REPORTS OF CASES

DECIDED AT

NISI PRIU S,

&c. &c.

WESTERN CIRCUIT.

Winchester, coram Byles, J.

STUCKEY v. BAILEY.

THE first count stated that the defendant, by falsely

warranting that a ship was sound, sold it to the plaintiff;

whereas it was not sound.

Second count, on a false representation.

1862.

Spring Assizes.

A contract by letter, having

parol, or by

been entered into for the sale

of a ship, with a warranty, a

Pleas denying the warranty, the breach, and, to the subsequent bill second count (on which nothing turned), not guilty.

M. Smith and Cole for the plaintiff.

Karslake and Kingdon for the defendant.

The parties lived at a distance from each other, and there had been some letters between them in February and March, in which the contract was concluded, and which

VOL. III.

B

F.F.

of sale, not containing any contract of

warranty, does not necessarily destroy the previous war. ranty, supposing there is no evidence that the parties did not intend

that it should continue.

1862.

STUCKEY

V.

BAILEY.

went to show a warranty in the terms stated. The plaintiff saw the vessel, and oral communications had passed between him and the master.

On the 23rd of April, 1860, the bill of sale was executed and registered, as required by the Merchant Shipping Act (a). And it contained no warranty.

It turned out that the masts were unsound.

Evidence was offered on the part of the defendant that, after the first of the letters, the plaintiff had seen the ship, and that he had been told that if he desired to be satisfied as to the masts, he must have them examined. And it was contended that the bill of sale precluded the action.

BYLES, J. (after consulting BLACKBURN, J.), rejected the evidence (b), and held that the letters amounted to a warranty; and that it mattered not that the plaintiff might possibly have found out the defects. The only question was, whether there had been a breach of the warranty (c).

(a) In Duncan v. Tindal, 13 Com. B. Rep. 258, it was held that even an executory contract for the sale of a ship is not valid unless registered as a bill of sale. But, though this shows that a contract cannot be without a bill of sale, it does not show that there can be no contract except what is in the bill of sale; and in Chapman v. Callis (Vol. II., p. 161) the contrary was held. And though that case went into banc (9 C. B., N. S. 769), it was not overruled on that point.

(b) The learned Judge, in effect, ruled not to reject evidence that the plaintiff did not complete the purchase relying on the warranty (Incledon v. Watson, Vol. II., p. 841); but that the mere fact that the plaintiff might, by inspection, have found out the defect, was not an answer; Ferrier v. Pea

cock, Vol. II., p.717. And WILLES, J., seemed to approve of the ruling, and cited Harris v. Ricketts, 4 II. & N. 1, and Myers v. Willis, 17 C. B. 77, in support of it.

(c) This, of course, implied that there might be a warranty by the previous letters, although the bill of sale did not embody it. That would be in accordance with the ruling in Chapman v. Callis (Vol. II., p. 161), and with the authorities and analogies. In the case of a mortgage, there is no merger of the previous simple contract to repay the money, unless there is a covenant to repay it. See Aston v. Yates, 4 Q. B. Rep. 182. And under the Merchant Shipping Act the bill of sale is not necessarily a contract at all; it is alio intuitu. See Liverpool Borough Bank v. Turner, 30 L. J., Ch. 379.