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78 LEGAL PROCEEDINGS.
Two important cases were heard in the Higher Courts during the past year, which
should be noticed here.
Heaver's Exors. v. Mayor, &c.., of Fulham.—This was a combined drainage case. The
plaintiffs alleged inter alia that, as no Order had been made by the late Vestry of Fulham for
drainage of certain houses by a combined system, the existing defective system was a sewer
vested in and repairable by the Council. It is not necessary to give the full details of the
case, which was reported in The Times of March 21st, 1904, and it will suffice to say that
the case was given against the plaintiffs on the main point at issue. The basis of the decision
was that misfeasance in constructing a combined drain without the consent of the
authorities, is an estoppel to a subsequent claim that the system is a sewer, if made by
the person guilty of the act of misfeasance.
This is almost the first, if not the first, relief given to local authorities in respect of illicit
construction of combined drainage. So long as the property drained by such system remains
vested in the person of the constructor of the system, or has only passed by devolution to his
heirs and executors, no claim that such system is a sewer vested in the local authority, can
be successfully maintained. A transference by sale would, however, apparently make such
system a sewer. Had such a decision been given some eleven years ago, the case of Florence
v. Paddington Vestry would have been decided differently.
Frost v. Aylesbury Dairy Co. (Ltd..).—This case, upheld on appeal, raises important
questions of liability for supply of pure food. The issue was raised under Sec. 14 (1) of the
Sale of Goods Act, 1893, which enacts that "there is no implied warranty or condition as to
the quality or fitness for any particular purpose of goods supplied under a contract of sale,
except as follows:—
(1) Where the buyer expressly or by implication makes known to the seller the particular
purpose for which the goods are required, so as to show that the buyer relies on the seller's
skill or judgment, and the goods are of a description which it is in the course of the
seller's business to supply (whether he be the manufacturer or not) there is an implied
condition that the goods shall be reasonably fit for such purpose . . . ."
The interest of the case lies in the application of the judgment on appeal rather than in
the facts brought out in the trial. It should be remarked that in an earlier case, Randall v.
Newson (2 Q.B.D. 102, 40 LJ. Q.B. 259) it was decided that "on the sale of an article for
a specific purpose there was a warranty by the vendor that it was reasonably fit for the
purpose and that there was no exception as to latent undiscoverable defects." This decision
is of importance in connection with food-stuffs which are not reasonably fit for the purposes
for which they are purchased by reason of the presence of deleterious micro-organisms. As
regards chemical impurities, the ordinary methods of analysis are sufficient for their discovery
and proceedings will lie under Sec. 3 of the Sale of Food and Drugs Act, 1875.
There are two commodities which come within the scope of the decision of Frost v.
Aylesbury Dairy Co.—water and meat. As regards the former, however, special liabilities
have long existed under the Waterworks Clauses Acts and (in the case of municipal supplies
in the provinces) under the Public Health Act, 1875. In the case of meat the liability of the
vendor has apparently not yet been tested, but taking the two decisions quoted above it
would be reasonable to assume that the vendor of unsound meat—say tuberculous—would be
liable to action for damages for breach of warranty. It is difficult to suggest a food supply
in which greater reliance has to be placed on the "skill or judgment" of the vendor than is the
case in the purchase of meat. It might however be necessary in every case to state the
intended use of meat purchased, but it "is doubtful whether a butcher doing a retail family
trade could successfully plead that he had no knowledge of "the particular purpose for which
the goods were required." As already intimated, it would be no defence to say that he could
not detect the presence of the specific micro-organism. Another commodity to which the
decisions will apply with special effect is shell-fish—oysters, mussels, &c.