kZ^'> Cornell University Law Library. | THE GIFT OF LILLIAN HUFFCUT BINGHAMTON, N. Y. NOVEMBER 27, 1915 1;^^^^-"-, The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018847420 A TREATISE ON THE EFFECT OF THE CONTRACT OF SALE ON THE LEGAL RLGHTS OF PROPERTY AND POSSESSION IN GOODS WARES, AND MERCHANDISE. BY LOED BLACKBURK From the Second English Edition. BY J. C. GRAHAM, OF THE MIDDLE TBMPLB, BAKBISTER-AT-LAW. PHILADELPHIA : THE BLACKSTONB PUBLISHING COMPAJSnT. 1887. Entered according to the Acte of Congress, in the year 1887, By the blackstone publishing company, In the office of the Librarian of Congress, at Washington, D. C. (1836) A TREATISE ON THE EFFECT OF THE CONTRACT OF SALE. (1837) (V) INTRODUCTION TO THE SECOND EDITION. In preparing, with Lord Blackburn's kind permission, a second edition of this work, I felt it important that the reader should be able to see at a glance what, in all mate- rial respects, were the words of the original text. I have therefore endeavoured clearly to distinguish, by the use of brackets, wherever I have deem it necessary to do so, all new matter which has been introduced either by way of addition or alteration, and for which I am alone re- sponsible. The whole of the Chapters on "Equitable Interests and Assignments," on "Damages," and on "Interest," are my own, as well as a considerable portion of that on "Condi- tions Precedent" and the "Remedies of the Parties." I take, with pleasure, this opportunity of thanking my friends of the Middle Temple, Mr. A. V. Blumberg, and Mr. R. W. Wallace, for help kindly given me in the task of correcting the jjroof sheets. My thanks are also more particularly due to Mr. C. H. L. Neish, Mr. Lionel Good- rich, and Mr. F. H. Salusbury, for much general assist- ance, and especially to Mr. S. J. Fraser. Macleod for much valuable criticism and assistance in the preparation of the Chapter on Equitable Interests and Assignments. J. C. GRAHAM. Tbmple, 1885. (1839) (vii) INTRODUCTION TO THE FIRST EDITION. It is often of much importance to determine whether a litigant has a legal property in the subject-matter of dispute or merely a right of action against a person. The form of the remedy very frequently depends upon the answer to this, question ; for instance, a plaintiff cannot maintain, trover or trespass de bonis asportatis, unless he has a right to the possession of the goods which are the subject of the action; neither can a vendor of goods maintain an action of goods bargained and sold unless the property has, been transfer red to the purchaser. And not only may the technical forms of action depend upon this, but sometimes the sub- stantial question itself turns upon it ; if property is de- stroyed either by pure accident or by the wrongful act of a party who is unable to pay for it, the loss in general falls upon the owner of the property ; and in cases of insolvency, a creditor who has a legal or equitable right to a thing has the full benefit of it, whilst one whose claim is only against the person of the debtor, can obtain no more than a pro- portion of the insolvent estate along with the other credi- tors. In such cases, therefore, it is commonly one of the xnost important inquiries whether the creditor has any right to some speciiic property or not. It is the object of the following Treatise to investigate one branch of this important subject, viz., how the legal interest in moveable corporeal property is affected by a sale of it. Railway shares, stock, &c., and those kinds of property that are not tangible are of a different nature, and so is the property in the materials on which contracts or documents of title are written, which, in general, is considered as at- tached to the writing on them. And the law regulating the property in ships in some degree differs from that affecting (1841) Viii INTRODUCTION TO THE FIRST EDITION. other moveable property, but as the law respecting them lias been treated of by Lord Tenterden, in his Treatise on Shipping, it is not intended to touch upon that subject. But subject to these exceptions, the law is the same as regards all moveable property, whether it be live stock or dead, manufactured goods or raw material, in short, of everything capable of touch and not lixed to the soil. The object of this Treatise, as already stated, is to discuss how far tlie property in goods, is, by the law of England, affect- ed by an agreement concerning the sale of them. By the common law of England, no peculiar form is re- quired to give validity to a contract or agreement. It is essential that there be a mutual assent of both parties as to what is agreed upon, and also (unless the agreement be by deed) that there be a consideration for the engagement of the parties, for if not, the agreement is merely honorary and not enforced by the law ; but if these essential circum- stances can be shown to exist the common law is satisfied. The agreement might, at common law, be enforced, if the mutual assent of the parties and the consideration could be proved ))y any evidence. But by statute law, no contract for the sale of any goods, wares, or merchandize for the price of lol. or upwards shall be allowed to be good except there be evidence of a jjarticular character. When this evidence exists the effect of the agreement is the same as it would have been at common law. A contract concerning the sale of goods may be defined to be a mutual agreement between the owner of goods and another, that the property in the goods shall for some price or consideration be transferred to the other, at such a time and in such a manner as is then agreed. If the considera- tion to be given for the goods is not money, it might, per- haps in popular language, rather be called barter than sale, but the legal effect is the same in both cases. Such an agreement may have different effects in law upon the ownership of the goods to which it relates. It may be an agreement perfectly binding on the parties so as to give either of them a remedy against the person and general estate of the other for any default in fulfilling his part of (1842) INTRODUCTION TO THE FIRST EDITION. IX the agreement, but having no effect on the property or right of possession in tlie goods, and giving the proposed pur- chaser neitlier the rights nor the liabilities of the proprietor; so that he has no preferable right to the goods themselves, nor any means of enforcing his demand against them more than any other creditor, and on the other hand he is not liable to any loss arising from the destruction or injury of the goods. Such agreements are generally called " Executory Agree- ments."' Or it may be an agreement amounting to a bargain and sale of the goods, transferring to the purchaser the general property in the goods, and with it the rights and liabilities attached to property, so that the purchaser has a specific interest in the goods themselves, of which he may avail himself, independently of his remedy against the vendor on the contract, and on the other hand making him liable to the general risk of any loss befalling the goods. Such an agreement is sometimes called an executed sale, but it is more technically called "a bargain and sale of the goods." When goods are bargained and sold, the vendor, if unpaid, still retains certain rights over the goods until they are de- livered. Such being the outline of the law, there are different points which it will be convenient to treat of separately, viz. :— 1st, What is» required to satisfy the provisions of the statute law, and render an agreement concerning the sale of goods capable of being enforced. 2ndly, What agreements amount to a bargain and sale, and what are but executory. 3rdly, What are the rights reserved to a vendor when the general property is transferred to the purchaser, but before it is delivered into his possession. (1843) (xi) TABLE OF CONTENTS. [The paging refers to the [*3 pages. 3 THE 17th section OF THE STATUTE OF FRAUDS . Makes "Wbitten Evidence Necessary . . Contract made abroad .... What Agreements aeb ^vithin it Moveable property of all sorts . Sales by auction Goods not ready for delivery. Lord Tenterden's Act Things attached to the soil Unsevered crops . . . . . . . Emblements Fixtures are not goods Test, whether or not an interest in land is created . . " whether the contract is for goods or work and labour . The First Exception. Acceptance and Receipt . What Constitutes an Acceptance . ... Acceptance of sample . ... " by mistake ' ' sufficiency of evidence of . Carrier not an agent to accept . . . . Acceptance of part of the goods presumed from user . " presumed from delay . " prior to receipt " must be with vendor's assent VPTiai constitutes an Actual Receipt ... Removal by vendee The vendor's agent holds the goods Delivery order lodged with warehouseman Carrier is an agent to receive . . The vendor himself holds the goods Evidence that he holds for the vendee must be clear Cases The Second Exception Earnest and Fart Payment The Third Exception . Paob 1 2 2 2 2 4 5 5 5 12 14 15 16 17 18 19 20 33 22 23 2S 34 24 25 25 25 25 2.-) 26 26 26 39 39 General Considerations as to the Memorandum . . The statute does not effect the construction of the document "Where the memorandum was made for the use of one party only It must be in existence when action brought . . . Parol testimony inadmissible .... Memorandum on separate pieces of paper . What is a sufficient Memorandum .... It must contain the names of the parties . . . But a description may suffice (1845) 40 40 40 43 44 44 44 50 50 54 Xii TABLE OP CONTENTS. [The paging refers to tbe C*J pages.] PAGE Partnership name . . . . 54 Agent's name . 55 Evidence admissible to prove agency . 55 The subject-matter ... 56 The time .... . . 59 The price . . . SO A letter written to repudiate tlie contract ... li:; An invoice . . 65 A telegram . . . 65 Parol acceptance of a written proijosal . (ir, What /.s' a sifjiiaiare 66 Both parties need not sign (id The party to be charged must liixve signed . . - . 66 Eiifect of signature bj' one party only, on his rights against third persons 6(> The signature may be an agent's 67 In writing, in print, at the top, middle or bottom 67 A mark . . 72 A mere description .... 72 A stamp .... ... . 72 In ink or pencil .... 72 Who in an Agent authorized to sign .... 72 Authority need not be in writing . . . . 72 One party acting as agent for the other 72 Authority to sign contrasted Avith authority to contract 7!! Auctioneer is agent to sign, but not to settle terms . 74 Conditions of sale . , . . 7.") Auctioneer's clerk not an agent .... . . . 76 Auctioneer is agent during the sale only 7(i Evidence of authority to sign . 77 Be'okees, theik Books and Notes .... 7S Broker is agent for both parties to sign . 7H Customary authority of brokers . . 79 Control of the Corporation of London SO Brokers Relief ^Vct of 1S70 . . Hil The entry in the broker's book . . SI Bought and sold notes, usual forms of K-t Where broker signs as broker, for disclosed principals 84 Wlierc broker signs as broker, for undisclosed principals H4 Whether one note is a sufficient memorandum . 85 Where the broker signs as principal . 86 Set-ofi" against undisclosed principal . . 87 Where the parties ha*l notice of agency ... 88 Wliether the note or the entry in the book is the memorandum . 92 Eight to return the note 92 Alteration of the note by the broker 9:i Where one party dispenses with the delivery of the note . 94 Where the notes disagree ... 94 Signature of the entry in the book is not essential . 96 Whether the entry in the book is evidence . 97 One sold and three bought notes . 100 Baron Parke's opinion that the acceptance of the notes was evi- dence of a new contract . . . . . 100 Sievewright p. Archibald . , . . 104 Action brought on one note only . . ... 108 Refusal to a<(e])t the note . . . . 109 Broker excceiliiig his authority ... ... . 113 There may be more than one memorandum . . 114 (1846) TABLE OF CONTENTS. XUl [The paging reiers to the [•] pages.] PAGR Parol variations of a Written Contract , 1 1 ."j No action can be brought on a verbal alteration 115 Rescission of the original contract ... 115 A parol rescission of a written contract .115 Parol agreements to postpone delivery . . 116 " to substitute one voyage for another . 117 " to alter the place of delivery . .118 Distinction between a license to vary and a contract to vary 119 Agreement to alter the route for forwarding the goods 120 WHAT AGEEEMENTS AMOUNT TO A BARGAIN" AND SALE, AND WHAT ARE BUT EXECUTORY . IX', The Passing of the Peopeety is a mattee op Intention . 12.3 Executed and executory contracts ... , 124 n. The goods must be specific, or identified . 124 The goods may be made specific after the contract . 128 By mutual assent . . 129 Or by the determination of an election 129 Equitable interest in rem created by a promise to assign 136 Determination of an election by delivery to a carrier . 138 Goods sent on approval 141 Where the vendor takes the bill of lading in his own name 142 Reservation of the jus disponendi ... .... 142 The vendor cannot ship the goods on terms inconsistent with the contract . . . . . . ... 143 Hypothecation 145 Cases upon the effect of the form of the bill of lading on the passing of the property . . . . 145 Deposit of goods to be exchanged . 163 Property passing by action at law . 163 Intention to pass the property induced by fraud 164 Intention to pass the property, but in consequence of a mistake no contract was made . . . . . 165 Exceptions to the rule that a person cannot give a better title than he has ' . . 169 Market overt, purchases in . . . . . 170 CoNniTioNS Precedent 171 Whether a stipulation is a condition precedent or not, is a matter of intention . . . 174, 198 Rules for ascertaining the intention .... .. 175 Where the goods are not in a deliverable state . . . 175 Where ihe goods have to be weighed or measured . . 175 Estoppel 190 Pickard v. Sears » 190 Where a warehouseman has acknowledged the plaintiffs title . 191 Two delivery orders given for the same goods . . . 195 Expressed Conditions Precedent . . . . .... . . 196 GrOods sent on approval ... . . 196 Sale by sample IS" Prior to the performance of the condition the purchaser has no interest 196 Conditions may be precedent to things other than the pa.ssing of the property 198 (1847) Xiv TABLE OF CONTENTS. [The paging refers to the [•] pagfls.} PAGE Whether a stipulation is a condition precedent or a warranty is a loatter of law 198 Payment is not a condition precedent where credit is given 200 A condition precedent may be available as a warranty 200 Conditions Precedent eta to Payment 201 Cash 201 By giving a cheque or an acccptaixe 202 For each instalment . . 205 Quality and Condition .... . 205 Sales by sample . . . 205 Right to inspect . . . . 205 Right to measure . . .... 206 Merchantable condition ... .... 207 Goods packed with other goods . . 209 Iron bars stamped . .211 Quantity .... . . 215 " More or less" . . . 215 "About" . . .215 " Say " . 216 n. " Say not less than " ... . . . 216 n. ■ " Say about "... 216 n. Shipping documents and quantity actually shipped, differ . 218 Instalments 219 Cargo " believed " to be a certain quantity 219 Instructions to an agent to purchase and ship a certain amount . 220 Two cargoes ordered, one not according to contract 223 " Small cargo " . . 223 " Cargo " of a certain quantity ordered . . 223 Time . . . 224 On arrival of certain vessel , 224 Name of vessel to be declared . ... 224 Payment on receipt of shipping documents . . . 225 Delivery within the last fourteen days of j\Iarch 225 "To-morrow," "dii'ectly," "immediately," "forthwith," goods to be shipped . . 226 Payment "within one month": goods demanded before payment 226 Delivery "forthwith," payment within fourteen days " . . 226 Delivery "April 17, complete H May" ' . 227 Shipment within a certain time , 227 "Month," meaning of . 230 Arrirnl and Delivery . . . ... 230 Delivery impossible . , . 230 "On arrival" , 231 Payment two months after " landing " cargo lost 231 " To arrive per ' Mansfield,' " goods transhipped to another vessel 231 "To arrive ex 'Daniel Grant,' " ship arrived, no goods on board 232 "Now on passage" . . . . 232 "Delivered at Harburgh," goods lost ... 233 " To be delivered at Rangoon " . . 234 Freight to be paid " on right delivery " 237 Sale of soda believed to be on board ; other soda subsequently put on 237 (1848) TABLE OF CONTENTS. XV CThe paging refers to the [•] pages.] PAGE Other Conditions Precedent , 239 " To be taken from the quay " 239 "To be purchased at a price to cover cost, freight, and insurance " 239 Tender of two of a set of three bills of lading . . 240 Property to pass if goods damaged by the borrower . 240 Compliaitce with the provisions of a statute ... . 241 Roman and English Law Conteasted ... . . 242 Roman law based on two principles, a fixed price ... . 242 And delivery necessary to the passing of the property . 244 English law, delivery not necessary . . 244 Scotch law, delivery is necessary 244 n. A contract of sale in English law operates to create obligations in personam, and also as a conveyance giving rights in rem . 243 In Roman law it merely creates obligations in personam . . 244 Maxim, "Res perit domino, " is ambiguous 245 ' ' Risk " is no test of property . 247 Distinction between a sale and a promise to sell 247 Pothier, " Contract de Vente, " extracts from . 248 Specific performance in Roman law .... 260 Old case from the Year Book, 17 Ed. 4, 1 . . , 261 Equitable Intekest.s and Assignments . ... . ... 268 Equitable Interests, how created ..... . 268 In a specific fund . . . 268 By an order on a debtor . . . . 260 A promise to assign after-acquired property . . 269 Deposit of goods upon trust .... . 269 Bills drawn against a consignment . . . . 269 The bailee holds the goods strictly on the trusts .... . 270 Cases on the subject . . 27.5 Assignment of Equiiaile Interests . . ... 271 Good in equity, bad at law 271 Often said to occur where bills drawn again.st goods have been in- dorsed away . .... 271 Evidence of .272 The privity is between the assignee and the assignor, not be- tween the assignee and the bailee ... . 272 Is subject to equities affecting the interest . . 272 Notice of assignment to the holder of a fund 272 Equitable estoppel . 273 Cases on the subject ..,•... . 293 Ex parte Waring, the rule in . . . 303 Cases on the subject . . . . . 304 VENDOR'S RIGHTS .... 311 Stoppage in Transitu . • 311 Generally • . • ■ ■ 311 Where no credit, payment on delivery 312 The vendor cannot retake possession on the insolvency of the buyer 313 "Revendication," Code Napoleon 314 Origin of stoppage in transitu 315 The law of merchant now part of the common law . . . 319 (1849) Xvi TABLE OF CONTENTS. [The paging- refers to the [•] paging.] PAGE Is confined to a Vendor .... 320 . Does not exist between principal and factor ; except where the factor has acted as vendor also . . 320 Nor where there was a mere lien 321 "Where a vendor has consigned himself jointly with another 323 The vendor's agent may stop . . 32:i It is sufficient if the person stopping ha.s an interest in the goods 324 A surety for an insolvent buyer 325 HcmasthewlioUy or pariicdly vnpaiil 32G Stoppage is not a rescission, therefore unaffected by part payment 320 Unexpired credit . 327 Goods consigned in return for goods received .... :!29 Where the vendor paid by bill is not liable on the bill 330 Running account between vendor and vendee 331 Vendor paid by acceptance of a third person 332 TUe goods must he in fiansiln . 33:! " Possession," meanings of • 333 Constructive possession . 334 1. Where the vendor keeps possession as bailee of the buyer 33.'5 2. Where the goods are in the hands of a warehouseman 341 Eight to revoke authority to take possession . . . 341 Where a portion of the goods have been delivered to a sub-vendee . 343 Taking possession .of pait is not a constructive taking possession of the whole 344 Absolute and conditional authority to take possession 344 1. Where it is absolute . . . 344 Assent of the warehouseman .... :'>14 Transfer in the warehouseman's books 344 Wrongful refusal of warehouseman 346 A wharfinger weighs the goods at the request of a vendee . . 346 Where the vendor enters a sub-vendee's name in his books .... . 347 2. Where it is conditional . . . 347 Authority to weigh and then deliver 348 To deliver in exchange for cheque . . . 350 Vendee marks the goods with his initials 351 The goods must be in the possession of a middleman . . 351 It is sufficient if the goods are in the hands of an "agent to for- ward" 351 Termination of the transitus — fixed ulterior destination 354 Delivery on board the purchaser's own ship . 357 Where the warehouseman is also a carrier . 3ri4 Where the vendee has refused to take possession :!65 Both vendor and vendee repudiate the goods . 366 CaiTier does not lose his lien by agreeing to hold for the purchaser 367 ."Vnticipation of the termination of the transitus 371 Tortious refusal of carrier to deli\cr . . . 374 '!%<-• purchaser mitsf he msolfciil . 380 What amounts to insolvency . 381 The stoppage musthe hy right, independently of the ivndee's axsent . 382 notice to the person having possession is sufficient 382 The right to stop may he defeated hy the assignment of the Bill of Lading . 384 A vendee by assigning the bill may give a greater right than he possesses 385 Bill of Lading— what it is 388 (1850) TABLE OF CONTENTS. XVii [The paging refers to the f*] pages. ] PAGE An assignment of it is not an assignment of the contract . . . 388 Bills of Lading Act of 1855 389 An assignment of a bill of lading operates as an assignment of the goods . . , . ' 391, 40fi Lickbarrow v. Mason . . 393 Consideration for the assignment 405 The vendor can only stop his own interest, i. c, the equity of re- demption . 406 The assignment must be bona fide 408 Where the assignee has notice of other bills of lading . 410 The assignee is unaffected by equities between the vendor and vendee 410 "Where the bill is drawn in three parts, rights of pledgees 412 Dock "Waeeants and Delivery Oedees . . . . 415 Contrasted with bills of lading . . 415 Not negotiable instruments . . 415 Fac^toes and the Factoes Acts 426 Object, to give security to persons dealing with factors 426 6 Geo. IV. c. 94, s. 1. An agent intrusted with goods, who ships them in his own name to, and gets an advance from, a con- signee who has not notice of agency, shall be taken to be the true owner . 431 n. 6 Geo. IV. c. 94, s. 2. A person intrusted with, and in possession of, any document of title, may give a good title by way of nale or pledge to a person who has not notice of the agency 428 n. " intrusted, " meaning of . .429.433 6 Geo. IV. c. 94, s. 4. An agent intrusted with goods, may give a goqd title by way of sale to a person who has notice of agency 430 n. 5 & 6 Vic. c. 39, s. 1. An agent intrusted with goods or docu- ments o/ title, may give a good title by way of pledge to a person who has notice of agency . . .... 431 40 & 41 Vic. c. 39, s. 3. Where a vendor who has sold goods re- tains the documents of title and sells or pledges them, he shall be considered as an agent intrusted with them by the vendee , 432 40 & 41 Vic. c. 39, s. 4. Where a vendee is in possession of the documents of title, any sale or pledge by him shall be as effect- ual as if he were an agent intrusted . . ... 432 40 & 41 Vic. c. 39, s. 2. The revocation of an agent' s authority shall not affect the title of a person to whom the goods were sold or pledged after the revocation of the authority 434 "Agent" defined 4.35 40 & 41 Vic. c. 39, s. 5. The indorsement or transfer of anij docu- ment of title has the same effect in defeating the vendor's rights as the indorsement or transfer of a bill of lading would have had . 439 Where goods were substituted for those pledged . 440 Where they were pledged for an antecedent debt 440 Where they were first pledged for less than their value and sub- sequently for the balance . 441 Judgment of Cockburn, C. J., on the effect of a vendee negli- gently allowing the vendor to retain possession of the docu- ments of title .441 Ok the Extent of the Vendoe's eights vC'hilst in Possession — Are greater than a lien .... 445 Vendor is not entitled to rescind ... . . 446 B. CON. OF SALE. ('851) Xviii TABLE OF CONTENTS. [The paging refers to the [•] pages. ] PAGE The undertakings of each party are generally independent . . . 447 Rights of the vendor by the contract — As to the property 449 As to the possession . . . . 45] Pordage v. Cole 451 Where credit is given .... . 452 Rights of the vendor not given by the contract . . . 452 His rights arise on the buyer's insolvency even if credit has been given . . . 454 Reputed ownership . 459 Where the sale was not bona fide, Twyne's Case . 461 Subsale for value wthout notice of first sale : . . 461 Positions of a purchaser for value, an execution creditor, and a trustee in bankruptcy, contrasted . 461 n. Resale and Rescission . ... 454, 462 Where part of the price has been paid . . . 455 Where the vendee resold and became insolvent . 456 Where the vendee contracted to gi\'e a banker's draft 456 Where a vendee in default tenders before resale . . 457 Vendor's rights revive on the expiration of the credit . . 45K Resale does not operate as a rescis.sion . 459, 468 Power to resell reserved ... .... . . 464 Insolvent agent purchasing for a solvent principal . . 464 Where vendee refuses to take away the goods . . 465 Efl'ect of, on form of pleading . . 468 Perishable articles . 468 Demand of payment before day named for payment . 469 Failure to deli^"er instalments punctually . 47(1 Rescind, intention to . . 471 Vendor retakes possession . 472 Cases examined where one party was in default, r. g., failure to deliver, or to take away, or to pay or unlawfully demanding payment, or becoming insolvent after part delivery, or undue delay . . . .... . . . . 472 Stoppage in transitu is not a rescission 480. 481 liEJIEDIES OF EITHER PAETY FOE A BREACH 484 Conditions precedent, effect of ... 484 Delivery become impo.ssible . . . 485 Waiver of condition precedent . . . 4^<5 Where one party has prevented the performance 485 Where a party definitely states that he will not perform his part 485 Cort r. Ambergate Ry. Co .... . 486 The ]iarties may agree to any terms they please . 488 There may be a condition precedent without any undertaking ' that it .shall be performed .... . ... 489 Where rights arise on the happening, the happening must be proved . .... . . . 491 Where the Vendor does not tender Specific performance Mercantile Law Amendment Act, 1856 Damages are the usual remedy Recovery back of price paid .... Damages in tort and contract the same (1852) 492 492 492 493 493 494 TABLE OF CONTENTS. xix [The paging refers to tlie [*] pages. 3 PAGE Where the Vendor does tender 495 If the property has passed vendee must accept . ... 49.') Action for damages, or set-off . . . . 49G Mendel v. Steel 499 If the property has not passed vendee may refuse to accept . . 500 Where the sale is by sample 501 Right to return the goods .... 501 Where the goo(Js are earmarked the vendee must accept . . 501 A refusal to accept must be made in a reasonable time . . . 503 The rights are mutual ; where the vendee may refuse to ac- cept, the vendor may refuse to deliver 507 Damages ... . ... . . 508 What are .508 Hadley v. Baxendale ... . . . . 508 Market price best test of value ' 511 Reselling price, is evidence of value in some cases . . . 512 Loss of Profits 512 Cases vrhere the market price was referred to as the test of value 513 Cases where there was no market to refer to . . 520 Breach as to — Quality 520 Time 524 Interest 532 When it may be recovered . . . .... 532 On mercantile securities 532 Where there is a promise to pay express or implied . . . 533 As a general rule it cannot be recovered 533 INBEX 537 (1853) (xxi) TABLE OF CASES. The paging refers to the [*] paging. Note.— r/tose figures which are printed thus 60; indicate the page where the facts of the case are set out most fully. A. ACEBAL V. Levy . 22, 60, 62, 469 Acraman v. Bates . 295 V. Morrice . . 180 Adcock, Mertens v 464 Aflalo, Goom v. 96, 97, 98, 99, 102, 103 Agra & Masterman's Bank, In re, Ex parte Asiatic Banking Cor- poration . 302 Akerman ■!'. Humphrey . . 387 Alderson v. Langdale . . 328 Maddison v. . . 2 Aldridge v. Johnson . 130, 134 Alexander !'. Gardner . 152, 231 V. Vanderzee . 227, 229 Alfaro, Eanken v. . 289 Allan V. Lake . . ... 498 Allen V. Bennet 49, 51, 66 r Harrison v. . . . 533 AUenby, Camidge v. . . . 338 Alston, Ex parte, In re Holland . 407 Alweyn v. Prior 224 AmbergateEy. Co., Cort v. 239, 472, 476 Amor, Leatham v. Anderson r. Clarke Currie v. . Hammond v. Harman v. ('. Morice . Scott 138 390 .... 37 . 190, 349, 371 . . 345 . . 128, 245 . . 27, 32, 338 Whitehead v. 367, 369, 371, 372, 373, 374, 383 Andrade, Lazams v. 138 Andrews, Clayton, v 3,4 Anglo-Egyptian Navigation Co. r. Eennie . . . 189, 230 Appleby v. Myers . . . . 230 Arbnthnot, Ex parte. In re Ent- wistle .... 285, 299 Archer v. Baynes 49, 63 Archibald, Sievewright u. lOi, 112, 114 Armitage, Grafton v. . . . 15 Hanson v. . 22 Tripp V. . 186 (]8i FA6R Armstrong, Elbinger Actien v. . 531 Amott, Boulter r. 30, 337 V. Eedfern . . 533 Ashcroft V. Morrin . 61 Ashforth v. Eedford . 228 Ashlin, Greaves v. . . 465 Atherton, Lackintdn v. . . 346, 307 Atkins, Kemble 1- 81, (-!) Atkinson o. Bell . 4, 15, 128, 130, 131 V. Hawdon . 32K Ogle V. . . . 149 Eitchie V. ... 199 r. Smith . 491, 493 Attenborough, Lamb r. ■. 431 London and St. Katherine Dock Co. Attwood V. Emery ■ V. Taylor Austen v. Craven Auty, Teal v. . Avery v. Bowden Azemar v. Casella 212, . . 164 226, 532 . . 533 126, 127 8 . . 487 213, 503 B. Babcock v. Lawson Bach V. Owen . . . Bailey v. Calverwell . V. De Crespigny V. Sweeting . . . 164 39 261 . 230 . . . (13, 64 . 421, 422, 425 475 169, 432, 437 . 72 1 87 154. 159, 160 Balbernie, Thurnell v. . 491 Baldey v. Parker 32, 37 Baldwin, Dixon v. . 354, 355, 356, 370 Ball, Howes v. . . . . 36 Mills V. . . . 372, 382 Bament, Bill v 33, 37, 44 Banco de Lima v. Peruvian Bank 290 Bank of Ireland v. Perry . . . 306 i55) Bain, Farmiloe v. Bain, Morgan v. Baines r. Swainson Baker t'. Dening . V. Gray Wait V. xxu TABLE OF CASES. [The paging refers to the [*] pages. J PAGE Bankhart v. Bowers . . . 491, 493 Banner, Ex- parte, In re Tappen- beek Johnson Bannerman v. White . Bannister, Brice v. Eiehholz r. Barber, Meyerstein i\ c. Taylor . Barker, Ray v. . . Barlow v. Broadbent Barned's Banking Co., In re Barnes, Elphick v. . Barnett v. Brandao ■ Bussey n. 286 .... 309 209, 496, 497 268 .... 463 410, 412, 413 . . 224 196, 506 407 Barnwall, Henderson v. Barrow, Ex parte City Bank v. !'. Coles Bartholomew v. Markwick Bartlett, Gompertz c. V. Purnell . Barwick v. Buba . Bastard, Nieolls v. Basten v. Butter . Bates, Acraman i: Turley v. Bauman e. Jones Baxendale, Hadley c. Baxter, Kelner v. Bayley v. Schofield Baynes, Archer v. Beaumont v. Brengeri Beckett, Pitts r. Behn v. Burness . Behrend, Gurney p. Balding r. Read . . Bell, Atkinson r. 4, li" Bell, Wood V. . Belshaw r. Bush . Benecke, Spartali r. Kennet, Allen v. . Bennett r. Brunifitt Favenc v. Hentall r. Burn Berghcim r. Blaenavon Iron Co. . Bernales r. Fuller 276 Berndston v. Strang 353, 309 506 80 173 108 ,S61 437 197 472 463 75 487 461 . 500 . . . 295 180, 181 .... 50 508, 510, .529 . . 55 . 382 49, 63 . . 23 112, 113 198, 496 403, 405 . . 138 130, 131 . 188 332 . . 226 49,51,66 391, 12S, Bernstein, Bloomer r. . . Beverly v. Lincoln Gas Light Cu, Bianchi v. Nash . . "Biddlecomb v. Bond Bigg I'. Whisking . . Bill r. Bament 33 Cooper V. Biller, Stevens r. Bingham, Co\;is i. Birch, Freeman r. 85 25 530 534 359 477 196 240 3S1 . 23 37, 44 ?,M . . 441 il9, 494 321 Birch, Walker v 276 Bird V. Boulter . . 73, 74 V. Brown . 325, 376 Birnle, Gosling v. ' 192, 470 Birt V. Burt ... 269 Bishop V. Crawshay 302 r. Shillito . . 173 Bistolli, Philips v. . . 19, 20, 166 Blaenavon Iron Co., Bergheim v. 530 Blake, Eden v. . . 43 Blanck, Kreuger r. 221, 223 Bland, Johnson v. 533 Blay, Street v. . . . . . 495 Blenkinsop v. Clayton 28, 29, 39 Bloomer v. Bernstein 477 Bloxam v. Morley . 454, 455, 460 i: Saunders 312, 454, 455, 458, 466, 468 Boese, Murphy r. , . 70, 77 Bohtlingk v. Inglis . . 317, 327, 352, 353, 371. 383, 467 Bolckow Vaughn & Co., Gunn v. 421 Bolton r. Lancashire & Yorkshire Ry. Co. 366, 371 v. Richard . 32H Bond, Biddlecomb c. 381 Bonzi V. Stewart . . . . 440 Booker, Van Cast eel r. 1,59, 357 Boone i\ Eyre 199, 471 Booth, Hardman r. 167 Martindale v. 460 Borries r. Hutchinson 520 Borrowman v. Drayton 223 Bosanquet, Englehart r. 22!> Boston, King v. . Boswell, r. Kilborn Boulter v. Arnot, Bird v. Boulton r. Jones . Bourne r. Seymour Bourdillon, Sari v. Bovin, Dixon r. Bowden, Avery v. . . Bowditch, Southwell !■. Bower, Nicholson v. Bowerbank, Haviland c. Bowers, Bankart r. Knight !'. Bowes V. Shand Swinyard r. Bowker, Hutchinson Wilmshurst r Bowlby, Brandt r. Boxall, Scorell i: Boyd V. Sift'kin Boydell r. Drummond Bovson V. Coles 500 126, 180 .30 337 72 , 74 KiH 216 . 46, 51 424 487 5.-. 21 534 491 493 241 229 328, 3.32 I", 206 14,-., 152, 153, 456 44, 145, 150 231 490 46 ^■5 ()8,-.6) TABLE OF CASKS. XXUl [The paging refers to the [*] pages.] IJraddon, Simmond v 499 Bradfield Union, Nicolsonu. . 209, 212 Bradford Old Bank, Walker v. . 271 Brady v. Oastler, 525 Bragg, Calton v 534 Brandao, Barnett v 80 Brandt v. Bowlby . . 144, 145, 150 V. Lawrence .... 228, 478 ■ Sharman c. . . . 53, 73 Brass, Lewis c 113 Breeds, Wallace v. . . . 126, 178, 349 Brengeri, Beaumont v 23 Brett, Ex parte, In re, Irving . . 268 Roberts v. . . . 199, 226 Brewer, Edwards v. . 329, 480 Brice v. Bannister 268 Brighton Club Co., Duncombe v. 536 Brinsmead v. Harrison . . 163 Bristol and Exeter Ey. Co., Coombs V 22, 67 Bristow, Waddington i'. . . 6 Britain v. Rossiter . ... 2 Brittan, Gillard v 472 Broad, Jn re, Exparte Neck . . . 290 Broadbent v. Barlow 407 Brogden v. Marriott 491 Bromhead, Wilkins v 132 Broom r. Davis .... 499 Brown, Bird r 325, 376 Gumming v. 408 Ea«twood V. 460 — r. Hare . . . 158, 160 Jenkyns r. . . . 155 V. Kewley 328 Leroux r. .... 2 ('. MuUer 516, 519 Shipley & Co. v. Kough 279 Bruce, Warwick v. . . 12 Brumfltt, Bennett v 72 Bryans i: Nix . . . . 133, 390 Bryant, Laythoarp ■!• 57 Btiba, Barwick v. .... 487 Buchanan i'. Parnshaw . . . . 497 Buck, Groves v. . . . . 3, 7 Buckland v. Johnson . ... 163 Bull )). Robinson 207 Bullen, Taylor c. .... 498 Bulloch, Hutton r. 55 Bulmer, Clark v. 15 Bunney v. Pointz . . . 330. 371, 458 Burbridge, Rigge v. . . . 521 Burdick v. Sewell 389 Burgess, In re 533 Burlinson, Laidler ...... 128, 186 Burn, Bentall v 25 V. Brown 278 V. Caivalho 293, 296 Burness, Behav. ...... 198,496 Burr, Freeth v. , . Burridge, Snaithj). Burrows, Washbourn !'. Burt ii. Birt . . . Burton, Higgons v. Bush, Belshaw' v. Hart V. . . Bushel V. Wheeler . . . Busk ('. Davis . 125, 126, 127, Pickering v. . . V. Spence Bussey v. Barnett . . Butter, Bast^ v. ... Buxton V. Rust PAGE . . 476 278 14 269 169 . 332 21 . . 23 178, 349 . 441 224 . 173 . 500 . 50,65 C. Calcutta Co. v. De Mattos . 128, 200, 234, 235, 245, 488 Calder v: Dobell .... 55 Caldwell v. Ball . . . . 392, 394 Taylor v. . . 230, 239, 485 Colton V. Bragg 534 Cameron v. Smith . . 533 Camidge v. AUenby 328 Cammeyer, Rucker v 89, 97 Campbell v. The Mersey Docks and Harbour Board . . 135 Moore v. 43, 111,117, 216 Wright V. . 393, 394 Capper, Reeves v 461 Carnforth Haematite Iron Co., Ex parte, In re Phcenix Bessemer Steel Co. . . . . 474 Carpenter, Exparte 382 Carr v. London & North Western Ry. Co. . 190, 433 Mews V. . . . 76 Carrington ii. Roots . 7 Carrol, Gainsford v 513 Carruthers, Ex parte. In re Higgin- son . . .' 270, 283 Gibson v. . 315, 351, 452, 481, 484 — V. Payne . . 184, 185 Carter, Hibbert v. . 393, 394 V. Toussaint . . 30, 339 Carvalho, Burn v. . . . 293, 296 Humphries v. 94,98,110, 111 Casella, Azema v. . 212, 213, 503 Cassaboglou v. Gibbs . 512 Casaanet, Fitt v. . . . . . 470 Casson, Shipton v. . . 501 Castle r. Playford . . 245 V. Sworder . . .19, 31 Caton V. Caton . .... 67 Cave !'. Hastings . . 50 (18.57) XXIV TABLE OF CASES. [The paging refers to the [*] pages. J Chalie v. Duke of York Chalmers, Ex parte Champion r. Plummer Ch;iplin, Coates i: V. Rogers Chapman r. Couston r. Morton r. Partridge CSiarles, Thornton c. PAGE .... 534 201, 332, 474 . 51, 66 . . 22, 66 . . 26 . 196, 505 . 504 90,98 84, 8.5, 9.: Chartered Bank of India «. Hender- son . . I^atham v. (Jliesterman r. Lamb Chinnery v. Viall Chinnock, Ellis r Citizens' Bank c. First National Bank City Bank v. Luckie ('. Barrow^ City of Glasgow Co., Crossley u. 99, 102 406 285 520 494 520 Claggett, George v. Clare, Inman c. . r. Maynard Clark V. Bulmer Clarke, Anderson v. r. Spence . Clay, Elbinger i\ I'. Harrison V. Yates Clayton v. Andrews Blenkinsop v. Cleasby, ^Morris ?•. Clements i: Matthews (.'lifton, Wortes r. Coates !'. Chaplain IK Eailton . . . 283 306 437 268 88 . 305 . 521 . 15 . . . 390 185, 187 . . . 55 467, 480 . 15 . . 3,4 28, 21), 39 . 85, 80 . 138 . 266 . 22, 66 355, 370 Coddington v. Paleologo (Johen, Thompson v. . . 301 Colburn, Plancho p 4-^6 Cole V. North ^^'estcrn Bank, 169, 391, 427, 435, 437, 43-*, 444 Pordage r. 199, 449, 451 Coles, Barrow i\ . 197 Bo\son v. . . 85 Collins, Everett t: . . 328 Collis, Dawson r. . 496 Collyer r. Isaacs 300 Commercial Bank, Royal Bank v. 309 Comptoird'Escompte.Henderson i>. 410 Lutscheru. . 283 ■ Rodger v. . 355, 405, 536 . . 494 148, 381 . . 533 . . 442, 443 504 ConoUy, Devaux r. Constantia, The Cook ii. Wood . . Cooke, Freeman c, Riddelien i\ PAGK Coombs V. Bristol and Exeter Ey. Co 22, 67 Cooper, Ex parte .361, 371 Cooper r. Bill . . ... 350 i'. Shepherd 16S V. Smith 50, 52, 59, 61, 63 Spicer v 47 V. Willomatt , . 109 Cope r. Rowlands . . . 82 Corf, Pierce r. . . 3, 46, 62, 76 Cork Distilleries Co. r. Great Southern Ry. Co. . 377 Cormack v. Gillis . . . 499 Cort V. Ambergate Ry. Co. 239, 472, 486 Cortazzi, Startup r 513 Cory V. Thames Iron Works . 52H Coryton i: Lithebye . . . . 341 Cotesworth, Key /•. 156, 201 Count d'Espineuil, In n- . . 13rt Coupland, Howell v. . . . 230 Couston !'. Chapman . 196, 505 Covas V. Bingham . . 219, 494 Coventry r. Gladstone . 370. 405, 407 — i: Great Eastern Ry, Co. 195 Woodley c. 193, 194, 195 Cowasjee, Page i: ... 472 Co-nie v. Remfry, 5 Moo. P. C. C. 113 Cowley, Litt c. 383, 384 Cox V. Prentice . 463 V. Walker 521 Coxe r. Harden 144, 148, 150, 399, 403 r. Waring 385, 403 Craig, Kinloch v. . . 32(1 Craven, Austin v. . . 126, 127 ('. Ryder . . 150, 151, 36H Crawshay, Bishop v. . 3(i2 ('. Fades . . . 37(i Credit Lyonnaise, Johnson r. 169, 438 44 i Crippin, Simpson /■. 21 M, 219, 473 Crofts p. Part on . lOH Crosby v. Wadsworth . 7 Cross r. Eglin 215 Crossley r. City of Glasgow Co. 26'- Crowe, Hawse r. 32H Crump, Townley r. . . 340 Cuff V. Penn . . . 116, 117 Culverwell, Bailey v. . . 26! Cuming r. Brown . ... 408 Gumming, Cuthbert v. ... 224 c. Roebuck . 95, 9H Cundell r. Dawson . . . . 241 Cundy r. Lindsay 168, 404 Cunliffe r. Harrison 215,, 216 Cunningham, In re . . 426 Currie r. Anderson , ... 37 Curtis c. Pugh . .... 23 (18.5-') TABLE OF CASES. XXV Curtis V. Williamson . Cusack r. Robinson . Cutiibert v. Gumming Cutter V. Powell . . . D. [The paging refers to the [*] pages.] P1.0E 1 .55 . . 22, 23 224 449 216 Daniell, Gwillim r. Dannah, Wright v 73 Danube and Black Sea Co. v. Zenos 487 D'Aquila v. Lambert . . . 316 Davall, ■ Lamond i>. . . 464 Davies, Hodgson «. . 92, 110 Davis, Broom i\ 499 Busk V. 125, 126, 127, 178, 349 & Co., Goldingo. . 362, 407 V. Hedges . . 499 V. Reynolds . . . 329 Shepley r. 126, 349 V. Smyth . . . . 533 Davison Robinson v 230 Dawber, Stead o. . . . 116, 117 Davrson v. Collis . .... 496 Cundell v. . 241 Pearson v. . . 347 De Crespigny*, Bailey v. ... 230 De la Tour, Hochster v 487 De Mattos, Calcutta Co. r. 128, 200, 234, 235, 245, 488 Dunfield, Edan v 34 Duffield, Potter v 54 Duncan v. Topham 226 Duncan, Fox & Co. v. N. and S. Wales Bank ... . . 289 Duncombe v. Brighton Club Co. , 536 Dunkin, Stonard v 191 Dunlop V. Grote V. Lambert . Stockdale v. Dening, Baker v. Devaux v. Conolly . . . Dever, Ex parte, In re Suse Devereux, Lillywhite v. Dewhurst, Ex parte . . Dickinson v. Libval Dingle u. Hare . Divett, Powell v. Dixon V. Baldwin !•. Bovill . V. Fletcher 72 494 293 34 309 95, 98 . . 522 ... 85, 93, 98 354, 355, 356, 370 424 216 V. Yates 330, 342, 344, 371, 378, 386, 456, 458 Dobell, Calder v. . . . 55 Dodgson, Johnson u. . . . 48, 69 Dodsley v. Varley .... 34, 36, 37 Dodson II. Wentwoa-th . . . 355 Doe 11. Rees ... . . . 382 Dominy, Thompson v. ... 389 Donald v. Suckling . . . 142 Dorien, Lucas v. ... 345, 417 Downing, Plevins v. . . . 121 Drakeford, Townsend v 104 Drayton, Borrowman,'!'. . . . 223 Dresser, Hoars !'.... . 296 Drummond, Boydell r. . . 46 Du Boisson, Shand v. . 295 Dunn, McLean v. Percival v. Richardson v. . . 488 . 235, 246 248 72, 468, 470 . 268, 271 . . 216, 503 49, 68, 76, 77 . . . . 139 . ' . . . . 82 Durrell v. Evans . Dutton !', Solomonson Dyster, Ex parte . E. Eades, Crawshay v 370 Earl Vane, Ogle v. 119, 125, 516, 519 Earle, Henicky v 365 East India Co. v. Hensley ... 12 East and West India Dock Co., Glyn V 412 Eastern Counties Ry. Co., Scott?). 22 Eastwood V. Brown . . 460 Eaton, Hutcheson v. 55 Edan v. Dunfield 34 Eddowes, Stewart v 71 Eden v. Blake 43 Edwards v. Brewer . . . 329, 48(1 V. Edwards 462 Giles V 463 Egerton v. Matthews . . . 57, 66 Eglin, Cross v 215 Eicholz I'. Bannister 463 Elbinger Actien v. Armstrong . 531 Elbinger v. Claye . . . 55 Elkin V. Baker 295 EUershaw ?'. Magniac . . 153,155 Elliott V. Pybus . . . 132 -^ r. Thomas .... 22, 23 Elli.s )-. Chinnock 520 V. Hunt 369, 377, 467 r. Thompson 225 Elmore r. King.scote • 59, 61 v. Stone . 28, 29, 30, 339 Elphick V. Barnes . ... 506 Emery, Attwood v. . . 226, 532 Emmerson v. Heelis . . 10, 12 Englehart v. Bosanquet 223 Entwistle, In re, Ex parte, Arbuth- not . . , 285, 299 Epineuil, In re Count D', .... 138 European Life Assurance Society, In re 382 (1859) XXVI TABLE OF CASES. Evans, Durrell v. Legg V. V. Martlet . ■ Philpotts l^ V. Roberts . r. Thomas Wilkinson ( Everett y. Collins Williams v. Eyre, Boone v. Ward i'. . . [The paging refers to the [•] pages.] PAGE 49, 68, 76, 77 . . 142 . 393, 394 . 514 12, 13 197 6.") :!2-t . , 277 199, 471 536 F. Faiemanek, Webb r. . Falk, Ex parte -('. Fletcher . . . Farebrother v. Simmons Earina r. Home Farmiloe v. Bain . Favenc v. Bennett . . Feise r. Wray 321, :!22, Ferrand, Smith r. Field V. Megaw Northey v. Fielder v. Starkin . . First National Bank, Bank v. . . Fischel v. Scott Fitt V. Cassaiu't Fitzgerald, Tempest i Fitzmauriee, Williams c. Fletcher, Dixon c. Fletcher, Falk v. Grant c. ■ — ■ — i: Tayleur Flewker, Heyman / . Flint, Jones v. . . Fontleroy, Horslall r. Foord, Smeed r. . . Forbes, Frith v. 278, Ford i'. Yates Forster, Hawes c ^^l, 80, Foster r. Frampton — r. Weston . " Fowler, Hollins i: Fragano v. Long . Frampton, Foster v. France r. Gaudet Francis, Godwin i: . Franklyn v. Lamond Eraser v. Witt Freeman v. Birch .... 230 .362, 406, 407 . 134, 161 ... 73 . 20, 37, 419 421, 422, 425 . . 85 323, 328, 330. 480 328 280 373 497 CHtizims 283 470 29 187 . . 216 134, 161 95, !)7 . . 524 169, 435 . . 14 112 282, 283, 299 . . 42 99, 100, 101, 104, 107, 110 357, 364, 369 534 ... 168 l.;0, 131, 139 357, 364, 369 529 65 55 360 321 (1S(- Freeman t'. Cooke . Freeth v. Burr . . Freshfield's Trusts, In re Fretwell, Graham v. Friend, Watts v. . . Frith r. Forbes . 278, Frost V. Knight Whitehouse c. Fruhling v. Schroeder Fuentes r. Montis Fuller, Bernales r. Furnell, Zagury r. PAGE . 442, 443 476 . 272 52, 76 .... 8 282, 283, 299 .... 487 128, 127 535 426, 434, 435 276, 534 179, 243 152, Gabaekon v. Kreeft Gadd r. Houghton Gainsford r. Carroll Gandell, Kodick r. Garbutt r. Watson . Gardiner, Thompson i Gardner, Alexander r. — r. Grout . Gurnell c. Gaskell, Lee c. Gath, Morgan v. Gaudet, France v. Geake r. Ross Geary v. Physic Gee c. Lancashtre & Yorkshire Ky. Co General Rolling Stock Co., In re . General South American Co., E.c parte . . George r. Claggclt . . Gibbs, Cassaboglou . . E.c parte 162 55 .... 513 2(iH, 295, 296 . . 4 111 231 19 301 13 212 529 536 72 510 281 Gibson V. Carrutliers Holland Valpy I'. 351, ' 481, Gilbert v. Guignou Giles p. Edwards Nathan r. Gillard r. Brittan c;illctt V. Hill . 308 88 .512 360 452, 4S4 43 61, 356, 374 . . 409 463 386 472 193 .499 i70, 405, 407 461 . . 404 Gillis, Cormack r. Gladstone, Coventry ( Glasspoole r. Young Gloahec, Pease r. ... (!lvn V. East & West iTidia Dock Co. . . . Goddard r. O'Brien Godts, Nichol r. . . V. Ro.sc . . 21)1, Godwin r. Francis . . . Golding Davis & Co., E.r j):nic 362, 412 328 207 350 65 407 TABLE OF CASES. XXVll [The pairing refers Page Gomez, Ex parte, 7»reYglesias . 280, 285 Gompertz v. Bartlett . . . . 463 Goodall V. Skelton 39 Goodman v. Griffiths 62 Goom V. Aflalo . 96, 97, 98, 99, 102, 103 Gordon v. Swan 534 Gorrissen v. Perriu . . 217, 232, 491 Gorst, Macneeu . 440 Gorton, Miles v 339, 340 Gosbell V. Archer 76 Goslings Birnie 192,470 Cioss V. Lord Nugent . . . 115 . Smith V 355, 379 V. Quinton ... 185 Gossage, Parker v 382 Gothenberg Commercial Co. , Lim- ited, In re 290 Grafton v. Armitage . . . . 15 Graham?). Fretwell . . 52, 76 V. Musson 52, 76 Grant v. Fletcher . . 95, 97 Graves v. Legg ... . 224, 227 Sanderson v. 471 U.Weld . . . . .11 Gray, Baker v. .... 187 Morrison v 323, 402 to the [*] pages. ] Great Eastern Ry . Co. , Coventry v. 195 Great Southern Ey. Co., Cork Dis- tilleries Co. V 377 Great Western Ry., Eouch !'. . 188 Greaves v. Ashlin . - . . . 465 •!). Hepke 190 Grebert-Borgnis v. Nugent . . 531 Green, Levy v. . . . . 209 Marshall v. . . . . 14, 34 Smith u 523 Gregson v. Ruck . . , . 84, 80 Grice v. Richardson . . . 340 Griffin, HoU v 193 James v. . 364, 367, 370, 372, 467, 481 Lee V 15 Griffiths, Goodman v 62 V. Perry . 201, 332, 458, 474 Grimoldby v. Wells . ... 505 Grote, Dunlop v. 488 Grout, Gardner v. . 19 Groves v. Buck . . . 3, 7 Harnor v. . . ■ . 504 Guignon, Gilbert v 409 Gunn r. Bolckow, Vaughan & Co., 421 Gurnell v. Gardner 301 Gurney v. Behrend . . 391, 403, 405 Gwillim V. Daniell 216 H. Hadleyii. Baxendale . 508, 510, 529 Haille v. Smith ... .397 Hale V. Rawson 490 Hall, ^xporte, 7»re Whitting . . 268 Hallenu Runder 13 Hallet's Estate, In re. . Halliday, Vaughan c. Hamilton, Lovatt v. . Hammond v. Anderson Hancock, McKenzie v. Hankin, Hicks t). Hanson v. Armitage V. Meyer . ... 269 . . 270, 307 231, 490, 507 I 190, 349, 371 . 520 90, 97 .... 22 176, 348, 466 Harden, Coxe v. 144, 146, 150, 399, 403 Hardman v. Booth 1 67 Hare, Brown v. 158, 160 Dingle i Hargreaves, Powles r. Harman v. Anderson V. Reeve 522 304 345 4 504 269 . . . 533 . . . 163 . 467, 480 215, 216 202, 245, 271, 282 21 230 216 39 ... .22 .... 50 428, 430 . 151 Havilland v. Bowerbank . 534 Hawdon, Atkinson v 328 Hawes v. Forster . 85, 86, 99, 100, 101, 104, 107, 110 V. Watson Hawse r. Crowe . V. Humble Harnor v. Groves Harris v. Truman Harrison v. Allen . Brinsmead i: Clay V. . . Cunliffe v. . • Shepherd v. Hart 1'. Bush . . V. Middleton V. Mills ('. Nash V. Saltley . . Hastings, Cave v. Hatfield v. Phillips . Ruck V. 191, 195 328 490 Haynes, Hickman v. . 115, 120, 516 Hayward, Slubey v. . . 371 Head v. Tattersall . 506 Hecht, Hunt v. . 21 Hedges, Davis v. . . . . . 499 Hedley, Toulmin v. . . 207, 503 Heelis, Emmerson v 10, 12 Heilbutt r. Hiekson 213, 501, 512, 524 Heinekey v. Earle 365 Helshaw v. Langley . . . 72 Henderson v. Barnwall . . 108 Chartered Bank of India V 406 (1861) xxvm TABLE OF CASES. [The paging refers to the [*] pages.] PAGE Henderson v. Comptoir d'Escompte 410 Thol V. . 524 Hensley, East India Co. .•. 113 Hepke, Greaves c. ■ ■ 190 Hertz, Vickers r. . 169, 435 Heyman v. Flewker . . . 169, 435 r. Neale 92, 93, 95, 98,109 Hcywood's ease . . . 125, 130 Hey worth o. Hutchinson . 502, .503 V. Knight . . 112, 113 Hibbert i: Carter . . . 393, 394 Hickman i: HayncSj . 115, 120, 516 Hicks V. Hankin 90, 97 Hickson, Heilbutt r. 213, 501, 512, 52 1 Hieronimus, Leather Cloth Co., o. 65, 120 }Iiggins V. Sargent r>?,2, 533, 534, 5:;r, Langton r. . . 134 r. Senior . . 55, 87 Higginson, In re, Ex parte Carruthers 270, 283 Higgons ('. Burton . 169 Hill, Gillett r 193 0. South Stafford Ky. Co. . 536 Hills V. Sughrue . 230 Hinde v. Liddell 530 c. Whitehouse2, 17, 20, 45, 74 91, 98, 177 Hitchcock, Hopkins J-. 211 Hoadley r. McLaine 61 Hoare v. Dresser 296 V. Eennie 217, 218, 219, 470, 471 473 Hochster r. De la Tour Hodgson r. Davies ('. Lc Brett (1. Loy Holl r. Griffin". . Holland, Gibson v. Hollingworth, Tooke v. HoUins r. Fowler . . Holmes i\ Hoskins . . . 4S7 . . 92, 110 27 32 33H 326, '467, 480 193 . . 43 275, 2'<«, 466 168 31 Holrovd i: Marshall 137, 1 3h, 248, 299 ... 295 2, 375, 376 . 535 2(1, 37, 419 Griffiths Hoist r. I'ownal . 371, Holt, Taylor r. Home, Farina i. ... Honck r. Mnller21H, 223, 470, 472, 479 Hooper r. Stephens . Hopkins v. Hitchcock Hore r. JUlrier . . Home V. Midland Ry. Co, Horsfall c. Fauntleroy • Knowles r. Hoskins, Holmes c. Reid /'. . Honghtf)n, Gadd v. Howard i. Shepherd :-!9 211 463 511 112 460 31 Howe ■('. Palmer . Howell r. Coupland Howes r. Ball Hudson, Smith r. . V. Stewart Hughes V. Paramore Smith r. Stoveld i-- Humble, Hawse r. . ■ ('. Mitchell Simmons !'. Humphrey, Akerman r. Tucker f . PAGK . 29, 205 230 36 24 . . 71 . . 39 166, 213 194, 336 . . 490 ■ 21, 77 . . 387 353, 355 Humphries r. Carvalhoe94, 98, 110, 1] 1 Hunt, Ellis r. 369, 377, 467 i: Hecht 21 338, 339, 340 20 55 325 . 526 . 47, 206 . 502, 503 . . 533 328, 332 Hutton V. Bullock 55 Huth, Phillips r. 428, 429, 430, 431 Hutton V. Warren 41 Hydraulic Engineering Co. v. McHaffie 226, 532 I. Idle r. Thornton . . 231, 490 Imperial Bank r. London and St. Katherine Dock Co 423 Imijerial Ottoman Bank, Mirabita r. 204 Inglis, Bohtlingk v. 317, .327, 352, 3.53 374, 383, 467 Stock r 136 V. I'sherwood 317, 327, 3.')2, 467 Inman i. Clare . . :105 Ireland r. Livingstone . 220, 223 Irons ('. Smallpiece ^ 267 Irvine, Josling r ."il;") Irving III re, A'.i- parte Brett . , 268 Isaacs III re, Ex jmrte Miles 360, 363 Isherwood v. Whitmore . . . 206 Hurry r. Mangles 27, Huskisson, Kent v. Hutcheson r. Eaton Hutchings r. Nunes . Hutchinson, Borries v. r. Bo\vker Heyworth i- Parker c. Read i:. 389 J. J.\(KSON 11. Lowe 50 v. Nichol 356, 364, 367, 373 375, 376 Saunderson v. 48, 66, 68, 70 (1862; TABLE OF CASES. XXIX [The paging refers to the [*] pages]. Jackson v. Union Marine Insurance Co. 230 .Jacob V. Kirke 52 Ja,mes v. Griffin 364, 367, 370, 372, 467 481 Paynter v. . . .237 Jameson, Sanders v. . . 196 Jane, Paradine v. . . 230 .Tenkyns v. Brown . . . 155 '■ V. Usborne . 324, 419 .renner v. Smith . . 136, 196 .Tewan v. Whitworth . . . 440 Jewell, Vertue v. . . . 331 .Tohnson, Aldridge «. . 130, 134 11. Bland . . 533 Buckland v. ... 163 V. Credit Lyonnaise 169, 438 442 V. Dodgson . .48, 69 V. Lancashire and Yorkshire Ry. Co 495 V. Macdonald . . 232, 490 Roper v 519 .Johnson ^•. Kershaw i'. Ushorne JonaSsohn i'. Young Jones, Bauman ii. . Boulton V. V. Flint V. Jones . V. Just Proctor V. Wood V. . .Tordon v. Norton Josling V. Irvine . . V. Kingstbrd .loyce V. Swan . Just, Jones v. . 219, 220 . . 89 473 50 168 14 371 516 . . 21 . 323 329 . . 112 . . 515 210, 499 . 159 . . 516 K. Kain, Shepherd v. . . . . 498 Kaltenbach r. Lewis 440 Kebble, Milgate v. . 457, 463, 469 Keene v. Keene . 533 Kekule, Loder !'. . 514 Kelner v. Baxter . . . 55 Kemhle v. Atkins 81, 89 Kemp V. Falk . . . 362, 371, 383, 407 Kempster, Thorntons 85,94,95, 98,166 Kendal v. Marshall, Stevens and Co. 355, 362 Kent r. Huskisson . . Kenworthy v. Schofield Kershaw, Johnston v. ■ V. Ogden . Kewley, Brown v. 20 2, 45, 62 219, 220 181 . . 328 Key V. Coatesworth . Keyser v. Suse . Kilborn, Boswell !•. King V. Boston . . Kingscote, Elmore i>. Kingsford, Josling !'. V. Merry . Kinloch r. Craig . Kirke, Jacob v. . Kitching, Martineau i: Klinitz V. Surrey . Knight ?'. Bowers Frost V. . . Heyworth v. PAGE 156, 201 . . 417 126, 180 . . 500 . 59, 61 210, 499 164, 437 . . 320 Knights V. Wiffen Knowles v. Horsfall . . Kough, Brown, Shipley Kreeft, Gabarron v. Kreitman, Rylands r. Kreuger v. Blanck . . Kymer u. Suwercropp . 178, 182, 489 . 91, 98 . 241 .... 487 . 112, 113 .... 194 . . 459, 460 and Co. v. 279 162 . 211, 216 . 221, 223 ... 464 L. Lackington r. Atherton Laidler v. Burlinson . Lake, Allan v. . Williams r. . Lamb v. Attenborough Chesterman v. Lambert, D'Aquila v. Dunlop V. ' Sale V. . . 346, 367 128, 186 498 . 51 431 520 . . 316 235, 246 54 Lambton, Ex parlc, In rr Lindsay 185 308 Lamond v. Davall .... 464 Frankly n v. Lancashire and Yorkshire Ry., Bolton V 366, 371 Lancashire and Y''orkshirc Ry., Gee v. 510 Lancashire and Yorkshire Ry., John- son V 495 Lancashire and Yorkshire Ry., Schots- man v 351, 359 Langdale, Alderson v. . . 328 Langfort v. Tiler . 453, 462 Langley, Helshaw v. . . 72 Langton v. Higgins 134 V. Waring , . 301 Lanyon v. Toogood 461 Latham v. Chartered Bank of In- dia . . ■ . . .... 285 Lawes, Wright r. Lavn-ence, Brandt v. Lawson, Babcock v. Laythoarp v. Bryant 372, 376 228, 478 . . 164 . . 57 (1863) XXX TABLE OF CASES. [The paging refers to the ["] pages.] PAOE Lazarus v. Andrade . ] oti Lea.sk v. Scott .... 40.5 Leatham ?'. Amor .... . 138 Leather Cloth Co. v. Hieronimus 65, 120 Le Bret, Hodgson r. . ,. 27, 32, 338 Lee V. Gaskell . . 13 r. Griffin . . Leeds v. Wright . . Leeming v. Snaith . . Legg ('. Evans Graves v. . 224, Leigh V. Paterson Le Mcsurier, Logan r. Lepage, Mitchel v. . . Leroux v. Brown Levison, Morris v. Levy, Acebal v. 22, 60, ()2 ii. Green Lewis V. Brass Kaltenbach r. ■ ('. Peake . . . . Lickbarrow v. Mason 31. 'J, 317, 3H7, 391, 393, 397, 398, 399, 15 354 216 142 227 513 179 168 2 217 469 209 113 440 520 319, 401, 406 530 34 Liddell, Hinde r. Lillywhite v. Devereiix Lilwal, Dickinson r. . . . 95, 98 Lincoln Gas Light Co., Beverly v. 196 Lindo, Smith r. . . . 82 I^indsay, Cundy c. _. . 168, 404 In re E.r pnrie Linthorne, Eayner r. Litt V. Cowley . . Liverpool Bank r. Ectlc Livingstone, Ireland r. Livins v. Shclton . . Llansamlet Tin Plate d Lockett 1'. Nicklin Loder r. KekuU' Trueman u. Lambton 185, 308 . . 86 . 383, 384 ^ ... 65 . 220, 223 Ex parte 518 43, 62 . .514 56, 85 Loder's Case ... 309 Loeschman r. Machin . 168 Logan V. Le Mesurier 179 London & Manchester Industrial Association, In re . . 382 & N. W. Ry. Co. V. Bart- lett 376 . Carr v. 190, Simp- son V. London & St. Katherine Dock Co. , Attenborough r London & St. Katherine Dock Co., Imperial Bank v. . . . 423 511 164 423 (1HK4) PAQE Long, Fragano v. . . . 130, 131, 139 r. Millar 50 Longbottom, MacDonald v. . . 47 Lord Nugent, Goss r. .... 11. "> Lorymer r. Smith 205 Lovatt V. Hamilton . 231, 490, 507 Lowe, Jackson v 50 Lowell, Slack r. .... 533 Loy, Hodgson v. . . 326, 467, 480 Lucas r. Dorien . ... 345, 417 Shaw V. .... 382 Tamvaco v. . . 218, 219, 239 Luckie, City Bank v. 306 Lucy ('. Mouflet . ... 505 Lunn V. Thornton 137 Lutscher v. Comptoir d'Escompte de Paris 283 Lynn, Marshall r. . . 57, 62, 117 Lys, Withers v 178 M. Mabeeley J'. Shepherd . . 33 McBain r. Wallace 189, 244 McClure, Eipley v. . 485, 480 McConnell r. Murphy . 216 MacDonald, Johnson r. 232, 490 47 Startup V. 225 McEwan v. Smith . . 194, 420 McHaffie, Hydraulic Co. v. 226, 532 Machin, Loeschman v. 168 McKav, Warner r. 87 Mackay r. Dick . 485 McKellar, Schuster v. 157, 404 McKenzie v. Hancock 520 McLean v. Dunn 72 468, 470 McLean, Hoadley r. 61 Sanders r. 199, 240 Macnee v. Gorst 440 Madison v. Alderson 2 Magniac, Ellershaw v. 153, 155 Malcolm r. Scott 295 Manders ■!•. Williams , . 461 Mangles, Hurry v. . 27, 338, 339 340 Mucklow V. 184 Markwick, Bartholomew v. 472 Marriott, Brogden r. 491 Marsh r. Pedder 328 Marshall v. Green . . 1^ , 34 Holroyd v. 137, 138, 248, 299 117 <•. Lynn 57, 62, • i". Poole . . . 533 Sparkes v. . . 132 TABLE OF CASES. XXXI [The paging refers to the [•] pages, ] Marshall v. Stevens &Co., Martindale ; Booth Smith Kendal 355, Martineau v. Kitching Martlet, Evans v. . . Marvin v. Wallis Mason, Mullet v. Maspons, Mildred v. . Matthews, Clements i>. Egerton p. Sainsbury r. Walker i>. Young V. . . Mattos, De, Calcutta Co. v. . . 457, 178, 182, . 393, 362 460 469 489 394 33 523 431 . . 138 57, 66 . 9, 11 . . 170 . . 182 128, .522, 200, 234, 235, 245, 488 Maud, Trimingham v. . . . 279 Mawhood, Smith t\ . . . . 241 Mayfield !'. Wadsley ... 13 Maynard, Clare v. . . , 521 Megaw, Field r 280 Merchant Banking Co. v. Phoenix Bessemer Steel Co. ... 423, 425 Meredith v. Meigh 38 Merry, Kingsford v 164, 437 Mersey Docks and Harbour Board, Campbell v 135 Mersey Steel & Iron Co. v. Naylor 205, 477, 479 Mertens r. Adcock 464 Meux, Thornton (i 97, 99 Mews V. Carr 76 Meyer, Hanson v. . 176, 348, 466 Meyersteiu v. Barber . 410, 412, 413 Middleton, Hart v 230 Portman v. . . 524 Midland Ey. Co., Home v. . 511 Mildred v. Maspons 431 Miles, Ex parte, In re Isaacs 360, 363 — 34Q 469 50 170 382 216 463 449 204 197 168 2 206 161 434 300 521 436 339, 463, ■ V. Gorton Milgate v. Kebble . 457, Millar, Long v. Millar v. Race . . . Mills V. Ball . 372, Hart V. ... Milner, Hore v. Minett, Eugg v 177, 179, Mirabita v. Imperial Ottoman Bank .... Mires v. Solesby Mitchel V. Lepage Mitchell, Humble v. Pettit V. Moakes v. Nicholson Moffat, Vaughan v. Mogg V. Baker Mondel v. Steele Monku Whittenbury 135. 499, 503, Montgomery, Wallcy v. Montis, Fuentes v. . . Moore c. Campbell 43, Morgan r. Bain . . . . — V. Oath . . . r. Larivifere Morley, Bloxam v. Morrice, Acraman v. Anderson v. 454, 455, . ." .' 128, Morrin, Ashcroft v. Morris r. Cleasby . r. Levison Sargent v. Morrison c. Gray Morse, Owenson v. Morton, Chapman v. V. Tibbett 85, Moss, Ex parte I'. Sweet Motives, Simon v. Mouflet, Lucy v. Mountford v. Willes Mucklow V. Mangles MuUer. Brown v. . . '- Honck V. 218, Mullet )'. Mason . . Murphy v. Boese McConnell i'. Musson, Graham v. Myers, Appleby v. . . Smith V. . . . PXGE 145, 201, 380 426,434, 435 in, 117, 216 .... 475 . . 212 285 464 180 245 61 86 . . 217 . . 389 323, 402 328, 337 . . 504 . . 18 . . 268 196, 503 2, 89 . 505 . 533 . . 184 516, 519 223, 470, 472 479 . . 522 523 . . 70, 77 . . 216 . 52, 76 . . 230 237, 490 N. Nash, Bianchi v. Hart V. . . Nathan v. Giles . 240 39 .... 386 Naylor, Mersey Steel & Iron Co. v. 205, 477, 479 Neale, Heyman v. 92, 93, 95, 98, 109 Smith V .65 Neck, Ex parte, In re Broad . . 290 Neill V. Whitworth 239 New V. Swain 458 New Quay Co., Sheridan u .157,202 New Zealand Banking Corpora- tion, la re Hickie's Case . . . 306 New Zealand Banking Corpora- tion, In re Levi's Case .... 281 New Zealand Co. v. Watson . 269, 289 Newell V. Radford . ... 52, 53 Newman, Page v 535 Newson, Eandall v 523 0. Thornton . . . 323, 399 (1865) XXXll TABLE OF CASES. Nichols, Ex parte V. Godts ... Jackson v. 356, 364, LThe paging refers to the [*] pages.] PAGE . 268 . . 207 ;67, 37.3, 375, 376 Paleologo, Codclington i . Palmer, Howe r. Parker )■. PaGK . 227 29, 205 . 503 ! Palsgrave, Porter r N'ioliolson V. Bower 21 I Panama, New Zeland and .Vustra- 533 V. Bradfield Union 209, 212 — . Moakes !•. 135, 161 \icklin, Lockett v. 43, 02 N'icolls V. Bastard 461 Nissen, Salomans v. . . 409 Xi.K, Bryans v. 133, 390 r. Olive 373, 386 Xohle i'. AVard . 118 Norman r. Phillips . 21 Norris, ISi'hneider r 68, 70 North British Australian Co., Swan r. . . .' 443 North Stattbrd Ey. Co. v. Peek 45 North and South Wales Bank, Duncan, Fox & Co. v. . . 289 North Western Bank, Cole v. 169, 391, 427, 435, 437, 438, 444 Northey v. Field . 373 Nugent, (hi-bert-Borgnis r. . 531 Nunes, Hutchings v. Nussey, AValker v. 325 39 O. 201, 332, 458 525 3';h i«i 161 149 119, 120, 516,519 504 Oakeley, Valpy c Oastler, Brady v. O'Brien, Goddard i Ogden, Kershaw v. Ogg i'. Shuter Ogle V. Atkinson r. Earl Vane Okell V. Smith . Oleaga o. West Cumberland Iron A Steel Co. . . 478 Olive, Ni.x v. . 373, 386 Ol'iver, Robson c. 328, 332 Waddington v 215 Oilier, Eobey's Perseverance Works «... . . 282, 285 Ojjpenheim v. Russel . . 373, 378, 379 ( ).sborne. Towers u. . . . . . 3, 4 (Juthwaite, AVentworth c. 355, 482 Owen, Bach v. . . , . 39 Owensou t). Morse . 328, 337 Oxendale v. Wetherell , 216, 501 P. I'AGE r. Cowasjeo ■ f. Newmann 1 'aice V. Walker lian Mail Coy., In Paradine v. Jane . Paramore, Hughes r. Pariente v. Lubbock Parker, Baldey r. V. Gtissage r. Hutchinson r. Palmer r. Patrick V. Staniland r. Wallis . . Buchanan v. Sexton Parnshaw Parsons r. Parton, Crofts v. Partridge, Chapman 1 Patent Derrick Co., Works r. Patenson, Leigh t'. Pateshall r. Tranter Patten r. Thompson Pa vy's Patent Felted Co., 7)1 IT . 293 Payne, Carruthers ;■. l.-i4, 185 Paynter v. James 237 Peake, Lewis c 520 North Stafford liy. Co. c. 45 Pearson c. Dawson . .... 347 Ex. parte, In re AViltshire 138 230 39 . 295 32,37 382 533 503 . 165 9, 10 19 497 . 496 . lOH 90, 98 Thames Iron . 445 .512 .... 497 331, 401 472 535 55 (1836) Iron Co. Pease v. Gloahec Pedder, Marsh i: Pierce !'. Corf Penn, Cuff v. . Percival v. Dunn . Perrin, Goirissen r. Perry, Bank of Ireland / Griffiths 1'. . . 201, Peruvian Bank, Banco de Pettit, Scott r. Pettit ?■. Mitchell . Phelps, Stokes & Co Philips r. Bistolli . 135 404 . . 328 3, 46, 62, 76 116, 117 . . 268, 271 217, 232, 491 . . . .306 332, 4.58, 474 Limac. 290 354, 378 ... 206 Comber . 291 19, 20, 166 Phillips, Hatfield v 428, 430 r. Huth 428, 429 430, 431 Norman v. 21 Rod well I'. . 7, 11 Philpots r. Evans . . . 514 Phoenix Bessemer Steel Co., In re 382 Ill re, Ex parte Carnforth Ha;matite Iron Co. 474 Phoenix Bessemer Steel Co. , Mer- chant Banking Co. p. 423, 425 Physic, Geary v. . . 73 TABLE OF CASES. XXXIU [The paging refers to tlie [*] pages. ] Pickard v. Sears . . . Pickering v. Busk . Pickford, Eowe v. . Picksley, Reuss v. Picton, Shaw v. Pitts V. Beckett . Planche v. Colbum Play ford, Castle v. Plevins v. Downing . Plummer, Champion v. Pointz, Bunny v. Poole, Marshall i'. Pordage v. Cole Portalis v. Tetly . Porter v. Palsgrave Richards v. . Portman v. Middleton Potter V. Duffield . . Powell, Cutter v. . . V. Divett . . Powles V. Hargreaves Pownel, Hoist v. 371 Prentice, Cox v. Prescott, Snee v. . Price ('. Richardson Prior, Alewyn v. Proctor V. Jones ■ — White V. Pugh, Curtis v. . . Purnell, Bartlett v. Pybus, Elliotts. . Pym, Sweet v. PAGE . 190, 442 441 364 65 . . 535 112, 113 . 486 . . 245 .... 121 ... 51, 66 330, 371, 458 .... 533 199, 449, 451 441 . 533 50, 63 . 524 . 54 ... 449 . 85, 93, 98 .... 304 , 372,375, 376 . 463 316 50 224 21 67 23 . 75 . . 132 . . 320 Q. Queen v. Saddlers Co. V. St. Michaels . Quinton, Goss v. R. Race, Miller v. . Radford, Newell v. . Raffles V. Wichelhaus Railton, Coates v. Randall v. Newson . . v. Raper .... Randell, South Australian ance Co. «. Eanken v. Alfaro Rawson, Hale r. Ray V. Barker, . . Rayner v. Linthorne Read, Belding v. . i'. Hutchinson O. cox. OF SALE. 382 39 185 ... 170 52, 53 . . .■ 166 . 355, 370 ... 523 ... 521 Insur- 163 289 . . 490 196, 506 86 . . 138 . 328, 332 Read, Robinson v. . . Redfern, Arnott v. . . . Redford, Ashforthti Reed, In re, Ex parte Barnett Rees, Doe v Reeve, Harm an v. V. "Whitmore . . . Reeves v. Barlow V. Capper PAGE 328, 333 . 533 228 168 383 4 300 138 461 487 Reid V. Hoskins Rennie, Anglo-Egyptian Naviga- tion Co., « 189, 230 Hoari). 217, 218, 219,470, 471, 473 Reuss V. Picksley 65 Reuter i). Sala . . . 222, 224, 228, 230 Reynolds, Davis v, Williams v. Withers Rhode V. Thwaites . Rhodes v. Rhodes . Richard, Bolton v. Richards v. Porter . Richardson v. Dunn Gricev. Price D. . Riddelien, Cookji. Rigge V. Burbidge . Ripley r. McClure . Rishtont). Whatmore , Ritchie v. Atkinson Roberts, In re . V. Brett Evans v. . 329 . . 515 . . 472 129, 132 . . 535 . 328 . 50, 63 216, 503 . 340 . 50 504 . . 521 485, 486 46 199 . , 533 199, 226 . 12, 13 . 299 Robey v. Oilier Rohey's Perseverance Works v. Oilier ... . . 282, 285 Robinson, Bull v. . . 207 Cusack V. . . 22, 23 V. Davison . . . . 230 V. Read . . 328, 332 Robson V. Oliver 328, 332 Roger V. Comj^toir d'Escompte de Paris ... . 355, 405, 536 Rodick V. Gandell 268, 295, 296 Rod well r. Phillips . , 7,11 Roebuck, Cumming r. 95, 98 Rogers, Chaplin v. . . 26 Rondeau v. Wyatt . 4 Roots, Carrington i\ . 7 Roper !'. Johnson . . 519 Rose, Godts v. ' 301, 350 Rosedale, Tyers v. . . 130, 517 Rosevear ChinaClay Co . 360, 362 Ross, Geake v. . . 536 Rossiter, Britain v 3 Rouch y. Great Western Ry. Co . 188 Rowlands, Cope v. . . 82 (1867) XXXIV TABLE OF CASES. [The. paging refers to the [*] pages.] PAGE Eoyal Bank v. Commercial Bank 3U9 l;o^\'cliffe, Wood v. 437 Eowe V. Pickford . . 364 Euck, Gregsont). 84, 86 V. Hatfield . . . 151 Encker v. Cammeyer . 89, 97 Euding, Spalding v 407 Eugg V. Minett . 177, 179, 449 Eunder, Hallen v 13 Eussel, Oppenheim v. 373, 378, 379 Eussell, Woods v. 18.5 Eust, Buxton v. . ... 50, 65 Eyder, Craven r. . 150, 151, 386 Eylands v. Kreitman . . 211, 216 S. Saddlere Co., Queen 1'. . 382 Sainsbury v. Matthews . 9, 11 St. Michael's, Queen r 39 222, 2-24, 230 54 509 407 Sala, Eeuter v. Sale ('. Lambert . Salomans v. Nissen Salting, Ex parte Saltley, Hart v. 22 Samuda, Zuringer v. 416 Sanders c. Jameson . . 196 (■. McLean . 199, 240 Sanderson r. Graves 471 Sargent, Higgins v. 532, 533, 534, 535 c. Morris Sari r. Bourdillon Saunders, Bloxam -i . Topp Saunderson i: Jackson Schilizzi, Wieler i'. Schneider v. Norris Schofield, Bayley r>. . Kenworthy r. 389 . 46,51 312, 454, 455, 458, 466, 468 . . 23 4K, 66, 68, 70 208, 498 68.70 2, 45, 62 Schotsman r. Lancashire & York- shire Ey. Co. . . * 351, 359 Schroeder, Fruhling v. . . 535 Schuster v. McKellar 157, 404 Scorell r. Boxall . . . 7 Scott, Anderson v. . . 27, 32, 33.s i'. Eastern Counties Ry. Co. 22 Fischel !'. " 232 Leask r. . 405 ('. Newington . . 445 r. Pettit ;!,34, 378 Scovell, Tanner v 346, 371 Seagrave r. Union Insurance Co. . 100 Sears, Pickard v. 190, 442 Selby r. Selby 72 Senior, Higgins . 55, s7 Sewell, Burdick r. :] 120, 517 PAGE .... 50 154, 159, 160 24 Wain r. Warlters Wait V. Baker Wakefield, Taylor r. Walker v. Birch 276 V. Bradford Old Bank 271 Cox V. . -521 V. Matthews 170 V. Nussey 39 Paice V. . .... 55 Wallace r. Breeds 126, 178, 349 McBain v. . . . 189, 244 Walley r. Montgomery . 145, 201, 380 Wallis, Marvin v. 32 Parker v. 19 Walter v. Smith 446 Ward r. Eyre . 536 .... 118 Noble c. . Wurine;, Ex parte, 271, 273, 274 2HI, 282, 303, 304, 305, 306, U. Union Insurance Co. , Seagrave v. 160 Bank of London, Sheppard?'. 440 Marine Insurance Co. , Jack- son r . . 2:!o Usborne, Jenkyns r. . 324, 419 ■ — Johnson v 89 Usherwood, Inglis v. 317, 327, 352, 467 V. Valpy r. Gibson r. Oakley Van Custfi'l r. Booker Van Wart i: Woolley . . Vandenberjj;h v. Spooner Vandeput, Wiseman i: Vandersee, Alexander v. Varley, Dodsley v. . Vaughan r. Halliday r. Miiffat . Vernede r. Wtber Vertue )'. Jewell . . Viall, Chinnery v, Vickers «. Hertz . W. Waddington v. Bristow V. Oliver Wadsley, Maylield )•. Wadsworth, Crosby v. 61, 356, 374 201, 332, 4r,s 159, 357 . 328 . 52,5:! 316, 317 227, 229 34, 36, 37 270, 307 . . . . 434 209,490,507 331 ... 494 . 169, 435 Waring r. Coxe Langton v. 382, 309 403 301 50 88 65 41 12 14 360 4 195 289 46 8 .... 230 209, 490, 507 n 505 355 !55, 482 West Cumberland Iron and Steel Warlters, Wain v. Warner )'. JleKay V. Willington Warren, Hutton v. Warwick r. Bruce . . Wnshbourn i'. Burrows . Watson, Ex parte Garbutt v. Hawes v. New Zealand Co., v. Studs ('. Watts V. Friend Webb V. Fairmanel" . . Weber, A'ernede v. Weld, Graves v. AVells, Grimoldby v. Wentworth, Dodson r. . V. Outhwaite 191, 269, 7| (18- Ce Oleaga r. Weston, Foster v. Westzynthus, In re Wetherell, Oxendale v. Whatmore, Rishton v. Wheeler, Bushel r. . Williams v. AVhisking, Bigg c. White, Bannerman v. . Ex parte, In re Xevill — I. Proctor r. Wilks . Whitehead r. Anderson 367, 372, 373, Whitehouse r. Fi'ost Hinder. 2, 18, 2(i, 45, 74, 91, !J8, 177 Whitmore, Isherwood t. 206 ■0) 47-1 534 . . 406 216, 501 46 23 209, 496, 497 125, 127 369, 371, ri, ?,<\ 126, 127 TABLE OF CASES. XXXVU [The paging refers to the [*] pages. ] ^^ PAGE "Whitmore, Reeve v. , . . . . 300 Whitteubury, Monk v 436 .yriaUi-ag, Inre, Exparte'H.&W . 268 Whitworth, Jewan v. . . 440 Neill V. 239 "Wiehelhaus, Raffles v. . . 166 Wieler v. Schilizzi . 208, 498 Wiflen, Knights v. . . 194 WilkinS V. Bromhead 132 'Wilkinson v. Evans . . Stephens v. . Wilks, White r. . . Willes, Mountford v. Williams r. Everett . . V. Fritzmaurice Williams i'.. Lake . Manders v. V. Reynolds . V. Wheeler . . 65 463, 472 125, 127 533 277 187 51 461 515 2 55 65 Williamson, Cnrtis v. Willington, Warner v. Willomatt, Cooper v 169 Wilmshurst v. Bowker 145, 152, 153, 456 Wilson, Toms v 226 Wiltshire Iron Co. Jn re Ex parte Pearson 135 Wiseman v. Vandeput . 316, 317 Withers v. Lys . . . 178 V. Reynolds . ... 472 Witt, Fraser v. 360 Wood V. Bell . . 188 Cook V. . . 533 • V. Jones . . 323, 329 V. Rowcliffe . . . . 437 193, Wood, Staunton v. . Woodley v. Coventry "VSioods V. Russell WooUey, Van Wart v. . . . Wortes «'. Clifton Wray, Feise v. 321, 322, 323 Siffkin V Wright u. Campbell V. Dannah , V. Lawes Leeds v. . VVvatt, Rondeau «. FAGi: . . 226 194, 195 . 185 . 328 . . 266 328, 330, 480 322, 382 393, 394 . . 73 372, 376 354 4 Yates, Clay v 15 Dixon D. 330, 342, 344, 371, 378, 386, 456, 458 Ford V 42 Yglesias, In re, Ex parte Gomez 280, 285 York, Duke of, Chalie«> 534 Young, Glasspole v. . . . 461, 534 Jonassohu v. . 473 V. Matthews . . .182 Z. Zagury «. Furnell ..... 179, 243 Zenos, Danube and Black Sea Co. I' , 4>^7 Zwinger v. Samuda . , . , 416 (1871) *A TREATISE [*i] ON THE CONTRACT OF SALE, ETC. PART I. OF THE SEVENTEENTH SECTION OF THE STATUTE OF FRAUDS. CHAPTER I. WHAT AGREEMENTS ARE WITHIN IT. The 17th section of 29 Car. 2, c. 3, made for the prevention of frauds and perjuries, commonly called the Statute of Frauds, is in the following words: — "And be it enacted, that from and after the "said four- and -twentieth day of June (a. d. 1677), no contract for " the sale of any goods, wares, or merchandizes, for the price of " 101. 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 " 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 authorized" (a). *[Lord Blackburn, in the case of Maddison v. Alderson (&), [*2] (a) [The fourth section enacts ' ' That no action shall be brought to charge any ' ' executor or administrator upon any special promise to answer damages out of " his own estate; or whereby to charge the defendant upon any special promise ' ' to answer for the debt, default, or miscarriage of another person ; or to charge ■ ' any person upon any agreement made upon consideration of marriage ; or upon ' ■ any contract or sale of lands, tenements, or hereditaments, or any interest in "or concerning them; or upon any agreement that is not to be performed with- ■ ' in the space of one year from the making thereof; 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."] (b) Maddison v. Alderson, 8 Ap. Ca. 488; 52 L. J. Q. B. 749. See also the judgment of Brett, L. J., in Bntain v. Bossiter, in 1879, 11 Q. B. D. 127; 48 I.. J. Q. B. 363. (1873) 2 THE SEVENTEENTU SECTION. [Pt. J. in 1883, said, speaking of the effect of these sections, " I think it is " now finally settled that the true construction of the Statute of "Frauds, both the 4th and 17th sections, is not to render the con- " tracts within them void, still less illegal, but is to render the kind "of evidence required indispensable when it is sought to enforce "the contract " (c).] This important enactment is applicable to every sale of tangible moveable property, though not to sales of shares in a company or other intangible property (d). At one time a question was made whether public sales by auction were not excepted from its operation. In Simon v. Motivos (e), in 1766, Lord Mansfield thought that a sale by auction, from the pub- licity of its nature, was not within the mischief aimed at by the statute, namely, the temptation to commit frauds and perjuries; and the rest of the King's Bench seem to have agreed with him, but the case was decided upon another ground, as the requisites of the statute bad in fact been complied with. In Hiiide v. Whitehoiise (f), in 1806, Lord Ellenborough expressed a strong opinion that sales by auction were within the statute, and that the opinion expressed by Simon v. Motivos (g) was ill-founded, but it was not necessary to decide the point as the requisites of the statute were in that case also complied with. [*3] In Keuworthy v. Schofield (h), in 1824, the point was *de^ cided. In that case there was a sale by auction of goods above 101. in value, and the requisites of the statute were not complied with. The King's Bench decided that the contract could not be enforced; this decision has always been acted upon (i). It was an unsettled point whether the provisions of the Statute of Frauds were applicable to contracts for the sale of goods which were at the time of the contract not in a state capable of being de- livered according to the provisions of the contract : a more recent statute has rendered the point no longer important, but it may be Worth while to state the difficulty. In Towers v. Osboi'iie [k), in 17'24, Pratt, C. J., decided that an agreement to make a chariot was not within the statute, which he said related only to contracts in which the seller was to deliver the goods immediately. ((•) [An agi-eement which was made veibally abrond, and was good there, f-annot be enforced here if it comes within the Statute of Frauds' Leroux r Broum, 11 C. B. 801, in 185'3; 22 L. J. C. P. 1. But verv considerable doubt was thrown on this case by Willes, J., in ]\'illiams v. Wheeler, 8 C. B. N S 299, in 1860. ] (d) Humhh! v. IHilchdl, 11 A. & E. 20.5. (f) ,SV»mn V. Motii-ox. W. Bl. 599; S. C. 3 Burr. 1921. (/) Ilinilcx. Wliitchome, 7 East, 558. (fl) Simon v. 3Iotivos, 7 East, 558. (h) KenwoHJiyv. Schofield, 2 B. & C. 945. (t) See also Pierce v. Corf, L, R, 9 Q. B. 210; 43 L. J. Q. B. 52. (k) Towers v. Osborne, 1 Strange, 506. (1874) Ch. /.] THE SEVENTEENTH SECTION. 3 la Clayton v. Andrews (l), in 1767, the King's Bench confirmed this case, and held that a contract to deliver wheat (then unthrashed) in a month from the time of the agreement was not within the statute. In Groves v. Buck (m), in 1814, the King's Bench decided that an agreement to purchase a quantity of oak pins, not yet cut out of the slab, was not within the statute. The principle of these cases, decided by great Judges, including Pratt, C. J., Lord Mansfield, and Lord Ellenborough, seems to have been either that the word bargain in the statute must be taken in the strict technical sense, so as to exclude all executory contracts not amounting to a bargain and sale, or else that, as the statute said the contract was to be good if the buyer " accepted and actually received," part of the goods, it could only be meant to apply to con- tracts where it was possible to accept and receive part of the goods. It is clear that the buyer could neither accept nor receive the *chariot before it was built, the corn before it was thrashed, [*4] or the oak pins before they were cut out. On the other hand, in Rondeau v. Wyatt (n), in 1792, the Court of Common Pleas decided, after taking time to consider, that a contract to supply goods on board ship was within the statute, as it was a contract for a sale, though a future one; and iij Garbutt v. Watson (o), in 1822, the King's Bench decided the same point where the goods were flour yet unground. In both these case the Court said that Towers v. Osborne (p) might, perhaps, be supported as being a contract, not for a sale, but for work, labour, and materials; but subsequently in Atkinson v. Bell (q) the King's Bench held that it was not so. In Garbutt v. Watson (o), Clayton v. Andrews (r), was expressly overruled. In seems impossible to reconcile these decisions, but the legisla- ture in 1828, by 9 Geo. 4, c. 14, s. 7 (Lord Tenterden's Act), has put an end to the dif&culty by enacting, that " the provisions of the " Statute of Frauds shall extend to all contracts for the sale of goods "to the value of lOl. or upwards, notwithstanding the goods may " be intended to be delivered at 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 mak "ing or completing thereof, or rendering the same fit for delivery.'' [In Harman v. Reeve (s), in 1856, Jervis, C. J., pointed out that in 9 Geo. 4 the word " value " was used, instead of the word" price," as in the 17th section, and that as the statutes must be construed {I) Clayton v. Andrews, 4 Burr. 2101. (m) Groves v. Buck, 3 M. & S. 178. (») Rondeau v. Wyati, 2 H. Bl. 63. (o) Garbutt v. Watson, 5 B. & A. 613. (p) Towers V. Osborne, 1 Strange, 506. (q) AtJdnson v. Bell, 8 B. & C. 277. (r) Clayton v. Andrews, 4 Burr. 2101. (s) Sarman v. Beeve, 18 C. B. 587 ; 25 L. J. C. P. 257. (187.-,) 4 THE SEVEXTEEXTII SECTIOX^ — EMBLEMENTS. [Pt. I. together, the 17th section must now be read as if it contained the word "value."] The statutes, therefore, are now applicable to all contracts for the [*5] sale of " goods, wares, and merchandize," words which, *a8 has been already said, comprehend all tangible moveable property; I say moveable property, for things attached to the soil are not goods, though when severed from it they are; thus, growing trees are a part of the land, but the cut logs are goods, and so too bricks or stones which are goods, cease to be so when built into a wall; they then become a part of the soil. Fixtures and those crops which are included amongst emblements, though attached to the soil are not for all purposes part of the freehold. It seems pretty plain, upon principle, that an agreement to transfer the property in something that is attached to the soil at the time of the agreement, but which is to be severed from the soil and converted into goods before the property is to be transferred, is an agreement for the sale of goods within the meaning of the 9 Geo. 4, c. 1 4, if not of the 29 Car. 2, c. 3. The agreement is, that the thing shall be rendered into goods and then in that state sold ; it is an executory agreement for the sale of goods, not existing in that capacity at the time of the contract. And when the agreement is, that the property is to be transferred before the thing is severed, it seems clear enough, that it is 7iot a contract for the sale of goods, it is a contract for sale, but the thing to be sold is not goods. If this be the principle, the true subject of inquiry in each case, is, when do the parties intend that the property is to pass : if the things perish by inevitable accident before the severance, whom do they mean to bear ihe loss ? for in general that is a good test of whether they intend the property to pass or not ; in other words, if the contract be for the sale of the things after they have been severed from the land so as to become the subject of larceny at common law, it is, at least, since the 9 Geo. 4, c. 14, a contract for the sale of goods, wares, and merchandizes, within the 17th section of the Statute of Frauds. If the contract be for the sale of the things whilst they are attached to the soil and not the subject of larceny at common law, it is a contract for the sale of things, crops, fixtures, emblements, trees or minerals, which may or may not be au interest in land within the 4th section of the statute, but are not [*6J goods, wares, and merchandize *within the 17th section. On the whole the cases are very much in conformity with these distinc- tions, though there is some authority for saying that a sale of emblements or fixtures vesting an interest in them, whilst in that capacity, and before severance, is a sale of goods within the meaning of the 17th section of the Statute of Frauds, and a good deal of authority that such a sale is not a sale of an interest in land within , the 4th section, which, however, may be the case though it is not a sale of goods, wares, and merchandize within the 17th. In reviewing the authorities, it is of some importance to remark Cll. /.] THE SEVENTEENTH SECTION — EMBLEMENTS. 6 how the question arose before the Court, and whether the decision turned upon the legal effect of the contract proved in evidence, or upon the contract stated in the pleadings, for some misapprehen- sions seem to have risen from neglecting this. The first case that is generally cited ou the subject was Wad- dington v. Bristow (<), decided by the Common Pleas in 1801. It was an action against executors. The declaration was that the defendant's testator was possessed of land on which hops were then growing ; that the plaintiifs bargained for and agreed to buy, and the testator agreed to sell all the hops then growing, to be delivered in pockets, &c. In proof of this declaration a document was produced, signed by both parties, which was in the following terms: — "Agreed to give the undermentioned gentlemen at the " rate of IQl. per cwt. for the quantities of hops as attached to their " respective names, to be in pockets, and to be delivered at "Whitstable. Wm. Francis (the testator), about 23 acres." This paper was not stamped, and the question was not whether it came within the Statute of Frauds or not, but whether it came within the exemption in the Stamp Act of agreements relating to the sale of goods, wares, and merchandizes. Lord Alvanley thought it an agreement for the sale of goods, and something more, viz., an agreement not to sell the produce of the land to any one else before it was severed.' Heath, J., and Rooke, J., *thought aeon- [*7] tract for the sale of non-existing goods was not within the exemp- tion, and that as in this case the hops did not at the time of the sale exist as goods, it required a stamp. Chambre, J., thought a contract for the sale of non- existing goods was within the exemp- . tion ; he seems to have doubted whether the agreement proved was not within the exemption, but he agreed with Lord Alvanley that the agreement declared upon gave the purchaser an interest in the produce of the vendor's land. It seems probable that Chambre, J., would have held the agreement declared on withinthe 4th section of the Statute of Frauds, but it seems difficult to treat this case as directly deciding anything and Parke, B., in Rodwelly. Phillips (u), threw doubt on it. In Crosby v. Wads-Worth (x), in 1805, the action was trespass to the plaintiff's close, growing grass and hay. The plaintiff claimed the hay under a parol contract; Lord Ellenborough expressed an opinion that it could not be an agreement within the 17th section, because the goods did not exist as such at the time of the contract; on this opinion ho afterwards acted in Groves v. Buck (y), and as has been already observed, it is now by Act of Parliament, not law, whatever it might be then. But the judgment of the Court was that an agreement conferring an exclusive right to the grovdng (t) Waddinqton v. Bristow, 2 B. & P. 452. («.) Eodwell V. Phillips, 9 M. & W. 503. (x) Crosby v. Wadsworth, 6 East, 602. (y) Groves v. Buck, 3 M. &S. 178. (1877) 6 THE SEVENTEENTH SECTION — EMBLEMENTS. \^Pt. I. grrass was an agreement for an interest in land. It may be observed that on these pleadings the effect of the agreement was not mate- rial ; if the agreement did not give an exclusive right to the grow- ing grass, trespass would not lie ; if it did the statute applied : in either case the plaintiif failed (z). In Scorell v. Boxall (a), in 1827, on similar pleadings, the Ex- chequer decided the same point the same way, where the subject matter of the action was growing underwood. In both those cases the Court had to decide upon the contract [*8] *as it was stated on the pleadings; but in many cases the ques- tion depends as to the legal eilect of the contract proved. [And it becomes necessary to examine into the state in which the subject matter of the sale is, or will be, at the time when the property is intended to pass.] In general, when there is a contract for the sale of goods in a state not yet fit for delivery, it is considered that the property is not intended to he transferred to the purchaser until the seller has done all that he is bound to do to render the goods fit for delivery, unless a contrary intention clearly appear [post, page 174), and this rule must apply where the contract is for the sale of things not yet rendered into goods, but which are, if the agreement is pursued, to be rendered into goods. The intention of the parties must be presumed to be to transfer the property in the things when in a deliverable state, i. e., when severed from the soil, if that [the severing] is to be done by the seller, and not before. There is no doubt on the authorities that such a contract, continu- ing executory till the subject matter of the sale is converted into ■goods, is (now at least) a contract concerning the sale of goods, and not a contract for the sale of an interest in land. Thus, in Smith v. Surman (6), in 1829, the King's Bench held that a verbal agreement for the sale of timber then growing, and to be cut by the vendor, was a contract for the sale of goods within the meaning of the 17th section. Littledale, J., said, in deliveriog judgment, " The impression on my mind is that wherever the sub- " ject matter at the time of the completion of the contract is goods, " wares, and merchandizes,' the 17th section attaches upon it, " although it has become goods, wares, and merchandize between " the time of making and completing the contract, either by one of " the parties having JDestowed his work and labour upon his own " materials, or by his having converted a portion of his freehold " into goods and chattels." In that case the timber was to be cut [*9] by the vendoi-s. [In Watts v. Friend (c), in 1830, *the plain- tiff agreed to supply the defendant with turnip seed : the defend- ant was to sow it on his own land, and to sell the seed produced to the plaintiff at a guinea a bushel. There turned out to be more (z) Ciirniujton v. Soots, in 1k:37, 2 JI. & ^X. 24s. (a) Seorcli v. BnxnU, 1 Y. & J. 396. {/;} tT. (k) This rase «:is followed in Lee \. Oaskdl, in 1S7(J, 1 Q. B. D, 700 ; 45 L. .1. Q. B. 540. (i) Emns v. lioheHs, 5 B. & C. 8-21». (u) Jones V. Flint, 10 A. & E. 754. (x) Waslibourn v. Bunvwx, in 1874, 1 Ex. 107 ; 16 L. J. Ex. 266. (y) Manltall v. Gicen, 1 C. P. D. 35 ; 45 L. .J. C. P. 153. (188:2) Ch. T.'\ THE SEVENTEENTH SECTION EMBLEMENTS. 11 "seller the case is not within the section (4th). Another case is " where, although the thing may have to remain in the ground some " time, it is to be delivered by the seller finally, and the purchaser is to "have nothing to do with it until it is severed, and that case also is " not within the section. Then there comes the class of cases where "the purchaser is to take the thing away himself. . In such a case "where the things are fr actus mdustriales, then, although they are "still to derive benefit from the land after *the sale in order [*15] " to becoiye fit for delivery, nevertheless it is merely a sale of goods, ■' and not within the section. If they are not fructus industriales, " then the question seems to be whether it can be gathered from " the contract that they are intended to remain in the land for the " advantage of the purchaser, and are to derive benefit from so re- " maining ; then part of the subject matter of the contract is the " interest in land, and the case is within the section. But if the "thing, not being fructus industriales, is to be delivered immedi- " ately, whether the seller is to deliver it or the buyer is to enter and " take it himself, then the buyer is to derive no benefit from the " land, and consequently the contract is not for an interest in the "land, but relates solely to the thing sold itself." In the cases in the note (z) the question was whether that which had been contracted for was goods, or work and labour. The im- portance of this is very much less now than it was when strict forms , of pleading were in use.] (2) Atkinson v. Bell, in 1828. 8 B. & C. 277 ; Grafton v. Armitage, in 1845, 2 C. B. 336 ; 15 L. J. C. P. 20 ; Olark v. Bulmer, in 1843, 11 M. & W. 243 ; Clay v. Yates, in 1856, 1 H. & N. 73 ; 25 L. J. Ex. 237 ; Lee v. Griffin, in 1861, 30 L. J. Q. B. 252 ; 1 B. & S. 272. ■ (1883) 12 TUB SEVEHTEENTU SEUTIOX — ACCEFTAIICE. [P^ /. [*10] *CHAPTER II. OF THE FIKST EXCEPTION. Section I. What constitutes an acceptance, p. *17. Section II. And an actual receipt, p. *25. Having considered what contracts are within the 17th section of the Statute of Frauds, it becomes necessary to inquire what circum- stances will satisfy the statute. It will be observed, on looking at the language of the statute that there are three different modes pointed out in which the contract may be made good, and it is con- venient to treat of each of the three ways separately. First, then, what is meant by the first exception, viz., "except the buyer shall "accept part of the goods so sold, and actually receive the same." If we seek for the meaning of the enactment, judging merely from its words, and without reference to decisions, it seems that this provision is not complied with unless the two things concur : the buyer must accept, and he must actually receive part of the goods; and the contract will not be good unless he does both. And this is to be borne in mind, for as there may be an actual receipt without any acceptance, so may there be an acceptance without any receipt. In the absence of authority, and judging merely from the ordinary meaning of language, one would say that an acceptance of part of the goods is an assent by the buyer, meant to be £nal, that this part of the goods is to be taken by him as his property under the con- tract, and as so far satisfying the contract. So long as the buyer can, without self-contradiction, declare that the goods are not to be taken in fulfillment of the contract, he has not accepted them. And it is immaterial whether his refusal to take the goods be reasonable or not. If he refuses the goods assigning grounds false or friv- [*17] olous, *or assigning no reasons at all, it is still clear that he does not accept the goods, and the question is not whether he ought to accept, but whether he has accepted them. The question of ac- ceptance or not is a question as to what was the intention of the buyer as signified by his outward acts. (1884) Ch. Il.\ THE SEVENTEENTH SEJTION — ACCEPTANCE. 13 The receipt of part of the goods is the taking possession of them. When the seller gives to the buyer the actual control of the goods, and the buyer accepts such control, he has actually received them. Such a receipt is often evidence of an acceptance, but it is not the same thing; indeed the receipt by the buyer may be, and often is, for the express purpose of seeing vsfhether he will acqept or not. If goods of a particular description are ordered to be sent by a car- rier, the buyer must in every case receive the package to see whether it answers his order or not ; it may even be reasonable to try part of the goods by using them; but though this is a very actual receipt, it is no acceptance so long as the buyer can consistently object to the goods as not answering his order. It follows from this that a receipt of goods by a carrier or on board ship, though a sufficient delivery to the purchaser, is not an acceptance by him so as to bind the contract, for the carrier, if he be an agent to receive, is clearly not one to accept the goods. On the whole the cases are pretty consistent with these sugges- tions and with each other, as to what forms an acceptance within the statute, though not as to the strength of the proof required to establish it. On the question of what constitutes an actual receipt there is some difficulty in reconciling the cases, but we shall return to this part of the subject after citing a few cases to show what is an acceptance. Section I. ^yhat constitutes an acceptance. In Hinde v. Whitehouse (a), in 1806, sugar was sold by auction under this, amongst other conditions: — "The sugars to be taken " with all faults and defects, as they now are at the *King's [*18] " weights and tares, with the allowance of draft, or reweighed "giving up the draft." Previously to the sale samples were drawn from each hogshead. It was proved that the samples used at such sales were always delivered to the purchasers as a part of their purchase to make up the quantity, and that in this particular case the samples, had been delivered to and kept by the defendant, who was the highest bidder for sugar at a price above lOZ. The de fendant's counsel contended that the samples were accepted as specimens only and not as part of the goods sold, but the Court of King's Bench decided otherwise. Lord Ellenborough, in deliver- ing judgment, said, " Inasmuch as the half pound sample of sugar " out of each hogshead in this case is, by the terms and conditions " of sale, so far treated as part of the entire bulk ' to be deliver- (rt) Minde V. Whitehouse, 7 East, 558. (1885) 14 THE SEVENTEENTH SECTION — ACCEPTANCE. [Pt. I. "ed, that it is considered in the original weighing as constituting a " part of the bulk actually weighed out to the buyer, and to be al- " lowed for specifically if he should choose to have the com- "modity re-weighed, I cannot but consider it as a part of the goods " sold under the terms of the sale, accepted, and actually received "as such by the buyer; and, although it be delivered partly alio ''intuitu, namely, as a sample of quality, it does not therefore pre- "vent its operating to another consistent intent also in pursuance "of the purposes of the parties as expressed in the conditions of "sale, namely, as a part delivery of the thing itself as soon as, in "virtue of the bargain, the buyer should be entitled to retain, and •'should retain it accordingly." There could be no question in that case that the buyer had actually received the samples, and it is dif- ficult to ^ive a more concise and accurate definition of the time when an actual receipt becomes an actual receipt and acceptance than is contained in the last few words above quoted. [In Morton v. Tibbett (6), in 1850, where the defendant agreed to buy and to send for fifty quarters of wheat, the sale was by sample which he took away with him. He resold it by the same [*19] sample, and when the wheat arrived he tendered *it to his vendee, who refused to take it as it did not agree with the sample. The defendant then refused to accept it from the plaintiff. It was argued that there was no evidence of an acceptance to satisfy the statute. Bat the Court held that there was, and, inasmuch as Lord Campbell said that the defendant had done nothing to preclude himself from objecting that the wheat was not up to sample, he does not appear to have considered that tendering to the subvendee was evidence of acceptance, and if that be so, the only evidence was the accepting the sample (c). Lord Campbell, C. J., said (d), " We are therefore of opinion that there may be an acceptance and " receipt within the meaning of the Act, without the buyer having " examined the goods or done anything to preclude him from con- " tending that they do not correspond with the contract.'' And this opinion was confirmed by Lord Campbell, C. J., in Parker v. Wallis (e), in 1855, and by Bramwell, B., in Castle v. Sworder (/). The acceptance of the sample is a present actual acceptance, with the proviso that it may be returned if the bulk do not correspond with it.J In Phillips V. Bistolli (g), in 1824, the sale was at an auction, one of the conditions being that the buyer was to pay SOL per cent, upon being declared the highest bidder, and the residue before the goods were removed. The defendant had some earrings knocked down to him at 88Z. : they were handed him; after three or four (b) Morton v. Tibhett, l.i Q. B. 428; 19 L. JTQ. B. 38-2. (c) See also Gardner v. Grout, 2 C. B. N. S. 340. (d) 15 Q. B. 434. (e) Parker v. Wallia, .5 E. & B. 21. (/) CoHtle V. Sworder, ,'5 H. & N. '^87. iff) Phillips V. Bistolli, 2 B. & C. 511. (1886) Ch. //.] THE SEVENTEENTH SECTION — ACCEPTANCE. 15 minutes he returned them, stating that he thought the bidding was 48Z. The auctioneer brought an action for the price, and Abbott, C. J., told the jury that, if there was no mistake as to the bidding, there was in law an acceptance and actual receipt. The jury found there was no mistake, and a verdict was entered for the plaintifF. The Court of King's Bench granted a new trial, because the deliv- ery of the earrings to the purchaser, *who had neither paid [*20] deposit nor price, was at most but very slight evidence that the vendor parted with the right of possession, and that the keeping of the goods for a few minutes was but slight evidence of an accept- ance by him as owner; in short, they thought that the purchaser was not proved to be either, in the language of Lord Ellenborough above quoted "entitled in virtue of the bargain to retain," nor to have "retained accordingly." The two cases agree most accurate- ly as to what must be proved, though it may be that Lord Ellen- borough would have thought the evidence in Phillips v. Bistolli (h) sufficient, whilst, perhaps, the Judges of 1824 would have hesi- tated in Hinde v. Whitehouse (i). In Kent v. Huskisson (k), in 1802, the facts seem all to have been truly stated in a letter from the defendant to the plaintiff: " After receiving a letter from your house in town, stating the bale " of sponge was sent by your directions, I called in a friend or two "who are competent judges of the article, and asked them to say, " according to the present price of sponge, what it was worth. The "answer was, not more than six shillings per pound: have there- "fore returned it to you by the same conveyance." There had been a verbal contract for the sale of more than lOl. worth of sponge at lis. per pound. The Common Pleas were clear that these facts did not amount to an acceptance and receipt. Heath, J., observed, that the vendee, to bring the case within the words of the statute, must " both accept and receive. Now that acceptance " I cannot consider to be any other than the ultimate acceptance, "and such as completely affirms the contract." Chambre, J., said, " Certainly there was no acceptance of the goods by the defendant, "unless we can consider a refusal to accept as amounting to an ac- ceptance." [The acceptance under the statute must be with the intention of taking possession as owner, as Parke, B., said in Fa- rina V. Home (?).] *In Proctor v. Jones (m), in 1826, it was held that the mark- [*21] ing by the vendor of casks of wine lying in the docks with the iniijals of the purchaser, at his request and in his presence, the terms of payment not having been settled at the time and conse- quently the contract not being complete, is not an acceptance under the 17th section of the Statute of Frauds. (70 Phillips v. Bistolli, 2 B. & C. 511. (i) Hinde v. Whilehcmse, 7 East, 558. (k) Kent v. Huskisson, ?i B. & P. 233. (l) Farina v. Home, 16 M. & W. 123; 16 L. J. Ex. 73. (m) Proctor v. Jones, 2 C. & P. 532. (1887) 16 THE SEVENTEENTH SECTION — ACCEPTANCE. [P<, /. [In HuntY. Hecht (n), in 1853, the defendant examined a heap of bones lying on the plaintiff's premises, and instructed the plain- tiff to put a certain quantity into sacks and to send them to a wharf for shipment. As soon as he heard of the delivery at the wharf ho inspected them and refused to accept them as not being what he had bargained for, and the Court held that although there was a receipt there was no evidence of acceptance (o). In Nicholson v. Bower (p), in 1858, the plaintiff was the pur- chaser's assignee; the purchaser had agreed to buy by sample, of the defendant, 141 qrs. of wheat which the defendant sent to Lon- don, where it was warehoused by a carrier. The purchaser sent to the warehouse for a sample, and having examined it, gave orders that the bulk was not to be sent for. He was then insolvent, and the Court, being of opinion that he acted in this way thinking that he ought not under the circumstances to except the wheat, held that there had been no acceptance. In Hart v. Bush (q), in 1858, the vendee in Lancaster ordered brandy of the vendor's traveller to be sent to a wharf in London to be shipped from there to hini at Lancaster : the ship was lust. It was held that there was no acceptance. In Simmonds v. Humble (r), in 1862, the defendant, having pur- [*'2i] chased hops lying in a warehouse, by sample, sent his *agent to meet the plaintiff's agent: the two agents went over the hops, compared the bulk with the sample, and agreed on certain allowances. Nothing further was done, and the Court was of opinion that this was evidence of acceptance.] In Hanson v. Armitage (s), 1822, the King's Bench decided that a receipt by the purchaser's customary carrier was no acceptance; and in Acebal v. Levy (t), in 1831, the Common Pleas ruled the same point of a receipt on board a ship chartered by the purchaser. The reason assigned in both cases was the same : the purchaser might still consistently object to the goods when they came to his hands, in other words, the agent was not an agent having authority to ac- cept the goods, though he had authority to receive them (u). These cases are inconsistent with and must be considered as overruling a Nisi Prius decision of Chambre, J. (x), in 1814, in which he con- (n)^H7ml V. licclii, 'K~Ex7)-'uY'i--i~i^^Ex7WiV.;. (o) Poe also Norman v. PJiillips, in 184r>, 12 1\I. & W. 277 ; 14 L. J. Ex. 306, -where the Court -was of opinion that although thove might be a scintilla of evidence, there -was not sufficient evidence to warrant a jury in finding that there had heen an acceptance. (p) Nicholson v. Bower, 1 E. & E. 17:2 ; 28 L. J. Q. B. 07. ^ (}) Hart V. Bush, E. B. & E. 494 ; 27 L. J. Q. B. 271. (r) Simmonds v. Humble, ]:! C. B. N. S. 2oS ; 9 L. T. IC (s) Hanson v. Armilage, 5 B & A. 557. (t) Acebal v. Lcri/, 10 Bing. 376. (u) Coombs V. Bristol anel Exeter By. Co., in 1858, 3 H. & X . 510 ; 27 L. J. Ex. 401 ; Cvsnck v. Eolnnson. in 1861, 1 B. & S. 299 ; 30 L. J. Q. B. 261 ; Coates v. Chaplin, in 1842, :j Q. B. 483 ; 6 Jur. 1123. (x) Harte v. Satiley, 3 Camp. 528. This case is no longer law, 2 E. & B. 370 : E. B. & E. 498. (1888) Ch. II.'\ THE SEVENTEENTH SECTION — ACCEPTANCE. 17 Bidered that the purchaser constituted the usual carrier his agent to accept and receive. [In Elliott "V. Thomas (y), in 1838, the defendant ordered certain bundles of cast and common steel from the plaintiff, and there was no doubt that he accepted the conlmon steel, but he refused to pay for the cast. Parke, B., said it must be taken to have been one con- tract, and therefore there was an acceptance to satisfy the statute. In Scott V. The Eastern Counties Ry. Co. (z), in 1843, the defendants ordered of the plaintiff several lamps of different constructions, and among them a triangular lamp, which was the one in question: they were all delivered and paid for except the triangular one, which took a long time to make, and when made the defendants refused to accept it. The *Court held that it was one contract, and that [*23] the acceptance of some of the lamps took the case out of the statute. In Bigg v. Whisking (a), in 1853, the defendant accompanied the plaintiff to several places a few miles apart, and bought timber at each ; the plaintiff then signed a memorandum of what had taken place. The defendant, after accepting some of the timber, refused to accept the residue. But the Court was of opinion it was one contract, and that there had been a part acceptance, following Elliott V. Thomas (b). In Beaumont v. Brengeri (c), in 1847, where the defendant agreed to purchase a carriage and had some alterations made in it, and had it placed in a back shop, and subsequently drove out in it, paying the hire of the horse and man : held that there was sufficient evi- dence of acceptance. In Saunders v. Topp (d), in 1849, the defendant went to the plaintiff's farm and there selected forty-five couple of sheep out of a flock and .directed that they should be sent to Wimborne, where he allowed them to remain two days and then sent his man for them. After seeing them he appears to have approved of them, but on the day following their arrival he returned them on the ground that they were not the ones he had bought. He had not been to Wimborne to look at them, as he was bound to do if he in- tended to object to them, and the Court held that there was evi dence of acceptance, (e). But the mere fact that the purchaser, in examining the goods sent on approval, has done more to the goods than was necessary to in- form himself of their quulity, is not conclusive evidence of accept- ance, but is some evidence : as in Curtis v. Pugh ( f) in 1847, where he unpacked the goods more completely than was necessary. (y) Elliott V. Thomas, 3 M. & W. 170. 