ANDREWS BROTHERS (BOURNEMOUTH), LIMITED CA
SINGER AND COMPANY, LIMITED.
Sale of goods—-Contract for sale of ” new Singer car “—Delivery of car not a ” new Singer car “—Exclusion by terms of contract of ” all conditions, warranties and liabilities implied by statute, common law or otherwise.”
By a written agreement the defendants appointed the plaintiffs sole dealers within a named area for the sale of ” new Singer cars,” and the plaintiffs agreed to purchase from the defendants a certain number of those cars. Clause 5 of the agreement was in these terms : ” All cars sold by the company [the defendants] are subject to the terms of the warranty set out in Schedule No. 3 of this agreement, and all conditions, warranties and liabilities implied by statute, common law or otherwise are excluded.” By the warranty contained in Schedule No. 3, which was expressed to be limited to new vehicles manufactured by the defendants and to be ” in lieu of any warranty (or condition) implied by common law, statute, or otherwise,” the sole obligation of the defendants was to repair or replace within twelve months of the delivery of the vehicle any fault disclosed where this was due to defective material or workmanship.
The plaintiffs gave an order to the defendants for a new Singer car and a car was delivered to and accepted by the plaintiffs which by reason of it having already run a considerable mileage was not a new car within the meaning of the contract. On a claim by the plaintiffs for breach of contract in supplying a car which was not a new car, the defendants relied upon Clause 5 of the agreement as exempting them from liability.
Held, that the term ” new Singer car ” was an express and not an implied term of the contract, and that as a ” new Singer car ” had not been delivered the defendents were liable for breach of contract and could not claim exemption from liability by the terms of Clause 5.
Decision of Goddard J., affirmed.
APPEAL from a decision of Goddard J.
The plaintiffs sued the defendants, claiming damages for breach of contract in respect of the sale of a motor-car. By what was described as a ” Main Dealers’ Agreement,” dated August 1, 1931, the defendants appointed the plaintiffs their sole dealers within a named area ” for the sale of new Singer cars,” and the plaintiffs agreed to purchase from the defendants a certain number of those cars. Clause 5 of the agreement was in these terms :—” All cars sold by the company [the defendants] are subject to the terms of the warranty set out in Schedule No. 3 of this agreement, and all conditions, 1933 warranties and liabilities implied by statute, common law or otherwise are excluded.”
The warranty set out in Schedule No. 3 was as follows : – “We warrant that in the manufacture of new vehicles we have taken all precautions which are usual and reasonable to secure excellence of material and workmanship, and we undertake that if any defect is disclosed in any part of a new vehicle within twelve months of the date of delivery of such vehicle we will (provided such defective part is returned to our works, carriage paid) examine the part alleged to be defective, and if, on such examination, the fault is due to defective materials or workmanship, for which we are responsible, we will repair or replace the defective part free of charge. The foregoing warranty is limited to new vehicles manufactured by us, and is in lieu of any warranty (or condition) implied by common law, statute or otherwise, as to the quality or fitness for their purpose of any goods manufactured, replaced or repaired by us, every such implied warranty (or condition) being in all cases excluded, and our liability under the terms of this warranty is strictly limited to the replacement or repair and despatch to the sender, carriage forward, of the part replaced or repaired. . .”
In pursuance of the agreement the plaintiffs sent an order to the defendants, for one 18 h.p. 6-cylinder Singer saloon car, and the defendants agreed to deliver it on March 9, 1932. The plaintiffs alleged that it was an express term and/or an implied term that the car should be a new car of the defendants’ manufacture. Delivery of the car was taken at the defendants’ works at Birmingham by the plaintiffs’ managing director, who noticed that the speedometer, bore the reading 550 odd miles, and who found in the pocket of the car a parking ticket issued at Leicester, and from these he knew, as the judge found, that the car had run a considerable distance. The plaintiffs’ representative at the time asked no questions regarding this, and the car was delivered to the plaintiffs at Bournemouth.
