djornrll Haw i>rijonI library Cornell University Library KD 1650.C43 The sale of goods including the Factors 3 1924 022 471 126 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022471126 THE SALE OF GOODS INCLUDING THE FACTORS ACT, 1889. BY HIS HONOUR JUDGE CHALMERS. LONDON: WI-LLIAM CLOWES AND SONS, Limited, 27, FLEET STREET. 1890. LONDON: PRINTED BY WILLIAM CLOWES AND SONS, Limited, STAMFORD STREET AND CHARING CROSS. INTRODUCTION. The object of this little book is to state concisely the general principles of law peculiar to the sale of goods. The reported decisions on many branches of this subject have become so numerous as to tend to obscure the general principles which underlie them. They may be compared to the leaves of a tree ; when a tree is in full foliage the numbers of its leaves frequently hide from view the form and development of the trunk and branches which support them. I have made no at- tempt to deal with the cases in detail, as is done in Mr. Benjamin's exhaustive work. I have merely sought to trace out general principles and elucidate them by short notes and quotations from the opinions of eminent judges. The large type propositions of this book are taken, with necessary verbal alterations, from the clauses of the Sale of Goods Bill, 1889, which is a purely codifying measure. That Bill was drafted by me in 1888, and introduced at the close of the Session by Lord Herschell, but not pro- ceeded with. During the recess Lord Bramwell, Mr. Walter Ker (the author of an excellent book on the Law of Sale), and other friends kindly sent me criticisms on the language of the Bill. I then carefully resettled the ' w, SALE OF GOODS. ■J i r Bill in consultation with Lord Herschell, and he intro- duced it in the House of Lords in the Session of 1889. It was read a second time and referred to the Standing Committee on Law, but pressure of other business pre- vented its being proceeded with. The object and scope of the measure appear from the following extract from the Memorandum attached to it, viz. : — " 1. This Bill is drafted on the same lines as the Bills of Exchange Act, 1882. It endeavours to reproduce as exactly as possible the statutory and common law rules relating to the sale of goods, leaving any amendments that may seem desirable to be introduced at a later stage. " 2. The Bill is almost entirely a reproduction of com- mon law. With the exception of the Statute of Frauds, the legislative enactments relating to the sale of goods deal only with isolated points of not much general importance. In so far as such enactments deal solely with the law of sale, they have been reproduced in the Bill ; but where they relate mainly to some different subject matter, and deal only incidentally with the law of sale, or where they affect only certain specified classes of goods, they have been covered by saving clauses. If the whole law of contract was codified, the present Bill would form a single chapter in the Code. In accordance with this principle, no attempt is made to reproduce the effect of cases, which, though arising out of sales, merely illustrate principles common to the whole law of simple contracts. A similar course was observed with regard to the Bills of Exchange Act. " 3. .The Bill does not extend to Scotland. The law of Scotland with respect to the sale of goods differs in many important respects from the law of England. INTRODUCTION. v Hence a merely codifying Bill could not extend to both countries." It is obvious that the propositions contained in the Bill are sound law merely in so far as they are correct and logical inductions from the decided cases. If the Bill were to pass, the position would be reversed, and the decided cases would only continue to be law in so far as they were correct and logical deductions from the language of the statute. What the fate of the measure may be I do not know ; but I venture to think it would be beneficial to the trading community if the Bill were to become law. Even if no substantial amendments in the law were introduced, numerous more or less debate- able points could be settled. It needs no argument to prove that in matters of this kind legislation is cheaper and speedier than litigation. Again, men of business as a rule are more concerned with the certainty of the law than the nicety of its application. If they know what the law is they can regulate their conduct with regard to it beforehand. Of course no code can foresee and provide for every case which may arise under the infinitely complex relations of modern life and com- merce. But it ought to provide intelligible rules, which obviously govern the great majority of cases. I have included in their appropriate places the " Buyer and Seller " provisions of the new Factors Act (1889), and have inserted the statute at length, with the addition of brief notes, at the end of the book. Mr. Ilbert, the Assistant Parliamentary Counsel, when he was drafting that measure, was kind enough to keep its language uniform with that of the Sale of Goods Bill. The law of sale is a good illustration of the fortuitous character of English law generally. On some questions vi SALE OF GOODS. there is a plethora of authority. On others equally important there is a curious dearth of authority. To give an instance of the latter statement, the important question of the effect of different parts of a bill of lading getting into different hands seems to have been the subject of a Nisi Prius ruling in 1753 ; but, though it •was a matter of great importance to every shipowner and captain, it did not come before the Courts again for 129 years. 1 I have compared the main propositions of the English law with the corresponding provisions of the Code Napoleon, which is the model on which most of the other continental Codes are framed. The scope and; effect of a principle are often best brought out by con- trast. On the other hand, when any rule of municipal law is found to be generally adopted in other countries there is a strong presumption that the rule is founded on broad grounds of expediency, and that its application should not be narrowed. The Eoman lawyers were right in attaching a peculiar value to those rules of law which were jwris. gentium. I have also made frequent reference to Pothier's Traite du Contrat de Vente. 2 Although pub- lished more than a century ago it is probably still the best reasoned treatise on the Law of Sale that has seen the light. "The authority of Pothier," says Best, C.J., " is as high as can be had next to the decision of a Court of Justice in this country." 3 This statement must obviously be taken with the qualification that it only applies when Pothier is discussing some principle of 1 See Glyn, Mills & Co. v. East India Docks (1882), 7 App. Oas., at p. 610, per Lord Blackburn. s Pothier was born in 1699 and died in 1772. ' Cox, v. Troy (1822), 5 B. & Aid. 481, and cf. WLean v. Clydesdale Banh (1883), 9 App. Cas., at p. 105. INTRODUCTION. vn general application. The law he was particularly dealing with was French law as modified by the custom of Orleans before the Code Napoleon. The references, to the Civil Law need little comment. It is an inexhaustible store of legal principles, and there is hardly a judgment of importance on the law of sale in which reference is not made to it. "The Eoman law," says Tindal, C. J., "forms no rule binding in itself on the subjects of these realms ; but in deciding a case upon principle, where no direct authority can be cited from our books, it affords no small evidence of the sound- ness of the conclusion at which we have arrived, if it prove to be supported by that law — the fruit of the re- searches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries of Europe." l The main points of difference between English and Scotch law have also been noted. Scotch law differs from English law mainly by adhering to the Eoman law in matters where English law has developed a rule of its own. It seems absurd that, where two countries are so closely connected as England and Scotland, they should have divergent laws in matters relating to trade and commerce. The Mercantile Law Commission of 1855 reported on this question, and recommended that on certain points the Scotch rule should be adopted in England, while on other points the English rule should be adopted in Scotland. The recommendations of the Commissioners were partially embodied in the English and Scotch Mercantile Law Amendment Acts of 1856. 2 1 Acton v. Blundell (1813), 12 M. & W., at p. 324. 2 See post, pp. 128, 129. VU1 BALE OF GOODS. The result is curious ; either by accident or design certain rules have been enacted for England which resemble, but do not reproduce, the Scotch law, while other rules have been enacted for Scotland which resemble, but do not reproduce, the English law. To facilitate reference to contemporaneous reports, the date of each case cited has been given. To the list of cases cited I have added a table of cases overruled, doubted, or explained. This table has no pretensions to completeness, but may be useful as far as it goes. M. D. Chalmers. Birmingham, 1890. CONTENTS. Introduction .... Table of Cases Cited . Table op Cases Overruled, &c. PAGE iii xv xxiii PAKT I. Formation of the Contract. Contract of Sale. SECT. 1. Sale and agreement to sell ...... 1 Quasi- Contract of Sale. 2. Satisfied judgment ia trover, trespass, or detinue . . 4 t Capacity of Parties. 3. Capacity to buy and sell ...... 5 Formalities of the Contract. 4. Contract of sale, how made ..... 6 5. Contract of sale for £10 and upwards .... 7 Subject Matter of Contract. 6. Existing or future goods ...... 8 7. Goods which have ceased to exist ..... 10 8. Goods perishing before sale, but after agreement to sell . 11 CONTENTS. The Price. SECT. 9. Ascertainment of price . 10. Agreement to sell at valuation .... Conditions and Warranties. 11. Implied condition or warranty may be expressly excluded 12. Stipulations as to time. . . , * 13. Contract of sale may be accompanied by warranty . 14. Buyer may treat condition as warranty . 15. Implied warranty of title . 16. Sale by description ...... 17. Eule of caveat emptor. Implied warranties of quality, fitness, or condition ..... 18. Sale by sample ....... PAGE 11 12 13 14 14 16 17 19 20 23 PAET II. Effects of the Contract. Transfer of Property as oetween Seller and Buyer. 19. Goods must be ascertained . 20. Property passes when intended to pass . 21. Eules for ascertaining intention 22. Reservation of right of disposal 23. Bisk prima facie passes with property . 26 26 28 33 35 Transfer of Title. 24. Sale by person not the owner 25. Market overt 26. Sale under voidable title 27. Bevesting of property in stolen, &c offender 28. (1) Disposition by seller remaining in possession (2) Disposition by buyer obtaining possession . 29. Effect of writ of execution .... , goods on conviction of 37 39 40 41 42 43 43 CONTENTS. PABT III. Performance of the Contract. SECT. 30. Duties of seller and buyer .... 31. Payment and delivery as concurrent conditions 32. Eules as to delivery ..... 33. Delivery of wrong quantity .... 34. Instalment deliveries ..... 35. Delivery to carrier ..... 36. Risk where goods are delivered at distant place 37. Buyer's right of examining the goods . 38. Acceptance ...... 39. Buyer not hound to return rejected goods 40. Liability of buyer for neglecting or refusing delivery of goods ....... PAGE 45 46 47 49 50 51 52 53 54 55 55 PAET IV. Rights of Unpaid Seller against the Goods. 41. Unpaid seller defined ...... 42. Unpaid seller's rights ...... 43. Seller's lien 44. Part delivery 45. Termination of lien Unpaid Seller's Lien. 56 57 59 61 62 Stoppage in transitu. 46. Bight of stoppage in transitu . . 47. Duration of transit .... 48. How stoppage in transitu is effected 63 66 69 He-sale by Buyer or Seller. 49. Effect of sub-sale or pledge by buyer .... 70 50. Sale not generally rescinded by lien or stoppage in transitu 72 xu CONTENTS. PAKT V. Actions fob Breach of the Contbai t. Remedies of, the Seller. SECT. PAGE 51. Action for price ....... 75 52. Damages for non-acceptance .... 76 Remedies of the Buyer. 53. Damages for non-delivery ..... 77 Delay in delivery ...... 80 54. Trover or detinue ...... 80 55. Specific performance may be decreed 81 56. Breach of warranty of quality, fitness, or condition . 83 57. Interest and special damages .... 85 PAET VI. Supplementary. 58. Contract of exchange of goods 59. Auction sales ...... 60. Implied duties, &c, may he expressly excluded 61. Interpretation of terms 87 88 90 90-95 THE FACTORS ACT, 1889 (52 & 53 Vict. c. 45) Preliminary (Definitions) Dispositions by mercantile agents Dispositions by sellers and buyers of goods Supplemental ...... Schedule of repeals ..... 97-112 98 101 106 109 112 CONTENTS. xiii APPENDIX I.— Statutes. 2 & 3 Phil. & Mar. c. 7 (Sale of Horses). 31 Eliz. c. 12 (Sale of Horses). 29 Car. 2, c. 3, ss. 4, 16, 17 (Statute of Frauds). 9 Geo. 4, c. 14, s. 7 (Lord Tenterden's Act). 18 & 19 Vict. c. Ill (Bills of Lading Act, 1855). 19 & 20 Vict. c. 60, ss. 1-5 (Mercantile Law Amendment Act, 1856, Scotland). 19 & 20 Vict. c. 97, ss. 1, 2 (Mercantile Law Amendment Act, 1856, England). 24 & 25 Vict. c. 96, s. 100 (Larceny Act, 1861). 30 & 31 Vict. c. 48 (Sale of Land by Auction Act, 1867). 33 & 34 Vict. c. 97, in part (Stamp Act, 1K70). 50 & 51 Vict. c. 28, s. 17 (Merchandise Marks Act, 1887). APPENDIX II.— Notes. Note A. Construction of contracts of sale and list of terms and stipu- lations judicially construed. Note B. Delivery to carrier — judgments of Lords Cottenham and Blackburn. TABLE OF CASES CITED. A. Acebal v. Levy . Acraman v. Morrice Aldridge v. Johnson Alewyn v. Pryor . Alexander v. Gardner ■ v. Vanderzee Allan v. St«"ln . Allen v. Cameron v. Pink Ancona e. Rogers Anderson v. Morice Andrews v. Belfield Anglo-Egyptian Navigation v. Kennie . Angus v. McLachlan Anthony v. Halstead Appleby ». Myers . Ashforth v. Redford Atkinson v. Bell Azemar V. Case 11a . B. Bagueley v. Hawley Bailey v. Sweeting . Baines v. Swainson . Baker v. Firminger . Baldey v. Parker . Bannerman v. White Barber o. Meyerstein Barnes v. Toye . Barnett, Ex p. . Barr v. Gibson . 11, Barrow, Ex p. . . ' v. Arnaud . PAGE . . 12 . . 28 . 26, 30 . . 140 30, 51, 75, 140, 141 140 59 Co, 83 15 47 28,35 143 3 63 144 11 142 31 19, 144 19. Bartholomew v, Markwick . 9,45 . 122 . 102 . -46 63, 120 14, 83 . 127 . 5, 6 . 41 20, 21, 28 66 77,79 , 76 PAGE Bartlett v. Holmes . . . 45, 141 Batohelor v. Vyse .... 38 Beaumont v. Brengeri . . 31, 121 Beer v. Walker .... 21, 53 Behn v. Burness . 16, 83, 95 Bentley v. Vilmont . . .42 Bergheim v. Blaenavon Iron Co. 78 Berndtson v. Strang . . 64, 67 Bethell v. Clark . 64, 65, 66, 68 Beverley v. Lincoln Gas Co. . 7, 29 Bexwell v. Christie .... 89 Bianchi v. Nash 2 Biddlecombe v. Bond ... 96 Bigge v. Parkinson . 13, 14, 21, 23 Bird v. Brown 67 Birkmyr ». Darnell. . . . 119 Bishop v. Shillito .... 2 Bloxam v. Morley .... 59 v. Sanders . 46, 55, 57, 59 Bolton v. Lancashire & York- shire Railway Co. 58, 62, 64, 66, 67 Bonzi ». Stewart .... 105 • Borrowman v. Drayton. 17, 19, 142 Boswell v. Kilborn . Bourne v. Seymour. Bowes v. Shand. Brady v. Oastler Brandt v. Bowlby . v. Laurence 28,30 . 143 14, 17, 19, 140 . 79 . 33 16, 140 . 85 3 5 Bridge v. Wain . Bright, Ex p. . Brinsmead v. Harrison . Brogden v. Metropolitan Rail way Co Brown v. Byrne v. Hare . ■ v. Muller . . 7. 7 90 . 142 77, 78 SALE OF GOODS. PAGE . 30, 51 . 51, 52 15, 19, 144 , 45, 48 52,53 57,59 93 30 46 Calcutta Co. v. De Mattos . 13, 28, 30, 45, 51, 76, 90, 141, 145, 146 Campbell v. Mersey Docks Co. 26, 30 Bryans v. Nix . Buckman v. Levi Budd v. Fairmaner. Buddie v. Green Bull v. Robison Bunney v. Poyntz . Burdlck v. Sewell . Busk v. Davis . - v. Barnett . Carnforth Co., Ex p. Carter i>. Crick . Case of Market Overt Cassaboglou v. Gibb Castle v. Playford v. Sworder Caswell v. Coare Caton v. Caton . Chalmers, Ex p. Chandelor v. Lopus Chanter v. Hopkins Chaplin v. Rogers . Chapman v. Morton v. Speller v. Withers Chesterman v. Lamb Chinery v. Viall City Bank ». Barrow Clarke v. Hutchins . v. Spence . v. Westrope 96 . 23, 143 . . 39 . 57, 58 . . 35 53, 54, 121 {- . 55 . . 122 56, 60, 61, 64 . . 15 . 7, 20, 95 . 47, 121 . . 54 . . 9 . 85, 144 . . 55 . 46, 81 39, 98, 99 . . 51 . . 31 . . 13 . . 10 Clifford v. Watts . Clough v, London & North Western Ry. Co 41 Cockerell v. Aucompte . . 50, 143 Coddington v. Paleologo 14, 139, 141 Cole o. North Western Bank 39, 98, 99, 102, 103, 105, 106, 108, 110 Collyer v. Isaacs .... 10 • Colonial Bank v. Whinney 37, 39, 92 Colonial Insurance Co. of New Zealand ». Adelaide Marine Insurance Co. . . . 49, 50 Congreve v. Evetts . Cooke v. Eshelby . Cooper, Ex p. . v. Bill . . ii. Shepherd e. Willomatt FAGB 10, 92 110 61,67 62 5 37, 81 7 76 Cornish v. Abington Cort r. Ambergate Ry. Co. Cory v. Thames Ironworks Co. 79, 80 Couston v. Chapman v 25, 54, 83, 88, 129 Couturier v. Hastie ... 10 Coventry v. Gladstone . . 66, 72 Cowasjee v. Thompson . . . 142 Cox B.Todd 141 Crane v. London Dock Co. . 39, 40 Craven v. Ryder .... 70 Crawcour, Ex p 2 Cross v. Eglin 143 Cundy v. Lindsay . . 37, 40, 41 Cunliffe v. Harrison . . '. 49 Cusack v. Robinson . 60, 63, 121 Cutter v. Powell .... 95 26, Davis v. Hedges. Dawson v. 'Collis Derry ». Peek . Dixon v. Baldwen . v. Etetcher . v. Yates Dodsley v. Varley . Dodson v. Wentworth Doe v. Donston . Ronald v. Suckling . Drake, Ex p. Drummond v. Van Ingen Duncan v. Topham . Duncombe v. Brighton Club Dunkirk Colliery Co. v. Lever Dunlop v. Grote v. Higgins . — v. Lambert . Dutton v. Solomonson . 83 83 95 67 49 27, 28, 61,70 62, 63 . (i6 . 38 . 93 5 13, 20, 21, 24 . 141 , 76 77,78 . 75 . 79 51, 145 30, 51 TABLE OF CASES CITED. xvn £. Eberle v. Jonas .... Edan v. Dudfield . . . Edwards v. Pearson Egerton v. Mathews Eichholz v. Bannister . Elbinger Actien Gesellschaft v. Armstrong .... 80, 85 Ellen o. Topp 16 PAGE 5 121 17 122 17 Ellis ». Hunt . . . v. Thompson . Elmore ». Kingscote v. Stone. Elphick u. Barnes . Emanuel v. Dane Emmerson v. Heelis Emmerton v. Matthews Fairmaner v. Budd Falk, Exp. Farebrother v. Simmons Farina v. Home . Farmeloe v. Bain Feise v. Wray . Fessard v. Mugnier Field v. Lelean . 7, 46 Fischel v. Scott . Ford v. Yates . Forsyth v. Jervis Fragano v. Long France v. Gaudet Franklin v. Neate Freeman v. Cooke Freeth v. Burr . Fnentes v. Montis Furley v. Bates Gabarron v. Kreeft Gardiner v. Gray Gardner v. Grout Gattorno v. Adams Gibbes, Ex. p. . Gibson v. Carruthers v. Holland . 47 . . 47 . . 122 . 47, 121 11, 29, 35 . . 87 . . 88 . . 23 87 70, 72 123 48 70 56 75 , 60, 90, 141 140 47 87 30,35 81 93 37 51 97, 103, 111 28, 29, 31 33 23 122 140 66 58,64 122 PAGE . 81 . 28 and . 127 , 121, 141 . 123 70, 72 . 56 . 83 . 76 6 140, 142 . 124 7 10 16, 76, 140 55,73 30 78, 80, 86 142 37 60 56, 59, 60, 62, 63,64 Grimoldbyu. Wells. . . 25,55 Gunn v. Bolckow, Vaughan & Co 56, 57, 59, 100 Gurney v. Behrend . . . .127 Gwillim v. Daniell .... 143 Gillard v. Brittan . Gilmour v. Supple . Glyn, Mills & Co. v. East West India Docks Godts v. Eose 30, 33, 48, 92. Godwin v. Francis Golding, Davis & Co., Ex p. Goldshede v. Cottrell Gompertz v. Denton Gordon v. Swan. Gore v. Gibson . Gorrissen v. Perrin . Goss v. Lord Nugent Graham v. Musson . Grantham v. Hawley Graves v. Legg . Greaves v. Ashlin . ». Hepke , Gr^bert-Borgnis v. Nugent Green v. Baverstock Gregg v. Wells . , Grice v. Richardson Griffiths v. Perry H. Hadley v. Baxendale Hale v. Rawson . Hallas v. Robinson . Halliday v. Holgate Hammond ». Bussey Hanson v. Armitage v. Meyer Hardman v. Booth Harman v. Reeve Harnor v. Groves Harrison v. Luke Hart v. Mills . Hatfield e. Phillips Hawes v. Watson . Hnyman v. Flewker . 78, 79, 80 9, 17, 139, 140 10 93 78, 79, 84, 86 , 52, 121 29 . 41, 108 7, 87, 120 15, 24, 54 87 49 103 62 XV111 , SALE OF GOODS. PAGB Head v. Tattcrsall 4, 32, 35, 54, 144 Heilbutt v. Hickson 1, 14, 16, 23, 24, 25, 26, 28, 30, 53, 54, 55, 83, 84 Hellings ». Russell . Heywood's Case Heyworth v. Hutchinson Hibblewhite v. M'Morine Hickman v. Haynes Higgons «. Burton . Hilbery v. Hatton . Hill v. Smith . ' . Hinchcliffe v. Barwick Hinde v. Liddell v. Whitehouse , Hiort v. London and Western Ry. Co. . Hoadly v. M'Laine . Hoare v. Rennie Hodgson v. Loy . Holdsworth v. Glasgow Hollins v. Fowler . Holroyd v. Marshall Holyday v. Morgan Honck v. Muller Hope v. Hayley . Hopkins v. Hitchcock v. Tanqueray Horsfall v. Thomas . Horwood v. Smith . Houlditch v. Desanges Howard v. Castle . Howell v. Coupland Howes v. Ball . Hubbard, Ex p. Hugill «. Masker . Humble v. Mitchell Hunt v. Hecht . Hutton v. Lippert . Hydraulic Engineering Co. v. McHaffie .... 80, 86, 141 . . 98 . . 32 23, 25, 84, 95, 143 8 80, 124 41 . 81 . 23 13, 144 78,79 . 122 North . 81 12, 122 . 51 . 56 . 85 37,81 . 10 . 144 50,51 . 10 . 19 14, 15 . 20 40,41 . 62 . 89 . 11 . 93 . 93 108, 121 . 92 . 53 2 Bank Imperial Bank v. London & St. Katharine Dock Co. . . . 57 Ireland v. Livingston . . 56, 142 Isherwood v. Whitmore . . 53 J. Jackson v. Allaway James ». Gritfin Jenkyns ». Brown . v. Usborne. PAGE . . 46 . 67, 68. . . 93 . 57, 108 Jenner v. Smith ... 26, 30 Jewan v. Whitworth . . . 104 Johnson v. Credit Lyonnais Co. 74, 106, 107, 111 v. Dodgson 122 v. Lancashire & York- shire Ry. Co 81 v. Macdonald v. Raylton v. Stear Johnstone v. Marks Jonassohn v. Young Jones, Re . v. Bowden v. Bright . v. Gibbons v. Gordon . v. Just 4, 140 21, 143 . 81 . . 5 . . 51 . . 32 . 20, 90 . ' 20, 22 48, 77, 141 . . 95 20, 21, 22, 84 v. Victoria Dock Co. . . 122 Joseph v. Lyons .... 10 Josling v. Kingsford ... 19 Joyce v. Swann . . 11, 28, 30, 34 E. Kaltenbach v. Lewis . . 104, 110 Kemp v. Falk 58, 61, 66, 67, 68, 69, 70, 71, 72, 73, 100 Kendal v. Marshall, Stevens & Co 58, 65, 66, 67 Kennedy v. Panama Mail Co. 7, 15, 19, 22, 95 Kiddell v. Burnard Kingdom v. Cox Kingsford v. Merry Knights v. Wiffen . Kreuger v. Blanck . Kymer v. Suwercropp Laidler v. Burlinson Laird v. Pim 144 . . 49 . 40, 108 37, 63, 70 . . 142 . . 75 28,31 77 TABLE OF CASES CITED. xix PAGE Lamb v. Attenborough . . 99 Lambton, Ex p. . . 31,56,59 Lamond v. Davall , 4, 54, 73, 77 Lancashire Wagon Co. v. Fitz- hugh 81 La Neuyille v. Nourse ... 87 Langton v. Higgins La very v. PurseU Leask ■». Scott . Leather Cloth Co. v. Lee v. Bayes v. Gaskell . v. Griffin . Leeming v. Snaith Leigh v. Patei'son Leith's Estate, Re Leroux v. Brown Levy v. Green . a Langridge Lewis v. Clifton. Lickbarrow v. Mason 10, 30, 37, 74, 81 93 71,72 Hieronimus 124 37,40 92 3 48, 64, 71 73, Litt o. Cowley . Lockett v. Nicklin . Loder v. Kekule\ London & North Western Co. v. Bartlett . . Lord v. Price Lorymer v. Smith . Lucas v. Bristow — v. Dixon . Lucy v. Mouflet Lunn v. Thornton . 143 78 63, 90 121 49 15 77 72, 127 69,70 7,47 84 By. 73 23, 53 . 143 121, 122 . 55 9 Macdbnald v. Longbottom . 143 Macfarlane v. Taylor . 24, 129 Mackay v. Dick 14 Maclean v. Dunn 73, 77 Macnee v. Gorst . 104 Maddison v. Alderson . 121 Mainprice v. Westley . 89 Manders v. Williams . 38 Marshall v. Green . 92, 93 Martin v. Reid . . 38 Martindale v. Smith PAGE 14, 28, 56, 59, 73 12, 35, 36 . 121 27, 128 . 143 50, 143 Martineau v. Kitching . Marvin v. Wallace , M'Bain v. Wallace . . McCollin v. Gilpin . McConnell v. Murphy . McEwan v. Smith . 48, 63, 70, 108 McLay v. Perry .... 143 Melrose v. Hastie .... 58 Merchant Banking Co. v. Phoenix Bessemer Steel Co. 58, 62, 68, 70 Meredith ». Meigh . . . 52,121 Mersey Steel & Iron Co. v. Naylor .... 14, 50, 51 Mews ». Carr 123 Meyer u. Everth .... 23 Mildred v. Maspons. . . . 106 Miles, Exp 67, 68 v. Gorton .... 59, 61 Milgate v. Kebble . 47, 73, 81, 93 Mirabita v. Imperial Ottoman Bank .... 26, 30, 33, 34 Missouri Steamship Co., Re . 127 Mody v. Gregson . 13, 19, 21, 24 Mondell v. Steel Monk v. -Whittenbury Moore v. Campbell . Moran v. Pitt . Morgan v. Bain v. Gath Morison v. Gray Morley v. Attenborough Morris v. Levison Morritt, Be . Mortimer v. Bell Morton v. Lamb Moss v. Sweet . Moyce v. Newington Mullinger v. Florence Murray v. Mann N. 17. 83, 84 . 102 50, 143 40, 113 61, 124 49 56 18, 21 143 93 89 46 29 40,42 93 83 Navulshaw v. Brownrigg . . 102 Neill v. Whitworth . . 140, 142 New v. Swain 59 Newell v. Radford . . . 122, 123 b 2 XX SALE OF GOODS. Nichol v. Godts .... Nicholson ». Bower v. Bradfield Union PAGE 19 122 49 Noble v. Ward 124 Norman v. Phillips ... 52, 121 Ogg v. Shuter . Ogle v. Atkinson v. Earl Vane . Oldfield v. Lowe Ollivant v. Bayley . Orchard v. Simpson Ormrod v. Huth Oxendale v. Wetherell P. Page v. Cowasjee v. Morgan . Parana, The Parfitt v. Jepson Parker v. Palmer v. Rawlins v. Wallis Parkinson v. Lee Parsons v. Sexton Parton v. 'Crofts Pasley v. Freeman Paul v. Dod . Payne v. Cave . Paynter v. James Pearson, Ex p. v. Dawson Pease v. Gloahec Peirce v. Corf . Peters v. Fleming Pettitt v. Mitchell Phelps v. Comber Phillips v. Huth tShillpotts v. Evans Pickard ». Sears Pickford v. Grand Junct Pigot v. Cubley Playford v. Mercer Plevjns v. Downing Portalis v. Te$ley 27,34: . 30 80, 124 31 20 142 20 49 . 38, 73 8, 54, 121 80 23, Ry. 24,54 87 121 24 83 124 15 76 46, 141 51 70 40 122, 123 5 53 64, 69 103 77 37 46 38 18, 142 124 102 Poulton v. Lattimore Powell v. Horton Power v. Barham . B. Baffles v. Wichelhaus . Kamsden v. Gray . Randall v. Newson 19, 20, 22. v. Roper Raphael v. Bank of England Rawson v. Johnson . Ray v. Barker .... Read v. Hutchinson Reeves v. Barlow . v. Whitmore Reg. v. Justices of PAGE . 83 . 143 15, 144 7 77 24,84 84 102 46 29 87 2 9 v. Justices ot Central Crim. Court 131 . 7, 122, 123 14, 50, 140, 143 . 84 . 90 Reuss v. Picksley Renter r, Sala . Rigge v. Burbidge . Robinson v. Mollett Rodger v. The Comptoir compte .... Rohde v. Thwaites . Roots v. Lord Dormer . Roper v. Johnson Roscorla v. Thomas Rosevear Clay Co., Ex p. Rourke v. Short Rugg v. Minett Ryder v. Wombwell , . 71 2, 26, 30 . 88 77, 78, 80 14,15 66,67 12 28,35 5 Salter v. Woollams . Sanders v. Jameson v. Maclean . . 45, 47 . . . 54 18, 48, 91, 97, 127, 141 . . . 54 . 41 Saunders v. Topp . Scattergood v. Sylvester . Schotsmans v. Lancashire and Yorkshire Ry. Co. 35, 57, 62, 65, 66, 67, 70, 73 Scott v. Eastern Counties Ry. . 122 v. England .... 75 Scrivener v. Great Northern Ry. 62 Seath v. Moore . 26, 27, 28, 31 TABLE OF OASES CITED. xxi PAGE Seton i). Lafone ... .37 Sewell v. Burdick . . 71, 93, 126 Shardlow v. Cotterell . . . 122 Sharman v. Braudt . . . 123 Shaw v. Holland .... 78 Sheldon v. Cox 87 Shepherd v. Harrison . . 26, 34 v. Kain .... 143 Shipton v. Casson ... 49 Sievewright v. Archibald . . 123 Simmons v. Swift ... 29, 35 Simpson v. Crippin ... 16, 51 Sims v. Marryat .... 17 Smeed v. Foord .... 78, 80 Smith v. Baker 23 v. Blandy .... 142 v. Chance .... 47 v. Green 84 v. Hudson .... 121 ' v. Hughes .... 7 0. Jeffryes . . 143 v. Mercer .... 142 v. Myers .... 10, 140 Snee v. Prescot 69 Snowball, Ex p. Somes v. British Empir ping Co. . Souter ». Drake. South Australian Insurance v. Eandell Spalding v. Ruding Spartali v. Benecke Spicer v. Cooper Stapleton, Ex p. 56, 60 ; Startup v. Cortazzi u. Macdonald Staunton v. Wood . Steamship 'County of Lancaster ' v. Sharp ...... 142 Stock v. Inglis 142 Stoveld v. Hughes .... 70 Street v. Blay 83 Stucley v. Baily ... 14, 15 Swain v. Shepherd ... 29, 32 Sweeting v. Turner . 28, 35, 36 Syers v. Jonas 7, 20, 23, 24, 25, 83, 90 61 Ship- 102 60 17 Co. 2 72 46, 60, 141 . 142 73, 74, 77 . 79 48, 141 . 141 T. Tailby v. Official Receiver Tansley v. Turner . Tarling v. Baxter . Taylor v. Bullen . ». Kymer Telegrafo, The . . Thol v. Henderson . Thomas v. Fredricks Thompson v. Gardiner Thornett v. Haines . Thornton v. Kempster Thurnell v. Balbirnie Tigress, The . . Toulmin v. Hedley . Townley v. Crump . Tregelles v. Sewell . Tucker v. Humphrey Turner v. Liverpool Docks Tyers v. Rosedale Co. . TJ. Union Bank v. Munster PAGE 10 . 28 28, 35 16, 143 105 37 79 13 123 142 122 12 69,70 53 60 30 56, 58 . 33 80, 124 Valpy v. Gibson v. Oakeley . 11, 66, 67 59, 60, 63, 79 Van Casteel v. Booker . Vandenbergh v. Spooner Vickers v. Hertz v. Vickers . Vilmont v. Bentley W. . 33, 56 . . 122 . 102, 111 . 12, 13 39, 40, 42 Wackerbarth v. Masson . . 142 Wait v. Baker . . 30, 31, 33, 51 Walker v. Matthews v. Mellor v. Nussey . 40 2 122 7* Walton v. Mascall . Ward v. Hobbs 13, 16, 19, 20, 143 Warlow v. Harrison . . 88, 90 Watkins v. Rymill .... 140 Watson, Exp 66, 69 Watts v. Friend . . . . 8, 9 Webb v. Fairmaner ... 14 S4LE OF GOODS. PAGE Wentworth v. Outhwaite . . 73 Westzinthus, In re . . . . 72 Whistler ». Forster ... 38 White, Ex p., Re Nevill . 3, 29 v. Garden .... 40 ■ 11. Proctor .... 123 Whitehead v. Anderson . 66, 69 Wieler v. Sehilizzi- .... 19 Wigglesworth v. Dallison . . 7, 90 Wilkinson v. Evans . . . 122 v. King .... 40 Wilks v. Atkinson , 46 Williams v. Reynolds ... 79 v. Wheeler ... 121 Withers v. Reynolds ... 51 Wood v. Baxter .... 45 PAGE Wood o. Rowoliffe . . 99 v. Smith . . 144 v. Tassell. . 47 Woodland v. Fuller . 44 Woodley v. Coventry . 70 Woods v. Russell . 31 Woolfe v. Home 16, 45, 141 z. Y. Yates v. Pym 143 Young v. Matthews . . 27, 28 Zagury v. Furnell 29 TABLE OF CASES OVERRULED, &o. Alexander v. Vanderzee (1872), L. B. 7 C. P. 530, distinguished and considered, Bowes v Shand (1877), 2 App. Cas. 455. Aldridge v. Johnson (1857), 26 L. J. Q. B. 296, distinguished, Jenneb v. Smith (1869), L. E. 4 C. P. 270, at p. 276. Anderson v. Scot (1806), 1 Camp. 235, dissented from, Saundees v. Topp (1849), 4 Exch. 390, at p. 395. Attwood v. Emery (1856), 26 L. J. C. P. 73, distinguished and doubted, Hydbaulic Co. v. McHaffie (1878), 4 Q. B. D. 670, C. A. Bailey v. Sweeting (1861), 30 L. J. C. P. 150, questioned, Smith v. Hudson (1865), 34 L. J. Ex. 145, at p. 149, followed, Wilkinson v. Evans (1866), L. B. 1 C. P. 407, at p. 411. Baines v. Swainson (1863), 32 L. J. Q. B. 281, explained, Cole v. Nobth Western Bank (1875), L. B. 10 C. P. 354, at p. 373, Ex. Ch. Barber v. Meyerstein (1870), L. B. 4 H. L. 317, discussed, Glyn v. East India Docks (1882), 7 App. Cas. 591, at p. 604. Berndtson v. Strang (1867), L. B. 4 Eq. 481, varied on appeal (1868), L. E. 3 Ch. App. 588. Bigge v. Parkinson (1862), 31 L. J. Ex. 301, explained, Modt v. Gregson (1868), L. E. 4 Ex. 49, at p. 53, Ex. Ch. Bodger v. Nichols (1872), 28 L. T. 441, considered, Wabd v. Hobbs (1878), 4 App. Cas. 13, at p. 22. Bolden v. Brogden (1838), 2 M. & Eob. 113, overruled, Kiddell v. Buenabd (1842), 9 M. & W. 668, at p. 670 Bonzi v. Stewart (1842), 4 M. & G. 295, overridden by Factors Acts, Cole v. Noeth Western Bank (1875), L. B. 10 C. P. 354, at p. 370, Ex. Ch. Borries v. Hutchinson (1865), 34 L. J. C. P. 169, distingui hed, Thol v. Hendeeson (1881), 8 Q. B. D. 457, discussed and doubted> Gebbeet v. Nugent (1885), 15 Q. B. D. 85, at pp. 90, .94, C. A. xxiv SALE OF GOOD 8. Brandt v. Lawrence (1876), 1 Q. B. D. 344, C. A. explained, Eeuter v. Sala (1879), 4 C. P. D. 239, at p. 244. Bridge v. Wain (1816), 1 Star. 504, discussed, Elbinger v. Arm- strong (1874), L. B. 9 Q. B. 473, at p. 476. Brown v. Mutter (1872), L. E. 7 Ex. 319, discussed, Boper v. Johnson (1873), L. E. 8 C. P. 167, at p. 176. Bryan v. Lewis (1826), E. & M. 386, overruled, Hibblewhite v. M'Morine (1839), 5 M. & W, 462, at p. 466. Burdich v. Sewell (1884), 13 Q. B. D. 159, C. A. reversed, Sewell v. Burdick (1884), 10 App. Oas. 74. Bushel v. Wheeler (1844), 8 Jur. 532, discussed, Norman v. Phillips (1845), 14 M. & W. 277, at p. 283 ; and Morton v. Tibbett (1850), 15 Q. B. 428, at p. 441. Bussey v. Barnett (1842), 9 M. & W. 312, dissented from, Littlechild v. Banks (1845), 7 Q. B., at p. 740 Carter v. Toussaint (1822), 5 B. & Aid. 855, questioned, Castle v. Sworder (1861), 6 H. & N". 828, at p. 834. Castle v. Sworder (1860), 29 L. J. Ex. 235, reversed by Exchequer Chamber (1861), 30 L. J. Ex. 310. Coates v. Bailton (1827), 6 B. & C. 422, questioned, Kendal v. Marshall (1883), 11 Q. B. D., at p. 366, C. A. Couston v. Chapman (1872), L. E. 2 H. L. Sc. 250, explained, Grimoldby v. Wells (1875), L. E. 10 C. P. 393. Cook v. Harden (1831), 4 East, 211, distinguished, Brandt v. Bowlby (1831), 2 B. & Ad. 932, at p. 939. Dixon v. Bovill (1856), 3 Macq. H. L. 1 ; see now Factors Act, 1889, s. 1 Dixon v. Yates (1833), 5 B. & Ad. 313, discussed, Kemp v. Falk (1882), 7 App. Oas. 573, at p. 586. Dunlop v. Lambert (1839), 6 CI. & F. 600, discussed, Cal- cutta Co. v. De Mattos (1863), 32 L. J. Q. B. 322, at p. 328. Elmore v. Stone (1809), 1 Taunt. 458, doubted, Howe v. Palmer (1820), 3 B. & Aid., at p. 324; but followed, Marvin v. Wallace (1856), 25 L. J. Q. B., at p. 370 Ex p. Falk (1880), 14 Ch. D. 446, affirmed, but questioned on last point, Kemp v. Falk (1882), 7 App. Cas., at p. 585. Farmeloe v. Bain (1876), 1 C. P. D. 445; see now Factors Act, 1889, s. 9. Fischel v. Scott (1854), 15 C. B. 69, distinguished, Gorrissen v. Perrin (1857), 27 L. J. C. P. 29. Fletcher v. Heath (1827), 7 B. & C. 517, overridden by Factors Acts, TABLE OF CASES OVERRULED, ETO. xxv Cole v. North Western Bank (1875), L. E. 10 C. P. 354, at p. 369, Ex. Ch. Ford v. Yates (1841), 2 M. & G. 549, distinguished and explained, Lockett v. Nicklin (1848), 2 Bxch. 93, at p. 100. Frost v. Knight (1872), L. E, 7 Ex. Ill, discussed, Roper v. Johnson (1873), L. R. 8 0. P. 167, at p. 177 ; and Johnstone v. Milling (1886), 16 Q. B. D. 460, at p. 473, C. A. Fuentes v. Montis (1868), L. B. 3 C. P. 268, and L. R. 4 C. P. 93, Ex. Ch. ; see now Factors Act, 1889, s. 2 (2). Gillard v. Brittan (1841), 8 M. & W. 575, doubted, Johnson v. Lancashire Eailway (1878), 3 C. P. D. 499, at p. 507. Ex p. Golding, Davis & Go. (1880), 13 Ch. D. 628, distinguished and considered, Kemp v. Palk (1882), 7 App. Cas., at p. 581. Gurney v. Behrend (1854), 3 El. & B. 622, discussed, Pease v. Gloahac (1866), L. E. 1 P. C. 219, at p. 228. Givillim v. Daniell (1835), 2 C. M. & R. 61, distinguished, Leeming v. Snaith (1851), 16 Q. B. 275, at p. 277 ; and Morris v. Levison (1876), 1 C. P. D., at p. 159. Hammond v. Anderson (1803), 1 B. & P. N. E. 69, distinguished, Exp. Cooper (1879), 11 Ch. D. 68, C. A. Hartley v. Sattley (1814), 3 Camp. 528, overruled, Meredith v. Meigh (1853), 2 E. & B. 354, at p. 370. Hatfeild v. Phillips (1845), 12 CI. & F. 343, overridden by Factors Acts, Cole v North Western Bank (1875), L. E. 10 C. P. 354, at pp. 367, 370, Ex. Ch. Heilbutt v. Hichson (1875), L. R. 7 C. P. 438, considered, Drtjmmond v. Van Ingen (1887), 12 App. Cas. 284, at p. 299. Hey worth v. Hutchinson (1862), L. R. 2 Q. B. 447, discussed, Benjamin on Sale, 4th ed., p. 936. Hoare v. Rennie (1859), 29 L. J. Ex. 73, questioned, Simpson v. Crippin (1872), L. R. 8 Q. B. 14, explained, Mersey Steel Co. v. Naylor (1884), 9 App. Cas. 434, at p. 446. Holroyd v. Marshall (1862), 10 H. L. C. 191, distinguished, Reeve v. Whitmore (1864), 33 L. J. Ch. 63, at p. 66. Horsfall v. Thomas (1862), 31 L. J. Ex. 322, dissented from, Smith v. Hughes (1871), L. R. 6 Q. B., at p. 605. Howes v. Ball (1827), 7 B. & C. 481, explained, Sewell v. Burd- ick (1884), 10 App. Cas. 74, at p. 95. lley v. Frankenstein (1844), 8 Sc. N. R. 839, questioned, Moss v. Sweet (1851), 16 Q. B., at p. 494. Jenhyns v. Usborne (1844), 7 M. & Gr. 678 ; see now Factors Act, 188.9, s. 9 xxvi SALE OF GOODS. Jeudwine v. Slade (1797), 2 Esp. 572, distinguished, Power v. Baeham (1836), 4 Ad. & E. 473 Jewan v. Whitworth (1866), L. R. 2 Eq. 692, explained, Macnee v. Gokst (1867), L. R. 4 Eq. 315, at p. 323. Johnson v. Credit Lyonnais (1877), 3 C. P. D. 32, C. A. ; see now Factors Act, 1889, s. 8. Jones v. Bright (1829), 5 Bing. 533, considered, Drtjmmond v. Van Ingen (1887), 12 App. Cas. 284, at p. 299. Jones v. Jones (1841), 8 M. & W. 431, distinguished, Ex p. Cooper (1879), 11 Ch. D. 68, C. A. Jones v. Just (1868), L. R. 3 Q. B. 197, discussed, Drtjmmond v. Van Ingen (1887), 12 App. Oas. 284, at p. 291. Josling v. Kingsford (1863), 32 L. J. 0. P. 94, discussed, Mody v. Gregson (1868), L. R. 4 Ex. 49, at p. 56. Kaltenbach v. Lewis (1883), 24 Ch. D. 54, C. A. ; reversed in part by House of Lords (1885), 10 App. Cas. 617. Kingsford v. Merry (1856), 25 L. J. Ex. 166 ; reversed on appeal, 26 L. J. Ex. 83, Ex. Ch. discussed, Pease v. Gloahac (1866), L. R. 1 P. C. 219, at p. 229 ; and' Cole v. North Western Bank (1875), L. R. 10 C. P. 354, at p. 373, Ex. Ch. Kreuger v. Blanch (1870), L. R. 5 Ex. 179, distinguished and doubted, Ireland v. Livingston (1872), L. R. 5 H. L., at pp. 405, 410. Langridge v. Levy (1837), 2 M. & W. 519, and (1838) 4 M. & "W. 337, questioned, Heaven v. Pender (1883), 11 Q. B. D. 503, at p. 511, C. A. Lickbarrow v. Mason (1794), 5 L. R. 683, considered, Sewell v. Burdick (1884), 10 App. Cas. 74, at p. 100. Lorymer v. Smith (1822), 1 B. & C. 1, dictum of Abbott, C. J., disapproved, Hibblewhite v. M'Morine (1839), 5 M, & W. 462, at p. 466: Lyons v. Barnes (1817), 2 Starkie, 39, overruled, Moss v. Sweet (1851), 16 Q. B., at p. 494. Maddison v. Alderson (1883), 8 App. Cas. 467, discussed, Lucas v. Dixon (1889), 22 Q. B. D. 357, at pp. 360, 363. Marshall v. Green (1875), 1 C. P. D. 35, distinguished, Lavert v. Pursell (1888), 39 Ch. D. 508. McEwan v. Smith (1849), 2 H. of L. Cas. 309 ; see now Factors Act, 1889, s. 9. M'Combie v. Dairies (1805), 7 East, 5, overridden by Factors Acts, Cole v. North Western Bank (1875), L. R. . 10 C. P. 354,. at p. 364, Ex. C. TABLE OF GASES OVERRULED, ETC. xxvii Mertens v. Adcoch (1803), 4 Esp. 2S1, overruled, Lamond v. Davall (1847), 9 Q. B. 1030, at p. 1032. Miles v. Gorton (1834), 2 C. & M. 504, considered, Grice v. Richardson (1877), 3 App. Cas. 319, at p. 323. Mitchell v. Ede (1840), 11 A. & E. 888, distinguished, Schotsmans v. Lancashire Railway (1867), L. R. 2 Oh. App. 332, at p. 339. Mody v. Gregson (1868), L. R. 4 Ex. 49, discussed, Drummond v. Van Ingen (1887), 12 App. Cas. 284. Morley v. Attenborough (1849), 3 Exch. 500, discussed, Sims v. Marriot (1851), 17 Q. B. 281, at p. 290, and Eicholz v. Bannister (1864), 34 L. J. C. P. 105, at p. 107 ; Benjamin on Sale, 4th ed., p. 624. Morton v. Tibbett (1850), 15 Q. B. 428, discussed, Page v. Morgan (1885), 15 Q. B. D. 228, at p. 232. Moyce v. Newington (1878), 4 Q. B. D. 32, overruled, Bentley v. Vilmont (1887), 12 App. Cas. 471. Noble v. Ward (1867), L. R. 2 Ex. 135, distinguished, Hickman v. Haynes (1875), L. R. 10 C. P. 598, at p. 604. Ogle v. Earl Vane (1868), L. R. 3 Q. B. 272, distinguished, Hickman v. Haynes (1875), L. R. 10 C. P. 598, at p. 606. Ogg v. Shuter (1875), L. R. 10 C. P. 159 ; reversed by Court of Appeal (1875), 1 C. P. D. 47. Parkinson v. Lee (1802), 2 East, 314, distinguished, Mody v. Gregson (1868), L. R. 4 Ex. 49, at p. 54, overruled, Randall v. Nevvson (1877), 2 Q. B. D., at p. 106, C. A. Faterson v. Task (1743), 2 Sh. 1178, overridden by Factors Acts, Cole v. North Western Bank (1875), L. R. 10 C. P. 354, at p. 370, Ex. Ch. Phillips v. ffuth (1840), 6 M. & W. 572, overridden by Factors Acts, Cole v. North Western Bank (1875), L. R. 10 C. P. 354, at pp. 367, 370, Ex. Ch. Pichard v. Sears (1837), 6 A. & E. 469, considered, Johnson v. Credit Lyonnais (1877), 3 C. P. D. 32, at p. 40, C. A. Richard v. Moore (1878), 38 L. T. n. s. 841, discussed, Page v. Morgan (1885), 15 Q. B. D. 228. Rodger v. Oumptoir d'Escompte (1869), L. R. 2. P. C. 393, .dissented from,. Leask v. Scott (1877), 2 Q. B. D. 376, C. A. • Roperv. Johnson. (1873), L. R. 8 C. P. 167, discussed, Johnstone v. Milling (1886), 16 Q. B. D. 460, at p. 471, C. A. xxviii SALE OF GOODS. Ryder v. Wombwell (1868), L. E. 3 Ex. 90, and L. R. 4 Ex 32, dissented from, Johnstone v. Marks (1887), 19 Q. B. D. 509. Sheph-rd v. Harrison (1871), L. E. 5 H. L. 116, distinguished, Mibabita v. Ottoman Bank (1878), 3 Ex. D. 164, at p. 173, C. A. Shepherd v. Kain (1821), 5 B. & Aid. 240, distinguished, Tatlob v. Bullen (1850), 5 Exch. 779, at p. 784. Slubey v. Eayward (1795), 2 H. Bl. 504, distinguished, Ex p. Cooper (1879), 11 Ch. D. 68, C. A. Smith v. Surman (1829), 9 B. & C. 561, explained, Marshall v. Green (1875), 1 0. P. D., at pp. 40-44. Spalding v. Ruding (1843), 12 L. J. Ch. 503, discussed and approved, Kemp v. Falk (1882), 7 App. Cas. 573. Spartali v. Benecke (1850), 10 C. B. 212, overruled on second point, Field o. Lelean (1861), 30 L. J. Ex., at p. 1G9, Ex. Ch., distinguished, Godtz v. Eose (1855), 17 C. B. 229, at p. 234. Taylor v. Kymer (1832), 3 B. & Ad. 320, overridden by Factors Acts, Cole v. North Western Bank (1875), L. E. 10' C. P. 354, at p. 370,. Ex. Ch. Tregdles v. Sewell (1861), 7 H. & N. 574, discussed, Calcutta Co. v. De Mattos (1863), 32 L-. J. Q. B. 322, at pp. 330, 335. Tripp v. Armitage (1839), 4 M. & W. 687, discussed, Seath v. Moore (1886), 11 App. Cas. 350, 381. Tyers v. Rosedale Co. (1873), L. E. 8 Ex. 305; reversed by- Exchequer Chamber (1875), L. E. 10 Ex. 195. Valpy v. Oaheley (1851), 16 Q. B. 941, considered, Ex p. Chalmers (1873), L. E. 8 Ch. App. 289, at p. 292. Vickers v. Herts (1871), L. E. 2 H. L. Sc. 113, explained, Cole v. North Western Bank (1875), L. E. 10 C P. 354, at p. 374, Ex.Ch. Wait v. Baker (1848), 2 Exch. 1, distinguished, Mirabita v. Ottoman Bank (1878), 3 Ex. D. 164, at p. 170, C. A. Warlow v. Harrison (1858), 28 L. J. Q. B. 18, distinguished, Main- price v. Westley (1865), 34 L. J. Q. B. 229. Ex p. Watson (1877), 5 Ch. D. 35, distinguished, Exp. Miles (1885), 15 Q. B. D. 39, C. A. ; Kendal *. Marshall (1883), 11 Q. B. D. 356, at p. 369, C. A. Wentworth v. Outhwaite (1842), 10 M. & W. 436, considered, Ex p. Chalmers (1873), L. E. 8 Ch. App. 289, at p. 292. Be Westzinthus (1833) 5 B. & Ad. 817, discussed and approved, Kemp v. Falk (1882), 7 App. Cas. 573. TABLE OF CASUS OVERRULED, ETC. xxix Whitehouse v. Frost (1810), 12 East, 614, questioned, Austen o. Craven (1812), 4 Taunt. 645, explained; Busk v. Davis (1814), 2 M. & S. 397, at p. 404, and Benjamin on Sale, 4th ed., p. 313. Wilkinson v. King (1809), 2 Camp. 335, discussed, Cole v. North Western Bank (1875), L. E. 10 C. P. 354, at p. 364, Ex. Ch. Woods v. Russell (1822), 5 B. & Aid. 942, overruled on one point, Seath v. Mooke (1886), 11 App. Cas. 350. THE SALE OF GOODS. PAET I. Formation of the Conteact. Contract of Sale. 1. — (1.) A contract of sale is a contract whereby the Sale and seller transfers or agrees to transfer the property in l^seYL^ goods to the buyer for a money consideration, called the price, which the latter pays or agrees to pay. 1 There may be a contract of sale between one part owner and another. (2.) Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale ; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be performed the contract is called an " agreement to sell " or, as the case may be, an " agreement to buy." 2 (3.) An agreement to sell or buy becomes a sale when the time elapses or the conditions are performed subject 1 Blackburn on Sale, p. 3 ; Benjamin on Sale, 4th ed., pp. 1 and 273 ; Indian .Contract Act (Act IX. of 1872), § 77 ; Indian Transfer of Property Act (Act IV. of 1882), § 54. 2 Blackburn on Sale, pp. 3, 4; Benjamin on Sale, 4th ed., p. 273 et seq. ; cf. Heilbutt v. Hickson (1872), L. E. 7 0. P., at p. 449. B 2 SALE OF GOODS. Sect. l. to which .the property in the goods is to be trans- Sab and ferred. 1 agreement to sell. The term " property," in relation to sale, means the ownership of general property, as distinguished from a merely special property, such as that of a bailee, see post, p. 93 ; and see the right of property in a thing distinguished from the right to the possession of it, post, p. 93. As to the term " goods,*' see post, p. 92 ; and as to the " price," see sects. 9 and 10, post, p. 11. The essence of a sale is the transfer of the property in goods from the seller to the buyer for a price. Hence, it is said that if a man purchase his own goods there is no real sale. Sum rei emptio non valet, sive sciens, sive ignorans emerit? Pothier objects to sale being denned as a transfer of the property in goods, because, he says, a man may in good faith sell goods which are not his own, and if this be so the buyer cannot complain until his possession is disturbed. The seller, he says, merely contracts with the buyer " de lui faire avoir librement, a titre de proprietaire, une chose pour le prix d'une certaine somme d'argent," and this was the view of the Civil Law, Hactenus tenetur ut rem emptori habere liceat, non etiam ut ejus faciat? The objection seems hypercritical, for as between the parties to the contract it is a transfer of the property in the goods. 4 The purport of the contract is that the seller divests himself of all proprietary rights in the thing sold in favour of the buyer. Whether a given contract be a contract of sale or some other kind of contract is a question of substance, and not of form. Thus it is a question of the real meaning of a contract whether it is to be construed as a contract of sale or a contract of guarantee ; 6 as a contract of sale or a bailment on trust ; 6 as a contract of " sale or return," 1 Blackburn on Sale, pp. 120, 167 ; Bishop v. Shillito (1819), 2 B. & Aid. 329, n. (special condition) ; Bohde v. Thwaites (1827), 6 B. & C. 388, at p. 393 (appropriation of goods to contract) ; Bianchi v. Nash (1836), 1 M. & W. 545 (special condition); Exp. Crawcour (1878), 9 Ch.D. 419, at p. 424, 0. A. (hire purchase agreement) ; Beeves v. Barlow (1884), ] 2 Q. B. D. 436, at p. 442, 0. A. (building contract). See further, sects. 19- 22, post, p. 26. 2 Pollock on Contracts, 4th ed., p. 44 ; Pothier, Control de Vente, No. 8. 5 Pothier, Contrat de Vente, No. 1 and No. 48. 4 Wallwr v. Mellor (1848), 11 Q. B. 478; cf. French Civil Code, art. 1583 ; Italian Commercial Code, art. 59. 5 Button v. Lippert (1883), 8 App. Cas. 309, P. 0. 6 South Australian Ins. Co. v. Bandell (1869), L. B. 3 P. C. 101. CONTRACT OF 8 ALE. 3 or a contract of del credere agency ; l as a contract of sale or a contract Sect. 1. for work and materials. 2 A contract for work and materials is not ' " within the Statute of Frauds, s. 17 ; but, if in writing, it is not exempt aor eement from stamp duty as a contract of sale is, see post, p. 137. to sell. The term " contract of sale " includes both actual sales and agree- ments for sale. It is important to distinguish clearly between the two classes of contracts. An agreement to sell, or, as it is often called, an executory contract of sale, is a contract pure and simple, whereas a sale, or, as it is called for distinction, an executed contract of sale, is in the nature of a conveyance. By an agreement to sell a jus in personam is created, by a sale a jus in rem is transferred. If an agreement to sell be broken, the buyer has only a personal remedy against the seller. The goods are still the property of the seller, and he can dispose of them as he likes ; they may be taken in execution for his debts, and if he becomes bankrupt they pass to his trustee, who may disclaim the contract. But if there has been a sale and the seller breaks his engagement to deliver the goods, the buyer has not only a personal 'remedy against the seller, but also the usual pro- prietary remedies against the goods themselves, such as the actions for conversion and detinue. In most cases too he can follow the goods into the hands of third parties. Again, if there be an agreement for sale, and the goods perish, the loss falls on the seller, while, if there has been a sale, the loss as a rule falls on the buyer, though the goods have never come into his possession. By the Civil Law, which with some statutory modifications prevails in Scotland, the property in goods did not pass to the buyer under a contract of sale until delivery, see post, p. 27 ; but English law has rejected the objective test of delivery, and has adopted the rule that the property in the goods may be transferred by the contract itself if the parties so intend. 3 The parties may make whatever bargain they please, and the law will give effect to it. "Where the parties express their intention clearly no difficulty arises. The contract may pass the property at once, or at a future time, or contingently on the 1 Ex p. White, Ke Nevill (1870), L. R. 6 Ch. App. 397; cf. Ex p. Bright (1879), 10 Ch. D. 566 C. A. 2 Lee v. Griffin (1861), 30 L. J. Q. B. 252 ; see the test proposed by Blackburn, J. at p. 254 ; cf. Anglo-Egyptian Navigation Co. v. Rennie (1875), L. E. 10 C. P. 271, and Law Quarterly Review, vol. i., pp. 8, 9. 3 See Blaclcburn 9 M. &'W. 600. v '' 2 See Lomond v. Davall (1847), 9 Q. B. 1030 ; 16 L J Q B 136 • cf. Head v. Tattersall (1871), L. E. 7 Ex. 7. CAPACITY OF PARTIES. 5 rates as a sale of the goods from the plaintiff to the Sect. 2. defendant as from the time when the judgment is satisfied. 1 "The theory of the judgment in an action of detinue,'' says Jessel, M.B., " is that it is a kind of involuntary sale of the plaintiff's goods to the defendant. The plaintiff wants to get his goods hack, and the Court gives him the next best thing, that is the value of the goods. If he does not get that value then he does not lose his property in the goods." 2 It has been suggested that when the judgment is satisfied the defendant's title relates back to his wrongful act, 3 but the doctrine of relation is not in accordance with the general principles of English law. Capacity of Parties. 