2) Scntt v. The E. C. By. Co., 12 M. & W. 33 ; 13 L. J. Ex. 14. (a) Bigg v. Whisking, 14 C. B. 195. ^6) Elliott V. Thomas, 3 M. & W. 170. (f) Beaumont v. Brengeri, 5 C. B. 301. '(d) Saunders v. Topp', 4 Ex. 390.; 18 L. J. Ex. 374. (e) See also Bushel v. Wheeler, in 1844, 15 Q. B. 442: (/) CuHis v. Pugh, 10 Q. B. Ill ; 16 L. J. Q. B. 199.. .2 CON. OP SALE. (1889) 18 THE SEVENTEENTH SECTION ACCEPTANCE. [Pt. I. In Cusack v. Robinson (g), in 1861, the defendant saw certain [*24] *firkins of butter lying in the plaintiff's cellar at Liverpool. He agreed to buy them and gave instructions to the plaintiff as to sending them to Penning's Wharf in London, vs^here they were eventually delivered. There vras ample evidence of receipt, but the defendant's case was that the acceptance should follow, or be contemporaneous with the receipt. The Court held that it might be after it, and upheld the verdict for the plaintiff. In Taylor v. Wakefield (h), in 1856, the plaintiff had entered into possession, as tenant of the defendant, of a certain mill and machinery. There was a verbal agreement that upon the expiration of the tenancy the plaintiff might take the machinery at a price. When the plaintiff tendered the money the defendant repudiated the contract. The Court held that there was no evidence of accept- ance before the contract was revoked. Erie, J, said, " If the pur- " chaser takes to the goods as such, and changes the character in " which he holds them, it is an acceptance as against him * * " and it may be, that such an act, if done by the purchaser in fur- " therance of the contract before it is revoked, woiild bind the con- " tract as against the vendor also." And in Smith v. Hudson (/), in 1865, where, on the insolvency of the piu'ohaser, the vendor, who had delivered goods at a railway station, ordered the railway company not to deliver them ; and at that time the purchaser, who had a right to reject them if they were not up to sample, had not elected to accept them, but did so after the countermand ; the Court held that there could be no acceptance without the consent of the vendor. And if the vendee accepts the goods, but says at the time that he accepts them on other terms than those on which the vendor is will iag to deliver them, that is a sufficient acceptance (A'). Since the first edition of this work was published a good [*25] ^'many cases have been decided on this subject, some of which are authorities on both points, viz., whether there was a receipt, and also whether there was an acceptance, and these will be found in the following section.] Section II. What constitutes an actual receipt. The cases, as has been already observed, are not quite so easily reconciled upon the question of what constitutes an actual receipt. (q) Ciisack V. Hohin-'Oii, 1 B. & S. 299 ; :;0 L. J. Q. 261. (A) Taylor v. Vnkrfield, 6 E. & B. 7(ir> ; 2 Jur. N, S. 108G. (i) Smith V. Hudson, ;U L. J. (^ B. 145 ; 6 B. & S, 431. (fc) lomkinson v. Siraifflit, in 1«5C, 25 L. J. C. P. 85 ; 17 C. B. 098. (1S90) Ch. J/.] THE SEVENTEENTH SECTION — ACTUAL RECEIPT. 19 There can be no question, that an actual removal of the goods by the purchaser is an actual receipt by him; and when the goods are in the hands of a third party, it is pretty clear that as soon as the vendor, the purchaser, and the bailee agree together that the bailee shall cease to hold the goods for the vendor and shall hold them for the purchaser, that is an actual receipt by the purchaser, though the goods themselves remain untouched. They were in the pos- session of an agent for the vendor and so in contemplation of law in that of the vendor himself; and they become in the possession of an agent for the purchaser, and so in that of the purchaser him- self; and it can make no difference, whether this is by a change in the person of the holder of the goods or merely in his character. So far the question of whether there has been a receipt of part of the goods by the purchaser or not is identically the same as whether the vendor has so parted with possession as to put an end to his lien as to that part of the goods. Thus, in Bentall v. Burn {I), in 1824, the King's Bench decided that the acceptance and receipt of a delivery order not lodged with the warehouseman did not bind the bargain: till the warehouse- keepers assented to hold the property as agents of the vendee they held it as agents of the vendor, and whilst they did so there could be no actual acceptance (receipt?) of the goods. [It has already (m) been pointed out that a carrier, although not' an agent to accept, is an agent to receive.] But when the goods are in the custody of the vendor him- [*26] self or his immediate servants and not of a middleman, there is a difficulty. It will be shown in its proper place {post, page 335), that when the purchaser or his assigns and the vendor come to an agreement that the vendor shall cease to hold the goods as vendor and shall hold them as an agent of the owner of the goods, his rights as vendor are gone; and though the cases now show th^t such an agreement between the vendor and the original purchaser himself must be proved by stronger evidence than one between him and a subvendee, it does not seem disputed that such an agreement may be made. At one time, the weight of authority was, that such an agreement was to be readily presumed; now the weight of au- thority is, that such an agreement must be very distinctly proved, and that unless the vendor's lien on some part of the goods be gone there cannot be an actual receipt. In Chaplin v. Rogers (n), in 1800, the plaintiff, by a verbal agreement, sold to the defendant for more than lOZ., a stack of hay, which he represented to be good. The hay remained in the plain- tiff's stack-yard. The defendant seems to have expressed an opin- ion that the hay was bad, but some time after, one Loft having agreed for the purchase of part of the hay from him at an advanced (I) Bentall v. Burn, 3 B. & C. 42J. (m) Ante, pp. 17, 22. (n) Chaplin v. Rogers, 1 East, 195, n. (1891) 20 THE SEVENTEENTH SECTION— -ACTUAL RECEIPT. [Pt. I. price, the defendant told him to go and see if it was good. Loft not only thought it good, but took away part without the knowledge or assent of the defendant. The part resold to Loft seems to have been for less than lOZ., in which case, the bargain between him and the defendant may have been binding, so that the defendant could not have revoked the authority given to Loft by it, but the case does not seem to have turned upon that. It was left to the jury to say, if there had an acceptance, and they having found there was, the King's Bench would not disturb their verdict. The expressions used by Lord Kenyon in delivering judgment, show that he thought there might be an acceptance and actual receipt without a removal of the goods; and that the conduct of the defendant, in bargain- [*27] ing about the re-sale, *was an admission that the contract was good; but he winds up by saying, "as upon the whole justice "has been done, the verdict ought to stand;" which almost means that the verdict was contrary to evidence. This case, therefore, does not decide much. In Anderson v. Scott (o), in 1806, at Nisi Prius, the action was by the purchaser against the vendor for not delivering wine, ac- cording to a verbal agreement for the sale of it for a price exceed- ing IQl. The spills had been cut in the presence of both parties, and the purchaser's initials were marked on the casks, which re- mained in the vendor's cellars. It was objected, that the bargain was void by the Statute of Frauds, but Lord Ellenborough held that the marking of the casks in the presence of all parties amount- ed to a delivery, and that though there had been an incipient de- livery sufficient to take the case out of the Statute of Frauds, yet that delivery not having been perfected, the plaintiff had a right of action to recover damages for the non-completion of the contract. In Hodgson v. Le Bret (p), in 1808, the same Judge ruled that the purchaser having written her name on some goods to de- note that she had purchased them, though they remained in the vendor's shop, took the case out of the statute. Parke, J., has ob- served, "that in the older cases the Court did not avert to the "words of the statute (q)." Certainly, in Anderson v. Scott (o). Lord Ellenborough, if the words of the statute were present to his mind, must have thought that there might be an actual receipt without any delivery, which is not the popular meaning of the words. It appears from Hurry v. 3f angles (r), that Lord Ellen- borough considered the vendor's rights gone under circumstances but little stronger than those existing in Hodgson v. Le Bret (p), and [*28] Anderson v. Scott (o). He seems to have thought that *the circumstance of the purchaser exercising acts of ownership with the assent of the vendor, proved a complete agreement between them to 'o) Anderson v. Scott, 1 Camp. 235, n. p) Hodgson v. Le Bret 1 Camp. 233. q) 9 B. & C. 577. Hurry v. Mangles, 1 Camp. 452. (1892) Ch. II.] THE SEVENTEENTH SECTION — ACTUAL RECEIPT. 21 consider the possession of the vendor as thenceforward that of a mere agent of the purchaser. In Elmore v. Stone (s), in 1808, the Common Pleas acted upon this principle. In that case the defendant, the purchaser of horses under a verbal agreement from the plaintiff, a livery stable keeper, had sent him "word that he would have the horses, but that as he had neither servant nor stables, the plaintiff must keep them at liv- ery for him. The plaintiff assented, and moved the horses into an- other stable (which, however, seems material only as an indication of assent). The Common Pleas, after taking time to consider, held that the bargain was bound. Mansfield, C. J., in delivering the opinion of the Court, said, "After the defendant had said that the "horses must stand at livery, and the plaintiff had accepted the "order, it made no difference whether they stood at livery in the "vendor's stable, or whether they had been taken away and put in " some other stable. The plaintiff possessed them from that time "not as owner (vendor?) of the horses, but as any other livery sta- "ble keeper might have them to keep. Under many events, it "might appear hard if the plaintiff should not continue to have a "lien upon the horses which were in his own possession, so long as " the price rem^ained unpaid, but it was for him to consider that be- " fore he made his agreement. After he had assented to keep the "horses at livery, they would on the decease of the defendant have "become general assets; and so if he had become bankrupt, they "would have gone to his assignees. The plaintiff could not have "retained them, though he had not received the price." In Blenkinsop v. Clayton (t), in 1817, after a verbal sale of a horse [standing in a stable during a fair to which it had been sent for sale], the purchaser offered to resell it to a third party, but af- terwards refused to go on with the bargain: *the vendor [*29] brought an action for the price, and on proof of the facts above- stated had a verdict subject to leave to move to enter a nonsuit, on the ground that there was nothing to satisfy the statute. The Court of Common Pleas thought that thero might be some evidence of a delivery, and therefore granted a new trial, not a nonsuit. In all these cases there seems to have been ample evidence of an acceptance of the goods, but scanty evidence of any actual receipt, if by that is to be understood a taking of possession; indeed, in Blenkinsop v. Clayton, (t), as reported, there seems to have been none. After the decision of the last case, the current of authority set the other way and [it became necessary to prove distinctly that the vendor had agreed to hold the goods as the bailee of the pur- chaser]. In Howe v. Palme?- (u), in 1820, there was a verbal sale of twelve (s) Elmore v. Stone, 1 Taunt. 458. U) Blenkinsop v. Olaifton, 7 Taunt. 597. («) Sowe Y. Palmer, 3 B. & A. 321. (1893) 22 THE SEVENTEENTH SECTION — ACTUAL RECEIPT. [Pt. I. bushels of tares at 11. per bushel, the purchaser to send for them. The purchaser said he had seen the tares, and had no immediate use for them, he therefore requested that they might remain at the vendor's .till seed time, to which the vendor assented. The vendor then went home, measured out twelve bushels, and set them aside for the purchaser. The King's Bench held that these facts did not amount to an acceptance and receipt. The case was distinguished by the Court from Elmore v. Stone (x), but Bayley, J., expressed a doubt if that case was well decided. In Tempest v. Fitzgerald (y), in the same year, the facts were that a horse was sold by parol for 45Z. ready money; after the sale, the purchaser mounted him and tried him, and made some changes in his harness; he then asked the vendor to keep him another week, the vendor said he would to oblige him; before the week expired the horse died, and the question was who should bear the loss ? The King's Bench decided ithat these acts could not amount to an acceptauce and receipt, unless the purchaser had a right under the [*30] bargain to *take away the horse. He could not take away the horse unless he paid the price, or the vendor waived his right of lien, which the facts did not show. In Carter v. Touissaint (z), in 1822, the facts approached very nearly indeed to those in Elmore v. Stone (.r). The defendant pur- chased by parol, from the plaintiffs, a horse for 30Z. ; the horse was, by the defendant's consent and approval, fired, and the plaintiffs agreed to keep him for twenty days without charge; at the end of the twenty days the plaintiffs sent the horse to grass at the defend- ant's request, but entered it in their own name, as the defendant wished to conceal his having bought it. The King's Bench held that the plaintiffs must be taken to have kept possession in their character of vendors until something showed an abandonment of their lien, and that so long as there was nothing to divest them of their possession in the character of vendors, there could be no re- ceipt by the purchaser within the Statute of Frauds. The Court made some attempt to distinguish the case from Elmore v. Stone {x), on the ground that in that case there was a change of stables, but that fact the Common Pleas had expressly declared to be im- material. The two cases are agreed in this, that there could not be a receipt till the vendor's lien was divested, but they differ as to what is sufficient to divest the lien. [Boulter v. Arnott (a), in 1833, which really turned on the form of pleading, is instructive as showing the difference between "ac- ceptance" under the Statute of Frauds and "receipt." The action was assumpsit for goods sold and delivered, and the facts were that (.r) Elmore v. Stoiir, 1 Taunt. 4.5'<, avk; p. 28. (y) Tempest v. Fitzgerald, ?, B. & A. G80. (z) Carter v. Touissaint, 5 B. & A. 855. (a) Boulter v. ArnoU, 1 Cr. & Mee. 333. (1894) Ch. //.] THE SEVENTEENTH SECTION — ACTUAL EECEIPT. 23 the defendant went into the plaintiff's shop and purchased some cigars, which were packed in boxes supplied by the defendant, and left in the plaintiff's shop to be called for. The cigars were to be paid for before being removed. On the motion to set aside the nonsuit, Bayley, B., said,'' *in [*31] refusing it, " From first to last these goods remained in the posses- " sion of the plaintiff. It is an entirely different question, whether "doing an act like marking or packing for the vendee in his presence "may not operate as an acceptance by him under the Statute of "Frauds. The question here is whether there was a delivery to the "vendee. I do not agree that the boxes are to be considered as hav- "ing been the warehouse of the defendant." In Holmes v. Hoskins (b), in 1854, the defendant selected some cattle in the plaintiff's field, and was going to pay for them, but found he had forgotten his cheque book. The plaintiff and de- fendant then arranged that the cattle should remain for some days in the plaintiff's field, and that the defendant should send his men • to feed them, which was done. The Court held that there was no evidence of receipt. In Castle v. Sivorder (c), in 1861, the plaintiffs were wine mer- chants, and also acted as warehousemen, having a bonded warehouse where they warehoused goods of others and allowed the goods they sold to remain, charging a rent to the purchaser. They sold cer- tain rum to the defendant at six months' credit, and it was agreed that the rum should -lie in the warehouse for six months free of charge. They sent the defendant an invoice, which stated in effect that the rum might remain six months without charge, and entered the defendant's name in their warehouse-book as purchaser. After the expiration of the .credit the defendant asked the plaintiffs to take back the rum, and they declined. The plaintiff was nonsuited by Bramwell, B., and Martin, Channell, and Bramwell sustained the nonsuit on the motion, but on appeal to the Exchequer Cham- ber, Cockburn, C. J., Crompton, Williams, Byles, and Keating, J J., held that there was some evidence of an acceptance and receipt, and ordered a verdict to be entered for the plaintiff. A contract with a person known to be a warehouseman to warehouse goods free of charge for six months is certainly some evidence against *both parties that the warehouseman holds as such and not [*32] as vendor, and that coupled with the request to take back the rum appears to be clearly some evidence of an actual receipt. It is worth noting also that the sale being on credit the vendor's lien was gone at one time. In Marvin v. Wallis (d), in 1856, the vendor remained.in posses- sion of a horse after the sale. The jury found that the purchaser (J) Holmes V. Hoskins, 9 Ex. 753. (c) Castle V. Swordcr, 5H. & N. 281; 6 H. & N. 828; 30 L. J. Ex. 310. (d) Marvin v. WalUs, 6 E. & B. 726; 25 L. J. Q. B. 369. (1895) 24 THE SEVENTEENTH SECTION ACTUAL RECEIPT. [Pt. I. had lent it to the vendor to keep, and the vendor obtained a verdict which the Court refused to set aside.] In Baldey v. Parker (e), in 1823, the defendant bargained in the plaintiff's shop for goods above the value of lOZ.; some of the articles were measured in his presence, some he marked in pencil, some he assisted in cutting from a larger piece. The King's Bench decided that there was no evidence that the bargain was bound. The ground of their decision is concisely stated by Holroyd, J. "Upon a sale of specific goods for a specific price, by parting with "the possession, the seller parts with his lien. The statute con- " templates such a parting with the possession, and therefore as "long aa the seller preserves his control over the goods so as to re- "tain his lien, he prevents the vendee from accepting and receiving "them as his own within the meaning of the statute." This case very closely resembles Anderson v. Scott (/) and Hodgson v. Le Bret (g) in the facts. It seems that the difference between the de- cisions is rather on the practical application of the law than its nature ; Lord Ellenborough .seems to have thought that the vendors had abandoned their lien under circumstances which in Baldey v. Parker (e) were held not to be any evidence of such abandonment. InSfnitliY. Surman (/i), in 1829, the King's Bench, of which Littledale, J., and Parke, J., had become members, acted on the principal laid down in Baldey v. Parker (e). [*33] "^-In Maberley v. Shepherd (i), in 1833, the plaintiff under a verbal contract, was building a wagon for the defendant ; the de- fendant furnished a tilt and ironwork, which he fixed on the wagon whilst it was building. The plaintiff brought an action for goods sold and delivered, and was nonsuited. The Court of Common Pleas refused to set aside the nonsuit. It is difficult to see how any question on the Statute of Frauds could arise, as according to the report there was not the shadow of proof that the goods were de- livered, and there was no count for goods bargained and sold, or for not accepting goods. But the report probably is in some respect inaccurate, for the Court did consider the question of whether the bargain was bound, and they decided it was not. " The plaintiff," said Tindal, C. J., "retained his lien upon the wagon, and there " was nothing in the facts that denoted any intention either to de- " liver or accept. The circumstances of the case certainly leave it " open to doubt whether the statute has been complied with or not, " but we think it is the duty of the plaintiff to free the case from all "doubt, and where any remains, that it is safer to adhere to the " plain intelligible words of the statute, which point as clearly as (e) Bnldey v. Parker, 2 B. & C. 37. (/) Anderson v. Scott, 1 Camp. 235, n. {g) Bodgson v. Le Bret, 1 Camij. 233. (A) Smith V. Surman, 9 B. & C. 5G1. (i) Maberley v. Shepherd, 10 Bing. 99. (1896) Oh. II.] THE SEVENTEENTH SECTION — ACTUAL RECEIPT. 25 " words can to an actual delivery and an actual receiving of part or " the whole of the goods sold." In Bill V. Bament (k), in 1841, the defendant having bargained for a quantity, of brushes from the plaintiff, saw them at the ware- house of the plaintiff's agent, Hervey (by name), and directed a boy to alter the mark on them, and to send them to St. Catherine's Wharf. There was a signattu-e obtained by a trick after action commenced to a receipt for the goods. The Exchequer set aside a verdict which the plaintiff had obtained for the goods sold and de- livered, and entered a nonsuit. Parke, B., said, "To take the case " out of the 17th section there must be both delivery and accept- " ance, and the question is, whether they have been proved in the " present case. I think they have not ; I agree that *there [*34:] " was evidence for the jury of acceptance, or rather of intended ac- " ceptanee. The direction to mark the^goods was evidence to go to " the jury quo animo the defendant took possession of them, so also " the receipt " (i. e. the receipt in writing, signed by the defendant) "was some evidence of an acceptance; but there must also bra a " delivery, and to constitute that, the possession must have been " parted with by the owner, so as to deprive him of the right of "lien; Harvey might have agreed to hold the goods as the ware- " houseman of the defendant, so as to deprive himself of the right " to refuse to deliver them without payment of the price, but of that "there was no proof." In Edan v. Dudfleld (T), in 1841, the case was reversed: the ven- dor sold the goods to his factor, who had the goods in his possession at the time of sale. The Queen's Bench held, that if the jury thought he had taken to them as purchaser, it was sufficient to satisfy the statute. [This case was approved in Lillywhite v. Devereux (m), in 1846, where the question was whether the defendant had taken to the goods as purchaser or hirer. In Marshall v. Green (w), in 1875, the sale was of standing tim- ber, and the vendee had agreed to resell the tops and stumps, and had cut down some of the trees. Held that there was ample evidence of acceptance and receipt.] There are some expressions used in the judgment of the Queen's Bench in Dodsley v. Varley (o), in 1840, which are apparently at variance with the principle of the other modern cases, but the ex- pressions there used when construed with reference to the point be- fore the Court do not necessarily show that the Queen's Bench took a different view of the law from that taken in the other cases. It seems better to insert the report at length (so far as it bears on (fc) Bill V. Bament, 9 M. & W. 37. m Edan v. Dudfleld, 1 Q. B. 306 ; 5 .lur. 317. (m) Lillywhite v. Devereiix, 15 M. & W. 285. (») Marshall v. Green, 1 C. P. D. 35 ; 45 L. J. C. P. 153. (o) Sodsley v. Varley, 12 A. & E. 632. (1897) 26 THE seventeen™ section ACTUAL RECEIPT. [Ft. I. this point), rather than run the risk of omitting something material [*35] in abridging *it. The plaintiif had obtained a verdict on a count for goods bargained and sold, and an application was made to the Court to set aside this verdict. Lord Denman delivered the judgment of the Court : " It was contended," said he, " that there " was no contract completed by delivery and acceptance, so as to " satisfy the Statute of Frauds. The facts were, that the wool was " bought while at the plaintifl's ; the price was agreed on, but it " would have to be weighed ; it was then removed to the' warehouse " of a third person, where Bamford collected the wools which he " purchased for the defendant from various persons, and to which "place the defendant sent sheeting for the packing up of such " wools. There it was weighed, together with the other wools, and " packed, but it was not paid for ; it was the usual course for the " wool to remain at this place till paid for. No wish was expressed " to take the opinion of the jury on the fact of Bamford's agency, "the defendant's counsel acquiescing in that of the Judge, provided " the circumstances would amount to it in point of law. We agree " that they might ; therefore all these must be takpn to be the acts " of the defendant. Then, he has removed the plaintiff's wool to " a place of deposit for his own wools ; he has weighed it with his " other purchases of wools ; he has packed it ia his own sheeting ; " everything is complete but the payment of the price. It was " argued, that because by the course of dealing he was not to " remove the wool to a distance before payment of the price, the " property had not passed to him, or that the plaintiff retained such " a lien upon it as was inconsistent with the notion of an actual " delivery. We think that, upon this evidence, the place to which " the wools were removed must be considered as the defendant's " warehouse, and that he was in actual possession of it there as soon " as it was weighed and packed ; that it was thenceforward at his " risk, and if burnt must have been paid for by him. Consistently " with this, however, the plaintiff had, not what is commonly called " a lien determinable on the loss of possession, but a special interest " sometimes but improperly called a lien growing out of his original [*36] " *ownership, independent of the actual possession, and con- " sistent with the property beingin the defendant. This he retained " in respect of the term agreed on, that the goods should not be " removed to their ultimate place of destination before payment ; " but this lien is consistent, as we have stated, with the possession " having passed to the buyer : ?o that there may have been a " delivery to and actual receipt by -him. This we think is the " proper conclusion upon the present evidence, and there will be " no rule." It seems perfectly clear, that if Bamford was the defendant's agent, there was ample evidence of such an appropriation of the specific wools as would convert the agreement to sell into a bargain and sale, and (if the Statute of Frauds were out of the way) (1898) Ch. 11.^ THE SEVENTEENTH SECTION — ACTUAL KECEIPT. 27 transfer the property and consequent risk to the defendant. The only question, therefore, in the case was, whether the facts shewed such a receipt of the goods as is contemplated by the Statute of Frauds. The argument for the defendant seems to have been that the agreement by which the purchaser was not to remove the wool till paid for, shewed that the acta done to the wool could not be done with the intention to give him possession. The Court, how- ever, seemed to have thought that the facts shewed an unequivocal delivery of the actual possession, and consequently that the agree- ment could only operate by giving such rights to the vendor as were consistent with an actual delivery of possession to the pur- chaser. In Howes v. Ball (p), it was decided that an agreement of this kind did not confer on the vendor any right either of prop- erty or possession in the goods actually delivered, but at most operated as a personal license from the purchaser. Probably the Queen's Bench, in Dodsley v. Varley (q), would have come to the same decision if it had been material to determine what rights Dodsley had in the wool, but that being perfectly immaterial to the question then before the Court, they did not consider that point. The *judgment, therefore, in Dodsley v. Varley (q), cannot [*37] be taken to shew that the Queen's Bench thought that there might be an actual receipt of goods by the purchaser within the meaning of the Statute of Frauds without such a taking of pospession by him as would completely determine the vendor's rights in the part of the goods so received, and consequently the case does not affect the authority of Baldey v. Parker (r), and the other cases before quoted. It may therefore be considered as settled, that the construction of the statute is that so concisely and clearly stated by Holroyd, J., in Baldey v. Parker (r), and repeated in almost the same terms by Parke, B. in Bill v. Bament (s), namely, that the facts which prove that part of the goods have been delivered and taken into the pur- chaser's control, so as to determine the vendor's possession of that part, prove that he has actually received them, and that nothing short of "such a delivery and taking can amount to an actual receipt by the purchaser within the meaning of the Statute of Frauds. [In Farina v. Home (t), in 1846, where the vendor sent a case of eau de Cologne to his agent in London, who warehoused it, ob- tained a delivery-warrant and indorsed it to the purchaser, who kept it in his possession for ten months, the Court held that al- though there was sufficient evidence of an acceptance there was none of the receipt. (p) Howes v. Ball, 7 B. & C. 484. (q) Dodsley v. Varley, 12 A. & E. 632. \r) Baldey v. Parlcer, 2 B. & C. 37, ante, p. 32. Is) Bill V. Bament, 9 M. & W. 37. ,(i) Farina v. Home, 16 M. & W. 119; 16 L. J. Ex. 73. (1899) 28 THE SEVENTEENTU SECTION ACTUAL RECEIPT. [Pt. I. In Currie v. A^iderson (u), in 1860, the defendant sent to Han- son & Co., in Constantinople, the bill of lading for goods which he had ordered from the plaintiffs but not examined, and which the plaintiffs had shipped at his request. The bill of lading was to be handed over by Hanson & Co. to a person named by the defendant when he should call for it. That person was unable to call for it for some months, and then the goods were not forthcoming. The Court held there was ample evidence of acceptance and receipt. [*38] *In the following case of Meredith v. Meigh (x), in 1853, there seems to have been no evidence either of acceptance or re- ceipt, although there had been a delivery to a carrier. China clay°was to be sent, according to a verbal agreement, by the vendor ia Cornwall, by sea to Liverpool, and thence by a carrier to the vendee in Staffordshire. The vendor sent the bill of lading to the carrier to enable him to obtain delivery at Liverpool. The cargo was lost at sea, and the vendee, who was the defendant, ob- jected that there was no evidence of an acceptance and receipt. The defendant obtained a verdioj;, which the Court refused to set aside. Erie, J., said, "Placing goods ordered on board ship is good "evidence of a delivery in support of a count for goods sold and "delivered; but that is not the same as the question under the 17th "section of the Statute of Frauds. I have no doubt that the bill "of lading, which is the symbol of the property, may be so received " and dealt with as to be equivalent to an actual receipt of the "property itself." But that was not the case here.] («) Currie v. Anderson, 2 E. & E. 595; 29 L. J. Q. B. 87. (x) Meredith v. Neigh, 2 E. & B. 304; 22 L. J. Q. B. 401. (1900) (29) *CHAPTEE III. [*39] OF THE SECOND EXCEPTION. The second exception, viz., "Except the buyer shall give some- " thing in earnest to bind the bargain or in part payment," need not detain us long. The words have in practice been found so in- telligible that there are very few cases in which any decision on the meaning of this clause is reported. In Blenkinsop v. Clayton (y), in 1817, the buyer drew a shilling across the vendor's hand, and put it in his own pocket to strike the bargain, and the Court of Common Pleas thought that he had not given anything in earnest. It need only be observed, that there cannot be any payment unless it is accepted as well as given as payment. [In Walker v. Nussey (z), in 1847, on a sale of goods, the buyer and seller agreed that a debt which the seller owed to the buyer should be set off in part payment. The jury found a verdict for the defendant, and on the motion a new trial was refused, Parke, B., saying, " no evidence was given of the actual payment or dis- " charge of the debt due from the plaintiff (the seller), so that all " rested in the agreement merely " (a).] In order to take the case out of the statute by a part payment, it is probably not essential that the part pavment should be in money (6). (y) Blenkinsop v. Clayton, 7 Taunt. 597. See also Bach v. Owen, 5 T. R. 409; Ooodall V. Skelion, 2 H. Bl. 316. (z) Walker V. Nusaey, 16 M. & "W. 3QP; 16 L. J. Ex. 120. (a) See Hooper v. Stephens, in 1835, 4 Ad. & El. 71 ; and Hughes v. Paramore, in 1855, 7 De G. M. & G. 229; 24 L. J. Ch. 681. (6) See the remarks of Erie, J. , in The Queen v. St. Michaels, in 1856, 6 E. & B. 819; 25 L. J. Q. B. 379; and HaH v. Nash, 3 Cr. Mee. & R. 337. (1901) 30 THE SEVENTEENTH SECTION— THE MEMORANDUil. [Pt. I. [*40] *CHAPTER IV. OF THE THIRD EXCEPTION. XV/mt. is a sufficieni memorandum, p. *44. What is a sufficient signalure, p. *66. Mlio is an agent authorized to sign, p. '■''il The third exception, " Except 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 "authorized," is probably that which would be most apt to mislead a person not acquainted with the decisions. It is to be observed that the statute does not interfere with the rules of evidence ap- plicable to written testimony (c). A signed note or memorandum of the bargain is one way of making the contract good, but the legal effect of such a note or memorandum upon the proof of the con- tract is left entirely as it was at common law. It is perfectly com- petent for persons who are entering into any agreement either to have the whole terms of it reduced to writing, or to make their agreement v/ith reference to some previously existing writing, and if they do so, whether the writing be signed or not the parties must be bound by its contents; they are not allowed by the law to show that there was a mistake, and that they intended to agree to some- thing different from what is stated in the writing, for the very object of agreeing to a writing is to prevent disputes about what they intended; this rule of law is very inflexible: And if the parties ['"41] have *expressed their assent to the reduction of the whole contract to writing, they are in general prohibited from adding any- thing to the terms expressed in the writing: this is to be under- stood of terms that require an agreement between the parties, for where the terms reduced to writing are such that a legal duty would result, that legal duty is added to the terms of the contract. To this last rule, however, there is a wide class of exceptions, arising from local customs and the usage of particular trades. [Parke, B., said in Button v. Wnrren (d), in 1836 : "It has " long been settled, that in commercial transactions extrinsic evi- " dence of custom and usage is admissible to annex incidents to " written contracts, inmatters with respect to which they are silent (c] It ivonld be too much of a digression to attempt to state Avith precision the la^'s of evidence relating to written contracts, but so much pf the construc- tion 111' this section depends on a ImowledKe of that law, that it seems proper to try to stale the leading principles of it, though without attempting to give the qualiiications necessary to render such a statement accurate and without at- tempting to collect the authorities. {d) Ilutton V. Warren, 1 JI. & W. 475. (1902) Ch. IY\ TUE SEVENTEENTH SECTION — THE MEMORANDUM. 31 " . . . . And this has been done upon the principle of presump- " tion that, in such transactions, the parties did not mean to express " in writing the whole of the contract by which they intended to " be bound, but a contract with reference to these known usages."] There is no rule of common law to prohibit the parties from making an agreement part only of which is to be proved by writing. If the parties say in substance, " we agree to the terms contained " in such a writing, with the exceptions and additions which at such a time were agreed upon by word of mouth ;" there is no legal ob- jection to this. Parol evidence may be used to show what the ex- ceptions and additions are, the writing is conclusive as to the rest. When either the part or the whole of an agreement is thus re- duced to writing, the agueement cannot (in general) be proved by any other means than by showing what the contents of the writing are, so that independently of any statue the writing is a necessary part of his case who seeks to prove the agreement. But if the terms are put in writing, but not as a matter of compact between the parties to settle what the terms are, the case is different. If the writing is made by a bystander, without any authority from the parties, the writing is not evidence at all, though it may be used to *refresh the memory of him who made it. If one of the [*42] parties only authorized the making of the memorandum, or after- wards admitted its accuracy, it is evidence against him as an ad- mission, but hot in law either indispensably necessary for the proof of the contract, or conclusively binding upon him against whom it is evidence. . Now the Statute of Frauds leaves this law quite as it was before. If the contract, or part of it, is in writing, the writing must be proved, though there has been a part payment or a part acceptance and receipt; and if the writing is a part of the agreement it must be proved, though it would not satisfy the third exception, either because it is not signed, or for any other reason. And the writing, when proved, has just as much effect in settling conclusively what the terms of the bargain are, as it would have had if the Statute of Frauds had never been passed. The proof of the writing is as in- dispensable and as conclusive in a contract for the sale of goods for more than lOZ., as in one for the sale of goods for less than lOZ., and not more so. And when a party has signed a memorandum of the terms of the contract, which is not more than an admission of the terms of the contract, the other party is not forced to use this evidence, if he can in any other way satisfy the exceptions in the statute, and if he does use it the memorandum does not bind the other party more than a similar admission would have done if the price had been less than lOZ. It is strong evidence of what the agreement is, but it is not the agreement itself. It may make the contract good, because it is in writing and signed, and for the same reason it is capable of clear and undeniable proof, but its effect in (1903) 32 THE SEVENTEENTH SECTION — THE MEMORANDUM. [Ft. I. settling the terms of the contract is no greater than that of a simi- lar admission made by word of mouth. [In Ford v. Yates (e), in 1841, there was a memorandum which the Court treated (erroneously) as a sufficient memorandum of the contract to take the case out of the statute. In it the price was mentioned, but nothing was said about the time of payment. The r*43] Court was of opinion that the *legal efPect of the written con- tract was a sale for ready money, and, therefore, that evidencOkto show that it was a sale on credit was inadmissible. But in Lockett v. Nicklin (/), in 1848, the plaintiff seems to have relied on the acceptance and receipt to take the case out of the statute, and he then put in a letter from the defendant to prove some of the terms of the contract, and gave parol evidence on a point on which the letter was silent; and the Court held that such evidence was admissible (g). In Moore v. Campbell (h), in 1854, the plaintiff employed Wilks, a broker, to purchase hemp. "Wilks agreed with the defendant to buy it from him, and sent him a note. The defendant drew up and signed another note differing in several respects from Wilks'. The hemp when landed was sold by the defendant in consequence of a difference between him and the plaintiff as to the quantity, and this action was brought on the note drawn up by the defendant, for dam- ages for not delivering. It was argued for the defendant that, as the bought and sold notes differed, there was no contract. At the trial the judge ordered a verdict for the plaintiff, subject to the opinion of the Court on this point. On the motion Parke, B., de- livering the judgment of the Court granting a new trial, said that Wilks had acted not as a broker, but solely as the agent of the plaintiff", and that it was for a jury to say whether both parties in- tended the defendant's note to be the contract between them, and if so, it would be a sufficient memorandum. But if the defendant never intended to be bound unless the plaintiff was bound also, then there was no contract. In Gibson v. Holland (i), in 1865, the defendant authorized his agent Kookes to buy a horse from the plaintiffs. Eookes bought it, and then followed a correspondence between him and the de- fendant, in which the terms of the bargain appeared. The defend- [*44] ant relied on the objection that the *memorandum passed, not between the contracting parties, but between one of those parties and his own agent. But the Court held that the memoran- dum was sufficient on the ground that the statute did not make it necessary that the memorandum should be addressed to the person who is to take advantage of it.] (e) Ford x. Ycde!<, 2 M. & Gr. ,549; 2 Scott, N. R. 645. (/) Lockett V. Nicklin, 2 Ex. 93; 19 L. J. Ex. 403. [g) See also Eden v. Blake, In 1845, 13 M. & W. 614; 14 L. J. Ex. 194. (A) Moore v. Campbell, 10 Ex. 323; 26 L. J. Ex. 310. [i) Gibson v. Holland, L. E. 1 C. P. 1; 33 L. J. C. P. 5. (1904) Ch. /7.] THE SEVENTEENTH SECTION— THE MEMORANDUM. 33 Parke, B., in Bill v. Bament (fc), said he was clearly of opinion that the memorandum must be in existence at the time when the action is brought. In that case it had been signei three days af terwards. To return to the statute. There are three subjects of inquiry -^ Istly, What is " a note or memorandum in writing of the bargain?" Hadlv, What is meant by being " signed by the parties to be charged "by "such contract?" 3rdly, Who are "their agents lawfully au- "thorized?" Now, as to what is a note or memorandum of the bargain, it is to be observed that by the express words of the statute it is to be in writing, and it has been held, that this means that the writing must contain in itself sufficient matter to amount to the note or memorandum, without calling in any parol testimony to supply the deficiency. If the very paper signed contains in itself the whole that is reduced to writing, the only question is, whether that is sufficient matter to constitute a memorandum of the bargain: but if there be sufficient matter to make a memorandum written on separate pieces of paper, no one of which by itself contains enough, the question arises, if the memorandum of which the contents of these several papers are evidence is a Zi in writing or not; if the contents of the signed paper themselves make reference to the others so as to show by internal evidence that the papers refer to each other, they may be all taken together as one memorandum in writing; but if it is necessary, in order to connect them, to give evidence of the intention of the parties that they should be con nected, shown by circumstances not apparent on the face of the writings, the memorandum is not all in writing, for it consists partly of the contents of the *wi-itings and partly of the ex- [*45] pression of an intention to unite them, and that expression is not in writing (l). If, indeed, the separate papers were at the time of the signature attached to each other, they then in substance formed one paper, and a subsequent separation of them cannot prevent the memorandum from having once existed. In Hinde v Whitehouse (in), in 1806, the sale was by auction, subject to certain conditions; a paper containing the conditions was read by the auctioneer and then laid on his desk; he wrote down the purchaser's name opposite the lots in his catalogue, which was headed "To be sold by auction, for particulars apply to Thomas "Hinde," but contained no internal reference to the conditions. The King's Bench held that the bargain was contained in the con- ditions, and that there was no signed memorandum of the bargain, that which there was. Lord EUenborough said, was a minute made on the catalogue of sale which was not annexed to the condi [k) Bill V. Bament, in 1841, 9 M. & W. 40. (l) This statement was approved by Williams, J., in N. S. Ry. Co. v. Peek, in 1860, E. B. & E. 1001. (m) Hinde v. Whitehouse, 7 East, 558. 3 CON. OF SALE. (1905) ;;-i THE SEVENTEENTH SECTION — THE ^rEMOKANDCM. [Ft. J. lions of sale nor had any internal reference to them by context or the like. " I am therefore of opinion," said he, " that the mere writ- " ing on the catalogue not being by any reference incorporated with "the conditions of sale, is not a memorandum of a bargain under " those conditions of sale." Precisely the same case came before the King's Bench, in 1824, in Kenu'orthy v. Schofleld (n), and was decided the same way. Hol- royd, J., there said, "It appears to me that you cannot call that a "memorandum of a bargain which does not contain the terms of it. " The argument for the plaintiff is, that the conditions being in the "room were virtually attached to the catalogue; but I think as " they were not actually attached or clearly referred to, they formed " no part of the thing signed. In the case put of the separation " of the conditions from the catalogue, during the progress of the "sale, I should say, that the signatures to the .latter made after [*46] *"t,he separation were unavailing. It occuiTed to me at first " that this might be likened to a will, consisting of several detached " sheets, when a signature of the last, the whole being on the table " at the time would be considered a signing of the whole, but "there the sheet signed is apart of the whole. Here the cata- " logue was altogether independent of the conditions." [In Boijdell v. Dnimmond (o), in 1809, the defendant had put his name into a list of subscribers to a publication, but there was nothing to connect this list with the prospectus which contained the conditions of sale; the Judges were of the opinion that there was no memorandum. The case was, however, decided on another point In Sari v. Bonrdilhin (p), in ISoG, the things bought, and the prices, were entered into the vendor's order book, and the entry was signed by the buyer. The seller's name was written on the fly- leaf at the beginning of the book. One of the articles was to be altered, and the payment was to be made by a draft, and the memorandum made no mention of this, bnt the memorandum was held sufficient. In Pcirce v. Corf (q), in 1874, there was a sale of a horse at an auction, but the memorandum of the sale was not attached to the conditions nor made any reference to them: held that section 17 was not satisfied (r).~\ These cases are strong decisipns to show that no intention on the part of the signer to unite two papers will suffice, unless the papers be physically joined, or that intention appear on the face of the papers ; but the question of what shall be a sufficieijt reference of the one paper to another, is a very difficult one. It is not possible to use language so clear and explicit that the meaning may not vary (n) Knwoiihy v. Sclwfirlil, 2 B. &C. 9-1."). (o) Boydcll V. Dnimmond, 11 East, 142. (p) Sari Y. Bourdllon, 1 C. E. N. S. 188 ; 26 L. J. C. P. 78. (q) Pcirce \. Cnrf, L. E. f) Q. B. :ilO ; 43 L. J. Q. B. .''>2. (r) See also tfishton v. Wlwtmore, in 1878, 8 Ch. D. 467 ; 47 L. J. Ch. 629; and Studda V. Waison, 28 Ch. D. 30.3. (1906) Cll. /Fi] THE SEVENTEENTH SECTION THE MEMOKANDUM. S'l according to the circumstances under whicli it was used; when, therefore, it appears on the face of a ■writing that it refers to some- *thing extraneous, there must in every case be some inquiry [*47] into external circumstances to see what it is that is referred to. The Statute of Frauds makes no alteration in this. Precisely the same evidence is admissible to shew what the writing refers to when it is a memorandum of a bargain within the statute, that would be admis- sible to explain it, if it were a memorandum of a bargain not within the statute ; but when it is ascertained to what the writing refers, the statute steps in. If the reference is to something verbal, or ulti- mately to a writing by the medium of something verbal, the com- mon law would take the whole together as shewing what the con- tract is, but as one link of the evidence is not in writing, it will not in general operate as a memorandum in ivriting to take the case out of the statute. It would therefore be necessary for a clear exposition of this part of the subject to enter into the whole question of how far external evidence is by common law admissible to aid the construction and application of writings; but that is too extensive and difficult a subject for a digression. The general rule seems to be, that all facts are admissible which tend to shew the sense the words bear with reference to the surrounding circumstances concerning which the words were used (s), but that such facts as only lend to shew that the writer intended to use words bearing a particular sense are to be rejected (t). *Tbe cases reported as to what is a sufficient reference of [*48] documents to each other to form a memorandum within the 17th section are few, and do not afford much assistance. In Saunderson v. Jackson (u), in 1800, there was a bill of parcels delivered at the time of the bargain which was in itself a sufficient lis) See 3facdonaM v. Longhoitnm, 1 E. & E. 977; 29 L. J. Q. B. 256, in 1859; where parol evidence was admitted to shew that "your" wool meant wool which the plaintiff had purchased, as well as that which he had clipped fr.)m his own sheep, and Splcer v. Cooper, 1 Q. B. 424, in 1841. "If there are pecu- "liar expi-essions used in a contract, which have, in particular places or trades, "a known meaning attached to them, it is for the jury to say what the mean- "iug of these expressions was, hut for the Cbart to decide' what the meaning of "the contract was." Per Parke, B., in Huichinson v. Bowkn; 5 M. & W. 542.] [t) See Wigram on Extrinsic Evidence. The principles of the rules of law regulating the admissibility of extrinsic evidence to aid in the construction of wills and of contracts required to be in writing seem to be the same. Cut in applying them, it seems necessary t-o bear in mind, that there is a distinction between the two classes of instruments. The will is the language of the testa- tor soliloquizing, if one may use the phrase, and the Court in construing his language may properly take into account all that he knew at the time in order to see in what sense the words were used. But the language used in a contract is the language used to nnotlier in the course of an isolated transaction, and the words must take their meaning from those things of and concerning which they are used, and those only. This does not affect the law, but it is of some con- sequeiice in the application of it, as it narrows the field of inquiry. (m) Saunderson v. Jackson, 2 B. & P. 238. (1907) .'!;; THE SEVENTEENTH SECTION — THE .MEMORANDUM. [Pt. /. memorandum, but there was some doubt whether it was signed by the defendant. The Court of Common Pleas thought it was suf- ficiently signed, but that even if it was not, the defect was supplied, by this letter addressed to the plaintiff, and signed by the defen- dant: — "Sir, we wish to know what time we shall send you a part of your order, and shall be obliged for a little time in delivery of the remainder; must request you to return our pipes. ^Ye are, &c." Lord Eldon, C. J., said, in delivering the judgment of the Court, " Although it be admitted that the letter which does not state the " terms of the agreement would not alone have been sufficient, yet, '' as the jury have connected it with something which does, and the " letter is signed by the defendants, there is then a written note or , " memorandum of the order which was originally given by the "plaintifP, signed by the defendants.'' It is a great pity that the report does not more fully state what were the facts which Lord Eldon allowed to go to the jury, as evidence to enable them to con nect the letter with the bill of parcels. In Johyison v. Dodgson (.r), in the Exchequer in 1837, there had been a written memorandum made [by the defendant, the pur- chaser, in his own book and] signed by the plaintiff's agent as fol- lows: — " Sold John Dodgson 27 pockets Playstead 1836, Sussex, at 10;!.s'. The bulk to answer the sample. 4 pockets Selme Beckleys, at'.)r).s'. ; samples and invoices to be sent per Rockingham Coach: [^^49] payment in bankers at two *months. Leeds, 19th October, 1836." There was a doubt whether this was signed by the defen dant, and the plaintiffs to meet that doubt proved the following letter from the defendant to them; — Leeds, Wednesday Evenino, I'Jth October, 1836. " Gentlemen, Please to deliver the 27 pockets Playsted and the 4 pocki t^ Selmes 1836, Sussex, to Mr. Robert Pearson or bearer to be cartfd to Stanton's Wharf: 20 pockets of Playsted to be forwarded par tirst ship and the remaining eleven pockets per the second ship and you will oblige gentlemen your most obedient John Dodg.9on." The Court were unanimously of opinion that the first paper was signed by the defendant, which disposed of the case [notwithstand- ing the fact of his keeping it was a clear indication that he never intended it as a voucher of his being bound, but only to bind the other party (?/)]; but Lord Abinger said, "If it depended on the "recognition of the contract by the letter, there might be some "doubt, though even upon that I should have thought the refer- "encetothe only contract proved in the case sufficient." Parke,. (x) Jnlinsnnx. Jicidcfsoi!, :2 Jl. & W. (jr.;!. (r/) Per Blackburn, J., in Durrcll v. Fivns. 1 II. & C. 191: 31 L. J. Ex. SJIT, Ch. /F.] THE SEVENTEENTH SECTION — THE MEMORANDUM. 37 B., said, "If the question turned on the recognition by the subse- "quent letter, I own I should have had very considerable doubt " whether it referred sufficiently to the contract. It refers to the "subject matter, but not to the specific contract" (z). In Allen v. Bennett (a), in 1810, there was a contract note defec- tive from not giving the name of the purchaser; there was also a correspondence between the parties which is not set out in the re- port. It appears, however, to have shown that there was a contract of sale of some sort between the parties concerning goods of the same sort as those mentioned in the contract note, and to have been in itself defective as a memorandum, and to have made no specific allusion to the *contract note. The Common Pleas held, [*50] that the correspondence was sufficiently connected with the note, and supplied its deficiencies. [In Buxton v. Rust, (b), in 1872, the purchaser handed to the vendor a memorandum of the terms of the bargain. The vendor did not sign it and some time afterwards wrote to the purchaser saying that he should "consider the deal off, as you have not com- " pleted your part of the contract." The purchaser then asked for a copy of the memorandum, which the vendor enclosed in a letter signed by him. Held, that these letters and enclosures were suffi- ciently connected to form a memorandum.] Jackson v. Lowe (c), Cooper v. Smith (d), Richards v. Porter{e), Smith V. Surman (/), are cases which turn upon the sufficiency or not of what was written, and not upon the circumstance of its be- ing contained in different documents. What is a sufficient memorandum. Supposing the virriting to be all on one paper, or on papers suffi- ciently connected, the question arises whether there is sufficient matter to form a note or memorandum of the bargain. It was de- cided in Wainy. Warlters (g), in 1804, that a writing could not be a memorandum of an agreement within the fourth section of the Statute of Fraiids, unless it contained the whole agreement, that is to say, the parties and the consideration and the subject matter as well as the promise. The decision was a good deal questioned at first, but it seems now well established as law. («) See also Archer v. Bayne.s, 5 Ex. 625, in 1850; 20 L. J. Ex. 54. (a) Allen v. Bennet, .3 Taunt. 169. (h) Buxton y. Bus', L. R. 7 Ex. 1, and 279; 41 L. J. Ex. 1, and 17;5. Hce also Bauman v. Jones, 3 Ch. Ap. 508; Long v. Millar, 4 C. P. D. 450; Care v. Hastings, 7 Q. B. D. 125; Bonnewell v. Jenkins, 8 Ch. D. 70. (c) Jackson v. Lowe. 1 Bing. 9. (d) Cooper v. Smilli, 15 East. 103. (e) Richards v. Porter, 6 B. & C. 437. (/) Smithy. Surman, 9 B. & C. .561. (g) Wain v. Warlters, 5 East. 10; Price v. Richardson, 15 M. & W. 539; 15 L. J. Ex. 345. (1909) oi THE SEVENTEENTH SECTION THE MEMORANDUM. [Pt. I. The words in the seventeenth section of the statute are substan- [*51] tially the same as those in the fourth, except that the *word " bargain" is used instead of the word " agreement." The two words seem to be very much alike in their meaning; indeed, so long as the property in the goods is not transferred, a contract for the sale of goods is more technically and accurately called an agree- ment than a bargain; but the difference in the words should be ob- served as it has been twice said by learned Judges, that it may make a difference in the construction of the section. It is necessary that the memorandum should disclose who the person is with whom the contract is made, as well as the person to be charged by it, otherwise it is no memorandum of the bargain. This seems to have been first decided in Champion v. Plummer (/i), in the Common Pleas in 1805. Inthat case, the plaintiff's clerk, at the time of the verbal bargain virote an entry in the following words : "Bought of W. Plummer 20 puncheons of treacle, 37/. 10s., to be delivered by 10th December." Plummer then signed it. The Com- mon Pleas held that this would not make the contract good as against Plummer. Sir J. Mansfield, C. J., said, "How can that be " said to be a memorandum of a contract which does not state who "are the contracting parties. By this note it does not at all appear "to whom the goods were sold" {i). In Allen v. Bennet (k), in 1810, the defendant's agent vprote in a book belonging to the plaintiff, Allen, the following entry: — "Or- dered of H. and G. Bennet, Liverpool, 50 barrels fine new rice, 3/., 2 months and 2 months as per sample in running numbers," and signed it on the defendant's (Bennet's) behalf. The name of the plaintiff, Allen, did not appear in the book, except in one place, where it had been again struck out. The Common Pleas considered this a defective memorandum, but that the deficiency was supplied by other documents (l). [*52] *In Cooper v. Smilh (m), in 1812, before the King's Bench the entry was made by the plaintiff' 's agent in a book; it mentioned the defendant's name. The Court inquired particularly whether the plaintift''a name appeared anywhere in the book;' it did not; but the memorandum was not signed by an agent for (he defend- ant, and, perhaps, the decision turned more upon that than on the absence of the plaintiff 's name. In Jacob v. Kirke (n), in 1839, the entry was in a book of the plaintiff's in the following terms: — "Mr. Kirke, 6 dozen kings, dozen queens, at 25s. per lb., 2 dozen others at 20s. per pound., to Uassell Street, Manchester;" it was signed by Kirke, but Jacob's (/)) Ohainpion v. Plummer, ] X. R. :2.'i::!. (i) See also Williami v. Uike, 29 L. J. Q. B. 1 ; 'i E. & E. 349. (/>■) Allen V. BeiiHii, 8 Taunt. ](j9. (/) See also S'irl v. BourdiUon, 1 C. B. N. S, Ihh; 'M L. J. C. T. 78, ««/(' p. 46. (m) Cooper v. ,S'»((77(, 15 East, Id:!. [n] Jacoh v. ATir/.c, :.' M. & R. 22:J. (1910) Gil. IV.] THE SEVENTEENTH SECTION — THE MEMORANDUM. 39 name nowhere appeared in the book. Parke, J., at Nisi Prius, thought the objection under the Statute of Frauds unsurmountable, but the case went off on another point. pn Ch'aham v. Musson (o), in 1839, the plaintiff's traveller, Dy- son, sold some sugar to the defendant, and made an entry in the defendant's book which he signed with his own name, Dyson. There was no evidence that Dyson was authorized to act as the de- fendant's agent, and the Court held that the plaintiff could not re- cover. In Vancleiibergh\. Spooner(p), in 1866, the defendant signed this memorandum: — "D. Spooner agrees to buy the whole of the lots of marble purchased by Mr. Vandenburgh, now lying at Lyme Cobb, at Is. per foot." Held that this was not a sufficient memorandum. As Bramwell, B., put it, "The seller's name as seller is not men- "tioned in it, but occurs only as part of the description of the "goods." In Newell v. Radford (q), in 1867, which was an action for not delivering; the memorandum was "Mr. Newell, 32 sacks culasses at 39s., 280 lbs., to await orders. June 8. *John Wil- [*63] Hams." ^Villiams was the defandanfs agent, and it was said for the defendant that there was nothing to show who was the buyer and who was the seller. But evidence had been given that Newell was a baker and Eadford a flour merchant, and the Court held that this evidence was admissible and removed the uncertainty. In this case Willes, J , threw some doubt on Vandenbergh v. Spooner (r) ; he considered the memorandum in that case amounted in effect to such a memorandum as this. "A. agrees to buy B.'s "horse for lOZ." The words were, "A. agrees to buy the horse purchased by B., for lOl." And the two appear to be the same, for the words " purchased by" may be read merely as showing how the horse came to be B.'s. If the wording in Vandenbergh\. Spooner (r) had been "A. agrees to buy a horse for lOl. B.," there would have been a fuller memorandum than in Newell v. Radford (s), and it would have been held sufficient by the Common Pleas. It seemn difficult to see how the words "A. agrees to buy the horse pur- chased by B. for lOl." are less sufficient. In Sharman v. Brandt (t), in 1871, the plaintiff was a broker, and was authorized by the defendants to purchase hemp for them. The plaintiff carried on business alone, under the style of Simpson & Co. The contract note was as follows: "Bought for Messrs. "Brandt and Horny, of our principals, 200 tons, &c. W. W. (o) Graham v. Musson, 5 Bing. N. C. 603. See also Graham v. Freiwell in 1841, 3 M. & G. .368. (p) Vandenbergh v. Spooner, L. E. 1 Ex. 310; 35 L. J. Ex. 201. (q) Newel! v. Radford, L. E. 3 C. P. 52; 37 L. J. C. P. 1. (r) VaMlenbergh v. Spooner, L. E. 1 Ex. 317 ; 35 L. J. Ex. 201. (s) Newel! v. Eadford, L. E. 3 C. P. 52 ; 37 L. J. C. P. 1. (i) Sharman v. Brandt, L. E. 6 Q. B. 720 ; 40 L. J. Q. B. 312. (1911) 40 THE SEVENTEEXTII SECTION TUE MEMORANDUM. [Pt. I. Simpson & Co." The plaintiff had no principals, but was himself the seller, and on the defendants refusing to take the hemp, brought this action as principal. He wos nonsuited, and the Queen's Bench and Exchequer Chamber affirmed the nonsuit, Kelly, C. B., saying '• it was not a note of any contract at all between the plaintiff, as seller, and the defendants, as purchasers."] There is no case that I am aware of, in which a memorandum that did not disclose who the jiarties were, has been held sufficient; so that the authorities though not numerous are uniform. But it is [*54] not necessary that the name of the ^party with whom the contract is made, should be inserted, if there be on the face of the memorandum a sufficient description to show who he is. When the party is not designated at all, it is a case of a writing on the face of it defective, as containing only part of a contract; bo that it is apparent that the agreement between the parties must have been partly not reduced ^o writing at all. "\\'hen that is the case, the common law allows the contract to be proved by the writ- ing and by parol; so that the writing shows the terms of the con- tract, and the parol shows with whom the contract was made. The statute, however, is not satisfied, for though the bargain is shown, it is not in writing; But when the writing describes a party with T/hom the contract is made, the bargain, so far as respects that, is in writing ; and the parol evidence is admitted, not as proving with whom the bargain was made, but as enabling the Court to under- stand the description in writing, which shows with whom it was made. This is no infringement of the Statute of Frauds; indeed, if it were, there never could be a good meraorandum in writing, for in the simplest case there must be some parol evidence to apply the document (u). In many cases the contract is with a firm using the partnership style, and there is no doubt that in such cases it may be shown by parol who the parties constituting that firm are, and that the con- tract is made with them. It is common also for an agent who is making contracts on behalf of a principal, to enter into written agreements that on the face of them purport to be made with the agent himself, and make no men tion of his having any principal ; when this is the case, there might, if it were a new question, be some difficulty in seeing how this con tract is to be made the contract of the principal, without directly contradicting the instrument; for on the face of it, it has a plain intelligible meaning. However, the decisions have settled, that without contradicting the writing or preventing its effect as a memorandum under the statute, evidence may be produced to show that the contract was made with the principal, either for the [*55] *purpose of enabling him to sue or be sued on the contract in his own name; and thpy have also settled, that evidence may npt {:i),.SaIe v. Lambert, L. V.. IS E(i. 1 ; Potter v. Diiffield, L. E. 18 Eq. 4. (191:;) Ch. IV.] THE SEVENTEENTH SECTION — THE MEMORANDUM. 41 be produced to show that the contract was not made with the agent, for the purpose of preventing his suing or being sued in his own name. All the authorities bearing on this subject will be found collected in Higgins v. Senior (x), decided in 1841. la that case, in the Ex- chequer, after taking time to consider, the judgment of the Court was delivered by Parke, B., who said, " There is no doubt that "where such an agreement is made, it is competent to shew that " one or both of the contracting parties were agents for other per- " sons and acted as such agents in making the contract, so as to " give the benefit of the contract on the one hand to, and charge " with liability on the other, the unnamed principal, and this, " whether the agreement be or be not required to be in writing by " the Statute of Frauds, and this evidence in no' way contradicts "the written agreement. It does not deny that it is binding on " those whom, on the face of it, it purports to bind, but shows that " it also binds another, by reason that the act of the agent in sign- "ing the agreement in pursuance of his authority, is, in law, the " act of the principal. But, on the other hand, to allow evidence " to be given that the party who appears on the face of the instru- " ment to be personally a contracting party, is not such, would be " to allow parol evidence to contradict the written agreement which "cannot be done." Higgins v. Senior {x) was a case in which the agent who had contracted in his own name, sought to discharge himself and was not permitted to do so {y). Almost *at the [*56] same time, the Queen's Bench, in Trurman v. Loder (z), allowed parol evidence to charge the principal with a contract made in the name of his agent. That was a sale of goods; the bought and sold notes which were made use oi to make out the contract were headed, "Bought for Messrs. Trueman and Co." (the plaintiffs) and " Sold for Mr. G. Higginbotham." The Court thought it proved that Higginbotham was acting as agent for Loder and Co., the de- fendants, and that the broker's notes were a sufficient memorandum of a bargain between them and Trueman. " Among the ingenious " arguments pressed by the defendant's counsel," said Lord Den man, in delivering judgment, " there was one which it may be fit to "notice; the supposition that parol evidence was introduced to " vary the contract, shewing it not to have been made by Higgin (x) Higgins v. Senior, 8 M. & W. 834; 11 L. J. Ex. 199. (y) Prnnklyn v. Lamoml, in 1847, 4 C. B. 637; 16 L. J. C. P. 221; KcJncr v. Baxter, in 1866, L. R. 3 C. P 174 ; 36 L. .1. C. P. 94; Pnice v. Wnikn; in 1W70, L. K. ,5 Ex. 173 ; 39 \.. .J. Ex. 109 ; Vie Elhinqer Co. v, Claye, in 1873, Ll R. S. Q. B. 313 ; 43 L. J. Q. P.. l.'il ; maton v. Bulloch, in 1874, L. R. 9 Q. B. 572 ; Southwell V. Bowditch, in 1-176, L. R. 1 C. P. D. 374 ; 45 L. J. C. P. 374 : Gadd V. Houghton, in 1876, L. R. 1 Ex. D. 357 ; 46 L. J, Ex. 71 ; Hiitcheson v. Eaton, in 1884, L. R. 13 Q. B. D. 861 ; C'alder v. Dobell, in 1871, L. R. 6 C. P. 486 ; 40 L. J. C. P. 89—224 ; Curtis y. Williamson, in 1874, L. R. 10 Q. B. 57 ; 44 L. J. Q. B. 97. (z) Trueman v, Loder, 11 A. & E. 589. (1913) 43 " THE SEVENTEENTH SECTION — THE MEMORANDUM. [Ft. I. " botbam, whose name is inserted in it, but by the defendant, who " gave him the authority. Parol evidence is always necessary tc " shew that the party sued is the party making the contract and " bound by it; whether he does so in his own name or in that of " another or in a feigned name, and whether the contract be signed " by his own hand or that of an agent, are inquiries not different in "their nature from the question, who is the person who has just " ordered goods in a shoiD. If he is sued for the price, and his " identity made out, the contract is not varied by appearing to havo " been made by him in a name not his own." It may, therefore, be taken as a general rule, that a writing is not a sufficient memorandum of the bargaiti, unlefs it describes the party with whom the bargain is made, though the doscription need not be by his own name; but it is not quite so clearly settled what more is necessary. As has been already observed (a), a memorandum of an agree- ment within the 4th section must contain the subject matter of tho [*57] agreement and the consideration as well as the *promi6e; but the word in the 17th section is " bargain," not " agreement," and though it seems difficult to see wherein bargain is a word loss ex tensive in its meaning than agreement, it has been thought that there is a difference. In Eijcrton n. Matiheics (b), a. p. 1S(I-j, the writing was in tho following terms : — " "We agree to give Mr. Egerton I'-M. per lb. for thirty bales Smyrna cotton, customary allowance cash 3Z. per cent, as soon as our certificate is complete." It was signed by tho defendants. The plaintiff was nonsuited by Lord Ellenborough, on the ground that this was not a sufficient memorandum within the statute. The nonsuit was set aside, and Lord Ellenborough is said to have declared that he had directed the nonsuit without attending to the difference between the wording of the 4th section and of the 17th section. And that the writing was a " memorandum of the " bargain or at least so much of it as was sufficient to bind the "parties to be charged therewith." There is some difficulty in understanding what was the objection to the memorandum as a, memorandum of an agreement, and consequently it is difficult to say what the distinction was which Lord Ellenborough made between bargain and agreement, but it appears that ho made some distinction. In Lcujtlioarp Y. Bryant (c), in 1S30, which was a case on the 4th section, Tindal, C. J., said, " Wdin v. Warlters (d), was decided " on the express ground that an agreement under the 4th section " imports more than a bargain under the 17th." {») Ante, p. 50, {!)) Er/rrto)i v. iliitlhcwfs, (i East, :!0~. (e) Linjilionrp v. Tlri/niit, -1 ,\. C. I'^r,. ((!) Wain V. Wdrlfcrs, 3 I':ai.t, 10. (1914) Ch. IV.] THE SEVENTEEiSmi SECTION — THE MEMORANDUM. 43 In Marshall v. Lynn (e), in 1840, Alderson, B., said, "By the ■' 4th section of the Statute of Frauds it ia provided, that the con- ' tracts therein mentioned shall be in writing, otherwise no action " shall be maintained upon them. . The 17th section requires that " some note or memorandum in writing of the bargain before made •' shall be signed by the party to be charged by such contract, or ■' his agent lawfully *authorised. There is, undoubtedly, a [*58] " distinction between the two enactments, for by the 4th section " the whole contract must be in writing, including the consideration, ■• which induced the party to mafce the stipulation by which he " is to be bound ; but by the 17th section it is sufficient if all the " terms by which the defendant is to be bound are stated in writing, " so as to bind him." These two last authorities are certainly no more than dicta irrelevant to the cases in which they were spoken ; but though they are not supported by any decisions that I am aware of, they are not contradicted by any cases either. It may seem strange that 4,he point has not been decided, but the truth is, it is not of such practical importance as it seems. When a writing containing the terms by which one party is to be bound in a contract of sale, and signed by him, is within the knowledge of the other, so that he can make use of it to bind the contract, it is in very many cases a reduction of the terms of the agreement to writing, such that no objection can be made to it as not containing the whole of the bargain, because by the rules of law it is conclusive as to what the bargain is. The terms that are not in it cannot be part of the bargain. And even when "the circumstances under which the writing was made are such as to make it not more than evidence of the agree ment, it is a difficult thing for a party to prove that a vnitten admission signed by himself does not contain the whole truth. The jury would properly be very unwilling to find that the writing did not contain the whole agreement unless there was some good reason given to explain the inaccuracy. The question, therefore, can seldom arise except where there is a letter written for some collateral purpose, and alluding incidentally to the bargain. It is most natural in such cases that the letter writer should only recite so much of the contract as is material to the main subject of his letter, so that he has no great difficulty in establishing the fact that part of the terms are omitted. *There are several cases of this sort, but none in which the [*59J writing was a complete memorandum of those terms of the bargain to which the party signing it was bound, but omitted material parts of the engagement of the other party. In Cooper v. Smith (/), in 1812, there had been a parol sale of (c) Marshall v. Lynn, 6 M. & W. 109 ; L. .7. Ex. 127. (/) Coo2>er v. SmitJi, 15 East, 103. (1915) 4-1 THE SEVENTEENTH SECTION — THE MEMORANDUM. [Ft. I. flour for a price exceeding 10/. - The plaintiff, who was the vendor, more than a week after the contract, sent to the defendant an iti voice specifying the goods and their price, accompanied by thip uote: — "Sir, the above was yesterday forwarded by Smith and Son's boat, which I have no doubt will be with you very soon." The defendant wrote next day, apparently in answer to this note: — " Mr. Cooper, Sir, Your not coming or sending the flour I agreed with you for according to time, I am now provided for, therefore it will not suit me to receive yours, as the price is lower. I have been offered flour a great deal lower this day. I expected yours in the course of a week from the time you were at my house. If I buy of any man I expect it according to time, or the bargain is void." The plaintiff's witnesses proved, to the satisfaction of the jury, that there was no term in the contract about the flour being sent within a week, and that it was sent in a reasonable time. The King's Bench held that this letter was not a sufifieient memorandum. Lord Ellenborough said, ["The plaintiff cannot avail himself of "that letter as evidence of the contract for one purpose, to bind the "defendant with the statute, and renounce it for another purpose; "but he must take it altogether; and then it] falsifies the contract "proved by parol testimony for the plaintiff." In Elmore v. Kingscote (g), in 1826, there was a sale byword of mouth on the 13th June of a horse, warranted five years old, for 200 guineas. To take the case out of the Statute of Frauds, the plaintiff rehed on a letter which was written and signed by the de- fendant, and sent to the plaintiff on the 18th June in the following [*60] terms: — "Mr. Kingscote *begs to inform Mr. Elmore, that if the horse can be proved to be five years old oa the 13th of this month in a perfectly satisfactory manner, of course he shall be most happy to take him, and if not most clearly proved, Mr. K. will most decidedly have nothing to do with him." The plaintiff was nonsuited by Chief Justice Abbott, and the King's Bench con- firmed the nonsuit, because the price was a material part of the bargain. The plaintiff's counsel contended, that there being no mention of the price in the letter, the law would imply that a rea- sonable price was to be paid. Probably this would have sufficed if the real contract had not been for a fixed sum; and if the note had been written whilst the bargain was being made, the defendant would perhaps have been bound to a bargain for a reasonable price; but the note was evidently written after the bargain was complete, and in consequence of a dispute about the warranty, so that the de fendant had no difficulty either in law or fact m establishing that there was a Bpeoina price which he had made no mention of in his letter, because it was immaterial to the question of warranty con earning which it was written. The Court, however, are not re ported to have given their reasons for overruling this last objec- tion. ((/) Elmore \. Kingxcolc, Ti ]!. & C. 58,;. (1016) Ch. /F.] THE SEVENTEEKTIl SECTION — THE MEMORANDUM. 45 In Acebal v. Levy (h), in 1834, there was a verbal contract for the sale of a shipload of nuts, to be put on board by the plaintiff;i at Gijon, in Spain, and to be paid for by the defendants at the then shipping price at Gijon. There was a correspondence between the parties about the transfer of the charter of a vessel, in the course of which it appeared that the ship was to be loaded with nuts for the defendant, but there was no mention whatever of the price. The plaintiff's counsel contended that the law would imply a contract to pay a reasonable price. The Common Pleas decided that this cor- respondence was no memorandum of the contract actually made, for even if the law would imply from the correspondence that the nuts were to be paid for at a reasonable price, the parol evidence showed that they were to be sold at the *shipping price at [*6.1] Gijon, which was by no means necessary a reasonable price. In delivering judgment, Tindal, C. J., said, "In order to recover on " the count for goods bargained and sold a sufficient note or memo "randum of the contract of sale at a reasonable price is just as ne- " cessary as on the special count, but for the reasons already given, " the note produced cannot prove a sale at a reasonable price where " it is silent altogether as to price, and the parol evidence shows a "different contract to have been made." In Hoadley v. McLean (/), in 1834, the defendant wrote to the plaintiff on the 15th May, 1832. "Sir Arch. McLean orders Mr. Hoadley to build a new, fashionable and handsome laundaulet (here followed a minute description of it), the whole to be ready by the Ist March, 1833." No price was ever agreed upon between the parties, and upon the laundaulet being finished they quarrelled about what was a reasonable price; the jury, who were the proper judges of the fact, found that 480Z., which Hoadley demanded, was very reasonable. The Common Pleas considered the order a sufficient memorandum : Tindal, C. J., said, " What is implied by "law js as strong to bind the parties as if it were under their hand. " This is a contract in which the parties are silent as to price, and "therefore leave it to the law to ascertain what the commodity con- «*'tracted for is reasonably worth {k)." It is to be observed, that in Hoadley v. McLean (i), there was no attempt to show that a specific price was agreed upon; but it is very doubtful whether the law would have permitted any parol evi- dence to show that there was such a term in the bargain, for the order sent by Sir Archibald seems to have been the written bargain irself. It is clear that in Cooper v. Smith (l), and Elmore v. Kingscoie (m), the writings were not jjie agreements, but only admissions of (h) Acebal v. Levy, 10 Bing. 376. (i) Hoadley v. McLean, 10 Bing. 482. (k) See also Ashcroft v. Jlorrin, 4 M. & G. 4.j0 ; and Valpy \ . Gibson, i C. B. 837 ; 16 L. J. C. P. 241. (I) Cooper V. Smith, 15 East, 103. (m) Elmore v. Kinrjscote, 5 B. & C. 583. (1917) 46 THE SEVENTEENTH SECTION THE MEMORANDUM. [Pt. I. Rome of the terms of agreements previously made: and probably [*62] in *Acebal v. Lrvy (n) the mention of the terms of the bar- gain was but incidental, though the report scarcely furnishes means of judging of that. [In Goodman v. Griffiths (o), in 1857, the memorandum was held in sufficient because the price which had been agreed upon was not mentioned.] It is very clear that all those cases in which the memorandum was held defective the omissions very materially qualified the de- fendant's liability, and therefore these decisions are not contradic- tory of the dictum of Alderson, B., in Marshall v. Lynn, (p), but there is nothing in the language of the different Judges who decided them to show that any distinction was present to their minds be- tween a memorandum sufficient to charge the one party and a mem- orandum sufficient to charge the other. And it does seem an unnecessary multiplying of subtleties to hold that a writing in the very same terms should be a memorandum of the bargain when used by the bargainee, and cease to be one when used by the bar- gainor, and that inconvenience is avoided by adopting the definition of Holroyd, J., in Konivorthy y. Schofield (g), viz., "It appears to " me that you cannot call a memorandum of a bargain which does " not contain the terms of it." It sometimes happens that after a dispute hab arisen, a party in a letter signed by him recapitulates the whole terms of the bargain, for the purpose of saying that the bargain is at an end for some reason which is evidently insufficient in law. It has never been desided whether such an admission of the terms of the bargain signed for the express purpose of repudiation can be considered a memorandum to make the contract good ; but it seems difficult on principle to see how it can be so considered. The parties may either of them put an end to the contract at any time whilst it is not good, with cause or without cause, and a memorandum of the terms comes [*63] *too late to make a contract good which is already put an end to. There is evidently a great difference between a writing which, after the dispute has arisen, mentions the terms of the contract for the purpose of showing that the bargain is at an end, and one which recognizes them as still subsisting. [Since this passage was writ- ten the point has been decided (r), and it is now law that a letter written for the purpose of repudiaMog a contract may be good as a memorandum.] I know only of three cases in which this point could have been decided; and though in each of them the memor- andum was held insufficient, they seem to have been decided on special grounds. (n) Acebal v. Leri/, 10 Bin^. :;76. (o) Goodman V. Griffiths, ] H. & N. .574 ; 26 L. J. Ex. 14.'">. See also Locketlr. NickUn, 2 Ex. 93 ; 1!) L. J. Ex, 403, 184^ ; Pcirccx. Corf, L. E. 9 Q. B. 210; 43 L. J. Q. B. 52. ./, V . (]i) Mdmlinll v. Lynn, 6 M. & W. 109 ; 9 L. J. Ex.127. {q) Kenwnrthij v. Schofield, 2 B. & C. 948. (r) See Bailaj v. Sweeting, jiost, p. 64 ; 9 C. B. N. S. 813 ; 33 L. J. C. P. l'>l'. (191S) Ch, IV.] THE SEVENTEENTH SECTION — THE MEMORANDUM. 47 In Cooper v. Smith (s), in 1812, which has been already cited (t), the decision of the Court seems to have turned on the fact of the note containing terms materially different from those of the bargain declared on and proved. In Richards v. Porter (u), in 1827, the defendant wrote to the plaintiffs : " The hops, five pockets, which I bought of Mr. Rich- ards on the 23rd of last month are not yet arrived, nor have I ever heard of them. I received the invoice. The last was much longer than they ought to have been on the. road ; however, if they do not arrive in a few days I must get some elsewhere." The plaintiffs were nonsuited, and the King's Bench held the nonsuit right. Lord Tenterden said, " I think this letter is not a sufficient note or " memorandum in writing of the contract to satisfy the Statute of " Frauds. Even connecting it with the invoice, it is imperfect. If " we were to decide that this is a sufficient note in writing, we " should in effect hold, that if a man were to write and say. ' I have " ' received your invoice, but I insist upon it the hops have not been " ' sent in time,' that would be a note or memorandum sufficient to " satisfy the statute. I think the case of Cooper v. Smith (s) in " substance is not distinguishable from this " (,-r). *In Smith v. Surman (y), in 1829, the plaintiff's attorney [*64] wrote to the defendant, " Sir, I am directed by Mr. Smith, of Nor- ton Hall, to request you will forthwith pay for the ash timber which you purchased of him. The trees are numbered from 1 to 19, and contain on a fair admeasurement 229 feet, 7 inches. The value at Is. 6d. per foot amounts to 17Z. 3s. 6d' I understand your objec- tion to complete your contract, is on the ground that the timber is faulty and unsound, but there is sufficient evidence to show that the same timber is very kind and superior, and a superior marketable article. I understand you object to the manner in which the trees were cross cut, but there is also evidence to prove they were so cut by your direction. Unless the debt is immediately discharged, I have instructions to commence an action against you." The de- fendant wrote in answer, " Sir, I have this moment received a let- ter from you, respecting Mr. Smith's timber, which I bought of him at Is. 6d. per foot, to be sound and good, which I have some doubt whether it is or not ; but he promised to make it so, and now denies it. When I saw him, he told me I should not have any without all, so we agreed upon those terms, and I expected him to sell it to somebody else." This was held not a sufficient note or memorandum of the bargain. Bay ley, J., seems to have formed his judgment, partly because the vendee did not recognise the bar- gain as a binding bargain : the other two judges, Littledale and Park, only say that the letters were inconsistent. ~~(s) Cooner v. Smi7X7i5~East, im. m Ante, p. 59. (u) Pichards v. Porter, 6 B. & C. 437. (a;) See also Archer v. Bai/nes, 5 Ex. 635 ; 20 L. J. Ex. 54. (y) Smith v. Surman, 9 B. & C. 561. (1919) 4S THE SEVEXTEEXTII SE'JTKJX -'HE SIGNATURE. [Pt. /. [Id Bailetj v. Sweeting (z), in 1861, the defendant verbally or- dered of the plaintiffs some chimney glasses to be paid for m cash, and some other goods on credit. When the chimney glasses ar- rived they were in a damaged state and the defendant refused to accept them, He wrote to the plaintiffs, " I beg to say that the only parcel of goods selected for ready money was the chimney glasses, amounting to 38/. 10s. Gd., which goods I have never re- ceived, and have long since declined to have." The defendant paid [*05] the price of the other *goods into court. And the jury hav- ing found that the contract for the chimney glasses was a separate one, the Court, consisting of Erle,^ C. J., Williams, Willes and Keating, JJ., held that the letter, although written for the purpose of lepudiating the contract, was a sufficient memorandum, and that the plaintiffs were entitled to recover. In WilLinsonY. JSraas {'i), in 1866, the seller sent some chee?e8 and candles to the buyer and an invoice " in the usual form," the buyer sent them back with a note signed by himself on the back of the invoice, " The cheese came to-day, but I did not take them in for they were very badly crushed , so the candles and cheese ia returned." The seller was nonsuited on the ground that there was no sufficient memorandum. On the motion for a new trial it was argued for the buyer that the invoice was no evidence of a sale, for the goods might possibly have been Feat on approval. But the Court ordered a new trial on the ground that the indorsement on the invoice was a statement of an objection not to the terms of the contract as there set out, but to the manner in which it had been performed, and was therefore some evidence of a contract (6). In Gvdirin V. Fraiiris (c), in 1870, it was held that a telegram sent by the defendant was a sufficient memorandum. A mere proposal with proof of parol acceptance is sufficient. In Rpiiss V. Pickslri/ (d), in 1866, where a proposal in writing signed by the defendant had been assented to by the plaintiff by parol, and contained the names of the parties and all the other terms of the bargain, the Court held that it Avas a sufficient mem- orandum, following Warner v. Willington (e) and Smith v. Nealeif).-] [*66] *Wh(it is n signature. The note or memorandum must he signed by the parties to be (z) Bnih'u V. Swieliiirj. II C. 13. N. S. H4:\ ; :;(! L. J. C. P. l.'jO. (n) Wilkinsmiv. Emus, L. R. 1 (J. p. 407 : 33 L. J. C. T. :2:i4 ; 41 L. J. E.x. 1 and 173. (b) Buxton V. Ji'H.s/, 7 Ex. 1 and 27:) ; Lcnllicr Cloth. Co. v. ji'icronimus, L. R. 10 Q. B. 140; 44 L, J. <^. B. r,i. (r) Ootlwiii V. Francis, L. K. :,V. P. ■«),"i ; 3il L. .T. C. P. 1-21. (rl) Reu.1.1 V. PiHsIri/. ],. K. 1 E.x. 342 ; 3,") I.. J. Ex. 218. {(') Wiirnrrv. Willington, in 1H,-|(!. 2.''> L. .1. Ch. Grj2. (/ ) Smith V, Nrrilc, in lM.-,7, 2(i L. J. C. P. 143 ; 2 C. B. X. S. G7 ; see also Liverpool Bank v. Eccles, in lig v. Roebuck (h), seem to show that Gibbs, 0. J. was inclined to go the full length of exclud- ing the broker's book altogether as evidence between buyer and seller. It is somewhat remarkable that there is no reported de- cision, not even at Nisi Prius, that the broker's book is admissible as evidence between the parties. Lord Ellenborough at one time evidently thought it was not only admissible but conclusive, but it never formed the ground of any reported decision of his. In Klinitz V. Surrey (i), the ruling was on the acceptance of a bulk sample ; in Heyman v. Neale (c), the plaintiff was nonsuited on another groiind. An opinion of Lord Ellenborough's, if it stood alone, would have very great weight, but against it is to be placed the opinion of Chief Justice Gibbs, and the more mature and de- liberate opinion of Lord Tenterden. The decision of Goom \. Aflalo {x) has put an end to doubt on the point there decided, namely, that where there is no signed entry in the broker's book, the bought and sold notes make the contract : from some expres- [*99] sionsof *Parke, B. it seems that learned judge doubted if the case was originally right, but he seems not to question that so far it is too well established to be overthrown. But the inference to be (h) (Iriint V. Fletcher, .'"> B. & C. 13(3. (.(•) Goom Y. Ajhilo. (; B. A- C. 117. (tj) lluflcrx. (.'iimmcyer, 1 Esp. 10.5. {z) Hicks Y. Uaiikii,, 4 Esp. 114. (n) Chiipmiin \. Fartridyc. .5 Esp. i'lf!. (h) lliiiih- Y. Wkiichouise, 7 East, .5.">8. (e) ITcyman v. Xvalc, 2 Camp. 7>'.)~. (rf) rouiU V. DirrH, l,-> East, 29. [e] numiiliiii-HY. Cfin-alho, 16 East, 4."). ( f) Diflrti^on. v. Lilwal, 4 Camp. 279. (o) lliorntnn v. KanDslir, Ft Tannt. 78(1. (h) f'limmiiiii v. Urirhurk, Holt. 172. (i) Klinitz V. Siirrnj, 5 Esp. 266. (1041) Ch. T'.] THE SEVENTEENTH SECTION — BROKERS. 73 drawn from the reasoning of the Court in Goom v. Aflalo (k), and acted upon in Thornton v. Meiix (l), viz., that the entry in the broker's book being a private act of which neither of the parties to the contract would be informed ought not to affect the parties, has been much questioned by him. This point was much considered in the case of Hawes v. Forster (m), in the King's Bench. That was an action for not delivering oil. The first time it was tried in 1832, tho plaintiffs produced and proved a bought note for the sale of oil to them " warranted to arrive on or before 30th June." The sold note was not in evi- dence, and the defendant's counsel, besides relying on that ob- jection, offered to put in the broker's book to contradict the note, and show that the warranty was not part of the contract. This evidence was rejected by Lord Denman. The Court of King's Bench were much divided in opinion, but finally they granted a new trial, in order that mercantile evidence might be received, and the question, if necessary, carried to a court of error. At the new trial in 183-1 [the sold note was in evidence and] it was proved in evi- dence and the jury found as a fact that according to the usage of trade, the bought and sold notes were the contract, and not the broker's book, which the evidence showed was in practice never re- ferred to, and the plaintiffs recovered, although the defendants proved that the entry did not correspond with the note. The de- fendants did not attempt to question this verdict. This point underwent some more discussion in ThorntonY. Charles (n,), in 1842. In that case there was a sold note, by which Thorn- ton sold to the broker's unnamed principal 200 *casks of [*100] taliow, and a bought note, by which Charles bought of the broker's principal 50 casks; the fact was that the broker made three con- tracts of sale from Thornton to three different persons, and deliv- ered oa]y one sold note, but three bought notes. He entered the true contracts in his book and signed them ; Lord Abinger non- suited the plaintiff because the bought and sold notes did not cor- respond, and he thought the broker's book nothing. The Court of Exchequer all agreed in granting a new trial on another ground. On the main point, however, Parke, B. and Lord Abinger differed. Parke, B. said, ''I apprehend it has never been decided that the " note entered by the broker in his book, and signed by him would " not be good evidence of the contract so as to satisfy the Statute of "Frauds, there being no other. The case of Hawes v. Forster (to) " underwent much discussion in the Court of King's Bench, when I "was a member of that Court, and there was some difference of "opinion among the Judges, but ultimately it went down to a new "trial to ascertain whether there was any usage or custom of trade (k) Goom V. Aflalo, 6 B. & C. 117. (?) Thornton v. Meux, Moo. & Malk. 44. (m) Hawe.1 v. Forfiter, 1 M. & R. .368. (n) Ttumton v. Charles, 9 M. & W. 802. (1945) 7-1: THE SEVENTEENTU SECXIOX — BROKERS. [Pt. I. ••■which makes the broker's note evidence of the contract. In that "case there was a signed entry in the book which incorporated the '•terms of making the contract void in the event of the non-arrival •'of the goods within a certain time. The bought and sold notes '•which viero delivered to the parties omitted that clause. Cer- '•tainly it was the impression of part of the Court that the con- '• tract entered in the book was the original contract, and that " the bought and sold notes did not constitute the contract. The "jury found that the bought and sold notes were evidence of the "contract, but on the ground that those documents having been de- "livered to each of the parties after signing the entry in the book, " constituted evidence of a new contract made between them on the "footing of these notes. That case may be perfectly correct, but it "does not decide that if the bought and sold notes disagree, or " (and?) there be a memorandum in the book made according to the [*101] ''intention of the *partie8, that memorandum signed by the "broker would not be good evidence to satisfy the Statute of "Frauds." Lord Abinger was of a different opinion; he said, "I "have purposely avoided'' (i. e. in his judgment delivered previ- ously to that of Parke, B.) "giving any opinion about the question "of the bought and sold notes; but I desire it to be understood "that I adhere to the opinion given by me, that when the bought "and sold notes differ materially from each other, there is no con- " tract unless it be shown that the broker's book was known to the "parties." The dicta of these two learned Judges are worthy of the more attention, because though the case did not call for a judgment upon the point, it seems that the contradictory opinions there expressed had been deliberately formed and long entertained. It may bo re- marked, however, that upon this occasion Mr. Baron Parke's account of the second trial of Uawes v. Forster {p) is at variance with the report usually received on very good authority. If the report of Hawes v. Forster (j:/), in the Eeports of Moody and RobUison, be correct, that case can scarcely have been decided by tlie finding of the jury that the broker's notes were evidence of a new contract substituted in lieu of a previous binding contract entered in the broker's book, for the evidence was that the broker could not tell which was first written, though it was all on the same day. It i3 not inconsistent with the terms of the report that the evidence may have shown that the notes were actually deliv- ered to the parties a short time after the entry was signed; yet if the jury found a substitution of a contract on that ground', it was a somewhat subtle verdict, and the point, if left to them, would surely have been mentioned in the report. According to the report, the evidence was all on one side, and " several of the most emi- " nent merchants in the city all concurred in declaring that they ( p) Ilawea v. Forster, 1 M. & 11. 368. Ch. K] THE SEVENTEENTH SECTION BROKERS. 75 " had never known any instance where the broker's book had been " referred to, and that they always looked to the bought and sold "notes as the contract." *And the question was left to the [*102] jury in these terms:—" Which according to the usage of the trade "in this city has been the binding contract, the broker's book, or " the bought and sold notes. If the evidence has satisfied you that " according to the usage of trade the bought and sold notes are the '• contract (and the evidence adduced before you to show that they " are so considered, has not been met by any contradictory evidence " from the other side), then you will find your verdict for the plain- " tiffs." "Verdict for the PlaintifPs." This differs very materially from the statement reported to have been made by Mr. Baron Parke, in Thornton v. Charles (q), as it is submitted, that this is not a " finding by the jury that the bought " and sold notes were evidence of the contract on the ground that " these documents having been delivered to each of the parties after " the signing of the book, constituted evidence of a new contract "made between them on the footing of these notes;" but a direct finding of a mercantile jury under the direction of the Chief Jus- tice, that the entry in the broker's book is not, according to usage, the contract. If it could be shown that by the general law merchant a broker was bound to make an entry in his book, and that by the law mer- chant such an entry was the record of the contract between the par- ties, it might come to be a question whether the custom of England to disregard the book was to prevail against the general law mer- chant; but T have not found any indications of such being the gen- eral law merchant* (r). {q) Thornton v. Charles, M. & W. 80:1 (r) There has not come to my notice any passage in the old French or civil law to show that such a hook was recognized in their law, but I have made too little search to be able to rest on this as affording a presumption that it was not a part of the law merchant. The Dutch and Italian law might probably afford more assistance, but I am ignorant of those languages. In Van der Lin- den's Law of Holland, by Henry, p. 565, it is said, that the brokers of Amster- dam are "bound to keep a proper register of all their transactions, to serve as proof in case of dispute." Lord Tenterden, however, in Goom v. Aflalo (6 B. & C. 117), seems to consider this a mere municipal regulation. The Code Napoleon is very precise in its directions as to the books of brokers, but not more so than with regard to those of other traders, (as may be seen by the extract printed below) ; and there seems no fair inference to be drawn one way or the other from a system sa radically different from our customs, both of trade and law. It is difficult to say, whether an English merchant who was compelled to submit his stock-book, journal, and the private book of his house- hold expenses, once a year, to be examined by the Mayor and Recorder or a Master in Chancery; or an English lawyer, required to give credence to traders' books as proof of what was stated in them, would be most inclined to resent the order as unnatural. (1947) 76 THE SEVENTEENTH SECTION — BROKEKS. [Pt. I. [*103] *If there be aoy decision in the English reports that the broker's book is by the law merchant or by custom evidence between the parties, it has escaped my notice. There are, no doubt, many dicta to that effect entitled to much respect, but no actual decision. The inconvenience of the doctrine is well pointed out in Goom v. [*104] Aflalo (s): it makes the terms of *the contract "depend upon a private act of which neither of the parties would be in- formed." The question, however, must remain very doubtful until there is a decision of a Court of Error on the point, for the judgment of one of the Courts below scarcely outweighs Mr. Baron Parke's strongly expressed opinion. [In Townend v. Drakeford (t), in 1843, at Nisi Prius the bought and sold notes differed, and there was an unassigned entry in the broker's book. Lord Denman, C. J., nonsuited the plaintifiF, and it is clear, from his reference to Hawes v. Forster (u), that he was still of opinion that the bought and sold notes were the contract, al- Codc de Ciiiiiiirrci'. Livre I., Tilrc dciuiemc. — " Da Liiirn dc Cuinmcrce." >•'. Tout commerjant est tenu (I'aAoir un livrc journal qui presenie jour par jour .sfs (lettes, actives et passives, les oporatioiis de son i-oramerce, ses nego- ciations, acceptations, ou endossemeus (reft'ets, et generalement tout ce qu'il Tefoit et paie, a quelqne titre que ce soit; et qui cnoncc mois par mois les summes employees a la dcpense de sa maison ; let tout independamment des iiutres livres usitts dans le commerce, mais qui ne sont pas indispensables. II est tenu de mettre en liasse les lettres missives qu'il refoit, et de copier sur un registre oelles qu'il enroie. i». II est tenu de fair, tons les aus, sous seing prive un inventaire de ses effets, mobiliers et immobiliers, et de ses dettes aetiM's et passives, et de le copier aunee par annee sur un registre special a ce destine. 10. Le livre journal et les livres des inventaires seront paraphes, et vis^s une fjis par anuee. Le livi-e de copies des lettres no sera pas sourais a cette Ibrmalite. Tous seront tenus par ordre de dates' sans blancs lacunes, ni transports en marge. 11. Les livres dont la tenue est ord ounce par les art. K et 9, ci dessus seront cotes, paraphes, et disc's, soit par un des juges des tribanau.x de commerce, soit par le maire, ou un adjnint, dans le forme ordinaire et sans irais. Les com- mer^ans seront tenus de conser^er ces livres pendant dix ans. 1-2. Les li\res des commerce regulierement tenus peuvent etre admis par le j uge pour faire preuve entre commeryants pour faits de commerce. l:i. Les livres que les individus fai.sants le commerce sont obligees de tenir, et pour lequels lis n'auroiit pas observe les formalitcs ci de.ssus prescrites nepour- ront etre repre.sente.s, ni faire foi en ju.stice au profit des ceux qui les auront tenus |ans prejudice de ce qui sera regie au livre de Failletes et Banqueroutes. ,. ■' ''^-'- I-fs^iSfiis de change et courtiers sont tenus d'avoir une li\Te re\etu de5 formes prescrites par Part Jl. lis sont tenus de consigner dans ce lis re, jour par jour et par ordre de dates, sans ratures, interlignes, ni transpositions, et sans abbreviations ni chiffres, toutes les conditions dos ventes achats assurances, negociatious, et en general de toutes les operations fliites jiar lour ministere (.s) (hmii V. Afl(do, 6 1!. & C. 117. (t) Toirnend v. Dnikefiird, 1 Car. & Kir. 20. («) Hawcs \. Former, 1 M. & R. :!(>«. (1048) Ch. Y-l THE SEVENTEENTH SECTION — BECKERS. 