,M^^^^ DIGEST OF SALE. REEVES AND TURNER, 100, CHANCERY LANE & CAREY STREET, W.C. JUST PUBLISHED. Third Edition. Hoi/al Svo. Price I8s. cloth. HOOD & CHALLIS' CONVEYANCING AND SETTLED LAND ACTS. With other recent Acts : Conveyancing Acts, 1881 and 1882 ; the Settled Land Acts, 1882, 1884 and 1887; the Trustee Act, 1888; the Married "Women's Property Act, 1882, and the Land Charges, &c. Act, 1888, with Commentaries. 1889 JU& THE RA Being the Eailv ways Act, 1873: Trains Act, 188 Rules of the Ra to Classification intended increas Notes by H. R. DAELIIS THE NATl By CiiAx-TooN, Studentship in Hilary 1888; 1 Hilary 1887; a: Temple, &c. S NEW EDIT UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ACTS, ation of Rail- 4 ; the Cheap t, 1888. The ■d of Trade as 3 Rules as to iroduction and 1889 rister-at-Law. UDENCE. holder of the nns of Court, Law Scholar, of the Middle WRITABLE THE PRINi SCOVERY. With an Appe is for stating Objections to D nn, Barrister- at-Law. 1885 ' ' In point of fulness and careful attention to details, this book is one of the best we have seen for a long time. Not a case old or new is omitted, and we have many useful HuggestionH in connection with doubtful points, while the table of contents, the table of cases, and the index are quite models in their way. We have, therefore, in the author's words, 'a complete and comprehensive work on discovery.' " — Solicitors^ Journ. Third Edition. Post Svo. 592 paffes. Price 12s. Gd. REDMAN & LYON'S LAW OF LANDLORD & TENANT. Including the Pkactice of Ejectment. 1886 Eeeves & Turner, 100, Chancery Lane and Carey Street, W.C. JUST rUBLISIIED. Snwid Edition. Post 8co. I'ricc Zs. Gd. clolh. TRUSTEES' GUIDE TO INVESTMENTS. With the Trustee Act, 1888. By Arthuk Lee Ellis, :NLA., B.C.L., of Lincoln's Inn, Barrister-at-Law. Be my 8fo. Frice 9.v. ROBSON'S LAW OF PRIVATE ARRANGEMENTS WITH CREDITORS. Including the Deeds of Arrangement Act, 1887 ; Bills of Sale Acts, 1878 and 1882 ; the Bankrui^tcy (Discharge and Closure) Act, 1887, with Eulos under the above Acts ; also Precedents of Deeds of Ai-rangements. 1888 " The legal profession will hail with satisfaction Mr. Robson's Treatise on the Law of Private An-angements with Creditors. The book, while it forms a useful supple- ment to the author's treatise on Bankruptcy, must take rank with that excellent work."— Z«it' Tunes, February 18, 1888. SIXTH EDITION. Royal %vo. Price 38s. ROBSON'S LAW OF BANKRUPTCY. Containing a full Exposition of the Principles and Practice of the Law ; including the Law vmder the Bankruptcy Act, 1883; the Bills of Sale Acts, 1878 and 1882; and Section 10 of the Judicature Act, 1875; also the Law relating to Private Ai-rangements with Creditors. With an Appendix comprising the Statutes, Pules, Orders and Forms, including Forms of Compositions and Schemes under Sections 18 and 23 of the Bankruptcy Act, 1883. 1887 ' ' Notwithstanding the many competitive volumes which have been recently published, Mr. Robson has maintained the position of his text-book on the Law of Bankruptcy, the sixth edition of which has just been published. AU the new rules and modern decisions are incorporated, and the author gives us a useful chapter on ' Composition or Scheme of Arrangement with Creditors. ' We know of no better treatise on this branch of our law, and looking to the number of editions through which it has passed, our opinion is apparently shared by the profession." — laiv Times, July 16, 1887. Royal Sio. Price 12s. Qd. STATUTES FOR STUDENTS. With Notes and Cases for the use of those attending the various Legal Examinations. By J. Carter Harrison, Solicitor. 1885 " The selection of Statutes is, to our mind, by far the best which has yet appeared in any book of Statutes for Students. The author lias e\-idently grasped what persons are for the most part so imwilliug to recognize, that for a work to be of any use in these days of stringent examinations it must be thorough and exhaustive." — Law Notes, Jime, 1885. SECOND EDITION. Price lOs. M. EPITOME OF CRIMINAL LAW. Containing Questions and Answers on Crimes and Criminal Procedure. By J. C. Harrison. 1885 " The book realizes the object of the author, which is to help the student to that rudimentary knowledge of the criminal law, which is all that he requii'es in order to satisfy the examiners. It contains a great deal of knowledge in a very small compass." — Law Times. OF THE LAW RELATING TO THE SALE OF aOODS OCCASIONAL REFERENCE TO FOREIGN DECISIONS. HY WALTER C. A. KEK, M.A., LATE SCHOLAR OF TBIN'ITY COLLEGE, CAMHRIDGE, OF THE INNER TEMPLE AND WESTERN CIRCVIT, BAERISTER-AT-LA \V. LONDON : BEEVES AND TURNER, TOO, CHANCERY LANE AND CAREY STEEET, AV.C. 1888 T V2« LONDON : rniNTED DY C. F. EOWOETH, OEEAT NEW STEEET, FETTEE LANB — E.C. I PREFACE. The question of the codification of English Law is now-a-days so often discussed that, jDcrhaps, this attempt to construct a Digest of that im- portant branch of it which relates to the Contract of Sale of Goods may require no apology. In the preparation of the following work I have availed myself of the provisions of the Indian Contract Act, 1872, thereby following the high examples of Mr. Justice Stephen and Professor Pollock ; but it will be found that a large amount of original matter has been drafted. In carrying out the work I have endeavoured to enunciate only those rules which are more particularly concerned with Sale, to the exclusion of any extraneous matter belonging to the general law of contracts ; though I am afraid that I may have occasionally entered into greater detail than was altogether consistent with a due adherence to the above principle. It is necessary to remind the reader that I have not necessarily quoted statutes verbatim, a2 IV PREFACE. but have, when it was possible, condensed them, or given their effect in the light of the decisions thereon. It is obvious that such a course was, in the case of the 17th section of the Statute of Frauds, for instance, inevitable. Where no special authority for any proposition is quoted, such proposition will have been gene- rally founded on the cases quoted as illustrations. I need not say that this Digest has involved considerable labour. I can only express a hope that my propositions may be found to be gene- rally correct. I have, at any rate, spared no pains to make them so ; but it must be remem- bered that ''omnis definitio est in lege peri- culosa." . Any corrections or emendations that may be suggested to me will be thankfully acknowledged. W. C. A. K. 4, Haecoukt Buildings, Temple, March Ist, 1888. TABLE OF CONTENTS. PAGE Chap. I. The Formatiox of the Contract . . .1 II. Title 17 III. B-VEGAIXS AND SaLES, AND EXECUTORY CONTRACTS 24 IV. The Performance of the Contract . . 38 V. Lien and Stoppage in Transit . . . 68 VI. The Breach of the Contract, and herein of Damages . . . . . . 86 VII. Miscellaneous . . . . .96 Appendix A. Of the Effect of a Eejection of the Goods BY THE Buyer .... 109 B. Warranty 113 C. Of Bull i-. Eobison, and Beer v. Walker . 115 The Statute of Frauds, and Lord Tenterden's Act . 117 Index . . . . . . . . 119 TABLE OF CASES. A. PAGE Abbott V. Barry 100 Acebal v. Le^y 49, 87 Acraman v. Morrice 26 Adam v. Richard 48 Akerman v. Humpbrey 83 Aldridge r. Johuson 30, 31 Alewyn v. Prior 107 Alexander v. Gardner 37, 39 V. Vanderzee. . 104, 105 Allen v. Gripper 74 r. Hopkins 49, 50 Alston, Ex parte 85 Anderson v. Carlisle Horse Clothing Co. . . 39 V. Morice 25, 31 i-. Scot 11 Andrews v. Belfield 99 Anglo -Egyptian Nav. Co. v. Rennie 3, 26 Angus V. MacLachlan 70 Anon. (12 Mod.) 20 Anthony v. Halstead 50 Ardsberg v. Latta HI Armitage v. Insole 38 Artcher v. Zeb 12 Ashcroft V. Morriu 14 Astcy V. Emery 6 Atkinson v. Bell 33 Austr. Ins. Co. v. Randall . . 1 Azemar v. Casella 57, 58 B. Babcock V. Lawson 17 Bach V. Owen 12 PAGE Bailey v. Merrell 64 V. Sweeting 5 Bailiffs of Tewkesbury v. Dis- ton (Diston's case) 20 Baldey v. Parker 7, 11,97 Banner, Ex parte 34, 35 Bannerman v. White 51, 66 Barnes v. Freeland 88 Barningham v. Smith 91 Barr v. Gibson 52, 57 Barrow, Ex parte 76 • V. Amaud 89 Bartholomew v. Ereeman 93 Bartlett v. Purnell 14 Bartram v Farebrother 88 Bashore r. Whisler 62 Beaumont v. Brengeri 9 Beer v. Walker . . 55, 60, 61, App. A. and C. Belding v. Frankland 101 Benjamin v. Andrews 19 Bentall v. Burn 9 Berndtson v. Strang 78 Bcthell V. Clark .... 76, 78, 81, 83 Beverley v. Lincoln Gas Co. . . 99 Bianchi r. Nash 4 Biddlcr. Levy 100 Biddlecombe v. Bond 70 Bigg t'. Whisking 6,97,98 Bigge v. Parkinson 55 Bill V. Bamcnt 5, 9, 1 1 Bird v. Boulter 14 V. Brown 77 Bishop V. Shillito 4, 36 Blenkinsoe v. Blaiberg 99 Bleukiusop v. Clayton 12 Vlll TABLE OF CASES. PAGE Bloomer v. Bernstein 86 Bloxam v. Sanders .... 38, 69, 72 Bodger v. Nicholls 63 Bohtlingk v. Inglis 72 Bolton r. L. & Y. Ey. Co. . . 76, 82, 88 Boorman r. Nash 86, 89 Bordenave v. Gregory 38 Borrowman v. Drayton . . 105, 106 . V. Free . .24, 31, 32, 33, 42 Boswell r. Kilborn 25 Boulter I'. Amott 40 Bo-wes V. Pontifex 9 V. Shand 104,105 Boyd V. Lett 38 V. SifPkin 107 Bradley v. Wheeler 28 Brandt v. Bowlby 35 • r. Lawrence 44 Brawley ?;. U. S 44 Bridge v. Wain 94 Bright, Ex parte 1 Brindley v. Chilgwin Slate Co. 76, 83 Brinsmead v. Harrison 100 Brittain r. Rossiter 5 Brogden V. Marriott 101 Brooke v. White 39 Brown r. Edgington 53 V. Muller 91 Browne v. Hare 33, 35 Bruno, Silva & Co., In re , . . . 78 Bryans v. Nix 31 Buck V. Spence 104, 108 Buckmau v. Levi 43 Budd V. Fair manner 50 Buddie V. Green 40 Bull V. Barker 1 V. Eobison 43, 00, 01, App. C. Bunney v. Poyntz 73, 82 Bushell V. Wheeler 7,9, 10 Buskr. Davis 25, 29 BuHS V. Putney 05 Bussey v. Barnett 36 Bywater v. Richardson 63 C. PAGE Cairns v. Robins 41 Calcutta Steam Nav. Co. v. DeMattos .... 42, 43, 111, 112 Camidge v. Allenby 102 Campbell v. Mersey Docks .... 30 ■ r. Roots 5 Carter v. Crick 50, 60 J'. Toussaint 11 V. Wallace 99 Case V. Hall 65 Cassaboglou v. Gibbs 73, 94 Castle r. Playford 36, 49 V. S worder 9, 11, 70 Caswell V. Coare 94 Chalmers, Ex parte 71, 86 r. Harding 55 Champion v. Plummer 13 V. Short 97 Chanter r. Hopkins. .51, 52, 55, 56 Chapman c. Gwyther 63, 64 r. Morton 110, 111 i\ Speller 66 Chattock V. MuUer 102 Chesterman v. Lamb 95 Clark V. Bulmer 3 r. Lynch 81 V. Mimiford 3 Clarke v. Hutchins 42 v. Westrope 49 Clay V. Tates 3 Cleveland RoU. Millt'. Rhodes 104 Cobbold V. Caston 6 Cock, In re 78 Coleman v. Gibson 9 Coles V. Kerr 38 Constantia, The 77 Coombs V. B. & E. R. Co 33, 110, 111 Cooper, Ex parte. . . .73, 74, 82, 83 I'. Bill 10,69 r. Shepherd 100 Coppin V. Walker 50 Cork Distillery Co.'s case 75 Cory V. Thames Ironworks Co. 92 Cothay v. Tute 42 TABLE OF CASES. IX PAGE Couston V. Chapmau 48, 111 Covaa V. Bingham 44, 105 Cowasjco IK Thompson 70 Crane v. London Docks Co... 20, 21 Craven v. Ryder 34, 69, 71 Crawshaw v. Hornstedt 39 Crawshay v. Edcs 7o Crofton V. Colgan 101 Cross V. Egliu 45 Crowdy v. Thomas 50 Cuming r. Brown 84 Cundy V. Lindsay .... 2, 17, 18, 19 Cimliffe V. Harri.son 44, 1 10 Cumiingham v. Hall 55, 56 V. Judson 104 Currie v. Anderson 9, 11 Cusack V. Robinson 8, 9, 10 Cutter V. Powell 51 D. Dailey v. Green 49 Dax'ies v. McLean 38, 42 Davis V. Hedges 67 V. Reynolds 72 V. Smyth 49 Dawes v. Peck 33 Day V. Picton 39 Do Mattos V. G. E. St. Sh. Co. 92 Dibble v. Corbett 93 Dickenson v. Naul 49 Dickson r. Zizania 54 Dike V. Reitlinger 107 Diston's case 20 Dixon V. Fletcher 44 V. Lond. Small Arms Co 1 V. Yates 71 Dodson V. Wentworth 75 Drake, Ex parte 100 Drununond v. Van Ingen. .53, 57, 59, 60,61 Duncuft V. Albreclit 6 Dunkirk Coll. Co. v. Lever . . 89 Dunlop V. Grote 39 PAGE Dunlop V. Lambert 33, 42, 43 Durst r. Denton 89 Dutton V. Solomonson 42, 43 Dykes v. Blake 97 E. Early v. Garrett 23 Edan v. Dudfield 7, 10 Edwards v. Bi-ewer 72, 74 Egerton v. Matthews 13, 14 Eicholz V. Bannister 65, 66 Elbinger, &c. r. Armstrong (Armstrong's case) 92 Ellershaw v. Magniac 34 Elliott v. Hughes 90 V. Thomas 6, 97 Ellis V. Chinnock 95 V. Mortimer 63, 99 Elmore v. Kingscote 13, 14 V. Stone 9, 11 Elpliick V. Barnes 4, 98, 99 Emmanuel v. Dane 06 Emmerson v. Heehs 96 Ess V. Truscott 49 Evans v. Roberts 5, 12 F. Falk, Ex parte 79 FaK-e v. Fletcher 34 Farina v. Home 9, 11, 83 Farniiloe v. Bain 71 Farr v. Ward 49 Farrant v. Thompson 18 Feise v. Wray 72, 73 Ferguson v. Carrington 102 Field V. Lelcan 69 Filley v. Pope 104 Fischel v. Scott 106, 107 Fleming r. Airdi-ie Iron Co. . . 47 Fletcher v. Tayleur 91 Foster v. Frampton 76 Fragano v. Long 36, 39 TABLE OF CASES. PAGE Eraser V. Harbeck 107 Freeman v. Appleyard 6 Frost t\ Kniglit 89 Fviller V. Abrahams 102 G. Gabarron v. Kreeft 31, 33 Ganly v. Ledwidge 19 Gardiner v. Gray 57, 59 Gardner r. Grout 8 Gattomo v. Adams 105 Gibson V. Bray 98 V. Carruthers 74 V. Holland 5, 13 Gillard v. Brittan 87 Gilmour v. Supple 25 Gladstone v. Padwick 19 Godts V. Rose 30 Goldiug, Davis & Co., Ex parte 7-i, 79 Gompertz v. Bartlett 61, 66 • V. Denton 66 Goodman v. Griffiths 14 Gorissen v. Perrin ....... 106, 108 Gorton v. Macintosh 57 Gossler «>. Eagle Sugar E.elinei-y 6 1 Goss V. Quinton 27, 32 Gower v. Van Dedalzen 57 Grafton v. Armitage 3 Graham v. Jackson 44 Grant V. Fletcher 16 Graves v. Legg 108 V. Weld 5 Greaves v. Ashliii 86, 89, 93 V. Hepke 25 Grebert Borgnis v. Nugent . . 89, 92, 93 Green v. Baverstock 103 Gregg V. Wells 18 Gregory v. McDowell 90 V. Stryker , 3 Gregson v. Rucks 16 Grico V. Richardson 70 Grimoldby v. Wells 47, 48 PAGE Grizewood r. Blane 101 Groning v. Mendham 43, 87 Gunn V. Bolckow, Vaughan & Co 71 Gwillim V. Daniel 45 H. Hagedorn v. Laing 88 Haines v. Fu-minger 59 Hale r. Rawson 106, 107 Hall, Ex parte 18 •;;. Billingham 62 Hammond v. Anderson 27 r. Bussey 94 Hands r. Burton 1 Hanson v. Armitage 10 r. Meyer 27 Harman v. Anderson 09 r. Reeve 4, 6, 7, 96 Harper r. Crain 101 Harris v. Nickerson 104 V. Waite 56 Harrison v. Allen 98 V. Luke 1 Hart V. Mills 44 Hartop V. Hoare 20 Haslock V. Ferguson 100 HasweU v. Hunt 36 Hatch V. Oil Co 42 Hawes v. Forster 15, 16 V. Watson 79 Hawkes v. Dunn 73 Head v. Tattersall 51, 98, 99 Heffcr V. Martyn 102 Heilbutt V. Hickson..47, 48, 59, 109 Heiman V. Hardie 101 Heinbockle v. Zugbaum .... 36 Heller v. Allentown Mfg. Co.. 44 Helps V. Winterbottom 39 Heseltine v. Siggers Heugh V. L. & N. W. R. Co.. 49 Hewison v. Guthrie 70 Hey worth V. Hutchinson ..51,67 r. Knight 15 TAliLE OF CASES. XI PAGE Hibbert v. Shee 59 Hibblewhito v. McMorino. ... 24 Hickman v. Haynes 00 Hillr. Perrott 100 V. Smith 21 Hills V. Lynch 33, 42 Hinchliffe v. Bar wick 67 Hinde v. LiddcU 89, 91 V. Wliitehouso 8 Hiort V. N. W. R. Co 100 Hoadley v. McLaine .... 13, 14, 49 Hodgson r. Davics 15 V. Le Bret U, 97 r. Loy 72 Hoc V. Sanborn 61, G2 HoUiday v. Morgan G4 Hooper r. Gumm 19 Hopkins f. Appleby 47 V. Tunqueray 50 Horwood V. Smith 21, 22, 23 Howard v. Hayes 58 Humble v. Mitchell 6 Humphries v. Carvalho 99 Hunt V. Wyman 98, 99 Hunter v. Rice 2 Hutchings v. Nunes 77 Huthermacher r. Han-is .... 2 Hutton V. Lippert 2 Hydraulic Engine Co. v. McHaffie 91 Hydraulic Eng. Co. v. Spencer 54 Idle V. Thornton 107 Imperial Bank r. L. & St. K. Dock Co 74 Imperial Ottoman Bank v. Cowan 42, 44, 46 Inglis V. Usherwood 72 Ipswich Gas Co. v. King . .56, 58, 114 Ireland r. Livingstone. .44, 73, 105 Irving r. Motley 101 Irwin V. Williar 101 PAOK Isaacs V. Hardy 2 Isherwood v. Whitmoro 41 Jackson v. NichoU 75 Jacobs r. Hombach 98 James v. Griffin 74 Jardine v. Pendreigh 48 Jarrett r. Hunter 13 Jenkyns v. Brown 35 V. Usborne 73 Johnson v. Macdonald 106 V. Kailton 56, 57 Jonassohn i\ Young 87, 88 Jones V. Bowden 63 V. Bright 52, 53 v. Flint 5 V. Jones 82 V. Just.. 52, 53, 55, 57, 58, 94, 114 Josling V. Kingsford 58, Gl Joyce V. Swann 34 K. Kellogg Bridge Co. r. Hamil- ton 55 Kemp V. Falk 74, 79 Kendall v. Marshall. . 74, 75, 77, 80, 81, 82, 83 Kennedy v. Panama, &c. Co. , 61 Kenner v. Harding 64 Ken worthy v. Schofield 14 Kershaw v. Ogden 8, 28 Key V. Cotesworth 35 King r. Meredith 43 Kinloch v. Craig 73 Knight V. Barber 6 Koon V. Binkerhoff 41 Kouutz r. Kirkpatrick 89 Kraus !'. Thompson 102 Kreuger r. Blanek 105 Krumbhacr r. Birch 50, C5 Xll TABLE OF CASES. L. PAGE Lackrington v. Atherton .... 69 Laratton, Ex parte 26 Lamert v. Heath 66 Lamond i\ Duvall 88 La Neuville v. Nourse 52 Langton v. Higgins 31, 110 Lanyon v. Toogood 29 Leaskv. Scott 83, 84 Lee V. Bayes 19 V. Gaskell 6 r. Griffin 2, 3 ■ V. Risdon 6 Leeming v. Snaith 45 Leigli r. Patersou 89, 90 Levi r. Berk 46, 105 V. Levi 102 Levy V. Green 44, 45 LickbaiTovs' v. Mason 72 Liddard r. Kain 64 Lilly white r. Devereux .... 10, 12 Lindsay r. Cundy 21 Llansamlet Tin Plate Co. , Ex parte ...., 91 Load V. Green 101 Loeschmann v. Williams .... 36 Logan V. Lie Mesurier 27 Longmeid v. HoUiday 53 Lorymer v. Smith 41 Loughnan v. Barry 102 Lovatt V. Hamilton 107 Lucy V. Moufflet 48, 99 Lyons v. De Pass 20 M. MacBain v. Wallace 2 McCaul r. Strauss 13, 16 McClelland i\ Stewart 57 McConibe v. N. Y. & Erie R. Co 36 McDonald v. Longhottom .... 13 Macdonnell v. Murphy 45 McEwen V. Smith 71,83 Macfarlane v. Taylor 55 PAGE McGrane v. Ley 67 McKenzie v. Handcock 95 McLay v. Perry 46 MacLean v. Dunn 87 Mallan v. RadlofE 55 Margetson v. Wright 64 Market Overt, case of . .19, 20, 21 MarshaU v. Green .... 5, 9, 10, 11 V. Lynn 13 V. Poole 49 Marston v. Philhps 100 Marten v. Gibbon 24 Martindale v. Smith 86 Martineau v. Kitching .... 27, 36, 37, 49 Marvin v. Wallis 11 Maspons Hermano v. Mildi-ed. 100 Matheny v. Mason 50 Mercantile, &c. Bank v. Glad- stone , 81 Merchants, &c. Co. v. Phcenix, &c. Co 68, 71 Meredith v. Meigh 9 Merry v. Green 1 Mersey, &c. Co. v. Naylor & Co 86, 87 Mews V. Carr 14 Meyer v. Everth 59 Miles, Ex parte 74, 77 V. Gorton 68, 69, 70 Miller v. Race 17 Mills t;. Ball 80 Mivabita v. Imp. Ott. Bank (Mirabita's case) 33, 34, 35 Mody V. Gregson . .47, 52, 55, 57, 59, 60, 114 Mondel v. Steel 67 Moran v. Pitt 20 Morgan v. Bain 71, 86, 87 Morley v. Attenborough . .23, 62, 64, 65, 66 Morris v. Levison 45, 105 Mortimer v. Bell 103 V. Callan 24 Morton V. Tibbetts 12 Moss V. Sweet 98 TABLE OF CASES. XIU PAGE Moyco V. Newington 19, 21 Mussen v. Price 39 Myers V. Donnan 103 N. National Merc. Bank v. Hamp- son 18 Neal V. Viney 29 Neil V. Whitworth 39 Ne-i-ill, Ex parte 1, 98 New V. Swain 70 Newell v. Radford 13 Newson i\ Thornton 73 Nichol V. Godts 57, 58, 59 Nicholson v. Bower 88 r. Bradfield Union . 44 Nickson v. Jepson 39 Noble r. Adams 101, 102 Norman v. Phillips 10 Non-ington v. Wright 104 North British Ins. Co. v. Mof- fatt 25 N. W. R. Co. V. Bartlett .... 75 0. Ogg V. Shuter 34 Ogle V. Vane 90 Okell V. Smith 47, 48, 49 Olivant v. Bayley 5o Oppenheim v. Fraser 108 r. Russell 81 Oxendale r. Wetherall 97 P. Page V. Cowasjee 87 v. Morgan 8, 12 Parfitt V. Jepson 103 Parker v. Palmer 47 r. Wallis 9, 11 Parkinson v. Lee 52, 59 Parton v. Crofts 16 PAGE Pasley v. Freeman 05 Patten v. Thompson 72 Paul V. Dod 39 Payne v. Cave 90 f. Shadbolt 36 Pearson v. Dawson 71 Pease v. Gloahec 83 Peckf. List 103 Peer v. Humphrey 23 Percival v. Oldacre 50 Perkins v. Whelan G5 Peterson v. Eyre 89 Peto V. Blades 62 Pettitt r. Mitchell 41 Phelps V. Comber 73, 80 Phillips V. Bistoli 8, 9 PhiUpotts V. Evans 90 Phoenix, &c. Co., In re 8G Pinner v. Arnold 2 Pinnock v. Harrison 70 Pitts f. Beckett 14 Playford v. Mercer 38 Pointin V. Pon-ier 43 Pontifex «;. M. R 80 Pooley f. S. E. R 83 PoweU V. Horton 50, 56 Power V. Barham 51 Price V. Lea 97 Proctor I'. Jones 11, 69 R. Randall i'. Newson .... 53, 57, 114 V. Raper 94 Raphael v. Burt 64, Co, 66 Rawson v. Jolmson 38 Ray V. Barker 98, 99 Reeves v. Capper 69 R. V. Marsh 103 Reuter v. Sala 44, 108 Rew v. Payne 35 Rhode V. Thwaites 30 Richardson r. Dixnn 31 Riggc I'. Burbidge 67 Roberts, In re 9 XIV TABLE OF CASES. PAGE Robinson v. Anderton ...... 66 Rodgerf. Comptoird'Escompte 84 Rodliff V. Dallinger 2 Rodwell V. Phillips 5 Roots V. Dormer 96 Roper V. Johnson 89, 91 Roscorla v. Thomas 50 Rosevear China Clay Co., Ex parte 76 Rourke f. Short 101 Rowan v. Coats, &c. Co 56 Rowe v. Pickf ord 75 Ruck V. Hatfield 69 Rugg V. Minett 25 V. Weir 39 Rylands v. Kreitman 44 S. SaiQshury v. Matthews 5 Salter v. "Woollams 40 Salting, Ex parte 85 Sanders v. Jameson 47 Sari V. Bourdillon 13, 14 Saunders v. MacLean 46, 47 v. Topp 11 Sawdon v. Andrews 92 Scarth, Lire 100 Scattergood v. Silvester 22 Schneider v. Foster 39 Schotsmans v. L. & Y. R. Co. 78, 81 Scorell V. Boxall 5 Scott v. E. C. R. Co 4, 6, 97 V. Pettitt 75 Scrivener v. G. N. Ry. Co. . . 68 Seath V. Moore 26, 27 Selway ?;. Fogg 100 Sharp V. Gt. W. Ry 47 Sheely v. Edwards 27 Sheldon v. Cox 1 Shepherd v. Harrison 34, 35 V. Kain 58 V. Pybus ... .53, 54, 55 Shardlow v. Cottcrill 13 PAGE Sievewrightv. Archibald .. 5, 15, 16 SifEkin z'. Wray 73,80 Simmonds v. Carr 96 V. Humble 8, 9 Simmons v. Swift 25, 27, 28 Simond v. Braddon . . 105, 106, 107 Sleddon v. Cruikshank 29 Smart v. Hyde 63 Smith V. Baker 53 V. Chance 40 V. Clarke 103 V. Goss 81 r. Hudson 10 V. Hughes 53 V. Myers 108 i\ Surman 2, 5 Snow V. Shoemacker Man. Co. 64 Soria v. Davidson 1 Spalding v. Rudiag 84, 85 Spartali v. Benecke 68, 69 Springwell v. Allen 23 Stapleton, Ex parte 71, 86 Startup V. Cortazzi 90 • V. MacDonald 38, 41 Stephens v. Wilkinson 87 Stock V. Inglis 37 Stoveld V. Hughes 72 Streets. Blay 51, 66 Stroud V. Austin 89, 90 Summers v. Vaughan 50 Sutherland v. Allhusen 38 Sutton V. Temple 52 Swain v. Shepherd 99, 110 Swanwick v. Sothem 29 Sweet V. Pym 68 Sweeting v. Turner 37 Swett V. Shumway 56 Syers v. Jonas 63 T. Talver v. West 8 Tamvaco v. Lucas 46, 47 Tanner v. Scovell 82 Tansley r. Tiu-ncr . .10, 28, 29, 69 TABLE OF CASES. XV I'AOE Tailing v. Baxter 25, 36 r. O'Riordan 44,97 Taylor v. Chambers '20 V. Wakefield 8 Tempest v. Fitzgerald 11, 69 Tetley v. Shand 42 Thol V. Henderson 91,93 Thompson r. Gardiner 10 Thorn v. Mayor, &c. of London 54 Thomctt V. Haines 103 Thornton «'. Charles 15 . r. Kempster 13, 10 Thiimell v. Balbimie 49 Tigi-ess, The 72, 77 Tomkinson r. Staight 8, 12 Tooke r. Holling worth 36 Toulmin v. Hedley 51 Town Com. of Newtownards r. Woods 20 Trent & Humber Co. , Ex parte 9 1 Tripp r. Armitage 27 Tixlly V. Terry 44 Turley v. Bates 28 Turner v. Mucklow 57, 58 V. Trustees of Liverpool Docks 34, 78 Tye V. Fjnimore 59 V. Gwynne 07 U. LTlock r. ReddiUn ... .42, 00, 116 Upton Man. Co. v. Huiske . . 63 r. Sturbrido-c Mills . . 36 V. "Van Casteel r. Booker 34, 35 Vandcnburgh r. Siwoner .... 13 Vayle v. Bayle 42 Vemede y. Weber 107 PAGE Vcrtue V. JeweU 70,73, 84 Vibbard v. Johnson 60 Vilmont v. Bentley 17, 21, 22 W. Wackerbath v. Mason 39 Waddington v. Oliver 97 Wagstaff r. Shorthorn Dairy Co 94 Wait r. Baker 31, 33, 110 Walker v. Langdale's Chem. Man. Co 43,60 I'. Matthews 21 V. Nussey 12 Wallace v. Breeds 29 Waller r. Drakeford 18 Wardr. Hobbs 61, 03 Warlow r. Harrison 103, 104 Washbourn v. Burrows 5, Watson, Ex parte 74, 76, 80 V. Denton 95 Watts r. Friend 7 Wells r. Hopkins 60, 67 Wentworth i\ Outhwaite .... 81 Westzinthus, In re 84, 85 Wlieelhouse v. Parr 33 White r. Garden 17 r. Proctor 14 r. Spettigue 20 V. Wilks 29 Whitehead r. Anderson 75, 76, 80, 81 Wliitchouse v. Frost 29 Wliittaker, Ex parte 101 Wider r. Schilizzi 61 Wilkins v. Bromhead . . 29, 30, 32 Wilkinson v. King 21 V.Lloyd 40 Wilks r. Atkinson 24 Williams v. Burgess 7 r. Jackman 26 V. Rej-nolds 90 Wilson f. Hart 100 XVI TABLE OF CASES. Wingfield, Ex parte 98 Withers v. Lyss 27 r. Reynolds 87 Wood V. Baxter 40 V.Bell 26, 27 ?•. Jones 73 Woods V. Russell 26, 27 Woodward v. Miller 103 Wrightup V. Chamberlain. ... 94 Young: V. Matthews Z. PAGE . 25 Zagury v. Furnell 27 S- Si0fst THE LAW or SALE. CHAPTER I. THE FORMATION OF THE CONTRACT. 1. The word ''g-oocls" means and includes every kind of corporeal moveable j^roperty (a). 2. Sale is an exchange of property for a price in money. It involves the transfer of the ownership of the thing sold by the seller to the buyer (b). Of course, when the mutual intention to sell and buy is absent there is no sale. Thus, the sale of an (rt) Cf. sect. G for the meaning of "goods, wares, and merchandise" under the Statute of Frauds. (*) Benj. (2nd ed.) pp. 1, 2. Another definition is given in the Indian Transfer of Property Act (4 of 1882) as "A transfer of ownership in exchange for a price paid, or pro- mised, or part-paid and part-jjro- mised." For cases of exchange pure and simple, see IFarrisoii v. Luke, 14 M. & W. 139 ; and partly of sale and K. partly of exchange, see Sheldon v. Cox, 3 B. & C. 420 ; Hands v. Bur- ion, 9 East, 349 ; and BttU v. Barhr, 7 Jur. 282. As to the distinction between sale and bailment, see South Austr. Ins. Co. v. Mandell, 3 P. C. 101 ; and between sale and agency, Ex parte Xeri/l, 6 Ch. 397 ; £x parte Bright, 10 Ch. D. 5G6 (cf., however, with these cases, Soria v. Davidson, 53 N. Y. Super. Ct. 470) ; and J)i.ron V. Lond. Small Arms Co., 1 Aji. Ca. G32. B 2 THE LAW OF SALE. article containing secret treasure is no sale of tlie treasure (c). And so an award tliat one party shall deliver to tlie other certain goods, on being paid, does not of itself, upon a tender, amount to a sale (r/). An intention to sell and buy may be presumed from the transaction (though the parties may call it a guaranty or agency), as where one party confers upon the other all that a seller could convey in respect of property or a buyer demand {c) . And a sale may be inferred (the intention to transfer the ownership being clear) though the governing motive of the parties is that one should have a right to the chattel as security for a loan (/). As to mistakes as to the identity of the person con- tracted with excluding a contract of sale, cf. Cundy v. Lindmij, 3 Ap. Ca. 459. In Rodlif v. DalUngcr (55 Am. Rep. 439) there was an express refusal to con- tract with the alleged buyer otherwise than as an agent. 