202
THE HONGKONG WEEKLY PRESS AND
December a fresh contract was made in the opinion, after examining the biscuits as a jury following terms:
G
"Hongkong, 28th December, 1904.
WEISMANN, Ltd.
I the undersigned promise to supply you with twenty five thousand pounds of good ship biscuits acording sample packet in cases supplied by you and to deliver them to the wharf oposite St. Georg Building at the rate of six (6 cents) cents per pound-
Time of delivery the ninth day of January 1905. Payament to be done by the 12th day of January.
"
HIP LUNG."
This is a contract of sale of goods both by discription and by sample. Two samples signed Hip Lung" were produced by the defendants, who allege that one sample C was given on the occasion of the first contract and the other sample D on the making of the second contract; whereas the plaintiffs allege that both samples related to the first contract. On this point I | have come to the conclusion that sample C was the sample under the first contract and sample Da sample under the second contract. My reasons are that two samples under the first contract were unnecessary, and that, as the second contract was by sample, it is highly improbable that no sample under that contract was taken.
In pursuance of the contract, 200 tins hold ing 10,800 lbs., were on the 30th December, packed by Hip Lung's fokis in the presence of either Weismann or Peick his assistant, and soldered by tin-smiths engaged by Weismann, Of these 200 tins, 45 tins were delivered on 31st December and the other 155 tins on 2nd January last. All the tins were shipped for Singapore on the 3rd or 4th of January. On one or other of those dates Weismann ordered the Hip Lung to desist from further per- formance of their contract. On the 12th of January, demand was made for the price of the biscuits already supplied. Payment was re- fused. The biscuits, the subject matter of this action, arrived back in Hongkong early this month, March 1905.
The written contract of the 28th of December, being a contract of sale of unascertained goods both by description and by sample, there is, so far as regards the description, an implied con- dition that the goods shall correspond with the description, and, so far as regards the sample, there are implied conditions that the bulk shall correspond with the sample in quality, that the buyer shall have a reasonable opportunity of comparing the bulk with the sample; and that the goods shall be free from any defect, reudering them unmerchantable, which would not be apparent. on reasonable examination of the sample.
The description of the goods is "good ship biscuits." The word "good" is superfluous as a description of the goods, and means no more than that the goods are to be of merchantable quality; nevertheless its insertion has the effect of substituting an express condition of merch antableness for the implied condition that goods shall be of merchantable quality which exists when goods are bought by description from a seller (whether he be the manufacturer or not), who deals in goods of that description. The advantage to the buyer of this express condition is that no examination or inspection of the goods which he himself has made will debar him from relying on that express condition against all defects which such inspection or examination should have revealed.
An article may be said to be of merchantable quality when it is saleable as a commercial commodity under the description by which it is sold. Because the purchasers from Blackhead and Co. who brought from Weismann and Co. rejected the goods, that is no reason for holding that the goods were not of merchantable quality. There is no evidence why the ultimate consigness rejected the grods. Even if they rejected them because they considered them to be unsaleable such unsaleableness may not have been due to the article not being per se s vendible commercial commodity by its description, but because there was no market at the time for the goods. What I have to consider is, assuming that there was a market for the goods, would the goods sold pass as the commercial commodity known as ship's biscuits? I have no doubt that the goods supplied by the plaintiffs answered to their description as ship's biscuits, and am of
would, that they were of merchantable quality, i.e. saleable under the description by which they were sold.
[ March 25, 1905.
to the sample C, assuming that sample to have been dry of which there is no evidence. My conclusion is that the implied condition that the bulk should correspond with the sample in quality Next with regard to that portion of the was fulfilled. Then, had Weismann a reasonable contract which made this sale a sale by opportunity afforded him of comparing the sample. In such case, the implied conditions bulk with the sample? As a rule the place of are three (1) that the bulk shall corres-delivery is the place for comparing the bulk pond with the sample in quality (2) that with the sample. That place was, under this the buyer shall have a reasonable opportunity contract, the Star Ferry Wharf by St. George's of comparing the bulk with the sample (3) that Building. There is nothing in the contract the goods shall be free from any defect, render- or in the circumstances to rebut the presump- ing them unmerchantable, which would not be tion that the place of delivery was to be the apparent on reasonable examination of the place of inspection. Under the first contract, sample.
the place of delivery was the place where inspec tion took place: the previous conduct of Weismann therefore confirms the presumption. No inspection was as a fact made, though a reasonable opportunity was afforded. Judged in the light of Weismann's previous act in having the tins delivered under the first contract opened on the Prays for inspection, it looks as if he was satisfied by the facilities he and Peick had had to superintend the packing, that the biscuits were up to sample. I hold then that the second implied condition was fulfilled. As regards the third implied condition, arising on a contract of sale by sample, I think that it has been satisfied because there was no defect, so far as is known, in the sample which was not apparent on reasonable examination of the sample so as to render the goods unmerchantable.
