done everything required to be done except to transfer the possession, and that has been already done.

the requisite quantity of such oil ready for delivery in a bonded warehouse in Philadelphia. The market price of oil having fallen, the defendant, about the 20th of the month, employed some brokers to sell the oil

for him at a fixed price, and the brokers sold it to the plaintiffs. It was held that since the oil was already in the plaintiff's possession in the bonded warehouse, no other delivery was necessary to complete the sale. 1047

§ 1203. In general. It is the duty of the seller not only to transfer the title and deliver possession of the goods sold, but also to comply with and perform all the stipulations and agreements which have been expressly or impliedly made conditions of the liability of the buyer.

These conditions may be either express or implied, and, also, either precedent or subsequent.

§ 1204. Performance by seller of express conditions.The seller must, of course, perform, unless they are waived, all the acts which by express terms have been made conditions of the sale. If he does not do so, and the condition is a precedent one, the liability of the buyer will not attach; and, if it is a condition subsequent, the buyer may repudiate the sale. These express conditions may be attached either to executed

or executory contracts of sale, and they may be of any lawful act or event which the parties see fit to designate.'

Cases of this nature, however, depend upon principles so well settled that no extended discussion of them is necessary.

§ 1205. Performance by seller of implied conditions, often called implied warranties.-There is, however, a class of duties incumbent upon the seller, not expressly imposed by the parties as formal conditions, but growing out of the very fact and essence of the contract of sale, the performance of which by the seller is in law a condition precedent to any obligation on the part of the buyer. Thus, for example, sale being the transfer of the absolute or general title to the chattel, it is clear that it is a condition precedent-lying at the very threshold of the whole contract - that the seller has such a title which he can so convey.

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§ 1206. Stipulations in executory contracts as conditions. So, where the contract is executory and the chattel not yet ascertained, but the seller has undertaken to supply a chattel of a certain kind, it is equally a condition precedent, to any liability on the part of the buyer, that the seller shall in fact supply a chattel of that kind. This duty of the seller is usually spoken of in the United States as an implied warranty; but if a warranty be an incidental contract collateral to a principal one as it is usually defined, it is clear enough that this duty of the seller to transfer the title, or supply the chattel of the kind stipulated, is not a collateral or incidental one, it is the pri mary one -it is the very essence of the contract—it is the contract.

§ 1207. Thus, in a case often cited, Lord Abinger said: "Two things have been confounded together. A warranty is an express or implied statement of something which the party undertakes shall be part of a contract; and, though part of the contract, yet collateral to the express object of it. But in many of the cases, some of which have been referred to, the 1 See ante, § 651. 2 Chanter v. Hopkins (1838), 4 Mees. & Wels. 399.

circumstance of a party selling a particular thing by its proper description has been called a warranty, and a breach of such contract a breach of warranty; but it would be better to distinguish such cases as a non-compliance with a contract which a party has engaged to fulfill; as, if a man offers to buy peas of another, and he sends him beans, he does not perform his contract: but that is not a warranty; there is no warranty that he should sell him peas; the contract is to sell peas, and if he sell him anything else in their stead it is a non-performance of it. So, if a man were to order copper for sheathing ships— that is, a particular copper, prepared in a particular manner,— if the seller send him a different sort, in that case he does not comply with the contract; and though this may have been considered a warranty, and may have been ranged under the class of cases relating to warranties, yet it is not properly so."

§ 1208. So, in a case before the supreme court of the United States, it is said: "When the subject-matter of a sale is not in existence, or not ascertained at the time of the contract, an undertaking that it shall, when existing or ascertained, possess certain qualities, is not a mere warranty, but a condition, the performance of which is precedent to any obligation upon the vendee under the contract, because the existence of those qualities being part of the description of the thing sold becomes essential to its identity, and the vendee cannot be obliged to receive and pay for a thing different from that for which he contracted.2

"So, in a recent case decided by this court, it was said by Mr. Justice Gray: A statement,' in a mercantile contract, '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 warranty in the sense which that term is used in

1 Pope v. Allis (1885), 115 U. S. 363,

371.

2 Citing Chanter v. Hopkins, supra; Barr v. Gibson, 3 M. & W. 390; Gompertz v. Bartlett, 2 El. & Bl. 849; Okell v. Smith, 1 Stark. N. P. 107;

Woodle v. Whitney, 23 Wis. 55; Boothby v. Scales, 27 Wis. 626; Fairfield v. Madison Mfg. Co., 38 Wis. 346, 3 Norrington v. Wright, 115 U. S. 188. See also Filley v. Pope, 115 U. S. 213.

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.'

"And so, when a contract for the sale of goods is made by sample, it amounts to an undertaking on the part of the seller with the buyer that all the goods are similar, both in nature and quality, to those exhibited; and, if they do not correspond, the buyer may refuse to receive them, or, if received, he may return them in a reasonable time allowed for examination and thus rescind the contract."1

§ 1209. Identity of kind a condition precedent.- Where, therefore, there is an agreement for the sale of a particular thing, it is clear that the seller's engagement to supply that thing is a condition precedent to the buyer's liability. Thus where there was a contract for the sale of a certain kind of steel scrap, the court said: "It is a mistake to assume that doctrines applicable to warranties have any reference to or can be invoked in this controversy. The contract, whether treated as evidenced alone by the writings referred to, or as consisting of both the writings and the parol interviews, is obviously not an agreement warranting the steel scrap to be of a designated or prescribed quality; but in whichever light the contract may be viewed, it is impossible to escape the conclusion that it was 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 phosphorus, but steel scrap from the plates, beams and angles of 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

1 Citing Lorymer v. Smith, 1 B. & Cr. 1; Magee v. Billingsley, 3 Ala. 679. 2 Columbian Iron Works v. Douglass (1896), 84 Md. 44, 34 Atl. R. 1118, 57 Am. St. R. 362, 33 L. R. A. 103. To like effect: Fogg v. Rodgers

(1886), 84 Ky. 558, 2 S. W. R. 248; Wolcott v. Mount (1873), 36 N. J. L. 262, 13 Am. R. 438; Jones v. George (1884), 61 Tex. 345, 48 Am. R. 280; Varley v. Whipp (1900), 1 Q. B. 513.