3. A contract whereby one person is employed to do work for another amounts to a contract of sale, or one for the exercise and supply only of labour and materials, according as the subject- matter of the contract is or is not a chattel, the ownership whereof [being unqualified by any inde- 2:)cndent rights in relation to such subject-matter of flic employer] is to be transferred by the workman to his employer [g). ((■) IIuthcDnachcr v. Harris, 38 jievljittledale, J., in Smith Y.Siirma>i, Pcnn. 491 ; cf. also Merry v. Green, 9 B. & C. 561 ; Isaacs v. Hardy, 1 7 M. & W. 623. Cab. & Ell. 287 ; per Parke, B., in {d) Hunter \. Rice, 15 East, 100. Finncr y. Arnold, 2 C. M. R. 616. {() HiittoH V. Lippert, 8 Ap. Ca. With respect to the clause in 309. brackets, see a note to an article (/) MacBabi v. Wallace, 6 Ap. Ca. by Mr. Justice Stephen and Prof. 688. Pollock, in No. 1 of Law Q. Rev. {g) LccY. Grifm, 1 B. & S. 272 ; pp. 9, 10. The gist of the note is THE FORMATION OF THE CONTRACT. 3 Explanation. — In tlic detcrnuiiation of the afore- said question, the following- facts are irrelevant : — (1) The relative value of the labour and the materials {li). (2) The fact that the "workman exercises his labour on his own materials (0- Illustrations. — 1. A. contracts to build and fix upon B.'s land a steam eugine. Tins is not a contract of sale, as it is not a con- tract for the sale and delivery of a chattel, as such, but merely for the afUxing of something to the land. Clark v. Buhner, 11 M. & W. 243 {j). 2. A., a printer, agrees to find the paper for, and to print, 500 copies of a certain treatise for 15. This is a contract for the exercise of labour and supply of materials by A., and not a con- tract of sale, as the books when jirintod are not the absolute property of A., as B. retains his copyright, and there is no chattel properly to be transferred. Clay v. Yates, 1 H. & N. 73. 3. A. employs B., an attorney, to prepare a deed. This is a contract of work, labour, and materials [as A.- possesses an interest in the deed when drawn]. Per Blackburn, J., in Lee v. Griffin, infra. 4. A., a dentist, makes for B. a set of artificial teeth. Not- "vrithstanding that A.'s labour is skilled labour, this is merel}' a contract of sale, as a chattel is to be delivered to B. Lee v. Griffin, 1 B. & S. 272 ; 30 L. J. Q. B. 252. 4. A contract whereby the ownership of the thing* which is the subject-matter thereof is immediately, upon the completion of the contract, transferred to the buyer, is called a bargain and sale. this— that a contract to make a tage, 2 C. B. 336 ; per Hill, J., in thing wliich, when made, is not the Lee v. Griffin. Of course, when the absolute property of the maker, is a employer furnishes the materials, or contract for work and labour, as the part thereof, the contract is for work OAvnership to be transferred to the and labour, as the labour (in the words employer is already affected by rights of Blackburn, J., in Lee v. Griffin), of his, e.g., a right of coiiyright. "ends in nothing that can become (A) Per Crompton and Blackburn, the subject of a sale: " cf. Benj. ('2nd JJ., in Lee v. Griffin ; cf. Gregory v. ed.) p. 85. Stryker, 2 Denio (Am.), 628. (J) Cf. also Anglo- F;/;/p(iiin Xav. (i) Clark V. Mumford, 3 Camp. 37 ; Co. v. Itennie, 10 C. P. 271. per Maule, J., in Grafton v. Armi- 11 2 4 THE LAW OF SALE. A contract whereby the transfer of such owner- ship is postponed till some future time, or the per- formance of some condition, is called an executory contract of sale (/). lUustmtiun. — A. contracts to sell to B. a quantity of iron on condition that, on delivery, certain bills which were outstanding against A. should be taken out of circulation. This is an execu- tory contract of sale until the bills are withdrawn. Bishop v. Shilleto, 2 B. & A. 329 a. 5(/t). No contract for the sale of any goods, wares, or merchandise of the value of 10/. or upwards, is enforceable by law, unless (1) The buyer accept and actually receive part of the goods so sold ; or (2) Give something in earnest to bind the bar- gain, or in part payment of the price ; or nnless (3) The bargain (/), or some note or memoran- dum [m) thereof, be in writing, signed by the [j) Benj. ('2ncl ed.) pp. 3, 4. In that in the latter case it is only the some cases the assent of the buyer transfer of the ownership, and not the to a sale may be conditional, as formation of the contract, that is post- where the goods are sent "on sale poned. or return." HcvctheforHiationoiihe (Jc) 29 Ch. 2, c. 3, s. 17 ; 9 Geo. 4, contract is suspended tiU the fulfil- c. 14, s. 7, which are to be read to- ment of the condition, and in the gether : cf. Scott v. S. C. Ry. Co., 12 meantime the buyer is merely a M. & W. 33 ; and Harman \. Reeve, bailee: Benj. (2nd ed.) p. 49 ; per 18 C. B. 587 ; 25 L. J. C. P. 257. Dcnman, J., in Elphick v. Barnes, 5 (Z) For a possible distinction be- C. P. D. 32G. The same principle tween s. 4 and s. 17 of Statute of ■would apply to a case like Bianchi Frauds, founded on this word, as dis- V. NasJi, 1 M. iS: W. 545, where the tinguished from " agreement," cf. buyer became the bailee of a musical s. 18, note {c), post. box, with an agreement to pay for it (;«) Observe that the statute makes if damaged in his possession. The no mention of an agreement origi- distinction between such cases and nally in writing, but such cannot be executor}' contracts of sale is this— excluded : cf . per Erie and Patteson, THE FORMATION OF THE COXTKACT. 5 parties to be cliarg'cd thereby, or their agents tlicreimto lawfully authorized. If the above conditions be satisfied, the agTcement then (n) becomes a contract enforceable by law ; but the fulfilment thereof after action has not a re- trospective operation (o). 6. The words ''goods, wares and merchandise " in the preceding section include //•wc/^^s nafuraks and fnictus indiisln'alcs, whether mature at the date of the contract, or immature, the ownership whereof is to pass to the buyer after severance thereof from the soil(;;), and, in the case of fnictus indiis- trialcs [perhaps], also when such ownership is to pass before severance (;/); but do not include : ( 1 ) Fructus naturaks, the ownership whereof is to pass before severance (r) [and from the f mo- ther growth whereof the buyer is to derive benefit] {s) ; JJ., in Sieveuriffhi v. Archibald, 17 in these cases, that fntctiis indus- Q. B. 107, 114; and Cockburn, C.J., irialcs, even •while imsevered, are in WiUiams v. Lake, 29 L. J. Q. B. 1. chattels, and, scmble, goods. But of. («) This, although the statute says Amos and FeiTard on Fixtures, 3rd the bargain shall not be good, i. e., ed. p. 334. void : cf. per Williams, J., in Bailey For a definition of fructus iiidus- V. Sweeting, 8 C. B., N. S. 843 ; and triaku, cf. Graves v. JFeld, 5 B. & Ad. per Brett and Thesiger, L.JJ., in 105. Brittain v. Rossitcr, 11 Q. B. D. 123. (r) Rodwell v. Phillips, 9 M. & W. (o) Bill V. Bamcnt, 9 M. & W. 36 ; 502 ; Campbell v. Roots, 2 M. & W. and per Willes, J., in Gibson v. Hoi- 248 ; Seorelly. Boxall, 1 Y. & J. 396. land, 1 C. P. 1. (s) Marshall v. Green, 1 C. V. D. (jo) Smith V. Surmaii, 9 B. & C. 35 ; but qg. whether this case was 661, fructus naturuh's ; Sainsburg v. not decided upon a wrong view of Mathews, 4 M. & W. 342; per cur. the ratio decidendi oi Smith v. Surman. in Washbourn v. Burroics, 1 Ex. 107. In the latter case ownership passed {q) Per Bayley and Littledale, JJ. , after severance, the timber being sold in Evans v. Roberts, 5 B. & C. 829 ; at so much per foot. In Marshall v. Jones T. Flint, 10 A. &: E. 753. Held Green, scmble, the ownership passed THE LAW OF SALE. (2) Tenant's fixtures sold while unsevered (t) ; (3) Scrip («), shares (v), and stocks (w) ; (4) Choses in action (x) ; (5) Documents of title (i/). 7. The terms of section 5 include (^) : (1) An entire agreement for the sale of goods, and for other objects, where the goods are of the value of 10^. («); (2) An entire agreement for the sale of different goods, the joint value w^hereof is 10/. (b); (3) An agreement for the sale of goods, not then in existence, or otherwise of unascertained before severance, ■which makes an in- telligible distinction. If M. v. G. be good law, the words within brackets must stand. {t) Lee V. Risdon, 7 Taunt. 188; Lee V. Gaskell, 1 Q. B. D. 700. The last case decided that a bargain and sale by the tenant's buyer to the lessor of unsevered tenant's iixtm-es was not a sale of goods, though there had been an intermediate sale by the tenant. But the dicta of the Court are to the effect that the original sale by the tenant to the plaintiff, who was not the incoming tenant, was only a transfer of a right to sever. The case, of course, does not decide that an executory contract for the sale of fixtures, to be severed before the ownership passed, would not be an executory sale of goods within the principle of SaintihHrij v. Mat- thews, and the remarks of Eolfe, B., in Waslihourn v. Jiurrows, supra. Semhle, that the principles of Lee V. Gaskell would apply to the case of tenant's fixtures under sect. 34 of the Agi'icultural Holdings Act, 1883, though they are there called ' ' the property" of the tenant; cf. Amos & Ferrard (3rd ed.), pp. 92, 334. («) Knight y. Barber, 16 M. & W. 70. [v) Humble v. Mitchell, 11 A. & E. 205 ; Duncuft v. Albreeht, 12 Sim. 189. («•) Hcsdtine v. Siggcrs, 1 Ex. 856. (x) Benj. (2nd ed.), p. 89, and per Lindley, L. J., in Colonial Sank v. Whinncij, 30 Ch. D. 283. [g) Benj. supra; cf. also Freeman V. Applegard, 32 L. J. Ex. 175, where held that stock certificates not goods -within Factors Act, 1842. (~) This section is modelled on the Digest by Stej)hen, J., and Prof. Pollock in Law Q. Kev., No. 1, p. 11. [a) Astcg v. Emery, 4 M. & S. 262 ; Cobbold V. Castou, 1 Bing. 399 ; 8 Moo. 456 ; Ilarmnn v. Reeve, 18 C. B. 587; 25 L. J. C. P. 257. ib) Elliott V. Thomas, 3 M. & W. 170 ; Scott v. E. C. R. Co., 12 M. & W. 33 ; Rigg v. Whisking, 14 C. B. 195. THE FORMATION OF TIIK CONTRACT. 7 value at the date of the contract, tlie value thereof being afterwards ascertained as 10/. (c) ; But they do not include a contract for the re-sale of goods by the buyer to the seller, forming a term ' of an entire and valid contract for the sale thereof to the former (d). Illustrations. — 1. A. agrees to sell B. a certain mare and foal atove the value of 10^., and also to agist them and another mare and foal of 13. 's for a certain time, in consideration of an entire sum of 30/. This is a contract of sale of goods above the value of 10/., though there be also terms as to agistment. Harman v. Reeve, 18 C. B. 587. 2. A. buys at B.'s shop a number of articles, each at a separate price less than 10/., the whole amount being 70/. This is an entire contract for goods above 10/. in value. Buldcy v. Parker, 2 B. & C. 37. 3. A. agrees to sell B. certain seed, and B. agrees to sell A. the crop produced therefrom at so much a bushel. The value of the crop when produced is over 10/. B.'s contract is within thel terms of the section. Watts v. Friend, 10 B. & C. 446. 4. A. agrees to sell B. a mare, supposed to be in foal, for 20/., and B. agrees, if the mare should prove to be in foal, to sell her for 12/. to A. B. pays the 20/. B.'s agreement to re-sell the mare need not be proved by any memorandum, or otherwise, the original entire agi-eement having become binding by B.'s payment of the 20/. Williams v. Burgess, 10 A. & E. 499. 8. The question whether any act or forbearance amounts in fact to an acceptance or actual receij^t, is one for the jury (e). 9. A sample of the goods sold constitutes a part of such goods, within the meaning of sub-s. 1 of (c) Watts V. Friend, 10 B. & C. (<•) Per Denman, C. J., in J(/(7» v. 446. Diidfield, 1 Q. B. 302 ; per Cole- ((/) WlUiams V. Burgess, 10 A. & ridfjc, J., and Williams, J., iniJKs/if; E. 499. V. Wheeler, 15 Q. B. 442. 8 THE LAW OF SALE. sect. 5, if it be considered by tlie parties part of the bulk sold (/). 10. An acceptance is an assent by tbe buyer to the receipt of the goods as having been made by the seller in fulfilment of the contract of sale (^). It may precede, be contemporaneous with, or subse- quent to, an actual receipt (h). ExplanaUon{i). — Any act or declaration done or made by the buyer, Avith the consent (/) of the seller, in relation to the goods, which involves an admission of the existence of a contract for the sale thereof, is relevant to prove such an acceptance as aforesaid ; but it is not necessary to such an ac- ceptance that any such act or declaration should constitute an absolute and final acceptance of the goods in performance of the contract, or involve an admission of the particular terms [k] thereof, or of the due fulfilment (/) of such terms by the seller. 11. In particular, an acceptance, within the meaning of the preceding section, takes place — (1) When the buyer agrees unconditionally to buy specific goods, or selects goods after an opportunity of testing or examining the same (m) : or (2) When he retains goods, or the documents of (/) Talver v. West, Holt, 178 ; C. 511. Hincle v. Whitehousc, 7 East, 558; (/,•) Tomlcinson v. Staight, 25 L. J. Gardner v. Grout, 2 C. B. N. S. 340. C. P. 85. {g) Cf. per Brett, M. K., in Pcige {I) Per Bramwell, B., in Castle y. V. Morgan, 15 Q. B. D. 228. Sicorchr, 29 L. J. Ex. 235. (/i) Cusack V. Robinson, 1 B. & S. {m) Cusach v. Rohinson, 1 B. & S. 299. 299 ; Kershaw v. Ogden, 3 H. & C. (i) Tagc V. Morgan, supra. 717 ; H'lmmonds v. Humble, 13 C. B. (» Taglor v. Wahcfivld, 6 E. & B. N. S. 258. 705 ; and VhilUps v. Jiisiolli, 2 B. & THE FORMATION OF THE CONTKACT. 9 title tlicrcto, after an actual receipt thereof, for such a time as to lead to the presumption that he intends to take thereto as owner (») : or (3) When he uses or deals with the goods, or the documents of title, as an owner thereof (o). 12. An actual receipt takes place when there is a delivery of the goods, or of the documents of title thereto, to or into the control of the buyer, and so as to divest the seller's lien in respect thereof ( y>). 13. In particular, an actual receij)t takes place, within the meaning of the preceding section : — (1) When the goods, being in the possession of the seller, the latter constitutes himself a bailee thereof to the buyer (^7): (2) When the goods, being in the possession of the seller's agent, the latter, Avi|^^ ^l^c consent of the seller, attorns in respect thereof to the buyer (r) : (3) When the goods, being in the possession of a {11) Bushel V. Whcclcr, 15 Q. B. There mxist te an agreement between 443, n. ; per Bramwell, B., in Boiccs the parties to constitute the seller a T. rontifvx, 3 F. k F. 739 ; Coleman bailee ; mere continuance of the V. Gibson, 1 M. & Rob. 168; Cttrrie seller's possession is insufficient : cf. V. Anderson, 2 E. & E. 59-'. per Kay, J., in. In re Roberts, 3 Times (o) Purser v. Wallis, 5 E. & B. 21 ; L. R. 678, quoting Elmore v. Stone. per Erie and Crorapton, JJ., in Mere- {r) Bcntall v. Burn, 3 B. & C. 423 ; dith V. Meigh, 2 E. & B. 364 ; Marshall Farina v. Home, 16 M. & W. 1 19. In V. Green, 1 C. P. D. 35. Simmondsv. Humble, 13C.B N.S.2o8, {p) Phillips V. Bistoli, 2 B. & C. where thegoodswere in thepossession 611 ; per Parke, B., in ^i//v.i?rtww<, of the seller's agent, held that the 9 M. & W. 41 ; per cur. in Cusack v. completion of the contract through Robinson, 1 B. & S. 299. the medium of the agent, ipso facto {q) Elmore v. Stone, 1 Taunt. 458 ; converted him into a bailee for the Castle V. Sworder, 6 H. & N. 828 ; buyer. Scd quctrc. Beaumont v. Brengeri, 5 C. B. 301. 10 THE LAW OF SALE. third and neutral person, the seller puts them at the disposal of the buyer, and suffers him to take possession thereof, or to deal with them (s). 14. When the goods sold are at the time in the possession of the buyer, an acceptance and actual receipt thereof takes place when the buyer deals therewith in a manner inconsistent with the con- .tinuance of his former possession (2^). 15. A carrier, though selected by the buyer, is not, in the absence of evidence to the contrary, the agent of the latter to accept (ti), but he is to actually receive (v), the goods sold. Illustrations. — 1. A. sells to B. specific firkins of butter, wMch. B. inspects and orders to be sent to C.'s warehouse, which is done. B. has accepted and afterwards actually received the butter. Cusack v. Rohiiison., 1 B. & S. 299. 2. A. orders goods of B., to be sent to him by a particular carrier, which is done, and an invoice is sent to A. informing him thereof. A. allows the goods to remain five months in the carrier's warehouse after arrival, without communication to B. A. has actually received the goods, and there is also evidence of his acceptance. Bushel \. Wheeler, 15 Q. B. 443, n. (6) Marshall y. Green, 1 C. P. D. prove when the place of deposit is 35 ; Tansley v. Turner, 2 B. N. C. not the seller's. Grove, J.'s, view 151 ; Cooper v. Bill, 3 II. & C. 722. of the case is in accordance with Submitted that the fact that the Tansley v. Turner, and Cooper v. BUI. goods sold were in the possession of (t) Edan v. Dudjield, 1 Q. B. 302 ; a third and neutral 2}arti/ 'waa the tvue Zilli/white v. Devereux, 15 M. & W. ratio decidendi of Marshall v. Green, 285. according to the opinion of Grove, J. («) Hanson v. Armitage, 5 B. & A. Coleridge, C. J., and Brett, J., 557; Norman v. Phillips, 14 M. & however, treat the case as if the de- W. 277. Per Blackburn, J., in cision would have been the same if Smith v. Hudson, C B. & S. at p. 448. the land liad been the seller's, which («)) Smith v. Hudson, supra. Mr. on the facts was doubtless the case. Campbell's view is, that there is no But submitted that (as Grove, J., actual receipt until the iransltus has says), the actual receii)t is easier to ended: cf. j). 184 of his book. THE FORMATION OF THE CONTRACT. 1 1 3. A. buys g;oods of B., and orders them to bo sent by a par- ticular vessel, the bill of lading- to bo made out to the order of C, and to include other goods of A.'s. A. receives the bill, which he keeps for a year. The ship never arrives. A. has accepted and actually received the goods. Currie v. Anderson, 2 E. & E. 592. 4. A. sells to B. some turnip seed, and delivers it. B. spreads it out to dry it. B. has actually received the seed, and has also accepted it, if ho acted as owner, and not by the authority of A., or merely to preserve it on A.'s behalf, if he thought it perish- able. Parker v. Wallis, 5 E. & B. 21. 5. A. sells B. a particular horse, and, after the completion of the bargain, asks B. to lend it him, which B. agrees to do. The horse never actually goes out of A.'s possession. There is an acceptance by B., and also (as A. holds the horse as B.'s bailee, and not as unpaid seller) an actual receipt, Marvin v. WalUs, 6 E. & B. 726 (»')• 6. A. sells to B. a horse, no time being specified for payment, and it being part of the bargain that the horse shall be kejit by A. for twenty days. At the expiration of that time, A. sends the horse by B.'s directions to Kempton Park, but entering it in his own name. There is no actual receipt by B., as he has never had the control of the horse, and A. has never parted with his lien. Carter v. loussainf, 5 B. & A. 855 {x). 7. A. sells goods to B., and delivers them to A.'s agent, C, who warehouses them with J)., who hands C. a delivery war- rant. C. indorses the warrant to B., who keeps it ten months, without presenting it to D. There is evidence of acceptance by B. (by reason of the retention of the warrant), but there is no actual receipt, as D. has never attorned to B. Farina v. Jlorne, 16M. & W. 119. 8. A. sells B. timber, then growing on the land of C. B. cuts down some of the trees, and agrees to sell the tops and stumps to D. B. has accepted, and (as A. put the timber at B.'s dis- posal and allowed him to deal with it) actually received the timber. Marshall v. Green, 1 C. P. D. 35 (y). 9. A. sells goods to B. by sample, and delivers them to B.'s (w) Cf. Castle V. Sworder, 30 L. J. and Hodgson v. Lc Bret, lb. 233, on E.x. 310; Elmore v. Stone, 1 Taunt. tlic qiiestion of actual receipt. But 457. those cases wore disapproved of in [x) Cf. Tempest v. Fitzgerald, 3 B. & Froctor v. Junes, 2 C. & P. 532 ; and A. 680. Saunders v. Topp, 4 Ex. 390 ; and ((/) Coleridge, C. J., and Brett, J., were, semhle, overnUcd in Baldtij v. in this case seem to refer to and Farlcer, 2 B. & C. 37 ; and Fill v. follow Anderson v. Scot, 1 Camp. 235, Famcnt, 9 M. & W. 36. 12 THE LAW OF SALE. carrier. B. sub-sells to C. B. has actually received and ac- cepted the goods, though he may afterwards contend that the goods were not in accordance with the sample. 3Iorton v. Tib- hetts, 15 Q. B. 428. 10. A. buys of B. a quantity of wheat by sample, and on de- I livery opens a number of the sacks for the purposes of examina- 1 tion, and then rejects the whole as unequal to sample. There is 1 an actual receipt, and also evidence of an acceptance by A. ' Page v. Morgan, 15 Q. B. D. 228. 11. A. sells and delivers to B. a piano at a certain price, which B. retains. B. has actually received and accepted the piano, though he may afterwards insist that he was entitled to credit for payment. Tomihison v. Staight, 25 L. J., C. P. 85. 12. A., the tenant under B. of a furnished house, agrees to buy the furniture if C, the superior landlord, would accept A. as his tenant. C. refuses his consent, and A. continues his pos- session under B. There is no evidence of an acceptance or actual receipt of the furniture, as A.'s possession as B.'s bailee remains unchanged. Lilhjwhite v. Devereux, 15 M. & W. 285. 16. Earnest means anything, not forming part of the price, given or received to bind the bargain (.«). Illustration. — B., the buyer of goods, takes a shilling from his pocket and draws it across the hand of A., the seller, and then puts it into his pocket. This does not amount to the giving of earnest. Blenkinsoj) v. Clayton, 7 Taunt. 597. 17. Part payment must be made at or sub- sequently to the time of the agreement, either by means of some separate act or by virtue of some collateral agreement not itself forming one of the terms of the original agreement of sale [a). Illustratio7i. — A., being indebted to B. in the sum of 41., sells to B. goods to the value of 20/., on tlie terms that B. is to pay only the balance of 16/. There is no part payment by B. of 41., as the set off does not operate as an admission of the agreement, not being collateral thereto. Walker v. Nursey, 16 M. & W. 302. (z) Bhnklmop v. Clayton, 7 Taunt. {«) Walker v. Nursey, 16 M. & W. 697 ; Evans v. Roberts, 5 B. & C. 302 ; cf. per Cowen, J., in Artcher 829 ; Bach v. Oiven, 5 T. R. 409. v. Zeh, 5 Hill, 200 ; Langd. Gas. on C. 332. THE FORMATION OF THE CONTRACT. 13 18. The note or memorandum of the agreement of sale must in all cases (in addition to any other material terms thereof) include, either in express terms or by implication, (1) The names or description of the seller and buyer, in their respective characters as such (b) ; (2) The goods sold (HhacU, 6 E. & B. 355 ; and condition precedent : per Lord EUen- Tripp V. Armitnge, 4 M. k W. 687. borough in Hanson v. Jfei/fr, supra, Woods v. Jiusscll, supra {on thin -point) quoting lEammond v. Andirson, 1 was disapproved of. Gossv. Quintoii, N. R. 69. 3 M. & G. 825, woidd appear to bo (/) Per Cockbum, C. J., in Jlar- doubtful law; cf. per Jervis, C. J., iineau, v. Kitch'uiff, L. R. 7 Q. B. in Woody. Bell, supra. 