Wallis, Son, & Wells v. Pratt & Haynes [1911] UKHL 620
(Before the Lord Chancellor (Loreburn) , Lords Ashbourne , Alverstone , and Shaw .)49 SLR 620Wallis, Son, & Wells v. Pratt & Haynes.Subject_ Sale — Condition — Warranty — Description of Goods — Sale of Goods Act 1893 (56 and 57 Vict. cap. 71), secs. 11, 53. Facts:The appellants bought seed from the respondents as “common English sainfoin” under the proviso that “sellers give no warranty, expressed or implied, as to growth, description, or any other matters.” The seed turned out to be a different kind, and the appellants, who had re-sold the seed to third parties as common English sainfoin, were obliged to pay damages. They sought to recover the amount from the respondents.Held that the respondents' failure to supply common English sainfoin amounted to a breach of condition, which notwithstanding the terms of the contract entitled the appellants to recover the amount of their loss from the respondents.The buyers in a contract of sale of seed claimed damages in the circumstances stated supra in rubric and in their Lordships' judgments.A judgment in their favour was reversed by the Court of Appeal (Vaughan Williams and Farwell, L.JJ., diss . Fletcher Moulton, L.J.)The buyers appealed.At the conclusion of the arguments their Lordships gave judgment as follows:—
Lord Chancellor (Loreburn) —In this case two Judges have been in favour of the appellants and two in favour of the respondents, and therefore it is impossible to doubt that there must be room for controversy in regard to the meaning of the important clause of this contract. It is agreed that this was a sale both parties to which intended that common English sainfoin was to be delivered. It is agreed that it was a condition of the contract that that stuff should be delivered, but it is said that the defendants were absolved from the liability arising from the fact that something different from common English sainfoin was delivered by virtue of a particular clause in the contract. The clause, so far as relevant, is to this effect—“Sellers give no warranty, express or implied, as to growth, description, or any other matters.” Now this sainfoin which was delivered turned out to be a different kind of goods; and when that was found out an action was brought against the defendants as sellers, to which they pleaded the clause which I have read. The law on this subject is to be found in the statute, and I do not wish to obscure the statute by offering any additional commentaries of my own; but I wish to apply it, as I understand the law, to this case. If a man agrees to sell something of a particular description he cannot require the buyer to take something which is of a different description, and a sale of goods by description implies a condition that the goods shall correspond to it. But if a thing of a different description is accepted in the belief that it is according to the contract, then the buyer cannot return it after having accepted it; but he may treat the breach of the condition as if it were a breach of warranty—that is to say, he may have the remedies applicable to a breach of warranty. That does not mean that it was really a breach of warranty or that what was a condition in reality had come to be degraded or converted into a warranty. It does not become degraded into a warranty ab initio , but the injured party may treat it as if it had become so, and he becomes entitled to the remedies which attach to a breach of warranty. I forbear from further observations, because the whole of the law has been, if I may say so with respect, admirably expressed in the judgment of Fletcher Moulton, L.J. There is no doubt that when you are dealing in a commodity the inspection of which does not enable you to distinguish its exact nature, there are risks both on the buyer and on the seller if they think fit to sell by description. But if it is desired by a seller to throw the risk of any honest mistake on to the buyer, then he must use apt language, and I should have thought that the clearer he tries to make the language the better. I do not think that he has done so in the clause to which I have referred, and therefore I agree with Fletcher Moulton, L.J., and Bray, J. I think that judgment ought to be entered for the plaintiffs.Lord Ashbourne —I concur. I have read most carefully the judgment of Fletcher Moulton, L.J., and I entirely agree with and am willing to adopt it.Lord Alverstone —I entirely concur with the judgments delivered by the Lord Chancellor and Lord Ashbourne. I only wish to add a few words, because it is very important that on this, which I think is the first occasion on which your Lordships' House has had to consider it, the real effect of the Sale of Goods Act should be pointed out. Prior to that Act there had been a very great deal of litigation and of discussion as to matters which formed only ground of a breach of warranty and matters which amounted to a condition, and the remedies in the one case and in the other were the subject of a great deal of discussion. I think itPage: 621 ↓
Footnote
* Section 62 enacts further—“As regards Scotland a breach of warranty shall be deemed to be a failure to perform a material part of the contract.”† Section II (2) applies to Scotland.Then, finally, section 53 says—“Where there is a breach of warranty by the seller, or where the buyer elects or is compelled to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not by reason only of such breach of warranty entitled to reject the goods.” I believe that there are no other sections in the Act of Parliament to which it is necessary to refer. These sections have been all very clearly dealt with by the learned counsel at the bar, and, as has been pointed out, in each and all of those sections there is the distinction between “warranty” and “condition” and the different consequences flowing from the one stipulation and the other. All I can say is that I think it quite impossible to suggest that in the year 1906, when these parties made a contract whereby they required that the goods should be common English sainfoin, and the sellers put in a stipulation that they would not give any warranty, express or implied, it was intended that it was always to be understood that they were not making themselves liable in regard to any condition as to the goods or for the consequences of a breach of the condition. I thought it right to add these few words, because I think it is very important to bear in mind that the rights of people in regard to these matters depend now upon statute. To a large extent the old law I will not say has been swept away, but it has become unnecessary to refer to it. Within the four corners of this statute applicable to this contract we see this plain distinction between “condition” and “warranty,” which has I venture to think been rather overlooked in this case by the majority of the judges in the Court of Appeal. I concur respectfully in the motion which has been made by my noble and learned friend on the Woolsack.Lord Shaw —The judgment of Fletcher Moulton, L.J., appears to me, had I not had the pleasure of listening to the judgments which your Lordships have pronounced, to cover this case, and I feelPage: 622 ↓
Judgment appealed from reversed.Counsel for Appellants— Shearman, K.C.— Herbert Smith. Agents— Rooke & Sons, Solicitors.Counsel for Respondents— Atkin, K.C.— Cecil Walsh. Agents— Andrew Walsh, Gray, & Rose, Solicitors.