Varley v Whipp

 

[1900] 1 Q.B. 513

 

Divisional Court

 

Near the end of June, 1899, the plaintiff and the defendant met in Huddersfield, when the plaintiff offered to sell to the defendant for £21 a second-hand self-binder reaping machine, which the plaintiff said was then at Upton, and he also said that it had been new the previous year, and had only been used to cut fifty or sixty acres. The plaintiff was to put the machine on the railway to send to Beverley, and the defendant was to pay the carriage. The defendant had not then seen the machine. The defendant said he would have the machine. The machine was not then the plaintiff's property, but he bought it immediately afterwards for £18. On June 28 the plaintiff put the machine on the railway to send to Beverley. On July 2 the defendant wrote a letter to the plaintiff, as follows: "I have had a look at the 'self-binder' you sent me, but it is not what I expected; it is a very old one, and has been mended, and you told me that it had only cut about fifty acres, and was practically new. I think you must never have seen it. It will be no use to me, as I don't care about old things, and especially machinery, but I shall be at Huddersfield this week where I shall be pleased to see you." After some further correspondence the defendant, on August 14, returned the machine, and the plaintiff brought this action to recover the price. At the trial the judge of the county court held that the contract was for sale by description, and that the defendant could only treat the misdescription as a breach of warranty, but not as a ground for rejecting the machine, and gave judgment for the plaintiff for the amount claimed. The defendant appealed.

 

Channell J

 

'I am of opinion that this appeal ought to be allowed. The case turns on a fine point, namely, whether the words used by the seller with regard to the machine were part of the description, or merely amounted to a collateral warranty. If the property in the machine passed prior to July 2, nothing that the buyer could do afterwards would divest it. The question is, did the property pass? The machine which was to be sold had never been seen by the buyer, and it was not the property of the seller at the time. It was described as being at Upton, as being a self-binder, as being nearly new, and as having been used to cut only about fifty or sixty acres. All these statements were made with regard to the machine, and we have to consider how much of these statements was identification of the machine, and how much was mere collateral warranty. If a man says that he will sell the black horse in the last stall in his stable, and the stall is empty, or there is no horse in it, but only a cow, no property could pass. Again, if he says he will sell a four-year old horse in the last stall, and there is a horse in the stall, but it is not a four-year old, the property would not pass. But if he says he will sell a four-year old horse, and there is a four-year old horse in the stall, and he says that the horse is sound, this last statement would only be a collateral warranty. The term "sale of goods by description" must apply to all cases where the purchaser has not seen the goods, but is relying on the description alone. It applies in a case like the present, where the buyer has never seen the article sold, but has bought by the description. In that case, by the Sale of Goods Act, 1893, s. 13, there is an implied condition that the goods shall correspond with the description, which is a different thing from a warranty. The most usual application of that section no doubt is to the case of unascertained goods, but I think it must also be applied to cases such as this where there is no identification otherwise than by description. Then the sale being a sale by description, when did the property pass, if it did not pass when the bargain was made? The section of the Sale of Goods Act dealing with the passing of the property is s. 17, by which "(1.) Where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2.) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties, and the circumstances of the case." It is impossible to imagine a clause more vague than this, but I think it correctly represents the state of the authorities when the Act was passed. Sect. 18 does not apply; the only clause in that section which could possibly apply would be rule 1, but I do not think that this was "an unconditional contract for the sale of specific goods." Then when did the property pass? Not when the machine was put on the railway, for the vendor could not make the property pass by putting on the railway that which did not fulfil the implied condition. The earliest date therefore at which the property could be said to pass would be when the machine was accepted by the purchaser. But it never was accepted. I am doubtful whether the letter of July 2 could be treated as amounting to a rejection, but the purchaser certainly did not accept the machine by that letter, and therefore the property never had passed. The result is that the defendant is entitled to judgment, and the appeal must be allowed.'