436, distinguishing on this ground [k) Cf. Blackbui-n, p. 152 ; Hanson >Simmons v. Swift, 5 B. & C. 857 ; cf. V. Meyer, 6 East, 614; Withers v. also, per cwv.iw Logan y. LeMesaricr, Lyss, 4 Camp. 237 ; Zagury v. Furnell, supra. And for an express decision ia 2 Camp. 240 ; Logan v. Lc Mesuricr, Am. cf. JS/icely v. Edwards, 49 Am. 6 Moore, P. C. 116. Thus, Avhcre R. 43. 28 THE LAW OF SALE. 2. The mere arithmetical calculation of the results of an act on which tlie price of the goods is to depend, such act having been performed, is not deemed a thing remaining to be done within the meaning of this section (m). Strictly speaking, Turley v. Batc)^, infra, was decided only on the ground that the parties showed a clear intention that the ownership should pass, and it was not expressly decided whether the rule as to the post- ponement of the transfer of the ownership applied, where the act was to he done onJij hij the buyer. But the court expressed a strong opinion that the rule does not apply to such a case : cf. also Kcrshcno v. Ogden, 3 H. & C. 717. Irrespective of the above question, it would seem to follow, from the dicta in Turley v. Bates, that, where the price of specific goods is to be de- termined after the consumption or alteration thereof by the buyer, the vesting of the ownershijD in him will not be postponed till the period of such ascertainment : cf. some remarks in Langdell's Cases on Sale, p. 1026 ; and cf. Ward v. Shaw, 7 Wend. 404, which was in its facts similar to the ease put, arguendo, by Pigott, Serj., in Turley v. B(dci^. But there the court came to the conclusion that the transfer of the ownership) was conditional on payment. Illustrations. — 1. A., who owns a specific stack of bark, contracts to sell it to B. at 9Z. a tou, the bark to be weighed by A. and B., and the price to be paid on a future day. Part is weighed and delivered. The ownership of tho rest does not pass to B. until weighing. Simmons v. Swift, 5 B. & C. 857. 2. A. contracts to sell a specific heap of clay to B. at 2s. a ton. B. is, by the contract, to load the clay in his own carts, and to wei^h each load at a certain weighing machine, situate on the road to his place of deposit. Here, nothing remains to be done by the seller after the contract, and the ownership of the clay is transferred at once. Turley v. Bates, 2 H. & C. 200. (/w) Tanslcij v. Turner, 2 B. N. C. 151 ; quoted in Bradley v. Wheeler, 44 N. Y. 495. BARGAINS AND SALES AND EXlXL'TOliY CONTKACTS. 29 3. A. sells to B. a specified quantity of oats, being all that a certain identified bin contained, and gives B. a delivery order on C, a warehouse-keeper, specifying the bin, and ordering liini tu weigh and deliver. C. does not weigh. The property in tho oats, nevertheless, passes to B. at once, as the identity of tho oats is ascertained, as being all that a particular bin contained, and, the quantity being known, weighing is not necessary to ascertain the price. iSicanwic/; v. Sotheni, 9 A. & E. 8t)5. 4. A. agrees to sell to B. certain timber then lying on C.'s land, at tho rate of so much per cubic foot. The timber is mea- sured by A. and B., and the cubic contents of each tree put down on paper, but the total is not added up. The ownership of tho trees passes to B. Tansley v. Turner, 2 B. N. C. 151. 40. Where an entire contract is made for the sale of moveable and innnovoablc property com- bined, the ownership of the moveable property does not pass before the conveyance of tlie immoveable property [n). 41. Where the goods are, at the time of the con- tract of sale, unascertained, it is necessary to the completion of the bargain and sale that they should be ascertained, as explained in the three following sections (o). Illustration.— k. contracts to sell B. twenty tons of oil froni A.'s cisterns. The cisterns contain more than twenty tons. No portion of the oil has, by the contract itself, become the property of B., and there is consequently no bargain and sale of any twenty tons. White v. Wilks, 5 Taunt. 170. 42. The ascertainment of unascertained or non- existent goods takes place by means of a subse(j[uent appropriation to the contract of goods by the one (m) Ncal V. Tincij, 1 Camp. 471 ; {o) WMins v. Bromhcad, 6 M. & Lamjon v. Toogood, 13 M. & W. 29. G. 963 ; Busk v. Davis, 2 M. & S. In Sleddon v. Crulkshmik, IG M. & W. 397 ; Wallace v. Breeds, 13 East, 522. 71, the buyer has severed the con- WhiUhouse v. Frost, 12 East, 614, tract by accepting the chattels. though followed in America is, semble, not law. 30 THE LAW OF SALE. party, and the assent to such appropriation, accord- ing to its terms, by the other (/?). Illustrations. — 1. A., havin<^^ a quantity of sugar in bulk, more than sufficient to fill twenty hogsheads, contracts to sell to B. twenty hogsheads of it. A. fills up twenty hogsheads with the sugar, and gives B. notice that the hogsheads are ready, and requires him to take them away. B. says he will take them as soon as he can. By this appropriation hy A., and assent thereto by B., the sugar becomes the property of B. Rhode v. ThivaiteSj G B. & C. 388. 2. A. orders B. to make him a greenhouse. AVhen the green- house is finished, B. writes to A. stating the fact, and asking for payment. A. sends the money, and asks B. to keep the green- house for him till he wants it. The ownership is in A., as the greenhouse has, after completion, been appropriated by B., with A.'s consent, to A. Wilkhis v. Bromhead, G M. & G. 963. 3. A. agrees to sell B. five tons of oil out of a lot then lying at C.'s wharf. A. orders C. to transfer five tons into B.'s name, and sends B. C.'s acknowledgment to that effect ; but B. is not to retain the acknowledgment unless he at the same time gives a cheque. B. retains the document, but refuses to give the cheque. The goods are not the property of B., as B. has not assented to A.'s approj)riation on his terms. Godts v. Rose^ 17 C. B. 229; 25 L. J. C. P. 61. 43. Such assent, as in the preceding section mentioned, may be given by means of a previous authority by the one party to the other to make an appropriation [q). Such an authority is presumed when, by the terms of the contract, the seller is to do some act with re- ference to the goods which cannot be done until they arc appropriated to the buyer (r). In such case, the seller's authority is executed, and a final {p) Per Erie, C. J., and Willes, J., [q) Per Erie, J., in Aldridge v. in Camjjbell v. Mersey Bocks, 14 0. B. Johnson, 8 E. & B. 88-5 ; per Willes, N. 8.412; per Hokoyd, J., in i^7iO(fe J., in Campbell y. Mersey Bocks, 14 V. Thu-aitcs, 6 B. & C. 388 ; Godts v. C. B. N. S. 412. Hose, 17 C. B. 229. ('') Blackb. p. 128 ct seq., cxuoting Com. Dig. Election. BARGAINS AND SALES AND EXECUTOliV CONiliACTS. Hi appropriation of the goods made, when lie does tliat act with respect to goods answering to tiie con- tract (5); and the bargain and sale is thereupon, subject to any contrary intention, as aforesaid, complete. Illnstratiumt. — 1. A. contracts to buy of B. 100 quarters of barley out of the bulk in B.'s granary, A. to send sacks therefor, which B. is to iill. A. sends 200 sacks, and ]'. fills 16.') sacks. The barley in the 155 sacks has been appropriated to A., and the ownership thereof passes to him on the filling of the sacks, B. liaviug thus executed his authority to appropriate, but A. has no right to the barley sufficient to fill the forty-live sacks. AUlridye V. Johnson, 7 E. & B. 885 ; 2G L. J. Q. ]>. 296 (/). 2. A. agrees to sell and ship to B. a cargo of maize, the bill of lading to be dated within a certain period, and to have the shipping documents attached thereto. A. tenders, by bill of lading, the cargo of the C. without the shipping documents. B. refuses the cargo. A. afterwards, in proper time, tenders the cargo of the D. with the documents. This last appropriation is binding on B., as the first not having been according to the contract may be withdrawn. Borroivman \. Free, 4 Q. B. D. 500. 3. A. agrees to sell to B. 500 quarters of barley, to be shipped by A. A. ships the barley, and takes the bill of lading to his own order. A dispute having arisen, A. (though 13. offers to pay cash) indorses the bill of lading to C. The ownership of the barley does not x^fiss to B. upon the appropriation b}- shipment, as A. (though he was committing a breach of contract) did not intend it to pass. Wait v. Baker, 2 Ex. 1 (?/). 44. Save as aforesaid provided in sections 42 (s) Borrotcman v. Free, 4 Q. B. D. barley ; cf. Anderson v. Jtforice, 10 600 ; per cur. in JJ'aii v. Ba/cer, 2 C. P. 609 ; 1 Ap. Ca. 713. In such Ex. 1. In Richardson v. Dunn, 2 a cane the ownership would not pass Q. B. 218, the informality of the tiU the completion of the filling of appropriation was waived by the all the 200 sacks. Qy. whether buyer. Bryans v. Nix, 4 M. & W. 775, is {t) Cf. Lamjton v. Higgins, 4 H. similar to Anderson v. Morice f It & N. 402. The decision would, seems, at any rate, contrary to semble, be otherwise, if the seller Aldridge v. Johnson. had to complete the filling of the («) Cf. Gabarron v. Krcrft, L. R. sacks, in other words, if the buyer 10 Ex. 274. had agreed to buy an entire load of 32 THE LAW OF SALE. and 43, no act done by the one party with the intention of, or preparatory to, making an appro- priation of the goods, constitutes a final appropria- tion thereof to the contract (x). It is doubtful how far, where one party has authority from the other to make an a2:>propriation, an appropriation not conforming to the terms of his authority, made by him, may be assented to by the other party, so as thereby to make such appropria- tion irrevocable by the party who made it (^). Explanation. — The question whether there has been a subsequent assent to any act of aj^propriation within sect. 42 is one of fact ; the question whether any act done by the one party showed merely an intention to appropriate, or amounted to the deter- mination of an election, within the meaning of sect. 43, is one of law(.*). It is submitted, that an actual assent to an appro- priation made under an authority, but not conforming thereto, would have the same effect in transferring the ownership as an appropriation assented to, and not made under any authority. The party making the appropriation cannot complain if his offer is accepted. Moreover, all the rules are only artificial rules, for the purpose of ascertaining the intention of the parties as to the transfer of the ownership : cf. on this point Campb. p. 236. Illustrations. — 1. A. orders tvro machines to be made by B. according to a certain pattern. B. makes the machines, and packs them in boxes, and writes to A. informing him of the fact. (x) Benj. 2nd ed. p. 264 ; per & G. 825, is, scmhic, not law. Erskine, J., in WiUvins v. Bromhead, {y) Cf. per Brett, L. J., in BoV' 6 M. & G. 963. Per Lord Penzance roivman v. Free, 4 Q. B. D. 500. in Dixon v. Bond. Small Anns Co., 1 [z] Blackb. 2nd ed. p. 129. Ap. Ca. G53. Goss v. Qui/tton, 3 M. BARGAINS AND SALES AND EXECUTORY CONTRACTS. 33 This is not a final api)roi)riation, altliougli so intomlod, by B., unk'.ss ass(Mito(l to by A., U. having no authority to bind A. by doing any act to the goods by way of appropriation. Atkinson V. jBcU, 8 B. & C. 277. 2. A. agi'eos to buy of B. a cargo of maize, the shipping docu- ments to be tendered. B. tenders a cargo witliout tlio documents, but A. assents to this tender. B. [perhaps] cannot withdraw the cargo teiulored and substitute another, and tlie cargo becomes tlie property of A. Cf. per Brett, L. J., in Borruinnan v. Free, supra. 45. A delivery, pursuant to the terms of the contract, of tlie noods contracted for by the seller to a carrier, or (unless the effect of the shi})ment is restricted Ijy the terms of the bill of lading-, as hereinafter explained in the next section) a ship- ment thereof on board a ship of, or chartered by, the buyer, constitutes a final appropriation by the seller of the goods to the contract, thereby vest- ing the ownership thereof in the buyer [a). Of course the Statute of Frauds must be satisfied, otherwise the ownership of the goods Avill not pass on delivery to the carrier or on shipment : Cooi/iLs v. B. Sf E. JR. Co., 3 II. & N. 510 ; per Parke, B., in fHa't V. Baker, 2 Ex. 1 ; and the goods must correspond with the contract: per Bramwell, B., in Browne v. Hare, 3 H. & N. 484; and (where the particular can-ier is selected by the buyer) must be delivered to the right carrier : Ililh v. Lynclt, 2G N. Y. Supr. Ct. 42 ; Wheclhouse v. Parr, 141 Mass. 093. The shipment is not complete till tlio bill of lading is given : per Bramwell, B., in Gabarron v. Kreeft, L. 11. 10 Ex. 274 ; and, previously thereto, the shippers intention, as to the transfer of the ownership, may be (rt) Dauea v. reck, 8 T. R. 330 ; 172, 173; Dimlop v. Lambnl, C C. & Dutton V. Sulomonson, 3 B. & P. o82 ; F. GOO ; \wv Bliukburu, J., in Cal- per Cottou, L. J., iu Mirahila v. Jm- ciillu, ijc. Co. v. Dc Mattos, 32 L. J. peritil Ottoman Bank, 3 Ex. D. ut pp. Q. B. 322. K. » 34 - THE LAW OF SALE. inferred from tlie terms of the receipt given for the goods. Craven v. Bi/der, 6 Taunt. 433 ; Falke v. Fletcher, 18 C. B. N. S. 400. 46. An intention on the part of the seller to reserve the ownership of the goods, notwithstanding appropriation thereof by shipment, will be presumed where he, on his own belialf, and not merely as agent (b) for the buyer, takes, on such shipment, the bill of lading to his own order, which he — (1) Retains in his own possession or control, or deals with on his own account (c) ; or (2) Forwards to an agent, making it deliverable to the buyer on the performance by the latter of some condition (d). Explanations. — 1. It is immaterial, where the inten- tion of the seller to reserve to himself control of the goods is clear, that the invoice of the goods states the goods to be shipped on account and at the risk of the buyer, or (where the goods are shipped on board the buyer's own vessel) that the bill of lading states the goods to be freight free, as the buyer's own property (I11 of ladin<2f, and tlio ownership of tlu; goods i-cpicsented therein', sliouhl l)e conditional on tlic acceptance or payment, as the ease may be, l)y tlie lju}'er of the bill of exchange (/). lUust rot ions. — 1. A. sells goods to B., and draws l)ills on him for the price, and takos the billot" lading to his own order, which he transfers to C, the purchaser of the bills. A. sends 15. the invoice, stating the goods to be shi2)ped on his account and at his risk. The ownership is not in J{. until ho paj's the bills. Jeii/ci/ns V. Broun, 14 Q. \^. 490. 2. A. sells goods to B., and ships them to C, B.'s agent, taking the bill of lading to the order of C, to whom he sends it, with an invoice, stating the goods to have been shipped at the risk of B. ; stating at the same time that he had drawn upon him at six months. The bill when presented is dishonoured. The ownership of the goods passed to B. upon the shipment, as A., having taken the bill of lading to C's order and sent it direct to him, had not made the appropriation conditional on payment. Key V. Cotesicorf/t, 7 Ex. 5do {(/). 3. A. sells a cargo of timber to B., on the terms that the bill of lading should be delivered on payment of a bill of exchange. A. takes the bill of lading to his own order, and indorses to C., to whom he transfers the bill of exchange. B. afterwards tenders the price, but (A then sells the cargo. The ownership of the cargo is in B., as he has fulfilled the condition of apjiropriatiou previously to the sale, and C. is liable to him. JMirabita v. Imp. Ott. Bunk, 3 Ex. 1). 164. 4. A. sells goods to B., and ships them, taking the bill of lading to his own order, and sends the invoice to B., stating the goods to bo on his account and at his risk, and that A. had drawn upon him in favour of C, A.'s agent. The bill of lading and bill of exchange is sent to C, who forwards both to B. B. cannot retain the bill of lading, and has no right to the goods, unless he accepts the bill. IShcplierd v. Harrison, L. 11. 5 H. L. 116. (/) Shepherd v. IIa)-risoti, supra, per Cockbum, C. J., in Shepherd v. ey.^\a.niiii. in. Ex parte Banner, supra ; JIarriion, L. li. 4 Q. B. 196, com- Mew V. Paytu; 53 L. T. 932 ; por meriting on Brandt v. Bowllnj, 2 B. & Cotton, L. J., in JUrabila's cas:-, 3 Ad. 932. Ex. D. 104. And,, in the circura- (y) Cf. Van Casteel \. Booker, 2 Ex. btances mentioned, the fact that f'91 ; Brown v. llan; 4 II. & X. an unindoratd bill of lading is also b22. sent to the bnycr, is immaterial : u2 36 THE LAW OF SALE. 47. A contract of sale for ready money is not a bargain and sale, unless the goods are paid for on delivery. A contract of sale by a tradesman in liis shop is ordinarily presumed to be a sale for ready money (7^). The transaction referred to in this section amounts, in fact, to a contemporaneous exchange of goods and money. When the payment is to be made, as happens at the Stores, previousli/ to delivery, though made at a separate desk or counter, the ownership would pro- bably pass on payment, and would not be postjooned till the exhibition, at the selling counter, of the voucher. 48. Subject to any intention (/) as to tlie inci- dence of the risk of the destruction of, or injury to, the goods sold, as expressed in, or to be inferred from, the terms of the contract itself, such risk attaches to the ownership of the goods (k). {h) llaswcU V. Hunt, cited in Tooke 427. As to the latter clause of this V. IloUlng worth, 1 T. R. 231 ; cf. un- section, cf. Bussey v. Burnett^ 9M. & reported case, quoted in 1 S. L. C, W. 312. 7th ed., p. 154: ; Story on Sales, s. (j) Castle y. Plaijfonl, L. R. 7 Ex. 313; per Bayley, J., in Bishop v. 98; Martiiieau v. Eltch'vig, L. R. 7 Shillito, 2 B. & A. 329 a ; cf. also Q. B. 436. Loeschman v. Williams, 4 Camp. 181, (A) Tarling v. Baxter, 6 B. & C. which was argued on the question of 360 ; Fragano v. Long, 4 B. & C. 219. stoppage j« <>-ff«.si;M, but which, sewW^", Semble, per Blackburn, J., in Mar - was a case where the oicncrship had tineau v. Kitching, at p. 456, that not passed. Delivery without demand where the buyer has, by delay or of payment is relevant to prove a otherwise, prevented the transference waiver of the condition as to payment. of the ownership, he is, on the prin- Haszcelly. lliott, supra; Upiony. Star- ciple of estoppel, bound to bear the bridge Mills, 111 Mass. 446, Held, risk. In MeConihe v. JST. Y. ^ Erie in ILcinbockle v. Zugbaum, 51 Am. R. R. Co., 20 N. Y. 495 (which at first 69, that the mere acceptance of a sight appears inconsistent with the note is not a waiver. As to partial above dictum), the point was not Avuivcr, cf . Bayne v. Shadbolt, 1 Camp. directly raised, that being an action BARGAINS AND SAJ^ES AND EXECUTORY CONTRACTS. .'J7 The terms of this section contemplate only the risk of destruction or injury caused, (\ pay irrespective of delivery (/). When the goods are to he paid for by a Lill or note, which is not given, the buyer is entitled to credit till the time when the bill or note would have matured : Mimen v. PnW, 4 East, 147 ; Brookey. White, 1 N. li. 33G; Uelps v. Wintcrhottom, 2 13. & Ad. 431; Uni/ v. Picfoii, 10 B. & C. 120 ; unless credit was made ex- pressly conditional on such bill being, in fact, given. Nicli-.son v. Jepsoii, 2 Stark. 227, explained in Paul v. Do(/, 2 C. B. 800 ; cf. also Pugg v. Weir, 16 C. B. N. S. 471. As to the distinction between the terms of pay- ment "cash with option of bill" and "bill with option of cash," cf. per Cockbum, C. J., in Anderaon v. Car- lisle Uorse Clothing Co., 21 L. T. 760 ; cf. also Schneider V. Foster, 2 H. & N. 4, and liugg v. Weir, auprd. When payment is to be made " at the convenience" of the buyer, this stipulation does not mean " at his pleasure," so as to be personal to the buyer and cease at his death, but means "mercantile convenience," and survives for the benefit of a joint buyer, who must pay when he has money free from the ordinary pm'poses of business. Craicshaiv v. Uornstcdt, '6 Times L. R. 426. V. Lett, 1 C. B. 222. The buyer may {c) Benj. (2ndod.) pp. obb, bib. sometimes be bound to accept goods (/) Bttnlop v. Grote, 2 C. & K. though not tendered at tlio place \bZ\ Alexaiidir \. Gardner, IB.'H.C. mentioned in the contract, if such 671, in which case the buyer liad place was selected in the interests of accepted the risk of delivery. With the seller. A7i7 v. WInlworth, 1 C. respect to the tune of payment for P. 084. And the buyer cannot dc- goods which are destroyctl, where mand a delivery elscwhoro than at payment was origintilly limitwl after the place mentioned in the contract, arrival, cf. Alexander v. Gardner, if such place were selected in the supra ; and per Bayloy and Holroyd, sellor's interest. Wackerbathy. Mason, JJ., in Fragano v. Long, i B. «fc C. 3 Camp. 270. 219. 40 THE LAW OF SALE. 62. In the absence of a contrary stipulation in that behalf, the seller is not bound to send or convey the goods sold to the buyer {g). 63. Delivery may be made by means of any act which has the effect of putting the goods in the pos- session, or at the disposal, of the buyer, or of his agent in that behalf (/^). Illustrations.— I. A. sells to B. a rick of hay then standing on C.'s land, and gives him an order on C, who had, previously to the sale, given a licence for its removal, and which licence is referred to in the conditions of sale. This is a sufficient delivery by A., though C. afterwards refuses to allow removal. Salter v. Woollams, 2 M. & G. 650. 2. A. sells B. cigars for ready money. They are packed in B.'s boxes, and are left with A. till called for. _ A. has not delivered the cigars, as they are not to be at B.'s disposal till he calls and pays. Boulter v. Arnott, 1 C. & M. 333. 3. A. sells goods to B., and gives him a delivery order on C, who holds them, and has no lien thereon. A. has delivered. Benj. (2nd ed.) p. 573. 4. A., who has purchased of B. a number of slates, then lying at C.'s wharf, re-sells them to D., and gives him a delivery order, which D. presents within a reasonable time, but B. had stopped the slates in transitu. A. has not delivered the slates to D. £uclille V. Green, 27 L. J. Ex. 33 ; 3 H. & N. 996. 5. A., the tenant of a farm, who is bound for every load of hay he removes to bring on two loads of manure, sells a rick of ]\ay to B. C, the incoming tenant, consents to the removal of the hay if A. brings the manure, which A. does not do. There is no delivery of the hay to B., A. not having fulfilled the condi- tions imposed by C. Smith v. Chance, 2 B. & A. 953. 64. After the completion of the bargain and sale, and until the time for the delivery of the goods has arrived, the seller is subject to the same {{/) Benj. (2iid cd.) pp. 558, 575; 27; cf. Wood \. Baxter, 49 L. T. 47, Campb. p. 277. wliere >S)iiUh v. Chance, hifra, was not {h) Benj. (2nd ed.) p. 558; per cited, cur. in If'Ukinson v. Lloyd, 7 Q. B. THE PKRFOKMANCE OF THE CONTRACT. 41 liability in rc.si)cct of the care and custody tliereof, as a bailee for reward. After default made by the buyer in removinf^, or in accepting; delivery thereof, the seller is sub- ject to the same liability as a g-ratuitous bailee (i). The principle is, that part of the consideration for the price is the care of the goods hy the seller until a reasonable time for the buyer to take delivery. After that time the seller receives no value for the custody of the goods, as he has performed all that was incum- bent on him. Cf. the analogous case of a carrier : Cairns v. liobiiis, 8 M. & W. 258. 65. A tender of delivery by the seller must be made under such circumstances that the buyer may have a reasonable opportunity of ascertaining whe- ther the goods tendered are such as the seller is by the contract bound to deliver (k). Illustration. — A. agrees to sell to B. a quantity of bats. A. sends the hats in closed casks to a wharf, and gives notice to B. tliat the hats are in the casks, but B. is not allowed an oppor- tunity of testiup: tliis fact. This is not a good tender by A. Ishencood v. Whitiunrc, 11 M. & W. 347. bQ. Upon the sale of goods by sam2:)le, it is a condition of the contract that the seller should allow the buyer a reasonable opportunity of comparing the bulk with the sample ; and, upon an improper refusal in that behalf, the contract is voidable at tho option of the buyer (/). (») Benj. (2n(i ed.) p. 583; St. on (/) Lonjmef v. Smith, 1 B. & C. 1. 8. 88. 300a, 300b, 393 ; Koon v. For a case where buyer lielil not on- Binkerhoff, 39 Hun, (N. Y.) 130. titled to measure good;*, sold by yard, (A) Ishcfuood V. Whitmorc, 11 M. before payment, cf. Pcttitt v. Mit' & W. 347 ; per Barke, B., in Startup chell, 4 M. k G. 819. V. MacdotiaUi, G M. & G. 593. 