Warranty. 382 CONTRACTS. [BOOK III. The law with regard to warranty in respect of manufactures was considered by the House of Lords in a case which came before them in 1887 (1). In that case certain cloth merchants ordered of cloth manufacturers at Bradford mixed worsted coatings which were to be in quality and weight equal to certain numbered samples which had been previously furnished by the manufacturers to the merchants. The goods were well known in the trade as "corkscrew twills." The object of the merchant was to sell the coatings to clothiers or tailors in the United States. The goods supplied corresponded in every particular with the samples, but owing to a certain defect which was latent, and not discoverable by due diligence upon such inspection as was ordinary on sales of cloth of that class, the goods turned out to be unmerchantable, and were returned upon the merchants' hands. The House of Lords held that upon such a contract there was an implied warranty of the fitness of the goods, and that the merchants were entitled to recover. The following propositions of law on the subject of warranty, which had been laid down in previous cases, received the approval of the House of Lords in the present case :— 1. Where goods are ordered of a manufacturer for a particular purpose, he impliedly warrants that they are fit for that purpose. 2. Upon a sale of goods of a specified description, which the purchaser has no opportunity of examining before the sale, the goods must not only answer that specific description, but must be merchantable under that description. 3. The implied warranty that the goods supplied are merchantable is not absolutely excluded by the fact that the goods are sold by sample, and that the bulk precisely corresponded with it, but is only excluded as regards those matters which the purchaser ought, by due diligence in the use of all ordinary and usual means, have ascertained from an examination of the sample. A warranty must be given at the time of the sale; if given after the sale, or when the contract is performed, it is invalid for want of consideration (2). A warranty must be in writing if the contract in respect of which it is made is in writing, but no particular form of words is requisite to constitute it. The law on this subject has been summed up by Lord Black (1) Drummond v. Van Ingen, 12 App. Cas. 284, and see Randall v. Newson, 2 Q. B. D. 102; Jones v. Just, L. R. 3 Q. B. 197 (1868); burn as follows: "It is now well settled that in the sale of Warranty. goods, specific at the time of the sale, that is ear-marked or identified as the subject-matter of the sale, the vendee cannot put the breach of a warranty on the same footing as an unperformed condition precedent. He cannot decline to accept earmarked goods, on the ground that they are not as good as those contracted for. Where goods were ear-marked at the time of the contract, the stipulation as to quality is not a condition precedent uncomplied with, and as such entitling the vendee to reject the goods, but a warranty merely, for the breach of which the vendee may obtain damages" (1). What is acceptance within the meaning of the 17th section What is of the Statute of Frauds? This question may now be considered as definitely settled by the decision of the Court of Appeal in Page v. Morgan (2). It was there pointed out that there must be under the statute both an acceptance and actual receipt, but such acceptance need not be an absolute acceptance; all that is necessary is an acceptance which could not have been made except upon admission that there was a contract, and that the goods were sent to fulfil that contract. Accordingly in this case, where there was a sale of wheat by sample, and the purchaser, having received a number of sacks of wheat delivered under the contract into his premises, opened the sacks and examined their contents to see if they were equal to sample, but immediately after so doing gave notice to the seller that he refused the wheat as not being equal to sample, the Court of Appeal decided that there was evidence of acceptance within the meaning of the Statute of Frauds. (') Blackburn on the Contract of Sale, p. 501. accept ance. Aliens. Foreign states. Ambassadors. CHAPTER III. CAPACITY OF PARTIES. The capacity of persons to form a valid contract may be affected by their political, professional, or social status, and by certain personal conditions, such as infancy, marriage, insanity. Again, artificial persons, as corporations, contract subject to certain restrictions and limitations, in some cases arising from their nature, and in other cases defined by the law of their creation (1). Under the head of Political Status we shall briefly notice the positions of aliens, foreign states, and ambassadors. In modern times no incapacity attaches to the status of an alien, except that he cannot acquire property in a British ship (2). An alien enemy cannot, without licence from the Crown, enforce an existing contract, or make a new contract during the continuance of the war. His remedies, however, are only suspended, and at the conclusion of peace he resumes all the rights which existed to him at the commencement of the war which have not been seized by the Crown. Thus an alien enemy was admitted to prove a debt under a bankruptcy, the payment of the dividend being reserved (3). During war an alien enemy cannot acquire any new rights by contract. He cannot draw bills upon this country, an acceptance of them during war would be void, and an indorsement, with notice, would give no claim upon the acceptor (4). Foreign states, and sovereigns, as such, are exempt from being sued in the Courts of this country unless they voluntarily submit to the jurisdiction. The ambassadors and representatives of foreign states duly accredited are also privileged from being sued in civil actions, (1) Anson on Contracts, 5th ed. p. 104, et seq., where the incapacity of corporations is spoken of as arising from artificiality of construction; being given a personalty by law, they take it upon such terms as the law imposes." (2) The Naturalization Act, 1870 (33 Vict. c. 14), s. 2. 