3. Capacity to buy and sell is co-extensive with Capacity to r J J buy and capacity to contract. 4 sell. Provided that where necessaries are sold to an infant he must pay a reasonable price therefor. 6 . " Necessaries " in this section mean goods suitable to the infant's, condition in life 6 and to his actual require- ments at the time of the sale.' By sect. 1 of the Infants Relief Act, 1874 (37 & 38 Vict. c. 62), " all contracts ... for goods supplied, other than contracts for 1 Jenkins ith Cent. Cos., No. 88, as to trespass, citing the maxim " Solutio pretii emptionis loco hdbetur " ; Cooper v. Shepherd (1846), 3 C. B. 266, 15 L. J. 0. P. 237 ; Brinsmead v. Harrison (1871), L. K. 6 C. P. 584, at p. 588, as to trover or conversion ; Ex p. Drake (1877), 5 Oh. D. 866, 0. A., as to detinue; cf. Merle v. Jonas (1887), 18 Q. B. D., at p. 468. 2 Exp. Drake (1877), 5 Oh. D. 866, at p. 871, 0. A. 3 Addison on Torts, 4th ed., p. 969. • See Pollock on Contracts, 4th ed., pp. 49-94 ; Benjamin on Sale, 4th ed., pp. 23-11. 8 Ryder v. Wombwell (1886), L. K. 4 Ex. 32, at p. 38 Ex. Ch. 6 Ibid ; Peters v. Fleming (1840), 6 M. & W. 42, at p. 46, per Parke, B., and p. 48, per Alderson, B. ; Pollock on Contracts, 4th ed., p. 71. 7 Barnes v. Toye (1884), 13 Q. B. D. 410 ; Johnstone v. Marks (1887), 19 Q. B. D. 509, C. A. 6 SALE OF GOODS. Sect. 3. necessaries, and all accounts stated with infants shall be absolutely void." As an infant is not liable on an account stated, it is probable that in the case of necessaries he is only liable to pay a reasonable price. 1 The language of the cases and of the Act seem to imply that an infant may contract for necessaries as an adult may contract for other things ; but there appears to be no case in which an infant has been held liable for not accepting necessaries, or for the price of necessaries sold but not delivered. Possibly in such cases the contract is voidable by the infant, though not void. The contract of a drunken man as a . rule is voidable, but Pollock, C.B., says that he would be liable " when sober for necessaries supplied to him when drunk." 2 By sect. 68 of the Indian Contract Act, 1872 — " If a person, in- capable of entering into a contract, or any one whom he is legally bound to support, is supplied by another person 'with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be re-imbursed from the property of such incapable person." Capacity to contract must be distinguished from authority to contract. Capacity means power to bind oneself; authority means power to bind another. Capacity is part of the law of status; authority is part of the law of principal and agent. Capacity is usually a question of law ; authority is usually a question of fact. As regards authority to buy or sell on behalf of another there appears to be nothing peculiar to the contract of sale, except the provisions of the Factors Acts, post, p. 97. On this subject, therefore, the reader is referred to general works on the law of Agency and Partnership. Formalities of the Contract, Contract of 4. Subject to the provisions of sect. 5 and of any- made, statute in that behalf 3 a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of 1 See question put to the jury in Barnes v. Toye (1884), 13 Q.B.D. 410. 2 Gore v. Gibson (1845), 13 M. & W., at p. 625. 8 See next section reproducing the Statute of Frauds, and see the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), ss. 55-65, transfer of British ships and shares therein by bill of sale only. FORMALITIES OF TEE CONTRACT. 7 mouth, 1 or may be implied from the conduct of the Sect. 4. parties. 2 A written offer to sell goods may be verbally accepted, and vice versa. If, however, the parties have put a contract of sale into writing, the ordinary rules of evidence apply. Parol or oral evidence is inadmissible to contradict the terms of the written instrument ; but such evidence is admissible to explain it, and, in explaining it, to annex incidents thereto. 3 Oral evidence is of course admissible to avoid a contract, whether in writing or not, as for instance to shew that it was induced by fraud, or founded on such mistake as to prevent what appears to be a contract ever having been a contract at all. 4 5. — (1.) No contract for the sale of any goods of the Contract ot value 5 of ten pounds or upwards shall be allowed to wi. and be good unless the buyer shall accept part of the goods u P wards - so sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or [29 Car. 2, unless some note or memorandum in writing of the and - 9'G eo ". contract be made and signed by the party to be 4 >°- 14 - S. /.J charged 6 or his agent in that behalf. 7 1 Blackburn on Sale, pp. 43-45 ; Benjamin on Sale, 4th ed., p. 180 ; LocJcett v. Nicklin (1848), 2 Exch. 98, 19 L. J. Ex. 403. 2 Broaden v. Metropolitan By. Co. (1877), 2 App. Oas. 666, H. L. ; cf. Beverley v. Lincoln Gas Co. (1837), 6 A. & E. 829 ; Cornish v. AUngton (1859), 28 L. J. Ex. 262. 3 Taylor on Evidence, §§ 1058, 1067; Stephen's Law of Evidence, art. 90. As to incidents annexed by usage, see Syers v. Jonas (1848), 2 Exch. Ill, usage to sell by sample ; Brown v. Byrne (1854), .3 E. & B. 703, usage to deduct discount ; Field v. Lelean (1861), 30 L. J. Ex. 168, Ex. Oh., usage not to deliver till time of payment arrives. See further notes to Wigglesworth v. Dallison, 1 Smith L. C, 9th ed., p. 569. 4 As to fraud, see Chanter v. Hopkins (1838), 4 M. & W., at p. 406 ; Kennedy v. Panama Co. (1867), L. K. 2 Q. B. 580. As to mistake, see Baffles v. Wichelhaus (1864), 33 L. J. Ex. 160 ; Smith v. Hughes (1871), L. R. 6 Q. B. 597. 5 Harman v. Beeve (1856), 18 0. B. 587; 25 L. J. C. P., 257; Benjamin on Sale, 4th ed., p. 96 (" price "= value). 6 Beuss v. Picksley (1866), L. E. 1 Ex., 342 ; Benjamin on Sale, 4th ed., p. 231 (parties to be charged = party to be charged). ' Graham v. Musson (1839), 5 Bing. N. 0. 603 ; Benjamin ore Sale, 4th ed., p. 242. 8 SALE OF GOODS. Sect. 5. (2.) The provisions of this section apply to every such [9 Geo. 4, contract, notwithstanding that the goods may be in- c. 14. a. 7.] f. en( j e( j to k e a e ii verec i a t some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof or rendering the same fit for delivery. (3.) There is an acceptance of goods within the mean- ing of this section when the buyer does any act in relation to the goods which recognizes a pre-existing contract of sale whether there be an acceptance in performance of the contract or not. 1 The 7th sect, of Lord Tenterden's Act (9 Greo. 4, c. 14) was passed in order to make it clear that the 17th sect, of the Statute of Frauds (29 Car. 2, c. 3) applied to executory as well as to executed contracts of sale. The two enactments have now to be construed together, although their language is not quite harmonious. The language of the 17th sect, does not correspond with the language of the 4th sect, (contracts relating to land), nevertheless in some instances a similar construction has been placed on the dissimilar expressions of the two enactments. In reproducing the 17th sect, its language has been modified in the text in order to give effect to the decisions upon it, and to its construction with Lord Tenterden's Act. The sections themselves are set out in the Appendix, post, pp. 119-125, with a note of the salient decisions upon them. In the revised edition of the Statutes, the well-known 17th sect, of the Statute of Frauds appears as sect. 16. The Act does not extend to Scotland. Subject-matter of Contract. Existing 6. — (1.) The goods which form the subject of a goods. contract of sale may be either existing goods or future goods. 2 1 Page v. Morgan (1885), 15 Q. B. D. 228, C. A. ; Benjamin on Sale, 4th ed., p. 149. 2 Watts v. Friend (1830), 10 B. & C. 446 (crop not yet sown) ; Eibble- white v. M'Morine (1839), 5M.AW. 462 (goods which seller can only acquire by purchase) ; Pothier, Contrat de Vente, No. 5. SUBJECT MATTER. 9 (2.) There may be a contract for the sale of goods, the Sect. 6. acquisition of which by the seller depends upon a con- tingency which may or may not happen. 1 (3.) Where by a contract of sale the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods. 2 As to the terms " goods " and " future goods," see post, p. 93. The sale of a chance of goods was known to the Civil Law as the venditio spei. "Une simple espe'rance," says Pothier, "peut meme etre l'ohjet d'un contrat de vente ; c'est pourquoi, si on vend a quelqu'un son coup de filet pour un certain prix,, c'est un vrai contrat de vente." 3 There is very little English authority on the point. " No doubt," says Martin, B., " a man may buy the chance of obtaining goods," but he then goes on to say that in the case he was dealing with the plaintiff bought the goods themselves.* Perhaps the doubtful case of Bagueley v. Eawley may be explained on the ground that the plaintiff there bought another man's bargain at an auction for what it was worth, and not the goods themselves. 6 The conditions under which an ordinary agreement to sell becomes a sale are dealt with in sect. 1, and sects. 19-21, post, p. 26. But sometimes a contract purports presently to assign goods to be acquired in the future. 6 In such case the legal property in the goods does not pass to the buyer unless and until the seller does some act irrevocably appropriating them to the contract, 7 or the buyer takes possession of them under a licence to seize, which is equivalent to a delivery 1 Benjamin on Sale, 4th ed., p. 87 ; Pothier, Contrat de Vente, Nos. 6-9 ; .ef. Watts v. Friend (1830), 10 B. & 0. 446 (crop not yet sown); Hale v. Bawson (1858), 27 L. J. C. P. 189 (goods to arrive by ship). 2 Benjamin on Sale, 4th ed., p. 82; Lunn v. Thornton (1845), 1 C. B. 379, 14 L. J. 0. P. 161. 3 Pothier, Contrat de Vente, No. 6. 4 Buddie v. Green (1857), 27 L. J. Ex., at p. 34. 5 Bagueley v. Eawley (1867), L. K. 2 0. P. 625 ; see, too, Chapman v. Speller (1850), 14 Q. B. 621. 6 See such a contract distinguished from an agreement to sell 'plus a license to seize, Beeves v. Whitmore (1861), 33 L. J. Oh. 63. ' Langton v. Eiggins (1859), 28 L. J. Ex. 252. 10 SALE OF GOODS. Sect. 6. by the seller. 1 But if the goods be sufficiently described to he identified on acquisition by the seller, the equitable interest in them passes to the buyer as soon as they are acquired: 2 "A man cannot in equity, any more than at law, assign what has no existence. A man can contract to assign property which is to come into existence in the future, and when it has come into existence equity, treating as- done that which ought to be done, fastens upon that property, and the contract to assign thus becomes a complete assignment." 3 It is only the equitable interest which passes to the buyer by the contract, hence his rights are liable to be defeated, if, before he gets the legal property in the goods, the seller disposes of them to a second purchaser without notice, who thus first obtains the legal estate. 4 There was one case in which it was supposed at common law that future goods could be assigned. It was said that a man might sell future goods which had a " potential existence," and that then the legal property in them would pass to the buyer as soon as they came into actual existence. Goods were supposed to have a potential existence if they would naturally grow out of anything already owned by the seller. For instance, it was said a man might sell the wool to be grown on sheep which he then had, but not the wool on sheep which he was' going to buy. 6 But there is no rational distinction between one class of future goods and another, and the supposed rule appears never to have been acted upon. Indeed Langton v. Biggins seems to negative it. 8 Goods 7. Where there is a contract for the sale of sneciflfi. ceased to™ g°°ds, and the goods unknown to the seller have ceased exist. to^ exist at the time of the contract, the contract is void.' 1 Congreve v. Evetts (1854), 10 Exch. 298 ; 23 L. J. Ex. 273 ; Hope v. Hayley (1856), 25 L J. Q. B. 155. 2 Bolroyd v. Marsliall (1862), 10 H. of L. Cas. 191 ; 33 L. J. Ch. 193 ; cf. Tailby v. Official Receiver (1888), 13 App. Cas., at p. 546. 3 Collyer v. Isaacs (1881), 19 Ch. D. 342 ; see at pp. 351, 354, C. A. 4 Joseph v. Lyons (1884), 15 Q. B. D. 280, C. A. ; Hollas v. Robinson (1885), 15 Q. B. D. 288, C. A. 6 Grantham v. Hawley (1603), Hobart Eep. 132, 2 Roll. 48, pi. 20 ; Benjamin on Sale, 4th ed., p. 82. 6 Langton v. Higgins (1859), 28 L. J. Ex. 252, and see now s. 8 of the Factors Acts, 1889, post, p. 106. 7 Couturier v. Sastie (1856), 5 H. of L. Cas. 673 ; 25 L. J. Ex. 253 ; cf. Clifford v. Watts (1870), L. E. 5 C. P. 577 ; Smith v. Myers (1870)', L. E. 5 Q. B. 429, in Ex. Ch. L. E. 7 Q. B. 139 ; Benjamin on Sale, 4th ed., p. 81 ; Pothier, Contrat de Vente, No. 4 ; Pollock's Lam of Contract, 4th ed., p. 370 ; French Civil Code, art. 1601. THE PRICE. 11 The rule may be based either on the ground of mutual mistake, or on Sect. 7. the ground of impossibility of performance. It is confined to the case of specific goods. General goods come within the maxim genus nun- quam perit. Art. 1601 of the French Civil Code provides that, in case of partial loss, the buyer may either rescind the contract or have the price reduced by valuation. English law recognises no such rule. 1 The only question is whether the article has been so far destroyed as no longer to answer to the description of it given by the contract. 8. Where there is an agreement to sell specific 9?° As ? er " ° ' ishing be- goods, and subsequently the goods, without any default fore sale on the part of the seller or buyer, perish before the agreement property or risk passes to the buyer, the agreement is to sel1 ' thereby avoided. 2 It is to be noted that the rule applies to specifically described goods, whether in existence at the time the contract is made or not. In a case where there was a contract to supply 200 tons of potatoes to be grown on a particular farm, and the crops failed, Mellish, L.J., said : — " This is not like the case of a contract to deliver so many goods of a particular kind, where no specific goods are to be sold. Here there was an agreement to sell and buy 200 tons out of a crop to be grown on specific land, so that it is an agreement to sell what will be, and may be called specific things ; therefore neither party is liable if the performance becomes impossible." 3 By special agreement goods may be at the buyer's risk before he acquires the property in them. See sect. 23, post, p. 35. The Price. 9. — (1.) The price in a contract of sale may be fixed by Ascertain- the contract, or may be left to be fixed in manner thereby price, agreed, or may be left to subsequent arrangement.* 1 Barr v. Gibson (1838), 3 M. & W. 390. 2 Howell v. Coupland (1874), L. K. 9 Q. B. 462, at p. 465, per Black- burn, J., and in C. A. (1876), 1 Q. B. D. 258, at p. 262, per Mellish, L. J. ; Pollock on Contracts, 4th ed., p. 370; cf. Appleby v. Myers (1867), L. B. 2 C. P. 651 ; Elphiek v. Barnes (1880), 5 C. P. D. 321. 3 Howell v. Coupland, supra. 4 Valpy v. Gibson (1847), 4 C. B. 837, at p. 864, per Wilde, C. J. ; Joyce v. Swann (1864), 17 C. B. n.s. 84, at p. 93. 12 SALE OF GOODS. Sect. 9. (2.) When the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. 1 What is a reasonable price is a question of fact dependent on the circumstances of each particular case. 2 Sometimes the price may be implied from the course of dealing between the parties ; but in such case it would really be fixed by the contract. A case that seems hardly covered by the above rules is put by Blackburn, J., who says, " When the price is not ascertained, and it could not be ascertained with precision in consequence of the thing perishing, nevertheless the seller may recover the price, if the risk is clearly thrown on the purchaser by ascertaining the amount as nearly as you can." 3 An alternative price, if in the nature of a wager, avoids the contract. 4 The doctrine of implied or reasonable price seems to be an original development of English law. The rule of Eoman law was that the price, or the mode of fixing it, must be expressed in the contract itself. Pretium autem constitui oportet, nam nulla emptio sine pretio esse potest ; sed et certum pretium esse debet." Agreement 10. Where there is an agreement to sell goods on the valuation, terms that the price is to be fixed by the valuation of a third party, and such third party cannot or does not make such valuation, the agreement is avoided ; 6 pro- vided that if the goods or any part thereof have been 1 Ibid. ; Acebal v. Levy (1834), 10 Bing. 376 ; Hoadly v. M'Laine (1834), 10 Bing. 482. 2 Acebal v. Levy (1834), 10 Bing. 376, at p. 383, per Tindal, O. J. Such price may or may not be the market price according to circumstances. 3 Martineau v. Kitching (1872), L. K. 7 Q. B., at pp. 455, 456 (sugar shipped' at buyer's risk at so much per cwt. and destroyed before it could be weighed). * Bowke v. Short (1856), 25 L. J. Q. B. 196. s Inst., lib. iii., tit. 23. To like effect, Pothier, Contrat de Vente, No. 23; French Civil Code, arts. 1592, 1593. 6 Thurnell v. Balbirnie (1837), 2 M. & W. 786 (damages) ; Vickers v. Tickers (1867), L. R. 4 Eq. 529 (specific performance); Benjamin facit cessare taciturn and Modus et conventio vincunt legem. As Pothier has pointed out, contracts of sale are consensual contracts, and the parties may alter at will the obligations which the law implies from the general nature of the contract. 6 Lord Blackburn, discussing the correlative obligations of payment and delivery, says, " There is no rule of law to prevent the parties from making any bargain they please." - In estimating the effect of an express stipulation, it must be borne in mind, as Willes, J., remarks, that " the doctrine that an express provision excludes implication does not affect cases in which the express provision appears on the true construction of the contract to have been superadded for the benefit of the buyer." 7 1 Clarice v. Westrope (1856), 25 L. J. C. P. 287. 2 Vickers v. Vicliers (1867), L. K. 4 Bq. 529, at p. 535. 3 Thomas v. Fredricks (1847), 10 Q. B. 775 ; 16 L. J. Q. B. 393. 4 Benjamin on Sale, 4th ed., p. 641 ; cf. Einchcliffe v. Barwick (18S0), 5 Ex. D. 177 (one day warranty of horse) ; Wnrd v. Hobbs (1878), 4 App. Cas. 13 (diseased pigs sold " with all faults ") ; French Civil Code, art. 1627. 8 Pothier, Contrat de Vente, Nos. 1, 181, 306. « Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B. 322, at p. 329. 7 Mody v. Oregson (1868), L. R. 4 Ex., at p. 53, Ex. Ch. approved, Drummond v. Van Ingen (1887), 12 App. Cas., at p. 294, per Ld. Hersohell ; cf. Bigge v. Parkinson (1862), 31 L. J. Ex. 301, Ex. Ch. (sale of provisions for troopship with warranty that they should pass inspection). 14 SALE OF GOODS. Sect. 11. Stipula- tions as to time of payment. Contract of sale may be accom- panied by warranty. Where the fulfilment of a condition hy one party is prevented by the other, the condition is waived. 1 12. — (1.) Unless a contrary intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale. 2 (2.) In a contract of sale " month " means prima facie calendar month. 3 As regards stipulations other than those relating to the time of payment, time is usually of the essence of the contract, at any rate in mercantile transactions.* By art. 1602 of the French Civil Code, where a stipulation in a contract of sale is ambiguous in meaning, it is to be construed in favour of the buyer. This was the rule in Roman law. In contrdhendd venditione ' ambiguum pactum contra venditorem interpretandum est. In England no such rule has been recognised, though in the con- struction of deeds some effect is given to the maxim Verba fortius accipiuntur contra proferentem. 6 13. — (1.) A contract of sale may be accompanied by one or more warranties, expressed or implied, given by the seller to the buyer. 6 (2.) A warranty may be either included in the contract of sale, 7 or may be given after the contract of sale is completed. 8 1 Mackay v. Dick (1881), 6 App. Cas. 251, H. L. 2 Martindale v. Smith (1841), 1 Q.. B. 389, see at p. 395, nonpayment on appointed day; cf. sect. 50 (1), post, p. 72; and Mersey Steel and Iron Co. v. Naylor (1884), 9 App. Cas. 434, at p. 444. 3 Webb v. Fairmaner (1838), 3 M. & W. 473 ; cf. 45 & 46 Vict. c. 61 s. 14 (4). 4 Bowes v. Shand (1877), 2 App. Cas. 455, at p. 463, per Ld. Cairns ; Beuter v. Sala (1879), 4 C. P. D., at pp. 246, 249, C. A. 5 PhiUimore's Maxims, p. 334 ; cf. Coddington v. Paleologo (1867), L E. 2 Ex., at p. 200. 6 Bigge v. Parkinson (1862), 31 L. J. Ex. 301, Ex. Ch. (implied warranty plus express warranty on sale of provisions). 7 Hopkins v. Tanqueray (1854), 15 C. B. 130; 23 L. J. C. P. 162; cf. Bannermann v. White (1861), 31 L. J. C. P. 28 ; Stucleyx. Baily (1862) 31 L. J. Ex. 483. 8 Boscorla v. Thomas (1842), 3 Q. B. 234; cf. Eeilbutt v. Dickson (1872), L. B. 7 C. P. 438. CONDITIONS AND WARRANTIES. 15 (3.) Where a warranty is given after the contract of Sect. 13. sale is completed, it must be supported by fresh con- sideration. 1 As to the term " warranty," see post, p. 94 ; and as to remedies for breach of warranty, see post, p. 83. Any affirmation made at the time of sale may amount to a warranty provided it is intended as such — that is to say, if it is intended to form part of the contract. 2 If, however, the contract be reduced into writing, evidence of a verbal warranty would not be admissible. 3 A representation, anterior to the contract, does not constitute a war- ranty, 4 though it may give rise to an action for deceit if made fraudulently. Eepresentations made during a contract of sale may be of four kinds : — 1. The representation may amount to a warranty. 2. The representation may be a mere expression of opinion or mere commendation by the seller of his wares. It is then inoperative, for simplex commendatio non obligate 3. The representation may constitute part of the description of the thing sold, and is then a condition going to the root of the contract. 6 4. The representation may be false and fraudulent. In that case, even if it only goes to part of the consideration, the contract may be avoided according to the rule Fraus omnia vitiat? and the person who makes it may be liable to exemplary damages — in some cases even when the party damnified was not a party to the contract. 8 As to warranties implied by law, see sects. 17 and 18, post, p. 20. 1 Boseorla v. Thomas (1842), 3 Q. B. 234; Benjamin on Sale, 4th ed., p. 608. The warranty in such case is a supplemental contract. 2 Pasley v. Freeman (1789), 3 T. B. 51 ; 2 Smith, Lead. Oas., 9th ed., 87, per Buller, J. ; Stucley v. Baily (1862), 31 L. J. Ex., at p. 489. 3 Marnor v. Groves (1855), 15 0. B. 667 ; aliter if the writing be a mere memorandum of the contract ; Allen v. Pink (1838), 4. M. & W. 140. 4 Hopkins v. Tanqueray (1854), 15 0. B. 130 ; 23 L. J. O. P. 162. 5 Benjamin on Sale, 4th ed., p. 610 ; Power v. Barham (1836), 4 A. & E. 473 ; cf. Chandelor v. Lopus (1603), 2 Oroke 2 ; 1 Smith, L. 0., 9th ed., p. 186 ; Budd v. Fairmaner (1831), 8 Bing. 52. 6 See sect. 16 and cases there cited, •post, p. 19. ■> Cf. Kennedy v. Panama Mail Co. (1867), L. E. 2 Q. B., at p. 587. s Levy v. Langridge (1838), 4 M. & W. 337 Ex. Ch. ; and see the note to Pasley v. Freeman, 2 Smith, L. C, 9th ed., p. 74. 16 SALE OF GOODS. Sect. 13. Where a warranty would be implied by law, it may be negatived by express stipulation, as, for instance, where goods are sold " with all faults." 1 Buyer may 14. — (1.) Where a contract of sale is subject to any dition as condition for the benefit of the buyer, the buyer may warranty. e j ec ^ ^ treat the non-performance of such condition as a breach of warranty, and not as a ground for rescinding the contract. 2 (2.) Whether a stipulation in a contract of sale is a condition or a warranty depends in each case on the construction of the contract. 3 (3.) Where a contract of sale is not severable, 4 and the buyer has accepted part performance of the contract, a breach of any condition on the part of the seller can only be treated by the buyer as a breach of warranty. 5 As to definition of term "warranty,'' see post, p. 94. "When it appears that the consideration has been executed in part, that which was before a [warranty or] condition precedent loses the character of a condition, or, to speak more properly, ceases to be available as a condition, and becomes a warranty in the narrower sense of the word, viz. a stipulation by way of agreement for the breach of which com- pensation must be sought in damages." 6 ilor v. Bullen (1850), 5 Exch. 779 ; 20 L. J. Ex. 21 (ship wrongly described as teak built); Ward v. Hobbs (1878), 4 App. Cas. 13 (diseased Pigs)- 2 Ellen v. Topp (1851), 6 Exch. 424, at p. 431 ; Behn v. Burness (1862), 32 L. J. Q. B. 204, Ex. Ch. ; Benjamin on Sale, 4th ed., p. 546 ; and sect. 56, post, p. 83. 3 Graves v. Legg (1854) ; 9 Exch. 709 ; 23 L. J. Ex. 22S ; Behn v. Burness (1863), 32 L. J. Q.'B. 204, at p. 205, Ex. Ch. ; cf. Woolfe v. Home (1877), 2 Q. B. D., at pp. 360, 361. 4 As to severable contracts, see Simpson v. Crippin (1872), L. E. 8 Q. B. 14 ; Brandt v. Lawrence (1876), 1 Q. B. D. 344 ; and sect. 34, post, p. 50. 5 Graves v. Legg (1854), 9 Exch. 709, at p. 717 ; 23 L. J. Ex. 228, at p. 231 ; Behn v. Burness (1863), 32 L. J. Q. B. 204, Ex. Ch. ; Heilbutt v. Hiekson (1872), L. R. 7 C. P., at p. 450 ; Benjamin on Sale, 4th ed., p. 450. 6 Notes to Williams's Saunders ed. of 1871, vol. i., p. 554, cited in Heil- butt v. Hichson, supra. CONDITIONS AND WARRANTIES. 17 Sir F. Pollock, in his work on Contracts (4th ed., p. 488), suggests Sect. 14. that there may be conditions the breach of which the buyer could not elect to treat as a breach of warranty ; but it is submitted that the cases he contemplates would fall under one of two heads. First, the buyer may waive a condition absolutely, and it would be a question of fact whether he had done so or not. Secondly, there might be a condition which would entitle the buyer to reject the goods if it were not fulfilled, but the breach of which would not give rise to any pecuniary damage. For instance, where the buyer had contracted for a March ~ April shipment, he was held entitled to reject a cargo, part of which had been shipped in February. 1 If he had accepted the cargo, it is difficult to imagine what damage he could have proved, but if he could have proved damage, there can be no doubt it would have been recoverable. The case of a conditiou, the fulfilment of which is excused by law, is outside the scope of the rule. 2 15. By a contract of sale the seller impliedly warrants implied his right to sell the goods, unless the circumstances of o*mT Y the sale or agreement to sell are such as to show that the seller is transferring only such property as he may have in the goods. 3 Formerly the rule was stated to be that on a sale of specific goods there was no implied warranty of title, and that, in the absence of fraud, the seller was "not liable for a bad title unless there was an express warranty, or an equivalent to it by declaration or conduct." * But as Lord Campbell said, in 1851, the exceptions have well-nigh eaten up the rule ; 6 and Mr. Benjamin, after reviewing the whole of the cases, argues conclusively that the true rule is that stated in the text. On a sale of leaseholds, which are chattels, there was always a warranty of title implied ; 6 and by sect. 7 of the Conveyancing and 1 Bowes v. Shand (1877), 2 App. Cas. 455 ; see, too, Borrowman v. Drayton (1876), 2 Ex. D. 15. 2 See sects. 7 and 8, ante, p. 10, and Male v. Raw&on (1858), 27 L. J. C. P. 189, at p. 191. 3 Benjamin on Sale, 4th ed., p. 634 ; ffichholz v. Bannister (1864), 34 L. J. C. P. 105 ; cf. French Civil Code, arts. 1603, 1625, 1626 ; Pothier, Contrat de Vente, No. 81 ; Indian Contract Act, 1872, § 109. Edwards v. Pearson, ' Times,' 27 Feb., 1890. 4 Per Parke, B., in Morley v. Attenborough (1849), 3 Exch. 500, at p. 512; 18 L. J. Ex. 148, at p. 152 (auction sale of forfeited pledges). 5 Sims v. Marryat (1851), 17 Q. B. 281, at p. 291. 6 Souter v. Drake (1834), 5 B. &. Ad. 992. C 18 SALE OF GOOD 8. Warranty of title. Sect. 15. Law of Property Act, 1881 (44 & 45 Vict. c. 41), which it is to he noted applies to " conveyances " of personalty, a covenant for title and quiet possession is always imported unless expressly negatived. The cases in which an implied warranty of title has been negatived appear all to have arisen out of sales by sheriffs or forced sales by public auction, where the circumstances were such as to indicate that the seller was only selling such right as he might have in the goods. " According to the Roman law," says Parke, B., " and in France and Scotland, and partially in America, there is always an implied contract that the vendor has the right to dispose of the subject which he sells." l But, strictly speaking, the implied engagement of the seller in French arid Civil Law is not a warranty of title. It consists of (a) an obligation to deliver and (6) a guarantee against eviction. It is the equivalent of a covenant for quiet possession rather than the equivalent of a covenant for title. 2 Mr. Benjamin suggests that in the case of breach of a warranty of title, the buyer may sue for unliquidated damages, and not merely recover the price, if paid, as on a failure of consideration ; but there appears to be no decision in point. 8 There is probably an implied warranty on the part of the seller that the goods are free from any charge or lien thereon at time of sale, but there appears to be no English decision in point. 4 In Scotland and France the implied warranty of freedom from incumbrance is clearly recognised. 6 " C'est une suite de l'obligation de livrer la chose vendue," says Pothier, "que le vendeur doit faire a ses frais ce qui est necessaire pour satisfaire a cette obligation. C'est pourquoi si la chose vendue se trouvait engagee a quelque creancier du vendeur qui l'eut en sa possession le vendeur serait oblige" de la degager a ses frais pour la livrer." He then proceeds to quote the Civil Law, and to give various other illustrations.* Freedom from charges. 1 Morley v. Attenborough (1849), 3 Exch., at p. 510, citing Domat, bk. L, tit. 2, s. 2, the French Civil Code, art. 1625 ; and as to Scotland, Bell on Sale, p. 94. 2 See Pothier, Control de Vente, Nos. 48, 82. 3 Benjamin on, Sale, 4th ed., p. 634. * Benjamin on Sale, 4th ed., p. 705 ; cf. Conveyancing Act, 1881, s. 7, and see passim Playford v. Mercer (1870), 22 L. T. N.s. 41 (goods to be taken " from the deck"). The stipulation, if implied, is a warranty, not a condition: see per Lord Esher in Sanders v. Maclean (1883), 11 Q. B. D., at p. 337. * BeU's Law of Sale, pp. 79, 95 ; French Civil Code, arts. 1608, 1626, and Italian Civil Code, arts. 1467, 1482. * Contrat de Vente, No. 42. CONDITIONS AND WARRANTIES. 19 16. Where there is a contract for the sale of goods by Sect. 16. description, there is an implied condition that the goods Sale b „ de , shall correspond with the description ; 1 and if the sale scll P tl0n - be by sample, it is not sufficient that the bulk of the goods correspond with the sample if they do not also correspond with the description. 2 The principle is an universal one. Si ces pro auro veneat, non valet? Thus, where there was a contract to purchase rice to be shipped at Madras in March. -2^- April, it was held that the buyer was not bound to accept a cargo of rice, part of which was shipped in February, and Lord Blackburn said, " If you contract to sell peas you cannot oblige a party to take beans. If the description of the article tendered is different in any respect it is not the article bargained for, and the other party is not bound to take it." 4 Where, however, the article tendered answers to the description, the buyer must, apart from warranty, express or implied, take the risk as to its quality and condition. 6 Where there was a contract for the sale of Calcutta linseed, Willes, J., said, " The purchaser had a right to expect, not a perfect article, but an article which would be saleable in the market as Calcutta linseed. If he got an article so adulterated as not reasonably to answer that description, he did not get what he bargained for. As if a man buys an article as gold, which every one knows requires a certain amount of alloy, he cannot be said to get ' gold ' if he gets an article so depreciated in quality as to consist of gold only to the extent of one carat." 6 Where the parties are agreed on the thing sold, a misdescription of it in the contract may be immaterial, for falsa demonstratio non nocef 1 Josling v. Eingsford (1863), 32 L. J. C. P. 94, approved, Mody v. Gregson (1868), L. E. 4 Ex., at p. 56 (sale after inspection and without warranty) ; Borrowman v. Drayton (1876), 2 Ex. D. 15, C. A. ; Randall v. 2Vew)son(1877), 2 Q. B. D., at p. 109, C. A. ; Bowes v. Shand (1877), 2 App. Cas. 455 ; Pollock on Contracts, 4th ed., p. 436. 1 Nichol v. Godts (1854), 10 Exch. 191 ; 23 L. J. Ex. 314 ; Azemar v. CaeeUa (1867), L. B. 2 C. P. 677, Ex. Ch. ; see at p. 678. 3 Cited from Dig., lib. 18, tit. 4, in Kennedy v. Panama Co. (1867), L. E. 2 Q. B., at p. 588. 1 Bowes v. Sliand (1877), 2 App. Cns. 455, at p. 480. 5 Barr v. Gibson (1838), 3 M. & W. 390; cf. Ward v. Hobbs (1878), 4 App. Cas. 13. C^y X /fe ^- « Wieler v. SehiM&i (1856), 17 C. B. 619 ; 25 L. J. C. P. 89. ' Budd v. Fairmaner (1831), 8 Bing. 48; Hopkins v. Bitehcock (1863), 32 L. J. C. P. 154. c 2 20 SALE OF GOODS. Sect. 17. Rule of caveat emptor. Implied warranties of quality, fitness, or condition. This section must be read with sect. 17, which supplements it by dealing with the warranties implied by law. 17. Subject to the provisions of this section and section 18, and of any statute in that behalf, 1 there is no im- plied warranty of the quality, fitness, or condition of goods supplied under a contract of sale. 2 Provided that — (1.) An implied warranty of quality, fitness, or con- dition may be annexed by the usage of trade. 3 (2.) Where the buyer, relying on the seller's skill or judgment, orders goods for a particular purpose known to the seller, and the goods are of a descrip- tion which it is in the course of the seller's business to supply (whether he be the manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.* 1 See, for example, the Chain Cables and Anchors Act, 1874 (37 & 38 Vict. c. 51), s. 4; the Merchandise Marks Act, 1887 (50 & 51 Vict. u. 28), s. 17 ; cf. the Sale of Pood and Drugs Act, 1875 (38 & 39 Vict. c. 63). 2 Benjamin on Sale, 4th ed., p. 404 ; Barr v. Gibson (1838), 3 M. & W. 390 (ship sold at sea) ; Chanter v. Hopkins (1838), 4 M. & W. 399 ; Ormrod v. Huth (1845) 14 M. & W. 651, 663, Ex. Ch. ; Horsfall v. Thomas (1862), 31 L. J. Ex. 322 (defective gun) ; Jones v. Just (1868), L. R. 3 Q. B. 197, at pp. 202-204; Ward v. Hobbs (1878), 4 App. Cas. 13, at p. 26. 3 Benjamin on Sale, 4th ed., p. 652 ; Jones v. Bowden (1813) 4 Taunt. 847; cf.Syers v. Jonas (1848), 2 Exch. Ill ; Indian Contract Act, 1872, §110. 4 Jones v. Bright (1829), 5 Bing. 533 (copper sheathing for vessel) ; Jones v. Just (1868), L. R. 3 Q. B., at p. 203 ; JRandall v. Newson (1877), 2 Q. B. D. 102, C. A., reviewing all the previous cases (carriage-pole specially made for plaintiff's carriage). Cf. JDrummond v. Van Ingen (1887), 12 App. Cas. 284, at p. 290, per LordN Herschell : aliter if the buyer rely on his own judgment, Chanter v. Hopkins (1838) 4 M. & W. 399 (order for a known trade article) followed ; OUivant v. Bayley (1843), 5 Q. B. 288 ; 13 L. J. Q. B. 34. By sect. 115 of the Indian Contract Act, 1872, " Upon the sale of an article of a well-known 'ascertained kind there is no implied warranty of its fitness for any particular purpose." CONDITIONS AND WARRANTIES. 21 (3.) Where goods are ordered by description from a Sect. 17. seller who deals in goods of that description (whether he be the manufacturer or not) and the buyer has no opportunity of examining the goods, there is an implied warranty that the goods shall be of merchantable quality and condition. 1 (4.) Where there is a contract for the sale of goods by a manufacturer, as such, there is, in the absence of any trade usage to the contrary, an implied warranty that the goods are of the seller's own manufacture. 2 (5.) An express warranty does not negative a warranty implied bythis section, 3 unless inconsistent therewith. 4 The rule of caveat emptor probably owes its origin to the fact that in early times nearly all sales of goods took place in market overt. 6 Its policy has been defended on the ground that it tends to diminish litigation, 6 but the distinct tendency of modern oases is to limit its scope. In a case where a ship was bought while on a voyage, and had stranded, though she was not a total wreck, Lord Wensleydale says : " In the bargain and sale of an existing chattel, by which the property passes, the law does not, in the absence of fraud, imply any warranty of the good quality or condition of the chattel so sold." 7 And in a subsequent case Lord Blackburn gives the following illus- tration : " Where a horse is bought under the belief that it is sound, if the purchaser was induced to buy by a fraudulent representation as to the horse's soundness, the contraot may be rescinded. If it was induced by an honest misrepresentation'as to its soundness, though it may be clear that both vendor and purchaser thought that they were 1 Jones v. Just (1868), L. B. 8 Q. B. 197, reviewing all the previous cases ; Beer v. Wallcer (1877), 46 L. J. C. P. 677 ; cf. Drummond v. Van Ingen (1S87), 12 App. Cas. 284, at p. 290, per Lord Hersohell. • Johnson v, Raylton 0881), 7 q. b. D. 438, C. A., per Brett, L.J., and Cotton, L.J., diss. Brainwell, L.J. There is no such implied warranty in Scotland. Qu. As a matter of polioy, whether the provisions of the Merchandise Marks Act, 1887, are not sufficient ? 5 Bigge v. Parkinson (1862), 81 L. J. Ex. 801 ; cf. Mody v. Gh-egson (1868), L. B. 4 Ex., at p. 53. 4 See sect. 11, ante, p. IS, and notes thereto. 4 Morley v. Attenborough (1849), 3 Exch., at p. 511, per Parke, B. • Mercantile Law Commission, 1855, 2nd Beport, p. J.0. • Ban v. Gibson (1838), 3 M. & W. 390, at p. 399. Warranties. 22 SALE OF GOODS. Sect. 17. dealing about a sound horse, and were in error, yet the purchaser must pay the whole price unless there was a warranty; and even if there Implied was warran ty he cannot return the horse and claim back the whole Warranties. J price unless there was a condition to that effect in the contract." 1 In Jones v. Just, in 1868, where the previous cases were reviewed and classified, the Court say : " We are aware of no case in which the maxim caveat emptor has been applied where there has been no opportunity of inspection or where that opportunity has not been waived." 2 The most important exceptions to the rule are the implied warran- ties of fitness for a particular purpose and merchantableness. In the first case in which implied warranties were distinguished from false representations, Best, C.J. says : " It is the duty of the Court in administering the law to lay down rules calculated to prevent fraud , to protect persons necessarily ignorant of the qualities of a commodity they purchase, and to make it the interest of manufacturers and those who sell, to furnish the best article that can be supplied." ..." I wish to put the case on a broad principle. If a man sells an article he thereby warrants that it is merchantable — that is, fit for some pur- pose. If he sells it for some particular purpose he thereby warrants it fit for that purpose." 3 The implied terms of merchantableness and fitness for a particular purpose are always spoken of as warranties, but in a recent case in the Court of Appeal, where it was held that the maker of a carriage-pole for the plaintiffs carriage was liable for a latent defect in it, they seem to be regarded as conditions forming part of the essential description in the contract. Lord Esher, in giving the judgment of the Court, says : " The fundamental undertaking is that the article offered or delivered shall answer the description of it contained in the contract. ... If the subject matter be merely the commercial article or commodity, the undertaking is that the thing offered or delivered shall answer that description — that is to say, shall be that article, saleable or merchantable. If the subject matter be an article or commodity to be used for a particular purpose, the thing offered or delivered must answer that description — that is to say, it must be that article or commodity, and reasonably fit for the particular purpose. ... If the article or commodity does not in fact answer the description of it in the contract, it does not do so more or less because the defect in it is patent, or latent or discoverable." * 1 Kennedy v. Panama Co. (1867), L. R. 2 Q. B., at p. 587. s Jones v. Just (1868), L. K. 3 Q. B., at p. 204. 3 Jones v. Sright (1829), 5 Bing. 533, at p. 542 (action for deceit, but fraud negatived and warranty implied). * BandaU v. Newton (1877), 2 Q. B. D. 102, at p. 109 0. k. SALE BY SAMPLE. 23 It was formerly thought that on a sale of provisions there was Sect. 17. always an implied warranty that they, were fit for food, hut it is now clear that they are governed hy the same rules as other commodities. 1 In Scotland formerly, as in France now, 3 it was held that the seller warranted the goods free from latent defects ; hut, hy sect. 5 of the Mercantile Law Amendment (Scotland) Act, 1856, post, p. 128, it is provided that, if the seller does not know the goods to he defective or of bad quality, the goods, with all faults, shall be at the risk of the purchaser, unless there be an express warranty, or unless the goods are expressly sold for a specified and particular purpose. 3 Sale by Sample. 18. — (1.) A contract of sale is a contract for sale by Sale }y x ' • Bample. sample when there is a term in the contract, express or implied, to that effect. The exhibition of a sample during the making of the contract does not of itself make it a contract for sale by sample. 4 (2.) In the case of a contract for sale by sample — (a.) There is an implied warranty that the bulk shall correspond with the sample in quality and condition. 5 (b.) There is an implied condition that the buyer shall have a reasonable opportunity of comparing the bulk with the sample. 6 (c.) There is an implied warranty that the goods shall 1 Benjamin on Sale, 4th ed., p. 672 ; Emmerton v. Matthews (1862), 7 H. & N. 586; 31 L. J. Ex. 139 ; Smith v. Baiter (1878), 40 L. T. N.s. 261 (sale of specific articles). As to articles ordered by description, see Bigge v. Parkinson (1862), 31 L. J. Ex. 301. 2 French Civil Code, arts. 1641-1644, and the Law of 20th May, 1838, as to domestic animals. 3 Bell's Princ. Law of Scotland, 9th ed., p. 78. 4 Bill v. Smith (1812), 4 Taunt. 520 ; see at p. 532, Ex. Ch. ; Meyer v. Everth (1814), 4 Camp. 22; Gardiner v. Gray (1815), 4 Camp. 144; Benjamin on Sale, 4th ed., p. 641. 5 Parker v. Palmer (1821), 4 B. & Aid. 387, at p. 391 ; Syers v. Jonas (1848), 2 Exch., at p. 117 ; Carter v. Crick (1859), 28 L. J. Ex. 238. 6 Lorymer v. Smith (1822), 1 B. & C. 1; Benjamin on Sale, 4th ed. p. 592; HeiJbuU v. Hickson (1872), L. E. 7 C. P., at p. 456; but see Beyworth v. Hutchinson (1867), L. R : 2 Q. B. 447. 24 SALE OF GOODS. Sect. 18. be free from any defect, rendering them un- Saie by merchantable, which would not be apparent on a reasonable examination of the sample. 1 Evidence of usage is admissible to shew that a sale was by sample though the written contract may be silent on the point. 2 " The office of a sample," says Lord Macnaghten, " is to present to the eye the real meaning and intention of the parties with regard to the subject matter of the contract which, owing to the imperfection of language, it may be difficult or impossible to express in words. The sample speaks for itself. But it cannot be treated as saying more than such a sample would tell a merchant of the class to which the buyer belongs, using due care and diligence, and appealing to it in the ordinary way, and with the knowledge possessed by merchants of that class at the time." 3 In the three decisions cited for the rule (sub-sect. 2 (a) ), that there is an implied warranty against latent defects, the seller was in each case the manufacturer of the goods. In Parkinson v. Zee, 4 it was held that the seller, who was a merchant, and not the manufacturer, was not responsible for a latent defect which examination of the sample failed to disclose. But Lord Bsher has expressed an opinion that that case is no longer law. 6 Take the case suggested by Willes, J., namely " brandy sold by sample, coloured with some new stuff which turned out to be a violent purgative, but the effect of which could not be discovered by tasting in the usual way." 6 Would it be any answer to say the seller was a wine merchant and not the manufacturer ? Text writers and the older cases always speak of the term that the bulk shall agree with the sample as a warranty, collateral to the contract. 7 But Blackburn, J., in a case where goods were guaranteed 1 Heittmtt v. Eiekson (1872), L. R. 7 0. P. 438, at p. 456 ; Mody v. Gregscm (1868), L. R. 4 Ex. 49 ; Vrwmmond v. Van Ingen (1887), 12 App. Cas. 284 ; and see a Scotch case, Macfarlane v. Taylor (1868), L. R. 1 Sc. App. 245. " Syers v. Jonas (1848), 2 Exch. Ill, approved Earnor v. Groves (1855), 24 L. J. C. P., at p. 56. 3 Drwmmond v. Van Ingen (1887), 12 App. Cas., at p. 297 ; cf. Mody v. Gregscm (1868), L. K. 4 Ex., at p. 53, per Willes, J. 4 Parkinson v. Lee (1802), 2 East, 314. s Bandall v. Newson (1877), 2 Q. B. D., at p. 106. 6 Mody v. Gregson (1868), L. R. 4 Ex., at p. 53. 7 Benjamin on Sale, 4th ed., p. 640 ; Parker v. Palmer (1821), 4 B. & Aid., at p. 391, per Ld. Tenterden. SALE BY SAMPLE. 25 " about equal to sample," says : " Generally speaking, when the contract Sect. 18. is as to any goods such a clause is a condition going to the essence Oi the contract, but when the contract is as to specific goods the clause is only collateral to the contract, and is the subject of a cross action, or matter in reduction of damages. 1 Mr. Benjamin, after reviewing the cases, argues that the buyer may always reject the goods if the bulk do not correspond with the sample, unless (1) he has finally accepted them, or (2) the contract relates to specific goods the property in which has passed to him. 2 Lord Esher goes further, and expresses the opinion that " such a contract always contains an implied term that the goods may under certain circumstances be returned, that such term necessarily contains certain varying or alternative applica- tions, and amongst others the following, that if the time of inspection as agreed upon be subsequent to the time agreed for the delivery of the goods, or if the place of inspection as agreed upon be different from the place of delivery, the purchaser may, upon inspection at such time and plaee, if the goods be not equal to sample, return them then and there on the hands of the seller." s This certainly seems to be the law in Scotland, 4 but the question requires reconsideration in England. It is clear that when the goods are specifically described by the contract, they must answer to their description as well as correspond with the sample, ante, p. 19. » Heyworth v. Hutchinson (1867), L. B. 2 Q. B. 447, at p. 451 ; of. Syers v. Jonas (1848), 2 Exch. Ill, at p. 117, per Parke, B. 2 Benjamin on Sale, 4th ed., p. 936. 3 Eeilbuit v. Hickson (1872), L. E. 7 C. P. 438, at p. 456; cf. Grimoldby v. Wells (1875), L. E. 10 C. P. 391, at p. 395, per Brett, J. 4 CousUm v. Chapman (1872), L. E. 2 Sc. App. 250, at p. 254, per Lord Chelmsford. 26 SALE OF GOODS. Sect. 19. Goods must be ascer- tained. Property when in- tended to pass. PAET II. Effects of the Contract. Transfer of Property as between Seller and Buyer. 19. Where there is a contract for the sale of un- ascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascer- tained. 1 " In the case of executory contracts,'' says Bovill, C. J., " where the goods are not ascertained or may not exist at the time of the contract, from the nature of the transaction, no property in the' goods can pass to the purchaser by virtue of the contract itself; but where certain goods have been selected and appropriated by the seller, and have been approved and assented to by the buyer, then the case stands as to the vesting of the property very much in the same position as upon a contract for the sale of goods which are ascertained at the time of the bargain." 2 20. — (1.) When there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. 