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- et Uxorv. Midland
Railway Company .. 961
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| Moss v. Tribe ......
Houlder v. The General Steam Ogden v. Rummens
223 | Perez v. Alsop ...... 188
Pool v. Whitcombe ...
Quilter v. Jorss .........
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Kelly v. Lawrence ...... 826 v. Burton
279 v. Colucci.....
Laing v. Smith...
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Lee v. Dixon ...........
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Longman and Others v. The
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736 0. Murton ..
834 Seymour v. Butterworth...... 372
o. United Kingdom Tele Stuckey v. Bailey
graph Company .... Swaby v. Vallez ......... 230
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Richardson v. Neaves and An-
Turner v. Barlow
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209 Witherley v. Regent's Canal
Scott v. Wakem ............ 328 Woodward v. Peto .......... 389
STUCKEY v. BAILEY.
Spring Assizes. THE first count stated that the defendant, by falsely A contract by
r. parol, or by warranting that a ship was sound, sold it to the plaintiff'; letter whereas it was not sound.
into for the sale Second count, on a false representation.
of a ship, with Pleas: denying the warranty, the breach, and, to the subsequent bill
of sale, not second count (on which nothing turned), not guilty.
contract of M. Smith and Cole for the plaintiff.
destroy the Karslake and Kingdon for the defendant.
previous war ranty, sup
posing there is The parties lived at a distance from each other, and no evidence
that the parties there had been some letters between them in February and did not intend March, in which the contract was concluded, and which
warranty, does not necessarily
"continue. VOL. III,
hat it should
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 (6), 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 Duncun 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.
(6) 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 H. & N. I, 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.