THE COURTS.

New Zealand Mail, Issue 661, 24 October 1884, Page 21

THE COURTS.

SUPREME COURT. IN THE SUPREME COURT OF NEW ZEALAND, WELLINGTON DISTRICT. (Judgment of Richmond, J.) ZOHKAB AND ANOTHER V. FULLER. Richmond J. : Two distinct questions arise in thi3 case. First, whether the plaintiff at the time he returned a portion of the hops had the right to do so, and to recover the price, on the ground that the hops were unfit for use ; secondly, supposing the plaintiff to have had no such right, whether there was any warranty of quality, express or implied. As to the former question it is clear that no such right existed. The plaintiff was entitled within a reasonable time after delivery, to reject the whole of the two bales, on the ground that a considerable portion was in bad condition. But having used more than one-half of the consignment, it is clear that he could not rescind the contract as to the remainder. There was but one contract for the two bales, and a contract cannot be rescinded in part and stand good for the residue. The property in the hops had passed absolutely to the plaintiff, and his only possible remedy, after using the first bale and a part of the second, could be by action for damages on an express or implied warranty. The magistrates found that the time within which the respondent inspected the hops namely, three months after delivery, was not an unreasonable time. As the inspection did not take place until two months after the first bale had been opened, I cannot doubt that this finding was contrary to the evidence. Were a judge trying the case with a jury, I rather think it would be his duty to direct the jury under such circumstances, that the delay was unreasonable. If so, the finding is not merely unsatisfactory as an inference of fact, but positively wrong in point of law, in which case it does not bind this court. But I need not determine this point, as, on the other ground, it was manifestly impossible to rescind. The law on this subject is stated by C. J. Bovill in Heilbutt v. Hickson, L.R. 7 C.P. 438 at page 450, by Lord Chelmsford in Coriston v. Chapman, L. R. 2sc. App. 250, at page 255, and in Benjamin on Sales, (2nd edition), p. 452. Next, I am of opinion that there was no implied warranty of quality. I use the term warranty, in the strict sense in which it is distinguished from a condition of the contract. It was, I think, an implied condition that the hops should be fit for use. Accordingly the purchaser would have been at liberty to reject the hops within a reasonable time after delivery ; but he did not exercise this right, and this is not a case in which any warranty can be implied. The remedy of the purchaser was promptly to return both bales. The law is laid down by the Supreme Court of the United States in the case of Barnard v. Kellog, as stated by Air Benjamin at p. 538. The Court says : “ By the rule of the common law where a purchaser inspects for himself the specific goods sold, and there is no express warranty, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the goods sold, the maxim of caveat emptor applies.” The law is stated in the same way by Mellor J., in delivering the judgment of the Court of Queen’s Bench in Jones v. Just, L.R. 3 Q. 8., 197. Both courts appear to be more particularly referring to. cases in which the purchaser has had an opportunity of inspection before delivery ; but the principle applies to all cases where there has been an opportunity of inspection before the goods are accepted. Lastly, I am of opinion that there was no express warranty of quality. The case states that during the treaty for the sale of the hops, the appellant’s traveller said that the hops which the appellants were prepared to supply were “ splendid hops.” There was no other evidence of a warranty. An expression of this kind is evidently mere commendation of the article. The representation did not enter into the bargain as part of it, and is therefore no warranty. Obviously, the traveller was merely stating his own opinion or judgment upon a matter on which, as Air Benjamin observes, (p. 499) the buyer might be expected also to have an opinion and to exercise his judgment. It was stated by council for the appellants, that the respondent did

not, in the court below, rely on a warranty, and that the parties were surprised, when the bench put their judgment on this gronnd. The particular of demand, is for the price of the hops returned to the appellants, and not for damages as on a breach of warranty. In my opinion, there was no evidence of a warranty which could have been left to a jury; and the conclusion of the court below, amounts, therefore, to an error in law, which can be corrected here. Appeal allowed with costs.