(IJornfU fcui ^rlyool library 
 
Cornell University Library 
 KD 1650.C43 1920 
 
 The Sale of Goods Act, 1893 :lncludlng t 
 
 3 1924 022 471 605 
 
Cornell University 
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 The original of this book is in 
 the Cornell University Library. 
 
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THE SALE OF GOODS ACT, 1893, 
 
 INCLUDING 
 
 THE FAOTOES ACTS, 1889 & 1890. 
 
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 *** Recommended by the Society of Accountants as a text-book for 
 
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 *f* Appointed as a text-book by the Institute of Bankers for their 
 
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THE 
 
 SALE OF GOODS ACT, 1893, 
 
 INCLUDING ■ 
 
 THE FACTORS ACTS, 1889 & 1890. 
 
 ■ \ 
 
 SiE M. D. CHALMERS, K.C.B., O.S.I., 
 
 (draftsman of the act), 
 fobmbrlt parliamentary codnsbt to the treasdry, judge of county 
 
 COURTS, AND LAW MEMBER OP THE VICBBO'B'S COUNCIL IN INDIA, ETC. 
 
 EIGHTH EDITION. 
 
 LONDON : 
 
 BUTTEEWOETH & CO., Bell Yard, Temple Bab. 
 
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 1920, 
 
PEINTED BY 
 
 WILLIAM CLOWES AND BONP, LIMITED. 
 
 LONDON AND BBCCLES. 
 
PREFACE 
 
 In this Edition the Notes have been revised, some have been re- 
 written, and some fresh notes have been added. 
 
 Since the last edition no statute has been passed directly 
 affecting the Sale of Goods Act. The Larceny Act, 1861, has been 
 repealed, and re-enacted by the Larceny^ Act, 1916, and section 45 
 of the latter Act, which deals with the restitution of stolen property, 
 expressly saves the provisions of the Sale of Goods Act (pp. 71, 172). 
 The Eegistration of Business Names Act, 1916, imposes disabilities 
 on traders who are required to register under that Act, and do not 
 do so (p. 17). The Profiteering Act, 1919, and the action of the Food 
 Controller, under his statutory powers, temporarily abrogate the 
 freedom of contract as regards price, which is recognised by section 
 8 of the Sale of Goods Act. 
 
 Cases arising out of the contract of sale have been numerous 
 during recent years. In so far as they turn upon the construction 
 of the Act, I hope they have been carefully noted, but in so far 
 as they illustrate general principles of the law of contract, they 
 have been only lightly touched on. 
 
 Many of the cases reported during the last five years have arisen 
 out of the dislocation of commerce caused by war, and it is to be 
 hoped that they are only of temporary interest. In Ertel Bieber d; 
 Co. v. Rio Tinto Co., the House of Lords has summed up the law of 
 trading with the enemy so far as regards contracts of sale. Four 
 other judgments of the House of Lords or Privy Council are of 
 special interest. In The Parchim, Lord Parker lays stress on the 
 
VI PREFAOE 
 
 general uniformity of the mercantile laws of all commercial nations, 
 and establishes the principle that, as the Sale of Goods Act is a 
 codifying Act, its provisions may be applied in construing foreign 
 as well as British contracts of sale, unless and until the foreign rule 
 is proved to differ from ours (p. 143). In 11.8. Steel Products Co. 
 V. G. W. Railway the House of Lords have settled the conflicting 
 rights of the unpaid seller who stops goods in transitu, and of the 
 carrier who has a lien upon them (p. 105). In Yangtsze Ins. Assn. 
 V. Luk Manjee Lord Sumner, with his usual lucidity, explains the 
 rights and duties of the parties to an ex-ship contract (p. 88). In 
 Biddell Bros. v. ^. Clemens Horst & Co. Lord Justice Kennedy, in 
 a judgment which is expressly adopted by the House of Lords, 
 illuminates the whole scope of the c.ii. contract and its relation 
 to the Sale of Goods Act. Many references are made to this 
 judgment. It may be noted that recent decisions show an in- 
 creasing desire to give effect to trade usages^ on the ground that 
 the parties intend to contract with reference to them, and very 
 explicit language must be used to exclude their operation. 
 
 I am indebted to Mr. Gerahty, of the Middle Temple, for the 
 completion of the list of foreign countries which have adopted the 
 English Act with or without variations. 
 
 M. D, C. 
 
 October, 1920. 
 
INTRODUCTION TO FIRST EDITION. 
 
 It is difficult to know whether to call this little book a first edition 
 or a second edition. It is a first edition of the Sale of Goods Act, 
 1893, but it is a reproduction of my book on the Sale of Goods, 
 published in 1890, which was in substance a commentary on the 
 Sale of Goods Bill. The clauses of the Bill, with a few verbal 
 alterations, formed the large type propositions of the book. But 
 though the language of the propositions remains the same, its effect 
 is now very different. Those propositions were only law in so far 
 as they were correct and logical inductions from the decided cases. 
 Now the position is reversed. The propositions have become 
 sections of the Act, and the decided cases are only law in so far as 
 they are correct and logical deductions from the language of the 
 Act. Each case, therefore, must be tested with reference to the 
 Act itself. But it may be none the less useful to the reader to call 
 his attention to the decisions which formed the basis of the various 
 sections, and which were intended to be reproduced in the Act. In 
 so far as the law is unaltered, they are still in point as illustrations. 
 The history of the Act is as follows : The Bill was originally 
 drafted by me in 1888. I then settled it in consultation with 
 Lord Herschell, who kindly consented to take charge of it. In 
 1889, Lord Herschell introduced it in the House of Lords, not to 
 press it on, but to get criticisms on it. In 1890 there was no 
 opportunity of proceeding with it, but in 1891 the Bill was again 
 introduced in the Lords, and referred to a Select Committee. It 
 had in the mean time been criticised by Lord BramweU, ilr. Walter 
 
VUl INTRODUCTION TO FIRBT EDITION. 
 
 Ker, and other friends, and the Bar Committee had submitted a 
 valuable memorandum on it. In the Lords it was carefully con- 
 sidered by a Select Committee, consisting of Lords Herschell, 
 Halsbury, Bramwell, and Watson. A question arose as to its 
 extension to Scotland, so the Bill stood over till 1892. It was then 
 again introduced in the Lords, and extended to Scotland, on the 
 advice of Lord Watson, who had consulted various Scotch legal 
 authorities. Professor Eichard Brown and Mr. Spens of Glasgow 
 took an infinity of pains to suggest the necessary amendments. 
 In 1893 the Bill was again passed through the Lords in the form in 
 which it was settled in 1892. It was then considered by a Select 
 Committee of the House of Commons and further amended. The 
 Committee consisted of Sir Charles Russell, A.G., Sir R. Webster, 
 Q.C., Mr. Asher, Q.C. (the Scotch Solicitor-General), Mr. Shiress 
 Will, Q.C., Mr. Bousfield, Q.C., Mr. Ambrose, Q.C., and Mr. Mather. 
 Some of the amendments introduced by the Commons were modified 
 on its return to the Lords, and it was finally settled in its present 
 form. 
 
 The Bill, in its original form, was drafted on the same lines as the 
 Bills of Exchange Bill. On Lord Hersohell's advice it endeavoured 
 to reproduce as exactly as possible the existing law, leaving any 
 amendments that might seem desirable to be introduced in 
 Committee on the authority of the Legislature. So far as England 
 is concerned, the conscious changes effected in the law have been 
 very slight. They are pointed out in the notes to the various 
 sections. As regards Scotland, in some cases the Scottish rule has 
 been saved or enacted for Scotland, in others it has been modified, 
 while in others the English rule has been adopted. These points 
 are noted under the sections as they arise. Scottish law differs 
 from English law mainly by adhering to the Roman law in matters 
 where English law has developed a rule of its own. The Mercantile 
 Law Commission of 1855 reported on this question, and recom- 
 mended that on certain points the Scotch rule should be adopted in 
 England, while on other points the English rule should be adopted 
 in Scotland. The recommendations of the Commission were partially 
 embodied in the English and Scotch Mercantile Law Amendment 
 
INTRODUCTION TO FIRST EDITION. IX 
 
 Acts of 1856. The result was curious. Either by accident or 
 design certain rules were enacted for England which resembled, but 
 did not reproduce, the Scotch law, while other rules were enacted 
 for Scotland which resembled, but did not reproduce, the English 
 law. The present Act has carried the process of assimilation 
 'somewhat further. It is perhaps to be regretted that the process has 
 not been completed; but future legislation may accomplish that. 
 It is always easier to amend an Act than to alter common law. 
 Legislation, too, is cheaper than litigation. Moreover, in mercantile 
 matters, the certainty of the rule is often of more importance than 
 the substance of the rule (a). If the parties know beforehand what 
 their legal position is, they can provide for their particular wants 
 by express stipulation. Sale is a consensual contract, and the Act 
 does not seek to prevent the parties from making any bargain they 
 please. Its object is to lay down clear rules for the case where the 
 parties have either formed no intention, or failed to express it. 
 
 As regards this edition, I have not attempted to expound or 
 criticise the mass of cases which illustrate or are modified by the 
 Act. Such a work could hardly be undertaken with any prospect of 
 success until the Act has been for some time in operation. I have 
 only sought to indicate the sources of the various provisions in the 
 Act, and to elucidate the general principles of the law of sale by 
 citations from eminent judges. Our common law is rich in the 
 exposition of principles, and these expositions lose none of their 
 value now that the law is codified. A rule can never be appreciated 
 apart from the reasons on which it is founded. 
 
 I have compared the main propositions 'of the English law with 
 the corresponding provisions of the Code Napoleon, which is the 
 model on which most of the Continental Codes have been 
 framed (6). On the one hand, the scope and effect of a principle 
 
 (a) Of. Lockyer v. Offley, 1 T. E., at p. 259. 
 
 (6) A note has been added at p. 144 giving references to Colonial Acts which have 
 adopted and re-enacted the provisions of the English Sale of Goods Act for their 
 respective territories. Since the fourth edition of this book was published, Germany 
 has enacted a new civil code for her empire. The German Civil Code of 1900 is a 
 notable addition to legal theory and practice. Its main provisions, relating to sale 
 are collected in a sub-heading of the chapter dealing with " Obligatory Relations." 
 
 C.S.G. ^ 
 
X INTRODUCTION TO FIRST EDITION. 
 
 are "of tea best brought out by contrast ; on the other hand, where 
 any rule of municipal law is found to be generally adopted in other 
 countries, there is a strong presumption that the rule is founded on 
 broad grounds of expediency, and that its application should not be 
 narrowed. The Eoman lawyers were justified in attaching a 
 peculiar value to those rules of law which were jitris gentium. 1 
 have also made frequent reference to Pothier's Traite du Contrat de 
 Venfe. Although published more than a century ago — for Pothier 
 died in 1772 — it is still, probably, the best reasoned treatise on the 
 Law of Sale that has seen the light of day. "The authority of 
 Pothier," says Best, C. J., " is as high as can be had next to the 
 decision of a court of justice in this country " (c). This statement 
 must obviously be taken with the qualification that it only holds 
 good when Pothier is discussing some principle of general applica- 
 tion; for the law he was particularly dealing with was French 
 law, as modified by the custom of Orleans, before the Code 
 Napoleon. 
 
 The references to the Oivil Law need little comment. It is the 
 foundation of the Scottish law, and it is an inexhaustible store of 
 legal principles. There is hardly a judgment of importance on the 
 law of sale in which reference is not made to the Oivil Law. " The 
 Koman law," says Tindal, 0. J., " forms no rule binding in itself on 
 the subjects of these realms ; but in deciding a case upon principle, 
 where n(> direct authority can be cited from our books, it affords no 
 small evidence of the soundness of the conclusion at which we have 
 arrived, if it prove to be supported by that law — the fruit of the 
 researches of the most learned men, the collective wisdom of ages, 
 and the groundwork of the municipal law of most of the countries of 
 Europe " (d). My task of reference in this edition has been much 
 
 But the scheme of the German Code is so widely different from the lines on which 
 . the Sale of Goods Act is framed, that any attempt at comparison would be futile . 
 unless explained by a detailed discussion, which would be unsuitable to a small 
 manual .such as this. 
 
 (c) Cox V. Troy (1822), 5 B. & Aid. 481 ; c/. M'Lean v. Olydesdale Bank (1883), 
 9 App. Gas., at p. 105, per Lord Blackburn. 
 
 (d) Acton V. Blundell (1843), 12 M. & W., at p. 324 ; cf. Keighley v. Durant 
 [1901] A. 0., at p. 244, ' 
 
INTBODUOTION TO FIRST EDITION. XI 
 
 facilitated by Dr. Moyle's excellent monograph on the Contract of 
 Sale in the Civil Law, published in 1892. 
 
 To facilitate reference to contemporaneous reports, the date of 
 each case cited has been given. 
 
 M. D. Chalmbks. 
 Birmingham County Coubt, 
 1894. 
 
CONTENTS. 
 
 Pkeface xo Eightu Edition . . ''^'^^ 
 
 Introduotion to First Edition • • • . • 
 
 Table of Statutes Cited 
 lABLE OF Cases Citbd 
 
 XIX 
 
 SECT 
 
 PART I. 
 
 FOBMATION OF THE CONTEACT. 
 
 Contract of Sale. 
 
 1. Sale and agreement to sell 1 
 
 Gapacity of Parties. 
 
 2. Capacity to buy and sell . . 12 
 
 Formalities of the Contract. 
 
 3. Contract of sale, how made 17 
 
 4. Contract of sale for £10 and upwards 18 
 
 Subject-matter of Contract. 
 
 5. Existing or future goods 25 
 
 6. Goods which have perished 27 
 
 7. Goods perishing before sale but after agreement to sell . ... 28 
 
 The Price. 
 
 8. Ascertainment of price 30 
 
 9. Agreement to sell at valuation 32 
 
 Conditions and Warranties. 
 
 10. Stipulations as to time of payment ....... 83 
 
 11. When condition to be treated as warranty 36 
 
XIV 
 
 go:ntent8. 
 
 ■ 12. Implied undertaking as to title, etc. . ., . • - ■ 
 
 13. Sale by description 
 
 14. Eule of caveat emptor. Implied condition as to quality or fitness 
 
 15. Sale by sample 
 
 riSB 
 
 38 
 40 
 42 
 48 
 
 PART 11. 
 
 Bl'FECTa OP THE CONTKAGT. 
 
 Transfer of Property as hetween Seller and Buyer. 
 
 16. Goods must be ascertained 
 
 17. Property passes wben intended to pass 
 
 18. Rules for ascertaining intention 
 
 19. Reservation of right of disposal 
 
 20. Risk primix facie passes -with property 
 
 Transfer of Title. 
 
 21. Sale by person not the owner 
 
 22. Market overt 
 
 23. Sale under voidable title 
 
 24. Revesting of property in stolen goods on conviction of offender 
 
 25. (1) Disposition by seller remaining in possession . 
 (2) Disposition by buyer obtaining possession 
 
 26. Effect of writs of execution 
 
 51 
 52 
 
 54 
 60 
 62 
 
 64 
 67 
 69 
 70 
 72 
 72 
 74 
 
 PART III. 
 
 Performance of ike Contract. 
 
 27. Duties of seller and buyer 76 
 
 28. PajTuent and delivery are concurrent conditions 77 
 
 29. Rules as to delivery _ .... 78 
 
 30. Delivery of wrong quantity 81 
 
 31. Instalment deliveries 82 
 
 32. Delivery to carrier 84 
 
 33. Risk where goods are delivered at distant place 88 
 
 34. Buyer's right of examining the goods 89 
 
 35. Acceptance 90 
 
 36. Buyer not bound to return rejected goods 91 
 
 37. Liability of buyer for neglecting or refusing delivery of goods . . 91 
 
CONTENTS. XV 
 
 PART IV. 
 
 Eights of Unpaid Seller against the Goods. 
 
 *''™- PACK 
 
 38. Unpaid seller defined 93 
 
 39. Unpaid seller's rights 94 
 
 40. Attachment by seller in Scotland .96 
 
 Unpaid Seller's Lien. 
 
 41. Seller's lien 96 
 
 42. Part delivery 98 
 
 43. Termination of lien 99 
 
 Stoppage in Transitu. 
 
 44. Right of stoppage in transitu 100 
 
 45. Duration of transit . . 102 
 
 46. How stoppage i« irawsto is effected 105 
 
 Re-sale hy Buyer and Seller, 
 
 47. Effect of sub-sale or pledge by buyer 106 
 
 48. Sale not generally rescinded by lien or stoppage in transitu . . . 109 
 
 PART V. ; 
 
 Actions for Breach of the Contbacx. 
 
 Remedies of the Seller. 
 
 49. Action for price Ill 
 
 50. Damages for non-acceptance 114 
 
 Remedies of the Buyer. 
 
 51. Damages fornon-delivery ; . 115 
 
 52. Speciiic performance 120 
 
 53. Kemedy for breach of warranty 120 
 
 54. Interest and special damages 123 
 
 PART VI. 
 
 Supplementary. 
 
 55. Exclusion of implied terms and conditions . . ... 126 
 
 56. Reasonable time a question of fact 128 
 
XVI 
 
 CONTENTS. 
 
 SECT. 
 
 57. 
 58. 
 59. 
 60. 
 61. 
 
 Rights enforceable by action 
 
 Auction sales 
 
 Payment into Court in Scotland wlieo breach of warranty alleged 
 
 Repeals 
 
 Savings ... 
 
 62. Interpretation of terras . 
 
 63. Commencement . . 
 
 64. Short title 
 
 Schedule (of repeals) . 
 
 PAGE 
 
 128 
 129 
 131 
 131 
 131 
 133 
 142 
 143 
 145 
 
 THE FACTORS ACT, 1889 (52 & 53 Vict. c. 45) 
 Preliminary (Definitions) .... 
 Dispositions by mercantile agents 
 Dispositions by sellers and buyers of goods 
 ■Supplemental ,•.... 
 
 THE FACTORS SCOTLAND ACT, 1890 (53 & 54 Vict. c. 40) 
 
 APPENDIX I.— Statutes. 
 
 18 & 19 Vict. c. Ill (Bills of Lading Act, 1855) . 
 
 41 & 42 Vict. c. 31, s. 4 (Bills of Sale Act, 1878) 
 
 50 & 51 Vict. c. 28, s. 17 (Merchandise Marks Act, 1887) . 
 
 54 & 55 Vict. c. 39, in part (Stamp Act, 1891) . 
 
 1 Edw. 7, c. 7 (Finance Act, 1901),-in part .... 
 
 5 Edw. 7, c. 4 (Finance), in part 
 
 7 Edw. 7, c. 23 (Criminal Appeals, Restitution of Stolen Goods), in part 
 
 8 & 9 Geo. 5, c. 50, s, 45 (Larceny, Restitution) 
 
 163 
 166 
 167 
 168 
 170 
 171 
 171 
 172 
 
 APPENDIX II.— Notes. ■ 
 
 Note A. Use of the Terms Contract, Condition, and Warranty 
 
 Note B. Construction of Terms and Conditions . 
 
 Note C. Delivery to Carrier 
 
 174 
 181 
 189 
 
TABLE OF STATUTES. 
 
