5. Engagement of the Vendor of Provisions. - In most jurisdictions, the foregoing rules govern the sales of provisions. If the purchaser selects the article, caveat emptor applies.2 If he orders an article to be used as food, the seller who undertakes to fill the order impliedly engages that it is fit for that use."

(a) Does he engage that they are Wholesome? There are some decisions, and many dicta, however, in this country to the effect that, upon a sale of provisions for immediate domestic use, the seller impliedly engages that they are wholesome. These judicial utterances are based upon a statement by Blackstone that, "In contracts for provisions, it is always implied that they are wholesome; and if they be not, the same remedy" (action for "damages for this deceit ") may be had.” 5 But, as Mr. Benjamin has pointed out, no authorities are cited for this proposition, and "the notion of an implied warranty in such cases appears to be an untenable inference from the old statutes which "made "the sale of unsound food punishable." Courts which still maintain this doctrine.

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1 Benjamin on Sales (Bennett's ed. 1892), §§ 670-72, and pp. 647,648. 2 Burnby v. Bollett, 16 M. & W. 644 (1847); Giroux v. Stedman, 145 Mass. 439; 14 N. E. 538 (1888).

8 Smith v. Baker, 40 L. T. (N. s.) 261 (1878). "In this case, if the butcher had not gone and selected his meat, but had ordered it, there would have been, no doubt, an implied warranty on the part of the" dealer "that it was of merchantable quality" (p. 263).

The

4 Van Bracklin v. Fonda, 12 Johns. (N. Y.) 468 (1815). seller knew that the beef was unsound and unwholesome, and did not communicate the fact to the buyer. Fleet v. Hollenkemp, 13 B. Mon. (Ky.) 219, 227 (1852) (action against druggists for damages caused by negligently mingling cantharides with snake-root and Peruvian bark, when filling a prescription for plaintiff).

5 3 Blackstone's Commentaries, p. 165.

6 Benjamin on Sales, supra. Goad v. Johnson, 6 Heisk. (Tenn.) 340 (1871).

to health and

urge in its support that it is conducive personal safety."1 In the case last cited it is said: "And where articles of food are bought for consumption, and the vendor sells them for that express purpose, the consequences of unsoundness are so dangerous to health and life, and the failure of consideration is so complete, that we think the rule, which has often been recognized, that such sales are warranted, is not only reasonable, but essential to public safety. . . . It is safer to hold the vendor to a strict accountability than to throw the risk on the purchaser." This consideration does not apply

to sales of food for animals.2

6. Quantity as an Essential Term or Condition Precedent. Quantity, as well as quality, may be an essential term of the sale contract. When it is, the seller is bound to furnish, not only the kind, but the amount of goods agreed upon. If the contract is "for 250 barrels of cement," the seller has a right to that amount, and can reject the tender of a different quantity; unless a larger number is tendered to insure a full compliance with the contract, and without any charge for the excess.* The seller, who supplies and demands payment for a larger or

1 Hoover v. Peters, 18 Mich. 51 (1869).

2 Lukens v. Freiund, 27 Kans. 664, 670 (1882).

8 Downer v. Thompson, 2 Hill (N. Y.) 137 (1841); Barter v. Kane, 17 Wis. 371 (1863). So if the contract is for "half a chest of French plums, 2 hogsheads of raw sugar, and 100 lumps of white sugar," Champion v. Short, 2 Camp. 53 (1807), or for a pair of horses," Hamilton v. Hart, 8 Sess. Cas. 1st Series, 596 (1830).

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4 Downer v. Thompson, 6 Hill (N. Y.), 208 (1843). "The excess would hardly seem to be so large as to preclude a jury from inferring that it was only added to make sure of having delivered enough, there being some doubt perhaps as to the manner in which the defendant might wish the quantity determined, the article moreover being liable to some loss by leakage, and the excess being of no very great value as compared with the anticipated profit upon the whole."

smaller quantity than that agreed upon, attempts "to change the subject of the contract."1

(a) Effect of Such Words as "About." When a specified quantity of goods is the subject of the contract, the addition of such qualifying words as 66 about," 99 66 more or less," and the like "is only for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies in number, measure, or weight." Hence, a contract for "about 300 quarters, more or less, of foreign rye," does not warrant the seller in supplying 345 quarters; nor is one for "23,000 feet of lumber, more or less," performed by furnishing 16,000 feet.1 In these cases, the deficiency or excess was so great that people would not ordinarily consider it as included in the qualifying words,5 and the court properly held that the seller had not complied with his contract. As a rule, however, it is a question for the jury whether the permitted deviation has been exceeded."