42 THE LAW OF SALE. 57. An insufficient tender may, unless [perhaps] 23reviously assented to by the buyer (m), be with- drawn, and, within the time limited for delivery, or otherwise within a reasonable time, a proper tender substituted therefor (n). 68. In the absence of any special promise as to delivery, whether expressed or to be inferred from the nature of the goods, trade usage, previous course of dealing, or otherwise, goods sold are to be deli- vered at the place where they are at tlie time of sale; and goods contracted to be sold are to be delivered at the place where they are at the time of the contract of sale ; or, if not then in existence, at the place where they are produced (o). 59. When, by the terms of the contract, the seller is to dispatch the goods to the buyer, he must duly follow any directions of the latter as to the mode of their transmission ( j») ; and must otherwise use ordinary care and diligence in and about the dispatch of the goods to insure their safe receipt by the buyer (q). Subject as aforesaid, a delivery of the goods to a carrier is a delivery to the buyer, and the goods thereafter are at the risk of the latter (r). {m) Cf . per Brett, L. J., in J]or- notice thereof . This is a condition : rowman v. Free, 4 Q. B. D. 500 ; and Davies v. McLean, 21 W. R. 264 ; 28 s. 44, supra. L. T. 113. (w) TelleyN. Shand, 20 W. E. 206 ; {p) mioch v. Redddln, Dans. & LI, 25 L. T. 658 ; Borrowman v. Free, 6 ; Vayle v. Baylc, Cowp. 294 ; Rills supra ; Imperial Ottoman Bank v. v. Lynch, 26 N. Y. Su^ir. Ct. 42. Cowan, 29 L. T. 52. {q) Clarke v. JIutchins, 14 East, (o) Benj, (2nd ed.) p. 561 ; Story 475; Cothay v. Ttitc, 3 Camp. 129. on Contract of Sale, s. 308 ; cf . also (r) Button v. Solomonson, 3 B. & P. per cur. in Hatch v. Oil Co., 10 Oito, 582 ; Calcutta Steam Co. v. T)e Mattos, 134. Where delivery is to be at an 32 L. J. Q. B. 328, per Blackburn, J. ; uncertain place, the seller must give Dunlopv. Zauibcrt, GC. &¥. 600. The THE PERFORMANCE OF THE CONTRACT. 43 The delivery to a carrier operates in two ways, viz., as an apjjropriafion of the goods, and as a per- formance of the contract. Button v. Solonionson, supra; and cf. sect. 45, and remarks thereunder. The above rule, as to the delivery of the goods to a carrier being a delivery to the buyer, does not obtain, when the goods are sent " on trial," or " on sale or return," so far as the computation of the time is con- cerned ; the object of the conditional contract being that the buyer should tr// the goods, of which he must accordingly have corporal possession : cf. note (/) to sect. 124. And q//. (per Grrove, J., in Pointin v. Porrier, 49 J. P. 109), whether delivery to a carrier ahroad is a delivery to a buyer in this country, within the terms of this section ? Illustration. — A. orders a number of chairs of B., to be sent by sea. B. deHvers them at a certain wharf to a person there, who is not proved to be the carrier's servant, and B. does not book the chairs, or take a receipt therefor. The chairs are lost. A. is not liable to B. for the price of the chairs, the delivery being bad. Buckman v. Levi, 3 Camp. 414. 60. When the seller undertakes to make delivery of the ffoods at their destination, a delivery of the goods to a carrier is not a delivery to the buyer, and the goods during the transit are at the risk of the seller (s), save in respect of any deterioration of the goods necessarily consequent upon their trans- mission to such destination (if). rule applies, tliouf^h the carrier (.■!) Per Blackburn and Mellor. JJ., ■wrongiully refuse to deliver to the in Calcutta St. X. Co. v. Df Mattos, buyer : Groning v. Mcndham, 5 M. & supra, quoting Dinihp v. Lambert, G S. 189 ; or, by reason of an intrinsic C. & F. 600. Cf. in Scotl. Walker v. change in the goods in transitu, they Latigdalc's Chem. Man. Co., 11 C. of are seized by the excise: King v. S. Cas. (3rd Ser.) 900. Meredith, 2 Camp. 639. Qy., how- (0 Bultv. liobisoii, 10 Ex. 312; 24 ever, how far this last case would be L. J. Ex. 165; 2 C. L. R. 1276, affected by the rule laid down in sect. latter best report; for the mutual 77, infra. rights and liabilities of seller and 44 . THE LAW OF SALE. 61. A delivery by the seller of a greater or a less quantity of goods than were contracted for (ii), or of the goods contracted for mixed with other goods (x), is not a good delivery, and the buyer may reject the whole of the goods, [if there be risk or trouble in the selection or separation thereof]. This section does not, of course, modify the buyer's ordinary liability, under a din'sibk contract, to accept any instalment duly tendered. Graham v. Jachson, 14 East, 498 ; Brandt v. Lawrence, 1 Q. B. D. 344, explained in Eeutcr v. Sala, 4 C. P. D. 239. For a case where the quantity was to be taken from the bill of lading, and the parties incurred a mutual risk as to the actual quantity being less or more, cf. Covas v. Bingham, 2 E. & B. 836, quoted in Tull// V. Terry, 8 C. P. 679 ; and for a similar case in America, cf. Heller v. AUentown Mfg. Co., 39 Him, 547. An interesting case on the subject of this section is Braicley v. United States (6 Otto, 168), where the law was thus laid down per cur. : — 1. Where the contract identifies the goods sold by reference to independent circumstances, e. g., all the goods deposited in a certain warehouse, buyer in respect of the merchant- 0' Rlordan, L. E,. Ir. 2 C. L. 82. Cf. ability on arrival of goods to be The Imperial Ottoman Bank v. Cowan, dispatched to a distant place, cf. 29 L. T. 52, where the bill of lading, sect. 77, post. including other g-oods, was specially («) Hart V. 3rdls, 15 M. & W. 87 ; indorsed, so as to enable buyer to Bixon V. Fletcher, 3 M. & W. 146 ; take delivery without trouble, and Cimliffc V. Harrison, 6 Ex. 903. The licld a good delivery. With respect rule is, however, less strict where to the clause between brackets, cf. the seller is also a commission agent; per Erie, C. J., in Hi/lands v. Kreit- per Blackburn, J., in Ireland v. Liv- man, and Byles, J., in Levy v. Green, ingstone, L. R. 5 H. L. 395. and Eitzgerald, B., in Tarling v. {x) Levy v. Green, 1 E. & E. 969 ; O'Riordan. " Risk " would seem to Nicholson v. Bradfield Union, L. R. include the danger of a presumed 1 Q. B. 620 ; Rylands v. Kreitman, acceptance of the goods. 19 C, B. N. S. 3ol ; Tarling v. THE PERFORMANCE OF THE OOXTRACT. 45 or to be shipped in certain vessels, tlio contract attaches to those specific goods, and the addi- tion of qualifying words, as " about," or " more or less," is only an estimate, subject, however, to good faith on the part of the seller : 2. Where the goods cannot be so identified, the quantity named is material, and the addition of qualifying words provides only for acci- dental variations, arising from slight or unim- portant causes or deficiencies : 3, But the qualifying words may be supplemented by other stipulations or conditions, c. g., so much as the buyer may require, or as the seller may be able to furnish, &c. : cf . GiciUim v. Daniel, iiifrci. Illustrations. — 1. A. orders of B. specific articles of crockery. B. sends the crockery packed in a crate, with other china of a different pattern, though distinguishable therefrom, and includes all the articles in one invoice, with prices attached. A. may refuse to accept any of the china. Levy v. Green, 1 E. & E. 969. 2. A. agrees to sell and consign to B. " about 300 quarters (more or less) of foreign rye." A. ships on board a vessel 345 quarters. This is not a good delivery by A. in performance of his contract, as his shipments are excessive, though some lati- tude was allowed. Cross v. Eglin, 2 B. & Ad. 106. 3. A. agrees to sell to B. all the naphtha which he may make during two years, "say, from 1,000 to 1,200 gallons a montli." During ten months A. delivers 3,000 gallons only, being all that he actually made. This is a good delivery by A., as the terms of the contract show that A. and B. contracted only for the amount of naphtha manufactured by A., and had merely estimated the quantity. Gwillim v. Daniel, 2 C. M. E. 51 {y). 4. A. agrees to sell to B. all the combing skin which he may pull within a certain period, " say, not less than 100 packs." A. must deliver to B. not less than 100 packs, as though a certain latitude was allowed, yet a minimum quantity was expressly stipulated for. Leeminy v. Snaith, 16 Q. B. 275. (y) Cf . MacdonncU v. Murphij, 2 1 W. words ' ' say about * ' were construed JR. 609 ; L. R. 5 P. C. 203. Morria as words of contract, was the case of V. Levisoii, 1 C. P. D. 155, where the a charter-jjarty, and not of sale. 46 THE LAW OF SALE. 5. A. agrees to buy of B. a specific heap of iron then lying in B.'s yard, which both erroneously estimate as containing about 150 tons, but which in fact contains only 44 tons. B. delivers all the iron. B. has performed his contract, having delivered the specific heap contracted for. McLciy v. Pei-ry, 44 L. T. N. S. 152 (;:). 62. Where delivery of the goods sold is to be made by means of a bill of lading, the seller will make a due delivery if he forward to the buyer, as soon as he reasonably can after the shipment, a bill of lading, duly indorsed and effectual to pass the ownership of the goods represented thereby («), and purporting on its face to represent goods in accord- ance with the contract, and which are in fact in accordance therewith {b). Illustrations. — 1. A. agrees to sell to B. 2,000 tons of iron rails, to be shipped at St. Petersburgh for Philadelphia, and j)ayment therefor to be made in exchange for the bill of lading. The goods are shipped, and three bills of lading are made out by the master, of which A. tenders two to B., duly indorsed, the third being outstanding in the hands of the original shipper, who, however, does not deal with it in any way. This is a good tender by A., though the third bill was outstanding, as the two were effectual to pass the ownership of the goods to B. Saunders v. MacLean, 11 Q. B. D. 327. 2. A. agrees to sell to B. a cargo, then at sea, of from 1,800 to 2,200 quarters of wheat, payment to be made by B. on receipt of the usual shipping documents. A. tenders to B. a bill of lading, purporting to rej)resent a cargo of 2,215 quarters, but the invoice represents a cargo within the limits of the contract, and the cargo is in fact between 1,800 and 2,200 quarters, and B. is not re- quired to pay for more than the invoice weight. A. has not made a good tender, and B. may reject the cargo. Tamvaco v. Liicas, 1 E. &E. 581. {z) Cf. Levi V. Beck ^- Co., 2 Times {a) Sanders v. JlacLean, 11 Q. B. D. L. R. p. 898; "a cargo, about 327. 450 tons;" whole cargo of 341 tons (b) Tamvaco v. Lucas, 1 E. & E. delivered, the word " cargo" being 581, 592 ; cf. Lmpcrial Ottoman Bank the governing word. v. Cowan, 29 L. T. 52, quoted in note (.(■) to preceding section. THE PERFORMANCE OF THE CONTRACT. 47 3. Tho facts being otherwise the same as aforesaid, A. tenders to B. a bill of ladinj?, purporting to represent a cargo in (|uantity within 1,800 and 2,200 quarters, but tho cargo is, in fact, less than 1,800 quarters. B. may reject it. *S'. C, 1 E. & E. o'J2. 63. Where goods are sold l)y means of a Ijill of lading, there is no condition implied in the contract that the seller shall send forward the bill to the buyer in time for him to send it on to meet the arrival of the vessel carrying the goods, or so as to arrive before charges have been incurred in respect thereof [c). 64 (^/). If the buyer, in an executory contract of sale, make an unreasonable delay in rejecting the goods after a delivery thereof (e), or uses or deals Avith them more than is necessary for purposes of trial or inspection (/), or otherwise as an owner thereof (^), he will be deemed to have accepted them ; provided always, that wiiere the goods con- tain a latent defect (Ji), not discoverable by an ordi- nary inspection at or before delivery, or wdiere the inspection of the goods takes place after, or else- where than at the place of delivery (/), the buyer, (c) Per Brett, L. J., in Sanders v. ceptance : cf. Wallace ^ lirown v. Maclean, 11 Q. B. D. 327. Robinson, Fkming $ Co., 22 Sc. L. R. {d) Cf. sect. 11, s«^m, on theques- 830. tion of an acceptance under the (//) Jlody v. Grcgson, L. R. 4 Ex. Statute of Frauds. 49 ; per Brett, J., in UvUbiitt v. (e) Sanders v. Jameson, 2 C. & K. HicJcson, 7 C. P. 4.56; and Grimoldbi/ 657; Farker v. ralmer, 4 B. & A. v. JFclls, 10 C. P. 391. 387. Tho parties may also agree (i) Grimoldbi/ v. If 'ells, 10 C. P. that a certain period of trial should 391 ; cf., also, the Scotch case of constitute a final acceptance. Sharp Fleming v. Airdrie Iron Co., 9 C. of V. G. TF. H., 9 M. & W. 7. Sess. C. 473. But the buyer cannot (/) Okell V. Smith, I Stark. 107 ; recall his acceptance, of course, if ho Hopkins V. Appleby, 1 St. 477. has dealt with the goods by re-sclling {g) Farker \. Falmer, supra. Break- them: cf. Campbell on S., p. 389. ing bulk is not necessarily an ac- 4B' - THE LAW OF SALE. altliougli lie may have, on delivery, accej^ted tlie goods, may, on discovering the defect, and without mireasonable delay, recall such acceptance and re- ject the goods. Explanation. — In determining what is a reasonable time for the rejection by the buyer of the goods sold, regard shall be had to the seller's conduct in inducing the buyer to make a further trial, or other- wise Qc). Illustration. — A. agrees to sellB. a liogsliead of cider, according to sample. B. taps it, and finding it inferior to sample, informs A. of the fact, saying he would have to return it if it continued unsatisfactory ; but A. returns no answer. A month afterwards, B. rejects the cider, haviug consumed about twenty gallons. B. has not accepted the cider at the end of this time, as A.'s silence implied his consent to a further trial. Lucy v. Moxifflet, 5 H. »& N. 229. 65. The buyer may exercise his right of rejec- tion of the goods by giving prompt notice thereof to the seller, or by doing any unequivocal act signify- ing his rejection, and he is not bound to return them to the seller, or to place them in any neutral custody (/). But the buyer, after a rejection of the goods delivered, must act, in relation thereto, in a reasonable manner. Subject thereto, the goods, after a rejection duly made, are at the risk of the seller (w^). {k) Per Bovill, C. J., in HcUbutt L. R. 2 Sc. Ap. 250, which is not V. Hiclcson, L. R. 7 C. P. 452, borne out by the judgment in that quoting Adam v. Richard, 2 H. Bl. case. As the buyer must do some 573; cf., also, Lucijy. Moufflct, 5 H. unequivocal act signifying his re- & N. 229. jection, he cannot annex conditions {I) Per Bayley, J., in OlcU v. thereto. Jardine v. Fendreigh, 6 Sc. Smith, 1 Stark. 107 ; Grimoldby v. L. R. 272 ; Howard v. Ilaycs, 47 N. Wells, 10 C. P. 391, explaining the Y. (Supr. Ct.) 89. head-note in Coitaton v. CItapmaii, (iii) Per Bayley, J., in O/i-ell v. I'llE l'J:Kl'OJiMA.\Ci: OF Till-: CONTKACT. 41* 66. AVhon tlic price of the goods has not been fixed by tlie terms of the coiitriict of sale, the buyer is liable to pay therefor a reasonaljle price (n) ; and where such price has Ijccn iixed, but the exact amount thereof is to depend upon the weighing, or measuring (o), or doing any other act witii reference to the goods, "svhich has become ini2)ossible by reason of their perishing, the buyer, if otherwise liable, must pay such a i)rice as may reasonably be esti- mated. In an executory agreement to sell goods for a price to be determined by a valuation, there is no sale if the valuers refuse or are unable to act : Tliurncll v. Balbirnie, 2 M. & AV. GSG. And the valuation, being a jjcrsonal act, cannot be delegated to another. Ens v. Trmcott, 2 M. & W. 385. 67. Payment of the price to the owner of the goods sold is a good payment as against a seller thereof without title (p). Smi(/i, 1 Stark. 107. The buyer i.s, in fact, ia the position of an in- voluntary bailee of the goods : cf . the analogous case of a carrier after the consignee's refusal, Uiiif/h v. N. IF. Ji., L. R. 5 Ex. ol ; Campb. p. 387. In Bailey v. Gnai, 1.5 Penn. 118, the buyer, after rejection, but •witliout notice thereof to the seller, left the goods in an insecure position, whence they were washed by a flood, and was held liable. See (as to the eifect of a rejection), Appendix A. (h) Acehal v. I^vy, 10 Bing. 376; Iloadlfy V. McLainc, ih. 482. And the current price of a cargo at tho port of shipment is not necessarily reasonable : jKr cur. in Acebul v. Levy. As to an increase of, or du- K. duction from, the contract price of goods sold duty free, when the duties have been increased or lowered after the contract, cf. the 39 & 40 V. c. 3G, 8. 20. (o) Per Blackbuni, J., in J/artiHcai* V. Kitchiiig, L. R. 7 Q. B. at p. 450 ; cf., also, Castle v. I'luyfortl, L. R. 7 Ex. 98; and Clarke v. Westrope, 18 C. B. 7Go, where the buyer had con- sumed the goods before valuation. Tlie buj-er is liable for interest on the price, where tho goods are to bo paid for by bill, which is not given, from the date when tho bill would have matured : Manhall v. PouU, 13 East, 98 ; Fart- v. Ward, 3 M. & W. 25 ; Daiia v. Smyth, 8 M. & W. 399. (;;) Lkkemon v. Saul, 4 B. i Ad. B 50 THE LAW OF SALE. 68. Tlie term "warranty" in the following sec- tions means a representation or engagement, express or implied, forming part (^) of the contract, as to tlie quality or fitness of the subject-matter thereof. Exjjlanation. — Every affirmation made at the time of a contract of sale is a warranty, if the facts of the case show that it was so intended (r). Illustrations. — A., the owner of an unsound horse, says to B., who is inspecting it, that it is sound. The horse is afterwards "bought at auction by B. This representation by A. is not a war- ranty, as it did not form part of the contract of sale which was made at the auction. Hopkins v. Tanqiieray, 15 C. B. 130 (s). 2. A. sells to B. a number of barrels of pork, stated to be " of S. & Co.," which, in the trade, means " manufactured by S. & Co." There is a warranty by A. that the pork is so manvifactured, and not merely that A. had received it from S. & Co. Powell v. Horton, 2 B. N. C. 668. 3. A. sells B. a horse, and gives him a receipt for "a grey four-year colt, warranted sound." This receipt is evidence from its terms that the only warranty is that of soundness, and that the description of the age is only an independent representation. Budd V. Fuirmanner, 8 Bing. 43. 4. A. sells to B. four pictures, and gives him the following G38 ; Allen v. Hoplcins, 13 M. xt W. sale, it reqiiii-es a new consideration : 94. And so, on the ground of of. iJoscorZav.TAowas, 3 Q.B. 234, and estoppel, an agent who sells goods. Summers y. Vavghan,9 Am.'Re-p.'W. stating them to be A.'s, is bound by (r) Anthony v. Hulstead, 37 L. T. a payment made to A. before he had 433 ; of. also, 1 S. L. C, 7th ed.,. p. given the buyer notice of his o-wn 174; per Bramwell, B., in Carter v. claim to commission, though some of Crlclc, 4 H. & N. 412. And the affir- the goods sold were not A.'s: Cojypin mation, if made during the coiu-se V. Walker, 7 Taunt. 237. The law in of the negotiation, so that it enters America appears, generally, tobe that into the bargain as finally made, the buyer cannot voluntarihj pay the and that the bargain is made on the owner, but, to constitute a defence, footing of it, will be a warranty : must do so under pressure : cf. per Huddleston, B., in Crowdij v. Vihbard v. Johnson, 19 Johns. 77 ; Thomas, 36 L. T. 26. Krumhhaer v. Birch, 83 Penn. 426. (s) Cf. with this case Percival v. Matheny v. Mason, 39 Am. R. 541, Oldacre, 18 C. B. N. S. 398, where seems to follow Allen v. Ilophins. there was evidence of the warranty (-7) Consequently, if made after the being part of the contract. THE PERFORMANCE OF THE CONTRACT. ,01 receipt: — "B. bought of A.: Four pictures, views in Venice (Canaletto), IGO/." It is a question for tlie jury Avliother this representation hy A. is a warranty that tlio pictures are hy Cana- letto, or is juercly a d('scrij)tion, or_aiLiiitimation of A-'s opinioB. Power y.'Barham, 4 A. & E. 473'. 69. Ill an cxccutoiy contract for the sale of goods, not then in existence, or unascertained, [or incapable of inspection], a warranty by the seller amounts to a condition of the essence of the con- tract (/) ; but it does not, in the absence of an express intention in that behalf (?;), in the case of a bargain and sale of specific goods {x). The term " warranty" is, in the case of a contract of sale, used in various senses, viz. : — 1. A representation, or engagement, forming part of the contract, but collateral to its main object, that the subject-matter thereof does or will possess certain quahties. That is the proper sense ; cf. per Lord Abinger, in Chanter v. Jloj)I:i)is, 4 M, & ^Y. 404. As in this case the warranty is collateral, a breach thereof does not constitute a defence to the buyer. 2. Such a representation or engagement, in an exe- cutory contract. This is the wrong use of the term ; as the seller who, in an executory con- tract, fails to deliver goods of the quality, (0 Cf. Benj., 2u(l cd., pp. 744, [x) Street v. Blaij, 2 B. k Ad. 745, 749, and i)articul!irly (with 456; ci. i\otQS to Cutter \. Powell, 2 reference to the clause between S. L. C, 7th L-d., j). 30. The dicta braikets) his discussion of Ilcyworth of the court in Jfti/uorth v. lliitchitt- \. Hutchinson, L. R. 2 Q. B. 447; ,vo;», s//;;(V7, are to the elfect that, even cf. also, Toulmin v. Ecdletj, 2 C. A: in the case of an executory contract, a K. 157. warranty is not a condition, if the (m) Bannennati v. Whttr, 12 C. B. goods are specific; but cf. Benj., N. S. 5G0 ; Head v. Ttittintall, L. K. nupra, in note(0. Chitty on C, 10th 7 Ex. 7. ed., p. 420, takes the siune view as tlic rourt. K J 52 THE LAW OF SALE. description, or fitness contracted for, simply does not perform his contract. As is neatly put by Story (on Contr., s. 839), a seller only warrants the adjective or epithet, and not the substantive. The warranty is, in such cases, a condition, and its breach is a defence to the buyer. 3. An implied wan-anty means the implication of the express engagement aforesaid; and the implication is made, because a sale, upon a demand for goods of a particular quality or fitness, amounts to an engagement that they possess these qualities, or are of that fitness. Cf. per Best, C. J., in Jones v. Bright, 5 Bing. at pp. 544, 545. Nevertheless I have used the term warranty, with- out qualification, in deference to long usage. lllitsfrations. — 1. A. buj'S of B. a specific horse, warranted by B. suitable for A.'s carriage. The horse proves unfit. A. can- not return the horse, or refuse to pay the price, or recover the price if paid. 2. A. offers to supply B. with a horse fit to draw his carriage. A. delivers a horse which is unfit. B. may return the horse to A., and recover the price, if paid, or may defend an action for the price. Cf. per Parke, B., in Chanter v. Hopkins, 4 M. & AV. at p. 406. 70. U2)on tlie sale of a si^ocific existing article, accessible to the inspection of tlie buyer, there is no warranty of quality or fitness implied in tlie contract, though the article maybe subject to latent defects (y). The same rule applies to goods given or taken in exchange. La Ncuville v. Noursc, 3 Camp. 351. {j) Jlarr v. Gibson, 3 M. & W. point, as explained by Parke, B., in 390 ; per cur. in Jones v. Just, L. E. Sntion v. Temple, 12 M. & W. 64 ; 3 Q. B. 202. Scmlle, that Parkinson and per cur. in Modi/ v. Gregson, V. Ayr, 2 East. 314, was a case in L. R. 4 Ex. 49. Tin: ri:Ki()ii.MA.\t i; ui' iiii: (onhjac r. ;>:] Ilhtstratiuns. — 1. A. buys of 13. a spocilic l)iilk of oats, and inspects a sample. Tlio oats aro delivered, and are in aceord- aneo with the sample, but are now oats. A. really wi.shed to buy old oats. A. must pay tlio price, though ho lias not got what he wanted. Smith v. IIikjIics, L. li. G Q. 13. o'J7. 2. A. buys of B., a meat salesman, after inspection, a cpiantity of meat. The meat, through a latent defect, is unfit fur human food. There is no warranty on the i)art of 13. r>f the quality or fitness of the meat. Sinilh v. Baker, 40 L. T. N. S. 2GI. 71. Where goods are ordered for a particular purpose known to the seller (.