 PAGE 
 
 (Stolen Goods, 1529) 70 
 
 (Market and Pair, 1643) 68 
 
 (Sale of Horses, 1555) 68 
 
 (Sale of Horses, 1589) 68 
 
 (Statute of Frauds, 1677) 4, 17, 20, 21, 25, 60, 74, 90, 
 
 91, 99, 137, 143, 149, 157 
 
 (Max and Hempseed (Ireland) Act, 1810) 42 
 
 (Factors Act, 1823) 146,160 
 
 (Factors Act, 1826) 149,151,154,155,160 
 
 (Statute of Frauds Amendment Act, 1828) 20, 21, 25 
 
 (Civil Procedure Act, 1833) 113 
 
 (Banlc of England Act, 1 833) 112 
 
 (Factors Act, 1842) ... 66, 149, 150, 161, 153, 154, 
 
 155, 160 
 
 (Auctioneers Act, 1845) 130 
 
 (Bills of Lading Act, 1855) ... 66, 79, 108, 109, 163,165 
 (Mercantile Law Amendment (Scotland) Act, 1866) 47, 
 
 54, 95, 96 
 (Mercantile Law Amendment (England) Act, 1866) 74, 
 
 120 
 
 (Law of Property Amendment Act, 1869) 3 
 
 (Larceny Act, 1861) 68,71 
 
 (Hop (Prevention of Frauds) Act, 1 866) 42 
 
 (Criminal Law Amendment Act, 1867) 173 
 
 (Sales of Land by Auction Act, 1867) 130 
 
 (Coinage Act, 1870) 12 
 
 (Judicature Act, 1873) 133 
 
 (Lifants' Relief Act, 1874) 14 
 
 (Sale of Food and Drugs Act, 1 875) 42 
 
 (Factors Act, 1877) ... 107, 110, 147, 162, 156, 157, 
 
 158, 159, 160 
 (BiUs of Sale Act, 1878) 7, .65, 132, 136, 149, 166, 167 
 
 (Summary Jurisdiction Act, 1879) 71,173 
 
 (Conveyancing Act, 1881) 39,133 
 
 (Bills of Sale Act (1878), Amendment Act, 1882) 7, 132, 
 
 167 
 
 (Bills of Exchange Act, 1882) 143,152 
 
 (Married Women's Property Act, 1882) ... 3, 14 
 
 (Merchandise Marks Act, 1887) 42,45,167 
 
 (Factors Act, 1889) ... 6, 8, 66, 72, 73, 79, 81, 106, 
 107, 108, 110, 119, 136, 146—161 
 52 & 53 Vict. 0. 63. (Interpretation Act, 1889) 17, 19, 143 
 
 21 Hen. 8, o. 
 
 11. 
 
 34 & 35 Hen. 8, c. 26. 
 
 2 & 3 Phil. & 
 
 ; Mary. 
 
 31 Eliz. c. 12 
 
 1^ 
 
 29 Car. 2, c. : 
 
 3. 
 
 60 Geo. 3, c. 
 
 82. 
 
 4 Geo. 4, c. 83. 
 
 6 Geo. 4, c. 94. 
 
 9 Geo. 4, c. 14. 
 
 3 & 4 Will 4 
 
 , c. 42. 
 
 3 & 4 WiU. 4 
 
 , c. 98. 
 
 5 & 6 Vict, c, 
 
 .39. 
 
 8 & 9 Vict, c, 
 
 , 15. 
 
 18 & 19 Vict. 
 
 0. 111. 
 
 19 & 20 Vict. 
 
 c. 60. 
 
 19 & 20 Vict. 
 
 0.97. 
 
 22 & 23 Vict. 
 
 c. 35. 
 
 24 & 25 Vict. 
 
 c. 96. 
 
 29 & 30 Vict. 
 
 0.37. 
 
 30 & 31 Vict. 
 
 c. '35. 
 
 30 & 31 Vict. 
 
 c. 48. 
 
 33 & 34 Vict. 
 
 0. 10. 
 
 36 & 37 Vict. 
 
 c. 66. 
 
 37 & 38 Vict. 
 
 c. 62. 
 
 38 & 39 Vict. 
 
 c. 63. 
 
 40 & 41 Vict. 
 
 c. 39. 
 
 41 & 42 Vict. 
 
 c. 31. 
 
 42 & 43 Vict. 
 
 c. 49. 
 
 46 & 46 Vict. 
 
 c. 41. 
 
 46 & 46 Vict. 
 
 c. 43. 
 
 45 & 46 Vict. 
 
 c. 61. 
 
 45 & 46 Vict. 
 
 c. 76. 
 
 60&^1 Vict. 
 
 c. 28. 
 
 52 & 53 Vict. 
 
 c. 45. 
 
XVlll 
 
 TABLE OF STATUTES. 
 
 53 & 54 Viot. c. 39. 
 53 & 54 Vict. c. 40. 
 
 53 & 54 Vict. c. 53. 
 64 & 55 Vict. c. 35. 
 
 54 & 55 Vict. c. 39. 
 
 56 & 67 Viet. o. 63. 
 
 57 & 58 Vict. c. 60. 
 62 & 63 Vict. c. 23. 
 1 Edw. 7, c. 7. 
 
 5 Edw. 7, 0. 4. 
 
 7 Edw. 7, c. 23. 
 
 8 Edw. 7, c. 49. 
 
 8 Edw. 7, c. 69. 
 
 3 & 4 Geo. 5, c. 20. 
 
 4 & 5 Geo. 5, c. 14. 
 
 4 & 6 Geo. 5, c. 59. 
 
 5 & 6 Geo. 5, c. 98. 
 
 6 & 7 Geo. 5, c. 50. 
 6 & 7 Geo. 5, c. 58. 
 
 9 & 10 Geo. 6, c. 66. 
 
 (Partnership Act, 1890) 
 (Factors (Scotland) Act, 1890) 
 
 65, 
 
 (BiUs of Sale Act, 1890) 7, 
 
 (BiUs of Sale Act, 1891) 7, 
 
 (Stamp Act, 1891) 
 
 (Married Women's Property Act, 1893) 
 
 (Merchant Shipping Act, 1894) 
 
 (Anchors and Chain Cables Act, 1899) 
 
 (Finance Act, 1901) 
 
 (Finance Act, 1905) 
 
 (Criminal Appeal Act, 1907) 
 
 (Statute Law Revision Act, 1908) 
 
 (Companies (Consolidation) Act, 1908). 
 
 (Bankruptcy (Scotland) Act, 1913) 
 
 (Currency and Bank Notes, 1914) 
 
 (Bankruptcy Act, 1914) ... 65, 74, 132, 
 (Trading with the Enemy Act, 1915) 
 
 (Larceny Act, 1916) 71,72, 
 
 (Registration of Business Names Act, 1916) 
 (Profiteering Act, 1919) 
 
 I'AGK 
 
 ... 67 
 
 73, 138, 155, 
 
 160, 162 
 
 132, 150, 167 
 
 132, 150, 167 
 
 4, 168—170 
 
 ... 3, 14 
 
 17, 138 
 
 ... 42 
 
 170—171 
 
 ... 171 
 
 71, 171, 172 
 
 143, 160 
 
 7 
 
 ... 132 
 
 ... 112 
 
 136, 152, 159 
 
 ... 16 
 
 159, 172, 173 
 
 ... 17 
 
 ... 31 
 
TABLE OF CASES. 
 
 PASIS 
 
 Abbot V. Wolsey, [1895] 2 Q. B. 97, C. A 19, 22 
 
 Acebal t>. Levy (1834), 10 Bing. 376 30 
 
 Acmo Wood Co. w. Sutherland Innes & Co. (1904), 9 Com. Cas. 170 ... 185 
 
 Acramam;. Morrice (1849), 8 C. B. 449 ; 18 L. J. C. P. 67 55 
 
 AgiusD. Great Western CoUiery Co., [1899] 1 Q. B. 413, C. A 125 
 
 Aird V. PuUan (1904), 7 F. 268 37 
 
 Aitken «;. BouUen (1908), 10 P. 490, Ct. of Sess 48,82 
 
 Ajello f. Worsley, [1898] 1 Ch. 274 25,31,136 
 
 Aleook ». Smith, [1892] 1 Ch. 238, C. A 12 
 
 Aldersonw. Maddison(1880), 5Ex. D. 293 175 
 
 Aldridge v. Johnson (1857), 26 L. J. Q. B. 296 5, 61, 66 
 
 Alewyn v. Pryor (1826), R. & M. 406 182 
 
 Alexander >. Gardner (1835), 1 Bing. N. C. 671 56, 84, 111, 183 
 
 Alexanders. Vanderzee (1872), L. R. 7 C. P. 530 182 
 
 Allen r. Cameron (1833), 1 Cr. & M. 832 121 
 
 AUen V. Hopkins (1844), 13 M. & W. 94 10 
 
 Allen V. Pink (1839), 4 M. & W. 140 35 
 
 AUen «. Stein (1790), M. 4949 96 
 
 American Commerce Co. v. Boehm, Ltd. (1919), 36 T. L. R. 224 88, 171, 186 
 
 Aneona v. Rogers (1876), 1 Ex. D. 285, C. A 79, 167 
 
 Anderson «;. Croall (1903), 6 F. 153, Ct. of Sess 38,130 
 
 Anderson t;. Morice (1875), 1 App. Cas. 713 62,64,85,186 
 
 Andrews «. BelMd (1857), 2 C. B. (if.s.) 779 187 
 
 Anglesey (Marquis of), iJe, [1901] 2 Ch. 548, C. A 113 
 
 Anglo-Egyptian Navigation Co. v. Rennie (1875), L. R. 10 C. P. 271 ... 6 
 
 Angus «. McLachlan (1883), 23 Ch. D. 330 100 
 
 Annie Johnson, The, [1918] P. 154 61 
 
 Anthony «. Halstead( 1877), 37 L. T. (n.s.) 433 188 
 
 Ant. Urgens Margarine fabrieken v. Louis Dreyfus & Co., [1914] 3 K B. 41 107 
 
 Appleby v. Myers (1867), L. R. 2 C. P. 661 • 28 
 
 Argeraina,The{1867),L.'R.lAdm,310 165 
 
 Armstrong i;. Jackson, [1917] 2 K. B. 822 3 
 
 Arnold w. Cheque Bank (1876), 1 C. P. D. 578 10 
 
 Ashforth v. Redford (1873), L. R. 9 C. P. 20 185 
 
 Ashmore v. Cox, [1899] 1 Q. B. 436 116, 189 
 
 Ashworth «. WeUs (1898), 78 L. T. (n.s.) 136, C. A 122 
 
 Asiatic Petroleum Co. v. Lennards Carrying Co., [1914] 1 K. B. 419 ; 18 
 
 Com. Gas 156 
 
 Atkinson «. Bell (1828), 8 B. & C. 277 57 
 
 Attenborough, Be (1855), 14 Exch. 461 7 
 
 Attenborough V. Solomon, [1914] A. C. 76 H. L 65,139 
 
XX TABLE OF OASES. 
 
 PAOB 
 
 Attwood «. Emery (1856), 26 L. J. C. P. 73 184 
 
 Azemar V. Casella (1867), L. R. 2 C. P. 677, Ex. Ch 40,41,188 
 
 Badisohe Anilin Fabrik v. Basle Chemical Works, [1898] A. C. 200 H. L. 57, 84 
 
 Badisohe AniUn Pabrik i). Hickson, [1906] A. C. 419 51.53 
 
 Bagueley v. Hawley ( 1 867), L. R. 2 0. P. 625 26, 76 
 
 Bailey V. Sweeting (1861), 30 L. J. C. P. 150 23 
 
 Baily v. De Crespigny (1869), L. R. 4 Q. B. 180 37 
 
 Baines v. Swainson (1863), 32 L. J. Q. B. 281 152 
 
 Baird «. Wells (1890), 44 Ch.D. 661 H 
 
 Baker t;. Eirminger (1859), 28 L. T. Ex. 130 78 
 
 Baker t>. Keen (1818), 2 Stark 601 15 
 
 Baldev w. Parker (1823), 2 B. & C. 37 22,99 
 
 Bank Line ?;. Capel & Co., [1919] A. C. 435 29 
 
 Bankart i;. Bowers (1860), L. R. 1 C. P. 484 77 
 
 Banner, ^a;2)orte (1876), 2 Ch.D. 278 61 
 
 Bannerman t;. White (1861), 31 L. J. C. P. 28 ... 34,36,36,121,180 
 
 Barber w. Meyerstein (1870), L. R. 4 H. L. 317 166 
 
 Barker «. Furlong, [1891] 2 Ch. 172 130 
 
 Barnard «. Faber, [1893] 1 Q. B. 340, C. A 179 
 
 Barnes «;. Toye (1884), 13 Q. B. D. 410 12 
 
 Barnett, fej)ar<e(1876), 3Ch. D. 123 *... 69 
 
 Barnett, ^ajyarie, Tamplin, iJe(1890), 7Morr. 70 67 
 
 Barnett u. Tavein & Co., [1916] 2 K. B. 390 183 
 
 Barr v. Gibson (1838), 3 M. & W. 390 28, 41, 42, 46, 54 
 
 Barrow, .Ba;yarie (1877), 6 Ch.D. 783 102 
 
 Barrow D. Arnaud (1846), 8 Q. B. 595 114,117 
 
 Bartholomew v. Markwick (1863), 33 L. J. 0. P. 145 ... 112 
 
 Bartlettw. Holmes(1853), 22L. J. C. P. 182 ... , 76,183 
 
 Barton Thomson & Co. v. Vigers Bros. (1906), 19 Com. Cas. 175 60 
 
 Batchelor u Vyse (1834), 4 M. & So. 662 65 
 
 Bates «. Batey & Co., [1913] 3 K. B. 351 47 
 
 Bazeley u Forder (1868), L. R. 3 Q. B. 559 -15. 
 
 Beaumont «;. Brengen (1847), 5 C. B. 301 22,58 
 
 Beaumont v. Greathed ( 1 846), 2 C. B. 494 ..113 
 
 Beckett v. Tower Assets Co., [1891] 1 Q. B. 638, C. A 7 
 
 Beer I'. Walker (1877), 46 L. J. C. P. 677 43,89,139 
 
 Behn u Burness (1863), 32 L. J. Q. B. 204, Ex. Ch. .., ... 36,121,141,181 
 Belsize Motor Supply Co. v. Cox, [1914] 1 K. B. 244 ... 1, 72, 73, 133, 119, 168 
 
 Bentley V. Vilmont (1887), 12 App. Cas. 471 71 
 
 Bentsen u. Taylor, [1893] 2 Q. B. 274, C. A. 36,37,140 
 
 Bergheim v. Blaenavon Co. (1876), L. R. 10 Q. B. 319 116 
 
 Berk u. International Explosives Co. (1901), 7 Com. Cas. 20 187 
 
 Berndtson «;. Strang (1868), L. R. 3 Ch. App. 688 101,103 
 
 Bethell D. Clarke (1888), 20 Q. B. D. 615, C. A 100,101,102,104 
 
 Betterbee u. Davis (1811), 3 Camp. 70 112 
 
 Beverley V. Lincoln Gas Co. (1837), 6 A. & E. 829 17,55 
 
 Bevingtonu Dale(1902), 7Com. Cas. 112 " 62,188 
 
 Bexwell j;. Christie (1776), Cowp. 395 129 
 
 Bianchi t). Nash (1836), 1 M. & W. 645 2 
 
 BiddeU Brothers v. E. Clemens Horst & Co., [1912] A. C. 18 H. L. ; 16 
 
 Com. Cas. 8 11, 48, 60, 80, 87, 135, 181 
 
 Biddlecombe «;. Bond (1835), 4 A. & E. 332 -. 142 
 
 Bigge »;. Parkinson (1862), 31 L. J. Ex. 301, Ex. Ch. 43,47,127 
 
TABLE OF CASES. XXI 
 
 PAGE 
 
 Biggirstaff V. Rowett's Wharf, [1896] 2 Ch. 93, C. A. 125 
 
 Biggs V. Evans, [1894] 1 Q. B. 88 148,151 
 
 Bird V. Brown (1850), 3 Bxoh. 786 103 
 
 Birstall Candle Co. v. DanieUs, [1908] 2 K. B. 254 75 
 
 Bishop V. Shilljto (1819), 2 B. & Aid. 329, n 2,33,135 
 
 Bissell «. Beard (1873), 28 L. T. 740 33 
 
 Blackburn Bobbin Co., Ltd. v. Allen & Sons, Ltd., [1918] 2 K. B. 467, C. A. : 29, 30 
 
 Blandford, ^a;^aj-«e(1893), lOMorr. 231 167 
 
 Bloxam V. Morley (1826), 4 B. & C. 951 97 
 
 Bloxam i-. Sanders (1825), 4 B. & C. 941 77,92,94,96,97 
 
 Bolton V. Lanes. & Yorks. Railway (1866), L. R. 1 C. R 431 95, 99, 100, 101, 
 
 102, 103, 104 
 
 Bonzi «. Stewart (1842), 4 M. & Gr. 295 154 
 
 Booth Steamship Co. v. Cargo Fleet Iron Co., [1916] 2 K. B. 570 ; 22 Com. 
 
 Cas. 9, C. A ... 95, 105, 106, 132 
 
 Borrowman v. Drayton (1876), 2 Ex. D. 15, C. A 40, 186 
 
 Bostock V. Nicholson, [1904] 1 K. B. 725, C. A 44, 122 
 
 Boswell V. Kilborn (1862), 15 Moore P. C. 309 ; 8 Jur. 443 ... 52, 55, 56, 114 
 
 Boulton i;. Jones (1858), 27 L. J. Ex. 117 18 
 
 Bourne «;. Seymour (1855), 24 L. J. C. P. 207 186 
 
 Bowes V. Shand (1877), 2 App. Cas. 465 33, 40, 41, 189 
 
 Boyd w. Siffkin (1809), 2 Camp. 326 189 
 
 Bradley «. Ramsay & Co. (1912), 106 L. T. 771, C. A 10,67,72 
 
 Brady «. Oastler (1864), 33 L. J. Ex. 300 117 
 
 Braithwaite v. Foreign Hardwood Co., [1906] 2 K. B. 543, C. A. : 37, 83, 92, 123 
 
 Brandt w. Bowlby (1831), 2 B. & Ad. 932 60 
 
 Brandt v. Lawrence (1876), 1 Q. B. D. 344, C. A 36, 182 
 
 Brandt & Co. «. Morris & Co., [1917] 2 K. B. 784, C. A 86 
 
 Bridge u. Wain (1816), Stark. 604 123 
 
 Bright, .Ea; parte (1879), 10 Ch. D. 566, C. A 4 
 
 Bright «;. Rogers, [1917] 1 K. B. 917 143 
 
 Brinsmead u. Harrison (1871), E. R. 6 C. P. 584 9 
 
 Bristol Bank v. Midland Railway, [1891] 9 Q. B. 653, C. A. 163 
 
 Bristol Tramways Co. v. Fiat Motors, Ltd., [1910] 2 K. B. 831, C. A. ... 18, 43, 
 
 45, 47, 48, 143 
 
 British Wagon Co. v. Lea (1880), 5 Q. B. D. 149 11 
 
 British Westinghouse Electric Co. v. Underground Railway, [1912] A. C. 
 
 673, H.L 115,123 
 
 Brogden ?;. Marriott (1846), 3 Bing. N. C. 88 30 
 
 Brogden «;. Metropolitan Ry. Co. (1877), 2 App. Cas. 666, H. L 17 
 
 Brooks V. Biernstein, [1909] 1 K. B. 98 4, 158 
 
 Brown D. Byrne (1854), 3 E. & B. 703 18,30 
 
 Brown v. Hare (1859), 29 L. J. Ex. 6, Ex. Ch 86, 1 84 
 
 Brown?). Muller(1872), L. R. 7Ex. 319 114,116 
 
 Brunner «;. Moore, [1903] 1 Ch. 305 33 
 
 Brutton V. Branson, [1898] 2 Q. B. 219 20 
 
 Bryans t;. Nix (1839), 4 M. & W. 775 66,84 
 
 Buckmanv. Levi (1813), 3 Camp. 414 ... 85,86 
 
 Budd V. Fairmaner (1831), 8 Bing. 48 ; 1 L. J. 0. P. 16 36, 41, 188 
 
 Buddie w. Green (1857), 27 L. J. Ex. 33 26,76,79 
 
 BuU V. Parker (1842), 12 L. J. Q. B. 93 5 
 
 BuUu. Robinson (1854), 10 Exoh. 342; 24 L. J. Ex. 165 89 
 
 Bunney v. Poyntz (1833), 4 B. & Ad. 568 94, 96 
 
XXU TABLE OF OASES. 
 