77 though he considered that if nothing but a signed entry in the book was in evidence the Court must adopt it. The difficulty of deciding these points may be gathered from the considered judgments of Lord Campbell, C. J., and Erie and Pat- teson, J. J., va. Sieveim-ighty. Archibald {x^^'va.l'ihl. The simple facts of the case appear sufHciently from the judgment of Erie, J., which contains a most masterly statement of his views. He said: — " In this case it appeared, by the evidence of the bro- ' ker at the trial, that he agreed with the defendant to sell to him '500 tons of Dunlop?8 iron; that the Dunlop's iron was Scotch, • that he delivered to the defendant a bought note, in which the ' thing bought was named Scotch iron, and to the plaintiff a sold ■ note, in which the thing sold was named Dunlop's iron : and it ' further appeared that the defendant had repeatedly admitted the • existence of some contract by requesting the plaintiff to release " him therefrom upon terms. " The plaintiff had declared for not accepting Dunlop's iron: but, ' on the defendant producing the bought note, so that it was in evi- ' dence, and, objecting that there was no contract because the ' bought and sold notes varied, the plaintiff *then contended [*105] ' that the defendant had ratified the contract expressed in the ' bought note sent to the defendant The declaration was then • amended to agree with the bought note; and the jury found their ' verdict for the plaintiff, and that the defendant had ratified the ' contract alleged in the amended declaration." He continued, " I would observe that the question of the effect ' either of an entry in a broker's book signed by him, or of the ac- ' ceptance of bought and sold notes which agree, is not touched by ' the present case. I assume that sufficient parol evidence of a con- ' tract in the terms of the bought note delivered to the defendant 'has been tendered, and that the point is. Whether such evidence is 'inadmissible because a sold note was delivered to the plaintiff? in 'other words, Whether bought and sold notes, without other evi- ' dence of intention, are by presumption of law a contract in writ- ' ing. I think they are not. If bought and sold notes which agree ' are delivered, and accepted without objection, such acceptance ' without objection is evidence for the jury of mutual assent to the 'terms of the notes: but the assent is to be inferred by the jury ' from their acceptance of the notes without objection, not from the ' signature to the writing, which would be the proof if they con- 'stituted the contract in writing." He then went on to point out that the form of the instruments is strong to show that they are not intended to constitute a contract, and said {y) : " It is clear also " that, if, according to the opinion of witnesses, there is a right to "return the note if contrary to instructions, the keeping of the "note makes it binding, and not the signature. The governing ix) SieveuTight v. Archibald, 17 Q. B. 103; 20 L. J. Q. B. 529. (2/) Page HI. (1949) 78 TUE SEVENTEEXTH SECTION BKOKERS. [Ft. I. "principle iti respect of contracts is to give effect to the intention "of the parties; and, where the intention to contract is clear, it " seems contrary to that principal to defeat it because bought and " sold notes have been delivered which disagree. They are then " held to constitute the contract only for the purpose of annull- " ing it. . . [*106] *"It seems to me therefore that, upon principle, the mere " delivery of bought and sold notes does not prove an intention to "contract in writing, and does not exclude other evidence of the "contract in case they disagree." After reviewing most of the re- ported cases, he proceeded, "From this review I gather that, in the " greater number of the cases, the doctrine, that bought and sold " notes are the sole evidence of the contract, is not recognised, nor was " the point decided that other evidence of the contract and of a com- " pliance with the statute is inadir>issible, if bought and sold notes "have been delivered which disagree." Erie, J., was of the opinion that the other evidence in this case, viz., the evidence of ratification, was sufficient to show that the bought note expressed the contract between the parties. He was further of opinion that there was not any substantial variance between the notes. That which Erie, J, actually decided was that the bought and sold notes were not the only evidence of the contract. It does not seem too much, notwithstanding the early passage in the judgment relat- ing to the broker's book which has been set out, to assume that he would have held that the note in the broker's book was not the only evidence admissible. If that be the true effect of the judgment, the extent to which the broker is the agent in common of both parties can be little more than to make a binding contract, subject to the approval of his principals; a mere agent to register a pro- posed contract. If a broker makes a contract which he was not authorised to make, and signs a memorandum and bought and sold notes of such a con- tract, the person who employed him may show that the broker was not his agent for the purpose of making that contract. If the broker acts within his authority, and makes a contract which he was author- ised to make, and then proceeds to make a memorandum in his book, and signs bought and sold notes which agree, no question can arise. If, however, the book and the bought and sold notes differ, then if these document are to be looked upon merely as evidence but not [*107J the only evidence of what the contract was, *there seems to be no reason why evidence should not be given to show which of them truly sets out the contract. If either party has accepted a note without making any objection to its terms, that would be strong evidence against him that that note truly set out the contract which he believed himself to have made, and if the other party at the trial relies on that note also it seems to be merely a question of evidence whether he has done so all along, or has shifted his ground for the purpose of the action.- (10.50) 67i. v.] THE SEVENTEENTH SECTION BROKERS. 79 If it can be shown that he at first treated his own note as the cor- rect one, then the parties were never ad idem-, and there is no evi- dence that there ever was a contract. The view which was taken by Patteson, J., in Sievewright v. Archibald (z), was that the bought note was merely a statement or representation to the bnyer of what he, the broker, had done for that person, and was not a memorandum signed for the purpose of binding him. lie then went on to say that he could not doubt that if a broker makes a signed entry in his book, "notwithstanding cases and dicta " apparently to the contrary, such memorandum would be thebind- " ing contract on both parties." But that in this case there was no signed entry, and therefore if there was a memorandum at all it must be either both the notes or one of them : That neither by itself can be so regarded, and that on this point all that was de- cided in Halves v. Forster (a) was that if one only was produced, the other would be assumed to be the same until it was shown not to be. Therefore, if there was a memorandum at all, it must be both notes, and as, in his opinion, they differed, there was no evi- dence of any contract. This judgment seems open to this remark, that although a note at the time when it was sent to the buyer or seller was a mere state- ment to him by the broker of what he had done, yet if both parties subsequently assent to the terms of that note, there does not seem to be any reason why it should not be regarded as a memorandum of the contract. *Lord Campbell's view (6) was that there was no evidence [*108] of ratification of the bought note by the defendant. That the en- try in the broker's book, if there is one, is the binding contract be- tween the parties, and that a mistake in the bought or sold note would not afPect its validity. That a long series of cases had established that where there was no entry in the broker's book, the bought and sold notes were the evidence of the contract, provided there was no substantial difference ; but if there was that difference there was no evidence of any contract. And that in this case there was a substantial diiierence. This judgment is in most respects of the same effect as that of Patteson, -J., but it is very difficult to say to what extent it differs from that of Erie, J. The aim of the judgment of Erie, J., waste point out that evidence of ratification of one note was admissible. Lord Campbell begins his judgment by stating that there was no evidence of ratification. It was formerly a matter of doubt whether an action could be brought on one note only.] (z) SievevmgM v. ArckihaJd. 17 Q. B. 103 ; 20 L. J. Q. B. 529. (aj Hnwes v. Forster, 1 M. & E. 368. (J) Which Whiteman, J., had read and ooneurred in. (1951) 30 THE SE-^'ENTBE^TH SECTION— BKOKEKS. [Ft. I. In Henderson v. Bamewall (c), in 1827, the Court of Exchequer "vaded the question by what seems an odd decision on a question of fact. Rowland Eoscoo was a broker in Liverpoo ; his brother William was his salesman and clerk. The clerk, William, did the actual broker's work in this sale, but the sold note on which the plaintiff relied was signed by the master, Eowland, and the I'.x- chequer decided that the clerk was the broker, and his master a mere stranger. The general understanding of men is, that an order given to a trader's clerk is given to the master, and that work done by the clerk is done for the master. It is evident from the facts that both Eowland and William viewed the transaction in that light, but the Exchequer did not. [In the case of Crofts v. Parton (a), in 1864, the defendant called on the brokers and asked them to purchase iron for him, [*10y] leaving it to them to settle tho price. At this time the ♦bro- kers had already had instructions from the plaintiff to sell iron for him. The brokers sold the plaintiff's iron to the defendant, and sent notes to both parties. The note sent to the defendant was the sold note, in these terms :— " Sold to S. Parton, Esq., on account of principals," &c., signed by the brokers. This note, on being produced by the defendant, was put in evi- dence by the plaintiff, v/ho did not produce the bought note, nor was it called for. No entry in the broker's book was put in. It was contended for the defence that the sold note only was in evidence, whereas both notes should have been put in. But tho Court, consisting of Erie, C. J., AVilliams, Keating, and Willes, J., held that this was a sufficient memorandum.] The point is, however, much connected with another, on which there is some authority, namely, whether a principal has in general a right to refuse to receive, or be bound by a contract delivered to him by a broker whom he has employed in the ordinary manner. If the principal has a right on receipt of the note to return it and repudiate the contract altogether, it is manifest that there is no absolute contract until he has either adopted the contract by retaining a note delivered to him, or waived his right to have an opportunity to return the note, and so repudiate the contract. The objection in such cases is not that there is no sufficient memorandum of the contract to satisfy the Statute of Frauds, but there is no contract at all, for the authority of the broker in such cases is merely to negotiate a bargain and propose it to his principal, who is to be bound by it unless he dissents. Till, therefore, the proposal is expressly or tacitly accepted, the contract is not made. Proof has in some cases been given of a usage in London, by which the principals have a right to return the broker's note within twenty-four hours, and so to refuse to be bound by the contract. (c) Hen'Jmmi v. Banii>wnll, 1 Y. & .J. 387. (rf) Crofls V. Parton, IG C. B. N. S. 11 ; 3!! L. J. C. V. 189. (1952) Ch. Fi] THE SEVENTEENTH SECTION — BROKERS. 81 In Heyman v. Neale (e), in 1809, the defendant seems to have relied on this usage as a part of the law merchant, [*110] not requiring proof. In that case the broker seems to have had express authority to make the contract, and Lord Ellenborough is reported to have used terms that may have borne reference to the peculiar circumstance of the broker's express authority, but which certainly seem to have been expressed generally to the effect that no such custom was part of the law. In Hodgson v. Davies (/), in 1810, there had been bought and sold notes delivered for the sale of tobacco, payment to be by bill. Five days afterwards the defendant, who was the vendor, refused to proceed with the contract. The defence was, that the person who sella goods by a broker reserves to himself the power of ratifying or rejecting the contract, as he shall be satisfied with the credit of the purchaser. The special jury said, that unless the name of the pur- chaser had been previously communicated to the seller, if the pay- nient is to be by bill, the seller is always understood to reserve to himself the power of disapproving of the sufficiency of the pur- chaser and annulling the contract, but that he must exercise that power more promptly than the defendant in this case had done. This finding of the jury, it is to be observed, is limited in terms to the case of a vendor upon credit, and seems to give him a reason- able but uncertain time to exercise his option. In Humphries v. Carvalho (g), in 1812, it is said that evidence was given that it was the custom of trade for either party to return the contract note if he disapproved of it within twenty-four hours. This custom, if it existed, would have had some bearing upon the merits of that cause, but as it was irrelevant to the point on which the case is reported, the accuracy of the reporter's statement can- not be depended upon. In Hav:esY. Forster (h), at the second trial, in 1834, *evi- [*111] dence was given by some eminent merchants " that if the broker's " bought or sold note, as the case might be, were not consonant " with their directions to the broker they returned it." This seems to be nearly the same thing as the statement in Humphries v. Car- valho (g), and is open to the same remark. It had a bearing on the question then at issue, and is therefore of some weight ; but as it was rather collateral to it, there is not any reason to look upon either the evidence or the report as minutely accurate. [In Thompson v. Gardiner (k), in 1876, a broker was employed by the plaintiff to sell for him. He delivered notes to both buyer and seller, but he signed the one given to the seller only. The de- fendant kept his note for two or three weeks and then repudiated (e) Heyman v. Kcalc, 2 Camp. 337, ante, p. 92. (/) Hodgson v. Duties, 2 Camp. 531. (g) Humphries v. Carvalho, 10 East, 45. (h) Hawes v. Forster, 1 M. & R. 368. {V) Thompson v. Gardiner, 1 0. P. D. 777. 6 CON. OF SALE. (1953) S2 THE sev£i;teenth section— brokers. [Pt. I. the contract. Brett, J., delivering the jndgment of the Court up- holding the verdict for the plaintiff, said, " The authorities are con- " elusive to show that the broker acting for one of the contracting " parties, making a contract for the other, is not authorized by both " to bind both. But the broker who makes a contract for one may " be authorized by that person to make and sign a memorandum of "the contract. That has frequently been held. The question here " is whether there was any evidence that the broker was so author- "ized." And Brett, J., was of opinion that there was ample evi- dence that the defendant had recognized the broker's authority to sign for him (?).] In all cases to which such a custom applies it is evident that the broker has no prhnCi facie authority to make a contract, and when there is but one centract note delivered there must be something proved beyond the mere existence of the relation of broker and principal between the broker and the party who has not received and retained the note, or else there is no proof of a contract on his part. And when there is independent proof that the principal did in fact enter into a parol contract to the same effect as that con- [*112] *tained in the note, it would seem to require extraneous proof to show that he authorized the broker to sign a contract for him without deiivering__a note to himself. And at all events he could not be taken to give the broker primCi facie authority to sign anything but a memorandum of the contract actually made, and consequently it would be open to him to show that the note was not a memorandum of the true contract. In the case of Pitts v. Beckett (m), in the sittings after Trinity Term, IS 45, the Exchequer is said to have decided on these principles, but giving them rather a more extensive application. That was an action for not accept- ing goods. The parties had been brought together by a Liverpool broker and had made a bargain personally. The broker afterwards rendered the plaintiff a sold note signed by the broker, describing the sale as unqualified. He did not render any bought note. The defence was, that the real contract was one with a warranty which was not complied with, and the jury found that such was the fact. The case took a double shape. Was there evidence to satisfy the Statute of Frauds, there being only one note, and was that note a written contract, so as to preclude the parties from giving evidence of terms not contained in it? Cresswell, J., at NisiPrius, at Liver- pool, directed the jury to find for the defendant, but reserved both points, and the plantiff obtained a rule nisi to enter a verdict for him, which was afterwards discharged. I was not present at the argument in Banc, but I am informed that the Court said that a broker had in no case prima facie authority to do more than to negotiate the contract and write down the terms of the contract (l) Sec also thorr v. ramphcll, 10 Ex. 'ii?, ■ 20 L ,T Ex 310 (m) Pitts V. Beckett, 13 M. & W. 71:; ; 14 L. J. Ex. 358. ' (1954) Ch. K] THE SKVENTEENTH SECTION BROKERS. 83 actually made; and that, consequently, at all events this note signed by him was not within his authority (w). It had previously been decided at Nisi Prius, once by Lord Kenyon (o), in 1794, and once by Parke, J. (p), in *1830, [*113] that a broker employed to purchase at an auction, had no apparent authority from his principal to do anything more than purchase the particular article mentioned by his principal on the "terms brought to the principal's notice. The decision inPiftev. Beckett (q) seems to extend the principle of these cases. But it cannot extend to cases where the broker is entrusted with any token of authority to make a contract: as for instance, when he is entrusted with the custody of the goods or delivery orders: or perhaps, where he is permitted to have the samples, though that must depend on the light in which merchants view the possession of the samples. [In the case of Heyworth v. Knight (r), in 1864, which was an action for not accepting a cargo, the defendant had by letter author- ised his brokers to buy for him on certain terms: his brokers then wrote to the plaintiff's brokers making an offer in terms which dif- fered from their authority, but which the Court considered to be in substance the same. This offer was accepted. The bought and sold notes which were then drawn up did unquestionably differ from the accepted offer. The declaration was founded on the terms of the authority and not on the notes. The Court upheld the verdict for the plaintiff, being of opinion that it was competent to him to bring an action on the contract disclosed by the letters. Erie, C. J., said, " Some- " thing was said by Mr. Mellish about the letters not constituting a "binding contract between the parties, because a more regular and " extended contract was contemplated (s). That notion, however, is "totally at variance with the law as laid down by many cases in "the Court of Queen's Bench, where the broker's book has been " allowed to be resorted to for evidence of the contract, though the " parties intended to contract by means of bought and sold notes, "where there has been a variance between these documents " (t). Perhaps it may be suggested that *in the above important [*114] passage the expression "intended to contract" may be read as "in- tended to evidence the contract." It would seem from these very conflicting authbrities that it is still a matter in doubt whether any document can be said to be the memorandum of the contract. Mr. Benjamin deduces (u) certain (m) See also Sievewriglit v. Archibald, 17 Q. B. 103 ; 20 L. J. Q. B. 530 ; Scy- woi-th V. Kniffht, 17- C. E. N. S. 29S ; 33 L. J. C. P. 298. (o) The East India Co. v. liensley. 1 Esp. 112. (p) Horsfall v. Fauntleroy, 10 B. & C. 755. (q) PitisY. Beckett, 13 M. & W. 743 ; 14 L. .1. Ex.. 358. (r) Heyworth v. Knight, 17 C. B. N. S. 298 ; 33 L. J. C. P. 298. Is) See LeiBis v. Brass, 3 Q. B. D. 667. (t) Willes, J., in this case di.ssented from the opinion of the majority of the Jndges in Cowie v. Eemfry, 5 Moo. P. C. C. 232. (ttj 2nd ed., Benjamin on Sales, 221. (1955) 84 THE SEVENTEENTH SECTION BROKERS. [Ft. I. propositions from tbem, the first one being that the signed entry in the book constitutes the contract, the second one is that the notes do not constitute the contract, the third and fourth ones being that both or either note may satisfy the statute. "What precise meaning the word constitute here has, it is difficult to see. A writing can- not, strictly speaking, constitute a promise, although it may be the best evidence of it. Erie, J., in his very learned and powerful judgment delivered in Sieveivright v. Archibald (.r), drew attention "to the distinction be- " tween the evidence of a contract, and evidence of a compliance " with the Statute of Frauds. The question of compliance with "the statute does not arise until the contract is in proof. In case of " a written contract the statute has no application. In case of other "contracts (i. e. unwritten ones), the compliance may be proved by " part payment, or part delivery, or memorandum in writing of the '•bargain. Where a memorandum in writing is to be proved as a "compliance with the statute, it difi'ers from a contract in writing, " in that it may be made at any time after the contract, if before "the action commenced; and an 1/ number of memoranda may be '^made, all being equally originals." This very significant passage if it does not suggest seems, to say the least of it, to be consistent with the view that where there are several memoranda in existence differing from each other and all purporting to be memoranda of the contract, it is a matter of evi- dence which of them, if any, is a memorandum of the contract which the parties intended to enter into.] [*]15] '"Parol variations (f Written Contracts. [When a contract, which must be in writing under the Statute of Frauds, has been entered into in writing, it occasionally happens that the parties verbally agree to some 'alteration in it, or in the mode of carrying it out. If any disagreement should arise in carrying out the altered con- tract, neither joarty can bring an action on the verbally altered contract, where the alteration should have been evidenced by writing to be valid. As Lindley, J., said in Hickman v. Haynes (y), in 1S75, " Neither a plaintiff nor a defendant can at law avail himself " of a parol agreement to vary or enlarge the time for performing " a contract previously entered into in writing, and required so to " he by the Statute of Frauds." It becomes a question then whether either party can bring his action on the original contract. Where the original contract has been rescinded neither party can avail himself of it, and in these cases of parol variations the defend- (x) Sicrcwrii/Jit v. Archibald, 17 Q. B. 107 ; 20 L. J. Q, B. 529. (y) Ilichman v. Haynes, L. E. 10 C. P. 598 ; 44 L. J. C. V. 358. (1956) Ch. Fi] THE SEVENTEENTH SECTION — PAROL VARIATIONS. 85 ant's argument has frequently been that the original contract must be taken to have been rescinded by the parties when they entered or thought they were entering into a substituted contract. Where another contract can be proved to have been substituted for the original, as where both were in writing, it is probably a matter of law that the parties intended to rescind the original, but where no substituted agreement by which the parties bound them- selves can be proved, it is a question of fact whether the parties did intend to rescind it when they entered into, or rather intended to bind themselves by, a substituted contract. There does not seem to be any doubt that a contract which must be in writing may be rescinded verbally {z). If the original con- tract has not been rescinded either party may *bring his [*11G] action on it provided he can show his readiness and willingness to perform it. In several of the following cases there has been a request by one party to postpone delivery, and it has been urged in argument that the agreement to postpone amounted to a substituted contract the same as the original in all respects except as to the time of delivery ; but this is not necessarily nor usually the case. Such an agree- ment generally amounts to nothing more than a license by one party to the other to depart in that particular respect from the terms of the agreement, and is not a contract at all. In Cuff Y. Penii (a), in 1813, the defendant agreed to buy bacon of the plaintiffs, to be delivered in certain quantities on certain days. After some of the deliveries had been made the defendant represented to the plaintiffs that the sale of bacon was dull and requested them not to press it on him, and they assured him they would not, and consequently they postponed the deliveries. Event- ually the defendant refused to accept any. And when the plaintiffs brought their action for not accepting it was argued for the defend- ant that the plaintiffs were suing on a contract which was a parol variation of a written contract, or was a parol contract substituted for a written one, in -syhich case it would be void under the statute, for there had been neither a part acceptance nor a part payment. But Lord Ellenborough, C. J., overruled both objections, and the Court upheld the verSct for the plaintiiis. In Stead v. Dawber (b), in 1839, the plaintii? agreed in writing to buy of the defendants a sloop-load of bones to be delivered on the 2()th to the 22nd. Some days afterwards the plaintiff's broker pointed out that the 22nd was a Sunday, and asked the defendants if they would deliver all the bones on the 21st. The defendants said ' You had better say the 23rd or 24th.' The price of bones having risen they were not sent. Lord Denman, 0. J., delivering the judgment of the Court s aid that the question was mainly (z) Goss v. Lord Nugent, fj B. & Ad. 65. {a) Oufv. Penn, 1 M. &S. 21. (6) Stead v. DawTjer, 10 A. & E. 57. (1957) 8G THE SEVEXTEENTH SECTION PAROL VARIATIONS. [Pi. I. [*117] one of fact, viz., *clid the parties intend to substitute a new contract for the old one, the same in all respects except those of the day of delivery and payment. The Court being of opinion that they did, ordered a verdict to be entered for the defendants. This case was considered to have overruled Guff v. Penn (c), but is itself very doubtful law. In Marshall v. Lynn (d), in 1840, the defendant contracted in writing to buy of the" plaintiff a quantity of potatoes to be shipped on board the plaintiff's brig. The Kitty, on her arrival at AVisbech the next time. On her arrival there, the defendant's son requested that she might first go to Lynn and from there take a cargo to London and then return to Wisbech. The plaintiff sent her ac- cordingly. When she had returned to Wisbech and the plaintiff offered to load her, the defendant refused to take the potatoes. The plaintiff was nonsuited on the ground that this was a parol variation of a written contract and was not binding. It appears to have been considez-ed in some of the preceding cases that the parol variation to raise a presumption of rescission must have been an essential part of the contract. Parke, B., said that this was unnecessary, for that " every part of the contract in "regard to which the parties are stipulating, must be taken to be "material." Baron Parke, approved of Stead v. Dau-ber (e), but it seems pretty clear that Stead v. Dawbcr (c) was wrongly decided, and is distinguishable from Marshall v. Lynn (b). Goss V. Lord Nugent (/), in 1840, established in the case of a contract relating to an interest ia land that if the original contract be varied and a new contract as to any of its terms substituted in the place of it, the new contract cannot be enforced unless it be also in writing. In Moore v. Campbell (g), in 1854, the contract note on which the [*118] action was brought for not delivering, stated that *the de- livery of the hemp was to be from the quay. When the defendant informed ^Vilks, the plaintiff's agent, that the hemp had been put on the quay, Wilks requested that it might be warehoused on the plaintiff's account, which was done. Wilks then told the defend- ant to draw on the plaintiff for the hemp as soon as he was in a position to transfer it. Owing to a difference about the quantities, Wilks refused to give the defendant the plaintiff'' s acceptances. It was argued for the defendant, who had resold the hemp, that a verbal contract to deliver from the warehouse had been substituted for the written contract to deliver from the quay, and that the written contract was therefore rescinded. Parke, B., said, "We do (c) CafY. Pmn, 1 JI. & S. 21. (d) Marxluill v. Lynn, 6 M. & "W. 109; L. J. Ex. 117. (r) Siciid V. Dmeirr, 10 A. & E. 57. (/) Goss V, Lord Niu/cnf, 5 B. & Ad. 65. {g} Moore v. Campbill, 10 Ex. 323; 26 L. J. Ex. 310. (1938) Ck. K] THE SEVENTEENTH SECTIOS^— PAROL VARIATIONS. 87 "not think that this plea was proved by this evidence. If a new ''valid agreement substituted for the old one before breach would "have supported the plea, we need not enquire, for the agreement "was void." Ysx Noble v. Ward (^), in 1866, the defendants on the 12th of August contracted to purchase goods from the plaintiff to be de- livered within stated times. On the 18th they entered into another contract in writing for the purchase of goods to be delivered and paid for within stated times. On the 27th the parties verbally agreed that the contract of the 12th should be cancelled and the time for delivery and payment under the contract of the 18th should be extended. The defendants eventually refused to take the goods. And it was argued for them that the contract of the 18th was rescinded by the substitution of that of the 27th, which was admitted to be invalid. At the trial the plaintiff was non- suited on this ground. On the motion for a new trial, which was granted, Bramwell, B., delivering a judgment which was concurred in by the other judges, was of opinion that the contract of the 18th was not in fact rescinded. The Exchequer Chamber affirmed this judgment— Willes, J., saying that at least it was a question for the jury whether the parties did intend to rescind it. It had been argued *for the defendants that a parol contract varying [*119] the terms of a written one, which would have operated as a rescis- sion of the written one had it been in writing and therefore valid would so operate although invalid, not being in writing. But the Courts were of the contrary opinion. There is nothing in the 17th section to show that a written con- tract within that section may not be rescinded by express verbal agreement. And where the Court can take notice of the fact that a valid contract has been substituted that may raise a presumption in law that the parties intended the earlier contract to be rescinded, but where no valid agreement to substitute a contract can be proved, the ground for such a presumption is gone. In Ogle v. Earl Vane (i), in 1867, it was contended that the plaintiff was in fact suing for the breach of a verbal agreement to deliver at a date later than that fixed by the original agreement. The defendant had contracted to deliver iron to the plaintiff not later than July. In consequence of an accident to his furnaces the defendant was unable to deliver by that time, and a correspondence took place in which the plaintiff pressed for delivery. Eventually the plaintiff bought in against the defendant at an advanced price in the following February. Blackburn, J., said that the effect of the negotiations was, not that the plaintiff had substituted any new contract for the old one, but in order to suit the defendant's con- (7j) Noble V. Ward, L. E. l.Ex. 117; L. E. 2 Ex. 135; 35 L. J. Ex. 81; 36 L. J. Ex. 91. (i) Ogh V. Earl Vane, L. K. 2 Q. B. 275 ; L. E. 3 Q. B. 272; 33 L. J. Q. B. 175; 37 L. J. Q. B. 77. (1959) 88 THE SEVEXTEENTH SECTION— PAROL VARIATIONS. [Ft. I. venience had said, " ' I'll wait, bnt I do not bind myself to wait.' " This distinction between waiting and not binding one's self to " wait, is the same as that between a mere license and a contract ; "or as that between giving time to principal by mere forbearance, " and binding one's self for a good consideration to give time, in " which latter case only is the surety released. The question in "such cases being, 'Have you ever bound yourself:"" 'And the [*120] Court held that the plaintiff was *entitled to recover ; and was affii-med in the Exchequer Chamber (k). In The Leather Cloth Co. v. Hieronimus (I), in 1875, the defen- dant verbally contracted to buy goods fi'om the plaintiffs, to be sent from London via Ostend by Messrs. Gaudet Freres. When the goods were ready for delivery Gaudet Freres had ceased to carry via Ostend, and the plaintiffs sent the goods via Eotterdam and an invoice to the defendant. The goods were lost at sea. In answer to a request for payment, the defendant wrote in such a manner that the Court held there was a sufficient memorandum of the contract to send via Ostend, and there was ample evidence that the defendant had ratified or assented to the change of route. It appears to have been argued for the defendant that there was a substituted contract, viz., to send via Rotterdam, and that there should have been evidence of it in writing to enable the plaintiffs to succeed. Cockburn, C. J., Blackburn, Mellor, and Archibald, JJ., held not. Blackburn, J., said, "I cannot see why the assent " to a substituted mode of performing one of the terms of a con- " tract need be in wiiting and may not be by parol, though the " original contract must have been in writing. They are quite dif- "ferent things ;, the proof of a substituted contract, and the proof " of a ratification or approval, after performance, of the substituted "mode of performance." In Hickman v. Haynes (m), in 1S7j, the plaintiff in writing con- tracted to deliver to the defendants 100 tons of iron in equal in- stalments in March, April, May, and June. The three first instal- ments were delivered and paid for. In June the defendant verbal- ly requested that the June delivery might be postponed, and in August a correspondence relating to a further postponement took place. The defendants eventually refused to take the iron. It was [*121] argued for them that the verbal *agreement to postpone the June delivery was a good excuse in law for not accepting in June according to the original contract, and further, that as it was not in writing, it was not a good contract to accept after June. The Court, however, was of opinion that this was not the substitution of one agreement for another, but merely a forbearance to deliver at the defendant's request. {k) See also Tiivrf. v. Ensi'(J0o\ L. R. 10 Ex. 195 ; 42 L. J. Ex. 1>5 ; 44 L. J. Ex. 130. (7) Thr. Lrnfhn- Cln'Ji Co. v. Utcrnnimna, L. R. 10 Q. B. 140 ; 44 L. J. Q. B. o4. (m) Uk-kMun\. Haynes, L. R. 10 C. P. 598 ; 44 L. J. C. P. ;!58. (1960) Ch. y?[ THE SEVENTEENTH SECTION — PAROL VARIATIONS. 89 In Plevms v. Downing (n), in 1870, the defendant in June bought of the plaintifl's 100 tons of iron, "delivery, 25 tons at once, and 75 tons in July next." By the end of July 75 tons had been delivered ; there was no evidence of a request by the defend- ants to have delivery of the remaining 25 tons postponed till after July : In October the defendants verbally requested that they should be sent, but subsequently declined to accept them. The Court upheld the verdict for the defendant, on the grounds set forth by Brett, J., who delivered the judgment of the Court. He said : — " It seems to us, however, that the verdict was rightly directed to " be entered for the defendant. It is true that a distinction has " been pointed out and recognised between an alteration of the " original contract in such cases and an arrangement as to the mode " of performing it. If the parties have attempted to do the first *'. by words only, the Court cannot give effect, in favour of either, " to such attempt : if the parties make- an arrangement as to the " second, though such arrangement be only made by words, it can " be enforced. The question is, what is the test in such an action " as the present, whether the case is within the one rule or the other. " "Where the vendor, being ready to deliver within the agreed " time, is shown to have withheld his offer to deliver till after the " agreed time in consequence of a request to him to do so made by " the vendee before the expiration of the agreed time, and where " after the expiration of the agreed time and within a reasonable " time the vendor proposes to deliver, and the vendee refuses to " accept, the *vendor can recover damages. He can prop- [*122] " erly aver and prove that he was ready and willing to deliver ac- " cording to the terms of the original contract. He shows that he " was so, but that he did not offer to deliver within the agreed " time, because he was within such time requested by the vendee " not to do GO. In such case it is said that the original contract is " unaltered, and that the arrangement has reference only to the " mode of performing it. But if the alteration of the period of " delivery were made at the request of the vendor, though such re- " quest were made during the agreed period for delivery, so that " the vendor would be obliged, if he sued for a non-acceptance of " an offer to deliver made after the agreed period, to rely upon " the assent of the vendee to his request, he could not aver and " prove that he was ready and willing to deliver according to the " terms of the original contract. The statement shows that he was " not. He would be driven to rely on the assent of the vendee to " a substituted time of delivery, that is to say, to an altered time or " a new contract. This he cannot do so as to enforce his claim. " This seems to be the result of the cases which are summed up in " Hickman v. Haynes (o)." (n) PlevinH v. Downing, 1 C. P. D. 220; 45 L. J. C. P. 695. (o) Law Eep. 10 C. P. 598. (1961) (91) *PART II. [*i23] WHAT AGEEEMENTS AMOUNT TO A BAEGAIN AND SALE, AND WHAT AEE BUT EXECUTOEY. CHAPTER I. GENEEAL EULES TO ASCERTAIN WHETHEE AN AGEEEMENT AMOUNTS TO A BAEGAIN AND SALE OE NOT. The next question to be conBidered is, what are the circumstances under which a contract (good within the statutes) amounts to a bargain and sale of goods, so as to operate as an actual sale of them, and when not ? This is, properly speaking, a question depending upon the con- struction of the agreement, for the law professes to carry into efPect the intention of the parties as appearing from the agreement, and to transfer the property when such is the intention of the agreement, and not before. In this, as in other cases, the parties are apt to express their intention obscurely, very often because the circum- stances rendering the point of importance were not present to their minds, so that they really had no intention to express. The consequence is, that without absolutely losing sight of the funda- mental point to be ascertained, the Courts have adopted certain rules of construction which in their nature are more or less techni- cal; some of them seem very well fitted to aid the Court in discover- ing the intention of the parties : the substantial sense of others may be questioned (a). The parties do not contemplate a bargain and sale till the specific goods on which that contract is to attach are agreed *upon. [*124] But when the goods are ascertained, the parties are taken to contem- plate an immediate bargain and sale (b) of the goods unless there be something to indicate an intention to postpone the trans- ference of the property till the fulfillment of any conditions ; and when by the agreement the seller is to do anything to the goods for the purpose of putting them into a deliverable state, or when any- (a) Post, p. 175. (6) [A "bargain and sale" was an expression of very definite meaning in use in the old forms of pleading : it stands for what is sometimes called an ' ' ex- ecuted contract," that is one where the property has passed. An executory contract is one where the property has not passed. Neither "executed" nor " executory" refer to something done or to he done according to the contract other than as above.] (1963) 92 M'lIAT AMOUNTS TO A BARGAIN AND SALE. [Pt. II. thing is to be done to them to ascertain the price, it is presumed that the parties mean to make the performance of those things a condition precedent to the transference of the property. But as these are only rules for construing the agreement, they must yield to anything in the agreement that clearly shews a contrary inten- tion for the parties may lawfully agree to an immediate transfer- ence of the property in goods, although the seller is to do many things to them before they are to be deliverable; and, on the other hand, they may agree to postpone the vesting of the property till after the fulfillment of any conditions they please. These rules require a careful examination of the cases in which they have been applied, in order to perceive their precise meaning and force (c). The goods must be specified. The first of these rules, that the parties must be agreed as to the specific goods on which the contract is to attach before there can be [*125] a bargain and sale, is one that is founded *on the very nature of things. Till the parties are agreed on the specific indi- vidual goods {d), the contract can be no more than a contract to supply goods answering a particular description, and since the ven- dor would fulfil hia part of the contract by furnishing any parcel of goods answering that description, and the purchaser could not ob- ject to them if they did answer the description, it is clear there can be no intention to transfer the property in any particular lot of goods more than another, till it is ascertained which are the very goods sold. This rule has existed at all times; it is to be found in the ear- liest English law boots. In the Year Book (e) the Justices all agreed that a grant to kill and take a deer in the grantor's park conferred no property in any deer; but Brian (then Chief Justice) said, '' But if I have a black deer amongst others in my park, I can " grant him, and the grant is good ; and if I have two amongst the " others known, and I grant one or both of them, the grant is good, " for this, that it is ascertained what thing is granted." Lord Coke (/) uses a very similar illustration: " If I have three " horses, and I give you one of them, in this case the election ought (e) They are nearly, but not quite equivalent to the text of the Digest : Si id quod venierit appareat quid quale quantum sit et pretium et pure venit per- feeta est emptio. "When the thing to be transferred under the fontract of sale has been ascertained in its individuality, its state, and its quantity and the price is fixed and the transference is to be unconditional, the contract amounts to a perfect sale ;" but as this concise statement requires a good deal of expla- nation, the reader is referred to the extracts from Pothier, poftt. {T. R. 921. (a) Spnrlcs v. WarshaJJ, '2 Bing. N. C. 7C1. (b) Bryans v. 2ax; 4 M. (i V/. 775. (1070) CTl. /.] SUBSEQUENT APPROPRIATION. 99 the oats deliverable to the defendants, who subsequently obtained possession. The Court *held that the oats had not been [*134] appropriated to the plaintiffs. The grounds of the decision appear to have been that the boat receipt sent to the plaintiffs purported to be an undertaking by the captain to retain for them goods then in his possession, when, in fact, there were none, and was therefore meaningless: and was not evidence of Tempany having appropriated similar goods to them which subsequently came into the captain's possession. And that as to these goods there was no evidence that Tempany had appropriated them to any one before the 9th, on which day the captain was made the agent of the defendants to hold for them. In Aldridge v. Johnson (c), in 1857, it was agreed that the plain- tiff should give Knights 32 bullocks and a sum of 23Z., and should have in exchange 100 qra. of oats forming part of a bulk of 200 to 300 qrs. then lying in Knights' warehouse. The plaintiff sent sacks for the oats, of which 155 were filled by Knights' orders. Knights then finding himself in embarrassed circumstances, had the sacks emptied back into the bulk, and subsequently the defendant, his assignee in bankruptcy, claimed the oats. But the Court held that the property had passed to the plaintiff. Erie, J., said the decisive act was putting the portion into the sacks. The case of Langton v. Higgins (d), in 1859, followed Aldridge v. Johnson (c). Bottles which the plaintiff had sent to be filled with peppermint oil, were filled and weighed, and the Court held the property had passed. In Folk V. Fletcher (e), in 1865, De Mattos, of London, chartered a vessel from the defendants, to load a cargo of salt at Liverpool, and proceed with it to Calcutta. The captain was to apply to the plaintiff at Liverpool for a cargo. The course of business between the plaintiff and De Mattos was for the plaintiff to put the salt on board any ship chartered by De Mattos, to take the mate's receipts for the quantities as put on board, exchanging them afterwards *for a bill of lading making the salt deliverable to the plain- [*135] tiff or his assigns, and to send it and the invoice to De Mattos, to- gether with a draft for his acceptance. In this case the plaintiff had put on board 1,007 tons of salt when he heard that De Mattos had stopped payment ; he immedi- ately stopped loading, and proposed to the defendants either that he should complete the loading on his own account, or that they should purchase the salt already on board, or give him a bill of lading for that quantity, but defendants declined all his proposals and sailed for Calcutta, where the salt was sold at a loss by their agents. It was contended for the defendants that the property in the salt had passed to De M attos by delivery on board the vessel (e) Aldridge v. Johnson, 7 E. & Bl. 885 ; 26 L. J. Q. B. 29G. \d) Langton v. Higgins, 28 L. J. EX. 252 ; 4 H. & N. 402. (e) Folk v. ileteher, IS C. E. N. S. 403 ; 34 L. J. C. P. 146. (1971) 100 WHyVT AjrOtlNTS TO A BARGAIN AND SALE. [Pt. II. (/),• and that taking the mate's receipts was nothing more than a moans of ascertaining the quantities. The jury found a verdict for the plaintifP on the ground that he did not intend when he put the salt on board to pass the property to De Mattos or to 'part with control of it, and the Court refused to grant a new trial. In Campbell v. The Mersey Docks and Harbour Board (g), in 1863, the plaintiff had purchased 250 bales of cotton out of a cargo of 500. When the 500 bales were landed, they were all marked in one way and not numbered, but the dock company's ser- vants numbered them at the time of landing. The Company gave the plaintiff a warehouse certificate for 250 bales, describing them as numbered from 1 to 250. Subsequently the Company informed the plaintiff that 200 of the 250 bales numbered 1 to 250 had been inadvertently delivered to other persons, and offered to substitute other numbers, which offer the plaintiff declined. The jury found that the only evidence of an appropriation was a mistake of the Company's clerk, and on the motion it was held that the property had not passed. In Ex ijarte Pearson, in re The Wiltshire Iron Co. (7i), in 1868, [*130] Pearson, who was imaware that a petition for winding *up the A\'iltshire Iron Co. had been presented, purchased 200 tons of iron from the Company, who placed the iron in trucks and sent in- voices to Pearson signifying the consignment. The trucks were moved from the Company's works on to the lino of the Great Yrest- ern Railway Co., in whose custody they were when the winding-up order was made. It vv-as held the property had passed. In Jeitner v. Smith (/), in 1869, the plaintiff showed the defend- ant a sample of hops of which he then had three pockets lying in a London warehouse. The defendant agreed to buy two of them at £7 15,s. per cwt. : they were to be left in the warehouse until he wrote for them. Some days afterwards, the plaintiff instructed the ^varehouseman to set apart two of the pockets, which was done, and ;i card with the defendant's name was placed on them, but they were not transferred in the warehouse books. Subsequently the plaintiff sent the defendant an invoice showing the weights, but there was nothing to show that ~lhe defendant had abandoned his right to see that the bulk corresponded with the sample, or to i^eo them" weighed, and the Court held the property had not passed : the defendant had neither assented to the vendor's approi)riation, nor given the vendor authority to appropriate for both. In ,SY(«'fc V. luglis (k), in 1SS2, the question was .considered at great le ngth, whether th e property in bags of sugar had passed I ;') Srr. lUoah(x \. XicJiuhim, j,o>.l, p. IGj ; 10 C. B. X. S. 290 : o-l \7^T~V~V (q) finnphillx. Mr.rxni Docl^K, 14 C. B. N. S. 412. (h) Ex parte v. I'.rirsim, Jn rr Wilhhire Iron C>., 3 Ch. App. 41:] ; 37 L. J. Ch. 554. (0 Jinnrr v. Sniilli, L. R. 4 C. P. 270. ' (!:) S'oct Y. /«.///,■, ; 34 L. J. Ex. 212. (p) Holroyd v. Marshall, 10 H. L. R. 191 ; 33 L. J. Ch. 193. (1973) 102 WHAT AMOUNTS TO A BARGAIN AND SALE. [Pt. II. household furniture, &c., then being or thereafter to be upon his dwelling-house at Reedham or elsewhere in the United Kingdom. Subsequ3ntly one of his creditors seized goods in the house, and a horse and gig standing at livery at Yarmouth, all of which had been purchased after the agreement. The Court held that the agreement did not attach on those goods, for they had never become specific as in Holroyd v. Marshall (p). Leatham v. Amor (r), in 1878, was a very similar case to Holroyd V. Marshall (s). In the case of In re Count UEpineuil (t), in 1882, Fry, J., held that a charge in favour of a creditor of all present and future per- sonality was effectual only to charge the property which belonged to the debtor at the date of the agreement (m).] There may possibly be some doubt whether the true principle of those cases, which settle that goods dispatched by the vendor are the property of the purchaser, is, that the vendor has by dispatching them, exercised and determined a right of election, though it is difficult on any other principle to reconcile them with those cases which decide that a delivery to a carrier, and a receipt by him, do not make a contract good within the Statute of Frauds. For if the principle were that the carrier had authority from the purchaser to [*139] consent to an appropriation, he would surely have *authority also to accept the goods within the meaning of the statute, but that it is settled he has not (x). [That the dispatch does vest the property in the purchaser] there can be no doubt. As long since as 1803, Lord Alvanley, in deliver- ing the judgment of the Court, in Dution v. Solomonson (y), said, " When this point was first mentioned I was surprised, for it ap- " peared to me to be a proposition as well settled as any in the law, " that if a tradesman order goods to be sent by carrier, though he " does not name any carrier, the moment the goods are delivered to " the carrier it operates as a delivery to the purchaser, the whole " property immediately vests in him: he alone can bring an action " for any injury done to the goods, and if any accident happen to the " goods it is at his risk. The only exception to the purchaser's " right over the goods, is, that the vendor, in the case of the former " becoming insolvent, may stop them in transitu. On this part of " the case, therefore, the Court has never entertained any doubt." It is to be observed that Lord Alvanley joins two propositions to- "(Y) /''<""■"■ ^'- Tiadow, in ly-sj, u (^JirD7l5io7T-rQ7BT~bTl36! (r) Leatham \. Amor, 47 I.. J. Q. B. 5^1. (i) Holroyd v. iFarshall, 10 H. I.. R. 191 ; ?,\\ L. J. Ch. V.)?,. See .ilso Lazarus V. Andradr, in 1SX(I, r> C. P. D. 318 ; 49 L. J. C. P. 847 ; Clemcnis v.- Jfatlhcws, in 1H83, 11 Q. P. I). 808 ; 52 L. J. Q. P. 772: A'«ccs v. Burlaw, in 1884, 11 Q. B. D 610; 12 Q. P. D. 4:5(J. (0 III re Couiil D'Epiiiruil, 20 Oh. D. 7.",8. (ti) In rr PaiKiina. Nnn Zealand and Australian Royal Mail Co., in 1870, 5 Ch. Ap. 322 ; 39 L. J. Ch. 462. [x] Antr, p, 22. (y) Dution v. SuUmionson, 3 B. & P. .')82. (1974) Ch. /.] SUBSEQUENT APPROPRIATION. 103 gether (both perfectly undoubted law): that whea goods are by agreement to be sent by a carrier, the delivery of the goods to the carrier appropriates the goods to the purchaser, and vests the prop- erty in him, and that it is a delivery to the purchaser; that the goods are both sold and delivered. In most of the cases both of these things existed; at the moment of time when it became neces- sary to determine whose property the goods were, they were both Ecld and also delivered, but to the carrier, and therefore only in transitu: but it was not so in Fragano y. Long{z), [where the goods were appropriated, but were still in the hands of the ven- dor's agents]. There was in that ease an objection made that the property remained in the vendor, because he and his agents still re- tained the possession of the goods, so as never to have parted with his rights as an unpaid vendor. Bayley, J., expressly says that there might be a difdculty as to that, if the *vendor and his [*140] shipping agents were setting up an adverse interest, but not in the present case. The decision, therefore, in that case was, that the goods were bargained and sold, and that it was not material to in- quire whether the iransitus had- commenced or not. This is not a merely theoretical distinction: a trader who receives an order for goods of a particular description, to be dispatched by sea, very of- ten with a view of preserving his lien, has the bills of lading made out to his own order, so as to secure that the goods shall not be deliv ■ ered till paid for, and it is worth consideration under what circum- stances by doing so he prevents the shipment operating as an appro- priation of the specific goods, and so retains in himself the general property, and consequently the liability to loss during the Toyage. If the reason why the delivery of the goods to the carrier appro- priates them to the contract of sale and vests the property in the purchaser, is that the carrier is an agent of the purchaser, having authority to receive the goods for him, it follows that when the ear- lier receives the goods under a contract with the vendor, by which he agrees to keep possession of the goods subject to the vendor's orders, the property is not transferred, for in such a case it is clear that the carrier does not receive the goods as an agent for the purchaser. But this consequence does not necessarily follow, if the reason why the delivery of the goods to the carrier appropriates the goods and vests them in the purchaser, is that it amounts to a determina- tion of a right of election given to the vendor by the contract un- der which he is to dispatch the goods. The vendor's attempt to re- tain a right of possession may sometimes prevent the delivery to the carrier from operating as a determination of the vendor's right of election, but it will not necessarily do so. Whether it does or not must depend upon the intention with which they were delivered, and the terms of the contract by which the vendor is bound to dis- patch them. (z) Fragano v. Long, 4 B. & C. 21U, ante, p. 131. (1975) 10-1 WHAT AMOUNTS TO A BARGAIN AND SALE. [Pi. II. In some cases the terms of the agreement of sale prevent any [*141] question from arising. Thus in Strain v. Shepherd (a), *in 18^3-!, at Nisi Prius, before Parke, B., in which the vendor sued the carrier for the loss of the goods, the learned Judge told the jury- that if they believed the evidence that the goods were sent on a con- tract of sale if approved of, if not to be returned, the plaintiff was the proper party to sue. It is quite obvious that the circumstance of a carrier intervening in this case was purely accidental, and had nothing to do with the vesting of the property. If the vendor had literally with hia own hands delivered them into the hands of the purchaser on, those terms, the property must have remained in the vendor until the purchaser had approved of the goods, or failed to return them. In all cases the terms of the agreement are of great consequence, for the first question is, whether the goods have been appropriated pui'suant to the authority conferred by the agreement, so as to vest the general property in the purchaser, and then it may become a farther question how far the terms with which the vendor has clog- ged the appropriation are binding or not, and that too must de- pend upon the terms of the agreement. [Now in considering whether an intention to pass the propert)' existed in any contract, it will be well to contrast two classes of cases, firstly, where the vendor delivers direct to the vendee or his agent without the intervention of a third person acting as the agent of neither but as a carrier, and secondly, where such a person does intervene. For the vendor's interest in these two cases may prob- ably not be the same. If no carrier intervenes, the iinpaid vendor until he has parted with the possession, has at least his lien for the purchase money, and may withhold the goods until he is paid, notwithstanding that the property may have passed, and may have by the terms of the contract with the vendee, a further right to retain possession until the happening of some event, and this also although the property may have passed, and, therefore, in the majority of cases it is to his advantage to have passed the property, and with it the risk. [ *142] In the case of Sweeting v. Turner (6), in 1S72, *Blackburn, J., said, "It is thoroughly established that by the English law, "where a bargain and sale is completed with respect- to goods, and '• everytlnng to be done on the part of the vendor before the pro- '• perty should pass has been performed, then the proper! y vests in "the pui-chaser, although the vendor still retains his lien, the price '•of the goods not having been iiaid; and any accident happening " to the things subsequently, unless it is caused by the default of " vendor— any calamity befalling them after the sale is completed " —must bo borne by the purchaser, and, by parity of reasoning, " any benefit to them is his benefit, and not that of the vendor." («) ,s'ir;(/ji w Shepherd, 1 M. & R. ■2-2:;. (i) Snurtiiiy v. Turne,-, L. K. 7 Q. B. 310 ; 41 L. J. (,|. B. r,s. (lilTdl Ch. /.] RESERVATION OP THE JUS DISPONENDI. 105 But where a carrier intervenes, the vendors interest is rather the other way. If the vendor delivers the goods into the carrier's hands, and the property has passed, his lien (c) is gone, for he has parted with the possession to the carrier, and any right given him by contract to withhold possession is not one of which the carrier can, acting on the vendor's behalf, avail himself, and the vendee has the right to demand the goods from the carrier. In this case, therefore, it is to the vendor's interest that the property should not have passed. When, therefore, the vendor delivers the goods to the carrier in- structing him to deliver them to him, the vendor, or his agent, at the other end of the journey, the j)resumption is that the property was not intended to pass. The commonest case of this sort is where the shipper or consignor takes a bill of lading from the captain making the goods deliverable to himself or his agent. This reservation of control over the goods by retaining the property in them appears to be identical with that which Mr. Benjamin speaks of as the reservation of the jus disponendi. The vendor cannot protect himself where the property *has [*143] passed, by saying to the carrier, " do not deliver the goods to the vendee, but deliver them to my agent," and by the carrier agreeing to this; such a contract might be good between the carrier and the vendor, but it could not deprive the vendee of such rights as the contract with the vendor has already given him, and the carrier would be a wrongdoer in withholding delivery.] It is probable that the law would be the same if the goods were delivered to a carrier by land, for as far as regards the vesting of the property, the bill of lading has no peculiar legal effect: it is a direction to the shipowner as to the person to whom he is to give the goods, and a contract on his part to give them according to that direction, and has precisely the same effect on the vesting of the property, that a verbal agreement to the same effect would have had. It is very strong evidence of what the shipper intended in shipping the goods, but his intention has not the more effect bo- cause it is expressed in the shape of a bill of lading. If the vendor and the purchaser have come to the binding agreement, that the purchaser is to have forthwith certain goods, the vendor cannot without the consent of the purchaser, add fresh conditions; and if he orders the actual holder to keep back the goods till the pur- chaser has done something, which he is not bound to do, the order is void, and the holder obeys it at his peril, and it is no matter that the holder is a shipowner, and the order in the shape of a bill of lading. The purchaser has a right to say to the shipowner or captain, "they are my goods, give me them; if you have made (e) A lien is a personal right which cannot he parted with, and continues only so long as the possessor holds the goods, per Parke, B. , in Lecjg v. Evans, in i840. 6 M. & W. 42. See also Donald v. Suckling, in 1866, L. R. 1 Q. B. 603; 35 L. J, Q. B. 232. (1077) 106 WHAT AMOUNTS TO A BARGAIN AND SALE. [Pt. II. "promises to the shipper inconsistent with my rights, look you to "that." But the case is quite different if the original bargain ren- dered either the passing of the property or the right of possession conditional. The vendor then has a right to insist as against the purchaser on the fuliilment of those conditions contained in the original bargain, and the form of the bill of lading is of great weight as evidence, to show whether he insists upon that right. Neither is there any peculiar legal effect in an invoice, but the terms of the invoice afford very strong evidence of what the terms r*144j of the agreement of sale are, and *also of the vendor's in- tention to appropriate the specific goods, and the question, whether the directions not to deliver are contrary to the bargain, is, there- fore, often decided by the terms of the invoice as a matter of evi- dence. Bearing these matters in mind, it is not difficult to recon- cile Coxe V. Harden (d), with Brandt v. Boivlby (e), though at first glance they seem directly opposed to each other. [If, for example, the vendor had contracted to sell 1,000 qrs. of wheat, and had put 1,000 qrs. on board, it is a question of fact whether those 1,000 qrs. had been ascertained or specified as the subject of the contract: if they have, then the vendor can tender them, only, and the vendee is bound to accept them, only. But it is a further question of fact whether the property has passed. It will pass unless the vendor has shown that it was his intention that it should not pass. Then comes the question whether the vendor had any right or power to give effect to that intention. That must depend on the contract. The vendor cannot vary it at pleasure. If the intention of the parties to be gathered from the terms of the contract was, that the property should pass at once, or when placed on board, or when delivered at a certain port, or where bills drawn against the goods had been accepted, or when bills drawn against the goods had been paid, or on the happening of any other event, it is not in the vendor's power to vary the contract, or, as it is sometimes expressed, to vary the consignment, and to say that the property shall pass at some time other than that agreed upon. But if he has the right to give effect to that intention consistently with the contract, he can do so; and the question is one of fact, Did such an intention exist? Of this the terms of the bill of lad- ing are very strong evidence. But all cases of consignment are not from a vendor to a vendee. In many cases a consignor consigns to an agent, and not to a vendee, and raises money on the con&ign- [*145] ment by drawing on his agent, negotiating the bills with *a bank, and pledging the bills of lading with the bank as security; and this he may do on any terms he may choose, for he is consign- ing to his own servant. A letter to the Bank authorising them to sell the consignment in case the bills are not paid is the ordinary letter of hypothecation (d) C,'j.n: V. Harden, 4 East, 2\1, poxl, p. 146. (e) Brandt v. Bvwlby, 2 B. & Ad. ^To.l, post, p. 150. (1078) Ch. /.] RESERVATION OF THE JUS DISPONENDI. 107 If the letter authorises the Bank to sell all consignments for which bills of lading may in future come into their hands, it is called a general letter of hypothecation.] There are two early cases on this subject which seem to have been decided upon the same principle. In each of them the Court decided that both the property and right of possession were vested in the purchaser and consignee, whilst in Brandt v. Bowlby ( /) the judgment of the Court was, that neither was vested, and in Wilms- hurst v. Bowker (g), that only the right of property was vested; but the principle seems to be the same. The Court seem to have con- sidered the correspondence and evidence carefully to see whether the goods were shipped with the intent to appropriate them to the ' agreement, and then to have considered whether the vendor, under the agreement, had a right to retain the possession, for the facts showed beyond a doubt that he had a wish to do so. The first of those cases was Walley v. Montgomery (h), in 1803. The facts, as reported, were, that Walley, at Liverpool, gave Schu- mann and Co., of Memel, an order for timber. Schumann and Co. wrote to him on the Ist of May to say they had chartered on his account the ship Esther; and on the 15th May they wrote him another letter, enclosing a bill of lading and an invoice, and inform- ing him that they had drawn on him at three months for the price of the timber ; none of those letters are set out in the report, which greatly lessens its value. The invoice was of this tenor : " Memel, 9th May. Invoice of a cargo of timber shipped by order and for account and risk of Mr. T. Walley, at Liverpool, in the Esther;" and the bill of lading was "to order or *assigns, [*146] he or they paying freight," and was indorsed in blank by Schu- mann and Co. Schumann and Co. sent their correspondent, Mont- gomery, another bill of lading, under which and by their directions he got possession of the cargo. Walley, who was not insolvent, demanded the goods of Montgomery, and offered to accept the drafts drawn on him by Schumann and Co., but Montgomery re- fused to let him have them unless he would pay ready money. Walley would not pay ready money ; he did not tender the freight which Montgomery paid. Montgomery sold the cargo, and Walley brought trover against him, and the question was, whether Walley had the right of property and possession in the cargo or not. Montgomery seems to have been treated by the Court as identified in interest with Schumann and Co. Lord Ellenborough, at the trial, looking at the correspondence and the bill of lading only, thought Schumann and Co. bad appropriated the goods to be Walley's if he accepted the bills and paid the freight, and not till then. He had offered to accept the bills, so that the first condition was fulfilled ; but he had not offered to pay the freight, and therefore he was non- (/) Br.andt v. Bowlby, 2 B. & Ad. 932, post. p. 150. iff) WilmshurstY. Bowker, 7 M. & G. 883; 8 Scott, N. E. 57\, post, p. 152. (h) Walley v. Montgomery, 3 East, 585. (1979) 108 WUAT AM0L:XTS to a BARUAIX and bALE. [Pi. II. suited. The King's Bench granted a new trial. Lord Ellen- borough said that he should have retained his opinion had it not been for the invoice, to which his attention had not been called at the trial ; he thought that showed that the appropriation was absolute. Grose, J., said, " The defendant was the mere agent of '■ Schumann and Co., out of whom the property was divested by " the bill of lading and invoice, and the delivery to the captain for ■' every purpose except that of stopping in transHa. * '■ * '• No man can make another his debtor against his will * * * " there was no duty in the plaintiff to pay the defendant the freight, ■• because he was a io/f/esor; standing as Schumann and Co. ho '• was detaining the goods from the plaintiff' after having passed " the property to him.'' The other case was Co-fc v. Harden ( /), also in 1[. & G. 792. (x) Wilnnhun^i v. P.mfArr, 5 Bing. N.C. 541. (}/) Wihnslmrst v. Bmchr, in 1814, 7 JI. & G. 8S2 ; 8 Scott, N. E. 571 : 12 L. J. C. P. 475. . . > (z) EUershaw v. J[ar/niac, G F„x. 570. (1984) Ch. /.] RESERVATION OF THE JUS DISPONENDI. 113 until 1851. The plaintiff, a merchant in Leeds, contracted with J. and J. Cortazzi, who carried on business in London and Odessa, to buy a cargo of linseed. The Odessa partner, before any linseed had been shipped, drew two bills on the plaintiff on account of the linseed, which were accepted by the plaintiff and paid when due. The plaintiff chartered the ' Woodhouse,' and sent her to Odessa to take on the cargo. When she was loaded the Odessa partner wrote to his London partner, " With regard to your sales of linseed, Mr. Ellershaw will receive a part by the 'Woodhouse.'" He then obtained a bill of lading making the cargo deliverable to order or assigns. The Odessa house being in difficulties, indorsed the bill of lading for value to the defendants, who claimed the cargo, as holders, on the arrival of the ship at Hull. The Court, consisting of Lord *Abinger, G. B., and Barons Parke and Alderson, [*154] held that the property had not passed to the plaintiff. Wait V. Baker (a), in 1848, is often cited as a leading case on this subject. The defendant, who was a corn factor at Bristol, con- tracted by letters with Lethbridge, a corn factor at Plymouth, to buy from him 400 to 500 qrs. f. o. b. of barley, at Kingsbridge or neighbouring port, for cash, on handing bills of lading, or accept- ance at two months date." Lethbridge was informed, in answer to inquiries, that he was to charter a vessel, and accordingly he char- tered the ' Emerald.' The captain signed a bill of lading making the barley deliverable at Bristol, to the order of Lethbridge or as- signs, freight as per charter. Lethbridge then went to Bristol, and early in the morning called at the defendant's office, and there left the invoice and an unindorsed bill of lading. He called again later on in the day, when some dispute arose, and although the defen- dant said he accepted the cargo, and offered topay cash, Lethbridge declined, and took away the bill of lading and indorsed it to the plaintiffs for value. When the 'Emerald' arrived the defendant obtained possession of part of the cargo. The Court held that the property had not passed to the defendant. Parke, B., after pointing out that although a delivery to a car- rier is, if nothing further takes place, a delivery to the vendee so as to vest the property in him, but that this was not such a case, said, " The delivery of the goods on board the ship was not a delivery " of them to the defendant, but a delivery to the captain of the ves- " sel, to be carried under a bill of lading, and that bill of lading in- " dicated the person for whom they were to be carried. By that " bill of lading the goods were to be carried by the master of the " vessel for and on account of Lethbridge, to be delivered to him in "case the bill of lading should not be assigned, and if it should, " then to the assignee. The goods therefore still continued in pos- " session of the master of the vessel, not as *in the case of [*155] " a common carrier, but as a person carrying them on behalf of " Lethbridge." (a) Wait V. Baker, 2 Ex. 1; 17 L. J. Ex. 307. 8 COJT. OF SALE. (1985) 114 WHAT AMOUXTS TO A BARGAIN AND SALK. [Pt. II. In Jenkyns v. Broivn (b), in 1849, the plaintiff, a merchant in London, instructed his agents, Klingender and Co., of New Orleans, to purchase corn. Klingender and Co. did so with their own money, and drew two drafts on the plaintiff. Klingender and Co. took the bills of lading, deliverable to themselves. They then sold the drafts to the defendants, and indorsed the bills of lading to them as security. After the sale of the drafts they sent an invoice to the plaintiff, stating that the corn was " consigned to order, by order, and for account and risk " of the plaintiff'. The bills were presented to the plaintiff for acceptance, and accepted, and, together with the bills of lading, were deposited by the defendants with bankers. On the day when the drafts became due the plaintiff called at the bank, demanded the bills of lading, and offered to take up the drafts. He was requested to call again nest day, as the drafts had been mislaid, but he did not do so. The drafts, when presented for payment, were dishonoured. The defendants sold the corn, and the Court was of opinion that the property did not pass to the plaintiff, Coleridge, J., in deUvering the judgment of the Court, saying, " that taking the bill of lading deliverable to their " own order was nearly conclusive evidence that the consignors did " not intend to pass the property to the consignee." Turner Y. The Truslecs of the Liverpool Docks (c), in 1851, was very similar to EUershaiv v. Magniac (d). The consignees sent their own ship, and the consignors took the bill of lading " unto order, or to our assigns, he or they paying freight for the said goods, viz., for cotton in round bales, cotton in square bales, no- thing being owners" property." The invoice stated the cotton to have been shipped "by order and for account " of the vendees, who were at the same time requested to effect insurances. [*ir)G] *Patterson, J., in delivering the judgment of the Court, said, "There is no doubt that the delivery of goods on board the " purchaser's own ship is a delivery to him, unless the vendor pro- ■'tects himself by special terms, restraining the effect of such de- " livery. In the present case the vendors, by the terms of the bill " of lading, made the cotton deliverable at Liverpool to their order " or assigns, and there was not therefore a delivery of the cotton " to the purchasers as owners, although there was a delivery on "board their ship." In Kg!j v. Gotesuxjrth (e), in 1852, Kilgour & Leith, of Glasgow, wished to purchase handkerchiefs from the plaintiffs at Madras. The defendants, at the request of Kilgour & Leith, wrote to the plaintiffs saying, that they, the plaintiffs, might draw on them for the price of the handkerchiefs on enclosing bills of lading. Ac- cordingly the plaintiffs sent a bill of lading, which made the hand- (h) Jtnhyns v, 77rf»r„, 11 Q. B. 49:; ; 19 L. J. Q. B. 286. {c) Turner v. The Tnisfrt-s of the Liverpool Docks, 6 Ex. 543; 20 L. J. Ex. 393. (d) FUershawY. Maqniac, 6 Ex. 570. (e) Key v. Coksworth, 7 Ex. 595 ; 22 L. J, Ex. 4 (1986) C%. /.] RESERVATION OF THE JUS DISPONENDI. 115 kerchiefs deliverable to the defendants or their assigns, together ■with an invoice, which stated them to be "on account and risk" of Kilgour & Leith. Kilgour & Leith stopped payment being indebt- ed to the defendants. The defendants obtained possession of the , handkerchiefs under the bill of lading, but declined to accept the drafts, which had been sent by the plaintifPs to their agents, and by them presented to the defendants for acceptance. The defen- dants having sold the goods, this action was brought to recover the proceeds as money received for the use of the plaintiffs. The plain- tiffs were non-suited, and the non-suit was upheld; the Court hold- ing that the acceptance of the bills was not a condition precedent to the passing of the property, and that it had passed to Kilgour & Leith. It should be noticed here that it was not decided here that the plaintiffs could not have recovered damages for not accepting the drafts, but it was decided that this form of action would not lie. It was argued for the plaintiffs, that the acceptance of the *billswas a condition subsequent, which, not being perform- [*157] ed, .the property was to revert to the plaintiffs, and that it was a question of fact whether the contract was a conditional one; but the Court held that it was an absolute sale, and that there was no question for the jury. There seems to be no reason why parties should not agree to such a condition subsequent, but it must of course be proved. In Shuster v. McKellar (/), in 1857, the plaintiffs had about 100 • tons of spelter lying in Hays' warehouse, which Coles & Co. were desirous of pm-chasing and shipping to Calcutta. A lighterman, instructed by Coles & Co., obtained from the plaintiffs a delivery order for the spelter on Hays, and gave the plaintiffs an acknowledgment that he had received the delivery order from them, and that he would hand them the mate's receipts. The mate's receipts acknowledged the spelter to have been received from the lighterman, and they were handed to the plaintiff's. The usual course of business was for Coles & Co. to pay the plaintiffs for the goods, tliey then had the mate's receipts Jianded to them, which they attached to the bills of lading, and the bills of lading were then signed. But in this case Coles & Co. fraudulently procured bills of lading to be signed in their favour, and pledged them. The defendants, the ship-owners, refused to deliver the spelter to the plaintiffs, but the Court held that the property had not passed, and upheld a verdict for the plaintiffs. The case of Sheridan v. Tlie New Quay Co. (g), in 1858, was a very complicated one. It was an action by one who claimed to be a sub-vendee against a railway company for non-delivery. The facts appear to have been that the vendor, Donaldson, took the bill of lading, making the goods deliverable to the vendee, and for- (/) Shuster v. McKellar, 7 E. & B. 704; 26 L. J. Q. B. 281. (-. Lindsay, 1 Q. B. D. 348 ; 2 Q. B. D. 96 ; 3 Ap. Ca. 459 ; 45 L. J. Q. B. 381 ; 46 L. j. Q. B. 233 ; 47 L. J. Q. B. 481. See also Mitchell v. Lepage, In 1816, Holt, N. P. 253 ; Boulton v. Jones, 2 H. & N. 564 ; 27 L. J. Ex. 117 ; Loeschman v. Machin, in 1818. 2 Stark N. P. C. 311. in) 3 Ap. Ca. 463 ; 47 L. J. 483. (1995) 124 WHAT AMOUNTS TO A BARGAIN AND SALE. [Pt. II. "turn out to be certain infirmities in the title. If he purchases "the chattel in market overt, he obtains a title which is good " against all the world, but if he does not purchase the chattel in " market overt, and if it turns out that the chattel has been found " by the person who j^rofessed to sell it, the purchaser will not " obtain a title good as against the real owner. If it turns out that the " chattel has been stolen by the person who has professed to sell it, "the purchaser will not obtain a title. If it turns out that 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, there the purchaser will obtain a good title, even al- " though 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, because these circum- " stances so enabling the original owner of the goods, or of the " chattel, to reduce the contract and set it aside will not be allowed " to interfere with a title for valuable consideration obtained by some "third party during the interval while the contract remained unre- duced." The House held that there bad been no intention on the part Lindsay and Co. to pass the property to Blenkarn, and therefore of Messrs. Gundy had no title to the goods (o). With this case may be contrasted those cases where an agent "entrusted" gave a good title by virtue of the Factors Acts (p). [*170] *To the general rule that a person cannot give a better title than he has, there are a few exceptions. A person having a gold coin or bank note in his possession, to which he has no title whatever, may give a good title to it to a stranger. The law on these exceptions will be found in the notes to Miller v. Race (q). And a person purchasing in market overt gets a good title until the conviction of the thief. The law on this subject is continued in Ghitty on Contracts and in Benjamin on Sales (r).] (o) 8ee also Hiqgons x. Biirtim, in 1H.5~, 2(> L. J. Ex. ;!J2 : and Cooper y. Willo- matt, in 1H45, 1 C. B. 672 ; 14 L. J. C. 1'. '219. (p) Babies v. Siatituon, 4 B. & K. 270; :!2 L. J. Q. B. 2S1 ; Heymanv. FIcu-ler, 13 C. B. N. S. 519 ; :!2 L. .T. C. P. i:« ; Cole v. X 11'. Bank, L. R. 9 C. P. 470; L. R. 10 f. P. -XA ■ 43 L. J. C. P. 194 ; 44 L. J. C. P. 233 ; Viewers a. Sertz, L. R. 2 Sc. Ap. 113 ; Johnson, v. Credit Lijonaise, L. E. 2 C. P. D. 224 ; L. R. 3 C. P. D. .32 ; 44 L. J. C, P. 241. ^ee post, p. 420. (q) Miller v. PMce, 1 Sm. L. Ca. 475. (r) See also Walker v. Matthews, 8 Q. B. D. 109 ; 51 L. J. Q. B. 243. (1996) (125) *CHAPTBR II. [*171] CONDITIONS PRECEDENT TO THE PASSING OP THE PEOPEETY IMPLIED BY LAW. When the parties are agreed as to the goods on which the agree- ment is to attach, the presumption is, that the parties intend" the right of property to be transferred at once, unless there bo some- thing to indicate a contrary intention. An agreement, therefore, concerning the sale of specific or ascertained goods, is prima facie a bargain and sale of those goods. But this arises merely from the presumed intention of the parties, and if it appear that the parties have agreed, not that there shall be a mutual credit by which the property is to pass from the vendor to the purchaser and the pur- chaser is to be bound to the vendor for the price, but that the ex- change of the money for the goods shall be made on the spot, no property is transferred, for it is not the intention of the parties to transfer any. In other words, a contract for the sale of specific chattels, is primd facie a contract to transfer the property, in con- sideration of the purchaser becoming bound to pay the price ; but if the parties choose so to agree, it may be a contract to transfer the property, in consideration of the purchaser actually paying the price, and not merely of his engagement so to do. In the earlier English law books, it seems to bo assumed that all agreements are of this ready money character unless there is some- thing to indicate a contrary intention. Thus in Nay's Maxims (a), it is said, "In all agreements there must be gwoidpj'o gito presently, " except a day be expressly given for the payment, or else it is no- " thing but communication. * * * If the bargain be that you shall " give me lOZ. for *my horse, and you gave me one penny [*172] " in earnest, which I accept, this is a perfect bargain, you shall " have the horse by an action on the case, and I shall have the "money by an action of debt. If I say the price of a cow is 41., " and you say you will give me 4Z., and do not pay mo presently, "you cannot have her afterwards without I will, for it is no con- " tract; but if you begin directly to tell your money, if I sell her to " another, you shall have yoiu: action on the case against me. * * "If I sell my horse for money, I may keep him until I am " paid, but I cannot have an action of debt until he be delivered, "yet the property of the horse is, by the bargain, in the bargainee "or buyer; but if he presently tender me my money, and I refuse " it, he may take the horse, or have an action of detinue; and if (a) Noy^s Maxims, pp. 87, 88, 89. (1997) 12G CONDITIONS PRECEDENT. [Pt. II. " tho horse die in my stables, between the bargain and delivery, I " may have an action of debt for the money, because by the bargain " the property was in the buyer." Tho part payment, or naming a day for payment, clearly in- dicates an intention in the parties that they should have some time to complete the sale by payment and delivery, and that they should in the meantime be trustees to each other, the one of tho property in the chattel, the other of the price; and Noy was of opinion that the law, in such a case, executed their intention, and transferred the property at once subject to tho vendor's rights. In the case which he puts of the cow, there was nothing to indicate such an intention to give time, and he seems to think that it was to be presumed, that such an intention did not esist. This presumption was, probably, reasonable and just in the simplicity of early times, but with the change of customs the presumption also has changed, and in modern times (at least in commercial transactions), the parties are taken to contemplate an immediate transfer of the property in the goods, and an immediate obligation to pay the price, with a reasonable time for delivery and payment, unless there be something to show a different intention. " Generally speaking," said Bayley, J. in Simmons v. Swift [b), "where a bargain is made for the purchase [*173] "of *goods, and nothing is said about payment or delivery, " the property passes immediately, so as to cast upon the purchaser " all future risk, if nothing remains to be done to the goods, al- " though he cannot take them away without paying the price." But where the presumption is rebutted, either from the nature of the transaction, or from other circumstances that show that the transaction is an exchange for ready money, the modern law does not differ from the ancient. Thus in the case of Bussey v. Barnett (c), in 1842, the Excheqiier held, that where goods were sold and delivered in a retail shop, the nature cf the transaction showed, that the goods and money were to be exchanged simultaneously, and, consequently, that proof that the money had then been paid, amounted in legal effect to proof that the purchaser never was in- debted to the seller, and not, that having been indebted, he had paid the debt. In Bishop v. Shilitto (d), in 1819, the plaintiff brought an action of trover for some iron which had been delivered by him to the de- fendant under a contract, by which the defendant was to take cer- tain bills out of circulation, which had not been done. The defen- dant's counsel objected, that the property had been transferred, and that tho proper remedy was by an action on the contract. Chief Justice Abbott, however, left it to the jury to say, whether it was part of tho agreement that the delivery of the iron and the re-de- livery of the bills, were to be contemporaneous; and the jury hav- (b) Simmons v. Swift, .> B. & C. PG2, 'e) Bu>ssrij V. Bnrnett, 9 M. & W. 312. d) Bishop V. Shilitto, 2 13. & A. 329, n. (1998) i: Ch. II!\ CONDITIONS PRECEDENT. 127 ing found that it was, the Chief Justice, and afterwards the full Court, held the plaintiff entitled to recover. However, except under particular circumstances, the parties to an agreement concerning the sale of specified chattels are taken to in- tend an immediate transfer of the right of property from the vendor to the purchaser, and the law fulfils their intention, and transfers the right of property accordingly. But there is nothing to prevent the parties from coming to an agreement that the property shall be transferred when *and not till certain conditions have been [*174] performed; when the agreement is of that nature, the law fulfils the intention of the parties. The property is not transferred be- fore the performance of the conditions; if nothing has occurred in the meantime to prevent it, the property is transferred as soon as the conditions are performed. Where, therefore, the agreement is for the sale of goods, and also for the performance of other things, it becomes important to ascertain whether the performance of any of those things is meant to precede the vesting of the property or not. This is a question of the construction of the agreement, and it may often happen that the parties have expressed their intention in a manner that leaves no room for doubt (e); when, however, they have not done so in express terms, the intention must be collected from the whole- agreement, and the Courts have since the beginning of this century adopted for this purpose some rules of construction which are, per- haps, some of them a little artificial. These rules, of which there is no trace in the Reports before the time of Lord Ellenborough, are laid down since the time of that learned judge as rules of English law, in terms nearly equivalent to those in which they are laid down as rules of civil law. They ase twofold: the first is that where, by the agreement, the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is to be bound to ac- cept them, or, as it is sometimes worded, into a deliverable state, the performance of those things shall (in the absence of circum- stances indicating a contrary intention) be taken to be a condition precedent to the vesting of the property. The second is, that where anything remains to be done to the goods for the purpose of ascertaining the price as by weighing, measuring, or testing the goods where the price is to depend on the quantity or quality of the goods; the performance of those things, also, shall be a condition precedent to the transfer of the property, although the individual goods *be ascertained, [*175] and they are in the state in which they ought to be accepted. The first of these rules seems to be founded in reason. In gen- eral, it is for the benefit of the vendor that the property should pass ; the risk of loss is thereby transferred to the purchaser, and (c) Seejjosi, p. 196. (]999) 138 CONDITIONS PRECEDENT. [Pi. II. as tho vendor may still retain possession of the goods, so as to re- tain a security for payment of the price, the transference of tho property is tcr the vendor pure gain. It is, therefore, reasonable, that where by the agreement the vendor is to do something before he can call upon the purchaser to accept the goods as correspond- in" to the ao-reement, tho intention of the parties should be taken to°be, that the vendor was to do this before he obtained the benefit of the transfer of the property. The presumption does not 'arise, if the things might be done after the vendor had put the goods in the state in which he had a right to call upon the purchaser to ac- cept them, and would be unreasonable where the acts were to be done by the buyer, who would thus be rewarded for his own default. The second rule seems to be somewhat hastily ado^jted from the civil law, without adverting to the great distinction made by the civilians between a sale for a certain price in money, and an ex- change for anything else. The English law makes no such distinc- tion, but, as it seems, has adopted the rule of civil law, which seems to have no foundation except in that distinction (/). In general, the weighing, &c., must, from the nature of things be intended to be done before the buyer takes possession of the goods, but that is quite a different thing from intending it to be done before the vest- ing of the property, and as it must in general be intended that both the parties shall concur in the act of weighing, when the price is to depend upon the weight, there seems little reason why, in cases in which the specific goods are agreed upon, it should bo supposed to be the intention of the parties to render the delay of that act, in which the buyer is to concur, beneficial to him. "Whilst tho price [*17G] remains unascertained, ''■■the sale is clearly not for a certain sum of money, and therefore does not come within the civilian's definition of a perfect sale, transferring the risk and ^in of the thing sold ; but the English law does not require that the consid- eration for a bargain and sale should be in moneys numbered, pro- vided it be of value. Still both the rules seem to bo now firmly established as English law, though, as has been already stated, only [since tho beginning of this] century, and then, it seems, adopted directly from the civil law. The reader will find some extracts from Pothier in a subse- quent part of this work, and by comparing them with tho language of the Judges in tho cases, ho will judge of tho accuracy of this opinion. The rules now rest upon tho authority of the English decided cases, and cannot be questioned on tho ground of their re- cent introduction into English law. Tho first case reported in which these rules are alluded to as rules of English law, is that of Hanson v. Meyer (g), as recently as the year 1805. The facts of that case were, that Meyer Laving (/) See pnsi, p. 242, for further rcBiarks on this point, and page 252. ((?) Hanson v. ilfijcr, 6 East, 614. (2000) . Ch. II.\ RULES TO ASCERTAIN' TKE IXTEXTION. 129 sold the whole of a parcel of starch in a warehouse at (SI. per cwt. directed the warehousemen to weigh and deliver the starch. Part of the starch was weighed and delivered, but before they had weighed the rest the purchasers failed, and Meyer, who was unpaid, countermanded the order to the warehousemen and took away the unweighed starch, and the assignees of the bankrupt purchasers brought an action of trover against him for so doing. The Court of King's Bench decided in favour of the defendant. The judg- ment of the Court was delivered by Lord Ellenborough, who ob- served, that by the terms of the particular contract, the price was made to depend upon the weight. " The weight, therefore, mnst " be ascertained, in order that the price may be known and paid, " and unless the weighing precede the delivery, it can never for " those purposes efPectually take place at all." The judgment was carefully worded, so as to decide no more than that this made the *weighing a condition precedent to the purchaser's right to [*177] take possession, or as Lord Ellenborough worded it, their ''complete 23resent right of property ;" but though not deciding anything as to the vesting of the general property in the purchasers, it was an indication of the opinion of the Court of King's Bench. The nest case was Hinde v. Whitehouse (h), in 1807, a year later and in the same Court. There sugar lying in a bonded warehouse was sold by auction, on conditions of which the material part, as far as regards this point, was as follows : "The highest bidder to be the purchaser; to be at the purchaser's risk from, the time of sale * *. The duties are not yet paid, but we intend pay- ing them to-morrow morning." The next morning was a holiday at the custom-house, and therefore the duties could not be paid, and before the custom-house opened again, the sugar was consumed by an accidental fire. The question in the cause was stated by Lord Ellenborough to be, "whether enough had taken place to change "the property, and make them the goods of the purchaser ;" and it was decided that the sale was complete " within the meaning of the parties to the conditions." "The words ' time of sale,' and 'high- ''est bidder to be purchaser,' "said Lord Ellenborough, "all evidently "relate to the transaction of selling at the time and place of auc- " tion, which was considered between them as effectual for the pur- " pose of transferring the property, and the consequent risk of loss "from the buyer to the seller, notwithstanding the intermediate "right of custody or lien upon the goods in the crown, until the "duty should be paid." This case, therefore, decided that the prop- erty passed, because such was the intention of the parties appearing by the agreement in that particular case. The rules were first applied as the ground on which the judg- ment of the Court turned in Rugg v. Min^tt (*), in 1809. There 7i) Hinde v. miitehmtur, 7 East, 553. i) Rugg v. Minett, 11 East, 210. 9 cox. OF SALE. (2001) 130 CONDITIONS PRECEDENT. [Ft. II. [*178] Rugg bought 2-1: lots of turpentine out of 27, *whicli were sold by auction. By the terms of the sale, 25 out of the 27 lots were to be 'filled up by the sellers from the other two, and so made to contain each a specified quantity, and the two last lots were then to be measured and paid for according to their contents; Eugg's purchase included these two lots of uncertain quantities. The three lots which were not purchased by Rugg were filled up and removed, so that Kugg was clearly entitled to have the whole of what remained, and no di£6.culty could arise from the subject- matter of the sale not being ascertained. Eugg paid aboat 2(J00?. on account of the turpentine; the greater part of the lots were filled up, and the others were being filled up, when, by an accidental fire, the whole was consumed, no part having been delivered. Kugg brought an action in the King's Bench to recover the 2000Z. he had paid on account, and the Court held that all those lots which were filled up before their destruction were the property of the pur- chaser ; and that the sellers were entitled to retain their price, but that the others remained the property of the seller, who must there- fore refund the price received on account of them. The test ac- cording to Lord Ellenborough, was whether " everything had been " done by the sellers which lay upon them to perform in order to "put the goods in a deliverable state." And Bayley, J., said that " if the sellers meant to relieve themselves from all further respons- " ibility they should have done what remained for them to do, " until that was done the property remained in them" (fc). This decision was soon followed by a variety of cases in which the principle was recognised (?), though in most of them it was not necessary for the decision of the case then before the Court, as in [*179] some 'the goods were not specified, *and in others the ques- tion was whether there was an actual delivery of the possession, as well as a change in the property ; but in one or two cases the deci- sion was on the very point. In Zagunj v. Funiell {m), in July, 1809, about two months after Riigg V. Mhictt (n), where the contract was for the sale of 289 bales of goatskins, containing five dozen in each bale, at the rate of 11. lis. del. per d(.)zen ; and it was proved that the custom of trade was for the seller to count the bales before delivery, and that these bales were all consumed by fire before they were counted. Lord Ellenborough, at Nisi Prius, decided, " that as the enumeration of (k) [The .Tiiil;;es who dcciikd this case appear from Ihc report to hare treated it rather as one governed by an inflexible rule of hi^\. than as one to be goi- erned by that rule only where the paities themselves have not indicated their intention; and probaldy this case and Simini»is v. Snift, ."> E. & C. s:>7, next page, would be explained if the point arose again ; see 'the judgments in Martineiiii t. Kitrliiiir/, L. E. 7 (,>. B. 450 and 4:.4; '41 L. ,7. Q. B. 227.] (I) ^Vnlhiix V. l-;nr:h, 13 East, 522; Busk v. Dacia, 2 M. & S. 396 ; Wilhersx. Lys, 4 Camp. 237. (m) Zagurji v, Furndl, 2 Camp. 2 10. («) Bugg V. Jlinelt, 11 East, 210. (2003) Oh. II.] RULES TO ASCERTAIN THE INTENTION. 131 " the skins was necessary to ascertain the price, this was an act " for the benefit of the seller, and as the act remained to be done " when the fire happened, there was not a complete transfer to the "purchaser, and the skins continued at the seller's risk." And in Simmons v. Swift (o), which was decided by the King's Bench, in 1826, after Lord Ellenborough's death, the Court held that where a particular specified stack of bark was sold at 9l. per ton, the property did not pass until it was weighed, for from the nature of the contract it was a necessary part of it that it should be weighed, and the concurrence of the seller in the act of weighing was necessary. Bayley, J., said that " generally speaking, where a " bargain is made for the purchase of goods and nothing is said " about payment or delivery, the property passes immediately, so as " to cast upon the purchaser all future risks if nothing further " remains to be done to the goods, although he cannot take them " away without paying the price. If anything remains to be " done on the part of the seller, until that is done the property is "not changed (p)." [In Logan v. Le Mesurier (g), in 1847, in the Privy Council, the sale was of a raft of red pine timber, lying at *the date of the [*180] sale up the river, to be delivered at Quebec, consisting of 50,000 feet more or less, to be paid for at OJd. a foot. The raft was floated to Quebec, where the greater portion of the timber was lost in a storm. The Court held that the property had not passed, and that the money paid could be recoverd back. After the storm the purchasers collected some of the timber, dressed and shipped it on their own account, but the Court held that this could not be taken as an admission that the property had passed, when the contract showed that it did not so pass (r). In Acraman v. Morrice (s), in 1849, the plaintiffs were the assignees in bankruptcy of Swift the vendor, a timber merchant ; the defendant was a timber merchant in London. The course of dealing between Swift and the defendant had been for the defendant to inspect the felled trees belonging to Swift and to measure and mark such portions as suited him. Swift then cut off the rejected portions and carried the rest at his own cost to Chepstow, where he delivered it to the defendant. At the time of Swift's bankruptcy the timber, the subject of this action, had been marked, measured, and paid for by the defendant ; but the rejected portions had not been cut off. The timber was then lying in the Forest of Monmouth, and the defendant, who had probably heard of Swift's bankruptcy, himself cut off those parts and carried the rest away. The Court held that the property had not passed. (o) Simmons v. Swift, 5 B. & C. 857. ' ~ (p) The note to Bugg v. Mindi, 11 East, 210, on the preceding page, seems to be applicable to this case also. . iq] Logan v. Le itlesitrier, 6 Moo. P. C. 116 ; 11 Jur. 1091. (r) See also Boswelt v. Kilborn, 15 Moo. P. C. C. 309 ; 8 Jnr. N. S. 433. (s) Acraman v. Mornce, 8 C. B. 449 ; 19 L. J. C. P. 57. (2003) ir;2 COXDITIOXS pkecedext. {Pt. II. In this and the preceding case, the action of the purchasers long after the contract would hardly be evidence of what was the inten- tion of the parties at the date of the contract. In Turleij v. Baic^^ (t), in 1863, the contract as found by the jury was for the sale of an entire heap of fire-clay at 2s. a ton, the buyer to take it away at his own expense, in his own carts, and to have it weighed at a certain machine. On three or four occasions the defendant had carted away portions r*181] of the heap and had had them weighed, but on the *last occasion he carted away a portion of the heap, and put it into a barge, and the plaintiff observing what was going on, followed, and by agreement the amount in the barge was taken at 22 tons. The judgment of the Court, consisting of Pollock, C. B., Bramwell and Channell, B. B., was delivered by Channell, B., who, after referring to the cases on this subject, and to the rule that the property does not pass where anything remains to be done to the goods for the purpose of ascertaining the price, said, " From a con- '• sideration of these cases, it appears that the principle involved in " therule above quoted is, that something remains to be done hj the ^■seller. It is, therefore, very doubtful whether the present case " comes within the principle of the rule. But, however that may " be, it is clear that this rule does not apply if the parties have " made it sirfficiently clear whether or not they intend that the '■ property shall pass at once, and that their intention must be " looked at in every case." The Court held that in this case, that intention had been expressed, and that the projierty had passed. In Kershaw v. Ogdoi {u), in 1805, the facts were that the de- fendant had contracted , to purchase 4 specified stacks of cotton waste at Is. '.id. a pound, and to send his own packer and sacks and carts to remove them. The defendant sent his packer with 81 sacks, into which the 4 stacks were put. Two days afterwards 21 of the sacks were weighed and taken to the defendant's warehouse, and returned to the plaintiff the same day as not being of the de- sired quality. The sale was not a sale by sample. The other sacks were not weighed, but the Court, consisting of Pollock, C. B., Mar- tin and Bramwoli, BB., held that the property in all the 81 sacks had passed. Pollock, C. B., considered the case the same as Turley V. Bates (,r). Martin, B., said, " The question depends upon what " was the contract, and the jury have found that it was a contract " to buy four stacks of cotton waste specifically agreed upon, more " or less, taking them for better or worse. If that finding is [*182J *" correct, of which I entertain no doubt, the result is that " the property in the four stacks passed to the defendants." In the case of Ynnncj v. Matthoivs (j/), in 1866, Moxon, a brick- (rt Turley v. Balen, 2 H. & C. :20;) ; W?-, I.. J. Ex. 4;i. (u) Kershaw v. Ogden, ?,\ L. J. V.k. 1,-,9 ; 3 H. & C. 717. (.!•) TiirJcn V. Baicfi, 'J H. & V. 200 ; 33 L J. Ex. 43. (//) Younrj v. Meitthms, L. E. 2 C. P. 127 ; 36 L. J. C. V. 61. (200-1) Ch. II.\ RULES TO ASCERTAIN THE INTEXTIOS. 