-:), under such circum- stances that the buyer relies upon the seller's judg- ment in that behalf, a warranty by the latter is imj)lied that the goods supplied shall be reasonably fit for such purpose [a). The provisions of this section apply also to the case of the sale of a specific article by the manu- facturer thereof, so far as regards a^ny latent defec t not discoverable by an ordinar}' inspection, though the buyer may have, in fact, inspected it [h). Explanation. — The w^arranty aforesaid is not ex- cluded by the fact that there may be also in the contract an express warranty of quality, unless the (;) Aud knowledge of the purpose for which the good.s are intended DKiy be inferred from the designation of the goods themselves : per Lord Ilerschell, in Druiiimund v. Van Iiigeu, 12 Ap. Ca. at pp. 293, 291. But knowlwlge of all the jjurposes to which a manufactured article may be applied, or of all the trades in which it may be used, will not neces- sarily he imputed to a manufacturer: Ibid. ; cf . also per Lord Selborue, at p. 288. (a) Jiroirn v. Kdyiiigton, 2 ^I. & G. 279; Dritmmmiil v. Van Inyni, 12 Ap. Ca. 284. And no exception is implied in favour of the seller with regard to latent defects : Jlmuhll v. yeuKOii, 2 Q. B. D. 102. This war- ranty is not implied in favour of third pertoiis, not parties to the con- tract of sale : Lonijimid v. Hollidaij, 6 Ex. 7G1. (A) Per cur. in Juius v. Just, L. R. 3 Q. B. 203, quoting Slirphtrd v. I'llhusy 3 M. & G. 868; per Lord Mueuaghteu, in l)rummoud v. Van Iiiffcn, supra, at p. 299, quoting Jo)ifi v. Brtijhl, •') Bing. 533. 54 THE LAW OF SALE. latter is inconsistent with the existence of the im- plied warranty (c). This warranty of fitness applies, though the seller may have never manufactured similar goods before, and also covers any alterations suggested bj the buyer, which the seller may have adopted without objection : ITall V. Bitrhc, 3 Times L. R. 165. But no such warranty will be implied where the seller has only contracted to manufacture goods according to a speci- fied plan, and does not take upon himself (as in Hydraulic Eng. Co. v. Spencer, 2 Times L. R. 554) the risk of its adaptability. In such a case he fulfils his contract if he make the goods in a workmanlike man- ner according to such plan : S. C. ; cf . note to sect. 72, i)lf)-d. And semble, also, that a Joint endeavour by seller and buyer to make goods to fulfil a specified pm'pose, would imply no warranty of fitness on the part of the seller. >S'. C. In the case above-mentioned, of goods ordered to be made according to a certain plan, there would ordinarily be no warranty by the buyer, the employer of the work, of the sufficiency therefor of the plan, so as to entitle the seller to compensation for extra labour and expense incurred in the adaptation of the goods to the plan. Cf. Thorn v. Mayor, ^^c. of London, 1 Ap. Ca. 120. Q//., however, whether the same rule would apply to a case where the adoption of the plan neces- mrih/ involved the consumption of materials manufac- tured by the buyer and supplied to the seller, and containing a latent defect, which causes the seller, in his adaptation, additional expense and loss of time ? S/u'jj/ierd v. PyJjus would appear to apply to such a case, as the buyer would, quoad the materials supplied by him, be a seller ; and his exemption from liability (c) Dickson V. Zizania, 10 C. B. excluding a warranty of fitness, cf. G02. As to the effect of samples in sect. 7G, iiifrn. Tin: PERFORMANCE 01' THE CONTRACT. 55 on a waiTanty, should, on tlio principle of Modij v. Grcgaon, only extend to matters in respect whereof tho seller could judge for himself. Cf. Kellogg Bridge Co. V. Hamilton, 110 U. S. lOS. Illuaf rations. — 1. A., a retail provision dealer, orders of B., who carries on a wholesale provision trade, afpiautity of rabbits. The rabbits prove unwholesome. 15. cannot recover the price from A., as tho rabbits are unfit for Imman food. Bccrx. Widker, 48 L. J. C. P. 477 ; 25 W. R. 880 ; 37 L. T. N. S. 278. 2. A., a distiller, ag^rees to sell B., an African merchant, a quantity of whisky, to be coloured like rnni, for the use of the natives. A. supplies whisky coloured with logwood, which, thongh. harmless, ])roduces alarming physical effects upon the natives. A. is liable to B. upon a breach of warranty. Mac- farlane v. Taylor, L. E. 1 11. L. 8c. 245. 3. A. agrees to buy of 15., a barge builder, a particular barge, which is then nearly complete. A. inspects the barge at the time of the bargain. Tlie barge, wlitm delivered, proves to be leaky, but this fact coidd not be discovered by the inspection, and would bo apparent only after trial. B. is liable to A. in damages.' as the barge is not fit for use as a barge, and A., under the circumstances of the case, necessarily bought on B.'s judg- ment. Shepherd V. PijImis, 3 M. k G. 808 {d). 4. A. agi-ees to supply B.'s ship with troop stores, and war- rants that they shall pass the survey of the East India Co.'s officers. The stores pass the survey, but are, nevertheless, uu- wh()les(mie. A. is liable to B. upon a warranty that tho stores shall be good, although there is also an express warranty that they shall pass the survey. Bigge v. rarkinson, 7 II. & N. 955. 72. When an article of a defined kind is ordered, tlioiigli it be stated to be for a particular i)urpose, there is no Avarranty of fitness ini2)lied in tho contract {e). This rule is also in accordance with Scotch law : (). The goods, though according to eample, must of course answer their description. Kichol v. Godts, 10 Ex. 191 ; cf. Illustration 8 to sect. 75, Kiij)m. A sale by samjile is not nccosmrihj to he inferred from the production of a sample of the goods. Gar- diner V. Grai/, 4 Camp. 144 ; 'Tye v. Fynmore, 3 Camp. 462 ; Mojer v. Everth, ib. 22. The responsibility of the manufacturer to the buyer in respect of latent defects in goods sold by sample, and conforming thereto, may be explained in two ways — viz., (1) as "the office of a sample is to present to the eye the reed meaning and intention of the ]}arties with regard to the subject-matter of the con- tract," the parties cannot he prennmed to intend that the sample should be treated as disclosing any other than defects discoverable by due diligence : or (2) the fur- nishing of a sample by a manufacturer to his customer amounts to a representation or encjagement on his part («) IlihbertY. Shec, 1 Camp. 113. Haines v. Firmiiiger, 1 Times L. R. (o) Per ciir. in Modij v. Grey son, 107, where it did not apjiear tliat L. R. 4 Ex. 49 ; per Lawrence, J., the defendant was a manufacturer ; in Parkinson \. Lee, 2 East, 322. Dntmmond v. Van Ingin, 12 Ap. Ca. {p) Heilbutt V. Hickson, L. R. 7 284. C. P. 438 ; Modij v. Gregson, supra ; 60 THE LAW OF SALE. that the goods manufactured, according to that sample, shall not, by reason of any hidden defects of manu- facture, be unmerchantable, or unfit for their intended purpose : cf, per Lord Macnaghten, in Drummond v. Van Lujcn, 12 Ap. Ca. at pp. 297, 298. Illustrations. — 1. A. agrees to buy of B., by sample, a quantity of sugar. The sugar delivered is not according to the sample. A. need not accept or pay for it. Hibbert v. Shee. 1 Camp. 113 [q). 2. A. agrees to sell to B., according to sample, a quantity of barley. Both A. and B. are ignorant of the particular descrip- tion of barley. The bulk delivered is according to sample. A. is not liable to B. on a warranty that the barley is of any par- ticular description or quality, or fit for any particidar purpose. Carter v. Crick, 4 H. & N. 412 ; 28 L. J. Ex. 238. 3. A., a manufacturer, agrees to sell to B. certain grey shirt- ings of a certain weight, according to sample. Both the goods and the sample contain 15 per cent, of china clay, introduced by A. to increase the weight, and rendering the goods unmerchant- able ; and this admixture is not ordinarily discoverable. B. inspects and accepts the goods. A. is liable to B. for a breach of warranty of merchantable quality. Moihj v. Greyson, L. R. 4 Ex. 49. 77. A warranty of merchantability, or fitness for any particular purpose, does not coA^er any depre- ciation in the goods necessarily consequent upon their transmission to the buyer; but it extends to loss or depreciation occasioned by any unusual or exceptional cause during the transit, if the seller contracted to deliver the goods at their destination ; but not to loss or depreciation, so occasioned as aforesaid, if the seller contracted merely to dispatch the goods (r). («/) Cf. Wclh V. Iloplins, 5 M. & v. iMngilaWs Chciuical Manure Co., W. 7. 11 C. of S. Gas. 3rd Scr. DOG, the (r) This seems the resiilt of Bull seller had exjjressly contracted to V. Robison, 24 L. J. Ex. IGo ; 10 Ex. deliver the goods at their destina- 342 ; and Bcey v. Walker, 37 L. T. tion (as in Bull v. Robison) ; but the N. S. 278, where Bull v. Robison, deterioration was not inevitable, as was not cited. Cf . also lUlock v. it was in the latter case. On these Reddi/iii, Dans, i^' LI. (i. In Valkcr cases, cf. also Appendix C, infra. THE rERFQKMAXCi: OF THE CoXTKACT. Ol Illusfnifions. — 1. A., a wliolosale provision dealer in London, contracts to send B., a retail provision dealer at IJrigliton, by railway a quantity of Ostend rabbits. The rabbits wlieu delivered to the railway company are in good condition, but when they are inspected on arrival are found to be unfit for human food, and so unmerchantable. A. cannot recover the price thereof from B. Ikcr v. iralker, 25 W. E. 880. 2. A., in Liverpool, orders of B., in Staffordshire, a quantity of iron, to be delivered at Liverpool. ]^. delivers the iron in mer- chantable condition to a carrier, but on arrival at Liverpcjol it is found to be rusted; but this rusting is proved to be necessarily incident to the transit. A. must accept the iron. Bull v. Robison, 10 Ex. 342. 78. The seller of goods, wliicli arc otherwise in accordance with the contract, as explained in the preceding sections, is not liable, in the absence of fraud, or an express Avarranty of quality, for any latent defect which may exist therein {s). Illustration. — A. buys of B. a quantity of Calcutta linseed, then on board ship. All Calcutta linseed contains an admixture of from 2 to 3 per cent, of other seeds, but the seed bought by A. contains about 15 per cent. B. is liable to A. for delivering a different article if the admixture of 1 5 per cent, of foreign seeds destroys the distinctive character of Calcutta linseed ; otherwise, not. ^WicJcr Y Schilhzi, 17 C. B. 619 (/). 79. livery contract for the sale of a chain cable shall, in the absence of an express stipulation to the contrary, (proof whereof shall lie on the seller), bo deemed to imply a warranty that the cable has been, (*) Per cur. in Gompcrtz v. Bart- arising out of the process of nianu- lett, 2 E. & B. 854, 855 ; per cur. in fiicture : Hoe v. Sanborn, 21 N. Y. Ecuuedy v. Fananw, ^-c. Co., L. E. 2 412. Cf. also a dictum of Brett, L. J., Q. B. 587. Cf. also Jf'ard v. JMIjs, in Ward v. Jfohbs, at p. IGl ; and per 3Q. B. D.150. As to latent defects Lord Macnaghten in Ihummotul v. rendering goods imfit for their dcs- Van Iiigcn, 12 Ap. Ca. 297. tined purpose, cf. note ('/) to sect. 71, (0 Cf. also Jo.iUng v. Kiiigxford, supra. It has been decided in America 13 C. B. N. S. 447 ; andin America, that the seller, being a manufacturer, (Josxh-r v. Eaijle Sugar Jtfjiicrg, 103 is rw) Teto v. Blades, 5 Taunt. 657. JiilUngham, 54 L. T. 387 ; 34 W. R. Cf. the remarks of Parke, B., iuMor- 122. Icy V. Attoihorouyh, 18 L. J. Ex. 150. {x) For definition of these terms, And in America, Bashore v. Whisler, cf. sect. 3 (1) of act. 3 Watts, 490. This, on the ground (y) Sect. 4. that a judicial officer has not neces- (z) Sect. 5. sarily any means of knowing the title (a) 50 & 51 Vict. c. 28, 8. 17, re- to the goods sold, and therefore the pealing 25 & 26 Vict. c. 88, ss. 19, scienter should be proved : per cur. 20. The 29 & 30 Vict. c. 37 (Hops, in Hoe v. Snnhorn, 21 N. Y. 550. THE PERFORMANCE OF THE CONTRACT. 03 in a special or limited capacity, and not generally as owner. Cf. Add. on C. (8th ed.) pp. 071, 072. 82. One wlio sends animals to a louljlic market for sale does not thereby impliedly rej^resent them not to be, to his knowledge, affected with disease, thoiig-li such sending may amount to a criminal offVnce (c). 83. An implied warranty of quality may be established by the custom of an}' particular trade (^/). Illustration. — A. sells to B., l)y aiiction, a quantity of soa- dainaged pimento, -without stating it to lie damaged, though it is a trade custom to state the fact if it exists. There is a warranty by A. that the pimento is not damaged. Jones v. Bowden, supra. 84. A warranty, by tlie terms of the contract, limited to continue only a certain time, extends so as to cover only such defects in the things sold as are pointed out within such time, though they may have in the meantime existed (e). Of course, the facts of the case may show that the limitation of time refers to the confinnaiice dui-ing the time of the quahty warranted, and not to the respon- sibility of the seller under the warranty. Per Lush, J., (c) Ward\'.nobbs,Z Q. B. D. 150. (c) Chapman v. Gwyther, L. E. 1 The House of Lords decided (4 Ap. Q. B. 463 ; Byiiatcr v. Richardson, 1 Ca. 13) the case on its special facts. A. & E. 508 ; Smart v. Jlyde, 8 Q.y., per Lord Cairns (at p. 22), M. & W. 723. And held, in such a whether, //-o)** the mere fact of sending case, in Vptou Man. Co. v. Hais/.e, 69 the animals to market (there being Iowa, 5.57, that the buyer must no qualifying stipulations, as there return the goods on discovering a were in the case, to protect the breach of the warranty, as the limi- seller), a warranty of freedom from tation of time "does not operate to disease would be implied Y cf . Jiodyer extend the time, after the ... . dis- V. Xicholls, 28 L. T. 441. covery of the breach, within which {d) Jones v. liowden, 4 Taunt. 847 ; the party may rescind the contract." Benj. 639 ; Syers v. Jonas, 2 Ex. 111. Tliis decision is not inconsistent with Ellis v. Mortimer, 1 N. R. 257. 64 THE LAW OF SALE. in Chapman v. Gicyther. Thus, in ^mw v. Shoemacker Man. Co., 44 Am. E. 509, a warranty for five years on the sale of a piano was construed as meaning a warranty of soundness for five years. 85. A general warranty does not, in the absence of an intention to the contrary, extend to defects inconsistent therewith, whereof the buyer was then aware, or which were then easily discernable(/) by him without the exercise of peculiar skill ; but it extends to all other defects (^). Illustrations. — 1. A. sells to B. a horse, whidi is known to B. at the time of sale to be suffering from a cough and a swelled leg, but A. warrants its soundness at the time of delivery at the end of a fortnight. A. is liable to B. for a breach of warranty if the horse is then unsound, as he has expressly warranted its future soundness. Liddard v. Kain, 2 Bing. 183. 2. A. sells to B. a horse, which, to the knowledge of both, is suffering from a splint, and A^-arrants him then sound. Some splints cause lameness, others do not ; and no inspection would reveal the particular character of the splint. The horse becomes lame. A. is liable to B., as B. could not tell that the particular splint would cause lameness. Mar (jet son v. Wright, 8 Bing, 454. 86. Except where any trade custom, or the general facts of the case, show that only such title as the seller possesses should be transferred to the buyer, a warranty of title to the goods sold is im- plied: — (1) In an executory contract of sale of unascer- tained goods (/}) : (/) In Kenner v. Harding, 28 Am. [g] Bailey v. Mcrrell, 3 Bulstr. 95; R. 615, access to the horse sold was Ilollidatj v. Morgan, 1 E. & E. 1. prevented by the seller by a trick, [h) Ter cur. in Morlcy v. Attcn- and held, a general warranty of borough, 3 Ex. 500 ; Raphael v. Bnrt, soundness extended to a patent de- I C. & E. 325, per Stephen, J. feet, whereof the buyer was unaware. TIIH rEKFOKMAXCE OF THE CON'IRACT. 65 (2) When the seller, expressly or impliedly, af- firms the o'oods to 1)0 his <)wn(/); and such an allirmation will bo implied where a trades- man sells goods in the ordinary course of business in his shop or warehouse (/:) ; but such an allirmation is not implied by reason only that the seller is in possession of the goods (/); (3) [Probably] also in any case of a bargain and sale of goods (m). In America, there appears to be a conflict of opinion on the question whether distm-bance by the true owner is necessary to the cause of action for breach of warranty of title, the incHnation of opinion being that it is. Cf. Ccm v. Hall, 24 Wend. 103 ; Krumb- haer v. Birch, 83 Penn. 426 ; Buss v. Putney, 38 N. H. 44. Contra, Perkins v. JF/ielan, 116 Mass. 542. The former decisions adopt the analogy of covenants for quiet possession ; the latter, of covenants for right to convey, or against incumbrances. lUustrations. — 1 . A., a pawnbroker, puts up for sale by auction a quantity of unredeemed pledges, stating them to bo sucli. There is no warranty of title on the part of A., as aU he pro- fessed to sell was goods which had been pledged and were un- redeemed. Morley v. Attenhorough, 3 Ex. 500. 2. A., a job warehouseman, sells, in his warehouse, to B. a quantity of prints, yarns, &c. The floods had, in fact, been stolen, and 15. is compelled to restore them to their owner. A. is liable to 15. on a breach of warranty of title, as he has by his conduct aHLrmed the goods to bo his own. Eichoh v. Bannister, 17C. B. N. S. 708(;0. (») Per cur. in Morley v. Atten- v. Attenborough ; per cur. in Eichoh 3(;roM<7/i, 3 E.X. 500 ; per Byles, J., in v. Bannisttr. Tho rule in Aiu. is Eichoh V. Jianniitcr, 17 C. B. X. S. different. 708. ("i) Eichoh T. liitmtister, siiprd ; per (^) Cf. cases under nolo (i). Stephen, J., in Ritphuel v. Burt, (!) Per BiiUer, J., in /',(. 205. (r) Semble, the ' ' documents of title" are those mentioned in the Factors Acts previously to thtit of 1877, though the words, "within the meaning of the principal acts," are omitted in sect. 5 of the F. A. 1877. Cf. Pearson and Boyd on F. A. p. 109. Even on this assumption, how- ever, it appears doubtful whether the wharfinger's certificate issued in GiDin v. BoleJcow, Vaughan S; Co. (10 Ch. 49) would, since the F. Act, 1877, be deemed a "document of title ' ' within that act. It does not appear to have been a document "used in the ordinary course of busi- ness as proof of the possession or control of goods, or ... . purport- ing to authorize the possessor .... to transfer or receive goods thereby represented.''^ No evidence was shown that the wharfinger's certificate in the case was generally treated as equivalent to a warrant, nor was it intended to represent the goods. It was merely a certificate that certain goods were ready for shipment. (Cf . per Melhah, L. J., at p. 502.) For 72 THE LAW OF SALE. Illustration. — A. sells to B. timber then lying at his wharf, and takes a bill for the i^rice. B. sub -sells to C, who informs A. of the sale, and A. assents thereto, and allows C. to mark the timber. B. becomes insolvent, and the bill is dishonoured. A. has no lien as against C. Stoveld v. Hi((/hes, 14 East, 308. 94. A seller who has parted with the possession of goods, and is wholly or partially (s) unpaid there- for, may, if the buyer become insolvent, stop them while they are in transit to the buyer (2^). Explanation. — It is not necessary to the exercise of the seller's right in this behalf that the buyer should have been found, or should be insolvent at the date of the stoppage, if he be in fact so by the time of the termination of the transit (u). 95. A seller will be deemed to be unpaid within the meaning of the preceding section, though— (1) The date fixed for payment of the price may not have arrived at the time of the stop- page (x) ; or (2) The buyer may have accepted, made, or given a bill, note, or other security in conditional payment of the price, which is outstanding, or not yet come to maturity (?/) ; or the above reasons it was not, a also The Tigress, 32 L. J. Adm. at furtlori, a document of title, if the p. 101 ; Benj. (2nd ed.) p. 696. term is left undefined in the Act of {x) IngUs v. Usherwood, 1 East, 1877. 515 : Bohllinrjk v. Imjlls, 3 East, 381 : (s) Hodgson v. Log, 7 T. E,. 440. per Bayley, J., in Bloxam v. Sanders, {t) Lickbarroiv v. Mason, 1 S. L. C. 4 B. & C. at p. 949. 818. But after the termination of {g) Feise v. IFrag, 3 East, 93 ; the transit, the seller acquires no Patten v. Thompson, M. & S. 350 ; new rio-hts by a re-delivery to him Edwards v. Brewer, 2 M. & W. 375. for a special purpose. Valpg v. Sed vide Davis v. Regnolds, 4 Camp. Gibson 4 C. B. 837. 267 ; 1 Stark. 115; which, semhle, is (u) Per Lord Stowell in The Con- not law. The case would be different stantia 6 Rob. Adm. at p. 327. Of. if the seller has received the amount of LIEN AND STOPPAGE IN TRANSIT. 73 (3) The seller may have in his hands goods of the buyer, and a mutual account may be imsettled between them, unless [perhaps] the goods stopped were consigned by the seller specifi- cally in discharge of his liability to the buyer (.t). 96. A person in the position of a seller, wdtli re- gard to the right of stopj^age in transit, may be (1) A buyer who re-sells his interest under an executory contract of sale, though he may not have the ownership of the goods at the time of stoppage (a) : (2) A principal consigning goods to his factor, though the latter may have made advances on the faith of the consignment, or may have a joint interest therein with his principal (^) : (3) A factor who has bought goods on his own credit, consigning the goods to his jjrinci- pal (c) : or (4) A partnership selling and consigning goods to a member of the firm(f/). A surety for the price of the goods is not a person in the position of a seller, so as to be able to stop : Sijf'kin V. Wraij, 6 East, 371. But, under the M. L. and is not liable on tlie bill : Bioiiicij (c) Feisc v. Tf'ra)/, 3 East, 93 ; per V. Poyntz, 4 B. & Ad. 568. In that Blackburn, J., in Ireland t. Liviny- case he would be paid. sto))c, L. R. 5 H. L. 409 ; per cur. in (z) Wood \. Jones, il). & R. 126. Cassaboglou v. Gibbs, II Q. B. D. But of. VerttwY. Jewell, 4: Cvim]).2\, 797; Phelps v. Comber, 29 Ch. D. and remarks thereon in Benj. (2nd 826; cf., also, Haivlces v. Dunn, 1 ed.) p. 694. TjTw. 413 ; 1 C. & J. 519 (former (a) Jenkynsr. JJsborne, 7 M. & G. best report), where an ordinaiy agent, 678. who had bought goods on his own {h) Khiloch V. Craiy, 3 T. R. 119 ; credit, held entitled to intercept the Benj. (2nd ed.) 692 ; Xeicsun v. goods before delivery to principal. Thornton, 6 East, 17. {d) Ex parte Cooper, 11 Ch. D. 68. 74 THE LAW OF SALE. Amendment Act, he may, on payment of tlie price, be a transferee of the seller's right of stoppage. Imperial Bank v. L. ^ St. K. Dock Co., 5 Ch. D. 195. 97. Groods are deemed to be in transit wliile tliey are in the possession of the carrier as such, (e), or lodged in any place in the course of transmission to the. buyer (/), or to the place of destination con- templated by the seller and the buyer ((/), and are not yet come into the actual ^^ossession of the latter (^), or of his agent for custody (/^), or to sucli place of destination, otherwise than being in the possession of the carrier, or as being so lodged. Explanations. — 1. When tlie goods sold are to be sent by the seller to a forwarding agent on behalf of tlie buyer, the fact that the seller is competent, of bis own motion, to instruct sucli agent as to the transmission of the goods to their ultimate destina- tion ; or, on the contrary, that the goods are, in the hands of such agent, to await the orders of the buyer, are relevant facts to prove or disprove respectively that the goods, while in the hands of such agent, are in the course of transmission on their transit, within the meaning of this section (/). [e) Ex parte Cooper, 11 Ch. D. 68. tains his lien: Allen v. Gripper, 2 C. (/) Per Brett, L. J., in Kendall v. & J. 218 ; per Lord Blackburn in Marshall, 11 Q. B. D. 365; Edwards Kemp v. Falk, 7 Ap. Ca. at p. 584. V. Breiver, 2 M. & W. 375 ; Ex parte Ex parte Cooper, supra, is, semblc, not Watson, 5 Ch. D. 35 ; James v. Griffin, inconsistent, there being in that case 2 M. & W. 623. no evidence of attornment, and the [g) Per Cotton, L. J., in Ex piarte fact of the retention by the carrier Golding, Eavis ^- Co., 13 Ch. D. 628 ; of his lien being strongly relevant to per Rolfe, B., in Gibson v. Carruthers, disprove an attornment: cf. per Lord 8 M. & W. 327; cf. the "place of Blackburn, supra. destination" defined, per Brett, M.R., (i) Kendall v. Marshall, 11 Q,. B. 'n\ Ex parte Miles, 15 Q,. B. D. 39. D. 356 ; Ex parte Miles, 15 Q. B. D. (A) And the carrier may constitute 39 ; Ex parte Watson, 5 Ch. D. 35. himself such an agent, though he re- LIEN AND STOPPAGE IN TRANSIT. 