 PAHE 
 
 Burdickj;. SeweU(1884), 10 App. Cas. 74, H. L 8' 139 
 
 Busk u. Davis (1814), 2 M. & S. 397 ^° 
 
 Bussey D. Bamett (1842), 9 M. & W. 312 " 
 
 Cahn V. Pockett's Bristol Channel C!o.,[1899]l Q. B. 643, C. A. -. 60, 61, 73, 106, 
 
 156, 157 
 
 Cainv. Moon, [1896] 2 Q. B. 283 5,134 
 
 Cantifere Meocanico Brindisino v. Constant (1912), 17 Com. Cas. 182 ... 87 
 
 Calcutta Co. r. De Mattos (1863), 32 L. J. Q. B. 322 7,54,56,76,87, 
 
 112, 126, 183, 190 
 
 Cammel v. Sewell (I860), 29 L. J. Ex. 350, Ex. Ch 12 
 
 Campbellu. Mersey Docks (1863), 14 0. B.(K.S.) 412 51.56 
 
 Carlill v. Carbolic Co., [1892] 2 Q. B. 484 30 
 
 Camf orth. Ex parte ( 1 876), 4 Ch. D. 108, C. A. 142 
 
 Carter, ^ai^jarfe, [1905] 2 K.B. 381 167 
 
 Carter ?;. Crick (1859), 28 L. J. Ex. 238 48,187 
 
 Carver & Co., iJe (1911), 17 Com. Cas. 59 79,118 
 
 Cassaboglou v. Gibb (1883), 11 Q. B. D. 797 94, 96 
 
 Castle V. Playford (1872), L. R. 7 Ex. 98, Ex. Ch 31, 62 
 
 Castle V. Sworder (1861), 30 L. J. Ex. 310, Ex. Ch 22, 89, 90- 
 
 CasweU i;. Coare (1809), 1 Taunt. 566 92,123 
 
 Caton t). Caton (1867), L. R. 2 H. L. 127 ' 23 
 
 Cavalier v. Pope, [1905] 2 K. B. 757, C. A 47 
 
 Chalmers, Ex parte (1873), L. R. 8 Ch. App. 289 93, 96, 97, 98, 101 
 
 Chandelor v. Lopus (1603), 2 Croke 2 ; 1 Smith L. C, 9th Ed., p. 186 ... 35 
 
 Chandlers. Webster, [1904] 1 K. B. 493, C. A 29 
 
 Chanter s;. Dickinson (1843), 5 M. & Gr. 253 169 
 
 Chanter v. Hopkins (1838), 4 M. & W. 399 ; 8 L. J. Ex. 14 : 18, 42, 43, 141, 180 
 
 Chaphn «. Rogers (1800), 1 East, 192 22,79 
 
 Chapman r. Morton (1843), 11 M. & W. 534 90 
 
 Chapman i;. Speller (1850), 14 Q. B. 621 26 
 
 Chapman v. Withers (1888), 20 Q. B. D. 824 123. 188 
 
 Chappie V. Cooper (1844), 13 M. & W. 252 14, 16 
 
 Chapronike ?;. Mason (1905), 21 T. L. R. 633, C. A 44 
 
 Chesham v. Beresford Hotel (1913), 29 T. L. R. 584 65 
 
 Chesterman u Lamb (1834), 2 A. & E. 129 92 
 
 Chinery V. ViaU (1860), 29 L. J. Ex. 180 77,119 
 
 City Bank i;. Barrow (1880), 5 App. Cas. 664 12, 64; 66, 148 
 
 Clark V. Cox, McEwen & Co. (1919), 24 Com. Cas. 280 29, 183 
 
 Clarke I). Army & Navy C. S. Ltd., [1903] 1 K. B. 155, C. A. ... 47,131 
 
 Clarke V. Hutchins (1811), 14 East, 475 85 
 
 Clarke v. Spence (1836), 4 A. & E. 448 ; 6 L. J. K. B. 161 68 
 
 Clarke r). Westrope (1856), 25 L. J. 0. P. 287 32 
 
 Clayton j;. Burtenshaw (1826), 5 B. & C. 41 169 
 
 Clayton D. Leroy (1911), 104 L. T. 419 68 
 
 Clemens (E.) Horst & Co. v. Biddell Bros., [1912] A. 0. 18 H. L. : 77, 87, 89, 184 
 
 Clifford t). Watts (1870), L. R. 5 C. P. 577 27 
 
 Close, Ex parte, HaU, Re (1886), 54 L. J. Q. B. 43 149 
 
 Clough V- Lond. & N. W. Railway (1871), L. R. 7 Ex. 26 ■ ... 70 
 
 Clyde Cycle Co. v. Hargreaves (1898), 78 L. T. 296 16 
 
 Cochrane v. Moore (1890), 26 Q. B. D. 57, C. A 5, 9, 53 
 
 Cookerell v. Aucompte (1867), 26 L. J. C. P. 194 82, 186 
 
 Coddington v. Paleologo (1867), L. R. 2 Ex. 193 84, 181, 184 
 
TABLE OF OASES. XXlll 
 
 PAGE 
 
 Coggs V. Bernard, 1 Smith L. C. 11th Ed. 173 ; 2 Ld. Raym. 909 8 
 
 Cohen v. MitoheU (1890), 25 Q. B. D. 262, C. A 10 
 
 Cointat «. Myham (1914), 30 T. L. R. 282, 0. A 126 
 
 Cole V. North- Western Bank (1876), L. R. 10 C. P. 354, Ex. Ch. : 66, 147, 148, 151, 
 
 152, 153, 154, 155, 157, 160 
 
 Collina, Ex parte. Lees, Re ( 1 875), L. R. 10 Ch. App. 367 176 
 
 CoUyer v. Isaacs (1881), 19 Ch. D. 342, C. A 26 
 
 Colonial Bank v. Whinney (1886), 11 App. Gas. 426 64, 66, 137 
 
 Colonial Ins. Co. v. Adelaide Mar. Ins. Co. (1886), 12 App. Cas. 128 P. C: 64, 81, 
 
 84, 186 
 
 Comber «. Leyland, [1898] A. C. 524, H. L 4 
 
 Congreve v. Evetts (1854), 10 Exch. 298 ; 23 L. J. Ex. 273 26, 135 
 
 Consolidated Co. v. Curtis & Son, [1892] 1 Q. B. 495 64, 130 
 
 Cooke V. Eshelby (1887), 12 App. Cas. 271 160 
 
 Cooper, Sa;i3arie(1879), llCh. D. 68, C. A 98,104 
 
 Cooper V. BUI (1865), 34 L. J. Ex. 161 99 
 
 Cooper «;. Mioklefield (1912), 107 L. T. 457 11 
 
 Cooper V. Shepherd (1846), 3 C. B. 226 ; 15 L. J. C. P. 237 9 
 
 Cooper V. WiUomatt (1845), 1 C. B. 672 ; 14 L. J. G. P. 249 ... 64, 119 
 
 Cork DistiUeries Co. v. G. S. Railway (1874), L. R. 7, H. L. 269 191 
 
 Corn Products Co. D. Fry, [1917] W. N. 224 171 
 
 Cornish v. Abington (1859), 28 L. J. Ex. 262 10, 17 
 
 Gort V. Ambergate Railway Co. (1851), 17 Q. B. 127 37, 114 
 
 Cory V. Thames Iron Works Go. (1868), L. R. 3 Q. B 118 
 
 Gountyof DurhamEleotricalCo. v. InIandRevenue,[1909]2K. B. 604, 0. A. : 138, 169 
 
 County of Lancaster Steamship I). Sharp (1889), 24 Q. B. D. 158 185 
 
 Couston V. Chapman (1872), L. R. 2 Sc. App. 250 ... 37, 50, 91, 121, 129 
 
 Couturier v. Hastie (1866), 5 H. of L. Cas. 673 ; 25 L. J. Ex. 253 ... 27, 28 
 
 Covas «;. Bingham (1853), 2 E. & B. 836 125,186 
 
 Coventry v. Gladstone (1868), L. R. 6 Eq. 44 102, 108 
 
 Coventry v. Great Eastern Railway Co. (1883), 11 Q. B. D. 776 10 
 
 Cowasjee v. Thompson (1845), 5 Moore H. P. C. 165 86, 149, 184 
 
 Cowern u. Nield, [1912] 2 K. B. 419 13 
 
 Cox «. Hoare (1907), 96 L. T. (N.s.) 719, C. A 20,133 
 
 Cox 17. Todd (1826), 7 D. & R. 131 184 
 
 Crane v. London Dock Go. (1864), L. J. Q. B. 224 67, 68 
 
 Cranston v. MarshaU (1860), 5 Exch. 395 179 
 
 Craven 17. Ryder (1816), 6 Taunt. 433 107 
 
 Crawcour,.Ba;i3flsrte, Robertson, iJe (1878), 9 Ch. D. 419, C. A 2 
 
 Crichton v. Lowe (1908), 9 F. 818, Ct. of Seas 44 
 
 Croft D. Lumley (1858), 6 H. of L. Cas. 672 70 
 
 Cross «;. Eglin (1831), 2 B. & Ad. 106 186 
 
 Cross V. Williams (1842), 31 L. J. Ex. 145 17 
 
 Crozier & Co. v. Auerbaoh, [1908] 2 K. B. 161, C. A. 87 
 
 Cundy «. Lindsay (1878), 3 App. Cas. 459 , 64,69,70 
 
 Cunliffe v. Harrison (1851), 6 Exch. 903 ; 20 L. J. Ex. 325 81, 82 
 
 Cunningham & Co., Re (1885), 64 L. J. Ch. 448 149 
 
 Cusaok V. Robinson (1861), 30 L. J. Q. B. 261 22, 97, 99 
 
 Guthbert t). Gumming (1865), 11 Exch. 405, Ex. Ch 186 
 
 Cutter V. Powell (1795), 2 Smith L. C. 11th Ed. 1 ; 6 Term Rep. 320: 78, 141, 178 
 
 Daimler Co., The v. Continental Tyre Co., [1916] 2 A. C. 387, H. L. ... 16 
 
 Dale Steamship Co. v. Nofthem Steamship Go. (1918), 62 S. J. 328, C. A. ... 29 
 
XXIV TABLE OF 0A8E8. 
 
 PAQB 
 
 Daniel «. Rogers, [1918] 2 K. B. 225, C. A. 17 
 
 Davies «. Burnett, [1902] 1 K. B. 660 11 
 
 Davisv. Hedges (1871), L.B. 6 Q.B. 687 121 
 
 Davis «. Phillips (1908), 24 T. L. R. 4 20 
 
 Davis D. Reilly, [1898] 1 Q. B. 1 113 
 
 Davys u. Buswell, [1913] 2 K. B. 47 25 
 
 Dawsonw. Collis( 1851), IOC. B. 523 121 
 
 Debenham v. Mellon (1880), 6 App. Cas. 24 H. L. 15 
 
 Debtor, a, /Je, [1908] 1 K. B. 334, 0. A 113 
 
 De Lassalle v. Guildford, [1901] 2 K. B. 215, 0. A 35, 141 
 
 Denny «;. Skelton (1916), 115 L. T. 306 135 
 
 Deny ?'. Peek (1889), 14 App. Cas. 337 141,142 
 
 Derflinger No. 2, The (1918), 118 L. T. (n.S.) 521 61 
 
 Devaux u. ConoUy (1849), 8 C. B. 640 125 
 
 Dickinson t). Naul (1833), 4 B. & Ad. 638 10 
 
 Diestal v. Stevenson & Co., [1906] 2 K. B. 345 ; 12 Com. Cas. 1 ... 114, 116 
 
 Dixon, j;a;^arfe (1876), 4 CkD. 133 161 
 
 Dixon «. Baldwen (1804), 5 East, 175 103 
 
 Dixon V. Fletcher (1837), 3 M. &W. 146 81 
 
 Dixon V. London Small Arms Co. (1876), 1 App. Cas. 633 4, 6 
 
 Dixon u. Yates (1833), 5 B. & Ad. 313 51,53,54,98,107 
 
 Dodsley V. Varley (1840), 12 A. & B. 632 99,100 
 
 Dodson V. Wentworth ( 1 842), 4 M. & Gr. 1080 102 
 
 Doe f. Bowater, Ltd., [1916] W. N. 185 187 
 
 Doe t). Donston (1818), 1 B. & Aid. 230 65 
 
 Dominion Coal Co. v. Dominion Iron & Steel Co., [1909] A. C. 293, P. C. 83, 188 
 
 Donald v. Suckling (1866), L. R. 1 Q. B. 685 8, 139 
 
 Doolubduss V. Ram RoU ( 1850), 5 Moore Ind. App. 109, P. C 130 
 
 DoralAllyw. AbdoolAzeez(1878), L. R. 5Ind. App. 116 ... 39 
 
 Drake, Ex parte (1877), 5 Ch. D. 866, C. A. ...- ^ 9, 10 
 
 Drew v. Nunn (1879), 4 Q. B. D. 661, C. A 14 
 
 Driefontein ConsoUdated Mines v. Janson, [1902] A. C. 484, H. L 16 
 
 Drummond v. Van Ingen (1887), 12 App. Cas. 284 42, 43, 48, 49, 127 
 
 Dublin City Distillery Co. ?;. Doherty, [1914] A. C. 823 134 
 
 Duncan «. Topham (1849), 8 C. B. 226 184 
 
 Duncan Fox & Co. t'. Schrempt, [1915] 3 K. B. 365, C. A 87 
 
 Dunkirk ColUery «;. Lever (1878), 9 Ch. D. 20 114 
 
 Dunlop w. Grote (1846), 2 C. & K. 153 Ill 
 
 Dunlop V. Higgins (1848), 1 H. of L. Cas. 381 117 
 
 Dunlop V. Lambert (1839), 6 CI. & F. 600 84,189 
 
 Dunlop Pneumatic Tyre Co. v. New Garage & Motor Co., [1915] A. C. 79, H. L. 118 
 Dunlop Pneumatic Tyre Co. f. SeUridge & Co., [1916] A. C. 847, H. L. ... 32 
 
 Dutton u Solomonson (1803), 8 B. & D. 582 66,84 
 
 Duval Charles i;. Gane, [1904] 2 K. B. 685, C. A 112 
 
 Ebbw Vale Steel Co. V. Blaina Iron Co. (1901), 6 Com. Cas. 33, C. A. ... 83 
 
 Eberle v. Jonas (J887), 18 Q. B. D. 459, C. A. 9 
 
 Edanj). Dudfield(1841), 1 Q. B. 302; 4Per. &Dav. 666 22 
 
 Edwards i-. Vaughan (1910), 26 T. L. R. 545, C. A 66 
 
 Egerton w Matthews (1805), 6 East, 307 23 
 
 Eichholz i;. Bannister (1864), 34 L. J. C. P. 105 38- 
 
 iiitelBieber&Co. ?;. RioTintoCo., [1918] A. C. 260, H. L. 30 
 
 Elbinger Actien Gesellschaft v. Armstrong (1874), L. B. 9 Q. B. ... 118, 123 
 
TABLE OF OASES. XXV 
 
 _„ „ PAGE 
 
 EUen «;. Topp (1851), 6 Exch. 424 36 
 
 Elliman V. Camngton, [1901] 2 Ch. 275 32 
 
 ■Ellis «. Hunt (1789), 3 T. E. 464 79 
 
 Ellis t). Thompson (1838), 3 K & W. 445 79 
 
 Elmore t;. Kingscote (1826), 5 B. & C. 583 23 
 
 Elmore v. Strong (1809), 1 Taunt. 458 ... 22,79,134 
 
 Elphick «. Barnes (1880), 5 C. P. D. 321 28,65,62 
 
 Emanuel «. Dane (1812), 3 Camp. 277 6 
 
 Embiricos v. Anglo-Austrian Bank, [1905] 1 K. B. 677, 0. A 12 
 
 EmmeiBon D. Hellis (1809), 2 Taunt. 38 129 
 
 Emmerton «. Matthews (1862), 31 L. J. Ex. 139 47 
 
 Erie County Fuel Co. v. Carroll, [1911] A. C. 116, P. C 138 
 
 Erie Natural Gas Co. v. Carroll, [1911] A. C. 106, P. C 117 
 
 Esposito w. Bowden (1857), 7 E. & B. 763, Ex. Ch 37 
 
 Fairmaner t;. Budd (1831), 7 Bing. 574 6 
 
 Falk, JS;a;^arte(1880), 14Ch. D. 446, C. A. 106,109 
 
 Farebrother V. Simmons (1822), 5 B. & Aid. 333 24 
 
 Farina v. Home (1846), 16 M. & W. 119 79, 134 
 
 Farmiloe v. Bain (1876), 1 C. P. D. 445 51, 107 
 
 Farquharson Brothers v. King & Co., [1902] A. C.'325, H. L. ... 10, 65, 66 
 
 Feise «;. Wray (1802), 3 East, 93 93 
 
 Feliciana, The (1915), 29 S.J. 5'16 142 
 
 Fenwick V. Macdonald (1904), 6 F. 850 129 
 
 Ferens V. Obrien (1883), 11 Q. B. D. 21 138 
 
 Fessard v. Mugnier (1865), 34 L. J. C. P. 126 112 
 
 Field V. Lelean (1861), 30 L. J. Ex. 168, Ex. Ch 18, 78, 97, 183 
 
 Fisehel r). Scott (1864), 15 C. B. 69 183 
 
 Fletcher i>. Tayleur (1856), 17 C. B. 21 118 
 
 Forbes u Smith (1863), 11 W. R. 574 ; ... 112 
 
 Ford «. Yates (1841), 2 M. & Gr. 549 78 
 
 Foi^et V. Ostigny, [1895] A. C. 318, P. C 30 
 
 Forrest v. Avamayo (1900), 9 Asp. Mar. Cas. 134, C. A 76, 92 
 
 Forysth «;. Jervis (1816), 1 Stark. 437 5 
 
 Fowkes V. Manchester life Assurance Association (1862), 32 L. J. Q. B. 153 : 127 
 
 Fragano t). Long (1826), 4 B. & C. 219 56,62 
 
 France i;. Gaudet (1871), L. R. 6 Q. B. 199 119 
 
 Francis, £« parte (1887), 4 Morr. 146 102 
 
 Franklin V. Neate (1844), 13 M. & W. 481 139 
 
 Freemant;. Appleyard(1862), 32L. J. Ex. 175 137 
 
 Freeman v. Cooke (1848), 2 Ex. 654 ; 18 L. J. Ex. 114 64 
 
 Freeth i;. Burr (1874), L. R. 9 C. P. 208 84 
 
 French i;. Howie, [1906] 2 K. B. 674, C. A 15 
 
 Frost V. Aylesbury Dairy Co., [1905] 1 K. B. 608, C. A 42, 44 
 
 Fuentes v. Montis (1868), L. R. 4 C. P. 93 Ex. Ch 146, 153, 160 
 
 Furley v. Bates (1863), 33 L. J. Ex. 43 54, 66, 58 
 
 Gabarron V. Kreeft (1876), L. R. 10 Ex. 274 610 
 
 Gabriel (Thomas) & Sons v. Churchill, [1914] 3 K. B. 1272, C. A 32 
 
 Gapp V, Bond (1887), 19 Q. B. D. 200 167 
 
 Gardiner t;. Grey (1816), 4 Camp. 144 •... 49 
 
 Gardner v. Grout (1857), 2 C. B. (n.s.) 340 22 
 
 Gattomo i;. Adams (1862), 12 C. B. (N..S.) 560 182 
 
 Geake V. Ross (1876), 44 L. J. C. P. 315 113 
 
 C.S.G. ' C 
 
XXVI TABLE OF CAS^S. 
 