3 (2.) For the purpose of ascertaining the intention of 1 For statement of rule, see Dixon v. Yates (1833), 5 B. & Ad., at p. 340 ; AUridge v. Johnson (1857), 26 L. J. Q. B. 296, at p. 299, per Ld. Camp- bell ; Mirabita v. Imp. Ottoman Bank (1878), 3 Ex. D, at p. 172. For examples, see Bohde v. Thwaites (1827), 6 B. & C. 388, 393; Campbell v. Mersey Docks (1863), 14 C. B. M.S. 412 ; Jenner v. Smith (1869), L. E. 4 C. P. 270; cf. French Civil Code, art. 1585; Pothier, Contrat de Vente, No. 308. * Hefflmtt v. Eickson (1872), L. E. 7 C. P. 438, at p. 449, per Bovill, C. J., and Byles, J. 3 Seath v. Moore (1886), 11 App. Cas. 350, at p. 370, per Ld. Blackburn, and at p. 380, per Ld. Watson ; cf. Shepherd v. Harrison (1871), L. E. 5 H. L., at p. 127. TBANSFEB OF PROPERTY. 27 the parties regard shall be had to the terms of the Sect. 20. contract, the conduct of the parties, and the circum- stances of the case. 1 By English law the property may pass by the contract itself, if such he the intention of the parties. In other words, the contract may include a conveyance. " Where, by the contract itself," says Lord Wensleydale, " the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pursuance of a general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel and to pay the price is equivalent to his accept- ing possession. The effect of the contract, therefore, is to vest the property in the bargainee." 2 Whether this he a satisfactory expla- nation or not, the rule is undoubted, and is as old as the year books. 3 By the Civil Law which, with some statutory modifications, prevails in Scotland, the property in goods did not pass by virtue of a contract of sale until delivery, the rule being Traditionibus et usucapionibus dominia rerum, non nudis pactis, transferuntur. But though the property did not pass, as soon as the parties were agreed on the subject matter and the price, there was an emptio perfecta, the result of which was that the risk passed to the buyer, and he acquired a jus ad rem, though not a jus in re. The Scotch common law follows this rule, and now by the 19 & 20 Vict. c. 60, post, p. 128, when goods have been sold but not delivered, the seller's creditors cannot attach them, and a sub-vendee is entitled to demand the goods subject to satisfy- ing the seller's lien for the price. The effect is, that when in England, the property in goods would pass to the buyer, the same results follow in Scotland, though those results are arrived at in a different manner. 4 France and Italy have departed from the principle of the Civil Law, and have adopted a rule substantially the same as that of English law. 5 * Ogg v. Shuter (1875), L. B. 10 C. P., at p. 162 ; cf. Young v. Matthews (1866), L. E. 2 C. P. 127. s Dixon v. Yates (1833), 5 B. & Ad. 313, at p. 340, per Parke, J. * For a discussion of its policy, see 2nd Report of Mercantile Law Com- mission, 1855, pp. 9, 42 ; Blackburn on Sale, pp. 187-197. * M'Bain v. Wallace (1881), 6 App. Cas. 588, at p. 618 ; Seath v. Moore (1886), 11 App. Cas., at pp. 370, 380. See, too, Blackburn on Sale, pp. 187-197. 5 French Civil Code, art. 1583 ; Italian Civil Code, art. 1448. 28 SALE OF GOODS. Sect. 21. 21. Unless a different intention appears, 1 the follow- Ruies for i Q g ar © rules for ascertaining the intention of the parties fnTinten- as to tne ti me at which the property in the goods is to tiofl - pass to the buyer. Rule 1. — When there is an unconditional 2 contract for the sale of specific goods, in a deliverable state, 3 the property in the goods passes to the buyer when the contract is made, and it is im- material whether the time of payment or the time of delivery, or both, be postponed. 4 Rule 2. — Where there is a contract for the sale of specific goods and the seller is bound to do some- thing to the goods, for the purpose of putting them into a deliverable state, the property does not pass until such thing be done. 6 Rule 3. — Where there is a contract for the sale of specific goods in a deliverable state, but the seller 1 Blackburn on SaU, pp. 147, 167 ; Calcutta Co. v. Be Mattos (1863), 32 L. J. Q. B., at p. 329 ; Furley v. Bates (1863), 33 L. J. Ex. 43; Young v. Matthews (1866), L. R. 2 0. P. 127. 2 As to contracts which are in terms conditional, see ante, pp. 1 and 4. 3 Deliverable state = state in which buyer is bound to accept : Black- burn on Sale, p. 152, and next rule. 4 Blackburn on Sale, pp. 147-150 ; Benjamin on Sale, 4th ed., p. 277 ; Tarling v. Baxter (1827), 6 B. & 0. 360 ; Tudor's Merc. Oas., 3rd ed., p. 308, and notes ; Dixon v. Yates (1833), 5 B. & Ad., at p. 340 ; Barr v. Cibson (1838), 3M.4W. 390 ; Martindale v. Smith (1841), 1 Q. B., at p. 395 ; GiVmour v. Supple (1858), 11 Moore, P. O., at p. 556 ; Joyce v. Swam (1864), 17 C. B. n.s., at p. 102 (price not fixed) ; Sweeting v. Turner (1871), L. R. 7 Q. B. 310, at p. 313 ; Heilbutt v. Hickson (1872), L. B. 7 C. P., at p. 449. See the rule stated and contrasted with the Civil and Scotch law ; Seath v. Moore (1886), 11 App. Oas., at p. 370. 5 Blackburn on Sale, p. 152 : Mugg v. Minett (1809), 11 East, 210 ; Taneley v. Turner (1835), 2 Bing. N. C. 151 ; Laidler v. Burlimon (1837), 2 M. & "W. 602; Acraman v. Morrice (1849) 8 O. B. 449; 19 L. J. C. P. 57; Boswell v. Kilborn (1862), 15 Moore, P. C. 309; 8 Jur. 443; Young v. Matthews (1866), L. R. 2 O. P. 127 ; Pothier, Contrat de Vente, Nos. 308, 309 ; Anderson v. Morice (1875), L. R. 10 0. P. 609, at p. 618, Ex. Oh. affirmed, 1 App. Cas. 713; Seath v. Moore (1886), 11 App. Cas„ at p. 370. TRANSFER OF PR OPE RTF. 29 is bound to weigh, measure, test, or do some other Sect - 21. act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until such act or thing be done. 1 Rule 4. — When goods are delivered to the buyer on approval or on "sale or return" or other similar terms the property therein passes to the buyer : — (a.) When he signifies his approval or acceptance to the seller, or does any other act adopting the transaction ; 2 (6.) If he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reason- able time is a question of fact. 3 Rule 5. — (1.) Where there is a contract for the sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer, or by the buyer with the assent of the seller, the property in the goods thereupon passes to the 1 Wurley v. Bates (1863), 33 L. J. Ex. 43, criticising Blackburn on Sale, p. 152 ; Hanson v. Meyer (1805), 6 East, 614 ; Zagury v. Furnell (1809), 2 Camp. 239; Simmons v. Swift (1826), 5 B. & C. 857; Pothier, Contrat de Vente, Nos. 308, 309. 2 Swain v. Shepherd (1832), 1 M. & Rob. 223; Blackburn on Sale, p. 167; Bell on Sale (Scotland), p. 111. 3 Moss v. Sweet (1851), 16 Q. B. 493 ; 20 L. J. Q. B. 167 ; cf. Beverley v. Lincoln Gas Co. (1837), 6 A. & E. 829 ; Ex p. White (1870), L. R. 6 Ch. App. 397 ; Say v. Barker (1879), 4 Ex. D. 279, C. A. ; Elphick v. Barnes (1880), 5 C. P. D. 321. 30 SALE OF GOODS. Sect. 21. buyer. 1 Such assent may be express or implied, EuieTfor an( ^ ma y ^ e given either before or after the appro- ascertain- priation is made. 2 ing mten- x tion. (2.) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract. 3 As the English Courts have rejected the objective test of delivery for marking the time when the property is to pass, they have been forced to lay down more or less arbitrary rules for fixing the moment when the property is to be held to pass in cases where the parties have either formed no intention on the point, or failed to express it. Mule 1. — See note to last section. Rule 2. — It is to be noted that this rule is negative. The case of an article, which the seller is to manufacture for the buyer, is sometimes treated as coming under this rule, but it generally comes under Eule 5. If a man orders a watch to be specially made for him, it is clear that 1 For statement of principle, see Blackburn an Sale, p. 127 ; Benjamin on Sale, 4th ed., p. 318 ; Heilbutt v. Hickson (1872), L. R. 7. C. P., at p. 449. See, in illustration, Busk v. Davis (1814), 2 M. & S. 397 ■ Mohde v. Thwaites (1827), 6. B. & 0. 388, see at p. 393 ; Aldridge v! Johnson (1857), 26 L. J. Q. B. 296 ; Langton v. Biggins (1859), 28 L. J. Ex. 252 ; Boswell v. Kilborn (1862), 15 Moore, P. C. 309 ; 8 Jur. 443. 2 Campbell v. Mersey Docks (1863), 14 0. B. n.s. 412, at p. 415, per WilleB, J. ; cf. Godts v. Bose (1855), 17 0. B. 229, at p. 237 ; Aldridge v. Johnson (1857), 26 L. J. Q. B. 296 ; Jenner v. Smith (1869), L. R. 4 C P 270. * For statement of principle, see Wait v. Baker (1848), 2 Exch., at p. 7, per Parke, B. ; Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B., at p. 328, per Blackburn, J. ; Joyce v. Swann (1864), 17 0. B. n.s. 84, at p. 102, per Willes, J. As to delivery to buyer, Greaves v. Heplce (1818), 2 B. & Aid. 131 ; Ogle v. Atkinson (1814), 5 Taunt. 759. Delivery to carrier by land, Dutton v. Solomonson (1803), 3 B. & P. 582. To canal boat, Fra- gano v. Long (1825), 4 B. &. 0. 219 ; Bryant v. JV&s (1839), 4 M. & "W. 775 ; on board ship, Alexander v. Gardner (1835), 1 Bing. N. C 671 • Tregelhs v. Sewell (1862), 7 H. & N. 574, Ex. Ch. ; Mirabita v. Imperia Ottoman Bank (1878), 3 Ex. D. 164, C. A. TRANSFER OF PROPERTY. 31 the watchmaker may, if he likes, make two such watches, and that he Sect. 21. keeps his contract by delivering either of them. 1 Lord Wensleydale has pointed out that there may be an intermediate state of things. An article may be in course of manufacture, and the parties may have so far agreed upon it that there arises what the Eoman lawyers called an dbligatio certi corporis. The seller would break his contract if he delivered any other article, but there may be no intention that the property in it should pass before its completion.' Unless a different intention be clearly shewn, the rule is that the property in an article, which the seller is to make or complete for the buyer, does not pass until the article is delivered in a finished state, or until it is ready for delivery and is approved by the buyer in that state." At one time the Courts seemed inclined to reverse the presumption in the case of shipbuilding contracts, where the ship was to be paid for by stated instalments as the work progressed ; * but in a recent case in the House of Lords it was held that there was no sound distinction between the case of a ship and any other corpus manufactum. 5 Rule 3. — Lord Blackburn, in his work on Sale, states this rule without confining its operation to acts to be done by the seller, and regards it as a rule arbitrarily adopted from the Eoman law, where it was a logical deduction from the principle that there could be no sale until the price was fixed. But the Court of Exchequer in 1863 reviewed the cases, and came to the conclusion that the rule should be qualified, as in the text, by confining it to acts to be done by the seller. 6 This construction brings the rule into hue with Rule 2. Rule 4. — This rule, like the others, is merely a prima facie rule. In some trades the usage is that when goods are delivered on fourteen days' approval, the property does not pass to the buyer on the expiration of that time, but the seller at any time after the fourteen days can call on the buyer either to take to or return the goods at once. When 1 Cf. Atkinson v. Bell (1828), 8 B. & C. 277. 2 Laidler v. Burlinson (1837), 2 M. & W., at p. 610 ; Wait v. Baker (1848), 2 Exch., at pp. 8, 9. 3 Clarke v. Spence (1836), 4 A. & E., at p. 466, reviewing the previous cases. As to an article commenced by one person and finished by another, see Oldfield v. Lowe (1829), 9 B. & C. 73, and cf. Beaumont v. Brengeri (1847), 5 C. B. 301. 4 Woods v. Russell (1822), 5 B. & Aid. 942 ; Ex p. LambUm (1875), L. E. 10 Ch. App., at p. 414. » Seath v. Moore (1886), 11 App. Cas., at pp. 370, 380. 8 Furley v. Bates (1863), 33 L. J. Ex. 43, commenting on Blackburn on Sale, p. 152. Bules for ascertain- 32 SALE OF GOODS. Sect. 21. goods are sent on trial, or on approval, or on sale or return, the clear general rule is that the property remains in the seller till the buyer adopts the transaction, 1 but it is quite competent to the parties to fng inten- agree that the property shall pass to the buyer on delivery, but that, tion. if ne does not approve the goods, the property shall then revest in the seller. 2 To use the language of the continental lawyers, the condition on which the goods are delivered may be either suspensive or resolutive. Bide 5. — The term " future goods " includes goods to be acquired and goods to he made by the seller after the formation of the contract of sale. As to a special article to be made for the buyer, see note to Bule 2. As to a present sale of future goods, see ante, p. 9. When there is a contract for the sale of unascertained goods, and the goods are afterwards selected by the buyer, or if selected by the seller are approved by the buyer, no difficulty arises. The difficulty arises when the seller makes the selection pursuant to an authority derived from the buyer ; and it is often a nice question of law whether the acts done by the seller merely express a revocable intention to appropriate certain goods to the contract, or whether they shew an irrevocable determination of a right of election. " The general rule seems to be that when, from the nature of an agreement, an election is to be made, the party who is by the agreement to do the first act, which from its nature cannot be done till the election is determined, has authority to make the choice in order that he may perform his part of the agree- ment ; when once he has performed the act the choice has been made and the election irrevocably determined ; till then he may change his mind as to what the choice shall be, for the agreement gives him till that time to make his choice." 3 The expression that the property in the goods passes by their "appropriation to the contract," though consistently used in the modern cases, is not a fortunate one. In the first place, as Lord Wensleydale has pointed out, the term is used in two senses. It may mean that the goods are so far appropriated that the seller would break his contract by delivering any other goods, though they still remain his property, or it may, and usually does, mean that the goods are finally appropriated to the contract so as to 1 Swain v. Shepherd (1832), 1 M. & Bob. 223 ; cf. Be Jones (1889), 6 Morrell, at p. 197. 2 Cf. Head v. TattersaU (1871), L. E. 7 Ex. 7. The Boman law was similar, see Moyle's Justinian, vol. i., p. 423. 3 Blackburn on Sale, p. 128, citing Heywood's Case, 2 Coke, 36, where it is said " the certainty and thereby the property begins by election." TRANSFER OF PROPERTY. 33 pass the property in them to the buyer. 1 In the second place, if the Sect. 91. decisions be carefully examined, it will be found that in every ease where the property has been held to pass, there lias been an actual or constructive delivery of the goods to the buyer. If the term " delivery " had been substituted for " appropriation,'' probably less difficulty would have arisen. The commonest form of appropriating cood* t/> the contract is by delivering them to a carrier, and then, if there be authority to so deliver them, and the seller does not reserve the right of disposal, " the moment the goods which have been selected in pursuance of the contract are delivered to the carrier, the carrier becomes the agent of the vendee, and such a delivery amounts to a delivery to the vendee; and if there is a binding contract between the vendor and the vendee, either by note in writing, or part payment, or subsequently by part acceptance, then there is no doubt that the property passes by such delivery to the carrier. It is necessary, of course, that the goods should agree with the contract." 2 The qualifying reference to the Statute of Frauds, of course, only applies where the value of the goods is £10 or upwards. 22. — (1.) Where there is a contract for tlie sale of Reserva- v ' „ till of specific goods or where goods are subsequently appro- right of priated to the contract, the seller may. by the terms of pos the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled. 3 (2.) When goods are shipped, and by the bill of 1 Wait v. Baker (1S48), 2 ExcIl, at p. 8, per Parke, B. 5 Wait r. Baker (1S4S). 2 Exch., at p. S. 3 For statement of principle, see Mirabita v. Imperial Ottoman Bank (1S7S). 3 Ex. D. 161. In illustration, see as to delivery to buyer, Brandt v. Botdby (1831), 2 B. & Ad. 932 ; GodU v. Rose (1855). 17 C. B. 229; 25 L. J. C. P. 61. As to delivery on board ship. Wait v. Baker (1S4S), 2 Exch. 1; Van Casted v. Booker (1S4SX 2 Exch. 691, IS L. J. Ex. 9; Turner v. Liverpool Docks (185H, 6 Exch. 513. Ex. Ch. ; 20 L. J. Ex. 393; Gabarron ?. Kreejt (1.^75). L. B. 10 Ex. 274. D 34 SALE OF GOODS. Sect. 22. lading the goods are deliverable to the order of the Resell- seller or his agent, the seller is prima facie deemed to tion of reserve the right of disposal. 1 right of & r disposal. (3.) When the seller of goods draws on the buyer tor the price, and transmits the bill of exchange and bill of lading to the buyer together, the buyer is bound to return the bill of lading if he does not honour the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him. 2 In a case in the Court of Appeal, where the previous decisions were reviewed, Lord Bramwell seems to think that the seller may retain a jus disponendi, even when the property has passed to the buyer ; but Cotton, L. J., sums up the law as follows : " In the case of such a contract (i.e. a contract for the sale of unascertained goods), the delivery by the vendor to a common carrier, or, unless the effect of the shipment is restricted by the terms of the bill of lading, shipment on board a ship of, or chartered for, the purchaser is an appropriation sufficient to pass the property. If, however, the vendor, when shipping the articles which he intends to deliver under the contract, takes the bill of lading to his own order, and does so not as agent, or on behalf of the purchaser, but on his own -behalf, it is held that he thereby reserves to himself a power of disposing of the property, and that consequently there is no final appropriation, and the property does not on shipment pass to the purchaser. ... If the vendor deals with, or claims to retain the bill of lading, in order to secure the contract price, as when he sends forward the bill of lading with a bill of exchange attached, with directions that the bill of lading is not to be delivered to the purchaser till acceptance or payment of the bill of exchange, the appropriation is not absolute, but until acceptance of the draft, or payment or tender of the price, is conditional only, and until such acceptance or payment or tender, the property in the goods does not pass to the purchaser." 3 1 Ogg v. Shuter (1875), 1 C. P. D. 47, C. A. ; Mirdbita v. Imperial Otto- man Bank (1878), 3 Ex. D., at p. 172, C. A. See Joyce v. Swann (1864), 17 C. B. n.s. 84, where inference was negatived. 2 Shepherd v. Harrison (1871), L. B. 5 H. L. 116, see at p. 133, per Lord Caims. 3 Mirdbita v. Imp. Ottoman Bank (1878), '3 Ex. D., at p. 172. See at p. 170, per Ld. Bramwell. TRANSFER OF PROPERTY. 35 With reference to Lord Bramwell's doubt, it seems that, though the Sect. 22. property in goods may be intended to pass to the buyer, they may be delivered to his agent on such terms as to prolong the right of stoppage in transitu, and in that sense a limited right of disposal may be said to be reserved. 1 23. Unless otherwise agreed, 2 the goods remain at Eisk prima i -ii • «- i. facie passes the seller s risk until the property therein is transierred with pro- to the buyer; but, when the property therein is transferred per y ' to the buyer, the goods are at the buyer's risk whether delivery has been made or not. 3 Provided that where delivery has been delayed through the default of either buyer or seller the goods are at the risk of the party making default as regards any loss which would not have occurred but for such default. 4 Provided also that nothing in this section shall be deemed to affect the duties or liabilities of either seller or buyer as a bailee of the goods of the other party. 5 " As a general rule," says Blackburn, J., " res perit domino, the old civil law maxim, is a maxim of our law, and, when you can shew that the property passed, the risk of the loss is prima facie in the person in whom the property is. If, on the other hand, you go beyond that, and shew that the risk attached to one person or the other, it is a very 1 Cf. Schotimans v. Lancashire Railway (1867), L. B. 2 Ch. App., at p. 335. 1 Martineau v. KitcHng (1872), L. B. 7 Q. B. 436; Castle v. Playford (1872), L. K. 7 Ex. 98, at p. 100, Ex. Ch. ; Anderson, v. Morice (1875), L. B. 10 C. P. 609, at p. 619; affirmed 1 App. Cas. 713. 3 For examples of seller's risk, see Simmons v. Swift (1826), 5 B. & C. 857 ; Head v. Tattersall (1871), L. E. 7 Ex. 7, see at p. 14 ; Elphick v. Barnes (1880), 5 C. P. D. 321, see at p. 326. For example of buyer's risk, see Rugg v. Minett (1809), 11 East, 210 ; Fragano v. Long (1825), 4 B. & C. 219 ; Tarling v. Baxter (1827), 6 B. & C. 360, Tudor's Merc. Cases, 3rd ed., p. 308, and notes ; Sweeting v. Turner (1871), L. E. 7 Q. B. 310. 4 Martineau v. Kitching (1872), L. E. 7 Q. B. 436, at p. 456, per Black- burn, J. 5 Assumed in such cases as Head v. Tattersall and Elphich v. Barnes, supra, but not expressly stated. D 2 "36 SALE OF GOODS. Sect. 23. strong argument for shewing that the property was meant to be ~ : in him, but the two are not inseparable. ... By the civil law it was facie passes always considered that if there was any weighing, or anything of the with pro- sort which prevented the contract from being perfecta emptio, when- perty. ever fo&t was occasioned by one of the parties being in mora, and it was his default, he shall bear the risk just as if there was emptio perfecta. That is good sense and justice, though not necessary to the decision of the present case." 1 The rule of the civil law was Mora debitoris non debet esse creditori damnosa, and its effect is perhaps too broadly stated in the passage cited. Pothier, in discussing it, says : " If I sell you a horse, and make default in delivery, and it is struck by lightning in my stables, the loss falls on me, because the accident would not have happened if I had duly delivered the horse. But if the horse dies from a disease, which would have killed him in any case, I am not liable. 2 The dis- tinction drawn by Pothier has been adopted by arts. 1302, 1303 of the French Civil Code. When the seller remains in possession of the goods after the pro- perty in them has passed to the buyer, or when the buyer gets possession of the goods, before the property passes, as in the case of goods on trial, it seems clear the party in possession is in each case a bailee. But there appears to be no decision defining the nature of such bailment. Pothier has discussed the position of the seller, at some length. 3 Until the time for delivery has arrived, he must use ordinary diligence in taking care of the thing sold. In contractibus in quibus utriusque contrahentis utilitas versatur, levis culpa, non etiam levissima, prsestatur. But, if the buyer makes default in taking delivery, the seller is only liable for dolus, which includes culpa lata or gross negligence. See, too, French Civil Code, arts. 1136- 1138. The converse of the rule res perit domino also holds good, and any fruits or increase of the thing sold belong to the party who has the property in it. " Any calamity befalling the goods after the sale is completed must be borne by the purchaser, and, by parity of reasoning, any benefit to them is his benefit, and not that of the - vendor." 4 Lord Blackburn's citation of the maxim Res perit domino is a little 1 Martineau v. Kitching (1872), L. R. 7 Q. B., at pp. 454, 456. 2 Contrat die Vente, No. 58. 3 Contrat de Vente, Nos. 53-55. 4 Sweeting v. Turner (1871), L. B. 7 Q. B. 310, at p. 313, per Black- burn, J. ; French Civil Code, arts. 1614, 1615. TRANSFER OF TITLE. 37 misleading as to the Botnan law, because the law of sale formed an Sect. 23. exception to the general rule. By Eoman law the property in goods did not pass until delivery, but as soon as the parties were agreed on the specific article, and the price, there was an emptio perfecta. The risk, unless otherwise agreed, passed to the buyer though the property did not. Cum autem emptio et venditio contracta sit periculum rei venditse statim ad emptorem pertinet tametsi adhuc ea res emptori tradita non sit. 1 The rule of Eoman law is followed in Scotland, and it may be stated broadly that when the facts would shew a bargain and sale in England passing the property and risk, in Scotland the buyer would acquire a, jus ad rem speciflcam, though not the property, and the risk would be in him. Thus by different routes English and Scotch law arrive at practically the same results. 2 Transfer of Title. 24.— (1.) Subject to the provisions of sects. 25 to 29 Sale b ? . v / J r person not where goods are sold by a person who is not the owner the owner, thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, 3 unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell. 4 1 Moyle's Justinian, p. 420 ; Pothier, Contrat de Vente, Nos. 307-309. ■ 2 Bell's Prin. Law of Scotland, §§ 87, 88. 3 For principle, see Colonial Bank v. Whinney (1886), 11 App. Cas. 426, at pp. 435, 436, per Lord Blackburn. For illustrations, see Cooper v. Wilr lomatt (1845), 1 0. B. 672; 14 L. J. C. P. 219; Langton v. Biggins (1859), 28 L. J. Ex. 252 (wrongful resale by seller in possession, which must henceforth be taken subject to s. 8 of the Factors Act, 1889) ; Lee v. Bayes (1856), 18 0. B. 599 ; 25 L. J. O. P. 249 (stolen goods sold by auction); the Telegrafo (1871), L. R. 3 P. C, at p.. 685 (goods taken piratically); Hollins v. Fowler (1875), L. B. 7 H. L. 757; Cundy v. Lindsay (1878), 3 App. Cas. 459 (goods obtained by fraud and resold) ; c/. Indian Contract Act, 1872, s. 108. * Fielcard v. Sears (1837), 6 A. & E. 469 ; Gregg v. Wells (1839), 10 A. & E. 90; Freeman v. Cooke (1848), 2 Exch. 654; 18 L. J. Ex. 114; Knights v. Wiffen (1870), L. E. 5 Q. B. 660 ; cf. Seton v. Lafone (1887), 19 Q. B. D. 68, C.A, 38 SALE OF GOODS. Sect. 24. (2.) Provided also that nothing in this Section shall s a ie by be deemed to affect — thTowne * (*•) Tlie P rovisioIls 0I " tne Factors Act, 1889, or any [52 & 53 enactment enabling the apparent owner of goods Jg C , t- u- to dispose of them as if he were the true owner thereof ; l (b.) The validity of any contract of sale under any special common law, or statutory power of sale, as in the case of a sale by a pawnee, distrainor, sheriff, master of a ship, or person selling under the order of a court of competent jurisdiction. 2 " The general rule of law," says Willes, J., " is undoubted, that no one can transfer a better title than he himself possesses. Nemo dat quod non habet." s In a case under the Factors Act, 1842, Blackburn, J., says : " At common law a person in possession of goods could not confer on another, either by sale or by pledge, any better title to the goods than he himself had. To this general rule there was an exception of sales in market overt (sect. 25), and an apparent exception where the person in possession had a title defeasible on account of fraud (sect. 26, post, p. 40). But the general rule was that, to make either a sale or a pledge valid against the owner of the goods sold or pledged, it must be shewn that the seller or pledger had authority from the owner to sell or pledge, as the case might be. If the owner of the goods had so acted as to clothe the seller or pledger with apparent authority to 1 See the Factors Act, 1889, post, p. 97 ; and see the Bills of Lading Act (18 & 19 Vict. c. Ill); the Bankruptcy Act, 1883, s. 44 (reputed ownership), and for certain purposes the Bills of Sale Act, 1878 ; cf. Indian Contract Act, 1872, s. 108. a As to pawnee, see Martin v. Beid (1862), 31 L. J. C. P. 126, at p. 128, per Willes, J. ; Pigot v. Cubley (1864), 33 L. J. C. P. 134. As to distrainor, see WoodJ all's Landlord & Tenant, 13th ed., pp. 479-481. As to sheriff, see Doe v. Donston (1818), 1 B. & Aid. 230 (sale after expiration of office) ; cf. Batchelor v. Vyse (1834), 4 M. & Sc. 552 (excessive sale) ; Manders v. Williams (1849), 4 Exch. 339 ; 18 L. J. Ex. 437 (goods on sale or return). As to master of ship, Page v. Cowasjee (1866), L/B. 1 P. 0., at p. 144. As to order of Court, see B. S. C. Or. L. rule 2. « Whistler v. Forster (1863), 32 L. J. C. P. 161, at p. 164. TRANSFER OF TITLE. 39 sell or pledge, he was at common law precluded, as against those who Sect. 24. were induced bond fide to act on the faith of that apparent authority, from denying that he had given such an authority, and the result as to them was the same as if he had really given it. But there was no such preclusion as against those who had notice that the real authority was limited." * The rule of the civil law seems to have been in accord with the common law. Nemo plus juris in alium transferre potest quam ipse habet ; or as Ulpian puts it, with special reference to the law of sale, Rem, alienam distiahere quern posse nulla dubitatio est nam emptio est et venditio ; sed res emptori auferri potest. See Pothier, Contrat de Vente, No. 7. By art. 1599 of the French Civil Code, "La vente de la chose d'autrui est nulle ; " but this provision must be read subject to art. 2279, which provides that, " En fait de meubles possession vaut titre." There are special provisions about lost or stolen goods, but, with these exceptions, it seems that an innocent purchaser of goods is always protected. By sect. 108 (2) of the Indian Contract Act, 1872, " If one of several joint-owners of goods has the sole possession of them by the per- mission of the co-owners, the ownership of the goods is transferred to any person who buys them of such joint-owner in good faith, and under circumstances which are not such as to raise a reasonable pre- sumption that the person in possession of the goods has no right to sell them." 25. — (1.) Where goods are sold in market overt, Market according to the usage of the market, the buyer acquires a good title to the goods provided he buys them in good faith, and without notice of any defect or want of title on the part of the seller. 2 overt. 1 Cole v. North Western Sank (1875), L. K. 10 0. P. 354, at p. 362 ; approved Colonial Bank v. Whinney (1886), 11 App. Cas. 426, at pp. 435, 436 (reputed ownership) ; cf. City Bank v. Barrow (1880), 5 App. Cas., at p. 677, as to Roman and old French law, and Canadian law. 2 The Case of Market Overt (1596), 5 Coke E. 83 b, Tudor's Merc. Cases, 3rd ed., p. 274, and notes ; Crane v. London Doek Co. (1864), 33 L. J. Q. B. 224, see per Blackburn, J., at p. 229, as to the usage of the market ; Benjamin on Sale, 4th ed., p. 9 ; cf. Vilmont v. Bentley (1886), 18 Q. B. D. 322, at p. 331. 40 SALE OF GOODS. Sect. 25. (2.) Nothing in this section shall be deemed to affect [2 &T~ the provisions of the Acts relating to the sale of horses. 1 Phil. & Mar. c. 7 • The rules of market overt do not apply in Scotland or the United 31 Eliz. u. States, and in England they only apply to a limited class of retail US'! P ' t ransa cti 01ls - All shops in the city of London are market overt, for the purposes of their own trade, but a wharf in the city is not market overt, 2 and a sale by sample is not within the custom because the whole transaction must take place in the open market, and not merely the formation of the contract. 3 Outside the city of London markets with the custom of market overt may exist either by grant or pre- scription, but it seems that the custom does not apply to a market established by a local Act. 4 Sect. 27 is not in the nature of an exception or proviso to this section. When stolen goods are sold in market overt, the property passes to the buyer, though on the conviction of the thief the property revests in the original owner by force of the statute (24 & 25 Vict. c. 96, s. 100). Hence an intermediate purchaser incurs no liability ; 6 so, again, the buyer who is dispossessed cannot charge for the keep of the goods, for they were his own till the statute revested them in the original owner. 6 Sale under 26. When the seller of goods has a voidable title title. thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods provided he buys them in good faith, and without notice of the seller's defeot of title.' 1 Moran v. Pitt (1873), 42 L. J. Q. B. 47. The practical effect of these Acta is to take horses out of the rule as to market overt. 2 Wilkinson v. King (1809), 2 Camp. 335. 3 Crane v. London Dock Co. (1864), 33 L. J. Q. B. 224. * Of. Moyce v. Newington (1878), 4 Q. B. D., at p. 34, per Cookburn, C.J. ; and see Lee v. Bayes (1856), 18 C. B. 599 ;■ 25 L. J. C. P. 249 (sale by auction at horse repository). 5 Horwood v. Smith (1788), 2 T. B. 750 ; of. Vilmont v. Bentley (1886) 18 Q. B. D. 322, at p. 331. 6 Walker v. Matthews (1881), 8 Q. B. D. 109. ' White v. Garden (1851), 10 C. B. 919 ; 20 L. J. C. P. 166; Kingsford v. Merry (1856), 25 L. J. Ex. 166, reversed on another ground, 26 L. J. Ex. 83; Pease v. Gloahec (1866), L. E. 1 P. C. 219, at pp. 229, 230; Cundy v. Lindsay (1878), 3 App, Cas. 459, at p. 464, per Lord Cairns ; Pollock on Possession, pp. 203, 204. TRANSFER OF TITLE. 41 Where goods have been obtained by means amounting to larceny, Sect. 26. the thief has no title, and can give none, except by selling in market overt ; but where goods have been obtained by fraud the person who has so obtained them may either have no title at all, or a voidable title, according to the nature of the transaction. If the nature of the fraud be such that there never was a contract between the parties, as, for instance, if A. obtains goods from B. by falsely pretending to be X.., then the person who so obtains the goods has no title at all and can give none. 1 But if the person defrauded really intended to part with the property in, and possession of the goods, although induced to do so by fraud, there is a contract which he may affirm or disaffirm at his election. 2 Hence, the person who obtains the goods has a voidable title, and can give a good title to an innocent purchaser while the matter is in suspense. " If," says Lord Cairns, " the chattel has come into the hands of the person who professed to sell it, by a de facto contract, that is to say, a contract which has purported to pass the property to him from the owner of the property, then the purchaser will obtain a good title, even although' afterwards it should appear that there were circumstances connected with that contract which would enable the original owner of the goods to reduce it, and set it aside." 3 27. Where goods have been stolen, or otherwise Eevesting of property. wrongfully obtained, from the person who was the owner in stolen, thereof by means amounting to an offence under the onconvic- Larceny Act, 1861, and the offender is prosecuted to ^ n f ei . conviction, the property in the goods so stolen or wrong- [Cf. 24 & fully obtained thereupon revests in the person who was u 96 10t the owner of the goods, or his personal representative, B - 100 > notwithstanding any intermediate dealing with them, i3i.j whether by sale in market overt, or otherwise. 4 1 Higgons v. Burton (1857), 26 L. J. Ex. 342 ; Sardman v. Booth (1863), 32 L. J. Ex. 105 ; Cundy v. Lindsay (1878), 3 App. Cas. 459 ; Polloelt on Possession, p. Ill ; Ex. p. Burnett (1876), 3 Oh. D. 123. 2 Clough v. Land. & N. W. Railway (1871), L. E. 7 Ex. 26. 3 Cundy v. Lindsay (1878), 3 App. Cas., at p. 464. 4 Benjamin on Sale, 4th ed., pp. 11, 12 ; Stone's Justices' Manual, 24th ed., p. 782. As to stolen goods, see Horwood v. Smith (1788), 2 T. E. 750; Scattergood v. Sylvester (1850), 15 Q. B. 506; 19 L. J. Q. B. 447. 42 SALE OF GOODS. Sect. 27. Disposition by seller remaining in pos- session. [52 & 53 Vict. c. 45. s. 8.] The rule, that on the conviction of the thief the property in stolen goods revested in the original owner, is as old as the 21 Hen. VIII. c. 11, which was perhaps declaratory. Sect. 100 of the Larceny Act, 1861 (post, p. 131), enables the con- victing Court to make an order for restitution ; but, as the effect of the statute is to revest the property, the original owner has his ordinary legal remedies without resorting to this special one. It is to be noted that the rule laid down in this section is not strictly an exception to the rule laid down in sect. 25 (ante, p. 39). By a sale in market overt, the property in the goods really vests in the buyer, though on conviction of the offender it revests in the original owner by force of the statute. Hence, if the goods pass through several hands, intermediate parties are not guilty of a conversion. The operation of the rule, when goods have been obtained by false pretences, but under a de facto contract, is anomalous, and was re- jected by the Lords in Bentley v. Vilmont} By art. 2279 of the French Civil Code, lost or stolen goods may be recovered by the true owner at any time within three years, but by art. 2280, if the actual possessor obtained them at a public auction or by a sale in the ordinary course of business, the original owner can only get them back on paying the possessor the sum he gave for them. 28. — (1.) " Where a person, having sold goods, con- tinues, or is, in possession of the goods or of the docu- ments of title to the goods, the delivery or transfer by that person or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, or under any agreement for sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same." As to goods obtained by false pretences, Vilmont v. Bentley (1886), 18 Q. B. D. 322, C. A. ; affirmed Bentley v. Vilmont (1887), 12 App. Cas. 471, overruling Moyce v. Newington (1878), 4 Q. B. D. 32 1 BentUy v. Vilmont (1887), 12 App. Cas., at pp. 476, 479. TRANSFER OF TITLE. 43 (2.) " Where a person, having bought or agreed to buy Sect. 28 goods, obtains with the consent of the seller possession of Disposition the goods or the documents of title to the goods, the obtain!" delivery or transfer, by that person or by a mercantile possession. agent acting for him, of the goods or documents of title, Vi ~ t _ c 45 under any sale, pledge, or other disposition thereof, or s - 9 -] under any agreement for sale, pledge, or other dis- position thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner." The provisions of this section must be construed with and subject to the provisiens of the Factors Act, 1889. This section reproduces sects. 8 and 9 of the Factors Act, 1889, which comes into operation on the 1st of January, 1890. See post, p. 107, where the effect of these provisions is considered. As regards questions arising before the 1st of January, 1890, see sects. 3 and 4 of the Factors Act, 1877 (40 & 41 Vict. c. 39), which were more limited in their scope, inasmuch as they referred only to dealings with the documents of title to goods, and not to dealings with the goods themselves. 29. — (1.) A writ of fieri facias, writ of attachment, or Effect of other writ of execution against goods shall bind the execution. property in the goods of the execution debtor as from t 29 „ Cai .-_ 2 > the time when the writ is delivered to the sheriff to be post, p. 119.1 executed ; and, for the better manifestation of such time, it shall be the duty of the sheriff, without fee, upon the receipt of any such writ to endorse upon the back thereof the day, month, and year when he received the same. 44 SALE OF GOODS. Sect. 29. Provided that no such writ shall prejudice the title to [19 & 20 such goods acquired by any person in good faith and for 7 1* post 7 ' valuable consideration, unless such person had at the p. 130.] time when he acquired his title notice that such writ or any other writ by virtue of which the goods of the execution debtor might be seized or attached had been delivered to and remained unexecuted in the hands of the sheriff. (2.) In this section the term "sheriff" includes an under-sheriff, coroner, and the deputy or agent of any such officer. Sect. 1 of the Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97), is in the nature of a proviso to sect. 15 of the Statute of Frauds. 1 It was enacted to carry out a recommendation of the Mer- cantile Law Commission, 1855, and to assimilate English to Scotch law in this respect. See Second Report, p. 8. It has heen held that the words, " shall bind the property in the goods," do not prevent the property from passing by the sale, but constitute the execution a charge upon the goods. 2 1 Sect. 15 of the Revised Edition is commonly cited as sect. 16. 2 Woodland v. Fuller (1840), 11 A. & E. 859 ; see at p. 867. ( 45 ) PAET III. Performance of the Conteaot. 30. It is the duty of the seller to deliver the goods, Sect - 30. and of the buyer to accept and pay for them, in accord- Duties of ance with the terms of the contract of sale. 1 buyer. See " delivery " defined, post, p. 91. " In every contract of sale," says Watson, B., " there is involved a contract on the one side to accept, and on the other to deliver." "If," says Martin, B., in the same case, " one buys goods of another in the possession of a third party, the vendor undertakes that they shall he delivered in a reasonable time . . . If I buy a horse of you in another man's field, it is part of the contract that if I go for the horse 1 shall have it." 2 The general obligation to deliver may, however, be modified by the terms of the contract. Thus, when the seller gives the buyer a delivery order for the goods it may be a condition that the order should be given up to the warehouseman before the buyer can get the goods. 3 Again, a man with his eyes open may buy the chance of obtaining goods and not the goods themselves : see sect. 6 (2), ante, p. 9 (sale of expectancy), and sect. 15, ante, p. 17 (warranty of title). French law, like civil law, puts a stricter interpretation on the general obliga- tion of the seller to deliver than English law does. 4 Whether the seller be the owner of the goods or nut, he is bound to deliver. Hactenus tenetur ut rem emptori habere liceat, non etiam ut ejus faciat. 1 Buddie v. Green (1857), 27 L. J. Ex. 33 ; Woolfe v. Home (1877), 2 Q. B. D. 355 (sale by auction) ; French Civil Code, arts. 1603, 1650 ; of. Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B., at pp. 329 and 335. 2 Buddie v. Green, supra ; cf. Wood v. Baxter (1883), 49 L. T. N.s. 45. 3 Bartlett v. Bolmes (1853), 22 L. J. C. P. 182 ; see, too, Salter v. Wool- lams (1841), 2 M. & Gr. 650, as explained in Benjamin on Sale, 4th ed., p. 683 ; Bagueley v. Hawley (1867), L. B. 2 C.P. 625, which is of doubtful authority. * Pothier, Contrat de Vente, Nos. 42-48 ; French Civil Code, arts. 1603, et seq. 46 SALE OF GOODS. Sect. 31. 31. Unless otherwise agreed, delivery of the goods Payment and payment of the price are concurrent conditions, that liveware * s *° sa y> ^e se H er must be ready and willing to give concurrent possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods. 1 " Where goods are sold," says Bayley, J., " and nothing is said as to the time of delivery or the time of payment . . . the seller is liable to deliver them whenever they are demanded upon payment of the price, but the buyer has no right to have possession of the goods till he pays the price. ... If goods are sold on credit, and nothing is agreed upon as to the time of delivering the goods, the vendee is im- mediately entitled to the possession, and the right of possession and the right of property at once vest in him. But the right of possession is not absolute; it is liable to be defeated if he becomes insolvent before he obtains possession." 2 The language of Bayley, J., might be taken to imply that in cash sales .payment was a condition precedent to delivery, but a reference to the cases cited for the text shews that payment and delivery are concurrent conditions. In au action for non-delivery, it seems the buyer need not give evidence that he was ready and willing to pay, till the seller shews he was ready to deliver. 3 Conversely, in an action for non-acceptance, the seller need not prove any tender of delivery. It is enough to shew that he was ready and willing to deliver. 4 Where shares were sold, under a written contract, to be paid for at a future day, it was held that evidence might be received of a trade usage not to deliver till payment 5 On the other hand, where there was a contract in writing for the sale of hops at so much per cwt., evidence of a course of dealing between the parties to allow six months' 1 Morton v. Lamb (1797), 7 T. K. 125 ; Rawson v. Johnson (1801), 1 East, 201 ; WOks v. Atkinson (1815), 1 Marshall, 412 ; Pickford v. Grand Junction Railway (1841), 8 M. & W., at p. 378 ; ef. Bussey v. Barnett (1812), 9 M. & W. 312; Paynter v. J a m«? (1867), L. K 2 C. P. 2 Bloxam v. Sanders (1825), 4 B. & C. 941, at p. 948; cf Chinery v. ViaU (I860), 29 L. J. Ex., at p. 183, as to credit sales. 3 Wllks v. Atkinson (1S15), 1 Marshall, 412. * Jackson v. AUaway (1844), 6 M. & Gr. 942; Baker v. firminger (1859), 28 L. J. Ex. 130. 5 Field v. Lelean (1861), 30 L. J. Ex. 168, Ex. Ch.; overruling, as to usage, Spartali v. Benecke (1850), 10 C. B. 212 ; 19 L. J. C. P. 2CIJ.' PERFORMANCE OF CONTRACT. 47 credit was rejected. 1 It is easier to draw imaginary distinctions Sect. 31. between these cases than to harmonise the principles on which they rest. 32. — (1.) Unless otherwise agreed, it is the duty of Rules as to delivery. the buyer to take possession of the goods ; and the seller's duty to deliver the goods is satisfied by his affording to the buyer reasonable facilities for taking possession of the goods 2 at the place where they are at the time the contract of sale is made, or in, the case of goods to be manufactured, at the place of manu- facture. 3 (2.) Where, under the contract of sale, the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. What is a reasonable time is a question of fact.* (3.) The delivery of the key of the place where the goods are may, by agreement, operate as a delivery of the goods. 5 (4.) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person attorns 1 Ford v. Yates (1841), 2 M. & Gr. 549 ; as explained Lochett v. Nicldin (1848), 2 Exch. 93; 19 L. J. Ex. 403. 2 Wood v. Tassell (1844), 6 Q. B. 234 ; cf. Smith v. Chance (1819), 2 B. & Aid., at p. 755, per Holroyd, J.; Salter v. Woollams (1841), 2 M. & Gr. 650, as explained Benjamin on Sale, 4th ed., p. 683. 3 Benjamin on Sale, 4th ed., p. 684 ; Indian Contract Act, 1872, § 94 ; French Civil Code, art. 1609 ; Bell on Sale (Scotland), p. 94 ; no decision in point, but assumed in the cases. 4 Ellis v. Thompson (1838), 3 M. & W. 445 . see at p. 456, per Alderson, B. 6 Ellis v. Sunt (1789), 3 T. B. 461 ; Chaplin v. Rogers (1800), 1 East, 192 ; Elmore v. Stone (1809), 1 Taunt. 458 ; cf. Ancona v. Rogers (1876), 1 Ex. D. 285, at p. 290, C. A. See Milgate v. Kebble (1841), 3 M. & Gr. 100 (delivery of key not delivery of goods) ; aud see the whole question of so-called symbolic delivery discussed in Pollock on Possession, pp. 61- 70 ; cf. French Civil Code, art. 1606. 48 SALE OF GOODS. Sect. 32. to the buyer ; 1 provided that nothing in this section Rules as to shall affect the operation of the issue or transfer of any delivery. document of ti fl fl to goodg> 2 Demand or offer of delivery, in order to be effectual, must be made at a reasonable hour. 8 In a contract for goods !to be delivered " as required," the buyer must require delivery within a reasonable time, but the seller cannot rescind the contract on the ground of delay without giving the buyer notice. " No doubt," says Pollock, C.B., " where a contract is silent as to time, the law implies that it is to be performed within a reasonable time; but there is another maxim of law, viz., that every reasonable condition is also implied, and it seems to me reasonable that the party who seeks to put an end to a contract, because the other party has not; within a reasonable time, required him to deliver the goods, should in the first instance inquire of the latter whether he means to have them." 4 Concerning the place of delivery, Pothier says, " S'il n'y a point de lieu exprime' la livraison doit se faire au lieu ou est la chose ; c'est a l'acheteur de Tenvoyer chercher" (Contrat de Vente, No. 52). As regards documents of title, the common law drew a hard and fast distinction between bills of lading and other documents. The lawful transfer of a bill of lading was always held to operate as a delivery of the goods themselves, because, while goods were at sea they could not be otherwise dealt with. 6 But the transfer of a delivery order or dock warrant operated only as a token of authority to take possession, and not as a transfer of possession ; 6 and as between immediate parties there is nothing to modify the common law rule. If, however, a buyer or mercantile agent, who is lawfully in possession of any document of title ( to goods, transfers it for value to a third person, the original seller's right of lien and stoppage in transitu is thereby defeated (see Factors Act, 1889, post, p. 108). 1 Farina v. Home (1846), 16 M. & W. 119 (see at p. 123); Godts v. Bose (1855), 17 C. B. 229 ; 25 L. J. 0. P. 61 ; Buddie v. Green (1857), 27 L. J. Ex. 33 ; Pollock on Possession, p. 73. 