the cargo consisted of Nicranzi rice, yet the said rice was not "fair average Nicranzi rice." The first question, therefore, will be, whether the contract contains a warranty that the cargo shall consist of rice of that description. If the words of the contract had been, "the cargo to consist of fair average Nicranzi rice," without more, it would unquestionably have amounted to a warranty: Hutchinson v. Booker, 5 M. & W. 535;† Allan v. Lake, 18 Q. B. 560 (E. C. L. R. vol. 83). In this latter case, the defendant, by his agent, sold the plaintiffs a parcel of turnip-seed, and gave the following sold note: "Mr. T. C. R. (the defendant's agent) sold to Messrs. B. & Co. (the plaintiffs), for Mr. C. L. (the defendant), 14 qrs. Skirving's Swedes, at 178. per bushel :" and it was held that the jury were properly directed that the description of the seed in the sold note amounted to a warrranty that it was Skirving's Swedes. Upon a motion for a new trial, Erle, *J., said: "The statement that the seeds were Skirving's *331] Swedes, was, in one sense, mere matter of description: but it was a description of a known article of commerce; and the defendant was not at liberty to substitute another sort of turnip-seed which did not answer that description. He could not vary from that contract as regarded the seeds being Skirving's, any more than he could with regard to their being Swedes." [COCKBURN, C. J.-Either the stipulation as to allowance for inferior descriptions of rice includes Nicranzi, or upon the finding of the jury the defendant has failed to perform his contract.] The plain and obvious construction of the contract is, that the buyer is to have fair average Nicranzi rice, or an allowance for rice of inferior description. Assuming that "description" is to be taken as synonymous with "quality," the declaration may be amended, as suggested at the trial. The clause which will be relied on by the other side, but the seller engages to deliver what is shipped on his account, and in conformity with his invoice,"-was evidently put in to meet such a controversy as that which took place in Vernede v. Weber, 1 Hurlst. & Norm. 311,t-to prevent either party taking advantage of a rise or fall in the market. In that case, the plaintiff and defendant, by their agent, contracted as follows: Sold for W. to V. the cargo of 400 tons (provided the same be shipped for seller's account), more or less, Arracan Nicranzi rice, of the average quality of the crop as shipped to Europe, per British vessel Minna, sailed last September from Antwerp in ballast, direct to Akyab, to proceed from thence to a port in the Channel for orders at 11s. 6d. per cwt. for Nicranzi, or at 118. for Larong; the latter quantity not to exceed 50 tons, or else at the option of buyers to reject any excess: to be taken at invoice weight, &c., and to be paid for by cash on arrival of the vessel at the port of call, on delivery of the bills of lading, charter-party, and policy of insurance: *insurance effected in London or Holland, upon usual London terms (with particular average), to the full amount of invoice.

*332]

The vessel loaded 285 tons of Larong, and 150 tons of Latouri: and it was held,-first, that the contract did not contain a warranty that the rice should consist of Arracan Nicranzi rice, but that the contract was conditional upon a cargo of Arracan Nicranzi rice being shipped on the seller's account,-secondly, that the buyers were not entitled to the delivery either of the whole cargo or of the Larong, because the contract was for an entire cargo which would substantially satisfy the description of Arracan Nicranzi rice. At all events, the plaintiff is, upon the authority of Devaux v. Conolly, 8 C. B. 640 (E. C. L. R. vol. 65), entitled to recover as money had and received the excess paid in respect of the "paddy," which the evidence showed to have been more than double the usual proportion found in these cargoes.