 PASB 
 
 General Trading Co., Be (1911), 16 Com. Cas. 96 33 
 
 Genn «;. Winkel (1912), 17 Com. Gas. 323, 0. A 57,91 
 
 George w. Sldvington (1869), L. R. 6 Ex. 1 47 
 
 George Whiteohurch, Ltd. v. Cavanagh, [1902] A. C 164 
 
 Gihhes, Ex parte {1815), I Ch. B. 101 101 
 
 Gibson?;. Carruthers (1841), 8 M. &W. 321 95,100,101 
 
 Gibson «. HoUand (1865), L. R. 1 C. P. 1 23 
 
 Gieve, i?e, [1899] 1 Q. B. 794, C. A 30 
 
 GiU V. MoDoweU, [1902] 2 Irish Rep. 463 18 
 
 Gillard t). Brittan (1841), 8 M. & W. 575 119 
 
 GiUespie Brothers v. Cheyney, [1896] 2 Q. B. 59 43, 44 
 
 GiUett i>. HiU (1834), 2 Cr. & M. 530 10,52 
 
 Gibnour v. Supple (1858), 11 Moore, P. C. 551 ; 6 W. R. 445 54 
 
 Glasgow S. W. R,ailway D. Forrest, [1916] A. 0. 526, H. L. 35 
 
 Glyn Mills & Co. «;. East & West India Docks (1882), 7 App. Cas. 691 ... 165 
 Godts V. Rose (1856), 17 C. B. 229 ; 26 L. J. C. P. 61 : 22, 66, 60, 79, 136, 183 
 
 Godwin v. Francis (1870), L. R. 5 C. P. 295 23 
 
 Golding Davis & Co., Ex parte (1880), 13 Ch. D. 628, C. A 86, 107, 108 
 
 Goldshedev. CottreU(1836), 2M. & W. 20 93 
 
 Gompertz D. Denton (1832), 1 Cr. & M. 207 121 
 
 Goodbody, iJe (1900), 5 Com. Cas. 69, C. A 183 
 
 Goodlock t). Cousins, [1897] 1 Q. B. 558, C. A. 65 
 
 Gordon u Swan (1810), 2 Camp. 429 113 
 
 Gordon u Whitehouse (1856), 18 C. B. 747 113 
 
 Gore V. Gibson (1846), 13 M. & W. 623 ; 13 L. J. Ex. 151 14 
 
 Gorrissen v. Perrin (1857), 27 L. J. C. P. 29 183, 186 
 
 Gobs «. Nugent (Lord) (1833), 6 B. & Ad. 68 24 
 
 Grafi «. Evans (1882), 8 Q. B. D. 373 11 
 
 Graham w.Musson (1839), 5 Bing. N. C. 603 21 
 
 Grantham v. Hawley (1603), Hobart Rep. 132 ; 2 Roll. 48, pi. 20 27 
 
 Graves v. Legg (1854), 9 Exch. 709 ; 23 L. J. Ex. 228 36, 114, 182 
 
 Graves ?;. Weld (1833), B. & Ad. 106 137 
 
 Great Northern Railway Co. v. Swiffield (1874), L. R. 9 Ex. 152 65 
 
 Greaves j;. Ashhn (1813), 3 Camp. 425 92,109 
 
 Greaves V. Hepke (1818), 2 B. & Aid. 131 56 
 
 Grebert-Borgnis v. Nugent (1886), 15 Q. B. D. 85, C. A. ... 116, 118, 124 
 
 Green v. All Motors, Ltd., [1917] 1 K. B. 625, C. A. 158 
 
 Green v. Baverstoek (1863), 32 L. J. C. P. 181 ... 129 185 
 
 Gregg «. Wells (1839), 10 A. & E. 90 ' 64 
 
 Grice «. Richardson (1877), 3 App. Cas. 319, P. C. ... 97 
 
 Griffiths V. Perry (1859), 28 L. J. Q. B. 204 93, 96, 97, 99, 100, 101 
 
 Grigg V. National Guardian Assurance Co., [1891] 3 Ch. 206 167 
 
 Grimoldby v. Wells (1875), L. R. 10 C. P. 391 " '"50 91 
 
 Grissell v. Bristowe (1868), L. R. 4 C. P. 36 Ex. Ch !. ... ' 7 
 
 Groom i;. Barber, [1916] 1 K. B. 316 61,62,87,88,185 
 
 Guarantee Trust Co. of New York v. Hannay & Co., [1918] 2 K. B. 623, C. A. 165 
 Gunn V. Bolokow, Vaughan & Co. (1878), L. R. 10 Ch. App. 491 : 93,'94, 97, 149 
 
 Gumey v. Behrend (1854), 3 E. & B. 622 165 
 
 Gwillim V. Daniell (1835), 2 C. M. & R. 61 [" 186 
 
 Hadley v. Baxendale (1854), 9 Exoh. 341 ; 2 Smith, L. C. ; 11th Ed. 639 116 
 Haegerstrand v. Annie Thomas Steamship Co. (1906), 10 Com. Cas. 67 ... 189 
 Hale D. Rawson (1868), 27 L. J. C. P. 189 ... ... 26,29,37,182,183 
 
TABLE OF OASES. 
 
 xxvn 
 
 Hall, Be, Close, Ex parte (1885), 54 L. J. Q. B. 43 
 
 Hallas V. Robinson (1886), 15 Q. B. D. 288, C. A 
 
 HaUiday v. Holgate (1868), L. R. 3 Ea. 299, Ex. Ch 
 
 HamUton v. MajHI (1883), 12 Ir. L. R. 186 
 
 Hamilton w. Vaughan, [1894] 3 Ch. 689 
 
 Hammond v. Bussey (1887), 20 Q. B. D. 79, C. A 
 
 Hanks v. Palling (1856), 6 E. & B. 669 ; 25 L. J. Q. B. 375 ... 
 
 Hanson w. Armitage (1822), 5 B. & Aid. 657 
 
 Hanson «. Meyer (1805), 6 East, 614 
 
 Happev. Manas8eh(1915), 32T. L. R. 112, C. A 
 
 Hardman v. Booth (1863), 32 L. J. Ex. 106 ; 1 H. & C. 803 
 
 Hargreave v. Spink, [1892] 1 Q. B. 26 - ... 
 
 Harland «;. BurstaU (1901), 6 Com. Gas. 113 
 
 Harman v. Reeve ( 1856), 26 L. J. C. P. 267 
 
 Hamor v. Groves (1865), 15 C. B. 667 ; 24 L. J. C. P. 53 
 
 Harris v. Nickerson ( 1 873), L. R. 8 Q. B. 286 , 
 
 Harrison i;. Knowles & Foster, [1918] 1 K. B. 608, 0. A 
 
 Harrison v. Luke (1845), 14 M. & W. 139 
 
 Harrison & Mioks, .Be, [1917] 1 K. B. 765 
 
 Hart i;. Mills (1846), 15 M. & W. 86 
 
 Harvey & Co., Ex parte (1890), 7 Morr. 138 
 
 Haatingb w. Pearson, [1893] 1 Q. B. 62 
 
 Hatfield v. Phillips (1842), 9 M. & W. 647 ; (1845), 14 M. & W. 665 
 
 Hathering v. Laing (1873), L. R. 17 Eq. 92 
 
 Hawes «;. Wilson (1824), 2 B. & C. 543 
 
 Hayman v. Flewker (1863), 32 L. J. C. P. 132 
 
 Hayman v. M'Lintoek (1907), 9 F. a. of Sesb. 
 Haynes v. Haynes (1861), 1 Dr. & Sm. 426 ... 
 Head v. Tattersall (1871), L. R. 7 Ex. 7 
 Healey v. Howlett & Sons, [1917] 1 K. B. 337 
 Heilbutt V. Hickson (1872), L. R. 7 C. P. 438 ... 
 
 Helby V. Matthews, [1895] A. C. 471, H. L 
 
 Hellings v. RusseU (1876), 33 L. T. (n.s.) 380 
 
 Henderaon i;. Williams, [1895] 1 Q. B. 621 
 
 Heron «. Grainger (1803), 6 Esp. 269 
 
 Heseltine v. Siggers ( 1 848), 1 Exch. 866 
 
 Hewlings v. Graham (1901 ), 70 L. J. Ch. 568 
 
 Heyward's Case (1595), 2 Coke 35 a ; Poph. 95 ; 2 And. 202 
 Heyworth v. Hutohiiison (1867), L. R. 2 Q. B. 447 ... 48, 49, 141 
 
 Hibblewhite v. M'Morine (1839), 5 M. & W. 462 
 Hickman v. Haynes (1875), L. R. 10 C. P. 598 
 
 Higgons V. Burton (1867), 26 L. J. Ex. 342 
 
 Hilbery v. Hatton (1864), 33 L. J. Ex. 190 
 
 HiU D. Perrott (1810), 3 Taunt. 374 
 
 Hill V. Smith (1812), 4 Taunt. 520, Ex. Ch 
 
 Hill & Sons V. Showell & Sons (1918), 87 L. J. Q. B. 1106, H. L. ... 
 
 HinchcUffe v. Barwick (1880), 6 Ex. D. 177, C. A 
 
 Hinde v. Liddell (1876), L. R. Q. B. 266 
 
 Hinde «. Whitehouse (1866), 7 East, 558 
 
 Hiort V. London & North-We&tem Railway (1879), i Ex. D. 188, C. A. 
 
 Hitchcock i;. Giddings (1817), Daniell, 1 
 
 Hoadly «;. MT.aine (1834), 10 Bing. 482 
 
 PAQE 
 
 ... 149 
 
 ... 27 
 
 8, 139 
 
 ... 125 
 
 ... 14 
 
 116, 121, 126 
 
 ... 26 
 
 22,86 
 
 ... 55 
 
 ... 88 
 
 69, 157 
 
 ... 68 
 
 81, 187 
 
 ... 6,21 
 
 35, 49, 90 
 
 ... 130 
 
 35,36 
 
 5 
 
 186, 187 
 
 ... 81 
 
 4 
 
 148, 151 
 
 ... 153 
 
 ... 149 
 
 99 
 
 148 
 
 62, 79, 108, 139 
 
 174, 175 
 
 7, 59, 62, 91, 188 
 
 67 
 
 2, 34, 36, 48, 60, 61, 56, 67, 
 89, 90, 91, 121, 179 
 
 1, 64, 133, 168 
 
 148 
 
 10 
 
 169 
 
 25 
 
 16 
 
 ... 59 
 
 181, 188 . 
 
 ... 26 
 
 26, 114, 118 
 
 ... 69 
 
 ... 119 
 
 ... 10 
 
 ... 49 
 
 ... 117 
 
 ... 188 
 
 116, 117 
 
 ... 22 
 
 119 
 
 26 
 
 23 
 
 61, 
 
XXVIU 
 
 TABLE OF GASES. 
 
 J. Ch. 193 
 
 Hoare «. Rennie (1859), 29 L. J. Ex. 73 
 
 Hodgens v. Hodgens (1837), 4 01. & F. 323, H. L 
 
 Hodgson V. Loy (1797), 7 T. R. 440 
 
 Holden v. Bostock (1902), 60 W. R. 323, C. A. 
 Holdsworth v. Glasgow Bank (1880), 6 App. Cas. 317 
 
 Hollins V. Fowler (1875), L. R. 7 H. L. 757 
 
 Holroyd v. MarshaU (1862), 10 H. of L. Cas. 191 ; 33 L. 
 
 Holyday v. Morgan (1858), 28 L. J. Q. B. 9 
 
 Honok V. Muller (1881), 7 Q. B. D. 92, C. A 
 
 Hooper v. Gumm (1867), 2 Ch. App. 282 
 
 Hope V. Hayley (1856), 25 L. J. Q. B. 165 
 
 Hopkins v. Hitchcock (1863), 32 L. J. C. P. 164 
 
 Hopkins V. Tanqueray (1854), 15 C. B. 130 ; 23 L. J. C. P. 162 
 
 HorsfaU v. Thomas (1862), 31 L. J. Ex. 322 
 
 Horwood V. Smith (1788), 2 T. R. 760 
 
 Houlditch V. Desanges (1818), 2 Stark. 337 
 
 Howard v. Castle (1796), 6 T. R. 642 ... 
 
 Howe V. Smith (1884), 27 Ch. D. 87, C. A. 
 
 Howell V. Coupland (1876), 1 Q. B. D. 258, C. 
 
 Howell V. Richards (1809), 11 East, 633 
 
 Howes «. BaU (1827), 7 B. & G. 481 ... 
 
 Hubbard, Ex parte (1886), 17 Q. B. D. 690 ; 55 L. J. Q. B. 490 
 
 Hughes, Ex -parte { 1 892), 4 Morr. 294 
 
 Hugill V. Masker (1889), 22 Q. B. D. 364, C. A. 
 Hull V. Adams (1896), 65 L. J. Q. B. 114 
 Humble v. MitcheU (1839), 11 A. & E. 205 .. 
 
 Hunt V. Hecht (1853), 8 Exch. 814 
 
 Hussey v. Home Payne (1879), 4 App. Cas. 311 
 Hutchinson v. Bowker (1839), 5 M. & W. 535 
 
 Hutton V. Warren ( 1 836), 1 M. & W. 466 
 
 Hutton V. Lippert (1883), 8 App. Cas. 309, P. C. 
 Hydraulic Co. v. MoHaffie (1878), 4 Q. B. D. 670, C. A, 
 Hyslop V. Sbirland (1905), 7 F. 875, Ct. of Sess. 
 
 84 
 
 15 
 
 93 
 
 122 
 
 123 
 
 64, 65, 66, 119 
 
 26 
 
 188 
 
 76, 83, ,84, 126, 181 
 
 .. 138 
 
 .. 26 
 
 .. 41 
 
 34, 35 
 
 .. 42 
 
 68,70 
 
 .. 99 
 
 .. 129 
 
 23,31 
 
 28,29 
 
 .. 38 
 
 8,139 
 
 .. 7,8 
 
 .. 102 
 
 21, 157 
 
 .. 158 
 
 .. 137 
 
 118, 
 
 195 
 
 Imperial Bank v. London & St. Katherine Dock Co. (1877), 5 Ch. D 
 
 Imperial Loan Co. f. Stone, [1892] 1 Q. B. 699, C. A. 
 
 Inglis V. Robertson, [1898] A. C. 616 ; 67 L. J. P. C. 108 ... 143, 147, 
 Inglis V. Stack (1885), 10 App. Cas. 263 ; 64 L. J. Q. B. 582 
 International Sponge Co. v. Andrew Watts & Sons, [1911] A. C. 279 
 Ireland v. Livingston (1872), L. R. 5 H. L. 396; 41 L. J. Q. B. 20L 87, 93, 
 Isherwood v. Whitmore (1843), 11 M. & W. 347 ; 12 L. J. Ex. 318 
 
 Jackson «. AUaway (1844), 6 M. & Gr. 942 ; 13 L. J. C. P. 84 78 
 
 Jackson v. Rotax Motor Cycle Co., [1910] 2 K. B. 937, C. A. : 36, 45, 48, 82, 84, 
 
 184 
 
 Jackson w. Scott (1899), 2 F. 70, H. L. 42 
 
 Jackson v. Union Marine Insurance Co. (1874), L. R. 10 C. P. 125 ... 29 
 
 Jackson v. Watson & Sons, [1909] 2 K. B. 193, C. A. 44, 122 
 
 Jager «;. Tolme, [1916] 1 K. B. 9^9, C. A 11,88 
 
 James «;. Griffin (1837), 2 M. &W. 623 103,104 
 
 Jay «;. Robinson (1890), 26 Q. B. D. 467 16 
 
 .Jenkynsi). Brown(1849), 14Q. B. 496; 19L. J. Q. B. 286 139 
 
 Jenkyns v. Usborne (1844), 7 M. & Gr. 678 94,157 
 
 20 
 
 187 
 
 128 
 
 4 
 
 124, 184 
 188 
 
 94 
 
 14 
 
 153, 166 
 
 52,86 
 
 112 
 
 185, 186, 
 
TABLE OF OASES, XXIX 
 
 PAOK 
 
 Jenner v. Smith ( 1869), L. R. 4 C. P. 270 51 , 56 
 
 Jevan «. Whitworth (1866), L. R. 2 Eq. 692 164 
 
 John Griffiths Cycle Co. V. Humber & Co., [1899] 2 Q. B. 414, 0. A. ... 24 
 
 Johnson v. Credit Lyonnais (1877), 3 C. P. D. 32 ; 47 L. J. Q. B. 241 ... 110, 
 
 155, 1S6, 160 
 
 Johnson v. Dodgson (1837), 2 M. & W. 653 ; 6 L. J. Ex. 185 23 
 
 Johnson u. Lancashire Railway (1878), 3 C. P. D 119 
 
 Johnson v. Maodonald (1842), 9 M. & W. 600 9, 189 
 
 Johnson v. Raylton (1881), 7 Q. B. D. 438; 50 L. J. Q. B. 753, C. A. : 11, 45, 187 
 
 Johnson V. Stear (1863), 33 L. J. C. P. 130 119 
 
 Johnstone ti. Marks (1889), 19 Q. B. D. 509, C. A 12 
 
 Jonassohn v. Young (1863), 32 L. J. Q. B. 385 84 
 
 Jones, iZe (1889), 5 Morr. 193 58 
 
 Jones u. Bowden (1813), 4 Taunt. 847 43 
 
 Jones «;. Bright (1829), 5 Bing. 533 42,46,179 
 
 Jones V. Gibbons (1853), 8 Exch. 920 80,115,184 
 
 Jones V. Gordon (1877), 2 App. Cas. 616 ; 47 L. J. (Bey) 1 141, 142 
 
 Jones «. Just (1868), L. R. 3 Q. B. 197 42,43,121 
 
 Jones w Padgett (1890), 24 Q. B. D. 650 43 
 
 Jones t). TankerviUe, [1909] 2 Ch. 440 120,138 
 
 Jones V. Victoria Dock Co. (1877), 2 Q. B. D. 314 23 
 
 Jordeson & Co. V. London Hardwood Co. (1813), 19 Com. Cas. 161 ... 60 
 
 Joseph V. Lyons (1884), 15 Q. B. D. 280, C. A 27 
 
 Josling «. Irvine (1861), 6 H. & N. 512 ; 30 L. J. Ex. 78 116 
 
 Josling V. Kingsford (1863), 13 C. B. (n.s.) 447 ; 32 L. J. C. P. 64 40 
 
 Joyce V. Swann (1864), 17 C. B. (N.s.) 84 54,56 
 
 Kaltenbach v. Lewis (1885), 10 App. Cas. 617 154, 160 
 
 Kaltenbach V. Mackenzie (1878), 3 C. P. D. 467, C. A 65 
 
 Karburg (Amhold) v. Green Blythe & Co., [1916] 1 K. B. 495 ; 25 Com. Cas. 
 
 174, C. A 30, 87 
 
 Keighley u Durant, [1901] A. C. 240 131 
 
 Keith V. Burrows (1876), 1 C. P. D. 722 ; 45 L. J. Q. B. 876 7 
 
 Kemp V. Baerselman, [1906] 2 K. B. 604, C. A 11 
 
 Kemp V. Falk (1882), 7 App. Cas. 573 ; 52 L. J. Ch. 167 : 95, 98, 102, 104, 106, 
 
 106, 107, 108, 109, 149 
 
 Kemp «;. Ismay (1909), 14 Com. Cas. 202 102 
 
 Kendal v. Marshall, Stevens & Co. (1883), 11 Q. B. D. 356, C. A. : 95, 101, 103 
 
 Kennedy v. Panama Co. (1867), L. R. 2 Q. B. 680 18, 35, 41, 46, 141 
 
 Khan D. Duch^ (1906), 10 Com. Cas. 87 89,184 
 
 KiddeU V. Bumard (1842), 9 M. & W. 668 188 
 
 Kidston u Monceau Iron Works Co. (1902), 7 Com. Cas 82 
 
 Kilpin V. Ratley, [1892] 1 Q. B. 582 5 
 
 King «. England (1864), 33 L. J. Q. B. 145 3 
 
 Kingdom V. Cox (L848), 5 C. B. 522 82 
 
 Kingsbury u CoUins (1827), 4 Bing. 202 137 
 
 Kingsford v. Merry (1856), 1 H. & N. 503 ; 26 L. J. Ex. 83 ... 69, 159 
 
 Kirkham v. Attenborough, [1897] 1 Q. B. 201 ; 66 L. J. Q. B. 149, C. A. : 56, 188 
 
 Kitaon t). Hardwick (1872), L. R. 7 C. P. 473 ; 26 L. T. 846 3 
 
 Kleinert i;. Abosso Mining Co. (1913), 58 S. J. 48, P. C 37 
 
 Knights V. Wiffen (1870), L. R. 5 Q. B. 660 64, 100, 107 
 
 Kreuger v. Blanck (1870), L. R. 5 Ex. 179 ; 39 L. J. Ex. 160 186 
 
 Kronprincessin Cecilie, The (imi), 33 T. L. U. 292, V. a , 4,31 
 
XXX TABLE OF GASES. 
 