2 See the Bills of Lading Act, 1855 (18 & 19 Vict. c. Ill), post, p. 125, and the Factors Act, 1889, post, p. 97. 3 Startup v. Maedonald (1843), 6 M. & Gr. 593 Ex. Ch., where the rules for determining what is a reasonable hour are given. 4 Jones v. Gibbons (1853), 8 Exch. 920, at p. 922. 4 Sanders v. Maclean (1883), 11 Q. B. L\, at p. 341, per Bowen, L,J., and notes to Lichbarrow v. Mason, 1 Smith Lead. Cas., 9th ed., p. 737. Blackburn on Sale, p. 302 ; M'Ewan v. Smith (1849), 2 H. L. Cas. 309. ' ' ' T, i PEEFORMANCE OF CONTRACT. 49 33. — (1.) Where the seller delivers to the buyer a Sect. 33. quantity of goods less thau he contracted to sell, the Delivery of buyer may reject them, but if the buyer accepts the w ™°f it goods so delivered he must pay for them at the contract rate. 1 (2.) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered, he must pay for them at the contract rate. 2 (3.) Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, and the buyer cannot sever the goods included in the contract from the other goods without incurring trouble or expense, he may reject the whole. 3 As the seller does not fulfil his contract by delivering a less quantity than he contracted to sell, so, conversely, " if a man contracts to buy 150 quarters of wheat, he is not at liberty to call for a small portion without being prepared to receive the whole quantity," * unless, of course, he has stipulated for so doing. When the seller delivers a larger quantity of goods than was ordered, such delivery operates as a proposal for a new contract. 5 When the seller is uncertain as to the exact amount he can deliver, he may protect himself by using such terms as "a>'Out" so many tons, 1 Shipton v. Casson (1826), 5 B. & 0. 378, at p. 382, per Lord Tenterden ; Oxendale v. Wetherell (1829), 4 Man & By. 429, approved, Colonial Ins. Co. v. Adelaide Ins. Co. (1886), 12 App. Cas., at p. 138 ; Morgan v. Oath, (1865), 34 L. J. Ex. 165. 2 Hart v. Mills (1846), 15 M. & W. 85 ; Cunlife v. Harrison (1851), 6 Exch. 903 ; 20 L. J. Ex. 325 ; ef. Dixon v. Fletcher (1837), 3 M. & W". 146, and cases in next note. 3 Levy v. Green (1859), 28 L. J. Q. B. 319, Ex. Ch. : cf. Nicliolsori v. BradfieU Union (1866), L. E. 1 Q. B., at pp. 624, 625, per Ld. Blackburn. 4 Kingdom v. Cox (1848), 5 0. B. 522, at p. 526, per Wilde, 0. J. s Cunliffe v. Harrison (1851), 6 Exch., at p. 906, per Parke, B. E V: /, ^ - 50 SALE OF GOODS. Sect. 33. . or so many tons " more or less," and lie is then allowed a reasonable margin. 1 instalment 34. — (1.) Unless otherwise agreed the buyer of goods is not bound to accept delivery thereof by instal- ments. 2 (2:) Where there is a contract for the sale of goods to be delivered by stated instalments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more instalments, or the buyer neglects-or refuses to take delivery of or pay for one or more instalments, it is a question in each case depending on the terms of the contract, and the circum- stances of the case, whether the breach of contract is a repudiation of the whole contract, or whether it is a severable breach giving rise to a claim for compen- sation, but not to a right to put an end to the whole contract. 3 " Suppose," says Lord Bramwell, " a man orders a suit of clothes, the price being £7 ; £4 for the coat, £2 for the trousers, and £1 for the waistcoat, can he be made to take the coat only, whether they were all to be delivered together, or the trousers and waistcoat first ? " and he then proceeds to shew that this cannot be. 4 On the other hand, the circumstances of a contract may be such that an agreement for delivery by instalments will be implied. " In many cases of contracts to supply a quantity of goods to be delivered within a fixed period the whole quantity cannot, from the very nature of the case, be delivered at one time," as, for instance, in the case of contracts for the supply of provisions for the army and navy. 5 It is very difficult to reconcile the decisions in which it has been 1 Cockerell v. Aucompte (1857), 26 L. J. C. P. 194; McConnell v. Mwpliy (1873), L. R. 5 P. C. 203. As to importing such a term by usage, see Moore v. Campbell (1854), 10 Exch. 323 ; 23 L. J. Ex. 310. 2 Beuter v. Sala (1879), 4 C. P. D. 239, C. A. 3 Mersey Steel & Iron Co. v. Naylor & Co. (1884), 9 App. Cas. 434. 4 Soneh v. Muller (1881), 7 Q. B. D. 92, at p. 99, C. A. 3 Colonial Ins. Co. of New Zealand v. Adelaide Ins. Co. (1886), 12 App Cas., at pp. 138, 139, P. C. PERFORMANCE OF CONTRACT. 51 held that the refusal to deliver, accept, or pay for a particular instal- Sect. 34. merit, is a breach going to the root of the contract 1 with those in which the contrary has been held. 2 But the true principle is that each case must be judged on its own merits. " The rule of law," says Lord Blackburn, " is that where there is a contract in which there are two parties, each side having to do something, if you see that the failure to perform one part of it goes to the root of the contract, it is a good defence to say, ' I am not going on to perform my part of it when that which is the root of the whole and the substantial con- sideration for my performance is defeated by your misconduct.' " 3 35. — (1.) Where, under a contract of sale, the seller Delivery to is authorised or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, is prima facie deemed to be a delivery of the goods to the buyer. 4 (2.) Unless otherwise authorised by the buyer, the seller must take such steps as may be reasonable for making the carrier responsible to the buyer for the safe custody and carriage of the goods. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself. 5 1 See Withers v. Beynolds (1831), 2 B. & Ad. 882; Hoare v. Rennie (1859), 29 L. J. Ex. 73 ; Eonck v. MulUr (1881), 7 Q. B. D. 92, C. A. 2 See Jonassohn v. Young (1863), 32 L. J. Q. B. 385 ; Simpson v. Crip- pin (1872), L. K. 8 Q. B. 14; Freeth v. Burr (1871), L. B. 9 C. P. 208. 3 Mersey Steel Co. v. Naylor & Co. (1884), 9 App. Oas., at p. 443 ; and see per Jessel, M. K., in court below, 9 Q. B. D., at p. 657. 4 For statement of principle, see Wait v. Baker (1848), 2 Exch. 1, at p. 7, per Parke, B. ; Dunlop v. Lambert (1839), 6 CI. & F. 600, at p. 620, per Ld. Cottenham ; Calcutta Co. v. Be Mattos (1863), 32 L. J. Q. B., at p. 328, per Blackburn, J. For illustrations, see Dutton v. Solomonson (1803), 3 B. & P. 582 (carrier by land) ; Bryans v. Nix (1839), 4 M. & W. 775 (canal boat) ; Alexander v. Gardner (1835), 1 Bing. N. C. 671 (ship) ; Exp. Pearson (1868), L. E. 3 Ch. App. 443 (railway) ; Bell on Sale (Scotland), p. 86. 5 Clarke v. Hutchins (1811), 14 East, 475 ; Buclcman v. Levi (1813), 3 Camp. 414; Indian Contract Act, 1872, § 91. E 2 52 SALE OF GOODS. Sect. 35. The rule that delivery of goods to a carrier is prima facie delivery to the buyer, passing to him the property and the risk, if they have not passed before, is the natural complement of the rule that prima, facie the proper place for delivery is the place where the goods are at the time of sale, ante, p. 47. It is to be noted that, though the carrier is ordinarily the agent of the buyer tn receive the goods, he is not his agent to accept them; 1 and ihis is reasonable, for he cannot judge whether the goods are in conformily with the contract or not; so, too, while the goods are in the hands of a canier, as such they are liable to be stopped in transitu, post, p. 66; and of course they may be delivered to the carrier on such terms as to make him the seller's agent, ante, p. 33. When goods are sent "carriage forward" it is strong evidence that the delivery to the carrier was intended as a delivery to the buyer. '■ Delivery of goods to a carrier or wharfinger," says Lord Ellen- borough, " with due care and diligence is sufficient to charge the purchaser, but he has a right to require that in making this delivery due care and diligence shall be exercised by the seller." 2 As regards, goods sent l>y sea, Mr. Bell, summing up the Scotch cases, says : " In delivering goods on ship board, the seller is bound not only to charge the ship-master or shipping company with them effectually, but, though not boui d to insure, he must give such notice as to enable the buyer to insure." s Risk where 36. Where the seller of goods agrees to deliver them deUvered a * a place other than that where they are when sold, or at distant w h ere they have been manufactured, the buyer must, unless otherwise agreed, take any risk of deterioration in the goods necessarily incident to the course of transit. 4 "A manufacturer," says Alderson, B., "who contracts to deliver a manufactured article at a distant place, must indeed stand the risk of any extraordinary or unusual deterioration ; but the vendee is bound to accept the article if only deterioiated to the extent that it is necessarily subject to in its course of transit from the one place to 1 Hanson v. Armitage (1822), 5 B. & Aid. 557 ; Norman v. Phillips (1845), 14 M. & W. 277; Meredith v. Meigh (1853), 2 E. & B. 364. 2 Buckman v. Levi (1813), 3 Camp. 414. 3 Law of Sale, p. 89. 4 Bull v. Robison (1854), 10 Exch. 342 ; 24 L. J. Ex. 165 ; Benjamin on Sale, 4th ed., p. 656. PERFORMANCE OF CONTRACT. 53 the other." l There appears to be no reason for confining the rule to Sect. 36. the case of a manufacturer, nor is it inconsistent with the later case of Beer v. Walker, 3 where the buyer was held entitled to reject rabbits which arrived in Brighton in an unsaleable condition, though they were saleable when sent off from London. In the case of goods such as rabbits, they are not really merchantable when sent off by the seller unless they are in such condition as to cuntinue saleable for a reasonable time. 37. — (1.) When goods are delivered to the buyer, Buyer's which he has not previously examined, he is not deemed examining to have accepted them unless and until he has had a * e g0 ° s " reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract. 3 (2.) Unless otherwise agreed 4 when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract. 5 " Suppose," says Lord Bramwell, " I order a certain quantity of lime to be taken to a farm, and I am not there to object, and nobody else is there to object to it, I shall not be at liberty afterwards to say : ' Those goods have not been accepted and received by me,' they have been as much as it was possible, unless I had chosen to be there to make objection. So, on the other hand, if I go to a shop for an article I have previously ordered, and it is delivered to me, wrapped up, though I cannot see what it is, there cannot be the slightest question that I have received and accepted the goods, if they turn out to be in 1 Bull v. Rdbison (1854), 10 Exch., at p. 346. 2 Beer v. Walker (1877), 46 L. J. 0. P. 677. 3 Lorymer v. Smith (1822), 1 B. & 0. 1 ; Toulmin v. Hedlexj (1845\ 2 C. & K. 157, see p. 160 ; of. Hunt v. Heeld (1853), 8 Exch. 814, at p. 817 ; Heilbutt v. Hicltmn (1872), L. K. 7 0. P. 438, at p. 456, per Brett, J. As to waiver of inspection, see Castle v. Sworder (18'il), 30 L. J. Ex., at p. 312. * Pettitt v. Mitchell (1842), 4 M. & Gr. 819. 5 Isherwood v. Wldtmore (1843), 11 M. & W. 347. See at p. 350, and S. O. on demurrer, 10 M. & W. 757 (goods in closed casks). ance. 54 SALE OF GOODS. Sect. 37. onformity wit'i the order; yet nobody can say that I shall not have a right to object to them afterwards, if they are not in conformity with the contract." ' Accept- 38. The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, 2 or when the goods have been delivered to him, and he does any act in relation to them which is incon- sistent with the ownership of the seller, 3 or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. 4 Most of the numerous decisions relating to acceptance have arisen on the construction of the Statute of Frauds. 5 They must be looked at critically, because it is now well settled that there may be an acceptance within the meaning of that statute, which is not an accept- ance in performance of the contract. For the purposes of the statute, any dealing with the goods which recognises a pre-existing contract of sale is au acceptance ; but such an acceptance may not he finally binding on the buyer, precluding him from rejecting the goods. 6 The right of rejecting goods as not being in conformity with the contract appears to be larger in Scotland than in England. It seems that in Scotland a buyer may reject goods which he has accepted if he do so " timeously," whereas in England he could only do so if the contract contained what the continental lawyers call a "resolutive cond tion." 7 1 Castle v. Sworder (1860), 29 L. J. Ex. 235, at p. 238. See S.C. 30 L. J. Ex., at p. 312, Ex. Oh. 2 Saunders v. Topp (1849), 4 Exch. 390, 18 L. J. Ex. 374. 3 Parker v. Palmer (1821), 4 B. & Aid. 387 ; Chapman v. Morton (1843), 11 M. & W. 534 ; Earnor v. Groves (1855), 15 0. B. 667. 4 Sanders v. Jameson (1848), 2 0. & K. 557 ; Heilbutt v. Hickson (1872), L. E. 7 C. P., at pp. 451, 452, reviewing the cases. See, too, the cases on " sale or return," ante, p. 29. 5 See Benjamin on Sale, 4th ed., pp. 134-169. 6 Page v. Morgan (1885), 15 Q. B. D. 228, C. A. ; Benjamin on Sale, 4th ed., pp. 140-150. 7 Couston v. Chapman (1872), L. B. 2 Sc. App., at p. 254. For resolu- tive conditions, see Lamond v. Davall (1847), 9 Q. B. 1030 ; Head v. Tattersall (1871), L. E. 7 Ex. 7. PERFORMANCE OF CONTRACT. 55 Goods may of course, by arrangement, be accepted conditionally and Sect. 38. the acceptance may in such case be withdrawn on failure of the condition. 1 39. Unless otherwise agreed, where goods are de- Buyer not livered to the buyer, and he refuses to accept them, return having the right so to do, he is not bound to return ****£** them to the seller, but it is sufficient if he gives notice to the seller that he refuses to accept them. 2 The buyer, says Lord Bsher, may return the goods, or offer to return them, if not according to contract ; but it is sufficient to signify his rejection of them by stating that they are not according to contract, and that they are at the vendor's risk. No particular form is essential. It is sufficient if he does any unequivocal act shewing that he rejects them. 3 40. When the seller is ready and willing to deliver Liability of the goods, and requests the buyer to take delivery, and neglecting the buyer does not within a reasonable time after such ° r refusin f J delivery of request take delivery of the goods, he is liable to the goods. seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods. 4 Conversely, if the seller is in default in making delivery, and the buyer, notwithstanding the delay, accepts the goods, he may recover damages for any loss occasioned by the delay, post, p. 80. When the seller holds the goods in the exercise of his right of lien, he cannot charge for expenses of keeping them, post, p. 60. 1 Lucy v. Mouflet (1860), 29 L. J. Ex. 110 ; Heilbutt v. Eickson (1872) L. E. 7 O. P. 438. 2 GrimolMy v. Wells (1875), L. E. 10 O. P. 391 ; Benjamin on Sale, 4th ed., p. 649 ; as to the place of rejection, see Heilbutt v. Eickson (1872), L. E. 7 O. P. 438, at p. 456, per Brett, J. 3 GrimoUby v. Wells (1875), L. E. 10 C. P., at p. 395, per Brett, J. 4 Greaves v. Ashlin (1813), 3 Camp. 425 ; of. Bloxam v. Sanders (1825), 4 B. & C. 941, at p. 950 ; Mayne on Damages, 4th ed., p. 165. As to the converse case, where the buyer properly rejects goods and the seller refuses to take them back, see Caswell v. Coare (1809), 1 Taunt. 566 ; Chesterman v. Lamb (1834), 2 A. & E. 129. 56 SALE OF GOODS. PAET IV. Eights of Unpaid Seller against the Goods. Sect. 41. 4i. — (i.) The seller of goods is deemed to be an Unpaid " unpaid seller " — defined. i a -) When the whole of the price has not been paid or tendered ; l (6.) When a bill of exchange or other negotiable instrument has been received as conditional pay- ment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise. 2 (2.) In this part the term " seller " includes an agent of the seller to whom the bill of lading has been indorsed, 3 and also a consignor or agent who has him- self paid, or is directly responsible for, the price. 4 In a case where the seller had discounted the buyer's acceptances, but the latter failed before the bills matured, it was held that the 1 Hodgson v. Loy (1797), 7 T. E. 440 ; Feise v. Wray (1802), 3 East, 93, at p. 102 ; Van Casteel v. Booker (1848), 2 Exch. 691, at pp. 702, 709 ; Ex p. Chalmers (1873), L. E. 8 Ch. App. 289 (severable contract). As to tender after the appointed day, see Martindale v. Smith (1841), 1 Q. B. 389. 2 Feise v. Wray (1802), 3 East, 93 ; Griffiths v. Perry (1859), 28 L. J. Q. B. 204 ; Ex p. Lambton (1875), L. E. 10 Oh. App., at p. 415 ; Gunn v. Bolekow, Vaughan & Go. (1875), L. E. 10 Ch. App. 491, at p. 501 ; cf. Ex p. Stapleton (1879), 10 Ch. D. 586, C. A. Whether a bill is given in absolute or conditional payment is a question of fact, Goldshede v. Cottrell (1836), 2 M. & W. 20. 3 Morison v. Gray (1824), 2 Bing. 260. See, too, the Bills of Lading Act, 1855. 4 Feise v. Wray (1802), 3 East, 93 ; Tueker v. Humphrey (1828), 4 Bing. 516 ; cf. Ireland v. Livingston (1872), L. E. 5 H. L., at pp. 408, 409, per Blackburn, J. RIGHTS AGAINST TEE GOODS. 57 seller was unpaid, and Melhsh, L.J., says, " Tf the bill is dishonoured Sect. 41. before delivery of the goods has been made, then the vendor's lien revives, or, if the purchaser becomes openly insolvent before the delivery actually takes place, then the law does not compel the vendor to deliver to an insolvent purchaser." 1 Sub-sect. (2) is not intended as an exhaustive definition of the persons who are entitled to exercise 'the rights of an unpaid seller, properly so called. The Courts shew a strong inclination to give the rights of an unpaid seller against the goods to any one whose position can be shewn to be substantially analogous to that of an ordinary seller. 2 42. Subject to the provisions of sects. 43 to 49, and of Unpaid cpl lpi« o any statute in that behalf, the unpaid seller of goods, as rights. such, has by implication of law — (1.) A lien on the goods for the price while he is in possession of them ; (2.) In case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them ; (3.) A right of re-sale as limited by section 50. The origin of the seller's lien in English law is doubtful. Tt is probably founded on the custom of merchants. 3 The term " lien" is unfortunate, because the seller's rights, arising out of his original owner- ship, in all cases exceed a mere lien. They " perhaps come nearer to the rights of a pawnee with a power of sale than to any other common law rights." 4 Many of the cases fail to distinguish the seller's right of lien from bis right of stoppage in transitu. But it is important to keep them 1 Gunn v. Bolckow, Vaughan & Co. (1875), L. K. 10 Ch. App., at p. 501, overruling on this point, it seems, Bunney v. Poyntz (1833), 4 B. & Ad. 568. 2 Cf. Cassaboglou v. Gibb (1883), 11 Q. B. D., at p. 804, per Lord Esher ; and, for examples, see Jenkyns v. Dsborne (1844), 7 M. & Gr. 678, at p. 698 (resale by party who had contracted to buy goods) ; Imperial Bank v. Land. & St. Katharine Dock Co. (1877), 5 Ch. D. 195 (surety who has paid the price); Benjamin on Sale, 4th ed., p. 847. 3 Blackburn on Sale, p. 318. 4 Blackburn on Sale, p. 325 ; cf. Bloxam v. Sanders (1825), 4 B. & O. 941, at p. 948 ; ScJiotsmans v. Lancashire Railway (1867), L. E. 2 Ch. App., at p. 340. 58 SALE OF GOODS. Sect. 42. distinct, because, though the rights are analogous, they are in certain " ; respects governed by different considerations. 1 The seller's lien seller's attaches when the buyer is in default, whether he be solvent or rights. insolvent. The right of stoppage in transitu only arises when the buyer is insolvent. Moreover, it does not arise until the seller's lien is gone, for it presupposes that the seller has parted with the possession as well as with the property in the goods. " The right of stoppage in transitu" says Bowen, L. J., " is founded upon mercantile rules, and is borrowed from the custom of merchants ; from their custom it has been engrafted upon the law of England. The doctrine was at variance with the Civil Law, which laid down that, although the goods had been sold upon credit, and although the goods were in the possession of the vendee, there might be recaption by the vendor if the vendee became insolvent. But, according to the rules as to stoppage in transitu, the goods can be stopped only whilst they are passing through channels of communication for the purpose of reaching the hands of the vendee. This doctrine was adopted by the Court of Chancery, and afterwards by the Courts of Common Law." 2 The Courts look with great favour on the right of stoppage in transitu on account of its intrinsic justice. 8 The decisions on the subject are very numerous, but as Jessel, M.E., observes, " As to several of them there is great difficulty in reconciling them with principle, as to others there is great difficulty in reconciling them with one another; and, as to the whole, the law on this subject is in a very unsatisfactory state." i The seller's " right of retention " in Scotland appears to be more extensive than the seller's lien in England. Apart from statute the seller had the right to retain the goods not only for the price, but also for any other debt due from the buyer even if there had been a sub-sale. 6 But the Mercantile Law Amendment (Scotland) Act, 1856, sect. 2, post, p. 128, has altered the law in the case of sub-sales. 1 Blackburn on Sale, p. 308; cf. Bolton v. Lane. & Torks. Railway (1866), L. K. 1 C. P., at p. 439, per Willes, J. 2 Kendal v. Marshall, Stevens & Co. (1883), 11 Q. B. D., at p. 368 C. A. ; see Gibson v. Carrutkers (1841), 8 M. & W. 321, at p. 326, per Lord Abinger ; Blackburn on Sale, pp. 204-209. 3 Cf. Cassahoglou v. Gibb (1883), 11 Q. B. D., at p. 804 ; Kemp v. Folk (1882), 7 App. Cas., at p. 590; Tueker v. Humphrey (1828), 4 Bing at p. 519. 1 Merchant Banking Co. v. Phcenix Co. (1877), 5 Ch. D., at p. 220 (case of seller's lien). 4 Mercantile Law Commission, 1855, 2nd Rep., pp. 8, 9, 44 ; Melrose v. Hastie (1851), 13 Sess. Cas. 880. lien. UNPAID SELLER'S LIEN. 59 The Scotch law as to stoppage in transitu appears to be similar to Sect. 42. English law. The doctrine " was first applied to Scottish bargains of moveables by a decision of the House of Lords in 1790, in place of a rule of presumed fraud intra triduum, which had formerly been held to entitle a seller to restitution of his goods even after delivery." ] As to France, see art. 1654 of the Civil Code, which is modified in commercial matters by arts. 574-576 of the Code de Commerce, and Bravard Demangeat, Droit Commercial, 7th ed., p. 621. As to India, see sects. 95-106 of the Indian Contract Act, 1872. Unpaid Seller's Lien. 43. — (1.) Subject to the provisions of sects. 44 and 45, Seller's the unpaid seller of goods who is in possession of them is entitled to retain possession of them until payment or tender of the price in the following cases, namely : — (a.) When the goods have been sold without any stipulation as to credit : 2 (I.) When the goods have been sold on credit, but have been permitted to remain in the seller's possession until the term of credit has expired ; 3 (c.) When the buyer becomes insolvent, whether the goods have been sold on credit or not ; 4 (2.) Where the buyer is insolvent, the seller may exercise his right of lien notwithstanding that he is 1 Bell's Principles, 9th ed., § 1307 ; Allan v. Stein (1790), M. 4949. 2 Benjamin on Sale, 4th ed., p. 767 ; Bloxam v. Sanders (1825), 4 B. & C. 941, at p. 948 ; Miles v. Gorton (1834), 2 Cr. & M. 504, at p. 511. 3 Benjamin on Sale, 4th ed., p. 839. The point has been twice decided at Nisi Prius, New v. Swain (1828), 1 Dan. & Lloyd, 193, per Bayley, J. ; Bunney v. Poyntz (1833), 4 B. & Ad. 568, at p. 569, per Littledale, J. ; see, too, dicta in Martindale v. Smith (1841), 1 Q. B., at p. 395 ; Valpy v. Oakeley (1851), 16 Q. B., at p. 951, and sects. 95, 96 of the Indian Contract Act, 1872. 4 Bloxam v. Sanders (1825), 4 B. & C. 941 ; Bloxam v. Morley (1825), 4 B. & C. 951 ; Griffiths v. Perry (1859), 28 L. J. Q. B. 204 ; Ex p. Lambton (1875), L. R. 10 Ch. App., at p. 415; Gunn v. Bolckow, Vaughan & Co. (1875), L. R. 10 Ch. App. 491, at p. 501. 60 SALE OF GOODS. Sect. 43. in possession of the goods as agent or bailee for the Seller's buyer. 1 lieu. As to the term " unpaid seller," see sect. 41, ante, p. 56 ; and as to the term "insolvent" Bee post, p. 95. The lien is a lien for the price only, and not for charges for keeping the goods, for they are kept against the buyer's will. 2 A sale on credit excludes the lien during the currency of the credit, 8 unless there be a trade usage to the contrary. 4 When the buyer, who is in default is solvent, the exact rights of the seller under his lien are still somewhat unsettled ; but if the buyer be insolvent his rights are clear. In such case, says Mellish, L.J., " the seller, notwithstanding he may have agreed to allow credit for the goods, is not bound to deliver any more goods under the contract until the price of the goods not yet delivered is tendered to him ; and if a debt is due to him for goods already delivered, he is entitled to refuse to deliver any more till he is paid the debt due for those already .delivered, as well as the price of those still to be delivered .... It would be strange if the right of a vendor who had agreed to deliver goods by instalments were less than that of a vendor who had sold specific goods." 6 Even if the seller has broken his contract to deliver while the buyer is solvent, his lien revives on the buyer becoming insolvent, and the buyer's trustee is only entitled at most to nominal damages for the breach, unless the value of the goods at the time of breach was above the contract price. When the seller exercises his right of lien, the buyer's trustee may 1 Benjamin on Sale, 4th ed., p. 771 ; Townhy v. Crimp (1835), 4 A. & E. 58 ; Grice v. Bichardson (1877), 3 App. Cas. 319 P. 0. Aliter it seems if the buyer be solvent, Cusack v. BoUnson (1861), 30 L. J. Q. B., at p. 264, per Blackburn, J. ; and Blacliburn on Sale, p. 224. The authorities can be reconciled if the rule be confined to cases where the buyer is insolvent. 2 Somes v. British Empire Shipping Co. (1859), 28 L. J. Q. B. 220, Ex Ch. affirmed by H. L., 30 L. J. Q. B. 229 (case of shipwright's lien, but the rule was stattd to apply to the seller's lien). 8 Spartali v. Beneclce (1850), 10 O. B. 212, at p. 223. 1 Field v. Lelean (1861), 30 L. J. Ex. 168 Ex. Ch. s Ex p. Chalmers (1873), L. R. 8 Oh. App. 289, at p. 293 ; cf. Ex p. Stapletm (1879), 10 Ch. D. 586, C. A. 8 Valpy v. Oakeley (1851), 16 Q. B. 941 ; 20 L. J. Q. B. 380 ; Griffiths v. Perry (1859), 28 L. J. Q. B. 204. UNPAID SELLER'S LIEN. 61 affirm the contract and obtain the goods by tendering the price within Sect. 43. a reasonable time, 1 tor it is clear law that the mere insolvency or bankruptcy of a party to a contract does not rescind it. But it seems that, in the case of insolvency, an" agreement to rescind will be presumed on slight grounds. 2 A sub-purchaser also is probably entitled to obtain the goods by tendering the price to the original seller within a reasonable time. 3 44. Where an unpaid seller has made part delivery p ar t of the goods, he may exercise his right of lien on the dellTei T- remainder, unless such part delivery has been made under such circumstances as to shew an intention of waiving the lien. 4 In a case where it was unsuccessfully contended that the delivery of part of a cargo to a sub-purchaser was a constructive delivery of the whole, Lord Blackburn says : " It is said that delivery of a part is delivery of the whole. It may be a delivery of the whole. In agreeing for the delivery of goods with a person, you are not bound to take an actual corporeal delivery of the whole in order to constitute such a delivery, and it may very well be that a delivery of part of the goods is sufficient to afford strong evidence that it is intended as a delivery of the whole. If both parties intend it as a delivery of the whole, then it is a delivery of the whole; but if either of the parties does not intend it as a delivery of the whole, if either of them dissents, then it is not a delivery of the whole." 6 As regards severable contracts, if, for instance, delivery is to be made by three instalments, anil the first instalment has been delivered and paid for, and the second has been delivered but not paid for, the seller may withhold delivery of the third instalment till he has been paid for both the second and third instalments. 6 But any instalment 1 Ex p. Stapleton (1879), 10 Ch. D. 586, 0. A. 2 Morgan v. Bain (1874), L. E. 10 0. P. 15. As to trustee's right to disclaim onerous contracts, see s. 55 of the Bankruptcy Act, .1883. 3 Ex p. Stapleton, suprk ; and cf. Kemp v. Falk (1882), 7 App. Cas., at p. 578, per Lord Selborne. 4 Dixon v. Yates (1833), 5 B. & Ad. 313, see at p. 341 ; Miles v. Gorton (1834), 2 Cr. & M. 504 ; cf. Ex p. Cooper (1879), 11 Ch. D. 68, C. A. (stoppage in transitu). 5 Kemp v. Falk (1882), 7 App. Cas. 573, at p. 586, citing for the position, Dixon v. Yates, supra, which was a case of seller's lien. 6 Ex p. Chalmers (1873), L. E. 8 Ch. App. 289 (buyer insolvent. Qu. if buyer was not insolvent ?). 62 SALE OF GOODS. Sect 44 w hich has been paid for must be delivered, even though the buyer be bankrupt. 1 Termina- 45. — (1.) The unpaid seller of goods loses his lien tionoflien. thereon — (a.) When he delivers the goods to a carrier or other person for the purpose of transmission to the buyer 2 without reserving the right of disposal of the goods; 3 (&.) When the buyer or his agent obtains possession of the goods 4 unless there be an agreement to the contrary ; 5 (e.) By waiver thereof. 6 (2.) The unpaid seller of goods, having a lien thereon, does not lose his lien by reason only that he has obtained judgment for the price of the goods. 7 As to the term " unpaid seller," see sect. 41, ante, p. 56. When goods are delivered to a carrier for transmission to the buyer, the right of lien becomes changed into a right of stoppage in transitu should the buyer become insolvent. As jn the case of the buyer's insolvency the two rights are similar in their effects, they are sometimes confused in the cases. When the buyer is solvent, the cases on what constitutes an actual receipt within the meaning of the Statute of Frauds appear to furnish 1 Merchant Banking Co. v. Phoenix Bessemer Steel Co. (1877), 5 Ch. D. 205. 2 Benjamin on Sale, 4th ed., p. 813 ; Bolton v. Lane. & Tories. Railway Co. (1866), L. K. 1 C. P., at p. 439, per "Willes, J. ; Pollock on Possession, pp. 71, 72 ; cf. Griffiths v. Perry (1859), 28 L. J. Q. B., at pp. 207, 208 ; and see the cases cited for sect. 35, ante, p. 51. 3 As to reserving right of disposal, see sect. 22, ante, p. 33. 4 Eawes v. Watson (1824), 2 B. & 0. 543 ; Cooper v. Bill (1865), 34 L. J. Ex. 161 ; Benjamin on Sale, 4th ed., p. 811. 5 JDodsley v. Varley (1840), 12 A. & B. 632 ; cf. Schotsmans v. Lane. & Torks. Railway (1867), L. B. 2 Ch. App., at p. 335, as to stoppage in transitu. 6 Benjamin on Sale, 4th ed., pp. 808, 812, and see note, post, p. 63. 7 Soulditch v. Besanges (1818), 2 Stark. 337 ; Scrivener v. Great Northern Railway (1871), 19 W. B. 388. Qu. if lien extends only to price or also to costs on the judgment ? STOPPAGE IN TRANSITU. 63 the test for determining whether the seller's lien is gone or not. " The Sect. 45. principle," says Blackburn, J., " is that there cannot he an actual ~~ ~ receipt by the vendee so long as the goods continue in the possession of the seller so as to preserve his lien. But though the goods remain in the personal possession of the vendor, yet if it is agreed between the vendor and vendee that the possession shall thenceforth be kept, not as vendor, but as bailee for the purchaser, the right of lien is gone, and then there is sufficient receipt to satisfy the statute." 1 When the buyer is insolvent the lien revives or continues, although the seller holds the goods as bailee for the buyer, ante, p. 59. When goorls, at the time of sale, are in the possession of a third person there is no delivery to the buyer, and the seller's lien therefore is not divested till such third person attorns to the buyer. 2 Again, the seller may deliver the goods to the buyer on such terms as that the buyer holds them as bailee for the seller ; s but in that case the seller has rather a special property in the goods arising out of the special agreement, than a lien properly so called. 4 The right of lien is given to the seller by implication of law. It follows that it may be waived expressly. But it may also be waived by implication. The seller may reserve an express lien which excludes the implied one, 6 or he may take a bill for the price which ordinarily would exclude his lien during its currency, though the lien would revive on its dishonour ; ° or the seller may assent to a sub-sale ; 7 or part with the documents of title so as to exclude his lien under the provisions of the Factors Acts, if the documents get into the hands of a holder for value. Stoppage in transitu. 46. Subject to the provisions of sects. 47 to 49, when Right of the buyer of goods becomes insolvent, the unpaid seller transit?. '" 1 Cusaeh v. Bobinson (1861), 30 L. J. Q. B., at p. 264 ; ef. Baldey v. Parker (1823), 2 B. & C, at p. 44, per Holroyd, J., and see post, p. 121. 2 McEwan v. Smith (1849), 2 H. of L. Cas. 309, and ante, p. 48. 3 Benjamin on Sale, 4th ed., p. 812. * Of. Dodsley v. Varley (1840), 12 A. &. E. 632, at p. 634, per Lord Denman. 5 Be Leith's Estate (1866), L. K. 1 P. C, at p. 305. As to effect of taking subsequent security, see Angus v. MaLaehlan (1883), 23 Oh. D. 330. 6 Valpy x. Odkeley (1851), 16 Q. B. 941, at p. 951 ; Griffiths v. Perry (1859), 28 L. J. Q. B., at p. 207. 7 Knights v. Wiffen (1870), L. B. 5 Q. B. 660 ; see, too, sect. 49, post, p. 70. 64 SALE OF GOODS. Sect. 46. w ^° h as parted with the possession of the goods has the R .T77 . right of stopping them in transitu, that is to say, he may- stoppage resume possession of the goods as long as they are in itu. course of transit, and may retain them until payment or tender of the price. 1 " The vendors being unpaid," says Lord Bsher, " arid the purchasers having become insolvent, according to the law merchant the vendors had a right to stop the goods in transitu, although the property in such goods might have passed to the purchasers. 1 he doctrine of stoppage in transitu has always been construed favourably to the vendor. 2 The right of stoppage in transitu is. a right against the goods them- selves. " If they arrive injured and damaged in bulk or quality the right to stop in transitu is so far impaired, there is no contract or agreement which entitles the vendor to go beyond those goods in the state iu which they arrive, and to claim moneys which have been paid by the underwriters to the purchasers of the goods in respect of their loss by the non-arrival of their property." s It seems that the term stoppage in transitu only applies in strictness to cases where the property in the goods has parsed to the buyer. 4 If the property has not passed, the seller's rights depend upon his so-called right of lien or upon a reservation of the jus disponendi? It is now clear that the seller's right of withholding delivery extends to executory, as well as executed, contracts when the buyer is insolvent. 6 In order to form a clear notion of the meaning of the term " trans- itus," two points should be noted : — (1) The goods may be in transitu although they have left the hands of the person to whom the seller 1 Liclcbarrow v. Mason (1793), 6 East, 21, H. L. ; 1 Smith, L. C, 9th ed., p. 737, and notes ; Gibson v. Carruthers (1841), 8 M. & W. 321 ; Bolton v. Lane. & Tories. Railway (1866), L. R. 1 G. P. 431, at p. 439 ; Bethelly. Clark (1887), 19 Q. B. D. 553, at p. 561, affirmed 20 Q. B. D. 615, 0. A. ; Pollock on Possession, pp. 72, 74, 214. 2 Bethell v. Clark (1888), 20 Q. B. D., at p. 617, C. A. 3 Berndtson v. Strang (1868), L. R. 3 Ch. App. 588, at p. 591, per Lord Cairns ; of. Phelps v. Comber (1885), 29 Oh. D. 813, 0. A. 4 Gibson v. Carruthers (1841), 8 M. & W. 321. s Bolton v. Lane. & Yorks. Railway (1866), L. B. 1 0. P., at p 439 per Willes, J. 6 Griffiths v. Perry (1859), 28 L. J. Q. B., at p. 208 ; Ex p. Chalmers (1873), L. B. 8 Ch- App., at p. 292, modifying, perhaps, the rule laid down in Gibson v. Carruthers, supra. STOPPAGE IN TRANSITU. 65 intrusted them for transmission. It is immaterial how many agents' Sect. 46. hands they may have passed through if they have not reached their destination. 1 (2) The term does not necessarily imply that the goods are in motion, for, " if the goods are deposited with one who holds them merely as an agent to forward and has the custody as such, 'they are as much in transitu as if they were actually moving." 2 "The essence of stoppage in transitu" says Lord Cairns, "is that the goods should he in the possession of a middleman." 3 Lord Esher, to a great extent adopting Lord Tenterden's definition of the term transitus, suggests the following proposition : — " Goods are deemed to be in transitu not only while they remain in the possession of the carrier, whether by water or land, and although such carrier may have been named and appointed by the consignee ; but also when they are in any place of deposit connected with the trans- mission and delivery of them, having been there deposited by the person who is carrying them for the purposes of transmission and delivery until they arrive at the actual possession of the consignee or at the possession of his agent, who is to hold them at his disposal and deal with them accordingly." 4 Mr. E. S. Wright defines the term transitus, by stating that goods are in transitu " at any time before the goods have reached the possession of the vendee or of the vendee's servant, and whilst they are still in the possession of a carrier or other person, as an intermediary, who has not yet by attornment, usage, or otherwise, agreed to hold them exclusively for the vendee." 6 When goods, which have been sold, are in the actual possession of a carrier or other bailee, three states of fact may exist with regard to them : — First, the carrier or other bailee may hold them as agent for the seller ; in that case the seller preserves his lien, and the right of stoppage in transitu does not arise. Secondly, the goods may be in medio. The carrier, warehouseman, or other bailee may hold them in his character as such, and not exclusively as the agent of either the seller or buyer. In that case the right of stoppage in transitu exists Thirdly, the carrier or other bailee may hold the goods either originally or by subsequent attornment, solely as agent for the buyer. In that case there either has been no right of stoppage or it is determined. 1 Bethell v. Clark (1888), 20 Q. B. D., at p. 619, per Fry, L. J. 2 Blackburn on Sale, p. 244. ' Scholsmans v. Lane. & Torks. Railway (1867), L. E. 2 Ch. App., at p. 338. 4 Kendal v. Marshall, Stevens & Co. (1883), 11 Q. B. D. 356, at p. 364 0. A. ; cf. Abbott, on Shipping, 12th ed., p. 409. 5 Pollock on Possession, p. 214. F 66 SALE OF GOODS. Sect. 46. The difficulty in each case that arises is a difficulty of fact and not of law. Duration of 47. — (1.) Goods are deemed to be in course of transit from the time when they are delivered to a carrier by land or water, or other bailee, for the purpose of trans- mission to the buyer, until the buyer, or his agent in that behalf, takes delivery of them from such carrier or other bailee. 1 (2.) If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the ap- pointed destination, the transit is at an end. 2 (3.) If, after the arrival of the goods at the appointed destination, the carrier or other bailee attorns to the buyer, or his agent, and continues in possession of them as bailee for the buyer, or his agent, the transit is at an ■ For principle, see Bolton v. Lane. & Torks. Bailway (1866), L. K. 1 C.P., at p. 439, per Willes, J. For illustrations see Whitehead v. Anderson (1842), 9M.4W. 518 (promise by captain to deliver when satisfied as to freight, transit not ended) ; Dodson v. Wentworlh (1842), 4 M. & Gr. 1080 (goods delivered by carrier to warehouse to await orders, transit ended) ; Valpy v. Gibson (1847), 4 0. B. 837 (goods delivered to shipping agent of buyer, transit ended) ; Scliotsmans v. Lane. & Tories. Bailway (1867), L. E. 2 Ch. App. 332 (goods delivered to general ship owned by buyer, transit ended) ; Coventry v. Gladstone (1868), L. B. 6 Eq. 44 (overside orders given by mate to holder of bill of lading, transit not ended) ; Ex p. Gibbes (1875), 1 Ch. D. 101 (goods shipped to Liverpool and then put on railway for buyer, transit ended) ; Ex p. Watson (1877), 5 Oh. D. 35 (ineffectual in- terruption of transit) ; Ex p. Barrow (1877), 6 Ch. D. 783 (goods ware- housed by carrier as forwarding agent, transit not ended) (?) ; Ex p. Bosevear China Clay Co. (1879), 11 Ch. D. 560 (goods shipped on ship hired by buyer, destination not stated, transit not ended) ; Kemp v. Folk (1882), 7 App. Cas. 573, see at p. 584 (goods on ship, cash receipts instead of delivery orders given to buyer, transit not ended) ; Bethell v. Clark (1888), 20 Q. B. D. 615 C. A. (goods ordered to be delivered to the " Darling Downs " to Melbourne, transit not ended by shipment). 2 Whitehead v. Anderson (1842), 9 M. & W. 518, at p. 534; Blackbwrn on Sale, p. 249 ; cf. Land. & N. W. Bailway v. Bartlett (1861), 31 L. J. Ex. 92 (alteration of journey by agreement between carrier and con- signee) ; see, too, dictum of Bowen, L J., in Kendal v. Marshall, Stevens & Co. (1883), 11 Q. B. D., at p. 309. transit. STOPPAGE IN THAN SITU. 67 end, and it is immaterial that a further destination for Sect. 47. the goods may have been indicated by the buyer. 1 Duration of (4.) If the goods are rejected by the buyer, and the carrier or other bailee continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back. 2 (5.) When goods are delivered to a ship chartered by the buyer is a question depending on the circumstances of the particular case, whether they are in the posses- sion of the master as a carrier, or as agent or servant to the buyer. 3 (6.) Where the carrier or other bailee wrongfully refuses to deliver the goods to the buyer, or his agent in that behalf, the transit is deemed to be at an end. 4 (7.) Where part delivery of the goods has been made to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circumstances as to show an agreement to give up possession of the whole of the goods. 5 1 For principle, see Kendal v. Marshall, Stevens & Co. (1883), 11 Q. B. D. 356 0. A., where the carrier attorned to buyer's agent. In illustration, see Dixon v. Baldwen (1804), 5 East. 175 ; Valpy v. Gibson (1847), 4 C. B. 865, where a re-delivery to seller for special purpose did not revive right of stoppage : Ex p. Miles (1885), 15 Q. B. D. 39 C. A. 2 Bolton v. Lane. & Yorlts. Railway (1866), L. E. 1 0. P. 431 ; cf. James v. Griffin (1837), 2 M. & W. 623. 3 Berndtson v, Strang (1867), L. B. 4 Eq. 481, at p. 489; on appeal L. B. 3 Ch. App., at p. 590, per Lord Cairns (the test is whether the master is the servant of the owner or the charterer) ; Ex p. Bosevear China Clay Co. (1879), 11 Oh. D. 560, 0. A. (ship hired verbally) ; cf. Schotsmans v. Lane. & Yorks. Railway (1867), 2 Ch. App. 332 (general ship owned by buyer, transit ended). 4 Bird v. Brown (1850), 4 Exch. 786, at p. 790 (where carrier refused to deliver in consequence of an invalid notice to stop). s Bolton v. Lane. & Yorks. Bailwny (1866), L. B. 1 C. P., at p. 440, per Willes, J. ; Ex p. Cooper (1879), 11 Ch. D. 68 C. A. ; Kemp v. Fallc (1882), 7 App. Cas., at p. 586, per Lord Blackburn ; ef. sect. 44, unte, p. 61, as v seller's lien. F 2 68 SALE OF GOODS. Sect. 47. (8.) The right of stoppage in transitu may be de- Duration of termined by waiver thereof on the part of the unpaid transit. seller. 1 As regards the term " destination," Lord Esher says that " it means sending the goods to a particular place to a particular person who is to receive them, and not sending them to a particular place without saying to whom ; " 2 and Lord Fitzgerald says, " Transit embraces not only the carriage of the goods to the place where delivery is to be made, but also delivery of the goods there according to the terms of the contract of conveyance." 3 When the attornment of the carrier is relied on, that attornment must be founded on mutual assent. If the carrier do not assent to hold the goods for the buyer, or if the buyer do not assent to his so holding them, there is no attornment. 4 The fact that the freight is unpaid is strong, though not conclusive evidence that the carrier is in possession of the goods, as such, and not as the buyer's agent. 6 A neat summary of the law as to the termination of the transit is given by Cave, J., who says, " When the goods have arrived at their destination, and have been delivered to the purchaser or his agent, or where the carrier holds them as warehouseman for the purchaser, and no longer as carrier only, the transitus is at an end. The destination may be fixed by the contract of sale, or by directions given by the purchaser to the vendor. But, however fixed, the goods have arrived at their destination, and the transit is at an end when they have got into the hands of some one who holds them for the purchaser and for some other purpose than that of merely carrying them to the destination fixed by the contract or by the directions given by the purchaser to the vendor. The difficulty in each case lies in applying these principles." 6 1 Cf. Merchant Banking Co. v. Phoenix Bessemer Co. (1877), 5 Ch. D. 205. The right of stoppage arises by implication, and therefore may be waived ; cf. sect. 45, ante, pp. 62, 63, as to seller's lien. 2 Ex p. Miles (1885), 15 Q. B. D. 39, at p. 43 C. A. 3 Kemp v. Falk (1882), 7 App. Cas., at p. 588. • See James v. Griffin (1837), 2 M. & W. 623 (offer to attorn not accepted by buyer) ; Kemp v. Falk (1882), 7 App. Cas., at pp. 584, 586 (carrier not agreeing to change his character). See also Blackburn on Sale, p. 248. 5 Kemp v. Falk (1882), 7 App. Cas., at p. 584. 6 Bethell v. Clark (1887), 19 Q. B. D. 553, at p. 561 ; affirmed by C. A., 20 Q. B. D. 615. STOPPAGE IN TRANSITU. 69 48. — (1.) The unpaid seller may exercise his right of Sect. 48. stoppage in transitu either by taking actual possession How stop- of the goods, 1 or by giving notice of his claim to the {^situ is carrier or other bailee in whose possession the goods are. 2 effected. Such notice may be given either to the person in actual possession of the goods or to his principal. In the latter case the notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may communi- cate it to his servant or agent in time to prevent a delivery to the buyer. 3 (2.) When notice of stoppage in transitu is lawfully given to the carrier, or other bailee in possession of the goods, he must re-deliver the goods to, or according to the directions of the seller. 4 " The law is clearly settled," says Parke, B., " that the unpaid vendor has a right to retake the goods before they have arrived at the destination originally contemplated by the purchaser, unless in the meantime they have come into the actual or constructive possession of the vendee. If the vendee take them out of the possession of the carriers into his own before their arrival, with or without the consent of the carrier, there seems to be no doubt that the transit would be at an end, though, in the case of the absence of the carrier's consent, it may be a wrong to him for which he would have a right of action." 6 The seller, says Dr. Lushington, "exercises his right of stoppage in transitu at his own peril, and it is incumbent upon the master to give effect to a claim, as soon as he is satisfied it is made by the vendor, unless he is aware of a legal defeasance of the claim." 6 If after notice, 1 Snee v. Prescot (1743), 1 Atk. 245, at p. 250, per Ld. Hardwicke ; Whitehead v. Anderson (1842), 9M.4 W., at p. 534, per Parke, B. 2 Litt v. Cowley (1816), 7 Taunt. 169, at p. 170, per Gibbs, C.J. 3 Whitehead v. Anderson (1842), 9 M. & W. 518 ; Ex p. Watson (1877), 5 Oh. D. 35 0. A. ; Kemp. v. Folk (1882), 7 App. Cas., at p. 585 ; cf. Phelps v. Comber (1885), 29 Oh. D. 813 0. A. (notice to consignee to hold proceeds ineffectual). * The Tigress (1863), 32 L. J. Adm. 97, at p. 102. * Whitehead v. Anderson (1842), 9 M. & W., at p. 534. 6 The Tigress (1863), 32 L. J. Adm. 97, at p. 101, 70 SALE OF GOODS. Sect. 48. lawfully given, the carrier delivers to the consignee or refuses to deliver to the seller, he is guilty of a conversion of the goods. In case of real doubt he should resort to an interpleader. 1 The seller has also a remedy by injunction, 2 or if the goods be in the hands of the master of a ship by arrest of the ship. 3 In a case in the Court of Appeal, Lord Bramwell doubted whether there was any obligation on the part of the principal to send on a notice of stoppage to his agent ; 4 but, when the cise went to the House of Lords, Lord Blackburn expressly repudiated this notion. 