Jones v. Just(1868) 3 Q.B. 197

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MELLOR, J. – In this case, it appeared that the plaintiffs, through Messrs. Beneke & Co.,
their brokers, entered into a contract with the defendant for the purchase of a quantity of
Manilla hemp, to arrive…. The shipping documents were duly delivered to the plaintiffs, and
the price was paid. All the vessels named in the contract arrived in due course, with the
respective numbers of bales of hemp having marks corresponding to those specified in the
contract on board; and the bales were delivered to the plaintiffs. On examination of the bales
it was found that the whole of those marked J.H.V. were in such a state as to afford strong
evidence that they had at some time, probably from a shipwreck when on the voyage from
Manilla to Singapore, been wetted through with salt water had afterwards been unpacked and
dried, and then repacked in the bales which were afterwards shipped at Singapore.
Manilla hemp is divided into several qualities. The hemp in the bales in question, if in
good condition, would have been what is called “fair current Manilla hemp”, which is not the
lowest quality; but in all the bales the hemp was damaged to some extent, though not so far as
to make it lose the character of hemp. After some correspondence between the parties, the
hemp was sold by auction by the plaintiffs’ orders as “Manilla hemp, with all faults”, and at
the auction it realised about 75 per cent of the price which similar hemp would have fetched if
undamaged. The price of hemp had risen considerably since the contract, so that the proceeds
of the sale were very nearly equal to the invoice price. There was no attempt to shew that the
defendant knew of the state in which the hemp had been shipped at Singapore.
At the close of the plaintiffs’ case, Mr. Brett, for the defendant, contended that, in point of
law, under this written contract, there was no further condition or warranty than that the bales
on their arrival should answer the description of bales of Manilla hemp, which they did, as
was proved by the fact that the hemp, though sold with a stigma upon it, fetched a price only
25 per cent, below that of sound hemp; and that as to quality or condition there was no
warranty; that consequently the maxim caveat emptor applied.
The learned judge expressed an opinion adverse to this view. He said: “I think that the
question is for the jury, whether what was supplied under this contract was, when shipped at
Singapore, such as to answer the description of reasonably merchantable Manilla hemp, that
being the warranty which, I think, the law implies in a contract to supply, as this is: though it
would be different in a sale of specific things which the purchaser might examine, or of things
sold by sample. And I think the question whether it is fairly and reasonably merchantable, is
a question of more or less, which must be left to the jury as reasonable men to determine.”
The judge then reserved leave to move to enter the verdict for the defendant, if there was no
evidence to go to the jury of a breach of warranty.
Upon this intimation of opinion, the counsel addressed the jury, and the case was left to
them substantially to the effect above stated; and the jury were further told that if they found

for the plaintiffs, the damages should be measured by the rate which the hemp was worth
when it arrived compared with the rate which the same hemp would have realised, had it been
shipped in the state in which it ought to have been shipped: thus, in effect, giving the
plaintiffs the benefit of the rise in the market.
Mr. Brett, in the ensuing Term, obtained a rule to enter the verdict for the defendant,
pursuant to the leave reserved; or for a new trial, on the ground of misdirection as to the
measure of damages, which he contended ought at most to have been the difference between
the value of the article actually delivered, viz., fair average Manilla hemp in a damaged state,
and the value of sound Manilla hemp of the lowest quality which might have been supplied at
Singapore under this contract. The other objections to the direction were substantially only
varied modes of putting the point reserved.
We thought that if the contract had the effect which the direction stated it to have, the true
measure of the damages was given, as it put the plaintiffs in the position in which they would
have been if the contract had been fulfilled; but we took time to consider the question as to
what the contract really was, which is no doubt one of importance and difficulty.