 PAQli 
 
 Kruger v. Wilcox (1755), Indor's Merc. Cas. 3rd Ed. 370 ; Ambl. 252 ... 90 
 
 Kuhliz V. Lambert Bros., Ltd. (1913), 18 Com. Cas. 217 3, 67 
 
 Kymer i;. Suwercropp (1807), 1 Camp. 109 HI 
 
 Ladenburg & Co. j;. Goodwin, [1912] 3 K. B. 275 7 
 
 Laidler v. Burlin&on (1837), 2 M. & W. 602 55, 58 
 
 Laingh (Sir J.) u Barclay & Co., [1908] A. C. 35, H. L 53 
 
 Laird i;. Pirn (1841), 7 M. & W. 478 114 
 
 Lamb v. Attenborough (1862), 31 L. J. Q. B. 41 148 
 
 Lambton Ex parte (1875), L. R. 10 Ch. App. 405 58, 93, 97 
 
 Lamond r. Davall (1847), 9 Q. B. 1030 ; 16 L. J. Q. B. 136 : 7, 91, 110, 114 
 
 Lancashire Wagon Co. r. Pitzhugh (1861), 30 L. J. Ex. 231 119 
 
 Landauer v. Asser, [1905] 3 K. B. 184 ; 74 L. J. K. B. 659 88, 186 
 
 Landauer v. Craven, [1912] 2 K. B. 94 ; 81 L. .T. K. B. 650 ; 17 Com. Cas. 
 
 193 33,87 
 
 La Neuville t). Nourse (1813), 3 Camp. 350 6 
 
 Lang v. Smith (1831), 7 Bing. 284 137 
 
 Langton v. Higgins (1859), 4 H. & K. 402; 28 L. J. Es. 252 : 25, 26, 56, 110, 119 
 
 Lascelles v. Rathbun (1919), 35 T. L. R. 347, C. A 17 
 
 Last i;. HucMesby, [1914] W. N. 157, C. A 23 
 
 Lavery i;. PurseE (1888), 39 Ch. D. 508 ; 57 L. J. Ch. 570 138 
 
 Law & Bonar u. American Tobacco Co., [1916] 2 K. B. 605 88 
 
 Lawford v. Billericay District Council, [1903] 1 K. B. 772, C. A 18 
 
 Lea Bridge Gas Co. i;. Malvern, [1917] 1 K. B. 803 15 
 
 Leask v. Scott (1877), 2 Q. B. D. 376, C. A '. 108 
 
 Leather Cloth Co. v. Hieronimus ( 1 875), L. R. 10 Q. B. 140 25 
 
 Lee «. Bayes (1856), 18 C. B. 599 ; 25 L. J. C. P. 249 64,68 
 
 Lee t). Butler, [1893] 2 Q. B. 318 ; 62 L. J. Q. B. 691 158 
 
 Lee t). Gaskell (1876), 1 Q. B. D. 700 137 
 
 Lee V. Griffin (1861), 1 B. & S. 272 ; 30 L. J. Q. B. 252 4, 5 
 
 Learning t). Snaith (1851), 16 Q. B. 275 ; 20 L. J. Q. B. 164 186 
 
 Lees, Re, Collins, Ex parte ( 1 875), L. R. 10 Ch. App. 367 176 
 
 Leigh «. Paterson (1818), 8 Taunt. 540 116 
 
 Leir u Leir (1833), 6 C. & P. 239 130 
 
 Leith's Estate, Re (1866), L. R. 1 P. C. 296 ; 36 L. J. P. C. 17 ... 100, 127 
 
 Leroux i;. Brown (1852), 12 C. B. 801 ; 22 L. J. C. P. 1 20 
 
 Leslie j;. Shiel, [1914] 2 K. B. 607, C. A 13 
 
 Levy V. Green (1869), 28 L. J. Q. B. 319, Ex. Ch 82 
 
 Levy ti. Langridge (1838), 4 M. & W. 337, Ex. Oh 35 
 
 Lewis u. Clifton (1864), 14 C. B. 246 115 
 
 Lickbarrow v. Mason (1793), 6 East, 21 n. ; 2 Term Rep. 63 ; 1 Smith L. C. 
 
 11th Ei. 693 100,108 
 
 Litt j;. Cowley (1816), 7 Taunt. 169 105,106 
 
 Lookett V. Nicklin (1848), 2 Exch. 93 ; 19 L. J. Ex. 403 17,78 
 
 Lodert). Kekul6(1857), 27L. J. C. P. 27 121 
 
 London &. N. W. Railway t>. Bartlett (1861), 31 L. J. Ex. 92 103 
 
 London & Yorkshire Bank v. White (1895), 17 T. L. R. 670 7 
 
 L. C. & D. Railway j;. S. E. Railway, [1893] A. C. 429 113 
 
 Lord «. Price (1877), L. R. 9 Ex. 64 109; 110 
 
 Lorymer v. Smith (1822), 1 B. & C. 1 ; 2 Dow. & Ry. K. B. 23 ... 48, 49 
 
 Lucas j;. Bristow (1868), 27 L. J. Q. B. 364 187 
 
 Lucas V. Dixon (1889), 22 Q. B. D. 367, C. A. 23 
 
 Lucy w. Mouflet (1860), 29 L. J. Ex. 110 91 
 
TABLE OF OASES. 
 
 XXXI 
 
 Lunn V. Thornton (1845), 1 C. B. 379 ; 14 L. J. C. P. 161 
 Lyons v. HofEnung (1890), 15 App. Gas. 391, P. 0. ... 
 Lysney v. Selby (1705), 2 Ld. Raym. 1118 
 
 Maas t;. Pepper, [1905] A. C. 102, H. L. 4 
 
 McBain v. Wallace (1881), 6 App. Gas. 588 ; 45 L. T. 261 9, 54, 132 
 
 McColIin V. GUpin (1881), 6 Q. B. D. 516, C. A 187 
 
 McGomiell v. Murphy (1873), L. R. 5 P. C. 203 82, 186 
 
 Maodonald «. Longbottom (1860), 29 L. J. Q. B. 256, Ex. Gh 187 
 
 McDowell V. Snowball ( 1904), 7 F. 35, a. of Sess 1 85 
 
 McBntire v. Crossley Brothers, [1895] A. C. 467 ; 64 L. J. G. P. 129 : 2, 9, 52 
 McEwan V. Smith (1849), 2 H. of Jj. Gas. ; 13 Jut. 265 ... 80,100,107,157 
 
 Macfarlane r. Taylor (1868), L. R. 1 Sc. App. 245 ; 18L. T. 214 48 
 
 Maokay v. Dick (1881), 6 App. Gas. 251 ; 29 W. R. 541 .37 
 
 McGruther v. Pitcher, [1904] 2 Gh. 306 ; 73 L. J. Ch. 653 32 
 
 Mackintosh V. Mitchinson (1849), 4 Exch. 175 15 
 
 MacLaren, ife(1879), llCh. D. 68; 48L. J. (Bey)49, G. A 3 
 
 McLay v. Perry (1881), 44 L. T. 152 - 187 
 
 Maclean v. Dunn (1828), 4 Bing. 722 ; 6 L. J. (o.s.) G. P. 184 ... 109, 115 
 McManus v. Fortesoue, [1907] 2 K. B. 1 ; 76 L. J. K B. 393, C. A. : 24, 130 
 
 Macnee u Gorst (1807), L. R. 4 Eq. 315 154 
 
 Maddison v. Alderson (1883), 8 App. Gas. 467 ; 52 L. J. Q. B. 737... 21. 35 
 
 MadeU w. Thomas, [1891] 1 Q. B. 230 ; 60 L. J. Q. B. 227 4 
 
 Maine Spinning Co. v. SutcHffe & Go. (1917), 23 Gom. Gas. 216 ; 34 T. L. R. 
 
 154 37,86 
 
 Mainprice V. Westley (1865), 34 L. J. Q. B. 229 ... 129 
 
 Malcolm V. Gross (1898), 35 Sc. L. R. 794 34 
 
 Manbre Saccharine Go. v. Gom Products Go., [1919] 1 K. B. 198 ... 28, 40, 87 
 
 Manchester Ship Canal Go. «;. Horlock, [1914] 1 Gh. 453 17,138 
 
 Manchester, etc., Ry. v. North Central Wagon Co. (1888), 13 App. Gas. 554, 
 
 H. L. 
 
 Manders v. WiUiams (1849), 4 Exch. 339 ; 18 L. J. Ex. 437 
 
 Market Overt, The Case of (1596), 5 Coke R. 83 b 
 
 Marshall v. Green (1875), 1 C. P. D. 35 ; 45 L. J. Q. B. 153 .. 
 
 Marson v. Short (1835), 2 Bing. N. C. 118 
 
 Martin v. Reed (1863), 31 L. J. G. P. 126 
 
 Martin v. Whale, [1917] 2 K. B. 480, C. A 
 
 Martindale v. Smith (1841), 1 Q. B. 389 ; 10 L. J. Q. B. 156 : 33, 64, 93, 96, 109 
 
 Martineau v. Kitching (1872), L. R. 7 Q. B. 436 31, 62, 63 
 
 Mihivm, Ex parle (1915), 84:L. J. K.B. 1893 16 
 
 Marvin v. Wallace (1856), 25 L. J. Q. B. 369 22, 134 
 
 Mass «;. Pepper, [1905] A. 0. 102, H. L 132 
 
 Matsonkis i;. Priestman, [1916] 1 K. B. 681 29 
 
 Maughan «;. Sharp (1864), 34 L. J. C. P. 19 7 
 
 Meehan V. McLachlan (1910), S. C. 758. Ct. of Sess 90 
 
 Megan v. MoUoy (1878), 2 L. R. Ir. 530, C. A 18 
 
 Mehta v. Sutton (1913), 30 T. L. R. 17, G. A 71, 150 
 
 Melrose D. Hastie (1851), 13 Sess. Gas. 880 95 
 
 Merchant Banking Co. v. Phoenix Bessemer Steel Co. (1877), 5 Ch. D. 206 ; 
 
 46L.J. Gh. 418 '•• 95,98,107 
 
 Meredith v. Meigh (1863), 2 E. & B. 364 ; 22 L. J. Q. B. 40 ... 22, 85 
 
 Mersey Steel & Iron Co. v. Naylor (1884), 9 App. Cas. 434 ; 53 L. J. Q. B. 
 
 497 33,83,84,92 
 
 PACK 
 
 25 
 101, 102 
 ... 179 
 
 7 
 ... 65 
 ... 67 
 137, 138 
 1,169 
 ... 65 
 12, 73, 133, 158 
 
 22, 
 
XXXll 
 
 TABLE OF GASES. 
 
 pAas 
 
 98 
 
 29 
 
 24 
 
 49 
 
 155 
 
 103, 104 
 
 96,98 
 
 79, 109, 119, 139 
 
 29 
 
 ... 83 
 
 186 
 
 128 
 
 47 L. J. Q. B. 
 
 51, 56, 60, 61 
 61,88 
 
 12, 165 
 
 60 
 
 . 40,43,48,49,127 
 128 
 
 65 
 
 Mess v. Duffus (1901), 6 Com. Gas. 165 
 
 Metropolitan Water Board v. Dick Kerr & Co., [1918] A. C. 119, H. L. 
 
 Mews w. Carr (1856), 26 L. J. Ex. 39 
 
 Meyer t). Everth (1814), 4 Camp. 22 
 
 Mildred v. Masfons (1883), 8 App. Cas. 874 ; 53 L. J. Q. B. 33 
 
 Miles, £a; parte (1885), 15 Q. B. D. 39, C. A 
 
 Miles V. Gorton (1834), 2 Cr. & M. 504 ; 3 L. J. Ex. 155 ... 
 
 Milgate u Kebble (1841), 3 M. & Gr. 100 
 
 MiUar & Co. v. Taylor & Co., [1916] 1 K. B. 402, C. A. 
 Millars Karri & Co. v. WeddeU & Co. (1908), 14 Com. Cas. 25 
 
 Miller v. Bomer, [1900] 1 Q. B. 691 
 
 Miller, Gibb & Co. v. Smith & Tyrer, [1917] 2 K. B. 141, C. A, 
 Mirabita v. Imperial Ottoman Bank (1878), 3 Ex. D. 164 ; 
 
 418 C. A. 
 Miramichi, The, [1915] P. 71 ; 84 L. J. P. 105 
 Missouri Steamship Co., Be (1889), 42 Ch. D. 321, C. A. 
 Moakes v. Nicholson (1865), 3i L. J. C. P. 273 
 Mody V. Gregson (1868), L. R..4 Ex. 49 ; 38 L. J. Ex. 12 
 MoUett V. Robinson (1872), L. B. 7 C. P. 84 ; 41 L. J. C. P. 
 
 Mondel v. Steel (1841), 8 M. & W. 858 ; 10 L. J. Ex. 426 
 
 Monk V. Whittenbury (1831), 2 B. & Aid. 484 
 
 Montf orts v. Marsden ( 1 896), 12 R. P. C. 266 
 
 Moorcoclc, The (1889), 14 P. D. 64 ; 58 L. J. P. 73, C. A ' 
 
 Moran v. Pitt (1873), 42 L. J. Q. B. 47 
 
 Mordaimt Brothers v. British Oil and Cake Mills, [1910] 2 K. B. 502 
 
 Morel Brothers v. Westmoreland, [1904] A. C. 11, H. L 
 
 Morgan v. Bain (1874), L. R. 10 C. P. 15 
 
 Morgan v. Gath (1865), 3 H. & C. 748 ; 34 L. J. Ex. 165 
 
 Morgan v. Russell & Sons, [1909] 1 K. B. 357 
 
 Morley v. Attenborough (1849), 3 Exoh. 500 ; 18 L. J. Ex. 148 
 
 Moodv V. PaU Mall Deposit Co. (1917), 33 T. L. R. 306 
 
 Moore v. Campbell (1854), 10 Exch. 323 ; 23 L. J. Ex. 310 
 
 Moore t;. Evans, [1918] A. C. 185, H. L. ... ' 
 
 Moore v. Singer Manufacturing Co., [1904] A. C. 11, H. L 
 
 Morris v. Baron & Co., [1918] A. C. 1, H. L 
 
 Morris v. Levison (1876), I C. P. D. 155 
 
 Morrison v. Univ. Mar. Ins. Co. (1873), L. R. 8 Ex. 197, Ex. Ch. ... 
 Morrit, Be (1886), 18 Q. B. D. 222 ; 56 L. J. Q. B. 139, C. A- 
 Mortimer v. BeU (1865), L. R. 1 Ch. App. 10 ; 35 L. J. Ch. 25 
 
 Mortimore v. Wright (1846), 6 M. & W. 482 
 
 Morton w. Lamb (1797), 7 T. R. 125 
 
 Moss V. Hancock, [1899] 2 Q. B. Ill ; 68 L. J. Q. B. 657 
 
 Moss V. Sweet (1851), 16 Q. B. 493 ; 60 L. J. Q. B. 167 
 
 Moyce v. Newington (1878), 4 Q. B. D. 32 ; 48 L. J. Q. B. 125 
 
 Muirhead v. Dickson (1905), 7 E. 686, a. of Sess 
 
 Mulliner v. Florence (1878), 3 Q. B. D. 484 ; 47 L. J. Q. B. 700, C. A. 
 
 Murdoch v. Greig (1889), 16 R. 396, Ct. of Sess 
 
 Murgatroyd w. Wright, [1907] 2 K. B. 333 
 
 Murray u Mann (1848), 2 Exch. 538 
 
 Nash V. Inman, [1908] 2 K. B. 1, C. A. 
 
 National Phonograph Co. of Australia v. Menck, [1911] A. C. 336, P. C. 
 Navulshaw v. Brownrigg (1852), 21 L. J. Ch. 908 
 
 121, 122 
 
 ... 151 
 
 ... 38 
 
 80, 181 
 
 ... 68 
 
 ... 107 
 
 ... 15 
 
 24,98 
 
 31, 149 
 
 4,136 
 
 39,45 
 
 ... 152 
 
 82, 186 
 
 ... 55 
 
 ... 15 
 
 18, 24, 38 
 
 ... 186 
 
 ... 175 
 
 8 
 
 ... 129 
 
 ... 15 
 
 ... 77 
 
 137 
 
 55 
 
 71 
 
 4 
 
 .. 139 
 
 6 
 
 .. 75 
 
 ,. 121 
 
 13, 16 
 .. 32 
 .. 152 
 
 VI, 
 
 68, 
 
TABLE OF CASES. XXXIU 
 
 PAGE 
 
 Naylor Benzon & Co. v. Kreinische Industrie Gesellschaft, [1918] 2 K. B. 
 
 486, C. A. 30 
 
 Neill i;. Whitworth (1886), L. R. 1 C. P. 684, Ex. Ch 183,185 
 
 Nelson I'. William Chalmers & Co. (1913), Ct. of Sest. Cas. 441 37 
 
 Nevill, Re, White, Ex parte (1870), L. R. 6 Ch. App. 397 4 
 
 New V. Swain (1828), 1 Dan. & Lloyd, 193 96 
 
 NeweU v. Radford (1887), L. R. 3 C. P. 52 23, 24 
 
 Newman «7. Jones (1886), 17 Q. B. D. 132 11 
 
 New Zealand Shipping Co. v. Societe des Ateliers de France, [1919] A. C. 1, 
 
 H.L. 7,29 
 
 Nichol «;. Godts (1854), 10 Exch. 191 40 
 
 Nicholson v. Bradfield Union (1866), L. R. 1 Q. B. 620; 35 L. J. Q. B. 176: 18, 82 
 
 Nicholson w. Harper, [1895] 2 Ch. 45 74 
 
 NickoU V. Ashton, [1900] 2 Q. B. 298 ; 69 L. J. Q. B. 640 ... 29, 80, 118, 124, 
 
 182 189 
 
 Noble I. Ward (1867), L. R. 2 Ex. 135, Ex. Ch 25 
 
 Norman v. Phillips (1845), 14 M. & W. 277 ; 14 L. J. Ex. 306 ... 22, 87 
 
 North Central Wagon Co. v. Manchester Railway (1887), 36 Ch. D. . 7, 187 
 
 North- Western Rubber Co., JJe, [1908] 2 K. B. 907, C. A. 42,188 
 
 North- West Salt Co., iJe, [1913] 3 K. B. 422, C. A 132 
 
 Northern Steel & Hardware Co. v. Bath & Co. (1917), 33 T. L. R. 516, C. A. 86 
 
 Norton ?;. Davison, [1899] 1 Q. B. 401, C. A. 19 
 
 Nyberg v. Handelaar, [1902] 2 Q. B. 202 ; 61 L. J. Q. B. 309, C. A. : 67, 139 
 
 O'Dea V. Crawford (1899), 68 L. J. Q. B. 655 140 
 
 0<fe««a, TAe, [1916] A. C. 145, P. C 8,139 
 
 Ogdens, Ltd. v. Nelson, [1905] A. C. 109 ; 74 L. J. K B. 433, H. L. ... 80 
 
 Ogg V. Shuter (1875), 1 C. P. D. 47 ; 45 L. J. Q. B. 44 52, 60 
 
 Ogle ». AtMnson (1814), 5 Taunt. 759 56 
 
 Ogle V. Earl Vane (1868), L. R. 3 Q. B. 272, Ex. Ch 25, 1 18 
 
 Oldfield t;. Lowe (1829), 9 B. & C. 73 58 
 
 OUivant w. Bayley (1843), 5 Q. B. 388 ; 13 L. J. Q. B. 34 43 
 
 Oppenheimer v. Attenboroi^h, [1908] 1 K. B. 221 ; 77 L. J. K B. 209 ; 
 
 13 Com. Cas. 125, C. A. 148,150,151 
 
 Oppenheimer v. Frazer. [1907] 2 K. B. 50 ; 76 L. J. K. B. 806, C. A. : 67, 70, 
 
 150, 151 
 
 Orchard «. Simpson (1857), 2 C. B. (N.s.) 299 185 
 
 Orient Co., Ltd. v. Brekke, [1913] 1 K B. 531 77, 87 
 
 Ormrod «;. Huth (1845), 14 M. & W. 651, Ex. Ch 42 
 
 Oxendale v. Wetherell (1829), 4 Man. & By. 429 81 
 
 Page V. Cowasjee (1866), L. R. 1 P. C. 127 ; 14 L. T. 176 66, 109 
 
 Page ?7. Morgan (1886), 15 Q. B. D. 228, C. A ... 19,22,90 
 
 Panoutsos i;. Raymond Hadley Corporation, [1917] 2 K B. 473, 0. A. ... 37 
 
 Paqnin, Ltd. V. Beanclerk, [1906] A. C. 148, H. L 14 
 
 Pamna, TAe (1877), 2 P. D. 118, C. A. 118 
 
 ParcMwj, TAe, [1918] A. C. 157, P. C 12,52,60,62,63,88,144 
 
 Parfitt V. Jepson (1877), 46 L. J. Q. B. 529 ; 36 L T. 251 130 
 
 Parker r. Cnsp & Co., [1919] 1 K. B. 481 20 
 
 Parker v. Palmer (1821), 4 B. & Aid. 387 48, 49, 90 
 
 Parker v. Schuller (1901), 17 T. L. R. 299, C. A 87 
 
 Parker i;. WalUs (1855), 6 E. & B. 21 22 
 
XXXIV 
 
 TABLE OF OASES. 
 
