858 
THE  TROPICAL  AGRICULTURIST. 
equal  to  the  sample.  That  was  all  that  they  dealt 
with  ill  their  award.  Mr.  Doineir  iu  his  affidavit  said  his 
firm  contracted  to  buy  this  at  Is  Bid  ])8!'  lb.,  and  that 
they  found  that  the  goods  were  not  citroue.lla  oil,  and 
not  saleable  or  merchantable  as  such.  Mr.  Walton 
submitted  that  the  questions  the  arbitrators  had  to 
decide  were  fir.st,  whether  this  stuff  was  citronella 
oil,  and  second  whether  it  was  equal  to  the  sample, 
which  was  not  disputed. 
L>aron  Pollock  asked  it  Mr.  Domeir  analysed  the 
sample. 
Mr.  Walton  : No. 
Baron  Pollock : He  trusted,  like  many  other  peo- 
ple, to  his  nose. 
Mr.  Walton:  No  doubt;  but  he  was  deceived  by 
the  essence  of  lem^n, 
Mr.  .Justice  Day:  The  affidavit  says  that  by  his 
smell  he  was  recognised  as  one  of  the  best  judges  of 
citron  oil  in  the  world.  Ilis  examination  was  •*  reason- 
able ’ from  the  commercial  point  of  view. 
Mr.  Walton  replied  that  that  evidence  was  given 
to  bring  the  case  within  section  1.5  of  the  Act  which 
said  that  where  there  was  a sale  by  sample  there 
was  an  implied  condition  that  the  goods  should  be 
free  from  any  defect  rendering  them  unmerchant- 
able, which  would  not  be  apparent  on  a ‘‘  reason- 
able" examination  of  the  sample.  To  bring  it  within 
that  section  he  had  to  prove  that  reasonable  ex- 
amination. But  the  adulteration  was  done  so 
cleverly  that  it  deceived  Mr.  Domeier,  even  though 
he  was  so  good  a judge.  No  one  had  ouggested  that 
a mixture  containing  only  35  per  cent  of  citronella 
oil,  and  the  bulk  made  up  of  kerosene  oil,  could  be 
citronella  oil. 
Baron  Pollock ; If  the  arbitrators  were  satisfied 
that  it  was  citronella,  according  to  the  custom  of  the 
trade,  they  might  have  said  so. 
Mr.  Walton;  And  that  would  have  made  an  end  of 
the  matter. 
Baron  Pollock ; Their  view  was  that  it  was  mer- 
chantable citronella  oil,  but  they  did  not  say  so. 
Mr.  Walton:  They  told  Mr.  Domeier  that  that 
was  not  necessary,  and  that  the  only  question  was 
whether  the  guarantee  of  the  contract  was  satisfied. 
Baron  Pollock  : Why  did  they  not  do  it? 
Mr.  Chitty  : Because  they  do  not  live  iu  the  Temple, 
my  Lord,  if  I may  make  such  an  answer.  They  took 
the  view  that  they  subsequently  decided  the  question. 
Baron  Pollock  : Although  they  do  not  live  in  the 
Temple,  they  admit  that  tlicie  is  05  per  cent  that  is 
not  citronella  oil,  and  yet  it  is  marketable.  It  would 
be  satisfactory  even  to  those  who  do  live  in  the  Temple 
to  know  why  they  do  so. 
Mr.  Chitty  said  that  although  they  did  not  traverse 
the  statement  that  there  was  05  per  cent  not  citronella 
oil,  yet  for  all  that  the  article  was  what  was  known  in 
the  market  as  citronella  oil.  When  they  wanted  it 
chemically  pure,  citronella  oil  was  sold  iu  the  market 
at  4s  8d  per  lb. 
Mr.  Walton  ; We  do  not  admit  that. 
Mr.  Chitty  said  he  knew  that;  but  it  was  the  fact 
nevertheless,  and  this  was  sold  at  Is  lOd  per  lb. 
Baron  Pollock  : That  is  my  chief  difficulty.  It  may 
be  that  this  was  citronella  oil ; but  if  so,  why  did  not 
the  arbitrators  say  so  ? They  only  said  that  this  was 
sold  by  sample,  and  was  according  to  sample. 
Mr.  Chitty  replied  that  their  Lordsips  were  not  dealing 
with  an  award  made  by  a lawyer.  What  the  arbitrators 
said  was  that  the  bulk  was  delivered  in  accordance 
with  the  contract. 
Baron  Pollock : — No,  in  accordance  with  the  sample. 
Mr.  Chitty  said  that  if  they  had  said  it  was  in 
accordance  with  contract  there  would  have  been  an 
end  of  this  matcer,  and  he  submitted  that  in  sub- 
stance they  had  said  so.  The  contract  was  to  sell 
according  to  sample.  The  sample  was  delivered  to 
this  gentleman  with  the  thirty- five-year-old  nose  of 
which  ho  seemed  to  bo  so  proud,  and  he  took  all  his 
usual  means  of  testing  it.  He  had  been  iu  the  habit 
of  buying  this  oil  from  Treatt,  and  shortly  before 
this  transaction  he  bought  2,800  lbs.  of  it  from 
Treatt,  and  a dispute  about  it  arising,  he  went  to 
arbitration  upon  it,  and  was  beaten,  and  the  goods 
had  to  be  taken  by  the  buyers  upon  appeal.  Dor  the 
pure  essence  ol  this  grass,  properly  distillf'tl.  one  had 
to  pay  4s  lOd  lo  5s  per  lb. 
[June  i,  1896. 
