Wallis, Son, & Wells v.

Pratt &
Haynes
(On Appeal from the Court of Appeal in England.)

(Before the

Subject_Sale — Condition — Warranty — Description of Goods —

Sale of Goods Act 1893 (56 and 57 Vict. cap. 71), secs. 11, 53.

The appellants bought seed from the respondents as “common

English sainfoin” under the proviso that “sellers give no warranty,
expressed or implied, as to growth, description, or any other
matters.” The seed turned out to be a different kind, and the
appellants, who had re-sold the seed to third parties as common
English sainfoin, were obliged to pay damages. They sought to
recover the amount from the respondents. HeldHeld that the
respondents' failure to supply common English sainfoin
amounted to a breach of condition, which notwithstanding the
terms of the contract entitled the appellants to recover the amount
of their loss from the respondents.

The buyers in a contract of sale of seed claimed damages in the

circumstances stated suprasupra in rubric and in their Lordships'
judgments. A judgment in their favour was reversed by the Court
of Appeal (Vaughan Williams and Farwell, L.JJ., dissdiss. Fletcher
Moulton, L.J.) The buyers appealed. At the conclusion of the
arguments their Lordships gave judgment as follows:—

Lord Chancellor (Loreburn)—In this case two Judges have been in

favour of the appellants and two in favour of the respondents, and
therefore it is impossible to doubt that there must be room for
controversy in regard to the meaning of the important clause of this
contract. It is agreed that this was a sale both parties to which
intended that common English sainfoin was to be delivered. It is
agreed that it was a condition of the contract that that stuff should be
delivered, but it is said that the defendants were absolved from the
liability arising from the fact that something different from common
English sainfoin was delivered by virtue of a particular clause in the
contract. The clause, so far as relevant, is to this effect—“Sellers give
no warranty, express or implied, as to growth, description, or any
other matters.” Now this sainfoin which was delivered turned out to
be a different kind of goods; and when that was found out an action
was brought against the defendants as sellers, to which they pleaded
the clause which I have read. The law on this subject is to be found in
the statute, and I do not wish to obscure the statute by offering any
additional commentaries of my own; but I wish to apply it, as I
understand the law, to this case. If a man agrees to sell something of a
particular description he cannot require the buyer to take something
which is of a different description, and a sale of goods by description
implies a condition that the goods shall correspond to it. But if a
thing of a different description is accepted in the belief that it is
according to the contract, then the buyer cannot return it after having
accepted it; but he may treat the breach of the condition as if it were a
breach of warranty—that is to say, he may have the remedies
applicable to a breach of warranty. That does not mean that it was
really a breach of warranty or that what was a condition in reality
had come to be degraded or converted into a warranty. It does not
become degraded into a warranty ab initio, but the injured party
may treat it as if it had become so, and he becomes entitled to the
remedies which attach to a breach of warranty. I forbear from further
observations, because the whole of the law has been, if I may say so
with respect, admirably expressed in the judgment of Fletcher
Moulton, L.J. There is no doubt that when you are dealing in a
commodity the inspection of which does not enable you to
distinguish its exact nature, there are risks both on the buyer and on
the seller if they think fit to sell by description. But if it is desired by a
seller to throw the risk of any honest mistake on to the buyer, then he
must use apt language, and I should have thought that the clearer he
tries to make the language the better. I do not think that he has done
so in the clause to which I have referred, and therefore I agree with
Fletcher Moulton, L.J., and Bray, J. I think that judgment ought to be
entered for the plaintiffs.

Lord Ashbourne—I concur. I have read most carefully the judgment

of Fletcher Moulton, L.J., and I entirely agree with and am willing to
adopt it.

Lord Alverstone—I entirely concur with the judgments delivered by

the Lord Chancellor and Lord Ashbourne. I only wish to add a few
words, because it is very important that on this, which I think is the
first occasion on which your Lordships' House has had to consider it,
the real effect of the Sale of Goods Act should be pointed out. Prior to
that Act there had been a very great deal of litigation and of
discussion as to matters which formed only ground of a breach of
warranty and matters which amounted to a condition, and the
remedies in the one case and in the other were the subject of a great
deal of discussion. I think it