It appeared from the evidence at the trial that before its purchase by the plaintiffs the car had been sent to Darlington to be shown to a prospective customer, but, as he did not buy it, it was driven back to Birmingham, where it was adjusted, and was, at the time of the sale to the plaintiffs, as the judge found, in good mechanical condition.
The plaintiffs alleged that by reason of what had taken place the car was not a new car ; that they had lost the profit on resale of a new car, and had been put to expense in and about taking delivery and examination of the car; and in respect of this they claimed damages.
The defendants pleaded that the plaintiffs’ representative in the exercise of his own skill and judgment took delivery and paid for the car as a new car. They denied that they were guilty of any breach of agreement, and, further, they pleaded that if the car was in fact depreciated or was defective in any way (which they denied) their liability was limited to the repair or replacement of defective parts, and as these had not been returned they were under no liability to the plaintiffs.
Goddard J. held that the car was not a new car when sold to the plaintiffs ; that the defendants’ obligation was to sell and deliver a new car ; and that as a new car had not been delivered the plaintiffs were entitled to damages, which he assessed at 50 l., and in addition he gave them certain expenses to which they had been put.
The defendants appealed.
Pritt K.C. and R. A. Willes for the appellants. We do not contest the finding arrived at by Goddard J. on the evidence before him that the car supplied to the respondents was not a new car within the meaning of the contract, but we say that the respondents having taken delivery of the car are precluded
from claiming damages by reason of clause 5 of the agreement— a clause going beyond that which was relied upon in Wallis, Son & Wells v. Pratt & Haynes
1 where the relevant clause was in these terms : ” Sellers give no warranty, express or implied as to growth, description, or any other matters.” It will be observed that the word ” condition ” was not included, and it was pointed out in the House of Lords that a plain distinction is drawn in the Sale of Goods Act, 1893, between a “condition” and a “warranty.” The same was pointed out in Baldry v. Marshall 2. In this exemption clause the term ” condition ” is included. By the contract there is a description of the car sold as a new car, and from that under s. 13 of the Sale of Goods Act, there would be an implied condition that the car should correspond with the description were it not for clause 5 which in terms excludes ” all conditions, warranties and liabilities implied by statute, common law or otherwise.” The respondents accepted the car and thus waived the only right they had, namely, the right to reject it. [They also cited Bridge v. Wain 3 and Barr v. Gibson 4].
Monckton K.C. and Maitland Walker for the respondents were not called upon.
SCRTTTTON L.J. This is an appeal from a judgment of Goddard J. in an action by the plaintiffs, a company carrying on business at Bournemouth, owho in the agreement between them and the defendants out of which the dispute has arisen are called agents for manufacturers, which is quite a misleading term inasmuch as they are really purchasers of motor cars which they intend to sell. They brought their action against Singer & Co. alleging that the latter delivered a car which did not comply with the terms of the contract.
The facts which are fully set out in the careful judgment of Goddard J. may be shortly summarised : the description of the kind of car the plaintiffs wanted could have been satisfied by delivery to them of a new car; but the particular car which Singer & Co. tendered to them was in this position. Another
agent, who thought he had in view a purchaser for the car, had it sent to Darlington and thence it was driven some distance further to show to the prospective customer, but as that person did not like it the agent returned it to Singer & Co., the result being that it had run a very considerable mileage with the consequence no doubt that certain changes had taken place in it. When the car was tendered to the plaintiffs’ representative he noticed or suspected that it had run a considerable distance, but he took it, doing nothing, however, so far as I can see, to abandon any claim for damages on the ground that it was not a new car.