75 2. When the goods are to await the orders of the buyer in tlie hands of the forwarding- agent, it is immaterial that such orders are given before or after the contract of sale, or the order by tlic buyer to the seller to deliver to the agent (/.). Illustrations. — 1. A. orders goods of B., who delivers tliem at the warehouse of C, which A. uses as his own for the receipt of goods. The transit is ended. Scottx. Pettitt^ZH. ScV. AQd {I). 2. A. sells goods to B., and consigns them by C, a carrier, directed to B. On arrival, C. partially unloads the goods on B.'s wharf, but afterwards, hearing that B. was insolvent and had absconded, re-shijis them in his barge. The transit is not ended, as 0. still held the goods as carrier. Crcrwshay v. -Edes, 1 B. & C. 181. -^ 3. A. buys goods of B., and directs them to be sent by a carrier to C. Before arrival at C. the carrier, at A.'s request, delivers the goods to him. The transit is determined. Cf. per Parke, B., in WJiitcJtead v. Anderson^ 9 M. & AV. 534 (m). 4. A. buys goods of B., and orders them to be forwarded to London. B. gives C, A.'s agent, a delivery order for the goods, making them deliverable on board a vessel, which order C. indorses to D., a wharfinger. D. hands the order to E., a keel- man, who puts the goods on board. The vessel moors in the port of London, and F., another wharfinger, by A.'s order, receives the goods into his Hghter, when they are stopped by B. The transit is not ended, as all these stej^s form part of the course of transmission of the goods to London. Jackson v. Nicholl, 5 B. N. C. 508. 5. A. having purchased a cargo of timber of B., to be dispatched by a certain ship, becomes bankrupt." Upon the arrival of the vessel A.'s trustee goes on board, and tells the captain that he is come to take possession, and touches some of the timber. The captain tells him that he will deliver when he is satisfied with regard to freight. B. then stops the goods. The transit is not ended, as the goods had not reached the actual possession of the buyer, and the captain had not contracted to hold the goods as {k) Per Brett and Cotton, L. JJ., {m) Approved of in JV. W. E. Co. in Kendall v. Marshall, supra. v. Bartktt, 7 H. & N. 400 ; 31 L. J. (/) Of., also, Eoive v. Fickford, 8 Ex. 92; of., also, Cork Dist. Co.'s Taunt. 83 ; Dodson v. Wentworth, 4 case, L. E. 7 H. L. 269 ; and per M. & G. 1080. Bowcn, L. J., in KmdaU v. Marshall, 11 Q. B. D. at p. 469. 76 THE LAW OF SALE. his bailee, so as to give A. constructive possession. Whitehead v. Anderson, 9 M. & W. 518. 6. A. in Birmingham orders sugar of B. in London. B. sends them by C, a carrier, who notifies A. of the arrival of the sugar. A. takes away part of the sugar, and takes samples of the rest, and requests C. to keep the sugar till he received directions from A. The transit is at an end, as C. has become A.'s bailee to hold the sugar for him. Foster v. Frampton, 6 B. & 0. 107. 7. A. buys of B. a quantity of china clay, to be delivered free on ship-board at a certain port, but does not tell B. the destina- tion of the vessel. A. charters a vessel to convey the clay, and it is put on board. Before the vessel leaves the harbour A. becomes insolvent, and B. stops the goods. The goods are still in transit, as they are in the hands of a carrier as such ; the cir- cumstances of the case showing that both A. and B. contemplated a further journey after delivery on board. Ex parte Rosevear China Clay Co., 11 Ch. D. 560(«). 8. A. sells goods to B., and ships them to him at 0. On arrival, the goods are lodged in the warehouse of D., the agent of the carrier, the course of business being that D. should hold the goods subject to the orders of the consignee and payment of freight. Before the arrival of the goods, B., who was bankrupt, had absconded. A. then stops the goods. This stoj)page is good, as B., being absent, could not constitute D. his agent to hold the goods, and the goods accordingly were in D.'s warehouse in the course of their transmission to B. Ex parte Barrow, 6 Ch. D. 783 (o). 9. A. agrees to supply goods to B. from time to time, B. to consign them to C, at Shanghai, for sale on his account, and A. to have a lien on the bill of lading of such shipment, and on the proceeds of such sale. A. sends goods, marked Shanghai, directed to a ship specified by B., and bound for that place. B. fails. A. may stop the goods at any time before they reach Shanghai : ( 1 ) because there was a contract between A. and B. that the transit should continue to Shanghai ; (2) because, also, A. had authority, without any fresh order from B., to send direct to Shanghai. Ex parte Watson, 5 Ch. D. 35. 10. A. orders a cpiantity of goods from B., to be marked with the name of " C, Jamaica," and afterwards tells him to forward them, so marked, to D., a shipping agent, for shipment. Instruc- (n) YoRo-wedhiBruidlei/y. Chile/win (o) Cf. also, BoIto)i v. L. ^- Y. li. Slate Co., 55 L. J. Q. B. 67 ; cf . also, Co., 1 C. P. 431, where the buyer £cthell\. Clark, 19 Q. B. D. 553. refused the goods on arrival, and so prolonged the transit. LIEN AND STOPPAGE IN TRANSIT. 77 tions as to the name of the consignee, and the destination of the goods, are to be sent to D. by A. B. sends the goods to I), to be forwarded as A. should direct. A. instructs D. to ship to C, Jamaica, which is done. A., after the sailing of the vessel, fails. B. cannot stop the goods, as they reached their destination, as between A. and B., when they reached D. Ex parte Miles, 15 Q. B. D. 39. 11. A. buys goods of B., saying nothing at the time of their place of delivery, and afterwards arranges with C. for their transmission to a fui-ther place, the ultimate destination of the goods being unknown to B. A. tells B. to forward tlie goods to C, and they are delivered to him. The transit is ended, the destination of the goods being, as against B., in possession of C. Kendall v. Marshall, 11 Q. B. D. 356. 98. If, when the goods arrive at their destina- tion, the carrier wrongfully refuses to deliver them to the buyer, the transit thereof is thereupon de- termined ( 2^)' 99. If, after a stoppage in transit, the buyer j^rove not to be insolvent, he is entitled to the j^os- session of the goods, and to an indemnity by the seller in respect of any loss caused by the stoppage (q). 100. A stoppage, made on behalf of the seller by an unauthorised person, is effectual if ratified at any time before the termination of the transit, but not afterwards (r) ; but the j^osting of a letter of ratification is sufficient, though it be not received till after the termination of the transit (s). 101. A delivery of the goods by the seller on [p) Birdy. Brown, 4 Ex. 786. ciple of the law of agency, that a [q) Per Lord Stowell, ia The Con- ratification cannot take place to the stantia, 6 Rob. Ad. at p. 32G ; The prejudice of another's vested right. Tigress, 32 L. J. Adm. 97. Of. St. on Ag. s. 246. (r) i?(r(f V. i?)-0!i«, 4 Ex. 786. This (s) IIutchings\. Xitnes, 1 Moo. P. is an instance of the ordinary prin- C. 243. 78 THE LAW OF SALE. board the buyer's own sliip (t), whether it be a general ship or sent sj^ecially for the goods, is not a delivery into the possession of the buyer's agent so as to terminate the transit, if the facts of the case show — as when the seller takes a bill of lading to his own order, or assigns — that the master of the vessel received the goods in the capacity of carrier (^ii). In some cases the vessel may be the destination of the goods, in which case the transit would end on ship- ment: per cm', in Berndtson v. Strang, 4 Eq. 481; Bethell V. Clark, 19 Q. B. D. 553. Held, per Cave, J., in In re Bruno, Silva Sf Co., 56 L. T. 577, that when the goods had been delivered on board the buyer's ship, and the mate's receipt, taken by the seller, had been by him given to the buyer's agent, who thereupon received the bill of lading, the transit ended on shipment, though the seller knew the goods were destined for a further journey. Illustrations. — 1. A. sells goods to B., and delivers them on board B.'s ship, employed as a general trader, and takes the bill of lading to the order of B. The transit is ended on shipment, as the goods are delivered to B.'s agent, and A. has not restricted the delivery. Schotsmans v. L. Sf Y. Ry. Co., 2 Ch. 332. 2. A. orders goods of B., to be shipped to London, and sends his chartered vessel for them. B. ships the goods, and takes a bill of lading to his own order, which he indorses to A. The transit does not end till the goods reach A. in London, as B., by taking the bill of lading to his own order (although it is after- wards transferred to A.), made the carrier his agent for carriage. Berndtson v. Strang, 4 Eq. 481 ; 3 Ch. 588. 102. The seller's right of stoppage is not de- feated by the mere sub-sale of the goods while in (i!) Does not include a sliip char- {ii) Van Castcel v. Booker, 2 Ex. tered by buyer, unless the charter 691 ; per Lord Chelmsford, L. C, in amount to a demise of the ship. Schotsmansv.Lanc. i^-Y.Ry. Co.,2Ch.. Berndtson v. Strang, 3 Ch. 588 ; In 332 ; per cur. in Turner v. Liverpool re Cocli, 11 Ch. D. 560. Bochs Trustees, 6 Ex. 543. LIEN AND STOrPAGE IN TRANSIT. 79 transit, and the receipt of the price thereof by tlie buyer (.^), or by the bill of lading being originally made out in the name of the sub-buyer {ij) ; but when the right of stoppage has been defeated by a transfer by the buyer of the bill of lading to the sub-buyer, as hereinafter mentioned in section 109, the seller cannot intercept any part of the sub- buyer's purchase-money (0). There are dicta in the case of Ex parte Goldhig, 13 Ch. D. 628, tending to show that the court took the view that the seller's right of stoppage is exerciseable (where there has been a sub-sale), only if he therein docs not 2)reji(dice the rights of the suh-huyer, though the sub-buyer be not the transferee of a bill of lading. Compare with these dicta the remarks of Lords Sel- borne and Blackburn in Kemp v. Fall:, that the sub- buyer can acquire only such a right as the buyer has, i.e., a right sidg'cct to the seller'' s right of stoppage; though the seller's right of stoppage may be well given effect to by a payment to him of the sub-buyer's purchase-money, though such right still remains one against the goods, and not also (as seems to have been the view in Ex parte Goldincj) against the purchase- money. It is noticeable that the case of Haices v. Watson, 2 B. & C. 540, quoted by James, L. J., in Ex parte Golding, as justifying his view, was rather a case where the seller had estopped himself from maintaining his lien against a sub-buyer, or, at any rate, where the (a;) Per Lord Blackburn in Kemp (;) Per Lord Selborne in Kemp v. V. Folk, infra, at p. 584 ; BenJ. (2nd Falk, 7 Ap. Ca. 573 ; but of. contra, ed.) p. 719; but cf . per Lord Fitz- -pev Coiioii.,'L. 3., ia. Ex parte Golding, gerald, in Kemp v. Falk, at p. 590. Davis cj- Co., supra ; and per Bram- [ij) Ex parte Goldinff, Davis % Co., -well, L. J., in Ex parte Falk, 14 Ch. 13 Oh. D. 628. D. 446. 80 THE LAW OF SALE. warehouseman had, by an attornment to the sub-buyer, done so. 103. Any act relied upon as a stoppage in tran- sit must be clone with that intent, and by virtue of a right in respect of the goods paramount to that of the buyer («), though it may in fact be done with the latter's consent (b). Illustrafions. — L A. orders goods of B., who consigns them by a carrier to A. A., being in insolvent circumstances, writes to B., informing him of his situation, and decKning the goods. B. then gives the carrier notice to stop. This stoppage is good. Mills V. Ball, 2 B. & P. 457. 2. A., the agent of B., the seller of goods, with the consent of C, the buyer, who is bankrupt, takes possession of the goods in order to sell them and apply the proceeds towards bills drawn upon C. for the price. This is not a stoppage, as it was not in- tended as such, and was not done adversely to C. Siffkin v. Wmij, 6 East, 371. 104. The seller may effect stoj^page in transit, either by taking actual possession of the goods, or by giving notice of his claim to the carrier, or other depository who holds possession thereof (c). The right to stop includes a right to demand re- delivery : TJie Tigress, 32 L. J. Adm. 97 ; and a carrier who, after a valid stoppage, delivers to the consignee, is guilty of a conversion : Pontifex v. M. JR., 3 a. B. D. 23. In Ex parte Watson, 5 Ch. D. 35, the demand by the seller of the bill of lading was held a good stop- page. {a) Per cur. in Phelps v. Comber, humin Kemp v. Folk, 7 Ap. Ca. 585. 29 Ch. D. 822, 824, 826. Wliether notice sent to consignee {b) Ifills V. Ball, 2 B. & P. 457. sufficient, qmcre. Phelps v. Comber, {c) Per cur. in Whitehead v. Ander- 29 Ch. D. 813. son, 9 M. & W. 518; per Lord Black- LIEN AND STOPPAGE IN TRANSIT. 81 105. Such notice as aforesaid may be given, either to the person who has the immediate posses- sion of the goods, or to the princij^al, whose servant or agent has such possession. In the latter case, the notice must be given at such a time, and in such cii'cumstances, that the principal, by the exercise of reasonable diligence, may communicate it to his servant or agent in time to prevent a delivery to the buyer [d). 106. The seller's right of stopjDage is subject to the particular lien of the carrier for the carriage of the goods, but is paramount to any general lien which he may have for a balance of account as against the consignee [c), and also to the rights of any execution creditor of the latter (/). 107. Stoppage in transit entitles the seller to hold the goods stopped until the j^rice of the whole of the goods has been paid, bu t doe s not entitle him to repudiate the contract (^cj). 108. A part delivery of the goods, intended by both parties to operate as a delivery of the whole, (proof of which intention shall lie on the party con- {(l) W/iiiiJwadv. Anderson, 9 M. & 233, which, however, was not really W. ,511; per Lord Blackburn in a case of stoppage in transit. Kemp V. Falk, 7 Ap. Ca. 585, dis- (/) Smith v. Goss, 1 Camp. 282 ; sentiug- from remarks of James and cf . Clark v. Lyneh, 4 Daly, (Am.) 83 ; Bramwell, L.J J., in court below, 14 semblc, per Chambre, J., in Oppen- Ch. D. 450, 455 ; cf. also, Bethell v. heiin v. Itussell, supra. Clark, 19 Q. B. D. 553. {g) Wentworth v. OuthiiaiU; 10 M. [e) Oppenhcim v. Russell, 3 B. & P. & W. 428, diss. Abinger, C. B. ; per N. E. 42 ; particularly per Chambre, Lord Blackburn in Kemp v. Talk, 7 J. ; cf. analogous case of Mcreaiilile, Ap. Ca. at p. 581 ; per Cairns, L. J., ^■c. Bank v. Gladstone, L. R. 3 Ex. in Schotsman's case, 2 Ch. 332. K. G 82 THE LAW OF SALE. tending for such a complete delivery), lias the same effect for the purpose of divesting the seller's lien, or of terminating the transit of the goods, as a delivery of the whole; but a jjart delivery, intended merely as a sej^aration of such part, does not operate as a complete delivery (Ji). Ex])lanaUon. — Where the thing sold is an article, consisting of several parts, an intention to make and receive a complete delivery thereof may [per- haps] be inferred from the delivery of an essential part thereof {i). Illustrafions. — 1. A. sells and consigns goods to B., and takes a bill of lading making the goods deliverable to B. on his paying freight. C, the master of the vessel, delivers part of the goods to B., who i^ays part of the freight, but does not tender the rest. This is not a constructive delivery of all the goods, as neither party so intended it, the whole freight not being received. Ex parte Cooper, 11 Ch. D. 68. 2. A. sells to B. goods then lying at the wharf of C, and gives B. a delivery order on C. C. afterwards, on B.'s order, delivers a small portion of the goods to D., a sub-buyer from B. This part delivery is not a constructive delivery of the whole of the goods, as B. only intended to take delivery of so much as would satisfy his contract with D. Tanner v. Scovell, 14 M. & "W. 28. 3, A. sells and ships eighty quarters of wheat to B., who accepts a bill for the price. B. being in insolvent circumstances assigns the wheat to C, an assignee for the general benetit of B.'s creditors. C, on the arrival of the wheat, takes samples, and sells seventy quarters, which are delivered to the buyers. The transit of the wheat is determined, as C, being an assignee for B.'s creditors, intended by his acts to take possession of all the wheat. Jones V. Jones, 8 M. & W. 431. 109. The transfer by the seller to the buyer of a bill of lading, or other document of title to the (7^) BiDuu'ij V. Toijntz, 4 B. & Ad. 579, 586, 589; Hx parte Cooper, 11 668 ; per Willes, J., in BoUon v. L. Ch. D. 68. 6f Y. Ml/. Co., 1 C. P. 431 ; jjer Lords (i) Per Cotton, L. J., in Hx parte Selborne, Blackburn, and Fitzgerald Cooper, supra. in Kemp \. Fall-, 7 A^i. Ca. at pp. LIEN AND STOPPAGE IN TRANSIT. 83 goods, shall have such effect ui^on the seller's lien and right of stoppage in transit as is mentioned in the next following sub-sections, that is to say — (1) The transfer of a bill of lading from the seller to the buyer divests the seller's lien, as be- tween him and the buyer (Z:), but does not destroy his right of stoppage as against the latter (l) ; but neither of such rights are affected by the transfer of any other docu- ment of title (m). (2) The lawful transfer of any bill of lading, or other document of title (n), by the buyer, being a transferee thereof from the seller, to a second transferee in good faith and for value, div ests the seller's lien and right of sto23page in transit (o). In the above case an antecedent debt is sufficient value (/>). (3) Upon the transfer of a document of title by the buyer, by way of_pledge, the seller's right of stoppage is defeated to the extent of the claim of the pledgee (q), but the seller may compel the latter to satisfy such claim (A) Benj.(2nded.)p. 673. Foolci/ v. G. E. R., 3i L. T. 537; {I) Ex parte Cooper, 11 Ch. D. 68 ; Farina v. Some, 16 M. & W. 116. Brindleij v. Chihjwin Slate Co., 55 L. («) Cf. note [t] to sect. 93, supra. J. Q. B. 67 ; Benj. supra. But the (o) Factors Act, 1877, s. 5 ; Benj. transfer to the buj-er of a bill of lad- (•2nd ed.) pp. 719, 720. x\jid this ing may sometimes be evidence that though the buyer obtained the bill the ship in -vvhich the goods are to of lading by fraud, if with seller's be shipped was intended to be the assent: Pease y. Gloaluc, 1 P. C. 219. destination of the goods. Cf. per {p) Leash v. Scott, 2 Q. B. D. 37C. Cave, J., in Bethell v. Clark, 19 Q. On this case, sec the remarks after B. D. at p. 562. Explanation 2 hereimder. {m) Akermany. Humphrey, 4 Bing. [q) Kemp v. Fallc, 7 Aj). Ca. 573. 522 ; McEwenY. Smith. 2 H. L. 309 ; g2 84 THE LAW OF SALE. against the buyer first out of any other goods or securities in his hands, and available against the latter (r). Explanation. — A transfer of a document of title is said to have been accepted in good faith by the transferee where the latter had no notice of any circumstances which rendered the transfer otherwise than fair and honest. Mere notice that, at the time of the transfer, the goods had not been paid for is insufficient [s). Spalding v. Riiding, infra, appears, at first sight, inconsistent with Leafik v. Scott, 2 Q. B. D. 376. In so far as the former case may be taken as deciding that an antecedent debt cannot be a good consideration for the transfer of a bill of lading, so as to divest the seller's right of stoppage as against the transferee, it is inconsistent with Leash v. Scott, and so far over- ruled. But qy. whether this was the true ratio decidendi? It is noticeable that in the former case there was no evidence that the existing general balance of account was treated in any way by the parties as the considera- tion for the transfer ; indeed, the written memorandum refers only to ih.Q jyrescnt advance of 1,000/. In Leask V. Scott, the antecedent debt was the essential considera- tion. On the above ground, the two cases are, on their respective /<7cfe, well distinguishable. Illustrations. — 1. A. buys goods of B., and consigns them to C, his agent. A. indorses the bill of lading to D. to secure an advance. During the transit, C. sells the goods to E. Before delivery to E., B. stops the goods. C. then hands to D. the proceeds of the sub-sales. B. is entitled to the balance of the money after D.'s claim is satisfied. Kemp v. Falk., 7 Ap. Ca. 573. 2. A. sells and consigns goods worth 1,800/. to B. B. transfers (r) In re Wcstzinthus, 5 B. & Ad. Comptoir (T Escompte, L. R. 2 P. C. 817. 393; and per Lord Ellenborough in (s) Per cur. in Cuming v. Brown, 9 Vcrtue v. Jewell, 4 Camp. 33. East, at p. 516 ; cf. also, Uodgcr v. LIEN AND STOrrAGE IN TRANSIT. 85 the bill of lading to C. to secure an advance of 1,000^. B. becomes insolvent and A. stops tlie goods. A. is entitled tliereto after jiayiug 1,000/. to C. SpahUny v. linding^ 6 Beav. 37G ; 15 L. J. Ch. 374. 3. A. sells and ships to B. twenty-three casks of oil, and sends him the bill of lading. B. indorses the bill to C, as security for an advance, and also as further security for previous advances made on other goods of B., then in C.'s possession. A. stops the goods in transit. A. is entitled to call upon C. to satisfy his debt out of the proceeds of the goods of B. previously in C.'s possession before he realizes the casks of oil. Inre Wcstzinthus, 5 B. & Ad. 817(0- {t) Cf. Ex parte Ahton, 4 Ch. 168 ; followe:! in Ex parte Salting, 25 Ch. D. 148. 86 THE LAW OF SALE. CHAPTER VI. THE BREACH OF THE CONTEACT, AND HEEEIN OF DAMAGES. 110. The contract of sale is not voidable on the part of the seller by reason only of the buyer's default in payment («), or acceptance (Z*), or by reason only of the buyer's insolvency (c). But a notice by the buyer of his insolvency, and an omission on his part, or on the part of his trustee, within a reasonable time to tender in cash the price of the goods, ^s. relevant to prove an intention to abandon the contract (fZ). Illustrations.— I. A. sells toB. six stacks of oats, payment to be made on the particular clay. B. does not pay on the very day, but afterwards tenders the price. A. then re-sells the oats. A. is liable to B. for conversion of the goods, as the contract still exists, and A.'s lien is gone by tender of the price. Martin- dale V. Smith, 1 Q. B. 389. 2. A. sells to B. fifty quarters of oats at 45s. a c[uarter. B. makes default in carrying them away, and A. re-sells at bls.o. quarter. A. is liable to B. for non-delivery. Greaves v. Ashlin, 3 Camp. 426. 3. A. agrees to sell B., by specified instalments during certain months, a quantity of straw, payment to be made on delivery. («) Mariindalc v. Smith, 1 Q. B. id) '^ev cwv. xn Ex parte Chalmers, 389 ; Mersey, ^-c. Co. v. Naijlor S; Co., 9 8 Ch. 289 ; followed in/w re Fhcenix, Q. B. D. 648; 9 Ap. Ca. 434. #e. Co., 4 Ch. D. 108; Bloomer v. (b) Greaves v. Ashlin, 3 Camp. Bernstein, 9 C. P. 588 ; per cur. in 426. Morgan v. Bain, 10 C. P. 15 ; Ex parte {c) Boorman v. Nash, 9 B. it C. 145. Stapleton, 10 Ch. D. 586. BREACH OF THE CONTRACT, AND HEREIN OF DAMAGES. 87 After several instalments had l)een delivered and paid for, B. expressly refuses to pay for the next instalment, and insists on keeping- one instalment in hand. A. may repudiate the con- tract, as B.'s refusal evinced an intention no longer to be bound by the contract. Withers v. Reynolds, 2 B. & Ad. 882. 4. A. agrees to sell B. 200 tons of iron, deliverable on the 1st of April. Before that dateB. becomes insolvent, and informs A. of this fact. In May, iron having risen, B. demands delivery. A. may repudiate the contract, as the notice of B.'s insolvency, coupled with the fact tliat B. had not earlier offered to take delivery, and tendered cash, was an offer to rescind which A. might accept. Morgan v. Bain, 10 0. P. 15. 111. The contract of sale is not voidable by the buyer by reason only — (1) Of the wrongful retaking of the goods out of his possession by the seller (e) ; or (2) The wrongful re-sale of the goods by the seller (/) ; or (3) Of the breach by the seller, where the goods are deliverable by instalments, by non- delivery of any instaluient [g) ; unless from such breach, coupled with other facts, may be inferred an intention on the part of the seller to abandon the contract (Ji). Illustrations. — 1. A. sells goods to B., who accej^ts a bill there- for ; and, after delivery, A. forcibly retakes and re-sells them. B. ^^/^ must nevertheless pay the bill, as, the original contract not being discharged by A.'s conduct, the consideration for lils acceptance has not failed. Stephens v. Wilkinson, 2 B. & Ad. 320 (»'). 