133 maker, was indebted to Northern, and applied to him for a further advance, which Northern made in consideration of Moxon selling him 1,300,000 bricks at 26s. per 1000. Northern then sent Lucas to the brickfield with a delivery order for the bricks signed by Moxon ; Moxon's manager told Lucas that he might have tbem as soon as a man who was in possession under the landlord's distress for £300, was paid. The manager pointed out three clumps of bricks, one of which was finished, and which he said should be taken first ; another, still burning, which would be ready when the first had been taken ; and a third, which was being formed of moulded bricks preparatory to burning, and stated that he would hold and deliver them to Northern's order. The £300 was not paid. Moxon became bankrupt, and the landlord then sold enough bricks to pay himself, and Northern sold the remainder to the de- fendant, who carried them away. The creditors' assignee brought trover. The Court, consisting of Erie, C. J., Willes, Byles, and Keating, JJ., held that the property had passed to Northern. The judgment of the Court turned on the expressed intention of the parties. Erie, C. J., said, " There is no doubt that the parties " could pass the property in all the bricks, whether finished or not, " if such was their intention ; and what passed amounted to this : "Northern's agent said, 'Are all these appropriated to my princi- " 'pal ?' and the seller's agent said 'Yes.' " In Martineau v. Kitching {z), in 1872, the plaintiffs, who were sugar refiners, carried on business as follows : They refined the sugar, ran it into moulds holding from 38 to 42 lbs., forming sugar- loaves ; they marked each sugar-loaf, called a titler, with a distinc- tive number, and placed the titlers in their warehouse. The titlers *were sold at so much per cwt., but were not weighed until [*183] they were delivered out of the warehouse to the purchaser. The defendant purchased a number of titlers marked as above, at so much per cwt., the contract being that they were to be paid for at one month, and to remain " at seller's risk for two months." He paid the price as calculated approximately, and resold certain of the titlers, which were given up to the sub-purchasers on the produc- tion of the defendant's orders of delivery, and weighed on delivery. The remainder were consumed in a fire after the expiration of two months, and before they had been weighed. The defendant refused to pay for them on the ground that the property had not passed, and that he was not bound to pay for them until it had passed; it was agreed that the payment he had made should be considered as made to another account. It seems tolerably clear from the judgments, that if it had been necessary to decide whether the property had passed or not, the Court would have held that it had passed, but the case was decided OQ the words of the contract, " at seller's risk for two months," which showed that after two months they were to be at the buyer's risk (zTlIartineau v. KUchiny^'Lr'Rr7~QrB. 436 ; 4TL. J. Q. B. 227. (2005) 134 CONDIXIOXS PRECEDENT. [Ft. II. no matter where the property was. As Blackburn, J., said (a), " If you show that the risk attached to the one person or the other, " it is a very strong argument for showing that the property was " meant to be in him. But the two are not inseparable. It may " be very well that the prooerty shall be in the one and the risk ia "the other."] The rule is further illustrated by a class of cases in which it has been decided that where the agreement is that one party shall make and deliver some chattel, no property passes before the chattel is complete and in a deliverable state, unless there be something pecu- liar in the agreement. In several of these cases the decision of the Court, that no property passed seems to have been given because the individual chattel had not been ascertained. If it appear from the agreement that the intention of the [*184] *parties is that the property shall pass presently, the prop- erty does pass, though there remain acts to be done by the vendor before the goods are deliverable. It is to be observed that whilst the vendor is unpaid it is exclusively for his interest that the prop- erty should pass as he gets rid of the risk; but when he is partially or entirely paid it may be for the benefit of the purchaser, for in the event of a paid vendor becoming insolvent the purchaser, if the property has passed, has the goods as a security for his money, but if it has not passed he can but at best recover such a proportion of the price paid as the estate of the insolvent can furnish. If, there- fore, it appears by the agreement that the parties intended the price to be paid before the goods were put in a deliverable state, it affords an argument that the parties intended the property also to pass before the goods were in a deliverable state; and if the whole agree- ment show that such was the intention, the property does pass. [In Miicldow V. Mangles (b), in 1808, Royland, who was a barge builder, contracted with Pocock to build him a barge. Pocock advanced him money on account from time to time to the full value of the barge, and when it was nearly finished Pocock's name was painted on the stern, but the report does not say by whose orders. Two days after it was finished it was seized under an execution. The court held that the property had not passed to Pocock. Heath, J., said, "A tradesman often finishes goods which he is making in "pursuance of an order given by one person, and sells them to " another; if the first customer has other goods made for him within " the stipulated time, he has no right to complain ; he could not bring "trover against the purchaser for the goods so sold." The authority of this case has been considerably weakened by later decisions, and Best, C. J., and Park, J., in Cdrrutlwrs v. Payne (e), doubted whether it would be followed if precisely the same facts came before the Com-t again. («) L. R. 7 Q. B. 4.14 ; 41 L. .J. Q. B. 2:J7. (/() iftieldnw V. Natujles, 1 Taunt. ?A^. (e) C.irraihcrs v. Paijnc, 5 Eing. 270. (20()(i) Ch. II.] RULES TO ASCERTAIN THE INTENTION. ' 135 *In Woods V. Russell{d), in 1822, Paton, a shipbuilder, con- [*185] tracted to build a ship for the defendant, to be paid for by four instal- ments. The first and second were duly paid. When the ship was near- ing completion the defendants chartered her for a voyage,withPaton's privity, and sho was measured, also with Paton's privity, to the in- tent that the defendant might have her registered in his own name. Paton signed the necessary certificate of her build, and she was registered in the defendant's name, and the third instalment was then paid. The ship was not finished, and Paton's men continued at work on her. Paton became bankrupt, and two days afterwards the defendant took possession, and by his orders a rudder and some cordage, which Paton had bought for the ship, were taken from Pa- ton's premises. Two days after that she was launched. The fourth instalment was never paid. The Court considered that the rudder and cordage, having been bought specifically for the ship, although not actually attached to it, were on the same footing, and held that the property had passed in the ship, rudder and cordage (e). In Glarke v. Spence (/) in 1836, the facts were much the same as in Woods v. Russell (d), and after consideration the Court held that the property had passed, and Williams, J., delivering the judgment of the Court, put the decision on what appears to be the true ground. After referring to the language of Abbott, C. J., in Woods V. Russell (d),he continued, " The payment of the instalments may ' indeed be evidence that the purchaser has approved of the fabric ' so far as it has been constructed, and may therefore, as it were, ' ratify the appropriation made by the builder; but in itself it can ' operate nothing, unless it be by the contract made a condition ' precedent to the vesting of the property. It is not so made by ' the contract in question in express terms ; neither was it in the ' case of Woods v. Russell (d); *but we apprehend that the [*186] ■ judgment in that case is founded on the notion that provision for ' the payment regulated by particular stages of the work is made in ' the contract, with a view to give the purchaser the security of cer- ' tain portions of the work for the money he is to pay, and is ' equivalent to an express provision that on payment of the first 'instalment the general property in so much of the vessel as is ' then constructed shall vest in the purchaser."] In Laidler v. Burlinson (g), in 1837, a shipbuilder entered into an agreement with several parties, of whom the plaintiff Laidler was one, by which he was to complete a vessel then in his yard, and they were to take shares in the vessel and pay portions of the price. Before the vessel was complete Laidler, who was to take one-fourth of the vessel, paid the builder in advance, but that was voluntary (d) Woods V. iJKssrt?, 5 B. & AM. 942; 1 D. & R. 587. (c) Carruthers v. Pnyne, in 1828, 5 Bing. 270; Goas v. Quinlon, in 1^42, 3 M. & G. 865; Ex parte Lambtnn, 1875, 10 Ch. Ap. 414; 44 L. J. Bank. 81. (/) Clarl-e v. ,V'% 4 A. & E. 448. (g) Laidler v. Burlinson, 2 M. & W. 602. (2007) 13G CONDITKjXri I'KECEDEXT. [Ft. II. on his part, a3 it was no part of tho original agreement; then the builder became bankrupt, and the Exchequer decided that the property of the incomplete vessel was in the bankrupt, and conse- quently that his assignees were entitled to it, and that Laidler had no specific interest in the vessel. Parke, B., in the course of the argument said, that, "If the parties agreed to buy that particular " ship when complete, the property would not pass, though the " builder could not comply with the contract by delivering another " vessel." And in delivering judgment, Lord Abinger said, "A " man may agree to purchase a ship when finished, or as she then "stands. Of which sort is this contract V Did it pass the property " to the purchaser presently, or was it to pass when the ship was "finished? I think it is of the latter description." And Parke, B., said, "It was an entire contract to purchase the ship when fin- " ished, and no property passed till then." [In Tripp v. Armitage (/i), in 1839, Bennett had contracted to build an hotel for the defendants. Other parties had contracted for the painting, glazing, and ironwork. The money was to be paid by [*1S7] instalments, and at the time when Bennett *became bank- rapt the defendants had advanced him more money than he was entitled to by the contract, on the security of all the materials which had been or should be brought by him on to. the premises. Before his bankruptcy he had brought some window frames on to the premises, which had been approved of by the clerk of the works appointed by the defendants, and he had then taken them away to his own workshops for the purpose of having some pulleys fitted to them. Bennett's assignees claimed them, and the Court held that the property had not jjassed to the defendants. Both Lord Abin- ger, C. B., and Parke, B., put their judgments on the ground that this was not ;i contract of sale of a specific chattel, as in Clarke v. Speiice (i) and other cases, but a contract to do work, /. e. to build an hotel, to which was incident the supplying and fixing of win- dow frames. If the frames had been fixed to the freehold then the case would have been different, and the frames would have come within the agreement as having been brought upon the premises. The Court seems to have considered the case as an advance of money to enable a contractor to carry out his Avork made on the se- curity of goods which had been at the date of the agreement, or might afterwards be, aiSxed to the freehold. The approval of the clerk of the works was considered to be merely an assent to the suitability of the materials (k). In Bftk'jr v. Gray (I), in ].S5(), it was agreed that a shipbuilder should build a ship for the defendant, to be paid for by instalments, (Ji) Tripjix. Aiiiiiliujr, t M. & W. C'^T. (i) Clarke v. S/inu'r, -i A. & E. 4)8. (k) Sec also Williiiiii>^ v, Fil~}iuniri-, L. .J. C. P. IGl. {■M 1.-) Ch. IL] RULES TO ASCERTAIN THE INTENTION. 137 and that the property in the ship should pass to the defendant on payment of the first instalment, and that in case the builder should not complete the vessel within the time agreed upon, it should be lawful for the defendant to take possession of and finish her, "usinw " such of the materials of the builder as should be applicable for "the purpose." The builder being in arrear, the defendant did take possession, and he also removed a considerable quantity *of [*188] timber which the builder had provided and prepared for the building of the ship, from the builder's yard and placed it inside the hull of the ship, but up to the date of the builder's bankruptcy, he had not actually used it in the construction of the ship. It was held that as he had not in fact used it, the property in the timber passed to the assignees on the bankruptcy (m). in Wood V. Bell (n), in 1856, Joyce, a shipbuilder, agreed to build a steamship and engines for the plaintiff, to be paid for by instalments. The building of the ship and engines went on con- temporaneously in the same yard. The plaintiff made advances to Joyce, which Joyce acknowledged to be advances on the ship. The ship and engines were built under the superintendence of the plain- tiff's inspector, and the plaintiff's name was stamped on the keel. There was ample evidence that both the engines and a number of plates lying in the yard were appropriated to this contract, but neither the engines nor those plates had been fixed in their places. Joyce, before his bankruptcy, admitted that the ship belonged to the plaintiff. Lord Campbell, C. J.,, delivering the considered judgment of the Queen's Bench, held that the property in both the ship, and the engines and plates, had passed to the plaintiff, and this Judgment was affirmed on appeal to the Exchequer Chamber so far as the ship was concerned, but reversed as to the engines and plates. Jervis, C. J., delivering his judgment, in which Pollock, C. B., Alderson, B., Cresswell, Crowder, Willes, JJ., and Bramwell, B., concurred, said, " the question is, what is the ship ? not, what is "meant for the ship ? I think those things pass which have been "fitted to the ship, and have once formed part of her, as, for in- " stance, a door hung upon hinges, although afterwards removed " for convenience. I do not think the circumstance that materials " have been fitted and intended for the ship makes them part of the "ship." *The judgment of the Queen's Bench on this point seems [*189] to be the one more consistent with the recent authorities. If the true principle be, that where an advance is made on the security of specified although unfinished articles, the law considers that as every strong evidence to show that an intention to pass the prop- erty existed, then that argument, which is used to show that the property in the ship has passed, is precisely applicable to show that M Boueh V. Great Western By. Co., 1 Q. B. .'51. (n) Wood V. Bell, 5 E. & B. 772 ; and 25 L. J. Q. B. 148 ; G E. & B. 355 ; and 25 L. J. Q. B. 321. (2009) 138 PROPERTY BY ESTOPPEL. [Ft. II. the property in the engines and plates passed. The property should pass for the same reason, and not because one thing has be- come, or was intended to become, a part of the other (o). In the Anglo-Egyptian Navigation Company v. Renitie, (p), in 1875, the plaintiffs were the owners of a steam ship whose engines and boilers required considerable repairs and many new parts. The defendants contracted to do tLe whole of the work for 5800Z., pay- meot by instalments to be paid on the certificate of the plaintiff's inspector. The defendants proceeded with the work while the ship was at sea, and on the certificate being given received payment of one instalment. The plaintiffs then heard of the loss of the ship at sea, and in due course paid a second instalment. The defendants subsequently heard of her loss, and at the time of hearing of it had completed about three quarters of the work. The plaintiffs de- manded from the defendants those parts which had been made and approved when the instalments were paid, on the ground that the ■ property had passed to them. But the Court held that it had not passed, adopting Mr. Benjamin's argument that the complicated nature of the contract made it impossible to attribute the instal- ments to any particular part of the work ; and that the object of the stipulation as to instalments was to lessen the defendants' risk, for they would not have been able to make a claim to a penny until the whole job had been completed but for that stipulation.] Where by the agreement the vendor is to do things which [*190] *may be done after the goods are in such a state that the vendor might call upon the purchaser to accept them, the perform- ance is not presumed to bo a condition precedent to the vesting of the property. Thus where the vendor agrees to pay warehouse rent for the goods for some time after the sale, it has been decided that the property is transferred before the rent is paid. Hammond V. Andarson (q), in 1804, Greaves v. Hepke (/'), in I8l8. There may he property hy estoppel. There are some cases in which it has been held that the property was changed, though acts necessary to put the goods in a deliver- able state remained to be done by the vendor, but it will be found on examination that the party against whom it was held in those cases that the property was changed had more or loss distinctly made a statement that it had been changed, and that the decisions were made on that ground. A party's statement is always evidence against himself. In general it is not conclusive against him, and he may set up as his case that his previous statement was a mistake (o) See also Mclltiin v. Walhicc, in 1>^S1, 6 Ap. Ca. 5S>*. (p) AiKjlo-ErjijpUan. Niirl(/,!lion Cii. v. licitnic, L. l{. 10 C. V. ill ; 41 L. J. C. r. l:!(». ' [q) Jfidiuiiiiiid V. Anilcrunn, 1 X. K. (iO. (;■) Gntnr.i v. IIcplv, -.1 B, & A. l:'.l. (■2010) Ch. II.] PROPEUTY BY ESTOPPEL. 139 or even a falsehood, and then the question for those who try the cause is, whether his former statement or his present evidence is more worthy of belief. Much, of course, must depend, on the de- gree of deliberation with which the former statement was made, and the means which he had at the time of knowing the truth. But though in general a statement is not conclusive against the party who makes it, yet there are exceptions in which the law does not permit the party to avail himself of the inaccuracy of his assertion, and in technical language he is estopped from setting up the truth against his former statement. " The rule of law," said Lord Denman, in delivering the judgment of the King's Bench, in Pickard v. Sem^s (s), "is clear, that where one by his words *or conduct [*191] " wilfully causes another to believe the existence of a certain state "of things, and induces him to act on that belief so as to alter his " own previous position, the former is concluded from averring " against the latter a different state of things as existing at the same time." This is a rule which within the limits applied by law is of great equity; for when parties have agreed to act upon an as- sumed state of facts, their rights between themselves are justly made to depend on the conventional state of facts, and not on the truth. The reason of the rule ceases at once when a stranger to the ar- rangement seeks to avail himself of the statements which were not made as a basis for him to act upon. They are for a stranger, evidence against the party making the statement, but no more than evidence which may be rebutted, between the parties they form an estoppel in law. This principle is well illustrated by those cases that at first sight seem inconsistent with the rule 'of construction already mentioned. Thus in Stonard v. Dunkin {t), in 1810, Knight had agreed to pledge some malt lying in the defendant's warehouse to the plain- tiff, and the defendants gave a written acknowledgment that they held the malt for the plaintiff, who had advanced Knight 7500Z. on that security. The plaintiff brought trover for the malt, aud the defence was, that Knight had become a bankrupt, and that the pro- perty in the malt belonged to his assignees, because it had to be measured before the property would pass ; but Lord Ellenborough said, " Whatever the rule may be between buyer and seller, it is " clear the defendants cannot say to the plaintiff the malt is not " yours, after acknowledging to hold it on his account. By so do- "ing they attorned to him, and I should entirely overset the secur- " ity of mercantile dealings were I now to suffer them to contest "his title." In Hawes v. Watson (u), in J.824, the goods had been twice sold, and the first vendors were unpaid. The plaintiffs were bond fide (s) Piclcard v. Sears, 6 A. & E. 474. , See also Carr v. L. &N.-W. Hy. Co., L. R. 10 C. P. 316; 44 L. J. C. P. 113. It) Stonard v. Dunkin, 2 Camp. 344. (m) Hawes v. Watson, 2 B. & C. 540. (201 1) 140 PKOPERTY BY ESTOPPEL. [Ft. II. [*192] purchaserb, and had bond fide paid their immediate *veiidor, the first purchaser, who had since become a bankrupt. The action was trover, brought against the warehousemen. It was proved that the first sale to the bankrupt was at a certain price per cwt.,,and that the goods had never been weighed, and the defence was that they remained the property of the first vendors, and not hav- ing been the property of the first purchaser, could not have been by him rendered the property of the plaintiffs; but it was proved that before the plaintiffs paid the bankrupt, the defendants had signed a note, acknowledging that by order of the bankrupt they had transferred the goods to the account of the plaintiffs. Abbott, C. J., at Nisi Prius, ruled, that whatever might be the rights of the original vendors, the defendants having acknowledged that they held the goods on account of the plaintiffs could not now dispute their title, otherwise they would cause an innocent man to lose his money. The plaintiffs had a verdict, and the Court of King's Bench refused to disturb it. In Gosling v. Birnie (.r), in 1831, in the Court of Common Pleas, the partially paid vendor of some timber lying on the defendant's wharf had given the purchaser notice that if he did not pay the residue of the price the timber should be resold. The vendor ac- cordingly did resell the timber to the plaintiff, and gave him a written order on the defendant, at whose wharf the goods lay, to deliver the timber on receiving payment of a sum of money. The defendant, who knew all the facts, received the money, and verbally assented to hold the timber for the plaintiff; then the first pur- chaser paid the -vendor the balance of the price, and the defendant gave him possession of the timber; for so doing the plaintiff brought an action of trover, to which the defence was that the plaintiff was not the owner of the goods, which were the property of the first purchaser. The Court, however, said that whether the resale was void as against the Ih-st purchaser or not might be a question, but that as against the defendant the case was clear. " The defen- [*J93] dant," said Tindal, C. J., "is estopped by *his own admis- " sions, for unless they amount to an estoppel the word may as '• well be blotted from the law." \ln Holl v. Griffin {ij), in 1833, one Wilson having goods at a wharfinger's at Stockton- upon -Tees, which were about to be sent to the defendant's wharf in London, obtained an advance from the plaintiff, on the security of the goods, giving him the Stockton wharfinger's receipt and the invoice, and at the same time instruct- ing the defendants to deliver the goods to the plaintiff when they should arrive. The plaintiff showed the wharfinger's receipt to the defendants, who promised to deliver the goods, but refused to do so when they arrived, and the Court held that trover would lie.] (,)■) CdkHiii/ \. Tliniic, 7 Binjj;. :;:!9. (I/) Roll V. Griffin, 10 Bing. -J-li;. Ch. II.] PROPERTY BY ESTOPPEL. HI In Gillett v. Hill (z), in 1834, the defendant, who was a whar- finger, had accepted, without any restriction, a delivery order for twenty sacks of flour given to the plaintiff by a person from whom he had purchased them, and the Exchequer held, that by so doing the wharfinger made evidence against himself that he had twenty specific sacks belonging to the vendor, which he appropriated to the order, and that the jury, in action of trover against the wharfinger, were warranted in finding that the property had been transfen-ed to the purchaser in some specific sacks in his custody. It does not appear that the purchaser had paid the vendor or otherwise altered his condition in consequence of the defendant's sets, so that prob- ably the case did not amount to an absolute estoppel. [In Woodley v. Coventry (a), in 1863, Clarke had purchased 350 barrels of flour from the defendants : the flour was lying in the defendants' ,warehoiise and was part of a larger quantity ; the 350 barrels so purchased were not separated from the rest. Clarke wishing to raise money, applied to the plaintifi's for an advance, and gave them a delivery order on the defendants. The plaintiffs before making the advance sent a filerk with it to the defendants' *warehouse, who made enquiry whether it was "all in [*194] order," and was answered "Yes," and thereupon lodged the order at the warehouse and it was accepted. The plaintiffs then advanced the money to Clarke, who subsequently absconded without paying the defendants for the flour ; the defendants, as unpaid vendors, refused to deliver the flour to the plaintiffs. TJhe plaintiffs brought trover. The Court held that they were entitled to recover ; the question being, had the defendants acknowledged that they held the flour on behalf of the plaintiffs ; if so, they were bound to deliver it or pay damages (&). The case of Knights v Wiffen (c), in 1870, very closely resembles Woodley v. Coventry {d). The facts are set out in Mr. Justice Blackburn's judgment, of which the following is an extract : " The " defendant Wiffen had in his own warehouse a large quantity of " barley, and he sold to Maris, 80 qrs., which on the contract " between him and Maris, remained in his possession as unpaid "vendor. No particular sacks of the barley were appropriated as " between Maris and Wiffen ; but at the time the contract was " made Maris had a right to' save 80 qrs. out of that barley appro- " priated to him ; and at the same time Wiffen, as the unpaid " vendor, had a right to assist on the payment of the price before " any part of the grain was given up. Maris afterwards entered " into a contract with the plaintiff. Knights, by which he sold him (2) Gillett v. Hill. 2 C. & M. 536. (a) Woodley v. Coventry, 2 H. & C. 164 ; 32 L. J. Ex. 1S5. (J) Stoveld V. Hughes, 'U East, 308 j and 3fcEwanY. Smith, 2H. L. R. 309 ; 13 Jur. 265. (c) Knights v. Wifen, L. R, 5 Q. B. 660 ; 40 L. J. Q. B. .11, (d) Woodley \. Coventry, 2 H. & C. 164 ; 32 ly. J. Ex. 133. (2013) 142 PROPERTY BY ESTOPPEL. [Pt. II. " GO qrs. of the barley, and Knights paid ilor them. A document " was given by Marie to Knights, in the shape of a delivery order " addressed to a station master of the Great Eastern Kailway, " instructing him to deliver to Knights' order (30 qrs. of the barley "on his, Maris's, account. Knights forwarded it to the station- " master, enclosed in a letter authorising the station-master to "hold for him. The station-master went to AVifPen and showed [*10r)] "him the delivery *order, and letter, and W iff en said, " 'All right, when you receive the forwarding note, I will " ' place the barley on the line.' What does that mean ? It amounts " to this, that Maris having given the order to enable Knights to " pbtain the barley, '\\'iffen recognized Knights as the person '' entitled to the possession of it. * * * The defendant knew, " that when he assented to the delivery order, the plaintiff, as a " reasonable man, would rest satisfied. If the plaintiff had been " met by a refusal on the part of the defendant, he could have gone " to Maris and have demanded back his money ; very likely he " might not have derived much benefit if he had done so, but ho " had a right to do it. The plaintiff did rest satisfied in the belief, " as a reasonable man, that the property had been passed to him. " If once the fact is established, that the plaintiff's position is " altered by relying on the statement and taking no steps further, " the case becomes identical with Woodley v. Coventry (e), and " Hawes v. Watso7i (/).'' In Coventry v. Great Eastern Railicag Co. (g), in 1883, the de- fendants negligently gave two delivery orders for the same consign- ment. The plaintiff in good faith made advances on both, and the Court of Appeal held that the defendants were estopped from de- nying that they held two consignments.] It is evident that those cases are not authorities that the property had in reality been transferred, but merely that the plaintiffs had a right as against the defendants to treat it as if it had been trans- ferred. A warehouseman may make himself responsible to both parties : to one because he has rendered himself incapable of denying that the property belongs to that party, though in truth it does not ; and to the other, because the property in truth is his. This may at times be very hard upon the warehouseman, who has by mistake represented that the property has been transferred, when [*196] in fact it has not, but it behoves him to see that his Rep- resentations are not merely bond fide but accurate, or to abide the consequences of his inaccuracy. Effect of Express Conditions Precedent. The parties may indicate an intention by their agreement, to {e) Woodley v. Coventry, 2 H. & C. 164 ; 32 L. J. Ex. li^r,, ante, p. 193. (/) Haioea v. WnU,„i, 2 B. & C. .540, nnie, p. 191. (5-) Coventry y. G. E. Ey. Co., 11 Q. B. D. 77G j 'yi L. J. Q. B. 694. (2014) Ch. II.] COXDITIOXS PRECEDENT. 143 make any condition, precedent to the vesting of the property, and if they do so their intention is fulfilled. Thus if goods are sent for sale on approval or return, no property vests until the pur- chaser's approval, because that was the intention of the parties {h). And, as is said in Comyn's Digest, Condition (B. 13), " if a per- " sonal thing be granted on a condition precedent, the property does " not vest till the condition performed." [And so also in sales by sample no property will pass, until the vendee has compared the bulk with the sample and assented to the appropriation {i), although it is very strong evidence that the goods have been approved of, if they are kept a longer time than is reasonably necessary under the circumstances (fc).] In the interval between the making of the agreement and the fulfilment of those conditions on which the property is to vest the purchaser has no interest in the thing itself ; and it follows as a necessary consequence that if in the interval a third party has fairly acquired an interest in the chattel, the purchaser cannot on the ful- filment of the conditions deprive him of it. He may have a remedy against the vendor for breaking his agreement, by suffering this in- terest to be created, but he cannot take the property in derogation of a right acquired, whilst the agreement was only executory and he had no interest in the goods but only a chose in action. *Thus in Mires v. Solesby (I), in 1678, the owner of some [*197] sheep agreed with Alston that Alston should take the sheep home and pasture them until an agreed time, at so much a week, and if at the end of that time Alston would pay so much for the sheep, he should have them. Before the time was expired the owner sold the sheep to Mires, and in an action of trover by Mires against the servant of a purchaser from Alston, the Court decided that the agreement that Alston should have the sheep if he would pay such a sum of money at a future day, did not amount to a sale, and con- sequently that the sale to the plaintiff before that day was good, and the property of the sheep was in him. But if the conditions are fulfilled, and the agreement made abso- lute whilst the vendor remains owner of the goods, it seems that the agreement has the same effect as if it were then for the first time made without any condition, and consequently that the property passes at once. In Evans v. Thomas (m), in 1608, it is said, "If one covenants "with another, that if he will marry his daughter he shall have (A) Simin v. Shepherd, 1 M. & Rob. 223. (i) See post, p. 205. Conditions precedent as to quality. See also Jcnnerv. Smith, in 1869, ante, p. 136, L. R. 4 C. P. 270. (k) Beverly v. Lincoln Gas Light Co., in 1837, 6 Ad. &E1. 829 ; Moss v. Sweet, in 1851 ; 16 Q. B. 493 ; 20 L. J. Q. B. 167 ; Bay v. Barker, in 1879, L. R. 4 Ex. D. 279 ; 48 L. J. Ex. 569 ; Couston v. Chapman, in 1872, L. R. 2 Sc. Ap. 250; Sanders v. Jameson, in 1848, 2 Car. & Kir. 557, on custom in such cases. (l) Mires v. Solesby, 2 Mod. 243. (hi) Eoans v. Thomas, Cro. Jac. 173. (2015) 144 CONDITIONS PRECEDENT. [Ft. 11. " such a flock of sheep. He marries bis daughter, the property of " the sheep were presently in him, for it was but a personal thing, " and the covenant is a grant." For this proposition, Fitzherbert, (44 E. 3) is cited, but no such case is in the Tear Book of that date. In a case at Nisi Prius (w), in 1811, Norton and Fitzgerald drew a draft on Voss, and indorsed it to the plaintiff; they at the same time transmitted to him a bill of lading of some goods with an indorsement, making the goods deliverable to Voss, if he should '•accept and pay " the draft, if not to the holder of the draft. [Both the bill of exchange and the bill of lading were sent to Voss, who accepted the bill of exchange, but did not pay it, and indorsed the bill of lading to the defendant] Lord Ellenborough held, that after the dishonour of the draft, the plaintiff might maintain trover [*198] against the indorsee *of the bill of lading, who had obtained possession of the goods. It seems, however, probable that the plaintiffs had some right of the property in the goods, independ ently of being holders of the draft at the time it was dishonoured, though that is not mentioned in the report (o). [In the sale of goods, the parties frequently agree to conditions precedent to other things besides the passing of the property; for example, to the duty of the vendor to deliver, or of the vendee to receive or pay for the goods. The parties are at liberty to import into the contract any terms they may please. But it may be a question of some difficulty to decide whether a term or stipulation which forms part of the contract, creates a con- dion precedent, or is a mere collateral contract of warranty, for the breach of which the remedy is an action for damages. This is a question of law; as Williams, J., said in Behn v. Burness (p), in 1863, where a charter-party stated a ship to bo " now in the Port of Amsterdam " when she was not so. " It is no part of the judge's " duty to leave to the jury any question as to the construction of " the contract, or the materiality of any of its statements. It was " his function to construe the contract with the aid of surrounding " circumstances found by the jury, and to decide for himself whether " the statement that the ship was in the port, supposing it to be un- " true, was an essential part of the contract, or a mere representa- "tion." The meaning of the contract is that which both parties intended it should have; it is therefore the common intention of the parties which has to be looked for, and where they have reduced their con- tract into writing, that, if it is not ambiguous, is conclusive evidence of their intention, and to put a meaning on the contract is simply a question of construction for the judge, but if it is ambiguous, 80 that the intention cannot be read on the face of the document, [*199] then *the judge may look at the surrounding facts and cir- (n) Barrow v. Coles, 'A Camp. 92. (o) See pod, p. 2(i8. Chapter on Equitable Assignments. (p) Behn v. Bunicsa, 3 B. & a. 75G; 33 L. J. Q. B. QO-1. (■201 G) Ch. 11.] CONDITIONS PEECEDENT. 145 cumstances as found by the jury to assiet him in discovering what it was that the parties probably intended. But, as Brett, M. E., said in Sanders v. McClean (q), " The Court has no right to import " anything into a contract which it would not be clear to every rea- " sonable man must have been present to the minds of both contract " ing parties, and agreed to by both." Lord Ellenborough, C. J., in Ritchie v. Atkinson (r), in 1808, where the question was, whether the delivery of a complete cargo was a condition precedent to the right to recover freight, a short cargo having been delivered, said, " that depends, not on any formal " arrangement of the words, but on the reason and sense of the "thing, as it is to be collected froyi the whole contract: * * * " The rule was well laid down by Lord Mansfield in Boone v. Eyre " (s), that where mutual covenants go to the whole ot the considera • " tion on both sides, they are mutual conditions, the one precedent "to the other; but where the covenants go only to a part, there a ^' remedy lies on the covenant to recover damages for the breach of "it; but it is not a condition precedent." Bramwell, B., in Roberts v. Brett (t), in 1859, said, " Wherever " the obvious good sense of the thing makes the performance of an " act a condition precedent, it ought to be so construed. * * * The "rules laid down in the notes to Pordage v. Cole (u) are very ex " cellent guides, but not arbitrary tests." And Jervis, 0. J., in the same case, said (x), " Where,, on the whole, it is apparent that the " intention is, that that which is to be done first is not to depend " upon the performance of the thing that is to be done afterwards " the parties are relying on their remedy, and not on the *per- [*200] "formance of the condition; but, where you plainly see that it is " their intention to rely on the condition, and not on the remedy, " the performance of the thing is a condition precedent." Where there is a condition precedent to the duty of either party to do some act, it is a good defence to an action for not doing that act to say that the condition precedent has not happened or been performed. But that defence is no longer available if the party wishing to set it up has waived his right to insist upon the perform ance of it, as, for example, where, after the time when the condi- tion ought to have been performed, he accepts any benefit under the contract. As where goods on sale or return are kept an unreason able time. In the same way, payment is primd, facie a condition precedent to the right to have the goods delivered. But where the parties have agreed upon some other time for payment, as by taking a bill (q) Sanders v. MeOlean, 11 Q. B. D. 336; 52 L. J. Q. B. 481. {r) Bitchie v. Atkinson, 10 East, 306. (s) Boone v. Eyre, 6 T. E. 573. m Boberts v. Brett, 6 C. B. N. S. 633. (u) Bordage v. Cole, 1 Will. Saunders, 548. {x) 18 C. B. 573. 10 CON-. OP SALE. (2017) 146 CONDITIONS PRECEDENT. [Pt. //, or otherwise giving credit, the purchaser is entitled to possession of the goods at once, and payment ceases to be a condition prece- dent. In cases where there was a condition precedent, it may often happen that although the unperformed condition cannot be made available as a defence to the action, yet it may be treated as a war- ranty, for the breach of which a cross-action or counterclaim for dam- ages might lie; but this is not invariably the case. To take Mr. Jus- tice Blackburn's example in the Calcutta Co. v. De Mattos (y), the parties may agree that the price shall be payable only on the con- tingency of the goods arriving, or should not be payable unless a particular tree fall, but without any contract on the vendor's part to procm-e the goods to aiTive, or to cause the tree to fall. This branch of the subject will be treated at greater length in the chap- ter on the remedies of the parties (z). Among the following cases will be found examples of conditions precedent, such as frequently occur in contracts of sale. [*201] *The cases on conditions precedent will now be considered in the following order : — 1st. As to payment (below) ; 2nd. As to quality, page 205 ; 3rd. As to quantity, page 215 ; 4th. As to time, page 224 ; 5th. As to arrival and delivery, page 230 ; 6th. As to insurance and other conditions, page 239. In Walley v. Montgomery (a), in 1803, the vendor refused to deliver the goods until paid in cash, and the Court nonsuited the consignee, thinking that the consignment was conditional, but set the nonsuit aside on forming another opinion of the contract. In Valpy v. Oakley (&), in 1851, the vendor had contracted to deliver iron, and received the vendee's acceptances for the whole of the iron. The vendee became bankrupt before the whole had been delivered, and the vendor refused to deliver any more. The Court held, that the vendee's assignees were only entitled to nominal damages. As to Payment (c). lu Key V. Cotesworth (d), in 1852, where goods had been con- signed by the plaintifFs to the defendants, and the bill of lading sent direct to them. At the same time a draft had been sent by the plaintiffs to their agents to be presented to the defendants for acceptance. The defendants obtained possession, but refused to accept, and the Court held that the passing of the property was not conditional on the acceptance. (y) Cnh'utia ('». v. De Matios, 32 L. J. Q, B. :J:22; 33 L. J. O. B 214 (.-) Post, p. 44.-.. (ffl) Walley v. .VonU/omrry, 3 East, 5^5. , (b) Valpy V. DakJrij, 16 Q. B. 941 ; 20 L. J. Q. B. 380. Se&also Gn'pfo v. Perry, 1 E. \- E. (iso ; 2w L. J. (.). B. 204 ; and Ex parte Chalmers, 8 Ch. Ap. 289 ; 42 L. J. Ch. 37, post, p. 474, and eases folloAving. (e) Seej)os(, p. 449. [d) Key V. Cotesworth, 7 Ex. 595 ; 22 L. J. Ex. 4. (201 .H) Ch. II.'\ AS TO PAYMENT. 147 In Qodts V. Rose (e), in 1855, the sale was of five tons of oil " to be free delivered and paid for in fourteen days." The sale was not of any specific oil, but the vendor who had oil answering the description lying at a wharf gave authority *to the [*202] wharfinger to transfer certain casks into the defendant's, the buyer's, name ; and then sent a clerk with a transfer order to the defendant, and instructed the clerk to exchange it for a cheque. The defendant, having got possession of the transfer order, refused to give a cheque. The clerk then returned to the wharfinger and ordered him not to deliver the oil ; but, notwithstanding this, the wharfinger did deliver it to the defendant, and the plaintiff brought trover. The Court held that the property had not passed. Willes, J., said, "the buyer takes the transfer order, but declines to " give the cheque : he does not assent to the appropriation of the " particular casks of oil as a fulfilment of the contract, upon the "terms upon which alone the seller was content to make it" (/). In Shepherd v. Harrison (g), in the House of Lords, in 1871, the plaintiff, who was a merchant in Manchester, instructed Paton, Nash and Co., of Pernambuco, to purchase for him cotton not exceeding 1,000 bales. For the purpose of carrying out the con- tract, Paton, Nash and Co. purchased 747 bales and consigned 547 of them to Liverpool, sending the bills of lading for the 547 bales, together with two bills drawn on the plaintiff, to their Liverpool correspondents, G. Paton and Co., by whom they were handed to the plaintiff, who accepted the bills and paid them at maturity. Paton, Nash and Co. subsequently shipped the remaining 200 bales in respect of which this case arose on board the defendants' ship the Olinda, taking the bill of lading to order or assigns, and wrote to the plaintiff saying, " Enclosed please find invoice and bill of " lading of 200 bales of cotton." The invoice stated the cotton to be at the risk of the plaintifi'. Paton, Nash and Co. did not, how- ever, in fact, enclose the bill of lading to the plaintiff, but having endorsed it "Paton, Nash and Co.," sent it to G. Paton and Co., together with a draft for the plaintiff's acceptance. When G. Paton and Co. *received the bill of lading and the draft they wrote [*203] to the plaintiff, " We beg to enclose bill of lading for 200 bales " cotton shipped by Messrs. Patton, Nash and Co., per Olinda, s.s., " on your account. We hand also their draft on your good selves " for cost of the cotton, to which we beg your protection." The plaintiff retained the bill of lading, and returned the draft unac- cepted. The defendants, the shipowners, on being indemnified by G. Paton and Co., refused to deliver up the cotton. The Court (e) Godis v. Hose, 17 C. B. 229 : 25 L. J. C. P. 61. ( r) See also Sheridan v. New Quay Co., ante, p. 157, 28 L. J. C. P. 58 ; 4 C. B. isr. S. 618. [g) Shepherd v. Earrism, L. R. 4 Q. B. 197 and 493 ; 5 E. & I. Ap. 116 ; 38 L. j. Q. B. 105 ani 177 ; 40 L. J. Q. B. 148. (2019) 148 CONDITIONS PRECEDENT. [Pt. //. gave judgment for the defendants (h). Cockburn, C. J., said, "The cases are certainly very strong indeed, and conclusive to '■ show, supposing the consignor of goods sends them to this "country accompanied by bills of lading and bills of exchange " which are to be accepted by the consignee of the goods as the " consideration for the consignment, that where the consignor sends " those documents direct to the consignee that ought to lead to the "inference, and only properly lead to the inference, that he " intended the consignee should have at once the disposal of the "property aad possession of the goods consigned; leaving to him, " as a matter simply of obligation under the contract, to return the " bills of exchange accepted, not as a condition precedent to the " property vesting, but simply as a matter of contract. But, on the " other hand, the authorities are equally good, to my mind, to show, " where the consignor sends the bill of lading to an agent in this " country to be by him handed over to the consignee, and accompa- " nies that with bills of exchange to be accepted by the consignee, " that that indicates a dilferent intention, viz., that the handing " over the bill of lading and the acceptance of the bill or bills of "exchange should be concurrent parts of one and the same trans- " action." It was contended for the plaintiff that he had been drawn on for [*204] a larger sum than was due for the price of the goods; *but, said Kelley, C. B., "Possibly he was not bound to accept the bill, a* * * But, at all events, he had no right to repudiate the con - "tract in part; if he did not accept the bill, he coald have no " right to the goods." In the case of Mirabifa v. The Imperial Ottoman Bank (i), in 1878, the plaintiil, a merchant carrying on business at Malta and Constantinople, agreed to purchase umber from Phatsea and Pap- pa, a firm of merchants at Larnaca. ^^'hen Phatsea and Pappa had 600 tons ready for shipment they chartered a ship to carry the umber to London, taking the bills of lading "to order or assigns." They then drew a bill on the plaintiff, which was discounted with the defendant's agents at Larnaca, with the bill of lading attached. By a subsequent arrangement the defendant's agents returned this bill of exchange, and a second was drawn by Phatsea and Pappa on Mirabita Brothers, of London, in favour of Corkji, from whom they had purchased the umber. And Corkji handed it to the de- fendant's agents in substitution of the first one, with instructions to them to send it and the bills of lading to London, and there to deliver the bills of lading to Mirabita Brothers on payment of the bill of exchange at maturity. The defendants left the bill of ex- change at the ofSce of Mirabita Brothers attached to the following (7i) And tins judgmoiit was affirmed in the Exchequer Chamber, L. E. 4 Q. B. 41)3; :.!s L. J. Q. B. 177 ; and in the House of Lords, .". E. & I. Ap. lit!; 40 L. J. L J C P 9 (q) Toulmin v. Medley, 2 Car. >S: Kir. 157. (20:>i) Ch. II.] AS TO QUALITY. 151 In Bull V. Robinson (r), in 1854, the defendant refused to accept iron which was perfectly good when dispatched from Staffordshire, on the ground that it was not in a merchantable condition. It had suffered a certain amount of deterioration by rusting on its way to Liverpool. The Court, on the motion for a new trial, was of opin- ion that if the deterioration was necessary and unavoidable, the de- fendant must accept. In Nichol v. Godts (s), in 1854, the plaintiff had sold to the de- fendant " the five under-mentioned parcels of foreign refined rape oil * * * warranted only equal to samples." The defendant ac- cepted part of the oil, but refused to take the residue, on the ground that it was not foreign refined rape oil, but a mixture of hemp and rape oil. The samples consisted of rape oil adulterated with hemp oil, and the oil tendered corresponded with the samples, and on this ground *the plaintiffs contended that the defendants were [*208] bound to accept the oil, although they admitted it was not foreign refined rape oil. The jury found that there was no usage in the trade that rape oil meant a mixture of rape and hemp oil, and found a verdict for the defendant, which the Court refused to dis- turb, on the ground that the thing tendered must answer the de- scription of it in the contract as to its character. Parke, B., said, " The warranty affects only the quality, but not the nature of the " article itself." In Wieler v. Schilizzi (t), in 1856, the plaintiff had contracted to purchase from the defendant, and had accepted a large quantity of Calcutta linseed tale quale, at the date of the contract on board cer- tain ships, and now brought this action for breach of an alleged wan-anty that the seed was Calcutta linseed, whereas in fact it con- tained a large admixture of rape and mustard seed. The defend- ant denied any warranty. There was evidence that all linseed sent to this country contains about two or three per cent, of other seeds. But according to the plaintiff's evidence, the seed in question con- tained about fifteen per cent. The plaintiff had, however, sold it as linseed, and the buyers had used it as such. The question left to the jury was, whether there was such an admixture of foreign sub- stances as to alter the distinctive character of the article, and pre- vent it from answering the description of it in the contract — more, in truth, than might reasonably be expected. The jury returned a verdict for the plaintiff, and on the motion for a new trial the Court held that this was no misdirection. Willes, J., said, "The pur- " chaser 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 de- " scription he did not get what he bargained for." Although the M Bull Y. Robinson, 10 Ex. 343 ; 24 L. J. Ex. 165. s) Niehol v. Godts, 10 Ex. 191 ; 23 L. J. Ex. 314. t) Wieler v. Schilizzi, 17 C. B. 619 ; 25 L. J. C. P. 89. (2023) 152 COXDITIONS PRECEDENT. [Pt. II. plaintiff chose to accept the seed, it seems clear that he might have refused to accept it had he chosen to do so. [*2(I'J] *Veiaede v. Weber (u), in 1856, was an action by the purchaser for non-delivery. The contract was for a cargo of 400 tons of Aracan Necrensie rice, with a proviso that the cargo might partly consist of Larong rice, but not to a greater extent than 50 tons. The defendant refused to deliver a cargo which consisted of 285 tons of Larong and 159 of Latourie, and no Aracan Necrensie, on the ground that it was not a cargo of Aracan Necrensie, and the Court said, "Unless the cargo was what would substantially satisfy " the description of a cargo of Aracan Necrensie rice, we think that " the plaintiffs could not have been bound to accept it " * * * " and if the plaintiff would not have been bound to accept the " cargo brought, the defendant was not obliged to deliver it, for the " contract must be mutual and reciprocal." Levy V. Green {x), in 1857, was a case where the defendant gave an order for crockery of certain descriptions to the plaintiff's trav- eller, which the plaintiff packed in a crate larger than was neces- sary, and he then filled it up with crockery not ordered, apparently on sale or return. The defendant refused to accept any of the ar- ticles. Lord Campbell, C. J., and Wightman, J., were of opinion that the defendant would be put to trouble, risk, and expense beyond what by the contract he was to incur, and was therefore not bound to accept. Coleridge and Erie, JJ., were of the opposite opinion, Coleridge, J., being of opinion that where goods came mixed, they could not be rejected if they were distinguishable. But neither of these judges appear to have refuted Lord Campbell's view, which was subsequently held to be the correct one by the Exchequer Chamber (?/). Banaerman v. White {z), in 1861, was an action brought to re- cover the price of hops delivered. The plaintiff, who was the ven [*210] dor, had alleged at the time of the sale that there was *no sulphur in the hops, which in fact was not true, as sulphur had been used. It was admitted that the defendants would not have bought the hops if they had known that fact ; and although the hops delivered corresponded with the sample, the Court held that the defendant might refuse to pay the price, on the ground that the stipulation that no sulphur had been used amounted to a condition that the hops might be rejected if sulphur had been used ; it was the condition upon which the defendants contracted, and Erie, C. J., said, " We think that the intention appears that the contract " should be null if sulphur had been use." _The case of Josling v. K inrjsford (a), i n 1863, is a striking illus- (") VernedeY. Weber, 1 H. & X. 311 ; -ttlTX Ex. 326. (x) Li-nj V. Gfrcn, 1 E. & E. 969 ; 2n L. J. Q. B. 319, (y) See also Nicholson v. Bradfield Union, L. E. 1 Q. B. 620 : 7 B. & S. 747 , 35 L. ,J. Q. B, 176. ' (z) BannrniMcii v. TT7kYp, IOC. B. N. 8. 844 ; 31 L. J. C P 28 (aj Josbng v. Kinrjsford, 13 C. B. N. S. 447 ; 32 L. J. C. P. 94. (2024) Ch. II.] AS TO QUALITY. 153 tration of the distinction between a condition precedent and a war- ranty. The vendor, who was the defendant, was sued in one count for not delivering oxalic acid according to contract, and in another count for breach of warranty. Before making the contract, which was entered into by corres- pondence, a clerk of the plaintiff's, with the defendant, had ex- amined both samples and the bulk of the oxalic acid, and consid- ered it of good quality, and fit for the purpose for which it was wanted. In one of the defendant's letters to the plaintiff, he said, " As regards the strength of the oxalic, your friend having already ex- amined the bulk, we decline all responsibility in this respect." The substance which was delivered was analysed and found to contain 10 per cent, of sulphate of magnesia, and it was proved that the presence of this body could not be detected by mere inspection. The case was tried by Erie, C. J., who directed the jury that there was no evidence of any warranty, but that the defendant could only perform his part of the contract by delivering that which, in com- mercial language, might properly be said to come under the de- nomination of oxalic acid. The plaintiff then obtained a verdict. And on the motion for a new trial on the ground of misdirection which the Court refused to grant, holding the direction to have been the proper one, Williams, J., said, " However completely the defendant may *" have guarded himself against contracting [*211] " that the thing was of any particular quality, it is not possible to " construe the" contract in any other way than that it was a part of " the agreement that the subject of the sale should be the oxalic " acid of commerce." Hopkins v. Hitchcock (b), in 1863, was an action againt the pur- chaser for refusing to accept certain iron bars. A firm of iron manufacturers, named Snowden and Hopkins, stamped the letters "S. & H." with a crown, on the iron made by them. After Snow- den retired from the business, Hopkins, who was the plaintiff, car- ried it on, stamping the same quality of iron " H. & Co.," with a crown. One Balls called on the plaintifi's agent, was informed that all iron was now so stamped, and communicated this to the defen- dant, who subsequently contracted to buy of the plaintiff 67 tons "S. & H. (crown) common bars;" the iron stamped "H. & Co. (crown) " was shipped and arrived at Hull, where the defendant, finding it rusty, declined to accept it, alleging that it was not stamp- ed according to contract. The jury found that the " S. & H." was not material. The plaintiff obtained a verdict. On the motion the Court refused to disturb the verdict. Erie, C. J., said, "I think " it is not a contract for iron of a particular brand, but for iron of " a known quality, and that the plaintiff tendered the article for "which the defendant contracted." In Rylands v. Kreitman (c), in 1865, the contract was to deliver (l) Sopkms V. Hitchcock, 14 C. B. N. S. 65; 32 L. J. C. P. 154. (e) Rylands v. Kreitman, 19 C. B. N. S. 351. (2025) 154 CONDITIONS PEECEDEXT. [Pt. 11. 500 piculs of cotton in the month of June. The plaintiffs tendered :^87 bales by one ship and 20 bales by another. The defendants refused them, and the matter was referred to arbitrators, who found that the 287 bales and 5 out of the 20 bales were not in a mer- chantable condition. It was proved that in contracts like this, the seller might deliver ia several quantities. The jury found that the plaintiffs were at no time in the month of June able to deliver more [*21-;J than 15 bales. The Court sustained the *verdict for the defendant. The report is not a very fiill one, but it would appear that if the plaintiffs had during the month of June, while there was still time to tender the rest, tendered the 15 merchantable bales, separated from the 5 unmerchantable ones, the result might have been different. In Morgan v. Gath (d), in 1865, the contract was to deliver cotton in a merchantable condition, "the damaged, if any, to be rejected, provided it cannot be made merchantable." It was held that at all events the bulk must be in a merchantable condition when tendered, and that it was not sufficient that it might be made merchantable. In Kk-holson v. Bradfleld Z'ninn {c), in 1866, the defendants had ordered 70 tons of Ruabon coals. The plaintiif delivered one par- cel of 15 tons of Ruabon coals, and the next day a parcel of 7 tons which were not Ruabon coals. He shot the second parcel on to the first. About 6 tons were consumed before the inferiority was dis- covered. The Court held that the defendants could not be called upon to pay for the unconsumed remainder. Azimar v. Casella (/), in 1867, was an action against the pur- chasers for not accepting certain cotton. The facts as appearing in a special case were that De Souza and Co. of Madras, had consigned to the plaintiff 128 bales of cotton marked ^;, sending a sample at the same time, but by overland route. The sample was " Long Staple Salem " cotton, and was handed by the plaintiffs to the broker. The defendants examined the sample, and purchased the cotton, the broker's note being in the following terms: "Sold by order and for account of Messrs. J. C. Az6mar & Co. to Messrs. A. Casella & Co. the following cotton, viz., ~ 12S bales at 25d. per lb., expected to arrive in London, per 'Cheviot,' from Madras. The cotton guaranteed equal to sealed sample in our possession. Should the quality prove inferior to the guarantee, a fair allowance [*213] to be made." The *cotton turned out to be a particularly good sample of Western Madras, and not Long Staple Salem, and was therefore not in accordance with the sample, and the de- fendants rejected it. It was proved that these two cottons re- (d) Morriiin v. Gnth, 3 H. & ('. 74S; ?A L. .J. Ex. ](;:,. (e) Nichulson v. Unidfield I'niiiii, L. R. 1 (). V,. 6:3(1; :;."> L. .T O B 176; 7 B. (/) Azemar v. r,(sell((, L. R. :i C. P. 4:?1: L. R. 2 C. P. 677; 36 L. J. C. P. 124; 36 L. J. C. P. :2i;:!. (:2026) Ch. I LI AS TO QUALITY. 155 quire different machinery in their manufacture. It was contend- ed for the plaintiff that this was a sale of specific bales of cotton, with a warranty superadded that it should be equal in quality to the sample, and that it was not a sale subject to a condition that the cotton should be Long Staple Salem. But Wiles, J., in deliver- ing judgment for the defendants, said the property had not passed to them, and held that this was not a mere difference in value to be compensated for under the allowance clause, but an essential dif- ference in the species, so that the contract was for one thing, and the article tendered another. And this judgment was affirmed by Martin, B., Blackburn, J., Channell & Piggott, B. B., and Shee, J., in the Exchequer Chamber {g). In Smith v. Hughes (h), in 1871, the plaintiff offered to sell to the defendant 16 qrs. of oats, showing him a sample of them. There was a conflict of evidence as to what had taken place at the sale, the defendant saying that the plaintiff had offered old oats, the plaintiff denying that the word " old " had been used. The plaintiff delivered the oats, and when the defendant discovered they were new, he requested the plaintiff to take them back again, which he declined to do. The plaintiff then brought this action for the price. There were two questions to be decided in this case; the first was whether the word " old " had been used, for if so it was a condition precedent to the vendee's obligation to receive the oats, that they should be old; and the second question was whether there was any contract at all. On this point the case has already been noticed. In Heilbutt v. Hickson (i), in 1872, there was a sale by sample, — ^the sample itself containing a hidden defect. The*plain- [*214] tiffs in London had contracted to purchase 30,000 pairs of shoes equal to sample from the defendants in Northampton for the use of the French army. The defendants delivered parcels of shoes at Fenning's Wharf in London, and on cutting some of them open, it was found that some contained paper in the soles. The defendants then wrote a letter to the plaintiff, agreeing to take back those shoes which should be rejected in consequence of their containing paper. The defendants then delivered other parcels, making in all 12,825 pairs, which were inspected by the plaintiffs and paid for, and 12,- 225 of these were then sent over to Lille, where they were rejected by the French Government, as they were found to contain paper fillings in the soles. The plaintiffs then declined to receive any more shoes, and requested the defendants to take the shoes already delivered and to return the purchase-money. The defendants of- fered to take back all those which contained paper, but this could only be ascertained by cutting them open. The sample shoe was cut open, and it was found to contain p aper in the sole. At the (g) Azemar v. OaseUa, L. R. 2 C. P. 431 and 677; 36 L. J. C. P. 124 and 263. Ih) Smith V. Hughes, L. E. 6 Q. B. 597; 40 L. J. Q. B. 221. (i) Heilbutt v. Hickson, 7 C. P. 438; 41 L. J. C. P. 338. (2027) 156 CONDITIONS PRECEDENT. [Pt. II. trial the jury found that both the shoes delivered, and those ready for delivery, were not equal to sample, and that the defects could not have been discovered by any inspection which ought reason- ably to have been made by the plaintiffs. The defendants contend- ed that the plaintiffs had accepted the shoes, and could not now re- turn them, and that the plaintiffs' remedy was damages for breach of warranty. But the Court, consisting of Bovill, C. J., Byles and Brett, JJ., held that the plaintiffs were entitled to recover the loss of profit on the whole 30,000 pairs which would have accrued to them if the shoes has been accepted by the French Government, as well as the price already paid to the defendants, and that the plain - tiffs were entitled to throw back on the defendants' hands, the whole of the shoes at Lille as well as those which had been deliver- ed at Fenning's "Wharf and not forwarded to Lille. Eeferring to the alleged acceptance of the shoes by the plaintiffs after the in- spection in London, Brett, J., said: "The defect, though known to " the defendants' servants, was a secret defect, not discoverable by [*215] " any reasonable exercise *of care or skill on an inspection " in London. By the necessary inefficacy of the inspection in Lon- " don — an inefficacy caused by this kind of fault, viz., a secret de- " feet of manufacture which the defendants' servants committed — " the apparent inspection in London could be of no more practical " effect than no inspection at all .... the real inspection at Lille " being by the acts of the defendants' servants the first possibly ef- " fective inspection, it seems to me that such inspection was, by the " acts of the persons for whose acts the defendants were responsible, " substituted for the first inspection stipulated for by the contract" (fc). As to Quantity. In Waddington v. Oliver (I), in 1805, the plaintiff agreed to sell the defendant 100 bags of hops, to be delivered on or before the 1st of January, as might be agreeable to the plaintiff. He delivered twelve bags on the 12th of December, and demanded payment, and was refused, and commenced his action on the following day. The Court upheld the nonsuit, being of opinion that he could not demand the price until he had delivered the whole. In Cross Y. Eglin (m), in 1831, the contract was for 300 qrs. of rye "more or less." The vendor tendered 345 qrs., and the Court held that was more than was meant by " more or less." In Cunliffe v. Harrison (n), in 1851, the defendants, wine mer- chants at Liverpool, had ordered ten hogsheads of claret from the plaintiff, a wine merchaat at Bordeaux. The plaintiff sent fifteen (Jc) For asalo of goods " Arith .all faults," see Ward v. Holbs, 4 Ap. Ca. 13. (7) M'aihlinqinn v. inircr, 2 B. & P., N. E. 61. (m) rVoss V. Eijlln, 2 B. & Ad. 106. (n)- Cunliffe V. llarrixun, 6 Ex. 903 ; 20 L. J. Ex. 325. (2028) Ch. II.'\ AS TO QUANTITY. 157 hogsheads, and the defendants then wrote that they had ordered ten and would take that number only, provided they proved satis- factory. They subsequently tasted the claret and disapproved of it, and after some months' *delay gave notice to the [*216] plaintiff that they would not accept any of the wine. The Court on the motion ordered a nonsuit to be entered, Parke, B., saying, " If ten only had been delivered, and they (the defendants) had "forborne to take any objection for three or four months, that " would have been sufficient evidence that they approved of the " quality of the wine. * * * But the delivery of fifteen hogs- " heads, under a contract to deliver ten, is no performance of that " contract, for the person to whom they are sent cannot tell which " are the ten that are to be his * * * The delivery of more " than ten is a proposal for a new contract." In the note there are several cases similar to Cunliffe v. Ha7'- riSon (o). In Moore v. Campbell (p), in 1854, the defendant had contracted to sell to the plaintiff 100 tons of hemp, part of which was to arrive by the " George Green." The hemp was warehoused, and delivery orders were signed by the warehousemen for " about " fifty-two tons. The plaintiff refused to take the delivery orders in that form. The defendant resold the hemp. The Court held that evidence to show that the usage among brokers was to give delivery orders in this form should have been admitted (q). In Bourne v. Seymour (r), in 1855, the defendant contracted to sell to the plaintiff " about 500 tons of nitrate of soda." The contract contained this clause, "It is understood that the *above [*217] " nitrate of soda is to form the full and complete cargo of the " ' John Phillips,' 345 tons register," and a clause that if the 'John Phillips,' could not be made available from any cause, then the defendant was to deliver " another cargo or cargoes of about equal quantity." The defendant delivered a full cargo by the ' John Phillips,' but it fell considerably short of 500 tons. The Court (o) Cunlife v. Harrison, 6 Ex. 903 ; 20 L. J. Ex. 325 ; HaH v. Mills, in 1846,' 15 M. & W. 85 ; 15 L. J. Ex. 200 ; BieMrdson v. Dunn, in 1841. 2 Q. B. 218 , Bixon Y. Fletcher, in 1837, 3 M. & W. 146 ; Oxendale v. Wetherell, in 1829, 9 B. & C. 386 ; Bylands v. Kreitman, 19 C. B. N. S. 351. [p) Moore v. Campbell, 10 Ex. 323 ; 23 L. J. Ex. 310. Iq) [In Gwillim v. Daniel, 2 C. M. & E. 61, the word "say" was construed as " whieli we estimate at." In Leeming v. Snaith, in 1851, 16 Q. B. 275 ; 20 L. J. Q. B. 164 ; the words " say not less than " were held to be not mere words of expectation showing what the parties supposed the quantity would prove to be, but amounted to a contract to deliver at least that quantity. In SleConnell v. Murphy, in 1873, L. E. 5 P. C. 203, the words "say about " were held to be words indicating that the amount was expected to be, not warranted to be, a certain amount. In Morris M. Leirison, in 1876, 1 C. P. D. 155 ; 45 L. J. C. P. 409, "say about 1,100 tons " were heW not to be words of expectation, but a contract to deliver that amount.] (?) Bourne v. Seymour, 16 C. B. 337 ; 24 L. J. C. P. 202. (2029) 158 CONDITinXS PRECEDENT. [Pt. IT. held that the plaintifP was entitled to recover, for that this was an absolute contract to deliver 500 tons, and was not conditional on the vessel named holding that quantity (s). In Gorissen v. Perrin (t), in 1857, the defendant tendered bales of gambler which were only of about one-third of the weight of what were known in the market as bales. In Hoare v, Rennie, (u), in 1859, which was an action for not ac- cepting, the plaintiffs contracted in April to deliver to the defend- ants 667 ton of Swedish iron to be shipped from Sweden in about equal quantities in each of the months of June, July, August, and September. In the month of June the plaintiffs shipped only about 21 tons. The defend^ts declined to accept the 21 tons, and refused to receive the residue of the iron. The defendants de- murred, and in delivering judgment for them. Pollock, C. B., said, " The only question we have to deal with is whether, on a contract " like this, if the sellers at the outset send a less quantity than they " are bound to send, so as to begin with a breach, they can compel " the purchasers to accept and pay for the sending of which was a " breach and not a performance of the agreement," * * * and after referring to what might possibly have been the case if the defend- ants had received a portion and then refused the remainder, con- tinued, "Where parties have made an agreement for themselves, "the Courts ought not to make another for them. Here they say "that one-fourth shall be shipped in each month, and we cannot [*21SJ " say that they meant to *accept any other quantity. At " the outset the plaintiffs failed to tender the quantity according to " the contract: they tendered a much less quantity. The defendants "had a right to say that this was no performance of the contract ; " and they were no more bound to accept the short quantity than if " a single delivery had been contracted for." Watson and Channell, BB., were of the same opinion. It is very doubtful, however, whether this can be considered good law now, notwithstanding the remarks of Bramwell, L. J., in delivering his judgment in Honck v. MuUer (x), where he said it had been supposed that Hoare v. Rennie {y) had been overruled by Simpson, v. Crippin (z), but that it was not so. In the case of Tamvaco v. Lucas (a), in 1859, the defendants were brokers del credere, and contracted for their principal, Dart, to piurchase from the plaintifP a cargo of "about 2,000 qrs., say from 1,800 to 2,200 qrs." of wheat, "sellers guarantee delivery of invoice weight ; buyers to pay for any excess of weight, unles it be the re- sult of sea damage or heating," payment cash in exchange for the XLHual shipping documen ts. The bill of lading was for 2215 qrs., («) See also Morris v. Lcrismi, 1 C. T. D. 155 ; 45 L. J. C. P. 409. (I) (riirissen V. Perrin, 2 C. B. N. S. (isl ; 27 L. J. C. P. 29. {n) Hoare \. Rennie, 5 H. & N. 19 ; 29 L. J. E.x. 7,3. [x) Honel- v. MnJler, 7 Q. B. D, 100 ; 50 L. J, Q. B. 529. (?/) Hoare v. llen.nie, 5 H. & N. 19 ; 29 L. J. Ex. 73. (z) Simpson v. Crijqrin, L. R. H Q. B. 14 ; 42 L. J. Q. B. 28. (a) Tamraco v. Lucas, 1 E. & E. 5sl ; 28 L. J. (,). B. 150. (2030) Ch. IL'\ AS TO QUANTITY. 159 and Dart refused to accept it. The invoice was for an amount not exceeding 2,200 qrs. Tne declaration stated that the plaintiffs were ready to deliver the shipping documents in exchange for the invoice price, so that the defendants were not to be charged more than they had contracted to pay. The Court held that if there had actually been 2,215 qrs. on board, Dart would have been justified in refusing to accept, and so if the usual shipping documents represented the cargo to be more than 2,200 qrs.. Dart might refuse to accept, and could not be made liable by proof that in fact the cargo was not more than 2,200 qrs. The words of the contract, "Buyers to pay for any excess of weigh," most probably referred to any actual ex- cess over *the invoice weight, and are consistent with the [*219] rest of the contract, that the quantity was not to exceed 2,000 qrs. In a second case of Tamvaco v. Lucas (&) in 1859, the contract was the same as in the first case. The shipping documents showed on the face of them, a quantity within the prescribed limits, but the amount actually shipped was below, and it was held that the purchaser was not bound to accept. In Simpson v. Crippin (c), in 1872, the purchasers brought an action for damages against the vendors for not delivering coal. The contract dated 10th June, was to purchase about 6,000 to 8,000 tons of coal, delivery to commence on first July in about equal monthly instalments over the next twelve months, into the purchaser's wag- ons at the vendor's collieries. On the 8th July the defendants com- plained that no wagons had been sent; this was followed by further complaints, and eventually only 158 tons were taken during that month. On the 1st of August the defendants wrote to cancel the contract, saying that their sole inducement to contract was the regu- lar and punctual withdrawal by the plaintiffs of the stipulated quantity during the summer months. Blackburn and Lush, JJ., held that the defendants were not entitled to cancel the contract; Mellor, J., was of the opposite opinion, holding that the case was governed by Hoare v. Rennie (d). These cases of conditions precedent as to quantity may be con- trasted with the case of Covas v. Bingham (e), where the contract was to buy a specific cargo believed to consist of a certain amount, whatever the amount might turn out to be in fact. And with the case of Johnston v. Kershaw (/) and that class of cases, in which the defend- ant was held bound to accept a difierent quantity to that mentioned in the contract, on the ground that the plaintiif was the purchaser's agent, and in *consigmng a different quantity was acting [*220] within the scope of his instructions. In Johnston v. Kershaw (g), in 18 67, there was an order from a ~Jb) Tamvaco v. Lucas, 1 E. &E. 592; 28 L. J. Q. B. 301. (c) Simpson v. Crippin. L. E. 8 Q. B. 14; 42 L. J. Q. B. 28. (d) Hoare v. Bennie, 5 H. & N. 19; 29 L. J. Ex. 73. (e) Covas v. Bingham, 2 E. & B. 386; 23 L. J. Q. B. 26. (/) Johnston v. Kershaw, L. R. 2 Ex. 82; 36 L. J. Ex. 44. (g) Johnston v. Kershaw, L. E. 2 Ex. 82; 36 L. J. Ex. 44. (2031) 160 CONDITIONS PRECEDENT. [Ft. II Liverpool merchant to merchants at Pernambuco to purchase 100 bales of cotton and to ship them to Liverpool. The plaintiff pur- chased and shipped 94 bales only, and recovered their pnce. The Court treated the case and no doubt correctly, as one of instruc- tions from a principal to an agent. Channel, B., said, "I am of " opinion that this order must not be taken as an order to buy 100 " specific bales of cotton at one iime, but that the plaintiff by pur- " chasing 94 bales has executed it with due and reasonable diligence." Ireland v. Livingstone (h) was also an action for not accepting. The case was first heard in the Queen's Bench in 1866, wkere the plaintiff obtained judgment, which was reversed in the Exchequer Chamber in 1870; and the Exchequer Chamber was reversed in the House of Lords in 1872. The defendant, who was a merchant in Liverpool, had given an order for sugar to the plaintiffs, who were commission merchants in the Mauritius, in the following terms: "My opinion is, that should the beet crop prove less than " usual, there may be a good chance of something being made by " importing cane sugar at about the limit I am going to give you " as a maximum, say 2(}s. dd. for Nos. 10 and 1'2, and you may ship " me 500 tons, to cover cost, freight, and insurance; 50 tons more " or less of no moment, if it enables you to get a suitable vessel; " you will please to provide insurance, and draw on me for the cost " thereof as customary, attaching documents, and I engage to give " same due protection on presentation. I should prefer the option " of sending vessel to London, Liverpool, or the Clyde; but if that " is not compassable, you may ship to either Liverpool or London." AYhen the plaintiffs received this letter prices and freights were [*221] above the limits mentioned by the *defendant, but subse- quently (viz., on 22 or 23 Sept.), prices having fallen, the plaintiffs purchased from several brokers 14 distinct lots of sugar, amount- ing to 393 tons, and consigned them to the defendant by a ship having on board a large quantity of sugar for other consignees. The plaintiffs continued to watch the market in the Mauritius, in- tending to complete the jiurchase of the full 500 tons, but before they were able to purchase any more, the defendant countermanded the order; and on the 393 tons arriving in England, refused to accept them on the grounds that he had contracted to purchase 500 tons, 50 tons more or less, and was entitled to refuse 393, and relying on Krciujer v. Blanck (i), that the contract was for the purchase of a cargo of 500 tons, to be consigned in a ship. which was to call for orders, whereas the plaintiffs had not sent a cargo nor in such a ship. The plaintiffs sold the sugar and brought this action for the difference. They contended that this was in fact a contract between principal and agent, and that they had a right to say, " we have " been buying under your authority 393 tons, and have appropriated (h) Inland v. liriiu/slonv, L. R. 2 Q. B. 99; L. E. 5 Q. B. 516; 5 E. & I. Ap. 395; 36 L. J. Q. B. 50; 39 L. J. Q. B. *28-2; 41 L. J. Q. B. 201. (i) Kreufjer v. Blanck, L. R. 5 Ex. 179; 39 L. J. Ex. 160. (2032) Oh. II.] AS TO QUALITY. 161 "them to you, and would have completed the order if you had not "stopped us;" or, as Shee, J., put it, "it was an order to purchase "up to 500 tons" (k) ; and the House of Lords sustained thfs view. Lord Blackburn said (l), "My opinion is, that when the order was " accepted by the plaintifFs there was a contract of agency by which " the plaintiffs undertook to use reasonable skill and diligence to " procure the goods ordered at or below the limit given, to be fol- " lowed up by a transfer of the property at the actual cost, with the "addition of the commission; but that this superadded sale is not " in any way inconsistent with Iho contract of agency existing be- " tween the parties, by virtue o"f which the plaintiffs wore under " the obligation to make reasonable exertions to procure the goods "ordered as much below the limit as they could " (m). This case may be contrasted *with Ex parte White, in re Nevill (n), [*222] where the contention was that a consignee was an agent, when in fact he was a principal. In Beuter v. Sola (o), in 1879, the action was to recover damages for the non-acceptance of 25 tons (more or less) of Penang pepper, October ^ November shipment from Penang to London. The name of the vessel, marks, and full particulars to be declared to the buyer within 60 days from date of bill of lading. On the 19th of January the plaintiffs declared 25 tons, of which 20 only were of November shipment, and the defendants declined to accept, on the ground that it was not the full quantity of November shipment. Subsequently, on the 5th of February, the plaintiffs again declared the 20 tons, together with 5 more tons, all of November shipment, but as to these 5 tons the tender was more than 60 days from the date of the bill of lading, and the defendants again refused to take the pepper. The question was, whether the plaintiffs could main- tain the action in respect of the 20 tons. Lord Coleridge, C. J., who tried the case without a jury, directed judgment to be entered for the defendant. On appeal, Thesiger and Cotton, L.JJ., were of opinion they could not; Thesiger, L.J., saying, " The subject of the " contract is the sale of a specific quantity of a given article, with "a margin for a moderate excess in or diminution of that quantity "under the words 'about' and 'more or less.' The rule applicable " to such a contract, if it were not qualified by other provisions, "would be that, subject to the moderate margin, the sellers cannot " call upon the buyers to accept any greater or less quantity of the " article bargained for than the specified quantity. In the present "case, if the 5 tons shipped or declared too late, be excluded, the "diminution in quantity is clearly beyond the margin." Brett, (k) L. E. 2 Q. B. 107. h) L. R. 5 E. & I. Ap. 409; 41 L. J. Q. B. 205. (m.) [In delivering judgment in this case, Lord Blackburn sliowed, witli great clearness, the position of an agent consigning to a princi]ial at a price to cover cost, freight, and insurance, 5 E. & I. Ap. 406; 41 L. J. Q. B. 204.] (n) Ex parte White, In re Nevill, in 1870, 6 Ch. Ap. 397; 40 L. J. Bank. 73.. (o) Meuter v. Sala, 4 C. P. D. 239; 48 L. J. C. P. 492. 11 CON. OF SALE. (2033) 162 CONDITIONS PBECEDENT. [Pt. II. L J differed, being of opinion that the plaintiffs were entitled to r*223] recover in respect of the 20 *tons, leaving the defendants to a cross action in respect of the 5 tons. lu the case of Englehart v. Bosanqiiet (p), it was held that, on a sale of 2,000 tons of sugar to come in two ships, when the sugar by the first ship was not equal to contract, the buyer was not bound to take the other. In Kreuger v. Blanck (g), in 1870, the order was for a "small cargo," " in all about 60 cubic fathoms," of lath-wood. The plain- tiffs shipped 83 fathoms on board the ' Scandia ' for Gloucester, where their agent unloaded her and set apart 60 cubic fathoms for the defendant, who declined to accept them, on the ground that he had contracted for a cargo and not for a portion of one. Kelly, C. B., and Cleasby, B., delivered judgment for the defendant ; but Martin, B., was of opinion that the defendant was not more en- titled to refuse the timber tendered because other timber came with it than he would have been if the cargo had consisted in part of sugar or cotton. Blackburn, J., while delivering judgment in Ire- land V. Livingstone (r), cast some doubt on this case. Borrowman v. Drayton (s), in 1876, was an action for not ac- cepting, very similar to Kreuger v. Blanck (t). The plaintiffs con- tracted to sell to the defendant a cargo of from 2,500 to 3,000 bar- rels of petroleum. They shipped 3,000 barrels, but as this was not a full cargo, they put 300 more barrels on board, marking them so that they could be distinguished from the 3,000, and made out sep- arate bills of lading for the two quantities. The Exchequer Court, consisting of Kelly, C. B., Cleasby and Amphlett, BB., decided that the defendant was not bound to accept, and their judgment was affirmed in the Court of Appeal by Cockburn, C.J., James and Hel- lish, L.JJ., and Baggallay, J. A.; Mellish, L.J., said, "We think [*224] "that effect must be given to the term ' cargo,' as '*distin- " guished from the specified quantity, as, if the parties had intended " otherwise, it would have been enough to specify the quantity without introducing the term ' cargo ' at all " (m). As to Time. In Alweyii v. Prior (x), at Nisi Prius, 1826, the contract was for the sale of " all the Gallipoli oil on board the ' Thomas ' * * * " on arrival in Great Britain : to be delivered with all convenient [p] Englehart v. Bofsanquci, not reported, but mentioned by Bramwell, L. J., in Iloiick v. iVuller, 7 Q. li. D. 100; 50 L. J. Q. B. 5'_'9. (q) KiTugrr v. Blanvl-, L. R. 5 Ex. 179 ; 39 L. J. Ex. 160. M Irilrtnd v. Lifingstone, r> E. & I. App. 410 ; 41 L. J. Q. B. 206. (s) Borromiitm v. Drayton, 3 Ex. X>. 15 ; 47 L. .1. Ex. 27:!. (0 Kraigrr v. Blanck, L. R. 5 Ex. 179 ; 39 L. J. Ex. 160. {u) Cuthbcrl V. Cumming, in 1S55, 10 Ex. 809 ; 11 Ex. 405 : 24 L. J. Ex. 198 ; 24 L. J, Ex. 310. (a;) Alweijn v. Prior, Ey. & M. 406. (2034) Ch. II.] AS TO TIME. 1(53 " speed, but not to exceed the 30th day of June next, &o." The vessel did not arrive till the 4th of July. The oil was tendered, but the purchaser refused to accept it ; and Abbott, C. J., held that he was justified. In Busk V. Spence (y), at Nisi Prius, in 1815, the contract for the sale of flax stated that "the flax shall be dispatched from St. " Petersburgh not later than the 31st July * * * and as soon " as he (the seller) knows the name of the vessel in which the flax " will be shipped, he is to mention it to the buyer." The flax was brought from St. Petersburgh in lighters and put on board before the end of July, but the ship did not sail until the 4th of Septem- ber. The seller received the advice on the 12th of September in London, but did not communicate it to the defendant at Hull until the 20th. The defendant declined to accept the flax. Gibbs, C. J., was of opinion that the flax had been despatched in due time, but that-the stipulation as to mentioning the name was a condition pre- cedent, and that it had not been complied with (2). In Barber v. Taylor (a), in 1839, the contract was for 150 *bales of cotton payment being provided for in these terms, [*225] " Upon * * * forwarding a bill of lading, I will accept your draft at sixty days' sight after the receipt of the bill of landing." The cotton was put on board the ' Romulus,' and the bill of lading was sent by the same ship, which arrived on the 21st of April. On the 24th, the plaintiff told the defendant that Messrs. Wilson had the bill of lading in their possession, and would not give it up unless the defendant got a banker's guarantee of his acceptance, or paid cash, or pledged the cotton with a broker to secure payment. The defendant declined these terms, and on the 25th he offered to ac- cept the draft if the bill of lading were handed to him. It was not handed to him, and he declared the contract was at an end. On the 3rd of May the plaintiff tendered the bill of lading with the draft, but the defendant refused to receive it or to accept the draft, on the ground that it had not been tendered within a reasonable time after delivery. Parke, B., pointed out that it might be material to the purchaser to have it delivered as soon as possible after its arrival, so that he might go into the market and sell, and the Court held that he was not obliged to receive it after the delay (6). In Startup v. Macdonald (c), in 1843, the contract was to sell and deliver 10 tons of oil "within the last 14 days of March;" the plain- tiff tendered it at half-past eight on the eveping of the last day of March' It was found that the tender had been made in time • to give the defendant full oppurtunity to weigh, examine, and receive (y) Busk V. Spence, 4 Camp. 329. (z) See Graves v. Legg, post, p. 227, 9 Ex. 709 ; 2 H. & N. 210 ; 26 L. J. Ex. 316 ; and Renter y. Sala ante, p. 222, 4 C. P. D. 239 ; 48 L. J. C. P. 492. (a) Barber v. Taylor, 5 M. & W. 527. [(b) Parol evidence may be given to show what is a reasonable time, Ellis v. Thompson, in 1833, 3 M. & W. 445.] (c) StaHup v. Macdonald, 6 M. & G. 593 ; 12 L. J. Ex. 487. (2035) 164 CONDITIONS PRECEDENT. [Pt. II. the oil, but the defendant who was present declined to receive it on the ground that the tender had been made at an unreasonable time, and it was held by Rolfe, Gurney, Alderson, and Parke, BB., and Williamson and Patteson, JJ., that the tender had been made in time. Lord Denman, C. J., dissenting. All the authorities were considered in this case. Parke, B., in his judgment (d) saying, [*22(')] " Where a thing is to be done anywhere, *a tender a conveni- "ent time before midnight is sufficient; where the thing is to be "done at & particular place, and where the law implies a duty on "the party to whom the thing is to be' done to attend, that attend- " ance is to be by daylight, and a convenient time before sunset." In Duncan v. Tophani (e), in 1840, the defendant had on the 19th of February offered to take certain linseed cakes if put on board " directly." The plaintiff acccepted the ofTer on the 22nd, saying he would ship them "to-morrow," and shipped them on the 26th. The defendant declined to accept. The plaintiff in his declaration, set out the contract wrongly, but Cresswell, J., intimated that if he had stated it correctly, the verdict would have been against him (/). In Spiartali v. Bcuecke (g), in 1850, the contract was for goats' wool, "to be paid for by cash in one month." Two days after the contract, when the defendants demanded the wool, the plaintiffs re- fused to deliver it unless paid for. The defendants declined to pay then, and refused to take the wool after the expiration of a month. The Court was of opinion that the purchasers were entitled to call for the delivery of the goods at any reasonable time within the month, without tendering the price. In Staunton v. Wood (ft), in 1851, the contract was to deliver cable bars forthwith, payment in cash in fourteen days from the date of the contract. The Court was of opinion that the contract was to deliver within the fourteen days, and that delivery was a condition precedent to the right to sue. And a contract to supply goods "as soon as possible" means no more than within a reasonable time, regard being had to the vendor's facilities and extent of business, and to the contracts he already had in hand (/). f*227] *Graves v. Legg {k), in 1854, was an action for not accepting 300 bales of wool which were to be shipped from Odessa,and the names of the vessels to be declared as soon as the wools were shipped. {■) Oraivx V. Lrr/g, 'J Ex. 709 ; 23 L. S. Ex. 228. The two reports differ as to who delivered judgment. (2036) Ch. II.] AS TO TIME. 165 The defendant pleaded that the names had not been declared, and it was held on demurrer that this was a condition precedent which had not been performed. This case was again heard (l) in 1856, when it was proved that both the plaintiff and the defendant em- ployed the same brokers, and that the plaintiff had given notice to the brokers as soon as the wool was shipped, but that the brokers had not given notice to the defendants until some time afterwards. The Court held that the notice which was admitted to have been given according to custom wns sufficient. This judgment was af- firmed in the Exechequer Chamber (m). In Coddington v. Paleologo (n), in 1807, the plaintiffs contracted to sell to the defendants 900 pieces of cloth, " delivering on April 17 ; complete 8 May." They delivered no goods on the 17th, and the next day the defendants wrote saying they rescinded thfe con- tract. The plaintiffs declined to allow it to be rescinded, and ten- dered the whole of the 900 pieces before the 8th of May. The Court was equally divided, Kelly, C. B.j and Pigott, B., holding that the seller was not bound to deliver any portion of the goods on the 17th; Martin and Bramwell, BB., holding that he was bound. Alexander v. Vanderzee (o), in 1872, was another action for not accepting a large quantity of Danubian maize which the plaintiff had contracted to sell to the defendant " for shipment in June and (or) July." Two cargoes were tendered, for which the bills of lading were dated respectively the 4th and 6th of June. It ap- peared that the loading of the two cargoes began one .on the 12th and the other on the 16 th of May, and were completed on the 4th and 6th of June, more *than half of each cargo having been [*228] put on board in May. The jury found that these were June ship- ments. Martin, B., Blackburn, Mellor, and Lush, JJ., thought that the question whether or not they were June shipments had been properly left to the jury, and that the defendant was not justified in rejecting the maize. Kelly, C. B., doubted whether it was for the jury to say what was meant by June shipments (p). In the case of Brandt v. Latvrence (q), in 1876, the plaintiff had entered into two distinct and separate contracts in January, by each of which he contracted to sell to the defendant 4500 qrs. of oats, 10 per cent, more or less, " shipment by steamer or steamers " during a time agreed upon. The plaintiff shipped 5650 qrs. on board the ' Winstead,' and tendered them to the defendant, as to 4511 in fulfilment of the first contract and as to 1139 in part fulfil- ment of the second, and the defendant refused to accept them on the ground that the shipment had not been made within the time (I) Graves v. Legg, 11 Ex. 642. fm) Graves v. Leffff, 2 H. & N. 210 ; 26 L. J. Ex. 316. (n) Coddington v. Paleologo, L. R. 2 Ex 193 , 36 L. J. Ex. 73. (o) Alexander v. Vanderzee, L. E. 7 C. P. 530. (p) Ashforth v. Bedford, L. R. 9 C. P. 20. [q) Brandt v. Lawrence, 1 Q. B. D. 344 ; 46 L. J. Q. B. 237. (2037) 166 CONDITIONS PRECEDENT. [Pt. II. agreed upon. Subsequently the plaintiff shipped the remaining quantity of oats on board the ' Oxford.' These also the defendant declined to accept on the same grounds. The jury found that the shipment by the ' Winstead ' had been made in time, but that by the 'Oxford' was too late. Lord Coleridge, C.J., held that the de- fendant was bound to accept the whole of the oats by the ' Win- stead.' A new trial was refused by Blackburn and Quain, JJ., and they were affirmed by Mellish, James, and Baggallay, L.J J. Hel- lish, L.J., in the course of the argurcfent, said, "I think the legal " inference is, that it was intended that the shipment should be " made in different parcels, and that the purchaser was bound to " accept them as they came if they were in time, he was not en- " titled to wait in order to see whether the whole was in time." This 6ase was referred to by Thesiger, L. J., in his judgment in Renter v. Sola (r), where he said, speaking of the refusal to take r*229] all the oats on the ' Winstead,' "At the time of this *refusal " the sellers were acting in strict accordance with their contract, and " there was nothing to indicate that the contract would not be per- " formed by them in its entirety." In the case of Bowes v. Shand (s), in the House of Lords in 1877, the appellant, the purchaser, in March had agreed to purchase rice from Shand by a contract in the following terms : — " To be shipped at Madras or Coast * * * during the months of March '-^' April, 1874, about 300 tons, per ' Rajah of Cochin.' " There was also a further contract for 300 tons dated the 24th of March in the same words. The 600 tons filled 8200 bags, and bills of lading were signed for them as follows : for 1780 bags, bill signed 23rd Feb- ruary : for 1780 bags, bill signed 24th February : for 3500 bags, bill signed 2Sth February : and for the remaining 1080 bags, bill signed Brd March. But of these 1080 bags it turned out that all but 50 were put on board on the 28th of February, and those 50 od the 3rd of March. The defendants declined to accept any of the rice, on the ground that it was not shipped during the months of March ""/ April, and the House of Lords held that they were en- titled to do so. On the motion to enter judgment for the defen- dants, Blackburn, J., said, " That if the loading of all four parcels "had commenced in February, and been completed and bills of " lading signed in March, the case would have been identical with •' Alexander v. Vanderzce (t), and then it would have been a ques- " tion for the jury whether this was a shipment in March "-^^ April. " But that it was unnecessary to decide that in this case, because " the three earlier parcels were, in every sense of the word, com- " pletely shipped in February, and it was unnecessary to consider " whether the last shipment was according to contract, for the de- (!■) Hciilfr Y. Siilri, 4 C. r. D. 24.1 ; 4-< L. J. C. P. 4i)T. (s) Bowes V. SIiKiul, 1 Q. C. D. 470; 4.") L. J. Q. B. 507: 2 Q. B. D. 112; 46 L. J (). B. 201; 2 App. Ca. 455; 46 L. J. Q. B. 561. (/) Alexander v. Vunderzee, 7 C. P. 530, ante, p. 227. (2C38) Ch. //.] AS TO ARRIVAL AND DELIVERY. 167 " fendants, who bargained to have 600 tons shipped in March, were " not bound to accept 4 tons shipped in March, and 596 shipped in "February." *This judgment was reversed in the Court of [*230] Appeal (m), but restored in the House of Lords (a;). And in Renter v. Sola (y), in 1879, the contract was to deliver 25 tons of pepper of October ^- November shipment, name of ves- sel and full particulars to be declared to buyer within 60 days of the bill of lading. Only 20 tons were declared within the 60 days, but subsequently 5 more tons were declared. It was held that the purchaser was not bound to accept. The word "month" means a lunar month in legal matters, but in commercial matters it always means a calendar month, unless- the contest shows differently (z). In Acts of Parliament it means a calendar month, unless words are added showing a lunar month to be meant (a). And where the contract is for the sale of goods to be paid for in two months, the time must be calculated exclusively of the day on which the contract was made, so that the vendee may have two entire calendar months in which to make payment (&). As^ to Arrival and Delivery. Unless there are express terms to the contrary, if the goods per- ish without any fault on the part of the vendor, he is relieved from his obligation to deliver (c), and the vendee's obligation still re- mains binding on him to pay for the goods *if the property [*231] in them had passed to him at the time when they were destroyed. In the following cases the question was, whether the arrival of the goods was a condition precedent. In Boyd v. Siffkin (d), at Nisi Prius in 1809, the sold note was in the following terms :— "Sold for Mr. H. Siffkin to Mr. Boyd, about 32 tons more or less of Eiga Ehine hemp, on arrival per ' Fanny and Almira.' " The vessel arrived with no hemp on board. The purchaser brought this action for not delivering. Lord Ellen- borough was of opinion that the words bought and sold in the notes meant contracted to buy and sell, on arrival of the hemp, not of the ship, and nonsuited the plaintiff'. (u) 2 Q. B. D. 112; 46 L. J. Q. B. 201. (x) 2 App. Ca. 455; 46 L. J. Q. B. 561. \y) Reuter v. Sala, 4 C. P. D. 239; 48 L. J. G. P. 429, ante, p. 222. (z) Per Pollock, C. B., in HaH v. Middleton, in 1845, 2 Car. & Kir. 10. \a) 13 & 14 Vict. c. 21, s. 4. h) Wcib v. Fairmaner, 1838, 3 M. & "W. 473. (e) For tlie law on this subject, see the Principles of Contract, by F. Pollock, 3rd ed., p. 376— Impossible agreements : And Paradine v. Jane, Aleyn, 26 ; Taylor v. Ckldwell, 3 B. & S. 826; 32 L. J. Q. B. 164 ; Api}leby v. Myers, L. E. 1 C. P. 615; 2C. P. 651; 36 L. J. C. P. 331; Bailey v. De Crespigny, L. R- 4 Q. B. 180; 38 L. J. Q. B. 98; Anglo-Egyptian Navigation Co. v. Bennie, L. E. 10 C. P. 271; 44 L. J. C. P. 130; Howell v. Coupland, L. E. 9 Q. B. 462; 1 Q. B. D. 258; 43 i. J. Q. B. 201; 46 L. J. Q. B. 147; SiUs v. Sughrue, 15 M. & W. 253; Bobinson v. Davison, L. E. 6 Ex. 269; 40 L. J. Ex. 172; Jackson v. Umon Marine Insurance Co., 42 L. ,T. C. P. 284; 44 1. J. C. P. 27; L. R. S. C. P. 572. (d) Boyd V. Siffkin, 2 Camp. 326. (2039) IQQ COJfDITIONS PRECEDENT. [Ft. 11. Idle V. Thornton (e), at Nisi' Prius in 1812. The contract was for 200 casks of tallow " on arrival : " " if it should not arrive on or beforo the 31st of December next, the bargain to be void." The vessel with the tallow on board, was wrecked off Montrose in Nov- ember; the greater part of the tallow was saved, and might have been forwarded to London by the 31st of December, but the defen- dants sold it at Leith. Lord Ellenborough held that the contract was conditional on the arrival of the tallow in London in the ordinary course of trade, and nonsuited the plaintiffs, the pur- chasers. In Alexander v. Gardner (/), in 1835, the contract was to pay for butter by a bill at two months after the butter was landed. The Court held that this term was introduced to fix a date for payment, and not to make the landing a condition precedent. In Lorriit v. Hamilton (g), in 1839, the vendor was sued for dam- ages for not delivering 43 tons of oil. The contract was for " 50 tons of palm oil, to arrive per 'Mansfield.' Id case of non arrival, or the vessel's not having so miich in after delivery of former contracts this contract to be void." Part of the 'Mansfield's' cargo was trans- [*232] shipped to the ' "Watt,' *and when the ' Mansfield ' arrived, and delivery on former contracts had been made, there were only 7 tons left for the plaintiff. The Court held that the arrival of the oil in the ' Mansfield ' was a condition precedent, and that the plaintiffs were not entitled to the oil transshipped on to the ' Watt.' And further, that the contract was entire, and the plaintiffs were not en- titled to the 7 tons which did arrive by the ' Mansfield.' Johnson v. Macdonald (h), in 1S42, was an action against the seller for not delivering soda according to the followiog contract : — " 100 tons of nitrate of soda, at 18s. per cwt., to arrive ex 'Dan- iel Grant,' to be taken from the quay." The 'Daniel Grant' ar- rived without any soda on board. The plaintiffs contended that there was .a warranty that the goods should arrive, " but," said Parke, B., "the words 'to arrive' and 'on arrival' meant the same "thing, and that the word 'to' was not the same as 'shall,'" and held that the performance of the contract was conditional on a double event — the arrival of the vessel, with the cargo on board (i). In Gorrissen v. Perrin (k), in 1857, the action was for not de- livering 1170 bales of gambler stated in the contract to be "now on " passage from Singapore, and expected to arrive at London, viz., "per 'Eavenscraig' 805 bales, per 'Lady Agnes Duff' 365 bales." Both ships arrived with the specified number of packages on board (e) Idle V. Thornton, 3 Camp. 274. (/) 4J''-mn(lcr v. (Jardncr, 1 Bins. ^''- C. 677. ((j) J.oratl V. Hfimilton, 5 M. & W. (531). (/») Johmon x. Macrlnnahl, 9 "SI. & ^^'. GOl; 12 L. .T. Ex. 99. (i) [For ine.",iii!ior,f "now on pas.'fage, expected to arrive," see OnrrissaiY. Perrin, in 1W57, 2 C. B. N. S. 681; 27 L. J. C. P. 29; and Fischel v. Scoit, in 1854, 15 G B. 69.] (k) Gorrisscn v. Perrin, 2 C. B. >f. g, c.^x- 07 i, j q p_ 29. (2040) Ch. II.] AS TO ARRIVAL AND DELIVERY. 169 cohsigned to the defendants, but these packages were only one- third of the weight of packages of gambier known in the trade as bales. There were also on board a number of bales sufficient to satisfy the contract and of full weight, but not consigned to the defendants. The plaintiffs firstly declined to accept the light bales, but subsequently did accept them, and brought this action against the sellers on two counts, first for breach of the warranty that *bales of the description known in the market as bales were [*233] on their passage from Singapore, and second for breach of contract to deliver bales of the description commonly known in the markets as bales. The defence was that the duty to deliver depended on a double contingency, viz., that the stipulated number of bales should an-ive and should come consigned to the defendants. The case was decided on the first count and in favour of the plaintiff. The Court being of opinion that the statement that the goods were " now on passage from Singapore " amounted to a positive assurance, that the goods were then on their passage; although, if circumstances had subsequently occurred whereby the arrival of the goods had been prevented, the defendants might have been protected by the words " expected to arrive." The second count thus became im- material, but Cockburn, C.J., delivering the judgment of the Court said, " It may well be, that if a man takes upon himself to dispose " of goods expected to arrive by a certain ship, as goods over which " he has a power of disposal, and the goods afterwards arrive not " consigned to him, he shall be precluded from saying, that, in ad- " dition to the contingency of their arrival, there was implied the " further contingency of their coming consigned to him. He has " dealt with them as his own, and cannot be allowed to import into " the contract a new condition, viz., that the goods on their arrival "shall prove to be his." Tregelles v. Sewell (I), in 1862, was an action by the purchaser against the vendor for not delivering a balance of 20 tons. The contract was for the sale of " 300 tons Old Bridge Rails, at 51. 14s. "Od. per ton, delivered at Harburgh, cost, freight, and insurance; "payment by net cash in London, less freight, upon handing bill "of lading and policy of insurance." The defendant shipped the 20 tons which remained to be delivered, on board a vessel bound for Harburgh, and having insured the iron handed the bill of lad- ing indorsed *in blank together with the policy to the [*234] plaintiffs, and received payment less freight. On the voyage the vessel met with a storm, and put into a port for repairs, where the iron was seized under an execution on a bottomry bond. It was contended for the plaintiffs that this was a contract to deliver the iron at Harburgh, but the Court held, and was affirmed on appeal, that the contract was not to deliver at Harburgh, but that the iron was to be shipped for Harburgh and insured, and to be paid for at (0 Tregelles v. Sewell, 7 H. & K. 574. (2041) 170 CONDITIONS PRECEDENT. [Pt. 11. the rate of 5Z. 14s. 6d. per ton, which was to include cost, insurance and freight to Harburgh. In the case of The Calcutta and Bwnnah Steam Navigation Co. V. De Mattos (m), in 1863, there were cross- actions, in one of which the company sought to recover damages from De Mattos for not delivering coal, and to recover half the price paid in advance for the coals which he had not delivered in consequence of loss at sea, and in the other De Mattos sued for the unpaid balance. The company, wishing to have coals supplied to them at Rangoon, en- tered by letters into a contract with De Mattos, of London, to sup- ply them with 1000 tons of coal, at 21. 