Mistake as to the quality of a thing sold.

The rule is caveat emptor.

(y) See above, p. 63.5, and n. (e); Stewart v. Kennedy, 15 App. Cas. 108, 121; cf. above, p. 639.

(z) Above, pp. 27, n. (b), 155 - 158.

(a) See Scott v. Littledale, 8 E. & B. 815: Benjamin on Sale, 45, 2nd ed. For an instance of a collateral warranty on a sale of land, see De Lassalle v. Guildford, 1901, 2 K. B. 215 (warranty that the drains of a house were in good order).

(b) See Smith v. Hughes, L. R. 6 Q. B. 597, 607 - 611; Stewart v. Kennedy, 15 App. Cas. 10S, 121.

(c) Edwards- Wood v. Majori-banks, 7 H. L. C. 806, 809 - 811; Sug. V. & P. 335; above, p. 539.

Defect of quality amounting to a defect of title.

No warranty of quality implied by the sale of land.

Latent defects of quality.

(d) Above, p. 540.

(e) See below, p. 686.

(f) Ashburner v. Sewell, 1891, 3 Ch. 405; above, p. 540. See also Wilde v. Gibson, 1 H. L. C. 605, where the defect, if discovered before conveyance, would certainly have been a good ground of objection to the title; above, pp. 540, 576, 577.

(g) Sutton v. Temple, 12 M. & W. 52; Bart v. Windsor, ib. 68; Keates x. Cadogan, 10 C. B. 591; Wilson v. Finch Hatton, 2 Ex. D.

336, 342, 343. These are all cases of agreement to lease land: but the principle is exactly the same in the case of an agreement to sell land; see above, p. 78, n. (7c). And the case of a lease seems stronger than that of a sale, since occupation leases are generally taken with the object of using the land in some particular way, as farming it.

(h) Keates v. Cadogan, 10 C. B. 591; Cook v. Waugh, 2 Giff. 201.

Unknown latent defects.

Latent defect known to the vendor.

Sale of a thing with all its faults.

The rule in equity as to mere silence about a defect of quality.

(i) Lucas v. James, 7 Hare, 410, 418; see Hope v. Walter, 1899, 1 Ch. 879, 883, reversed, 1900, 1 Ch. 257; below, p. 687.

(k) See Parkinson v. Lee, 2 East, 314, 322, 323, 324; Bywater v. Richardson, 1 A. & E. 508; Chanter v. Hopkim, 4 M. & W. 399; Corn-foot v. Fowke, 6 M. & W. 358 (the correctness of the decision in this case is discussed in the next Chapter: but it seems clear that if there had been no representation at all, there would have been no cause of action); Gompertz v. Bartlett, 2 E. & B. 849, 855; Jones v. Just, L. R. 3 Q. B. 197, 202; Ward v. Hobbs, 4 App. Cas. 13, 24, 25, 29. Note that the statement in Horsfall v. Thomas, 1 H. & C. 90, 100, as to a manufacturer's duty to disclose a defect known to him and not discoverable by inspection applies only to a contract to make a particular thing to order, when there is an implied warranty that it shall be reasonably fit for the purpose for which it is ordinarily used or specially ordered; Jones v. Just, L. R. 3 Q. B. 197, 203; Ben-jamin on Sale, 525, 2nd ed. Horsfall v. Thomas does not therefore support the proposition in Fry, Sp. Perf. Sec. 708, for which it is vouched.

(1) Baglehole v. Walters, 3 Camp. 154; Pickering v. Dowson, 4 Taunt. 779; Ward v. Hobbs, 4 App. Cas. 13; Benjamin on Sale, 384, 2nd ed.; Sug. V. & P. 333, where note that the proposition stated at the beginning of Sec. 21 cannot be maintained; see n. (n), below.

(m) Brownlie v. Campbell, 5 App. Cas. 925.

Lucas v. James.

(n) Lucas v. James, 7 Hare, 410, 418; Hope v. Walter, 1899, 1 Ch. 879, 883. Note that the rule there stated is qualified with "perhaps"; and that the statement of the law in Sug. V. & P. 2, 333, which the rule purports to follow, was apparently founded on a case of Mellish v. Motteux, Peake, 115, expressly overruled in Baglehole v. Walters, 3 Camp. 154; and Pickering v. Doicson, 4 Taunt. 779. Dart, V. & P. i. 103, simply follows Sugden's statement.

(o) 7 Hare, 410.

2(2)

Silence of the purchaser about a fact enhancing the value.

{p) Sug. V. & P. 333, 334: but see p. 335.

(q) Above, p. 682, and n. (k); below, p. 689.

(r) See Expte. Whittaker, L. R. 10 Ch. 446; Brownlie v. Campbell, 5 App. Cas. 925, 932, 937, 938, 944, 950, 954.

(s) Fry, Sp. Perf. Sec. 705, 713.

(t) Turner v. Green, 1895, 2 Ch. 205, where specific performance of an agreement to compromise an action was enforced at suit of one, who had, on making the agreement, kept silence as to the fact that he had just been defeated in a step in the proceedings; Greenhalgh v. Brindley, 1901, 2

Ch. 324, where specific performance was enforced at suit of a vendor, who had sold a house with windows overlooking a stranger's land, and had not mentioned that he only enjoyed access of light by the stranger's licence; see above, p. 563, n. (i); Re Ward and Jordan's Contract, 1902, I. R. Ch. 73.

(u) Fox v. Mackreth, 2 Bro. C. C. 400, 420; Turner v. Harvey, Jac. 169, 178; Walters v. Morgan, 3 De G. F. & J. 718, 723; Coaks v. Boswell, 11 App. Cas. 232, 235, 236; Percival v. Wright, 1902, 2 Ch. 421, 426; Sug. V. & P. 5; 1 Dart, V. & P. 118; Fry, Sp.

Specific performance maybe refused on grounds of unfairness or hardship.

Perf. Sec.713, 714. It is submitted that the dictum of Kindersley, V.-C, to the contrary in Falcke v. Gray, 4 Drew. 651, 5 Jur. N. S. 645, 646, is opposed to the main current of authority and would not now be followed; see Fry, Sp. Perf. Sec. 444 - 446.

(x) Above, pp. 31, 32; below, n. (z), and pp. 694, n. (u), 695, n. (z).

(y) See Wedgwood v. Adams, 6 Beav. 600; Watson v. Marston, 4 De G. M. & G. 230; Falcke v. Gray, 4 Drew. 651, 659; Webster v. Cecil, 30 Beav. 62; Durham v. Legard, 34 Beav. 611; Preston v. Luck, 27 Ch. D. 497, 506: Rudd v. Lascelles, 1900, 1 Ch. 815, 820; Goddard v. Jeffreys, 30 W. R. 269, 270; Van Praagh v. Everidge, 1902, 2 Ch. 266, 271, reversed on other grounds, 1903, 1 Ch. 434; above, pp. 638, 678; below, p. 693.

(z) See Ellard v. Llandaff, 1

Ball & B. 241, where a lessee for a life negotiating for a new lease concealed the fact that cestui que vie was at the point of death: this decision is, however, adversely-criticised in Turnery. Green, 1895, 2 Ch. 205; Fothergill v. Phillips, L. R. 6 Ch. 770, where a purchaser concealed the fact that he had wrongfully abstracted a large quantity of minerals from under the land sold; Fry, Sp. Perf. Sec. 402, 715, 717.