Mr.  Walton  said  that  that  was  contradicted,  and 
that  his  evidence  was  that  the  price  of  the  oil  supplied 
by  Mr.  Chitty’s  client  was  never  more  than  2s. 
Baron  Pollock  (to  Mr.  Chitty):  You  say  they  Michased 
2,B001b.  of  citronella  oil  of  a like  description.  Does  that 
mean  withf>5  per  cent,  of  other  oil  ? 
Mr.  Chitty:  Yes.  He  then  repeated  the  terms  of 
the  arbitrators’  award,  and  contended  that  the 
whether  this  was  or  was  not  citronella  oil  was  fully 
decided  by  the  arbitrators,  although  they  had  not 
put  it  into  their  finding.  If  they  had  left  out  of  fheir 
award  the  words  “is  equal  to  the  sample,’’  and  had 
only  said,  “We  find  that  the  three  drums  must  be 
taken  by  the  buyers  and  paid  for,’’  it  would  have  been 
a perfect  award.  The  only  technical  fault  was  that 
they  said  “ is  equal  to  sample.’’ 
Baron  Pollock:  No;  the  objection  is  that  there  are 
two  things  the  arbitrators  have  to  decide,  and  they 
shy  at  one. 
Mr.  .lustice  Day  ; It  looks  like  an  attempt  on  their 
part  to  screen  the  fraudulent  practices  of  the  trade 
in  selling  a thing  which  is  only  35  per  cent,  of  the 
article  describ  d. 
Mr.  Chitty:. No.  The  point  is,  that  this  stuff  has 
been  sold  as  citronella  oil  for  many  years. 
Mr.  Justice  Da}^ : Fraudulently. 
Mr.  Chitty  : Not  fraudulently. 
Mr.  Justice  Day:  A thing  that  is  65  percent,  kero- 
sene and  35  per  cent,  citronella  oil,  which  it  professes 
to  be. 
Mr  .Chitty  said  that  it  was  Un  article  which,  pure, 
sold  at  4s  lOd  per  lb. 
Mr.  Walton  : That  is  contradicted. 
Mr.  Clqtty  said  that,  pure,  it  was  sold  at  that  price  ; 
but  here  the  purchaser  was  buying  at  Is  8d  per  lb., 
and  he  must  have  known  that  he  was  not  buying  pure 
citronella  oil.  He  had  also  been  buying  it  for  thirty - 
five  years,  and  had  tested  this  and  previous  samples 
by' the  smell  ; and  everybody  else  in  the  City  of  Lon- 
don who  dealt  in  this  oil  had  been  iu  the  habit  of  buy- 
ing it  in  the  same  way — by  the  test  of  smell. 
Mr.  Justice  Day  : 'They  have  all  been  impo.^ed  upon. 
Mr.  Chitty  said  no,  not  more  than  the  people  who 
bought  fl  innelette  thinking  tliere  was  flannel  in  it. 
Mr.  Justice  Day;  If  this  is  what  is  known  by  commer- 
cialpe  pie  as  ciironella  oil  there  is  no  fraud  at  all.  But 
that  is  what  the  arbitrators  will  not  say.  They  .seem 
to  be  screening  the  trade. 
Baron  Pollock:  It  is  of  the  very  essence  of  these 
arbitration  cases  that  the  arbitrators  should  find  put 
questions  laid  before  them,  so  as  to  give  satisfaction 
to  the  parties.  They  should  not  say,  “ Oh,  you  tell 
us  there  are  two  questions;  ws  think  there  is  only 
one.’’  I am  rather  Inclined  to  agree  with  my  learned 
brother  that  it  is  to  screen  the  trade,  but  I will  not 
put  it  so  high.  Y'et  here  we  find  that  the  arbitra- 
tors are  asked  to  decide  a poin;  one  way  or  other, 
a::d  they  have  not  done  so. 
i\L'.  Chitty  admitted  that  the  arbitrators  had  not 
distinctly  S'.id  that  this  was  citionella  oil  in  the 
commercial  sense. 
Mr.  Justice  Day:  But  they  were  asked  to  do  so, 
and  they  ought  to  do  so. 
Mr.  Chitty:  Then  it  would  have  to  go  back. 
He  then  went  o j to  argue  that  under  the  terms  of 
the  agreement  for  arbitration,  which  were  under  the 
rules  of  the  Produce  Brokers  Asfeociation,  Domeier  A 
Co.,  not  being  satisfied  with  the  finding  of  the  arbi- 
trators, should  first  have  appealed  to  the  Council  of 
the  Association  before  coming  to  this  Court. 
Baron  Pollock  then  delivered  the  finding  of  the  Court. 
He  said  there  were  two  questions  to  be  decided.  The  first 
was.  Ought  this  award  to  go  back  on  the  ground  that 
the  arbitrators  had  not,  in  substance,  decided  the 
matter  brought  before  them  ? It  had  always  been 
a well-known  rule  of  law  that  where  goods  were  sold 
they  must  be  of  reasonably  merchantable  qualitj’,  iu 
which  case,  w'hether  the  sale  was  by  sample  or  not, 
there  was  alw.iys  the  previous  question  whethoc  the 
goods  delivered  were  those  A'hich  were  contracted 
for.  And  in  the  Sale  of  Goods  Act,  where  the  con- 
tract was  by  description,  the  goods  must  correspond 
with  the  description.  Whore  the  goods  wore  sold  by 
sample  as  well  ai  description,  it  was  not  sufficient  that 
they  corresponded  with  the  sample  if  they  did  not 
also  correspond  with  the  description.  In  this  case 
