goods which he has so delivered," (f) upon a new contract and promise which the law then implies from the altered situation and circumstances of the parties.

Out of all express contracts of bargain and sale also arise certain engagements, implied by law as the natural consequences and incidents of the contract, although no mention has been made of them by the contracting parties. One of the first of these engagements is a promise or undertaking on the part of the vendor to put the vendee into possession of the thing sold without delay, if the contract makes no mention of the time of delivery, (g) and a promise or undertaking by the vendee to accept the goods, and pay the price on the delivery of the subject matter of the sale by the vendor. There is also an implied undertaking on the part of the vendor of a specific chattel to be delivered at a future day, to take the same care of it as of a thing borrowed for his own use, and he is responsible for the bad condition into which it may happen to fall through his own negligence or want of reasonable caution. (h)

By the civil law, if default was made by the buyer in performing his part of the contract, he was not only liable to an action for the price, but also on an implied undertaking to make a compensation to the seller for any special damage he might have sustained by reason of the buyer's breach of contract.

Implied warranties.-With a view to prevent fraud and deceit, and make men fair, and honest, and upright in their dealings and transactions, the law implies a general promise or undertaking from each of the parties, to a contract that he does not practise any deceit or fraudulent concealment to benefit himself at the expense of others. Thus in all sales and purchases of goods and chattels, the law implies an undertaking or promise from the vendor that he does not at the time of the sale know that his title to the goods is bad, and that he has no right to make the contract of sale he professes to make. (i) And if the vendor is. cognisant of any defect, materially lowering the value of the goods in the market, the law implies a promise from him to make disclosure thereof to the intended purchaser, and the passing over in silence of an important fact or circumstance, which ought in good faith be made known, is equivalent, in contemplation of law, to an express representation, or even a

(f) Parke, J., Oxendale v. Wetherell, 9 B. & C. 388. Mavor v. Pyne, 11 Moore, 2.

(g) Imprimis ipsam rem præstare venditorem oportet id est tradere, Domat. 1. 4, tit. 2, § 2.

(h) Atkinson v. Bell, 8 B. & C. 283; 2 M. & R. 299, s. c.; Domat. 1. 1., tit. 2, § 4, xxiv.

(1) Peto v. Blades, 5 Taunt. 657. So, by the civil law, if a man knowingly sold that which belonged to another, he was bound to indemnify the purchaser all the damage he had sustained. Domat. 1, p. 82.

warranty. (k) "If a taverner sell wine, knowing it to be corrupt, to another as sound and good wine, although he doth not expressly warrant it as such, yet an action lieth against him, for this was a warranty in law. And if a merchant sells cloth to another, knowing it to be badly fulled, an action lieth against him, because it is a warranty in law. (1) The declaration in action of assumpsit alleged that in consideration that the plaintiffs, at the request of the defendant, would buy a brig of the defendants, the defendants undertook and promised the plaintiffs that the brig was free from all latent and concealed defects, and alleged, as a breach of such promise, that the brig was not free from latent and concealed defects, and that the defendants, at the time of the making of the promise, well knew the same; and it was held that the action was maintainable. "In contracts of all kinds," observed Lord Kenyon, "it is of the highest importance that courts of law should compel the observance of honesty and good faith. This was a latent defect which the plaintiffs could not possibly discover, and which the defendants knowing of ought to have disclosed." (m)

It is usual, however, in actions brought upon implied promises and undertakings of this description, to allege in the declaration that the defendant undertook and promised the plaintiff that he did not know of the defect, and laying as a breach of such implied undertaking the defect in the article sold, and the defendant's knowledge of such defect. (n)

Sale with all faults.—If the purchaser agrees to take the subject matter of the sale "with all faults," there is an implied undertaking on the part of the vendor to resort to no device or contrivance to conceal a defect. "If I sell a horse that has lost an eye, no action lies against me for so doing, but if I sell him with a false and counterfeit eye, there an action lieth." (o) "The stipulation to be taken with all faults does not mean to be taken with all frauds," and the vendor will not be permitted to avail himself of it if he resorted to any artifice, or made use of any false representation, for the purpose of lulling to sleep the vigilance of a purchaser.