5s. at ton, delivered over the ship's side at Rangoon; payment to be made in cash, one-half on handing over the bill of lading and policy of insurance to cover the amount, the other half on delivery at Rangoon. De Mattos char- tered the 'AVaban' and put on board 1166 tons, on which he ef- fected an insurance for 1400Z., and handed the policy and bills of lading to the company. The bill of lading made the coals to be deliverable to company or assigns. The invoice value of the coals was 2623Z. 10s., and the company paid De Mattos one-half of this sum, viz., 1311L 15s. less discount. The 'Waban' sailed, and, owing to bad weather, a portion of the coals had to be thrown over- board, and on putting into the Mauritius she was deemed unsea- worthy, and her cargo was discharged, and 860 tons of the coals were reshipped on board the 'Alfred Lamont' "When the 'Alfred Lamont ' arrived at Rangoon her captain claimed 45s. a ton freight, [*235] and on the *company's agent refusing to pay it, the coals were sold by auction. The chief questions were, whether the company were entitled to recover back the sum paid by them to De Mattos, and whether De Mattos could recover from the company the balance, viz., 1311/. 15s. of the invoice value of the coals. Blackburn, J., in delivering (k) his judgment in which Mellor, J., concurred, said, "the case depended on 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 doeu- " ments, 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 " showing 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 com- "mon case where goods are ordered to be sent by a carrier to a "port o f destina tion. The vendor's duty is in such cases at an (m) Calcntia and Burmah Steam Navigation Co. v. De 3Iultos, 32 L. J. Q. B. (») 32 L. J. Q. B. 328. (2042) Ch. //.] AS TO ARRIVAL AND DELIVERY. 171 " 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. See Dunlop v ''Lambert (o). If the parties intend that the vendor shall not " merely deliver the goods but also underbake that they shall actu- " ally be delivered at their destination, and express such 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 con- " tract to deliver at the place of destination. See Dunlop v. Lam- "bert (o). But the parties may intend an intermediate state of " things; *they may intend that the vendor shall deliver the [*236] " 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 dama- "ges for a breach of contract, if the goods do not reach their desti- " nation, 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 then they shall 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 ar- " rive, or in the other cause the tree to fall * * * The parties in " the present case have not, in express terms, declared their inten- "tion as to the time when the property in the coals was to be " transferred from De Mattos, who was to supply the coals, to the "company; and we are left to collect the intention from the vari- " ous stipulations in the contract. It is clear that the coals are to " be shipped in this country, on board a vessel to be engaged by " De Mattos, to be insured, and the policy of insurance and the bill " of lading and invoice to be handed over to the company. As " soon as De Mattos, in pursuance of these stipulations, gave the " company the policy and bill of lading, he irrevocably appropriated " to this contract the goods which were thus shipped, insured, and " put under the control of the company. After this he could never " have been required, nor would he have had the right to ship an- " other cargo for the company ; so that from that time, that which " had originally been an agreement to supply any coals answering " the description became an agreement relating to those coals only "just as much as if the coals had been specified from the first." * * "As to one-half of the price, the balance, as it is called in the let- " ters forming the contract, the intention that it should only be "paid 'on completion of delivery at Eangoon,' seems to me as (o) Dunlop V. Lambert, 6 CI. & Fin. 600. (2043) 172 CONDITIONS PRECEDENT. [Pt. //. r*237] "clearly declare! as words could possibly declare *it; and " consequently, I think, as to that half of the price no right vested " in De Mattos, unless and until there is a complete delivery at "Eangoon, But, consistently with this, there might be an inten- " tion that there should be a complete vesting of the property in " the goods in the company, and a complete vesting of the right to "the half of the price in De Mattos; so as in effect to make the " o-oods to be at the risk of the company, though half the price was "at the risk of De Mattos: so that the goods were Sold and deliv- " ered, though the payment of half the price was contingent on the " delivery. And this, I think, is the true legal construction of the "contract." Blackburn and Mellor, JJ., were of opinion that the company were not entitled to recover back any money, and that De Mattos was not entitled to the balance of the price; Gockburn, 0. J., and Wightman, J., being of the opposite opinion. On appeal to the Exchequer Chamber, Erie, C.J., Martin, B., "Willes, J., Chan- nell and Pigot, BB., came to the same conclusions as Blackburn and MeJlor, J J. And Williams, J., concun-ed in the views of Cockburn, C.J., and Wightman, J. On the question whether De Ilattos had contracted to deliver at all events at Eangoon, Black- burn, J., considered the case identical with that of Tregelles v. Sewell (p). In Paynter v. James (q), in 1867, the agreement was that two- thirds of the freight should be paid " on right delivery of the cargo." Held, that the payment of the freight and the delivery of the cargo were intended to be concuiTent acts. Smith V. Myers (?•), in 1870, was an action for damages for not delivering 600 tons of nitrate of soda under very unusual circum- stances. The defendants were merchants at Liverpool, and were in partnership with a house at Valparaiso. On the 15th of July the Valparaiso house, in obedience to the defendants' instructions, pur- chased 600 tons of nitrate of soda, and on the following day char- [*238] tered a ship *named the 'Precursor' to take it to England. They advised the defendants of the purchase. On the 13th of August an earthquake destroyed the greater portion of the soda, and some time afterwards the Valparaiso house cancelled the char- ter of the 'Precursor.' The defendants, on the receipt of the ad- vice of the purchase of the soda by the Valparaiso house, and be- ing ignorant of its loss, through their brokers, sold the soda to the plaintiffs. The material parts of the sold note were, " Liverpool, "Sept. 8, 1868. Messrs. William Smith and Co. We have this "day sold to you on account of Messrs. Myers, Son and Co., about " 600 tons, more or less, being the entire parcel of nitrate of soda " expected to arrive at port of call, per ' Precursor,' at 12s. 9d. per (p) TrrgrllesY. Sewell, 7 T[. & N. r.74. (q) Piii/nter v. ./rimes, L. K. 2 C. P. :M><. ((•) Smith V. Myers, L. R. 5 Q. B. 429: L. E. 7 Q. B. 139; 39 L. J. Q. B. 210; 41 L. J. Q. B. 91. ' (2044) Ch. //.] AS TO INSURANCE. 173 "cwt. * * * Should any cireumstance or accident prevent the " shipment of the nitrate, or should the vessel be lost, this contract "to be void." The defendants informed the Valparaiso house of the sale, and the Valparaiso house being in doubt whether the de- fendants might not still be liable to the plaintiff, purchased an- other 600 tons of nitrate of soda; and again chartered the 'Precur- sor,' shipped the soda, and consigned it to the defendants. On hearing of the loss of the GOO tons first purchased, the defendants wrote to the plaintiffs' brokers saying that the contract was void, and sold the 600 tons to other parties. The plaintiffs demanded the second 600 tons. But it was held, both in the Queen's Bench and on appeal by the Exchequer Chamber, that they were not so entitled, on the ground that the goods which arrived were not those which were contracted for as expected tc arrive. The cargo contracted for had perished. The contract related to goods which were to arrive by a particular voyage, which voyage was never made, and it was a mere accident that goods cf the same descrip- tion as those contracted for should have come consigned to the de- fendants in the same vessel which was to have brought those goods. In many contracts, the delivery of the goods is a condition pre- cedent to the right to sue for the price; but where the vendee dis- penses with the performance of the condition, or the performance becomes an impossibility, the right arises at *once. Of [*239] such contracts, Cort v. Ambergate Ry. Co. (s), and Taylor v. Cald- ivell (t), and other cases of their class, are good examples. In Neill v. Whitworth (u), in 1865, the defendants, the vendors, contracted to sell to the plaintiffs " 500 bales of cotton at 15^d. per "lb., * * * to arrive in Liverpool per ship or ships from Calcutta. <(* * * The cotton to be taken from the quay, &c." The cotton was landed on the quay, and placed in a warehouse; and on a sub- sequent day the defendants offered to deliver the cotton from the warehouse at quay weights free of warehouse charge, or to carry it back to the quay and deliver it there, but the plaintiffs declined to accept it, on the ground that it should have been delivered at the time and place contracted for, viz., on arrival from the quay. The Court, however, held that the words "to be taken from the quay" were not a condition precedent, but were an independent stipula- tion introduced solely for the benefit of the vendors, to enable them to call upon the vendees to take the cotton from the quay in order to save expense. The following are Examples of other Forms of Conditions Precedent. Tamavaco v. L ucas (v), in 1861, was an action for not accepting (s) Cort V Ambergate By. Co., 17 Q. B. 127; 20 L. J. Q. B. 460. h) Taylor v. Caldwell, 3 B. & S., 826; 32 L. J. Q. B. 164. (u) Neill V. Whitworth, 18 C. B. N. S. 435; 34 L. J. C. P. 155. (v) Tamavaco v. Lucus, 1 B. & S. 185; 30 L. J. Q. B. 234; 3 B. & S. ,89; 31 L. J. Q. B. 296. (2045) 174 CONDITIONS PKECEDENT. [Ft. II. a cargo of wheat which the plaintiffs had contracted through the defendants, who acted as brokers, del credere, to sell to Dart who became insolvent. The contract was for a cargo of &bout 2,000 qrs. of wheat at 50s. f. o. b. at Taganrog, including freight and in- surance to a safe port in the United Kingdom, " payment, cash in "London in exchange for shipping documents." The plaintiffs tendered a bill of lading for 1850T*(r qrs., a provisional invoice for the same quantity, a policy of insurance for £3,600, and the [*240] *charter- party. The defendants refused them, contending that the policy did not cover the whole of the buyer's risks, as ap- peared from the provisional invoice and bill of lading; in other words, that in should have covered ISSO^V qrs. at 50a =£4,626. The freight to be paid amounted to £1001 10s. The Court held that, inasmuch as freight would not have to be paid unless the cargo arrived, it was not necessary that the policy should cover the freight: and thus the sum uncovered amounted to £24 10s. only. And that the meaning of the contract was not that the policy was to be calculated at 50s., so as to cover the buyer's interest, but should be for such an amount as an ordinary shipper would have effected for protecting his interest in the port of dispatch. The Court refused to disturb the verdict which the plaintiff had ob- tained, and was affirmed in the Exchequer Chamber. In Sanders v. McLean (iv), in 1883, the vendor brought an ac- tion against the vendee for refusing to accept iron for which the vendee had contracted to pay in London in cash in exchange for bills of lading and policies of insurance. The bill of lading was in three parts. The vendor tendered two of them, the third being in the shipper's hands in St. Petersburgh. The vendee refused to ac- cept, and the vendor having procured the third part, tendered all three, but at this time the ship, on board of which the iron was shipped, was so far on her voyage to Philadelphia, the place of de- livery, that she would in all probability arrive there before the bills of lading, and warehouse expenses would necessarily be incurred. The vendee again declined to accept. The Court of Appeal held that the first tender was good, and that was sufficient 'for the case, but Brett, M.R., was of opinion that the second tender also was good. In Bianchi v. Nash [x), in 1836, the plaintiff agreed to let the defendant a musical box on condition that if it were damaged while [*241] in his possession he should have it and pay an *agreed sum for it. It was damaged, and the plaintiff recovered the price in an action for goods sold and delivered. In some cases compliance with the provisions of a statute may be a condition precedent to the right to recover the price of goods sold, but this is not the case where the object of the statute is to (w) f^anders v. McLean, 11 Q. B. D. 327; 52 L. J. Q. B. 481. (x) Bianchi v. Nash, 1 M. & W. 54.5. (2046) Ch. II.'\ AS TO COMPLIANCE AVITH REVENUE LAWS. 175 enforce a penalty on tEe vendor -where lie enters into a contract without compliance, and not to make the contract void: as in Smith V. Mawhood (y), in 1845, where tobacco had been sold and the vendors had omitted to take out a licence or to paint their names on the premises pursuant to 6 Geo. IV. c. 81.] (y) Smith v. MawJiood, 14 M. & "W. 452; 15 L. J. 149; and Oundellv. Dawson, in 1847, 4 C. B. 376; 17 L. J. C. P. 311. See also 38 & 39 Vict. c. 63, [whicli enacts that no person shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance and quality of the arti- cle demanded hy such purchaser, Knight v. Bowers, 14 Q. B. D. 845]. (2047) 1Y6 ENGLISH AND CIVIL LAW CONTRASTED. [Pt. //. [*242] *CHAPTEE III. THE EFFECT OF A BARGAIN AND SALE IS TO TEAXSFER THE PROPERTY IN THE GOODS WITHOUT ANY DELIVERY; IN THIS RESPECT ENGLISH LAW DIFFERS FROM THE CIVIL LAW, As has been already observed, the rules which mark the difference between an executory agreement and a bargain and sale, are nearly the same as those which, under the civil law, distinguished between a mere contract to sell, and a perfect sale, " emptio perfecta." So far as those rules are founded in the nature of things, this is what might be expected; but some of the rules, which are merely technical, have been partially, and as it seems inconsistently in- troduced into English law. The Civil Law is founded, amongst others, upon two assumed principles, which are not recognised by the English law; one is, that a sale must be for a fixed price in money, and that a contract to part with property for a valuable re- compense, not consisting of moneys numbered, cannot be a sale, but must be of a different nature. The other is, that property cannot be transferred by any agreement, unless there be an overt act of de- livery of possession. Neither of these principles are recognised by the Enjrlish law, and such of the rules of the Civil Law as are founded exclusively upon them, ought not to prevail in a system in which the principles themselves do not exist. It seems, however, that this has not been always kept in sight by the English judges. The Civil Law consistently declared, that there could not be a perfect sale until the price was fixed in money, though everything else was ascertained; and, consequently, that a contract to sell the whole of a particular parcel of goods, at a price depending upon the number, [*243] weight, or measure of those goods, could *not be a sale until the goods were numbered, weighed, or measured, for till then the price was not fixed in money. The contract on the part of the vendor was complete, for he was to transfer a specific ascertained thing, in the state in which it then existed, but the consideration was not a fixed sum in money, till the number, weight, or measure was ascertained. This was a defect in the sale, according to the principles of the Civil Law, but it is bard to see why it should pre- vent the contract amounting to a bargain and sale in English law. In many cases the weighing, &c,, may be necessary to ascertain the specific goods; in others it may be necessary in order to put the goods into a deliverable state, and in those cases, the reasons are as applicable to English as to Civil Law; but where, as in Zagury v. Furnell (a), and Simmons v. S^cift (b), there is nothing unaseer- {(() Zagnn/Y. Furnell, •> Camp. :24n, ontc, p. 179. (i) Simmons v. Srcift, 5 B. & C. 857. riiite, p. 179. (2048) Ch. III.\ ENGLISH AND CIVIL LAW CONTRASTED. 177 tained except the money value of the price, and yet the goods are held not to be bargained and sold, there seems little to be said, ex- cept that such are the decisions. With this exception, however, the Civil Law seems to differ from the English, where the difference in the fundamental principles becomes material, and to agree with it in it other respects. English Law.— Operation of Contract. [In the English law a contract of sale has two effects (c). It operates as a contract giving rise to obligations or rights in per- sonam, as, for example, an obligation binding the vendor to deliver on payment of the price, and binding the vendee to pay the price, and it also, in some cases, operates as a conveyance of the property from the vendor to theovendee, giving to the vendee all those real rights or rights in rem which follow the property. It operates as a conveyance the moment the contract is made if the thing is specific, unless some rule of law as to *weigh- [*244] ing or measuring or otherwise prevents the passing of the property, or unless the parties have agreed that it shall not pass (d). But if the thing is not specific, or is specific and some rule of law, as for example as to weighing, measuring, or putting into a deliverable state, or the intention of the parties prevents the pro- perty passing, then the contract, at the time of making, jnerely operates to create personal obligations and no jus in rem, is created, a,nd until the thing is made specific, or the rule is complied with, or the intention exists, the owner may, in defiance of his contract, sell to some third person and give him a perfectly good title even if that third person had notice of the prior contract. When the thing has been made specific, or the rule of law has been complied with, and the intention existed, thenceforward the case is the same as if these circumstances had existed at the date of the contract, and it operates as a conveyance. In other words a contract by which it is presently agreed that when an event shall happen in future then the property shall pass, operates as follows — up to the happening of the event personal obligations only are created — after the event happens the contract operates as a conveyance, the property passes, and real rights are created. But by the Boman Law a contract of sale was only an enforceable promise. It gave rise to obligations only, and did not operate as a conveyance of the property. With them the property could be (c) Austin's Jurisprudence, 3rd ed., 1000 and 1006, Table II., note 4, C. c. (d) [But the law of Scotland on this point is different. There must he de- livery to pass the property; hut since the Mercantile Law Amendment Act of Scotland, 19 & 20 Vict. c. 60, s. 1, which prevents the creditors of a vendor who has sold, hut not delivered goods, ftom seizing those goods, this point has lost most of its practical importance, McBain v. Wallme, in 1881, 6 Ap. Ca. 608.] 12 CON. OF SALE. (2049) 178 ENGLISH AND CIVIL LAW CONTRASTED. [Pt. //. transferred by delivery only. The Eoman contract purported to pass the whole of the vendor's interest to the vendee, but it did not pass the property, for that passed by delivery only, and even de- livery did not pass it if the vendor was not actually the owner. The contract merely gave rights in personam but no rights in rem. Pothier (e) says the contract of sale of the Roman Law comprises r*'J4&J "An *obligation to deliver the thing to the buyer, and also " an obligation, when it has been delivered, to defend him against " all claims, which may deprive him of his possession, or prevent " him from making use of the thing as his own ; but they do not, " in strictness, import an obligation to transfer the property * * *. "And, therefore, if a buyer discovers that the seller was not the " owner of the thing sold, and consequently that the property in it " has not been transferred to him, he cannot, on that account, so "lono- as his possession remains undisturbed, complain that the sel- " ler has not fulfilled his obligation. It is, indeed, of the essence " of the contract of sale, that the seller should not intend to retain " the right of property in the thing, when he is the owner of it; " and that in such case, he should be bound to transfer it to the " buyer * * * But when the seller is not the owner, if he in " good faith believes himself to be so, he is bound only, as above " stated, to defend the buyer against those who seek to deprive him "of his possession, or to prevent him from exercising the rights of " ownership." The expression " Res perit domino " is a very meaningless one in the law of sales; and the distinction must be borne in mind between being the loser of the property and the loser by the contract. Whether that expression, can be used as an argument that, because the risk falls on one party, therefore the property is in that party, must depend entirely on the terms of the contract. For if the parties have agreed, as they certainly may, that although the pro- perty is to be in one party, yet if the goods are lost, the other party is to pay for them, it is clear that risk is no test of property in that case. Such was the case in Castle v. Playford (/). The case of Anderson v. Morice (g), in 1875, was a case of insurable inte- [*246]*rest, and it was argued at great length that the risk was with one party, even though the property was in the other. The Judgment of Lord Cottenham, L.C., in the case of Dunlop V. Lambert Qi), in ISyU, is a very instructive one upon this point. " We have now to determine whether, in a question between a " carrier and the person to whom the carrier is responsible in the Ce) Pothier's Contract of Sale, translated by dishing, p. 1. (/) r'axHp V. Plai/fiml, L. R. 7 Ex. 9^; 41 L. J. Ex. 44. See also Calcutta Co. V. De Jfillo., 32 L. J. Q. B. :W2; 33 L. J. Q. B. 214, ante, p. 234; and Shepherd v. Harrison, L. E, 4 Q. B. 1!I7 and 493; 5 E. & 1. A p. 116; 38 L. J. Q. B. 105 and 177; 40 L. J. Q. B 118. (f/) Anderson v. Moriee, L. R. 10 C. P. .S8; 44 L. J. C. P. 10; L. E. 10 C. P. 609; 41 L. J. C, P. 341; 1 Ap. fa. 713; 46 L. J. C. P. 11. (A) Dunlop V. Lambert, 6 CI. & Fin. 620. (2050) Ch. III.'\ ENGLISH AND CIVIL LAW CONTRASTED. 179 " event of the property being lost, the sending an invoice to the " consignee, by which it appeared that the property had been in- " sured and the freight paid by the consignor, and the amount of " such freight and insurance charged by the consignor to the con- "signee, deprived the consignor of the power of suing and of an " interest or right to recover the value of the property. 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, with- '■ out 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 consignee 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 be- " comes his special agent. But though the authorities all establish " the general inference is capable of being varied by the circum- " stances of any special arrangement between the parties, or of any " particular mode of dealing between them. If a particular con- " tract be proved between the consignor and the consignee, the cir- " cumstances of the payment of the freight and insurance is not "alone a conclusive evidence of ownership; as where the party " undertaking 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, [*247] " 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." And it is no test in Roman law, for there the loss falls on the vendee, but the property is still in the vendor. In the Roman and Scotch law, " Risk is no test of property. The " question of risk forms a point in the law of obligations, not in "the law of transference; and the decision of it depends upon " principles quite distinct from those concerned in the question of "property" {i). It may not be out of place here, while speaking of the effect of a contract of sale in English law, to point to a distinction which, al- though a fine one, seems nevertheless to be a clear one, between contracts which are intended to operate as sales at some future time, and contracts which are intended to operate merely as prom- (») Bell's Commentaries of the Law of Scotland, B. II., C. V. s. 1. (2051) 180 CIVIL LAW— POTHIER. [Pt. II. ises to sell. It is the difference which exists between an agreement that the property shall pass on the happening of some future event, without anything further to be done by either party in that behalf, and an agreement by which one party promises that on the hap- pening of some event he will then transfer the property. In the latter case the property does not pass until he does sell the thing, although the event may have happened, and such a contract at law creates merely a personal obligation to pass the property, and that, at law, will not create any real right or jus in rem. In equity, however, the vendee is in a better position, and such a contract would, when the event had happened, give him a good equitable title to the goods against all persons excepting any one who, in the meantime and hona fide, may have had the property transferred to him (h). [*248] *Por example, if the vendor promises that on a certain event happening he will assign a particular horse, when that event happens he is bound to assign it, and in contemplation of equity, has assigned it, and if he die or become bankrupt before the as- signment, equity will compel his legal personal representative to assign it (I). This, among other things, was decided in Holroyd v. Marshall (m). There Taylor, the occupier of a mill, covenanted with his landlord that if he, Taylor, should bring any new machinery into the mill he would, at his landlord's request, assign such machinery to a trustee upon certain trusts. The sheriff, at the suit of a cred- itor who had obtained a judgment against Taylor, subsequently seized the added machinery before any assignment to the landlord had been made. The landlord claimed it as equitable assignee, and the House of Lords sustained his claim. The sheriff can only seize the debtor's interest, which in this case was nothing, the debtor having promised to assign to his landlord.] The following extracts from Pothier's celebrated Treaties Du Contrat de Vcnte, will be found to throw considerable light upon the subject-matter of the last chapter. The reader must remember that Pothier wrote of the Law of France, such as it was modified by the customs of Orleans before the French Eevolution, so that his positions are not always to be considered as universally true of the Civil Law, and far less to be taken as authorities for English Law. The extracts are translated from the edition of Pothier's Works, published by M. Dupin at Paris in 1835. The first extract com- mences at p. 139 of the second volume, and ends at p. 144; the second extract commences at p. 147, and ends at p. 150. (/c) Austin's Jurisprudence, 3rd ed., 1001, Table II., note 4, C. c.; and Sol- royd v. Marshall, 10 H. L. i;. 191; 3:J L. J. Ch. 193; t^tockdale y. Dunlop, in 1840, 6 M. & W. 232. (I) Post, p. 3011. (m) Holroyd \. Mamhall, 10 H. L. E. 191; 33 L. J. Ch. 193. (2052) Oh. III.^ CIVIL LAW POTHIEE. 181 Pothier Du Contrat de Vente, Partie IV. " It is a principle established in the title of the Digest de peric. et comm. rei vend., that so soon as the sale is perfected, *the [*249] thing sold becomes at the risk of the purchaser, though it has not been yet delivered, so that if during that time it chance to perish without the fault of the vendor, the vendor is freed from his obli- gation, and the purchaser is not on that account freed from his, and is not the less bound to pay the contract price. " That the vendor should be freed from his obligation when the thing sold has perished without his fault, is a consequence of an- other principle, that every ohligation de certo corpore, is destroyed when the thing ceases to exist. Traits des Obligations, part 3, chap. 6. This principle is founded in the nature of things, for the thing due being the subject of the obligation, it follows, that when the thing ceases to exist, the obligation can no longer exist, not being capable of existing without a subject. " The second part of the decision, to wit, that the obligation of the purchaser does not cease to exist though that of the vendor be destroyed by the destruction of the thing, seems to be subject to more difficulty; nevertheless, it is true, and is founded in the nature of the contract of sale. This contract is of the number of those which are called consensualj which are perfected by the mere con- sent of the contracting parties. The delivery of the thing sold is not necessary for the perfection of the contract. The obligation to pay the price which the purchaser contracts, being then complete, by the mere agreement of the parties which has taken place, arid independently of the delivery, it should survive, although the thing sold has ceased to exist, and can no longer be delivered. It is true that so long as the seller is in default by not delivering the thing, he cannot compel payment, because he cannot be permitted to de- mand that the purchaser should fulfil his obligation towards him, whilst on his own side he has made default in fulfilling his own. But when the obligation of the vendor is extinguished, in one of the ways in which obligations from their nature may be extinguished, the purchaser has nothing to oppose to protect himself from fulfilling on his part his obligation, which having once been bind ingly contracted, cannot be put an *end to, save in one of [*250j those ways in which obligations are terminated. " Many moderns who have treated of the law of nature, amongst whom are PufEendorf, Barbeyrac, &c., have thought that the Roman lawyers had in this matter departed from the true principles of natural right; and they maintain, on the contrary, that the thing sold is at the risk of the vendor so long as he remains the owner of it: that it is upon him that any loss befalling that thing should fall, though it was without his fault, unless the purchaser was in default by not receiving it, and in like manner that it is he who should profit from any increase in the thing sold. Their arguments (2053) ly2 CIVIL LAW— POTHIER. [Ft. II. are, first, that it is a maxim recognised by the Eoman lawyers them- selves, that things are at the risk of their owner, res peril domino. The answer to that objection is, that the maxim is applicable when distinguishing between the owner and those who have the custody or the use of the thing; there the thing perishes to its owner rather than to those who have the custody or the use, who, by the destruc- tion which has befallen the thing without their fault, are discharged from the obligation which they have undertaken to restore it. But when we are distinguishing between the owner of a thing who is debtor of that thing, and the creditor of it who has an action against the owner to make him deliver it, there the thing perishes to the creditor rather than to the owner, who, by the destruction of the thing, is discharged from his obligation to deliver it. In fact, each loses the right which he had either in the thing or to the thing when it perishes by accident. The seller who is ovsmer of the thing loses his right of property such as he had it, that is a right which he could nothave kept, and which he was bound to have transferred to the purchaser, and the purchaser, on his part, loses the right which he had with reference to that thing, that is to say, the right which he had to cause it to be delivered. " They object, secondly, that the purchaser has not bound him- self to pay the price, save upon condition that he should have the thing given to him. I deny the proposition: he binds himself to [*251] pay the price, not on condition that the *vendor should give him the thing, but rather on condition that the vendor should bind himself on his side to him, that he will cause the thing to be given to him. It is enough, therefore, that the vendor should have en- tered into a binding obligation to that efFect, and not broken his obligation, in order that the obligation of the purchaser should have a consideration and subsist. " Although the reasons for the opinion of the Roman lawyers seem to me to preponderate, nevertheless, it must be owned that the question is not free from difficulty, and it appears that even the Roman lawyers have not been unanimous on this question, for Africanus in the law, 33 ff. locat. conducti. says positively, that if the state seize on the heritage which I have sold you before I have delivered it to you, so that it is no longer in my power to deliver it to you, I shall not, in truth, be liable to you for damages or interest, but I shall be bound to restore you the price. This text has seemed so positive to Cujas, that in his treatise ad African, upon this law, he has gone so far as to maintain, that according to the Roman law the thing sold was not at the risk of the purchaser, contrary to the positive decision of the other texts, and the general opinion against which he himself has written, ad I. 34, s. 5. alia caus.ff. de contrail, empt. Different commentators have conceived different methods of reconciling these. The most plausible is that of Dave- zan. Professor of our University of Orleans, in his treatise de Con- trail. He sayu, that in the instance given by Africanus, if the pur- f'20.-,4) Ch. I 11.^ CIVIL LAW POTHIKK. 183 chaser has a reimbursenieiit of the price, it is because the laws which compel possessors to quit possession of their heritage for some public cause, have apparently this clause, ' notwithstanding all sales which they may have previously made which shall remain void.' The sale being in that case rescinded, the purchaser must be reimbursed the price, but when the thing perishes that does not rescind the sale. Even if we do not admit this method of recon ■ ciling the authorities, and if Africanus was really of a different opinion from oui's, this opinion, which is imported into the Digest incidentally on another point, must yield to the positive decisions of the *other lawyers in the laws 7 & 8 jf . deperie. etconvm. [*252] rei vend., and to the decisions of the Emperors, to wit, of Alexander in the law 1, and of Gordian in the law 4, cod. diet, tit., and lastly, of Justinian in his Institute de empt. vend., s. 3, who says positive- ly, Emptoris damnum est cui necesse est licet rem non fuerit nactus pretium solvere. "309. After having settled that the thing sold remains at the risk of the purchaser so soon as the contract of sale is perfect, we must discuss when does the contract so become perfect. " In general, the contract of sale is considered to have become perfect so soon as the parties are agreed upon the price for which the thing is to be sold. This rule has its operation when the sale is of an ascertained thing, and is pure and simple. Si id quod venierit appareat quid quale quantum sit et pretium, et pure venit perfecta est emptio, I. 8, ff. de peric. et comi. rei vend. " In the sale of those things which consist in quantitate, and which are sold by weight, number, or measure, as if one sells ten bushels of wheat out of that which is in such a granary, ten hund- red weight of sugar, a hundred fish, &c., the sale is not perfect till the wheat has been measured, the sugar weighed, the fish counted, for up to that time nondum apparet quid venierit. It does not suf- ficiently appear which is the wheat, which the sugar, and which the fish, that are the object of the sale, since it can _ only be the wheat that shall have been measured, the sugar that shall have been weighed, and the fish that shall have been counted. " It is true, that before the measuring, the weighing, the count- ing, and from the instant of the contract, the engagements which arise from it are in existence. The purchaser has thenceforward an action against the vendor to make him deliver the thing sold, as the vendor has an action for the payment of the price on offering to de- liver it; but though the engagement of the vendor exists thence- forth, it is accurate to say, that it is not yet quite perfect, in this sense that it has but an unascertained subject, and one *which cannot be ascertained but by the measure, weight, [*253] or counting. " It is not, therefore, until one has made this measuring, weigh- ing, or counting, that the thing sold can be at the risk of the pur- chaser, for risk can only attach on an ascertained subject. (9055) 1;S4 CIVIL LAW — POTHIER. [Ft. II, "This decision applies not only where the sale is of a certain auantity of goods to be taken from a store in which there may be more, because in that case, as we have just said, until the measur- ing or the weighing has taken place, the thing which is sold consists not as yet of any ascertained subject on which risk can attach: it also applies in the case where the sale is of all that there is in a store or a granary, if the sale has been made at so much for each hundred weight, for each bushel of wheat, &c. "The sale in such case is not considered perfect, and the goods sold are not at the risk of the purchaser until they have been meas- ured or weighed, for up to that time non apparet quantum venierit. The price being agreed on only at so much for each hundred weight which shall be weighed, each bushel which shall be measured, there is no ascertained price before the measuring or weighing, . and therefore the sale up to that time is not sufficiently perfect to make the risk of the things sold concern the purchaser: he ought not to be charged with it till the goods have been weighed or measured. " But if the things have not been sold by weight or measure, but per aversionem, that is to say, in the mass for one entire price, in that case the sale is perfect from the moment of the contract, and from that time these things, like any others, are at the risk of the purchaser. All these principles are taken from the law 35, s. 5, de contrah. empt. "310. The thing sold being at the risk of the purchaser from the moment of the contract, when it is sold j)er aversionem, and the thing sold on the contrary remaining at the risks of the vendor until the things are measured, when the sale is by measure, it is important to know when a sale is taken to be made per aversionem, [*254] and when it it is taken to be *made by measure. The fol- lowing rules will ascertain it: — " Rule 1. It cannot be doubted that the sale is by measure, when it is expressly agreed that the price shall be for each measure, as if the contract be to sell so many bushels of wheat, which are in such a granary, at the rate of so much per bushel, or if the contract be to sell a bin of wheat in such a granary, which contains ten bushels, in each case the sale is made by measure; all the differ- ence is, that in the first case, the surplus of the wheat, if there be more than ten bushels, is not sold, whereas in the second, the en- tire bin is sold, though there be in it more than ten bushels. '^ Rule 2. When the sale is of so many 'measures of such a thing the sale is considered to be by measure, though by the terms of the contract there is expressed to be only one price, as if it were said, ' Sold ten- bushels of wheat for five hundred livres,' the price being construed to be no more than the sum of the price for which each bushel is sold. Non interest unum pretium omnium centum metra- rum, an semel dictum sit an in singulos eos. (diet. I. 35, s. 7, de contrah. emxd.) " Rule 3. When the sale is for one entire sum, not of so many (2056) Oh. III."[ CIVIL LAW POTHIER. lS5 measures of such a thing, but of some thing which is represented to contain so many measures, the sale is made per aversionem (as if the sale is expressed to be of such a meadow for 1,000 livres, warranted to contain twenty acres), and therefore the thing is from the moment of the contract at the risk of the purchaser, I. 10, s. 1, de peric. et com/mod. rei vend. The mention of the number of acres has no further effect than to bind the vendor to make compensation to the purchaser for any short- coming in the quantity, if it be smaller, as has been said {supra, part 2). " 311. There are certain things which are sold subject to being tasted, as wine, oil, &c. These sales are even less perfect on 'the part of the purchaser until the things sold have been tasted than are sales of things sold by measure until they have been measured, for in the latter, from the instant of the contract, it no longer de- pends upon the purchaser ■*whether the sale shall take [*255] place. Before the goods have been weighed or measured he is as much bound to execute the contract as the vendor is, and the weight and measure do but fix and ascertain what has been sold, whereas in sales made subject to tasting, the purchaser may refuse to execute the contract if he finds the merchandize not to his taste. Alia causa est degustandi alia metiandi; Gustus enim ad hoc pro- flcit ut improbare liceat, I. 34, s. 5, ff. de contrah. empt. These sales, then, up to the time of tasting, are more imperfect than those made by weight and measure, and consequently in these sales the things sold cannot be at the risk of the purchaser until he has made default in tasting them. " According to the practiSe of our tribunals, differing from the Roman law, it is requisite, in order that the purchaser may be considered in default, that the vendor should have obtained a de- cree to order the purchaser to taste by a fixed day, or otherways that the sale shall be absolute and unqualified. "Note, also, that it is necessary to distinguish whether the pur- chaser has bargained that he is to taste the goods to see whether he approves of them, or only to see whether they are good, sound, merchantable, and not spoiled. It is only in the first case that he can be off his bargain by declaring, after he has tasted, that he does not like the goods. In the other he cannot reject the goods if they be really merchantable. " 312. When a sale is made subject to a condition, any loss sus- tained by a partial injury to the thing during the time intervening between the making of the contract and the fulfilment of the condi- tion falls upon the purchaser if the condition is afterward fulfilled, for the vendor is only bound to deliver it such as it may exist, pro- vided it is not injured by his fault. " But the total destruction of the thing falls upon the vendor, for the fulfilment of the condition, after the total destruction of the thing, cannot confirm a sale of a thing no longer existing. " 313. In sales in the alternative, whether the election be left to (2057) 286 CIVIL LAW POTHIBR. [Pi!. //. r*256] the vendor or expressly given to the purchaser, the *fir8t of the two things which perishes after the contract perishes' to the vendor, for that which survives remains in obligatione, he is bound to deliver it; but if the surviving thing also perishes, it perishes to the purchaser, who remains bound to pay the price, though there no lont^er remains any of the things sold capable of being delivered to him. See what . is said of contracts in the alternative, in my Traits des Obligations, part 2, chajj. 2, art. C. " If they perish in the interval the vendor is similarly freed from his obligation, and the purchaser remains a debtor for the price." Pothier Du Contrat de Vente, Partie V., Chap. 1, p. 147. Aeticle II. Of the effect of delivery. " 319. When the vendor is owner of the thing sold, and has a capacity of alienation, or if he is not, when he has the consent of the owner, the effect of delivery is to transfer to the person of the purchaser the property of the thing sold, provided the purchaser has paid the price, or the vendor has given him credit for it. " The contract of sale by itself cannot produce this effect. Con- tracts can only make personal engagements between the parties; it is only a delivery made in pirrsuance of the contract, which can transfer the property of the thing 'feold according to this rule. Trndltionibiis et usucapionibus dominia rerum non nudis pactis transferuntur, I. 20, Cod. de pact. " 320. Hence it follows that if the owner of a thing, after having sold it to a first purchaser without delivering it to him, has the dis- honesty to sell and deliver it to a second, the property will be transferred to the second purchaser, I. quoties 15, cod. de rei. vend. The first has no more than a personal action against the vendor for damages and interest arising from the non-fulfilment of the con- ['■'257] tract, and he cannot take *it from the second purchaser, who bona fide bought it, in.scias prioris reuditionis. " 321. Hence, likewise, it follows that the creditors of the vendor may seize the things which their debtor has sold before he has de- livered them, even though the purchaser has paid the price. The purchaser in such a case has no more than an action against his vendor, and has no piivllegiam upon the thing; but if once the de- livery be made, the property having passed to the purchaser, the creditors of the vendor can no longer seize that thing which no longer belongs to their debtor; creditors in hypothec alone can in such a case have an action of hypothec against the purchaser or other possessor if it be an immoveable. With regard to moveables there is no sequela by hypothec except in the case where a lodger (2058) Ch. III.\ CIVIL LAW POTHIER. 187 or farmer has sold the furniture of the house or farm he rents, in which case custom permits the owner of the house or farm to fol- low the goods which are his security, but for such a sequela he has but the short time of a week, if it be a house, or a fortnight if it be a farm, to which the goods are attached. " Creditors, even by chirograph, can also in one particular case follow the goods of their debtor, which have been delivered to a purchaser, to wit, when the debtor being insolvent has fraudulently sold them, and the purchaser has been a party to his fraud, being aware of the insolvency of the vendor, tit. ff. qu(E in fraud, creditor. " 322. It is a disputed question amongst authors whether a con- ventional delivery made to the purchaser ought in this respect to have the same effect as an actual delivery would have had, and if it should be construed to transfer the property even with respect to third parties. Suppose, for example, that the thing has in truth remained with the vendor, and that the purchaser has had no actual possession, but that the contract of sale contains a clause by which it is said that the vendor has divested himself of the possession of the thing sold, and has given the purchaser seisin of it, declaring that thenceforward he would keep it in the name and on .account of the purchaser; or suppose there be a *clause by which [*258] it is said that the vendor keeps the thing as tenant to the purchaser under a lease for a certain yearly rent. The question is, if in such a case the purchaser would have a good claim to replevy the thing, either as against creditors who had seized it in the hands of the vendor, or as against a second purchaser to whom the vendor had afterwards delivered it, and who had got into actual possession of it. Charondas, in his responses, decides in favour of the second purchaser, and he cites for his opinion two decrees: the one of 1498, the other of 1569. Belordeau, liv. 1, chap. 18, cites also for the same opinion two decrees of his parliament, that of Brittany. "Their argument is, that as conventional deliveries have no overt act, but consist of a simple agreement made between the vendor and the first purchaser, they can have no such effect as to be considered to have transferred the property of the thing sold to the first pur- chaser, at least as against third persons, according to the rule, Traditionibus et usucapionibus dominia rerum non nudis pactis transferuntur, I. 20, Cod. de pact. As agreements can have no ef- fect save between those who are parties to them, conventional de- liveries which consist in no overt act, but only in the agreement of the parties, cannot be taken as against third parties to transfer the property. "On the other hand, Gui Pape, decis. 112, maintains that a con- ventional delivery transfers the dominion and property of a thing as completely and specifically as an actual delivery, even as against third parties. By a conventionial delivery which arises from a clause of bailment to his use, or by a clause of retention under lease, or even by a simple clause of constitution, the purchaser takes (2059) 1S8 CIVIL LAW— POTHIER. [Ft. //. real possession of the thing sold to him, and by such taking of pos- session he acquires really the property: for we can acquire posses- sion and property of a thing, not only by our own persons, but by the agency of another who takes possession in our name. Animo nostra corpcrre etiam alieno possidemus, I. 3, s. 12, ff. de acquir. vel amit. pass. Generaliter quisquis omnino nostra nomine sit inposses- r*259] sione . . . nos possidere videmur, I. 9, ff. *dict. tit. Then by these clauses the vendor takes possession in the name of the purchaser of the thing which he sells him. The purchaser, there- fore, acquires possession by the agency of the vendor, just as he might have acquired it by the agency of any other who took pos- session in his name. This delivery, then, has the same efPeet as an actual delivery, and ought as much to transfer the property. It is useless to oppose to this, the law which says. Nan nudis convention- ibus dominia rerum transferuntur, and that agreements have no ef- fect save between those who were parties to them, for that is true of pure agreements, but those which are accompanied by a conven- tional delivery are not simple bare agreements, and it is expressly decided in the law 77 de rei vindic. that such a conventional de- livery arising from a retention of the thing by the grantor as lessee, put the grantee in posssession, and transferred to him the property of the thing, and consequently a right to replevy it. From all these principles Gui Pape concludes, that a first purchaser to whom no more than a conventional delivery has been made of the thing sold, can replevy it against the second purchaser who has actually possession of it, and he bears witness that such is the constant practice of the Parliament of Dauphiny. " I think this last opinion the better, subject to this limitation, that the proof of the delivery be established by a notarial docu- ment; or if it be under private signature, provided the priority to the actual delivery to the second purchaser, or the seizure made by the creditors be sufficiently established: piita by the death of one of the parties who have subscribed the document." From these extracts the reader may observe that a contract of sale without delivery amounted to a perfect sale, under nearly the same circumstances as in English law it amounts to a bargain sale. But a bargain and sale in English law, as has been already said, transfers the legal property in goods : a perfect sale by the civil law had no effect upon the property, it was merely a personal contract binding the vendor, but not the goods. So long as the vendor con- [*260] tinues *solvent and retains the control of the goods, there is no very substantial difference in the result of the two systems of law; for by the civil law, as soon as the sale was perfect, the vendor became bound to deliver the thing sold at the time prescribed by the contract, and till then to keep it subject to the same personal responsibility as if the thing belonged to the purchaser, and were committed to the vendor as a bailee, Domat, Civil Law, book 1, title (2060) Oh. I 11.^ CIVIL LAW — POTHIER. 189 2, s. 2, 1, 2, 3, 24, 26; and according to Pothier, it was the better opinion that he might be compelled to deliver the thing in specie, though that was doubted: and as, on the other hand, the buyer was subject to the same liabilities from the time the sale was perfect as if the property was his, and committed to the custody of the ven- dor as his bailee, it seems that, as far as regards the substantial result, the property as between the vendor and purchaser passed on a perfect sale; the differences being between them, rather formal than substantial, and rather affecting the form of remedy than the practical result. When, however, the rights of third parties intervene, the differ- ' ence becomes substantial. If, for instance, the vendor dies before delivery, but after the bargain and sale, then, since the property is transferred by a bargain and sale, the purchaser's right of property in the chattel is unaltered by the death; but if the property were not affected, and the contract remained merely personal, the pur- chaser's remedy would be good only to the extent to which the ven- dor left assets. Or if the vendor becomes a bankrupt, the assignees only adopt such of his contracts as are beneficial, whilst they take his whole property: therefore, if a purchaser has acquired a pro- perty in the goods, he has that as a security, if not, his remedy is worthless. Or the vendor may, as in the cases supported by Pothier, have sold and delivered the goods to a second purchaser, or they may have been seized by the vendor's creditors, in each of which cases the vested property of the first purchaser is by the English law allowed to prevail, unless under special circumstances. The doctrine, therefore, that a bargain and sale transfers the pro- perty in the thing sold, instead of merely conferring *a per- [*261] sonal right of action, is one of practical and substantial importance. A gentleman of great learning, Mr. Sergeant Manning, has ques- tioned it in a note to Bailey v. Culverwell (n). He maintains that the rule that property is transferred by a bargain and sale without any delivery, is contrary to natural right, and is moreover a modern misapprehension arising from a mistaken construction of the civil law. It does not seem evident in what the superior natural justice of the civil law consists. There is certainly nothing iniquitous in the rule of the civil law, " traditionibus dominia rerum non nudis pdc- tis transferuntur," but had the authors of the civil law written, sine traditionibus dominia rerum nudis pactis transferuntur, it would have read as well. Both are rules of positive law, and if we were discussing what the law should most conveniently be, much might be said on both sides; but whether the rale of English law was originally adopted by a misapprehension or not, it is submitted that it is not modern, but the ancient rule such as has existed since English law began. (n) Bailey v. Culverwell, 3 Man. & Ry. 567, n. (2061) 190 PEOPEKTY CHANGED WITHOUT DELIVERY. [Pt, //, The case which the learned annotator cites from the Year Book (17 Ed. 4, fo. 1 & 2), as establishing his position that property at that time did not pass by a bargain and sale without delivery, is a curious one. I shall translate the whole of it, part as bearing on the present subject, and part as being a very characteristic speci- men of the peculiar style of the Year Books. " In trespass for a close broken, and corn, barley, and grass taken away . " Catesby. Actio non, for long before the supposed trespass the plaintiff and defendant bargained in such a ward in London that the defendant should go to the place where, &c., and there see the said corn, barley, and things aforesaid, and if they pleased him when he saw them, that he should then take the said corn, bar- ley, and grass, paying to the plaintifP 3s. 4d. for each acre, [*262] one with the other. And we say that *we went there, and that we saw them as aforesaid, and we were well content with the bargain, wherefore we took them, which is the same trespass. Judgment, &c. " Pigot. This is no plea for divers reasons : one is, that he has said that the place, &c., is ten acres of corn, &c., whereas he should have said ten acres of land sown with corn, &c. Moreover, he hath confessed the taking, and hath not shown how he hath paid the coin to us according to the bargain, for I believe that it was not lawful for him to take them before he had made payment, for it would be most mischievous law that he should have them and not pay, &c. Moreover, when he had seen the grain, &c., he should have notified to us whether he was content with them or no, so that we should know whether he had taken them for that cause, for it cannot be a perfect bargain if it be not that each party is agreed, &c. " Catesby. The plea is good enough for anything that he hath shown; as to the first conceit, that we have called them acres of corn, &c., and not of land, it is so called vulgariter. As to the other conceit that we have passed over the payment of the coin, I believe most bargains in the realm are void if this be law; but I hold it to be lawful for him to take them on such a bargain before any payment, for it is no mischief, for he can have his action of debt for the money when we have received the thing, wherefore, &c. ; and to my apprehension in every such bargain the law pre- sumes that as the one puts his trust in the other to have the thing for which they have bargained so ought the other, e contra. And as for, that we should certify him of our agreement; it would be very hard if when we were well content with the view of the thing (which is perchance in another country, at a great distance from London), to return thence to show him that; and, moreover, his bargain upon this point shows that there is no need, for he has put his will into our will, to wit, that if they pleased us on the view of (2062) Glh. I 11.^ PROPERTY CHANGED WITHOUT DELIVERY. 191 them then we should have them; by what then could he be better certified than by our taking them, &c. '■'■Littleton. As to the payment, it seems to me that it ought *to be stated, otherwise it is no plea. As if I come to a clothier [*263] and ask of him how much I shall pay for such a piece of cloth,, who says so much, and I say that I will have it, but I pay him never a penny in hand, whereupon I take the cloth ; there he shall have a good action of trespass against me, and it shall be no plea that I bought it without showing that I paid him, and so it is here. " Choke, to the same effect,for a contract cannot be made without the assent of both parties, quia dicitur de con, quod est'simul; for if you ask me in Smithfield how much you shall give me for my horse, and I say so much, and you say yoil will have him and pay not the money, do you think that for all that it is my intent that you shall have him without paying the coin? I say no; and I may sell him to another meanwhile, and you shall have no remedy against me, for otherwise I shall be compelled to keep my horse for ever against my will, if the property is in you, and you should take him when you please, which is contrary to reason, and so is it here. "Brian, to the same intent: it seems to me for *any words which have been pleaded in this bargain, that it was not lawful for him to take the corn, for it cannot be intended that he meant that the de- fendant should have the corn without paying the money. But if he had said to him, ' take and pay when you will,' or if he had given him a day for payment, then I conceive well that he could take them, and that would be a good bar if it was pleaded to so much; and further, I say that the property is in the defendant by the bar gain in the case at bar, and in your cases of the horse and the cloth; nevertheless, he may not take them without the leave of the other. And he shall have a vn^it of detinue, but the defendant shall be excused by saying he was ready to give it up if the other had paid; and if he bring an action of debt he shall have the same plea. The case is much as where the property remains all the time in me, and nevertheless during a certain time I cannot take it: as where I deliver certain sheep to a man to soil his fields for a cer- tain time; there the property is in me, and still during the time *I cannot take them back. For the other point, it seems to [*264] me that the plea is not good without showing that he had certified the other of his pleasure; for it is trite learning that the thought of man is not triable, for the devil himself knows not the thought of man; but if you had agreed that if the bargain pleased you then you should show it to such a one, then I grant you need not have done more for it as a matter of fact. Suppose that. I enter into aa obligation to you in lOZ., payable in two or three days after- wards, on condition that if you please to take such a horse of mine for such a trespass which I have done to you, that -then, &o-, and you look at the horse, but do not say if he please you or not, (2063) 192 PROPERTY CHANGED WITHOUT DELIVERY. [Pt. ZL wherefore I do not pay the lOl. Shall the obligation be forfeited? No! Wherefore, &c. " Catesby. My lord, if he did not take the horse so that his act showed his intention, then you forfeit your obligation; and as for what is said, that there is no need to deliver the thing sold before payment, in the same manner, the other would not be to pay him before he had the thing sold. But as I said before, by law and rea- son each shall put trust in the other; and if the payment were ma- terial I think we should have seen issues taken upon that in our books; but I have never seen them. Thus I put it, if you bring a writ of trespass against me for taking your horse, and I plead that I bought him on such a day in London in market overt, and then gave him to one B. to keep, who gave him to you and I took him, could you say in that case that I had not paid for the horse ?_ " Choke. No, for it is not material to the plea." " Pigot. If I be bound to you in 20Z. to enfeoff you in such an acre of land on such a day, if you please to accept the feoffment, shall you not be bound to show me your pleasure ? Yea, verily, as it seems to me." " Littleton. I cannot agree that the property is in him who buys by such words without payment; for it is not a clear bargain, but sub- ject to a condition in law, to wit, that if he pays him it shall be good, if not it shall be void. As let us put it that I enfeoff Pigot to enfeoff [*265] Catesby : if he will not *enf eoflf him,my entry is implied by law. So the performance of the condition causes the property to bein him. " Catesby. As to the certification of his consent, I put it that he had become dumb after the bargain by the act of Grod, and did not know how to write and was of sound mind, and it seemed to him that the bargain was for his profit. What is he to do ? Shall not his seizure be sufficient to prove his will ? quasi de sic, wherefore, &c." And thus ends the report. "Littleton," says Lord Coke, "in composing his tenures had great furtherance in that he flourished in the time of many famous and expert sages of the law * * Sir Thomas Brian * * Sir Eichard Choke * * and other Justices of the Common Pleas." According to Beatson's Political Inde.r, Sir Richard Choke was ap- pointed Chief Justice of the Common Pleas in 1462, and on the yth October, 1471 (o), was appointed a Puisne Judge in the same Court. Sir Thomas Brian was appointed Chief Justice of the Common Pleas on the 29th May, 1472 ; and Sir Thomas Littleton was appointed a Puisne Justice of the Common Pleas in 1461 ; and Catesby was made a Judge in 1482 ; Pigot seems never to have been a Judge at all, so that on the whole it seems that in the 17th Ed. 4, A. D. 1478, Catesby and Pigot were Serjeants, arguing before the Common Pleas ; and that Brian was Chief Justice, Littleton and Choke, Puisne Justices. The case is a very curious one ; but it seems a very st rangething to cite it, as an authority to show that a (o) There seems tji be .in error in the Index as to these dates. (20(54) Ch. III.'\ PROPERTY CHANGED WITHOUT DELIVERY. 193 bargain and sale did not pass property without delivery. No such point is made in the cause, the question was on the efPect of non payment. Littleton and Choke seem to have thought that the con- struction of the bargain was, that it was to be a ready money ex- change, and that therefore there was no intention to change the property {p). Brian clearly thought that the bargain was one of mutual trust, and that the property passed but *not the [*266] right of possession. His judgment might have been delivered yes- terday, as it is precisely what the law is understood to be after the lapse of three centuries and a half. But none of the judges seem to have had the least doubt that the property might be changed without a delivery of the goods. And in a case a few years earlier (2 Ed. 4, 25,) it is argued by counsel and agreed by the Court, that " If I give to you my goods at York, and before you take pos- session of them a stranger takes them, you shall have trespass against the stranger, for by the gift the property was in you." In the 49 Hen. 6, 18, 10 Ed. 4, 19, the same point is stated as an illus- tration. Choke there says, " This is not like where I purchase a horse for a price of 20 shillings, there forthwith the 20 shillings are due to him, for by the sale the property of the horse is in me, and I can seize him." " Catesby. If I buy a horse of you for 20 shillings, you may keep the horse till I pay you." " Choke. I do not speak to that extent, but I say that the prop- erty is in me by the sale ; so that if a stranger take him I shall have an action of trespass." " Brian to Catesby. Sir, in your case, if you gave him a day for payment, you cannot detain the horse." In Wortes v. Clifton (q), Lord Coke points out this very thing as an instance of the difference between the civil and the common law, " as the civil law is that a gift of goods is " not good without delivery, but it is otherwise in our law." It must be observed, that in a work of very high authority (2 Saunders, 90, n. (e) ), it seems to be thought that this applies to a gratuitous parol gift ; if it did do so, the proposition would d fortiori extend to a case of sale, but it does not seem to me that the word " done " in law French does import prima facie that the transaction was gratuitous. It is cer- tainly used in many cases in which there appears to have been a consideration ; and there is no case in which it was decided that the property passed, in which it appears ^affirmatively that the [*267] gift was gratuitous ; so that there seems no ground to question Lord Tenderden's position in Irons v. Smallpiece (r), that Lord Coke's dictum must be confined to cases where there was a binding bargain for a consideration, or a deed under seal. (^5) It is worth remarking that the crops which seem to have been growing are treated as goods throughout the case, and not as a part of the freehold. (g) Wortes v Clifton, Rolle. Eep. 61. (r) Irons v. Smallpiece, 2 B. & A. 551. 13 CON-. OF SALE. (2065) 194 EQUITABLE INTEKESTS AND ASSIGNMENTS. [Pt. II. r#268] *CHAPTER IV. EQUITABLE INTERESTS AND ASSIGNMENTS. [So far those interests chiefly which are legal interest in goods have been considered. In this chapter the subject of the creation and assignment of equitable interests is discussed. As questions relating to such equitable interests not unfrequently arise out of contracts for the sale of goods, and as the law applicable to any particular case sometimes depends upon a very critical examination of the facts of that case, the subject is treated at some length with- out further apology. Equitable interests in goods or in the proceeds arising from the sale of goods, or in a specific fund, may be created in a variety of ways. An equitable interest in a specific fund is both created and as- signed in the case which is commonly spoken of as an equitable as- signment of a debt. Kodick V. Gandell (a), in 1852, is an instance of this sort; the facts of the case are set out later on (b). Lord Truro, after re- viewing all the cases on the subject, said that the principle to be extracted from them was that "An agreement between a debtor and " a creditor that the debt owing, shall be paid out of a specific fund " coming to the debtor, or an order given by a debtor to his creditor " upon a person owing money or holding funds belonging to the " giver of the order directing such person to pay such funds to the " creditor, will create a valid equitable charge upon such fund," or in other words, "will operate as an equitable assignment of the debts "or fund to which the order refers (c)." The relationship [*26y] of the parties which Lord Truro is contemplating here is where A. owes money to B. and B. owes money to C. In the first case which he puts there is an agreement between B. and C, that C shall be paid out of the money owing by A , and in the second case, B. gives an order to C, in which he directs A. to pay the money to C. Where a person covenants to assign goods as soon as he becomes the owner of them, but which he has not at the date of the cov- enant, an equitable interest in the goods is created and passed to the assignee as soon as the covenantor becomes possessed of the goods. (a) HodicL- V. Gandell, 1 De G. M. & G. 777T (b) 29.5. (c) See Ex p. Muss, 14 Q. B. D. 310; Ex p. Nichols, 22 Ch. D. 782; Bneev. B/irniisin; ?, Q. B. 1). r,(i!); Tooth v. Halhtf, L. K. 4 Ch. Ap. 242; Percival v. Dunn, 29 Ch. D. 128; Exp. Hall, In re WhiUimi, 10 Ch. D. 615; In re Irving, Exp. Brett, 7 Ch. D. 419; Crossley v. Cltij of Olaai/uw Co., 4 Ch. D. 421. (2066) Ch. lY?^ EQUITABLE INTERESTS AND ASSIGNMENTS. 195 An equitable interest is also created where goods are deposited in the hands of one person upon certain trusts, as for example, to sell the goods and pay over the proceeds or a portion of them to some person. A trust is here created, and the cestui que trust has an equitable interest in the goods, or, if they have been sold, in the proceeds of the sale, which are a specifie f and on which the trust attaches (d). Equitable interests of this latter kind have been alleged to have been created in several reported cases where goods have been con- signed, and bills of exchange have been drawi;i " against " that con- signment. It will be found on examining the cases that such ex- pressions are not sufficient, even if any evidence of the creation of a trust. In the simple case where the vendor consigns goods to the ven dee, drawing on him for the price, and nothing furtlier is said, that merely makes the vendee owner of the goods and debtor for the price. The relationship is that of debtor and creditor and not of trustee and cestui que trust. But if goods are consigned and re- ceived on the terms that certain bills are to be paid out of the pro- ceeds, then the relationship of trustee and cestui que trust is cre- ated. The consignee takes the goods in trust, to give effect to *those rights which the consignor has reserved, and those [*270] rights appear to be in equity, rights not merely in personam, i. e. against the consignee, but rights in rem against those particular goods, or the proceeds of them, and consequently are good not only against the consignee but against any one who takes the goods or the proceeds subject to the equities which affect them in the hands of the consignee. The consignee or bailee cannot do anything inconsistent with the contract. The rule of law as stated by Lord Justice Mellish in Vaughn v. Halliday (e), is, "that if a remittance is sent for a par- " ticular purpose, whether it be by bills or a remittance in money, " the person who receives the remittance must either apply it for "the purpose for which it was sent, or else return it." "Whether a contract to create a charge upon the goods or on the particular fund arising out of the sale of those goods can be proved depends upon the evidence. But it is not to be presumed from the mere fact that the goods have been consigned and bills drawn on the consignee against or in respect of that consignment, whether it appears that the bills were so drawn either upon the face of the bills themselves or in the correspondence. The accept- {d) See the judgment of Jessell, M. E., in In re Hallett's Estate in 1879, 13 Ch. I). 707, where the following of earmarked, and funds held upon trust was fully considered, as also the meaning of a "fiduciary" relation: and the New Zealand Co. v. Watson, in 1881, 7 Q. B. D. 374; BiH v. BuH, 11 Ch. D. 773; Harris v. Truman, 9 Q. B. D. 264. (e) Vaughn v. Salliday, 9 Ch. Ap. 568. (2067) 196 EQUITABLE IXTERESTS AND ASSIGNMENTS. [Ft. IL anee of a bill drawn against goods is merely a promise to pay for the goods according to the tenour of the bill, and is not a promise to pay out of a particular fund (/). A statement that they were so drawn is generally nothing more than a statement of the way in which the right to draw the bill has arisen. It must also be borne in mind that it is not sufficient to create this trust, that the goods were consigned upon trust. It must be proved that the goods were also received upon that trust. For, in the case where goods are consigned to a person with instructions to apply the proceeds of them to a certain purpose, he is not bound to undertake that duty. He may decline to receive or to hold them for that purpose, and if he does so he has no right to take posses- sion of them, and if they come into his possession he has no right [*271] to retain them. *If he has made no contract with the con- signor he holds them in trust for the owner, and cannot assert any lien over the goods. Until the consignee has undertaken to per- form the conditions on which the goods were deposited with him, he has no right either to get or to keep possession of the goods (g). The next question is, assuming such equitable interests to have been created, can they be assigned? An equitable assignment is nothing more than an assignment, bad at law but good in equity, of an interest either in goods or in a specific fund, which interest may be either legal or equitable. Where a debtor, as in the case put in Lord Truro's judgment already cited (A), gives an order to his creditor upon a third person, ordering that third person to pay a specific fund to the creditor, that is an equitable assignment of the fund. But an order to pay out of anij funds, is not an equitable assignment of any funds (i). In this latter case, however, possibly there may be an assignment which is good in equity, not of an interest but of a contract, just as at law a contract is assigned by the indorsement of a bill of exchange (fc). The question is most commonly raised where goods have been consigned to a person on the understanding that bills are to be drawn on the consignee and to be paid out of the proceeds of the con- signment, and the bills have been handed by the drawer to third parties, who set up a claim to have their bills paid out of those proceeds. They assert their claim on the ground that they are holders of the bills, and as such are the assignees of the assignor's equity to have the bills paid out of that security. Now there was no doubt that in Ex parte Warring (l) the secu- rity had been deposited in trust to pay the bills; there is no doubt [*27'2] also that the holders were the indorsees of those *bills. (/) Ex parte Carninii rs, In re Hif/qinKiui, :', De G. & S. 5711. (f/'l SheplierrJx.Harrixim, f, E. &'i. Ap. llti; 4(1 L. J. Q. B. 118; ante, p. 202. (h) Ante, p. 26S. -^ , . i- (0 See Pereirnl v. Dunn, 2fl Cli. D. 12><. (fc) See alao the Judicature Act, IST.;, s. 2.5, subs. 6, and Walker v. Bradford Old Bank, 12 Q. B. D. 3-12 ami .511. (I) ExiMrte Waring, 19 Yes. Jun. ;U5 ; 2 Rose, 1h2. (20(JS) Ch. /K] EQUITABLE INTERESTS AND ASSIGNMENTS. 197 Yet it is quite clear from Lord Eldon's judgment that they had no equitable right to that security, but were mere creditors on the bills. An equitable interest had been created, but it had not been assigned. The indorsement of the bill is a mere assignment of the debt, and not an assignment of the right to have the securities appropriated. The holder of the bill is, if the debtor accepts the bill, a mere cred- itor on the bill of both the drawer and acceptor. If the debtor does not accept it, the holder is not even a creditor of the debtor, but merely a creditor of the assignor. But if, besides the indorsement of the bill, there is evidence to show an intention to assign an interest in the security as well as the debt, then, whether the debtor accepts the bill or not, the holder is in equity the assignee of the assignor's equitable interest, and has the right to have the securities appropriated to his bill. It does not appear to be necessary to prove that there is any contract be- tween the assignee or bill holder, and the holder of the securities. It seems to be sufficient to show a contract between the assignee and the assignor. The case in its simplest form is where a sum of money is deposited with a person in trust to hold it for the depositor, and the depositor assigns that specific sum to a third party. The as- signee has become, in contempletion of equity, the owner of the sum, and has a right to say to the person holding it, pay it over to me. Just as where he was in contemplation of equity the owner of goods, he would have the right to say to the person holding them, hand the goods over to me. Assuming that the goods, were deposited on trust, and that there is a good assignment, it must be noticed in passing that the assig- nee takes his assignor's interest, subject to all equities which affect it in his hands. It may be important that the debtor or holder of the securities should have notice of the assignment, for the assignee's title is an equitable one only (m), and therefore it seems that if the holder of the securities had no notice of the assignment, *he might, in [*273] certain circumstances, safely pay over the fund to any one who had given value for it, and that person would have as good an equity and a better title at law than the assignee. But if, after notice, the holder of the security hands it or the proceeds to any one but the assignee, he is a wrong-doer. In these cases, as well as in those where it is the property which is being dealt with, there may be an interest created by estoppel. Although there may have been no actual contract of assignment between the assignor and the assignee, yet the assignor may have made representations as to the facts, the truth of which he might be estopped from denying. And the holder of the securities or debtor may, by representing that he owes the debt, or that he holds the securities or the fund on a trust, estop himself from subsequent- (m) In re treshfieWs Trust, 11 Ch. D. 198. (2069) 198 EQUITABLE INTERESTS AND ASSIGNMENTS. [Pt. II. ly denying the tnith of those statements. As V.-C. Wigram said (n), " Courts, both of law and equity, have held repeatedly that " where a creditor, on whose behalf a stake has been deposited by "the debtor with a third person, receives notice of that fact from " the stakeholder (the third person), the notice will convert a stake- " holder into an agent for and a debtor to that creditor." There is a point of some difficulty connected with this subject which has given rise to an arbitrary and unnecessary rule of law, known as the rule in -Ba- parte Waring (o). The difficulty arises where securities have been deposited by a consignor on the under- standing that certain bills are to be paid out of those securities, and the bills have been indorsed away, and both the consignor and the consio-nee have become insolvent. It only arises where there was a trust between the consignor, or drawer, and the consignee, or ac- ceptor, to pay the bills out of the proceeds of those goods. Where there is also a double insolvency no difficulty arises where either the drawer or the acceptor remains solvent. Nor does it arises in [*274] the case where the drawer has not parted with the *bills, but remains the holder of them. He has his right arising out of the contract to have the securities appropriated to the payment of the bills, and to have the balance of the securities, if any, handed over to him. But if he has indorsed away the bills, the difficulty does arise, for the holders have no right in themselves to have the secur- ities appropriated in that manner if they have made no contract with respect to those securities; they are mere creditors on the bills; they are merely assignees of the debt by the indorsement of the bill, but not of an equity to have the debt paid out of a particular fund. The rule in E-r parte Waring (p) was first adopted by Lord Eldon in that ease, and has been since followed as a rule of law by all the Courts. The difficulty or complication may be stated in many ways, but it is only a statement of an apparent, and not of a real difficulty, as will be seen when examining the Scotch procedure in such cases later on (q). If the case De considered from the point of view of the trustee in bankruptcy of the drawer, the difficulty seems to be this. He wants to get possession of the securities. This he can only do by giving up the bills of exchange to the acceptor's trustee. If, in order to do this, he pays the bill holders in full, and so gets back the bills from them, and then exchanges the bills for the securities, he not only pays the holders in full, which is to prefer them to the other creditors of the drawer, but the bill holders are paid exclusively out of the drawer's estate, whereas being also creditors on the acceptor's estate they should have been partly paid out of that estate, and so («) Tudor's Leading C'asis in E(iuity, 4tli ed., 77 A. - (o) Ex piiiir Wiiriiiij, ig A'cs. Jun. :i4.'i; 2 Rose, l.'^:?. (p) Ej- parte Warinij, 19 Vts. Jun. 34.5; 2 Rose, lH-2. (3) Page 309. (21170) Ch. IV.\ EQUITABLE INTERESTS AND ASSIGNMENTS. 199 the acceptor's creditors get an advantage at the expense of the drawer's creditors. The case may be considered from the point of view of the ac- ceptor's trustee. He can only make use of the securities for the purpose of paying the bills; the securities having been deposited for that purpose only; but the bill holders *have no right to [*275] say to him, " You must make use of them for that purpose." And if he does make use of them for that purpose, he gives the bill holders a preference which he was not compelled to give and has no right to give. On the other hand, if he does not so make use of them, they remain in his hands unavailable, for the drawer being also insolvent cannot pay the bill holders in full, and until that has been done, he cannot get them back into his possession. The difficulty was simply a practical one — how to make the secu- rities available in such a complicated state of circumstances. The rule laid down by Lord Eldon for the first time in Ex parte Waring (r) enables the bill holders to avail themselves of the equity of the drawer, and to have the securities appropriated in the hands of the acceptor to their bills. The rule is applied in cases of double bank- ruptcy or insolvency, or a bankruptcy and an insolvency, where both estates are under the control of the Court, and whether the bill holders had or had not notice that the securities had been deposited to meet the bills, and whether the security belonged to the drawer and was pledged with the acceptor, or belonged to the acceptor and was pledged with the drawer. The cases which appear to bear out these propositions will now be considered in the following order for the sake of simplicity. Firstly, those cases where the question was. Were the goods de- posited upon trust (below); secondly, the assignment of an equita- ble interest (page 293); and thirdly, the rule in Ex parte Waring (r) (page 303.) Firstly. Were the goods or other security deposited and received upon a trust ? In Tooke-v. Hollingsworth (s),in 1793, the plaintiif in Manches- ter, and Daniel in London, had agreed that the plaintifP should draw from time to time on Daniel remitting him light guineas and bills to meet the acceptances. Daniel absconded and was declared bankrupt, and the defendant was appointed his assignee. The plaintiff, who was ignorant of *these facts remitted to Daniel [*276] certain guineas and bills, — the subject of this action in trover — which came into the possession of the defendant. The plaintiff paid the bills when due, and Lord Kenyon, C. J., and Ashurst and Grove, J. J., held that the plaintiff was entitled to have the securi- ties returned to him. Buller, J., took a different view, and was of opinion that the plaintiff was not entitled to recover, apparently on (r) Ex parte Waring, 19 Ves. Jun. 345 ; 2 Rose, 182. (s) TooU V. HollingwoHh, 5 T. R. 215. (9071) 200 EQUITABLE INTERESTS AND ASSIGNMENTS. [Pt. //. the ground that the parties had not a particular transaction only in their contemplation, but had come to a general agreement which -was to form the basis of a general dealing between them to any extent, and to be continued to an indefinite length of time. There is nothing in the judgments of the other three judges to show that this distinction was not present to their minds. They appear to have decided the case on the broad ground mentioned in the judg- ment of Ashurst, J. (t), that, " where goods are sent by one man " to another for a particular purpose, and they have not been (and "cannot be) applied to that purpose, the former may recover thorn "back again." In Walker- v. Birch (m), in 1795, J. Forbes deposited certain cot- ton with Greaves and Co., who promised to pay the proceeds to J. Forbes, when and as received. J. Forbes was the agent of Cald- well and Co. Caldwell and Co. were indebted to Greaves and Co., and both became bankrupt, and Greaves and Co.'s assignee claimed to assert a lien over the cotton and to retain the proceeds. But the Court held that they had no lien; for Greaves and Co., had ex- pressly undertaken to pay over the proceeds. The fact that J. Forbes was the agent of Caldwell does not appear to have been communicated to Greaves and Co. And Lord Kenyon, C.J., did not think that was of much importance. In Bernales v. Fuller (.c), about ISIO, the defendants were bank- ers -with whom the plaintiff, as holder, had deposited a certain bill [*277] of exchange, payable at their house. Puller, who *was the acceptor, sent a clerk to Fuller's with money to pay the bill. The clerk placed the money on the counter saying he had brought it to pay the bill. Fuller's clerk took the money, but said he must see Ful- ler before giving up the bill, and subsequently declined either to give it up or return the money. The Fullers believed they had a right to do this, having a banker's lien over Puller's money in ac- count with him. The plaintiff contended that the money had been paid to the Fullers for his use. Lord EUenborough, C. J., was at first of opinion that there had been no receipt of the money for that purpose. But a new trial was granted, on the ground that as the Fuller's did not at once refuse to receive it they must be taken to have received it for that purpose. In Williams v. Everett (y), in 1811, Kelly, who was a merchantat Capetown, wrote to the defendant, his correspondent in London, enclosing two bills and requesting him to pay the proceeds of the bills to certain persons, one of whom was the plaintiif, and he added that he desired " the amounts paid each person to be put on the "back of their respective bills." Kelly appears to have advised the plaintiff that he had sent the bills to the defendant with the it) 5 T. R. 228. (u) WaU-or v. Birch, 6 T. E. 2.")K. (x) Bernales v. Fuller, 14 East, .590. (y) Williams V. EnrcU, 14 Eii.st, 582. (2072) Ch. IVi\ EQUITABLE INTERESTS AND ASSIGNMENTS. 201 above instructions, and the plaintiff then applied to defendant for payment. The defendant declined to act on Kelly's instructions and refused to pay the plaintiff, but he subsequently received pay- ment of the bill by Kelly when it became due. The plaintiff brought this action to recover that part of the proceeds of the bill which the defendant had been instructed by Kelly to pay over to him. It was argued for the plaintiff that the defendant by receiv- ing the bills had undertaken to apply them to the purposes for which they were sent. But Lord Ellenborough, C. J., upholding the non-suit, said there had been no such assent either express or implied by the defendant, and that Kelly might countermand his instructions respecting the remittances as often as he pleased, and that the defendant would hold the remittances for the use of the remitter himself, until by some engagement with the plaintiil the remittances were appropriated to him. *In Snaith v. Burridge (z), in 1812, Kieran and Co. of [*278] Dundalk and Graeme and Co. of London had engaged in a joint transaction to supply stores to the Government. Kieran and Co. shipped a cargo of pork to Portsmouth, sending the bill of lading to Graeme and Co., who, being desirous of raising money, pledged it with the plaintiffs, their V ankers. Graeme and Co. became bank- rupt, and when the cargo arrived the captain refused delivery to the plaintiffs and placed it in the defendants' warehouse. Graeme and Co. appear to have thought they had a right to pledge the cargo as Kierin and Co. were considerably in their debt. But the Court held not. Mansfield, C. J., delivering the judgment said, "it was " clear that it (the pork) was intended by the shipper to be deliv- "ered into the Government stores, and as he consigned it to Graeme " on those terms, it therefore must be taken to be accepted by them "for that purpose; and if so, it could not be legally diverted to "any other purpose " (a). This case was before the Factors Acts. In Frith v. Forbes (b), in 1862, one question was whether the securities had been received in trust to pay certain bills out of the proceeds. Another was whether the bills had been assigned subject to any equity affecting them. Forbes and Co., the defendants, were the agents in London of Begbie and Co. of Rangoon, upon the terms of a letter which Forbes and Co. had written to Begbie and Co., saying that they would open an account upon which Begbie and Co. might draw, keeping the account at all times covered. Beg- bie and Co. had sold a yacht for the plaintiffs to the King of Bur- mah, and received in payment a quantity of teak and cutch. In- stead of consigning these direct to the plaintiffs, Begbie and Co. consigned them to Forbes and Co. per the ' China,' and advised them of it in a letter in which they stated that they enclosed the (z) Snaith v. Burridge, 4 Tount. 684. (a) See also Burn v. Brown, in 1817, 2 Stark. 272. (b) Frith v. Forbes, 31 L. J. Ch. 793, and on appeal, 4 De G. F. & J. 409, and post, p. 299. (2073) 202 EQUITABLE INTERESTS AND ASSIGNMENTS. [Pt. II. bills of lading for certain teak and cutch, " against -which we have r*279] "valued on you at six months sight in *favour of Messrs. "Frith and Co." the plaintiffs). The bill of exchange referred to " was in these terms, "Six months after sight . . pay to the order "of Messrs. Frith and Co. . the sum of 1200? . . and place the "same. . toaccountconsignmentper 'China."' Begbie and Co. sent the bills of exchange to the plaintiffs. Forbes and Co. having heard of the insolvency of Begbie and Co. declined to accept them when pre- sented, and claimed to retain possession of the cargo and to set it off ao-ainst Begbie and Co.'s debt to them on the general account. The plaintiffs filed a bill against Forbes and Co. to have it declared that they were entitled to a charge on the proceeds of the cargo in priority to Forbes and Co.'s lien. Sir John Eomilly, M. K., held that they were not so entitled, but on an appeal the Lords Jus- tices held that they were. Lord Justice Turner said, "If a consignee thinks proper to " accept an assignment, with express directions to apply it or the " proceeds of it in a particular mode, he cannot, as I appre- " hend, set up his general lien in opposition to those directions. " In such a case only what remains after answering the particular " directions can, as I think, become subject to the general lien." And speaking of the terms of the letter from Begbie and Co. to the defendants stating that the bill was drawn against the cargo of the ' China,' the Lord Justice said those were " terms which could " not be construed otherwise than as meaning that the bills were to " be paid out of the proceeds of the consignment." It is to be noticed that this was a very peculiar case, and may be explained as being one where a principal instructed an agent to hand over certain funds to a third person, (c). In Trimingham v. Maud (d), in 1868, the facts, which were com- plicated, appear to have been that the course of business was for Barron and Co.. of Barbadoes, to draw on Rattray and Co., of London, and to sell the drafts in Barbadoes. They also bought bills in Barbadoes, and sent them to Eattray [*280] *and Co. for the purpose of keeping them in funds to meet the bills. These remittances weipe not stated to be sent to cover any particular bills. Rattray and Co. became insolvent, and at that date there were current acceptances of BaiTon and Co.'s drafts for a large amount. Barron and Co., who had not heard of the in- solvency, sent off' to Rattray by three mails, remittances which sub sequently reaHzed 11,791Z. By the same mails there arrived from the holders drafts on Rattray and Co. to the extent of 16,000Z. In their letters, in which the remittances were enclosed, Barron and Co. said, " We beg to advise the following drafts ;" and then fol- lowed a lis t of th e drafts for the 16,000?., and then they pro (e) See Brown, ,S7, ,>/,■// iC- Co. v. KdiujIi^ "W, N. Ihs.",, 110, not yet reported in the other reports. {d) Trimiiujhim v. Mnud, L. R. 7. Eq. 201 ; :i8 L. J. Ch. 207. (211741 Oh. /Fi] EQUITABLE INTERESTS AND ASSIGNMENTS. 203 ceeded, " We enclose the following firsts of exchange," being the remittances for 11,791Z. now in question. The drafts were not ac- cepted, and Barron and Co. became insolvent. It appears to have been argued for Barron and Co., that the remittances had been sent as cover for the drafts for 16,000Z., and that as those drafts had not been accepted they had a right to have the remittances back again. But V. C. Gift'ard held otherwise. This case was the subject of observation in Ex parte Gomez (e). There does not seem to have been any evidence of an appropriation beyond the fact that the remittances were sent and the drafts were advised in the same letters. They seem to have been sent as cover for all the out- standing acceptances generally. In Field v. Megaw (/), in 1869, the plaintiff was a corn mer- chant in London. The defendant was a member of the firm of Hamilton and Co., of Belfast. The plaintiff had purchased a cargo of wheat, ex ' Maraquita,' and Wedd, being desirous that the cargo should be sold by Hamilton and Co., in Belfast, advanced Field 500Z., for which Field accepted a bill in which the consideration was described as "value received in wheat ex ' Maraquita.' " It was agreed at the same time that the bill should be renewed from time to time until Field should have received the proceeds of the sale, at *which time he promised to pay the bill. No notice [*281] of this agreement was given to Hamilton and Co. The plaintiff stopped payment. Wedd claimed the 500Z. from Hamilton and Co., and they paid that sum to him. This action was brought by the plaintiff to recover back the 500?. from the defendant, who repre- sented Hamilton and Co. The plaintiff denied having made the wheat a security for the payment of the 500?., and the Court held that there was no equitable charge. It was an agreement to pay when the proceeds should be received, net a contract to pay out of those particular proceeds. In the case of In re New Zealand Banking Corporation, Levi's Case (g), in 1869, the holders of bills sought to have certain se- curities appropriated to those bills. The New Zealand Banking Corporation had made advances to Levi, which were covered by securities which Levi had deposited with the Corporation. Subsequently the New Zealand Banking Corporation, at Levi's request, granted a credit to White and Co. McKenzie drew bills in favour of Levi on the New Zealand Bank- ing Corporation, who accepted them. These bills were drawn by McKenzie on account of White and Co., and on White and Co.'s credit with the New Zealand Banking Corporation. Both the New Zealand Banking Corporation and Levi were insolvent ; and Over- end, Gurney and Co., as holders of these last-mentioned bills, sought to have the securities appropriated to the bills of which they e) Ex parte Gomez 10 Ch. App. 647. ■/) Meld V. Meffaw, L. E. 4 C. P. 660. ') In re New Zealand Banking Corporation, Levi's Case, L. R. 7 Eq. 449. f2075) 204 EQUITABLE INTERESTS AND ASSIGNMENTS. [Pt. //. were the holders, on the principle of Ex parte Waring (h). But Lord Romilly, M. R., held that the securities had not been depos- ited to cover those bills, and therefore Ex parte Waring (h) did not apply. In the case of In re General Rolling Stock Co., Ex parte Alli- ance Bank (i), in 1869, the General Rolling Stock Co. made an ad- r*282] vance to Murray, for which he gave his *acceptance8 and deposited the security in question. The Alliance Bank had be- come the holders of some of these bills, and before they became due but after the Alliance Bank had become the holders, Murray, who was desirous to have the loan continued, accepted, at the re- quest of the General Rolling Stock Co., a fresh set of bills in place of the first set. Both Murray and the General Rolling Stock Co. were insolvent, and the Alliance Bank sought to have the securities appropriated to their drafts, on the rule in Ex parte Waring [k) But the Court held that the rule was not applicable ; for although the securities had been deposited to cover the first-mentioned bills, Murray's liability on them to the General Rolling Stock Co. had been cancelled by his acceptance of the second set, at a time when the parties had a right to deal with the security as they pleased, and therefore the securities were no longer a security against the first set. In Shepherd v. Harrison (I), in 1871, where the bill of lading was handed over to the consignee on condition of a bill of exchange being accepted, the consignee retained the bill of lading but refused to accept the bill of exchange. The House of Lords held that he had no right of action against the shipowner for refusing to de- liver up the goods. The case of Robej and Co.'s Perseverance Iron Works v. Oilier (m), in 1872, was very much like Frith v. Forbes (n). A distinc- tion seems to be that in Robey v. Oilier (m) there was no evidence of a contract by the defendant to pay the debt of the proceeds, and in Frith v. Forbes (n) there was such a contract. InRdbci/'s and Co.'s Perseverance Iron Works v. OlUer (m), in 1872, Brown of Ibraila consigned a cargo of maize, per ' Acacia,' to the defendant. Brown was the defendant's agent at Ibraila, but occasionally he made purchases at their joint risk, and this was such a transaction. Brown sent the defendant a letter advising him of the consignment, and saying that he had drawn dn him [*283] against the cargo. He *subsequently forwarded the bill of lading. The defendant answered that the drafts " on account of (h) Ex parte Wariiu/, lOVesev, junr., 345; 2 Rose, 182, jioxl, p. 304. (0 III re (irmrul Holling Stock Co.. E.r parte Alliance Bank. 4 Ch. App. 423; 38 L. J. Ch. 71 1. {k} Ej- parte Warinq, 1!) Vesey, Junr., 34,1; 2 Rose, 182. (I) Xheplierd v. Harrison L. R. 4 Q. B. 197 and 41)3 : 5 E. & I. Ap. 116 ; 38 L. .1. Q. B. 105 and 1 7T ; 40 I,. J. Q. B. 148. (m) Itohey d- Co.'s Perseverance Iron ]] nrks v. Oilier, 7 Ch. App. 095. («) Frith V. Furhcts, 31 L. J. Ch. 793, on app. ; 4 De G. F. & J. 409. (:-'076) Gh. /Fl] EQUITABLE INTERESTS AND ASSIGNMENTS. 205 this cargo shall have due protection." Brown was indebted to the plaintiffs, and endorsed the drafts to them. The drafts were in these words :— " Pay to the order of myself the sum of 250Z., which place to account cargo per A." The plaintiffs presented the drafts, but the defendant refused to acccept. Brown being insolvent. The defendant sold the cargo, and the plaintiffs claimed to have the pro- ceeds appropriated to their bills. James and Mellish, L. JJ., held that they had no such right. James, L. J., said, "I am not prepare " to say that merely because a bill of exchange purports to be ' drawn against a particular cargo, it carries a lien on that cargo ' into the hands of every holder of the bill. In Frith v. Forbes ' (o) there were grounds for saying that the intention was to give ' Frith, Sands, and Co. an equitable interest in the cargo, for the ' letters of consignor to the consignees referred to bills of exchange ' which the consignor had drawn in favour of Frith, Sands, and ' Co. Here the reference is only to bills which the consignor had ' drawn to his own order, not mentioning any third parties. In ' Frith V. Forbes (o) the cargo was the property of the consignor, ' who had full right to dispose of the proceeds as he pleased. Here ' Brown was not the owner of the cargo, but had only a joint in- ' terest in it. Moreover, his letters to the defendants were not ' communicated to the plaintiffs, who did not advance their money ' on the faith of them " {p). In the Citizens^ Bank of Louisiana v. First National Bank of New Orleans (g), in the House of Lords in 1873. The course of busi- ness was for the New Orleans Bank, to draw on the Bank of Liver- pool, to sell the drafts in New Orleans, and to remit securities to the Bank of Liverpool, so as to keep that bank out of cash advances. The plaintiffs, the Louisiana Bank, were holders of bills drawn by the New Orleans Bank *on the Bank of Liverpool. The [*284] New Orleans Bank suspended payment, and the Bank of Liverpool refused to accept the bills, although having in its possession securi- ties of the New Orleans Bank amply sufficient to meet the bills, on the ground that the securities had not been appropriated to the bills, and that therefore they must be returned to the receiver of the New Orleans Bank. The Louisiana Bank filed a bill against the Bank of Liverpool and the New Orleans Bank, and sought to restrain the Bank of Liverpool from paying over the securities to the trustee of the New Orleans Bank, and to have them appropri- ated to their bills. A the time when the Louisiana Bank purchased the bills, the agent of the New Orleans Bank stated that the bills (o) Frith V. Forbes, 31 L. J. Ch. 793, on app., 4 Be G. P. & J. 409. (j)) See also Ex parte Carruthers, In re Higginson, 3 De G. & S. 570 ; and Lut- scher v. Comptoir d'Escompte de Paris, 1 Q. B. D. 709. (q) Citizens' Bank of Louisiana v. First National Bank of New Orleans, 6 E. & I. App. 352; 43 L. J. Ch. 269. This case was on the same facts as Thomson v. L. E. 5 Ch. Ap. 659; 39 L. J. Ch. 857. (2077) 206 EQUITABLE INTERESTS AND ASSIGNMENTS. [Pt. ZI. were drawn against funds to a much larger amount already remit- ted to the Bank of Liverpool. The Louisiana Bank relied upon two alternative grounds : first, that there had been an equitable assignment of these securities to them ; and, secondly, that the New Orleans Bank were estoppel from denying that the securities were appropriated to the plaintifPs by reason of the representations of their agent to them. Lord Selborne, L.O., dealt tirst with the question of estoppel. His judgment is very instructive. He said: — "I apprehend that "nothing can be more certain than this, that the doctrine of equi- " table estoppel by representation is a wholly different thing from " contract, or promise, or equitable assignment, or anything of that "sort;" and after pointing out that a representation, to effect an estoppel, must be a representation as to an existing fact, and would not effect an estoppel if it were merely as to the representor's in- tentions, he proceeded to point out that in this case there had been no representation as to a fact; "for," said he, " the only ropresenta- "tion which would have produced an estoppel would have "been a representation that the New Orleans Bank had con- " stituted a trust of funds belonging to that Bank, but that in the " hands of- the Bank of Liverpool, by which the Liverpool Bank " might be bound, as trustee, to apply those funds in payment of "the bills. The statement which had been made amounted to no- [*285] " thing further than a statement *that there were funds in " the hands of the Liverpool Bank sufficient to pay the bills." On the question of equitable assignment, he was of opinion that there had been no contract to specifically appropriate the funds in the hands of the Bank of Liverpool to meet the bills. The case of Morgan v. Larivihre (r), in 1875, decided that a let- ter of credit does not amount to an equitable assignment of the sum mentioned. In Ex iKvrte Gomez, In re Yglesias (s), in 1875, the course of dealing was for Gomez, of Malaga, to draw on Yglesias, of London, sending him remittances as security. Yglesias stopped payment A receiver was appointed, and a composition was agreed to and ac- cepted, which, it was not disputed, was binding on all the creditors of Yglesias, including the bill holders; Yglesias' estate was there- fore freed from any further claims by them. The Court held that the contract on which the securities had been deposited was a con- tract of indemnity, and therefore, that the receiver must return the securities to Gomez after deducting the composition. The case of In re Enttvistle, Ex parte Arhuthnot (t), in the Court of Appeal in 1876, is very similar to Robey's Case (u). A firm in (r) Uror^an v. Lnrinrn; 7 E. & I. Ap. 423; 44 L. J. Ch. 457. (s) Ex parte Gomez, In reVi/Icsia^, 10 Ch. Ap. 639 ; see also Latltam v. Char- tered Biiiil- of India, L. R. 17 Ecj. 205. (t) In re Eiif, visile, Ex parte Arhuthnot, 3 Ch. D. 477. (u) Roheifs Perseverance Works v. Oilier, 7 Ch. App. 695. (2078) Ch. IV.] EQUITABLE INTERESTS ANB ASSIGNMENTS. 