2. A. sells B. a quantity of wool, and, on B.'s default in acceptance, re-sells it at a loss. B. is, notwithstanding A.'s re-sale, liable to A. for non-acceptance. MacLcan v. Dunn, 4 Bing. 722. (e) Gillard v. Brittan, 8 M. & W. [h) Cf. the law laid down in Mer- 575; per cur. in Fage v. Cowasjee, 1 sey, ^-c. Co. v. Kaijlor ij- Co., 9 Ap. P. C. 146. Ca. 434. (/) I'cO'^ V. Cowasjee, supra ; per (i) Cf . also, per Lord Ellenborough cur. in Acebalr. Levy, 10 Bing. 385. and Bayley, J., in Gronhig v. Mend- {g) Jonassohn v. Young, 4 B. & S. ham, 5 M. & S. 190, 191. 296. 88 THE LAW OF SALE. 3. A. agrees to sell to B., by instalments, as many coals of a particular descrij)tion as a steam vessel to be sent by B. could fetch in nine months. On the first voyage A. delivers a cargo of inferior coal, and also detains B.'s ship an unreasonable time ; and B. refuses to receive any more. B. is liable for non-accept- ance. Jonassohn v. Young, 4 B. & S. 296. 112. If there be an express provision in the con- tract that, upon default made by the buyer, the seller may re-sell the goods, a re-sale duly made oj^erates as a discharge of the contract (/). In such case, if the goods on a re-sale produce an amount in excess of the contract price, the seller is entitled thereto ; if they produce a deficit, the buyer is liable for the amount thereof, and the expenses of the re-sale (Jc). Illustration. — A. sells B. goods for 79^,, a condition of the sale being that upon B.'s default the goods may be resold. B. makes default, and A. re-sells for 63^. A. cannot recover 79^., the original price, as the contract is discharged; but(^) \_se7nhle], he may 16^., and the expenses of the re-sale. Lamond v. Duvall, 9 Q. B. 1030. 113, A buyer, who becomes insolvent before the ownership of the goods has passed to him, may, with the assent of the seller, reject the goods and rescind the contract (?«); or, where the ownership has passed, may refuse to accej^t delivery thereof, so as to prolong the transit ; and in each case his conduct will not amount to a fraudulent preference within the meaning of the bankruptcy law {n). {J) lamond v. DiivaU, 9 Q. B. 172; 28 L. J. Q. B. 97. Sec us, after 1030; 16 L. J. Q. B. 136; approv- the ownership has passed : Barnesx. ing the dictum of the court in J/ff^e- Freehold, 6 T. R. 80; Benj. (2nd dorn V. Laing, 6 Taunt. 162. ed.) pp. 403, 404, 715. {k) Benj. (2nd ed.) pp. 653, G54. (h) JJarirain \. Farebroihcr, iBing. (/) Cf . the dicta in the case. 579 ; Bolton v. Lane. % Y. R. Co., 1 {m) Nicholson \. Boicer, E. &; E. C. P. 431 ; Benj. supra. BREACH OF THE CONTRACT, AND HEREIN OF DAMAGES. 89 114. In the case of a brcacli by the seller l^y non- deliveiy, or by the buyer by non-acccptanee, of the goods contracted for, the buyer or the seller, as the case may be, may recover, as comjoensation, the difference between the contract price and the mar- ket price, or (in default of a market) other value, of the goods at the date appointed for delivery or acceptance respectively (o). Explanation. — The value of the goods, where there is no market, may be determined by the price at which they were resold, within a reasonable time and under reasonable circumstances, by the seller (79) or the buyer (//) to a tliird i)erson ; or by the price which the buyer, acting reasonably in that behalf, may have had to pay for the best substitute for the goods procurable (r). The damages may, however, be mitigated, in the case of a breach by a prospective repudiation of the contract, where the party having the cause of action, and who has accepted such repudiation, has had an opportunity of lessening the effect of the breach. Per cur. in Frost v. Knight, L. R. 7 Ex. 113; and in Rojyer V. Johnson, 8 C. P. 167. In the absence of more relevant evidence of value, the value of the goods at an adjacent place may be taken as the basis. Per cm\ in Durd v. Denton, 47 (0) "Per CUV. in BarioivY. Aniaud, 8 (p) Dunkirk CoUicry Co. v. Lever, Q. B. 609, 610 ; Boorman v. Kash, 9 41 L. T. 633 ; Greaves v. Ashlbi, 3 B. & C. 145 ; Leifjh v. Faiersoii, 8 Camp. 42G. Taunt. 540 ; 2 Moo. 588. For the {q) Tr/erson v. Ei/re, 13 C. B. 353, definition of a market, cf. per James, per Maule, J. ; Stroud v. Austin, 1 L. J., in Dunkirk CoUicry Co. v. Cab. & Ell. 119 ; per Brett, L. J., Lever, 9 Ch. D. 20. And cf. also, in Grehert Borgnis v. Xuyent, 15 Q. per cur. in Kountz v. Kirkpatrick, 72 B. D. 89, 90. Penn. 370 ; and 3 Pars, on C. (7th (?) I[inde\. Liddell, L. R. 10 Q. B. ed.) pp. 222, 223. 265 ; Stroud v. Austin, supra. 90 THE LAW OF SALE. N. Y. 167, and Gregory v. McDou-eU, 8 Wend. 435. In Stroud v. Austin, supra, a re-sale immedi- ately after the contract was held relevant evidence of the value of the goods two months afterwards, the seller not showing any variation in value. In the case of mioit v. JIurj/ics, 3 F. & F. 387, it was held at Nisi Prius, on the analogy of actions for non-replacement of stock, that the buyer, having pre- paid the price, was entitled to recover the highest value of the goods up to the date of trial. Sed qucere; see the subject discussed in Mayne on Dam. ch. 5. Startup V. Cortazzi (the best report of which is 5 Tyrwh. 697 ; cf. also, 2 C. M. E. 165) seems to throw no light upon the point, and is a confusing case at best. Illustrations. — 1. A. agrees to sell B. a quantity of cotton at 16|f/. a lb., deliverable on August 31st, and fails to deliver. B. re-sells for 19Jf/. a lb. The j)rice on the 31st was IS^rf. a lb. B. can recover the difference between 16ff/. and \S\d. a lb. from A. Williams v. Reynolds, 6 B. & S. 495. 2. A. agrees to purchase of B. a quantity of corn, the corn to be delivered at a certain place. Before its arrival, A. repudiates the contract, but B. tenders the corn on its arrival. The difference between the contract price and market price of the corn at the date of A.'s repudiation is 93?. ; at the time of tender it is 21gi> B. may recover 218?. Phil^mtts v. Evans, 5 M. & W. 475 \s). 3. A. agrees to buy of B. a quantity of iron, deliverable during a particular month. A. makes various requests to B. to allow a postponement of delivery, to which B. assents. B. may recover the difference between the contract price and the market price of the iron, calculated at a reasonable time after A.'s last request for postj)onement (?). Hickman v. Haynes, 10 C. P. 598. 4. A. agrees to sell B. 2,000 shirtings, deliverable by a certain date, but before that date says he cannot deliver in time, whereby B. is compelled (there being no market for that particular descrip- tion of shirting) to buy shirtings at an excess in price of 137?. 10s., the shirtings being worth 87?. 10s. more than those contracted for. B. may recover from A. 137?. 10s., and not only the difference (6) Cf . for convei'se case, Leigh v. (0 Cf. Oyk v. Tunc, L. R. 3 Q. B. I'atersou, 8 Tiivmt. 540. 272. BREACH OF THE CONTRACT, AND HKREIN OF DAMAGES. 91 between that sum and 87/. lOs. Iliiuh v. Liddell, L. E. 10 Q. B. 265. 115. Where goods, under a contract of sale, arc deliverable by instalments, the date of delivery of each instalment is, in the case of breach by either party, and for the pm^posc of estimating the damages, considered a se2:)arate date of performance with resj^ect of each instalment [ii). Illustrations. — 1. A. agi'ees to sell to B. 500 tons of iron, deliverable by three instalments during three successive months. Before the time of delivery of the tirst instalment A. renounces the contract, but B. sues him at the end of the three months. The difference between the contract and market price of the iron at the end of t^ third month is 237/. 10s. ; the sum of the dif- ference of eacMRnstalment, calculated at the end of each month, is 109/. 4*. B. can recover 109/. 4*. Brotvn v. MuUer, L. E. 7 Ex. 319. 2. A. agi-ees to sell to B. 3,000 tons of iron, deliverable by instalments from ]\Iay to August. In May A. repudiates the contract, which B. in June accepts, and B. sues in August. B. may recover tlie sum of the dift'erence calculated or .estimated at the end of the three months, unless A. can show that B. could have obtained similar goods elsewhere in the meantime. Roper V. Johnson, L. E. 8 0. P. 167. 116. Upon a non-delivery by the seller of an article which was ordered for a particular purpose known to him, the buyer may, where there is no market for similar articles, recover the value of the profits which he would have gained by the applica- tion of the article to such purpose [x) ; or (if the seller were aware of no particular jDurpose) the (m) Brown v. MuUcr, L. R. 7 Ex. {x) Vcv Grove, J., in Thol v. 319 ; livprr v. Johnson, 8 C. P. 167 ; Henderson, 8 Q. B. D. 458 ; Fletcher Ex parte IJansamlet Tin Plate Co., IG v. Tayleur, 17 C. B. 21 ; per Caims Eq. 155; Barningham y. Smith, 31 IL. C, m Ex parte Trent and Hitmbtr L. T. 510. Co., 4 Ch. 117 ; Uydraulic Eng. Co. y.MeUaffie, 4 Q. B. D. G70. 92 THE LAW OF SALE. amount of Ins loss, not exceeding the value of the profits which he would have gained by the apiDlica- tion of the article to any purpose, to which it was, to the knowledge of the seller, capable of being ordinarily applied (?/). Illustrations. — 1. A. buys of B. a quantity of sheep skins for the puriDOse of fulfilling- a sub-contract of sale, of which he informs B. B. fails to deliver, and there being no market for such goods, A. cannot buy elsewhere, and loses a profit of 34^. A. can recover 34/. from B. Grebert Borcjnis v. Niujent, 15 Q. B. D. 85. 2. A. agrees to sell to B. the hull of a floating-boom derrick, which he supposes B. wants as a coal store (such being the ordi- nary use of the article), but which B. intends to put to a new purpose, of transhipping coals. A. delays delivery. B. would have lost 420/. profit had he intended the purpose supposed by A., but he, in fact, incurs greater loss. B. can recover 420/. from A. Cory v. Thames Ironivorks Co., L. E. 3 Q. B. 181. 117. Upon a non-delivery of goods bought, to the knowledge of the seller, for the purpose of ful- filling a sub-contract of sale, the damages recover- able by the buyer, if there be no market for similar goods, include, in addition to the buyer's loss of profit, a reasonable indemnity against the buyer's liability to the sub-buyer {z). Provided always, that — (1) The seller is not liable for any particular damages or penalties, which may be provided for in the sub-contract, in the event of a (y) Cory V. Thames Iromvorlcs Co., L. R. 9 Q. B. 473. And know- L. E,. 3 Q. B. 181 ; cf. the late case ledge gained by parol is sufficient, of De Maitos v. G. E. St. S. Co., 1 though the sub-contract is not men- Cab & Ell. 489. tioncd in a written contract of sale : (z) Grebert Borgnis v. Nugent, 15 Sawdon v. Andreivs, 30 L. T. 23. Q. B. 85, quoting Armstrong'' s ease, BREACH OF THE CONTRACT, AND HEREIN OF DAMAGES. 9'i breach, unless he were aware of such a spe- cific provision (a) : and (2) The amount of such damages or penalties is not, as such, recoverable by the buyer, but such amount is relevant to prove what is such a reasonable indemnity as aforesaid (b). Explanation. — Knowledge by the seller of a gene- ral intention on the part of the buyer to resell, does not amount, within the meaning of this section, to a knowledge of any specific sub-contract of sale, so as to entitle the buyer to recover the loss of profits (c). Illustration. — A. agrees to sell to E. 243 sheep skins for the purpose of fulfilling a snb-contract. of which A. is aware. A. delivers only forty-two skins, and B., there being no market, is compelled to pay his sub-buyer 28/. damages. This sum of 28/. may be recovered as damages by B. from A.^ if the court think the amount reasonable. Grebert Borgnis v. Nuyent, lo Q. B. D. 85. 118. When it is the duty of the buyer to remove the goods sold, the seller may recover from him the expenses of the keep or j^reservation of the goods after the expiration of a reasonable time for removal {d). 119. In the case of a breach by the seller, by the delivery of goods inferior in quality to those con- tracted for, the buyer is entitled, as compensation, to the amount of the difference between the value of the goods actually delivered and that of goods of the stipulated quality, at the time and j^lace {a) Per Brett, M. R., iu Grvbert {it) Greaves v. Ashlin, 3 Camp. Borgnis v. Nugent, supra. 426 ; JD'Mlc v. Corbett, 5 Bosw. 202, (A) S. C. Am. And the goods may also be {e) Ttwl V. Henderson, 8 Q. B. D. sold by order of court : cf. liarthoto- 457. mew v. Freeman, 3 C. P. D. 316, under Ord. L. r. 2. 94 THE LAW OF SALE. appointed for delivery (e) ; and when the goods were ordered for a particular purpose, known to the seller, the buyer is entitled to be recouped the amount of any loss incurred by him by reason of the failure of such purpose, necessarily resulting from the inferiority of the goods delivered (/) ; and where such purpose was the fulfilment by the buyer of a sub-contract for the sale of the goods to a sub- buyer, such damages include the damages and costs of an action at the suit of the latter, by the buyer reasonably defended (^). Illustration. — A. agrees to sell B. a quantity of Manilla hemp. On arrival the hemp is found to be unmerchantable, and B. sells it, and realizes seventy-five per cent, of the market price of undamaged hemp. B. may recover from A., in an action for breach of warranty, the twenty-five per cent. Jones v. Just, L. E. 3 a B. 197. 120. Upon a breach of warranty on the sale of a specific article, the buyer, if he have previously tendered it to the seller, may recover the expenses of its keep or preservation until a reasonable oppor- tunity occurs for a re-sale (h). {(') Cassaboghuv. Gibbs,\\Q,.'B.'D. difference between the value of the 797 ; Jones v. Just, L. E. 3 Q. B. actual and that of the contemplated 197. product : Randall v. Mnpcr, supra. (/) Bridge v. Wain, 1 Stark. 504 ; (r/) Ilaninwnd v. Bnsscy, 20 Q. B. Randall Y. Rcqjer,^.'B. k^.U. And D. 79. And the fact that the in- damages will not necessarily result, f eriority of the goods could only be where the inferiority of the goods detected after delivery to the sub- can be detected before their appli- buyer, and that the buyer had only cation to the contemplated purpose : the word of the sub-buyer to rely Wagstaff Y. Shorthorn Dairy Co., 1 upon, are relevant facts to prove the Cab. & Ell. 324 ; per cur. in Ham- reasonableness of a defence : *S'. C. mond V. Busseg, infra. When the In JFrightiip v. Chamberlain, 7 Scott, contemplated purpose is the produc- 598, the inferiority of the goods could tion from the goods of a new pro- be detected before litigation, duct, the measure of damages is the (/;) Casivell v. Coare, 1 Taunt. 566 ; BREACH OF THE CONTRACT, AND HEREIN OF DAMAGES. 05 121. Upon a breach by the seller by non-delivery of specific goods sold, the court or a judge may, at their or his discretion, order the seller to deliver such goods to the buyer, upon payment by the latter of the price, or any part thereof remaining unpaid (/). 2 Camp. 82 ; Ellis v. Chinnock, 7 C. C. & P. 85, where no attempt waa & P. 169 ; Chesterman v. Lamb, 2 A. made to sell the horse, the buyer & E. 129 ; McKenzic v. Handcock, R. recovered his expenses up to tender. & M. 436. In IVatson y. Benton, 7 {i) 19 & 20 Vict. c. 97, s. 2. 96 THE LAW OF SALE. CHAPTER VII. MISCELLANEOUS. 122. In a sale of goods by auction, there is, in tlie absence of a contrary intention (a), a separate and distinct sale of the goods in each lot, the ownership thereof being transferred by the knocking down of each lot [h). 123. Subject to the provisions of the preceding section, a contract for the sale of several things at the same time, or otherwise as one transaction, amounts, in the absence of a contrary intention, to an entire contract for the whole of such goods, though separate prices may be fixed, or though some of the goods contracted for may not be then in existence (c'); but a contract of sale, originally entire, may become divisible by reason of the buyer's acceptance, Avitli the assent of the seller, of part of the goods ((/). Explanation. — The making by the parties of a written contract or memorandum embodying several sales, is a relevant fact to prove an intention that the whole transaction should be deemed one entire («) Cf . explanation to next section. (c) When a lump sum is fixed, the {!)) Boots y. Dormer, m. & Ad. 77 ; case is stronger for entirety: cf. Emmerson v. Ilcclis, 2 Taunt. 38 ; llarman v. llccvc, 25 L. J. C. P. 257 ; Payne v. Cave, 3 T. R. 148 ; Coustcn Siinmoiids v. Carr, 1 Camp. 360. V. Chaj}ma)i, L. R. 2 Sc. Ap. 250. {d) Cf. cases in illustrations. MISCELLANEOUS. 97 contract (c), within the meaning of this and the pre- ceding section. Illustrations. — 1. A. goes toB.'s shop and buys a lot of goods, a separate price being fixed for each. Some of the goods are measured in his presence, some are marked by him, and some he assists in separating from a Larger bulk. One account is made out, and on delivery A. asks for discount on the whole amount. This is an entire contract for the sale of all the goods. Baldey V. Parker, 2 B. «& C. 37 (/). 2. A. goes to B.'s manufactory, and orders some ready-made lamps, and one lamp also to be manufactured. This is an entire contract for all the lamps. Scott v. E. C. R. Co., 12 M. & W. 33. 3. A.'s traveller, B., calls upon C, and 0. orders of him a cask of cream of tartar, and also otfers to buy two chests of lacdye at a certain price. B. says he would write to A. as to the accept- i^ ance of C.'s offer for the lacdye. The contracts for the sale of the cream of tartar and of the lacdye are separate, as the latter was not complete till A. had made up his mind. Price v. Lea, 1 B. & C. 15G. 4. A. orders of B. a quantity of plums and some raw and lump sugar. B. sends the plums and the raw sugar, and A. consumes the plums, but refuses to accept the raw sugar, as the lump sugar was not sent. As A. did not return both the plums and the raw sugar, he has rendered the contract divisible, and must pay for the raw sugar. Champion v. Short, 1 Camp. 53 {g). 5. A. agrees to sell B. 100 bags of hops, deliverable by a certain date. Before that date A. delivers an instalment of twelve, which B. keeps, and then A. demands the price of the twelve. B. is not bound to pay, as the contract was entu*e for the 100, and by retaining the twelve before the date appointed for delivery of the whole, B. has not necessarily accepted the twelve, so as to make the contract divisible. Waddington v. Oliver, 2 B. & P. N. E. 61 (A). 6. A. buys timber of B. at a certain place, and then goes with him to other places, at each of which he buys more timber. At {e) Big(j T. Whisking, infra; Dykes (/) Cf. Elliott v. Thomas, 3 M. & V. lilakc, 4 B. N. C. 463 (sale by W. 170, oveiiniling Hodgson v. Le auction). And, of coui'se, when the Bret, 1 Camp. 233. facts show that the object of the {g) Cf. Tarling v. G'Eiordan, L. R. contract would be defeated unless it Ir. 2 C. L. 82. were considered an entire one, it will (/() The converse case is Oxendale be so considered : cf . per Lord Ellen- v. Weihcrall, 9 B. & C. SSfi. borough in Champion v. Short, infra. K. H 98 THE LAW OF SALE. the last place a memorandum of all tlie sales is drawn up. This is an entire contract for all the timher. Bigg v. Whisking, 14 C. B. 195. 124. A bargain and sale of goods delivered on sale or return takes place, if and wlien the bailee— (a) Retains tliem beyond the time limited for their return, or otherwise beyond a reasonable time in that behalf (i) ; or (b) Deals with the goods in an unreasonable man- ner, or otherwise as an owner thereof (k). The language used by the judges in some of the cases rather suggests the inference that they con- sidered the transaction of " sale or return," and " sale on approval," as, in its inception, an absolute sale, sub- ject to a right in the buyer to rescind. And this may be so, of course, in some cases. It is submitted, how- ever, that, generally, the true view of the transaction is as stated by Mr. Benjamin (2nd ed. p. 49), that, in . the first instance, there is a bailment, and superadded Va contingent sale. Cf . note {j) to sect. 4, supra. Den- man, J., also seems to take this view : cf. EljjhicJc V. Barnes, 5 C. P. D. 326 ; and cf. per cur. in Httnt v. Wgman, 100 Mass. 198. 125. A bargain and sale of goods delivered on trial, or on approval, becomes a bargain and sale thereof, if and when the bailee approve thereof, either expressly, or imj^liedly by retaining them (i) Harrison v. Allen, 2 Bing. 4 ; mission to him : Jacobs v. Soriihach, Gibson v. Bray, 8 Taimt. 76; Moss 1 Times L. R. 419. V. Sweet, 16 Q. B. 493; Eaij v. (A) Cf. per Bramwell, B., in i/m? Barker, 4 Ex. D. 279. And as time v. Tattcrsall, L. R. 7 Ex. 7 ; Ex is given the bailee to enable him to parte KeviU, 6 Ch. 397 ; per Jessel, test the goods, the time runs from his M. E.., in Ex parte Winrjfelcl, 10 Ch. receipt thereof, and not from the time D. 693. of the delivery to a carrier for trans- MISCELLANEOUS. 99 beyond the time limited for trial or api:)roval (/), or otherwise beyond a reasonable time(w); or by dealing with the goods in an unreasonable manner, or otherwise as an owner thereof (n). Illustration. — A. agrees to sell B. a horso on a month's trial. At the end of a fortnight B. says he does not like the price, whereupon A. asks B. to return the horse, but B. keeps him ten days longer, and then returns him. A. cannot sue B. for the price of the animal, unless A. and B. intended by the conver- sation to rescind the original bailment, and then to enter into an immediate bargain and sale. Jillis v. Mortimer, 1 N. R. 257. 126. Such a contract, as in either of the pre- ceding sections mentioned, does not become a bargain and sale of the goods delivered by reason of the destruction (o) of, or any damage or injury (/>) occurring to, the goods while in the custody of the buyer, without his act or default. But the buyer is [probably] liable for the price of the goods, if a return thereof becomes impossible by reason of the wrongful act or default of a.third jperso^n [q). 127. When a person fraudulently procures another to supply goods to an insolvent third person, and afterwards obtains possession thereof, the seller may treat the transaction as a bargain [I) Blenk'msee v. Blaibcrg, 2 Times (/() Lucij v. Mouffld, 5 H. & N. L. R. 36 ; Andrews v. Jie{fiehl, 2 C. 229. B. N. S. 779 ; Ullis v. Mortimer, 1 (o) E/phick v. Banits, 5 C. V. D. N. R. 257; JIumphrics v. Carvalho, 321. 16 East, 45; Elphkic v. Bar»cs, 5 {p) IIcad\. Taitcrsalt, 'L.Il.l'Ex. C. P. D. 326. 7. Of. in America, Carter v. If'aliaee, (»«) Sicain V. Shepherd, 1 M. & R. 35 Hun, 189 ; Jlioit v. irijman, 100 223; Beverley v. Lineoln Gas Co., 6 Mass. 198. A. & E. 829. {q) Semhle, per cm-, in Hay v. Barker, 4 Ex. D. 279. H 2 100 THE LAW OF SALE. and sale of the goods to such first-named person through the third person as his agent (r). If the fraud consist in a representation concerning the credit, &c. of the third person, such representa- tion must, of course, be in writing, according to 9 Greo. 4, c. 14, s. 6; and if such representation "be the foundation of the seller's case, semble he could not recover the price of the goods from the person making the representation : cf . Hadock v. Ferguson, 7 A. & E. 86. Illustration. — A. assists B., an insolvent person, in fraudulently purchasing goods from C. ; B. hands the goods when delivered over to A. as an indemnity for a debt due to him. C. may recover the price of the goods from A. Hill v. Perrott, 3 Taunt. 274. 128. A judgment, in an action for the con- version or detention of goods, for their full value, followed by a satisfaction of such judgment, transfers the ownership of the goods to the de- fendant (5). Illustrations. — 1. A. recovers judgment against B. for the detention of a mare, and issues execution for its value, but this is stopped before sale by B.'s bankruptcy. The ownership of the mare is in A. Ex parte Dral. 112 APPENDIX A. 322) ; that is to say, the parties must be taken to have bargained that the rabbits should vest in the buyer, as owner, as soon as they were sent off ; that then they should be sold and delivered ; and yet that acceptance and payment should be incumbent on the buyer only on the contingency of the goods arriving in a merchantable condition. Another way of explaining Beer v. Walker is this: that (although the special case expressly found that the goods were sound when they were delivered to the railway com- pany) they were in fact, qua their capahility of being transmitted in a sound condition, unsound. But this difficulty remains: that the court thought that the buyer should bear some risk of their transit ; and it is not easy to see why any risk should have been cast upon him, as the seller agreed to send the goods to a distant place, except on the theory that the ownership of the rabbits had vested on consignment. On the whole, it is submitted (assuming the principle, that a buyer, in rejecting goods, rejects what has never become his property, is correct) that Beer v. Walker must be treated as a case in which the goods were really unsound when con- signed ; or as an exceptional case, to be explained, as I have above suggested, on the authority of Blackburn, J., in CaU cutta Co. V. De Mattos. APPENDIX B. WAERANTY. The law, as stated in sects. 