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Again: if Mr. Blank gives an order, which is
not executed according to his instructions, he
may return all, or a part of, the articles. Take
the case of a gentleman who ordered two dozen of
port, and a like quantity of sherry, but to whom
the enterprising merchant sent four dozen of each.
Having tasted a bottle of the sherry, the gentleman
found it was not of the quality he expected,
and, upon this, sent back the remainder of the
sherry, but retained one dozen of the port. You
are liable to paysaid the legal authorities before
whom the question whether the gentleman was
to pay for the whole of the wine sent, or not, was
subsequently discussedfor the wine which you
retained, and for no more.

It is a different matter, however, if Mr. Blank
purchase a specific article under a warranty and
has once accepted it. Should he be disappointed
with his purchase under these circumstances, he
cannot return the article, but, having paid for
it, may bring an action for the damage which he
has sustained.

Thus (to quote an instance from that most
prolific source of litigation, "horse-dealing"), a
man bought a horse warranted sound, kept him
for one day, sold him the next, and repurchased
him the day following: discovering at last that
the animal was unsound. Of course, he immediately
brought an action against the dealer who
had originally warranted the horse, but he could
not compel that disingenuous individual to take
back the unsound animal. It was said by
Lord Tenterden, however, in the course of this
case, that "though a person who buys a specific
article delivered with a warranty may not have
a right to return it, the same does not apply to
executory contracts when an article, for instance,
is ordered from a manufacturer who contracts
that it is of a certain quality"—the wine
manufacturer above mentioned no doubt professed
that his sherry was a very high flavoured
Amontillado—"or fit for a certain purpose, and the
article is never completely accepted by the
person ordering it. In this and similar cases
the latter may return it as soon as he discovers
the defect, provided he has done nothing more
in the mean time than give the article a fair

To carry the doctrine a step further: we
find it stated by Mr. Justice Erskine, that,
"when a party undertakes to supply an article
for a particular purpose, he warrants that
it shall be fit and proper for such purpose."
And this applies, as will be seen from the
following case, even where the person supplying
the article is not the actual manufacturer:

A wine-merchant in want of a crane rope
sent his clerk to a ropemaker, to purchase one.
On the following day, the foreman of the
ropemaker called at the merchant's office, and, after
inquiring what description of rope was required,
and taking dimensions, stated that it would
be necessary to manufacture a new rope. The
rope having been made accordingly, was sent to
the wine-merchant, but broke in the using: causing,
at the same time, the loss of a pipe of wine.
This led to an action against the man from whom
the rope was purchased. In defence, it was
stated that, though calling himself a ropemaker,
the person who furnished the rope had not, in
fact, actually manufactured it, but had sent it to
a ropemaker to be made; that, consequently,
there was no implied warranty, and, therefore,
he (the seller of the rope) was not liable. This
would not do. "Here the defendant," said Mr.
Justice Erskine, "did not make the rope, but he
selected a person to make it, and he had an
opportunity of informing him of the purpose
for which the article was wanted. If he did
not do so, it was his own fault. Having undertaken
to supply a rope for the plaintiff's crane,
he is clearly liable to the action, the jury having
found that it was not a rope fit for the

Should the purchaser, however, select any
particular article himself, he cannot inflict any
legal penalty upon the seller, if it turn out
unfit for the purpose for which it was purchased:
even though the tradesman knew at the time
of sale that it was unfit. The skill and judgment
of the vendor, in that case, are not relied
on, and there is, by consequence, no implied

"If a man goes into the stable of a horse-
dealer," said Mr. Baron Parke, "and says, 'Send
me that bay horse that stands there in the third
stall, to draw my carriage,' then the article wanted
is defined and ascertained, and the horse-dealer
does all he need do, if he sends the horse,
whether he will draw the carriage or no."

So, if Mrs. Blank go into a shop and purchase
ribbons, asking the shopkeeper, in the first
instance, "Are these colours fast?" and if
Mrs. Blank be assured that "they are fast,"
whereas they turn out to be wretchedly fleeting,
she, or Mr. Blank on her behalf, will have a
remedy against the shopkeeper.

On the other hand, let us suppose that
happy couple to be sauntering down Regent-
street. Mrs. B is attracted by a lovely
bonnet, and, directing Mr. B's attention to it,
explains to him that it is mauvethat mauve is
a new colour which never fades. Upon the
strength of this announcement, and without
making further inquiry of the shopkeeper, Mr.
B, like an exemplary British husband, purchases
the bonnet, which turns out to be a very
chameleon for variation of colour. In this case,
Mrs. B must wear the bonnet, and make the
best of it.

Another important point in shopping law is
worth mentioning. If Mr. Blank should give
an order for goods which are actually being
manufactured at the time, he does not acquire any
property in the specific goods, even though he
pays for them beforehand. As Mr. Justice Heath
has said, "A tradesman often finishes goods
which he is making in pursuance of an order
given by one person, and sells them to another.
If the first customer has other goods made for
him within the stipulated time, he has no right
to complain."

There are exceptions to this rule. If Mr.
Blank were to give his tailor cloth to make him