Monforts V. Marsden Case Study

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Judicial Consideration or Case History Available

*387 Niblett, Limited v Confectioners' Materials Company, Limited
In the Court of Appeal
19 April 1921

[1920. N. 744.]
[1921] 3 K.B. 387
Bankes L.J. , Scrutton L.J. , Atkin L.J.
1921 April 15, 19
Sale of Goods—Infringement of Trade Mark—Implied Condition—Warranty—Right to sell—Quiet
Possession—Merchantable Quality—Goods of several Brands—Vendor's Option—Circumstance negativing implied Warranty—Sale of Goods Act, 1893 (56 & 57 Vict. c. 71), ss. 12, 14 .
By s. 12 of the Sale of Goods Act, 1893 , “In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is—
(1.) An implied condition on the part of the seller…show more content…
There is much to be said for the view of Bailhache J. that the circumstances of the contract in Monforts v.
Marsden 12 were such as to negative the implied condition that the vendor had a right to sell the machine; but in so far as it decides that the vendor had fulfilled the condition, I think the decision is erroneous and ought to be overruled.
ATKIN L.J.
This was an action for breach of warranty on the sale of goods. The first question is, What was the contract between the parties? In my opinion it was contained in the two documents dated August 18,
1919. Every essential term of the contract is recorded in those documents. The respondents however suggest that though the documents speak of 3000 cases there was a term not expressed in writing that the milk to be supplied should be milk of three named brands and that the vendors might at their option deliver *400 milk of the “Tuscan,” “Freedom,” or “Nissly” brand. In my view this suggestion is inadmissible, because the parties intended to embody the whole contract in writing, and this suggested term is inconsistent with the writing; or, if it is sought to introduce it as a collateral term