The first question then is, did the bulk of the biscuits correspond with the sample in quality? a term which includes the state or condition of the goods at the time of delivery by plaintiffs to defendants. This case has nothing to do with the quality of the goods when they reached Singapore or had lain in Singapore for a month. There was no condi- tion express or implied concerning the quality of the goods at any time other than the time of delivery.
There was no
An examination of the rejected goods shows that some of them were mouldy; many of them broken up; and the majority of them not of exactly the same size as the sample by which they were sold. The dissimilarity in size and the fragmentary nature of some of the biscuita need but little consideration. condition either that the biscuits should corres- pond in size or shape to the size or shape of the sample; or that they should be whole biscuits. There is no evidence that the biscuits were not whole when packed. On the contrary, I should infer that they were whole when packed; it is not likely that either Weismann or Peick, one or other of whom was present during all the time when the biscuits were being packed; would allow broken biscuits to be packed, for there is evidence that both actively prevented unsatisfactory biscuits from being packed. The handling and shaking of the tins with the biscuits inside would moreover be quite enough to account for the biscuits be- coming broken. Were then the goods mouldy when delivered to the defendants! There is not the least evidence to show that they were. I feel sure that Weismann and Peick would not have passed such biscuits at the packing on the 30th of December. I know that there was no stipulation, as a condition of the sale, that the buyer was to examine the goods, and that there- fore a voluntary examination by the purchaser at the time of packing would not exempt the vendor from compliance with the implied condition that the bulk and the sample should correspond in quality. Nevertheless, the part taken by those two men at the packing con- vinces me that it was highly improbable that mouldy biscuits were packed. There certainly was no condition express or implied that the bisouite would not become mouldy within a given time. No vendor would be likely to agree to such a condition, because the treatment of the biscuits in the hands of another party would be beyond his control and might be such as to most effectively produce mouldiness.
There was some evidence that the biscuits which had become mouldy might have been packed before they were thoroughly dry. That was the way in which Captain Douglas accounted for the mould in some of the biscuits. Assume then that some of the biscuits were not properly dried when packed. Does this constitute "non- correspondence of the bulk with the sample in quality which includes state or condition? I think that it does, if the sample was in a dry state; the biscuits did not therefore correspond with the state or quality of the sam ple if they were in a damp state. But the evidence does not satisfy me that any of the biscuits were not properly dried before being packed. The two months which elapsed between the despatch of the biscuits to Singapore and their return to Hongkong, and the chances of bad soldering may adequately account for the present condition of some of the biscuits. On the other hand, Weismann made it clear that the biscuits first
delivered in pursuance of the second contract were biscuits which had been baked for him
in pursuance of the first contract. This makes it improbable that any of the biscuits delivered were in a damp condition not corresponding
!
Now if I am wrong in my conclusion that the quality of the bulk corresponded with the quality of the sample, I shall have to inquire what was the legal effect of the conduct of Weismann in not availing himself of the reasonable opportunity afforded him of compar- ing the bulk with the sample, and iu delivering the biscuits to Blackhead and Co. in pursuance A buyer is not of his contract with them. deemed to have accepted goods delivered to him which he has not previously examined, unless and until he has had a reasonable opportunity of examining them for the purpose of ascertain- ing whether they are in conformity with the contract, This opportunity to examine is s condition precedent to acceptance, but does not constitute acceptance. The buyer is deemed to have accepted the goods when, inter alia, the goods have been delivered to him and he does any sot in relation to them which is incon. sistent with the ownership of the seller. The first of these proofs of acceptance in performance of the contract is satisfied because
were goods
delivered
the defen- dants. I think the second proof of acceptance is also satisfied. The delivery of the goods to Blackhead & Co. under an independent contract was an aot inconsistent with the ownership of the plaintiffs or sellers. There was no contract between Hip Lung and Blackhead & Co., and Weismann was not entrusted with the goods as Hip Lung's agent or bailee to pass them on to Blackhead & Co. Let us look at this matter from the point of view of the property having passed to the buyer. I have said that this con- tract is, in one of its phases, a contract of sale of unascertained goods by description. In such ease, when goods of that description are in a deliverable state (i.e. such a state that the buyer would under the contract be bound to take
the
to
delivery of them) are unconditionally appropriated to the contract, the property in the goods thereupon passes to the buyer: and where, in pursuance of the contract, the seller delivers the goods to the buyer and does not reserve the right of disposal, he is deemed to have un- conditionally appropriated the goods to the contract. The defendants then did an act in relation to the goods which was not only in. consistent with the ownership of the sellers, but also entirely consistent with their own property in the goods. I am accordingly of opinion that Weismann and Co. accepted these 200 tins of biscuits. There was an argument addressed to me to the affect that Weismann, having rejected the goods within a reasonable time, could not be held to have accepted the goods. It is enough to point out that I have not based the acceptance on the ground that Weismann failed to reject within a reasonable time. The next question is, what results from the acceptance by the buyers in performance of the contract? This was not a severable contract of sale; and where a contract of sale is not severable and the buyer has accepted the goods, or part thereof,
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