(b) An Estimated Quantity. A specific quantity may be named, however, not to define the subject of the contract, but as an estimate of the probable amount to be

1 Stevenson v. Burgin, 49 Pa. St. 36, 44 (1865).

2 Brawley v. U. S., 96 U. S. 168, 172 (1877).

3 Cross v. Elgin, 2 B. & Ad. 106 (1831). "The meaning probably was, that if the quantity came to anything near that which had been named, and there was a little excess, the plaintiffs would not inconvenience the defendants by leaving it upon their hands" (p. 110).

Creighton v. Comstock, 27 Ohio St. 548 (1875).

5 Morris v. Levison, 1 C. P. D. 155, 158 (1876). "I think the direction to the jury has always been that the deviation must not be very large. The difference must be such as people would ordinarily consider as included in the word 'about.' There can be no exact rule of law as to the percentage of difference allowed, but I have known juries often allow in practice 3 per cent." Cabot v. Winsor, 1 Allen (Mass.), 546 (1861).

6 Clapp v. Thayer, 112 Mass. 296 (1873).

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supplied. Such is the case where the parties agree upon the purchase and sale of a particular lot of iron, estimated by the buyer "at about 150 tons," and by the seller at that "or more," but which contained only 44 tons; or of 880 cords of wood, more or less, as shall be determined to be necessary by the post commander for the current year's supply for the garrison of his post; 2 or of the whole of the steel for the Forth Bridge, "the estimated quantity to be 30,000 tons, more or less; or of all the steers and dry cows on the seller's range, and to be acquired under certain contracts, estimated at 6,500 head, more or less.*

In each instance the quantity is specified, not for the purpose of making it an essential term of the contract, but by way of stating what the parties "understood to be the fact." The substantial engagement, in the absence of fraudulent representations, is to supply the particular lot of iron, the year's supply of wood as determined by the post commander, the whole of the steel for the Forth Bridge, whatever the quantity, and all the steers and dry cows on the seller's range or acquired under the described contracts, however numerous.

(c) Contract for a "Cargo." —The quantity of goods which the seller must supply under a contract for " a cargo," generally depends upon the circumstances of each case. If the parties use the term with reference to a particular ship, the subject of the contract is the quantity of the described goods which that ship will safely carry; unless a different intention is disclosed by other provisions of the agreement. When no vessel is designated, and no

6

1 McLay v. Perry, 44 L. T. (N. s.) 152 (1881).

2 Brawley v. U. S., supra.

3 Tancred v. Steel Co., 15 App. Cas. 125, 135 (1890).

4 Morris v. Wibaux, 159 Ill. 627, 643, 644 (1896).

5 Pembroke Iron Co. v. Parsons, 5 Gray (Mass.), 589 (1856).

6 Bourne v. Seymour, 16 C. B. 337; 24 L. J. C. P. 207 (1855).

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reference is made to the size of the cargo, the seller is probably bound to supply a full cargo by a vessel usually engaged in transporting goods of the agreed kind over the stipulated route.1 Ordinarily, however, if no vessel is. designated, the agreement contains, in addition to the term.

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cargo," some specification of quantity, as a cargo of barley of about nine thousand bushels."1 It then becomes necessary to decide whether the subject of the contract is the entire load of the vessel by which the goods are in fact shipped, or whether it is the quantity specified.

2

The English courts have generally construed contracts of this kind to call for "the entire quantity of goods loaded on board a vessel on freight for a particular voyage." It is said, "There are various reasons why a purchaser may wish to buy the whole quantity of goods loaded on board a particular vessel. Such a contract gives him the complete control of the vessel. It enables him to select the port of discharge, to appoint the place in the port at which the discharge is to take place, to be free from the inconvenience of other persons' goods being unloaded at the same time with his own, and from the competition arising from other persons' goods being ready for sale at the same place and at the same time with his." It also saves him from danger of being "required to pay freight for the whole cargo, before he could obtain possession of what was his own.' "8

The head-note

This view has been taken by our courts. to the case last cited is misleading. The court did not hold that a contract for the sale of a cargo of from seven hundred to eight hundred tons of sugar to be shipped from

1 Flanagan v. Demorest, 3 Robt. (N. Y.) 173, 181, 182 (1865).

2 Borrowman v. Drayton, 2 Exch. Div. 17, 19 (1876).

Kreuger v. Blanck, L. R. 5 Ex. 179, 184 (1870).

4 Flanagan v. Demorest, supra; Standard Sugar Refinery v. Castano, 43 Fed. 279 (1890).