of the sale is a pledge and irredeemable, and that he is not cognizant of any defect of title to it (39). But if articles are bought in a shop professedly carried on for the sale of goods, the shopkeeper must be considered as warranting that those who purchase will have a good title to keep the goods purchased. In such a case the vendor sells as his own, and that is equivalent to warranty of title (40), and the same rule will apply to the sale of a specific chattel in the possession of the vendor at the time of the sale, and it will be assumed that the vendor is selling as his own unless it be shown by the facts and circumstances of the sale that the vendor did not intend to assert ownership, but only to transfer such interest as he might have in the chattel sold (41).

If the purchaser knows at the time of purchasing that there is a defect in the vendor's title, no warranty can be implied (42).

In all ordinary sales of goods the vendor, by offering it for sale, thereby leads the purchaser to believe that he is the owner; but this applies only to ordinary cases, and not where the vendor is acting in any special character, such as mortgagee or pledgee, or sale by a sheriff under execution, provided the vendor does not by word, act, or deed, give the purchaser to understand that he is selling the goods, and not merely his interest or title therein; and if the transaction is a sale by a pledgee with the concurrence of the pledgor and not a mere transfer of the pledgee's

(39) Morley v. Attenborough 3 Ex. 500.

(40) Eichholz v. Bannister 17 C.B.N.S. 708; Raphael v. Burt I C. & E. 325.

(41) Dickie v. Dunn (1887) 1 N. W.T. Rep. 12 (part I.).

(42) Turriff v. McHugh (1889) 1 N.W.T. Rep. 112 (part I.); Cundy v. Lindsay L. R. 3 A.C. 459.

interest under a bill of lading, there is an implied warranty of title by the pledgee (43).

A sale of personal chattels implies an affirmation by the vendor that the chattel is his, and therefore he warrants the title, unless it can be shown by the facts and circumstances of the sale that the vendor did not intend to assert ownership but only to transfer such interest as he might have in the chattel sold (44).

Re-sale by vendor. Where the goods are of a perishable nature the unpaid seller may without notice. re-sell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract (45).

Lumber and deals exposed to the weather and liable to deterioration under circumstances in which they cannot be stored are 'perishable property' (46).

If the buyer becomes insolvent and his assignee in insolvency, or a sub-purchaser from the debtor, does not tender the price of the goods to the seller who is in possession of them, within a reasonable time, the seller may treat the contract as rescinded without tendering the goods to the assignee, and may also claim against the insolvent estate for damages (47).

Where the unpaid vendor exercising his right of lien or retention gives notice to the buyer of his intention to re-sell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may re-sell the goods and recover from the

(43) Peuchen v. Imperial Bank (1890) 20 Ont. R. 325; Morley v. Attenborough 3 Ex. 500 distinguished.

(44) McFatridge v. Robb (1892) 24 N.S. R. 506,

(45) Maclean v. Dunn 4 Bing. 722.

(46) Bank of Nova Scotia v. Ward (1888) 21 N.S. R. 230.

147) Ex parte Stapleton (1879) 10 Ch. D. 586.

original buyer damages for any loss occasioned by his breach of contract (48).

Where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, then, if such last mentioned transfer was by way of sale the unpaid seller's right of lien or retention or stoppage in transitu is defeated, and if such last mentioned transfer was by way of pledge or other disposition for value, the unpaid seller's right of lien or retention or stoppage in transitu can only be exercised subject to the rights of the transferee; but otherwise the right of lien is not affected by any sale or other disposition of the goods, which the buyer may have made, unless the seller has assented thereto (49).

Reserving right of disposal.-Where there is a contract for the sale of specific goods or where goods are subsequently appropriated to the contract, the seller may, by the terms or the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee or custodier for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled (51).

When goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller is prima facie deemed to reserve

(48) Maclean v. Dunn (1828) 4 Bing. 722, 728.

(49) Dixon v. Yates 5 B. and Ad. 313.

(51) Schotsmans v. Lanc. & York. Ry. Co. (1867) L. R. 2 Ch. App. 332; Ogg v. Shuter (1875) 1 C.P.D. 47.

the right of disposal. If from all the facts it may fairly be inferred that the bill of lading was taken in the name of the seller in order to retain dominion over the goods, that shows that there was no intention to pass the property, but if the whole of the circumstances lead to the conclusion that that was not the object, the form of the bill of lading has no influence on the result (52).

When the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honor the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him (53).

Although the fact of the goods being made deliverable by the bill of lading to the shippers' order prima facie indicates that they intended to reserve the right of transferring the goods, it is not conclusive (54).

Ordinarily a contract of sale is not rescinded by the mere exercise by an unpaid seller of his right of lien or retention (55), but if the seller has in the contract of sale expressly reserved a right of re-sale in case the buyer should make default, and he re-sells the goods on such default, the contract is rescinded, but without prejudice to any claim the seller may have for damages (56).

(52) Joyce v. Swann (1864) 17 C.B.N.S. 84; Wait v. Baker (1848) 2 Ex. 1; Browne v. Hare 4 H & N. 822.

(53) Shepherd v. Harrison (1871) L.R. 5 H.L. 116; B.C. Sale of Goods Act R.S.B.C. 1897, C. 169, s. 24 (3); Sale of Goods Ordinance, Con. Ord. N.W.T. 1898, c. 39, s. 21 (3); Sale of Goods Act (Man.) 1896, sec. 19 (3).

(54) Pugh v. Wylde 2 R. & C. (Nova Scotia) 177. (55) Martindale v. Smith (1841) 1 Q. B. 386, 396. (56) Maclean v. Dunn 4 Bing. 722.

Reserving right of disposal-British Columbia, N.W. Territories and Manitoba. By statute in British Columbia, Manitoba, and the North West Territories (57), where there is a contract for the sale of specific goods, or where goods are subsequently appropriated to the contract, the seller may, by the terms of the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee or custodier for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled; and where goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the agent is prima facie deemed to reserve the right of disposal. In these provinces it is also provided that where the seller expressly reserves a right of re-sale in case the buyer should make default, and on the buyer making default, re-sells the goods, the original contract of sale is thereby rescinded, but without prejudice to any claim the seller may have for damages (59).

Waiver of vendor's lien.-A vendor's lien is not defeated by part payment of the price (60), or by recovery against the purchaser in an action for goods sold (61). But if the vendor give to the purchaser a warrant in a form which, by the custom of a particular trade, implies that the goods are free from any claim

(57) R.S B.C. 1897, c. 169, s. 24; Stat. Man. 1896, c. 25, s. 19; Con. Ord. N.W.T. c. 39, s. 21.

(59) Stat. Man. 1896, c. 25, s. 45 (4); R.S.B.C. 1897, c. 169, s. 58 (4); Con. Ord. N. W. T. 1898, c. 39, s. 40 (4).

(60) Hodgson v. Loy 3 T.R. 440; Feise v. Wray 3 East, 93. (61) Houlditch v. Desanges 2 Stark. 337