 Parkison v. Lee (1802), 2 East, 314 
 
 Parsons v. New Zealand Shipping Co., [1901] 1 Q. B. 548, C. 
 
 Parsons v. Sexton ( 1 847), 4 C. B. 899 
 
 Parton v. Crofts (1864), 33 L. J. C. P. 189 
 
 Pasley v. Freeman (1789), 2 Smith, L. C. Uth Ed. 66 ; 3 T. R. 51 
 
 Paton V. Payne (1897), 35 Sc. L. R. 112, H. L. 
 
 Paul V. Dod (1846), 2 C. B. 800 
 
 Paul V. Glasgow Corporation (1900), 3 P. 119 ... 
 
 Payne v. Cave (1789), 3 T. R. 148 
 
 Payne w. Wilson, [1895] 2 Q. B. 537, C. A. ... 
 Paynter v. James (1867), L. R. 2 C. P. 348 ... 
 Pearee v. Gfardner, [1897] 1 Q. B. 688, C. A. ... 
 Poarl Mill Co. v. Ivy Tannery Co., [1919] 1 K. B. 78 ; 24 Com. Cas. 
 
 766 
 
 Pearson, Ex parte (1863), L. R. 3 Ch. App. 443 
 
 Pearson v. Dawson (1858), 27 L. J. Q. B. 248 
 
 Pease v. Gloaheo (1866), L. R. 1 P. C. 219 ; 35 L. J. P. C. 66 
 
 Peiroe v. Corf (1874), L. R. 9 Q. B. 210 
 
 Percivals, Ltd. v. L. C. C. Asvlums Committee (1918), 87 L. J. K. B. 677 
 
 Perkins v. Bell, [1893] 1 Q. B. 193, C. A. . 
 
 Peter Dixon & Sons v. Henderson & Co. (1918), 23 Com. Cas. 294, C. A. 
 
 Peters v. Fleming (1840), 6 M. & W. 42 
 
 Peto V. Blaydes (1814), 5 Taunt. 657 '■ 
 
 Pettit V. Mitchell (1842), 4 M. & Gr. 819 
 
 Pharmaceutical Society v. White, [1901] 1 K. B. 601, C. A. ... 
 
 Phelps V. Comber (1885), 29 Cb. D. 813, C. A 101, 
 
 Phillips V. Huth (1840), 6 M. & W. 572 
 
 Phillpots V. Evans (1839), 5 M. & W. 475 
 
 Pickard v. Sears (1837), 6 A. & E. 469 ... 
 
 Piokford v. Grand Junction Railway (1841), 8 M. & W. 372 ; 9 Dowl. 
 Pignators v. Gikoy & Son, [1919] 1 K. B. 459 ; 24 Com. Cas. 174 
 
 Pigot u. Cubley (1864), 33 L. J. C. P. 134 
 
 Plasycoed Collieries Co. v. Partridge, Jones & Co., [1912] 2 K. B. 345 
 
 Playford v. Mercer (1870), 22 L. T. (n.s.) 41 
 
 Plevins v. Downing (1876), 1 C. P. D. 220 
 
 Polenghi Brothers v. Dried Milk Co. (1905), 10 Com. Cas. 42 ... 48, 89, 184 
 
 Pontifex v. Midland Railway (1877), 3 Q. B. D. 23 106 
 
 Pordage v. Cole (1669), 1 Wms. Saund. 1871 Ed. 548 ; 1 Saund. 319 ; 1 
 
 Lev. 274 Ill 
 
 Portahs u. Tetley (1867), L. R. 5 Eq. 140 152 
 
 Porter K. Freudenberg, [1915] 1 K. B. 857, C. A 16 
 
 Poultonu Lattimore(1829), 9B. &C. 259 121 
 
 Powell ?;. Hordon (1836), 2 Ring. N. C. 668 187 
 
 Power «. Barham (1836), 4 A. & E. 473 35,188 
 
 Prested Miners Co. v. Gardner, Ltd., [1911] 1 K. B. 425, C. A. 20 
 
 Priest «. Last, [1903] 2 K. B. 148, C. A 44 
 
 Prinz Adelbert, The, [1917] A. C. 586, P. C 4, 61, 135, 164 
 
 Pritchett & Gold D. Currie, [1916] 2 Ch. 515, C. A 142 
 
 Produce Brokers Co. v. Olympia OU & Cake Co., [1916] A. C. 314, H. L. : 28, 42, 
 
 126 128 188 
 Produce Brokers Co. v. Olympia Oil & Cake Co., [1917] 1 K. B. 320, C. A. ' 18, 
 
 28,42 
 
 34, 
 
 169 
 
 PAQK 
 
 .. 49 
 .. 164 
 .. 121 
 .. 24 
 35, 179 
 .. 33 
 .. 112 
 .. 43 
 .. 129 
 .. 72 
 77, 183 
 .. 23 
 38, 80, 
 184 
 .. 84 
 .. 107 
 
 23,24 
 
 . 187 
 
 50,90 
 
 . 29 
 
 12 
 
 . 39 
 
 . 89 
 
 . 140 
 
 106, 109 
 
 163 
 
 114 
 
 64 
 
 77 
 
 .. 57 
 
 .. 65 
 
 3 
 
 39, 185 
 
 .. 24 
 
TABLE OF CASES. XXXV 
 
 PA&E 
 
 R. i;. Elliot, [1908] 2 K. B. 452 172 
 
 R. u Hilliard (1913), 9 0. C. A. Rep. 171 71 
 
 R. «. Jones, [1898] 1 Q. B. 119 78 
 
 R. w. Justices of Central Criminal Court (1886), 18 Q. B.D. 314, 0. A. ... 173 
 
 R. v. Sandars, [1919] 1 K. B. 550 35 
 
 R. t). Thurbom (1849), 1 Den. C. C. 387 66 
 
 Raffles V. Wichelhaus (1864), 33 L. J. Ex. 160 18 
 
 Ram Das «. AmersTiand & Co. (1916), 85 L. J. P. C. 214 149 
 
 Ramsay w. Margrett, [1894] 2 Q. B. 18, C. A 3 
 
 Ramsden i>. Gray (1849), 7 C. B. 961 115 
 
 Jlandall v. Newson (1877), 2 Q. B. D. 102, C. A 40, 42, 47, 49, 121 
 
 RandaU v. Roper (1858), 27 L. J. Q. B. 266 121 
 
 Ranking Potter (1873), L.R. OH. L. 83: 42 L. J. ('. P. 16!) 5!) 
 
 Raphael?'. Bank of England (IS.'JS), 17 C. B. 161 152 
 
 Ratoliffe «. Evans, [1892] 2 Q. B. 524, C. A 124 
 
 Rawson v. Johnson (1801), 1 East, 201 77 
 
 Ray i;. Barker (1879), 4 Ex. D. 279, C. A 55 
 
 Reddall u Union Castle Steamship Co. (1914), 20 Com. Cas. 86 105 
 
 Reed v. Mestaer (1802), 2 Comyn on Contract, 229 ; BuUen & Leake's Prec. 
 
 of Pleading, 6th Ed., p. 759 113 
 
 Reeves v. Barlow (1884), 12 Q. B. D. 436, C. A 2 
 
 Reeves V. Capper (1828), 5 Bing. N. C. 136 7 
 
 Reeves «. Whitmore (1864), 33 L. J. Ch. 63 26 
 
 Reid t;. Hutchinson (1813), 3 Camp. 351 5 
 
 Reid V. Macbeth, [1904] A. C. 223, H. L 52, 53 
 
 Rein r. Lane (1867), L. R. 2 Q. B. 144 ; 36 L. J. Q. B. 81 169 
 
 Rennie V. Mess, [1902] W. N. 122, H. L 19 
 
 Reuss V. Pioksley (1866), L. R. 1 Ex. 342, Ex. Ch 20, 21, 23 
 
 Reuter v. Sala (1879), 4 C. P. D. 239 ; 48 L. J. Q. B. 492, C. A. ... 33, 34, 82, 
 
 84, 182, 186 
 
 Rhodes, iJe (1820), 44 Ch. D. 94, C. A 13,14 
 
 Rice V. Reed, [1900] 1 Q. B. 54, C. A 10 
 
 Richards t). Delbridge (1874), L. R. 18 Eq. 11 5 
 
 Richardson i;. Dubois (1869), L. R. 5 Q. B. 51 - " ... 15 
 
 Riggew.'Burbidge(1846), 15M. & W. 698 122 
 
 BiponCity, The, [1897] P. 226 7,15 
 
 Roberts, iJe (1887), 36 Ch. D. 196 167 
 
 Roberts D.Gray, [1913] 1 K. B. 520, C. A 14 
 
 Robertson, iff, Crawcour,.Ba; ^orie (1878), 9 Ch. D. 419, C. A 2 
 
 Robinson «. Lynes, [1894] 2 Q. B. 577 15 
 
 Robinson u. MoUet (1876), L. R. 7 H. L. 802 127 
 
 Rodger «;. Comptoir d'Escompte (1869), L. R. 2 P. C. 393 108 
 
 Rodocanachi v. Milburn (1886), 18 Q. B. D. 67; 66 L. J. Q. B. 202, C. A. ... 119 
 
 Rodriguez v. Speyer Brothers, [1919] A. C. 69, H. L 16 
 
 Roe V. Naylor, Ltd. (1918), 87 L. J. K. B. 968, C. A 18, 20, 143 
 
 Roe V. Tranmar (1757), 2 Smith, L. C. 11th Ed., p. 518 ; 2 Wils. 75 ... 127^ 
 
 Rohde V. Thwaites (1827), 6 B. & C. 388 ; 6 L. J. (o.s.) K. B. 163 ... 2, 51, 56 
 
 Roots V. Lord Dormer (1832), 4 B. & Ad. 77 129 
 
 Roper V. Johnson (1873), L. R. 8 C. P. 167 ; 42 L. J. C. P. 65 114, 116, 117 
 
 Roscorla v. Thomas (1842), 3 Q. B. 234 ; 11 L. J. Q. B. 214 34 
 
 Rosevear China Clay Co., Ex parte (1879), 11 Ch. D. 660 102, 103 
 
 Ross Brothers v. Shaw & Co. (1917), 2 Ir. Rep. 367 184 
 
 Roth V. Tayaon (1896), 1 Com. Cas. 306, 0. A 115, 118, 124 
 
XXX VI 
 
 TABLE OF OASES. 
 
 Rourke v. Short (1856), 25 L. J. Q. B. 196 
 
 Rugg u Minett (1809), 11 East, 210 .- 
 
 Ryan D. Ridley (1902), 8 Com. Cas. 105 
 
 Ryan v. Sams (1848), 17 L. J. Q. B. 271 
 
 Ryder v. Womfewell (1868), L. R. 4 Ex. 32 Ex. Ch 
 
 Sailing Ship Blairmore v. Macredie, [1898] A. C. 693, H. L. ... 
 
 Saks t>. TiUey (1915), 32 T. L. R. 148, C. A 
 
 Salter v. Woolams (1841), 2 M. & Gr. 650 ; 10 L. J. 0. P. 145 
 
 Sanders J>. Jameson (1848), 2 C. & K. 567 
 
 Sanders v. Maclean (1883), 11 Q. B. D. 327 ; 62 L. J. Q. B. 481 
 
 135, 146, 164, 165, 184 
 
 Saunders v. Topp (1849), 4 Exch. 390 ; 18 L. J. Ex. 374 90 
 
 Scattergood v. Sylvester (1850), 15 Q. B. 606 ; 19 L. J. Q. B. 447 70 
 
 Schawel i;. Reade, [1913] 2 Ir. Rep. 64, H. L 36,188 
 
 Schotsmans v. Lancashire & Yorkshire Railway Co. (1867), 2 Ch. App. 332 ; 
 
 36L. J. Oh. 361 36,61,94,106,188 
 
 3 
 
 27 
 
 22 
 
 HI 
 
 18 
 
 ...4,30 
 
 65, 62 
 
 . 33, 116, 184 
 
 ... 15 
 
 ... 12 
 
 ... 136 
 63, 60 
 
 76, 80 
 
 ... 90 
 
 39, 80, 
 
 52, 54, 
 
 Sootson V. Pegg (1861), 6 H. & N. 296 ; 30 L. J. Ex. 225 
 
 Scott V. Coulson, [1903] 2 Ch." 249, C. A 
 
 Scott V. Eastern Comities Railway (1843), 12 M. & W. 33 
 
 Scott «. England (1844), 2 D. & L. 620 
 
 Scriven Brothers v. Hindley & Co., [1913] 3 K. B. 664 
 Scrivener v. Great Northern Railway (1871), 19 W. R. 388 
 Seath V. Moore (1886), 11 App. Cas. 360 ; 55 L. J. R G. 54 
 Seddon v. North-Eastern Salt Co., [1906] 1 Ch. 326 ... 
 
 Seton V. Lafone (1887), 19 Q. B. D. 68, 0. A 
 
 Sewell V. Burdick (1884), 10 App. Cas. 74, H. L. 
 
 Seymour, i?e, [1913] 1 Ch. 475, C. A 
 
 Seymour v. London and Provincial Marine Insurance Co. (1872), 41 L. J. C. P. 
 
 193 
 
 Shardlow v. CottereU (1881), 20 Ch. D. 20 ; 51 L. J. Ch. 353 
 
 Sharman v. Brandt (1871), L. R. 6 Q. B. 720 ; 40 L. J. Q. B. 312 
 
 56,68 
 
 . 35 
 
 ... 64 
 
 108, 163, 164 
 
 6 
 
 132 
 23 
 
 24 
 
 Sharpe & Co. u. Nosawa & Co., [1917] 2 K. B. 814 87,116,118 
 
 Shaw V. Holland (1846), 15 M. & W. 136 ; 16 L. J. Ex. 87 116 
 
 Shaw w. Symmons & Sons, [1917] 1 K. B. 799 62 
 
 Sheffenius w. Goldberg, [1916] 1 K. B. 284, C. A 16 
 
 Sheldon V. Cox (1824), 3 B. & C. 420 5 
 
 Shenstone D. Hilton, [1894] 2 Q. B. 452 168 
 
 Shepherd v. Harrison (1871), L. R. 6 H. L. 116 ; 40 L. J. Q. B. 148 ... 52, 60 
 
 Shepherd j;. Kain (1822), 5 B. & Aid. 240 187 
 
 Shipton V. Casson (1826), 5 B. & C. 378 
 
 Shipton Anderson & Co., Re, [1915] 3 K. B. 676 
 
 Shipton Anderson & Co. v. Weil Bros., [1912] 1 K. B. 574 ; 17 Com. Cas, 
 Sievewright v. Archibald (1861), 17 Q. B. 103 ; 20 L. J. Q. B. 629 
 
 Simmons v. Swift (1826), 5 B. & C. 867 
 
 Simond v. Braddon (1867), 2 C. B. (n.s.) 324 
 
 Simpson v. Crippin (1872), L. R. 8 Q. B. 14 ; 42 L. J. Q. B. 28 
 
 Sims j;. Marryat (1851), 17 Q. B. 281 
 
 Sims&Co.«. Midland Railway (1912), 18 Com. Cas. 44 
 
 Smeed «;. Poord (1859), 28 L. J. Q. B. 178 
 
 Smith V. Blandy (1825), Ry. & M. 257 
 
 Smith «. Chance (1819), 2 B. & Aid. 763 "... 
 
 Smith V. Green (1875), 1 C. P. D. 92 
 
 163 
 
 81 
 29 
 82 
 ... 24 
 55,62 
 ... 183 
 36,84 
 ... 39 
 ... 65 
 115, 118 
 ... 185 
 ... 80 
 ... 121 
 
TABLE OF CASES 
 
 xxxvu 
 
 Smith V. Hudson (1865), 34 L. J. Q. B. 145 
 
 Smith u. Hughes (1871), L. R. 6 Q. B. 597 
 
 Smith t>. Jeffiyes (1846), 15 M. & W. 561 
 
 Smith I?. Lascelles (1788), R. R. 457 
 
 Smith V. Mercer (1867), L. R. 3 Ex. 51 
 
 Smith V. Myers (1871), L. R. 7 Q. B. 139, Ex. Cli 
 
 Smith V. Peters (1876), L. R. 20 Eq. 511 
 
 Snee V. Prescot (1743), 1 Abk. 245 
 
 Snowball, Ex parte (1872), L. R. 7 Ch. App. 534 
 
 Societe Anonyme v. Scholefield (1902), 7 Com. Cas. 114 
 
 Somes t)..British Empire Shipping Co. (1860), 30 L. J. Q. B. 229, H. L. 
 
 Soper V. Arnold (1887), 14 App. Cas. 429 
 
 South Australia Insurance Co. v. Randell (1869), L. R. 3 P. C. 101 
 
 Spalding v. Ruding (1843), 6 Beav. 376 ; 12 L. J. Ch. 503 
 
 SpartaU v. Beneoke (1850), 10 C. B. 212 ; 19 L. J. C. P. 293 
 
 Speight u. Gaunt (1883), 9 App. Cas. 1 H. L 
 
 Spence v. Union Marine Insurance Co. (1868), L. R. 3 C. P. 427 
 
 Spicer V. Cooper (1841), 1 Q. B. 424 
 
 Stanton v. Richardson (1872), t. R. 7 C. P. 421 
 
 Stapleton, .Ba; parte (1879), 10 Ch.D. 586; 14 L. T. 14 
 
 Starey v. Chilworth (1889), 24 Q. B. D. 90 
 
 Startup D. Cortazzi (1835), C. M. & R. 165 
 
 Startup V. Macdonald (1843), 6 M. & Gr. 593, Ex. Ch. 
 