207 India were in the habit of selling cotton to Entwistle of London. They drew on Entwistle, sending the drafts and bills of lading to their London agents, who presented the drafts to Entwistle for his acceptance, giving him the bills of lading. Entwistle had accepted the drafts drawn in respect of the cotton in question, and had re- ceived the bill of lading, and pledged it with a firm of cotton brokers. Entwistle stopped payment, indebted to the brokers, who sold the cotton, and, after bringing the proceeds into account, paid the balance to Entwistle's trustee, without prejudice to the vendors' claim. The vendors claimed it on the ground that the cotton had been specifically appropriated to meet their *bills. On the [*286] face of the drafts were the words "pay, &c., and place the same to account cotton shipments as advised." Both the Indian firm and their London agents and Entwistle had written off the drafts as drawn on account of or against the cotton in question. The Court of Appeal held that there was no equitable assignment, and indeed it seems as if the expressions used were little more than the means adopted for identifying the draifts. Entwistle was a purchaser, and could do what he pleased with the cotton. The contract was nothing more than one by which he undertook to pay a debt, stated by both parties to have been incurred in respect of certain cotton. In Ex parte Banner, In re Tappenbeck (x), in 1876, before the Court of Appeal, Christiansen and Co. of Para, were the agents of Tappenbeck and Co. of Liverpool, and in that capacity they pur- chased goods at Para, and consigned them to Tappenbeck and Co. They raised funds for this purpose by drawing on Tappenbeck and Co. and selling the drafts. Christiansen and Co., sent the bills of lading and invoices direct to Tappenbeck and Co., and directed them to place the invoice price of the goods to their credit, and the bills out of the proceeds of which the goods liad been purchased, to their debit, in the account between them. Both firms became in- solvent, and a . consignment of india-rubber, which was on its way, was not stopped in transitu, and was taken possession of by the trustee of Tappenbeck and Co. The holders of the bills now sought to have that consignment appropriated to their bills. The Court after deciding that the property in the india-rubber had passed to the trustee, .held that the bill holders were not entitled to the proceeds of the india-rubber. Mellish, L. J., delivering the judgment of the Court, which is one of very great value, pointed out the distinction between a principal consigning goods to his agent for sale, and an agent consigning goods to his principal, and continued, " When a principal consigns goods to his agent for sale, " the goods in the hands of the agent remain the *property [*287i " of the principal, subject to any charge which the agent may have "on them; and if the principal draws bills upon the agent specifi- " cally against the goods, that gives the agent the right to apply the (x) Exjiarte Banner, Jn re Tappenbeck, 2 Ch. D. 278; 45 L. J. Bank. 73. (2079) 208 EQUITABLE INTERESTS AND ASSIGNMENTS. [Pt. //". "proceeds of the goods when sold in payment of the bills; but " subject to that charge the goods, and the proceeds of the goods, " remain the property of the principal. Where, however, an agent " in one country purchases goods on account of his principal, and " consigns them to him in another country, if the agent allows the " property in the goods and the possession of the goods to pass to " his principal, the goods become the absolute property of the prin- " cipal, and the agent, in the absence of an express agreement to " the contrary, has no lien or charge upon them in the hands of his " principal. Nor does it, in our opinion, in the absence of fraud, " make any difference that the agent draws a bill upon his principal " for the express purpose of obtaining payment of the price of the " goods, and that the principal refuses to accept the bill unless the " agent has taken the precaution of making the goods by the bill " of lading deliverable to his own order, and has transmitted the bill of " lading to an agent of his own, with directions not to hand it over "to the principal unless the bill of exchange is accepted. "We " think that the right of an agent in such a case over the goods, as " ao-ainst his principal, is the same as that of a vendor as against a "purchaser. If the agent gives credit to the principal and trans- " fers the property in the goods and the right to obtain possession " of the goods by means of the bill of lading to his principal, and "fails to stop the goods in transit n. the trustee of the principal, in " the event of his bankruptcy, is entitled to the goods. * * * " Lastly, we have to consider whether there is sufficient evidence of " Christiansen and Co. having a valid charge upon the goods after "they had come into the possession of Tappenbeck and Co.; and " having a right to have the proceeds of the goods applied to the "payment of the bills. It was contended for the respondent that " ever}' person who consigns goods to another has a right to give [*288] "directions how the goods are *to be disposed of, and that a " consignee to whom such directions are given must dispose of the " goods in the way directed or else return them. We admit that " this is true as a general rule, and that the case of Tooke f. Hol- " lingworth (?/) is an instance of the application of it. The question, " however, is, did Christiansen and Co. give any directions to Tap- " penbeok and Co. that they were to sell the goods and were to '■ apply the proceeds in payment of the bills of exchange? We " think that the argument that they did, depends entirely upon a " confusion between a direction to deal with the proceeds of goods, " that is to say, the sum to be realised by the sale of the goods by the " consignee in a particular way, and a direction to deal with the in- " voice price of the goods, that is to say, the price at which the " goods are sold by the consignor to the consignee in a particular " way. Where the consignor directs the consignee to apply the " proceeds of the goods in a particular way the consignor still iy) Tooke v. Hollmffworlh, 5 T. E. 215, ante, p. 27.5. (2080) Gh. I f^] EQUITABLE INTERESTS AND ASSIGNMENTS. 209 '•• remains the owner of the goods, and if he directs the proceeds to " be carried to his credit in a particular account, and the bills to be " placed to his debit in the same account, that may amount to a di- " rection to apply the proceeds of the bills in taking up the bills of "exchange. Where, however, a consignor sells goods to a con- ■' signee and directs him to carry the invoice price of the goods, •' that is, the debt due from the consignee to the consignor for the ■' price of the goods to a particular account, that does not involve a " direction to deal with the goods themselves or the proceeds of the " goods in any particular way. On the contrary it admits that the " goods themselves are the property of the consignee, and if the " invoice price of the goods is placed on one side of an account to " the credit of the consignor, and the bills of exchange drawn in "respect of the price of the goods are placed on the other side of " the account, the only effect is, that when the bills of exchange are " paid by the consignee, the debt due to the consignor for the price * of the goods is discharged, but no *charge on the goods in [*289] " favour of the consignor is thereby created" (z). In. Ranken v. Alfaro (a), in 1877, Y. Alfaro of Costa Eica, con- signed coffee to Moses Levy and Co., of London, and in his letter advising them of the consignment, he enclosed a letter of recom- mendation from Eley Alfaro and Co., authorising him to draw on them, and stated that he had drawn on tbem on the strength of it. He also stated that Eley Alfaro and Co. had a share in this trans- action. Two of the drafts came into the possession of the plain- tiffs as holders for value. Moses Levy and Co. refused to accept them when presented. When T. Alfaro heard thi=, he wrote to Schwartz of London, instructing him to obtain possession of the coffee from Moses Levy and Co., and to sell and honour the drafts with the proceeds. The day before the bills were due, Schwartz wrote to the holders in reference to their bills saying that he ex- pected to receive delivery of the coffee " senb by the drawer against the above," i. e., the bills. He again wrote to the holders saying that he had obtained the warrants for the coffee from Moses Levy and Co., and would dispose of the same as "instructed by sender." Moses Levy and Co. appear to have had some claim against Eley Alfaro and Co., and served Schwartz with an attachment of all goods and moneys belonging to T. Alfaro. The plaintiffs there- upon filed a bill against T. Alfaro, Schwartz, and Sloses Levy and Co., praying that it might be declared that the coffee had been -specifically appropriated to their bills, and that they were conse- quently entitled to the proceeds in priority to the other parties, and the Court of Appeal held that this was so. In Duncan, Fox & Co. v. North & South Wales Bank (b), in 1879, (z) See also for consignmente from principal to agent, The New Zealand Co. V. Watson,7 Q. B. D. 374. (a) Bankm v. Alfaro, 5 Ch. D. 786; 46 L. J. Ch. 832. (b) Duncan, Fox & Co. v. North and Souih Tfa.'cs Bank, U Ch. D. 88; 48 L. J. Ch. 376. 14 CON. OF SALE. (3081) 210 EQUITABLE INTERESTS AND ASSIGNMENTS. [Pt. IT. Duncan, Fox and Co. had sold to Radford and Co. through Max- well, a broker, certain corn. Radford and Co. accepted bills for [*290] the price, drawn on them by Maxwell, and *Duncan, Fox and Co. discounted them with the bank. Radford and Co. became insolvent, and Duncan, Fox and Co. were liable on the bills as in- dorsers. Radford and Co. had deposited security with the bank to secure any balance which might be owing by them to the banL This deposit was made before the purchase of the corn, and Dun- can, Fox & Co. were not aware of it. It was argued for Duncan, Fox and Co. that they were in the position of sureties for Radford and Co. to the bank, and were therefore entitled to have the secur- ities applied to meet the bills. But the Court of Appeal held that they were not so entitled, for although an indorser is a surety for some purposes he is not so for all. In the case of In re the Gothenburg Commercial Company, Lim- ited (c), in 1881, that company in London had been in the habit of accepting bills drawn on it by a Swedish bank. The Swedish bank from time to time transmitted securities to cover the drafts. The company, as was well known to the bank, frequently realised the securities, and charged themselves with interest on the proceeds from the date when they were realised up to the time when they were required to meet the acceptances. The company became in- solvent, having discounted some of the remittances, and having the rest of them in hand. The Court, consisting of Jessel, M.R., Brett, and Cotton, L.J J., seems to have been very strongly influenced by the consideration that interest was paid by the company, on the ground that a man would only pay interest for money when he had a right to make use of it, and the right to make use of it as he likes is inconsistent with his holding it as trustee for a certain purpose, and held that the bank were only entitled to have the securities in hand appropriated to their bills ((f). This case was followed in the case of In re Broad, ex parte Neck (e), in 1884. There the course of business between Thomson in Swenden and Neck a banker in London was for Thomsen to draw [*291] on Neck, and to remit bill to cover the *di'afts as they matured. Sometimes Neck kept the remitted bills until they became due, and sometimes he discounted them, and in the account between him and Thomsen, he credited Thomsen with the proceeds of the remitted bills, and debited him with the amount of his acceptances, in- terest being both allowed and charged, with an annual settlement. Thomsen drew on Neck, and subsequently remitted to him as cover a draft at sight on AVestenholz Brothers, which was accepted by them, and handed by Neck to his bankers and paid at maturity. Neck became insolvent, and the Court of Appeal held that Neck had ceased to hold as trustee, and had become a mere debtor. The (c) In re Gothenburg Commercial Co., Limited, 21) W. E. 3!58. (d) See Brinco tJc Lima v. AngJo I'lrmmn Bank, 8 C'li. D. 160. (e) In re Broad, Ex parte Neck, 13 Q. B. D. 740. (2082) CK. /K] EQUITABLE INTERESTS AND ASSIGNMENTS. 211 Court, as in the former case, seems to have been very much influ- enced by the payment of interest on the proceeds. But it does seem at least possible that as the settlements were annual, this ar- rangement about interest may have been made for convenience in keeping the accounts. However, this point seems to have been taken in the former case. In Phelps, Stokes & Co. Comber (/), before V.-C. Bacon, in 1884, Borland of New York acted as the agent of two firms, one at Liv- erpool and the other at Pernambuco. C. C. Johnson was the sole partner of the Liverpool firm and a partner with the defendant in the Pernambuco firm. At C. C. Johnson's request, Borland pur- chased goods in New York, and consigned them to the Pernambuco firm, sending the bills of lading to the Pernambuco firm, and drawing bills on the Liverpool firm, which were indorsed to the plaintiffs, but which were subsequently dishonoured when presented to the Liverpool firm for acceptance. The peculiarity of these bills was that there was a counterfoil attached to each draft, addressed to the Liverpool firm, which informed them that the drafts were drawn against those consignments. The Liverpool firm became insolvent and indebted to the Pernambuco firm, which asserted a right to retain the proceeds. The plaintiffs claimed to have the bills paid out of the proceeds, and were unsuccessful. There seems not to have been a *vestige of evidence of any contract by either [*292] firm so to pay them. In Ex parte Dever, in re Suse (g), in 1884, Sentance was a mer- chant at Shanghae, Mussett was a merchant in London, and Suse and Sibeth were bankers in London. Sentance had drawn bills on Suse and Sibeth, remitting them tea, and had discounted them with the Hong Kong Bank; the question was whether the tea was specifi- cally appropriated to meet the bills. Mussett and Sentance had been in the habit of doing business together, and Mussett requested Suse and Sibeth to grant a credit to Sentance. Suse and Sibeth then wrote a letter of credit to Sen- tance, authorizing him to draw on them, the drafts to be accom- panied by bills -of lading, "these documents to be surrendered "to us against our acceptances." Under this credit Sentance made various consignments to Mussett, drawing on Suse and Sibeth in respect of each particular consignment. On each draft there was a statement that it was drawn under the letter of credit, and was to be placed to account of the particular consignment as per shipping documents therewith. Sentance discounted all the bills with the bills of lading attached, with the Hong Kong and Shanghae bank, showing them the letter of credit. When the bills arrived in Lon- don they were accepted by Suse and Sibeth, and the bills of lading •were delivered to them. The tea was warehoused on arrival, and (/) Phelps, Stokes & Co. v. Comber, 26 Ch. I): 755 ; 53 L. J. Ch. 1134, affirmed in the Court of Appeal. (g) Ex parte Dever, in re Suae, 13 Q. B. D. 766. (2083) 212 EQUITABLE INTERESTS AZS'D ASSIGNMENTS. [Pt. II. the freight was paid by Suse and Sibeth and debited to Mussett in their account with him. As the tea was sold from day to day, Mus- sett sent a cheque for the amount sold to Suse and Sibeth, who gave Musset a delivery order. Mussett did not, when paying his cheque, state that it was against any particular acceptance of Suse and Sibeth' s. Suse and Sibeth became insolvent, and at that time part of the tea had been sold and part remained in the warehouse. The Court of Appeal held that Sentance was entitled to have the unsold tea ap- propriated to the drafts, but not the proceeds of that which had [*293] been sold. And, *further that the bill holders had no rights against the goods, but were mere creditors {h). Secondly: The assignment of an equitable interest. In the leading case of Burn v. Carvalho (i), in 1839, the facts are set out so perspiciously in the judgment of Lord Cottenham, L.C., that the judgment is given verbatim. " Fortunato, who car- "ried on business at Liverpool, had been in the habit of consign- " ing goods for sale to Rego, at Bahia, and of drawing upon him "for the expected proceeds; and, for the purpose of realizing, m " this country, the amount of the bills so drawn, he employed "the firm now represented by the plaintiffs to negotiate these bills; " in order to effect which, they indorsed them, and, having disposed of "them, placed the amount to the credit of Fortunato, for which he "drew upon them. Burn and Co." (the firm represented by the plaintiffs), "having heard that some of these had been refused ac- " ceptance by Rego, and, therefore, expecting that such bills, and "the others they had so indorsed, would be returned to them and " payment required of them, applied to Fortunato, in a letter dated " the 4th of April, 1829, requesting him to write to Rego, by the " first vessel, with orders, that in case he did not pay the drafts, he "would immediately hand over such property as he might have of "Fortunato's of an equivalent value to the bills not paid by him, to "their agent, Mr. Vogeler " (also at Bahia), " whom they requested "to pay the bills for their honor. In answer to this letter, Fortu- "nato, in a letter to Burn and Co , dated the 9th of April, 1829, " said, ' Agreeably to your injunction, I will write to Mr. Eego per " ' brig ' Wavertree,' to sail on the 12th of this month, directing him " 'to hand over to Mr. Vogeler property of rnine in his hands to ' ■ ' cover the amount of bills that eventually may not be paid ; ' and "accordingly, by a letter to Mr. Rego, dated the 11th of April, 1829, "he gave the directions te him as follows : — ' Ihave engaged and made [*294J " 'promise to Messrs. *Burn and Co., that you should pass " ' into the hands of their agent in your city, Mr. Vogeler, all the " ' property which might exist in your hands on my account' By a " letter of the 11th of June, 1829, Mr. Rego informed Messrs. Burn " (after stating that great part of the goods which Fortunato had (/i) See further on thi.s .subject, In re Pavifs Patent Felted Co., 1 Ch. D. 361; Johnson v. Hohaits, 10 Ch. Ajj. 505. (j) Burn \. Carmlho, 4 My. & Cr. 690. (2084) Ch. /F.] EQUITABLE INTERESTS AND ASSIGNMENTS. 213 consigned to him remained in his possession) that he would de- liver such goCids to Mr. Vogeler, in consequence of the order so to do which he had received from Portunato. " On the 30th of June, 1829, the goods in question were accord- ingly delivered over by Mr. Kego to Mr. Vogeler, and were after- wards sold by him, but did not produce sufficient to meet the bills which Messrs. Burn had so endorsed ; but, after applying such proceeds, they remained creditors of Portunato, upon that ac- count, to a considerable amount. "On the 23rd of June, 1829, a commission of bankrupt issued against Portunato ; and he was found bankrupt upon an act of bankruptcy on the 23rd of May preceding; * * * "It was admitted there was not a possibility of informing Mr. Rego of the letter of the 9th of April, 1829, before the act of bankruptcy on the 23rd of May. " The result of this state of facts, which I have taken from the admissions, is that Portunato, being under pecuniary obligations to the plaintiffs, and having property in the hands of Eego, his agent, promised and agreed to apply such property, or a sufficient part of it, to the discharge of such liability, and sent directions to Kego for that purpose, biit became bankrupt before such in- structions did or could have reached Rego ; aud the question is whether such promise and agreement did not give to the plaintiffs a right in equity to have such property so applied, notwithstand- ing the intermediate bankruptcy of Portunato; and the inquiry is, first, whether the plaintiffs acquired any such right against Portunato ? secondly, if they did, whether such right can be en- forced against his assignees? * * * "In equity, an order given by a debtor to his creditor upon *a third person having funds of the debtor, to pay the [*295] creditor out of such funds, is a binding equitable assignment of so much of the fund. * * * Here there is an existing fuild in an agent's hand, and there is a distinct contract to discharge the lia- bility out of that fund, and to give directions for that purpose. I I think, therefore, that the letters of the 4th and 9th of April, 1829, amounted to an equitable assignment of the funds in the hands of Rego ; and, if so, how can the subsequent bankruptcy in June, upon an act of bankruptcy in May, destroy the effect of such equitable assignment? The property in the hands of the assignees was certainly liable to this equity, unless some provision in the bankrupt Acts interfere to prevent it. * * * I am, there- fore, of opinion that the plaintiffs had a good title, in equity, to the goods delivered by Rego to Vogeler {h). (k) See also Malcolm v. Seoit, in 1849, 3 Mac. & G. 29 ; Parienie v. LvMoclc, in 1855 ; 20 Beave. 588 ; Hblroyd v. Griffiths, in 1856 ; 3 Drew. 428 ; Acraman v. Sates, in 1860, 2 E. & E. 456 ;' 29 L. J. Q. B. 78 ; Elkin v. Baker, in 1862, 11 C. B. N. S. 526 ; 31 L. J. C. P. 177 ; Shand v. Bu Buisson, in 1874, L. E. 18 Eq. 283 ; 43 L. J. Ch. 508. (2085) 314 EQUITABLE INTERESTS AND ASSIONMENTS. [Pt. II. In Rodick v. Gandell (Z), in 1849, certain Railway CompanieB owed money to the defendants, who were their engineers. The de- fendants owed money to their bankers, who were the plaintiffs. The defendants wrote to the solicitors of the Eailway Companies author- izing them to receive the monies, and asking them to pay the money when received to the plaintiffs. The solicitors then wrote to the plaintiffs, telling them what their instructions were. The solicitors received the money but paid it to the defendants. There was no direction given by the defendants to the Railway Companies to pay the money to the plaintiffs, nor was any agreement proved between the defendants and the plaintiffs. Lord Langdale, M.R., held that there was no equitable assignment. He said (hi), "It seems dif- " ficult to ascertain the grounds, on which the authority given to [*296] " a person, who has *no interest, to receive, and the promise " of the same person to pay when received, can be said to consti- "tute an equitable assignment;" and he pointed out on the follow- ing page that this was not inconsistent with the solicitors being held liable at law on their promise. This judgment was affirmed by Lord Chancellor Truro (w). The facts, of this case appear to amount to nothing more than this. The defendant says to one who was his agent for this pur pose, " When certain money is paid to you, you are to pay it to the "plaintiffs." The agent then says to the plaintiffs, " My instruc- " tions are to pay the money to you as soon as I get it." There was no contract between the defendant and the plaintiff, and there was no reason why the defendant should not withdraw his instruc- tions. In Burn v. Carvalho (o), Fortunato's own letter stated that he had made a promise to Burn and Co. The case of Hoare v. Dresser {p), in the House of Lords, in 1859, was one of some complication. The same cargoes had been as- signed m equity to both the plaintiffs and the defendant, and the real question was whether the plaintiffs at the date of the assign- ment to them had notice of the assignment to the defendant. Dresser, of London, had contracted with Norrbom, a timber mer- chant in Sweden, to sell three cargoes of timber which Norrbom was to consign to him fi'om Sweden. Norrbom wrote to Dresser, saying he had received two charter parties for two of the cargoes and hoped to get the third, and that the cargoes would have to be paid for shortly, and asked leave to draw on Dresser for l,000i. To this Dresser assented, and Norrbom then wrote enclosing copies of charter parties of two vessels, the ' Verene ' and the ' Christiana ' (on board of which two of the cargoes were afterwards shipped), (l) Bodickv. GaiiJvll, ]:2Beav. 3:->r>; on ap. 1 De G. M. & G. 763. (m) PaKe337. hi) Eodielc v. GaiuhJI, 1 Tic G. M. & G. 7li3. (o) Bxirn v. Oarrallw, 4 My. & Cr. 690. (p) Hoare. v. Dnsi^cr, 7 ][.' L. 290; 28 L. J. Ch. 611. (20861 Ch. /Fi] EQUITABLE INTERESTS AND ASSIGNMENTS. 215 and saying that he had authorized a Mr. Frestadius to draw on him for 500Z. Dresser accepted Prestadius' draft for 500Z. and paid it at maturity, and he subsequently accepted and *paid another [*297] of Frestadius' drafts for 500Z. On the 29th September, Norrbom again wrote to Dresser stating that he expected to receive by the next post the bills of lading of the 'Verene' and 'Christiana,' and that the captains of two other vessels would complete their loadings next week, and that in a few posts he would send the shipping documents of all four cargoes. On the 24th October, Hoare and Co., the plajntifPs, received a letter from Norrbom, in which they were requested by him to de- liver to Dresser the charter parties of the 'Irene' and ' Christiana,' and bills of lading endorsed in blank (all of which vrere enclosed) as soon as Dresser should accept a draft for 1,312Z. (also enclosed), and should make an acknowledgment that Norrbom had perforiped his contract in all respects. The letter also stated that he (Norr- bom) had authorized Frestadius to draw on them for 1,300Z. This letter from Norrbom to Hoare and Co. was sent through Kleman, who was Hoare's agent in Sweden, Kleman enclosing it in a letter of his own to them, in which he said, referring to Norrbom's authority to Frestadius to draw for 1,300Z., that, " knowing Dresser " and Co., to be very good, I have not hesitated to assure Mr. " Frestadius that you will promptly honour his draft." Two days previously to this Hoare and Co. had received Frestadius' drafts on them for 1,300Z. On the receipt of NoiTbom's letter and shipping documents on the 24th, Hoare and Co. sent a clerk to Dresser, who presented the draft for acceptance, and informed himof the contents of Norrbom's letter. Dresser was annoyed and declined to accept the draft, say ing the proceeding was a strange one, as the cargoes were already his, and that he had made advances to Norrbom in respect of them, and that it was a swindle. Hoare and Co. then wrote to Dresser on the 24th, posting the letter at 11.30, which Dresser received between 12 and 2 o'clock, in which they stated explicitly the condi tions on which the bills of lading would be delivered to him. In answer to this. Dresser on the same afternoon wrote that he wished to see the bills of lading, and would return them if he did not ac- cept the bill and make the other *acknowledgments, and on [*298] the faith of this Hoare and Co. delivered them to him on the after- noon of the 24th. And in the evening of the same day they wrote to Frestadius " "We also give your drafts due protection," and posted the letter the same evening. Frestadius' drafts were subsequently accepted. On the 25th Dresser accepted the draft for 1,312Z., and returned it to Hoare and Co., but kept the bills of lading without making the required acknowledgments. He subsequently paid the draft at maturity. Hoare and Co. requested Dresser either to give his acknowledgments or to take back his acceptance and return the bills of lading. (•2087) 216 EQUITABLE INTERESTS AND ASSIGNMENTS. [Pt. II. It was argued for Dresser that there had been an equitable as- signment to him of the cargoes of the ' Verene ' and ' Christiana,' and then when Hoare and Co. came under a liability in respect of the bills of lading for those cargoes, that they had notice of Dres- ser's prior equitable title. The case really turned on the second point, the House of Lords being of opinion that Hoare and Co. had not notice of Dresser's claim, even assuming it to have existed, but the case is important, as showing what the judges considered to be an equitable assignment. Lord Chelmsford, L.C., said, " When the " 'Verene' and 'Christiana' were laden with timber expressly for " the purpose of satisfying the contracts which had been entered " into on account of Norrbom for the supply of exact quantities "shipped for Bristol and for London, Dresser had an equitable '■ title to the property in these cargoes which he could enforce " against Norrbom, or against any other person claiming from Norr- " bom with no better title than he possessed." " And," said Lord "\^'ensleydale, " I take it to be perfectly clear "that in order to create an equitable assignment the obligation " must be to deliver a particular chattel, not to deliver any chattel. i<* * * B^f, iQ this case, though the contract was, I think, uncer- "tain till the 29th September, there was a positive engagement that "the bill of lading of these two cargoes which had been put on " board the ' Verene ' and ' Christiana' should be transferred to Dres- r*299] " ser, and though Dresser refused to accept the particular *bill " that was drawn upon him, I think it may be well considered as " an appropriation of those two cargoes to him, which would con- " stitute an equitable lien on them in his favour." In Frith v. Forbes (q), in 1862, which has been considered at greater length, ante, p. 278, there was an assignment of the debt, but the pinch was, was it assigned free from equities. For the de- termination of this point there was the subsidiary question, were the securities specifically appropriated ? Lord Justice Turner, put the case in this way: "The bills * * * refer to the consignments, " and operate, I think, as orders by Begbie and Co. on Forbes and " Co. to pay the bills out of those consignments, and the present- " ment of the bills by the plaintiffs was a communication to Forbes "and Co. of those orders" (r). Begbies had assigned to Frith a debt which was owing to Begbies from Forbes. Begbies then be- came insolvent. Now this being an equitable assignment, the as signor could only assign it subject to any equities affecting it and it was argued for Forbes that one of these equities was his lien over the proceeds in respect of Begbie' s general indebtedness to him. But the Lords Justices held that Forbes, by accepting the cargo in trust to pay the debt out of the proceeds, had renounced his lien over those proceeds, and therefore could not now assert it. Frith T. Fiirhr.'!, :11 L. J. Ch. 79^1; 4 De G. F. & J. 409. ISce also the concluding sentence of his juclgmeut. CA. IV.] EQUITABLE INTERESTS AND ASSIGNMENTS. 217 It must not be forgotton that this case -was a peculiar one, and that it was a case of a principal consigning goods to his agent, and not that of a vendor consigning to a purchaser (s). The plaintiff's title was also good against Begbie, and his assignee could not be in a better position. In the case of Holroyd v. Marshall (<), in the House of Lords in 1862, Taylor, who was the occupier of a mil], covenanted that he would assign to Holroyd, his landlord, all machinery which might thereafter be brought by him (Taylor) *into the mill. The [^SOO] sheriff seized ths machinery which Taylor had so brought in, and Holroyd claimed it as equitable assignee. The House of Lords held that he was entitled to it. Lord Westbury said, " * * * It is " quite true that a deed which professes to convey property which " is not in existence at the time is, as a conveyance, void at law, " simply because there is nothing to convey (m). So in equity a " contract which engages to transfer property, which is not in exis- " tence, cannot operate as an immediate alienation merely be- " cause there is nothing to transfer. But if the vendor or mort- "gagor agrees to sell or mortgage property real or personal of " which he is not possessed at the time, and he receives con- " sideration for the contract and afterwards becomes possessed " of property answering the description in the contract, there is " no doubt that a court of equity would compel him to perform " the contract, and that the contract would in equity transfer " the beneficial interest to the mortgagee immediately on the " property being acquired. This of course assumes that the sup- " posed contract is one of the class which a court of equity " ivould decree a specific performance. * * * It follows that, " immediately on the new machinery and effects being fixed or " placed in the mill, they became subject to the operation of the " contract, and passed in equity to the mortgagees, to whom Taylor " was bound to make a legal conveyance, and lor whorn he, in the " meantime, was a trustee of the property in question " (x). The ease of Reeve v. Whitmore (y), in 1863, is introduced here, as in it an attempt was made to give to a mere license to seize after- acquired property the same effect as a covenant to assign after- ac quired property, so as to create an equitable interest in such prop erty. Lord Westbury, L. C, said, " A power is a very different " thing from an interest; and if the extent and limit of the contract " be merely that he should *have such a power, then an inter- [*301] (s) Beeper James, L. J., in In re Entwislle, 3 Ch. D. 4S0; and in Bohey v. Oilier, 7 Cli. Ap. 695. [t] Holroyd v. Marshall, 10 H. L. E. 191; 33 L. J. Ch, 193. (u) Even if the contract is in form an absolute assignment, yet it merfly- operates as a promise to assign until the contract attaches upon specific goods, Collyer v. Isaacs, in 1881, 19 Ch. D. 351 ; 51 L. J. Ch. 14. (sc) See also 3Toffg v. Baker, in 1S38, 3 M. & W. 195. (y) Reeve v. Whitmore, 33 L. J. Ch. 66. (2080) 218 EQUITABLE INTERESTS AND ASSIGNMENTS. [Pt. II. " est ■would not arise under the power till the power was exercised" In Guniell v. Gardner (a), in 1863, Gledhill, who was in debt to the plaintiff, had contracted to purchase some wool from Bradley, but had not paid the whole of the price. The wool was lying at Doncaster, on the defendant's premises. In order to secure the money owing to the plaintiff, Gledhill said to him, " There is "the wool which has gone to Doncaster ; go and sell that wool; " pay Bradley the balance due to him on such wool, and keep the remainder yourself." Gledhill died shortly afterwards. The plain - tifp accordingly went to Doncaster and demanded possession, but was informed by the defendant that he had been instructed by Gled- hili's administrators not to deliver it. The plaintiff, however, by force obtained possession, and sold the wool ; he then paid Bradley the sum owing to him, and kept the balance. The defendant and the administrators commenced an action to recover the value of the wool, and the plaintiff, having no defence at law, suffered judgment to be entered against him, and then filed his bill to have it declared that he was in equity entitled to the proceeds of the wool. V. -C. Stuart held that there had been a good equitable assignment. It is worth noting that there was no evidence in writing of the equita- ble assignment. In Langton v. Waring (b), in 1865, the plaintiffs were the as- signees in bankruptcy of Hollway, Hart and Co., who had con- tracted to sell a large number of railway sleepers to the defendants. The cargoes, as they arrived from Dantzic, were discharged at Holl- way, Hart and Co.'s wharf, and the timber, which was double the size of a railway sleeper, was sawn in two and then delivered at the defendant's wharf, about half a mile distant. The question arose as to the last cargo. John Hart, who was one of the iirm of Holl- way, Hart and Co., called on the defendants to ask them for an ad- vance, and at the interview, as appeared from the evidence, an ad- [*302] vance of *600Z. was made to him on account of this last cargo. He then absconded, and some days afterwards the defend ants sent a large number of men, and, against the consent of Holl- way, Hart and Co., carried away the timber. Part of the timber had been sawn into sleepers; part had not. The plaintiffs, who were the assignees of Hollway, Hart and Co., brought this action to recover the value of the timber. The Court held that they were not entitled, there having been a good equita- ble assignment to the defendants. Erie, C. J., said, " My judgment rests entirely upon what passed " at the time that advance was made. It was agreed on all hands " that it was an advance made specifically on account of the timber " in question. The assignees now claim to keep both the money, (z) Thompson Y. C(,?int, L. R. 7 Q. B. .5:;2; 41 L. J. Q. B. 221. (a) GurneUy. Gardner, I) .Tur. S. S. 1220; 4 Giff, 626. (b) Langton v. Warinff, 18 C. B. N. S. :U5. (21 1^)0) Ch. IY.\ EQUITABLE INTERESTS AND ASSIGNMENTS. 21& " and the goods. The question is, whether, as against them, what " passed between the defendants and John Hart at the time of mak- " ing that advance did not constitute that 600Z. a charge upon the " timber, and make it an advance upon the security of that specific " cargo, so as to prevent the assignees, who take all the legal and " equitable rights of the bankrupts, from being entitled to claim it. " I am of opinion that what passed upon that occasion did amount " to an agreement on the part of John Hart to appropriate this par- " ticular timber as a security for the advance he was asking" (c). In re Agra and Masterman^s Bank, Ex parte Asiatic Bankiny Corporatiofi (d), in 1867, the question was whether the debt had been assigned subject to equities. There Agra and Masterman's Bahk had written a letter authorizing Dickson, Tatham and Co., to draw on them for a certain amount, and the letter contained these words, " This credit will remain in force for twelve months from this date, and parties negotiating bills under it are requested to in- dorse particulars on the back hereof." Dickson, Tatham and Co., drew on Agra and Masterman's Bank, and sold the bills to the Asia- tic *Banking Corporation, who indorsed the particulars as [*303] above requested, and now, as holders, claimed on Agra and Master- man's Bank, who resisted the claim on the ground that Dickson, Tatham and Co. were indebted to them to an amount greater than the bills. But the Court allowed the claim, on the grounds that the letter was addressed to the persons who should negotiate the bills : and that it was a representation to such persons that the bills would be paid. The judgment of Lord Cairns contains the following passage (e) : — " But presuming the contract to have been at law a contract with ' Dickson, Tatham and Co., and with no other, it is clear that the ' contract was in equity assignable, and that Dickson, Tatham and ' Co. must be taken to have assigned (if assignment were needed) ' to the Asiatic Banking Corporation, and to have been by the ' writers of the letter intended to assign to them the engagement ' in the letter providing for the acceptance of the bills. Grenerally ' speaking, a chose in action, assignable only in equity, must be as- ' signed subject to the equities exisiting between the original par- ties to the contract; but this is a rule which must yield when it ' appears from the nature or terms of the contract that it must have ' been intended to be assignable free from and unaffected by such ' equities. The essence of this letter is, as it seems to me, that the ' person taking bills on the faith of it is to have the absolute bene- ' fit of the -undertaking in the letter, and to have it in order to ob- ' tain the acceptance of the bills which are negotiable according to (c) See also Bishop v. Crawnhay, in 1824, 3 B. & C. 418. (d) In re Agra and Masterman's Bank, Ex parte Asiatic Banking Corporation, 2 Ch. App. 391 ; 36 L. J. Ch. 222. (e) 2 Ch. App. 397 ; 36 L. J. Ch. 226. (2091 ) S20 EQUITABLE INTERESTS AND ASSIGNMENTS. \ Pt. II. " their tenor, and without reference to any collateral or cross " claims. Unless this is done the letter is useless." The third and last question for consideration is the rule in Ex parte Wariny (/). "Where the securities are admitted to have been deposited in trust to meet the bills, and both the drawer and the acceptor of the bills is insolvent, and the bills are in the hands of third parties, then the difficulty occurs in winding up the estates, which is met by the rule m Ex xiarte Waring (/). [*304] *The facts in E.c parte Waring (g), which was decided in 1815, were that Bracken and Co., who were manufacturers, had an account with Brickwood and Co., who were bankers, and drew on them from time to time, and deposited securities with Brickwood and Co. to cover their acceptances. The bills had been indorsed to third parties, and both Brickwood and Co. and Bracken and Co. became bankrupt ; Lord Eldon ordered (h) that the securities should be appropriated specitically to the discharge of the accept- ances. Lord Eldon regarded the case as if the securities had been real- alized at the moment of the bankruptcy and the proceeds appropri- ated to meet the bills rateably; if they were not sufficient, the bill holders proving for the unpaid portion ; if more than sufficient, the surplus to be paid to the depositors of the security (i). It had been argued that the holders of the bills had some right of their own to have the securities appropriated to their bills, but, said Lord Eldon, " I see nothing in this transaction, which, supposing a bank " ruptcy had not occurred, would entitle those, who are creditors by " the acceptances of the bankers having these deposits, to maintain " an equity upon them : the effect of which would be, that from " the moment of that deposit the bankers became trustees for those " creditors; and could not come to any new arrangement with those " whose debts are to be so discharged." Lord Eldon then treated the case in this way : Brickwood and Co. became insolvent in July: Bracken and Co. became insolvent in August; between those dates Bracken and Co. had an equity to have the securities appropriated to the bills, and that equity was not varied by their insolvency, and the bill holders must have the benefit of that equity. In Poides v. Hargreaves (k), in 1853, a firm consisting of G. Hargreaves, J. Hargreaves, and Thomas Piatt, carried on business at Manchester, Liverpool, and Shanghae. The course of business [*305] between the firm and their customers *was for the firm to (/) Ex pnrlc Wnring, 19 Vea. Jun. 345; 2 Rose, l^'l Ig) E.rparic M'aring, it) Yes. Jun. 34.''i ; 2 Rose, 182. (li) The order in Ex paiic Waring^ is set out at full length in .3 D. G. JI. & G. 44.5. (J) P(r Lord Blacklrarn, in 7 App. Cti. 392. (Jc) Fouics V. llunjnai'e^, 3 De G. M. & V,. 430. (2092) Ch. IV.] EQUITABLE INTERESTS AND ASSIGNMENTS. 221 select and purchase goods at Manchester for their customers and to send them to Liverpool, whence they were consigned to the Shanghae branch of the firm, who sold the goods, purchased other goods, and consigned them back to the Liverpool branch. The iirm financed these transactions by drawing on their customers for the price of the goods consigned to China, which bills were ac- cepted by the customers, and the agreement between the firm and the customers was that the return consignments purchased in Shanghae and consigned to Liverpool should be a security in the hands of the firm for the bills so drawn. For the purposes of getting some bills so drawn by the firm on one Prescott and accepted by him, discounted, a member of the firm informed the manager of the Liverpool Banking Company (the plaintiffs) of the circumstances under which the bills were drawn, and the Liverpool Banking Company discounted the bills on the understanding that the return consignments were to be a security for the payment of the bills. Prescott died insolvent, and when the firm failed the Liverpool branch held certain return con signments in their hands. Lord Cranworth, L. C, and L. JJ. Knight Bruce and Turner held that the holders had a right to have the proceeds of those consignments appropriated to meet the bills. It is clear from the judgments that the rule in JEx parte Waring (I) applies where there is a double insolvency, and is not to be re- stricted to cases of double bankruptcy. In the case of Inman v. Clare (m), in 1858, the Klingenders, Liverpool merchants, usually employed the Clares, who were cot ton brokers, to sell the cotton which they imported, and, requiring money, they applied to the Clares, who, on having the bills of lad- ing for certain cotton deposited with them as security, accepted Klingenders' drafts, and the drafts were discounted with the plain- tiff. Both the Klingenders and the Clares became insolvent, and "Vice- Chancellor Wood held that the plaintiff was entitled to have the proceeds of the cotton appropriated to meet his bills. *In In re New Zealand Banking Corporation, Hickie and [*306] Co.'s Case (n), in 1867, the point was not decided, but Lord Eo- milly seems to have been of opinion that the rule in Ex parte War- ing (o) did not apply where the drawers had deposited security with their bankers, the acceptors, but were so much in debt to them that they would still have been in their debt if the bankers, after paying the bills out of the securities, had kept the balance; for as nothing would under any circumstances be owing to the drawers, they could have no equity to have the securities applied in one way rather than another. In short, that as the drawers could have no equity, the holders could have none. But inasmuch as the posi- (l) Ex parte Waring, 19 Yes. Jun. 345; 9 Eose, 182. (m) Inman v. Clare, John. 769. (n) In re New Zealand Banking Corporation, L. E. 4 Eq. 226; 36 L. J. Ch. 809. (o) Ex parte'Waring, 19 Ves. Jun. 345; 2 Eose, 182. (2093) 222 EQUITABLE INTEKESTS AND ASSIGNMENTS. [Ft. II. tion of the drawer and acceptor was, with respect to these secu- rities, determined by the express terms of the contract of deposit, it is by no means clear that it was correct to say that the drawers had no equity. In the City Bank v. Luckie (p), in 1870, Kynaston and Co. had agreed to give Luckie a current cash credit which was secured by the mortgage of an estate in Guiana. Kynaston and Luckie be- came insolvent, and the plaintiffs, as the holders of the bills drawn by Luckie and accepted by Kynaston and Co., sought to have the security appropriated to the bills; and Lord Hatherly, L.C., de- creed accordingly. In the Bmik of Ireland v. Perry (q), in 1871, Home and Co. sold a cargo of maize to Pim and Co. ; Pim and Co. sold it to Perry, the defendant, and drew on him on the terms that the bills should be paid out of the proceeds. Perry sold the cargo to Cov- entry and Shepheard. Coventry and Shepheard pain Home and Co. direct, and that left in their hands a sum of 415Z. due from them to Perry for the maize. Both Pim and Co. and Perry were insolvent, and the plaintiffs, as holders of the bills drawn by Pim and Co. on Perry, sought to have the balance in Coventry and Shepheard's hands appropriated to their bills, and the Coui't of Exchequer allowed their claim. [*307] *In Ex parte Smart in re Richardson ( )-), in 1872, Stephani of Havana purchased goods of Langs of Bremen. Langs drew on Richardson of London, who accepted the bills. Stephani sent security to Richardson to keep him in funds to meet Lang's draft. Stephani and Richardson became insolvent, and Langs, who were the holders of the bills, claimed to have such of the security as was in Richardson's hands at the date of his liquidation, applied to meet thoir drafts. The claim was resisted on the ground that Stephani were not parties to the bill, and therefore the rule in Ex parte Waring (s) did not apply. But the Court held that it did, Mellish, L. J., saying that if Stephani had drawn on Richardson, had deposited security with him, and had indorsed the bills to Lang's, then the doctrine would clearly have applied, and it could make no difference that Stephani got Langs to draw for them. The same learned judge explained this case in Vaughan v. Halliday (t), in 1874. He there said : "In Ex parte Smart (r) the holder was " himself the drawer, and although he was not entitled to prove on " the bill against the two firms, he was entitled to prove against the " acceptor, who had accepted for the accommodation of a firm to "whom the drawer of the bill had sold goods, and he was en- " titled to prove for the same debt against that firm for goods sold 1p) Cil/i Bnnlc \. Liiflie, ."> C'h. App. 773. q) Bank nf Ireland v. Perrn, L. E. 7 Ex. 14; 41 L. ,T. Ex. 9. r) Ex imrle. Smart, In re RirlwriUim, 8 C'h. App. '2-.30 ; -12 E. J. Bank. 2-2. s) E.r p. Waring, 19 Vesey, junr., 845; 2 Rose, lb2. (if) Vaughan v. Halliday, 9 Ch. App. ."iiiS. (2094) Ch. /F.] EQUITABLE INTERESTS AND ASSIGNMENTS. 223 " and delivered. There being therefore a double insolvency and a " double right of proof, we thought that the principle of Ex parte " Waring (s) applied." In Vaughan v. Halliday {t),in 1874, Eyder and Co. trading in Brazil drew on Ashton, of Manchester, in favour of the plaintiff, the holder, and subsequently purchased bills and forwarded them to Asliton to cover the drafts. Both Ryder and Ashton became insol- vent, and Ashton refused to accept the drafts when presented. The Lords Justices held that the rule did not apply, for as Ashton had not accepted, *there was not that right of double proof [*808] which is essential. If the bills were appropriated to the drafts, then as Ashton had not accepted, Eyder had an unqualified right to have them back. If they were not appropriated, there was no case. In Ex parte Lambton in re Lindsay (u), in 1875, Lindsay agreed to build a ship for Marshall and Osborne which, was to be paid for by bills drawn fi-om time to time as certain stages of construction were reached, and it was agreed that the ship and materials while in course of construction should belong to Marshall and Osborne. The bills were accepted by Marshall and Osborne, and discounted with Lambton and Co. Before the ship was finished Marshall and Osborne became insolvent and subsequently Lindsay became bank- rupt, and Lambton and Co. applied to have the ship appropriated to their bills. But the Court refused the application. Whether the property had passed or not it was not a case where the ship was held as a security to meet the bills; it was not a case of pledge. In Ex parte General South American Co., in Be Yglesias and Co. (x), in 1875, the drawer, Madinya of Guayaquil, sent security to the acceptors, Yglesias, of London, to cover drafts which were accepted. The acceptors were insolvent, and a receiver appointed. The drawer was practically insolvent, but retained the management of his affairs having come to an arrangement with his creditors to pay them off by instalments. The holders, the General South American Company, were not parties to this agreement, and sought to have the securities appropriated to their bills. The Court con sidered that the drawer was not under the control of any Court, and although at the time when he deposited the securities he . did give authority' to appropriate them, yet he might revoke that authority and give any instructions he thought fit, and the Court had no power to interfere, for the rule can only be *enforced where [*309j both estates are under the control of the Court. James, L.J.,, said " No judge has ever expressed an opinion in favour of extending " the rule to a case where one of the parties, though practically in- " solvent, is subject to no jurisdiction and cannot be compelled to («) Ex parte Lambton, In re Lindsay, 10 Ch. App. 405 ; 44 L. J. Bank. 81. (x) Ex parte General South American Co., In re Yglesias <& Co., 10 Ch. App. 635 ; 45 L. J. Bank. 54. (2095) 224 EQUITABLE INTERESTS AND ASSIGNMENTS. [Pt. II. " submit his rights to any Court * * in my opinion the rule can- " not be extended to a case where there is a party whose estate is " not under administration." The rule in Ex parte Waring (y), was further considered in the cases in the note (z). The rule in Ex parte Waring (y) is not applied in the distribu- tion of insolvent estates in Scotland. This was decided by the House of Lords in 1SS2 in the case of the Royal Bank of Scotland V Commercial Bank of Scotland (a). Ramsay was in the habit of sending yarn to Saunders to be spun, and it was agreed that Saun- ders should hold the yarn as security for his acceptances of Eam- say's drafts. Both became bankrupt, and the Royal Bank, as holders of the bills, claimed to have the estate of Saunders admin- istered, as it certainly would have been in England, according to the rule in Ex parte Waring (y). But the Court held that that rule was not the law of Scotland, and followed the system of divid- ing the assets adopted there, which seems to be a more equitable one. That system may be most easily seen from the figures them- selves. The whole of the claims on Saunders' estate amounted to 40,000Z. of which 24,000Z. were general creditors, and 16,000Z. were bill-holders. The assets were 9,000Z. and the securities 4,000?. In dividing the estate the 9,000Z. veere divided rateably, the bill- holders taking sisteen-fortieths, viz. 3,600Z. The general estate was then indemnified out of the securities, that is to say, the amount paid to the holders, viz. 3,600Z., was taken out of the secu- L*310] rities and put into the *general estate. This sum was now divided rateably, the holders again getting sixteen-fortieths of it, viz. about 1,400Z. The rest of the security was now used as far as it would go to replace the 1,400?. taken by the holders, and was then exhausted, but if it had been larger this process of replace- meat would have gone on again until the whole of the assets, orig- inal and replaced, had been divided. The bill-holders would then have gone upon what remained of the security, if anything, for the balance, owing to them, and if there was something remaining over after that, it would have been handed back to the drawer's trustee. The effect of this division is not to increase the amount to which the general creditors are entitled, but merely to indemnify their fund to the amount paid to the holders who should have been paid out of the security, j (y) E.r parte Warinff. If) Ves. Jun. 345; 2 Rose, 1S2. («) Banner \. Johison, in 1H71, 5 E. & I. App. 157; 40 L. J. Ch. 730; Ef parte Beirhurst, in 1K73, 8 Ch. App. 965; 42 L. ,T. Bank. 87; In re Barned'.i Banking Company, in 1874, L. R. 19 Eq. 1; 10 Ch. App. 198; 44 L. J. Ch. 97 and 494; Loder's Case, L. R. G Eq. 491. (a) Koyal Bank of iScotlaiul v. Commercial Bank of Scottand, 7 App. Ca. 366. (2096) (225) *PART III C*^!!] OF THE VENDOR'S EIGHTS. CHAPTER I. STOPPAGE IN TRANSITU : ITS ORIGIN. IT IS A RIGHT PECULIAR TO ONE WHO STANDS IN THE SITUATION OP VENDOR, AND WHO IS WHOLLY OR PARTIALLY UNPAID. It is superfluous to repeat the modern authorities for the position, that by a bargain and sale without delivery a legal property passes. But, as has been already raore than once intimated, it is not an ab- solute and unqualified legal property that is transferred : the prop- erty passes subject to the unpaid vendor's rights. And this brings us to the consideration of the difficult and im- portant subject of what are the unpaid vendor's rights. It is to be observed, that as a general proposition the person who has the property in goods has immQ, facie, but not necessarily the legal right to the possession of them. And, in general, he who has the property and legal right to the possession of goods, has in contemplation of law the control over them, though in point of fact the actual holder of the goods may wrongfully refuse to obey his directions; still, as the holder ought to obey, the goods are considered as being in point of law in the possession of the proprietor, and therefore the owner of goods has primA facie all the legal rights and remedies which he would have if the goods were in his own actual possession, or as it is more technically expressed, '' It is a rule of law that the property of per- sonal chattels draws to it the possession " (a). *From this it follows that the purchaser under a bargain and [*312] sale has a prima facie right to the possession of the goods; but it is no more than a primQ. facie right to the possession. The parties may, by the terms of their agreement, bargain that the right of property shall vest in the purchaser forthwith, but that the right of possession shall remain with the vendor until the fulfillment of any conditions they please, and if there is nothing in the circumstances to show a contrary intention, the parties are presumed to intend to make the payment of the price contemporaneous with the delivery of the possession (6). If, therefore, nothing be said in the agree- ment about the time of delivery or payment, the construction put ty the law upon the agreement is, that the vendor shall deliver the (a) 2 Saunders, 89, n. (6) Bloxam v. Saunders, 4 B. & C. 941. 15 CON. OP SALE. (2097) 226 STOPPAGE IN TRANSITU. [Pt. Ill goods upon payment of the price, and the purchaser shall pay the price upon receiving the goods, and either party may at a reason- able time call upon the other to fulfil his part of the bargain, pro- vided he is ready to fulfil his own, but not otherwise: so that neither the vendor can maintain any action against the purchaser for the price vt^ithout showing a readiness to deliver the goods, nor the pur- chaser maintain any action founded on the right of possession without showing a readiness to pay the price. But inasmuch as this proceeds on the presumed intention of the parties any thing in the agreement which shows that such is not their intention will alter the construction and legal effect of the agreement. If, therefore, there is express credit given, and nothing said about the time of delivery, the vendor is bound to deliver the goods in a reasonable time if requii-ed, but the buyer is not bound to pay the price before the credit expires, for such is the bargain. During the interval between the vesting of the property and the expiration of the credit, the buyer has the rights of property and possession, though the goods have not been delivered nor paid for, and he may in pleading, and for all legal purposes, be considered as possessed [*313] *of them. But his rights are not indefeasible; and if, be- fore he has obtained possession of the goods, the buyer becomes insolvent, or perhaps if he suffers the time of credit to expire before demanding possession, the unpaid vendor has a right over the goods the precise limits of which are not well ascertained, but which certainly interferes with the purchaser's rights both of prop- erty and possession. In this respect, the situation of an unpaid vendor is a peculiar one; for though the owner of goods can by agreement give the holder of them a right to hold them adversely to him till some conditions are fulfilled, or as it is technically called, give him a lien on them: yet this anomalous sort of property spring- ing up upon the insolvency of the owner, seems peculiar to a con- tract of sale; and there is attached to it a further right to stop the goods in transitu, as it is called, after they have left the vendor's possession and before they have come to that of the buyer, which is equally peculiar to the contract of sale. "VVe now come to treat of the rights of the unpaid vendor, whilst he still retains possession of tJie goods sold, and of that extension of his right which enables him to retake the goods after he has parted with the possession, and before the purchaser has taken pos- session. In the natural order of things, it would be more regular to consider the vendor's rights whilst in possession, before taking any notice of those rights which he possesses after he has parted with it; but the state of the law makes it more convenient to re- verse this order, and commence by endeavouring to ascertain the extent and nature of the right of stoppage in transitu. In the first place it is to be observed, that when the vendor has given the buyer possession under the contract of sale, all his rights in the goods are completely gone ; he must recover the price exactly as he (2098) Ch. /.] ' STOPPAGE IN TRANSITU. 227 would recover any other debt, and has no longer any claims on the goods sold superior to those of any other creditor. The delivery and acceptance of possession complete the sale, and give the buyer the absolute unqualified and indefeasible rights of property and possession in the things sold, though the price be unpaid and the buyer insolvent, unless, indeed, the vrhole transaction is vitiated by actual *fraud. "In this respect," says Lord Tenterden (c), [*314] "the law of England is more favourable to the transfer of property, " the great subject of commerce, and less attentive to the interest " of the seller of goods than the anci^nt civil law or the modern law " of many European nations, which is chiefly founded on the civil " law: for the civil law did not in general consider the transfer of " property to be complete by sale and delivery alone, without pay- " ment or security for the price, unless the seller agreed to give a " general credit to the buyer for it; but allowed the seller to re- " claim the goods out of the possession of the buyer, as being still " the seller's own property. And by the general law of France in " the case of insolvency, the seller who has sold a thing, and still " lies out of the money which he was to have for it, if he finds the " thing that he sold in the hands of the buyer, may seize on it, and "he is not obliged to share it with the other creditors of the buyer; " whereas, by the general law of England, when goods have been " delivered into the actual or constructive possession of the buyer, "they cannot be reclaimied." It must be borne in mind, that at the time Lord Tenterden wrote, the modern law of most of the continental nations was what is now he ancient law of the same countries, for the Gode Napoleon was not yet introduced. And this is the more important, because the Code de Commerce on this point was framed with the avowed and deliberate purpose of abolishing the ancient law of revendica- tion, and adopting the provisions of the law of England and America (d). But the distinctions *between the civil law [*315] which enabled the seller after delivery to seize the goods as his property, even in the hands of a bond fide sub-purchaser, unless (e) Abbott on Shipping, Part IV., Chap. XI., 10th ed., 391. [d) This assertion is made on the authority of a note in 1 Bell's Commentaries, p. 207. I have not seen the documents there referred to, but the quotations seem fuUy to bear out the statement. But the right of reveudication seems to remain when the parties are not traders, but the period during which it must be exercised is cut down to a week, and is confined to the case of ajsale without giving of credit. "Where credit is given, the seller seems to retain a ^^ primlegc" or preferable claim to that of ordinary creditors, but to have no right of re- vendication. " The creditors who have a ^privilege, ' on certain moveable are * * * 4thly, The price of moveable goods sold and not yet paid for, if. they are still in the hands of the debtor, whether he bought them on credit or without credit (a terms ou sans ierme). If the sale was made without credit, the seller may even revendicate the goods so long as they are in the hands of the pur- chaser, and forbid the resale, provided the reveudication is made within a week of the delivery, and that the goods remain in the same state in which that delivery was made." Code Civil, 2102. (2099) 228 STOPPAGE IN TRANSITU. [Pt. III. there had been general credit given, express or implied, and the ancient law of France, which gave the right to recover them so long as they were in specie in the hands of an insolvent buyer, whether there was credit given or not, but made that right cease when the goods came into the hands of a sub-purchaser, and the law of Eng- gland which gives no right of either sort, seem all to have been present to Lord Tenterden's mind when writing these few sent- ences. The state of the ancient foreign law is by no means irrelevant to the present inquiry; for there seems but little reason to doubt, that the right of stoppage in transitu is a modification of the right of revendication, such as it had become by the general law merchant during the middle ages. " Although," said Lord Abinger, in 1841 (e), " the question of " stoppage in transitu has been as frequently raised as any other " mercantile question within the last hundred years, it must be " owned that the principle on which it depends has never been " either settled or stated in a satisfactory manner. In Courts of " Equity it has been a received opinion that it was founded on " some principle of the common law. In Courts of Law it is just " as much the practice to call it a principle of equity which thecom- " mon law has adopted. This was strongly insisted upon by Mr. " Justice Buller in his celebrated judgment in the House of Lords "in the case oi Lickbarroiv v. Mason (/). It has also been said by " Lord Kenyon, that it was a principle of equity adopted by the " common law to answer the purposes of justice. The most emin- " ent equity lawyers that I have had an opportunity of conversing " with in times that are gone by, were unanimous in repudiating it [*31(i] " as the offspring of a Court of Equity. *The first case " that occurred on this subject affords some authority for the opinion " of ]\Ir. Justice Buller and Lord Kenyon. It is the case of Wise- " inan v. Vandeput (g), in 1090. That was a bill filed by the as- '■signees of the bankrupt against the vendor. The Lord Chancel- " lor directed an action of trover to be brought by the plaintiffs, " upon which they recovered a verdict. It is clear, therefore, that " the rule had not at that time been adopted at law. The Lord " Chancellor, however, adopted it in equity, and notwithstanding " the verdict at law for the plaintiffs, made a decree against them. '■ The next case is that of Snee v. Prescott (h). Lord Hardwicke " again applied the rule to a certain extent in equity. But it is " remarkable that he received evidence of what was the custom of " merchants on this point, and he expressly founds his decree upon "the evidence of the custom of merchants as well as upon the " justice of the case. This decision occurred about the year 1742 (p) GihxKn Y. Carruihers, 8 M. & "W. r!21; 11 L. J. Ex. 145. (/) Lichbarrow v. Slaanii, 4 Bro. P. C. 57; 6 East, 27. (g) R7sf«m« v. Vandeput, 2 Vernon, 203. (h) ,'SHce \. Prescoti, 1 Atk. 24. (2100) Ch. /.] STOPPAGE IN TRANSITU. 229 " or 1743. The next case is that of Ex parte Wilkinson in 1755, "referred to in VAquila y. Lambert (i), which took place in 1761. " There the Lord Chancellor again grounded his decree on the " usage of merchants, and stated that the several previous decisions "which had taken place to the same effect had given great satisfac- " tion to the merchants. Numerous cases have followed at law, " showing that the right of stoppage in transitu under certain cir- " cumstances is now part of the common law. Nevertheless, owing " perhaps to the doubtful state of its parentage, many unsatisfactory " and inconsistent attempts have been made to reduce it to some " analogy with the principles which govern the law of contract, as " it prevails in this country between vendor and vendee. It is to " be observed, however, that the right of stoppage in transitu is not " peculiar to the law of England. It existed, I believe, in the com- '' mercial states of Europe. The cases I have already referred to " show that it was practised in the Italian *states. ^ That it [*317] " existed in Holland was proved in a case tried by Lord Lough- " borough, and mentioned by him in his judgment in the case of " Lickbarrow \. Mason (k). That it was the law of Russia was " also proved in the cases of Inglis v. Usherivood (I), and Bohtlingk "v. Inglis (m). It appears also on reference to the Ghapitre de la " Faillet6 in the Gode Napoleon, that the law of France on this " subject is in all points similar to our own. It is known that this "celebrated code is chiefly a digest of the law of Prance as it ex- " isted before the Revolution : indeed, the right of stopping in "transitu had before the composition, or digest of that code, ac- " quired the name in the French law of ' Revendication.' It may, " therefore, be presumed to be a part of the law of merchants, which " prevails generally on the continent: the proof of which from time " to time, combined with its manifest justice and utility, has at " length introduced it into the common law of England, of which " the law merchant properly understood has always been reckoned "to form a part." In this neat historical sketch Lord Abinger is not quite correct in saying that the right of stoppage in transitu exists in the old continental law. The statement of Lord Tenterden is accurate; the right abroad was different from, and in some respects more ex- tensive, than that given by the law of England. This, however, does not in the least shake Lord Abinger' s position, that the right was imported into the English law from the general law merchant, though probably much earlier than the case of 'Wiseman v. Vande- put (w). There is no part of the history of English law more ob • scure than that connected with the common maxim that the law (i) D'Aquila v. Lambert, Ambler, 399. (fc) Lickbarrow v. Maso-n, 1 H. Bl. 364. (I) Inglis v. Usherwood, 1 East, 515. (m) Bohtlingk v. Inglis, 3 East, 381. (n) Wiseman ^ Vandqmt, 2 Vernon, 203, A. D. 1690. (2101) 230 STOPPAGE IN TRANSITU. [Pt. III. merchant ia part of the law of the land. In the earlier times it was not a part of the common law as it is now, but a concurrent [*318] and co-existent law enforced by the power of the realm, *but administered by its own courts in the staple, or else in the Star chamber. Tho Chancellor, in the 13 Ed. IV. 9, declares 'his view of the law thus: " This suit is brought by an alien merchant who " is como by safe conduct here, and he is not bound to sue by the " law of the land, to abide the trial of twelve men, and other forms "of the law of the land; but he ought to sue here (in the Star " chamber), and it shall be determined by the law of nature in " Chancer^, and he may sue from hour to hour for the despatch of "merchants; and he said further, that a merchant is not bound 'by ' statutes where the statutes are introductiva Jiovce legis ; but if they "are deolarativa antiqui juris (that is to say, of nature, &c.). And '' since they have come into the kingdom, the king has jurisdiction " over them to administer justice, but that shall be secundum legem " naturce, which is called by some the law merchant, which is the law " universal of the world." And the justices being called on, certi- fied that the goods of this plaintiff were not forfeited to the crown as a waif (though those of a subject would have been), because he was an alien merchant. It is obvious that at that time the law merchant was a thing distinct from the common law. This accounts for the very remarkable fact that there is no mention whatever of bills of exchange, or other mercantile customs, in our early books; not that they do not exist, but that they were tried in the staple, and therefore were not mentioned in the books of common law; just as the matters over which the Courts of Admiralty, or Ecclesiastical Courts, have exclusive jurisdiction, are at this day never treated as part of the common law. But as the Courts of the staple decayed away, and the foreign merchants ceased to live subject to a peculiar law, those parts of the law merchant which differed from the com- mon law, either fell into disuse, or were adopted into the common law as the custom of merchants, and after a time began to appear in the books of common law. How this great change was brought about does not appear; but though bills of exchange were in com- mon use among merchants in the 13th century, the first mention of one in an English report is in Cro. Jac, in the l>eginning of the [*319] 17th century; and though the right *of rei n'ndicatio must have prevailed on the continent from the time of the revival of the civil law, the first mention of it in our books is as late as 1690. It seems quite impossible that such matters should not have been the subject of litigation in some shape or other in England for centu- ries before those times. This is now merely a matter of curiosity, for whatever may have been the origin of the right of stoppage in transitu, it has now been so often the subject of judicial decisions, that it is no longer pos- sible to speculate on what the doctrine of the law of England ought to have been ; it is proper to inquire what it is according to the decided (2102) Ch. /.] STOPPAGE IN TRANSITU. 231 « cases. But about the end of the last century, whilsfc the reported cases on the subject were few, the question of its origin was of great practical importance. If it was to be considered according to the theory of Mr. Justice BuUer, an equitable right adopted into the law, it would follow that it could prevail only against those who had an inferior equity. If it was a legal right depending on the strictness of law, the vendee could not confer a legal right greater than he had himself, and in no case would a third party be in a better position than the first vendee. If it was a right arising from the custom of merchants, the lex mercatoria as practiced in England, it might be material to inquire what the usage of merchants was, and whether the existence of the bills of lading or other mercan- tile documents made any difference. There was a considerable dif - erence of opinion among the Judges as to the principles on which this important branch of the law was to be administered, till in the year 1786, there occurred the celebrated case of Lickbarrmv v. Mason (o), in which the whole law was much discussed, and though no decision was actually come to in that case, the principles of the law were closely scrutinized. From that time we may date the numerous decisions which have formed the law of stoppage' in transitu into a system of law that leaves a few points open to dispute, bat may be considered on the whole as settled. *The different cases seem to establish the following [*320] points : — 1st. The right of stoppage in transitu is peculiar to one who holds the character of a vendor: below. 2nd. It can be exercised only whilst the vendor is wholly or par- tially unpaid: page 326. 3rd. It must be exercised while the goods are in transitu, that is, after they have left the possession of the vendor, and before they have come to the actual or constructive possession of the purchaser, or those who stand in his place: page 333. 4th. It cannot be exercised unless the buyer has failed, or become insolvent: page 380. 5th. It is a right which must be exercised by claiming or taking the goods as a right paramount to that of the purchaser: page 382. And lastly, it may be defeated before the goods have come to the end of the transitus, by the assignment of the bill of lading to one who bona fide gives value for a property in the goods, and in no other way: page 884. The most useful form of proceeding seems to be to collect the different authorities for each of those propositions separately. The right of stoppage in transitu is peculiar to one ivho stands in the situation of a vendor. [In Kinloch y .Craig (p), in 1790, a cargo of spirits was consigned (o) LAcJcbarrow v. Mason, 6 East, 21. (p) Kinloch V. Craig, 3 T. E. 783. (2103) 232 STOPPAGE IN TRANSITU. [Pt. III. by a merchant in Edinburgh to his factors in London and stopped, on their insolvency, before it had come into their possession. Lord Chief Baron Eyre said, " The transaction between them was as "between principal and factor, and not as between vendor and ven- " dee * * * the right of stopping in transitu was out of the ques- " tion, that never occurring but as between vendor and vendee."] In Sweet v. Pyni (q), in 1800, the defendant, Pym, was a [*3'21] *fuller, and as such had a general lien on the clothes of his customers. He shipped some clothes on which he had his lien, on board a vessel, by the directions of his customer, who was indebted to him, and whose clothes he might, therefore, have retained if he pleased. The customer became insolvent, and Pym succeeded in getting possession of the goods, before the transitus was ended ; but Lord Eldon at Nisi Prius, and afterwards the King's Bench, decided that, the delivery on board ship put an end to Pym's pos- session, and, consequently, to his lien, and that it could not be revived by stopping the goods in transitu. This case must be distinguished from those in which the bailee who has a lien, makes a bargain with the carrier, by which the car- rier is to forward the goods subject to the control of the bailee. There the bailee never parts with the possession at all, for his bar- gain with the carrier makes the possession of the carrier that of the bailee, and he in consequence keeps his lien till the goods are de livered to the consignee. But in such cases it is quite immaterial whether the consignee is solvent or not, for the bailee does not seek, by stopping the goods in transitu, to revive a Hen which was lost, but to keep a lien which was never lost, because there was never a commencement of the transitus. Thus in Freeman v. Birch, (r), in 1833, the King's Bench decided that a laundress who was in the habit of sending the washed linen to the owner in London, and herself paying the carriage, might maintain an action against the carrier for the loss of the linen. The Court said, that " she had a special property which had not " passed from her. The owner of the linen was not the employer "of the carrier, and the risk of the bailee was not over till the goods "were delivered." The point that one who stands in the situation of a vendor has the right of stoppage, and that no one else has such a right, was decided in two cases arising out of the same bankruptcy. In the [*322] first, Feise v. Wraij (s), in 1802, the facts *were, that Browne, who had since become a bankrupt, gave an order to Fritz- ing, a factor of Hamburgh, to procure and ship for him a quantity of was. Fritzing purchased the wax in his own name, and on his own credit, from persons strangers to Browne ; he shipped it ia Browne's name, and on his account and risk, and drew bills on him (q^ Sweet v. Pijni. 1 East, 4. Freeman v. llircti, :! (}. B. 492, n. Fcise V. irr«.v, :' East, li:!. (■n04) Ch. /.] STOPPAGE IN TRANSITU. 233 for the price of the wax and his commissions on the purchase. The defendant, who was the agent of Fritzing, stopped the goods in transitu on Fritzing's behalf, and the plaintiff, who was Browne's assignee, brought trover against him, contending, amongst other points, that Fritzing was but an agent of Browne with a lien, and could not stop the goods; the King's Bench said, the point was worth consideration if it had arisen, but it did not arise. Grove, J., said, "Fritzing may be considered in reailty the vendor, for the " name of the original owners was never made known to the bank- "rapt ; there was no privity between them, but the goods were pur- " chased and the bills drawn in Fritzing's own name, and, there- "fore, he stands in the situation of vendor as to Browne." In the second case, Siffken v. Wray, (i), in 1805, the same parties had a law-suit about another transaction. In this case, it appeared that Browne had ordered some corn of 'Dubois and Co., and de- sired them to draw for the price partly on his correspondent Fritz- ing. Dubois and Co. shipped the corn, and drew on Fritzing, who accepted the drafts. Browne became a bankrupt much indebted to Dubois and Fritzing, and not having paid the price of the corn. The defendant, who was Fritzing's agent, took possession of the corn by authority of the bankrupt, but without any authority from Dubois and Co., in trust to sell and apply the proceeds to meet the bills drawn against the corn. The plaintiffs were the assignees of Browne. Lord EUenborough said, " The defendant had no right " from Fritzing, for Fritzing himself had no right to stop the goods "in transitu. Fritzing's situation in this transaction was very dif- " ferent from what it was in Feise v. Wray (u) ; there he was liable "in *the first instance for the price of the goods, and, there- [*828] " fore, the Court considered him as a vendor quoad the bankrupt "here to whom he had shipped them." [In Newson v. Thornton (x), in 1805, where pork had been con- signed on the joint account of the consignors and consignees, and a bill drawn on the consignees for half the price, it was held that the consignors might stop the goods in transitu on the insolvency of the consignee. In Morrison v. Gray, (y), in 1824, a merchant in Dundee having shipped goods to a consignee in London, on hearing of the con- signee's insolvency, indorsed and forwarded the bill of lading to the plaintiff, his agent in London, for the sole purpose of enabling him to stop the goods in transitu. It was held that the plaintiff, although not an indorsee for value, had a special property in the goods sufficient to enable him to maintain trover. In Wood v. Jones (z), in 1825, it was held that an agent who had no specific author- t) Siffken v. Wray, 6 East, 371. ■ Feise v. Wray, 3 East, 93. Newson v. Thornton, 6 East, 17. y) Morrison v. Gray, 2 Bing. 360. z) Wood V Jones, 7 Dow. & Ey. 126. (2105) rl 234 STOPPAGE IN TRANSITU. [Pt. HI. ity to do so, might stop the goods on behalf of his principal, the vendor.]. In Tucker v. Humfrey (a), in 1828, where the consignor was nearly in the situation of Fritzing, in the case of Feise v. Wray (b), but was resident in this country, the whole transaction bei;Qg English, the Common Pleas assumed his right to stop the goods in the character of vendor as indisputable. It seems that in cases where a factor acting for a foreign corres- pondent purchases goods in his own name, and on his own credit, it is rather too qualiiied a phrase to say merely that he stands in the situation of vendor quoad the consignee. If he is not vendor, it is difficult to say who is, as there would be much difficulty in establishing any privity of contract between the foreign correspon- dent, and the original vendors. But there is a very gradual pro- [*3"24] gression from this *case through those in which the origi- nal vendor has a right to elect between the liability of the factor, and the consignee as principals, up to those cases in which the fac- tor, if liable at all, is liable merely as a surety ; and there may, consequently, be some difficulty at times in determining whether an agent can be said " to stand in the situation of vendor," so as to give him a right to stop the goods in transitu, on his own ac- count or not. [Although the right of stoppage in transitu must be exercised by one who stands in the position of a vendor, yet it is not necessary that the property should have vested in him. His interest will be sufficient if he has contracted to have them delivered to him. Thus in Jenkyns v. Usborne (c), in 1844, Hunter and Coventry of Lon- don had given an order for beans to Lloyd of Leghorn. The quan- tity shipped was in excess of that ordered, and Hunter and Coven- try declined to accept it, but accepted a bill for the amount ordered, and the plaintiiT, who was Lloyd's London agent, agreed to take the excess, and received from Hunter and Coventry a delivery order, and accepted a bill for the price. After this, but before the arrival of the beans in London, he sold the excess to Thomas, and sent him the delivery order. Thomas then pledged the delivery order with the defendant. Thomas stopped payment vnthout having paid the plaintiff, and the plaintiff thereupon gave instructions to the captain to withhold delivery. The defendant obtained possession. Tindal, C. J., delivering the judgment of the Court sustaining the verdict for the plaintiff, said, " It was objected that it is only the " owner of the goods who can exercise that right (stoppage in " transitu) ; and that, in this case, the property in the goods had " not vested in the plaintiff at the time of the stoppage, but only " an interest in, and right to receive, a certain portion of the cargo, " to be afterwards ascertained and appropriated to the pa rties in- (a) Tucker v. Humfreji, 4 Bing. 510. Ih) Feixr v. Wray, '?, East, 9:5. (c) Jenkyns v. Uxljorne, 7 M. & G, fiTS ; 13 L. J. C. P. 196. (2106) Ch. /.] STOPPAGE IN TRANSITU. 235 " tended : but we see no sound distinction, with reference to the " right of stoppage *in transitu, between the sale of goods, [*325] " the property of which is in the vendor, and the sale of interest •' which he has in a contract for the delivery of goods to him." And although an agent may stop goods in transitu on behalf of his principal, yet if he be not the agent at the time of the stoppage it will be ineffectual. In Bird v. Brown (d), in 1850, the defend- ants, who were purchasers of certain bills of exchange which had been drawn on consignees in Liverpool in respect to certain ship- ments, acting in the vendor's interest, but without his authority, stopped the goods on hearing of the consignee's insolvency, and obtained possession. The plaintiifs, who were the assignees of the consignees, demanded the goods, and subsequently an agent, duly appointed by the vendor, ratiiied the act of the d'ef andants. But it was held that the transitus was at an end when the goods had reached the port of destination, and when the consignees, having demanded the goods and tendered the amount of the freight, would have taken them into their possession, but for the wrongful deliv- ery of them to other parties. In Hutchings v. Nunes (e), in the Privy Council in 1863, a caSe somewhat similar to the last, the goods were stopped in transitu by a person who had previously done business with the consignors, and who considered himself and was considered by them to be their agent, but he had no express authority at the time of the stoppage to stop the goods. The stoppage was held good by Lord Kings- down and L. JJ. Knight-Bruce and Turner. It has not yet been decided whether a surety for an insolvent buyer has a right to stop in transitu, but Mr. Benjamin in his work on Sales (/), says, "That if a surety for an insolvent buyer should " pay the vendor, it would seem that he would now have the right "of stoppage in transitu, if not in *his own name, at all [*326] " events in the name of the vendor, by virtue of the provisions of "the fifth section of the Mercantile Law Amendment Act (19 & 20 "Vict c. 97)." No case has yet been decided on this section, which in effect says that every person who, being surety for the debt of another, shall pay such debt, shall be entitled to stand in the place of the creditor, and to use all the remedies, and if need be, and upon a proper indemnity, to use the name of the creditor, in any action or other proceeding at law or in equity, in order to obtain from the principal debtor, or any co-surety, co-contractor, or co-debtor, as the case may be, indemnification for the advances made and loss sustained by the person who shall have so paid such debt.] (d) Bird v. Brown, 4 Ex. 786; 19 L. J. Ex. 154. (e) Hutchings v. Nvmes, 1 Moo. P. C. C. N. S. 243. (/) Benjamin on Sales, Book V., Part I., s. 1, and ed., p. 691. C2107) 236 STOPPAGE IN TRANSITU. [Pt. III. The right of stoppage in iransitu can be exercised only whilst the vendor is icholly or partially unpaid. There never could be any question made, that if the vendor was ever to have right of stoppage in transitu at all, he must have it when he was wholly unpaid ; but it was at one time a question whether he could have any such right when partially paid. In Hodgson v. Loy (g), in 1797, the bankrupt had purchased of Cooper 104|^ firkins of butter, at 41s. a firkin. He paid him ,30Z. on account, consented to consider an old account of 201. due to him from Cooper as paid, and gave Cooper a bill for lOOZ., in all paying him 150Z. on account. Then after his bankruptcy the defendant by Cooper's desire stopped the goods in the hands of a carrier. Some months afterwards. Cooper tendered the assignees of the bankrupt the bill, which in the mean time was dishonoured, and the 30Z. The action was trover by the assignees. They contended that [*327] stoppage in transitu was a rescission of the *contract, and therefore could not be exercised when there had been a part pay- ment, at least without an offer to return the price actually paid; and that in this case the tender came too late, and did not include the debt for 201. for which Cooper had given credit. The Judges at first doubted, and had ordered a second argument on this point, but before the argument they said it was unnecessary. " They were clearly of opinion that the circumstance of the vendee " having partially paid for the goods, does not defeat the vendor's " right to stop them in transitu, the vendee becoming bankrupt" Neither does it make any difference, though the goods were sold on credit which had not expired at the time of the stoppage, so that the price was not then due. In two cases which were very much litigated, Inglis v. Usherwood (h), in 1801, and Bohthngk v. Inglis (i), in 1803, the litigation arose out of a transaction in which a cargo of goods were shipped on board a vessel chartered by the bankrupt, and according to the terms of the contract " the goods were to be drawn for a month after shipment." A stoppage in transitu made before the lapse of the month was held good ; and it seems to have been not thought worth while even to raise the point that the time had not come when the vendors were entitled to demand payment, if the purchaser had remained solvent. But when the vendor has received bills of exchange or other securities for the whole price, the case may seem not so clear. He is not quite a paid vendor, for the bills may prove worthless; he is not quite an unpaid vendor, for the bills may prove good. It seems, however, very well settled, that where the vendor is no otherwise paid than by having received the insolvent puschaser's acceptances, he may stop the goods; though he may have negotiated the bills, ((jr) Hodf/mn v. Loy, 7 T. E. 440. (7t) Inr/hs v. Vsherwood, 1 East. .'515. (i) Bohthngk v. Inglis, 3 East 3sl . (2108) Ch. /.] STOPPAGE IN TRANSITU. 237 and they are still outstanding and not yet at maturity. And this is very reasonable, for it is quite certain that the insolvent will *dishonour his acceptances, and all but certain that the [*328] holders will fall back on the drawer for payment. , [The effect of taking a bill or note from the debtor depends on the intention of the parties. Prima facie, it merely amounts to an ■ agreement to give the debtor credit for the time it has to run, and the effect is to suspend both the vendor's lien and his right to sue for the price of the goods until the bill has arrived at maturity and been dishonoured, or the vendee has become insolvent; but it may have been the intention of the parties that the giving of the bill should be an absolute payment, in which case the vendor runs the risk of its being paid, and he is in the same position as if he had been paid in cash. The vendee can no longer be sued for the price of the goods, although he remains liable on the bill (A;).] In the case of Feise v. Wray (l), in 1802, already cited, Fritz- ing the vendor, had drawn bills on Browne, the purchaser, for the full price. Browne accepted the bills, and Fritzing negotiated them. Browne failed, and the goods were stopped on the 11th of September. The bills did not arrive at maturity until the 7th of October, they were then dishonoured; but Fritzing himself had by that time became insolvent, and the bills were not taken up ; yet the stoppage was held good, the King's Bench saying that the right of the holder of the bills to prove against the estate of Browne could not have more effect than part payment. In Patten v. Thompson (in), in 1816, the plaintiffs had drawn on the purchaser for the price, and held his acceptances *which [*329] were not due at the time they stopped the goods, yet the stoppage was held good. [In the case of Wood v. Jones (n), in 1825, Brightman, of New- castle, had consigned to the plaintiffs, Quebec merchants, goods to be sold for his account. The plaintiffs then shipped to Brightman three cargoes of timber, but not specifically in return for Bright- man's consignment. The plaintiffs drew on Brightman to cover the third cargo. Two of the cargoes arrived: Brightman dishonoured (it) Owenson v. Morse, 7 T. E. 66. On the question of what amounts to payment, see Bolton v. BicTmrd, in 1795, 6 T. R. 139 ; Recwl v. Hutchimon, in 1813, 3 Camp. 352 ; Swinyard v. Bowes, in 1816, 5 M. & S. 62 ; Van Wart v. WooUey, in 1824, 3 B. & C. 439 ; Hawse v. Crowe, in 1826, 1 Ey. & M. 414 ; BoUnson v. Bead, in 1829, 9 B. & C. 449 ; Bolson V. Oliver, in 1847, 10 Q. B. 704 ; 16 L. J. Q. B. 437. And where the vendor elects to take some form of payment other than cash, Everett v. Collins, in 1810, 2 Camp. 515 ; Brovm t. Kewley, in 1801, 2 B. & P. 518 ; Smith v. lerrand, in 1827, 7 B. & C. 19 ; Marsh v. Pedder, in 1815, 4 Camp. 257 ; Camidgey. Allenhy, in 1827 6 B & C. 381 ; Alderson v. Langdale, in 1832, 3 B. & Ad. 660 ; Atkinson V. Hawdon, in 1835, 2 Ad. & El. 628 ; Sibree and Tripp, 15 M. & W. 23 ; God- dard v. CBHen, 9 Q. B. D. 37. (0 Feise v. Wray, 3 East. 93. (m) Patten y. Thompson, 5 M. & S. 350. (n) Wood V. Jones, 7 Dow. & Ey. 126. (2109) 238 STOPPAGE IN TRANSITU. [ Pt. III. the bill, and the plaintiff's agent believing that Brightman's con- signment would not cover the value of the timber stopped the third cargo on board the defendant's ship. It was argued for the dej fendant that a stoppage in transitu cannot be made on a mere ap- prehension that the goods in the hands of the consignor might not ultimately be sufi&cient to cover the consignment, and that to justify a stoppage in transitu, the agent must be in a position to show that upon a balance of the accounts at the time the stoppage is made his principals had a specific liquidated demand against the con- signee. The Court held the stoppage to be good, Abbott, C. J., saying, " that if the cargo in question had been intended as a re- " turn for the goods consigned by Brightman there would have been " a great deal of weight in the argument."] In Edwards v. Brewer (o), in 1837, the Exchequer would not listen to an attempt to argue that the vendor who held the pur- chaser's acceptance not yet at maturity, cuuld not stop the goods without tendering the acceptance. Against these cases is to be set the Nisi Prius decision of Lord Ellenborough in Davis v. Reynolds (p), in 1815, which certainly seems inconsistent with them. There Peacock and Company, the vendors, held the purchaser's acceptance for the goods: the pur- chaser sold the goods to Davis, the plaintiff, whilst yet at sea, and in- dorsed to him the bill of lading; but it was not stamped, and [*330] therefore could not be proved: then *Peacock and Company stopped the goods, and got them from the defendant, a wharfinger, un- der an indemnity. The plaintiffs recovered in trover, and Lord Ellen- borough is reported to have said, that " till the time of credit has es- " pired, and the bill was either paid or dishonored. Peacock was in the "situation of a paid vendor." The only possible distinction be- tween this case and those previously cited, is that there had been an assignment for value in this case, but unaccompanied by taking possession or by proof of the indorsement of the bill of lading. In Dixon V. Yafes (q), a countermand of authority to receive the goods under circumstances precisely similar, but made after the bill accepted by the intermediate purchaser was at maturity and dis- honoured, was held good. That case is an authority, that the tak- ing of the insolvent's acceptances by the vendor, has no effect on the vendor's right as against a sub-purchaser, (who has not taken an indorsement of a bill of lading), after the acceptances are dis- honoured. And Feise v. Wray (r) is an authority that the taking of the purchaser's acceptances does not suspend the vendor's right to stop the goods, as against the original purchaser. Davis y. Rey- nolds (s) is a decision that it does suspend them as against a sub (o) E:Jwnr(l.-< V. Breicrr, 2 M. & W. 275. (p) Davis V. Rti/notch. 4 Camp. 267. (q) Di.rnn v. Ynies, 5 B. &. Ad. :!13, post, p. 342. (r) Feise v. Wrny, Z East, 93, ante, p.321. (s) Davis V. Reynolds, 1 Stark. 115. (2110) Ch. /.] STOPPAGE IN TRANSITU. 23& purchaser. The reason of this distinction is not obvious: the pro- bability, is, that Lord Ellenborough, though as a Judge he could not read the bill of lading for want of a stamp, was not able to pre- vent his judgment being warped by the natural feelings of repug- nance to the effect on evidence of the stamp laws, (certainly, for long the most clumsy and unjust provisions in English law;) and that he was astute to defeat the stamp laws, an error not without precedent amongst Judges. The case, however, has never been ex- pressly overruled. When the vendor has received payment from the holder of the bill, and is not liable to take it up; he is paid in every sense of the word. Thus in Bunney v. Poyntz (t), in 1834, *where the [*331] agent of the vendor took in payment a promissory note, payable to ^his (the agent's) own order, negotiated it and embez- zled the money, and the note was afterwards dishonoured, the King's Bench held that the vendor was paid. His agent had re- ceived the money, and the fact that he had misapplied it was wholly immaterial as between the parties to the action, and as the vendor could not be made to refund, he must be considered as paid. The fact that he had really received no benefit from the note, gave his claim a colour of justice, but on examination it was quite imma- terial. In Vertue v. Jewell (u), in 1810, there was a running account between two parties, in which were included bills of exchange not yet at maturity ; and the party who on the balance of the account was the debtor, consigned goods on* account of and to meet this balance. Before the goods arrived the consignee became bankrupt, and if the bills for which he had credit were struck out of the ac- count, the balance would be the other way. The consignor stopped the goods, and the action was trover by the plaintiff, who repre- sented the consignee, against the defendant, who represented the consignor. Lord Ellenborough ruled, that " the consignor being at " the time of the consignment indebted on the balance of accounts, " divested him of all control over the barley from the moment of " shipment. The non-payment of the bills of exchange cannot be " considered." A.nd this ruling was approved of by the King's Bench. Perhaps, however, this was rather a case of pledge than sale, as it seems difficult to suppose that the parties did not from the first intend the surplus, if any, to be accounted for. If so, the con- signees had clearly a special property in the consignment, and the insolvency and probable dishonour of the bills could not divest that special property, though it probably would very materally affect its ultimate value. In Patten v. Thompson {x), Lord Ellenborough in i!) Bunney v. Poyntz, 4 B. & Ad. 568. Vertue v. Jewell, 4 Camp. 31. Patten V. Thompson, 5M. &S. 350. (2111) (x) 240 STOPPAGE IN TRANSITU. [Pt. III. delivering judgment said, " I have looked into the case of Vertue [332] " V. *Jewell (y), and find that there the bill of lading was •' was indorsed and sent by the consignor, on account of a balance " due from him, including several acceptances then running, so " that it was in the nature of a pledge to cover those acceptances." The case, therefore, is perhaps rather an authority for the first pro- position, " that the right of stoppage in transitu is peculiar to a vendor." [Mr. Benjamin says of this case, in his work on Sales (z), that if it is correctly reported, it is very questionable law.] There is no reported case in which the vendor had taken, on ac- count of the consignment, the acceptance of a third person (a) ; but it would seem on principle in such cases, that until the bill is dishonoured he must be considered as paid, as the insolvency of the purchaser does not involve in it any necessity of the badness of the bill ; but when the bill is dishonoured, then as the vendor might sue the purchaser for the price if he remained solvent, it would seem that he must be considered as an unpaid vendor for all pur- poses. [In Valpy v. Oakeley (b), in 1851, the defendant contracted to deliver 500 tons of iron at £4 a ton to Boydell and Eoper He de- livered 315, or 185 short. Boydell and Roper, before their bank- ruptcy, accepted three bills for the price of the 500 tons. One was paid at maturity, and at the time of the bankruptcy the defendant held another, and a banking firm the third, for value. The plain- tiffs, who were the assignees of Boydell and Roper, brought this action to recover the full valiib of the iron not delivered. It was held they could not do so. Lord Campbell, C. J., said, the case rested upon the principle of stoppage in transitu, a right which may be exercised where bills have been given and are dishonoured. In Griffiths v. Perry ((■), in 1859, a case similar to the last [*383j *one, the defendant had agreed to deliver to the plaintiff 400 parcels of iron, and took the plaintiff's acceptance for the price. The defendant indorsed the bill to his bankers, who credited him with the amount. He delivered 100 parcels and then became bank- rupt. Subsequently the plaintiff became bankrupt and his accept- ance was dishonoured. The bankers claimed to be creditors of the plaintiff in respect of the acceptance. The plaintiff brought this suit for the price of the 300 parcels, but it was held that he could only recover nominal damages ] (y) J'eriur v. Jewell, 4 Camp. 31. (z) Benjamin on Sales, 2nd ed., 1R7.3, p. 694. (a) But see Eead v. Hutchinson, in 1813, 3 Camp. 352 ; Stviiiynrrl v. Bowes, in 1816, 5 M. & S. 62 ; Eohitisou v. Bead, in 1829, 9 B. & C. 449 ; ' Rohson v. Oliver, in 1847, 10 Q. B. 704 ; 16 L. J. (^ B. 437; Bchhaw v. Bush, in 1851, 11 C. B. 191; 22L. J. C. P. 24. (6) Valpy v. Oakeley, 16 Q. B. 941 ; 20 L. J. Q. B, 380. (c) Griffiths V. Perry, 1 E & E. 680; 28 L. J. Q. B. 204. See also Ex parte Chalmers, 8 Ch. Ap. 289; 42 L. J. Ch. 37, post, p. 474, and cases following. (2112) Ch. /.] STOPPAGE IN TRANSITU. 