The hull of a vessel advertised to be sold was described in the printed particulars of sale to be "nearly as good as when launched," whereas the hull was at the time worm-eaten and quite unseaworthy, and the keel was broken. The captain, at the time the vessel was advertised to be sold,

(k) Hill v. Gray, 1 Stark. 435. Jones v. Bowden, 4 Taunt. 847.

(4) 1 Rolle's Abr. p. 90, pl. 1, 3, Keilw. 91, 16. Southerne v. Howe, 2 Rolle's rep. 5.

(m) Mellish v. Motteux, 1 Peake, 156. This case has been overruled, so far as it relates to

"sales with all faults."

(n) Doug., 4th ed., p. 20. (n.)

(0)"Si jeo vend chivall que ad null oculus la null action gist, auterment lou il ad un counterfeit faux et bright eye!" Southerne v. Howe, 2 Rolle, rep. 5.

removed her from the ways where she lay dry, and where the state of her bottom and keel might easily have been discovered, and kept her afloat where the defects were concealed by the water, and it was held that the vendor could not, after such an incorrect and fraudulent description had been given of the vessel, avail himself of a stipulation contained in the particulars of sale, that she " was to be taken with all faults." "The words," observes Mansfield, C. J., "are very large to exclude the buyer from calling upon the seller for any defect in the thing sold; but if the seller was guilty of any positive fraud in the sale, these words will not protect him. There might be such fraud either in a false representation, or in using means to conceal a defect. The agent tells us he framed the particulars without knowing anything of the matter. But it signifies nothing whether a man represents a thing to be different from what he knows it to be, or whether he makes a representation which he does not know at the time to be true or false, if in point of fact it turns out to be false." (p)

Implied promise to an absent purchaser to furnish the article described. -The vendor, indeed, in all contracts of sale, impliedly undertakes to sell the article described by the purchaser, and not another and different article. If the latter, instead of going in person to a shop, and selecting the goods himself, sends an order describing what he wants, the vendor, if he accepts the order, must send an article which truly and honestly corresponds with the description given of it. (q) Thus, where a purchaser forwarded a written order to the vendor for "scarlet cuttings," to be shipped on his account for the Chinese market, and the vendor sent on board a different and inferior article, which was unsaleable in China, and did not correspond with the article known in the trade as scarlet cuttings, and the purchaser brought an action for the breach of an implied warranty, or undertaking on the part of the vendor to furnish the article he had ordered, it was holden that the action was maintainable, and that the plaintiff was entitled to recover from the vendor all the loss he had sustained in consequence of his not having had in China those goods which he had ordered, and which the vendor, by accepting the order and agreeing to the contract of sale, had impliedly undertaken to furnish. (r) So, where the purchaser bought in London twelve bags of "waste silk," then on its way from the continent to England, and directed

(p) Mansfield, C. J., Schneider v. Heath, 3 Campb. 508. Baglehole v. Walters, 3 Campb. 156. A representation or description amounts in many cases to an express warranty. See ante

p. 167.

(4) Best, C. J., Jones v. Bright, 3 M. & P. 175. (r) Bridge v. Wain, 1 Stark. 504.

it to be sent down to him at Manchester, it was held that the contract of sale was accompanied with an implied undertaking, on the part of the vendor, to furnish an article fairly corresponding with the description given, and that the purchaser might maintain an action upon such implied undertaking to recover the damage he had sustained by reason of the vendor's having sent an inferior commodity, not saleable in the market, under the denomination of "waste silk." (s) So, again, where the purchaser sent an order in writing for "seventy-five barrels of best pork, branded Scott and Co.," a description of pork well known in the market as cured by Scott and Co., and paid the ordinary price for the article, and the vendor sent an inferior commodity, cured by another person, and branded “W.,” it was held, that the vendor, by accepting the order, had impliedly undertaken to furnish the particular article specified, and that he was liable to an action upon such implied undertaking for the damage sustained by the purchaser by reason of his having sent another and a different article. (t)

