June  i,  1896.] 
THE  TROPICAL  AGRICULTURIST. 
857 
some  evidence  was  taken  by  the  avbitratorp,  it  was 
taken  at  their  own  sugf^eation,  and  was  tiio  evidence 
of  an  analyst  whom  they  thought  it  right  to  consult, 
and  who  turned  aut  to  be  the  same  gentleman  as 
Uomeier  A Go.,  had  called  as  their  witness.  The 
contract  was  signed  by  the  brokers,  and  was  that 
they  had  bought  to  the  order  of  Domeier  & Co.,  the 
purchasers,  about  2,000  lb.  citronella  oil  in  drums — 
“quality  guaranteed  equal  to  sample’’ — and  any 
dispute  arising  out  of  the  contract  to  be  settled  by 
arbiti’ation.  The  question  arose  on  the  words  in 
the  contract,  “ citronella  oil,’’ which  was  the  thing  to 
be  sold,  and  quality  guaranteed  equal  to  sample.”  The 
simple  was  a small  bottle  of  the  oil,  and  apparently 
it  was  all  right,  smelling  all  right  and  looking  all  right. 
Then  the  bulk  was  tendered,  and  it  smelt  all  right 
and  looked  all  right.  The  piu'chaser,  as  was  the  cus- 
tom in  these  cases,  analysed  it,  and  it  turned  out  that 
instead  of  being  citronella  oil,  (Id  per  cm  t.  of  it  was 
something  else.  It  was  adultered  with  55  per  cent,  of 
keiosene,  a mineral  oil,  and  10  per  cent,  of  essence  of 
lemon  to  correct  the  kerosene  and  give  the  compound 
a smell  which  very  much  resembled  the  smell  of  the 
right  citronella  cil. 
Baron  Pollock  : Does  citronella  oil  come  from  the 
citron  tree  ? 
Mr.  Walton  : Yes,  I suppose  so. 
Baron  Pollock  : Lemon  oil  serves  for  a great  many 
purposes 
Mr.  Walton  said  yes,  but  this  was  not  made  from 
lemons,  and  the  etymology  did  not  indicate  the  real 
origin  of  the  article,  which  was  really  made  from  a 
grass.  In  this  case  the  seller  had  put  more  than  half 
of  kerosene,  which  had  very  little  smell,  and  they  ad- 
ded the  10  per  cent,  of  lemon  to  give  it  the  itccessary 
smell. 
Mr.  Justice  Day:  Is  “citronella  oil”  known  in  the  mar- 
ket? 
Mr.  Walton  said  yes;  it  was  dealt  in  considerably. 
In  this  case,  when  the  purchaser  found  this  out,  ho 
I’efused  to  take  it,  and  said  he  had  bought  citro- 
nella oil 
Mr.  .Justice  Day:  Not  something  else  made  to 
look  like  it  ? 
Mr.  Walton  assented.  Then  Mr.  Treatt  said,  “ But 
you  analysed  the  sample,”  and  no  doubt  they  did, 
and  it  turned  out  that  the  sample  was  just  as  much 
a sham  as  the  bulk  was. 
Mr.  -Tustice  Day:  Then  you  say  that  the  whole 
thing  was  a fraud. 
Mr.  Walton:  No;  I do  not  say  that;  but  I say 
it  was  a sham.  Ttiere  is  no  suggestion  of  fraud 
against  anyone  ; but  the  stuff  was  a fraud.  I do  not 
suppose  Mr.  Treatt  mixed  this  stuff  up. 
Mr.  Chitty  : This  “ stuff  ” has  been  sold  as  “citro- 
nella oil  for  the  last  thirty-five  years  in  the  London 
market. 
Mr.  Walton  : There  is  no  evidence  of  that. 
Mr.  -Tustice  Day  {to  Mr.  Walton):  You  are  bound 
by  it,  if  it  is  to  sample  and  is  marketable  as  citro- 
nella oil. 
Mr.  Walton:  But  the  arbitratorsrefused  to  decide  that 
question  at  all.  The  gentleman  who  appeared  before 
them  for  Mes.srs.  Domeier  called  at  ention  to  the  lawon 
the  subject,  and  pointed  out  that  it  was  not  enough 
that  the  stuff  should  be  equal  in  quality  to  the 
s.imple,  but  that  it  must  correspond  with  the  des- 
cription. 
M.  Justice  Day  : It  must  be  substantially  the  same 
article  as  the  sample. 
Mr.  Walton  said  that  it  must  be,  first,  citronella  oil. 
Mr.  .Justice  Day : Marketable  as  citronella  oil ; but 
it  may  not  bo  citronella  oil. 
Mr.  Walton  replied  that  the  point  was  explained 
to  the  arbitrators  by  the  solicitor  who  appeared  for 
Messrs.  Domeier,  but  they  pooh-poohed  it.  There 
were  many  cases  like  this  where  goods  were  the  same 
as  the  sample,  but  which  did  not  answer  to  the 
description  of  the  thing  sold,  and  that  was  provided 
for  under  section  13  of  the  Sale  of  Goods  Act. 
There  was  an  implied  condition  that  the  goods  should 
correspond  with  the  description,  and  if  the  sale  was 
by  sample  it  was  not  sutticieiu  that  the  bulk  of 
the  goods  corresponded  with  the  sample  if 
it  did  not  also  correspond  with  the  descrip- 
tion. The  same  thing  was  dealt  with  under 
section  15  of  the  Act,  which  provided  that  in  the  case 
of  a contra,ct  for  sale  by  sample  there  was  an  im- 
plied condition  that  the  goods  should  be  free  from 
any  defect  which  rendered  them  unmarketable. 