241 The right of stoppage in transitu must be exercised while the goods are in transitu, that is, after they have left the actual or con- structive possession of the vendor, and before they have come to the actual or constructive possession of the purchaser, or those ivJio stand in his place. Before the vendor has parted with the actual or constructive pos- session of the goods, the transitus has not commenced, and no stoppage is required to give the unpaid vendor his rights : he re- tains them in respect of the possession with which he has pot parted. And after the purchaser, or those who stand in his place have acquired the possession of the goods, the stoppage comes too late to give the vendor any of his rights, for the possession has rendered the purchaser's rights of property and possession inde- feasible and absolute. It is only whilst the goods are in an inter- mediate state — out of the possession of the vendor, and not yet in that of the purchaser, that the right can be exercised. And here it may be as well to state a little more accurately what is meant by the word "possession " in this place, for it is used in a narrower and more restricted sense than in the general technical legal import of the word, and yet in a more extended sense than its popular meaning. For in general, in technical language, one is said to be possessed of goods when he has the property, and an immediate right to have the goods dealt with as he will ; yet, a purchaser' on credit of a *specific chattel, who has the pro- [334] perty, and whilst solvent, the right to deal with the goods as he will though they remain in the vendor's hands, and who, therefore, in general legal language, may be called possessed of them, has never had such possession as will determine the vendor's rights in case the purchaser becomes insolvent. And yet, circumstances far short of an actual delivery into the hands of the purchaser, amount to such a constructive possession as is sufficiant to render the pur- chaser's property indefeasible. Before the bargain and sale is complete tlie property in the goods remains in the vendor, and the actual custody of the goods is either in the vendor himself, or in someone who holds them as his bailee; and though by the completion of the bargain and sale, the property in the goods is at once transferred to the purchaser, so as to give him the rights and liabilities attending the proprietor ; and though the right of possession may also be transferred, so as to give the purchaser the rights and remedies belonging to the possessor of the goods, yet, the privity of contract vrith the vendor's bailee is not transferred with the property and right of possession. The person who has the actual custody of the goods may be liable as a u-rong- doer, if he in any way interferes with the purchaser's right of pos- session, but he has no contract with the purchaser; he continues to hold the goods under his old contract with the vendor until some- thing is done to alter the capacity in which he holds them. Till 16 COK-. OP SALE. (3113) 242 STOPPAGE IN TRANSITU. [ Pt. III. then, they are in cases of this nature, said to remain in the posses- sion of the vendor, and even if the purchaser before his insolvency had the immediate right of possession, the unpaid vendor's right remains unaltered. But when either the actual custody of the goods has been shifted into the hands of one who from the first held them as the bailee of the purchaser, or the person holding them has changed the charac- ter in which he holds them so as to become the bailee of the pur- chaser, the goods are said to be in the possession of the purchaser. In the first case they are often said to be in his actual possession, in the second in his constructive possession. Neither phrase is [*335] ([uite accurate, and *there is no legal distinction between the two, in both cases alike the vendor's rights are gone. And the same law is true, when the party who thus takes possession is one who has acquired the purchaser's rights, either by bargain or ope- ration of law. It is whilst the goods are are in an inter-mediate state, and in the custody of one who holds them, neither by virtue of a contract to keep them made with the vendor, nor by a similar contract with the purchaser, but as an agent undertaking to forward them from one to the other, that the goods are in transitu. The important question therefore, in every case is, in what capa- city are the goods held by him who has the actual custody ? In many cases this is quite clear, but in others it is an exceedingly difficult question to answer, more especially where the goods remain in the same custody, and the question is, whether the character of the holder has been changed, and at what time it was changed. It becomes then a question depending upon what was done, and what was the intention with which it was done ; and as the acts are often imperfectly proved, and in themselves equivocal, and the intention often not clearly known to the parties themselves, it is not surpris- ing that there should be much litigation upon the point; the gen- eral principles, however, seem to be those above stated. Before collecting the cases on the commencement and determin- ation of the transitus (d), it will be as well to collect those cases which decide when the vendor's possession ends, and the' buyer's possession begins when there is no transitus (e). The principles are precisely the same, indeed, so much so, that cases of this class are frequently, though inaccurately, called cases of stoppage in transitu. Where the goods are in the hands of the vendor himself or his immediate servants, he holds them as vendor and retains his rights, unless it can be shown that he has agreed to hold them in a new character. Where this can be shown, he has lost his rights, though [*3y6] he may never have parted with *the actual possession. Where the purchaser has transferred his rights to a third party, it [tV] p..«f, p. ir.i. ' ' ~ ~ (c) See also ante, p. 2(). (2114) Ch. 7.] STOPPAGE IN TRANSITU. 243 it very likely that the original vendor should agree with him to continue to hold the goods as his warehouseman, without retaining any interest in the goods, which have by the subsale, become the property of one who is not the vendor's debtor; and this is particu larly likely, when the credit given by the vendor to the first vendee, is longer than that given to the subpurchaser by the first vendee. Accordingly, when there is a subpurchaser, an agreement on the part of the vendor to consider himself the subpurchaser's bailee, may be proved by comparatively slight evidence. • In Stoveld v. Hughes (/), in 1811, the facts were, that Hughes had sold Dixon and Co. a lot of timber lying on his wharf. They marked the timber in his presence with their mark, and accepted a bill at three months for the price. Whilst the bill was still running, Dixon sold the timber to Stoveld, whose agent told Hughes of it. Hughes said " very well," showed the agent the timber, and as- sisted to change the marks on it. Stoveld paid Dixon; then Dixon failed before the bill became due, and Hughes claimed to retain the goods against Stoveld, until he was paid the price due from the first purchaser; but the King's Bench held, that he could not retain them. Lord Ellenborough said, " "When the sale by Dixon to the "plaintiff was made known to the defendant Hughes, he assented '■ to it by saying, ' very well,' and to the marking of the timber by " the plaintifl;'s agent, which took place at the same time. If that " be not an executed delivery, I know not what is. * * * If, "indeed, the marking of the timber by the plaintiff's agent had not " been done with the knowledge and consent of the defendants, the " vendors, it may be admitted, for this pm-pose, that they would "not have been .bound further than they were already, by what had "taken place as between them and the original vendees." But between the original vendor and the first purchaser *an [*337] agreement to hold as the purchaser's bailee is not probable, for there seems little to induce the vendor to consent to abandon his lien; and the more recent decisions are, that between them, an agreement to altar the character of the vendor's possession must be clearly proved. In some of the older cases, language is reported that almost looks as if the Judges were stating as a proposition of law that an assent on the part of the vendor to any act of owner- ship whatsoever, either by the purchaser or his sub-purchaser, piit an end to the vendor's rights, whilst in the more recent cases, there are some dicta looking as if it was thought that the sanle agree- ment, whi6h if made with a subpurchaser, would determine the vendor's rights by altering the character of his possession, would not have that effect if made with the original purchaser, but it seems, that the true distinction is merely as to the quantum of proof required. If the vendor consents to acts of partial owner- ship, on the part of the sub-purchaser, with whom he has no con- (/) Stoveld V. Hughes, 14 East, 308. (2115) 244 STOPPAGE m TRANSITU. [Pt. III. tract, it affords a fair presumption of an agreement with him to hold the goods as a bailee. If he consents to similar acts by the purchaser with whom he already has a contract, the fair presurop- tion is, that the acts are assented to in consequence of the original contract, which remain unchanged. But in either case the vendor's rights cease when he has agreed to change the character of his pos- sesion, and not before. [In Oiuenson v. Morse (g), in 1796, the plaintiff went into the de- fendant's shop and agreed to purchase some articles of silver plate, and paid for them in bank-notes. The defendant, in order to have the plaintifi's arms engraved on the goods, employed an engraver and paid him, instructing him to return the goods when done to him, the defendant. The bank failed before the notes were pre- sented, and it was held that there had been no delivery to the plain- tiff. And in Boulter v. Arnott (h), in 1823, where the defendant purchased some cigars in the plaintiff's shop and had them [' 3y8j *packed in his, the defendant's, own boxes; the transaction was for ready money, and the cigars not having been paid for, it was held that there had been no delivery.] Several of the cases decided upon the Statute of Frauds, turn upon this distinction, and as they have already been cited in the earlier part of this work, it is unnecessary to cite them here, at length. In Hurry v. Mangles (i), at Nisi Prius, in 1811, before Lord Ellenborough, the facts were, that the defendant Mangles had sold a quantity of oil to Smith, who accepted a bill at six months for the price. Mangles received warehouse rent from Smith. Be- fore the bill arrived at maturity. Smith became bankrupt, and then the plaintiff Hurry, who in the interim had bought the oil from Smith, and paid him for it, applied for it and was refused. This seems to have been the first notice that Mangles had of the subsale, and as there could, therefore, be no attornment to Hurry, or estop- pel, it seems that Hurry stood precisely in the position which Smith's assignees would have done, see Dixon v. Yates (k), and that the subsale was immaterial. The action was in trover. Lord Ellenborough said, " The acceptance of warehouse rent was a com- " plete transfer of the goods to the purchaser. If I pay for a part " of a warehouse, so much of it is mine. This is an executed de- " livery by the seller to the buyer. * * * It would be overturning " all principles, to allow a man to say, after accepting warehouse " rent, the goods are still in my possession, and I will detain them " till I am paid. The transitus was at an end. The goods were " transferred to the person who paid the rent, as much as if they (g) Owrnmn\. Morsr, 7 T. E. 64. (/i) rUmllii- V. Arwil, 1 Or. & Mee. 3:',:-!. (i) l[y.n-!i Y. Urnnijlrx, 1 Camp. 4.52. (k) Dixon V. Y/.ik-s, r, ]'.. &. A. '.Un, post, p. 342. (2116) Ch. /.] STOPPAGE IN TRANSITU. 245 " had been removed to his own warehouse, and then deposited under " lock and key." In Anderson y. Scott (I), and Hodgson v. Le Bret (m), Lord El- lenborough acted on the same principle. In Elmore v. *Stone [*339] (n) and Carter y. Touissaint (o), the Common Pleas and King's Bench came to opposite conclusions as to the inference to be drawn from nearly the same facts. In those cases the question was, whether there was an actual receipt under the Statute of Frauds. In Miles v. Gorton (p), in 1834, Gorton had sold hops lying in Gorton's warehouse, to Faux, and rendered him an invoice stating the goods to be "at rent." Faux subsold part of the hops, which were delivered to the sub-purchasers, and then became bankrupt, not having paid any part of the price. His assignees brought trover against Gorton, for not giving up the portion of the goods which remained in his hands. They relied on Hurry v. Mangles (q), as showing there was an executed delivery. The Court of Exchequer decided in favour of the defendant. Bayley, B., said, "I am of " opinion that the charge of warehouse rent makes no difference, " and I should have thought so if the warehouse rent had been ac- "tually paid. In Hurry y. Mangles (g), the circumstances were "widely different; there the rights of a third party had intervened. " He had bought and paid for the goods, and then paid warehouse "rent to the vendors; under these circumstances, it was rightly " held, that there was a delivery to the sub-vendee on the part of the " vendors, who after such receipt of rent from the sub-vendee, must " clearly be considered as holding the goods as his agents. [Here, " in point of fact, the warehouse rent was not actually paid, but " only charged, and such charge amounted to a notification by the " seller to the purchaser that he was not to have the goods, not only " until the payment of the price, but of the rent. In this case, " therefore, the vendor had originally a right to hold both for the "price and the rent; and I think that the effect is not to make, as " has been argued, the warehouse of the vendor the warehouse of " the vendee, but to make it a part of the contract between the "parties that the goods are *not to be delivered until not [*340] " only the price but the rent is paid."] It is to be observed, that Bayley, B., was under a mistake as to the facts in Hurry y. Mangles (r), (at least those parts of his judg ment marked in italics, are contradicted by the report of that case in 1 Camp. 452) but the distinction between what he supposes to be Hurry v. Mangles (r), and Miles v. Gorton (s), is strong and (l) Anderson v. Scott, 1 Camp. 235, n. (m) Hodgson v. Le Bret, 1 Camp. 233. in) Elmore v. Stone, 1 Taunt. 458, ante, p. 28. (o) Carter v. Touissaint, 5 B. & A. 855, ante, p. 30. Ip) Miles V Gorton, 2 C. & M. 504. (q) Hurry v. Mangles,! Camp. 452. ir] Hurry v. Mangles, 1 Camp. 4.52. (s) Miles V. Gorton, 2 C. & M. 504. (2117) 246 STOPPAGE IN TRANSITU. [Ft. III. clear, if the receipt of warehouse rent is material only as evidence of the vendor's assent to change the capacity in which he holds pos- session of the goods. In Toicnley v. Crump (t), in 1835, Crump the vendor of wine, who was also a warehouseman, gave the purchaser Wright, a note in these terms: — " Mr. B. Wright. We hold to your order 39 pipes and 1 hhd. red wine, marked J. C, J. M., No. 41 a. 67.-69 a. 80 pipes. No. 105 hhd. sent free to 29th November next. J. Crump and Co." The wine remained in Crump's warehouse. Wright accepted a bill for the price, and then became bankrupt. His assignees brought an action of trover against Crump, for the wine specified in the note. Lord Abinger, at Nisi Prius, seems to have thought the note was like a delivery order or a bill of lading, giving the vendee authority to get the possession, but not equivalent to giving it to him; he reserved the point, and directed a nonsuit, and the Queen's Bench refused to grant the plaintiffs a rule nisi. The Court observed, that "no case had been cited where "the " question arose between the original vendor and vendee," so they seem to have acted on the same principle as in the case of Miles v. Gorton {u). [In Grice v. Richardson (x), in the Privy Council in 1877, the ap- pellants were both vendors and warehousemen. The respondents [*341] were the trustees of Webster and Co., the *insolvent pur- chasers. The appellants sold tea lying in their warehouse to Web- ster and Co., and gave them delivery warrants or certificates which stated that the tea was deliverable to Webster and Co. They de- livered a portion of the tea, and charged warehouse rent for the whole of it, and they appear to have made a transfer of it into Webster and Co.'s name in the warehouse book. Webster and Co. became insolvent without having paid for the tea. The Court held that the appellants were entitled to retain the tea. Although this case seems quite consistent with the authorities, Sir Barnes Peacock, in delivering the judgment of the Court, seems to have had present in his mind a distinction as a matter of law, ' between actual and constructive possession, which it is submitted does not exist.] Very commonly goods which are the subject of commerce, are not in the custody of the owner, but of a third party, as a wharfinger, warehouseman, or the like. VA'hen such is the case, if the property be transferred by a bargain and sale, the vendor still retains his rights, until the warehouseman holds the goods for the purchaspr; and during the interval between the time at which the purchaser has acquired authority to call upon the warehouseman to hold the goods for him, and the time when the warehouseman does so bold, it) Townley v. Crump, 1 A. & E. 58. (u) Blitrs V. Gorton, 2 C. & M. .504, ante, p. 339. (x) Grice v. Richardson. 3 Ap. Ca. 319; 47 L. J. P. C. 48. (2118) Ch. /.] STOPPAfiE IN TKANSITU. 247 the vendor's rights are analogous to those which he has whilst the goods are in transitu, and it is common to call the goods in . transitu in such cases. But it is not accurate, the goods are all the time in the possession of the vendor, and the question is, whether he had a right to countermand an authority to change that posses- sion, and whether he has exercised such a right whilst he had it. As a general rule of English law, an authority, at any time be- fore execution, may be revoked by him who gave it; but where the authority is bought for a consideration and coupled with an inter est (?/), it is both transferable and irrevocable. If, therefore, the purchaser be in a posision to call upon the vendor to deliver him goods, and the vendor *instead thereof gives him an author- [*342] ity to obtain possession of goods in the custody of a third party, that authority may be transferred by the purchaser; and so long as there continues to be a consideration to the vendor for granting the authority, it cannot be revoked by the vendor. But if such a change of circumstances takes place that the vendor would no longer be bound to deliver possession of the goods, then the consideration for giving the authority has failed, and the vendor may, if the authority has not been executed, revoke it just as he might then refuse to give it. It does not seem material whether the authority to take possession be merely implied from the contract of sale vesting the right of possession in the purchaser, or be given expressly, and it probably does not affect this right whether the authority be in writing or not, though by recent statutes the effect of a written delivery order is considerably enlarged; and it is not material that the authority has been transferred to a third party, who has honO, fide paid the inter- mediate vendee, if the first vendor has done nothing to induce him so to do. The only questions are, whether, at the time the first ven- dor revoked the authority, he was in such a position that he might refuse to deliver, and whether, before the revocation, the authority had been executed; for if any part of the goods have been put in the actual or constructive possession of the purchaser or his assigns, the vendor's right as to that part is gone. These points seem all to be deducible from Dixon v. Yates {z), in 1833, in which the whole law was a good deal discussed. There, Dixon and Co. were owners of a quantity of rum lying in Yates' warehouse. On the 13th August they sold 46 puncheons, specified by marks and numbers, to Collard; Collard on the same day ac- cepted two bills payable at 3 and 4 months for the price. Shortly after the sale, Dixon and Co. gave Collard a delivery order for 2 puncheons, which were accordingly taken away by him; they re- cused to give him a delivery order for the remaining *44, [*343] which were the subject of this action. On the 28th October Col- lard sold 26 puncheons of the 44 remaining in Yates' warehouse, to Kaye, who paid him for them, but took no possession. On the s Oroyton v. Lithebye, 2 "Will. Saund. 365. Dixon V. Yates, 5 B. & Ad. 313. (2119) 248 STOPPAGE IN TRANSITU. [Ft. III. 7th September (a), CoUard sold the remaining 18 puncheons to Bond, and Proctor, who paid for them. Yates, the warehouseman, without any further authority from Dixon and Co., allowed Bond and Proctor to take three of the 18 puncheons away; the other 15 remained as before. On the 16th November Collard was insolvent, and his bill dishonoured, and on the 18th November Dixon' and Co. ordered Yates not to deliver any of the 44 puncheons of the rum, but this order came after Bond and Proctor had, as has been already said, taken away three puncheons. [On the 19 th November Dixon and Co. demanded the rum from Yates, who refused to deliver it; and on the same day Kaye, Bond, and Proctor presented to Dixon and Co., for their acceptance, delivery orders for the 26 and \i> puncheons respectively, which Dixon and Co. refused to accept] The whole question came before the Court of King's Bench on an interpleader between the four parties; Dixon and Co. the original vendors, Yates the warehouseman, and Kaye, and Bond and Proctor, the sub-purchasers. The Court of King's Bench, after a long and learned argument, ordered the 41 puncheons then remaining in Yates' warehouse to be given to Dixon and Co., and the costs of the litigation concerning them to be paid by Kaye, and Bond and Proc- tor, and discharged Yates, and Bond and Proctor from the claim of Dixon and Co. for the value of the three puncheons delivFred to Bond and Proctor, and ordered Dixon and Co. to pay the costs of the litigation concerning them. This was, therefore, a direct de- cision that the three puncheons were rightfully delivered to Bond and Proctor, though no express authority to deliver possession was given by Dixon and Co. (but rather an attempt to refuse even that authority implied by the sale on credit), and that the countermand as to these three puncheons was too late ; but that it was a proper [*844] *oountermand as regarded the other 41 puncheons, not withstanding that the sub-purchasers had bond fide paid their vendor, the first purchaser, Collard. The practical dispute in such cases most commonly is, as to whether the authority to take possession was at the time of the countermand already executed or not; for if, before notice of countermand is given to the bailee, the authority is so far acted upon as to put the purchaser in actual or constructive possession of the goods, it is no longer in the vendor's power to countermand the authority. In the case of Dixon v. Yates (t>),the sub-purchas- ers had marked, coopered, and guaged the puncheons of rum, and had, as before said, taken complete possession of a part. It was urged that these acts amounted to a taking constructive possession of the whole, but the Court of King's Bench decided that those acts were in themselves equivocal, and were only evidence of a tak ing of possession; acts which might amount to it if done with that intention. " The taking of samples and coopering," said Lord («) ?No\ ember. (*) l)il-(iii ! V. Vatcit, 5B. & Ad. 1^13. ( •2120) Ch. /.] STOPPAGE IN TRANSITU. 249 Denman, "are circumstances from which a jury might infer an act- " ual delivery of the whole. * * * If I had been on the jury "in this case, I should have found there was no such delivery." And the other Judges all in more or less express language said, that the question of whether those acts amounted to taking pos- session was one of fact, and not of law. There is a diiference to be borne in mind between an absolute authority to take possession, and one that is conditional. Where the authority is absolute, nothing further is requisite to give the purchaser possession of the goOds than an assent on the part of the bailee to hold them^ on his account, and such an assent need not be evidenced by any formal act. It is indisputably shown by a formal transfer in the warehouseman's books, but it is as effectual if expressed by word of mouth, or perhaps even if implied by silence under cir- cumstances which make silence indicative of assent. *In Harman v. Anderson (c), in 1809, the facts were, that |]*345] Dudley bought a quantity of butter then lying in the defendant's warehouses. The sellers gave him a delivery order, which he lodged with the warehousemen. He became bankrupt immediately after- wards, and the sellers, who were unpaid, countermanded the author- ity to give possession, and the warehousemen, in obedience to this countermand, detained the goods ; for this detention the assignees of Dudley brought trover against the warehousemen. At Nisi Prius it was taken as proved that the goods were transferred in the ware- house books before the notice of countermand, and Lord Ellen- borough said, " The payment of rent in these cases is a circum- " stance to show on whose account the goods are held, but it is im- " material here, the transfer in the books being of itself decisive. " I am clearly of opinion that the assignees are entitled to recover." Afterwards, in banc, the defendants produced affidavits to show that one parcel of the butter was not transferred in the books, and that nothing had ever been done by the warehousemen to indicate assent to the transfer of that parcel; but the Court said it made no difference. Lord Bllenborough said, "After the note was delivered " to the wharfingers, they were bound to hold' the goods on account " of the purchaser. The delivery note was sufficient without any "transfer in their books." A precisely similar decision was come to by the Common Pleas in Lucas v. DoiTien (d), in 1817, but the Court, besides giving the same reasons for their decision, went into a discussion concerning the effect of the delivery order before notice to the warehousemffti, a question which did not arise in the case. "When the bailee has notice of those circumstances under which he is, in the language of Lord EUenborough, in Harman v. Ander- son (c), " bound to hold the goods for the *purchaser," and [*346] is required to hold the goods (accordingly, it is pretty clear that (e) Harman v. Anderson, 2 Camp. 243. (d) Lucas V. Dorrien, 7 Taunt. 278. (2121) 250 STOPPAGE IN TRANSITU. [Pt. III. mere silence is evidence of acquiescence, and it may be a question whether even an express refusal, if wrongf al, would have any effect in preserving the vendor's rights. Probably it would, and the question is of the less practical importance as such a refusal would make the bailee liable. In Lackington v. Atherton (e), in 1844, where Atherton, the ven- dor, had given a delivery order in his own name to the buyer, which order, when presented to them, the warehousemen refused to ac- cept on the ground that the goods stood in the name of a for- mer owner, and that they had never been transferred into the name of Atherton [the buyer became bankrupt, and Atherton, by means of a delivery order from the former owner, obtained possession], the Common Pleas in an action between Atherton and the assignees of the purchaser, decided that this refusal to deliver possession to the buyer, who really was then entitled to the posses- sion, prevented Atherton's -rights as unpaid vendor from being divested, and that a subsequent countermand on the buyer's in- solvency was valid; but in this case the refusal of the bailee was so far justified by circumstances, that it would not have been evidence of a conversion by him. His refusal to assent to the transfer of possession without orders from the person who originally deposited the goods with him was not wrongful, though his mere assent to the transfer would have been sufficient to alter the possession. [In Tanner v. Scovell (f), in 1845, Boutcher and Co. sold to M'Langhlin some glue pieces, and after the arrival of the goods at the defendant's wharf, gave him the following order, addressed to the superintendent of the wharf: " Please weigh and deliver to Mr. M'Laughlin 48 bales of glue pieces." On receipt of this, the de- fendants weighed the bales and communicated the weight to Boutcher and Co., who thereupon sent to M'Laughlin an invoice stating the weight and price. £*347] *Subsequently the defendants delivered five of the bales to a purchaser from M'Laughin, on his order. At a later date, in consequence of M'Laughin's failure to pay Boutcher and Co., they ordered the defendants to deliver no more glue pieces. No trans- fer of the pieces had been made in the defendant's books from Boutcher and Co. to M'Laughlin, nor was any rent charged to him. The Court upheld a verdict for the defendant. In Pearson v. Daivson (g), in 1858, Askew purchased of the de- fendant a portion of a cargo of sugar which had been consigned to Mm per ' Orontes,' giving his acceptances in payment. Askew sold 20 hogsheads of the sugar to the plaintiffs, who gave their bill in payment, and gave them the following delivery order addressed to the defendant: " Please deliver to Messrs. Pearson and Hampton (c) Lackington v. Atherton, 8 Scott, N. S. :jK; 7 M. &. G. 360; 13 L. J. C. P. 140. (/) Tanner v. Scovell, 14 M. & W. 2S; 14 L. J. Ex. 321. (g) Pearson v. Dawsmi, E. B. & E. 4 I«; 27 L. J. Q. B. 248. (21-2:>) Gh. /.] STOPPAGE IN TRANSITU. 251 or order 20 hogsheads of sugar ex ' Orontes.' James Askew." This order was handed to the defendant, who entered the plaintiff's name opposite 20 hogsheads in a book kept by him in which he entered sales and names of purchasers. The sugar was lying in the defendant's name at a bonded warehouse of which the custom house officer had one key and the defendant's warehouse keeper the other. The defendant subsequently delivered 8 of the hogsheads to the plaintiffs on their delivery orders. Askew became insolvent before his bills were paid, and the defendant refused delivery of the remainder. It was held by Lord Campbell, C.J., Coleridge, Erie, and Crompton, J. J., that the plaintiffs were entitled to re- cover the value of the 12 undelivered hogsheads.] But when the authority to give possession is conditional, the case is somewhat different. The bailee is not authorized to give posses- sion, nor the purchaser to take it until the conditions are fulfilled. It is not therefore to be presumed, or inferred, that the bailee con- sents to hold the goods for the purchaser before these conditions are fulfilled, and though an express unconditional assent on his part might, and probably *would, estop him from denying that [*348] the possession was in the purchaser, yet it may be doubted whether even an actual delivery of possession, without fulfilling the condi- tions, would affect the vendor. But it must be observed that con- ditions are not necessarily binding, merely because they are ex- ' pressed in the authority. If by the bargain the purchaser is en - titled to an unconditional authority to take possession, the vendor cannot clog that authority with any conditions at his mere pleasure, and even if the purchaser gives his consent to the conditions, that consent is revocable, unless there bo some consideration for it. It is therefore necessary, not merely that the authority should be con- ditional, but that the conditions should be authorized by the con- tract. In the case of Hanson v. Meyer (h), in 1805, the contract of sale was by Meyer to Wallace and Hawes of a quantity of starch, at 6l. per cwt. The vendor gave a delivery order to the purchasers, ad- dressed to the Bull Porters, in these terms; — "Please to weigh and deliver to Messrs. Wallace and Hawes, all my starch." The ware- houseman received the order, and so far obeyed it as to weigh and deliver a part of the starch, then Wallace and Hawes became bank- rupt, and the order was countermanded, and the starch taken away by Meyer. The assignees of Wallace and Hawes brought trover against Meyer. It is now decided that by such a bargain the pro- perty is not changed (i), but at that time it was not so settled, and Hanson v. Meyer did not decide that point. The case was decided on the ground that the authority to give possession was conditional only. Lord EUenborough said — " By the terms of the bargain (h) Hanson v. Meyer, 6 East, 614 (i) Ante, p. 174 el seq. (2123) 252 STOPPAGE IN TE,ANSITU. [Pt. III. " formed by the brokers of the bankrupt, two things in the nature " of conditions, or preliminary acts on their part, necessarily pre- " ceded the absolute vesting in them of the property contracted " for. * * * The second, which is the act of weighing, does so in " consequence of the particular terms of this contract, by which the " price is made to depend upon the weight. The weight therefore [*349] *''must be ascertained, in order that the price may be " known and paid, and unless the weighing precede the delivery, it " can never for these purposes effectually take place at all: * * * " This preliminary act of weighing, it certainly never was in the " contemplation of the sellers to waive in respect of any part of the " commodity contracted for. The order to the Bull Porters, his " agents, is to weigh and deliver all his starch. Till it was weighed, " they, as his agents, were not authorized to deliver it, still less " were the buyers themselves, or the present plaintiffs their as- " signees, authorized to take it by their own act from the Bull " Porters warehouse, and if they could not so take it, neither can " they maintain this action of trover. * * * It is unnecessary to " consider what would have been the effect of non-payment of the " price, or the right to the undelivered residue of the starch if the '' case had stood merely on that ground, as it did in the case of ^'' Hammond and others v. Anderson (k), where the bacon sold in " that case, was sold for a certain fixed price, and where the weigh- "ing mentioned in that case was merely for the buyer's own satis-' " faction, and formed no ingredient in the contract between him " and the seller, though it formed a very ■ important circumstance "in the case, being an unequivocal act of possession and ownership, " as to the whole quantity sold on the part of the buyer." The circumstance of the weighing being by the contract to pre- cede the delivery, distinguishes this case and the cases which fol- low it (l), viz., Wallace v. Breeds (m). Busk v. Davis (n) and Shep- ley V. Davis (o), from the case of Swanwick v. Sothern, in 1839. In Swamvick v. Sothern {x>) the vendors of corn had given the pur- chaser a delivery order in the following terms : — " Deliver Mr. J. Marsden 1028 1§ bushels of oats. Bin 40, O. AV., and you will please [*350] weight them over and charge us *the expense." The ware- housemen entered this order in their books. The Queen's Bench came to the conclusion that the contract of sale, which was not dis- tinctly proved, was a sale of the bin of oats for a certain sum, and that the weighing of the oats was not a part of the contract; and that, therefore, the transfer in the books defeated the vendor's rights. It seems impossible to. doubt that the delivery order was {k) Hainmimd v. Anderson, 1 N. K. 69. U) Ante, pp. 126 and 178. (m) ]\',iJhii-c V, Brceil^, 13 East, 522. In) Busk V. Davis, 2 M. & S. :!!)(). (o) Shcplnj V. Dai-is, r-, Taunt. 617. (p) Swanwick v. Sothern, 9 A. & E. 895. (2124) Gh. /.] STOPPAGE IN TRANSITU. 253 as conditional as that in Hanson v. Meyer (q), but there the condi- tion was a binding one as part of the bargain; in Swan-wick v. Sothern (r), it was not binding on the purchaser, and he chose to waive it. [In Godts V. Rose (s), in 1855, the vendor, who was the plain- tiff, contracted to sell oil to the defendant, to be "free delivered and paid for in 14 days by cash." The plaintiil then gave the wharfinger authority to transfer certain casks of oil into the de- fendant's name, and received from the wharfinger a notice ad- dressed to the defendant, in which the wharfinger stated that he had transferred the oil into the defendant's name. The plaintiff then sent a clerk to the defendant with the notice, an invoice, and a receipt for the price, with directions to exchange them for a cheque. The defendant obtained possession of the wharfinger's notice of transfer, but refused to give a cheque on the ground that payment was to be made in 14 days. The clerk then went to the wharfinger and countermanded the order. Subsequently, however, the wharfinger delivered the oil to the defendant, thinking that the property had passed to him. The Court, consisting of Jervis, C.J., Williams, Crowder and Willes, JJ., held the meaning of the con- tract to be, that the seller might deliver the oil at any time within 14 days, and might at the time of delivery require payment, and as the jury had found that the clerk had no intention to part with the property, the plaintiff was entitled to recover. In Cooper v. Bill (t), in 1865, timber lying on a wharf had been sold by the defendants to Gurney, whose agent measured *the timber, numbered each tree, and marked it with Gur- [*351] ney's initials, and then proceeded to square the timber. On the in- . solvency of Gurney, the defendants removed the timber to a field in their occupation, and declined to give it up to the plaintiffs, Gurney's assignees. But the Court held that there had been a de- livery of the goods to the vendee.] We shall now return to the subject of stoppage in transitu, prop- erly so called, to which this digression is by no means irrelevant. The transitu s, as its name imports, is whilst the goods are on their passage from the vendor to the buyer, or, has been already said, when they are in the hands of one, who neither hold the pos- session by a contract of bailment made with the vendor, nor yet as an agent to hold them under the order of the buyer, but only as an agent to forward thern from the vendor to the buyer. [As Baron Eolfe said in the case of Gibson v. Carruthers (u), the essence of the doctrine of stoppage in transitu is that " the goods should be (q) Hanson v. Meyer, 6 East, 614. M Sivaawick v. Sothern, 9 A. & E. 895. (s) Godts V. Bose, 17 C. B. 229; 25 L. J. C. P. 61. m Cooper V. BiJl, 3 H. & C. 732; 34 L. J. Ex. 161. (tt) Gibson V. Carruthers, in 1841; 8 M. & W. 328; 11 L. J. Ex. 138. See also Schotsman v. Lane, and York. By. Co., in 1867; 2 Ch. Ap. 335; 36 L. J. Ch. 361. (2125) 254 STOPPAGE IN TRANSITU. [Pt. ///. "in the custody of some third person, intermediate between the " seller who has parted with and the buyer who has not yet ac- " quired actual possession."] There are many cases in which it is quite clear in which capacity the goods are held. No one could for a moment doubt, that goods in the hands of a public carrier, either by land, or by water, and actually on the journey, are in transitu; it is self evident as a mat- ter of fact, that the carrier under such circumstances, holds them merely as an agent to forward. And it is equally clear that goods travelling on the same journey in the buyer's own cart or barge, ■which he had sent for them are not in transitu; for the carter or bargeman is clearly the buyer's servant, and not an agent to forward from the vendor. But there is sometimes a good deal of difficulty in drawing the boundary line between the carrier and the servant, [*352] as, for instance, in ascertaining the character of *the captain, wrhere the buyer does not send his own vessel to fetch the goods, but employs a ship belonging to a third party on that particular errand. In two important cases, Inglis v. Usherwood (x), in 1801, and Bohtlingk v. Inglis (y), in 1S03, it was at first taken for granted, that a delivery of goods on board a vessel chartered by the buyer, was a delivery to the buyer himself, but afterwards the Court held and decided that it was but a delivery to an agent to forward, and that the goods on board the ship were in transitu. How this may be, seems to depend on the nature of the contract between the shipowner and the charterer. In the majority of cases, the shipowner does not part with the possession of the vessel to the charterer, he does no more than con tract to employ the vessel and the services of the master and crew for a time, exclusively for the benefit of the charterer; so that the master remains the servant of the shipowner, and not of the char terer, and his possession is the possession of the shipowner, and not of the charterer in any case in which their rights come in ques tion. But though this is the usual contract between the shipowner and the charterer, they may in law, and in practice sometimes do agree, that the charterer shall during the voyage have the possession of the vessel, and that the master shall during that time be the ser vant of the charterer. In other words, though a charter party iisually is a contract on the part of the shipowner, to use the ship and the services of the master and crew, in a particular manner, it may amount to a demise of the vessel, and of the services of the master and crew. The distinctions on which it depends, which is the construction of the charter party, may be found in Abbott on Shipping (s). When, therefore, goods are put into the possession of the master of a ship, they are in general in the possession of the shipowner, who, , , — ^ — , — ^ (x) Inglia v. UsherwooiJ, 1 East, 515. \y)BohUinf/k v. Inglis, 3 Etist, ?,^'i. (z) Abbott on Shijiping, Part IV. , Chap. I. (212G) Ch. /.] STOPPAGE IN TRANSITU. 255 as it is evident, is an agent to forward the goods, and therefore goods on shipboard in general are in *transitu; but where [*353] the master is not the servant of the shipowner, but the jmmediate servant of the charterer, the goods, by being put into possession of the master, are put in the possession of the charterer, and, there- fore, if the charterer be also the purchaser, they are no longer in transitu. " So," says Lord Tenterden in Abbott on Shipping (a), " as I have before observed, the master of a ship chartered wholly by " the consignee is now held to be a carrier, in whose hands goods may " be stopped (6). But where a ship had been hired by the con- " signee for a term of years, and was fitted out, victualled, and " manned by him, and goods were put on board thereof to be sent " by him on a mercantile adventure, for which he had bought them, " it was held that the consignor could not stop them: the consignee " being in that case the owner of the ship pro tempore, and the de- " livery of goods on board thereof being equivalent to a delivery " into a warehouse belonging to him, and the transit being in effect "a transit from, and not to him. Fowler v. MacTaggart (c)." It is not of any importance in point of law whether the goods are actually on a journey or not, 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 aa if they were ac- tually moving; but in general there is more difficulty in ascertain- ing as a fact in what capacity goods are deposited, than in what capacity they are carried. The acts accompanying the transport of goods are less equivocal, less susceptible of two interpretations as to the character in which they are done, than are those accompany- ing a deposit of goods. The question, however, is still the same ; has the person who has the custody of the goods got possession as an agent to forward from the vendor to the buyer, or as an agent to hold for the buyer ? *In Leeds v. Wright (d), in 1803, where an agent of the [*354] bankrupt purchased the goods on account of the bankrupt for ex- portation, but had authority from the bankrupt to export them to any port he pleased, the Court of Common Pleas held that he was not an agent to forward, and that goods in his hands were not in transitu. And in Scott v. Pettit (e), in the same year, where the bankrupt had given general orders to a carrier to send all good for him to the defendant's house to be packed, and the goods were ac- cordingly sent to his house, the same Court decided that there being no fixed ulterior destination, the packer must be considered not as an agent to forward, but as one to hold the goods subject to (a) Abbott on Shipping, Part IV., Chap. II., 10th ed., p. 400. (i) BoMlingk v. Inglis, .3 East. 381. See also Bemdtson v. Strang, 3 Ch. Ap. 590; 37 L. J. Ch. 66,'5. (c) Cited in 7 T. E. 442. (f?) Leeds V. Wright, 3 B. & P. 320. (e) Scott Y. Pettit, 3 B. & P. 469. (2127) 25<> STOPPAGE IN TRANSITU. [Pt. III. the buyer's orders, like a warehouseman, and, consequently, that on their delivery to the defendant the transitus was ended. Shortly after the decision of these cases, the point arose in Dixon v. Bald- win (/), in 1804, in which case goods were ordered by the insolv- ent " to be forwarded to Metcalfe at Hull, to be shipped for Ham- burgh as usual," and it was proved that it was usual for Metcalfe to keep such gooda till he received orders from the insolvents, and then to do with them whatever the insolvents ordered. The King's Bench decided that the goods in Metcalfe's hands were not in tran- situ. Lord Ellenborough reviewed most of the previous cases, and approved of the principle of Scott v. Pettit (e), which he said was, " that the transitus of goods is only not at an end on their reaching "the packer, where they remain with him for the purpose of being "forwarded on to some ulterior appointed place of destination; but " here, as m those cases, the goods had so far gotten to the end of " their journey, that they waited for new orders from the purchaser " to put them again in motion, and that without such orders they "would continue stationary." Grose, J., differed from the rest of [*355] the Court upon this point, and thought the transitus *at an end; but all four Judges agreed upon another point, which de- cided the cause. It is worth -while to observe, that the marginal note in East's Re- 2Mrts is not a correct abstract of what was really decided. The marginal note states the case to be, that goods " sent to Metcalfe to be forwarded to Hamburgh " were not in transitu; but Lord El- lenborough's judgment proceeds on the express ground that it was proved that the goods were sent to Metcalfe, not to be forwarded to Hamburgh, but to await for orders from the purchaser {g). In Siiuth V. Goss (h), in 1808, at Nisi Prius, Lord Ellenborough decided that where goods had been ordered "to be sent addressed to the care of Goss, Bull's Wharf, London, with directions to send them by the first vessel to Newcastle," they were in transitu in Goss's hands. And in Coates v Railton (/), in 18j!7, where the course of busi- ness was for Railton, who was a packer, warehouseman, and com- mission agent at Manchester, to purchase goods in the name of Butler, of London, and send them to a branch of that house at Lis- bon, and the goods which were so ordered were delivered at Eailton's warehouse, the King's Bench considered that Railton had held the custody merely as one step in the transitus to Lisbon. These cases are, it will be observed, quite in accordance with Lord EUenbor- (/) Dixon V. Bnhlinn, 5 East, 17.'. (il) Do(hon v. ]V■) Smith V Goss, 1 Camp. 282. 18 CON. OF SALE. (2145) 274 STOPPAGE IN TRANSITU. [Ft. III. and stopped the goods in his hands. A creditor of the purchaser had, previously to the stoppage, attached the goods in the carrier's hands, by a process out of the Mayor's Court of London. Lord EUenborough said, that the vendor's right was the elder and pre- ferable lien, and not superseded by the attachment. The carrier, it is obvious, was not the less an agent to forward, though he had a general lien against the consignee. The right to retain possession till he was paid the larger sum, made his_ posses- sion more valuable to him, but did not alter its character in the least. He was still an agent to forward. And from the peculiar nature of a foreign attachment, it seems not to alter the character of the holder of the property. It is probable that a seizure by the sheriff, under an execution against the purchaser, would be held to terminate the transitus, for the reasons suggested by Chambre, J., in Oppenheim v. Russell (k). [*380] *The right of stoppage in transitu can be exercised only when the j'urchaser is insolvent or has become bankrupt. It is very usual for a vendor to reserve to himself by the terms of the contract of sale, and of the contract which he makes with the carrier, a right to prevent or delay the delivery of the goods to the purchaser until some conditions are fulfilled. When this is the case, the solvency of the purchaser is beside the question; neither he nor his representatives can have any right to take possession until the conditions are fulfilled, or are waived by the vendor. There is a good deal of difficulty at times, in determining whether the conditions which the vendor has endeavoured to make conditions precedent to the delivery of the possession, are or are not binding on the purchaser. On this subject something has been already said (l). But when the conditions are binding the case is not one of stoppape in transitu, but rather a case in which the peculiar cir- cumstances have prevented the transitus ever commenping, as the carrier, instead of being an agent to forward from the vendor to the buyer, has agreed to be an agent to keep possession for the vendor, till the conditions are fulfilled. The right of stoppage in tran- situ is a right to interfere and prevent the buyer from taking actual possession, which he would otherwise have a right to take, and to undo the effect of an unconditional delivery to an agent to forward. This power does not exist, except in the case of insolvency. In Walleij v. Montgomery (m), in 1803, the consignor's agent Montgomery, obtained possession of the goods, and refused to de- liver them to the consignee, Walley, unless he would pay the price in cash. Lord EUenborough, at the trial, thought that the consign- ment was, from the first, conditional, and nonsuited the plaintiff , (k) Oppenheim \. Ens^ill, ?,B. &'P. 42. l) Anfr, p. 14:!. m) Walley v. llmtlgomer;/, :? East, 585, niite, p. 145. (SI 40) Ch. /.] STOPPAGE IN TRANSITU. 275 but on its being shown that the consignment was not conditional, the nonsuit was set aside. Walley was not insolvent; if he had been, this would *have been a good stoppage in transitu, [*38l] and he would have had no cause of action. In the case of the ' Constantia ' (w), in 1807, in which Lord Stowell had to decide on the effect of an attempted revendication under the old law of France, where the vendor had acted under a mistake as to the insolvency of the consignee, he decided that it was a nullity, inasmuch as the insolvency did not ensue : but that if the purchaser had become insolvent, it would have been good. The law of re- vendication, was analogous to the law of stoppage in transitu, and Lord Stowell, in his judgment, quoted the earlier editions of Abbott on Shipping, and stated the general English law of stoppage in transitu as bearing on the question. Lord Tenterden, in the later editions of his book, adopted the judgment of Lord Stowell, as an illustration of the English law. There is no doubt now of the pro- position in which these two great authorities concurred, that " the mercantile law is clear and distinct that the seller has not a right to vary the consignment, except in case of insolvency." It seems, though there is no direct authority for the proposition, that the law is precisely the same in the case of a carrier by land as in that of one by sea. There is no necessity that the seller should have been formally declared a bankrupt, if he have become insolvent (o). There must of course, in all cases be great difficulty in proving that a person, who has not stopped payment, is, in fact, not solvent, and there seems to be no case in which this has been attempted; but the text books and dicta of the Judges do not restrict the use of the terrh "insolvent," or "failed in his circumstances," to one who has stop- ped payment. There must, however, be great practical difficulty in establishing the actual insolvency of one who still continues to pay his way; and as the carrier obeys the stoppage in transitu at his peril if the consignee be in fact solvent, it would seem no unrea- sonable rule to require that, at the time *the consignee was [*382] refused the goods, he should have evidenced his insolvency by some overt act {p). [n] Trie Constantia (Renrickson), 6 Rob. 321. (o) Biddlecomhe v. Bontl, 4 A. & E. 337. (p ) [Sir W. M. James said that a company was insolvent when its assets and existing liabilities were such as to make it reasonably certain that the ex- isting and probable assets would be insufBfient to meet the existing liabilities, A man is insolvent, said Willes, .J., when he is not in a condition to pay his debts in the ordinary course, as persons carrying on trade usually do. See In re European Life Assurance Society, in 1869, 9 Eq. 128; 39 L. J. Ch. 324; and Queen v. Saddlers Co., 10 H. L. E. 426; 32 L. J. Q. B. 345; Bayley v. Scho field, 1 M. & S. 338; Parker v. Gossage, 2 C. M. & R. 617; Doc v. Sees, 4 Bing. N. C. 384; Sliawv. Lucas, 3 Dow. & Ry. 218; In re London and Manchester IndnMrial Association, 1 Ch. D. 472; 45 L. J. Ch. 170; In re Phcenix Bessemer Steel Co., 4 ■ Ch. D. 108 ; Ex parte Carpenter, Mont. & McAr. 5.] (2H7.) 276 STOPPAGE IN TRANSITO. [Pf. III. The stoppage in transitu must, to be effectual, he on behalf of the vendor, vnth an intention to exercise this power, as of right and independently of the purchaser's assent. Evea if the vendor's agent take actual possession of the goods, that is not necessarily a stoppage in transitu, unless it be done with that intent. This was decided by the Kings's Bench in 1805, in Siffkin V. Wray (q), in which one who was maintained to be the vendor's agent, took possession of the goods by consent of the bankrupt, in trust, to sell them and apply the proceeds to take up the bills drawn against the goods. The, Court held, that even if he had been the vendor's agent that was no stoppage. But a stop- page of the goods done with intent to stop them, by a right par- amount to that of the buyer, is not invalidated by being with the consent and approval of the buyer, or even by being originated by him. In Mills v. Ball (r), in 1801, the Court of Common Pleas held, that where a purchaser wrote- to the vendor to say he was in- solvent, and told him where the goods were, in order that he might stop them, the consequent stoppage was not invalid. At one time, it seems to have been supposed, that in order to make [*383J a good stoppage in transitu, there must have been *an actual taking possession of the goods by the vendor or his agent, but it is now clearly settled, that the vendor's rights are complete on giving the person who has the possession of the goods, notice of the ven- dor's claim to stop the goods, at a time when he can obey it, al- though there is neither an actual taking of possession by the per- son stopping the goods, or such an assent on the part of the holder as would amount to a constructive possession. In Mills V. Ball (r), in 1801, the wharfinger who had the posses- sion of the goods told the vendor's agent, who demanded them from him, that "he would not deliver them till he was certain of a safe delivery," and the Court of Common Pleas held, that after that as- sent, the goods as against him, were in the vendor's possession; the Court guarded themselves against being supposed to decide what might be the case when the holder gave no assent. In Bohtlingk v. Inqlis (s), in 1803, the Court of King's Bench decided, that a demand on behalf of the vendor on the master of the ship in which the goods were, was a stoppage as against the assignees of the buyer, who had obtained a delivery from the master. In Litt V. Cowley [t), in 1816, the Court of Common Pleas went further: the goods there were delivered to Pickfords, the carriers, at Manchester, to be delivered in London. Notice was given by the vendors to Pickford's house at Manchester, to stop the goods, iq) Siffkin v. Wray. 6 East, 371. M Mills V. Ball, 2 B. & P. 457. (sj Bohtlingk v. Inglis, 3 East, 381. (i) Litt V. Cowley, 7 Taunt. 169. (2148) Ch. /.] STOPPAGE IN TRANSITU. 277 at a time 'when the goods were on the road, and when, therefore, the Manchester house could not have delivered them to the vendee. They forwarded the notice to their house in London, it arrived in plenty of time, but, by somes blunder, the goods were delivered. The Court held that this notice revested the vendor's rights, and that he might maintain trover against the assignees of the bank- rupt purchaser, who refused to return the goods (m). *In 1842, in Whitehead v. Anderson (a;), an unsuccessful at- [*384] tempt was made to give to a notice given to the master carrier, the effect of stopping the goods in transitu, though given at a time when he could not obey it. In that case, the goods were at sea consigned to Fleetwood, in Lancashire, when notice was given to the ship- owner, then resident at Montrose, to stop the goods. He endeav- oured to do so, but the assignees of the bankrupt won the race, and reached the vessel first; it was contended, on the authority of Litt V. Cowley (y), that the notice given to the principal was a sufficient stoppage. The judgment of the Court on this point was as follows: — " We think it was not: but to make a notice effective as a stop- " page in transitu, it must be given to the person who has the im- " mediate custody of the goods; or if given to the principal, whose " servant has the custody, it must be given as it was in the case of "Litt V. Cowley (y), at such a time, and under such circumstances, "that the principal, by the exercise of reasonable diligence, may " communicate it to his servant in time to prevent the delivery to " the consignee; and to hold that a notice to the principal at a die- "tance is sufficient to revest the property in the unpaid vendor, and " render the principal liable in trover, for a subsequent delivery by " his servants to the vendee, when it was impossible from the dis- "tance and want of means of communication, to prevent that de- " livery, would be the height of injustice. The only duty that can " be imposed on the absent principal, is to use reasonable diligence "to prevent the delivery; and in the present case such diligence " was used " (z). *The unpaid vendor's right to stop in transitu may he de- [*385] ■ feated before the termination of the transitus, by the assignment of the bill of lading to one, who bond fide gives value for a property in the goods shipped under it. The enactments commonlv called the Factors' Acts, 4 Geo. 4, e. 83, 6 Geo. 4, c. 94, 5 & 6 Vict. c. 39, 40 & 41 Vict. c. 39, and the Bills of Lading Act of 1855, 18 & 19 Vict. c. 3, have considerably enlarged and altered the powers conferred on the holders of bills of lading, delivery orders, and what may be called documents of (u) See Kemp v. Falk, post, p. 407; 14 Ch. D. 446; 7 Ap. Ca. 585. Ix) Whitehead v. Anderson, 9 M. & W. 518. iy) Liu V. Cowley, 7 Taunt. 169. (a) See also ante, p. 362. (2149) 278 STOPPAGE IN TRANSITU. [Pt. III. title to goods, but it seems those enactments are not applicable to the case of one who is in the possession of the documents in the capacity of purchaser, and do not afPect the vendor's rights at all (a). Some remarks upon this subject will be found at the end of this chapter; for the present it will be assumed, that the statutes make no diilerence, and the inquiry will be as to the efPect of those docu- ments at common law. " Much confusion," said Lord Ellenborough, in Waring v. Cox (b), "has arisen from similitudinary reasoning on the subject." This curious phrase seems exactly to express the fact. Bills of lading have been likened to bills of exchange, and delivery orders and dock warrants have been likened to bills of lading, and the law applicable to any one class of these documents, has been supposed to extend by analogy to the others, which is the case only where the distinctions between these different kinds of documents are not material; and the effect of assignment of an interest in the goods,' which may accompany the assignment of the bill of lading, has not always been distinguished from the effect of the assignment of the bill of lading itself. First, it is to be observed, the purchaser who has not obtained possession of the goods, may, as soon as the bargain and sale is com- [*386] plete, transfer his rights in the goods, whether *there exists a bill of lading or not. But when no document of title exists, he can transfer no right greate-r than that which belongs to himself. As has been already shown, the purchaser has, from the moment the bargain and sale is complete, the general right of property, subject to the vendor's rights, and he may exercise every right of property consistent with the vendor's rights. He may sell the goods, subject to the first vendor's rights, and if he does ao, the prop- erty is transferred to the second purchaser, by the second bargain and sale, without any delivery of possession. But though the second purchaser acquires by his bargain and sale the legal .property in the goods, and every right which his im- mediate bargainor had in the goods, yet (if there be not an assign ment of a bill of lading) he acquires no greater right; he takes the property subject to the same restrictions that his immediate vendor held it under. In Dixon v. Yates (c), in 1833, Dixon sold goods to Collard, who accepted bills for the price, and Collard, whilst the bills were still running, sold the goods to sub-purchasers, who paid him the price, and afterwards Collard became insolvent. The King's Bench de- cided, that one of the sub- purchasers, Bond, who had taken pes session of a part of the goods, whilst Collard was solvent, was en- titled to keep that part of the goods, for he had taken possession of (a) [Tlie recent Act, 40 & 41 Viet. e. 39, s.' i, post, p. 432, has altered the law since the above p;iss;mo was written.] (h) Warinq v. Co.r, 1 Camp. 3(i9. (c) Dixon Y. Vafcs, 5 B. & Ad. 313, ante, p. 342. (2150) Ch. /.] STOPPAGE m TRANSITU. 279 them whilst Collarcl had a right to take possession, but that none of the sub-purchasers had a right to take the goods, which at the time of the insolvency, remained undelivered, for that Collard's right to take possession was defeasible on his insolvency, and though they had bought from him, and hond fide paid him whilst he was solvent, yet they did not thereby acquire any right more ex- tensive than his, that is to say, a right defeasible on his insolvency before he acquired possession. In Craven v. Ryder (d), in 1816, it was decided, by the Common Pleas, that the vendor's rights were not destroyed *by a [*387] subsale and payment, but there the defendant (who was the ship- owner and who had given a receipt for the goods to the plaintiff) was acting contrary to his own written acknowledment, and it may, perhaps, be thought that circumstance was the ground of the de- cision. In Nix v. Olive (e), in 1805, the vendors. Abbot and Co., had sent the purchaser Fox, an unindorsed bill of lading. The goods arrived, and Fox sold them to Nix, the plaintiff, who did not obtain posses- sion. Fox became insolvent, and the defendants, who were agents of Abbott and Co., sold the wine. Nix brought trover, and Lord EUenborough decided, that Abbott and Co., still had the right to stop in transitu. It is to be observed, that there did, in that case, exist an unindorsed bill of lading, but that could not prevent the property being transferred from Pox to Nix by the subsale : see Nathan v. Oiles (/). In Akerman v. Humphrey (g), in 1823, the Common Pleas decided that a sale by the purchaser, aocompanied by a delivery of the ship, ping note, did not put an end to the vendor's rights to stop in transitu. These authorities are sufficient to overrule what seems to have been the opinion of BuUer, J., expressed in his celebrated argument in Lickbarrow v. Mason (h),m 1793, in the House of Lords, in which he contends that: — " goods can never be stopped in transitu after " they have been sold and paid for, or money advanced upon them " bond fide, and without notice ;" indeed, that opinion seems to have been overruled in that case, and has never since been acted upon. It may therefore be asserted, that a mere re-sale by the purchaser does not divest the vendor's rights when there is no assignment of a bill of lading. And a pledge of the goods cannot have more effect than a sale of them, even if a pledge of goods unaccompanied by something equivalent to a *delivery of possession, passes [*888J any legal property in them, which is somewhat doubtful (i). (d) Craven v. Si/rler, 6 Taunt. 433. (e) Nix V. Olive, Abbott on Shipping, 12tli ed., 424. (/) Nathan v. Giles, 5 Taunt. 558. (g) Akerman v. Sumphrey, cited 4 Bing. 522. (h) Uekbarrnw v. 3Iason, 6 East, 21, n. 34. (i) But see the judgment of Willes, J., in Meyerslein v. Barber, L. E. 2 C. P. 52 ; 30 L. J. C. P'. 57. (2151) 280 STOPPAGE IN TRANSITU. [Pt. III. It is clear, also, that the purchaser, if he has the right of posses- sion, may give a third persoa authority to take possession of the goods without conferring on him any right of property whatever in them. If the carrier, or other holder of the goods, delivers them to such a person, it is a delivery to the purchaser whose agent that person is, and such a delivery is for every purpose the same as a delivery to the purchaser himself. If the carrier ref ases to deliver the goods to the agent, it is in general the same thing (if there be due notice of the authority) as if he had refused to deliver them to the purchaser himself, and if the refusal be not justifiable, the pur- chaser has the same remedy as if the refusal had been to him in person. But the agent has no right of action for such a refusal. He has no right of property or possession in the goods, and can naaintain no action in his own name for any wrong done to the right of possession or property of his principal, the purchaser. In this respect, one who has merely got authority to receive the goods, differs from a sub-purchaser; for the sub-purchaser having himself acquired the legal rights of property and possession, such as they belonged to his immediate vendor, i. e., vested though defeasible, may maintain in his own name an action for anything done in con- travention of those rights after he has acquired them. Such being the power of the purchaser over the goods before he has taken possession, when there are no documents of title to the goods, the question arises, what difference does the existence of such documents make ? A bill of lading 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 voy- age (subject to such conditions as may be mentioned in the bill of [*389J lading). The bill of lading is sometimes *an undertaking to deliver the goods to the shipper by name, or his assigns, some times to order or assigns, not naming any person, which is appar ently the same thing (fc), and sometimes to a consignee by name, or assigns, but in all its usual forms it contains the word assigns. The bill of lading is, therefore, a written contract, between those who are expressed to be parties to it, on behalf of their principals if they be agents, that is, generally speaking, between the master of the ship, on behalf of his principals the shipowners, on the one part, and the person named as shipper of the goods on the behalf of the person who, at the time of shipment, was his principal, on the other part, by which it is agreed that the shipowner is to deliver the goods to the person who shall fill the character of assign. The assignment of the bill of lading designates that person, and the master, by delivering the goods to him, fulfils the contract, and by refusing to deliver them to him, he breaks the contract; but [prior to the Bills of Lading Act of 1855 (Z)] the assign of the bill (7c) Abbott on Shipping, 12tb ed., 258. (0 18 & 19 Vict. c. 3, s. 1. (2152) Gh. /.] STOPPAGE IN TRANSITU. 281 of lading wasL not made a party to the contract with the master, nor could he, as assign, maintain in his own name, any action on the contract contained in the bill of lading. In this respect, the as- signment of a bill of lading differed greatly from that of a bill of exchange, for the indorsee of a bill of exchange is by the law merchant entitled to sue the previous parties to the bill in his own name, and is by the indorsement rendered a party to the con- tract, though not one originally; but the contract contained in a bill of lading is a chose in action, and there was no means whatsoever by which any person could be rendered a party to the contract con- tained in a bill of lading, who was not a party to it from its first inception. Even if the assign of a bill of lading had acquired the full legal and equitable property in the goods, so that the damage aris- ing from the non-delivery was exclusively his, still he was compelled to bring any action on the contract in the name of the *ori- [*390] ginal contractor as his trustee; for in general, contracts do not by the law of England run with goods, and no custom has ever been recognised making the contract contained in a bill of lading an ex- ception (m). [The law on this point has been altered by that Act (w), and now " Every consignee of goods named in a bill of lading, and every " indorsee of a bill of lading to whom the property in the goods " therein mentioned shall pass, upon or by reason of such consign- " ment or indorsement, shall have transferred to and vested in him " 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."] If, however the goods when shipped are not the property of the shipper, he in general acts in shipping them as agent for the owner of the goods. When he does so, the principal is from the first a party to the contract, though made in the name of his agent, and may maintain an action upon it in his own name as well as in that of the agent. And his right to maintain such an action is not affected by his being named in the bill of lading as consignee, or by his subsequently becoming indorsee of the bill. Anderson v. Clarke (o), in 1824, was an action by Anderson on the contract in a bill of lading against the master for not deliver (to) Sargent v. Morris, 3 B. & A. 277, in 1820; Thompson v. Dominy, 14 M. & W. 403, in 1845; 15 L. J. Ex. 320; Howard v. Shepherd, 9C. B. 297; 19 L. J. C. P. 249. (n) 18 & 19 Vict. c. 3, s. 1. [In Short v. Simpson, in 1866, 1 C. P. 248; 35 L. J. C. P. 147; the consignor indorsed the hill of lading as security for an ad- vance. On repaying the advance it was reindorsed to him, and it was held that he was thereby remitted to all his rights under the original contract. For the indorsee's liability for freight, see Burdiclc v. Sewell, 10 Q. B. D. 363, and 13 Q. B. D. 159; 10 Ap. Ca. 74; 52 L. .T. Q. B. 428; 53 L. J. Q. B. 399; where the effect of the indorsement of a bill of lading by way of a pledge as distin- guished from a sale was much considered. ] (o) Anderson v. Clarke, 2 Bing. 20. (2153) 282 STOPPAGE IN TRANSITU. [Pt. III. ing goods. The goods were shipped by Orr at Newry; Orr trans mitted the bill of lading to Anderson. The form of the bill of lading is not given in the report, but it seems to have stated that [*391] the goods were shipped by Orr, deliverable *to Anderson or assigns. The Court decided, after examining the correspondence, that there was an express appropriation of the goods to Anderson at the time of shipment, so that Anderson had a special property in them the instant they were put on board { i:>). The objection was then taken, that though Anderson might maintain trover, he was no party to the contract, but the Common Pleas said that there was no weight in the objection, as they considered that Orr, in shipping the goods, acted as agent for Anderson (g). But though it seems perfectly well ascertained that the assign- ment of a bill of lading does not [apart from the statute (r)] trans- fer the contract, and has no other effect on the contract than that of appointing the person who is to receive the possession of the goods under it, the effect of the assignment of the bill of lading upon the property in the goods is a different matter. There was at one time an extreme difference of judicial opinion upon the sub- ject, but the authorities now seem to establish that the mere assign- ment of the bill of lading does not confer on the assign any legal right either of property or possession in the goods. It confers upon him an authority to receive the goods, and that authority may, as a matter of evidence, go very far to show that the person who has got it has also acquired a right of property and possession in the goods; but unless there be such a bargain as would, independently of the assignment of the bill of lading, give an interest in the goods, the assignee of the bill acquires no interest in the goods, and conse- quently cannot maintain any action in his own name for any in- jury done to them. "When, however, the bill of lading is assigned in honCi fide furtherance of a contract conferring an interest in the goods for a valuable consideration, it has (at least so far as regards the question of stoppage in transitu) the same effect at law that an actual delivery of the goods would have had. [The transfer of a [*392] bill of lading has the same effect in *defeating the unpaid vendor's right to stop in transitu as the actual delivery of the goods themselves under the same circumstances (s). The indorse- ment by a mere holder, or a finder, or a thief, would transfer no interest.] The law upon the subject must chiefly be taken from the author- ities subsequent to the great case of Lic/ih:semcr Steel Co. 5 Ch. D. 20o; 46 L. J. Ch. 419. (t) Farmiloe v. Bain, 1 C. P. D. 445; 45 L. J. C. P. 264. (u) A memorandum of the terms on which a wharfinger's warrant was pledged does not require to be registered as a bill of sale, In re CimningJiam, 28 Ch. D. 682. (2178) Ch. //.] FACTORS. 307 has bought, and consequently that the unpaid vendor's rights of stoppage in transitu, and his analogous rights of countermanding the authority to deliver, remain such as they were before the pass- ing of these Acts (x). [The main object of these Factors Acts was to secure a bond fide purchaser or pledgee who had made advances to a factor known to be such, either on the security of the goods themselves or of the documents of title to the goods, against the real owner. The re- marks of Willes, J., in the course of his judgment in Fuentis v. Montis (y), show very distinctly what were the objects sought to be attained. He said the question is, " How far a person who is not " the real owner of goods, but who appears to the world, or rather " to those who deal with him, as owner, and who deal with " him on the faith of his apparent ownership, should be allowed tc/ " confer upon a third person a greater title than he himself has. " * * * Every one is agreed that with respect to the ordinary cur- " rency, and bills of exchange whilst running, a person who receives " them bon& fide and for value is entitled to hold them, notwith- " standing any inlirmity of title in the person from whom he obtains them (z). That, however, is far from being so as to "ordinary merchandise;" and after referring to the exceptional cases of sales in market overt and the sale of goods under circum- stances in which the owner might have rescinded the contract on the ground of the buyer's fraud, and to the case where the owner had clothed an agent with an apparent authority to deal with the goods, *he continued, " These instances, however, are ex- [*427] " ceptional to the rule, that no man can give a better title to goods " than he has himself, and that the real ovmer is not bound except " to the extent of an interest which he has parted with or an au- " thority which he has given. Now, the result of that state of the " law with respect to agents employed to sell, led to the course of " legislation which is known by the general description of the Fac- "tors Acts; because it was held by the Courts of Law that the case "of a pledge of goods by a factor intrusted with the possession of " goods, and authorised to sell them, fell within the general rule, to " which the instances above enumerated are exceptions, and that it " did not fall within the exceptions by reason of a pledge being an " ordinary and accustonied transaction to be entered into by a per- " son intrusted as agent to sell, or perhaps more properly by reason " of the Courts of Law having treated a pledge as being out of the " scope of an authority to sell. The Legislature seem to have con- " sidered that to be too narrow a view of the proper scope of the "authority of an agent to sell; and they were no doubt induced to "think so by reason of the altered mode of conducting mercantile " transactions in modern times, and becaus e it had become a usual (x) But see now 40 & 41 Vict. c. 39, s. 4 and s. 5, post, pp. 442 and 439. lyj iuentes v. Montis, L. K. 4 C. P. 93; 38 L. J. _C. P. 95. (z) See ante, p. 170. (2179) 308 FACTOKS. \Pt. III. " and accustomed course for factors intrusted with goods for sale, " to make advances to their principals, either in money or by the " acceptance of bills against their consignments, and to keep them- " selves in funds by repledging the documents of title with bankers " or other money dealers." Lord Blackburn, in the case of Cole v. The North- Western Bank (a), said, "The general rule of law is, that where a person is de- " ceived by another into believing he may safely deal with prop- " erty, he bears the loss, unless he can show that he was misled by " the act of the true owner. The Legislature seems to us to have "wished to make it the law, that, where a third person has en- " trusted goods, or the documents of title to goods, to an agent, " who in the course of such agency sells or pledges the goods, he [*428] " should be *deemed by that act to have misled any one who " bona fide deals with the agent and makes a purchase from or an " advance to him without notice, that he was not authorised to sell "or to procure the advance." The factor's power chiefly depended upon the 2nd section of 6 Geo. 4, c. 94, by which it was in substance enacted], that any per- son entrusted with, and in possession of any document of title to goods, shall be taken to be the true owner of the goods, so far as to give validity to any contract made by him for the sale or pledge of the goods to a person who has not notice that he is not the actual and bona fide owner (6). The meaning of the word " intrusted " in this section, which word occurs in all the Factors Acts, was much considered in two import- ant causes, Phillips v. Huth (c), and Hatfield v. Phillips (d), arising out of the following transaction. Phillips was the owner of two car- goes of tobacco, and he placed the bills of lading j.n the hands of War- wick, as his factor, for sale. The bills of lading were indorsed to Warwick. The goods arrived, and were deposited in the dock ware- houses in the name of Warwick, the indorsee of the bill of lading. "Warwick, in consequence of being the indorsee of the bill of lad- (fl) Col^ V. me Xorih- Western Bank, L. R. 10 C. P. 372; 44 L. J. C. P. 242. (fi) [The words of the second section of 6 Geo. 4, c. 94, are, "Any person " * * intrusted with and in possession of any bill of lading, India warrant, " (l(jek warrant, warehouse-keeper's certificate, wharfinger's certificate, war- " rant or order for delivery of goods, shall be deemed and taken to he the true ' ' owner * * of the goods, * * described and mentioned in the said * * "documents, * * so for as to give validity to any contract or agi'eement "* * made or entered into by such person * * with any person * * "for the sale or disposition of the said goods, or for the deposit or pledge "thereof * * as :i. security fir any money or negotiable instrument * * "advanced or given by such person * * upon the faith of such several doc- ' ' uments * * , or otherwise that such person * * so intrusted as afore- " said is * * not the actual and ftoHiniih, 1 Q. P.. :;s9, pos-i, p. 469. (y) Valpy v. Oakeley, 16 Q. 1!. 941 ; 20 L. ,T. Q. B. 381 ; GriffitTis \. Perry, 1 E. & E. (ISO ; -.IH L. J, Q. B. 204. (2) Kcio \. Sirain, 1 Dans. & Loyd, 193. (a) Bunney v. FoiyUz, 4 B. & A. 5G8. (b) Bloxam v. Sanders, 4 B. & C. 941, ante. p. 45.-). (c) See also judgment of Parke, J., in Duon v. Yates, ;"> B. & Ad., p. 341. (2202) Ch. I 11.^ REMEDIES. 33;[ question that, in the present state of the law, no one will venture to answer positively, but as has already been said, the better opin- ion seems to be, that in no ease do they amount to a complete re- sumption of the right of property, or in other words to a right to rescind the contract of sale, but perhaps come nearer to the rights of a pawnee with a power of sale, than to any other common law xights. At all events it seems, that a resale by the vendor, whilst the purchaser continues in default, is not so wrongful as to author ize the purchaser to consider the contract rescinded, so as to entitle him to recover back any deposit of the price, or to resist paying any balance of it still due ; nor yet so tortious as to destroy the vendor's right to retain, and so entitle the purchaser to sue in trover. [Since the above passage was written it has been repeatedly stated by judges that the vendor cannot rescind the contract except where it may be presumed from the conduct of the other party that he also intended io rescind the contract.] Before entering (d) upon this subject, on which it will bo proper to endeavour to collect all the authorities, it may be as well to clear the subject from one or two cases in which the purchaser's right of property may be completely devested, but by the operation of per- fectly difPerent rules of law. First of all it is to be observed, that a vendor who has retained the possession of goods, and becomes a bankrupt, may come within the provisions of the bankrupt laws (e) ; as a reputed owner of the goods, having at the time of his *bankruptcy the possession [*460] of the goods by consent of the true owner, that is of the purchaser. Knowles v. Horsfall (/). In cases of this nature, it is quite imma- terial whether the vendor had more or less legal interest in the goods ; the question is, whether the purchaser sufPered him to be reputed owner or not. It does not, therefore, belong to the present subject to treat on this class of cases. Secondly, a sale transferring the property in goods, and not ac- companied by a delivery of possession, may be void as against the Tendor's creditors, because fraudulent, either at common law, or by the statute 13 Eliz. c. 5. It is not, however, a matter of law that a sale unaccompanied by delivery of possession, is void as against creditors, but only that the want of an open change of posses- sion, as evidence, tends to shew that the sale was made with a fraudulent intention. The law, and cases upon this subject, are collected in a note to Tivyne's case, in Smith's Leading dases, to which the reader is re- ferred. In Martindale v. Booth (g), in 1832, the King's Bench decided that a bill of sale by way of mortgage, was good as against an ex- (d) Post, p. 462. (e) See the 44th section of the Bankruptcy Act of 1883. (/) Knowles v. Horsfall, 5 B. & A. 134. (g) 3Iartindale v. Booth, 3 B. & Ad. 498. (2203) 333 REMEDIES. [Pt. Ill, eoution creditor, although no possession was deli-vered, and Parke, J., said, that "the want of delivery was only evidence that the "transfer was colourable." In Eastwood v. Brown (h), in 1825, where there was a sale of goods of which the vendor remained in possession, Abbott, C. J., held that it was not in itself a void sale as against an execution creditor, but left it to the jury to say on the whole case, whether it was an arrangement for the purpose of delaying, or defeating credi- tors, and the jury found in favour of the sale, and the summing up was not afterwards questioned. These cases are authorities that the property is in the purchaser, [*-(:61] against third persons as well as against the vendor. *But though the vendor has not the property in the goods, he may never- theless, have power to sell them, so as to confer a good title on a subsequent purchaser. There is a dictum of Abbott, 0. J., in Knowles v. Horsfall (i), to the effect that a vendor suffered to re- tain possession of the goods, is clothed by the purchaser with an. apparent authority to deal with them as his own, and that conse- quently, a sale by him would bind the first purchaser. This may be somewhat doubtful, and is not in agreement with Reeves v. Ca^J- per (k), but this principle can only apply where the second pur- chaser bought bond fide, and without notice of the prior sale ; when it does apply it must be immaterial whether the first purchaser has paid the full price or not, for the apparent authority given to a paid vendor, who is eufiered to retain possession of the goods, is quite as extensive as that given to an unpaid vendor in similar circum- stances. Such a question can hardly arise vsdthout a criminal fraud on the part of the vendor, and considerable negligence on the part of the purchaser.] [The purchaser's rights may also be devested by the operation of ,the Factors Acts (I), and by a sale in market overt. The law on this Bul)ject will be found in Tudor' s leading cases in Mercantile and Maritime Law, 2nd ed. 713 (in). (/() Eiixlirnod v. Brown, R, & SI. 312. (i) Knowlis V. Horxfall, 5 B. & A. 140. (k) Jkri-es v. Ccqipcr, r-, Bing. N. C. 136 ; 2 Jur. 1067 ; (! Scott, 877. h) Ante, ji. 426. (Ill) [The positions of a puicliaser for value, an execution creditor, and a trus- tee in bankruptcy, are not the same. A purchaser for value, if he had no notice of any equities affecting the property, takes his vendor's interest in the prop- erty unaffected by those equities. An execution creditor can only seize his debt(u-'s interest (n); and, tlierefore, if there is any equity affecting the prop- erty, he can only seize it suliject to that equity 'whether he had notice of it or not. But the execution creditor may seize property -n-hich the debtor has parted vnih by an assignment, which, although good between the debtor and the assignee, "vvas made under such circumstances that the law declines to re- (n) Lmiyoii V. Toogood, in 1S44, 13 M. & W. 27; 13 L. J. Ex. 273 ; Glasspoole T. Yauni/, in ls2i), 9 B. & C. 690 ; jY/eoZh v. Bastard, 2 Cr. Mee & Eos. 759;, Mamlcrs \. WiUiams, 4 Ex. 339 ; 18 L. J. Ex. 437. (2204) Ch. III.] REMEDIES. 333 *But to return to the question [how much the vendor's [*462] rights exceed a lien, or in other words] how far a vendor partially or totally unpaid, may, after the purchaser is in default or insolv- ent, confer a good title to the goods on a second purchaser who has notice of the «prior purchase ; and if he can confer such a good title, how far the act conferring it renders him liable to the original purchaser whose rights are thus devested, or to what extent that act affects the vendor's right to recover or retain the price due from the first purchaser. In Langfort v. Tyler (q), in 1705, Holt, C. J., is reported to have ruled, — " That after earnest given, the vendor cannot sell the goods "to another without a default in the vendee, *and there- [*463] " fore, if the vendee does not come and pay and take the goods, the " vendor ought to go and request him, and then if he does not come " and pay, and take away the goods in convenient time, the agree- "ment is dissolved, and he is at liberty to sell them to any other ^'person." This has been sometimes understood to be a ruling, that a resale Tinder such circumstances was rightful, and operated as an election to rescind the contract. If such were the efPect of a resale, it would follow that the ven- cognize it as against the creditor. Such a contract may he regarded as void either according to the common law, or under 13 Eliz. c. 5, which enacted that all assignments made for the purpose of delaying, hindering, or defrauding •creditors should be void. Whether an assignment was made for that purpose is a question of fact in every case, and such facts as that the transaction was a secret one, or made for a very small consideration, or that the vendor remained in possession after the sale, are strong evidence of fraud. But although re- maining in possession is strong evidence, it is not conclusive. For example, in the case of a mortgage of chattels, where the nature of the transaction is, that the vendee shall only take possession on the happening of some future event. To stop this loophole for fraud, the Bills of Sale Acts have from time to time heen passed, making all assignments, whether absolute or by way of mortgage, void, unless registered/in the manner prescribed by the Acts. The law on this subject will be found in the Twyne's case in Smith's Leading Cases, vol. i. And so exacting is the law in these cases, that even if the execution creditor had at the time when the debt was contracted notice of the as.signment, he is not af- fected by it, but is in the same position as if he had not had notice (o). The rights of the trustee in bankruptcy over property which is in fact the property of the bankrupt, are much the same as those of the execution creditor —he takes it subject to all the equities affecting it, whether he had notice of them or not. But he has rights over property which is not in fact the property of the bankrupt, more extensive than those which the execution creditor has, for he may not only take property which the bankrupt has assigned by an as- signment which the law will not recognize, but further, by the Bankruptcy Act he may take all goods in the possession of the bankrupt with the consent ■of the true owner, of which the bankrupt is the reputed owner [p). (o) Edwards v. Edwards, in 1876, 2 Ch. D. 291 ; 45 L. J. Ch. 391. [p] Bankruptcy Act of 1^84, s. 44. (q) Langfort v. Tyler, 1 Salk. 113, ante, p. 453. (2205) 334 REMEDIES. [PL III. dor must return any part of the consideration he had received (r). This might not always be possible, and in many cases would be very unjust. The purchaser would have taken his chance of the benetit of a rising market, or any other lucky event, and the vendor would bear the loss arising from an unlucky one. The circum- stances in Milgate v. Kebble (.s), in 1841, illustrate this better than any supposititious case could do. There the vendor sold his crop of frait for 38Z., payable part by instalments, and part on delivery of the fruit. The purchaser paid 33Z. and if fruit had risen in value, or the crop had proved very grod, he would no doubt have paid the remaining 5Z., but he did not pay it, and the vendor resold the whole of the fruit for Ql. The purchaser brought trover against him and the jury found that the resale was unreasonably speedy, and that the purchaser's damage in consequence was 5Z. Surely it would be very harsh law to say, that in consequence of this resale damaging the purchaser to the extent of ">?., the vendor was to re- pay him 33Z., yet that consequence would follow if the resale rescinded the contract. In Hore v. Mihier if), at Nisi Prius, in 17'.)7, Lord Kenyon [*4G4] *seems to have considered a resale absolutely tortious, and estopping the vendor from setting up the former contract of sale as still subsisting. In that case, the vendor after the resale, sued the original purchaser for goods bargained and sold, and Lord Ken- yon thought that by the resale, he had precluded himself from say- ing the goods were the property of the defendant. In il/erfems v. Adcock (ii), in 1813, Lord Ellenborough seems to have decided at Nisi Prius, that a resale, under a power expressly reserved in the contract of sale, did not prevent the vendor from recovering the balance of the price under a count for goods bar- gained and sold, in other words, that the exercise of a power of resale did not rescind the contract of sale. The case is so reported as to be of little value; [it was cited in Lamond v. Davall (rr), in 1S47. In that case there was a condition that if the purchase money was not paid on the daj' following the sale the goods might be resold and the loss should fall on the vendee. The goods were resold and the vendor then brought this action to recover the whole purchase money from the first vendee and was nonsuited by Eile, J. On the motion. Lord Denman, C.J., said that "the power " of resale implies a power of annulling the first sale, and that "therefore the first sale is on a condition, and not absolute." In delivering the judgment of the Court, Lord Denman did not lay (;■) Sfrickkind v. Tnrnn; 7 Ex. 208; 22 L. J. Ex. 115; Cox v. Pivntk-c, 3 M. & 8. n44; Eirhliolz v. ]l,iiinis/n: 17 C. B. N. S. 70S: 34 L. J. C. P. 10r>; SIcjjhens \. Wilkinson, 2 B. & Ad. :52il: aihs v. Edwards, 7 T. R. 181; Gompertz y, Badhit, 2E. & 1',. 849: 23 L. .J. Q.' B. 65. (.s) Jlilf/dic V. KcbbJe. .". M. & ( t. 100, ante, p. 4.57. (/) ITorc Y Jniiier. Peake, 42 n. (■».) Jfrrliiis Y. Arlaicl; 4 Esp. 251. (x) Lamond y. Darall, 9 Q. B. 1030; 16 L. J. Q. B. 136. (2206) Ch. IIIi\ REMEDIES. 335 any stress on the fact that the power reserved was an express one, but appears to have decided the case simply on the ground that under the circumstances the sale must be taken to have been a con- ditional one. And the case appears to be no authority for what the law would be if the contract were not a conditional one] In Kijnier v. Siiweroropp (y), in 1807, the unpaid vendor of goods had retained part of them on the insolvency of the purchaser. He afterwards discovered that the purchaser was *agent for a [*465] solvent principal, and sued this principal, for goods bargained and sold, the defendant's counsel contended, that as to the portion of the goods stopped, the plaintifis could not recover under the count for goods bargained and sold, as the goods were withheld from him, and the contract thereby rescinded. Lord Ellenborough overruled the objection. " The coffee, said he, " was stopped only to prevent " its getting into the hands of the insolvent brokers, and as pay- " ment was to precede the delivery, it was enough if the plaintiffs "on being gaid were ready to have delivered it." In Greaves v. Ashlin (z), in 1813, at Nisi Prius, before Lord El- lenborough, the facts were, that Ashlin had sold Greaves 50 quarters of oats, at ISs. 6d., out of 175 quarters. It does not appear whet- her the oats were specified or severed from the 175 quarters, so as to render it a complete bargain and sale, but probably they were so. The seller soon after, gave the buyer notice that if he did not take them away he should resell them to other persons. He did resell them at 51s. per quarter. The plaintiff Greaves, brought an action on the contract for not delivering the goods. Lord Ellen- borough said, — " If the buyer does not carry away the goods bought, '■ within a reasonable time, the seller may charge him warehouse "room, or he may bring an action for not removing them, if he is " prejudiced by the delay. But the buyer's neglect does not entitle " the seller to put an end to the contract. When a farmer sets out " his tithes, and gives the parson notice to take them away, he may " bring his action if the latter does not do so within a reasonable " time, but the parson's neglect does not revest in the farmer the " property in the articles set out. In this case the notice given to " fetch away the goods, could not discharge the defendant from his "contract, nor empower him to sell the property of the plaintiff." The plaintiff recovered the difference in price. This is a decision that the default of a solvent buyer, does not give the vendor a right at his election to rescind the whole contract. *The expres- [*4*56] sioas that seemed to shew that Lord Ellenborough thought the vendor had no more right of resale than the farmer who had set out tithes, are very worthy of attention, but are dicta merely. These seem to be all the authorities prior to the two cases of (y) Kymer \. Suwercropp, 1 Camp. 109. (z) Greaves v. Ashlin, 3 Camp. 42G. (2207) 336 EEMEDIES. [Pt. III. Bloxam v. Sanders (a), and Bloxam v. Morley (b), in 1825, which, as already said (c), decided that the vendor's right, where he had not parted with the possession in case of insolvency, exceeded a mere lien. The reasoning of the Court in their judgment went farther, and seems to lead to the inference, that though the vendor had in their opinion more than a lien, yet he had no right to rescind the sale, and that stoppage in transitu was not a rescission of the sale. Bayley, J., in Bloxam v. Sanders (a), said, "The seller's ' right in respect of the price, is not a mere lien which he will for- ' feit if he parts with the possession, but grows out of his original ' ownership and dominion, and payment or a tender of the price, is ' a condition precedent on the buyer's part, and until he makes ' such payment or tender, he has no right to the possession. If ' goods are sold upon credit, and nothing is agreed upon a§ to the ' time of delivering the goods, the vendee is immediately entitled ' to the possession, and the right of possession and the right of pro- ' perty vest at once in him, but his right of possession is not ' absolute, it is liable to be defeated if he becomes insolvent before ' he obtains possession, Tooke v. Hollingworth [d). Whether de- ' fault in payment when the credit expires will destroy his right of ' possession, if he has not before that time obtained actual posses- ' sion, and put him in the same situation as if there had been no ' bargain for credit, it is not now necessary to inquire, because this ' is a case of insolvency, and in case of insolvency the point seems 'perfectly clear. Hanson v. Meyer (e). If the seller has dis- [*407] " patched the goods to the buyer and *insolvency occurs, he ' has a right in virtue of his original ownership to stop them in 'transitu. Mason v. Lickbarrow (/), Ellis v. Hunt (g). Hodgson ' V. Loy (h). Inglis v. Usherwood, (i), BohtUngk v. Inglis (k). ' Whj ? because the property is vested in the buyer, so as to sub- ' ject him to the risk of any accident, but he has not an indefeasible 'right to the possession, and his insolvency without payment of the ' price defeats that right; and if this be the case after he has dis- ' patched the goods, and whilst they are in transitu, a fortiori is it ' when he has never parted with the goods, and when no transitus ' has begun. The buyer, or those who stand in his place, may still ' obtain the right of possession if they will pay or tender the price, ' or they may still act upon their right of property if anything un- ' warrantable is done to that right. If, for instance, the original (fl) Bloxam v. Sunders, 4 B. & C. 941, rnilr, p. 455. lb) lUn.nijii V. JInrlrij, 4 B. i^ C. 951, ante, p. 455. (el See ante, p. 455. (rl) Tooke V. HoUingworth, 2 T. R. 215. (c) IJnnson v. Meyer, 6 East, 614. If) Mason V. Lickharroic, 1 H. Bl. 357. (g) Ellis V. Hunt, 3 T. R. 464. (h) HodnsoH V, Loy, 7 T. R. 440. (/) Inglis V. Usherwood, 1 East, 515. ; (k) BohtUngk \. Inglis, 3 East, 381. (2208) €h. III.] KEMEDIES. 337 " vendor sell when he ought not, they may bring a special action " against him for the injury done by such wrongful sale, and re- " cover damages to the extent of that injury, but they can maintain " no action in which right of property and right of possession are ^'both requisite." It seems difficult to avoid thinking, that the Judges who con- curred in that judgment were ready to decide that the vendor could not rescind the contract of sale without the consent of the buyer, even if he was in default, and that stoppage in transitu did not op- erate as a rescission of the contract; but it seems they were not quite ready to decide this, for in Clay v. Harrison (l), in 1829, some of them exercised much ingenuity to avoid the point, and formed their judgment (as appears from the statement of Parke, B., in James v. Griffin (m) on a ground so subtle, that we may venture to guess the Court were not agreed on the main *point or [*468] they would not have acted on such a very refined distinction. In Bloxam v. Sanders (n) the Court seem to have rather' care- fully avoided saying whether a vendor's resale was of necessity wrongful in all cases, whilst they expressly say that the purchaser's damage by the resale, is not to be estimated by the value of the goods. The question of whether a resale conducted in such a rea- sonable manner as to work no damage to the purchaser, is lawful or not, was of some importance as it afPected the manner of plead- ing and the question of costs, and also as it may afPect the title of the second vendee. In Maclean v. Dunn (o), in 1828, the vendor, after the purchaser had repeatedly refused to take the goods, resold them at a loss, and brought an action on the contract for not accepting the goods. It was contended that the resale operated as a rescission of the con- tract as against the vendors. The Common Pleas decided that it did not, and in delivering the judgment of the Court, Best, C.J., said: — " That it was clear the resale did not rescind the contract. " It is admitted that perishable articles may be resold. It is diffi- "cult to say what may be considered as perishable articles, and "what not; but if articles are not perishable, price is, and may " alter in a few days or a few hours. In "that respect there is no " difPerence between one commodity and another. It is a practice, " therefore, founded on good sense, to make a resale of a disputed " article, and to hold the original contractor responsible for the dif- , " ference. The practice itself affords some evidence of the law, and " we ought not to oppose it except on the authority of decided "cases. Those which have been cited do not apply. * * * " We are anxious to confirm a rule consistent with convenience and " law. It is most convenient, that when a party refuses to take (I) Clay V. Harrison, 10 B. & C. 99, post, p 480. (m) James v. Griffin, 2 M. & W. 632. (n) Bloxam v. Sanders, 4 B. & C. 941. (o) Maclean v. Dunn, 4 Bing. 722. 22 CON. OF SALE. (2-309) 338 REMEDIES. [PL III. " goods he has purchased, they should be resold, and that he should [*469] "be liable to the loss, if any, upon the resale. *The goods " may become worse the longer they are kept, and at all events " there is the risk of the price becoming lower." The decision in this case was, that the resale by the vendor did not rescind the whole contract, or prevent him from treating it as subsisting. The dictum of the Court goes to the extent, that the resale was perfectly legal and justifiable; probably it may be so, but there has never been a decision to that extent. In Acebal v. Levy (p), in 1834, the Common Pleas (not consist- ing of the same Judges as. in 18'28) said there could be no doubt that a resale by the vendor, after a refusal on the part of the buyer to take the goods, did not prevent the vendor from suing on the original contract. In Martindale v. Smith (q), in 1841, Smith had, on the 23rd April, sold Martindale six stacks of oats, payment on the 10th July, the stacks to remain, if required, till the middle of August. Smith afterwards, in the beginning of July, told Martindale that if he did not pay on the very day, he should not have the corn. Martindale did not pay on the very day, but two or three days afterwards tendered the price. Smith, who still had the .stacks in his possession, re- fused to take the money, and aftencards sold the stacks. Martin- dale brought trover against him, and the Queen's Bench held it would lie, because " the vendor's right to detain the thing sold " against the purchaser, must be considered as a right of lien till "the price is paid, and not a right to rescind the bargain, and here "the lien was gone by the tender of the price." The decision here is, that default on the part of the purchaser, gives the vendor no right to rescind the contract. The Court can- not be understood as saying, that the vendor's right was a mere right of lien, and no more: see Milgate v. Kebble (r). [*470] *In two cases since Maclean v. Dunn (s), there have been intimations of a concurrence in the dicta in that case. In Gosling V. Birnie (t), in 1831, Tindal, C.J., intimated an opinion, that where a vendor, partially unpaid, had resold the goods, and the original purchaser afterwards paid the balance of the price, the property, nevertheless, was in the second purchaser, who had bought bon& fide, but the case was disposed of on another ground. And in Fitt v. Cassanett (u), in 1842, the Court of Common Pleas seem to have been of opinion that a resale, after a refusal to proceed on the part of the purchaser, was quite legal, but at all events did not entitle the purchaser to treat the contract as re- scinded. (p) Acebal v. Levy, 10 Bing. 376. Iq) Martindale v. Smith, 1 Q. B. 389. M Milgate v. KeiMe, 3 M. & G. 100, ante, p. 463. is) Maclean v. Dunn, 4 Bing. 722, ante, p. 468. m Gosling v. Birnie, 7 Bing. 339. (u) Fitt V. Cassanett, 4 M. & G. 898. (2210) Ch. III.] REMEDIES. 