Agent.-Consent may likewise be given on either side through an authorized agent. If the capacity in which such a person acts is not known to the party with whom he is dealing, or if he assumes the aspect of a principal, he is by common law personally liable.1 By two statutes, rules have been laid down for determining the respective responsibilities of the employers of agents, the agents themselves, and the other parties dealing with them, known as the Factors' Acts.2 They will be more specially considered under the head of Principal and Agent.* An agent cannot lawfully purchase the property he is employed to sell, nor, when employed to purchase, can he be himself the vendor.3

Parties. There must be no misunderstanding as to the parties to the contract, otherwise the person acting under the mistake may withdraw. Thus, where a seller treats with a man in insolvent circumstances, in the understanding that he acts as agent for another person, but finds that he has been acting for himself, he will be entitled to give up the bargain.*

Subject. The subject must be specific, and individualized or set apart from others, before sale has actually taken place; but to constitute the contract, it is only necessary that there should be some criterion by which the subject is to be ascertained. Thus, when a person sees a flock of sheep in a field, he may bargain for a certain number, though these are not picked out; here the number settled on between the parties is the criterion. He may bargain for the whole flock without counting them; here the number in the field at the time is the criterion.5 The parties must be at one as to the nature of the subject, or else as to the rule by which any quality of it not ascertained at the time is to be judged; and ambiguity will render void the contract. Thus, a person had agreed to purchase about 300 quarters more or less of rye, to be brought from Hamburg. The seller brought and offered 350, which the purchaser refused, as too great an excess. The seller refused to deliver less. The purchaser was found not bound to take the commodity.6

Price. The price must be a real and serious one, and not merely nominal. Where the buyer is discharged from paying the price, there is no sale, and the other party does not incur the obligations noticed below as incurred by the vendor. The amount must be ascertained, or capable of being

1 Lang v. M'Leod, 15th January 1830.-26 Geo. IV. c. 94. 5 & 6 Vict. c. 39. See Part IX. Chap. III. Sect. 4.-3 Br. on S. 185.-4 N. H. L.— 5 Ibid.- Cross v. Eglin, 1831. 2 Barn, & Ad. 106.-7 Br. on S. 147.

ascertained by some criterion, such as the fiar price of grain, the market price, the decision of an arbiter, &c. It was decided in an old case that the price might be left to be ascertained by the buyer,2 but it is questionable whether a reference to either party can be justly binding on the other,3 and Erskine thinks that such a stipulation should be subject to the modification of a judge. In some cases where no price or criterion for deciding it by is named, the market price will be presumed to have been in the view of the parties. There is a peculiar kind of sale, by which the seller engages to dispose of his property while both price and buyer are unknown, but are to be fixed by certain contingencies, viz. sale by auction. (See below, p. 156.)

SECT. 2. Obligations on the Seller.

The seller is bound to deliver the goods, but not till he is offered the price, unless credit has been stipulated for. He may retain them if there is danger of losing the price by the purchaser's insolvency, and may even stop them on their passage to the purchaser. (See below, p. 164.) The seller is bound in the custody and delivery of the commodity purchased, to use all proper measures for its safety; and if he put a piece of goods into the hands of a carrier, shipmaster, &c. it should be so fixed on him as to give the buyer a remedy against him, in case of the property being lost.5 The directions given by the buyer as to the means of conveyance must be followed with reasonable diligence and attention, and the seller will be responsible for the consequence of departing from them. Where the goods are to be sent by sea, it will be part of the duty of the seller to send the buyer such information as will enable him to insure. This is generally done by transmitting a bill of lading.

Deficiencies. If a particular subject have been sold, which has been described by a certain measurement, and the purchaser afterwards find that this measurement is inaccurate, the bargain in the general case will not be held as null, provided there is no fraud or complete misunderstanding as to the nature of the subject; nor will even an abatement of the price be awarded. Instances of this description have

1 Br. on S. 148. E. iii. 3, 4.-2 Montrose v. Scot, 13th March 1639, M. 14155.-3 N. H. L.—4 E. iii. 3, 4.—5 B. C. i. 444. Br. on S. 370.-6 B. C. i. 445. Br. on S. 368.-7 Br. on S. 373.-8 N. H. L. Hannay v. Bargaly's Crs. 26th January 1785, M. 13334.

generally taken place in sales of lands, which have been described in advertisements, &c., as containing so many acres, and on measurement after purchase are found not to contain so many. In those cases where the error is material, the court, using its equitable power, has allowed the purchaser to throw up the bargain. The principle of no abatement proceeds on the supposition of there being no doubt that the buyer has got the subject he wished to purchase, and that there is only an error in the description. On the other hand, if something is specified as part of the subject, which is found afterwards not to be so (as when the teinds are said to be sold along with the land, and it is found that they did not belong to the seller), then the buyer must get abatement, or may insist on being relieved from the contract.2 On the principle of delivering the subject entire, the seller must purge any heritable encumbrances and debts, which are not excepted by the terms of the bargain.3

If the seller fail to put the purchaser in full and unquèstioned possession of the subjects purchased, he is liable for the damage occasioned by his default. Unless there be

special damage in the case, the pecuniary damage by nondelivery is generally estimated by the price of the goods at the time when delivery should have taken place. This, however, is not an absolute rule. The price at the time of delivery may not measure the buyer's loss by the transactions, for the price may be rapidly rising, and holders might be enabled to clear a large profit by preserving their stock. This was exemplified in a sale of Russia hemp. The price in the interval between the agreed on time of delivery and the decision in an action, had varied from £21, 12s. 6d. to £41. The purchaser demanded that the damages should be estimated at the highest selling price. The seller pleaded that they should be measured by the price at the time of delivery. The court found that there could be no fixed rule for such cases, and that it was for a jury to determine according to all the circumstances. When the delivery ist delayed beyond its due time, the buyer is relieved from his obligation to receive and pay for the subject of the purchase.