5 Be-sale by Buyer or Seller. Effect of 49. Subject to the provisions of the Factors Act, pledge by' 1889, the unpaid seller's right of lien or stoppage in buyer. transitu is not affected by any sale, pledge, or other dis- position of the goods which the buyer may have made, 6 unless the seller has assented thereto. 7 By sects. 9 and 10 of the Factors Act, 1889, post, p. 106, which are substituted for sects. 4 and 5 of the Factors Act, 1877, it is pro- vided : — 9. " Where a person, having bought or agreed to buy goods, obtains with the consent of the seller possession of the goods or the documents of title to the goods, the delivery or transfer, by that person or by a mercantile agent acting for him, of the goods or documents of title, 1 The Tigress (1863), 32 L. J. Adm., at p. 102 ; of. Litt v. Cowley (1816) 7 Taunt., at p. 170. 2 Schotsmans v. Lancashire Railway (1867), L. R. 2 Ch. App., at p. 340. 3 The Tigress (1863), 32 L. J. Adm. 97. 1 Ex p. Folk (1880), 14 Ch. D. 446 C. A. 5 Kemp v. Falle (1882), 7 App. Cas., at p. 585. 6 As to seller's lien, see Dixon v. Yates (1833), 5 B. & Ad. 313, at p. 339 ; Farmeloe v. Bain (1876), 1 0. P. D. 445. As to stoppage in transitu. Craven v. Ryder (1816), 6 Taunt. 433 ; Ex p. Golding Davis & Co. (1880), 13 Ch. D. 628 ; Kemp v. Folk (1882), 7 App. Cas. 573. As to delivery orders before the Factors Act, 1877, see McEwan v. Smith (1849), 2 H. of L. Cas. 309 ; Blaclcburn on Sale, p. 302, which shows the common law effect of these documents. 7 Blaclcburn on Sale, p. 224 ; Stoveld v. Hughes (1811), 14 East. 308 ; Pearson v. Dawson (1858), 27 L. J. Q. B. 248 ; Woodley v. Coventry (1863), 32 L. J. Ex. 185 ; Knights v. Wiffen (1870), L. K. 5 Q. B. 660 ; Merchant Banking Co. v. Phoenix Bessemer Co. (1877), 5 Ch. D. 205. RE- SALE BY BUYER OR SELLER. 71 under any sale, pledge, or other disposition thereof, or under any Sect. 49. agreement for sale, pledge, or other disposition thereof, to any person „ , 7 - • ^ ■ i . . , , • , . , ,. Sub-sale or receiving the same in good faith and without notice of any hen or p i e a ge ty other right of the original seller in respect of the goods, shall have buyer, the same effect as if the person mating the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner.'' 10. " Where a document of title to goods has been lawfully trans- ferred to a person as a buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, the last-mentioned transfer shall have the same effect for defeating any vendor's lien or right of stoppage in transitu as the transfer of a bill of lading has for defeating the right of stoppage in transitu." The effect of this enactment appears to be (a) to affirm the common law effect of the transfer of a bill of lading, and (5) to put all the documents of title mentioned in sect. 1 of the Factors Act, 1889, on the same footing as bills of lading for the purposes of that Act. As regards bills of lading the law appears to be as follows : — (1.) That as between buyer and seller, that is to say, the immediate parties to the contract, the indorsement of the bill of lading does not affect the right of stoppage, nor does a further indorsement by the buyer affect the right unless the indorsement be for value, 1 but an antecedent debt may constitute such value. 2 (2.) That if the holder of the bill of lading re-sells the goods or otherwise disposes of them for value to a third person, who pays the money, such third person acquires his interest in the goods, subject to the original seller's right of stoppage in transitu, unless he gets a transfer of the bill of lading. 3 • (3.) That since the Bills of Lading Act, 1855, as well as before, a bill of lading may be indorsed by way of mortgage, pledge, or other security, and not by way of absolute sale. 4 Where a bill of lading is so transferred, the original seller retains his right of stoppage subject to rights of the incumbrancer, and, further, he may compel the in- cumbrancer to resort to other goods pledged with him by his debtor, 1 Liclcbarrow v. Mason (1793), 1 Smith, L. C, 9th ed„ p. 737. 8 Leask v. Scott (1877), 2 Q. B. D. 376 C. A., dissenting from . Coavptoir oVEscompte (1869), L. E. 2 P. C. 393. 3 Kemp v. Falk (1882), 7 App. Cas. 573, see at p. 582, per. Lord, Black- burn. 4 Sewell v. Burdich (1884), 10 App. Cas. 74. 72 SALE OF GOODS. Sect. 49. Sub-sale by buyer. Sale not generally rescinded by lien or stoppage in transitu. if such there be, before resorting to the goods covered by the bill of lading. 1 (4.) That the right of stoppage in transitu is wholly defeated when the bill of lading is assigned absolutely for a consideration which is wholly paid. 2 (5.) That when the bill of lading is transferred absolutely and for value, but that value is wholly or in part unpaid, there may perhaps be a right to stop to the extent of the money which is unpaid. In Ex p. Qolding Davis & Co., the buyer re-sold the goods and became insolvent ; the bill of lading was made out in the name of the sub- purchaser but not delivered to him, and when the goods were stopped he had not paid the price. It was held, that the original seller was entitled to stop the goods for the original purchase money. Cotton, L.J., said that the case must be decided "as if the bill of lading had been made out in the name of the original purchasers and had then been assigned by them to their sub-purchasers." s The decision was followed a few months afterwards in Ex p. Folk, and Lord Bramwell referring to the cases where bills of lading had been pledged, said, " What difference is there in principle between the case of a man selling goods on credit for £500 and their being resold for £600, and the case of the purchaser pledging the goods for £600 with a right of sale by the pledgee ? " 4 But when Ex p. Falh was taken to the House of Lords it was found to turn on wholly different con- siderations. Lord Selborne seemed to doubt the rule laid down in Ex p. Qolding Davis & Co., saying he assented to " the proposition that where the sub-purchasers get a good title as against the right of stoppage in transitu, there can be no stoppage in transitu as against the purchase money payable by them to their vendor." The other lords declined to give any opinion on the point. 6 As to bills of lading see further the Bills of Lading Act, 1855, and notes thereto, post, p. 125. 50. — (1.) Subject to the provisions of this section, a contract of sale is not rescinded by the mere exercise by 1 Re Westzinthus (1833), 5 B. & Ad. 817 ; Spalding v. Ruding (1843), 12 L. J. Oh. 503 ; 6 Beav. 376 ; approved Kemp v. Folk, supra ; of. Coventry v. Gladstone (1868), L. E. 6 Eq. 44. 2 IAckbarrow v. Mason (1793), 1 Smith Lead. Cas., 9th ed., p. 737 ; Leask v. Scott (1877), 2 Q. B. D. 376, O. A. 3 Ex p. Golding Davis & Co. (1880), 13 Ch. D. 628, at p. 637, C. A. 4 Ex p. Falk (1880), 14 Ch. D. 446, at p. 457, C. A. 5 Kemp. v. Falk (1882), 7 App. Cas, 573, at p. 577. RE-SALE BY BUYER OR SELLER. 73 an unpaid seller of his right of lien or stoppage in Sect. 50. transitu. 1 (2.) Where an unpaid seller who has exercised his right of lien or stoppage in transitu re-sells the goods, the buyer acquires a good title thereto as against the original buyer. 2 (3.) Where the goods are of a perishable nature, 3 or where the unpaid seller gives notice to the buyer of his intention to re-sell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may re-sell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract. 4 (4.) Where the seller expressly reserves a right of re-sale in case the buyer should make default, and, on the buyer making default, re-sells the goods, the original contract of sale is thereby rescinded, but without pre- judice to the seller's claim for damages. 6 As long as the buyer is in default he is not entitled to the im- mediate possession of the goods, and therefore cannot maintain an action for conversion even against a wrong-doer in possession. 6 1 Greaves v. Ashlin (1813), 3 Camp. 425 ; Martindale v. Smith (1841), 1 Q. B. 389; Wentworth v. Outhwaite (1842), 10 M. & W. 436 (Lord Abinger dissenting) ; Page v. Cowasjee (1866), L. R. 1 P. C, at p. 145 ; Schotsmans v. Lane. & Yorks. Railway (1867), L. R. 2 Ch. App., at p. 340, per Lord Cairns ; Kemp v. Folk (1882), 7 App. Cas., at p. 581, per Lord Blackburn. 1 Milgate v. Keblle (1841), 3 M. & Gr. 100; cf. Lord v. Price (1874), L. R. 9 Ex. 54; and see now sect. 8 of the Factors Act, 1889. ' Notes to Lickbarrow v. Mason, 1 Smith, Lead. Cas., 9th ed., p. 798 ; cf. Maclean v. Dunn (1828), 4 Bing. 722, at p. 728, where there had been a refusal to accept. ' Page v. Cowasjee (1866), L. R. 1 P. C, at p. 145; Lord v. Price (1874), L. R. 9 Ex., at p. 55 ; Ex p. Stapleton (1879), 10 Ch. D. 586, C. A. ; Indian Contract Act, 1872 r § 107. 5 Lamond v. Davall (1847), 9 Q. B. 1030, 16 L. J. Q. B. 136. a Lord v. Price (1874), L. R. 9 Ex. 54. 74 BALE, OF GOODS. Sect. 50. The action of the seller in re-selling would probably be judged by a different standard according as the defaulting buyer was solvent or seller insolvent. In Ex p. Stapleton, it was said that when the buyer was insolvent the seller might re-sell unless the trustee or a sub-purchaser tendered the price within a reasonable time, and nothing was said about notice. But as a fact the seller in that case gave fair notice of his intention to re-sell. 1 Before the Factors Act, 1877, if the seller wrongfully re-sold goods left in his possession, the original buyer could follow them into the hands of an innocent purchaser, 2 but that Act protected the purchaser where the seller was left in possession of the documents of title, and sect. 8 of the Factors Act, 1889, post, p. 106, protects the second purchaser if either the goods themselves or the documents of title to them are left in the seller's hands, thus assimilating the law of England to that of Scotland, where the property in the goods does not, pass till delivery, see ante, p. 27. 1 Ex p. Stapleton (1879), 10 Ch. D. 586, C. A. 2 Langton v. Higgins (1859), 28 L. J. Ex. 252 ; Johnson v. Credit Lyonnais (1877), 3 C. P. D. 32. ( 75 ) PAET V. Actions foe Bkeach of the Contract. Bemedies of the Seller. 51. — (1.) Where, under a contract of sale, the Action for property in the goods has passed to the buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may maintain an action against him for the price of the goods. 1 (2.) Where, under a contract of sale, the price is payable on a day certain irrespective of delivery, and the buyer wrongfully neglects or refuses to pay such price, the seller may maintain an action for the price, although the property in the goods has not passed, and the goods have not been appropriated to the contract. 2 The rule of English law is that, in the absence of any different agreement, when a debt becomes due, it is the duty of the debtor to go and tender the amount to his creditor without waiting for any demand. 3 Before the Judicature Acts the price of goods sold could be recovered under the common indebitatus counts. The count for goods sold and delivered was applicable where the property had passed and the goods had been delivered to the buyer, and the price was payable at the time of action brought. The count for goods bargained and sold was applicable when the property had passed to the buyer and the contract had been completed in all respects except delivery, and the 1 Santt v. England (1844), 2 D. & L. 520 ; cf. Kymer v. Suwercropp (1807), 1 Camp. 109 (goods stopped in transitu) ; Alexander v. Gardner (1835), 1 Bing. N. 0. 671 (goods lost at sea). 2 Dunlop v. Grote (1845), 2 C. & K. 153 ; Mayne on Damages, 4th ed., p. 167. 3 Cf. Walton v. Mascall (1844), 13 M. & W., at p. 458; Fessard v. Mugnier (1865), 34 L. J. C. P. 126. 76 SALE OF GOODS. Sect. 51. delivery was not a condition precedent to the payment of the price.' Now it is sufficient to shew facts disclosing either cause of action. The term " sale " includes both a bargain and sale and a sale and delivery. The neglect or refusal to pay must be wrongful. It does not necessarily follow that because the property has passed the price is forthwith payable. The sale may have been on credit, or payment may be made to depend on some specified contingency. 2 Where there is an agreement for payment of the price by a bill payable at a future day, and the bill is not given, the seller cannot sue for the price till the bill would have matured. His remedy before that time is by action for damages for breach of the agreement. 3 The general rule of English law is that damages for the detention of a debt are merely nominal, and that in an action for the price of goods sold interest is not recoverable. 4 Interest is only recoverable when there was an agreement for payment of interest, or where the debt was to be paid by a negotiable instrument, or under the special circumstances which give the jury or other tribunal a discretion under the 3 & 4 Will. 4, c. 42, s. 28. 6 In Scotland it seems " the seller may sue the purchaser for the price and interest, whether the goods sold are specific or not, provided goods according to the contract have been tendered to the purchaser." 6 Damages 52. — (1.) When the buyer wrongfully neglects or acceptance, refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non- acceptance.' (2.) The measure of [general] damages is the estimated loss directly and naturally resulting from the buyer's breach of contract in the ordinary course of events. 8 1 Bullen & Leake's Free, of Pleading, 3rd ed., pp. 38, 39. 3 Cf. Calcutta Co. v. Be Mattos (1863), 32 L. J. Q. B., at p. 328. * Paul v. Dod (1846), 2 0. B. 800 ; but see Bartholomew v. Marhwich (1863), 33 L. J. C. P. 145, where there was a repudiation of the contract. * Gordon v. Swan (1810), 2 Camp. 429. s Mayne on Damages, 4th ed., p. 146 ; Buncombe- v. Brighton Club (1875), L. B. 10 Q. B. 371. 6 Mercantile Law Commission, 1855, Second Report, p. 47. 7 See Bullen & Leake's Prec. of Pleading, 3rd ed., p. 239 ; Graves v. Legg (1854), 9 Exch. 709. 8 Cort v. Ambergate Railway (1851), 17 Q. B. 127 ; Mayne on Damages, 4th ed., p. 10. REMEDIES OF TEE BUYER. 77 (3.) Where there is an available market for the goods Sect. 52. in question 1 the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price at the time or times 2 when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept. 3 See note to sect. 53 as to non-delivery, and sect. 57 as to special damage. Subject to the special case mentioned in sect. 51 (2), where the property in the goods has not passed to the buyer, the seller's only remedy is an action for non-acceptance. 4 Where the property has passed he may sue, either for the price 5 or for damages for non- acceptance. As to damages for delay in taking delivery, see sect. 40, ante, p. 55. In some cases where the seller has re-sold, the re-sale price has been assumed to be the correct measure of damages. 6 Remedies of the Buyer. 53. — (1.) Where the seller wrongfully neglects or Damages refuses to deliver the goods to the buyer, the buyer may delivery. maintain an action against the seller for damages for non-delivery. 7 1 As to what is a market, see per James, L.J., Dunkirk Colliery v. Lever (1878), 9 Oh. D., at p. 25, A. 2 Of. Brownv. Muller (1872), L. E. 7 Ex. 319 ; Roper v. Johnson (1873), L. B. 8 C. P. 167, as to non-delivery; Mayne on Damages, 4th ed., p. 162. 3 Phillpotts v. Evans (1839), 5 M. & W. 475 ; Barrow v. Arnaud (1846), 8 Q. B. 595, at p. 609, Ex. Oh. ; ef. Ex p. Stapleton (1879J, 10 Oh. D., at p. 590, C. A. 4 Of. Laird v. Pirn (1841), 7 M. & W. 478. 5 Unless he has re-sold, in which case he must sue for damages, Lomond v. DavaU (1847), 9 Q. B. 1030. 6 Maclean v. Dunn (1828), 4 Bing. 722; Ex p. Stapleton (1879), 10 Ch. D. 586, C. A. 7 Bullen & Leake's Free, of Pleading, 3rd ed., p. 241 ; Ramsden v. Gray (1849), 7 C. B. 961 ; ef. Jones v. Gibbons (1853), 8 Exch. 920 (not deliver- ing goods agreed to be delivered " as required ") ; Lewis v. Clifton (1854), 14 0. B. 245 (refusal to permit growing timber, which had been sold by auction, to be carried away). 78 SALE OF GOODS. Sect. 53. (2.) The measure of [general] damages is the estimated Damages loss directly and naturally resulting from the seller's delivery breach of contract in the- ordinary course of events. 1 (3.) Where there is an available market for the goods in question 2 the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time 3 or times when they ought to have been delivered, 4 or, if no time was fixed, then at the time of the refusal to deliver. 5 The rules laid down in Hadley v. JBaxendale 6 are rules of general application. The measure of general or ordinary damages is the estimated loss directly and naturally resulting from the breach of contract, for those are the damages which a reasonable man could contemplate as the likely result of the breach if he directed his mind to it. The rule as to special damage depends on a similar principle. A party cannot be charged with special damages, unless, when he entered into the contract, he had notice of the special circumstances which made the special loss the likely result of the breach in the ordinary course of things. It has been objected to this rule that, when parties enter into a contract, they contemplate its performance and not its breach; but the answer is that the standard of the law is always an objective one. The question is not what the particular parties had actually in contemplation, but what a reasonable man with their knowledge would have contemplated as the likely result if 1 Smeed v. Foord (1859), 28 L. J. Q. B. 178 (non-delivery of machine) ; Ch-ebert-Borgnis v. Nugent (1885), 15 Q. B. D. 85, C. A. (specially manu- factured goods); cf. Hammond v. Bussey (1887), 20 Q. B. D., at p. 93, C. A. 2 As to what constitutes an available market, see Dunkirk Colliery v. Lever (1878), 9 Ch. D., at p. 25, C. A. 3 Mayne on Damages, 4th ed , p. 167 ; Leigh v. Paterson (1818), 8 Taunt. 540 ; Hinde v. Liddell (1875), L. B. 10 Q. B. 265. 4 As to instalment deliveries, see Brown v. Muller (1872), L. B. 7 Ex. 319 ; Boper v. Johnson (1873), L. E. 8 C. P. 167 ; cf. Bergheim v. Blaen- avon Co. (1875), L. B. 10 Q. B. 319. 6 Mayne on Damages, 4th ed., p. 169; Shaw v. Holland (1816), 15 M. & W. 136, 146. e Hadley v. Baxendale (1854;, 9 Exch. 341, 354; 2 Smith Lead. Cas., 9th ed., p. 594. REMEDIES OF TEE BUYER. 79 he had directed Ins attention to it. 1 As to special damages, see further Sect. 53. note to sect. 57, post, p. 85. The rule as to market price is clearly a deduction from the more f n ' ^_ general rule in Hadley v. Baxendale. " When a contract to deliver delivery, goods is broken,'' says Tindal, C.J., " the proper measure of damages in general is the difference between the contract price and the market price of such goods at the time when the contract is broken, because the purchaser having the money in his hands may go into the market and buy. So, if a contract to accept and pay for goods is broken, the same rule may be properly applied, for the seller may take his goods into the market and obtain the currrent price for them." 2 Hence, if in an action for non-delivery no difference between the contract price and market price is shewn, the plaintiff in general is only entitled to nominal damages. 3 The rule is so convenient and obvious that the English Courts apply it whenever possible, even where it produces hardship in indi- vidual cases. 4 In Scotland the rule is not nearly so strictly applied. 6 But there are many cases in which the rule of market price is inapplicable. If it is partially applicable it will be applied with the necessary modifications, thus — (1.) The buyer may have prepaid the price. In that case he is probably entitled to recover the full market price of the goods on the day when they ought to have been delivered, together with interest on the money he has been kept out of. 6 (2.) The exact sort of goods the huyer has contracted for may not . be obtainable, but if it is reasonable for him to buy in similar goods he may charge the seller with the difference in price. 7 (3.) The seller may have repudiated his contract before the time for delivery arrives. In such case the buyer may either hold him to his contract and wait till the appointed time, or he may treat the contract 1 Cf. Cory v. Thames Iron Works Co. (1868), L. E. 3 Q. B. 181, and Hammond v. Bussey (1887), 20 Q. B. D., at p. 100, 0. A. 2 Barrow v. Arnaud (1846), 8 Q. B., at p. 609, Ex. Oh. 3 Valpy v. Oakeley (1851), 16 Q. B. 941. 4 Brady v. Oastler (1864), 33 L. J. Ex. 300 (special price for early delivery); Williams v. Reynolds (1865), 34 L. J. Q. B. 221 (profit on re-sale excluded) ; Thol v. Henderson (1881), 8 Q. B. D. 457 (sub-contract by buyer). 5 Dunlop v. Higgins (1848), 1 H. of L. Cas. 381 ; see at p. 403. " Startup v. Cortazzi (1835), 2 C. M. & K. 165; ef. Barrow v. Arnaud (1846), 8 Q. B., at p. 610; and see Mayne on Damages, 4th ed., p. 175. ' Hinde v. LiddeJl (1875), L. B. 10 Q. B. 265. 80 SALE OF GOODS. Sect. 53. Delay in delivery. Trover or detinue. as rescinded and sue at once. In the latter case regard is still to be had to the market price at the agreed time, hut it seems that the seller may give evidence in mitigation of damage if the buyer's conduct has been unreasonable. 1 (4.) The time for delivery may have been extended at the seller's request. In that case the extended time will be taken as the contract time. 2 Again the market price test may be wholly inapplicable, and then recourse must be had to the wider general principle of Hadley v. Baxendale. This is the case where there is no market for the goods in question at the time and place appointed for delivery, 3 as where the buyer has ordered some special article or articles to be expressly manufactured for him. Each case then turns on its particular circumstances, and is usually complicated by questions of special damage. 4 A similar rule applies to damages for delay, when goods of a particular description are ordered, and are ultimately accepted after the delay, 6 there being perhaps a prima facie rule that the damage is the difference between " the value of the article contracted for at the time when it ought to have been and the time when it actually was delivered." 6 54. Subject to the provisions of sects. 24 to 29 and 42 of the Factors Act, 1889,' where, under a contract of sale,, the property in the goods has passed to the buyer, and 1 Roper v. Johnson (1873), L. E. 8 0. P. 167, see at p. 181 ; Mayne on Damages, 4th ed., p. 164. 2 Ogle v. Earl Vane (1868), L. E. 3 Q. B. 272 (non-delivery), Ex. Ch. ; Hickman v. Haynes (1875), L. E. 10 C. P. 598 (non-acceptance) ; cf. Tyers v. Hosedale Co. (1875), L. E. 10 Ex. 195, Ex. Oh. 3 Elbinger Actien Gesellschaft v. Armstrong (1874), L. E. 9 Q. B., at p. 476. 4 Hydraulic Co. v. McHaffie (1878), 4 Q. B. D. 670, C. A. (machine ordered " as soon as possible ") ; Gre~bert Sorgnis v. Nugent (1885), 15 Q. B. D. 85, C. A. (goods made to order). 5 Smeed v. Foord (1859), 28 L. J. Q. B. 178 (steam thrashing-machine) ; Cory v. Thames Iron Works Co. (1868), L. E. 3 Q. B. 181 (steam derrick). As to damages against a carrier for delay in delivering ordinary goods of commerce, see The Parana (1877), 2 P. D. 118, at 122, p. O. A. 6 Elbinger Actien Gesellsehaft v. Armstrong (1874), L. E. 9 Q. B., at p. 477, per Blackburn, J. ' See Part IV., ante, pp. 56 to 74, as to seller's lien and stoppage in transitu, and note on p. 74 as to re-sale, and the Factors Act, post, p. 97. REMEDIES OF TEE BUYER. 81 the seller wrongfully neglects or refuses to deliver the Sect. 54. goods, the buyer may maintain an action for damages for detention of the goods against the seller or any other person in possession of the goods, or an action for the con- version of the goods against the seller or any other person who has dealt with the goods under such circumstances as to amount to a conversion thereof. 1 As between seller and buyer the buyer cannot recover larger damages by suing in tort instead of in contract. Thus if he has not paid the price he can only recover the difference between the contract price and the value of the goods. 2 As regards third parties the ordinary measure of damages for con- version is the value of the goods at the time of the wrongful act. 8 When a man has sold goods to one person, a mere contract to] sell them to another is not a conversion 4 but a delivery of them in pursuance of that contract is a conversion, 5 unless at the time of resale the original buyer was in default as regards paying the price. 6 Ordinarily a person who buys and receives goods which the seller had no right to sell is guilty of a conversion, however innocently he may have acted, 7 but from the 1st January, 1890, his liability will be much restricted by sects. 8 and 9 of the Factors Act, 1889, post, p. 106. 55. In any action for breach of contract to deliver Specific specific goods for a price in money, on application of the ance°™"y plaintiff and by leave of the judge before whom the n 9 d &' 2 e o d ' action is tried, the jury shall, if thev find the plaintiff Vict. c. 97. s. 2, post, ■ p. 130.] 1 As to detinue, see Bullen & Leake's Pree. of Pleading, 3rd ed., p. 311 ; Langton v. Biggins (1859), 28 L. J. Ex. 252. As to conversion or trover, ibid, p. 290 ; also Eollins v. Fowler (1875), L. E. 7 H. L. 757. 2 Chinery v. Viall (1860), 29 L. J. Ex. 180 ; cf Johnson v. Stear (1863), 33 L. J. C. P. 130 ; Hiort v. L. Sf N. W. Railway (1879), 4 Ex. D. 188, C. A. AUUr if perhaps the seller wrongfully retake the goods after delivery, Gillard v. Brittan (1841), 8 M. & W. 575; but see Johnson v. Lancashire Railway (1878), 3 C. P. D., at p. 507. 3 Ibid, and France v. Gaudet (1871), L. B. 6 Q. B. 199. 1 Lancashire Wagon Co. v. Fitzhugh (1861), 30 L. J. Ex. 231. 5 Ibid. ; cf. Cooper v. Willomatt (1845), 1 C. B. 672. 6 Milgate v. Kebble (1841), 3 M. & Gr. 100. ' Cooper v. Willomatt (1815), 1 C. B. 672; Ililbery v. Batton (1864), 33 L. J. Ex. 190. G 82 SALE OF GOODS. Sect - 55, entitled to recover, find by their verdict (or if there be Specific no jury then the judge shall find) what are the goods in ance. respect of the non-delivery of which the plaintiff is entitled to recover and which remain undelivered; what, if any, is the sum which the plaintiff would have been liable to pay for the delivery thereof ; what damages, if any, the plaintiff would have sustained if the goods should be delivered under execution as hereinafter mentioned ; and what damages if not so delivered ; and thereupon if judgment shall be given for the plaintiff, the judge in his discretion, on the application of the plaintiff, shall have power to order execution to issue for the delivery, on payment of such sum if any as shall have been found to be payable by the plaintiff as afore- said, of the said goods without giving the defendant the option of retaining the same upon paying the damages assessed. For the purposes of this section " plaintiff" includes a defendant who counterclaims for delivery of the goods. This section reproduces sect. 2 of the Mercantile Law Amendment Act, 1856, post, p. 130, as modified by the Judicature Acts and Rules which enable a judge to try a case without a jury and give a defendant the right to claim any relief by counter claim which he could have sought if he had brought an independent action. The concluding paragraph, which is not reproduced, seems superseded by E. S. C. Or. xlviii. It extends the provisions of sect. 78 of the Common Law Pro- cedure Act, 1854 (17 & 18 Vict. c. 125) which enabled the Court in an action of detinue, to order that execution should issue for the return of the chattel detained without giving the defendant the option of retaining the chattel upon paying the value assessed. The enact- ment seems to have been passed to carry out the recommendation of the Mercantile Law Commission, 1855, and to assimilate English to scotch law in this respect. 1 • Mercantile Law Commission (1855), Second Report, p. 10. REMEDIES OF THE BUYER. 83 56. — (1.) Where, under a contract of sale, there is a Sect. 5o. warranty of the quality, fitness, or condition of the Breach of goods, and the goods do not fulfil the warranty, the " f a "ahv buyer may reject the goods, unless he has accepted fitness, or them, or unless the contract was for the sale of specific goods, and the property in the goods has passed to the buyer. 1 (2.) Where the buyer has accepted the goods, or where the contract was for the sale of specific goods and the property therein has passed to the buyer, the buyer is not entitled to reject the goods 2 unless there was an express stipulation in the contract to that effect; 3 but he may (a.) set up against the seller the breach of warranty in diminution or extinction of the price ; 4 or (&.) maintain an action against the seller for damages for the breach of warranty. 6 (3.) The measure of [general] damages for breach of 1 Benjamin on Sale, 4th ed., p. 936 ; Syers v. Jonas (1848), 2 Excb., at p. 117; Dawson v. Collis (1851), 10 C. B. 523, at p. 533; Behn v. Burness (1863), 32 L. J. Q. B., at p. 206, Ex. Oh. ; Heilbutt v. Hichson (1872), L. R. 7 0. P. 438, at p. 451. 2 Ibid, and Street v. Blay (1831), 2 B. & Ad. 456, at p. 463; Gompertz v. Denton (1832), 1 Or. &M. 207; Parsons v. Sexton (1847), 4 C. B. 899; Couston v. Chapman (1872), L. R. 2 So. App., at p. 254. Aliter, of course, if the warranty be fraudulent, Murray v. Mann (1848), 2 Exch. 538. 3 Bannerman v. White (1861), 31 L. J. C. P. 28 ; cf. Behn v. Burness (1863), 32 L. J. Q. B„ at p. 206, Ex. Oh. ; Heilbutt v. Hicleson (1872), L. E. 7 C. P. 438. 4 Mayne on Damages, 4th ed., p. 105. As to reduction, see Street v. Blay (1831), 2 B. & Ad. 456 ; Allen v. Cameron (1833), 1 Cr. & M., at p. 840 ; Mondel v. Steel (1841), 8 M. & W. 858, at p. 870. As to extinction, see Poulton v. Lattimore (1829), 9 B. & 0. 259. 6 Bullen & Leake's Free, of Pleading, 3rd ed., p. 264. The buyer, if sued for the price, is not bound to set up the breach of warranty. He may pay in full, and then sue. Davis v. Hedges (1871), L. R. 6 Q. B. 687. G 2 84 SALE OF GOODS. Sect. 56. warranty of fitness, quality, or condition is the estimated Breach of loss directly resulting from the breach of warranty. 1 warranty. j n ^ cage Q f fogg^ f warran ty of quality or con- dition such loss is prima facie the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty. 2 (4.) The fact that the buyer has set up the breach of warranty in diminution or extinction 6f the price does not prevent him from maintaining an action for the same breach of warranty if he has suffered special See warranty defined, post, p. 94 ; as to express warranties, see ante, p. 14, and post, p. 140 ; and as to the so-called implied warranties, ante, pp. 20-25. In Heyworth v. Hutchinson, which was a case where specific goods to arrive by ship were guaranteed " about equal to sample," there are dicta to the effect that, where the contract is for specific goods, the buyer has no right of rejection for breach of warranty ; but, as Mr. Benjamin contends, the great weight of authority supports the proposition stated in the text.* It is only when the property has passed that the buyer is deprived of his right of rejection, for the breach of warranty does not then ex post facto revest the property without a condition to that effect. See the point further discussed, ante, p. 25. When the buyer is entitled to reject the goods, and does so, he can recover the price if he has paid it for the consideration for its payment has wholly failed. 6 Then arises the question what further com- 1 Randall v. Boper (1858), 27 L. J. Q. B. 266 (seed barley of inferior quality) ; Smith v. Green (1875), 1 C. P. D. 92 (cow with foot and mouth disease) ; Randall v. Newson (1877), 2 Q. B. D. 102, C. A., at p. Ill (defec- tive carriage-pole specially made for carriage) ; Hammond v. Bussey (1887), 20 Q. B. D. 79, C. A. (ship coal of particular quality — special damage). 2 Mayne on Damages, 4th ed., p. 180 ; Loder v. Kehule (1857), 27 L. J. C. P. 27 ; Jones v. Just (1868), L. E. 3 Q. B. 197; cf. Heilbutt v. Hiclcson (1872), L. E. 7 O. P., at p. 453. 3 Mayne on Damages, 4th ed., p. 182 ; Mondel v. Steel (1841), 8 M. & W. 858 ; cf. Eigge v. Burbidge (1846), 15 M. & W. 598. 4 Heyworth v. Hutchinson (1867), L. E. 2 Q. B. 447 ; Benjamin on Sale, 4th ed., p. 936. 5 Mayne on Damages, 4th ed., p. 180. SPECIAL DAMAGES. 85 pensation, if any, is he entitled to? When he rejects the goods the Sect. 56. warranty is treated as a condition precedent, and the position seems to be this. He has contracted for the supply of certain goods, and those goods have never been supplied to him. The seller, therefore, has failed in his obligation to deliver, and whatever damages would be recoverable in an action for non-delivery should on principle be re- coverable in this case. 1 In a recent case, where a horse, sold with a warranty, was killed, by no fault of the buyer, before the time for return had elapsed, it was held that the buyer could sue for breach of warranty, though he could not return the horse. 2 Where an affirmation, which might be treated as a warranty, is made fraudulently, the buyer's powers are larger. In the first place, he may retain the goods and sue for damages ; and secondly, if he can restore the goods unaltered, he may rescind the contract. 3 57. Nothing in the foregoing provisions shall be interest deemed to affect the right of the buyer or the seller to damages'* recover interest or special damages in any case when by law interest or special damages may be recoverable, or to recover money paid where the consideration for the payment of it has failed. As to interest, see note to sect. 51, ante, p. 76. As regards special damages there are no rules peculiar to the contract of sale. Each case must be determined on its own merits, according to the general rule that, when a contract is entered into by the parties with knowledge that there are special circumstances attaching to it, which, in the ordinary course of things, would produce special loss if the contract were broken, the law implies a liability to pay damages for such special loss. " We must follow out the rule," says Cotton, L. J., in_an action for non-delivery of a gun, " that the plaintiffs are only to have the damages which are the ordinary and natural consequences of the breach ; but this rule is subject to the limitation, that where the breach has occasioned a special loss which was actually in contemplation of the parties at the time of entering 1 See Bridge v. Wain (1816), 1 Stark. 504, as commented on in EWinger Aetien GeseUschaft v. Armstrong (1874), L. K. 9 Q. B., at p. 476, where this position seems to be assumed. 2 Chapman v. Withers (1888), 20 Q. B. D. 824. 3 Holdsworth v. Glasgow Bank (1880), 5 App. Oas. 317, at pp. 323, 338 (distinguishing goods from shares). 86 SALE OF GOODS. Sect. 57. into the contract, that special loss, happening subsequently to the — — breach, must be taken into account." x In a later case, where the action damage was Drou g Qt f° r breach of warranty, Fry, L.J., suggests four tests for and failure determining whether the damages claimed are recoverable. (1.) What of conside- are fag damages which actually resulted from the breach of contract? (2.) Was the contract made under any special circumstances, and, if so, what were those circumstances ? (3.) What, at the time of making the contract, was the common knowledge of both parties? (4.) What may the Court reasonably suppose to have been in the contemplation of the parties as a probable result of the breach of the contract, assuming the parties to have applied their minds to the contingency of there being such a breach ? 2 The liability to pay damages for breach of contract is an obligation annexed by law independently of the volition of the parties, and the criterion is necessarily an objective one. What the parties themselves may have contemplated is immaterial. The question is what a reasonable man with their common knowledge would contemplate as a probable consequence of the breach if he applied his mind to it. The same result will be arrived at if the supposed contemplation of the parties be wholly eliminated. Given a contract made without any special circumstances, then the measure of ordinary damages is the loss which naturally arises from the breach of such a contract. Given a contract made under special circumstances to the knowledge of both parties, then the special damages are those which naturally arise from a breach of such a contract under the particular circumstances. As to failure of consideration also, there is nothing peculiar to the contract of sale. Money paid on a consideration which has failed can usually be recovered as money bad and received. 3 1 Mydraulia Engineering Co. v. McHaffie (1878), 4 Q. B. D., at p. 677, C. A. (gun ordered to fulfil sub-contract) ; cf. Grebert v. Nugent (1885) 15 Q. B. D. 85, C. A. (goods ordered for French sub-contract). * Hammond v. Bussey (1887), 20 Q. B. D., at p. 100, C. A. (breach of warranty and sub-sale with similar warranty, costs of action reasonably defended). 3 See Bullen & Leahe's Free, of Pleadings, 3rd ed., pp. 48, 49, and cases there collected. C 87 ) PAET VI. Supplementary. 58. — (1.) Where the consideration for the transfer of (Sect. 58. the property in goods from one person to another C on"toTt of consists of other goods the contract is called a contract e * chan g e ° of goods. of exchange of goods. 1 (2.) If the consideration for such transfer consists partly of goods and partly of money the contract is deemed to be a contract of sale and not a contract of exchange of goods. 2 (3.) Except as otherwise provided by statute, the pro- visions of this Digest relating to contracts of sale, apply, with any necessary modifications, to contracts of ex- change of goods. 3 It seems clear that when a statute refers in terms to a contract of sale, as the Statute of Frauds does, it has no application to contracts of exchange. By sect. 5 of the Factors Act, 1889 (52 & 53 Vict. c. 45), post, p. 104. " The consideration necessary for the validity of a sale, pledge, or other ' Bullen & Leake's Prec. of Pleading, 3rd ed., p. 151 ; Harrison v. Luke (1845), 14 M. & W. 139 ; cf. Bead v. Hutchinson (1813), 3 Camp. 351 ; Parker v. Rawlins (1827), 4 Bing. 280 ; French Civil Code, art. 1702. 2 Sheldon v. Cox (1824), 3 B. & C. 420 (where the goods had been delivered, and the action was brought for the money balance) ; cf. Forsyth v. Jervis (1816), 1 Stark, 437 ; Bull v. Parlcer (1842), 12 L. J. Q. B. 93 ; Harman v. Reeve (1856), 25 L. J. C. P. 257. 3 Cf. Fairmaner v. Budd (1831), 7 Bing. 574 ; Bullen & Leake's Prec. of Pleadings, 3rd ed., p. 151 : Benjamin on Sale, 4th ed., p. 3 ; Emanuel v. Dane (1812), 3 Camp. 299 (warranty) ; La Neuville v. Nourse (1813), 3 Camp. 350 (caveat emptor) ; Pothier, Contrat de Vente, No. 620, citing the rule permutatio vicina est emptioni; French Civil Code, arta. 1702-1707. 88 SALE OF GOODS. Sect. 58. disposition of goods in pursuance of this Act may be either a payment in cash or the delivery or transfer of other goods, or of a document of title to goods or of a negotiable security or any other valuable con- sideration ; but when goods are pledged by a mercantile agent in consideration of the delivery or transfer of other goods, or of a document of title to goods, or of a negotiable security, the pledgee shall acquire no right or interest in the goods so pledged in excess of the value of the goods, documents, or security, when so delivered or transferred in exchange.'' The distinclion between sale and exchange seems an universal one. Its effects in Prance are discussed by Pothier and by arts. 1702-1707 of the French Civil Code. " It is important," says Mr. Moyle, speaking of Roman law, " to distinguish between sale (emptio-venditio) and exchange (permu- tatio), for they belong to different classes of contract, and their re- spective vinculo, juris are imposed by different causss. Permutatio is one of the innominate contracts ; there is no obligatio till one of the two exchanging parties has done what he has promised; but in sale which is consensual, the obligatio is independent of part performance. It is not however necessary that the whole price shall be in money (Dig. 18, 1, 79); and if after the contract is concluded the vendor changes his mind and agrees to take goods in lieu of the purchase money, it remains sale and does not become exchange." * Auction 59. In the case of a sale by auction — (1.) Where goods are put up for sale by auction in lots, each lot is prima facie deemed to be the subject of a separate contract of sale ; 2 (2.) A sale by auction is deemed to be complete when the auctioneer announces its completion by the fall of the hammer, or in any other customary manner. Until such announcement is made any bidder may retract his bid ; 3 ' Moyle's Justinian, p. 420. By art. 1703 of the French Civil Code, the contract of exchange is made consensual like sale. 2 Emmerson v. Heelis (1809), 2 Taunt. 38 ; Roots v. Lord Dormer (1832), 4 B. & Ad. 77 ; of. Couston v. Chapman (1872), L. B. 2 So. App. 250 (a Scotch case). * Payne v. Cave (1789), 3 T. B. 148 ; Warlow v. Harrison (1858), 28 L. J. Q. B., at p. 21, per Lord Campbell. AUCTION SALES. 89 (3.) When a sale by auction is not notified to be Sect. 59. subject to a reserved price or right to bid on behalf [cf.3o&3t of the seller, it is not lawful for the seller to bid J'f;^ himself or to employ any person to bid at such sale, p- 132 J or for the auctioneer knowingly l to take any bid from the seller or any such person : Any sale con- travening this rule may be treated as fraudulent by the buyer. 2 (4.) A sale by auction may be subject to a reserved [Cf.3o&3i price, and a right to bid may also be reserved s ^'pg St ^' expressly by or on behalf of the seller. 3 P- 133 -] When a right to bid is expressly reserved, but not otherwise, the seller, or any one person on his behalf, may bid at the auction in such manner as he may think proper. 4 Formerly it seems to have been the rule in equity that, when a sale by auction was not expressly stated to be without reserve, the seller might employ one person to bid, so as to prevent the property going at an undervalue. The Sales of Land by Auction Act, 1867 (30 & 31 Vict. c. 48) was passed to abolish this rule. It first declares that any sale which would be invalid at common law by reason of the employ- ment of a puffer, shall be invalid in equity, and then proceeds to regulate sales at which a price is reserved or a right to bid is reserved, and in this it appears to go rather further than the common law rule. 5 The Act does not apply to the sale of goods by auction. 1 Mainprice v. Westley (1865), 34 L. J. Q. B. 229 ; of. 30 & 31 Vict. c. 48, s. 5. 2 Bexwell v. Christie (1776), Oowp. 395, per Lord Mansfield; Thornett v. Haines (1846), 15 M. & W. 367 ; Green v. BaverstocJe (1863), 32 L. J. C. P., 181 ; cf. Mortimer v. Bell (1865), L. E. 1 Ch. App., at p. 13. As to fictitious bids by person interested in the sale, but not the seller, see Union Bank v. Munster (1887), 37 Ch. D. 51, and the rule of Boman law, AUerius cir- cumventio alio non prsebet actionem. 3 Ibid. ; and see Howard v. Castle (1796), 6 T. B., at p. 645, per Grose, J. 4 Thornett v. Haines (1846), 15 M. & W., at p. 372; Mortimer v. Bell (1865), L. B. I Ch. App. 10 (where auctioneer and puffer both bid and sale was held void). 5 Parfitt v. Jepson (1877), 46 L. J. C. P. 529, at p. 533. 90 SALE OF GOODS. Sect. 59. Implied duties, &c, may be expressly excluded. Interpreta- tion of terms. Action. Buyer. Contract of sale. The common law rule is an ancient one, Tollendum est igitur ex rebus contrahendis omne mendacium, non licitatorem venditor, nee qui contra se liceatur emptor opponat. 1 An agreement for a " knock-out " seems to be a conspiracy at common law. 60. Where any right, duty, or obligation arises, under a contract of sale, by implication of law, it may be negatived or varied by express agreement, 2 or by usage, 3 if the usage be such as to bind both parties to the contract.* Speaking of a consignee's lien for advances, Lord Westbury says : " Lien is not the result of an express contract ; it is given by impli- cation of law. If, therefore, a mercantile transaction which might involve a lien is created by a written contract, and security given for the result of the dealings in that relation, the express stipulation and agreement of the parties for security exclude lien, and limit their rights by the extent of the express contract they have made Ex- pressum facit cessare taciturn." 5 61. — (1.) In this Digest, unless the context or subject- matter otherwise requires, — " Action " includes counterclaim and set-off. " Buyer " means a person who buys or agrees to buy goods. " Contract of sale " includes an agreement to sell as well as a sale. The term contract of sale, is used to include both executory and 1 Cicero, De Officiis, lib. 3, s. 15, cited in Warlow v. Harrison (1858), 28 L. J. Q. B. 19. 2 See note to sect. 11, ante, p. 13, and such cases as Calcutta Co. v. Be Mattos (1863) 32 L. J. Q. B. 322. 3 See notes to Wigglesworth v. Dallison, 1 Smith Lead. Cas., 9th ed., p. 569, where all the authorities are reviewed, and Jones v. Bowden (1813), 4 Taunt. 847 (usage to annex warranty) ; Syers v. Jonas (1848), 2 Exch. Ill (usage to sell by sample) ; Brown v. Byrne (1854), 3 E. & B. 703 (usage to deduct discount) ; Field v. Lelean (1861), 30 L. J. Ex. 168, Ex. Ch. (sale on credit; usage not to deliver till payment). 4 Robinson v. Mollett (1875), L. K. 7 H. L. 802. 5 lie Leith's Estate (1866), L. E. 1 P. O. 296, at p. 305 DEFINITIONS. 91 executed contracts of sale ; see for instance, as justifying this, the 17th Sect. 61. sect, of the Statute of Frauds. " Delivery " means voluntary transfer of possession De]iver „_ (actual or constructive) from one person to another. ^ C J'^ 5 & For rules as to delivery in contracts of sale, see sects. 32 to 37, ante, u - 61 - 5> 3 -] p. 47. Mr. Benjamin observes that the term " delivery " is used in different senses in the cases. It would perhaps be more correct to say that a delivery which is effectual for one purpose is ineffectual for other purposes. For instance, delivery to a carrier generally passes the property to the buyer but does not defeat the right of stoppage in transitu, while delivery by the carrier to the consignee does defeat that right. Sir F. Pollock defines delivery as " voluntary dispossession in favour of another," and proceeds to say that, " in all cases the essence of delivery is that the deliveror by some apt and manifest act puts the deliveree in the same position of control over the thing, either directly or through a custodian, which he himself held immediately before that act." * Delivery may be actual or constructive. Delivery is constructive when it is effected without any change in the actual possession of the thing delivered, as in the case of delivery by attornment or symbolic delivery. Delivery by attornment may take place in three classes of cases. First, the seller may be in possession of the goods, but after sale he may attorn to the buyer, and continue to hold the goods as his bailee. Secondly, the goods may be in the possession of the buyer before sale, but after sale he may hold them on his own account. Thirdly, the goods may be in the possession of a third person, as bailee for the seller. After sale such third person may attorn to the buyer and continue to hold them as his bailee. 2 Sir F. Pollock has carefully discussed the so-called " symbolic delivery" by giving the buyer the key of the place where the goods are stored. He shews that the key is not the symbol of the goods, but that the transaction " consists of such a transfer of control in fact as the nature of the case admits, and as will practically suffice for causing the new possessor to be recognised as such." 3 But the transfer of a bill of lading appears to afford a genuine instance of symbolic delivery. 4 While goods are at sea, they can only be dealt with on land through the instrumentality of the bill of lading Pollock ore Possession, pp. 43, 46. 2 Ibid., p. 72. 3 Ibid., p. 61. 4 Sanders v. Maclean (1883), 11 Q. B. D. 327, at p. 341. 92 SALE OF QOODS. Sect. 61. Future goods. Goods. which represents them. The transfer of the bill of lading has the same effect as a delivery of the goods themselves. Where goods are taken possession of by the buyer under a license to seize, the transaction is equivalent to a delivery by the seller, 1 and should perhaps be regarded as a case of actual delivery. A delivery by mistake may be inoperative. 2 ■ " Future' goods " mean goods to be manufactured or acquired by tbe seller after the making of the contract of sale. "Goods" include all chattels personal other than things in action and money. The term also includes emblements and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. The term " goods, wares, and merchandise " is used in the 17th sect. of the Statute of Frauds, and in the Stamp Act, 1870, but other statutes use simply the term " goods." The term applies to all " tangible moveable property." 