If a shipowner sells a ship described as copper-fastened which is not copper-fastened, or if a diamond merchant sells a piece of cut glass or crystal for a diamond, or a silversmith sells plated goods for silver, or if a merchant sells wine or beer described as "fit," or ordered by the purchaser to be "fit for the Mediterranean" or "India market," and sends out a liquid which turns sour on the voyage, and is not saleable, on its arrival, as wine or beer, he is liable to an action for the breach of an implied undertaking, to furnish an article corresponding with the description given of it. (u) So, when an article is described through the medium of a sample, there is an implied undertaking that the bulk of the commodity corresponds with the sample given of it. (x)

Of the promise or warranty implied from a vendor who is told that the subject matter of the sale is required for a specific purpose. If the vendor is informed that an article of a certain quality, character, or description, suited for some specified purpose, is required, the law implies a promise from him that he does not, at the time of the sale, know that the article is not of the requisite character and quality, and that it is unfit for the purpose for which it is required. If the vendor of a horse, for example, is told that the animal is wanted to carry a lady or a child, or a timid or infirm person, or to drive in a particular harness or carriage, the law implies a promise or undertaking from him that he does not, at the time

(s) Gardiner v. Gray, 4 Camp. 144.

(t) Powell v. Horton, 3 Sc. 110; 2 Bing. N.

S. 668. s. c.

(u) Fisher v. Samuda, 1 Camp. 189. Shep

herd v. Kain, 5 B. & Ald. 240. Tye v. Finmore, 3 Campb. 461.

(x) Laing v. Fidgeon, 6 Taunt. 108; 4 Campb. 169, c. Hibbert v. Shee, 1 Campb. 113.

he sells the horse, know that the animal is unfit for the purpose mentioned. (y)

The plaintiff sent to the shop of the defendant, who was a rope dealer, for a crane rope, and the defendant's foreman went to the plaintiff's premises and took the necessary measurement, saw the crane, and was told that the rope was wanted for the purpose of raising pipes of wine. The rope was brought and fixed, but it broke, and a cask of wine was precipitated into the street, and wholly lost; and it was held, that the defendant, by accepting the retainer and employment under the circumstances, had impliedly undertaken to furnish a rope reasonably fit for the purpose for which it was ordered, and was liable for the damage occasioned by its breaking, although he was not in fact the maker or manufacturer of it, he having employed a rope maker to execute the order, and the latter having, in his turn, employed a third manufacturer of ropes for the purpose. (≈)

But the law does not imply from the mere seller of an article in its natural state, who has no better means of information than the purchaser, and who does not affirm that the article is fit for any particular purpose, any warranty or undertaking beyond the ordinary promise, that he makes no false representation calculated to deceive the purchaser, and practises no deceit or fraudulent concealment, and that he is not cognizant of any latent defect materially affecting the marketable value of the goods. (a) "In the general sale of a horse, the seller only warrants it to be an animal of the description it appears to be, and nothing more; and if the purchaser makes no inquiries as to its soundness or qualities, and it turns out to be unsound and restive, or unfit for use, he cannot recover as against the buyer, as it must be assumed that he purchased the animal at a cheaper rate." (b) And on the sale and transfer of wares and merchandize, if nothing is said as to the character or quality of the thing sold, the buyer takes the risk of all latent defects unknown to the seller at the time of the execution of the contract of sale; (c) all that the seller answers for is, that the article is, as far as he knows, what it appears to be.

The plaintiff bought a quantity of hops of the defendant, who was not the grower, by sample, taken from the pockets. At the time of the sale. the bulk fairly answered to the sample, and no inherent defect was perceptible or known to the defendant, the vendor; but the grower, in order to increase the weight of the hops, had fraudulently watered them after they were dried. The effect of a proceeding of this kind did not usually become

(y) Best, C. J., Jones v. Bright, 3 M. & P. 175.

(z) Brown v. Edgington, 2 Sc. N. R. 497. (a) Bluett v. Osborn, 1 Stark, 384.

(b) Best, C. J., Jones v. Bright, 3 M. & P. 175. (e) Parkinson v. Lee, 2 East, 313.