(y) Hawes v. Lawrence, 4 Comst. 346. The plaintiff, through a broker, sold the defendant a quantity of linseed oil, as stated in the sale notes, " to arrive per ship Marcia from Liverpool, sailed on or about the 15th of March ult." The vessel did not leave the London docks until the 26th of March, and had an uncommonly long passage. Upon arrival, the defendant refused to accept the oil, and the plaintiff sued for the breach of contract. In giving judgment, for the plaintiff, Pratt, J., says: " Although it is by no means free from doubt, I am inclined to the opinion that no warranty was intended by the parties. If, in the first place, the time of sailing had been deemed important by the parties, and likely to affect materially their interests, it is somewhat strange that they had not specified a particular day, after which if the vessel should sail, the contract should be void. The fact that the time was left vague raises a strong presumption that the parties did not intend to make the time of sailing a material part of the contract. Neither party knew the exact time of sailing, but both supposed it was near the 15th. Again, if these words amount to a warranty, the plaintiff would have been liable to the defendant for any damages which he might have suffered in consequence of the delay. Nay more, if for any cause the vessel had failed to sail altogether, the plaintiff would have been responsible for any loss of profits in the adventure which the defendant might have sustained. I cannot think that the parties would have couched a provision so important in its bearing upon their interests, in so uncertain and vague terms. I think it should be construed rather as a mere representation of the belief of the factor, which, in the absence of any fraud or intentional misrepresentation, cannot affect the contract." In Ollive v. Booker, 1 Exch. 416, - which was an action for not loading a vessel in pursuance of the terms of a charter-party, which stated the vessel to be " now at sea, having sailed three weeks ago, or thereabouts," whereas, in point of fact, the vessel had not sailed three weeks before, but only two weeks, - it was held, that the time at which the vessel sailed was material, and that the statement in the charter-party amounted to a warranty. Parke, B., in giving judgment in this case, says "Here it is stated that the vessel was now at sea, having sailed three weeks; and, if the time is of the essence of the contract, no doubt it is a warranty, and not a representation. So also is the case in policies of insurance. It appears to me that it is a warranty, and not a representation, that the vessel had sailed three weeks. It is, therefore, a condition precedent. The rule depends upon each particular contract, and here time was of the essence of the contract, as much so as the statement that she was a sound vessel." (z) Hawes v. Humble, 2 Camp. 327, n.

A sale of goods to arrive imports that they are merchantable, and conformable generally, in their condition and appearance, to that which would be understood by the trade, from the terms of description used in the contract; (a) for the contract being * conditional and executory, the rule of the common law, Caveat emptor, does not apply; but rather the rule of the civil law, Caveat venditor. Where an examination of the goods is morally impracticable, as in the case of goods Bold before their arrival, it seems but reasonable and just that this implication should be attached by courts to the contract. (b)

This was an action for a breach of contract, by non-delivery of a quantity of barilla, sold on arrival by a named vessel. The barilla did not arrive in the vessel. Wood, B., in giving judgment for the defendant, was of opinion that the contract was conditional; but intimated, that if any negligence could have been proved against the captain, he would have received the evidence. The question was carried before the Court of King's Bench, where the judges unanimously agreed that the contract was conditional, and that if there had been any fraud on the part of the defendant, the plaintiff's remedy was in an action for deceit.

(a) Cleu v. McPherson, 1 Bosw. (N. Y.) 480. The defendant having bought of the plaintiff " 25 bales of French walnuts," to arrive per ship H. E. Miller, then on her way from Havre to New York, and received a broker's bought note of the bargain, corresponding with a sale note delivered by the broker to the plaintiff upon the arrival of the goods, refused to receive or pay for them, on the ground that the nuts were not merchantable, but unsound, damaged, and injured. The plaintiff sued for breach of contract, and the question of law, whether the sale notes of themselves, and without any extraneous testimony, implied that the walnuts were and should be merchantable, was reserved for the Court at General Term. The court (Hoffman, J.), in giving judgment for the defendant, say: " in the present case the complaint states, that the plaintiff, being in expectation of receiving a large quantity of French walnuts, by the ship H. E. Miller, agreed to sell 25 bales of the walnuts so expected; and this part of the complaint may be treated as admitted. The witness Paddock states that he showed to the defendant McPher-son, the whole pile of nuts on the wharf, landed from the vessel, that there were 100 bales of them, and told him he could have any ho wished. The case is then made out of a sale purely conditional and executory; of the sale of an article then about being shipped at a foreign port, or then upon the seas; of a of a parcel or number, out of an aggregate larger mass. not specially defined and determined. In such a case, we are of the opinion that there is an implied engagement in the contract itself, that the article shall be merchantable. It may be more appropriate to Bay, that this is a condition of the agreement for a sale, than an implied warranty. It may also be that the rule can be carried further and applied to a case where the article is specific and defined; but it is needless to go this length for the decision of the present cause." - Gorrissen v. Perrin, 2 C. B. (N. s.) 681. In this case it appeared that the defendant had contracted to sell to the plaintiff a certain number of "bales of gambler," then at sea, on the way to London, and tendered in fulfilment of his contract the requisite number of packages of the article received by him by the vessels named in the contract. These packages were much smaller than the article known in the usages of trade as a "bale of gambier," containing only about one-third the quantity, and the plaintiff refused to receive them, and sued for the breach of contract in the non-delivery of the "bales" thereby meant. The court below admitted evidence upon the question of what was regarded as a " bale," l>_\ the usage of trade. The question as to the construction of the contract upon this point, went up to the Court of Common Bench, and it was there decided that the contract called for the specified number of " bales," of the usual size and weight, as recognized by the terra in the gambier trade. See also Wright v. Hart, 17 Wend, 267; 18 Wend. 449: Chanter v. Hopkins, 4 M. & W. 399; Hyatt Boyle, 5 G. & J. 110.