3 Scrip and shares are things in action, and so of course are bills, notes, and cheques.* Most of the decisions have arisen on the construction of the Statute of Frauds, and the definition of goods has been somewhat artificially extended in order to bring contracts of sale within the 17th rather than the 4th sect, of the Act. Tenants' fixtures, unsevered, seem to fall neither within the 4th nor the 17th sects., 5 though the price of fixtures could be recovered on a count for fixtures sold and delivered. Emblements, or fructus industriales, are treated as goods, even though they are to derive benefit from the land after sale. 6 As regards fructus naturales, the question seems to turn on how 1 Ccmgreve v. Evetts (1854), 10 Exch. 298, at p. 308, per Parke, B. 2 Godts v. Rose (1855), 17 0. B. 229 ; Pollock on Possession, pp. 100-114. 3 Cf. Blaehurn on Sale, pp. 6 & 9. 4 Humble v. Mitchell (1839), 11 A. & B. 205 ; .Colonial Barilt v. Wiimey (1886), 11 App. Cas. 426. s Lee v. GaskeU (1876), 1 Q. B. D. 700. 6 Marshall v. Green (1875), 1 O. P. D. 35, at p. 42 ; Benjamin on Sale, 4th ed., p. 117. DEFINITIONS. 93 they are treated by the contract. If they are to be delivered by the Sect. 61. seller who is to sever them himself and deliver them, they are goods within the meaning of the 17th sect. If the buyer is to take them away " the question seems to be whether it can be gathered from the contract that they are iutended to remain in the land for the ad- vantage of the purchaser, and are to derive benefit from so remaining." If so, they come within the 4th sect. If not, and they are to be delivered immediately, even though the buyer is to enter and take them, they come within the 17th sect. 1 " Property " means the general property in goods, and Property. not merely a special property. The essence of sale is the transfer of the ownership or general property in goods from seller to buyer for a price. See " the " property, that is, the general property, distinguished from " a " property, that is, merely a special property by Bowen, L.J. 2 The general property in certain goods may be in one person, while a special property in them is in another person, as in the case of a pledge where the pledgee has only a special property, the general property remaining in the pledgor. 3 The general property in goods may be transferred to one person subject to a special property in another. 4 Again, the right of property in goods must be distinguished from the right to their present possession. The entire right of property may be in one person, while the right to possession may be in another, as in the case of a lien. 6 1 Marshall v. Green (1875), 1 C. P. D., at p. 42, per Brett, J. (growing timber). But see Lavery v. Fursell (188S), 39 Ch. D. 508, per Chitty, J., where there was a sale of the building materials of a house which were to be cleared away in two months. This was held to be an agreement within the 4th section. 2 Burdich v. Sewell (1884), 13 Q. B. D., at p. 175, 0. A., and 10 App. Cas., at p. 93. 3 Halliilay v. Holgate (1868), L. B. 3 Ex. 299, Ex. Ch. 4 Franklin v. Neate (1844), 13 M. & W. 481 ; Jenkyns v. Brown (1849), 14 Q. B. 496. See a lien distinguished from a pledge, Donald v. Suckling (1866), L. B. 1 Q. B., at p. 612; cf. Howes v. Ball (1827), 7 B. & C. 481 (hvpothecation) ; a pledge distinguished from a mortgage, Ex p. Hubbard (1886), 17 Q. B. D., at p. 698 ; Be Morritt (1886), 18 Q. B. D., at p. 232 ; a pledge distinguished from a sale, Sewell v. Burdich (1884), 10 App. Cas. 74. 5 Milliliter v. Florence (1878), 3 Q. B. D. 484, C. A; Blackburn on Salt, pp. 198, 316; Milgate v. Kebble (1841), 3 M. & Gr. 100; Pollock on Possession, p. 120. 94 SALE OF GOODS. Sect. 61. Thus, where there is a contract for the sale of specific goods for cash, the property passes by the contract, but the seller may retain the goods till the price is paid. Again, goods may be sold which are in the possession of a third person, such as a warehouseman, who has no property in the goods, but has a right to retain them till his charges are paid. Seller. " Seller " means a person who sells or agrees to sell goods. Specific « gp ec ifi c goods " mean goods identified and agreed upon at the time a contract of sale is made. Specific or individualised goods must be distinguished from general or unascertained goods. Where there is a contract for specific goods, the seller would not fulfil his contract by delivering any other goods than those agreed upon. When there is a contract for general goods the seller fulfils his contract by delivering at the appointed time any goods which answer to the description in the contract. It is clear that future goods, even though particularly described, do not come within the definition of specific goods, but for most purposes would be subject to the same considerations as general goods, ante, pp. 30, 31. The definition is only a prima facie one, because there may be a mixed case, namely, when there is a contract for the sale of au unascertained portion of a larger ascertained quantity of goods. Suppose a man having 100 dozen of a particular brand of champagne in his cellar, agrees to sell twenty dozen of the champagne of that brand " now in my cellar." For some purposes this would be regarded as a contract for specific goods, while for other purposes it would be regarded as a contract for the sale of unascertained goods. The property in the wine would not pass till the twenty dozen had been appropriated to the contract (ante, p. 29), but if the whole of the wine were destroyed the seller would be discharged from his obligation (ante, p. 11). " Warranty " means an agreement with reference to goods which are the subject of a contract of sale, but collateral to the main purpose of such contract. Sir W. Anson, in his work on contracts, has collected six different senses in which the term warranty is used in the cases, 1 but it is submitted that the definition given above is the most correct. Lord 1 Anson ore Contracts, 5th ed., p. 309. DEFINITIONS. 95 Abinger, protesting against a warranty being confused with a con- Sect. 61. dition, says, " a warranty is an express or implied statement of some things which the party undertakes shall be part of the contract, and though part of the contract yet collateral to the express object of it." 1 As a warranty in strictness is collateral to the main object of the contract, a breach of it only entitles the party aggrieved to com- pensation by way of damages and not to repudiate the contract. 2 But confusion arises in contracts of sale from two causes. First, when there is a breach of a condition precedent, and the party aggrieved has taken some benefit under the contract, the condition precedent loses its character as such and becomes a waranty. Secondly, the so-called implied warranties of quality, fitness, or condition are really conditions precedent, though they are always spoken of as warranties. They are only warranties when the contract is executed ; see sect. 56, ante, p. 83. The fact that one and the same stipulation is sometimes a condition and sometimes a warranty has given rise to much inaccurate language; and in dealing with the so-called implied warranties it is difficult to know how far their current description ought to be departed from. 3 (2.) A thing is deemed to be done in " good faith " Good faith. within the meaning of this Digest, when it is in fact done honestly, whether it be done negligently or not. 4 The House of Lords in Berry v. Peek 6 has exploded the notion of "legal fraud," and has established the principle that there is no tertium quid between good faith on the one hand, and bad faith or fraud on the other. (3.) A person is deemed to be insolvent within the insolvent. meaning of this Digest who either has ceased to pay his debts in the ordinary course of business, or cannot pay 1 Chanter v. Hopkins (1838), 4 M. & W. 399, at p. 404. See, too, Behn v. Burness (1863), 33 L. J. Q. B. 204, at p. 207 ; Beyworth v. Hutchinson (1867), L. E. 2 Q. B. 447. 2 Cf. Kennedy v. Panama Mail Co. (1867), L. E. 2 Q. B., at p. 587, and sects. 13 and 14, ante, pp. 14, 16. 3 See further, Notes to Cutter v. Powell, 2 Smith Lead. Cas., 9th ed., p. 31. 4 Taken from the 45 & 46 Vict. c. 61 (Bills of Exchange Act, 1882), s. 90; of. Jones v. Gordon (1877), 2 App. Oas. 616. s Derry v. Peele (1889), 14 App. Cas. 337. 96 SALE OF GOODS. Sect. 61. his debts as they become due, whether he has committed an act of bankruptcy or not. 1 By § 96 of the Indian Contract Act, 1872, " a person is insolvent who has ceased to pay his debts in the ordinary course of business, or who is incapable of paying them." 1 Benjamin on Sale, 4th ed., p. 851 ; Biddlecombe v. Bond (1835), 4 A. & E. 332 (a general inability to pay debts) ; Ex p. Carnforth Co. (1876), 4 Ch. D. 108, 0. A. ; see at p. 122 (an inability to pay avowed either in act or word, and a consequent intention on the part of the indebted com- pany not to pay their debts). ( 97 ) THE EACTOKS ACT, 1889. (52 & 53 Vict. o. 45.) An Act to amend and consolidate the Factors Acts. [26th August 1889.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same, as follows : [The Factors Act, 1889, which repeals the previous enactments dealing with similar subject matter, is a partial application to English law of the French maxim, " En fait de meubles possession vaut titre." The present Act is the result of a long struggle between the mercantile community on the one hand and the principles of common law on the other. The general rule of the common law was, Nemo dat quod non habet, 1 and it was held that the mere fact that a person was in possession of goods or documents of title to goods did not enable him to dispose of those goods in contravention of his instructions with respect to them. The merchants and bankers contended that, in the interests of commerce, if a person was put or left in the possession of goods or documents of title, he ought, as regards innocent third parties, to be treated as the owner of the goods. As Bowen, L.J., has pointed out, the object of the Courts is to prevent fraud, " the object of mercantile usages is to prevent the risk of insolvency, not of fraud, and any one who attempts to follow and understand the law merchant will soon find himself lost if he begins by assuming that merchants conduct their business on the basis of attempting to insure themselves against fraudulent dealing. The contrary is the case — credit, not distrust, is the basis of commercial dealings ; and mercantile genius consists principally in knowing whom to trust." 2 1 See sect. 24, ante, p. 38, and Fuentes v. Montis (1868), L. B. 3 C. P. 268, at p. 277, per Willes, J. J Sanders v. Maclean (1883), 11 Q. B. D., at p. 343, 0. A. H 98 SALE OF GOODS. Sect. 1. The first Factors Act was passed in 1823, the second in 1825, and the third in 1842. These enactments were a model of the art of saying few things in many words. They dealt with the powers of factors or other mercantile agents intrusted with the possession of goods or documents of title to goods, and their conjoint effect is carefully summed up hy Blackburn, J., in Cole v. North Western Bank (1875) L. K. 10 C. P., 354, Ex. Oh. After reviewing the history and policy of the Acts, he proceeds to say (p. 372) : "We do not think that the legislature wished to give to all sales and pledges in the ordinary course of business the effect which the common law gives to sales in market overt . . . The general rule of law is, that where a person is deceived hy another into believing he may safely deal with property he bears the loss, unless he can show that he was misled by the acf of the true owner. The legislature seems to us to have wished to make it the law that, where a third person has intrusted goods or the documents of title to goods to an agent who, in the course of such agency, sells or pledges the goods, he should be deemed by that act to have misled any one who bona fide deals with the agent, and makes a purchase from or advance to him without notice that he was not authorised to sell or to procure the advance." The Factors Act, 1877, dealt with a new subject matter. After providing that a secret revocation of agency should be inoperative, it proceeded to deal with the case, not of agents, but of buyers or sellers . left in possession of the documents of title to goods. The present Act reproduces and somewhat extends the effect of the four above- mentioned Acts.] Preliminary. Definitions. 1. For the purposes of this Act — (1.) The expression agent" 1 ' * "mercantile agent" shall mean a mercantile agent having in the customary course of his business as such agent authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods : This definition is new, but is mainly declaratory. It extends the construction put on the repealed Acts in so far as it applies to agents " to buy goods," and perhaps also in so far as it applies to forwarding agents. 1 Under the repealed Acts, the terms used were simply 1 Qu. how far Sellings v. BusseU (1875), 33 L. T. u. s. 380, and City Bank v. Barrow (1880), 5 App. Cas. 664, are affected? FACTORS ACT, 1889. 99 " person "or " agent " intrusted with the possession of goods, but it Sect. L was held that the Acts only applied to mercantile transactions, and that the term " person " or " agent " did not include a mere servant or caretaker, or one who had possession of goods for carriage, safe custody, or otherwise as an independent contracting party ; bat only persons whose employment corresponded to that of some known kind of com- mercial agent like that class (factors) from which the Acts took their name. 1 Thus, a person entrusted with furniture to keep in her own house for the plaintiff was held riot to be an "agent" within the meaning of the Acts ;* and a wine merchant's clerk who, as such, was possessed of delivery orders, was held not to be an agent within the meaning of the Acts, so as to be able to make a valid pledge in fraud of his master. In the latter case, Blackburn, J., remarks that the clerk " was not a mercantile agent." 3 It was farther held, that if a mercantile agent received goods in some other capacity, the Acta did not apply; for instance, where goods. were warehoused with a ware- houseman who was also a broker, it was decided that he. could not pledge them in his capacity of broker. 4 On the other hand, it was held that the Acts applied to an isolated instance of employment, if the employment was such that persons who ordinarily carried on that kind of business would come within the Acts. 8 (2.) A person shall be deemed to be in possession of Possession. goods or of the documents of title to goods, where the goods or documents are in his actual custody or are held by any other person subject to his control or for him or on his behalf: This definition is taken from words used in ssct. 4 of the Act of 1842 (5 & 6 Vict. c. 39), but it is generalised by the substitution of the word " person " for the word " agent." The probable object of this change is to make it apply to sects. 8 to 10, post, as well as to the agency sections. 1 Cole v. North Western Batik (1875), L. B. 10 C. P., at pp. 372, 373, per Blackburn, J. ; ef. City Bank v. Barrow (1880) 5 App. Gas., at p. 678. 2 Wood v. Rowdiffe (1846), 6 Hare, 183. * Lamb v. Attenborough (1862), 31 L. J. Q. B. 41. 4 Cole v. North Western Bank (1875), L. E. 10 C. P. 354, Ex. Ch. ; cf. City Bank v. Barrow (1880), 5 App. Cas., at p. 678. s Hayman v. Flewker (1863), 32 L. J. C. P. 132 (pictures entrusted to insurance agent to sell on commission). H 2 100 SALE OF GOODS. Sect. l. (3.) The expression " goods " shall include wares and Gooda. merchandise : The term used in the 17th sect, of the Statute of Frauds is " goods, wares, and merchandise." This definition, therefore, probably in- corporates the numerous decisions on the meaning of those words in that Act, see ante, p. 92. Document (4.) The expression " document of title " shall include any bill of lading, dock warrant, warehouse-keeper's certificate, and warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented : This definition is taken from sect. 4 of the Factors Act, 1842 (5 & 6 Vict. c. 39), with the addition of the "warehouse-keeper's certificate." The Act of 1825 (6 Geo. 4, c. 94, s. 2) included warehouse-keepers' certificates, but the Act of 1842 omitted them, and in a case in 1878 the Lord Justices held that these documents were not documents of title. 1 Cash receipts given in place of delivery orders are not documents of title. 2 Ordinarily, when the title to goods depends upon a written instru- ment, the document requires to be registered as a bill of sale, for the purposes of the Bills of Sale Acts ; but by sect. 4 of the Bills of Sale Act, 1878, it is provided that the term bill of sale shall not include " transfers or assignments of any ship or vessel or any share thereof, transfers of goods in the ordinary course of business of any trade or calling, bills of sale of goods in foreign parts or at sea, bills of lading, India warrants, warehouse-keepers' certificates, warrants or orders for the delivery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by indorsement or delivery, 1 Gmn v. Bolckow, Yaughan & Co. (1878), L. E. 10 Ch. App. 491. 2 Kemp v. Folk (1882), 7 App. Oas. 573, at p. 585, per Lord Blackburn. FACTORS ACT, 1889. 101 the possessor of such document to transfer or receive goods therehy Sect. 2. represented." ~ ~ As to the mode of transferring documents of title, see sect. 11, post, p. 109. (5.) The expression " pledge " shall include any con- Pledge. tract pledging, or giving a lien or security on, goods, whether in consideration of an original advance or of any further or continuing advance or of any pecuniary liability : This definition is new. Its terms seem wide enough to include a mortgage, that is, a contract transferring conditionally the general property in goods in consideration of a loan, and also perhaps a letter of hypothecation without possession. The words " any pecuniary liability " are very wide, and are probably intended to meet cases such as the granting of a letter of credit to be operated on by bills of exchange in consideration of the pledge of goods or documents. The language of this definition should be compared with the language used in sect. 4 of the Act of 1842 (5 & 6 Vict. c. 39). (6.) The expression " person " shall include any body Person. of persons corporate or unincorporate. Dispositions by Mercantile Agents. 2. — (1.) "Where a mercantile agent is, with the con- Powers of sent of the owner, in possession of goods or of the agent with documents of title to goods, any sale, pledge, or other disposition disposition of the goods, made by him when acting in of goods, the ordinary course of business of a mercantile agent, shall, subject to the provisions of this Act, be as valid as if he were expressly authorised by the owner of the goods to make the same ; provided that the person taking under the disposition acts in good faith, and has not at the time of the disposition notice that the person making the disposition has not authority to make the same. See the terms " mercantile agent," '' document of title," and " pledge defined by sect. 1, ante, p. 98. 102 SALE OF GOODS. Sect. 2. Powers of mercantile agent. Notice. This sub-section supersedes and reproduces, in altered language, sects. 2 and 4 of the Act of 1825 (6 Geo. 4, c. 94), and sect. 4 of the Act of 1842 (5 & 6 Vict. c. 39). It no longer requires the goods or documents to be " intrusted " to the agent, but it suffices that they are in his possession with the owner's consent. How far this alteration of language extends the operation of the new Act is not very clear ; but if it was intended to alter the rule that where a mercantile agent was intrusted with goods in some other capacity, he could not sell or pledge them contrary to instructions, it is a pity that so important a change in the law has not been more clearly enunciated. 1 Suppose a house were let furnished to a man who happened to be an auctioneer. Could he sell the furniture by auction and give a good title to the buyers ? Surely not. It was held under the repealed Acts that the mercantile agent's powers were not exhausted by a single transaction. Thus, where the consignee of cotton pledged the bill of lading with a broker, authorising him to sell the cotton, and then with the broker's consent pledged the net proceeds to D., it was held that the latter transaction was valid as well as the former one. 2 It was also held that the Acts extended to cases where the agent had by fraud induced his principal to intrust him with the goods or the documents of title to them. 3 These cases, no doubt, are still good law. As to the consideration necessary to support a sale, pledge, or other disposition, see sect. 5, post, p. 104 ; and as to pledges for antecedent debts or liabilities, see sect. 4, post, p. 104. The term "notice" in this section, probably means actual, though not formal, notice ; that is to say, either knowledge of the facts, or a suspicion of something wrong, combined with a wilful disregard of the means of knowledge. The same construction would probably be put on it as upon the term " notice," in sect. 29 of the Bills of Exchange Act, 1882, or in sects. 37 and 49 of the Bankruptcy Act, 1883." 1 As to former rale, see Monk v. Whittenbury (1831), 2 B. & Ad. 484 (flour factor and wharfinger); Cole v. North Western Bank (1875), L. K. 10 0. V. 354 (warehouse-keeper and broker). 2 Portalis v. Tettey (1867), L. E. 5 Eq. 140. 3 Cole v. North Western Bank (1875), L. R. 10 C. P., at p. 373, citing Baines v. Swainson (1863), 32 L. J. Q. B. 281, and Tickers v. Hertz (1871), L. K. 2 Sc. App. Oas. 113. 4 See the term discussed, Navulshaw v. Brownrigg (1852), 21 L. J. Ch. 908 (Factors Act) ; Raphael v. Bank of England (1855), 17 O. B., at p. 174, per Willes, J. (bill of exchange) ; Ex p. Snowball (1872), L. K. 7 Ch. , App., at p. 549 (act of bankruptcy). of consent. FACTORS ACT, 1889. 103 (2.) Where a mercantile agent has, with the consent Sect. 2. of the owner, been in possession of goods or of the Revocation documents of title to goods, any sale, pledge, or other disposition, which would have been valid if the consent had continued, shall be valid notwithstanding the deter- mination of the consent : provided that the person taking under the disposition has not at the time thereof notice that the consent has been determined. See last note. This sub-section reproduces in altered language the provisions of sect. 2 of the Factors Act, 1877 (40 & 41 Vict. c. 39), which was passed to override the decision in Fuentes v. Montis, where it was held that a mercantile agent was not intrusted with goods or documents within the meaning of the earlier Acts if his authority had been revoked. 1 (3.) Where a mercantile agent has obtained possession Derivative of any documents of title to goods by reason of his being or having been, with the consent of the owner, in pos- session of the goods represented thereby, or of any other documents of title to the goods, his possession of the first-mentioned documents shall, for the purposes of this Act, be deemed to be with the consent of the owner. This sub-section reproduces in somewhat different language a provision in sect. 4 of the Factors Act, 1842 (5 & 6 Vict. c. 39), which was intended to alter the law as laid down in Phillips v. Huth, and Hatfield v. Phillips? In the latter case it was held that a person intrusted with a bill of lading for the purpose of selling the goods mentioned in it, was not, in consequence of being so intrusted, to be considered as intrusted with the dock warrant, notwithstanding that his possession of the bill of lading enabled him to obtain the dock warrant. documents. 1 Fuentes t. Montis (1868), L. K. 3 O. P., 268 (revocation of agency unknown to pledgee), affirmed, L. E. 4 C. P. 93 Ex. Ch. 2 See Cole v. North Western Sank (1875), L. K. 10 C. P., at p. 370, commenting on Phillips v. Huth (1840), 6 M. & W. 572; Hatfield v. Phillips (1842), 9 M. & W. 647 ; (1845) 14 M. & W. 665. 104 SALE OF GOODS. Pledge for antecedent debt. Sects. 2-5. (4.) For the purposes of this Act the consent of the Presump- owner shall be presumed in the absence of evidence to tion - the contrary. This sub-section reproduces in somewhat different language the concluding paragraph of sect. 4 of the Factors Act, 1842. Effect of 3. A pledge of the documents of title to goods shall documents be deemed to be a pledge of the goods. of title. This section is taken from a paragraph in sect. 4 of the Factors Act, 1842 (5 & 6 Vict. c. 39). §ee " pledge," defined by sect. 1, ante, p. 101. 4. Where a mercantile agent pledges goods as security for a debt or liability due from the pledgor to the pledgee before the time of the pledge, the pledgee shall acquire no further right to the goods than could have been enforced by the pledgor at the time of the pledge. This section reproduces in altered language the clumsily worded sect. 3 of the Factors Act, 1825 (6 Geo. 4, c. 94) as read with the proviso contained in sect. 3 of the Factors Act, 1842 (5 & 6 Vict, c. 39). The substitution of the words " debt or liability " for " ante- cedent debt " is material. 1 The use of the word " due," though ap- propriate to the term " debt," seems inappropriate to the term " liability." The section should perhaps be read as if it ran " debt due from or liability incurred by," &c. The object of this section seems to be to draw a marked distinction between past and present or future considerations. In terms it applies only to pledges of goods, but, having regard to the language of sect. 3, it may be intended to apply also to pledges of documents. Eights ac- 5. The consideration necessary for the validity of a exchangeof sale, pledge, or other disposition, of goods, in pursuance documents. of tnis A - ct » ma y ^ e either a payment in cash, or the 1 For cases on the repealed sections, see Jewan v. Whitworth (1866), L. K. 2 Eq. 692 ; Macnee v. Gorst (1867), L. E. 4 Eq. 315 ; Kaltenbach v. Lewis (1885), 10 App. Oas. 617. FACTORS ACT, 1889. 105 delivery or transfer of other goods, or of a document of Sects. 6, 7. title to goods, or of a negotiable security, or any other valuable consideration ; but where goods are pledged by a mercantile agent in consideration of the delivery or transfer of other goods, or of a document of title to goods, or of a negotiable security, the pledgee shall acquire no right or interest in the goods so pledged in excess of the value of the goods, documents, or security when so delivered or transferred in exchange. By sect. 4 of the Factors Act, 1842 (5 &"6 Vict. c. 39) it was provided, inter alia, that " any payment made, whether by money or hills of exchange, or other negotiable security, shall be deemed and taken to be an advance within the meaning of this Act." The first paragraph of the present section considerably extends the scope of the old enactment, by substituting "valuable consideration" for, an "advance " as above defined. See the definition of " pledge " in sect. 1, ante, p. 101. The second paragraph of the section reproduces in somewhat different language the provisions of sect. 2 of the Factors Act, 1842, which was intended to protect exchange of goods and securities made in good faith, and to alter the law as laid down in Taylor v. Kymer and Bonzi v. Stewart} 6. For the purposes of this Act an agreement made Agree- i ii ments with a mercantile agent through a clerk or other person through authorised in the ordinary course of business to make ' contracts of sale or pledge on his behalf shall be deemed to be an agreement with the agent. This section is taken from, and generalises, a paragraph in sect. 4 of the Factors Act, 1842 (5 & 6 Vict. c. 39). 7. — (1.) Where the owner of goods has given posses- Provisions sion of the goods to another person for the purpose of signors And consignment or sale, or has shipped the goods in the consl § nee3 - 1 See Cole v. North Western Bank (1875), L. E. 10 C. P., at p. 370, commenting on Taylor v. Kymer (1832), 3 B. & Ad. 320 ; Bonzi v. Stewart (1842), 4 M. & Gr. 295. 106 SALE OF GOODS. Consignors and con- signees. Sects. 7, 8. name of another person, and the' consignee of the goods has not had notice that such person is not the owner of the goods, the consignee shall, in respect of advances made to or for the use of such person, have the same lien on the goods as if such person were the owner of the goods, and may transfer any such lien to another person. (2.) Nothing in this section shall limit or affect the validity of any sale, pledge, or disposition, by a mercantile agent. The first sub-section reproduces in different language the provisions of sect. 1 of the Factors Act, 1825. 1 It is to he noted that the section applies only to goods and t not to documents of title, and to cases where the consignee has not notice that the consignor is not the owner. Lord Blackburn raised a doubt in the repealed enactment whether "notice" was co-extensive with knowledge. 2 The term "advance" must probably be interpreted by the light of sect. 5, ante, p. 104. The second sub-section shews that the present section is to be con- strued as amplifying, and not as derogating from, the powers of mercantile agents under sect. 2, ante, p. 101. Sect. 13, post, p. 110, further saves the common law powers of factors and agents of that class. Dispositions oy Sellers and Buyers of Goods. 8. Where a person, having sold goods, continues, or is, in possession of the goods or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, or under any agreement for sale, pledge, or other disposition thereof, to any person Disposition by seller remaining in posses- sion. 1 See that enactment discussed in Cole v. North Western Bank (1875), L. K. 10 C. P., pp. 361-367; and Johnson v. Credit Lyonnais (1877), 3 O. P. D., at pp. 44, 45. 2 Mildred v. Maspons (1883), 8 App. Cas., at p. 885. FACTORS ACT, 1889. 107 receiving the same in good faith and without notice of Sects. 8, 9. the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly- authorised by the owner of the goods to make the same. This section is substituted for sect. 3 of the Factors Act, 1877 (40 & 41 Vict. c. 39), which altered the law as laid down in Johnson v. Credit Lyonnais. 1 It was there held that if the buyer, for his own convenience, left the goods and documents of title in the hands of the seller, who fraudulently resold or pledged them, he could nevertheless recover the goods from the innocent purchaser or pledgee. The Act of 1877 only applied to documents of title. The present section extends the principle of that enactment by applying to goods as well as to documents of title. The provisions of sect. 5, ante, p. 104, as to consideration, clearly apply to this section ; but the provisions of sect. 4 (pledge for antecedent debt) appear only to apply when the pledge is effected through a mercantile agent. 9. Where a person, having bought or agreed to buy Disposition goods, obtains with the consent of the seller possession btaimng of the goods or the documents of title to the goods, the P ossession - delivery or transfer, by that person or by a mercantile agent acting for him, of the goods or documents of title, under any sale, pledge, or other disposition thereof, or under any agreement for sale, pledge, or other disposi- tion thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner. This section is substituted for sect. 4 of the Factors Act, 1877 (40 & 41 Vict. c. 39). The repealed enactment applied only to documents of title. The present section applies to the goods themselves as well as to documents of title. Johnson v. Credit Lyonnais (1877), 3 0. P. D. 32, 40, C. A. 108 SALE OF GOODS. Disposition by buyer obtaining possession. Septs. 9,10. The common law rules which preceded these enactments are thus stated by Blackburn, J. : " It has been repeatedly decided that a sale or pledge of a delivery order or other document of title (not being a bill of lading) by the vendee does not defeat the unpaid vendor's rights, because the vendee is not intrusted as an agent. 1 And it may be observed that in many of such cases in which money has been advanced to the buyer on the faith of the documents of title, the buyer must have been a person who carried on business as a commission merchant ; yet it never seems to have occurred to any one that that fact made any difference. So it has been repeatedly held that when either the goods or documents of title are obtained from the owner (not on a contract of sale good till defeated, though defeasible on the ground of fraud, but by some trick), a purchaser or pledgee acquires no title, for the trickster is not an ' agent intrusted ' with the possession." 2 It is submitted that the last proposition "is not affected by the section ; for the foundation of the rule is that there is no real consent. The section, however, would clearly apply to cases where there is a de facto contract, though defeasible on the ground of fraud : see ante, p. 40. So, too, it applies where there is a de facto contract of sale between the original seller and buyer, though that contract might be ineffectual for non-compliance with the 17th sect, of the Statute of Frauds. 3 Effect of transfer of documents on seller's lien or right of stoppage in transitu. 10. Where a document of title to goods has been lawfully transferred to a person as a buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, the last-mentioned transfer shall have the same effect for defeating any vendor's lien or right of stoppage in transitu as the transfer of a bill of lading has for defeating the right of stoppage in transitu. This section is substituted for sect. 5 of the Factors Act, 1877 (40 & 41 Vict. c. 39). It applies to all the documents of title mentioned 1 Cf. Jenhyns v. Usborne (1844), 7 M. & Gr. 678 ; McEwan v. Smith (1849), 2 H. L. O. 309. 2 Cole v. North Western Bank (1875), L. R. 10 O. P., at p. 373, citing for last proposition, Kingsford v. Merry, 1 H. & N 503, and Hardman v. Booth, 1 H. & O. 803. See those cases discussed, amte, pp. 40, 41. 8 Hugill v. Masher (1889), 22 Q, B. D. 364, C. A FACTORS ACT, 1889. 109 in sect. 1, ante, p. 100, the common law rules relating to the effect of the Sects. transfer of a bill of lading on the seller's right of lien or stoppage 10-12. in transitu, as to which, see ante, p. 71. To some extent this section covers the same ground as the preceding section. But sect. 9 requires that the transferee shall have no notice of the seller's lien or other right, because it applies to cases where the buyer has obtained the goods or documents under a contract voidable on the ground of fraud. The present section omits the requirement as to absence of notice. The mere fact that the price is unpaid does not make it a fraud to transfer the goods or documents so as to defeat the seller's lien or right of stoppage in transitu. Supplemental. 11. For the purposes of this Act, the transfer of a Mode of document may be by endorsement, or, where the docu ment is by custom or by its express terms transferable ments by delivery, or makes the goods deliverable to the bearer, then by delivery. transfer- ring docu- See " document of title " defined, ante, p. 100. This section is taken from words used in sect. 5 of the Factors Act, 1877 (40 & 41 Vict. c. 39), which are now generalised by being put into a separate section. 12.— (1.) Nothing in this Act shall authorise an agent Saving for to exceed or depart from his authority as between him- trueowner self and his principal, or exempt him from any liability, civil or criminal, for so doing. As to the criminal liability of factors or agents misappropriating goods or documents of title, see the 24 & 25 Vict. c. 96, ss. 77, 78, 79, and Stephen's Digest of the Criminal Law, arts, 347, 348. (2.) Nothing in this Act shall prevent the owner of goods from recovering the goods from an agent or his trustee in bankruptcy at any time before the sale or pledge thereof, or shall prevent the owner of goods pledged by an agent from having the right to redeem the goods at any time before the sale thereof, on satisfy- ing the claim for which the goods were pledged, and 110 SALE OF GOODS. Sects. 12, paying to the agent, if by him required, any money in 1 respect of which the agent would by law be entitled to retain the goods or the documents of title thereto, or any of them, by way of lien as against the owner, or from recovering from any person with whom the goods hare been pledged any balance of money remaining in his hands as the produce of the sale of the goods after deducting the amount of his lien. As a general rule, goods or documents of title, held by an agent for his principal, are considered as trust property, and do not pass to the agent's trustee in bankruptcy, though in some cases the reputed ownership clauses might apply : see Bankruptcy Act, 1883, s. 44 (3.) Nothing in this Act shall prevent the owner of goods sold by an agent from recovering from the buyer the price agreed to be paid for the same, or any part of that price, subject to any right of set-off on the part of the buyer against the agent. As to the buyer's right of set-off against an agent with whom he dealt, under the belief that he was a principal, see KaUenbach v. Lewis (1885), 10 App.tJas. 617; Cooke v. EsheCby (1887) 12 App. Cas. 271. Saving for 13. The provisions of this Act shall be construed in law powers amplification and not in derogation of the powers ex- of agent. erc i se able by an agent independently of this Act. This section is new. It recognises, what the judges have frequently pointed out, that the Factors Acts are partly declaratory and partly enacting. 1 In dealing with the exceptions to the general rule, Nemo dot quodinori habet (ante, p. 38), Willes, J., observes: "A third case where a man may convey a better title to goods than he himself had is where an agent, who carries on a public business, deals with the goods in the ordinary course of it, though he has received- secret instructions from his principal to deal with them contrary to the ordinary course of that trade. In that case he has an ostensible authority to deal in such a way with the goods as agents ordinarily 1 See Cole v. North Western Bank (1875), L. R. 10 0. P., at p. 360, et FACTORS ACT, 1889. Ill deal with them, and if he deals with them in the ordinary way of the Sects. 14- trade he hinds his principal." l 17. 14. The enactments mentioned in the schedule to Repeal, this Act are hereby repealed as from the commencement of this Act, but this repeal shall not affect any right acquired or liability incurred before the commencement of this Act under any enactment hereby repealed. 15. This Act shall commence and come into operation Commence- on the first day of January one thousand eight hundred and ninety. 16. This Act shall not extend to Scotland. Extent of Act. The result of the exclusion of Scotland from this Act is, that the Factors Acts, 1823, 1825, 1842, and 1877, though repealed as to England and Ireland, as from the 1st of January, 1890, still continue to apply to Scotland. It may he noted that their provisions are more nearly declaratory of Scotch common law than they were of English common law. 2 See the subject discussed, BeWs Principles, 9th ed., p. 824, et seq. . 17. This Act may be cited as the Factors Act, 1889. Short title. 1 Fuentes v. Montis (1868), L. B. 3 C. P. 268, at p. 277 ; cf. Johnson v. Crtfdit Lyonnais (1877), 3 C. P. D., at pp. 37-40. 2 Vickers v. Hertz (1871), L. E. 2 Sc. App. 113, at p. 119. 112 SALE OF GOODS. Section 14. SCHEDULE. 1 Enactments Eepealed. Session and Chapter. 4 Geo. IV. c. 83 6 Geo. IV. c. 94 . 5 & 6 Vict. c. 39 40 & 41 Vict. c. 39. An Act for the better pro- tection of the property of merchants and others who may hereafter enter into contracts or agree- ments in relation to goods, wares, or merchandises entrusted to factors or An Act to alter and amend an Act for the better pro- tection of the property of merchants and others who may hereafter enter into contracts or agree- ments in relation to goods, wares, or merchandise entrusted to factors or agents. An Act to amend the law relating to advances bonS fide made to agents en- trusted with goods. Extent of Repeal. An Act to amend Factors Acts. the The whole Act. The whole Act. The whole Act. The whole Act. 1 This Schedule repeals as to England and Ireland, but not as to Scotland (see ante, p. Ill), the Factors Acts of 1823, 1825, 1842, and 1877. ( 113 ) APPENDIX I.— STATUTES. AN ACT AGAINST THE BUYING OF STOLEN HORSES (1555). 1 (2 & 3 Phil. & Mae. c. 7.) Forasmuch as stolen horses, mares, and geldings, hy thieves and The former their confederates, be for the most part sold, exchanged, given, or put . * away in houses, stables, back-sides, and other secret and privy places stolen of markets and fairs, and the toll also privily paid for the same, horses, whereby the true owners thereof, being not able to try the falshood and covin betwixt the buyer and seller of such horse, mare, or gelding, is by the common law of this realm without remedy : Sect. 2. — Be it therefore enacted by the authority of this present parliament, — That the owner, governor, ruler, fermor, steward, bailiff, In what or chief keeper of every fair and market overt within this realm, and nlanner other the Queen's dominions, shall before the feast of Easter next, and be sold in so yearly, appoint and limit out a certain and special open place fairs or within the town, place, field, or circuit, where horses, mares, geldings, mal e s " and colts have been and shall be used to be sold in any fair or market overt ; (2) in which said certain and open place, as is aforesaid, there A place shall be, by the said ruler or keeper of the said fair or market, put in snall . te and appointed one sufficient person or more, to take toll and keep the f^f a horse- same place from ten of the clock before noon until sunset of every day fair, and of the aforesaid fair and market, upon pain to lose and forfeit for every f~° a tol ^~ default forty shillings ; (3) and that every toll-gatherer, his deputy or deputies, shall, during the time of every the said fairs and markets, When, take their due and lawful tolls for every such horse, mare, gelding, or f wnom colt, at the said open place to be appointed as is aforesaid, and betwixt toll for the hours of ten of the clock in the morning and sunset of the same h orsessna " day, if it be tendred, and not at any other time or place ; (4) and shall have presently before him or them, at the taking of the same toll, the parties to the bargain, exchange, gift, contract, or putting away of every such horse, mare, gelding, or colt ; and also the same horse, mare, gelding, and colt so sold, exchanged, or put away; 1 Taken from Pickering's edition of the Statutes. See Moran v. Pitt (1873) 42 L. J. Q. B. 47, and ante, p. 40. 114 APPENDIX I. 2 & 3 Phil. & Mar. c. 7. A note of all horses sold in a fair or market. The using of a stolen horse in a fair, or,&c, before the owner's property shall be taken away. (5) and shall then write, or cause to be written in a book to he kept for that purpose, the names, surnames, and dwelling places of all the said parties, and the colour, with one special mark at the least, of every such horse, mare, gelding, and colt ; (6) in pain to forfeit at and for every default contrary to the tenor thereof, forty shillings. Sect. 3. — And the said toll-gatherer or keeper of the said hook, shall, within one day next after every such fair or market, bring and deliver his said book to the owner, governor, steward, bailiff, or chief keeper of the said fair or market, who shall then cause a note to be made of the true number of all horses, mares, geldings and colts sold at the said market or fair, and shall there subscribe his name, or set his mark thereunto; (2) upon pain to him that shall make default therein, to lose and forfeit for every default forty shillings, and also answer the party grieved by reason of the same his negligence in every behalf. Sect. 4. — And be it further enacted by the authority aforesaid, That the sale, gift, exchange, or putting away after the last day of February now next coming, in any fair or market overt, of any horse, mare, geldirjg, or colt, that is or shall be thievishly stolen, or feloniously taken away from any person or persons, shall not alter, take away, nor exchange the property of any person or persons to or from any such horse, mare, gelding, or colt, unless the same horse, mare, gelding, or colt shall be in the time of the said fair or market wherein the same shall be so sold, given, exchanged, or put away, openly ridden, led, walked, driven, or kept standing by the space of one hour together at the least, betwixt ten of the clock in the morning and the sun-setting, in the open place of the fair or market wherein horses are commonly used to be sold, and not within any house, yard, back-side, or other privy or secret place, and unless all the parties to the bargain, sale, contract, gift, or exchange, present in the said fair or market, shall also come together, and bring the horse, mare, gelding, or colt so sold, exchanged, given or put away to the open place appointed for the toll-taker, or for the book-keeper where no toll is due, and there enter or cause to be entered their names and dwelling- places, in manner as is aforesaid, with the colour or colours, and one special mark at the least of every the same horses, mares, geldings, or colts, in the toll-taker's book, or in the keeper's book for that purpuse where no toll is due, as is aforesaid, and also pay him their toll, if they ought to pay any ; and if not, then the buyer to give one penny for the entry of their names, and executing the other circumstances afore rehearsed to him that shall write the same in the said book. STATUTES. 115 Recovery of stolen horses. Sect. 5. — And if any horse, mare, gelding, or colt, that is or shall be 2 & 3 p n ii thievishly stolen or taken away, shall after the said last day of & Mar. c. 7. February next coming be sold, given, exchanged, or put away, in any fair or market, and not used in all points according to the tenor and intent of this statute, that then the owner of every such horse, mare, gelding, or colt shall and may by force of this statute seise or take again the said horse, mare, gelding, or colt, or have an action of detinue or replevin for the same ; any sale, gift, exchange, or putting away of any such horse, mare, gelding, or colt, other than according to this statute, in anywise notwithstanding. Sect. 6. — The one half of all which forfeitures to be to the King and Applica- Queen's majesties, her heirs and successors, and the other to him or them that will sue for the same before the justices of peace, or in any of the King's and Queen's majesties ordinary courts of record, by bill, plaint, action of debt or information, in which suits no protection, essoin or wager of law shall be allowed. Sect. 7. — And be it enacted by the authority aforesaid, That the justices of peace of every place and county, as well within liberties as without, shall have authority in their sessions, within the limits of their authority and commission, to enquire, hear, and determine all offences against this statute, as they may do any other matter triable before them. tion of penalties. The justices of peace shall hear and determine the [Fences aforesaid. Sect. 8. — Provided always, That in every such fair or market where The allow- any toll is nor shall be due ne leviable, by reason of the freedom, ance o{ the liberty, or privilege of the said fair or market, the keeper or keepers of the'book the book touching the execution of this present Act, shall take nor where no exact but one penny upon and for every contract, for his labour in to ^ ' s due writing the entry concerning the premises, in manner and form as is before declared. AN ACT TO AVOID HORSE-STEALING (1589). 