After careful consideration, we are of opinion that Blackburn, J.’s direction was
substantially correct. On the argument before us, it was contended that the contract was
performed on the part of the defendant by the shipping at Singapore of an article which
answered the description of “Manilla hemp”, although at that time it was so damaged as to
have become unmerchantable. It was said that there being no fraud on the part of the vendor,
and both parties being equally ignorant of the past history and actual condition of the article
contracted for, and neither of them having had the opportunity of inspecting it, it was the duty
of the vendees to have stipulated for a merchantable article, if that was what they intended to
contract for. In other words, it was said that the maxim, caveat emptor, applied in such a
case, in the same way as on a sale of a specific article by a person not being the manufacturer
or producer, even though the defect was latent and not discoverable upon examination.
We are of opinion that there is a great distinction between the present case and the sale of
goods in esse, which the buyer may inspect, and in which a latent defect may exist, although
not discoverable on inspection.
The cases which bear upon the subject do not appear to be in conflict, when the
circumstances of each are considered. They may, we think, be classified as follows:
First, where goods are in esse, and may be inspected by the buyer, and there is no fraud
on the part of the seller, the maxim caveat emptor applies, even though the defect which
exists in them is latent, and not discoverable on examination, at least where the seller is
neither the grower nor the manufacturer: Parkinson v. Lee [2 East, 314]. The buyer in such a
case has the opportunity of exercising his judgment upon the matter; and if the result of the
inspection be unsatisfactory, or if he distrusts his own judgment he may if he chooses require
a warranty. In such a case, it is not an implied term of the contract of sale that the goods are of
any particular quality or are merchantable. So in the case of the sale in a market of meat,
which the buyer had inspected, but which was in fact diseased, and unfit for food, although
that fact was not apparent on examination, and the seller was not aware of it, it was held that

there was no implied warranty that it was fit for food, and that the maxim caveat emptor
applied: Emmerton v. Mathews [31 L.J. (Ex.) 139].
Secondly, where there is a sale of a definite existing chattel specifically described, the
actual condition of which is capable of being ascertained by either party, there is no implied
warranty: Barr v. Gibson [3 M. & W. 390].
Thirdly, where a known described and defined article is ordered of a manufacturer,
although it is stated to be required by the purchaser for a particular purpose, still if the known,
described, and defined thing be actually supplied, there is no warranty that it shall answer the
particular purpose intended by the buyer: Chanter v. Hopkins [4 M. & W. 399].
Fourthly, where a manufacturer or a dealer contracts to supply an article which he
manufactures or produces, or in which he deals, to be applied to a particular purpose, so that
the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in
that case an implied term or warranty that it shall be reasonably fit for the purpose to which it
is to be applied: Brown v. Edgington [2 Man. & G. 279]. In such a case the buyer trusts to
the manufacturer or dealer, and relies upon his judgment and not upon his own.
Fifthly, where a manufacturer undertakes to supply goods, manufactured by himself, or in
which he deals, but which the vendee has not had the opportunity of inspecting, it is an
implied term in the contract that he shall supply a merchantable article: Laing v. Fidgeon [4
Camp. 169]. And this doctrine has been held to apply to the sale by the builder of an existing
barge, which was afloat but not completely rigged and furnished; there, inasmuch as the buyer
had only seen it when built, and not during the course of the building, he was considered as
having relied on the judgment and skill of the builder that the barge was reasonably fit for
use: Shepherd v. Pybus [3 Man. & G. 868].
If, therefore, it must be taken as established that, on the sale of goods by a manufacturer
or dealer to be applied to a particular purpose, it is a term in the contract that they shall
reasonably answer that purpose, and that on the sale of an article by a manufacturer to a
vendee who has not had the opportunity of inspecting it during the manufacture, that it shall
be reasonably fit for use, or shall be merchantable, as the case may be, it is difficult to
understand why a similar term is not to be implied on a sale by a merchant to a merchant or
dealer who has had no opportunity of inspection. Accordingly in the case Bigge v. Parkinson
[31 L.J. (Ex. 301)] upon a contract to supply provisions and stores to a ship guaranteed to
pass the survey of the East India Company’s officers, it was held by the Court of Exchequer
Chamber that there was an implied term in the contract, that the stores should be reasonably
fit for the purpose for which they were to be supplied, notwithstanding that the vendor had
specially contracted that they should pass the survey of the East India Company’s officers.