At the trial two points arose : First, the plaintiffs said that the car was not a new car as that term was understood in the trade. The defendants on the other hand said it was. Goddard J. came to the conclusion that it was not a new car, and in this Court his decision on that point has not been questioned and I therefore proceed on the assumption that the defendants, who were bound to supply a new car, tendered a car which was not a new one. The defendants contended secondly that they are exempted from liability by reason of clause 5 of the agreement entered into. That clause reads as follows : ” All cars sold by the company are subject to the terms of the warranty set out in Schedule No. 3 of this agreement and all conditions, warranties and liabilities implied by statute, common law or otherwise are excluded.” The defendants say that their obligation to supply a car complying with the description in the contract is a condition implied by statute, and as the plaintiffs accepted the car under the agreement containing clause 5 they cannot bring an action in respect of the supplying of a car which was not a new one. Clause 5 is, I take it, a sequel to Wallis, Son do Wells v. Pratt & Haynes 5. In that case the subject matter of the sale was ” common English sainfoin,” and the contract contained this clause : ” Sellers give no warranty express or implied as to growth, description or any other matters.” What in fact was sold under the contract was not ” common English sainfoin” but something quite different, namely, ” giant sainfoin.” On discovering this the purchasers sued for damages, to which claim the sellers replied that they gave no warranty express or implied as to description.
The Court of Appeal (Moulton L.J. dissenting) took the view that the clause excluded any liability even though the seed supplied was not of the description contracted to be supplied. The House of Lords adopted Moulton L.J.’s judgment and said that the goods tendered should comply with the description in the contract, which description was not a warranty but a condition, and as the clause relied on did not include ” condition ” it did not operate to protect the sellers. Those advising the present defendants in preparing this agreement appear to have thought that by the inclusion of the word ” conditions ” in the relevant clause liability would be excluded, although what was supplied did not comply with the description. The question therefore is whether the defendants have succeeded in excluding liability in this case—whether they can tender under the contract goods not complying with the description in the contract and say that the plaintiffs having accepted the car cannot now sue for breach of contract.
In my opinion this was a contract for the sale of a new Singer car. The contract continually uses the phrase ” new Singer cars.” At the end of the agreement I find this : ” In the event of the dealer having purchased from the Company during the period of this agreement 250 new cars of current
season’s models ” ; and in the very beginning of the agreement I find this : ” The Company hereby appoint the dealer their sole dealer for the sale of new Singer cars.” The same phrase also occurs in other parts of the agreement, and the subjectmatter is therefore expressly stated to be ” new Singer cars.”
The judge has found, and his view is not now contested, that the car tendered in this case was not a new Singer car. Does then clause 5 prevent the vendors being liable in damages for having tendered and supplied a car which is not within the express terms of the contract ? Clause 5 says this: ” All conditions, warranties and liabilities implied by statute, common law or otherwise are excluded.” There are wellknown obligations in various classes of contracts which are not expressly mentioned but are implied. During the argument Greer, L.J. mentioned an apt illustration, namely, where an agent contracts on behalf of A he warrants that he has authority to make the contract on behalf of A although no such warranty is expressed in the contract. Mr. Pritt relied on s. 13 of the Sale of Goods Act, 1893, which provides that “where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description . . . ,” and from that he says it follows that this particular condition comes within the words employed by the section. That, I think, is putting a very strained meaning on the word ” implied ” in the section.
Where goods are expressly described in the contract and do not comply with that description, it is quite inaccurate to say that there is an implied term; the term is expressed in the contract. Suppose the contract is for the supply of a car of 1932 manufacture, and a car is supplied which is of 1930 manufacture, there has not been a breach of an implied term ; there has been a breach of an express term of the contract. It leads to a very startling result if it can be said that clause 5
allows a vendor to supply to a purchaser an article which does not comply with the express description of the article in the contract, and then, though the purchaser did not know of the matter which prevented the article supplied from complying with the express terms of the contract, to say,.” We are under no liability to you because this is a condition implied by statute and we have excluded such liability.”
In my view there has been in this case a breach of an express term of the contract. If a vendor desires to protect himself from liability in such a case he must do so by much clearer language than this, which, in my opinion, does not exempt the defendants from liability where they have failed to comply with the express term of the contract. For these reasons I think Goddard J. came to a correct conclusion, and this appeal therefore fails.
