(d) Above, p. 6S6.

(e) See the cases cited at the end of note (s), p. 699, above, as to the admissibility of oral evidence in proof of a representation which has induced a written contract.

(/) Behn v. Burnetts, 3 B. & S. 751, 753: Berry v. Peek, 14 App.

Cas. 337.

(g) See above, pp. 577, 578.

(h) Deposit and General Life Assurance Co. v. Ayscough, 6 E. & B. 761; Oakes v. Turquand, L. R. 2 H. L. 325; Clough v. London & North Western Ry. Co., L. R. 7 Ex. 26; Benjamin on Sale, 336, 342, 359, 2nd ed.

Effect of innocent misrepresentation at common law in the case of other contracts.

(i) Carter v. Boehm, 3 Burr. 1905; Morrison v. Universal Marine Insurance Co., L. R. 8 Ex. 197 ; Ionides v. Pender, L. R. 9 Q. B. 531; London Assurance Co. v. Mansel, 11 Ch. D. 363; Rivaz v. Gerussi, 6 Q. B. D. 222; above, p. 684.

(k) Behn v. Burness, 3 B. & S. 751, 753.

(I) Hopkins v. Tanqueray, 15 C. B. 130; Kennedy v. Panama, etc. Mail. Co., L. R. 2 Q. B. 580.

(m) Above, p. 680.

(n) Flight v. Booth, 1 Bing. N. C. 581 ; Banner man v. White, 10 C. B. N. S. 844; Behn v. Burness, 3 B. & S. 751; and see Be Las-salle v. Guildford, 1901, 2 K. B. 215.

Here it may be pointed out that, as the common law took no account of a representation made innocently except as a stipulation forming part of the contract, its treatment of a representation as a condition or a warranty according to the parties' intention was no more than a particular instance of the rules of law respecting the dependence or independence of mutual stipulations contained in a contract. At common law, if the obligation of one party to a contract be dependent on the fulfilment by the other either of his part of the contract or of some particular stipulation embodied therein, so that the performance of the latter party's duty under the contract or the particular stipulation is a condition precedent to his enforcing the obligation incumbent on the former, then a breach by the latter of his part of the contract or of the particular stipulation will discharge the former from his obligation under the agreement; and the former may, if he choose (s), rescind the contract and sue independently of the contract (under the old practice, in assumpsit) for the recovery of any money paid thereunder (t). But in order that the breach of some particular stipulation in a contract may discharge the party entitled to the benefit thereof from the performance of his part of the contract, the stipulation must go to the root of the whole consideration; its performance must be an essential condition of his incurring liability under the agreement (u). For example, we have seen that, upon a contract for the sale of land, the vendor's obligation to convey the land and the purchaser's obligation to pay the price are, as a rule, dependent on each other, and neither party can enforce the other's liability without performing or having offered to perform his own duty (x). So on a contract for the sale of land, the performance of the particular stipulation implied therein, that the vendor shall show a good title, is an essential condition of the purchaser's liability; and if this stipulation be broken, he may at once repudiate the contract and sue for the recovery of his deposit (y). Similarly, on an executory contract for the sale of goods with an undertaking that they shall be of a particular quality, compliance with this undertaking (z) is in general an essential condition of the sale, and the purchaser may, when the property has not yet passed to him under the contract, reject the goods on breach of the undertaking and altogether repudiate the agreement (a). But, although a man bound by a contract may refuse to perform his promise till the other party has complied with a condition precedent, yet, if he has received and accepted a substantial part of that which was to be performed in his favour, the condition precedent changes its character, and becomes a warranty in the strict sense of the word (b), that is, a collateral agreement independent of the rest of the contract; and non-compliance therewith will no longer afford a defence to an action to enforce his liability on the contract, but will only give rise to a counter-claim for damages (c). Thus where specific goods are sold with an undertaking that they shall be of a particular quality, the purchaser cannot return the goods after the property has passed to him, and he has so enjoyed the benefit of the contract: but if the goods be not of the quality promised, he is entitled to damages (d). In the same way, if one be induced to sign a contract for purchase of a house by the vendor's oral representation made untruly but not fraudulently that the drains are in good order, he may, if he discover the truth before completion, repudiate the contract at law and sue for the recovery of his deposit (e): but if he accept a conveyance before he become aware of the defect, he cannot then rescind the contract (f), though he may sue for damages for breach of the warranty implied in the representation (g).

The common law treatment of misrepresentation was a particular instance of its rules respecting the dependence of mutual stipulations.

(o) Heyworth v. Hutchinson, L. R,. 2 Q. B. 447, adopted as law in the Sale of Goods Act, 1893; stat. 56 & 57 Vict. c. 71, s. 53; see Benjamin on Sale, 448, 741, 748, 749, 2nd ed.; above, p. 27, n.

(p) Bannerman v. White, 10 C. B. N. S. 844; Behn v. Burness, 3 B. & S. 751, 755, 756.

(q) Street v. Blay, 2 B. & Ad. 456.

(r) See last note but one.

(s) He has the option of rescinding the contract, or affirming it and suing under the contract for damages for its breach; Michael v. Hart, 1902, 1 K. B. 482.

(t) Flight v. Booth, 1 Bing. N. C. 370.

(u) Luke of St. Albans v. Shore, 1 H. Bl. 270; Campbell v. Jones, 6 T. R. 570; Bettini v. Gye, 1 Q. B. D. 183; Mersey, etc. Co. v.

Nay lor, 9 App. Cas. 434; Cornwall v. Benson, 1900, 2 Ch. 298, 303, 304; see 1 Wms. Saund. 320, n. (4); 2 id. 352, n. (3); 2 Smith, L. C, notes to Cutter v. Powell.