 Staunton v. Wood (1851), 16 Q. B. 638 
 
 Steinberger v. Atkmson & Co. (1914), 31 T. L. R. 110 
 
 Stein Forbes & Co. v. County Tailoring Co. (1916), 115 L. T. 215 
 
 Stewart w. Kennedy (1890), 15 App. Cas. 75 
 
 Stock V. Inglis (1884), 12 Q. B. f). 564 ; affirmed (1885), 10 App. Cas. 263 : 62, 86, 
 
 185 
 Stocks «. Wilson, [1913] 2 K B. 235 13,16 
 
 FAQE 
 
 .. 22 
 
 18 
 
 .. 187 
 
 86 
 
 .. 185 
 
 27, 183 
 
 32 
 
 .. 105 
 
 .. 152 
 
 .. 187 
 
 .. 97 
 
 .. 31 
 
 .. 4,5 
 
 .. 108 
 
 91, 183 
 
 .. 146 
 
 .. 52 
 
 .. 186 
 
 .. 179 
 
 93, 97, 98, 109, 110, 114, 115 
 
 45 
 
 117 
 
 81, 89, 112, 184 
 
 183, 184 
 
 83, 98 
 
 : 88, 111, 184 
 
 120 
 
 78, 
 
 ...79, 
 
 Stoneham v. Stoneham, [1919] 1 Ch. 149 
 Stoweld V. Hughes (1811), 14 East, 308 
 Strass V. Spillers & Baker, [1911] 2 K. B. 759 , 
 Street v. Blay (1831), 2 B. & Ad. 456 ... 
 Strickland «. Turner (1852), 7 Ex. 208 ... 
 Stucley V. Bailey (1862), 31 L. J. Ex. 483 
 Sutro & Co., Be, [1917] 2KB. 348, C. A. . 
 Swain v. Shepherd (1832), 1 M. & Rob. 223 . 
 Sweeting v. Turner (1871), L. R. 7 Q. B. 310 . 
 Syers v. Jonas (1848), 2 Exch. Ill 
 
 J. Ch, 
 
 Taddy & Co. v. Sterious & Co., [1904] 1 Ch. 354 ; 73 L. 
 
 Tager v. Tolme & Runge, [1916] 1KB. 939, C. A. 
 
 Tailby v. Official Receiver (1888), 13 App. Cas. 523 ; 58 L. J 
 
 Tamplin, Re, Bamett, Ex parte (1890), 7 Morr. 70 
 
 Tamvaco v. Lucas (1861), 30 L. J. Q. B. 234 
 
 Tancred t). Steel Co. of Scotland (1890), 15 App. Cas. 125, H, 
 
 Tansley v. Turner (1835), 2 Bing. N. C. 151 
 
 Tarling v. Baxter (1827), 6 B. & C. 360 ; 5 L. J. (o.s.) K. B. 
 Taylor v. BuUen (1850), 5 Exch. 779 ; 20 L. J. Ex. 21 
 Taylor v. CaldweU (1863), 3 B. & S. 826 ; 32 L. J. Q. B. 164 
 Taylor v. G. E. Railway, [1901] 1KB. 774; 70 L. J. K. B. 499: 
 Taylor v. Jones (1876), 1 C. P. D. 87 
 
 5 
 
 ... 107 
 
 ... 186 
 
 121, 180 
 
 ... 27 
 
 34, 180 
 
 86, 128 
 
 ... 58 
 
 54, 62, 64 
 
 18, 43, 48, 49, 121 
 
 191... 
 
 Q. B. 75 : 
 
 L. 
 
 164 
 
 19, 
 
 .. 32 
 
 .. 185 
 
 11,26 
 
 .. 67 
 
 81, 183 
 
 .. 187 
 
 .. 65 
 
 64,62 
 
 .. 187 
 
 28 
 
 21, 90, 106 
 ... 17 
 
XXXVlll TABLE OF OASES. 
 
 Taylor «. Kymer (1832), 3 B. & Ad. 320 154 
 
 Taylor V. Smith, [1893] 2 Q. B. 65, C. A 22,23 
 
 Tebbit Bros, u Smith (1917), 33 T. L. R. 506, C. A 187 
 
 Tdegrafo, The (1811), L.U. 3 'P. G.67S 64 
 
 Tenants (Lancashire), Ltd. v. Wilson, [1917] A. C. 496 29 
 
 Thacklin ?;. Newberry Sanitary Laundry (1919), S. J. 337 115 
 
 Thames Sack & Bag Co. «. Knowles & Co., [1918] W. N. 176 120 
 
 Thelman Freres v. Texas Flour Mill Co. (1900), 5 Com. Cas. 321, C. A. ... 189 
 
 ThirkeU v. Cambi, [1919] 2 K. B. 690, C. A 23, 24 
 
 Thol «. Henderson (1881), 8 Q. B. D. 457 ; 46 L. T. 483 117 
 
 Thomas v. Fredericks (1847), 10 Q. B. 775 ; 16 L. J. Q. B. 393 32 
 
 Thompson v. Dominy (1845), 14 M. & W. 403 164 
 
 Thompson «. Gardiner (1876), 1 C. P. D. 777 24 
 
 Thomett v. Beers & Sons, [1919] 1 K. B. 486 43 
 
 Thomett v. Haines (1846), 15 M. & W. 367 ' 129, 185 
 
 Thornton «;. Kempster (1814), 6 Taunt. 786 23 
 
 Thumell v. Balbimie (1837), 2 M. & W. 786 ; 6 L. J. Ex. 255 32 
 
 riffress, y^e (1863), 32 L. J. Adm. 97 105,106 
 
 Tilley «. Bowman, Ltd., [1910] 1 K. B. 745 69 
 
 Titmus w. Littlewood, [1916] 1 K. B. 732 •.. 140 
 
 Todd u Armour (1882), 9 R. 90, a. of Sess 12,68 
 
 Tolhur&t V. Poitland Cement, [1903] A. C. 414, H. L 11 
 
 Toulmin «. Hedley (1845), 2 C. i& K. 157 97 
 
 Tredegar Iron Co, v. Hawthorn (1902), 18 T. L. R. 716, C. A 118 
 
 TregeUes v. SeweU (1862), 7 H. & N. 574, Ex. Ch 56 
 
 Tremoille «;. Christie (1893), 37 Sol. Jo. 650 148 
 
 Tucker «. Humphrey (1828), 4 Bing. 516 93,^5 
 
 Turner v. Liverpool Docks (1861), 6 Bxch. 543 ; 20 L. J. Ex. 393, Ex. Ch. 60 
 Tyers v. Rosedale Co. (1875), L. R. 10 Ex. 196, Ex. Ch 25, 1 18 
 
 Union Bank u Munster (1887), 37 Ch. D. 51 ; 57 L. J. Ch. 124 129 
 
 Union Credit Bank v. Mersey Docks, [1899] 2 Q. B. 205 ; 68 L. J. Q. B. 842 149 
 United States Steel Products Co. v. Q. W. Railway, [1916] A. C. 185, H. L. 105, 
 
 127 
 
 Vagliano v. Bank of England, [1891] A. C. 107, H. L. 
 Valpy V. Gibson (1847), 4 C. B. 837 ; 16 L. J. C. P. 241 
 Valpy V. Oakley (1851), 16 Q. B. 941 ; 20 L. J. Q. B. 380 . 
 Van Casteel v. Booker (1848), 2 Exch. 691 ; 18 L. J. Ex. 9 , 
 Vanderbergh v. Spooner (1866), L. R. 1 Ex. 316 
 
 Varleyy. Whipp, [1900] 1 Q. B. 513 
 
 Vickers v. Hertz (1871), L. R. 2 So. App. 113 
 
 Viokers v. Vickers (1867), L. R. 4 Eq. 629 
 
 Vic. Mills, Ltd., iJc, [1913] 1 Ch. 465, C. A 
 
 Vigers v. Sanderson, [1901] 1 K. B. 608 ; 6 Com. Cas. 99 . 
 Villars, Ex parte (1874), L. R. 9 Ch. App. 434 
 
 Vilmont v. Bentley (1886), 18 Q. B. D. 322, C. A 
 
 Vincentelli v. Rowlatt, [1911] 2 K. B. 739 
 
 Vindobala, The (1887), 13 P. D. 42 ; 57 L. J. P. 37 ... 
 
 Wackerbarth v. Masson (1812), 3 Camp. 270 
 
 Waddell 17. Blockey (1879), 4 Q. B. D. 678 
 
 Wait V. Baker (1848), 2 Exch. 1 ; 17 L. J. Ex. 307 ... 
 
 ... , , , 
 
 143 
 
 ... 31, 102, 
 
 103 
 
 96, 97, 100, 
 
 107 
 
 6C 
 
 1,93 
 
 ... ... 
 
 23 
 
 40 
 
 •,41 
 
 152, 
 
 160 
 
 ... ... 
 
 32 
 
 , , , ,,, 
 
 114 
 
 40, 
 
 188 
 
 
 39 
 
 ... 57,68 
 
 1,71 
 
 
 88 
 
 
 64 
 
 
 184 
 
 ... ... 
 
 123 
 
 56, 58, 59, 60 
 
 ,84 
 
TABLE OF 0A8HB. XXxix 
 
 -w-rr 11 *- . PAGE 
 
 Walker «. Matthews (1881), 8 0. B. D. 109 68 
 
 Walker V. MeUor (1848), 11 Q.B. 478 4 
 
 Walker V. Nussey (1847), 16 M. & W. 302 23 
 
 Walker «. Shaw, [1904] 2 K. B. 152 48,188 
 
 WaUer «;. Drakeford (1863), 1 E. & B. 747 10 
 
 Walley V. Montgomery (1803), 3 East, 585 1 
 
 Wallis t;. Pratt, [1910] 2 K. B. 1003 91,141 
 
 Wallis V. Pratt, [1911] A. C. 394, H. L 36,40,188 
 
 Wallis V. Russell, [1902] 2 I. R. 585 ; 36 I. L. T. 67, C. A. ... 43, 44, 46, 47, 143 
 
 Walton «. MaacaU (1844), 13 M. & W. 452 112 
 
 Ward, £a; parte, [1905] 2 K. B. 465 ; 69 
 
 Ward V. Hobbs (1879), 4 App. Cas. 13 ; 48 L. J. Q. B. 281 ... 41, 42, 126, 187 
 
 Warde w Stewart ( ), 1 C. B. (n.s.) 88 187 
 
 Warlow V. Harrison (1858), 28 L. J. Q. B. 19 129, 130 
 
 Warrington ?;. Furbor (1807), 8 East, 242 169 
 
 Watkins v. Rymill (1883), 10 Q. B. D. 178 17, 182 
 
 Watson, £a: parte (1877), 6 Ch. B. 35, C. A 102,105 
 
 Watson, JJe (1890), 25 Q. B. D. 27, C. A 4 
 
 Watts w. Friend (1830), 10 B. & C. 446 25 
 
 Waynes Merthyr Steam Coal Co. v. Morewood (1877), 46 L. J. Q. B. 746 : 112, 
 
 114, 185 
 
 Webb «;. Eairmaner (1838), 3 M. & W. 473 33 
 
 Weiner v. Gill, [1906] 2 K. B. 574, C. A 56, 64, 189 
 
 Weiner v. Harris, [1910] 1 K. B. 285 ; 15 Com. Cas. 39 ... 4, 147, 148, 189 
 
 . Weis & Co., iJe, [1916] 1 K. B. 346 29 
 
 Wentworth u. Outhwaite (1842), 10 M. & W. 436 109 
 
 Wertheim v. Chicoutimi Pulp Co., [1911] A. C. 301, P. C ... 114, 116, 118, 
 
 119, 123 
 
 West Ham Guardians i\ Pearson (1890), 62 L. T. 638 14 
 
 Westzinthus, .Re (1833), 5 B. & Ad. 817 , 108 
 
 Whistler 1). Porster (1863), 32 L. J. C. P. 161 66 
 
 White, Ex parte, Ne-viU, Re (1870), L. R. 6 Ch. App. 397 4, 55 
 
 White V. Garden (1851), 10 C. B. 919 ; 20 L. J. C. P. 1 66 69 
 
 White ?;. Proctor (1811), 4 Taunt. 209 24 
 
 White j;. Williams, [1912] A. C. 814, P. C 186 
 
 Whitehead I). Anderson (1842), 9 M. & W. 518 102,103,105,106 
 
 Whitehom Bros. v. Davison, [1911] 1 K. B. 463, C. A 69, 71 
 
 Wiche I). Dennis Bros. (1913),' 29 T. L. R. 250 62 
 
 Wieler v. Schilizzi (1856), 17 C. B. 619 ; 26 L. J. C. P. 89 41 
 
 Wigglesworth v. Dallison (1779), 2 Smith, L. C. 11th Ed., 545 ; 1 Doog. 201 : 127 
 
 Wigram i;. BucMey, [1894] 3 Ch 74 
 
 Wilkinson v. Evans (1866), L. R. 1 C. P. 407, C. A 23 
 
 Wilkinson u King (1809), 2 Camp. 335 68 
 
 Wilks V. Atkinson (1815), 1 Marsh 412 ; 6 Taunt. 11 77, 78 
 
 WilUamsi;. Agius, [1914] A. C. 510, H. L 117,119 
 
 Williams v. Reynolds (1865), 34 L. J. Q. B. 221 117 
 
 Wilson z). DunviUe (1879), 6 L. R. Ir. 210 121 
 
 Wilson V. Glossop (1888), 20 Q. B. D. 354, C. A 15 
 
 Wilson Holgate & Co. v. Belgian Grain Co., [1919] W. N. 180 87 
 
 Wimble v. Rosenberg & Sons, [1919] 3 K. B. 743, C. A. ... 78, 86, 86, 87, 143 
 
 Withers i;. Reynolds (1841), 2 B. & Ad. 882 84 
 
 Wolf & Sons 1). Carr Parke & Co. (1915), 31 T. L. R. 407, C. A 16 
 
 Wood t). Baxter (1883), 49 L. T. (n.s.) 45 76 
 
xl 
 
 TABLE OF CASES. 
 
 Wood V. Lewis, [1914] 3 K. B. 73, C. A. 
 Wood V. Rowolifie (1846), 6 Hare, 183 ... 
 Wood V. Smith (1829), 5 M. & B. 124 ... 
 Wood V. Tassell (1844), 6 Q. B. 234 ... 
 Woodland v. Fuller (1840), 11 A. & E. 849 
 Woodley V. Coventry (1863), 32 L. J. Ex. 185 
 Woods V. RusseU (1822), 5 B. & Aid. 942 
 Woolf Phillips V. Brooks (1919), 24 Com. Cas. 263 
 Woolfe V. Home (1877), 2 Q. B. D. 355, C. A. 
 Wren v. Holt, [1903] 1 K. B. 610, C. A. 
 WylUe V. Povah (1907), 12 Com. Cas. 317 
 
 Xenos V. Wiokham (1867), L. R. 2 H. L. 296 ... 
 
 Yangtsze Ins. Association v. Lukmanjee, [1918] A. C. 585 
 
 299, P. C 
 
 Yates V. Pym (1816), 6 Taunt. 446 
 
 Young V. Matthews (1866), L. R. 2 C. P. 127 ... 
 . Yuill V. Robson, [1908] 1 K. B. 270 ; 77 L. J. K. B. 259, C, 
 
 PASS 
 
 14 
 
 148 
 
 188 
 
 80 
 
 74 
 
 107 
 
 58 
 
 69 
 
 36, 76, 184 
 
 44, 49, 131 
 
 7. 
 
 57 
 
 23 Com. Cas. 
 
 78, 88 
 
 187 
 
 ... 52, 54, 55 
 A. ... 88, 186 
 
 Zagury v. Purnell (1809), 2 Camp. 239 ... 
 
 55 
 
THE SALE OF GOODS ACT, 1893. 
 
 (56 & 57 Vict. c. 71.) 
 
 An Act for codifying the Law relating to the Sale of Goods (a). 
 
 [20th February, 1894.] 
 
 INote. — Scottish technical terms, which were inserted in the Bill when it was 
 applied to Scotland, are printed in square brackets.] 
 
 PART I. 
 
 TOBMATION OF THE CONTRACT. 
 
 Contract of Sale. 
 
 1. — (1.) Sale and agreement to sell. — A contract of sale of goods is 
 a contract whereby the seller transfers or agrees to transfer the 
 property in goods to the buyer for a money consideration, called the 
 price (S). 
 
 There may be a contract of sale between one part owner and 
 another (e). 
 
 (2.) A contract of sale may be absolute or conditional (d). 
 
 {a) Short title " The Sale of Goods Act, 1893," see sect. 64:, post. 
 
 (6) By sect. 62 " buyer " means a person who buys or agrees to buy goods. There 
 must therefore be a consent to buy as well as a consent to sell, Helby v. Matthews, 
 [1895] A. C. 471, H. L. (option to buy) ; Belsize Motor Supply Co. v. Cox, [1914] 
 1 K. B. 244 (option to buy) ; Manders v. Williams (1849), 5 Exch. 339 (option to 
 sell. No contract of sale till option exercised). See a conditional agreement to buy 
 distinguished from an option to buy, Martin v. Whale, [1917] 2 K. B. 480, C. A. 
 
 (c) See note post, p. 3, and as to sale by a co-owner to a third party, and the 
 remedies of co-owners, inter se, see post, p. 67. As to sale of undivided moiety of 
 specific chattel, creating co-ownership, see Marson v. Short (1835), 2 Bing. N. 0. 118. 
 
 (d) See note post, p. 6 ; Laws of England, yol, xyv., p. 115 ; and cf. Walley v. 
 Montgomery (1803), 3 East, 585, 590. 
 
 C.S.G. B 
 
2 THE SALE OF GOODS AGT, 1893. 
 
 (3.) Where under a contract of sale the property in the goods is 
 transferred from the seller to the buyer the contract is called a 
 sale ; but where the transfer of the property in the goods is to take 
 place at a future time or subject to some condition thereafter to be 
 fulfilled the contract is called " an agreement to sell " (e). 
 
 (4.) An agreement to sell becomes a sale when the time elapses 
 or the conditions are fulfilled subject to which the property in the 
 goods is to be transferred (/). 
 
 This section appears to be purely declaratory. By sect. 62, post, " buyer " 
 means a person who buys or agrees to buy goods, and " contract of safe " 
 includes an agreement to sell as well as a sale ; and " sale " includes a bargain 
 and sale as well as a sale and delivery ; and " property " means the general 
 property in goods and not merely a special property. The general prc^erty or 
 ownership in a thing must be distinguished from a merely special property, 
 such as that of a bailee, see post, p. 139 ; and see the right of property in a 
 thing distinguished from the right to the possession of it, post, p. 139. See 
 " goods " defined by sect. 62, post, p. 136 ; and as to the " price," see sects. 8 
 and 9, post. 
 
 The definition of " sale " has been criticised as failing to distinguish a 
 contract, by which a jus in personam is created, from a conveyance, by which 
 a jus in rem is transferred. But the language of English law is inveterate, an 
 agreement to sell being known as an executory contract of sale, while a sale is 
 known as an executed contract of sale. As to the scope of the term " contract," 
 see note, ^osi, p. 174. 
 
 Belation of sale to contract generally. — Pothier points out that the contract 
 of sale is consensual, bi -lateral (synallagmatique), and commutative {cf). In 
 part it is governed by principles peculiar to itself, and in part by j)rinciples 
 common to all contracts of the description above referred to. The Act, 
 except incidentally, deals only with the first-mentioned principles. The 
 principles of law which govern the contract of sale, in common with aU other 
 consensual contracts, are outside its scope. But they are expressly saved by 
 sect. 61, post, p. 131. If the law of contract were codified, the present Act 
 would form a single chapter in the code. The present work is limited in the 
 
 (e) Cf. Heilbuttv. Hickson (1872), L.R. 7 0. P., at p. 449 ; Marten v. Whale, [1917] 
 2 K. B. 480, at p. 484, 0. A. Laws of England, vol. xxv., p. 117. 
 
