clarke v. Spence, 4 A. & E. 465, "desire it to be distinctly understood that in the judgment they were about to pronounce, they give no opinion whatever as to the soundness of that doctrine" (of the lien in the builder). 2 Wood v. Bell (in error), 6 E. & B. 355; Baker v. Gray, 17 C. B. 462. although if they were merely bought specifically for the ship by the builder without more, there is room for doubt.' Certainly an unfinished rudder, designed, but not approved, cannot be held to pass to the owner of the ship in accordance with this principle, and therefore Goss v. Quinton seems to be overruled. It was accordingly held, upon appeal, in Wood v. Bell, that engines in the process of manufacture and designed for the specific ship on a peculiar plan, angle irons made for her and marked in accordance with the drawings, and planking and timbers prepared for her and lying in the yard, did not pass to the purchaser.” Where the contract was for payment of the price by instalments at successive stages of the work, the ship to be the property of the purchaser from and after the first payment made, with power to him in certain events to supersede the builder in the 'construction of the ship, and to "use" for completing it such of the builder's materials as were applicable; and the purchaser did, in the course of the work, supersede the builder, being then under large advances to him in anticipation of the work; and before the builder's bankruptcy, which happened soon after, the purchaser assorted the applicable timber, deals and materials, into lengths, placing part within the frame of the vessel, but in no way attached it; the Court held that though actual fastening might not be requisite to appropriate the materials to the purchaser, mere storing thereof within the fabric was not such a user under the contract as would have that effect." Purchase, the second mode, that has been mentioned, of By Purchase. acquiring ship-property, is either by way of private contract or of public auction. In both cases, the vendor may undo himself by his incautious commendations of an inferior article, in order to gain a superior price; and the purchaser, trusting more to the opinion of the seller and the protection of the law, than to the vigilant exercise of his own prudence and judgment, may 1 Woods v. Russell, 5 B. & Ald. 942; dissatisfaction with this part of the decision is expressed in the course of the argument in Wood v. Bell (in error) 6 E. & B. 355. Goss v. Quinton, 3 M. & Gr. 825; see the observations of the Court of 3 Wood v. Bell (in error), supra; re- Caveat emptor. Material representations. Amounting to find himself on the wrong side of a bad bargain without any remedy. Our law makes no provision for the absence of prudent caution in a purchaser. Its maxim is caveat emptor. Such protection, as is sometimes sought in our courts of justice, is reserved for mental infirmity and gross intoxication, when these have been practised on for the purposes of the seller.' It makes no account of general phrases, in use with a vendor in every country, for the purpose of commending his wares. Simplex commendatio non obligat.' It distinguishes the expression of mere opinion on matters of skill and judgment, from representations upon a subject known, or that may be known; and rules in respect of the former, that the speaker is not bound by his words.' In Wright v. Crookes it had been stated, with the sanction of the vendor, that the frame of the ship was of African and English oak; and Alderson, B., in the course of the argument, suggested that this might be an opinion merely upon that which was matter of skilled judgment; the learned baron, however, was immediately met with the information, that the vendor who gave the opinion, had himself built the ship. 4 But if the vendor, in his efforts to effect a sale, resorts to representations on matters which are of the essence of the bar gain, and the purchaser relies upon them to his damage," he has a remedy at law in one or other of the following cases. Where the representation concerns the subject of the bargain, and is made at the time of the sale, it amounts to a warranty, provided it appear on evidence to have been so intended. It 5 The seller, however, if he give such a detailed description of the subject matter as is true and would lead to no improper inference, but would put the purchaser upon further inquiries, does not, by merely adding the expression of an opinion thereon, prevent his enforcing the purchase, Smith v. Watts, 28 L. J. (Ch.) 220. 6 Per Buller, J., Pasley v. Freeman, 3 T. R. 51, 57; Lysney v. Selby, 2 Ld. Raym. 1118; Crosse v. Gardner, Carth. 90; Shepherd v. Kain, 5 B. & Ad. 240; Freeman v. Baker, 5 B. & Ad. 797. |