M. Smith, Q. C., and Tomlinson, in support of the rule.-This contract, it is submitted, contains no warranty as suggested. In the older cases, it was doubted whether any words of description could amount to a warranty. In Chandelor v. Lopus, Cro. Jac. 2,-the notes to which in 1 Smith's Leading Cases (4th edit.), 140, give the history of the law upon this subject,-the inclination of the court was that it did not. By the course of modern decisions, however, it seems, that, in the case of the sale of an existing chattel by a particular description, the vendor warrants that it is of the kind described. That is exactly the case of Allan v. Lake, 18 Q. B. 560 (E. C. L. R. vol. 83). Contracts for chattels to be manufactured for a particular purpose belong to a totally different class. Where the article is to be made or procured, it is open. to conjecture whether it will or will not answer the purpose intended. Here, the contract is for an article of commerce of very recent introduction, and subject to much fluctuation of price and *quality. [*333 The true construction of the contract is, that the seller shall deliver only what was shipped, and in conformity with his invoice; and, if what was shipped was Arracan Nicranzi rice, it was to consist of fair average quality, and be at a given price. It was manifestly uncertain when the ship would arrive at Akyab, or what sort of cargo she would bring. If she arrived there before the season for the new rice to come down to the port of shipment, she must necessarily take on board old, which of course would be below the average quality. All that the defendant binds himself to do, is, to deliver the cargo that is shipped for him; and no engagement can be inferred other than that express engagement. In Budd v. Fairmaner, 8 Bingh. 48, 1 M. & Scott, 74 (E. C. L. R. vol. 28), in an action for a breach of warranty on the sale of a horse, the purchaser produced the following receipt, signed by the seller, Received of A. B. (the purchaser) 107. for a gray four-yearold colt, warranted sound in every respect:" and it was held, that, in the absence of fraud, the warranty was restricted to the soundness of the animal, the age being mere matter of representation or description. So, here, there being an express warranty to deliver what was shipped

on the seller's account, and in conformity with his invoice, a warranty that the rice shipped should be of a particular quality cannot also be inferred. [COCKBURN, C. J.-Suppose a cargo of Larong came, could the buyer exercise the option of taking it, subject to an allowance ?] The seller would be bound to offer it, but the buyer might reject it; the latter being only bound to accept the cargo, if fair average Nicranzi rice came. This is substantially the same contract as that in Vernede v. Weber. In delivering judgment there, Alderson, B.; says: "There can be no doubt that the contract contemplates a cargo consisting principally of Arracan Nicranzi rice, and that Larong rice was to form but a subsidiary part. The contract is described as one contract *334] for an entire cargo, one bill of lading, one charter-party, and one policy of insurance: and we think it would have been impossible for the defendant to have insisted upon the plaintiff's accepting a cargo consisting only of a minute portion of Arracan Nicranzi rice; for, unless the cargo was what would substantially satisfy the description of a cargo of Arracan Nicranzi rice, we think that the plaintiffs could not have been forced to accept it. It is true that the contract included Larong rice also, if the cargo included it. But it is obvious that this was so much considered subsidiary to the other, that the cargo is described merely as one of Arracan Nicranzi rice, and the buyer was not obliged to accept more than 50 tons of Larong rice included in a cargo so described; and, if the plaintiff would not have been bound to accept the cargo brought, the defendant was not obliged to deliver it, for, the contract must be mutual and reciprocal." Here, if a small proportion of Larong or other inferior description of rice should come, a fair allowance is to be made: but, if the rice brought home is Nicranzi rice, though not of fair average quality, the clause as to allowance does not apply, though the buyer might be entitled to reject it. Johnson v. Macdonald, 9 M. & W. 600,† is also an authority to show that there is no warranty here. And Devaux v. Conolly, 8 C. B. 640 (E. C. L. R. vol. 65), has no application. The deficiency of weight arising from the excessive quantity of paddy, affects only the quality of the cargo. No decided case at all approaches this. It is, therefore, open to the court to look at all the surrounding circumstances, to ascertain what the parties really meant by the contract they have entered into.

COCKBURN, C. J.-I am of opinion that this rule should be discharged. The language of the contract certainly is not altogether free from ambiguity or doubt: *but, looking at all its terms, it *335] appears to be a contract whereby the seller engages, that, unless the Severn, then on her way to Akyab, should be sent thence to Calcutta, agreeably with the terms of the charter-party, or should be lost, she should ship a cargo of rice, and bring it home for the benefit of the buyer; and, further, the seller warrants that the cargo so shipped shall consist of "fair average Nicranzi rice." Some difficulty was intro

