Eng., her port of call, in good season.

The plaintiff then paid the full price for the cargo, received the shipping documents and sent the vessel to Amsterdam, her port of discharge. The plaintiff alleged that the rice proved inferior in quality to what he bargained for, and proviso that goods of the kind and quality contracted for are shipped on the vendor's account, and instead thereof a cargo of an inferior description of the same kind of goods should be shipped, the vendor would not in that event be liable for a breach of warranty; nor could the purchaser claim the delivery of such cargo, with the stipulated reduction in price for inferior quality, if the vendor has not expressly bound himself to deliver what may be shipped on his account, and in conformity with his invoice. (m) sued for damages. The result of the evidence at trial was, that the rice shipped was not fair, average Necreuzie. A verdict was found for the plaintiff, with leave for defendant to move to enter a verdict for him, if the court should be of opinion that the contract did not contain a warranty. Upon the argument before the Court of Common Bench, the defendant contended that the contract contained no warranty, but a condition merely; that he was bound to deliver whatever cargo was shipped, but not any particular cargo; and that the purchaser, on the other hand, was not bound to take the cargo unless it was of the description contracted for. The court decided unanimously, that, except in the cases in which it was provided that the contract should be void, there was a warranty on the part of the vendor that he would ship and bring home a cargo of Necrenzie rice, and that it should be fair, average Necrenzie. The rule was accordingly discharged. Cockburn, C. J., in his opinion says: " Looking at the whole, I think the true construction of the contract is that there is a warranty by the seller that a cargo of fair, average Necrenzie rice shall be shipped, with a stipulation in favor of the buyer that he may either claim performance of the warranty, or claim the rice which absolutely arrives; and that if he does take a cargo with inferior rice amongst it, he may take advantage of the contract to deliver fair, average Necrenzie rice, and claim a deduction for Larong or Latoorie rice. No question arises here as to Laroug or Latoorie, for none came. The plaintiff is therefore entitled to recover on the warranty of fair, average Necreuzie rice." Creswell, J., in delivering his opinion, seemed to view the stipulation for a fair allowance of Larong and any other inferior description of rice as a mode provided by the contract for satisfying the breach of the warranty in case there was a mixture of such inferior descriptions in the cargo, saying that, " as there was no stipulation of that nature as to Necrenzie rice of inferior quality, in case any should be shipped, the parties must be presumed to rest on the contract as to that."

(m) Vernede v. Weber, 1 H. & N. 311; 38 E. L. & E. 277. This was an action on contract for the non-delivery of a cargo of rice sold by the defendant to the plaintiff. By means of bought and sold notes the plaintiff bought of the defendant " the cargo of 400 tons, provided the same be shipped for seller's account, of Necrenzie rice, more or less of the average quality as shipped per Minna, to proceed from Akyab to a port in the channel for orders, at 11s. 6d. per cwt. for Necrenzie rice, or at 11s. for Larong, the latter quality not to exceed 50 tons, or else at the option of buyers, to reject any excess; to be paid for in cash on the arrival of the vessel at the port of call, on delivery of bills of lading, charter-party, and policy of insurance; should the vessel be lost before the arrival at the port of call, this contract to be void." The vessel arrived at the port of call with a cargo of rice, consisting of about two-thirds Larong and one-third Latoorie, and with no Necrenzie whatever. The plaintiff claimed that there was a breach of warranty in not shipping a cargo of Necrenzie rice, and a breach of the contract in not delivering the cargo shipped. The defendant denied the warranty, and the obligation to deliver the cargo received, it not being Necrenzie rice. The case came before the Court of Exchequer upon these questions, and upon both points the judgment was given for the defendant. By Alderson, B., for the court: " We think there is no such warranty in this contract as would support the first breach. The cargo contemplated by both parties - for no fraud was imputed - was one principally of Ar-racan Necreuzie rice. This was not an absolute contract; it was subject to the proviso that such a cargo should be shipped; and we are of opinion that there was no absolute warranty that the rice

A sale of a cargo at sea, with a transfer of all the indicia of * property, is a different contract from a simple sale of goods to arrive, as we have before intimated, and necessarily imports that the purchaser is to be holden, whether the cargo arrives or not. But this sale must be subject to the conditions that the cargo is in existence at the time of the contract, and within the power to sell of the vendor, at that time. Fur if the cargo has previously been destroyed, there is nothing to which the contract can attach; and if the property has already been disposed of by an authorized agent of the vendor, so as to be beyond the control of the latter, the purchaser cannot be called on to fulfil the contract, though he may have the right to hold the vendor responsible for non-performance on his part. A case in which the vendor's right, under such circumstances, was adjudicated, came before the House of Lords on writ of error from the Exchequer Chamber, and the decision of the House, sustaining that of the Exchequer Chamber, was against the liability of the purchaser. The policy of insurance upon the cargo at sea had been transferred to the purchaser at the time of sale, but the cargo had already been destroyed as cargo, by damage, at the time the sale was made, though this was then unknown to the contracting parties. It was contended for the owner that the interest secured to the purchaser by the transfer of the policy of insurance was a sufficient support to the contract. The decision of the House of Lords against the vendor was upon the ground that the parties must have contemplated by the contract that there was an existing something to be sold and bought, and if sold and bought, then the benefit of insurance should go with it. (n) shipped should be of this quality." . . . " We are of opinion that the plaintiff is not entitled to the delivery of the entire cargo. We think the contract was not for such cargo of rice as the vessel should bring to Europe, but for rice, the price of which was fixed and agreed on between the parties. If the plaintiff was entitled to the Arracan Necrenzie rice, a jury must determine, in the event of a difference of opinion, the price to be paid; and we do not think either party contemplated the sale of rice which was not at a stipulated price, and which was to be left to the determination and decision of a jury." The plaintiff having also claimed that he was entitled at all events to a delivery of that part of the cargo received which was composed of Larong rice, the court decided upon this point, that, the contract being entire, and there being in the cargo none of the kind which constituted the principal subject of the contract, the plaintiff could not insist upon the deliver) of that kind which was, by the terms of the contract, to form only a subsidiary part of the cargo to be shipped.

(n) Couturier v. Hastie, 8 Exch, 40; 9 Exch. 102; 5 H. J.. Cas. 678, In this case a merchant of Smyrna sued his factor in London for the value of a cargo of corn Bold by the latter on a del credere commission. The factor sold the cargo at "free on board, including freight and insurance." and the contract described the corn " as of average quality when shipped." Before the date of the sale, the vessel, while on her voyage home, had put into a foreign port, in consequence of the corn getting heated in the early part of the voyage to render it impossible to bring it to England, and the cargo had been landed, con-