pation, and knew that it was in an unfit and dangerous state, and did not disclose that fact to the plaintiff, an action of deceit will lie. The declaration does not allege that the defendant made any misrepresentation, or that he had reason to suppose that the plaintiff would not do what any man in his senses would do, viz. make proper investigation, and satisfy himself as to the condition of the house before he entered upon the occupation of it. There is nothing amounting to deceit: it was a mere ordinary transaction of letting and hiring. The defendant is entitled to judgment. MAULE, J. The declaration struck me, at first sight, as a perfectly bad one; and it does not improve upon acquaintance. The rest of the court concurring, 1851. KEATES บ. EARL CADOGAN. Judgment for the defendant. 1851. Jan. 18. Upon a con tract for the sale of goods, with a particu lar express warranty, the court will not extend such warranty by implication. THIS DICKSON V. ZIZINIA and Another. HIS was an action of assumpsit. The declaration stated, that, on the 19th of March, 1847, the plaintiff, at the request of the defendants, bargained for and agreed to buy of the defendants, and the defendants then sold to the plaintiff, a certain cargo, to wit, the cargo of Indian corn then shipped at Orfano, on board The declara- the Ottoman, at and for the price or sum of 56s. per tion stated a sale by the defendants to bargain for the quarter, free on board, including freight, insurance to Cork, Liverpool, or London, as per charterparty, calling the plaintiff of at Cork for orders, &c., and that it was agreed that the a certain cargo, quality of the said Indian corn was equal to the average to wit, the cargo of Indian of the shipments of salonica that season, to wit, the corn then shipped at Orfano, on board the Ottoman, at a certain price, including freight and season of 1847, and that the said Indian corn had been shipped, to wit, in and on board the said ship or vessel called the Ottoman, in good and merchantable condition: That, in consideration, &c., the defendants then promised the plaintiff, that the quality of the said Indian corn was equal to the average of the shipments of salonica that pool, or London, season, and that the said Indian corn had been shipped and that it was in and on board the said ship or vessel called the agreed that the quality of the Ottoman in good and merchantable condition: Breach, that the said Indian corn had not, nor had any part insurance to Cork, Liver said Indian corn was equal to the average thereof, been shipped, nor was the same, or any part of the ship ments of that article in the season of 1847, and that the said Indian corn had been shipped in good and merchantable condition; and alleged for breach, that the corn was not, at the time of shipment, or at any other time, in good and merchantable condition, or in a fit and proper condition for the performance of the voyage from Orfano to Cork, &c. The judge left it to the jury to say whether the corn was, at the time of shipment, in a good and merchantable condition for a foreign voyage :—Held, a misdirection; inasmuch as it was extending by implication the express warranty contained in the contract. thereof, at the time of the shipment thereof, or at any other time, in good and merchantable condition, or in a fit and proper state or condition to be shipped or put on board the said ship or vessel for the performance of the said voyage, to wit, from Orfano aforesaid, to Cork, London, or Liverpool aforesaid. Pleas,-first, non assumpsit,-secondly, that the said Indian corn had been shipped in good and merchantable condition, thirdly, that it was shipped in a fit and proper state for the performance of the voyage. Issue thereon. The cause was tried before Wilde, C. J., at the sittings in London after Trinity term last. It appeared, that, at the time the contract declared on was entered into, the Ottoman was on her voyage,-the cargo having been put on board on the 19th of February, and the vessel having sailed on the following day. Ten days after her departure, the Ottoman put into Malta for provisions. Whilst there, it was discovered that the Indian corn was much heated, and emitted considerable stench; and the captain, acting upon competent advice, and exercising what appeared to be a sound discretion, sold the cargo for 6301. There was conflicting evidence as to the condition of the corn at the time of its shipment at Orfano; some of the witnesses stating that these cargoes generally arrived in bad condition, and nearly all agreeing that it was matter of doubt amongst merchants at the time this contract was made, whether the article would bear the voyage or not. The lord chief justice intimated an opinion that the contract involved a warranty that the cargo should be shipped in such a state as to be fit to bear the voyage; and he left two questions for the jury,-first, whether the corn was, at the time of shipment, in a good and merchantable condition for a foreign voyage,-secondly, 1851. DICKSON บ. ZIZINIA. 1851. DICKSON V. ZIZINIA. whether it was in a good and merchantable condition, generally, for sale at the port of shipment. The jury, answering the first question in the negative, but declining to answer the second, found a verdict for the plaintiff, damages 2,2501. Greenwood, in Michaelmas term last, obtained a rule nisi for a new trial, on the ground of misdirection. Sir F. Thesiger, and Bramwell, now shewed cause. The question is, whether this contract contains an implied warranty that the corn was in a good and merchantable condition for the voyage. The contract itself shews the purpose for which the corn was sold. The terms "good and merchantable condition," must mean, either that the corn was shipped in a good and merchantable condition for all purposes, or that it was in a condition reasonably fit to bear the voyage for which it was shipped: and, in either case, the verdict is right. In the contract, the parties describe the purpose for which the corn was shipped. The sellers, knowing it to be shipped for Cork, or Liverpool, or London, guarantee that it is in a good and merchantable condition,— evidently meaning, good and merchantable with reference to the purpose contemplated by the buyer. The parties did not contemplate that the corn was shipped for the purpose of remaining at Orfano. There are, undoubtedly, many cases where it has been held, that, upon a sale of goods for a particular purpose, the law will imply a warranty that they are reasonably fit for that purpose: such are the cases of Gray v. Cox (a), Jones v. Bright (b), Brown v. Edgington (c), and Shepherd v. Pybus (d): (a) 4 B. & C. 108., 6 D. & R. 200. (b) 3 M. & P. 155., 5 Bingh. 533. (c) 2 M. & G. 279., 2 Scott, N. R. 496. (d) 4 Scott, N. R. 434., 3 M. & G. 868. though that rule, it is true, does not apply, where the contract is for the sale of a specific, ascertained chattel, -Chanter v. Hopkins (a), Ollivant v. Bayley (b), Burnby v. Bollett (c),-or where there is an express warranty. The direction, it is submitted, was right, and the verdict must stand. Greenwood and Bovill, in support of the rule. The direction was clearly wrong. The contract here was for the sale of a specific cargo of Indian corn, equal to the average shipments of the season, and shipped in good and merchantable condition: no warranty can be implied to a greater extent than that expressed in the contract. Chanter v. Hopkins, Ollivant v. Bayley, and Burnby v. Bollett, are distinct authorities to shew that a warranty is not to be implied, where the sale is of a specific and ascertained chattel. The like was held in Blewitt v. Osborne (d), Barr v. Gibson (e), and Smith v. Jeffryes. (f) In Parkinson v. Lee (g), it was held, that, upon a sale of hops by sample, with a warranty that the bulk of the commodity answered the sample, the law does not raise an implied warranty that the commodity should be merchantable, though a fair merchantable price were given; and, therefore, that, if there be a latent defect then existing in it, unknown to the seller, and without fraud on his part (but arising from the fraud of the grower, from whom he purchased), such seller is not answerable, though the goods turned out to be unmer-. chantable. Grose, J., there says: "If an express warranty be given, the seller will be liable for any latent defect, according to the old law concerning warranties. (a) 4 M. & W. 399. (b) 5 Q. B. 288 S. C. (per nom. Oliphant v. Bayley) Dav. & Meriv. 373. (c) 16 M. & W. 644. (d) 1 Stark. N. P. C. 364. (g) 2 East, 314. 1851. DICKSON v. ZIZINIA. |