Baron  Pollock:  Y'our  point  is  that  it  is  not  a 
question  here  of  buying  to  sample,  but  of  whether  the 
article  sold  was  the  article  delivered? 
Mr.  Walton  said  yes,  and  it  was  said  by  the  gen- 
tleman who  appeared  on  the  other  side  that  this 
statute  did  not  apply  to  an  article  like  citronella  oil. 
Barron  Pollock  : Why  not  ? 
Mr.  Walton  replied  that  he  did  not  know,  but  at 
any  rate  that  seemed  to  be  said  by  the  affidavit.  The 
arbitrators  were  asked  to  deal  with  that  question  speci- 
fically, whether  this  was  the  thing  that  was  sold;  and 
they  were  asked  to  state  a case,'  and  they  declined. 
Thej'  were  asked  to  postpone  their  award  so  that  ap- 
plication might  be  made  for  an  order  that  they  should 
state  a c.ase.  But  they  refused,  and  what  was  done 
was  this.  The  agent  who  appeared  for  Messrs. 
Domeir  went  off  post-haste  and  took  out  a sum- 
mons, which  he  served  upon  them  at  half-past  four 
o’clock  that  day ; yet,  in  spite  of  that,  they  made  their 
award,  which,  ho  ventured  to  think,  was  an  improper 
thing  to  do.  The  terms  of  the  award  showed  that 
the  .arbitrators  h.ad  not  considered  at  a*l  the  question 
which  had  been  put  before  them.  They  said:  “We 
decide  that  the  quality  of  the  three  drums  tendered 
to  the  buyers  is  equal  to  the  simple  guaranteed  to 
the  contract,  and  these  three  drums  must  be  taken 
by  the  buyers.”  They  did  not  deal  with  the  ques- 
tion whether  the  bulk — the  drums — tendered  contained 
what  was  known,  and  commercially  known,  as 
“citronella  oil”  or  not.  They  only  found  that  tho 
ipiality  was  equal  to  the  sample,  and  tjierefore  that  tho 
bulk  must  be  taken. 
Mr.  Justice  Day:  If  it  is  “ citronella  oil,”  the  only 
question  remaining  is.  Does  it  coi’respond  with  the 
sample  ? 
Mr.  Walton  said  that  what  ho  complained  of  was 
that  they  did  not  say  it  was  citronella  oil. 
Baron  Pollock:  Do  you  admit  that  they  analysed 
the  sample  before  they  purchased  the  bulk  ? 
Mi'.  Walton:  No,  my  lord. 
Baron  Pollock  : You  do  not  contend  that  it  must  be 
pure  citronella  oil  ? 
Mr,  Walton  said  he  contended  that  it  should  not  bo 
GO  per  cent  cf  something  else.  In  one  of  the  affidavits 
it  was  said  that  there  was  called  Mr.  Albert  Domeier, 
who  swore  that  he  had  had  dealings  in  this  oil  for  35 
years  ; that  he  had  tested  and  examined  the  sample 
as  he  h.ad  done  for  45  years — namely,  by  smell  ; and 
that  by  his  smell  he  was  recognised  as  one  of  the  best 
judges  of  these  oils  in  the  world,  and  from  his  exami- 
nation he  was  qrtite  satisfied  that  the  oil  was  citro- 
nella, oil.  What  lie  (Mr.  Walton)  desired  to  say  was 
that  if  the  arbitrators  had  made  an  award  saying  that 
it  was  citronella  oil,  notwithstanding  that  it  was  so 
largely  adulterated,  he  would  not  complain.  The  affi- 
davit of  Mr.  Chance,  which  he  had  been  reading, 
went  on  to  say  that  he  had  pointed  out  to  the  arbitra- 
tors that  Domeier  & Co.  had  rejected  the  goods  be- 
cause they  did  not  accord  with  the  description,  and 
that,  if  so,  it  was  immaterial  whether  the  goods 
corresponded  to  the  sample  or  not  ; and  he 
submitted  tluxt  they  were  entitled  to  reject  the 
goods,  first,  by  virtue  of  section  13  of  the  Sale 
of  Goods  Act,  because  they  did  not  correspond  with 
the  description  in  the  contract  of  sale,  and,  secondly, 
by  virtul  of  section  15  sub-section  2,  because  the 
goods  contained  a defect,  rendering  them  unmer- 
chantable, not  apparent  upon  a reasonable  exami- 
nation of  the  sample.  They  had  proved  by  witnesses 
that  the  samples  were  adulterated  with  55  percent, 
of  kerosene  and  10  per  cent  essence  of  lemon,  and 
that  citronella  oil  adulterated  to  that  extent  was 
unmerchantable  as  citronella  oil,  and  did  not  come 
within  the  description  of  citronella  oil  and  that  Mr. 
Domeier’sexamination  of  the  sample  was  areasonable 
one.  No  evidence  was  called  for  Mr.  Treatt,  but  Mr. 
Jones  on  his  behalf  had  contended  before  the  arbitra- 
tors that  the  Sale  of  Goods  Act  had  no  bearing  on 
the  matter.  Mr.  Walton  argued  that  the  question 
whether  this  was  citronella  oil  or  not  had  thus  been 
distinctly  raised,  and  that  the  arbitrators  seemed  to  have 
taken  the  view  that  it  did  not  matter  if  the  goods  were 