71. (3) Ex parte Boussmaker, 13 Ves. (4) Willison v. Patteson, 7 Taunt. 439. and accordingly contracts cannot be enforced against them in our Courts unless they voluntarily submit to or appeal to their jurisdiction (1). The English law, like the Roman law, regards the fees of Barrister a barrister as an honorarium, and accordingly no action for them can be maintained. "The relation of counsel and client renders the parties mutually incapable of making any legal contract of hiring and service concerning advocacy in litigation" (2). The law on this subject was considered by the Privy Council in 1884 with reference to the law of Quebec, which permits a member of the Bar to sue for professional services and to contract for any rate of remuneration which is not contra bonos mores or in violation of the rules of the Bar. In this case the law of the English Bar was stated as follows:-"A member of the Bar of England, in accordance with the law of that country and the rules of the profession to which he belongs, renders, and professes to render, services of a purely honorary character. If, in his professional capacity as an English barrister, he accepted a retainer, to appear and plead before commissioners or arbitrators in a foreign country, by whose law counsel practising in its regular courts were permitted to have suit for their fees, that would not give him a right of action for his honoraria. His client would have a conclusive defence to such an action, on the ground that he was employed as a member of the English Bar, and, by necessary implication, upon the same terms as to remuneration upon which members of that Bar are understood to practise" (3). Formerly, the fee of a physician was like that of a barrister, regarded as a mere honorarium; though it differed in this respect, that the physician was regarded as not under any legal incapacity in the matter, and might enter into an express contract rendering the patient liable. The Medical Act of 1886 (4) now provides that a registered medical practitioner shall be entitled to recover in due course of law, in respect of his practice, any expenses, charges in respect of medicaments or other appliances, or any fees to. () Leake on Contracts, pp. 540, 541, referring to Magdalena Steam Navigation Co. v. Martin, 2 E. & E. 94; 28 L. J. Q. B. 310, and authorities there cited. (2) Kennedy v. Broun, 13 C. B. (N.S.) 677; Mostyn v. Mostyn, 5 Ch. D. 457: Robertson v. MacDonagh, VOL. I. 14 Cox C. C. 469. (3) Per Lord Watson, in The Queen v. Doutre, 9 App. Cas. 745. (1) See as to the law independent of the statute, notes to Lampleigh v. Braithwaite, Smith's Leading Cases, 9th ed. vol. i. p. 164. 2 c Infants. Necessaries. which he may be entitled, unless he be a fellow of a college of physicians, the fellows of which are prohibited by bye-law from recovering at law their expenses, charges, or fees; in which case such prohibitory bye-law, so long as it is in force, may be pleaded in bar of any legal proceeding instituted by such fellow for the recovery of expenses, charges, or fees. (1) The law as to infants' contracts may be next considered. The general law on this subject was stated in the case of Barnes v. Toye, to which we shall presently again refer, as follows:"The law is that up to the age of twenty-one an infant is not permitted to bind himself by contract, except for necessaries. From the earliest times, as was stated in a recent and important case upon the subject, an infant could bind himself to pay for his meat, drink, lodging, and other matters necessary for his sustenance, and in more modern times the rule is expressed generally that an infant may contract for the supply of necessaries suitable to his station in life” (2). In this case the Court decided (dissenting from a well-known decision in this branch of the law) that where an infant is sued for the price of goods supplied to him on credit, he may, for the purpose of showing that they were not necessaries, give evidence that, when the order was given, he was already sufficiently supplied with goods of a similar description, and that it is immaterial whether the plaintiff did or did not know of the existing supply (3). The term "necessaries," in its legal signification, as settled by decisions, is not confined to such articles as are necessary to the support of life, but extends to articles fit to maintain the (1) 49 & 50 Vict. c. 48, s. 6. Barnes & Co. v. Toye, 13 Q. B. Div. 412. The law on this subject is summarized in Addison on Contracts as follows:-Deeds, covenants, &c., and other writings not under seal, made by infants, are as a general rule (subject to some few exceptions) not binding. An infant cannot be sued on a bill of exchange accepted by him even for necessaries, nor on a contract of suretyship, nor on a breach of warranty for sale of a horse. The law, however, while it protects the imbecility and indiscretion of infants from injury, enables them to do certain binding acts for their own benefit, treating their privilege as a shield and not as a sword to be turned into an offensive weapon of fraud and injustice. Thus an infant may grant a lease if it is clearly for his advantage, may contract for necessary repairs to his dwelling-house, and may by the custom of gavelkind sell at the age of fifteen. See, as to apprenticeship deed, De Francesco v. Barnum, 43 Ch. D. 165. (3) Barnes & Co. v. Toye, 13 Q. B. Div. 410; Ryder v. Wombwell, L. R. 3 Ex. 90, dissented from. It has been decided that a servant's livery, a volunteer uniform, a guard's uniform, and decent burial are necessaries. On the other hand, a valuable chronometer, cigars and tobacco are not necessaries. For an infant young lady of high rank, silk, furs, and velvets are necessaries. A marriage settlement is also a necessary for an infant lady about to be married: Helps v. Clayton, 17 C. B. (N.S.) 553. |