1 (31 Eliz. c. 12). Whereas, through most counties of this relm, horse stealing is grown so common, as neither in pastures, or closes, nor hardly in stables, the same are to be in safety from stealing, which ensueth by the ready buying of the same by horse-coursers and others, in some open fairs or 1 Taken from Pickering's edition of the Statutes. i 2 Sellers ot horses in fairs or markets must be known to the toll- taker or 116 APPENDIX I. 31 Eliz. c. 12. some other who will avouch the sale which shall be entered in the toll- book, &c. A sufficient and credi- ble person shall avouch the horse seller. The price of the horse shall be entered into the toller's book. markets far distant from the owner, and with such speed as the owner cannot by pursuit possibly help the same ; (2) and sundry good ordinances have heretofore been made, touching the manner of selling and tolling of horses, mares, geldings, and colts in fairs and markets, which have not wrought so good effect for the repressing or avoiding of horse stealing, as was expected : Sect. 2. — Now, for a further remedy in that behalf, be it enacted, &c, That no person after twenty days next after the end of this session of parliament, shall in any fair or market sell, give, exchange, or put away any horse, mare, gelding, colt, or filly, unless the toll-taker there, or (where no toll is paid) the book-keeper, bailiff, or the chief officer of the same fair or market, shall and will take upon him perfect knowledge of the person that so shall sell or offer to sell, give, or exchange any horse, mare, gelding, colt, or filly, and of his true christian name, surname, and place of dwelling or resiancy, and shall enter all the same, his knowledge, into a book there kept for sale of horses ; (2) or else, that he so selling or offering to sell, give, exchange, or put away any horse, mare, gelding, colt, or filly, shall bring unto the toll -taker, or other officer aforesaid, of the same fair or market, one sufficient and credible person that can, shall, or will testify and declare unto and before such toll-taker, book-keeper, or other officer, That he knoweth the party that so selleth, giveth, exchangeth, or putteth away such horse, mare, gelding, colt, or filly, and his true name, surname, mystery, and dwelling-place, and there enter or cause to be entered in the book of the said toll-taker or officer, as well the true christian name, surname, mystery, and place of dwelling or resiancy of him that so selleth, giveth, exchangeth, or putteth away such horse, mare, gelding, colt, or filly, as of him that so shall testify or avouch his knowledge of the same person ; (3) and shall also cause to be entred the very true price or value that he shall have for the same horse, mare, gelding, colt, or filly so sold ; (4) and That no person shall take upon him to avouch, testify, or declare That he knoweth the party that so shall offer to sell, give, exchange, or put away any such horse, mare, gelding, colt, or filly, unless he do indeed truly know the same party, and shall truly declare to the toll-keeper or other officer afore-aid, as well the christian name, surname, mystery, and place of dwelling and resiancy of himself, as of him of and for whom he maketh such testimony and avouchment ; (5) and that no toll-taker or other person keeping any book of entry of sales of horses in fairs or markets, shall take or receive any toll, or make entry of any sale, gift, exchange, or putting away of any horse, mare, gelding, colt, or filly, unless he knoweth the party that so selleth, giveth, exchangeth, or putteth away any such horse, mare, gelding, STATUTES. 117 colt, or filly, and his true christian name, surname, mystery, and place 31 Eliz. of his dwelling or resiancy, or the party that shall and will testify and c - 12 - avouch his knowledge of the same person so selling, giving, exchanging, or putting away such horse, mare, gelding, colt, or filly, and his true christian name, surname, mystery, and place of dwelling or resiancy, and shall make a perfect entry into the said book, of such, his know- ledge of the person, and of the name, surname, mystery, and place of the dwelling or resiancy of the same person, and also the true price or value that shall he bond fide taken or had for any such horse, mare, gelding, colt, or filly so sold, given, exchanged, or put away, so far as he can understand the same, (6) and then give to the party so buying or taking by gift, exchange or otherwise, such horse, mare, gelding, colt, or filly, requiring and paying two pence for the same, a true and A note perfect note in writing of all the full contents of the same, subscribed '" writing with his hand ; (7) on pain that every person that so shall sell, give, iv . en t0 exchange, or put away any horse, mare, gelding, colt, or filly, without the buyer, being known to the toll-taker or other officer aforesaid, or without The bringing such avoucher or witness, causing the same to be entred as t j, e pel . son aforesaid, and every person making any untrue testimony or avouch- offending ment in the behalf aforesaid, and every toll-taker, book-keeper, or '" any other officer of fair or market aforesaid, offending io. the premises aforesaid, contrary to the true meaning aforesaid, shall forfeit for every such default the sum of £5 ; (8) but also that every sale, gift, exchange, or Every sale other putting away of any horse, mare, gelding, colt, or filly, in fair otherwise or market, not used in all points according to the true meaning afore- j" a e .^ haJ1 said, shall be void ; (9) the one half of all which forfeitures to be to the Queen's Majesty, her heirs and successors, and the other half to him or them that will sue for the same before the justices of peace or in any of Her Majesty's ordinary Courts of record, by bill, plaint, action of debt, or information, in which no essoin or protection shall be allowed. Sect. 3. — And the justices of peace of every place and county, as The well within liberties as without, shall have authority in their sessions, justices of within the limits of their authority and commission, to enquire, hear, P eace -l m , ay and determine all offences against this statute, as they may do any determine other matter triable before them. the offences aforesaid. Sect. 4. — And if any horse, mare, gelding, colt, or filly, after twenty days next ensuing the end of this session of parliament, shaE be stolen and after shall be sold in open fair or market, and the same sale shall be used in all points and circumstances as aforesaid, yet, nevertheless, 118 APPENDIX I. 31 Eliz. c. 12. The owner may re- deem a horse stolen from him within six months after, pay- ing the price. the sale of any such horse, mare, gelding, colt, or filly, within six months next after the felony done, shall not take away the property of the owner from whom the same was stolen, so as claim be made within six months by the party from whom the same was stolen, or by his executors or administrators, or by any other by any of their appointment, at or in the town or parish where the same horse, mare, gelding, colt, or filly shall be found, before the mayor or other head officer of the same town or parish, if the same horse, mare, gelding, colt, or filly shall happen to be found in any town, corporate, or market town, or else before any justice of peace of that county near to the place where such horse, mare, gelding, colt, or filly shall be found, if it be out of a town corporate or market town ; (2) and so as proof be made within forty days, then next ensuing by two sufficient witnesses, to be produced and deposed before such head officer or justice (who, by virtue of this Act, shall have authority to minister an oath in that behalf), that the property of the same horse, mare, gelding, colt, or filly so claimed, was in the party, by or from whom such claim is made, and was stolen from him within six months next before such claim of any such horse, mare, gelding, colt, or filly ; (3) but the party from whom the said horse, mare, gelding, colt, or filly was stolen, his executors or administrators shall and may at all times after, notwith- standing any such sale or sales in any fair or open market thereof made, have property and power to have, take again and enjoy the said horse, mare, gelding, colt, or filly, upon payment or readiness, or offer to pay to the party that shall have the possession and interest of the same horse, mare, gelding, colt, or filly, if he will receive and accept it, so much money as the same party shall depose and swear before such head officer or justice of peace (who, by virtue of this Act, shall have authority to minister and give an oath in that behalf), that he paid for the same bond fide, without fraud or collusion ; any law, statute, or other thing to the contrary thereof in any wise notwithstanding. An acces- sary to a horse stealer shall not have his clergy. Sect. 5. — And that after twenty days after the end of this session of parliament, not only all accessaries before such felony done, but also all accessaries after such felony, shall be deprived and put from all benefit of their clergy, as the principal by statute heretofore made is or ought to be. STATUTES. 119 THE STATUTE OF FRAUDS. 1 (29 Cab. 2. c. 3.) An Act for Prevention of Frauds and Perjuries. Sect. 4. — And from and after the said four and twentieth day of Promises June [1677] no action shall be brought whereby to charge any and agree- executor or administrator upon any special promise, to answer Daro j ^ damages out of his own estate; (2) or whereby to charge the de- fendant upon any special promise to answer for the debt, default or miscarriage of another person ; (3) or to charge any person upon any agreement made upon consideration of marriage ; (4) or upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them ; (5) or upon any agreement which is not to be performed within the space of one year from the making thereof ; (6) unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised. Note. — The cases on this section are discussed in the notes to Birk- myr v. Darnell, 1 Smith, L. C, 9th ed., p. 334. It is inserted for the sake of comparison with sect. 17. ' • Sect. 16. — And from and after the said four and twentieth day of Writs of June [1677] no writ of fieri facias or other writ of execution shall exe ™ tlon bind the property of the goods against whom such writ of execution is t ), e _ ro _ sued forth, but from the time that such writ shall be delivered to the perty of sheriff, under-sheriff, or coroners, to he executed : and for the better g° od - s •° ut manifestation of the said time, the sheriff, under-sheriff, and coroners, time of their deputies and agents, shall upon the receipt of any such writ, their (without fee for doing the same) endorse upon the back thereof the t"?' day of the month or year whereon he or they receive the same. Note. — This section appears as sect. 15 in the Statutes Revised. It is amended by sect. 1 of the Mercantile Law Amendment Act, 1856, post, p. 130, and see ante, p. 43. Sect. 17. — And from and after the said four and twentieth day of Contracts June [1677] no contract for the sale of any goods, wares, and mer- for sale of chandises, for the price of ten pounds sterling or upwards, shall be | e °° p 0U °„jg allowed to be goodv except the buyer shall accept part of the goods so or more. Taken from Pickering's edition of the Statutes. 120 APPENDIX I. 29 Car. 2, sold, and actually receive the same, or give something in earnest to c - 3- bind the bargain, or in part payment, or that some note or memoran- dum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorised. Contract of sale. Goods, wares, and merchan- dise. Price or value. Allowed to be good. Note.— This section appears as sect. 16 in the Statutes Eevised. The very numerous decisions on this section are fully discussed in Benjamin on Sales, 4th ed., pp. 93 to 241. They are also digested and the policy of the enactment is questioned in an article in the Law Quarterly Review (1885), vol. i., p. 1, by Mr. Justice Stephen and Sir P. Pollock. See, too, Roscoe's Nisi Prius, 15th ed., pp. 469- 479. The following salient points may be noted. The enactment has been amended by the 9 Geo. 4, c. 14, s. 7, post, p. 124, commonly known as Lord Tenterden's Act, and the two enact- ments must now be construed together. 1 The effect of construing the two enactments together is that the term " contract of sale " clearly includes both executory and executed contracts ; and no argument can any longer be founded on the use of the term " bargain " as meaning " bargain and sale " in the latter part of the section. 2 The term " goods, wares, and merchandise " (and its equivalent " goods " in the amending Act), include all moveable tangible pro- perty. It also includes certain things attached to the land which by and for the purposes of the contract are treated as goods, such as emblements, and in some cases growing timber. 3 The effect of the construction of the 9 Geo. 4, c. 14, s. 7, with the 1 7th sect, of the Statute of Frauds is to substitute the word " value " for the word " price " in the last-mentioned enactment. 4 The enact- ment applies to a single contract for several articles, each of which is priced under £10, if the total value of the articles is £10 or more. 6 The provision that no contract outside the section " shall be allowed to be good "does not make such contracts void. .It merely renders them unenforceable as between the parties. The provision therefore 1 Barman v. Reeve (1856), 18 C. B. 587 ; 25 L. J. C. P. 257, at p. 259. 2 Blackburn on Sale, pp. 7-9 ; Roscoe's Ni«i Prius, 15th ed., p. 469. ' See sect. 61, ante, p. 92; Benjamin on Sale, 4th ed., pp. 115 to 129; Law Quarterly Review, vol. i., p. 11. * Barman v. Reeve (1856), 18 C. B. 586, 595 ; 25 L. J. 0. P. 257 (agree- ments for sale and agistment in one contract). s BcMey v. Parker (1823), 2 B. & 0. 37. STATUTES. 121 is pretty nearly equivalent to the provision in the 4th sect., which is, 29 Car. 2, that " no action shall he brought " on agreements outside it. 1 It seems u - 3 - to follow that the section must he regarded as forming part of the lex fori? An artificial construction has been put on the provision that the Accept- buyer must " accept " the goods or part of them. It is now well allce • settled that an acceptance to satisfy the Statute need not L be an ac- ceptance in performance of the contract. Any dealing with the goods which recognises a pre-existing contract of sale constitutes an ac- ceptance for this purpose. 3 The acceptance need not be contem- poraneous with the actual receipt. It may precede or follow it. 4 The statute requires that the goods, or part of them shall be both accepted and actually received. The two questions, though distinct, are frequently confused in the cases. Where acceptance is shewn a very liberal construction has been put Actual upon the term " actual receipt." If the seller attorns to the buyer receipt, and holds the goods as his bailee, 6 or if the goods are in the possession of a third person who attorns to the buyer, the statute is satisfied. 6 A carrier is usually the buyer's agent to actually receive the goods though he is not his agent to accept them. 7 The acceptance and receipt of a bulk sample may satisfy the Part of the 1 Maddison v. Alderson (1883), 8 App. Cas. 467, at p. 488, per Ld. Black- burn ; Lucas v. Dixon (1889), 22 Q. B. D., at p. 360 ; Hugill v. Maslcer (1889), 22 Q. B. D. 364, at p. 371, C. A. 2 Leroux v. Brown (1852), 12 0. B. 801 ; 22 L. J. C. P. 1 ; but see Williams v. Wheeler (1860), 8 C. B. N. s. 299, 316, per Willes, J. 3 Page v. Morgan (1885), 15 Q. B. D. 228 0. A. ; Benjamin on Sale, 4th ed., p. 149. The previous decisions must be tested by reference to the case cited. 4 As to acceptance before receipt, see Cusack v. Robinson (1861), 30 L. J. Q. B. 261 ; as to acceptance inferred from conduct after receipt, see Chaplin v. Rogers (1800), 1 East, 192; Edan v. Dudfield (1841), 1 Q. B. 302; Beaumont v. Brengeri (1847), 5 C. B. 301; Parker v. Wallis (1855), 5. E. & B. 21 ; cf. Meredith v. Meigh (1853), 22 L. J. Q. B. 401 ; Smith v. Hudson (1865j, 34 L. J. Q. B. 145. See, too, Law Quarterly Review, vol. i., pp. 15, 16. 5 Elmore v. Stone (1809), 1 Taunt. 458 ; Marvin v. Wallace (1856), 25 L. J. Q. B. 369 ; Castle v. Sworder (1861), 30 L. J. Ex. 310 Ex. Oh. 6 Law Quarterly Review, vol. i., p. 12 ; cf. Codts v. Eose (1855), 17 C. B. 229, at p. 235. 7 Hanson v. Armitage (1822), 5 B. & Aid. 557; Norman v. Phillips (1845), 14 M. & W. 277 ; cf. Smith v. Hudson (1865), 34 L. J. Q. B. 145 ; Benjamin on Sale, 4th ed., pp. 153, 161. 122 APPENDIX I. ,29 Car. 2, c. 3. Earnest. Part payment. Note or memoran- dum. Signature. statute, 1 and so may the acceptance and receipt of a portion of the goods while the rest are still unmade. 2 Earnest consists of any coin or thing of value given in token of the bargain, but which is not part of the price. An agreement to set off a claim of the buyer against part of the price may amount to part payment. 3 The note or memorandum must designate the parties by name or description, 4 the goods sold, 6 the price if agreed on, 6 and must shew directly or by implication the nature of the promise of the party to be charged. 7 The note or memorandum need not be contemporaneous with the contract ; but it must be in existence before action brought. 8 It may be addressed to a third party, 9 or may be contained in the minutes of a meeting. 10 It may consist of a written proposal which is verbally accepted, 11 or of a letter intending to repudiate the contract. 12 Signature is the writing of a person's name on a document for the purpose of authenticating it. If the name appears in an unusual place it is a question of fact whether it was intended as a signature. 13 Signature by mark, initials, or stamp is sufficient. 14 The signature to 1 Hinde v. Whitehouse (1806), 7 East. 558 ; Gardner v. Grout (1857), 2 C. B. n. s. 340 ; but cf. Nicholson v. Bower (1858), 28 L. J. Q. B. 97. 2 Seott v. Eastern Counties Railway (1843), 12 M. & "W. 33. 3 Walker v. Nussey (1847), 16 M. & W. 302, at p. 305; Benjamin on Sale, 4th ed., p. 173. 4 Blacliburn on Sale, p. 55 ; Vandenhergh v. Spooner (1866), L. R. 1 Ex. 316 ; Newell v. Radford (1867), L. E. 3 C. P. 52 ; Benjamin on Sale, 4th ed., p. 204. s Thornton v. Kempster (1814), 5 Taunt. 786; Shardlow v. Cotterell (1881), 20 Ch. D. 90, at p. 97, per Lush, L. J. 6 Elmore v. Kingseote (1826), 5 B. & C. 583 ; aliter, if the contract be for an implied reasonable price, Hoadly v. M'Laine (1834), 10 Bing. 482. ' Egerton v. Mathews (1805), 6 East. 307; Peirce v. Corf (1874), L. E. 9 Q. B. 210 ; Law Quarterly Review, vol. i., p. 20 ; Benjamin on Sale, 4th ed., p. 222. 8 Lucas v. Dixon (1889), 22 Q. B. D. 357, C. A. ' 9 Gibson v. Holland (1865), L. E. 1 C. P. 1. 10 Jones v. Victoria Dock Co. (1877), 2 Q. B. D. 314 (on sect. 4). 11 Reuss v. Picksley (1866), L. E. 1 Ex. 342 Ex. Ob. 12 Bailey v. Sweeting (1861), 30 L. J. C. P. 150 ; Wilkinson v. Evans (1866), L. E. 1 0. P., at p. 411. 13 Johnson v. Dodgson (1837), 2 M. & W. 653, at j>. 659 ; Colon v. Caton (1867), L. E. 2 H. L. 127. 14 Benjamin on Sale, 4th ed., p. 232. STATUTES. 123 a telegram form suffices ;' so too does the signature of an agent in his 29 Car. 2, own name, for then evidence is admissible to charge the principal "' though not to discharge the agent. 2 The 4th sect, requires the agreements within it to be signed by Parties to "the party to be charged." The 17th sect, requires the note or be charged. memorandum of the contracts within it to be signed by " the parties. to be charged." Nevertheless it has been held that it suffices if the note or memorandum is signed by the party to be charged, though the other party has not signed. 3 It follows that one party may be bound though the other is not. As the signature of the party to be charged suffices, it follows that Agents to the words " their agents '' must be read as if they ran " his agent." sl S n - The authority of the agent is to be determined according to the ordinary rules of agency ; but it seems that one party cannot be the agent of the other to sign for him. 4 It is obvious that a person may be an agent to sign, though he may not have authority to settle the terms of the contract between the parties. The two questions are distinct. An auctioneer though employed by the seller is an agent to sign Auctioneer. for the buyer at an auction; 6 but his clerk, unless specially au- thorised, is not. 6 When an auctioneer sells by private contract he is only agent for the seller. 7 A broker is an agent to sign for both seller and buyer. If he duly Broker, enters the contract in his book and signs it, the Statute is satisfied. 8 So again if bought and sold, notes, which correspond, are signed by the broker and delivered to the parties, that is sufficient, 9 and it seems .that either the bought or sold note is sufficient to charge either party 1 Godwin v. Francis (1870), L. E. 5 C. P. 295. 2 White v. Proctor (1811), 4 Taunt. 209 ; cf. Newell v. Radford (1867) L. E. 3 0. P. 52. 3 Beuss v. Picksley (1866), L. E. 1 Ex. 342 Ex. Ch. ; Benjamin on Sale, 4th ed. p. 231. * Sharman v. Brandt (1871), L. E. 6 Q. B. 720, Ex. Ch. ; cf. Farebrothet v. Simmons (1822), 5 B. & Aid. 333. 5 White v. Procter (1811), 4 Taunt. 209 ; Benjamin on Sale, 4th ed. p. 246. 6 Peirce v. Corf (1874), L. E. 9 Q. B. 210. » Mews v. Carr (1856), 26 L. J. Ex. 39. 8 Benjamin on Sale, 4th ed., p. 268 ; Thompson v. Gardiner (1876), 1 C. P. D. 777. 9 Sievewright v. Archibald (1851), 17 Q. B. 103; 20 L. J. Q. B. 529, where the notes varied, and the variance was held fatal, there being no signed contract. 124 APPENDIX I. 29 Car. 2, for buying implies a sale, and selling implies a purchase, but if "• 3 ' only one note is produced evidence would be admissible to prove a variance. 1 Rescission A contract of sale in writing, or of which there is a memorandum in writing, may be orally abandoned, 2 but any subsequent variation of the contract, so as to create in contemplation of law, a new contract, must be in writing, 3 for example a parol agreement to extend the time for performing a contract in writing does not affect the contract, and cannot be substituted for it. 4 The acceptance of a substituted mode of performauce 6 or a mere forbearance to make or require delivery at the request of the other party does not constitute a variation of the contract. 6 or varia- tion, LORD TENTERDEN'S ACT. (9 Geo. 4, c. 14.) An Act for rendering a written memorandum necessary to the validity of certain promises and engagements. [29 Car. 2. Sect. 7. — And whereas by an Act passed in England in the twenty- c - 3, 1 ninth year of the reign of King Charles the Second, intituled an Act for the prevention of frauds and perjuries, it is, among other things, enacted that from and after the 24th day of June, 1677, no contract, for the sale of any goods, wares, and merchandises, for the price of ten pounds sterling or upwards, shall be 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 be charged by such contract, or their agents thereunto lawfully authorised. And whereas a similar enactment is contained in an Act passed in 1 Partem v. Crofts (1864), 33 L. J. C. P. 189 ; Thompson v. Gardiner, (1876) 1 C. P. D. 777. 2 Goss v. Lord Nugent (1833), 5 B. & Ad. 58, at pp. 65, 66; ef. Morgan v. Bain (1874), L. R. 10 C. P. 15. 3 Plevins v. Downing (1876), 1 C. P. D. 220. 4 Noble v. Ward (1867), L. R. 2 Ex. 135 Ex. Ch. 5 Leather Cloth Co. v. Bieronimus (1875), L. R. 10 Q. B. 140 (change of route). 6 Ogle v. Earl Vane (1868), L. R. 3 Q. B. 272, Ex. .Ch. ; Hickman v. Haynes (1875), L. R. 10 C. P. 598, reviewing the previous cases; cf. Tyers v. Bosedale Co. (1875) L. R. 10 Ex. 195, Ex. Ch. STATUTES. 125 Ireland in the seventh year of the reign of King William the Third : 9 Q eo 4 And whereas it has been held, that the said recited enactments do c. 14. not extend to certain executory contracts for the sale of goods, which . nevertheless are within the mischief thereby intended to be remedied : 7^3 . ' and it is expedient to extend the said enactments to such executory 12.] contracts : Be it enacted, That the said enactments shall extend to all con- Recited tracts for the sale of goods of the value of ten pounds sterling and Acts ex- upwards, notwithstanding the goods may be intended to be delivered tended *° contracts at some future time, or may not at the time of such contract be for goods actually made, procured, or provided, or fit or ready for delivery, °f £1 ° or or some act may be requisite for the making or completing thereof ojtliourii or rendering the same fit for delivery. the deli- very be not Note.— See notes to Statute of Frauds, s. 17, ante, p. 120, and Scott v. made - Eastern Counties Railway (1843), 12 M. & W. 33. THE BILLS OP LADING ACT, 1855. (18 & 19 Vict. c. 111.) An Act to amend the Law relating to Bills' of Lading. [14th August, 1855.] Whereas by the custom of merchants a bill of lading of goods being transferable by endorsement, the property in the goods may thereby pass to the endorsee, but nevertheless all rights in respect of the contract contained in the bill of lading continue in the original shipper or owner, and it is expedient that such rights should pass with the property ; and whereas it frequently happens that the goods in respect of which bills of lading purport to be signed, have not been laden on board, and it is proper that such bills of lading in the hands of a bond fide holder for value, should not be questioned by the master or other person signing the same on the ground of the goods not having been laden as aforesaid : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : — Sect. 1.— Every consignee of goods named in a bill of lading, and Rights every endorsee of a bill of lading to whom the property in the goods under bills therein mentioned shall pass, upon or by reason of such consign- of ladln S ment or endorsement, shall have transferred to and vested in him consignee or endorsee. 126 APPENDIX I. 18 & 19 Vict. c. 111. all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself. Xot to Sect. 2. — Nothing herein contained shall prejudice or affect any affect right right of stoppage in transitu, or any right to claim freight against the ^transitu original shipper or owner, or any liability of the consignee or en- or claims dorsee, by reason or in consequence of his being such consignee or for freight, endorsee, or of his receipt of the goods by reason or in consequence of such consignment or endorsement. Note. — As to non-liability of pledgee of bill of lading for freight, see Sewell v. Burdick (1884), 10 App. Cas. 74. Bill of lading in hands of consignee, &c, con- clusive evidence of the ship- ment as against master, &c. Proviso. Sect. 3. — Every bill of lading in the hands of a consignee or en- dorsee for valuable consideration representing goods to have been shipped on board a vessel, shall be conclusive evidence of such ship- ment as against the master or other person signing the same, not- withstanding that such goods or some part thereof may not have beeu so shipped, unless such holder of the bill of lading shall have had actual notice at the time of receiving the same that the goods had not been in fact laden on board; provided, that the master or other person so signing may exonerate himself in respect of such misrepresentation by shewing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or some person under whom the holder claims. Note. — A bill of lading, says Lord Blackburn, " is a writing signed on behalf of the owner of the ship in which goods are embarked, acknowledging the receipt of the goods, and undertaking to deliver them at the end of the voyage, subject to such conditions as may be mentioned in the bill of lading." 1 At common law the property in the goods could be transferred by the indorsement of the bill of lading, but the contract created by the bill of lading could not, therefore the indorsee could not sue on the contract in his own name. The Act of 1855 confers this right while confirming the common law rights. "A cargo at sea," says Brown, L.J., " while in the hands of the carrier, is necessarily in- capable of physical delivery. During this period of transit and voyage, the bill of lading by the law merchant is universally recognised as its symbol, and the indorsement and delivery of the bill of lading operates a symbolical delivery of the cargo. Property in the goods Blackburn on Sale, p. 275; see Anson on Contracts, 5th ed., p. 239. STATUTES. 127 passes by such indorsement and delivery of the bill of lading when- J 8 & ^ ever it is the intention of the parties that the property should pass, ' just as under similar circumstances the property would pass by an actual delivery of the goods." 1 He then goes on to say that by the inveterate practice of merchants, bills of lading are made out in three or more parts, one part being usually retained by the captain, the others being handed to the shipper. This practice has often given rise to frauds. The decisions on bills of lading which are very numerous are collected in the notes to Lickbdrrow v. Mason, 1 Smith, Lead. Cas., p. 737 ; but the following salient points may be noted. (1.) The voyage is deemed to continue, and the bill of lading to be alive as long as the goods are held on behalf of the master under a lien for freight, even though they have been landed. 2 (2.) When two or more parts of a bill of lading are transferred to two or more different bond fide transferees for value, the property in the goods passes to the transferee who is first in point of time. 3 (3.) But, nevertheless, the person who has the custody of the goods may safely deliver them to the person who first presents the bill of lading (or a part thereof) to him, provided he acts in good faith and without notice of any prior claim.' 1 (4.) A contract to deliver a bill of lading is complied with by delivering one part, though the others are not accounted for. 5 (5.) Except for the purposes of the Factors Act and of defeating the right of stoppage in transitu, the transferee of a bill of lading acquires no better title to the goods represented thereby than the transferor had. In this respect a bill of lading differs from a bill of exchange, or rather it resembles an overdue bill of exchange, which can only be negotiated subject to all equities attaching to it. 6 As to the effect of the transfer of a bill of lading on the right of stoppage in transitu, see ante, p. 71. As to the Factors Act, see ante, p. 101. Where laws conflict, stipulations in a bill ofladingmustbe construed according to the lex loci contractus, which prima facie only is the law of the place where the contract was entered into. 7 1 Sanders v. Maclean (1883), 11 Q. B. D. 327, at p. 341. 2 Barber v. Meyerstein (1870), L. E. 4 H. L. 317. 3 Barber v. Meyerstein, supra. 4 Glyn, Mills & Co., v. East & West India Doalcs (1882), 7Ap'p. Cas. 591. 5 Sanders v. Maclean (1883), 11 Q. B. D. 327, C. A. 6 Anson on Contracts, 5th ed., p. 239 ;' Ourney v. Behrend (1854), 3 E. & B. 622. 7 Be Missouri Steamship Co. (1889), 42 Oh. D. 321, at p. 328, C. A. 128 APPENDIX I. Goods sold, but not delivered, not to be attachable by creditors of the seller. Seller not entitled to a right of retention generally against second pur- chaser. THE MERCANTILE LAW AMENDMENT ACT, SCOTLAND, 1856. (19 & 20 Vict. c. 60.) An Act to amend the Laws of Scotland affecting Trade and Commerce. [21st July, 1856.] Whereas inconvenience is felt by persons engaged in trade by reason of the laws of Scotland being in some particulars different from those of England and Ireland in matters of common occurrence in the course of such trade, and with a view to remedy such inconvenience it is expedient to amend the law of Scotland as hereinafter is mentioned : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, as follows : — Sect. 1. — From and after the passing of this Act, where goods have been sold, but the same have not been delivered to the purchaser, and have been allowed to remain in the custody of the seller, it shall not be competent for any creditor of such seller, after the date of such sale, to attach such goods as belonging to the seller by any diligence or process of law, including sequestration, to the effect of preventing the purchaser or others in his right from enforcing delivery of the same ; and the right of the purchaser to demand delivery of such goods shall from and after the date of such sale be attachable by or transferable to the creditors of the purchaser. 1 Sect. 2. — Where a purchaser of goods who has not obtained delivery 'thereof shall after the passing of this Act sell the same, the purchaser from him or any other subsequent purchaser shall be entitled to demand that delivery of the said goods shall be made to him and not to the original purchaser; and the seller, on intimation being made to him of such subsequent sale, shall be bound to make such delivery, on payment of the price of such goods, or performance of the obligations or conditions of the contract of sale, and shall not be entitled, in any question with a subsequent purchaser, or others in his right, to retain the said goods for any separate debt or obligation alleged to be due to such seller by the original purchaser : provided always, that nothing in this Ai,t contained shall prejudice or affect the right of retention of the seller for payment of the purchase price of the goods sold, or such portion thereof as may remain unpaid, or for performance of the See M'Bain v. Wallace (188-1), 6 App. Cas. 588. STATUTES. 129 obligations or conditions of the contract of sale, or any right of 19 & 20 retention competent to the seller, except as between him and such Vict - "■ 60 - subsequent purchaser, or any such right of retention arising from express contract with the original purchaser. Sect. 3. — Any seller of goods may attach the same while in his own Arrestment hands or possession, by arrestment or poinding, at any time prior to ? nd P omd " the date when the sale of such goods to a subsequent purchaser shall by seller. have been intimated to such seller, and such arrestment or poinding shall have the same operation and effect in a competition or otherwise as an arrestment or poinding by a third party. Sect. 4. — Nothing hereinbefore contained shall prejudice or affect Eights of the landlord's right of hypothec and sequestration for rent. landlord saved. Sect. 5. — Where goods shall, after the passing of this Act, be sold, Seller not the seller, if at the time of the sale he was without knowledge that held to the same were defective or of bad quality, shall not be held to have „ 00 ^ s ex _ warranted their quality or sufficiency, but the goods, with all faults, cept there shall be at the risk of the purchaser, unless the seller shall have given an e ?" ,. i ,. ™- . <• T press war- an express warranty of the quality or sufficiency of such goods, or ra nty in unless the goods have been expressly sold for a specified and particular contract. purpose, in which case the seller shall be considered, without such warranty, to warrant that the same are fit for such purpose. 1 Note. — The remaining sections relate to guarantees, bills of exchange, carriers, and other matters not affecting the law of sale. THE MERCANTILE LAW AMENDMENT ACT, 1856. (19 & 20 Vict. c. 97.) An Act to amend the Laws of England and Ireland affecting Trade and Commerce. [29th July, 1856.] Whereas inconvenience is felt by persons engaged in trade by reason of the laws of England and Ireland being in some particulars different from those of Scotland in matters of common occurrence in the course of such trade, and with a view to remedy such inconvenience it is expedient to amend the laws of England and Ireland as hereinafter is mentioned : Be it enacted by the Queen's most Excellent Majesty, by 1 See Macfarlane v. Taylor (1868) L. R. 1 Sc. App. 245, and Couston v. Chapman (1872) L. R. 2 Sc. App. 250. K 130 APPENDIX I. 19 & 20 and w ith the advice and consent of the lords spiritual and temporal, ' ' and commons, in this present Parliament assembled, and by the authority of the same, as follows : — Persons acquiring title to goods be- fore they have been seized or attached under a writ against the seller protected, Specific delivery of goods sold. Sect. 1. — No writ of fieri facias or other writ of execution, and no writ of attachment against the goods of a debtor, shall prejudice the title to such goods acquired by any person bond fide and for a valuable consideration before the actual seizure or attachment thereof by virtue of such writ.; provided such person had not, at the time when he acquired such title, notice that such writ, or any other writ by virtue of which the goods of such owner might be seized or attached, had been delivered to and remained unexecuted in the hands of the sheriff, under sheriff, or coroner. Sect. 2. — In all actions and suits in any of the superior Courts of common law at Westminster or Dublin, or in any Court of record in England, Wales, or Ireland, for breach of contract to deliver specific goods for a price in money, on the application of the plaintiff, and by leave of the judge before whom the cause is tried, the jury shall, if they find the plaintiff entitled to recover, find by their verdict what • are the goods in respect of the non-delivery of which the plaintiff is entitled to recover and which remained undelivered ; what (if any) is the sum the plaintiff would have been liable to pay for the delivery thereof ; what damages (if any) the plaintiff would have sustained if the goods should be delivered under execution, as hereinafter mentioned, and what damages if not so delivered ; and thereupon, if judgment shall be given for the plaintiff, the Court or any judge thereof, at their or his discretion, on the application of the plaintiff, shall have power to order execution to issue for the delivery, on payment of such sum (if any) as shall have been found to be payable by the plaintiff as aforesaid, of the said goods, without giving the defendant the option of retaining the same upon paying the damages assessed ; and such writ of execution may be for the delivery of such goods ; and if such goods so ordered to be delivered, or any part thereof, cannot be found, and unless the Court, or such judge or baron as aforesaid, shall otherwise order, the sheriff, or other officer of such Court of record, shall distrain the defendant by all his lands and chattels in the said sheriff's bailiwick, or within the jurisdiction of such other Court of record, till the defendant deliver such goods, or, at the option of the plaintiff,, cause to be made of the defendant's goods the assessed value or damages, or a due proportion thereof; provided that the plaintiff shall, either by the same or a separate writ of execution, be entitled to have made of the defendant's goods the damages, costs, and interest in such action or suit. STATUTES. 131 THE LARCENY ACT, 1861. (24 & 25 Vict. c. 96.) An. Act to Consolidate and Amend the Statute Law of England and Ireland relating to Larceny and other similar offences. ****** As to restitution and recovery of stolen property. Sect. 100. — If any person guilty of any such felony or mis- Revesting demeanour as, is mentioned in this Act, in stealing, taking, ob- of P ro P er . tv '. ° ° on convio tainmg, extorting, embezzling, converting or disposing of, or in tion of knowingly receiving any chattel, money, valuable security, or other offender, property whatsoever, shall be indicted for such offence, by or on the behalf of the owner of the property, or his executor or ad- ministrator, and convicted thereof, in such case the property shall be restored to the owner or his representative ; and in every case in this section aforesaid the Court before whom any person shall be tried for any such felony or misdemeanour shall have power to award from time to time writs of restitution for the said property or to order the restitution thereof in a summary manner : Provided, that if it shall appear before any award or order made that any valuable security shall have been oond fide paid or discharged by some person or body corporate, liable to the payment thereof, or being a negotiable instru- ment shall have been oona fide taken or received .by transfer or de- livery, by some person or body corporate, for a just and valuable consideration, without any notice or without any reasonable cause to suspect that the same had by any felony or misdemeanour been stolen, taken, obtained, extorted, embezzled, converted, or disposed of, in such case the Court shall not award or order the restitution of such security : Provided also, that nothing in this section contained shall apply to the case of any prosecution of any trustee, banker, merchant, attorney, factor, broker, or other agent intrusted with the possession of goods or documents of title to goods for any misdemeanour against this Act. Note. — See R. v. Justices of Central Crim. Court (1886), 18 Q. E. D. 314 C. A., as to proceeds of stolen goods, and sect. 27, ante, p. 41, and notes thereto. K 2 132 APPENDIX I. THE SALE OP LAND BY AUCTION ACT, 1867. (30 & 31 Vict. c. 48.) An Act for Amending the Law of Auctions of Estates. [15th July, 1867. Be it enacted and declared by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : — Short title. Sect. 1. — This Act may be cited for all purposes as the " Sale of Land by Auction Act, 1867." Commence- Sect. 2. — This Act shall commence and take effect on the first day mentof f August, 1867. n erpre a- g^ ^, — "Auctioneer" shall mean any person selling by public terms. auction any land, whether in lots or otherwise : " Land " shall mean any interest in any messuages, lands, tenements, or hereditaments of whatever tenure : "Agent" shall mean the solicitor, steward, or land agent of the seller : " Puffer " shall mean a person appointed to bid on the part of the owner. Where sales Sect. 4. — And whereas there is at present a conflict between Her are invalid Jilajesty's Courts of law and equity in respect of the validity of sales also invalid ^y auction of bind where a puffer has bid, although no right of in equity. bidding on behalf of the owner was reserved, the Courts of law holding that all such sales are absolutely illegal, and the Courts of equity under some circumstances giving effect to them, but even in Courts of equity the rule is unsettled : And whereas it is expedient that an end should be put to such conflicting and unsettled opinions : be it there- fore enacted, that from and after the passing of this Act, whenever a sale by auction of land would be invalid at law by reason of the employment of a puffer, the same shall be deemed invalid in equity as well as at law. jj u ] e Sect. 5.— And whereas as sales of land by auction are now con- respecting ducted many of such sales are illegal, and could not be enforced sale with- a g a j ns t an unwilling purchaser, and it is expedient for the safety of & c _ ' both seller and purchaser that such sales should be so conducted as to be binding on both parties : Be it therefore enacted by the authority STATUTES. 133 aforesaid as follows: That the particulars or conditions of sale by 30 & 31 auction of any land shall state whether such land will be sold Vict - u - 48 - without reserve, or subject to a reserved price, or whether a right to bid is reserved ; if it is stated that such land will be sold without reserve, or to that effect, then it shall not be lawful for the seller to employ any person to bid at such sale, or for the auctioneer to take knowingly any bidding from any such person. Sect. 6. — And where any sale by auction of land is declared either Rule in the particulars or conditions of such sale to be subject to a right res pecting for the seller to bid, it shall be lawful for the seller or any one person t„ right of on his behalf to bid at such auction in such manner as he may seller to think proper. bid- Sect. 7. — And whereas it is the long settled practice of Courts of Practice of equity in sales by auction of land under their authority to open °Pf n . m S ,.,,. ,. ■, , . . , . biddings, biddings even more than once, and much inconvenience has arisen j,_ Order of from such practice, and it is expedient that the Courts of equity should Chancery, no longer have the power to open biddings after sales by auction of exoe P t on land under their authority : Be it further enacted by the authority f rail( j to aforesaid, that the practice of opening the biddings on any sale by be discon- auction of land under or by virtue of any order of the High Court of muea- Chancery shall, from and after the time appointed for the commence- ment of this Act, be discontinued, and the highest bond fide bidder at such sale, provided he shall have bid a sum equal to or higher than the reserved price (if any), shall be declared and allowed the purchaser, unless the Court or Judge shall, on the ground of fraud or improper conduct in the management of the sale, upon the appli- cation of any person interested in the land (such application to be made to the Court or Judge before the Chief Clerk's certificate of the result of the sale shall have become binding), either open the biddings, holding such bidder bound by his bidding, or discharge him from being the purchaser, and order the land to be resold upon such terms as to costs or otherwise as the Court or Judge shall think fit. Sect. 8. — Except as aforesaid, nothing in this Act contained shall Court of affect any sale of land made under or by virtue of any order of the Chancery, High Court of Chancery in England, of the High Court of Chancery in ot jj' er Ireland, or of the Landed Estates Court there, or of the Court of respects Chancery in the County Palatine of Lancaster, or of any county or excepted other Court having jurisdiction in equity. tion of Act. Sect. 9.^-This Act shall not extend to Scotland. extend to Scotland. 134 APPENDIX 1. Duty may be denoted by adhe- sive stamp. [See j»«f, p. 137.] Bills of lading. [See post, p. 137.] Interpre- tation of delivery order. [See post, p. 137.] Interpre- tation of warrant for goods. Duty may be denoted by an adhe- sive stamp. THE STAMP ACT, 1870. (33 & 34 Vict. c. 97.) An Act for granting certain Stamp Duties in lieu of Duties of the same kind now payable under various Acts, and consolidating and amending provisions relating thereto. [10th August, 1870.] As to Agreements. Sect. 36. — The duty of sixpence upon an agreement may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the agreement is first executed. As to Bills of Lading. Sect. 56. — (1.) A bill of lading is not to be stamped after the execution thereof. (2.) Every person who makes' or executes any bill of lading not duly stamped shall forfeit the sum of fifty pounds. As to Delivery Orders and Warrants for Goods. Sect. 87. — The term " delivery order " means any document or writing entitling, or intended to entitle, any person therein named, or his assigns, or the holder thereof, to the delivery of any goods, wares, or merchandise of the value of forty shillings or upwards lying in any dock or port, or in any warehouse in which goods are stored or deposited on rent or hire, or upon any wharf, such document or writing being signed by or on behalf of the owner of such goods, wares, or merchandise, upon the sale or transfer of the property therein. Sect. 88. — The term " warrant for goods " means any document or writing, being evidence of the title of any person therein named, or his assigns, or the holder thereof, to the property in any goods; wares, or merchandise lying in any warehouse or dock, or upon any wharf, and signed or certified by or on behalf of the person having the custody of such goods, wares, or merchandise. Sect. 89. — The duty upon a delivery order or warrant for goods may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the instrument is made, executed, or issued. STATUTES. 135 Sect. 90. — The duty upon a delivery order is, in the absence of any special stipulation, to be paid by the person to whom the order is given, and any person from whom a delivery order chargeable with duty is required may refuse to give it, unless or until the amount of the duty is paid to him. Sect. 91. — (1.) Every document or writing in the nature of a delivery order is to be deemed to have been given upon a sale of, or transfer of the property in, goods, wares, or merchandise of the value of forty shillings or upwards, unless the contrary is expressly stated therein ; and every person who — (a.) Untruly states, or knowingly or willingly allows it to he untruly stated, in any such document or writing, either that the transaction to which it relates is not a sale or transfer of property, or that the goods, wares, or merchandise to which it relates are not of the value of forty shillings. (5.) Makes, signs, or issues any delivery order chargeable with duty, but not being duly stamped ; (c.) Knowingly or wilfully, either himself, or by his servant or any other person, procures or requires or authorizes the delivery of, or delivers, any goods, wares, or merchandise mentioned in any delivery order which is not duly stamped, or which contains to his knowledge any false statement with reference either to the nature of the transaction, or the value of the goods, wares, or merchandise, shall forfeit the sum of twenty pounds. (2.) But no delivery order is, by reason of the same being unstamped, to be deemed invalid in the hands of the person having the custody of, or delivering out, the goods, wares, or merchandise therein mentioned, unless such person is proved to have been party or privy to some fraud on the revenue in relation thereto. 