the greatest defect in agreements. For agreements are formed by the assent of the parties, and there can be no assent, when the parties have erred as to the object of their agree "18. Error annuls the agreement, not only when it falls on the thing itself, but also when it falls on the quality of it which the parties had chiefly in view and which constitutes the substance of the thing. Therefore, if, intending to buy a pair of silver candlesticks, I buy a pair which you offer me and which I take to be silver, while they are only plated copper; although indeed you had no design of deceiving me, being yourself in the same error, the agreement will be null; because the error in which I have been destroys my consent. For the thing which I wished to buy is a pair of silver candlesticks; that which you offered me, being a pair of copper candlesticks, cannot be said to be the thing which I intended to buy * * * Siaes pro auro veneat, non valet (the continuation of this quotation, which is from Ulpian, is:) aliter atque si aurum quidem fuerit, deterius autem quam emptor existimarit; tunc enim emptio valet. "It is otherwise when the error falls only on some accidental quality of the thing * * In the case of Kennedy v. Panama, New Zealand and Australian Royal Mail Co., L.R. 2 Q.B. 580; 8 B. & S. 571; 36 L.J.Q.B. 260; 17 L.T. 62, Blackburn, J. giving the judgment of the Court uses these words after referring to the Roman civil law: "And, as we apprehend, the principle of our law is the same as that of the civil law; and the difficulty in every case is to determine whether the mistake or misapprehension is as to the substance of the whole consideration, going, as it were, to the root of the matter, or only to some point, even though a material point, an error as to which does not affect the substance of the whole consideration." In the same case the same learned Judge says: "There is, however, a very important difference between cases where a contract may be rescinded on account of fraud, and those in which it may be rescinded on the ground that there is a difference in substance between the thing bargained for and App. Div. 1918 Twaites V. Morrison Beck, J. App. Div. 1918 Twaites V. Morrison Beck, J. that obtained. It is enough to show that there was a fraudulent representation as to any part of that which induced the party to enter into the contract which he seeks to rescind; but where there has been an innocent misrepresentation or misapprehension, it does not authorize a rescission, unless it is such as to show that there is a complete difference in substance between what was supposed to be and what was taken, so as to constitute a failure of consideration. For example, where a horse is bought under a belief that it is sound, if the purchaser was induced to buy by a fraudulent representation as to the horse's soundness the contract may be rescinded. If it was induced by an honest misrepresentation as to its soundness, though it may be clear that both vendor and purchaser thought that they were dealing about a sound horse and were in error, yet the purchaser must pay the whole price, unless there was a warranty." I make several observations upon the foregoing judgment: (1) The Court distinguishes most clearly (in cases where fraud is absent) between an error as to the substance of the thing, the subject-matter of the sale, and an error merely as to some quality though a material one supposed to belong to it; (2) When it is said that in the case of an innocent misrepresentation or misapprehension there is no right of rescission and the whole price must be paid unless there is a warranty, this is clearly stated as relating to a case of error not of substance but merely of quality; (3) In Benjamin on Sales, 5th ed., p. 439, on a note to the words "unless there was a warranty" in the foregoing quotation it is said: "It is submitted that this statement of the law, and the decision of the case itself, is not, having regard to the decisions since the Judicature Acts, in accordance with law at the present day. The right to rescind a contract will now be governed by the equitable principles stated infra. The enquiry is an interesting one. Suppose the case of a sale of a horse upon a representation made honestly, which turns out to be untrue in fact, * would the buyer be entitled to return the horse and demand back his money? It is conceived that he would," (p. 439); and then it is said: "The equitable principles with regard to misrepresentation are now, by virtue of the Judi ** find is an cature Acts, the rule in all Courts, and seem to be preserved Randall v. Newson (1877) 2 Q.B.D. 102; 46 L.J.Q.B. 259; 36 L.T. 164; 25 W.R. 313, held that on the sale of an article for a specific purpose there is an implied undertaking by the seller that it is reasonably fit for the purpose and there is no exception as to latent undiscoverable defects; and that the limitation as to latent defects introduced by Readhead v. Midland Ry., L.R. 4 Q.B. 379; 38 L.J.Q.B. 169, does not apply to the sale of a chattel. In the course of the reasons for the judgment of the Court given by Brett, J.A. it is said: "In some contracts the undertaking of the seller is said to be only that the article shall be merchantable; in others, that it shall be reasonably fit for