71 to 76, may be thus sum- marized, the principle in all cases being that the buyer is entitled to have delivered to him what he bargained for : — 1. The goods delivered must in all eases answer the description in the contract, as it is only for such goods that the buyer bargains. 2. AVhen the goods contracted for are a mercantile com- modity, the goods delivered must, where the buyer has had no opportunity of inspection, answer to their description in a commetrial sense, that is, they must be merchantable ; as the buyer bargains for such goods as generally understood in commerce, with such essential qualities as render them worth buying. Accordingly, merchantable quality is, in such cases, 2)a)'t of the descripfio)! of the goods; but no other implied warranty of quality is superadded. 3. When the goods contracted for are not a mercantile commodity, there is no warranty of merchantable quality, as the parties are not dealing for goods as commonly known in commerce. See notes (,/) and (w) to sect. 75, supra. 4. When goods are ordered for a specified purpose, under such circumstances that the seller's judgment and skill are relied upon, the adaptability of the goods to such purpose is also part of the description. K. I 114 APPENDIX B. 5. When the buyer trusts to his own judgment, as, e.g., where he defines the particular article, or kind of goods he requires, or the plan according to which they are to be made or supplied, the statement of the purpose for which they are required is treated only as the expression of the buyer's motive in buying, and such adaptability is not part of the description of the goods. 6. The use of a sample ordinarily negatives the implication that the goods (being, however, of the proper descrip- tion) should be of any particular quality ; but only so far as the buyer can judge of the bulk by the inspec- tion of the sample. Accordingly, the implication of a warranty of merchantability is not rebutted with regard to defects latent in the sample. 7. In some cases it is also part of the description of the goods that they should be home-made, as where a manufacturer (who is not also a dealer) contracts to supply goods of the class which he manufactures ; but no further warranty of superfine, or of average trade quality is ordinarily superadded. Cf . the law generally laid down, per cur. in Modij v. Greg- son, L. K. 4 Ex. 49 ; Bamlall v. Neuson, 2 Q. B. D. 101 ; Jo)ies V. Just, L. R. 3 Q. B. 197 ; and in the latest case of Ijjswich Gasworks Co. v. King, 3 Times L. R, 100. APPENDIX C. Bull v. Robison and Beer v. Walker (ss. 60, 77). JBidl V. Rohifioii decided that the buyer was bound to accept the goods, though unmerchantable on arrival at the place of delivery, where the deterioration was the nccesmnj result of the transit, although the seller had contracted to deliver the goods at tJieir dcsfiiiafioii. The inference from tliis decision is that, a fortiori, the buyer would be bound to accept, if the seller had contracted merely to dispatc/i the goods. The dicta in the case are to the effect that the seller would not have fulfilled his contract, had the deterioration been unufiual or uiuicccssar//. Beer v. Walker decided that the buyer was not bound to accept goods which were unmerchantable on arrival, though the seller had contracted merely to dispatch them. In this case the deterioration in transit was unexplained, and was assumed by the court to have taken place in the ordinary com-se of nature — the goods being rabbits. The inference from this decision is that, a fortiori, the buyer would not have been bound to accept, had the seller contracted to make delivery at the destination. The dicta are to the effect that the seller wouLl have per- formed his contract by delivering the goods to the can'ier in a merchantable condition (as it was found he did), had the subsecjucnt deterioration been occasioned by any cj-cej)tional cause. I 2 116 APPENDIX C. The general result appears to be that, when goods are to be sent to a distant place, the seller must deliver them so as to arrive in a merchantable condition at their destination in the ordinary course of transit, though he only contracted to send them of; but that this duty of his will be fulfilled if he deliver them to the carrier in a merchantable condition, (even though he agreed to deliver them at their destination,) the after-deterioration being ineritahle; but that, if such subse- quent deterioration is unusual or exceptional, he will or will not have fulfilled his duty (after delivery of the goods in a sound condition to the carrier), according as he contracted only to dispatch the goods, or to deliver them at their desti- nation. See also, (on the question of the transfer of the ownership,) the discussion of Beer v. Walker in Appendix A. There are some elictct of Lord Tenterden's, in UUock v. Reddelhi, which at first sight seem to confiict with the rule as laid down in the other two cases. But his lordship was speaking of an accident happening to the goods after their shipment; and this is consistent with ^eer v. Walker ^h&mg an unusual or exceptional cause of loss. And, in such a case, the maxim res perit domino would apply; and the seller, having fulfilled his contract by dispatching the goods, would have no further liability : cf. sect. 48. Besides, the case was decided on another ground, viz., that the seller had disregarded the directions of the buyer as to the mode of dispatch. 117 29 Car. 2, c. 3 {Statute of Frauds). Sect. 17, Be it further enacted by the authority aforesaid, that from and after the said four and twontiotli day of June no contract for the sale of any goods, wares, and merchandises, for the price of ten pounds sterling- or upwards, shall bo allowed to be good, except the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to bo charged by such contract, or their agents thereunto lawfully authorized. 9 Geo. 4, c. 14, s. 7 {Lord Tenterden^s Act). Whereas by an Act passed in England in the twenty-ninth year of the reign of King Charles the Second, intituled " An Act for the Prevention of Frauds and Perjui-ies," it is, among other things, enacted, that [rer/Vi'»y Me 5/rt^?), 108(111. 1). Freight Free, bill of lading stating goods to be, has no necessary effect on reservation oijus disponendi, 40. Goods, general definition of, 1. wares and merchandises within Statute of Frauds, 0. Growing Crops, when goods, wares and merchandises within Statute of Frauds, 0. Indemnity, against buyer's liability to sub-buj'or, when recoverable by former, 117. what relevant to prove amount of, ih. 128 INDEX. Injury, to goods sent on sale or return, or on trial or approval, effect of, 126. Insolvency, of buyer, before actual possession of goods, revives lien, 91. insolvent buyer may repudiate contract, wben, 113. or prolong transit by refusing goods, ih. right of stoppage in transit on insolvency of buyer. See Stoppage in transit, quasi rigbt of stoj^page on insolvency, 92. definition of insolvency, 91. of buyer does not ordinarily make contract voidable by seller, 110. where it does, ih. procurement of delivery of goods to an insolvent person, a bargain and sale to person procuring, 127. Inspection, buyer's right of inspection of goods sold by sample, 56. right to inspect goods before acceptance, 64. where inspection delusive hy reason of latent defect, ih. of sample, delusive by reason of latent defect, what warranty implied, 76. Interest, when payable on price, 66 (o). Invoice, stating goods to be shipped on account of, and at risk of buyer, no necessary effect on reservation of jus dis- ponendt, 46. Judgment, for price, does not affect seller's lien, 90 (Obs.). in trover or detinue, when a bargain and sale, 128. for price, does not prevent repudiation on ground of fraud, 130 (Obs.). Jus DiSPONENDI, reservation of, 46. how effected, ih. et seq. reserves ownership, ih. dispatch to buyer of unindorsed bill of lading immaterial, 46(/). Knock out, an indictable conspiracy, 131 (Obs.). Latent Defects, effect of, on buyer's right of rejection, 64. warranty of fitness by maker of specific thing as regards latent defects, 71. in goods sold for particular purpose, 71 (a). in goods sold by sample, 76. INDEX. 129 Latent Defects — continued. in goods according with description, ordinarily no warranty against, 78. in case of fraud, buyer may reject, 78, 88. LlEX, of seller on goods unpaid for, 90. contrary intention excluding lien, when, 91. when lien revives, ih. no new lien acquired by bailment to seller after termination of transit, 90 (Obs.). by way of quasi stoppage, when goods sold by instalments, against sub-buj'er, 93. when such lien excluded, ih. effect on lien of part delivery, 108. effect on lien of transfer of bill of lading, 109. of other documents of title, ih. effect when sub-buyer transferee of bill of lading, ih. transfer m good faith, when, ih. Manufacturer, warranty, by manufacturer of specific thing, of fitness, so far as regards latent defects, 7 1 . who is not also dealer, warrants that goods of his own manu- facture, 73. no warranty, by manufacturer, of superfine, or ordinary', or average trade qualitj-, 74. warranty of quality of goods sold by sample by, and contain- ing latent defects, 70 (Obs.). ULvRKET Overt. See Title. M.^KET Price, ordinary test of value of goods in estimating damages, 114. Marking Goods, evidence of acceptance undor Statute of Frauds. See Bill v. Bament (9 M. & ^V. 30). not of actual receipt {S. C), Id {y). does not divest lien, 90 (lU. 7). Mate's Eeceipt, evidence of seller's intention to ajipropriate goods on ship- ment, when, 4j (Obs.). effect on lien of taking, by seller, 90 (111. 2). transfer of, to buyer, evidence that transit ends on shipment, 101 (Obs.). Measurement, bargain and sale ordinarily suspended where price to bo ascertained by, 39. buyer's right to measure goods, 56 {I). K. K 130 INDEX. Memorandum, embodying several sales, releyant to prove an entire contract, 123. Merchantable Quality, ■warranty of, wlien, 75. to what class of goods probably applicable, 7u {j), (m). See also Aj^j^cndix B. no warranty of, wben parties settle tbeir own standard of quality, 1o{k). wben goods to be sent to a distance, 77. More or Less, in quantity, 61 et seq. Note or Memorandum. See Statute of Frauds. Notice, of place of delivery, when uncertain, 50 (c), 58 (o) of stoppage in transit, how given, 104, 105. "Now on Passage," meaning of, 136 (111. 7). Ownership, transfer of, involved in sale, 2. transfer of, by person without title. See Title. of coin, 21 (a). risk ordinarily attaches to, 48. contrary intention, ib. when goods sold free on board, 49. rules for transfer of. See Bargain and Sale. transferred by a judgment, in trover or detinue, for fuU value, and satisfaction, 128. from what time transferred, ih.{s). Partner may stop in transit goods consigned to co-partner, 96(4). Patent Defects, general warranty does not ordinarily cover, 85. Payment. See Price ; Performance. Penalties, amount of, in buyer's contract with sub-buyer, not neces- sarily recoverable from seller, 117. but amount relevant to show a reasonable indemnity, ib. Performance, duties of seller to comply with warranties and to deliver, 50, of buyer to receive and accept and pay, 51. seller not bound to send goods, 52. delivery, how made, 53. liability of seller, after bargain and sale, until delivery, 54. tender of delivery, how made, bb. INDEX. l;Jl rEEFORMAXCE— ff')<;/// llcd. buj'er's right to inspect goods sold by sample, .j(j. withdrawal of imjiroper tender, when competent, u7. place of doUvcrj', 58. duties and responsibilities of seller dispatching goods, 59. when goods deliverable at destination, GO. delivery of goods mixed with others, or excessive or defec- tive in quantity, (jl. delivery by bill of lading, how made, 62. no condition as to sending of bill of lading on in time to meet vessel, C3. when an acceptance takes place, CA. refusal of acceptance, how made, (>'). a reasonable price payable for goods where not fixed, GG. when goods perish, price estimated, ib. pajTnent to owner as against seller without title, 67. warranty defined, 68. when a condition, 69. sjiecific existing article accessible to inspection, no war- ranty, 70. on sale of goods for particular purpose, 71. specific article manufactured for particular purpose, ih. warranty of fitness not necessarily excluded by another ex- press warranty, -ih. no warranty of fitness where article ordered is defined, 72. warranty that manufactured goods are home made, 73. other warranties not ordinarily implied on sale of manufac- tured goods, 74. goods must coufoi-m with description, 15. and be merchantable, when, ib. other warranties do not exclude condition as to description, ib. warranty of agreement with samj^lc, 76. on sale by sample, no other warranty ordinarily implied, ib. unless defects latent, ib. extent of warranty of merchantable quality or fitness when goods to be sent to a distance, 77. warranty on sale of chain cable, 79. on sale of goods with trade mark or description, 80. on sale by sheriff, 81. on sale of animals in j^ublic market, 82. warranty implied from trade usage, 83. warranty limited for certain time, 8-1. general warranty does not ordinarilj' coyer patent defects, 85. where warranty of title, 86. when failure of such warranty a failure of considera- tion, 87. when buyer, on breach of warranty, ma}' repudiate contract, 88. rights of buyer on breach of warranty, ib. when special damages recoverable, 89. Place of doliverv. See Delivery ; Ferformance, k2 132 INDEX. Plan, where goods to be made according to buyer's, ordinarily no warranty of sufficiency of, 71 (Obs.), 72 (Obs.). when seller assumes risk of adaptability, 71 (Obs.). Pledge, transfer of bill of lading by way of, i^ro tanto defeats right of stoppage, 109. seller's right to marshall securities as against pledgee, il. Price, in money necessary to a sale, 2. when price or value of 10?., Statute of Frauds must be satis- fied, 5. what are agreements for the price or value of lOZ., 7. must appear in memorandum, if any price fixed, 18. ready money bargain no bargain and sale unless price paid, 47. duty of buyer to pay, 51. reasonable price payable, if none fixed, 66. effect of refusal by valuers to fix, ih. (Obs.). estimated j)rice payable when goods lost, 66. when interest on price payable, 66 (o). time of payment of, made payable after delivery, when goods lost, 51 (/). time of payment, when payable "at convenience" of buyer, 51 (Obs.). payable without delivery, when buyer takes risk of deli- very, 51 (/). payment of, to owner, as against seller without title, 67. payment of, to buyer by sub-buyer, does not defeat right of stoppage, 102. no interception of price payable by sub-buyer, when stop- page defeated, ih. sale of several things for lump j)rice ordinarily an entire sale, 123 (c). when determination of, amounts to a wager, 129. if price not to be payable, but only differences, contract a wager, ib. purchase with no intention to pay, a fraud, 130. intention how j)roved, ih. Principal, consigning goods to factor, a seller with right of stoppage, 96. Profits, loss of, when recoverable by buyer, 110, 117. PuFEER, use of, by seller fraudulent, when, 132. Eeady Money, sale for, 47. Eejection, of goods. See Acceptance. effect of, See Appendix A. INDEX. 133 Representation, as to quality, &c. of subject-matter, when a Tvarrantj', G8. as to time or place of shipment of goods, when a warranty or condition, 134. how such condition fulfilled, ib. as to the credit, &:c., of a third person the consignee of goods, 127 (Obs.). Ee-sale, wrongful re-salo by seller does not render contract voidable by buyer, 111. pursuant to express condition, avoids contract, 112. damages when goods bought for, 117. by buyer, at reduced price, evidence of intention not to pav, 130. ^ Eeturx, buyer rejecting need not return goods to seller. Go. sale or return of goods, when it takes place, 124. ElSK, invoice stating goods to be shipped at risk of buyer, effect on jus disponcndi, 46 (Ex. 1). ordinarily attaches to ownei'ship, 48. when goods sold free on board, 49. after delivery to carrier, o9, 60. question of intention who bears, 48. when goods on sale or return, &c., are in possession of buyer, 126. Sale, definition of, 2. involves transfer of ownership, ih. See Ownership. test of, as distinguished from work and labour, 3. as distinguished from bailment, agency, or exchange, 2 [h). tender of price pursuant to award does not amount to, 2 (Obs.). when sale inferred or presumed, il, assent to, necessary, 2 (Obs.). ^ay be given conditionally, 4 [j). contract of, must not amount to a wager, 129. or return, formation of contract of, 4 [j), time for return begins to run, when, o9 (Obs.), 124 (/). See also Iteturn. on approval or trial, time runs, when, o9 (Obs.), 124 (j). See also ^p^^rowt^; Trial. " to arrive," or " on arrival." See Arrival. of cargo. See Carrjo. of cargo " as it stands." See Cargo. of cargo by bill of lading, 62, 63. Sample, acceptance and actual receipt of, 9. sale by, not a sale in market ovei-t, 30(2). buyer's right to inspect bulk sold by, 00. 134 INDEX. Sample — continued. production of, does not necessarily imjily sale by, TG (Obs.). warranty on sale by, 76. ordinarily no otber warranty of quality, ih, effect of latent defects in, 76 et seq, " Say about" such a quantity, 135 (Obs.). " Say froji " sucb a quantity, 61 (Obs.), and (111. 3). " Say not less than " such a quantity, 61 (111. 4). Scrip, Shares and Stocks, notgoods within Statute of Frauds, 6. Seller, actual receipt by buyer, wbere seller liis bailee, 13, lo (111. 5). obligation of, after bargain and sale, with respect to care of goods, 54. lien divested, where seller buyer's bailee, until default of latter, 91 (111.). Sheriff, sale by, good, if process duly executed, 24. effect, on title of goods sold, of writ being in hands of, 26, warranty of title by, what impHed on sale by him, 81. Ship, declaration of name of, when a condition, 137. Shipment, of goods, ordinarily an appropriation, 45. intention as to appropriation may be inferred from terms of mate's receipt, ih. (Obs.). concluded by taking of bill of lading, 45 (Obs.), 134 (/;). time and place of, ordinarily a condition, 134. need not, in above case, be made by or on behalf of seller, ih. (Obs.). Shop, sale in, ordinarily a ready money bargain, 47. Stoppage in Transit, unpaid seller's right of stoppage in transit, on buyer's in- solvency before end of transit, 94. when seller unpaid, 95. persons in position of sellers, 96. definition and duration of transit, 97. goods sent by forwarding agent for buyer, ih. anticipation of end of transit, 97 (vh). refusal of carrier to deliver, when a termination of transit, 98. attornment of carrier to buyer, atermination of transit, 97 (A), solvent buyer's right of indemnity for stoppage, 99. stoppage by unauthorized agent, 100. when and how ratified, ih, shipment on buyer's ship, when no termination of transit, 101. right of stoppage not defeated by sub-sale, &c., 102. sub-buyer's purchase-money, when not attachable, ih. INDEX. 135 Stoppage in Transit— contimied. stoppage must bo by yu-tuo of paramount right, and with intent to stop, 1013. how effected, 104. notice of, to whoni and how and when given, IQj. right of stoppage with reference to earner's lien and rights of buyer's creditors, lOG. effect of stoppage in transit, 107. effect thereon of part delivery, 108. right of, when defeated by transfer of bill of lading, 109. transfer of bill of lading by way of pledge, ib. seller's right to marshal! securities as against pledgee, ih. when transfer of bill of lading in good faith, ib. buyer may prolong transit by refusing goods, 113. SUB-BUYEE, lien ordinarily available against, 93. when it is not, 90 (e), 93. right of stoi^page also available against, 102. though price paid to buyer by, ib. or bill of lading originally made out in name of, ib. piu-chase-money of, cannot be intercepted after defeat of right of stoppage, ib. effect on lien of part delivery to one of several sub-buyers, _ 108. right of stoppage defeated, when and how, in case of sub- buyer, 109. Stjb-s^\xe. See Sul-luyer, Surety, for price, has no right of stoppage, 96 (Obs.). but may, on payment to seller, be subrogated to his right, ih. Testing oe Goods, to ascertain price, suspends bargain and sale, 39. unless for buyer's satisfaction onlj-, 39 (A-). Time, for acceptance. See Delay. for arrival of vessel and goods in sale "■ to arrive," 13G. of shipment of goods, a descriptive statement, 134. of delivery. See Delivery. when goods sent on sale or return, &c. See Delivery. Title, buyer generally takes seller's, 21. exceptions, viz. : — re-sale under voidable title, 22. sale under Factors Acts, 23. pursiiant to licence or power, 24. by way of estoppel, 2j. of goods liable to seiziu'O under writ, 2G. in market overt, 27. definition of market overt, 28, 29. 136 INDEX. Title — continued. requisites to a sale in market overt, 30. goods returning to seller after sale in market overt, 31. revesting of title after conviction of fraudulent holder, 32. absence of, non-disclosure of, a fraud, 33. payment to owner as against seller without title, 67. warranty of, 86. when failure of title a failure of consideration, 87. Teade Mark or Description, warranty from use of, 80. Transfer, effect of transfer of bills of lading and other docu- ments of title on lien and stoppage in transit. See Bill of Lading; Lien; Suh-huyer; Stojppage in Transit. Transit. See Stoppage in Transit. Trial, excessive trial of goods tendered, an acceptance, 64. sale on trial, when it takes place, 125. Trustee, of insolvent buyer may, by tendering cash, elect to hold to contract, 110. effect of omission to do so, ih. Valuation, sale conditional on, 66 (Obs.). cannot be delegated to another, ih. consumption of goods by buyer before, 66 (o). Value, where goods of value of 10/., Statute of Frauds must be satisfied, 5. buyer for value in market overt, 30 (1). antecedent debt sufficient value for transfer of bill of lading to sub-buyer, as against seller's lien and right of stoppage, 109 (2). of goods, the basis of damages, 114, 119. when value of profits recoverable, 116. Wager, what apparent sales are really wagers, 129. Warranty, duty of seller to comply with, 50. definition of, 68, 69 (Obs.). in what cases a condition, 69. no warranty of quality or fitness on sale of specific existing article, 70. goods ordered for particular purpose, 71. of fitness, not ordinarily excluded by express warranty, 71 (ExpL). but generally by use of samples, 71 (c). INDEX. 137 Warranty — continued. no warranty of fitness of defined article, 72. in case of goods ordered accordingto specified plan, 71 (Obs.), 72(Obs.). no warranty by buyer of sufficiency of plan, 71 (Obs.). by manufacturers, of homo made manufacture, 73. but no warranty of superfine or ordinary or average quality, 74. of accordance with sample, 76. where latent defects, ib. and (Obs.). extent of warranty of quality wlien goods to be sent, 77. ordinarily no warranty against latent defects whore thing agrees with description, 78. on sale of chain cable, 79. on sale of thing with trade mark or descxiption, SO. on sale by sheriff, 81. none on sale of animals in public market, 82. implied bj- custom of trade, 83. limited in time, 84. general warranty covers no patent defect, 85. of title when, 86. dispossession of buyer, on breach of warranty of title, a failm-e of consideration, 87. when buyer, on breach of waiTanty, can return goods, 88. special damages for bi'each of warranty, 89. statement as to time or place of shipment of goods, a warranty, 134. how fulfilled, ib. of date of biU of lading, 134 (Obs.). in a sale of goods "to arrive," ordinarily no warranty of arrival, 136. 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