33&34 Vict. u. 97. By whom duty on delivery order to be paid. What docu- ments to be chargeable as delivery orders. Penalty for making false state- ment, or signing, &c, or making use of any order not duly stamped, or contain- ing any false state- ment, £20. Sect. 92. — Every person who makes, executes, or issues, or receives or takes by way of security or indemnity, any warrant for goods not being duly stamped, shall forfeit the sum of twenty pounds. As to Receipts. Sect. 120. — The term " receipt " means and includes any note, memorandum, or writing whatsoever whereby any money amounting to two pounds or upwards, or any bill of exchange or promissory note for money amounting to two pounds or upwards, is acknowledged or expressed to have been received or deposited or paid, or whereby any Penalty for making, &c, un- stamped warrant, £20. Interpre- tation of receipt. 136 APPENDIX I. 33 & 34 Vict. u . 97. debt or demand, or any part of a debt or demand, of the amount of two pounds or upwards, is acknowledged to have been settled, satisfied, or discharged, or which signifies or imports any such acknowledgment, and whether the same is or is not signed with the name of any person. Duty may Sect. 121. — The duty upon a receipt may be denoted by an adhesive iT "dh ° t,ed stam P> which is to he cancelled by the person by whom the receipt is stamp. given before he delivers it out of his hands. Terms Sect. 122. — A receipt given without being stamped may be stamped upon which with an impressed stamp upon the terms following ; that is to say, receipts ^ Within f our teen days after it has been given, on payment of stamped the duty and a penalty of five pounds ; after exe- (2.) After fourteen days, but within one month, after it has been 1 ° " J " giveD, on payment of the duty and a penalty of ten pounds ; and shall not in any other case be stamped with an impressed stamp. Penalty for offences. Sect. 123. — If any person — (1.) Gives any receipt liable to duty and not duly stamped ; (2.) In any case where a receipt would be liable to duty refuses to give a receipt duly stamped ; (3.) Upon a payment to the amount of two pounds or upwards, gives a receipt for a sum not amounting to two pounds, or separates or divides the amount paid with intent to evade the duty ; he shall forfeit the sum of ten pounds. SCHEDULE. Ageeement, or any Memoeandum of an Ageeement, made in England or Ireland under hand only, or made in Scotland without any clause of registration, and not otherwise specifically charged with any duty, whether the same be only evidence of a contract, or obligatory upon the parties from its being a written instrument . £ s. d. 6 Exemptions. (1.) Agreement or memorandum the matter whereof is not of the value of £5. STATUTES. 137 (2.) Agreement or memorandum for the hire of any £ 8. d. 33 & 34 labourer, artificer, manufacturer, or menial Vict. c. 97. servant. (3.) Agreement, letter, or memorandum made for or relating to the sale of any goods, wares, or merchandise. Bill of Lading of or for any goods, merchandise, or effects to be exported or carried coastwise . . . 6 And see sect. 56. Delivery Order 1 Dock Warrant. See Warrant for Goods. Eeceipt given for, or upon the payment of, money amount- ing to £2 or upwards 1 Exemptions. ***** (9.) Eeceipt written upon a bill of exchange or pro- missory note duly stamped. (10.) Receipt given upon any bill or note of the governor and company of the Bank of England or the Bank of Ireland. (11.) Eeceipt indorsed or otherwise written upon or contained in any instrument liable to stamp duty, and duly stamped, acknowledging the receipt of the consideration money therein expressed, or the receipt of any principal money, interest, or annuity thereby secured or therein mentioned. Warrant for Goods . .... 3 Exemptions. (1.) Any document or writing given by any inland carrier acknowledging the receipt of goods conveyed by such carrier. (2.) A weight note issued together with a duly stamped warrant, and relating solely to the same goods, wares, or merchandise. 138 APPENDIX I. THE MERCHANDISE MARKS ACT, 1887. (50 & 51 Vict. c. 28.) An Act to- Consolidate and Amend the Law relating to Fraudulent Marks on Merchandise. [23rd August, 1887.] Implied Sect. 17. — On the sale or in the contract for the sale of any goods to warranty whjcjj a trade mark, or mark, or trade description has been applied, marked * ne vendor shall be deemed to warrant that the mark is a genuine goods. trade mark and not forged or falsely applied, or that the trade description is not a false trade description within the meaning of this Act, unless the contrary is expressed in some writing signed by or on behalf of the vendor, and delivered at the time of the sale or contract to and accepted by the vendee. ( 139 ) APPENDIX II.— NOTES. Note A. — Construction of Tebms and Conditions. There is no canon of construction peculiar to contracts of sale. In a case arising on a contract of sale where the material words were " delivering on April 17th ; complete 8th May,'' Kelly, C. B., says : " The rule of construction applicable in general to all written contracts is, that they are to be construed according to the real intention of the parties, to be collected from the language they have used ; that effect is to be given, if possible, to every word used, and that every word is to be interpreted according to its natural and ordinary meaning, unless such construction would be contrary to the manifest intention of the parties, or would necessarily lead to some contradiction or absurdity. But this rule, though applicable to contracts in general, must be received with some qualification, when the contract or a portion of the contract in question consists of an incomplete sentence, ambiguous in its terms, and upon which a literal construction of every word would either be impracticable or would leave the contract indeterminate and uncertain. And such is the case with the contract in question, which I think is to be construed according to what we can collect to have been the substantial intention of the parties, applying our common sense, and such knowledge as we may possess, to the language in which they have expressed themselves." 1 The rule for construing conditions as to delivery and payment is thus given by Williams, J. : " Where there is an agreement to deliver to a vendee on a certain condition and the condition (without any fault on the part of the vendor) never comes to pass, it is plain that he will not be liable for a non-delivery. But where the agreement is absolute or conditional on an event which happens, the vendor will he liable for a breach, although he could not help the non-performance ; for it is his own heedlessness if he runs the risk of undertaking to perform an impossibility, when he might have provided against it by his contract." 2 And see Note B., post, pp. 145, 146. 1 Coddington v. Paleologo (1867), L. R. 2 Ex. 193, at p. 200. 2 Hale v. Eawson (1858), 27 L. J. C. P. 189, at p. 191 (sale of cargo to arrive by ship). 140 APPENDIX II. Some useful rules are given by Stephen, J., for the construction of conditions incorporated by reference iuto contracts of sale in Watkins v. Rymill (1878), 10 Q. B. D. 178, at p. 188. The following terms and stipulations, among others, have been judicially construed, namely — Terms as to shipment, i.e. " The names of the vessels to be declared as soon as the wools are shipped." 1 "Shipped per Diletta as per bill of lading dated September ur October." 2 " For shipment in June and [or] July." 3 " Shipment by steamer or steamers during February." * " To be shipped during the months of March ?2? February." 6 As to arrival of ship or cargo, i.e. " On arrival." 6 " Payment, bill at two months from the date of landing." 7 " 100 tons of soda to arrive ex Daniel Grant." 8 " 100 hogsheads of oil expected to arrive by the ship Resolute from Madras." 8 " 100 bales cotton now on passage from Singapore and expected to arrive at London per the Ravenscraig." 10 " 50 cases of tallow to be delivered on the safe arrival of the ship Elgin. 11 " The cotton to be taken from the quay." ' 2 " 600 tons of nitrate of soda expected to arrive at port of call per Precursor." ls 1 Graves v. Legg (1854), 9 Exch. 709. 1 Gattorno v. Adams (1862), 12 C. B. n. s. 560. 3 Alexander v. Vanderzee (1872), L. K. 7 O. P. 530, Ex. Ch. 4 Brandt v. Lawrence (1876), 1 Q. B. D. 344, C. A. ; but see Reuter v. Sola (1879), 4 O. P. D. 239, O. A. 5 Bowes v. Shand (1877), 2 App. Oas. 455. 6 Alewyn v. Pryor (1826), E. & M. 406. 7 Alexander v. Gardner (1835), 1 Bhig. N. C. 671. 8 Johnson v. Macdonald (1842), 9 M. & W. 600. 9 Fischel v. Scott (1854), 15 O. B. 69. 10 Gorrissen v. Perrin (1857), 27 L. J. C. P. 29. " Hale v. Rawson (1858), 27 L. J. C. P. 189. 12 Neill v. Whitworth (1865), 34 L. J. C. P. 155, affirmed by Ex. Ch. (1866), L. E. 1 C. P. 684. 13 Smith v. Myers (1871), L. B. 7 Q. B. 139, Ex. Ch. NOTES. 141 As to priority of delivery and payment, " Payment, bill at two months from the date of landing." ' " To be paid for by cash in one month." 2 " Delivery forthwith, payment, cash in 14 days from the making of the contract." 3 Delivery order running, "we engage to deliver on presentation of this document." 4 " To be free delivered and paid for in 14 days in cash." 5 " The balance in cash on right delivery at Rangoon." 6 " Freight to be payable on right delivery of the cargo." 7 " Payment to be made in net cash in London in exchange for bills of lading of each cargo or shipment." 8 As to time of delivery, i.e. " Delivery at buyer's option in all April or sooner." 9 " 10 tons of oil to be delivered with the last 14 days of March " 10 " 5 tons oilcake to be put on board directly." u " Delivery forthwith." 12 Goods to be delivered " as required." ls " Delivering on April 17th, complete 8th May." M " The lots to be cleared away within 3 days after the sale at the purchaser's expense." 16 " To be finished as soon as possible." I6 1 Alexander v. Gardner (1835), 1 Bing. N. C. 671. 2 Spartali v. Beneclce (1850), 10 0. B. 212 ; but see Field v. Lelean (1861), 30 L. J. Ex., 168 Ex. Ch. as to usage. 3 Staunton v. Wood (1851), 16 Q. B. 638. 4 Bartlett v. Holmes (1853), 22 L. J. O. P. 182. 5 Godts v. Hose (1855), 17 C B. 229. 6 Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B. 322. ' Paynter v. James (1867), L. E. 2 0. P. 348. 8 Sanders v. Maclean (1883), 11 Q. B. D. 327, 0. A. 9 Cox v. Todd (1825), 7 D. & K. 181. 10 Startup v. Maedonald (1843), 6 M. & G: 593, Ex. Ch. (tender at 8.30 on Saturday night). 11 Duncan v. Topham (1849), 8 C. B. 225. 12 Staunton v. Wood (1851), 16 Q. B. 638. 13 Jones v. Giblons (1853), 8 Exch. 920. » Coddington v. Paleologo (1867), h. E. 2 Ex. 193. 15 Woolfe v. Borne (1877), 2 Q. B. D. 355, C. A. 16 Hydraulic Co. v. McHaffie (1878), 4 Q. B. D. 670, C. A. 142 APPENDIX II. As to cost of delivery. " Free on board a foreign ship." 1 "Free on board," or, "F. 0. B." 2 " The cotton to be taken from the quay." 3 Goods to be taken " from the deck." 4 Delivery on payment of freight " and other conditions as per charter- party." 6 As to price. " 2$ per cent, discount for cash, the duty to be deducted." 6 " Market value." 7 " Terms — net cash to be paid within six to eight weeks from date hereof." 8 " Without reserve." 9 " The highest bidder to be the purchaser." 10 " Cash, or approved banker's bills." u -4s to quantity. " 18 pockets Kent hops." 12 "1000 bales of gambier." 13 " A small cargo of lath-wood (specifying lengths), in all about 60 cubic fathoms." u " A cargo of from 2500 to 3000 barrels (seller's option) American petroleum." w 1 Wacleerbarth v. Masson (1812), 3 Camp. 270 2 Cowasjee v. Thompson (1845), 5 Moore, P. C. C. 165, see at p. 173 ; Brown v. Mare (1858), 27 L. J. Ex., at p. 377 ; Stock v. Inglis (1884), 12 Q. B. D. 564, at p. 573 ; affirmed (1885), 10 App. Cas. 263. 3 NeiU v. Whitworth (1865), 34 L. J. C. P. 155 ; affirmed (1886), L. E. 1 C. P. 684, Ex. Oh. * Playford v. Mercer (1870), 22 L. T. s. s. 41. 5 Steamship ' County of Lancaster' v. Sharp (1889), 24 Q. B. I). 158. • Smith v. Blandy (1825), H. & M., at p. 260. 7 Orchard v. Simpson (1857), 2 C. B. N. s. 299. 8 Ashforth v. Bedford (1873), L. E. 9 O. P. 20. 3 Thornett v. Haines (1846), 15 M. & W. 367. 10 Green v. Baverstock (1863), 32 L. J. C. P. 181. 11 Smith v. Mercer (1867), L. E. 3 Ex. 51. 12 Spicer v. Cooper (1841), 1 Q. B. 424. 13 Gorrissen v. Perrin (1857), 27 L. J. C. P. 29. 14 Kreuger v. Blanelt. (1870), L. E. 5 Ex. 179 ; but see Ireland v. Livingston (1872), L. E. 5 H. L., at pp. 405, 410. 15 Borrowman v. Drayton (1876), 2 Ex. D. 15, C. A. NOTES. 143 "About 300 quarters more or less of foreign rye shipped at Hamburg." l " Say from 1000 to 1200 gallons per month." 2 " Say not less than 100 packs." 3 " We hold to you order about 30 tons Saint Petersburg hemp." 4 " 100 tons of Wallsend coals more or less." 5 " Say about 600 red pine spars averaging 16 inches." a " 25 tons, more or less, Penang pepper, name of vessel or vessels to be declared within 60 days from date of bill of lading." 7 " About 150 tons of scrap iron." 8 As to quality, &c, i.e. "With all faults." 9 Carriage to be built " to meet my convenience and taste." 10 " Scott & Co.'s mess pork." " " Your wool at 16s. a stone." 12 " Prime singed bacon." 13 " Ware potatoes." 14 "50 tons best palm oil; wet and inferior oil, if any, at a fair allowance." 15 " Seed barley." 1S " 413 bales of wool guaranteed about similar to samples in selling broker's possession." 17 1 Cross v. Eglin (1831), 2 B. & Ad. 106. 2 Gwillim v. Daniell (1835), 2 C. M. & R. 61 ; cf. Morris v. Levison (1876), 1 C. P. D., at p. 159. 3 Leeming v. Snaith (1851), 16 Q. B. 275. 4 Moore v. Campbell . 1854), 10 Excli. 323. 5 Cockerell v. Aucompte (1857), 26 L. J. O. P. 194; cf. Bourne v. Seymour (1855), 24 L. J. C. P. 207. B McConnell v. Murphy (1873), L. R. 5 P. 0. 203. 7 Beuier v. Sala (1879), 4 C. P. D. 239, C. A. 8 McLay v. Perry (1881), 44 L. T. 152. 9 Shepherd v. Kain (1821), 5 B. & Aid. 240 (ship); Taylor v. Bullen (1850), 5 Exch. 779 (ship) ; Ward v. Hobbs (1878), 4 App. Cas. 13 (diseased pigs). 10 Andrews v. Belfield (1857), 2 C. B. s. s. 779 11 Powell v. Horton (1836), 2 Bing. N. C. 668 ; cf. Johnson v. Baylton (1881), 7 Q. B. D. 438, C. A. 12 Macdonald v. Longbottom (1860), 29 L. J. Q. B. 256, Ex. Ch. ; cf. McCollin v. Gilpin (1 881), 6 Q. B. D. 516, 0. A. 13 Yates v. Pym (181t>), 6 Taunt. 446. 11 Smith v. Jeffryes (1816), 15 M. & W. 561. 15 Lucas v. Bristow (1858;, 27 L. J. Q. B. 364. 16 Carter v. Crick (1859), 28 L. J. Ex. 238. 17 Heyworth v. Hutchinson (1867), L. R. 2 Q. B. 447. 144 APPENDIX II. " The cotton guaranteed equal to sample ; should the quality prove inferior to guarantee, a fair allowance to be made." 1 " Horses not answering the description must be returned before 5 o'clock on Wednesday." 2 " Horses warranted good workers, not answering such warranty, to be returned before 5 o'clock of the day alter the sale, and shall then be tried by a person to be appointed by the auctioneer." 3 " Warranted sound." * " I believe the mare to be sound, but I will not warrant her." 6 " Received £10 for a grey 4-year-old colt, warranted sound." 6 " Four pictures, views in Venice. Canaletti." 7 Note B. — Delivery to Carrier. Frequent reference has been made to the rule that delivery of goods to a carrier is prima facie a delivery to the buyer, a performance pf the seller's contract which passes both the property and the risk to the buyer. It follows that as a rule if the goods are lost or destroyed, the buyer or consignee is the proper person to sue the carrier. The most authoritative statement of the principle is in the judgment of the House of Lords in Dunlop v. Lambert, where it was held that if there was a special contract the consignor might sue the carrier though the goods might be the property of the consignee. Lord Cottenham there says : " It is no doubt true as a general rule that the delivery by the consignor to the carrier is a delivery to the consignee, and that the risk is after such delivery the risk of the consignee. This is so if, without designating the particular carrier, the consignee directs that the goods shall be sent by the ordinary conveyance : the delivery to the ordinary carrier is then a delivery to the consignee, and the con- 1 Aztfmar v. Casella (1867), L. E. 2 C. P. 677, Ex. Ch. 2 Head v. Tattersall (1871), L. B. 7 Ex. 7 ; of. Chapman v. Withers (1888), 20 Q. B. D. 824. 3 Hinchcliffe v. Baruiek (1880), 5 Ex. D. 177, C. A. 4 Kiddell v. Burnard (1842), 9MI4W. 668 ; Eolyday v. Morgan (1858), 28 L. J. Q. B. 9. For list of defects constituting unsoundness, see Benjamin on Sale, 4th ed., p. 616. s Wood v. Smith (1829), 5 M. & B. 124. 8 Budd v. Fairmaner (1831), 8 Bing. 48 ; Anthony v. Halstead (1877), 37 L. T. N. s. 433. ' Power v. Barham (1836), 4 A. & E. 473. NOTES. 145 signee incurs all the risk of the carriage. And it is still more strongly so if the goods are sent by a carrier specially pointed out by the consignee himself, for such carrier then becomes his special agent. " But, though the authorities all establish the general inference I have stated, yet that general inference is capable of being varied by the circumstances of any special arrangement between the parties, or of any particular mode of dealing between them. If a particular contract be proved between the consignor and the consignee, and the circum- stance of the payment of the freight and insurance is not alone a conclusive evidence of ownership — as where the party undertaking to consign undertakes to deliver at a particular place — the property, till it reaches that place and is delivered according to the terms of the contract, is at the risk of the consignor. And again, though in general the following the directions of the consignee, and delivering the goods to a particular carrier, will relieve the consignor from the risk, he may make such a special contract that, though delivering the goods to the carrier specially intimated by the consignee, the risk may remain with him ; and the consignor may, by a contract with the carrier, make the carrier liable to himself. In an infinite variety of circumstances, the ordinary rule may turn out not to be that which regulates the liabilities of the parties." ' This passage is discussed by Blackburn, J., in an instructive judg- ment in The Calcutta Co. v. Be Mattos, which has often been referred to in the text but which was too long for insertion there. He says : " What was the effect of the contract as regards the property in the goods and the right to the price, from the time of the handing over the shipping documents and paying half of the invoice value? There is no rule of law to prevent the parties, in cases like the present, from making whatever bargain they please. If they use words in the contract shewing that they intend that the goods shall be shipped by the person who is to supply them, on the terms that when shipped they shall be the consignee's property, and at his risk, so that the vendor shall be paid for them whether delivered at the port of destination or not, this intention is effectual. Such is the common case where goods are ordered to be sent by a carrier to a port of desti- nation. The vendor's duty is, in such cases, at an end when he has delivered the goods to the carrier, and, if the goods perish in the carrier's hands, the vendor is discharged and the purchaser is bound to pay him the price. If the parties intend that the vendor shall not merely deliver the goods to the carrier, but also undertake that they shall actually be delivered at their destination, and express such 1 Dmlop v. Lambert (1839), 6 01. & Fin. 600, at pp. 620, 621. L 146 APPENDIX II. intention, this also is effectual ; in such a case, if the goods perish in the hands of the carrier, the vendor is not only not entitled to the price, but he is liable for whatever damage may have been sustained by the purchaser in consequence of the breach of the vendor's contract to deliver at the place of destination. But the parties may intend an intermediate state of things ; they may intend that the vendor shall deliver the goods to the carrier, and that, when he has done so, he shall have fulfilled his undertaking, so that he shall not be liable in damages for a breach of contract if the goods do not reach their destination; and yet they may intend that the whole or part of the price shall not be payable unless the goods do arrive. They may bargain that the property shall vest in the purchaser, as owner, as soon as the goods are shipped, that they shall then be both sold and delivered, and yet that the price (in whole or in part) shall be payable only on the contingency of the goods arriving, just as they might, if they pleased, contract that the price should not be payable unless a particular tree fall ; but without any contract on the vendor's part in the one case to procure the goods to arrive, or in the other to cause the tree to fall. Where the contract is of this kind, the position of the vendor and purchaser, in case the goods do not arrive, is analogous to that of freighter and shipowner, in the ordinary contract of carriage on board a ship, in case the goods are prevented from arriving by one of the excepted perils. The shipowner is not bound to carry and deliver at all events ; but, though he is excused if prevented by the excepted perils, yet no freight is earned or payable unless the goods are deli- vered. In the case of freight, also, the question often arises, whether a payment made at the port of shipment is an advance of part of the freight, returnable if the goods are not delivered and freight earned, or is an absolute payment, leaving only the balance contingent on the safe delivery of the goods — a question very analogous to the one that arises on the present contract." 1 1 Calcutta Co. v. De Maltos (1863), 32 L. J. Q. B. 322, at p. 328. See the cases as to pre-payment of freight collected in M'Lachlan on Shipping, p. 443. INDEX. " ABOUT," as affecting quantity of goods, 49, 142, 143 ACCEPTANCE, under Statute of Frauds, 8, 121 in performance of contract, 54 when wrong quantity delivered, 49 after breach of condition, 16 after breach of warranty, 83 See also Action ; Buyeb. ACTION, breach of warranty of title, 18 delay in taking delivery, 55 to recover stolen goods when thief convicted, 42 to enforce stoppage in transitu, 70 to recover price, 75 for non-acceptance, 76 for non-delivery, 77 for delayed delivery, 80 to enforce specific performance, 81 for conversion or detinue, 80 breach of warranty of quality, 83 for damages on loss by re-sale, 73 effect of judgment in conversion or detinue, 4 for not giving bill for price, 76 by assignee of bill of lading, 125, 126 ACTUAL BECEIPT, 7, 121 AFTER-ACQUIRED PEOPERTY, transfer of, 9, 29 L 2 jj 148 INDEX. [ AGENCY, application of general law, 6 1 1 1 j ] agents to sign under Statute of Frauds, 123 " Mercantile agent " defined by JTactors Act, 98 See Factors Act. AGREEMENT TO SELL, defined, 1 distinguished from sale, 3 concerning future goods, 9 is within Statute of Frauds, 8 when converted into a sale, 1, 3, 27 See Contract op Sale ; Sale. " ALL FAULTS," sale with, 16, 143 ANTECEDENT DEBT, transfer of hill of lading for, 71 pledge of document of title for, 104 APPARENT OWNERSHIP, does not give title to sell, 37, 38, 98 APPROPRIATION, of goods to contract, 29, 32, 33 APPROVAL, sale on, 29, 31 ARRIVAL, sale of goods " to arrive," 140 ASSENT, to appropriation of goods to contract, 29, 33 of seller to sub-sale, 70 induced by fraud, 40, 41 when presumed from delay, 54 ASSIGNMENT, of future goods, 9, 10 of document of title, 109 ATTORNMENT, delivery effected by, 47, 48, 91 of carrier, to end stoppage in transitu, 68 INDEX. 149 AUCTION, rules as to sales by, 88 auctioneer agent to sign, 123 sale of land by, 132 BAILEE, delivery by attornment of, 47, 48, 91 buyer or seller as bailee for the other, 35, 91, 121 seller's lien, when he holds for buyer, 63 See Carrier. BAILMENT, distinguished from sale, 2, 93 BANKKUPTCY. See Insolvency. BARGAIN, sale of, distinguished from sale of goods, 9 BARGAIN AND SALE, distinguished from sale and delivery, 3 n., 75, 76 BARTER, distinguished from sale, 87 BILL OP LADING, general note on, 126, 127 distinguished from other documents of title, 48 effect of transfer on stoppage in transitu, 71 the Act of 1855, 125 reservation of jus disponendi by, 33, 34 BILL OP EXCHANGE, as conditional payment, 56 bill of lading to be exchanged for, 34 refusal to give for price, 76 BILL OP SALE, ship or share in ship must be transferred by, 6 n. documents of title do not constitute, 100 BREACH OF CONTRACT. See Action; Damages. BROKER, agent to sign, 123 bought and sold notes by, 123 entry of contract in book by, 123 is within Factors Act, 98, 1 02 150 INDEX. BUYER, duty to accept and pay, 45, 46 bound to fetch goods away, 47 carrier is agent of, to receive, 51 risk of, if delivery at distant place, 52 right of examination on delivery, 53 what is an acceptance by, 54 mode of rejecting goods, 55 neglecting to take delivery after notice, 55 actions against, 75-77 actions by, 77-85 effect of sub-sale by, 70 obtaining goods or documents before sale, 107, 108 may be bailee for seller, 35, 91 CAPACITY, to buy and sell, 5 distinguished from authority, 6 CARGO, sale of, 142 CARRIER, agent to receive, but not to accept, 52, 121 delivery to, to pass property and risk, 30, 33, 35, 144 reservation of jus di&ponendi on delivery to, 33, 34 delivery to, as performance of seller's contract, 51, 145 necessary risks of transit through, 51, 52 delivery to 4 ends seller's lien, 62 stoppage in transitu of goods in possession of, 66-68 duties of, when seller stops goods, 69, 70 who is the person to sue, 144 Lord Cottenham's summary of the law, 144, 145 CAVEAT EMPTOR, 20, 21 CHARGES ON GOODS, implied warranty of freedom from, 18 for warehousing, &c, when buyer delays taking delivery, 55 list of stipulations judicially construed,. 142 CHARTER PARTY, effect on stoppage in transitu, 67 CIVIL LAW. See Roman Law. INDEX. 151 CODE NAPOLEON, object of citing, Introd., p. vi. property may pass by contract, 4, 27 rule as to partial loss, 11 warranty of title and freedom from incumbrance, li warranty as to latent defects, 23 incidence of risk, 36 rules as to title, 39, 42 possession vaut Hire, 39, 97 place of delivery, 47, 48 obligation to deliver, 45 stoppage in transitu, 59 CONDITION OP GOODS, ■ caveat emptor, and its exceptions, 20 on sale by sample, 23, 24 CONDITIONS, sale may be subject to, 1, 3 suspensive or resolutive, 4, 32 implied by law, how negatived, 13, 90 fulfilment of, prevented by opposite party, 14 when to be treated as warranty, 16 construction of express, 139 list of express, judicially construed, 140-144 implied, on sale by description, 19, 22 implied, on sale by sample, 23, 24 payment and delivery usually concurrent, 46 stipulations as to time, 14, 141 conditional acceptance, 54 goods on approval, or on sale or return, &c, 29, 31 conditional delivery, 33 impossibility of performance, 11, 139 all reasonable, are implied, 48 conditional payment, 56 See also Performance ; Warranty. CONDUCT, sale implied from, 7 CONSTEUCTION OF CONTRACT, with reference to usage, 7, 46, 90 rule, when in writing, 7, 15, 139 stipulations as to time, 14, 141 152 INDEX. CONSTRUCTION OF CONTRACT— continued. whether stipulation is a condition on warranty, 16 express terms may negative implied, 13, 21, 90 effect of representations, 15 reasonable conditions to be implied, 48 rule of caveat emptor, 20, 21 presumption against credit, 46 as to Statute of Frauds, 120-124 effect of sample on, 24 intention to pass property, 26, 27, 28 reasonable price, 12 reasonable time for delivery, 47, 48 list of stipulations judicially construed, 140-144 See also Maxims. CONSTRUCTIVE POSSESSION OR DELIVERY, 47, 91 CONTRACT OF SALE, defined, 1 includes sales and agreements to sell, 1, 3, 90 distinguished from bailment, work and materials, &c.„2, 3, 87 may include a conveyance, 3, 27 how created, 6 restrictions on, by Statute of Frauds, 7, 119-125 subject matter of, 8 the consideration for, or price, 11, 87 conditions and warranties, 13-26 transfer of property by, 24-35 incidence of risk, 35, 51, 52 transfer of title by, 37-44 performance by seller and buyer, 45-55 rights of unpaid seller against goods, 56-74 seller's remedies by action, 75-77, 85 buyer's remedies by action, 77-86 exempt from stamp duty, 137 See Constbuctioh ; Maxims. CONVERSION OF GOODS 4, 80, 81 CONVEYANCE, included in sale, 3, 27 satisfied judgment in trover or detinue operates as, 4 CREDIT (SALE ON), presumption against, 46 effect of, on seller's lien, 59 INDEX. 153 CREDIT (SALE ON)— continued. how if buyer become insolvent, 59 does not affect stoppage in transitu, 63, 64 action for price, 75, 76 effect of agreement to give bill of exchange, 76 list of stipulations judicially construed, 141 CUSTOM OF TRADE. See Usage. DAMAGES (MEASURE OP), action for price and interest, 75 action for non-acceptance, 76 action for non-delivery or delay, 77, 80 action for conversion, 81 action for breach of warranty of title, 18 action for breach of warranty of quality, 83 rule as to special damage, 78, 85 See Action. DELAY, in taking delivery, 55 in making delivery, 14, 48, 80 at opposite party's request, 124 DELIVERABLE STATE, meaning of, 28 DELIVERY, definition, 91 actual or constructive, 91 symbolic, 91 goods in possession of third person, 45, 47, 48 by delivery of key, 47, 91 by mistake, 92 property may pass without, 3, 27 reservation of jus disponendi, 33 duty of seller as to, 45, 46, 145 how effected, 47, 48 time, place, and hour, 47, 48 wrong quantity of goods, 49 instalment deliveries, 50 risk when at distant place, 52 right of buyer to examine on, 53 damages for delay in taking, 55 154 . INDEX. DELIVERY— continued. damages for non-delivery or delay, 77, 80 partial delivery, 61, 67. See Part Delivery. construction of stipulations as to, 145 list of stipulations as to, 141 anticipation of, 66, 69. to carrier, 51. See Carrier. DELIVERY ORDER, is a document of title, 100 stamp on, 134, 137 common law effect of, 48 under Factors Act, 101-109. See Factors Act. DESCRIPTION, sale of goods by, 19 errors in, 19 DESTINATION, meaning of, 68 DESTRUCTION OF THING SOLD, before sale, 10 after agreement to sell, but before property passes, 11 in other cases, 35 in hands of carrier, 51, 52 DETINUE, effect of satisfied judgment in, 4 when buyer may maintain action for, 80 DISPOSAL, reservation of right of, 33 DIVISIBLE CONTRACT, warranties, 16 instalment deliveries, 50 seller's lien, 61 damages, 77, 78 lots at an auction, 88 DOCK WARRANT, definition and stamp, 134, 137 common law effect, 48 is a document of title, 100 effect of Factors Act, 101-109. F" "»w™)= Act. INDEX.- 155 DOCUMENT OF TITLE, defined by Factors Act, 100 common law effect, 48 effect of Factors Act, 101-109. See Factors Act. provisions of Stamp Act, 134, 137 outside Bills of Sale Acts, 100 DRUNKEN MAN, sale by or to, 6 EARNEST, 122 ELECTION, to appropriate goods to contract, 32 EMBLEMENTS, treated as goods, 92 EQUITABLE ASSIGNMENT, 9, 10 ESTOPPEL, against owner where goods sold by another, 37 seller assenting to sub-sale, 70 EVIDENCE, to explain or annex incidents to sale, 7, 90 to avoid contract, 7 in mitigation of damages, 80 of readiness to deliver or pay, 46 EXAMINATION (BUYER'S RIGHT OF), in general, 53 on sale by sample, 23, 24 effect on rule of caveat emptor, 22 EXCHANGE OF GOODS, 87 EXECUTED AND EXECUTORY CONTRA DTK, ?, pa 77 EXECUTION CREDITOR, title as against purchaser, 43, 44, 130 EXPECTANCY, sale of, 9 156 INDEX. FACTORS ACT, 1889, 97-111 history of legislation, 97 mercantile agents, 98, 99 documents of title, and mode of transfer, 100, 109 definition of pledge, 101 sale or pledge by mercantile agent, 101-104 revocation of agent's authority, 103 pledge of document deemed pledge of goods, 104 pledge for antecedent debt, 104 consideration for sale or pledge, 104 exchange of goods or documents, 104, 105 agreements through clerks, 105 consignee's lien, 105, 106 seller remaining in possession of goods or documents, 106 buyer getting possession of goods or documents, 107 transfer of document of title as affecting lien or right of stoppage, 71, 108 rights between principal and agent, 109, 110 set-off against agent, 110 common law powers of agent saved, 110 repeal of previous Acts, 111, 112 application and commencement, 111 FAILUEE OF CONSIDERATION, 84, 85, 86 FALSE PRETENCES, goods obtained by, 40, 41, 102 FI-FA, effect of writ on buyer's right, 43, 44, 130 FIXTURES, are not goods, 92 FORBEARANCE, to make or require delivery, 123 FRAUD, doctrine of legal fraud exploded, 95 effect of fraudulent representation, 15, 85 seller knowing he has no title, 17 sale under voidable title, 40, 41 re-vesting, on conviction, where goods obtained by false pretences, 41,42 parol evidence to prove, 7 application of general law, 4 caveat emptor, 21 INDEX. 157 FEAUDS (STATUTE OF), general effect (s. 17), 7, 8 amended by Lord Tenterden's Act, 8, 120 the Acts set out, 119, 120, 124 " contract of sale," 120 " goods, wares, and merchandise," 92, 120 price or value, 10, 120, 122 " allowed to be good," 120 acceptance, 121 actual receipt, 121 part of the goods, 121, 122 earnest, 122 part payment, 122 note or memorandum, 122 signature, 122 agents to sign, 122 parties to be charged, 122 auctioneers, 123 brokers, their notes and contracts, 123 rescission or variation of contract, 123 agreements relating to land, &c. (s. 4), 92, 119 effect of writs of execution (s. 16), 44, 119 FREE ON BOAED, 142 FREIGHT, effect of lien for, 68, 126, 127 FUTUEE GOODS, contract for sale of, 8, 9, 26 when property in, passes, 26, 29, 31 GOOD FAITH, meaning of, 95 GOODS, what included in term, 92, 120 specific and general goods, 94 existing and future, or after acquired goods, 8-10 re-sale of perishable, 73 destruction of, before sale, 10, 11 documents of title to, 100 pledge of document deemed pledge of goods, 104 delivery of wrong quantity or mixed, 49 exchange of, 87 158 INDEX. GROWING CROPS OR TIMBER, 92 HORSES, Acts relating to sale of, 40, 113-118 representations as to, 21 warranties judicially construed, 144 IMPOSSIBILITY, as excusing performance of contract, 11 rule for test of, 139, 145, 146 INDEPENDENT AGREEMENTS, 50. See also Warranty. INFANT, liability for necessaries, 5 INSOLVENCY, what constitutes, 95 seller's lien when buyer insolvent, 59 right of stoppage in transitu, 63, 64 re-sale when buyer insolvent, 74 agreement to rescind in case of, 61 INSPECTION (RIGHT OF), 22, 23, 53. See Examination. INSTALMENTS, breach of contract for delivery by, 50 measure of damages, 78 seller's lien, 61 INTENTION TO PASS PROPERTY, is effectual when clear, 26, 27 rules for ascertaining, 28-35 INTEREST, when recoverable as damages, 76, 79 JUS DISPONENDI, reservation of, 33 JUS, in personam, 3 ad rem, 27, 37 in rem, 3, 27 INDEX. 159 KEY, delivery of goods by giving, 47, 91 KNOCK OUT, at auction sale, 90 LAND, sale of things attached to, 92 agreements relating to, 119 Sale of Land by Auction Act, 132 LARCENY ACT, 1861, revesting of goods in true owner, 41, 131 LAW MERCHANT, 57, 58, 97. See Usage. LICENSE TO SEIZE, taking under is a delivery, 9, 92 distinguished from assignment, 9 n. LIEN, arises by implication of law, 90 distinguished from property in goods, 93 of consignee under Factors Act, 105, 106 of unpaid seller, 59-63, 71. See Seller's Lien. LOSS OF GOODS, 35. See Risk. MAKER OR MANUFACTURER. See Manufactured Article. MANUFACTURED ARTICLE, implied warranty of fitness for purpose, 20, 22 warranty of merchantable quality, 20-22 warranty that it is seller's own make, 21 warranty as to trade mark, 20, 138 where property in, passes to buyer, 30, 31 risk when delivery at distant place, 52 See also Futtoe Goods. MARKET OVERT, rules as to sales in, 39, 40 recovery of goods sold in, when thief convicted, 41, 131 MARKET PRICE, distinguished from reasonable price, 12 n. measure of damage for non-acceptance, 77 measure of damage for non-delivery, 78, 79 160 INDEX. MASTER OP SHIP, special power of sale by, 38 duty as to stoppage in transitu, 69, 70 when agent of buyer,. 67 See Carrier. MAXIMS, Alterius circumventio alio non prssbet actionem, 89 n. Caveat emptor, 20, 21, 22 every reasonable condition is implied, 48 Expressumfacit cessare taciturn, 13, 90 Falsa demonstrate non nocet, 19 Fraus omnia vitiat, 15 Genus nunquam perit, 11 Modus et conventio vincunt legem, 13 Possession vaut titre, 39, 97 Res perit domino, 35, 36 Si ess pro auro veneat, non valet, 19 Simplex commendatio non obligat, 15 Solutio pretii emptionis loco habetur, 5 n. Verba fortius accipiuntur contra prof erentem, 14 MEASURE OP DAMAGES. See Damages. MEASUREMENT, when property does not pass before, 28, 29 MEMORANDUM IN WRITING, under Statute of Frauds, 7, 122 effect on verbal warranty, 15 n. parol evidence to explain, &c, 7, 124 MERCANTILE AGENT, defined by Factors Act, 98 effect of dispositions by, 101 acting in two capacities, 99, 102 MERCANTILE LAW AMENDMENT, Commission of 1855, Introd., p. vii. Scotch Act of 1856, 128 English Act of 1856, 129 MERCHANDISE MARKS ACT, warranty implied by, 138 MISREPRESENTATIONS, 15, 19, 21 INDEX. 161 MISTAKE, delivery by, 92 contract induced by, 7, 15 MONTH, means calendar month, 14 NECESSARIES, meaning of term, 5 NOTE IN WRITING, under Statute of Frauds, 7, 122. See Memorandum. NOTICE, of stoppage in transitu, 69 meaning of, in Factors Act, 102, 106 of intention to re-sell, 73, 74 OVERRULED, &c. CASES (Table of), p. xxiii. OWNER (TRUE), sale without consent of, 37, 38 recoveiy of stolen, &c, goods by, 41 saving of rights under Factors Act, 109 OWNERSHIP, transferred by sale, 2 distinguished from special property, 93 effect given to apparent, by Factors Act, 97, 98 See Property. PART ACCEPTANCE, when wrong quantity delivered, 49 when right quantity tendered, 49 to satisfy Statute of Frauds, 121, 122 PART DELIVERY, instalment contracts, 50 tender of wrong quantity, 49 effect on seller's lien, 61 effect on stoppage in transitu, 67 PART PAYMENT, does not divert lien or right of stoppage, 56, 57 satisfies Statute of Frauds, 122 M 162 INDEX. " PARTIES TO BE CHARGED," 123 PATENT DEFECT, 22, 24 PAWN. See Plbiige. PAYMENT, duty of buyer, 45, 75 usually concurrent condition with delivery, 46, 146 action for non-payment, 75 refusal to accept and pay, 76 conditional, by negotiable instrument, 56 stipulations as to time of, 14j 72, 73, 141 instalment contracts, 50 part payment under Statute of Frauds, 122 PERFORMANCE OF THE CONTRACT, duties of seller and buyer, 45 payment and delivery as concurrent conditions, 46 rules as to delivery, 47, 145, 146 delivery of wrong quantity or mixed goods, 49 instalment contracts, 50 delivery to carrier, 51, 144 risk of goods delivered at distant place, 52 buyer's right of examining the goods, 53 acceptance by buyer, 54 mode of rejecting goods, 55 default of buyer in taking delivery, 55 specific, may be decreed, 81 PERISHABLE GOODS, re-sale on buyer's default, 73 PLACE OF DELIVERY, 47, 52 PLACE OF PAYMENT, 75 PLEDGE, distinguished from sale, mortgage and lien, 93 definition under Factors Act, 101 effect of pledge of documents, 104 for antecedent debt, 104 powers of mercantile agent, 101 power of seller or buyer in possession of goods or documents, 106 of bill of lading, 71, 126 - unpaid seller's lien compared to, 57 INDEX. 163 PLEDGEE, power of sale by, 38 of bill of lading not liable for freight, 126 POSSESSION, actual or constructive, 91. See Delivery. " possession vaut titre," 39, 97 defined by Factors Act, 99 POTHIEE, as an authority in England, Introd., p. vi. PRICE, rules for ascertaining, 11, 12 alternative, in nature of wager, 12 agreement for valuation by third party, 12 £10 and upwards, 7, 120 statement of, in note or memorandum, 122 action for, by seller, 75 rights of seller if wholly or in part unpaid, 56, 57 rights of sub-purchaser on paying, 61, 72 reserve at auction sale, 89, 132 list of stipulations judicially construed, 142 PROPERTY, denned, 93 distinguished from right to possession, 93 sale is a transfer of, 1, 2 when it passes to buyer, 26-35. See Transfer. risk prima facie goes with, 35 PUFFER, at auction sales, 89, 132 QUALITY, caveat emptor, and its exceptions, 20 sales by sample, 23 express warranties, 14, 143 QUANTITY, delivery of wrong quantity, 49 list of expressions judicially construed, 142, 143 READINESS, to pay or deliver, how proved, 46 164 INDEX. READY MONEY, presumption that sale is for, 46 RECEIPT, " actual receipt " in Statute of Frauds, 121 for money paid, 135 REJECTION, mode of rejecting goods, 55 when allowed for breach of warranty, 83 See Return. REPRESENTATIONS, different kinds and their effect, 15 See also False Pretences ; Fraud. RES PEBIT DOMINO, 35, 37 RE-SALE, by seller, 72, 73, 106, 108 by buyer, 70, 107 RESCISSION OF CONTRACT, by mutual consent, 124 by consent when buyer insolvent, 61 if there be a resolutive condition, 4, 32, 73 on exercise of lien or right of stoppage, 72, 73 non-performance of instalment-contract, 50 in case of fraud, 15, 85 RESOLUTIVE CONDITIONS, 4, 32, 73 RETURN OF GOODS, not necessary on rejection, 55 goods on approval or sale or return, 29, 31 claim for breach of warranty without, 83, 85 RISK, general incidence of, 35 goods delivered to carrier, 61 delivery at distant place, 52 destruction of goods before sale complete, 10, 11 ROMAN LAW, weight of, in England, Introd., p. vii. buyer purchasing his own goods, 2 property did not pass till delivery, 3, 27, 37 INDEX. 165 ROMAN LAW — continued, rule as to fixing price, 12, 1 3 stipulations construed against seller, 14 warranty of title, 18 goods to answer description, 19 the obligatio certi corporis, 31, 37 rule as to incidence of risk, 36, 37 seller can give no better title than his own, 39 obligation to deliver, 45 puffing at auction sales, 90 recaption on buyer's insolvency, 58 sale and exchange contrasted, 88 SALE, defined, 1 general nature of, 2 distinguished from agreement to sell, 1, 3, 75, 76 includes bargain and sale, and sale and delivery, 3 where agreement to sell becomes, 1, 3, 4, 27 destruction of goods before, 10, 11 included in " contract of sale," 3 distinguished from exchange, 87 exemption from stamp duty, 137 subject-matter of, 8 by sample, 23 by auction, 88 on trial or approval, 29, 31 See also Oontbaot of Sale. SALE OR RETURN, 29, 31 SAMPLE, nature and function of, 24 rules as to sale by, 23 discussion of rules, 24, 25 goods must accord with description, 19, 25 bulk sample to satisfy Statute of Frauds, 121 SCOTCH LAW, differs from English, Introd., p. iv. vii. property does not pass till delivery, 3, 27 warranty of title, 18 no warranty that goods are of seller's own make, 21 n. 166 INDEX. warranty of quality, 23, 129 no rule of market overt, 40 rights of execution creditor, 44, 128 seller's right of retention, 58, 128 stoppage in transitu, 59 recovery of interest on price, 76 damages for non-delivery, 79 Statute of Frauds does not apply, 8 application of Factors Acts, 111 Mercantile Law Amendment Act, 128 SELLEE, duty to deliver, 45, 46, 145 mode of delivery by, 47 duty of, in delivering to carrier, 51, 52 liability, if he refuses to take back rejected goods, 55 n. when deemed to be unpaid, 56 rights of, when unpaid, against the goods, 57 re-sale by, when buyer in default, 72, 73 left in possession of goods or "documents, 74, 106 remedies by action, 75 actions against, 76. -See Action. may be bailee for buyer, 35, 36, 121 warranties by, 17-25, See Waebantt. SELLER'S LIEN, who is an unpaid seller, 56 origin and nature of lien, 57 , distinguished from stoppage in transitu, 58 when it arises, 59 effect of part delivery on, 61 how terminated, 62 effect of sub-sale by buyer, 70 does not usually rescind the contract, 72, 73 SHAEES, are things in action, 92 SHERIFF, power of sale by, 38 effect of delivery of writ to, on subsequent sale, 43 does not warrant title, 18 SHIP, transferred by bill of sale, 6 n., 100 paid for by instalments as built, 31 INDEX. 167 SHIPMENT, as appropriation of goods to contract, 30, 33 duty of seller on making, 52 when right of stoppage ended by, 67 list of stipulations judicially construed, 140 bill of lading as evidence of, 126 SPECIAL DAMAGES, 78, 84, 85 SPECIFIC GOODS, definition discussed, 94 perishing before sale complete, 10, lr property in, may pass by contract, without delivery, 27 rules to determine when property passes, 28, 30 caveat emptor applies to sale of, 21 SPECIFIC PERFORMANCE, 81 STAMP DUTY, exemption of contracts of sale, 137 bills of lading, 134, 137 delivery orders, 134, 137 warrants for goods, 134, 137 receipts for money, 135, 137 STATUTE OF FRAUDS, 7, 43, 54, 92, 119-125. See Frauds. STATUTES CITED, 2 & 3 Phil, and Mar., c. 7 (Sale of Horses), 40, 113 31 Eliz.,, c. 12 (Sale of Horses), 40, 115 29 Car. 2, c. 3 (Statute of Frauds), 7, 43, 54, 92, 119 4 Geo. 4, c. 83 (Factors), 106, 112 6 Geo. 4, c. 94 (Factors), 100, 102 9 Geo. 4, c. 14 (Lord Tenterden's Act), 8, 124 3 & 4 Will. 4, c. 42 (Recovery of Interest), 76 5 & 6 Vict. c. 39 (Factors), 99, 100, 101-106, 112 17 & 18 Vict. c. 104 (Merchant Shipping), 6 17 & 18 Vict. c. 125 (Common Law Procedure), 82 18 & 19 Vict. e. Ill (Bills of Lading), 71, 125-127 19 & 20 Vict. c. 60 (Mercantile Law Amendment, Scotland), 23, 58. 128 19 & 20 Vict. c. 97 (Mercantile Law Amendment, England), 44, 81. 129 24 & 25 Vict. c. 96 (Recovery of Stolen, &c, Goods), 41 30 & 31 Vict. c. 48 (Sale by Auction), 89, 132 33 & 34 Vict. c. 97 (Stamp Act), 134-137 37 & 38 Vict. c. 51 (Chain Cables and Anchors), 20 37 & 38 Vict. c. 62 (Infants Relief), 5 168 INDEX. STATUTES CITED— continued. 38 & 39 Vict. c. 63 (Sale of Pood and Drugs), 20 40 & 41 Vict. c. 39 (Factors), 98, 103, 107, 108, 112 41 & 42 Vict. c. 31 (Bills of Sale), 100 44 & 45 Vict. c. 41 (Conveyancing), 18 50 & 51 Vict. c. 28 (Merchandise Marks), 20, 138 52 & 53 Vict. c. 97 (Factors), 38, 74, 97-112 STOLEN GOODS, 37, 41 STOPPAGE IN TEANSITU, origin of right, 58 nature of transit, 63 duration of transit, 66 how stoppage effected, 69 SUB-SALE, effect of, by buyer, 70, 107, 108 TEEMS AND STIPULATIONS, list of, judicially construed, 140-144 TIME, construction of stipulations as to, 14 reasonable, for delivery, 47, 48 list of stipulations judicially construed, 141 TITLE, implied warranty of, 17 transfer of, by sale, 37-44. See Transfer. See also Document of Title. TEADE MAEK, implied warranty as to, 138 TBANSFEE, of document of title, 109 of bill of lading, 71, 125-127 (a) of property as between seller and buyer — goods must be ascertained, 26 property passes when intended to pass, 26, 27 conditional sale of specific goods, 1, 3 • unconditional sale of specific deliverable goods, 28 goods not in deliverable state, 28, 30 when price to be ascertained by seller's act, 28, 29, 31 goods on approval or sale or return, 29, 31 appropriation of goods to contract, 29, 30, 32 delivery to carrier, 30, 33, 144. See also Delivery; article specially made for buyer, 30, 31 INDEX. 169 TRANSFER— continued. assignment of future goods, 9, 29 reservation of right of disposal, 33, 34 risk usually passes with property, 35 (b) of title— sale by person not the owner generally ineffectual, 37, 38 provisions of Factors Act, 38, 97. See Factors Act. special common law or statutory powers, 38 market overt, 39, 40 sale under voidable title, 40 revesting of stolen, &c, goods on conviction, 41 seller or buyer remaining in possession, 42, 106 effect of writs of execution, 43, 130 common law powers of mercantile agent, 110 TRANSIT, what constitutes, 64, 65. See Stoppage in transitu: TROVER, 4, 80. See Conversion. TRUSTEE, may affirm contract, 74 UNASCERTAINED GOODS, property passes by appropriation, 26, 29 UNPAID SELLER, who deemed to be, 56 remedies of, against the goods, 57 See Seller's Lien ; Stoppage in transitu. USAGE OF TRADE, to explain or annex incidents, 7, 90 to import warranty, 20 contrasted with rules of law, 97 VALUATION, agreement to sell goods at, 12, 13 VALUE, of £10 and upwards under Statute of Frauds, 120 what constitutes, under Factors Act, 104 as measure of damages, 81, 84 VARIATION OF CONTRACT, 124 N 170 INDEX. WAGER, when sale void as, 12 WAIVER, of condition precedent, 17 of right of inspection, 22, 53 of seller's lien, 62 of right of stoppage in transitu, 68 WARRANTY, discussion of definition, 95 how implied, may be negatived, 13, 21 how annexed to contract of sale, 14, 20 what affirmations operate as, 15, 21 when condition is to be treated as, 16 implied warranty of title, and freedom from lien, 17, 18 annexed by usage of trade, 20 of fitness for particular purpose, 20, 22 of merchantable quality and condition, 20, 21 as to goods being of seller's own make, 21, 138 on sale by sample, 23, 24 special warranties by statute, 20, 138 remedies for breach of warranty, 83 measure of damage for breach, 83, 84 list of warranties, judicially construed, 143, 144 WEIGHING GOODS, when condition precedent to property passing, 29 "WITH ALL FAULTS," 16, 143 "WITHOUT RESERVE," 89, 142 WORK AND MATERIALS, distinguished from sale, 3 WORDS AND PHRASES, list of, judicially construed, 140-144 LONDON: ritlNTEI) BV WILLIAM CLOWKS AND SONS, LIMITED, STAMFOKD STREET AND CHARING CROSS.