339 [The question of the right of one of the parties to rescind a con- tract where the other party is in default, has arisen on several oc- casions where there was a contract to deliver goods by instalments, and there has been a failure either in the delivery of an instalment or the payment for it; and although it is perhaps impossible to recon- 'cile all the cases, yet the difference of judicial opinion becomes very much smaller if the case of Hoare v. Rennie (a;) be disregarded for this purpose, and the judgments of Field, J., in Honck v. Muller (y), in the Court below, and of Brett, L. J., in the Court of Appeal, be considered as the correct ones. If a contract, say for the delivery of 1000 tons of iron, by ten equal instalments, be construed as what is called one entire con- tract to supply a thousand tons in a specified time, then, if the con- tract cannot be performed in the manner specified, the party failed against may refuse to have any other arrangement substituted; and just as he might decline to accept nine hundred tons when he had contracted for a thousand to be delivered all at one time, so he may refuse to accept nine hundred when he had contracted for one thousand *to be delivered at stated times. And if the con- [*471] tract be so construed, and cannot be performed strictly according to its terms, then the party failed against may rescind the contract or bring his action. This, possibly, was the view which the Court took of the contract in Hoare v. Rennie (x). But if the contract be construed as a promise by one party to do a series of acts, i.e., to deliver instalments, it seems impossible to say that if there is a failure to do one of those acts, that there is a total failure of the consideration for the other party's promises such as would justify the other party in rescinding(2;). " The rule of law is, that all things to be performed by a party " to an agreement on his part, are the consideration for all to be " performed by the other party " (a). Which of these is the true construction of the contract may be a question of some difficulty, but when damages are a sufficient rec- ompense for a partial failure, it seems difficult to suppose that the parties intended that either of them should have any such a dispro- portionate remedy as a power to rescind the contract. No doubt the remedy by way of damages may prove to be inade- quate, as in the case of the insolvency of the party in default; but that is a contingency which is unavoidable where this course of dealing is adopted. Where the failure of one party to perform one of the acts prom- ised to be done is such that the other party is justified in conclud- ing that the party failing wishes to rescind, then he may elect to (x) Soare v. Bennie, 5 H. & N. 19; 29 L. J. Ex. 73. (y) Honck v. Muller, 7 Q. B. D. 104; 50 L. J. Q. B. 529. \z) Bom v. Eyre, 2 W. Bl. 1312; 1 H. Bl. 273, n. ; and ante, p. 199. (a) Per Bramwell, B., in Sanderson v. Graves, L. E. 10 Ex. 537; 44 L. J. fcx. 310. (2211) 340 REMEDIES. [Ft. III. rescind. The evidence from which an intention on the part of the person failing to abandon the contract may be inferred by the other party may be of various kinds, as insolvency, or long delay after the other party has given notice of his wish to abandon it, or an express notice; for just in the same way that where one party gives notice that he does not intend to perform his part of the contract, [*472] the *other may take him at his word, and elect to consider his refusal as a breach (c), so he may elect to rescind. And there does not seem to be any distinction, as a matter of evidence, between a failure as to the first instalment or a failure as to some subsequent instalment (d), for the part performance, by accepting the prior in- stalments, being according to the contract, is consistent with either construction. It has been argued that if the vendor retakes possession of the goods after having delivered them, that that is evidence from which an intention to rescind the contract may be gathered; but this has been decided not to be the case (e). If goods have been delivered according to contract, and then, in consequence of the vendee's conduct, the vendor elects to rescind the contract the vendor cannot bring an action upon the con- tract for the price of the goods delivered, for it is gone, but can recover whatever he can prove to be the value of the goods (/). Withers v. Reynolds (g), in 1831, was an action for damages for not delivering straw. Reynolds, the defendant, had contracted to supply Withers, the plaintiff, with straw at the rate of three loads a fortnight, from October to the following June, payment on delivery. He supplied the straw up to January, when ^yithers who had paid for all that had been delivered except the last load, said that in fu- ture he should always keep one load in hand. Reynolds then re- fused to deliver any more straw unless it was paid for on delivery. Lord Tenterden, C.J., and Parke, Taunton, and Patteson, JJ., held that when the plaintiff said he would not pay on delivery, the de- fendant was not obliged to go on sui^plying him. Patteson, J., said: "If the plaintiff had merely failed to pay for any particular [*473] " load, that, of itself, might not *have been an excuse to the " defendant for delivering no more straw; but the plaintiff here ex " pressly refuses to pay for the loads as delivered." In Hoarev. KenniP (h), in 1859, the plaintiffs contracted to de- liver a certain quantity of iron in four equal monthly instalments. They delivered practically nothing in the first month, and the de- ((■) Cod V. Awha-fjcde By. Co., 17 Q. B. 127; 20 L. J. Q. B. 4(!0, post, p. 486. (d) Per Brett, L. J., in Honck v. Mulkr, 7 Q. B. D. 104; 50 L. J. Q. B. 529. (e) Slephnif: \. Wilkinson, in 1831, 2 B. & Ad. 320; Gillard v. Brittan, in 1841. 8 M. & W. 575; Page v. Cowasjee, in 1866, L. E. 1 P. C. 127; 3 Moore, P. C. C. N. S. 499. (/) BnrtholomeiD V. Mnrkwick, in 1864, 33 L. J. C P. 145; 15 C. B. N. S. 710. (g) Withers v. Reynolds, 2 B. & Ad. 882. (h) Soare v. Sennie, 5 H. & N. 19; 29 L. J. Ex. 73, ante, p. 217. (2212) Ch. II I. \ REMEDIES. 341 fendants refused to take any of the iron. The case was heard on demurrer, and the Court held that the plaintiffs could not recover. It is, however, more than doubtful whether the Court would put the same construction on this contract as reported if the same case were ever tried again. In Jonasso/in v. Young («), in 1863, the plaintiffs agreed to sell to the defendant as much gas coal equal to sample, as a certain steamship could carry from Sunderland to London in nine months. The plaintiffs said that the defendant after taking part of the coals refused to send the ship to take any more. The defendant pleaded that the coal delivered by the plaintiffs was not equal to sample, and that the plaintiffs had detained the ship longer than necessary. On demurrer the Court, consisting of Wighfcman, Crompton, and Black- burn, JJ., held that the plea was no answer to the declaration. In Simpson v. Crippin (fc), in 1872, the defendants agreed to sell to the plaintiffs 6000 to 8000 tons of coal, to be delivered into wag- gons to be sent by the plaintiffs to the defendant's collieries, in equal monthly quantities during a period of twelve months. During the first month the plaintiff sent waggons for 158 tons only, instead of at least 500. The defendants, at the expiration of the month, gave notice that, as the regular and punctual withdrawal of the stipulated quantity in each month was the sole inducement for them to entertain the contract, they now cancelled it, and refused to de- liver any more coal. The Court of Queen's Bench held that the defendants were not entitled to do so, notwithstanding the plaintiffs' breach. *In Ex parte Chalmers (I), in 1873, the facts were that [*474] Hall and Co. contracted to sell Edwards 830 tons of bleaching- powder, to be delivered at the rate of thirty tons a month from February to December, both inclusive, payment by cash fourteen days after each delivery. All the deliveries up to and including the October one were delivered and paid for ; the November instal- ment was delivered, but not paid for. On the 20th of December Edwards became insolvent, and on the 23rd of December Hall and Co. wrote to him, " We give you notice that we refuse to deliver any more bleaching-powder upon your contract." The De- cember instalment was not delivered. Edwards was adjudicated bankrupt, and Chalmers, as trustee, claimed the delivery of thirty tons of bleaching-powder; and on Hall and Co.'s refusal, he claimed 150i. damages. The Court held he could not do so. Sir G. Mellish, L. J., deliv- ered a judgment in which Lord Selborne, L.C., and Sir W. M. James, L. J., concurred. He said : " The first question that arises " is what are the rights of a seller of goods when the purchaser be- '' comes insolvent before the contract for sale has been completely (J) Jonassohn v. Young, 4 B. & S. 296; 32 L. J. Q. B. 285. Ik) Simpson v. Cripj^m, L. R. 8. Q. B. 14; 42 L. J. Q. 28, ante, p. 219. {l) Ex parte Chalmers, 8 Ch. Ap. 289; 42 L. X Ch. 37. (2213) 342 KEMKDIES. [Pt. HI- " performed P I am of opinion that the result of the authorities is •' this — that in such a case 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 that 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 " wpll as the price of those still to te delivered. * * I agree ■' w;th what was said by Crompton, J., in Griffiths v. Perry (m), that " the mere fact of the insolvency of the purchaser did not put an " end to the contract. It certainly would be very unfair if it had " that effect" {n). [*475] *In Morgan v. Bain (o), in 1874, the defendants bad, on the 5th of February, contracted to sell to the plaintiffs 200 tons of iron. On the 12th of March, the plaintiffs, finding themselves un- able to meet their liabilities, determined to suspend payment, and informed the defendants of the fact on the 14th of March. On the 5th of April the first meeting of the creditors was held, at which it was agreed to accept a composition of five shillings in the pound. The plaintiffs did not refer to their contract with the defendants in their statement of affairs, but it was known to those present at the meeting. By the 1st of May three new partners had joined the plaintiff's firm, and as iron had risen, they, on the 13th of May, de- manded a delivery of the iron pursuant to the contract. The de- fendants at once repudiated the contract. It was stated in argument that by the usage of the iron trade no delivery would be due under the contract until the 1st of April. Lord Coleridge, C.J., deliver- ing judgment for the defendant, said : " The question that is " raised for our consideration is, whether, on the 13th of May, " there had been a rescission of the contract. Rescission must be " by both parties; either both must have intended to rescind, or one '• must have so acted as to justify the other in thinking that he in- " tended to rescind. * * * Non-payment for one or two instal- " ments of the iron would not be, per se, conduct justifying the " conclusion on the vendor's part that the purchaser intended to '■ abandon the contract. There might, however, be additional cir- " cumstances in connection with which such non-payment would be " sufficient to justify such a conclusion on the vendor's part. ' Here the purchaser was insolvent. It would be, it appears to me, " in accordance with what I have before said as to the law on this " subject, the duty of the insolvent purchaser, if he meant to insist " on the contract, to claim delivery of the instalments from time to " time as they became due, and to offer cash in payment for them." (m) Griffiths v. Pern/, 1 E. & E. 688; 28 L. J. Q. B. 204. (n) [As to what justifies a vendor in considering the vendee to be insolTent, see 7« re Phcenix Bessemer Sled Co., Ej: parte Carnforlh Hosmatite Iron Go., in 187ti, 4 Ch. D. 108; 46 L. J. Ch. 115; and ante, p. 381.] {o) Morgan v. Bain, L. E. 10 C. P. 15; 44 L. J. C. P. 47. (2214) 6%. ///.] REMEDIES. 343 In the case of Ex parte Stapleton (p), in the Court of Appeal *in 1879, Stapleton contracted to sell to Nathan a cargo of [*4761 maize; subsequently, on the 19th of January, Nathan filed a liqui- dation petition, and a receiver was appointed, and a correspond- ence took place between Stapleton and the receiver. On the 31st of January Stapleton wrote to the receiver, " I propose to sell at a time when I shall consider most advisable, and then claim on the estate for the loss. Have you any proposal to make ?" On the 6th of February, the market being a falling one, Staple- ton contracted to sell the cargo to Schroder and Co. for 688Z. less than Nathan had contracted to pay. On the 7th of February, the receiver wrote to inform Stapleton that he had no right to deal' with the cargo, before tendering it to him. On the 8th, Stapleton ten- dered it, and the receiver, on the 12th, wrote, that as Stapleton had resold before tendering, he reserved his right to regard the contract as cancelled. Stapleton tendered a proof against the estate of Nathan for 688Z. The Court allowed the claim. Jessel, M.E., said : " I am of opinion that if a person who has entered into a " contract of this kind gives to the vendor before he has parted with " the goods that which amounts in effect to this notice, ' I have " parted with all my property, and am unable to pay the price " agreed upon,' it is equivalent to a repudiation of the contract. " Of course that would not affect the right of the trustee in liqui- " dation to elect to fulfil the contract on paying the price in cash, " provided thai he does so within a reasonable time. But, if he " does not do that, I think that the vendor is entitled to treat the " contract as broken, without making any tender of the goods to the " trustee." In Freeth v. Burr (g), in 1874, the facts were that on the 28th of November, 1871, the plaintiiTs agreed to buy of the defendants 250 tons of pig iron, " half to be delivered in two weeks, remainder in four weeks. Payment, net cash fourteen days after delivery of each parcel. The market was a rising one. No iron was delivered until the 15th of February, *when 10|^ tons were sent to [*477] the plaintiffs, who complained of the unpunctual deliveries, and enquired whether the defendant would deliver the remainder of the iron, or whether they should buy in against him; the defendant said it was his intention to deliver the remainder. On the 29th of May, 125 tons had been delivered, and the defendant asked for pay- ment for them, promising to deliver the remainder. The plaintiffs declined to pay, under the belief that they were entitled to deduct from the amount due to the defendant any loss which they might incur in case the defendant should fail to deliver the remainder of the iron, and in reply to a letter from the defendant demanding payment, put forward a claim for 250Z., being 21. per ton on the 125 tons undelivered. The plaintiffs, ultimately (but not until after an (p) Ex parte Stapleton, 10 Ch. D. 586. (S) Freeth v. Burr, L. E. 9 C. P. 208; 43 L. J. C. P. 91. (221.5) 344 REMEDIES. {Ft. III. action had been brought to recover tne price) paid for the 125 tons delivered, and then brought this action for the refusal to deliver the remaining 125 tons, and obtained a verdict subject to the opinion of the Court. The Court upheld the verdict, and Lord Coleridge, C. J., said that " in cases of this sort, where the question " is whether the one party is set free by the action of the other, the " real matter for consideration is vyhether acts or conduct of the one " do or do not amount to an intimation of an intention to abandon " and altogether to refuse performance of the contract. The true " question is, whether the acts and conduct of the party evince an " intention no longer to be bound by the contract." And this statement was frequently approved in the case of Mersey Steel and Iron Co. v. Naylor (r) in the House of Lords in 1884. In Bloomer v. Bernstein (s), in 1874, the plaintiff had agreed to buy from 3,650 to 5,110 tons of old iron rails, "delivery to take place during 1872, and to be completed in December of that year, payment, net cash against bill of lading." On the 27th of January the defendant sent the plaintiff an invoice for 257 tons amounting to 1,390Z., which sum was paid by the plaintiff, and he received the [*478] bill of *lading. On 81st of January an invoice was sent to the plaintiff for a further quantity of rails amounting to 907 ?., but the plaintiff did not take up the bills of lading. On the 7th of February the defendant gave notice that if the bills of lading were not taken up the iron would be sold. On the 13th of February it was sold in a rising market, for a sum greater than the contract price. On the 14th of February the defendant informed the plain- tiff that as he had not taken up the bills of lading the contract would be cancelled. A correspondence followed, and finally on the 19th of February the plaintiff wrote to the defendant saying that if the iron was not delivered he would buy in against him. On the 20th of February the defendant again said that the contract was rescinded. The plaintiff filed a petition for liquidation on the 22nd of February. The creditors determined to have nothing to do with the plaintiff's contracts, and on the 28th of June, after a composition had been accepted, reassigned to the plaintiff his estate. On the 23rd of July the plaintiff wrote to the defendant demanding a re- newal of the deliveries. No demand had been made between Feb- ruary and July, and it was held by Lord Coleridge, C. J., Brett and Grove, JJ., that the defendant was justified in repudiating the con- tract, the jury having found that a state of things had existed which justified the defendants in believing that the contract was intended to be put an end to by the plaintiff. In Brandt v. Lawrence (t), in 1876, the defendant having con- tracted with the plaintiff to purchase a large quantity of oats to be shipped by steamer or steamers, refused to accept both ship loads (r) JFcrscy v. ,S7,;,'/ and Iron Co. v. Nmjior, 9 Ap. Ca. 434 ; 53 L. J. Q. B. 497. (s) Bloomer v. Bernstein, L. R. 9 C. P. 588 ; 43 L. J. C. P. 375. (t) Brandt v. Lawrence, 1 Q, B. D. 344 ; 4G L. J. Q. B. 237, ante, p. 225. (221()) Ch. III.] REMEDIES. 346 on the ground that they had not been shipped within the stipulated time. The jury found that the first ship had been loaded in time but not the second, and the Court held that he was bound to accept the first, fur when it was tendered there was nothing to show that the plaintiff woald not or could not complete the contract. In Oleaga v. West Cumberland Iron and Steel Go. (u), in *1879, the contract was for the sale of a certain quantity of [*479] Spanish iron ore, to be delivered by instalments when freights should be below a certain limit. Partly through freights being above the limit, and partly through wars in Spain, a large quantity was undelivered long after the expiration of the time within which all would have been delivered but for those circumstances. The defendants refused to accept any more. But the Court seems to have been of opinion that they were bound to accept deliveries postponed by reason of high freights. In Honck v. Muller (x), in 1881, the defendant had in October, 1879, agreed to sell and deliver to the plaintiff 2,000 tons of pig iron "in November, 1879, or equally over November, December, and January next at 6d. per ton extra." On the Ist of November the defendant wrote to the plaintiff's agent asking if he would take the whole of the iron in November; a correspondence passed, and on the 22nd 'of November the plaintifi''s agent wrote to the defendant asking him to defer shipping any of the iron until December so as to allow the plaintiff to take delivery of all in December and Jan- uary. The defendant replied on the 1st of December that he had cancelled the contract; to which the plaintiff answered that he de- clined to consider the contract rescinded. Field, J., at the trial, held that the plaintiff was entitled to recover, but in the Court of Appeal Bramwell and Baggallay, L. JJ., were of opinion that the plaintiff had no cause of action, Brett, L. J., dissenting. The last case on the subject appears to be the Mersey Steel and Iron Co. V. Naylor {y),in 1884, in which Lord Coleridge's judg- ment in Freeth v. Burr (z), was adopted as a correct statement of the law.] The oases in which the purchaser, though in default, was not in- solvent are not necessarily authorities for the extent of *the [*480] vendor's rights, when there has been insolvency, and still less for the effects of stoppage in transitu. But the subjects are very closely connected, and if the one class of vendor's rights were clearly and accurately defined, it would go far to settle the extent of the others. If the vendoi* had a right to rescind the contract after a default in the purchaser, it would be very reasonable that he should have the same right on his insolvency before default, and that a stoppage («) Oleaqa v. WeM Cumberland Iron and Steel Co., L. R. 4 Q. B. D. 472. ix) Eonek v. Muller. 7 Q. B. D. 92; .50 L. X Q. B. .529. . r^ -r r,na a \y) Mersey Steel and Iron Co. v. Naylor, 9 Q. B. D. 648; 51 L. J. Q. B, 576, 9 Ap. Ca. 434; 53 L. J. Q. B. 497. . t ^ r, m < ^^-r (z) Freeth V. Burr, L. E. 9 C. P. 208; 43 L. J. C. P. 91, ante, p. 477. (2217) 346 REMEDIES. [Pt. III. in transitu should be considered as an election to exercise that right; but it is difficult to see how the vendor could acquire a power to rescind the contract, by the act of putting the goods in motion, and then stopping them, if he had it not before. The right to stop in transitu may, as we have seen, be exercised by the vendor, although he is partially paid, Hodgson v. Lay (a) ■ or, although he has received bills for the full price which he has negotiated, and which are outstanding, Feize v. Wray (b), and that without tendering or returning either the money or the bills, Edwards v. Brewer (c). It seems very difficult to consider the stoppage in transitu as amounting to a rescission of the contract, when the vendor may exercise it when he has not restored, and, as in Feize v. Wray (b), from his own insolvency, cannot restore the purchaser to his original position. No such difficulty is in the way if the stoppage is considered as doing no more than putting the vendor in possession of the goods as a security, In Clay v. Harrison (d), in 1829, which was an action on a policy of insurance, there had been an agreement for the supply of goods free on board. The vendor shipped the goods accordingly, and by so doing appropriated them to the contract, and converted the agreement into a bargain and sale. The purchaser insured his interest in the goods; they were damaged by one of the perils in- [*481] sured against; then the *purchaser became insolvent, and the vendor stopped the goods, already damaged, in transitu. The insurers contended that the stoppage in transitu rescinded the con- tract, and put an end to the purchaser's interest in the goods, so that he had sustained no damage. The assignees contended that the bankrupt retained the general property in the goods. The King's Bench took time to consider, and decided in favour of the insurers; but it appears from Mr. Baron Parke's statement, in James v. Grif- fin (e), that they decided it on the special ground, that in this case the only appropriation of the goods was that accompanying the parting with possession, and that, as the stoppage in transitu at all events put the party in the same position as if he had not parted with the possession, it must undo the appropriation that accom- panied that parting with possession, so that the goods, which were in fact lying shattered and valueless on the beach at Elsinore, were, in contemplation of law, in the same position as if they had never left the vendor's warehouses at St. Petersburg. It seems a fair inference, that the Judges who. adopted such a very artificial distinction, in order to avoid deciding what was the effect of stoppage in transitu, were not able to agree in forming their judgment on the general question. (a) Hodgson v. Loj), 7 T. R. 455, ante, p. 320. (6) Feize v.' Wraii, ?, East, i)5, ante, p. 321. (c) Edimrds v. Brtwcr, '> M. & W. 375. (d) Clcuj V. Harrison, 10 B. & C. 99, (e) James v. Griffin, 2 M. & W. 632, f2218) Ch. III.^ REMEDIES. 347 In Gibson v. Garruthers (/), in 1841, the Court of Exchequer differed, in a case which, though not directly involving this point, yet threw considerable light on their Lordships' opinions upon it. In that case, Harris had agreed with Carruthers and Co., that he should charter a ship, and send her out to Odessa, that Carruthers and Co. should there load her with linseed, and have the bills of lading made out to their order, and that Harris should pay the price on the receipt of the invoice and bill of lading. Harris did send out the vessel, but became bankrupt before her arrival, and Car- ruthers and Co. refused to load the vessel. The question in the cause was, whether the assignees of the bankrupt *could [*482] maintain an action for this refusal. It is clear that no question about stoppage in transitu was directly involved in this ; the goods were never even appropriated, far less put in transitu, and what the defendants sought was, to consider the insolvency an excuse for not proceeding with an executory contract. But the subject was anal- ogous to that of stoppage in transitu, and Lord Abinger delivered a very interesting judgment, in which he assumes that Carruthers and Co. might, if they had put the goods on board, have altered the consign"ment and stopped them in transitu, and that if they had done so, it would have operated as a rescission of the contract, and on these assumptions, he argues very convincingly, that they must have a right to rescind the contract before putting the goods on board ; for this, amongst other reasons, he thought that the plain- tiffs could not recover. ,The other three Judges, Parke, B., Gur- ney, B., and Eolfe, B., were of a different opinion. They pointed out that there was not to be any transitus, properly so called, in this case, as Carruthers and Co. were to keep the control of the goods till payment, and they confine their judgment to the single point, that bankruptcy or insolvency does not by itself render an executory contract voidable, at the election of the solvent party. But though they in express words avoid deciding what the effect of stoppage in transitu would have been, it is not too much to say, that the tendency of their reasoning, and especially of that of Parke, B., is to show that stoppage in transitu does not do more than re- store to the vendor a security for the unpaid price, and does not re- scind the contract. In Wentworth v. Outhwaite (g), in 1842, the point was discussed before Lord Abinger, Parke, B., Alderson, B., and Eolfe, B., and the Court then, though not deciding the point, intimated that Lord Abinger thought that, subject to some qualifications, stop- page in transitu did operate as a rescission of the contract, and that the other three Judges were strongly inclined to think, that its ef- fect was only to replace the *vendor in the same position as [*483] if he had not parted with the possession, and entitle him to hold the goods until the price was paid down. (/) Gibson v. Carruthers, 8 M. & W. 321 : 11 L. J. Ex. 145. (g) WentwoHU v. Outhwaite, 10 M. & W. 436; 12 L. J. Ex. 172. (2219) 348 REMEDIES. [Ft. III. In that case the goods were despatched in two parcels, by two different carriers; one parcel was stopped in transitu, the other reached their destination. The question was, what effect this par- tial stoppage in transitu had upon the insolvent's property in the other parcel. Parke, B., in delivering the judgment of the Court, said, " What the effect of stoppage in transitu is, whether en- ' tirely to rescind the contract, or merely to replace the vendor in ' the same position as if he had not parted with the possession, and ' entitle him to hold the goods until the price be paid down, is a ' point not yet finally decided, and there are difficulties attending 'each construction. If the latter supposition be adopted (as most ' of us are strongly inclined to think it ought to be, on the weight ' of authority), the vendor is entitled to retain the part actually ' stopped in transitu, till he is paid the price of the whole, but has ' no right to retake that which has arrived at its joui-ney's end. ' His right of lien is reverted on the part stopped but no more. ' My Lord Chief Baron has expressed an opinion to which he still ' adheres, that the contract is rescinded by a stoppage in transitu, ' but he does not think that this affects the right of the vendee to ' retain that portion of the goods which have been actually deliv- ' ered to him, or in other words, have reached the place of their 'destination, more especially when the goods and the price may be apportioned, as in the present case, and a new contract be im- plied from the actual delivery and retention of a part." It is to be observed, that Lord Abinger, whilst holding that stop- page in transitu rescinded the contract, yet did not hold that this reaoission was complete, or to be followed by all the consequences which attend a rescission. He never had occasion during his life to explain what the precise force of these qualifications was, but it seems probably that he would, if called upon to explain his views, [*484] have said, as he hinted in *Gibson v. Carruthers (h), that stoppage in transitu was an arbitrary rule, adopted for the advant- age of trade, and that no common law phrase could exactly express its effect, but that "rescission" came nearest to it, but that such qualifications must be attached as were by usage found to be for the advantage of trade. But, however doubtful it may have been formerly, it seems to be clear law now that stoppage in transitu is not a rescission of the contract (i). [Hitherto the rights which the vendor has over the goods before they have come into the vendee's possession, and the vendor's right to withhbld delivery, to stop in trausitu, to retake possession, to resell and to rescind have been the chief subject of investigation. It is now proposed to consider the other remedies which are available (A) Gibson V. f'arnifltcrs, 8 M. & W. 321, ante, p. 481. (i) Per C;iirns, L..T., in SchoUmans v. Lancashire d- Yorkshire By. Co., L. E. 2 Ch. Ap. 340; .JG L. J. Ch. 366. (2220) Ch. III.] REMEDIES. 349 to the party failed against where there has been a breach of con- tract. It is usual to speak of the failure of either party to do what he has promised to do as " a breach of the contract." Correctly speak- ing, it is the promise to do so something which has been broken, the contract with all its liabilities remains binding. The rights and remedies of either party, where there has been a breach of con- tract are so closely connected that it would be mere repetition to consider them separately. In the first place it will be desirable to refer to the effect which a condition precedent has upon the position of the parties. In the case of a simple bargain and sale, the -vendee cannot be called upon to pay the price of the goods until the two implied conditions pre- cedent, viz., that the property in the goods shall have been passed to him, and that the vendor shall have delivered or tendered them, shall have been performed.- If there are no special terms in the contract the property passes to the vendee as soon as the bargain is con- cluded, and the goods are then at the vendee's risk and he must pay for them; but it may be that the parties to the contract have agreed that the property shall not pass until *some event has hap- [*485] pened. In such a case the happening of that event is a condition precedent to the passing of the property, and to the vendee's obli- gation to pay. When the property has passed, the vendee is not liable to pay for the goods until the vendor delivers or tenders them. But if the vendor is unable to tender them, in consequence of the goods hav- ing perished, he is in law released from his obligation to tender, and the vendee must pay for the undelivered goods if the property had passed to him, on the principle laid down in Taylor v. Caldwell {k), in 1863, " The principle seems to us to be that in contracts " in which the performance depends on the continued existence of " a given person or thing, a condition is implied, that the impossibility " arising from the perishing of the person or thing shall excuse the "performance (I). If the party who has a right to avail himself of a condition pre- cedent has waived it, or prevented it from happening or being per- formed (m), he cannot afterwards avail himself of it. If the ven- dee refuses before the vendor tenders the goods to accept them when tendered, the vendor may at once elect to consider the vendee's re- fusal as a breach of contract, and bring his action for damages for the breach before the time for performance has arrived, or the vendor may decline to consider the refusal as a breach, and in that, case the contract cannot be considered as broken, and each party is bound to do all that he has undertaken to do (n). If the vendor or the vendee (7c) Taylor v. Caldwell, 3 B. & S. 826 ; 32 L. J. Q. B. 164. {I) See the cases mentioned in the note, ante, p. 230. 'm) Mackay v. Dick, 6 Ap. Ca. 251. n) Post, p. 467. (2221) 350 REMEDIES. [Ft. III. refuse to perform his part., the other party need not actually tender the goods or the price. He shows a good cause of action if he can prove that he was ready and willing to do so. In the case of Ripley v. M'Clure (o), in 1849, the contract was, that the plaintiff, to whom a cargo of tea was to be consigned from [*486] China, was to sell and deliver one third of it to *the defendant in Belfast as soon as it should there arrive. Before the arrival of the cargo the defendant became dissatisfied with the contract, and a cor- respondence ensued, from which the plaintiff concluded that the de- fendant did not intend to fulfil his contract, and sold the tea on its arrival without tendering, and brought this action against him for breach of contract. In delivering the judgment of the Court oa the motion for a new trial, Parke, B., said that the question left to the jury was, " Whether there was a refusal at any time, and whether "that refusal had been subsequently retracted; and the jury having " found, as we think they were warranted by the evidence to do, " that it had not, there was certainly evidence of a continual refusal " down to and inclusive of the time when the defendant was bound " to receive, which would render the defendant liable, if all the con- " ditions precedent had been performed or waived (p)." And when Lord Campbell, C. J., was delivering judgment in Cort v. Ambergate Raihuay Co. (q), he said that it was decided in Eipley v. M'Clure (o), "that a refusal by the defendant before the arrival of '" the cargo to perform the contract was not of itself necessarily a " breach of it, but that such refusal, unretracted down to, and in- " elusive of the time when the defendant was bound to receive the " cargo, was evidence of a continuing refusal and a waiver of the " condition precedent of delivery, so as to render the defendant "^liable for the breach of contract." Next came the leading case of Cort v. Ambergate Railway Co. (q), in 1851, where the plaintiffs had contracted to supply the defend- ants with a large quantity of railway chairs. They delivered some of them, and thea the defendants declined to receive any more. For the purpose of enabling themselves to carry out their contract, the plaintiffs had gone to considerable expense in buildings. The plaintiffs sued the defendants for damages for hot accepting, and the defendants pleaded by the way of defence that the plaintiffs had [*487j never *tendered the chairs, and that they had not been pre- venod tf rom doing so by them. Lord Campbell, C. J. , on the motion for a new trial, said it was not denied that if the defendant's would have accepted and paid for the chairs the plaintiffs would have supplied them, and continued, "We are of opinion, however, that the jury " were fully justified upon the evidence in finding that the plaintiffs "were ready and willing to perform the contract, although they " never made and tendered the residue of the chairs." (o) Ripley V. M'Clure, 4 Ex. 345 ; 18 L. J. Ex. 419. (p) See also Planche v. Colburn, 8. Bmg. 14. (q) Cort V. Ambergate By. Co., 17 Q. B. 127 ; 20 L. J. Q. B. 460. (2222) Ch. I1IJ\ REMEPIES. 351 In Frost v. Knight (s), in 1872, Cockburn, C. J., delivering a judgment in which Keating and Lush, J. J., concurred, said {t), " The law with reference to a contract to be performed at a future 'time where the party bound to performance announces prior ' to the time his intention not to perform it, as established by the ' cases of Hoohster v. De la Tour (u), and the Danube and Black ' Sea Company v. Zenos (x), on the one hand, and Avery v. Bow- 'den (y), Reed v. Hoskins (z), and Baricick v. Buba (a), on the ' other, may be thus stated. The promisee, if he pleases, may ' treat the notice of intention as inoperative, and await the time ' when the contract is to be executed and then hold the other party ' responsible for all the consequences of non-performance. But in ' that case he keeps the contract alive for the benefit of the other ' party as well as his own; he remains subject to all his own obliga- ' tions and liabilities under it, and enables the other party not only ' to complete the contract if so advised, notwithstanding his pre- ' vious repudiation of it, but also to take advantage of any super- ' vening circumstance which would justify him in declining to com ' plete it. "On the other hand, the promisee may, if he thinks proper, ' treat the repudiation of the other party as a *wi'ongful put [*488] ' ting an end to the contract, and may at once bring his action as 'on a breach of it; and in such an action he will be entitled to ' such damages as would have arisen from the non-performance of ' the contract at the appointed time, subject, however, to abatement ' in respect of any circumstances which may have afforded him the 'means of mitigating his loss." The words "a wrongful putting an end to the contract " were probably used only in the sense of breaking the contract and not as rescinding it. But there is nothing to prevent the parties from introducing into their agreement any stipulations or conditions they may think de- sirable: and these stipulations may make the obligation of either party to be independent or what would otherwise have been an im- plied condition precedent. Thus, if the parties think well to agree to it, they may agree that the vendee shall pay the price at once, and this quite indepen- dently of where the property is, and of whether the goods have been tendered or not. And on the other hand they may agree that the vendee shall not be called upon to pay the price, although the prop- (s) Frost V. Kniffht, L. K. 5 Ex. :!22; L. E. 7 Ex. U; 39 L. J. Ex. 277; 41 L. J. Ex. 78. (t) L. E. 7 Ex. 112; 41 L. J. E.x. 79. M HochJsler v. De la Tour, 2 E. &B. 678; 22 L. J. Q. B. 455. [x) Danube and Black Sea Co. v. Zenos, 11 C. B. N. S. 152; 13 C. B. N. S. 825;. 31 L. J. C. P. 84; 31 L. J. C. P. 284. (y) Avery v. Bowden, 6 E. & B. 953; 26 L. .7. Q. B. 3. Iz) Reid V. Hoskins, 6 E. & B. 953; 26 L. J. Q. B. 5. (a) Barwick v. Buia, 2 C. B. N. S. 563; 26 L. J. C. P. 280. (2223) 352 REMEDIES. [Pt. III. erty has passed to him and the goods have been delivered, until the happening of some event, as in the case of a sale on credit. The extent to which the obligations of the parties are within their own control may be seen from the judgment of Blackburn, J., in the case of the Calcutta Co. v. De Mattos (b), cited on page 235. In Dunlop v. Grote (c), in 1845, the defendants had, in March, contracted to buy from the plaintiffs 1000 tons of iron to be deliv- ered before the end of April, "and if the delivery of the said iron should not be required by the defendants on or before the 30th day of April then next ensuing, the said iron was to be paid for by the defendants on the day and year last aforesaid." The defendants paid a portion of the price and refused to pay the balance. Cress- [*489] well, J., held *that the plaintiffs were entitled to recover the whole sum. And in Castle v. Play ford (d), in 1870, the defendant agreed to purchase from the plaintiffs a quantity of ice, the vendors " for- warding bills of lading to the purchaser; and upon receipt thereof the said purchaser takes upon himself all risk and dangers of the seas, rivers, and navigation of whatever nature or kind soever; and the said H. H. Playford agrees to buy and receive the said ice on its arrival at ordered port * * * and to pay for the same in cash on delivery, at and after the rate of 20s. sterling per ton of 20 cwt. weighed on board during delivery." * * * The plaintiffs shipped a cargo, and forwarded the bill of lading to the defendant by whom it was received. The ice was lost during the voyage and the defendant refused to pay for it. It was held on Appeal by Cookburn, O. J., Willes, Blackburn, Mellor, Brett, and Grove, JJ., that he was bound to pay for it: Blackburn, J., saying, "The parties in this case have agreed, " whether the property passed or not, that the purchaser should, "from the time he received the bills of lading, take upon himself " all risks and dangers of the seas; and * * * I do not see what risk " he took upon himself at all, unless it was this that he said, ' If the "'property perishes by the dangers of the seas, I shall take the risk "'of having lost the property, whether it be mine or not.' " (e). It may be that although the condition precedent which has not been performed was something to be performed by one of the parties to the contract, yet if it was merely a condition, and not accom- panied by a promise by that party to perform it, that party will not be liable to the other fur the non-performance. The question is simply, has that person promised to perform it, or promised or un- dertaken that it shall be performed; if he has, he is liable in dam- Ib) The Calcalta Co. v. T)r Motion, ?,2 L. J. Q. P.. 321. (c) Dunlop V. Grote, 2 Car. & Kir. 15;;. (d) Castle v. Plmj/ord, L. E. 5 Ex. 1G5 ; :i!) L. J. Ex. 150 ; L. E. 7 Ex. 98 ; 41 L. J. Ex. 44. (e) See also Martineau v. KitcU-ng, L. E. 7 Q. B. 436 ; 41 L. J. Q. B. 227, anU, p. 182 ; and Tregelles v. Sewell, 7 H. & N. 574, ante, p. 233. (2224) Ch. III.} REMEDIES. 353 ages if he *does not perform it or it is not performed. If [*490] the contract was merely that if he performs it or if it happens then certain results are to follow, he is not liable. Thus in Boyd v. Sijfkin (/), in 1809, the vendee sued the vendor for not delivering hemp which by the contract was to be delivered when it should arrive by a certain vessel. The vessel arrived but with no hemp on board, and the plaintiff was nonsuited {g). Vemede v. Weber (h), in 1856, was an action for not delivering. The contract was in these terms, " Bought for account of Messrs. Vernede and Company, of Mr. 0. F. Weber, the cargo of 400 tons (provided the same be shipped for sellers' account), more or less, Aracan Necrensie rice * * * at lis. 6d. for Necrensie, or at lis. for Larong, the latter quantity not to exceed 50 tons." The cargo was found on arrival to consist of 285 tons of Larong and 159 tons of Latoui-ie. And the plaintiffs alleged as the defendant's breach of contract, that the cargo was not Aracan Necrensie. But the Court of Exchequer was of opinion, that there was no absolute warranty that the rice which was shipped should be Aracan Necre- nise, but was subject to the proviso that such a cargo should be shipped (i). These cases may be contrasted with Hale v. Rawson (k), in 1858, , which was an absolute contract to deliver, provided the ship should arrive, whether the goods were on board or not. The ship ar- rived, but with no goods on board, and the buyer brought this action for damages for not delivering goods according to contract. The sale was of 50 cases of East India tallow, to be delivered on the safe arrival of the *' Countess of Elgin.' The defendants [*491] pleaded that the ship had arrived without any tallow on board without any negligence on their part. The plaintiffs demurred, on the ground that the defendants had contracted to deliver uncon- ditionally. The Court gave judgment for the plaintiff, saying that " where the agreement is absolute, or conditional on an event which " happens, the vendor will be liable for a breach, although he could "not help the non-performance (Z)." , And it is for the person who wishes to avail himself of his rights which are dependent on the happening of a condition precedent to show that the condition has happened, or that the happening of it has been prevented by the opposite party. (f) Boyd V. Siffkin, 2 Camp. 326. (g) See ante, p. 231 ; and Hawes v. Eumhle, 2 Camp. 327, n. ; Idle v. Thornton, 3 Camp. 274; Johnson v, Macdonald, 9 M. & W. 601 ; 12 L. J. Ex. 99 ; Lovatt v. Hamilton, 5 M. & W. 639. (h) Vemede v. Weber, 1 H. & N. 311 ; 25 L. J. Ex. 326. (i) See also Smith v. 3fyers, L. R. 5 Q. B. 429 ; L. E. 7 Q. B. 139 ; 39 L. J. Q. B. 210; 41 L. J. Q. B. 91, ante, p. 237; and other cases on conditions precedent. (fc) ffale v. Rawson, 4 C. B. N. S. 85 ; 27 L. J. C. P. 189. (0 See also Gorrissen v. Ferrin, 2 C. B. N. S. 681 ; 27 L. J. C. P. 29. 23 CON. or SALE. (2225) 854 REMEDIES. [Ft. III. In Atkinson v. Smith (m), in 1845, the defendants liad agreed to purchase from the plaintiffs 30 packs of Cheviot fleeces, and to ac- cept a bill for 250?. and deliver to the plaintiff some coarse v?oollen clothes called noils. The plaintiff delivered a part only of the fleeces ; and the Court held that the contracts v^ere not independent, and that the plaintiffs could not sue the defendants for non-deliveiy of some of the noils, without proof of delivery or tender of the rest of the fleeces. And in Bankart v. Bowers (n), in 1866, by agreement the plain- tiff v?as to purchase certain lands and minerals from the defendant, and the defendant w^as to jmrchase from the plaintiff all the coal he might require from time to time at a fair market rate. The Court held that the acts were to be concurrent, and that the plaintiff could not sue the defendant for not taking the coals without performing his par,t of the agreement. Having considered shortly the effect of express stipulations as to payment, delivery, &c., on the remedies of the parties, it is pro- L*492] posed now to consider in what way the parties may *assert their rights, and it will be convenient in the first place to consider the position of the vendee where the vendor does not tender the goods. The vendee may in some very exceptional cases compel the vendor to perform his contract specifically, that is to deliver those very goods; but generally speaking he cannot do so, the rule being that where damages will afford an adequate compensation for the breach, the vendee cannot get a decree for specific performance. Cases where specific performance has been decreed are so uncom- mon that it is sufficient here to refer to the case of Ciiddee v. Rutter in White and Tudor's Leading Cases in Equity, Vol. I., where the learning on the subject will be found. By section 2 of the Mercantile Law Amendment Act of 1856 (o), it was enacted that, " In all actions and suits 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 re- " cover, find by their verdict what are the goods in respect of the "non-delivery of which the plaintiff is entitled to recover and which " remain undelivered; what (if any) is the sum the jDlaintiff 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 Coui't or any Judge thereof, at their or "his discretion, on the application of the plaintiff, shall have power (m) Atkinson v. ,S'HH77i, 14 M. &W. 695; 15 L. J. Ex. 59. See also Brodgen V. MarrioU, •?. Eing. N. C. 473, in 1836, 3 Bing. N. C. 88; Thurndl v. Balbimie, 2 M, & W. 78(i, in IKiT. (w) Bankart v. Bowers, L. E. 1 C. P. 484. (o) 19 & 20 Vict. c. 97. (222(;) Ch. in.\ REMEDIES. 355 " 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 plain- " tiff as aforesaid, of the said goods, without giving the defendant " the option of retaining the same upon paying the damages as- " aessed; 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 as " aforesaid, shall otherwise order, *the sheriff, or other of- [*493] "ficer 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 de- " liver 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." The vendee's usual remedy where the vendor fails to deliver, is an action to recover damages from him for his failure to deliver ac- cording to contract: of this many examples will be found in the chapter on Conditions Precedent. By the third section of the Com- mon Law Procedure Act of 1852 (p), it has become unnecessary to mention any form of action in the writ. Prior to that Act the writ stated whether the action was in trover or assumpsit, &c., and in reading the cases it is important to bear in mind that the plaintiff sometimes failed in one form of action where he would have suc- ceeded if he had brought it in another. Such a case merely showed that that.particular form of action would not lie. If both parties are in default, then neither party can bring his action against the other, if the performance by each party of his own undertaking is in law. a condition precedent to the obligation of the other party to perform his undertaking, as in Atkinson v. Smith (q), and Bankart v. Bowers (r). But where the contracts are independent, then either party may bring his action against the other for non-performance, although he has not performed his own part. And if the price or any part of.it has been paid, but the goods have not and should have been delivered, the money paid for the goods not delivered may be recovered -back again. *Thus in Devaux v. Conolly (s), in 1849, the plaintiffs in [*494] London agreed to purchase from the defendant at Singapore, 175 tons of terra japonica, and gave their acceptances for the price on receipt of the bills of lading. When it arrived and was weighed there were 20 tons short, and the Court held that th e plaintiffs were (p ) 15 & 16 Vict. c. 76. Iq) Atkinson v. Smith, 14 M. & W. 695; 15 L. J. Ex. 59. (r) Bankart v. Bowers, L. R. 1 C. P. 484. (s) Devaux v. Ck>nolly, 8 C. B. 640; 19 L. J. C. P. 71. (2227) 356 REMEDIES. \Pt. III. entitled to recover the amount overpaid as upon a partial failure of consideration. Covas V. Bingham, (t), in 1853, was an action in which the pur- chaser sought to recover a part of the purchase-money which he had paid, the bought note was, "Messrs. John Bingham and Co., I have this day sold to you, for account of Mr. Stamaty Covas, the cargo per ' Prima Donna ' * * * now at Queenstown, as it stands, consisting of about thirteen hundred quarters Ibraila Indian corn, at the price of thirty shillings per imperial quarter * * * The quantity to be taken from the bill of lading." The quantity accord- ing to the bill of lading was 1667| quarters, for which amount the plaintiffs paid. But when the ship was unloaded, there turned out to be only 161-1 J qrs. on board, or about 53 qrs. less than the amount paid for. But the Court held that the purchaser was bound to pay for the quantity named in the bill of lading, and ran the risk of that quantity being more or less than the actual quantity on board. And corresponding to this remedy is the vendor's right to sue the vendee for not accepting the goods; of this several examples will be found in the chapter on Conditions Precedent. The case of Chinery v. Viall (u), in 1860, is an authority that the plaintiff cannot by suing in trover, get greater damages than by suing for damages for breach of contract. There the plaintiff had purchased from the defendant forty-eight sheep at fifty-three shil- lings each. He took away and paid for five of them, and some days afterwards he called for the remaining forty -three, and found that [*-iy5] the *defendant had resold them. The plaintiff then brought this action against the defendant, declaring in trover in one count, and in another for not delivering the sheep, and recovered a verdict for 118/. 19s. the full value of the forty -three sheep on both counts. The jury also found that the actual damage sustained by the plain- tiff^ was 5Z. On the motion to reduce the verdict to 5Z., Bramwell, B., said, that the sheep had been resold before the vendee was in default, as it was a sale on credit, but that the plaintiff was not en- titled to recover more in trover than the actual damage he had sustained, " the principle deducible from the authorities being that " a man cannot by merely changing the form of action entitle him- " self to recover damages greater than the amount to which he is in '' law entitled, according to the true facts of the case, and the real " nature of the transaction. Here the result is that the plaintiff is "entitled to recover 5/. only (.r)." Having considered the position of the parties where the vendor has not tendered the goods, the next question is what are their rights where the vendor does tender. It will be convenient to ex- amine in the first place those cases in which the property in the m Coi'iis V. Binqlmm, 2E. & B. 83fi; 2:5 L. J. Q. B. 26. \u) Chinery v. Viall, 5 H. & N. 288; 29 L. J. Ex. 180. See also Johnson v. Laiic. and York Eij. Co., 3 C. P. D. 499. (2228) Ch. III-I REMEDIES. 357 goods has passed to the vendee. In that case he cannot return them. After accepting them so that the property in them has passed to him, he cannot, when he comes to examine them and dis- covers that they are not what he contracted for, call upon the vendor to take them back again. The laj? on this point was laid down in the leading case of Street v. Blay (y), in 1831, which has been fol- lowed in many cases. There the plaintiff sold a horse to the de- fendant with a warranty of soundness, the defendant resold it to Baily, who parted with it in exchange to Osborne, who sold it back to the defendant. The defendant then finding that the horse was unsound, returned it to the plaintiff. The horse was unsound at the time of the first sale. The Court held that the defendant could not compel the plaintiff to take back the horse, after having accepted it and resold it, which *were acts of ownership in- [*496J consistent with the purposes of a trial. In Parsoiis v. Sexton (z), in 1847, the vendor sued for the price of an engine sold in the following circumstances. The engine had been erected, and subsequently taken to pieces, and was lying in the plaintiffs' works, where the defendants' foreman saw and examined it. The plaintiff then made an off'er to sell, it as follows: " I, James Parsons, do hereby agree to provide a fourteen-horse engine, and sixteen-horse boiler with fittings and everything complete, for the sum of 260Z." The defendants accepted on the terms following f " In consideration of your supplying us with a certain fourteen- horse engine which our foreman has inspected, &c." The engine was delivered at the defendants' works, but the plaintiff was unable to make it work up to fourteen horse-power, and the defendants re- jected it. It was held that, assuming there was a warranty as to power, and that there was a breach of it, that that was not an an- swer to a claim for the price, although it might be the ground of a set off or cross- action. And in Dawson v. Collis (a), in 1851, the sale was' of 31 pockets of hops warranted equal to sample, the Court held that on the sale of a specific chattel the buyer cannot refuse to accept it because it is found not to correspond with the sample. In delivering judgment in Behnw. Burness (b), in 1863, Williams, J., said, " Accordingly, if a specific thing has been sold with a war- " ranty of its quality, under such cui'oumstances that the property " passes by the sale, the vendee having been thus benefited by thp. " partial execution of the contract, and become the proprietor of " the thing sold, cannot treat the failure of the warranty as a con- " dition broken (unless there is a special stipulation to that effect "in the contract, see BannernMn v. White (c), but must have re- ' (y) Street v. Blay, 2 E. & Ad. 456. (2) Parsons v. Sexton, 4 C. B. 899; 2 C. &. K. 266. (a) Dawson v. Collis, 10 C. B. 523; 20 L. J. C. P. 116. (6) Behn v. Burness, 3 B. & S. 755; 32 L. J. Q. B. 204. (cj Bannerman v. White, 10 C. B. N. S. 844; 31 L. J. C. P. 28^ next page. (2229) 358 EEMEDIES. [Pt. III. [*497] " course to an action for damages in respect of the *breach " of warranty. But in cases wLere the thing sold is not specific, " and the property has not passed by the sale, the vendee may re- " fuse to receive the thing proffered him in performance of "the contract, on the ground, that it does not correspond with "the descriptive statement, or in other words, that the. condition "expressed in the contract has not been performed! Still, if he re- " ceives the thing sold, aiid has the enjoyment of it, he cannot af- " terwards treat the descriptive statement as a condition, but only as " an agreement, for a breach of which he may bring an action to "recover damages." In Bannerman v. White (d), in 1861, where the vendor sued for the moiety of the price of hops delivered, which corresponded with the sample, but in the cultivation of them sulphur had been used, although at the time of the sale the plaintiff had stated that sul- phur had not been used, and it was admitted that the defendant would not have bought the hops if he had known this, the Court held that he might refuse to pay the price, as the intention of the parties was that if sulphur had been used there should be no con- tract. It was the condition upon which the defendant contracted. When the vendee has accepted the goods, and subsequently finds that there has been a breach of warranty, or in other words, that the goods delivered are not in all respects what the vendee contracted for, then, although he cannot return them and revest thfe property in the vendor, he may bring an action for breach of warranty. And if he has not yet paid for them, he may wait until the vendor sues him for the price, and then set off the vendor's breach as matter in reduction of the vendor's claim. In PateshallY. Tranter (e), in 1835, where the purchaser kept a horse, warranted sound, for several months, without notifying to the vendor that it was unsoiind, it was held that he had not lost his right to sue on- the warranty (/). [*498] *In Shepherd v. Kain [g), in 1821, the defendant sold the plaintiff " a copper-fastened vessel," " as she noV lies, to be taken with all faults, without allowance for any defects whatsoever." She was in fact only partially copper- fastened, and was not what was known in the trade as a copper- fastened vessel, but the plaintiff had a full opportunity to examine her before buying her. The plaintiff brought this action for breach of warranty, instead of rejecting the ship, as he probably might have done, and obtained a verdict, which the Court refused to set aside, on the ground that " with all faults " meant will all faults consistent with the ship being a cop- per-fastened ship, whereas she was not a copper- fastened ship at all. (d) Bnnnermiin v. White, 10 C. B. N. S. 844, 31 L. J. C. P. C!8. (e) Fiilcshill V. Tranter, W Ad. & El. Kl.'I (/) Sec also Fielder \. Stnrlcin, 1 H. Bl. 17; Biiehanan v. Parnshaw, 2 T. E. 74.-). {g) Stieplierd v. Kain, 5 B. & Aid. 240. (22:!0) Cfl. III.] REMEDIES. 350 Taylor v. Bullen (/i), in 1850, was a case very similar to Shepherd V. Kain (g). The sale was of a vessel as she lay, with all faults, but the defendant, who was the vendor, had stipulated that no al- lowance should be made for" any defect or error whatever." The Couit held that there was no warranty, and gave judgment for the defendant, on the ground that if the vessel was not what she was warranted, the vendor had either committed a fraud or an error; if a fraud, the plaintiff had another remedy; if merely an error, the defeadant's liability was excluded by the terms of the contract. In Allan v. Lake (i), in 1852, the defendant had sold turnip seed, which he warranted to be Skirving's Swedes. The seed turned out not to be such, and the plaintiff obtained a verdict for breach of war- ranty, which the Court upheld. Erie, C. J., said : — " When the ven- " dor gives a description of the properties of an article, it is a ques- " tion for the jury whether such a description is a mere commenda- " tion of the article, or a direct representation that he sells it as " being the particular article described." And in Wieler v. Schilizzi (k), in 1856, the sale was of " Calcutta linseed tale quale," but the seed was found to contain fifteen per cent, of seeds which were not linseed. The *question left to [499] the jury was, whether there was such an admixture as to alter the distinctive character of the article, and the jury found a verdict for the plaintiff. This was held to be no misdirection. Siinond v. Braddon (I), in 1857. The contract was : — " Bought for account of, &c., the following cargo of Arracan rice, per 'Severn,' &c. The cargo to consist of fair average Nicranzi rice, the price of which is to be lis. Qd. per cwt., with a fair allowance for Larong, or any other inferior description of rice (if any), but the seller engages to deliver what is shipped on his account, and in conformity with his invoice." The jury found that the rice delivered was not fair average Nicranzi rice, and the plaintiff obtained a verdict, which the Court upheld. Cockburn, C.J., said that the contract amounted " to a warranty " on the part of the seller that the cargo should consist of fair aver- " age Nicranzi rice, with a stipulation, introduced for the benefit of " the buyer, that he may, if he chooses, take the cargo, such as it is, " and claim a deduction in price for the inferior quality" (m). And in Davis v. Hedges (w), in 1871, it was decided by Hannen, Blackburn, and Lush, JJ., that the vendee is not bound to set off his damages when sued for the price, but may pay the full amount of (h) Taylor Y. Bullen, 5 Ex. 779; 20 L. J. Ex. 21. (i) Allan v. Lake, 18 Q. B. 560. (k) Wieler v. .SrhiUzzi, 17 C. B. 619; 25 L. J. C. P. 89. (0 Simmd V. Braddon, 2 C. B. N. S. 324; 26 L. J. C. P. 198. (m) See also Josling v. Kingsford, in 1863, ante, p. 210; 13 C. B. N. S. 447; 32 L. J. C. P. 94. (ft) Davis V. Hedges, L. E. 6 Q. B. 687 ; 40 L. J. Q. B. 276; Broom v. Davis, cited 7 East, 480; Cormack v. Gillis, cited 7 East, 481. (2231) 360 REMEDIES. [Ft. III. the vendors' claim, and is not prejudiced by having so done when he brings his action against the vendor for breach of warranty. The leading case on the subject that the vendee may set ofp his damages, in an action for the price by the vendor, is Mondel v. Steel (o), in 1841. Parke, B., in delivering judgment, said : — " Formerly " it was the practice, where an action " was brought for an agreed " price, of a specific chattel sold with a warranty, or of work which [*500] " was to be performed *according to contract, to allow the " plaintiff to recover the stipulated sum, leaving the defendant to a " cross action for breach of the warranty or contract; in which ac " tion, as well the difference between the price contracted for and " the real value of the articles or of the work done, as any conse- " quential damage might have been recovered; and this course was " simple and consistent. But after the case of Basten v. Butter " {p), a different practice, which had been partially adopted before " in the case of King v. Boston {q), began to prevail, and being at- " tended with much practical convenience, has been since generally " followed ; and the defendant is now permitted to show that the " chattel, by reason of the non-compliance with the warranty in the " one case, and the work, in consequence of the non-performance " of the contract in the other, were diminished in value. It must be " considered, that in all these cases of goods sold and delivered " with a warranty, and work and labour, as well as the case of " goods agreed to be supplied according to a contract, the rule " which has been found so convenient is established, and it is com- " petent for the defendant, in all of those, not to set off, by a pro- " ceeding in the nature of a cross-action, the amount of damages " which he has sustained by breach of the contract, but simply to " defend himself by showing how much less the subject-matter of " the action was worth, by reason of the breach of contract; and " to the extent that he obtains, or is capable of obtaining, an abate- " ment of the price on that account, he must be considered as hav- " ing received satisfaction for the breach of contract, and is pre- " eluded from recovering in another action to that extent, but no " more." If the contract was not a sale of an ear-marked chattel, and was an executory one so that the property in the goods did not pass at the time of the contract, then the vendee may refuse to accept them when tendered, if they are not such as the vendor warranted they [*501] should be. If he accepts them, *then, as before, he cannot return them, but has his remedy in an action for damages. It may become a question whether the vendee has accepted the goods, and in cases of sale by sample there is no acceptance until the vendee has inspected the bulk and found it to correspond with the sample; and if, through the acts of the vendor, the inspection is an illusory (o) Mniidd \. Sh-rl, s M. & W. s.ls; 10 L. J. Ex. 426. (p) Basten V. Biilter, 7 East, 479. (q) Kbi'j V. Boston, 7 East, 481, n. Ck. III.^ REMEDIES. 3gl one, the vendee may treat it as no inspection at all, as in the case of Heilbutt v. Hickson (r). The vendee may decline to accept or pay for the goods when tendered, if there is any condition precedent to his obligation to do so which has not been performed. Many examples of this will be found in the chapter on Conditions Precedent. There are two dicta in Shipton v. Casson (s) and in Oxendale v. Wetherell (t), that where a vendor fails to deliver the whole quan- tity contracted for, the purchaser may return the part received as soon a^ the time for delivering is past; but it seems more than doubtful, on principle, whether he could do so if the property had passed to him, in the absence of some agreement, express or implied. It is now well settled that in the sale of goods, specific at the time of the sale, that is ear-marked or identified as the subject-mat- ter of the sale, the vendee cannot put the breach of a warranty on the same footing as an unperformed condition precedent. He "can- not decline to accept ear-marked goods, on the ground that they are not as goods as those contracted for. "Where the goods were ear- marked at the time of the contract, the stipulation as to quality is not a condition precedent uncomplied with, and as such entitling the vendee to reject the goods, but a warranty merely, for the breach of which the vendee may obtain damages. Although, as will be afterwards seen, the law is otherwise in cases where the goods were not specific or ear-marked at the time of the contract. The following extract is from Smith's *Leading Cases (ii), and [*502] states the learned authors' view of the law on the subject with great clearness. " A warranty, properly so called, can only exist "where the subject-matter of the eale is ascertained and existing, " so as to be capable of being inspected at the time of the contract, " and is a collateral engagement that the specific thing so sold pos- "sesses certain qualities, but the property passing by the contract " of sale, a breagh of the warranty cannot entitle the vendee to re- " Bcind the contract and revest the property in the vendor without " his consent. * * * 'g^it where the subject-matter of the sale " is not in existence, or not ascertained at the time of the contract, "an engagement that it shall, when existing or ascertained, possess " certain qualities, is not a mere warranty, but a condition, the per- "formance of which is precedent to any obligation upon the vendee " under the contract, because the existence of those qualities being " part of the description of the thing sold becomes essential to its " identity, and the vendee cannot be obliged to receive and pay for " a thing different from that for which he contracted." And Mr. Benjamin, in his Treatise on Sales (x), says: — "The (r) ffeObult V. Hklcnon, L. E. 7 C. P. 438; 41 L. J. C. P. 228. (s) Shipton V. Casson, 5 B. & C. 378, in 1826. (0 Oxendale v. Wetherell, 9 B. & C. 386, in 1829. (tt) Smith's Leading Cases, 6tli ed., Vol. II., p. 27. (x) 2nd ed., p. 749. . (2233) 382 REMEDIES. [Pt. in. " same reasoning which applies to a thing not yet existing, or not "yet ascertained, would seem equally ajpplicable to goods in a " distant country, or on the high seas, beyond the possible reach of " the buyer's inspection." The case of Hey worth v. Hutchinson (y), in 1867, is a very in- structive one on this point. The defendant bought 413 bal'es of wool, to arrive ex ' Stige,' at lO^d. a pound. " The wool to be guaranteed about similar to samples, and if any dispute arises it shall be decided by the selling broker, whose decision shall be final." When the wool arrived at Liverpool, 180 bales turned out to be worth 2d. a pound less than the sample, and 201 bales l-^-d. a pound less, and 3'2 bales id. a pound. The brokers decided that the [*503J defendant should take *the bales at the reduced prices. The defendants contended that they might decline to accept the wool, as not being about similar to sample. The Court, consisting of Cockburn, C.J., Blackburn, Shee, and Lush, J. J., held that this was a sale of specific wool, with a warranty that the quality was similar to sample, and that the defendants could not reject it, but might bring a cross-action on the warranty, or give the inferiority in evidence in reduction of damages. Blackburn, J., said: — "The " wools are guaranteed about similar to samples. Now, such a " clause may be a simple guarantee or warranty, or it may be a "condition. Generally speaking, when the contract is aa to any " goods, such a clause is a condition going to the essence of 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, according to the case of Moji- " dell V. Steel (z). Here there is, I think, merely a warranty, as " distinguished from a condition." And in the subsequent case of AzemarY. Casella{a), Lord Black- burn said of Heywoiih v. Hutchinson (y), that the wool which ar- rived was of the same kind or character, but inf erior_ only in quality. It is somewhat difficult to reconcile the two cases of Toidmin v. Hedley (b), and Heyicorth v. Hutchinson (y), but possibly in the latter case the stipulation that the brokers should decide disputes may have had some weight. If the vendee has the right to refuse to accept the goods, as where there is some condition precedent not complied with, or the ordinary case of goods delivered on sale or return (c), he must do so in a reasonable time and unequivocally, and he must return them in the same condition as that in which he purchased them. If after a reasonable trial he finds the goods are not up to sample, or not ()/) Jlei/irorihv. Hiilrhinnon, L. R. 2 Q B. 447. (2) Nondcll Y. SIvet, 8 M, & "W. 8r,K; 10 L. J. Ex. 426. (a) Azertmr v. Cnwlhi, L. E. 2 C. P. :;41 and 677 ; 36 L. J. C. P. 124 and 263. lb) TouhnUi v. Hcdleij, ante, p. 2117 ; 2 C. & K. 157. (c) jl/oss V. Sioect, in'lsril, 16 Q. B. 493 ; 20 L. J. Q. B. 167 ; Farktry. Palmer, 4 B. & Aid. 387 ; lUchanlson v. Dmin, 2 Q. B. 318. (2234) Ch. III.\ REMEDIES. 363 what he approves of, he may tell *the vendor so, who must [*504] take the goods away, and they remain at the vendor's risk until he does so (e). In Chapman v. Morton (/), in 1843, the plaintiffs in Dieppe agreed to sell to the defendant at Wisbech, a quantity of oil cake: the de- fendant accepted bills for the cake before its arrival at Wisbech in December. On its arrival he complained to the plaintiffs that it was not up to the sample, and subsequently, on the 24th of January, wrote to them that it was lying at the public granery at their risk, and requesting them to take it back, which the plaintiffs declined to do. In May, the defendant again wrote, saying he would sell the cake, and apply the proceeds in part satisfaction of the dam- ages; and in July, advertised it for sale in his own name, and sold it. The Court held that the defendant had accepted the cake, and Lord Abinger, C.B., said: "We must judge of men's intentions "by their acts, and not by expressions in letters, which are con- " trary to their acts. If the defendant intended to renounce the " contract, he ought to have given the plaintiffs distinct notice at "once that he repudiated the goods, and that on such a day he " should sell them by such a person, for the benefit of the plaintiffs. " The plaintiffs could then have called upon the auctioneer for the "proceeds of the sale. Instead of taking this course, the defendant "has exposed himself to the imputation of playing fast and loose; " declaring in his letters that he will not accept the goods, but at "the same time preventing the plaintiffs from dealing with them as "theirs." In Harnor v. Groves (g), in 1855, the plaintiff agreed to buy twenty-five sacks of flour from the defendant, for which he paid. After using half a sack, he complained that the flour was not as good as he contracted for; he then used two more sacks, and sold another. The Court held that he had dealt with the flour in such a manner as to preclude him from returning it. *ln Lucy v. Mouflet, (/i), in 1860, the action was brought to [*505] recover the price of a hogshead of cider, purchased by the defend- ant, an innkeeper, from the plaintiff. On the 28th of May, the de- fendant had written to the plaintiff, saying that he had tapped the cider and found it inferior to the sample, and that if his customers continued to complain, he should be obliged to return it. To this the plaintiff returned no answer, and the defendant again com- plained by letter on the 21st of June, and on the 24th of June, wrote to the plaintiff to take it away. At that time about twenty gallons had been consumed, and the Court held that the plaintiff's omission to answer the letter, amounted under the circumstances, to ■ — — _. p ■ (e) Okell V. Smith, in 1815, 1 Stark. 107 ; Cook v. Eidddicu in 1844, 1 Car. & Kir. 561. (/) Chapman v. Morton, 11 M. & W. 534 ; 12 L J. Ex. 292. Ig) Harnor v. Groves, 15 C. B. 667 ; 24 L. J. C. P. 5:;. (h) Lucy V. Mouflet, 5 H. & N. 229; 29 L. J. Ex. 118. (22J5) *36-l REMEDIES. [Ft. III. an acquiescence in the defendant's endeavour to make a further trial of the cider. The case of Couston v. Chapman (i), in 1872, arose out of a purchase of wine at an auction. The purchaser, who complained that it was not up to sample, kept it for a greater time than the Court considered reasonable, and he was held liable to pay for it. In Griinoldy v. Wells (k), in 1875, the plaintiff sold four quar- ters of tares to the defendant by sample. They were sent to the defendant, part of way in the plaintiff's cart and the remainder in the defendant's cart. The defendant examined them at once in his barn and finding they were not up to sample, stated that he would not keep them, and that the plaintiff might do what he liked with them. The plaintiff brought this action to recover the price, contending that if the defendant did not mean to accept the goods, he was bound to return them. But the Court held that this view was in- correct. Brett, J., said: "I think that when there is a sale by sam- " pie, and the time for inspection is subsequent to delivery, and the " place of inspection different from that of delivery, then if the " goods are found on such inspection not to be equal to sample, the [*506] "purchaser has a *right to reject them then and there, and " it is the duty of the vendor to get them back thence." Head v. Tattersall (l), in 1871, is an authority, that although the general rule is that the vendee's right to return the goods is gone if he is unable to return them in the same condition in which they were delivered to him, that rule is subject to the qualification that his right is not affected by any of those incidents which may befall the goods either from their nature, or in the course of the exercise by him of those rights over them which the contract gave. A horse was purchased on Monday, and a condition of the sale was that the horse might be returned on the following Wednesday if it did not correspond with the warranty. On the way home, and without any negligence on the part of the plaintiff, the horse hurt itself seriously against the splinter-bar of a carriage, and the plaintiff returned it before ^Vednesday evening. The Court consisting of Kelly, C.B., Bramwell, and Cleasby, BB., held that he had the right to return it, notwithstanding its damaged state, and to recover the price paid. Elphick V. Barnes (m), in 1880, was a case resembling the pre- ceding one. A horse was sold to the defendant on condition' that he should try him for eight days,- and be at liberty to return him at the end of that time if he did not suit. The horse died on the third day, and it was held that the plaintiff could not maintain an action for the price. In Bay v. Barker (n) the return was pre- (i) Cmiston v. Chapman, L. E, 2 Sc. App. 250. (fc) Urimoldy v. Wells, L. E. 10 C. P. 391; 44 L. J. C. P. 202. (?) llniil V. Tattei-sdJI, L. E. 7 Ex. 7; 41 L. J. Ex. 4. (m) Fiplihk V, Biinies, 5 C. P. LX 321; 49 L. J. C. P. 698. (n) Bay v. Bcrkcr, 4 Ex. !>. 282; 4S L. J. Ex. 569. (2236) Ch. IIIP[ ■ REMEDIES. 3gK vented by the act of a third party, and although tnere was no deci- sion on the point, the opinion of the Court seems to be that it was no excuse. Several of those cases which decide that one party is not bound to receive the goods when tendered, are also authorities for the con- verse,— viz., that where he would not be bound to receive any par- ticular goods if tendered, there he cannot compel the other party to deliver them. If one party *is not bound to receive, the r*507] other party cannot, in the absence of an agreement to that effect be compelled to deliver. ' Thus, in the case of Lovatt v. Hamilton (o), in 1839, the pur- chaser brought an action against the vendor for not delivering The sale was of fifty tons of palm oil "to arrive per 'Mansfield ' '' Only seven tons arrived. And the Court held that the contract for the fifty tons was entire, and that the plaintiffs were not entitled to the seven tons which .did arrive. And in Vernede v. Weher (p), in 1856, the contract was to de- hver a cargo of 400 tons of Aracan Neerensie rice more or less, which cargo by agreement might partly consist of Larong rice, but not to a greater extent than fifty tons. The cargo was found to consist of 285 tons of Larong and 159 tons of Latourie. And the Court held that the plaintiffs were not entitled to have any of the rice delivered to them. " We think," said Anderson, B., delivering judgment for himself and Martin, B., "it would have been impossible for the de- "fendant to have insisted upon the plaintiffs accepting a cargo con- "sisting only of a minute portion of Aracan Neerensie rice; for un- "less the cargo was what would substantially satisfy the description "of a cargo of Aracan Neerensie rice, we think that the plaintiffs "could not have been bound to accept." * * * "And if the "plaintiff would not have been bound to accept the cargo brought, "the defendant was not obliged to deliver it, for the contract must "be mutual and reciprocal."] (o) Lomit V. Hamilton, 5 M. & W. G39, ante, p. 231. (p) Vernede v. Weber, 1 H. & N. 311 ; 25 L. J. Ex. 326, ante, p. 490. (2237) 366 DAMAGES. [Pt. III. [*508] *CHAPTER IV. WHAT DAMAGES MAY BE REC(_)VEEED WHERE THERE HAS BEEN A BREACH OF CONTRACT. [When either party breaks the contract the other has a right to recover damages, but it does not follow that he can recover the whole of the loss he has suffered in consequence of that breach. The question is, what are the damages to the plaintiff caused by the defendant's breach which the law will allow the plaintiff to re- cover? The leading case on this subject is Hadley v. Baxendale (a), which although not a case of sale of goods, but of late delivery by a carrier, is a most important one in consequence of the Judges of the Exchequer Court having there laid down certain rules of general application to breaches of contract. In Hadley v. Bavcndale (a), in 1854, the plaintiffs were millers at Grloucester. On the 12th of May the engine shaft in their mill had to be removed in consequence of a fracture, and on the 13th the plaintiffs sent a servant to the defendants, who were carriers, to say that the mill was stopped, and that the shaft must be sent at once to Greenwich, to be used there as a pattern in making a new one. The defendants said that if the shaft was sent by 12 o'clock the next day it would be delivered at Greenwich on the fol- lowing day. Accordingly the shaft was delivered to the defendants before 12 o'clock on the 14th, but was not delivered by them at Greenwich till several days later, and the conseopience was that the new shaft was not delivered at the mill as soon as it otherwise would have been ; the working of the mill was delayed and the profits on the working were lost, and other expenses incidental to the stoppage were incurred, for all of which the plaintiffs sought [*509] to hold the defendants liable, but failed. *Alderson, B., in delivering the judgment of the Excheqiier Court said, "Now we " think the proper rule in such a case as the present is this: — Where "two parties have made a contract which one of them has broken, "the damages which the other party ought to receive in respect of " such breach of contract should be such as may fairly and reason- "ably be considered either arising naturally, i. e., according to the " usual course of thing, from such breach of contract itself, or such " as may reasonably be supposed to have been in the contemplation " of both parties, at the time they made the contract, as the probable "result of the breach of it. Now, if the special circumstances under " which the contract was actually made were communicated by the (a) HadUy v. Baxendale, 9 Ex. 341 ; 23 L. J. Ex. 179. (2238) Ch. IV.} DAMAGES. 3G7 " plaintiffs to the defendants, and thus known to both parties, the dam- " ages resulting from the breach of such a contract, which they would " reasonably contemplate, would be the amount of injury which would " ordinarily follow from a breach of contract under these special " circumstances so known and communicated. But, on the other "hand, if these special circumstances were wholly unknown to the " party breaking the contract, he, at the most, could only be sup- " posed to have had in his contemplation the amount of injury " which would arise generally, and in the great multitude of cases "not affected by any special circumstances, from such a breach of " contract, for, had the special circumstances been known, the parties "might have specially provided for the breach of contract by special "terms as to the damages in that case; and of this advantage it " would be very unjust to deprive them. Now in the present case, if "we are to apply the principles above laid down, we find that the "only circumstances here communicated by the plaintiffs to the de- "fendants at the time the contract was made, were that the article "to be carried was the broken shaft of a mill. But how do these " circumstances show reasonably that profits of the mill must be " stopped by an unreasonable delay in the delivery of the broken ''shaft by the carrier to the third person? Suppose the plaintiffs " had another shaft in their possession put up *or putting [*510] " up at the time, and that they only wished to send back the broken "shaft to the engineer who made it ; it is clear that this would be "quite consistent with the above circumstances, and yet the unrea- "sonable delay in the delivery would have no effect upon the inter- "mediate profits of the mill." And after pointing out that although in the special circumstances of the the case the loss did arise from the defendant's neglect, he proceeded, "these special circum- " stances were here never communicated by the plaintiffs to the de- " fendants. It follows, therefore, that the loss of profits here can- "not reasonably be considered such a consequence of the breach of " contract as could have been fairly and reasonably contemplated "by both the parties when they made this contract. For suchloss "would neither have flowed naturally from the breach of this con- " tract in the great multitude of such cases occurring under ordi- " nary circumstances ; nor were the special circumstances, which, "perhaps, would have made it a reasonable and natural conse- " quence of such breach of contract, communicated to, or known by "the defendants." This case has since been followed in cases too numerous to be referred to; and the reader is referred for fuller information on the subject to Mr. Mayne's work on Damages. In the case of Gee v. The Lancashire and Yorkshire Railway Co. (6), in 1860, a very important remark was made by Bramwell, B., who, while delivering judgment, referred to the rule in Hadley v. (&) Gee v. Lane. & York. By. O)., 6 H. & N. 211 ; 30 L. J. Ex. 11. (2239) 368 DAMAGES. [Pt. III. Baxendale (c), that damages to be recoverable must be such as the parties must be taken to have contemplated as the probable result of the breach, and said: " I am not sure that another qualification "might not be added vrhich would be in favour of the plaintifp in "this case, viz., that in the course of the performance of the con- " tract, one party may give notice to the other of any particular "consequences which will result from the breaking of the contract, " and then have a right to say, 'If after that notice, you persist [*511] *" 'in breaking the contract, I shall claim the damages which " 'will result from the breach ' " (d). In the case of a sale of goods, the vendor's breach may consist in his having delivered to the vendee an article of less value than the article which should have been delivered, and there the difference in value is the measure of the damages ; or the breach may have consisted. in the failure to deliver any goods at all, and in this case instead of the damages being a difference in value as in the first one, they are what the vendee must pay to obtain the goods in the market, or if necessary from some other quarter. But by reason of having such an inferior article or nothing at all delivered to him, the ven- dee may suffer much greater damages than the difference in value, or the full value, and then the question becomes, are those greater damages such as the parties at the date of the contract must be taken to have contemplated as the probable result of the breach? Or the vendor's .breach may consist in the unpunotnal delivery of the goods. On the other hand, the vendee may have been the party to break the contract, as by refusing to accept the goods when tendered. Here the vendor may by reselling the goods, put himself in the position in which the vendee had contracted to put him, and charge the vendee with costs reasonably incurred in doing so; but he may be unable to resell them, and he may then give evidence of any loss he has suffered; and if that loss is such as the parties must be taken to have contemplated, he may recover it. From these considerations it appears that the value of the thing contracted to be delivered, and of that which was delivered, on the day fixed for delivery, are important considerations. Now the best possible evidence of the value of a thing is what it did or would fetch in the market, or what must have been paid for it if it had been bought there; but if the thing has no market price, then some other evidence of value must be obtained. And the price at which the vendee either agreed to resell it in the ordinary course of busi- [*512] ness, or the *price which by the contract he had agreed to pay for it, may then be the best evidence obtainable (e). But except where the price at which the vendee agreed to buy or to sell the (c)Hadley v. Baxendale, 9 Ex. 341 ; 23 L. J. Ex. 179. (d) See also Simpson v. L. <3 the property, however, may pass presently if the parties so agree, 184 intention that price shall be paid before completion affords an argument that the parties intended the property- also to pass, Ibt cases illustrating this, 184 — 189 where the things to be done by the vendor are such as may be done after the goods are in a deliverable state, the performance is not a condition precedent, 190 tender of the goods is, generally, a condition precedent to the right to payment, 485 estoppel, property by, 190 — 196. See also Estoppel. Pickard v. Scars, 190 representation by a warehouseman that he holds goods to order of plaintiff, 191 warehouseman may make himself responsible to both parties, 195 where two delivery orders were given for the same consignment, 195 express conditions precedent ; generally, 196 — 201 a condition j)recedent may cease to he such and may become availa- ble as a warranty, 200, 501 conditions may be precedent to the right to possession and delivery, 172, 173, 198—230, 347, 380, 485 payment is usually a condition precedent to the right to possession, 141, 171, 172 where a carrier intervenes, 142, 143 goods sent on approval, 141, 190, 205, 501, 503 payment is not a condition precedent where credit is given, 172, i73, 200 waiver of a condition precedent, 200, 485 where the performance has become impossible, 230, 485 prior to the performance of the condition the purchaser has no inter- est in the goods, 190 sale by sample, 190 whether a stipulation is a condition precedent or a warranty is a matter of law, 198. Sec also W ASMASTY . where a covenant goes to the whole of the consideration it is a con- dition precedent, 199 distinction between a condition precedent and a warranty, 200, 210, 501 there may be a condition precedent without any warranty that it shall be performed, 489 as to payment, 201 — 205 cash, 171, 172, 200 by giving a cheque or an acceptance, 156, 202, 226, 231, 237 for each instalment, 205. Sec also below. (2268) INDEX. ^Qfj *** The figures refer to the [*] pages between brackets CONDITIONS PRECEDENT— confareMed. as to quality and condition, 205 — 215 goods packed with other goods, 209. iron bars to be stamped, 211 merchantable condition, 207, 212 right to inspect, 205 right to measure, 205 sales by sample, 205. See Sample. as to quantity, 215 — 224 "about" 216, 222, 223 cargo "believed " to be a certain quantity, 219 •" cargo " of a certain quantity ordered, 223 by instalments, 217, 219, 470 instructions to an agent to purchase and ship a certain amount, 220 more or less," 215 "say," 216 n. "say about," 216 n. "say not less than," 216 n. shipping documents and quantity actually shipped differine. 218 "small cargo," 223 two cargoes ordered, one tendered not according to contract, 223 as to time, 224—230 " as soon as possible," 226 delivery "April 17, complete 8 May," 227 "forthwith," payment in fourteen days, 226 within last fourteen days of March, 225 goods to be shipped " directly," 226 "forthwith," 226 "immediately," 226 "to-morrow," 226 " month " meaning of, 230 name of vessel to fe declared as soon as known, 224 on arrival of a certain vessel, 224, 230 payment on receipt of shipping documents, 225, 233 payment "within one month ;" goods demanded before payment, 226 shipment within a certain time, 227 as to arrival and delivery, 230 — 239 contract conditional on a double event, 232 delivery impossible, 230 " delivered at Harburgh," at a price to include freight ; goods lost before arrival at Harburgh, 233 freight to be paid " on right delivery," 237 "now on passage," 232 "on arrival," 231 payment two months after ' ' landing : ' ' cargo lost, 231 sale of soda believed to be on board ; other soda subsequently put on, 237 ' ' to arrive per ' Mansfield ' ; " goods transhipped to another vessel, 231 "to arrive ex ' Daniel Grant ' ; " ship arrived, no goods on board, 233 "to be delivered at Rangoon," 234 " to be taken from the quay," 239 other conditions precedent, 239 — 241 compliance with the provisions of a statute, 241 policy of insurance, as to amount of, 239 property to pass if goods damaged while in possession of the bor- rower, 240 tender of two of a set of three bills of lading, 240 (2269) 398 INDEX. *«* The figures refer to the [*] pages between brackets. CONDITIONS PRECEDENT— co«3 insolvent before stoppage in transitu can arise, 380 marking goods with his initials, 351 where both vendor and purchaser repudiate the goods, 366 takes subject to infirmities affecting the vendor's title, 169, 170, 426, 461 for value of coins, banknotes, and negotiable instruments, 170 in market overt, 170 of a bill of lading, 385 execution creditor, and trustee in bankruptcy, positions of, con- trasted, 461, n. \ Q- QU.VLITY AND CONDITION, conditions precedent as to, 205 breach as to, 520 QUANTITY, conditions precedent as to, 215 RAILS, 233, 421, 423, 477, 531 RAILWAY CHAIRS, 486 RAILWAY SLEEPERS, 301 (2288) INDEX. 417 *** The flgurea refer to the [*] pages between brackets. EATIFICATION, 85, 105, 107, 109, 120. See also Beokkk.s. EEADY AND WILLING, to tender, pleading, 123, 451, 485 HEADY MONEY, sale for, 171, 172. See Credit. -"REASONABLE TIME," meaning of, 225, 226 return of goods within a, 503 RECEIPT, UNDER STATUTE OF FRAUDS, 17, Sr, RECOVERY BACK, of money paid, 178, 180, 184, 234, 493, 506 REFUSAL, by purchaser to take away the goods, 465 to accept, 495, 500, 503, 507 to perform, before time for performing may be considered as a breach, 4.-fri to accept contract made by a broker, 109 wrongful refusal to deliver, 143, 311, 334, 346, 367, 375, 376, 388 BE-INDORSEMENT OF A BILL OF LADING, effect of, 390, d. BEM, RIGHTS JN, 243 REMEDIES FOR BREACH OF CONTRACT. See aUo Stoppage ix Te.vx- siTU. Damages. Interest. of the vendor's rights over the goods whilst still in possession, 445 they arise when the purchaser is in default or is insolvent, 445 they are greater than a mere lien, 445 but do not entitle him to rescind, 446, 450, 459. 5 REPUDIATIN(.i THE OWNERSHIP OF 'THE GOODS. 3.56. ,sVr Rkmeihes. REPUTED OWNERSHIP, 4.59, 461 RES PERir DOMINO, 18:;. :24.5 Srofeli law, 247 RESALE. Sve Remedies. does not operate as a rescission, 463, 464, 468, 469, 470 power to resell reserN ed, 464 RESCISSION. ,SW' Rbmepies, 471, 475, 477 RESERVATION of tile Jus disjiniiendi, 143 of power to resell, 464 RETAKING POSSESSION, of goods by \endor, 472 RETITKN, of floods sent on approval must be in a reasonable time, .lOI! of broker's note, right to, 109, 111 REVENDICATION. 314. 3K1 REVENUE LAWS, compliance with, 241 REVOCATION. Ser Countee^man'D. .\rTHOEITY. Faitors. Acjent. RICE, .51, 2:29, 490, 499 " RIGHT DELIVERY," ON, freight to be paid, meaning of, 237 RIGHTS. See Remedies. equitable, 247 in equity, not the same as an equitable interest, 300 in rem, 243 in persitnam, 243 RISK, no test of property, 183. 245, 247, 489 Scotch law, 247 ROMAN LAW, 242 RULE IN EX PARTE WARNING, 273, 303 RULES, for ascertaining whether the parties intended the property to pass where they have not expressed their intention, 174 RUM, 31. 342 RUNNING ACCOUNT, 275 et seq., 331 See aim Equitable Assignments and Interests. (2292) INDEX. 421 *,* The figures refer to the [*] pages between brackets S. SALE, and bailment, difference between, 163, 173 on approval, 141. See Sample. definition of. Introduction, ix. distinction between a, and a promise to sell, 247 not bond fide, Twyne's Case, 460 induced by fraud, 164 SALES BY AUCTION, are within the Statute of Frauds, 2 conditions of sale must be referred to, 45 SALT, 134, 40S SAMPLE, acceptance by, within Statute of Frauds, 18 containing a hidden defect, 213 sale by, 196, 205, 496, 501, 503 where the sample was not in fact a sample of that which the pur- chaser had contracted to buy, 207, 210, 212, 213 sale on approval, 141 See also Inspection. "SAY," meaning of, 216 u. "SAY ABOUT," meaning of, 216 n. "SAY NOT LESS THAN," meaning of, 216 n. SCOTCH LAW, delivery necessary to pass the property, 244 n. SET-OFF, action lor damages or, 499. Scr Remedies. in contracts made by agents acting as principals, 87 SHEEP, 23, 197, 494 SHIP, SALE OF, 185, 180, 187, 188, 308, 498, 521, 524 delivery on board the purchaser's own, 134, 156, 352, 357. See Deliv- ery. on arival of a certain, 224 name of, to be declared, 225. See Condition.s precedent as to Timj:. SHIPMENT, within a certain, time, 227, 229. See Conditions precedent as to Time. SHIRTINGS, 530 SHOES, 214 SIGN, agent to, under the Sta,tute of Frauds, 72 SIGNATURE, vvhat is a, within the Statute of Frauds, 66 SILENCE, evidence of acquiescence, 344, 346 SKINS, 179 (2293) 422 INDEX. ' •,* The figures refer to the f*] pages between brackets, SLEEPERS, RAILWAY, 301 SMAIX CARGO, meaning of, 223 SODA, 216, 2:!2, 237, 362, 526 SPECIFIC PERFORMANCE, Roman law, 260 Mercantile Law Amendment Act, 1856, 492 SPELTER, lOT SPIRITS, 320 SPONGE, 20 STAKEHOLDER, 27:J STAMP on iron bars, 211 STAMP ACT, exemption under, 6 STARCH, 176 STATUTI':, compliance with a, condition precedent, 341 STATUTES, 13 Eliz. c. 5 (Void Ai5signments), 460 29 Car II. c. 3, ss. 4, 17 (Statute of Frauds), 1 6 Anne, c. 10 (Brokers), Hll 56 Geo. III. c. 60 (Brokers), 80 6 Geo. IV. c. 94, s. 2 (Factors), 428 n. s. 4 " 430 n. 9 Geo. IV. c. 14, s. 7 (Lord Tenterden's Act), 4 3 & 4 WilL IV. c. 42, s. 28 (Interest when recoverable), 535 5 & 6 Vict. f. 39, s. 1 (Factors), 431 13 & 14 Vict. c. 21. s. 4 (Meaning of word " month''), 230 15 & 16 Vict. c. 76, s. 3 (Common Law Procedure Act), 493 18 & 19 Vict. c. 3, s. 1 (Bills of Lading Act, 1855), 390 19 & 20 Vict. c. 97, s. 2 (Mercantile Law .Amendment Act, 1856; Specific Performance), 492 8. 5 (Mercantile Law Amendment Act, 1856; stoppage in transitu by a surety for an insolvent buyer), 326 33 & 34 Vict. c. 60 (London Brokers Relief Act, ls70), so 36 & .37 Vict. c. 66, s. 25, sub-s 6 (.Judicature ,\0 where the vendor consigns jointly to himself and a consignee, 333, where the property has not passed to the vendor, 324 agent who stops must be an agent at the time of stoppage ■;->,5 whether the surety for an insolvent buyer has the right 325 it can be exercised only while the vendor is unpaid, wholly or partially, where the vendor has been partially paid, 32(> where credit has been given, 327 where payment ha.s been made by bills and they have been neeo- ciated, 327 ^ where bills were not due at the time of stoppage, 328 where the vendor is not liable on the bill he is paid, 330 where the vendor has taken the acceptance of a third person, .332 where the stopped consignment is in return for goods consigned to the vendor, 329 *" where there is a running account, 331 must be exercised whilst the goods are in transitu, 333 — 379 possession, meaning of the word in this place. 333 when the vendor's possession ends and the buyer's begins when there is no transitns, 335 such cases not really cases of stoppage in transitu, 335 where the vendor holds as agent for the buyer, or for a sub-pur- chaser, 335 transitns, meaning of the term, 351 the goods must be in the hands of an agent to forward, .351 . 3.53 termination of the transitns, 351 where goods are delivered on board ship, 351 where the purchaser sends a ship chartered by himself, 352, 357 transitns is at end when they are in the hands of a carrier wait- ing orders to forward them to some ulterior destination, 3.54 where the delivery is f. o. b. , 362 on whom the notice to stop must be served, 362, 3S3 where the carrier acts as a warehouseman also, 364 when the carrier consents to hold them as bailee of the buyer, 3<34 where both the vendor and vendee repudiated the goods, 366 where the holder refused to give possession to the purchaser, 367 where the purchaser's agent touched the goods, and the captain promised to deliver when satisfied about the freight, 36h where the ship's broker gave an ' ' overside, ' ' order for the delivery of the cargo, 370 where the purchaser takes possession of part of the goods, 370 the termination of the transitns may be anticipated, .371, .376 where the goods which had been shipped were relanded by order of the buyer, 374 where the carrier wrongfully refused to give possession to the con- signee, 376 can be exercised only when the purchaser is insolvent, 380 not necessarily bankrupt, 381 carrier obeys stoppage in transitu at his peril if the buyer be in fact solvent, 381 insolvency, meaning of, 382 n. must be on behalf of the vendor with an intention to exercise the power as of right, 383 taking actual possession of the goods is not necessarily a stoppage in transitu, 382 (2295) 424 INDEX. * *t* The figures refer to the [*] pages between brackets. STOPPAGE iS TRANSITU— eom/mttfrf. notice to stop given to holder of goods is sufficient, without tak- ing actual possession, :'.(j'3, 383. but such notice must be given to the person having immediate cus- tody of the goods, 384 or to a principal in time to communicate with the servant who has the custody, 384 the right may be defeated by the assignment of the bill of lading bmid fide for a valuable consideration, '■i'^'i — 414 bill of lading is a contract bet\s'een tlie shipper and the shipowner, Bills of Lading Act, 18-<.i, makes the indorsee a party to the contract, 390 effect of assignment of a bill of lading on the property is the same as a delivery of tlie goods themselves in the same circumstances, 391 intention to assign an interest in the goods is necessary, as well as. merely in the bill of lading, 39-2 pa-st consideration, assignment for a, 406 pledge of bill of lading, 406 the vendor can only stop the equity of redemption, 406 the indorsement must in good faith, 409 is unaffected hy any equity between vendor and indor.ser of which the indorsee has not notice, 410 notice to the indorsee or pledgee that the goods have not been paid for does not effect his title, 409 rights of successive pledgees, 411 iSVi Dock AYakrants. Deliveey Oedees. STRAW, 472 SUBSALE. See PURCHASEE. Srii-VENDEE. SUBSEQUENT APPROPRIATION, liw. SUBSTITUTED CONTRACT, 115 a request by one party to postpone delivery is not evidence of a, IIG is e\idence of intention to rescind tlie earlier contract, 119 SUB-VENDEIC, ha,s no greater rights than the first vendee had unless there be an assign- ment of a document of title, l'-!7. l.")7, ilSfi, 391 where a portion of the goods have been delivered to, 34:2, 386. Si-c also Possession. where vendor enters su)i-\endec's name in bis books, receives rent, &c.. 338—351 RU(rAK, r-,-2. 89, 13:2, 136, 150, 177, 18:2, 220, 223, :!47, 302, 41:;, 416, 417, 12(1 SULPHUR, 497 SUMACH, 90 SURETY, 290 for an insolvent buyer, stoppage in transitu by, :52,"i Mercantile Law Amendment Act !!2(i. TAKE AWAY, failure to. See Remedies. (2290) INDKX. 425 **• The figures refer to the I*] pages between brackets TAKING POSSESSION OP^ J'ART OF (lOODS, ;i44 369 370 371 ,s,r Deliveby. ' ' ' • • ' TALLOW, 100, 231, 490, 513, 514 TARES, 29, 505 TEA, 292, 341, 485 TEAK, 278 TELEGRAM, a sufficient memorandum to satisfy the Statute of Frauds, 65 TENDER, effect of, by purchaser in default before resale, 457. See Remedies. of goods, a condition precedent to the right to payment, 485 TENTEEDON'S ACT, LORD, 4 TERRA JAPONICA, 494 THRESHING ENGINE, 524 machine, 525 TIMBER, 23, 34, 64, 145, 179, 180, 192, 296, 350, 359 TIME, conditions precedent as to, 224 on arrival of a vessel not later than a certain day, 224 name of vessel to be declared, 224 payment on receipt of shipping documents, 225 delivery within the last fourteen days of March. 225 to-morrow, 226 directly, 226 immediately, 226 forthwith, 226 payment " within one month," 226 delivery " April 17th, complete 8th May," 227 shipment within a certain time, 227 month, 230 See Damages. TOBACCO, 110, 241, 428, 438 "TO-MORROW," meaning of, 226 TORT AND CONTRACT, damages in, the same, 49 1 TRANSFER IN WAREHOUSEMAN'S BOOK, 1*5, 338 rf seq. TREACLE, 51 TREES. See Timber. TRUSTEE IN BANKRUPTCY, positions of, a purchaser, for value and an execution creditorcontrasted, 461 n. TRUST FUNDS, FOLLOWING, m) TRUSTS, deposit of goods on, 269, 270. -SVf Eqtjitahi,e A s.=ii(mMENTS. TURNIPS, 10 TURNIP SEED, 9 TURPENTINE, 177 (2297) 426 INDKX. **^= The figures refer t^' the [♦] pages between brackets. U. UMBER, 201 UNDKRWOOI), 7 V. VALUE, .s'rc Purchaser foe Valih. positions of a purchaser for, im execution creditor and a trustee in ban k - ruptcy contrasted, 401 n. V VUYINft THE CONSIGNMENT. U4, 148, 149, ;wl VK(tETAI'.I,i;s. U \'10N1)EE. N.T Pi'urHASKK. VK-MDOl-;. ol' goods may hold them as agent for purchaser, 26, 334 where he holds them us bailee of a sub-purchaser, .'JSe where vendor liikI purchaser repudiate the goods, 'A66 where he is also a wareliouseraan. .14(1 retaking possession of goods is not evidence of intention to rescind, 47'; where he does not tender the goods, 492 — 494 where he doo tender the good^, 49.") — ."io? Src ilhii (_;.VI'.Vt'ITY, [-JEMEDIES, StoPPAUK IN TRANSITU, DKLIVKUV. VOID SALE, 'I'lcijni'^^ < Vf.sv, 460 parties not ail iih'tn, 107, 165. 166 W. WA(;()M, 33 WAIVER, of performaiico, of condition jirecedent, 200, 'i:>8, 48S WAREHOUSE KENT, recei])t of', 3;is i-t st'i/. WAREHOUSE.M.VN, acting also as factor, 135 also a carrier, 364 where a vendor is also a, 31, 340 estoppel of, 190—191) where the vendor agrees to hold the goods as bailee of the purchaser, 3:?.'i where the vendor, who ^ya,s also ,i, warehouseman, accepted warehou.se rent, 33H, 3:;9. :!41 where he ga\'e the purchaser a note .stating that he held the goods to his order, :140 where tlie goods arc in the hands of a «'arehouseiiian, and the vendor gives the purchaser authority to talic jxissession, 341 where he wrongfully refuses to hold for tlie purchaser. 346. 367 where he is not authorized to gi\-e possession until after the perform- ance of some act, 347 where he traTisferred the go(jds in his liooks, 135 iVARr.Wf;, EX PAIITE. rule in, '273. 27.i, :>03 VV^ARRANTY, what it is, 501, 50'! a condition precedent may cease to be such, and may become a, 200, 501 distinction between a, and a condition precedent, 200, 210, 501 it is for the judge to decide whether a term of the contract is a condition precedent, or a mere warranty. 198, 199 INDEX. 42^ »t* The flfTiiros refer to the \*\ imjfcs between brackets, WAX, :«2 WEIGHING, a CDuditiion precedent to the passing of the property, 174 WHARFINGER, where he weighs goods at the request of the vendee, 346 WHARFINGERS' RECEIPTS, 4ir, .SV( dim Dki.iveuv Okbkes. WHEAT. :!, If^, -21, 150, 152, 205, 218, 239, 404, 407 Se< Oats, Corn. WHEELS, 5:!1 WINDOW FASTENlNfJS, 187 WINE. 21. ■>7, 164, 215. 340. 434, 505, 534 "WITH ALL FAULTS," meaning of, 215 n. WOOL, 35, 47 n., 93, 22(i, 227, 502 sheep iind goats. 43.'i WORDS. meaning of, .see the aetual Words themselves. WORK AND LABOUR OR GOODS SOLD, distinction between, 15, 187 WRONGFUL REFUSAL TO DELIVER, 143, 311, 334, 346, 367, 375, :i88 Y. YARN, 309 Z. ZINC, 422 THIC END. (2299) Phila. The Blackstoxe ITb. Co. (2300) ri.