duced into the case, and some discussion arose as to the effect of that part of the contract which provides that the price is to be 11s. 6d. per cwt., "with a fair allowance for Larong or any other inferior description of rice (if any)," followed immediately by this stipulation," but the seller engages to deliver what is shipped on his account, and in conformity with his invoice." Looking at the extrinsic evidence, one can entertain but little doubt that the intention of the parties was, that the seller engaged to deliver only what was actually shipped on his account. But that does not appear upon the face of the contract, the word "only" not having been inserted until after the execution of it. We must construe the contract as we find it,-that word being excluded. Having so to construe the contract, I do not think, looking at that which follows the words "fair average Nicranzi rice," there is anything to be found which ought to have the effect of detracting from the warranty which arises from the former part of the instrument. And, although it was held in Vernede v. Weber, 1 Hurlst. & Norm. 311,† that the seller was not bound to deliver the cargo where it did not substantially consist of Nicranzi rice, we may gather from that case that it is not unusual for these cargoes to be made up of a portion of rice of an inferior description, and called Latouri and Larong; and that it is fair to suppose, that, though the buyer intended that the seller should warrant the cargo to be fair average Nicranzi *rice, nevertheless he [*336 meant to secure to himself the right to claim the delivery of it, though a portion should consist of Latouri or Larong or other inferior rice, and so should not satisfy the contract, and to take care to protect himself by stipulating for a fair allowance for rice of an inferior quality, if any such there were. Looking, then, at the whole contract, and at the probable intention of the parties, it seems to me that the fair construction is, that it amounts to a warranty on the part of the seller that the cargo should consist of fair average Nicranzi rice, with a stipulation, introduced for the benefit of the buyer, that he may if he chooses take the cargo such as it is, and claim a deduction in price for the inferior quality. No question arises here as to Latouri or Larong, none having in fact come. But, the jury having found that the cargo shipped did not consist of "fair average Nicranzi rice," I am of opinion, that, without resorting to any amendment, the plaintiff is entitled to recover upon the declaration as it stands.

CRESSWELL, J.-I am of the same opinion. It seems to me that this contract amounts to an undertaking that the vendor shall at Akyab ship a cargo of rice and bring it home for the purchaser, unless the ship should be lost or should be sent upon the contemplated intermediate voyage from Akyab to Calcutta,--in either of which cases the contract was to be void. It being, then, an undertaking that this cargo should be shipped, the vendor undertakes further that it shall consist of fair average Nicranzi rice, the price of which is to be 118. 6d. per cwt.

The question is, whether that amounts to a warranty. I do not know why it should not. The seller undertakes to ship a cargo, and that it shall be of a specific description. I see no reason why that should not be held a warranty. This construction receives confirmation from the stipulation which follows," with a fair allowance for Larong or any other inferior description of rice, if any." The *cargo might *337] be fair average Nicranzi rice, though it should contain a small admixture of rice of an inferior quality or of an inferior description or denomination. It is somewhat remarkable, that, though the parties have provided that an allowance shall be made if the cargo should contain any Larong or other inferior description, though it should not be sufficient to prevent the cargo from being fair average Nicranzi rice, there is no such provision as to Nicranzi rice, but that rests on quality. The buyer would not be entitled to claim any allowance if any part of the cargo should consist of Nicranzi rice of inferior quality provided the whole answered the description of "fair average Nicranzi rice," though he would be if any part consisted of Larong or any other inferior description of rice. The latter words throw no light upon that part of the contract. Why they were introduced, I do not stop to inquire. We must take the contract as we find it. Those words may have been introduced because the parties may have supposed that the contract could not be fulfilled by the delivery of a cargo consisting of any portion of Larong or other inferior description of rice. But, whatever they may have intended, the words thus introduced cannot affect the construction of the other part of the contract, which is perfectly plain and simple,-"I undertake to bring you a cargo which shall be fair average Nicranzi rice, and the price shall be 118. 6d. per cwt.”

CROWDER, J.-I also think that this is a contract for a cargo of fair average Nicranzi rice. That plainly is the substance of the contract. If the cargo had been on board the ship at the time the contract was entered into, there could have been no doubt. But here the ship was to go and get a cargo of the description mentioned, viz. fair average Nicranzi rice. Such being the contract, there is a stipulation that it shall be void in *certain events,-if the ship should be lost, or *3381 if she should make the intermediate voyage contemplated by the charter-party from Akyab to Calcutta. The contract, therefore, was to enure as a contract to bring home a cargo of fair average Nicranzi rice, unless one of those events should take place. The price also is fixed. Then comes the clause which has given rise to the only doubt that could arise upon the construction of this contract,—" with a fair allowance for Larong or any other inferior description of rice, if any." It seems to me that the introduction of that clause is explainable by the fact that a cargo might arrive which might contain a portion of rice of the descriptions called Larong or Latouri, and yet answer the description of "fair average Nicranzi rice." It would seem but reasonable