We are aware of no case in which the maxim, caveat emptor, has been applied where
there has been no opportunity of inspection, or where that opportunity had not been waived.
The case of Gardiner v. Gray [4 Camp. 144, 145], appears strongly in point to the present.
The contract was for the sale of twelve bales of waste silk imported from the continent, and
before it was landed samples were shewn to plaintiff’s agent, and the bargain was then made,
but without reference to the sample. It was purchased in London, and sent to Manchester, and
on its arrival there was found to be of a quality not saleable under the denomination of “waste

silk”. Lord Ellenborough expressed his opinion that “the purchaser under such circumstances
had a right to expect a saleable article answering the description in the contract. Without any
particular warranty, this is an implied term in every such contract. Where there is no
opportunity to inspect the commodity the maxim, caveat emptor, does not apply.”
In general, on the sale of goods by a particular description, whether the vendee is able to
inspect them or not, it is an implied term of the contract that they shall reasonably answer
such description, and if they do not, it is unnecessary to put any other question to the jury;
thus, in Wieler v. Schilizzi [25 L.J. (C.P.) 89], and in Josling v. Kingsford [32 L.J. (C.P.) 94],
the substantial question put to the jury was, did the goods delivered reasonably answer the
description in the contract? And the answer of the jury being that they did not, that answer
sufficed to determine each case. In one of those cases there was no opportunity to inspect, in
the other there was. So in the case of Nichol v. Godts [10 Ex. 191], where the contract was for
the sale of “foreign refined rape oil, warranted only equal to sample”, it was held in an action
for not accepting the article tendered, that it was necessary for the vendor to establish that it
was not only equal to the sample as to quality, but that it was in fact such an article as
answered, the description of foreign refined rape oil. In Wieler v. Schilizzi, in which there
was no opportunity to inspect, and no express stipulation as to quality, it would have been
necessary, had the finding of the jury affirmed that the article delivered did in fact answer the
description of “Calcutta linseed”, to determine whether the judge ought not to have put the
further question, was it reasonably merchantable? It certainly was not determined that such a
question would have been wrong, though perhaps the words “tale quale” in that contract
might have the effect of excluding any such warranty; and Willes, J., in his judgment [17 C.B.
at p. 624], said that the purchaser in that case “had a right to expect, not a perfect article, but
an article which would be saleable in the market as Calcutta linseed.”
It appears to us that, in every contract to supply goods of a specified description which
the buyer has no opportunity to inspect, the goods must not only in fact answer the specific
description, but must also be saleable or merchantable under that description. In the words of
Lord Ellenborough in Gardiner v. Gray [4 Camp. 145], “without any particular warranty this
is an implied term in every such contract.” In the present case the question appears to be, was
the article as delivered at Singapore merchantable or saleable in the market under the
description of “Manilla hemp?” Blackburn, J., appears to have divided that question into two,
viz.: Was the article, in fact, Manilla hemp? Secondly, was it merchantable? The precise
mode of submitting the question is not material, provided the substantial direction was
correct, as we think it was.
The counsel for the defendant relied upon a case of Turner v. Mucklow [8 Jur. (N.S.)