GREER, L.J. I agree. There are two facts that form more or less firm ground on which the judgment can be based. First, it is not disputed that by the terms used in the contract the sale is to be of a new Singer car, and secondly, it was found by the judge, and is not now disputed, that the car delivered and as to which damages are claimed was not a new Singer car. It is said, however, by Singers that inasmuch as the car has been delivered to and accepted by the plaintiffs, and as the time for its rejection has passed, there is a clause in the contract which deprives the buyers of any remedy. It is contended that they are not liable for this breach of contract in delivering an old car instead of a new one, by the express terms of clause 5 of the contract, which says that ” all cars sold by the company are subject to the terms of the warranty set out in Schedule No. 3 of this agreement, and all conditions, warranties and liabilities implied by statute, common law or otherwise are excluded.”
Scrutton L.J. has pointed out that sellers who desire to protect themselves against liability for damages for breach of condition or warranty were probably alarmed by the decision in Wallis, Son & Wells v. Pratt & Haynes 6, and so the vendors in this case have endeavoured to escape the effect of the decision by phrasing the exempting clause differently. In Wallis, Son & Wells v. Pratt & Haynes 6 the clause was in these terms : ” Sellers give no warranty express or implied as to growth, description, or any other matters, and they shall not be held to guarantee or warrant the fitness for any particular purpose of any grain, seed, flour, cake, or any other article sold by them, or its freedom from injurious quality or from latent defect.” In that clause the sellers had not inserted, in addition to the word ” warranty ” the words ” or condition,” and inasmuch as compliance with the description in the clause was held not to be a warranty but a condition, the sellers failed to gain the protection they claimed they had from the clause. In one respect that clause was wider than that in the present case because there the sellers protected themselves against any express warranty that there be in the contract, while those responsible for the wording of the clause in this contract, though they inserted the word ” condition ” left out the word ” express.” It seems to be an odd thing to say with respect to the description of an article sold that the vendor’s obligation to deliver something which is the article sold and which complies with its description in the contract is an implied condition or warranty.
It is quite true that by s.13 of the Sale of Goods Act’, 1893, the words “implied condition ” are used, the section providing that ” where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description . . .” The Sale of Goods Act was intended to be a code for the purpose of removing all difficulties with regard to the interpretation of contracts of sale, as well as to provide for what might be determined to be the legal consequences of such contracts. It may be right to say that the descriptive terms of the contract, though they are express terms, are not expressly made conditions of the contract, and by using the expression ” implied condition ” in s. 13, those responsible for the statute did not mean to say that the obligation to supply the thing described is not an express obligation ; they merely meant to say that the description is not a mere term or a mere warranty but is a condition of the contract by implication of law.
Looking at this contract it seems quite plain that it is one for the sale of a new Singer car and the phrase ” new Singer car ” is an express and not an implied term. Not only is that the case with regard to the body of this contract, but when we look at the guarantee which is to take the place of all warranties and liabilities implied by statute or common law which are excluded by clause 5, we find that the guarantee is to apply to any goods delivered under the contract and is a warranty expressly relating to new vehicles. It cannot be applied to a case where there is no new vehicle at all, because by its very terms the guarantee applies only to repairs to be done within twelve months after the delivery of a new Singer car, and if I did not take the view I have expressed with regard to the contract, apart from the guarantee, I should be prepared to say that the guarantee in itself contains a warranty that the goods which are to be delivered, and in respect of which the warranty is to apply, are to be new Singer cars. For those reasons I think the judgment of Goddard J. was right, and that this appeal should be dismissed.
EVE J. I am of the same opinion and I need add nothing to what has been said.
Solicitors for appellants : Sharpe, Pritchard & Co., for Pridmore
Solicitors for respondents: Barnes tfc Butler, for J. W. Miller, Poole.
- S. H.
1  2 K.B. 1003 ;  A. C. 394.
2 1 K. B. 260.
3 (1816) 1 Starkie, 504.
4(1838) 3 M. & W. 390.
5 2 K. B. 1003;  A. G. 394.
6 2 K.B. 1003;  A. 0. 394.
6 2 K.B. 1003;  A. 0. 394