had, which was simply the right which the pawner had. It was said to be not like the case where articles are bought in a shop professedly carried on for the sale of goods, in which case the vendor sells "as his own." § 47. Implied warranty in sale by description. "Where there is a contract to sell or a sale of goods by description, there is an implied warranty that the goods shall correspond with the description, and if the contract or sale be by sample, as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description" (22). It would seem that what is here called an "implied warranty" amounts to a condition; that it is a condition precedent of the contract itself that goods shall be delivered which correspond with the description. "If a man offer to buy peas of another, and he sends him beans, he does not perform his contract." A contract for the sale of strap-leaf red-top turnip seed is not performed by furnishing Russia turnip seed. In Varley v. Whipp (23) there was a sale of a reaping machine which the purchaser had never seen and which the seller said was new the year before and had only been used to cut 50 to 60 acres. The machine was delivered, but proved to be a very old one. There was here a sale by description and an implied condition that the goods should correspond with the description. The contract itself was not performed by the seller. (22) Sales Act, sec. 14. Where goods are sold by sample and description, it is not enough that the goods correspond with the sample if they do not correspond with the description. In Gould v. Stein (24) there was a sale of "102 bales of Ceara scrap-rubber, as per samples, . . of second quality." The contract was broken by the failure to deliver rubber "of second quality," although it was equal to the samples. § 48. Implied warranties of quality. In regard to the quality of goods sold, the maxim of caveat emptor (let the buyer beware) is the general rule. A purchaser must use his own judgment, or else take care to have an express warranty made a part of his contract of purchase. But there are qualifications of this general rule. Where goods are bought for a particular purpose, known to the seller and in reliance upon the judgment of the seller, there is an implied warranty that the goods shall be reasonably fit for such purpose. Where they are bought by description there is an implied warranty that they shall correspond with the description; and where the seller deals in goods of that description, there is also an implied warranty that the goods shall be merchantable. Where they are sold by sample, there is an implied warranty that they shall correspond with the sample. The buyer must have an opportunity for inspection. There are, then, at the present time, implied warranties that, where the goods are bought for a particular purpose, known to the seller, they shall be reasonably fit for such (24) 149 Mass., 570. purpose; that they shall correspond with the description and with the sample, if any; and that, where the seller deals in goods of that description, they shall be merchantable. These principles are expressed in the Sales Act, as follows: "Subject to the provisions of this act and of any other statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: 1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose. 2. Where the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be of merchantable quality. 3. If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed. 4. In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose. 5. An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. 6. An express warranty or condition does not negative a warranty or condition implied under this act unless inconsistent therewith" (25). § 49. Same: Merchantability. There was formerly no implied warranty of quality. The maxim of caveat emptor (let the buyer beware) was without exception or qualification. In 1815, however, in Gardiner v. Gray (26), where twelve bags of waste silk had been bought, which proved unmerchantable, it was said that "the purchaser has a right to expect a salable article answering the description in the contract. He can not without a warranty insist that it shall be of any particular quality of fineness, but the intention of both parties must be taken to be that it shall be salable in the market, under the denomination mentioned in the contract between them." This case established the doctrine of the warranty of merchantableness in such cases. In 1868, in the case of Jones v. Just (27) the modern law upon the subject of implied warranty was settled. In that case there was a purchase of Manilla hemp, to arrive. The hemp arrived and was Manilla, as contracted for, but, at some time before shipment, had been shipwrecked and wet with salt water, and dried and repacked. The purchasers sold it and realized 75 per cent of its value if undamaged, nearly up to the contract price, as hemp had advanced. In an action upon an implied warranty of quality, it was held that the contract was not fulfilled by shipping any hemp which was Manilla, but that it must be merchantable. In Murchie v. Cornell (27a) there was a sale of a cargo of ice, to be shipped from Maine to New Bedford. It was either not identified but to be appropriated by the sellers, or else was identified by the contract, but the purchasers had no opportunity to examine it. It was held that there was an implied warranty of merchantableness. "In a contract for the sale of ice at wholesale by a dealer in the article to one to be sold again, where there is no opportunity for inspection of the ice, and no express warranty is made, there is an implied warranty that the ice sold is merchantable and salable as ice for ordinary retail use." § 50. Same: Goods bought for particular purpose. In cases where the seller knows the particular purpose for which the goods are required and the buyer relies on the seller's skill or judgment, the implied warranty is well established. In Randall v. Newson (28) a carriage manufacturer made and fitted a pole for a carriage. Owing to a latent defect, the pole broke and the horses were injured. The seller was guilty of no negligence. It was held that on a sale of an article for a specific purpose there is a warranty that it is reasonably fit for the purpose, and there is no exception in the case of a latent or an undiscovered defect. The buyer recovered the price of the pole and also for the injury to his horses, that injury being considered a natural consequence of the defect in the pole. "If a man sells generally, he undertakes that the article sold is fit for some purpose; if he (27a) 155 Mass., 60. |