the purpose to which it is to be applied. In all, it seems to us, it is either assumed or expressly stated, that the fundamental undertaking is, that the article offered or delivered shall answer the description it contained in the contract. That rule comprises all others; they are adaptations of it to particular kinds of contracts of purchase and sale. You must, therefore, first determine from the words used, or the circumstances, what in or according to the contract, is the real mercantile or business description of the thing which is the subjectmatter of the bargain of purchase or sale, or, in other words, the contract. If that subject-matter be merely the commer App. Div. 1918 Twaites V. Morrison Beck, J. App. Div. 1918 Twaites V. Morrison Beck, J. cial article or commodity, the undertaking is, that the thing offered or delivered shall answer that description, that is to say, it must be that article of commodity, saleable or merchantable. If the subject-matter be an article or commodity to be used for a particular purpose, the thing offered or delivered must answer that description, that is to say, it must be that article or commodity and reasonably fit for the particular purpose. The governing principle, therefore, is that the thing offered and delivered under a contract of purchase and sale must answer the description of it which is contained in words. in the contract, or which would be so contained if the contract were accurately drawn out. And if that be the governing principle, there is no place in it for the suggested limitation.” The limitation was suggested in this way: Readhead v. Midland Ry., supra, was supposed to lay down the principle that a seller of a chattel for a special purpose was not liable on an implied warranty of fitness for that purpose in respect of a latent defect which no care or skill could discover. Randall v. Newson, supra, was the case of a pole to be used as part of the plaintiff's carriage. The pole was fitted to the carriage. The pole broke when the carriage was being driven and the horses were injured. The plaintiff sued for damages. The jury found that the pole was not reasonably fit for use in the carriage and that there was no negligence on the part of the defendant in making the pole or in the selection of the material for it. The trial Judge, Archibald, J. entered a verdict for the plaintiff. The divisional Court, (Blackburn and Lush, JJ.) ordered judgment to be entered for the defendant on the ground that the answers of the jury amounted to a finding of a latent defect in the wood of the pole, which no care or skill could discover, and that the principle of the decision in Readhead v. Midland Ry., supra, extended to the sale of an article for a specific purpose. The Court of Appeal held that the implied undertaking of the seller was not restricted by the limitation applied in the Readhead case, supra, to a contract of carriage; that in other words, no such limitation applied to the implied undertaking in the sale of a specific chattel for a specific purpose. The quotation from the judgment in Randall v. Newson, supra, which I interrupted for the foregoing explanation, proceeds as follows: "If the article or commodity offered or delivered does not in fact answer the description of it in the contract, it does not do so more or less because the defect in it is patent, or latent, or discoverable. And accordingly there is no suggestion of any such limitation in any of the judgments in cases relating to contracts of purchase and sale." See also a decision of our own Court: Wright v. Nelson, 11 Alta. L.R. 567; [1917] 2 W.W.R. 708. Putting the case as one of a substantial difference in the thing in question, the implied condition of correspondence with the description became effective. It gave a right to repudiate. The plaintiff did this by two letters, the effect of which is that he held the animal subject to the defendant's order and demanded his money back. The defendant refused. The plaintiff certainly was not bound to take the animal to the defendant, hand it over to him, and "whistle" for his money. He was entitled to a return of his money in return for the animal. On refusal he was surely entitled to a lien on the animal. The plaintiff was then at liberty to treat the implied condition as a warranty and sue for damages. The fact of his selling the animal was perfectly justified and was a convenient way to ascertain his damages. HYNDMAN, J.—This is an appeal from the judgment of His Honour Judge Greene, who dismissed the plaintiff's claim with costs. The action is founded entirely on alleged false and fraudulent representation of the defendant, in consequence of which the plaintiff alleges damage. The plaintiff is a dealer in livestock, especially cattle and horses, and has been employed in that occupation for upwards of 25 years. The defendant is a farmer on a comparatively small scale, and it can fairly be assumed that the plaintiff was experienced equally at least with the defendant as a judge of ordinary farm animals. On May 12, 1917, the defendant approached the plaintiff with respect to buying a horse, the facts being contained in the following questions and answers, p. 6 of the Appeal Book, in the evidence of the plaintiff : App. Div. 1918 Twaites V. Morrison Beck, J. |