110 



warranty; sale and warranty by agent, etc. 



Sale of specific 

 goods. 



Goods which 

 have perished. 



Goods perish- 

 ing before sale, 

 but after 

 agreement to 



sell. 



A sound price 

 not tanta- 

 mount to a 

 warranty. 



A general 

 warranty. 



A qualified 

 warranty. 



the nine horses and use them, that which at one time was 

 a condition precedent by my conduct has become no con- 

 dition precedent " (e) . 



With regard to sales of specific goods, " If a specific 

 thing has been sold with a warranty of its quality, under 

 such circumstances that the property passes with the sale, 

 the vendee having been thus benefited by the partial execu- 

 tion of the contract, and become the proprietor of the 

 thing sold, cannot treat the failure of the warranty as a 

 condition broken (unless there is a special stipulation to 

 that eff'ect in the contract), but must have recourse to an 

 action for damages in respect of the breach of warranty " (/). 



"Where there is a contract for the sale of specific 

 goods, and the goods without the knowledge of the seller 

 have perished at the time the contract is made, the con- 

 tract is void {g). 



Where there is an agreement to sell specific goods, and 

 subsequently the goods, without any fault on the part of 

 the seller or buyer, perish before the risk passes to the 

 buyer, the agreement is thereby avoided (h). 



Thus where A. agreed to sell a specific horse to B. upon 

 condition that it should be taken away by B. and tried by 

 him for eight days, and returned at the expiration of that 

 period if B. did not think it suitable for his purposes, and 

 the horse died on the third day after it was placed in B.'s 

 stable, without fault of either party ; it was held by 

 Denman, J., that A. could not maintain an action for 

 the price as for goods sold and delivered («). 



There was at one time a general opinion that a sound 

 price given for a horse was tantamount to a warranty of 

 soundness ; but Lord Mansfield considered the doctrine to 

 be so loose and unsatisfactory that he rejected it, and laid 

 down the following rule : " There must either be an express 

 warranty of soundness, or fraud in the seller, to maintain an 

 action " {k). 



A general warranty is an unconditional undertaking that 

 a horse or any other article really is what the warrantor 

 professes it to be. 



A warranty may be either general or qualified. If a 



[e) WJMe v. Beeton, 7 H. & N. 

 42, per BramweU, B. 



(/) Per Curiam, Behn v. Surness, 

 3 B. & S. at p. 755. See also Street 

 T. Blay, 2 B. & Ad. 456, 462. As 

 to remedy for breach of warranty, see 

 post. Chap. VIII. 



(g) Sale of Goods Act, 1893, s. 6. 



\h) Sale of Goods Act, 1893, s. 7. 



(i) Blphick Y. Barnes, 5 C. P. D. 

 321 ; 49 L. J., C. P. 698 ; 29 W. E. 

 139. 



(k) Parkinson v. Lee, 2 East, 323 ; 

 6 E. E. 429. 