5

Warrandice. One of the obligations on the seller is to warrant the thing sold; 1st, As to his title to dispose of it;

Br. on S. 316-322.-2 Iv. Er. 647. B. on C. T. 168.-3 Horne v. Kay, 28th May 1824. Paton v. Stuart, 11th March 1825- Startup v. Cortazzi, 1835. 2 Cer. Mees & R. 165.-5 Watt v. Mitchell and Company, 4th July 1839.- Robb v. Cruickshank, 29th May 1840.

and, 2d, As to its being serviceable of its kind. In moveables possession infers a title, but it is otherwise in landed property, where a complicated system of transference has been established, through which it is often extremely difficult to discover who may have the best title. This subject will be found discussed elsewhere.*

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With regard to the second description of warrandice, it includes freedom from material latent defects; thus, a horse must be free of constitutional diseases or accidental defects, which tend to affect its life or utility, and even of inveterate bad habits, which render it either useless or dangerous. The animal must, in short, be sound, a mere temporary injury or hurt, or a bad habit, which neither shows constitutional infirmity, nor renders the horse useless, is no breach of warranty. If the subject is purchased for a specific purpose, it must be applicable to that purpose. Thus, if one agrees to purchase a draught horse," and the seller gives him a saddle horse, the purchaser will not be obliged to keep it, however good it may be. Where ale purchased for the West India market was not properly prepared to stand the heat of the climate, so that a great part of it was spoiled and lost, the purchaser was found not liable for the price.3 "The law resolves itself into this, That if a man sells generally, he undertakes that the article sold shall be fit for some purpose: if he sell it for a particular purpose, he undertakes that it shall be fit for that particular purpose."4 To entitle the buyer to resile, the defect must either be one which interferes with the principal purpose to which the subject is applicable, or with some peculiar purpose to serve which the purchaser has expressly bought it. Thus, one would not be allowed to return a horse purchased merely as a saddle horse, because it will not carry a female; and where "good, sufficient, and marketable bear" [viz. barley] was sold, the buyer was not entitled to return it because it was unfit for malt.6

"Where the dealing is in a particular branch of trade, the parties are presumed to contract according to its customs; and therefore, if the custom be, to declare, at the time of sale, whether the goods be sea-damaged, in the absence of such declaration, a warranty will be implied, that they are not so. If the article were bespoke to answer a particular purpose,

See above, p. 51, et seq., and below, p. 168.-1 M. on V. & P. 349, 357. Deuchars v. Shaw, 17th May 1833. Hendrie v. Stewart, 16th June 1842.2 N. H. L.-3 Baird v. Pagan, 14th Dec. 1765. M. 14240.- Best, C. J. 5 Bingh. 546.5 N. H. L.- Seaton v. Carmichael, 28th Jan. 1680, M.

a warranty is implied that it will answer such purpose. And in every contract to furnish manufactured goods, a warranty is implied that they shall be of a merchantable quality. Nor will the law imply a warranty, where the parties have expressly contracted, as to the nature and quality of the thing to be sold; thus, though we have just seen, that if A contract with B for manufactured goods, the law will imply a warranty that they shall be merchantable; yet no such warranty can be implied if A purchase the goods by sample." 1

In works of art questions of warranty are of difficult adjustment. When a picture is warranted the work of a particular master, it is very difficult to prove that it is not so; and though statements may have been made by the seller, it does not follow that they have been taken as warranties and relied on. In these cases, unless a distinct statement have been made which is not true, and the purchaser has relied on the statement, he has no redress.2

The seller is liable for the damage which may be occasioned to the purchaser's property by the defect of the subject, or its unfitness for its proper use. Thus, where a chain-cable, having a broken link, was slipped to avoid danger to the ship, and the anchor was lost, the purchaser was found entitled to recover the value both of the cable and the anchor.3

Apparent Defects.-Unless where he comes under a special warranty as to any particular quality in the subject, the seller is not liable for apparent defects. As to these the buyer is supposed to renounce his objection, and it is his own fault if he do not perceive them. In ordinary language, "his eye is his merchant." ."4 Thus, a quantity of wheat was sold of crop 1799, which was not allowed to be returned as bad, because the grain of that crop was universally known to be of a bad quality, and particularly because the buyer knew that to be the case with the wheat in question.5 Where one ordered a steam-engine boiler, with a general reference to another in the maker's hands, and during its progress having observed that it was longer than but not so broad as the pattern, said it would do, if the maker would take two feet off it, he was obliged to fulfil the bargain, although the maker did not tell him that this would diminish the power.

1 Smith's M. L. 464.- M'Lellan v. Gibson, 22d March 1843.-3 Borrodaile v. Brunton, 1818, 2 Moore, 582.- Br. on S. 296. M. on V. & P. 345. Muil v. Gibb, 27th June 1840.- Seton v. Wemyss, N. H. L."Kerr v. M'Dowall, 26th June 1828.