870], tried before Mellor, J., in the year 1862, at Liverpool. In that case the plaintiffs were
calico printers, and had contracted to sell to the defendant, who was a drysalter and dye
extract manufacturer, a boat-load of “spent madder.” The defendant, not finding the spent
madder supplied suitable for his purpose, repudiated the contract, and refused to pay for it. It
appeared that the plaintiffs, in their trade as calico printers, used large quantities of madder
roots, having extracted from which the finer colouring matter by chemical processes they
placed the refuse or spent madder in a large heap in their yard. They occasionally used
portions of it, and by the application of other chemical processes extracted from it a colouring

matter called garancine, but they did not manufacture spent madder for sale. On a previous
occasion they had sold to the defendants, who was a manufacturer of garancine, a small
quantity of spent madder from their accumulation; and on the occasion in question the
defendant, by letter, bargained with the plaintiffs for a quantity of their spent madder, which
he did not inspect before delivery, and upon a portion of it being used by the defendant for the
purpose of manufacturing garancine, it turned out that the garancine produced by it was of
very inferior quality and unmarketable. The jury were directed that if the article supplied
fairly and reasonably answered the description of “spent madder”, there was no implied
warranty that it was of any particular quality or fitness for any particular use, and upon that
direction the jury found a verdict for the plaintiffs; and upon the argument on a rule which
was obtained for a new trial, on the ground of misdirection, the Court of Exchequer held the
direction to be right; Martin B., declaring his opinion to be “that no direction was ever more
correct.”
In that case it is to be observed that the defendant had the opportunity, if he had chosen to
avail himself of it, to inspect the heap of spent madder; he knew that it was the refuse madder
after it had gone through the plaintiffs’ processes, and that it was not manufactured for sale.
These circumstances entirely distinguish that case from the present.
The counsel for the defendant also relied upon the statute 19 & 20 Vict. c. 60, s. 50 [19 &
20 Vict. c. 60, s. 5]: “Where goods shall after the passing of this act be sold, the seller, if at
the time of the sale he was without knowledge that the same were defective or of bad quality,
shall not be held to have warranted their quality or sufficiency, but the goods with all faults
shall be at the risk of the purchaser, unless the seller shall have given an express warranty of
the quality or sufficiency of such goods, or unless the goods have been expressly sold for a
specified and particular purpose, in which case the seller shall be considered without such
warranty to warrant that the same are fit for such purpose.” [This statute applies only to
Scotland], as a sort of implied legislative declaration of the law of England upon that subject
in favour of his argument; but, upon examining the section referred to, it does not appear to
bear out that view, for all that it declares is, that a seller of goods, without knowledge that
they are defective or of bad quality, shall not be held to have warranted their quality or
sufficiency.
It has already appeared that there is not in general, on the sale of goods in England to be
supplied, an implied warranty that they shall be of any particular quality or sufficiency for
any particular purpose, but merely that they shall be merchantable goods of the description
bargained for. The present case depends on the distinction between a sale of particular articles
and a contract to supply articles of a particular kind.
The authority of Chancellor Kent [Kent’s Commentaries, vol. II; p. 479 of the 6th ed.,
the last by the author himself. 11th ed., pp. 633-635] was also appealed to; but as the
American cases which he cites are generally adverse to his opinion, it can at most be said that
the opinion of an eminent writer is opposed to the authority of the cases which he cites.
It appears to us, in the result of this case, that the maxim of caveat emptor cannot apply,
and that it must be assumed that the buyer and seller both contemplated a dealing in an article
which was merchantable. The buyer bought for the purpose of sale, and the seller could not

on any other supposition than that the article was merchantable have found a customer for his
goods, and the buyer must be taken to have trusted to the judgment, knowledge, and
information of the seller, as it is clear that he could exercise no judgment of his own; and this
appears to us to be at the root of the doctrine of implied warranty, and that in this view it
makes no difference, whether the sale is of goods specially appropriated to a particular
contract, or to goods purchased as answering a particular description.
It was contended further by the defendant’s counsel that the shippers at Singapore were
the persons who selected the goods in question, and that the defendant, who merely sold them
to arrive, was as little aware of their true condition when shipped as the plaintiffs; but it is
clear that the defendant, if not directly connected with the shippers as his correspondents,
must at least have purchased from them, and had recourse against them for not supplying an
article reasonably merchantable.
The remarks of Cockburn, C.J., on the argument in Bigge v. Parkinson [H. 7 & N. at p.
959], though not in terms repeated by him in delivering the judgment of the Court of
Exchequer Chamber, are really involved in it, and are very closely in point here.
We are therefore of opinion that Blackburn, J.’s direction was right, and that this rule
must be discharged.