desirable to point out, at any rate upon the facts of this case, that
there is a clear distinction which has been recognised by the statute,
and when that distinction is borne in mind I agree entirely with the
opinion of Fletcher Moulton, L.J., that this case does not admit of
serious argument. I will very briefly call attention to what I mean in
the statute. I think that every section shows that the distinction
between “condition” and “warranty” is clearly understood and
recognised, and that different remedies are intended to be given in
the one case and in the other. For that reason I submit that it is
impossible for the respondents to contend that when the sellers said
that they gave no warranty they meant to say that they would not be
responsible for any breaches of condition. The definition of
“warranty” in the statute is in itself clear upon the point. It says—
Section 62—“‘Warranty,’ as regards England and Ireland, means an
agreement with reference to goods which are the subject of a contract
of sale, but collateral to the main purpose of such contract, the breach
of which gives rise to a claim for damages, but not to a right to reject
the goods and treat the contract as repudiated.”

_________________ Footnote _________________

* Section 62 enacts further—“As regards Scotland a breach of

warranty shall be deemed to be a failure to perform a material
part of the contract.” † Section II (2) applies to Scotland.

* Section 62 enacts further—“As regards Scotland a breach of

warranty shall be deemed to be a failure to perform a material part of
the contract.”

† Section II (2) applies to Scotland.

Then, finally, section 53 says—“Where there is a breach of warranty

by the seller, or where the buyer elects or is compelled to treat any
breach of a condition on the part of the seller as a breach of warranty,
the buyer is not by reason only of such breach of warranty entitled to
reject the goods.” I believe that there are no other sections in the Act
of Parliament to which it is necessary to refer. These sections have
been all very clearly dealt with by the learned counsel at the bar, and,
as has been pointed out, in each and all of those sections there is the
distinction between “warranty” and “condition” and the different
consequences flowing from the one stipulation and the other. All I
can say is that I think it quite impossible to suggest that in the year
1906, when these parties made a contract whereby they required that
the goods should be common English sainfoin, and the sellers put in
a stipulation that they would not give any warranty, express or
implied, it was intended that it was always to be understood that
they were not making themselves liable in regard to any condition as
to the goods or for the consequences of a breach of the condition. I
thought it right to add these few words, because I think it is very
important to bear in mind that the rights of people in regard to these
matters depend now upon statute. To a large extent the old law I will
not say has been swept away, but it has become unnecessary to refer
to it. Within the four corners of this statute applicable to this contract
we see this plain distinction between “condition” and “warranty,”
which has I venture to think been rather overlooked in this case by
the majority of the judges in the Court of Appeal. I concur
respectfully in the motion which has been made by my noble and
learned friend on the Woolsack.

Lord Shaw—The judgment of Fletcher Moulton, L.J., appears to me,

had I not had the pleasure of listening to the judgments which your
Lordships have pronounced, to cover this case, and I feel

hesitation in adding any words of my own. But I will make reference

only to sec. 13 of the statute. Sec. 13 applies to the case of goods sold
by sample plus description. In the present case the goods were sold
by sample, but the sample was not considered sufficient, and a
description had to be added. When the bargain was made samples
were shown and relied upon, but the description of the goods was
not embraced in the contract when it was put in writing. Thereupon
the vendee insisted that the description of the goods should be
entered upon the contract, and this was done, the goods being
described as “common English sainfoin.” That description could by
no circumstance have been more clearly certiorated as entering into
the very essence of this contract and being one of its conditions. What
has been delivered has been “giant sainfoin”—a thing as distinct in
agricultural knowledge from common English sainfoin as in ordinary
commerce a silver watch would be distinct from a gold watch. It is
now said, however, that these two merchants, contracting with each
other, when they used the word “warranty,” used it in ambulatory
sense. “Warranty” was, according to the argument so ably presented
to us by counsel for the respondents, to mean one thing in certain
events and another thing in other contingencies. I do not think that
these two English commercial men meant “warranty” in a sense of
any greater refinement than the breadth of the definition in the Sale
of Goods Act; and under the Sale of Goods Act it is as plain as
language can make it that there are two things that are dealt with
under different categories. The one is “warranty” and the other is
“condition” and it is only when you have to approach the question of
finding the remedy which the statute prescribes that in the option of
the person injured a condition may be converted into, or rather for
remedial purposes be regarded as equivalent to, a warranty. The only
other observation which I desire to make is that I view with some
suspicion, if not with repugnance, any system of construing a
contract

Judgment appealed from reversed.

Counsel for Appellants—

Counsel for Respondents—