 (/) Bishop V. Shillito (1819), 2 B. & Aid. 329, n. (special condition) ; Sohde v. 
 Thwaites (1827), 6 B. & 0. 388, at p. 398 (appropriation of goods to contract) ; 
 Bianchi v. Nash (1836), 1 M. & W. 545 (special condition) ; Ex p. Crawcour, he 
 Bohertson (1878), 9 Ch. D. 419, at p. 424, 0. A. ; McEntire v. Crossley, [1895] 
 A. 0. 457 (hire purchase agreement) ; Beeves, v. Barlow (1884), 12 Q. B. D. 436, 
 -at p. 442, C. A. (building contract). See further, sects. 16-20, ^josi, p. 51. 
 
 (3) Pothier, Oordrat de Vente, § 1. See also Moyle's Sale in the Civil Law, 
 pp. 1-3. 
 
CONTBAGT OF SALE (SECT. 1). 3 
 
 same manner as the Aot. The contract of sale must be founded on mutnal 
 consent, and it may be avoided for fraud or illegality. But as regards these 
 matters, and such matters as substituted performance, rescission, or what 
 constitutes a valid tender of the price, the reader is referred to general works on 
 the law of Contract. 
 
 Sub-sect. 1. — Seller and buyer must be different persons. — The essence of 
 sale is the transfer of the property in a thing from one person to another for a 
 price. Hence it has been said that if a man purchase his own goods there is 
 no sale. Suse rei emptio non valet, sive sciens sive ignoraTis emerit (h). But 
 one co-owner may sell to another, a partner may seU to his firm, and the firm 
 may sell to a partner (z), and there are clearly certain quasi- exceptions to the 
 rule ; for instance, when a man's goods are sold under an execution or distress he 
 may himseK become the purchaser. Before the Married Women's Property 
 Acts, a wife could not sell to, or buy from, her husband, for they were in 
 contemplation of law but one person. Now she can do so (k). So, too, a bank- 
 rupt may buy back his own goods from his trustee, " though the trustee, the 
 auctioneer, or any one having a fiduciary character, is precluded from becoming 
 a purchaser by the general policy of the law which prohibits an agent from 
 selling to himself " (I). The true position seems to be this ; buyer and seller 
 must be different persons, but where one person has by law the right to sell 
 another person's goods, that other person may purchase his own goods. As to 
 the supply of liquor in a club to a member of the club, see post, p. 11. 
 
 Hatnie of sale. — Pothier, writing before the Code Napoleon, objects to sale 
 being defined as a transfer of the property iu a thing, because, he says, a man 
 may in good faith sell a thing which is not his own, and if this be so the buyer 
 cannot complain until his possession is disturbed. The seller, he says, merely 
 contracts with the buyer, " de lui faire avoir librement, i titre de proprietaire, 
 une chose pour le prix d'une certaine somme d'argent." In this view he followed 
 the Civil Law, Hactenus tenetur ut rem emptori habere liceat nonut ejusfaciat (m). 
 The objection seems hypercritical, for, as between the parties to the contract, 
 sale is a transfer of the property in the goods sold. The purport of the contract 
 is that the seller divests himseK of all proprietary right in the thing sold in 
 
 (h) Black. Com., 450 ; jPothier, Contrat de Vente, 'No. 8 ; cf. Scotson v. Pegg 
 (1861), 60 L. J. Ex., at p. 226, per WUde, B. ; King v. England (1864), 33 L. J. Q. B. 
 145 (distrainor taking goods at valuation), approved Moore v. Singer Manufacturing 
 Co., [1904] 1 K. B. 820, C. A. (distrainor buying at auction goods distrained) ; 
 Plasycoed Collieries Co. v. Partridge, Jones & Co., [1912] 2 K. B. 345 (distrainor). For 
 power to assign personal property to self and others, see Law of Property Amendment 
 Act, 1859 (22 & 23 Vict. e. 35), s. 21. 
 
 (i) Be McLaren (1879), 11 Oh. D. 68, C. A. A partner, of course, must not make 
 a secret profit ; cf. KuhUz v. Lambert Bros., Ltd. (1913), 18 Com. Gas. 217, 226 (oo- 
 adventurer). 
 
 {k) Bamsay v. Margrett, [1894] 2 Q. B. 18, C. A. 
 
 (i) Mtson V. Hardunck (1872), L. E. 7 C. A., at p. 478 ; cf. Armstrong v. Jackson, 
 [1917] 2 K. B. 822. 
 
 (ot) Pothier, Contrat de Vente, No. 1 and No. 48 ; Moyle's Sale in the Civil Law, 
 
 pp, 3, 108. 
 
4 THE SALE OF GOODS ACT, 1893. 
 
 favour of the buyer (w). The framers of the Code Napoleon adopted this 
 opinion, and in France, as in England, an unconditional sale passes the p:;:operty 
 in the thing sold, so far as the parties to the contract are concerned (o). 
 
 Cognate contracts. — ^"Whether a given contract be a contract of sale or 
 some other kind of contract is a question of substance and not of form. Thus it 
 depends on the real meaning and nature of a contract whether it is to be 
 construed as a contract of sale or a mere guarantee for the price (p) ; as a 
 contract of sale or a bailment on trust (g) ; as a contract of " sale or return," or 
 a contract of del credere agency (r) ; as a contract of sale or a contract for sale 
 on commission (s) ; as a contract of sale or a contract of loan on security or 
 mortgage (f) ; as a contract of sale or a mere wager (w) ; as a contract of sale or 
 contract for work and materials (x) ; as a contract of sale or a contract of 
 hiring (y) ; as a contract of sale or a contract to do work as an agent (z) ; "as a 
 contract of sale or a licence to get mineral products from land (a). By sect. 
 61 (4), post, it is expressly provided that " the provisions of this Act relating to 
 contracts of sale do not apply to any transaction in the form of a contract of sale 
 which is intended to operate by way of mortgage, pledge, charge, or other 
 security." 
 
 The question whether a given contract be a contract of sale or some other 
 allied form of contract, though often difficult to determine, is of practical, and 
 not merely of theoretical importance. 
 
 Work and materials. — A contract for work and materials does not come 
 within sect. IV of the Statute of Frauds, now reproduced in sect. 4 of this Act ; but 
 if in writing it must be properly stamped, whereas contracts of sale are exempt 
 from stamp duty, see Stamp Act, lS91,post, p. 169. Opinions have differed much 
 as to the test for distinguishing between these two contracts, but since the case 
 of Lee V. Griffin, decided in 1861, the rule seems to be that if the contract is 
 intended to result in transferring for a price from A to B an article in which 
 
 (n) Of. Walker v. Mellor (1848), 11 Q, B. 478. 
 
 (o) French Civil Code, art. 1583 ; Italian Commercial Code, art. 59. 
 
 (p) Button V. Lippert (1883), 8 App. Gas. 309, P. C. 
 
 (2) South Australian Ins. Co. v. BaM,dell (1869), L. E. 3 P. 0. 101. Cf. Comber 
 V. Leyland, [1898] A. C, at p. 530, H. L. 
 
 (r) Ex p. White, Be Nevill (1870), L. E. 6 Oh. App. 397 ; cf. Ex p. Bright (1879), 
 10 Oh. D. 565, 0. A. ; Weinerv. Harris, [1910] 1 K. B. 285, C. A. 
 
 (s) The Prim Adelbert, [1917] A. 0. 586, P. 0. For a hybrid contract of sale and 
 agency, see The Kronprincessin CeciUe (1917), 83 T. L. B. 292 P. C. 
 
 (0 Exp. Harvey & Co. (1890), 7 MorreU, 138; Be Watson (1890), 25 Q. B. D. 27, 
 0. A. ; Madell v. Thomas, [1891] 1 Q. B. 230, C. A. ; Maas v. Pepper, [1905] A. 0. 
 102, H. L. (bin of sale cases) ; cf. sect. 61 (4), post, p. 132. The Ortheric, [1920] A. C. 
 724, P. C. (bill of exchange with bill of lading attached, " sold " to bank). 
 
 (u) Bourke v. Short (1856), 25 L. J. Q. B. 196 (alternative price as a wager). 
 
 (x) Lee V. Griffin (1861), 30 L. 3. Q. B. 252 (artificial teeth made to order, sale). 
 
 (j/) Muirhead v. Dickson (1905), 7 F. 686, Court of Session ; Brooks v. Bierhstein, 
 [1909] 1 K. B. 98. 
 
 (0) Dixon V. London Small Arms Co. (1876), 1 App. Gas. 633, at pp. 645, 648, 654. 
 
 (a) Morgan v. Bussell & Son, [1909] 1 K. B, 357, See further Laws of England, 
 vol. XXV., p. 113, 
 
CONTRACT OF SALE (SECT. 1), 5 
 
 B had no previous property, it is a contract of sale (6). But is this exhaustive P 
 Suppose an artist paints a picture for a picture dealer who supplies him with 
 canvas, paint, and brushes, is not this sale (c) ? 
 
 Gift. — Where goods are transferred by one person to another without any 
 price or other consideration being given in return, the transaction is called a 
 gift. 
 
 Where a gift of goods is not effected by deed (d), it is incomplete and 
 ineffectual until delivery to the donee of the thing intended to be given. 
 Donatio perficitur possessione accipientis. The intention to transfer the pro- 
 perty is of no avail. The distinction between sale and gift in this respect has 
 been elaborately discussed by Lord Bowen (e). So, again, a gift must be 
 distinguished from a declaration of trust. In the case of a gift there must be a 
 transfer of possession, in the case of a declaration of trust the trustee must 
 retain, and intend to retain, the control. An inchoate gift falls between the 
 two (/). 
 
 Exchange of goods or barter. — Where the consideration for the transfer of the 
 property in goods from one person to another consists of other goods, the 
 contract is not a contract of sale, but is a contract of exchange or barter {g). 
 But if the consideration for such a transfer consists partly of goods and partly 
 of money, it seems that the contract is a contract of sale Qi). Thus where 32 
 bullocks, valued at £6 a piece, were tb be exchanged for 100 quarters of barley 
 at £2 per quarter, the difference to be paid in cash, the contract was treated as 
 a contract of sale (i). But where goods were supplied on the terms that they 
 were to be paid for by the bill of a third party, without recourse to the buyer if 
 the bill was dishonoured, the contract was treated as exchange not sale (j). 
 
 (6) Lee v. Griffin (1861), 80 L. J. Q. B. 252, at p. 254, per Blackburn, J. ; cf. 
 Anglo-Egyptian Navigation Go, v. Bennie (1875), L. E. 10 0. P. 271 (boilera for ship, 
 work and materials) ; Law Quarterly Review, vol. i., p. 8, and Laws of England, vol. 
 XXV., p. 114. The difficulty ia an old one, and was much debated by the Roman 
 lawyers. See Inst. III., 24, 4, and Moyle's Sale in the Civil Laio, pp. 6-8. 
 
 (c) Cf. Dixon V. London Small Arms Co. (1876), 1 App. Cas. 683, at 646, 648. 
 
 (d) Be Seymour, [1918] 1 Oh. 475, C. A. (deed). 
 
 (e) Cochrane v. Moore (1890), 25 Q. B. D. 57, 0. A. (attempted gift of undivided 
 fourth part of a racehorse) ; Law Quarterly Beview, vol. vi.,p. 446 ; Kilpin v. Ratley, 
 [1892] 1 Q. B. 582 (constructive delivery of furniture) ; Cain v. Moon, [1896] 2 Q. B. 
 283, 289 (constructive delivery) ; Stoneham v. Stoneham, [1919] 1 Oh. 149 (construc- 
 tive delivery). 
 
 (/) Cf. Richards v. Delbridge (1S74), L. R. 18 Eq. 11. 
 
 (g) Harrison v. Luke (1845), 14 M. & W. 139 ; French Oivll Code, art. 1702 ; Laws 
 of England, vol. xxv., p. 109. 
 
 {h) Aldridge v. Johnson (1857), 26 L. J. Q. B. 296; Sheldon v. Cox (18241, 3 
 B. & 0. 420, where the goods had been delivered and the action was brought for the 
 money balance. Cf. Forysth v. Jervis (1816), 1 Stark. 437 ; Bull v. Parker (1842), 
 12 L. J. Q. B. 98 ; Barman v. Beeve (1856), 25 L. J. 0. P. 257 ; South Australian 
 Ins. Co. V. Bandell (1869), L. R. 3 P. 0. 101 (alternative consideration). 
 
 (i) Aldridge v. Johnson (1857), 26 L. 3. Q. B. 296. 
 
 (;■) Beid v. Hutchinson (1813), 3 Oamp. 851. 
 
6 THE SALE OF GOODS ACT, 1893, 
 
 When a statute refers in terms to contracts of sale (as, for instance, the 
 Sale of Goods Act or the Stamp Act), it seems clear that it would have no 
 application to contracts of exchange. Sect. 5 of Factors Act, 1889, post, p. 154. 
 for its special purpose, draws a distinction between sales and exchanges. But, 
 apart from statute, it seems that rules of law relating to sales apply iu general 
 to contracts of barter or exchange; but t£e question has been by no means 
 fuUy worked out (k). The BiU originally contained a clause applying its 
 provisions mutatis mutandis to exchanges, but the clanse was cut-out by the 
 Commons Select Committee. 
 
 The distinction between sale and exchange seems a universal one. Its 
 effects in France are discussed at length by Pothier(Z). In Roman law the 
 matter was long a subject of controversy, but it was eventually settled by 
 imperial rescripts (m). " It is important," says Mr. Moyle, speaking of Roman 
 law, " to distinguish between sale {emptio venditio) and exchange (permutatio) 
 for they belong to different classes of contract, and their respective m'ncwZajitris- 
 are imposed by different causx. Permutatio is one of the innominate contracts ; 
 there is no ohligatio till one of the two exhanging parties has done what he 
 has promised ; but in sale which is consensual, the ohligatio is independent of 
 part performance. It is not, however, necessary that the whole price shall be 
 in money (Dig. 18, 1, 79) ; and if, after the contract is concluded, the vendor 
 changes his mind and agrees to take goods in Heu of the purchase-money, it 
 remains sale, and does not become exchange " (n). 
 
 Sub-sect. 2. — Conditional contracts of Sale. — As the contract of sale is con- 
 sensual, it follows that it may be either absolute or conditional, as the parties 
 may please. The conditions inserted by the parties may be either conditions 
 precedent or conditions subsequent. In the apt phraseology of the French 
 and Civil lawyers, a contract of sale may be either a sale pure and simple, 
 transferring the property absolutely to the buyer, or it may be subject to a 
 "suspensive" or "resolutive" condition (o). The division of conditions into 
 those which are suspensive and those which are resolutive is convenient, because 
 those terms mark clearly the distinction between an agreement for sale which 
 is to become an actual sale on the fulfilment of a particular condition, and an 
 actual sale passing the property to the buyer, but subject to defeasance on the 
 happening of some specified event. When goods are sold by weight or measure, 
 
 (7c) Cf. Fairmaner v, Budd (1831), 7 Bing. 674 ; Emanuely. Dane (1812), 3 Camp. 
 299 (warranty) ; La Neuville v. Nourse (1813), 3 Camp. 350 (caveat emptor) ; Pothier, 
 Contrat de Vente, No. 620, citing the rule permutatio vicina est empUoni ; French 
 Civil Code, arts. 1702-1707. 
 
 (I) Pothier, Contrat de Vente, No. 620, and see arts. 1702-1707 of the French Civil 
 Code, which now regulate the matter. 
 
 (to) Moyle's Sale in the Civil Law, pp. 3-5 ; Moyle'a Justinian, p. 420. 
 
 («) Moyle's Justinian, p. 420. By art. 1703 of the French Civil Code, the 
 contract of exchange is made consensual like sale. As to the origin of sale in 
 exchange, and how the two contracts were difEerentiated, see Dig. 18, 1, 1. 
 
 (o) French Civil Code, arts. 1583, 1584 ; cf. Moyle's Sale in the Civil Law, p. 165 ; 
 Murdoch v. Oreig (1889), 16 R. 396 (Court of Session). 
 
CONTRACT OF SALE (SECT. 1). 7 
 
 the weighing and measuring are suspensive conditions, and if goods he sent on 
 approval, the approval of the buyer constitutes a suspensive condition (see sect. 
 18, (4) post). But if goods he sold by auction with a condition that they may 
 be re-sold if not paid for within twenty -four hours, the condition is reso- 
 lutive (y). As a contract of sale may be conditional, the parties may attach 
 such consequences as they see fit to the non-fulfilment of the condition. They 
 may stipulate that in the event of non-fulfibnent both parties shall be dis- 
 charged from their obligations, or that the seller shall not be bound to deliver, 
 or that the buyer shall not be bound to pay the price (g). 
 
 Uortgage of goods. — A mortgage is sometimes called a con'ditional sale, but, 
 as Cave, J., has pointed out, a sale with a condition for re-sale to the original 
 seller need have nothing to do with a mortgage (r). A mortgage of goods may 
 be defined as a transfer of the general property in goods from mortgagor to 
 mortgagee in order to secure a debt (s). This Act has no application to any 
 mortgage, even though clad with the form of a contract of sale ; see sect. 61 (4), 
 post, p. 132. If a mortgage of goods be in writing, it usually comes within the 
 Bills of Sale Acts, 1878 and 1882. But it seems that goods maybe mortgaged by 
 parol (f). Such a mortgage apparently comes under neither this Act nor the 
 BiUs of Sale Acts ; for the latter Acts strike only at documents, and not at the 
 transactions themselves (m). 
 
 Letters of hypothecation. — A letter of hypothecation of imported goods need 
 not be registei'ed as a bill of sale (a;). 
 
 Pledge. — A pledge may be defined as a delivery or bailment of goods by one 
 
 (J)) See Lamond v. Davall (1847), 9 Q. B. 2030; Head v. Tattersall (1871), 
 7 L. E, Ex. 7 (horses). For a peculiar resolutive condition containing a term for 
 novation, see Orissell v. Bristowe, L. B. i 0. P. 36 (sale on Stock Exchange). Eor 
 an example of a ship sold conditionally, see The Bipon City, [1897] P. 226. See, too, 
 Wyllie V. Povah (1907), 12 Com. Cas. 317, 321 (goods sold while at sea, in case of 
 non-arrival the contract to be void). 
 
 (g) Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B. 322, at p. 828 ; Laws of 
 England, vol. xxv., pp. 115, 116. Cf. New Zealand Shipping Co. v. Sacieti des 
 Ateliers de France, [1919] A. C. 1 (H. L.). 
 
 (r) Beckett v. Tower Assets Co., [1891] 1 ;Q. B. at p. 25 ; cf. Manchester, <£c. 
 By. V. North Central Wagon Co. (1888), 13 App. Cas. 554, H. L. 
 
 (s) Keith V. Burrows (1876), 1 0. P. D., at p. 731, per Lindley, L.J. ; Ex p. 
 Hubbard (1886), 17 Q. B. D., at p. 698, per Bowen, L.J. A memorandum of a 
 pledge of goods containing a power of sale is not a mortgage for stamp purposes, 
 Be Attenborough (1855), 14 Exoh. 461. 
 
 (t) Maughan v. Sharp (1864), 34 L. J. C. P. 19, and cf. Beeves v. Capper (1828), 
 5 Bing. N. C. 136 ; London and Yorkshire Bank v. White (1895), 17 T. L. R. 570. 
 
 (u) North Cent. Wagon Co. v. Manchester By. (1887), 35 Oh. D., at p. 206, 
 C. A: 
 
 {x) Bills of Sale Act, 1890 (53 & 54 Vict. c. 53), as amended by Bills of Sale Act, 
 1891 (54 & 55 Vict. c. 85). As to registration of charges created by limited 
 companies, see sect. 93 of the Companies (Consolidation) Act, 1908 (8 Edw. 7, c 69), 
 and Ladenburg <& Co. v. Goodwin, [1912] 3 K. B. 275 (hypothecation of proceeds of 
 exported goods=charge on book debts). 
 
8 THE SALE OF GOODS ACT, 1893. 
 
 person to another in order to secure payment of a debt (2/). If the pledgor 
 makes default in paying the debt the pledgee may seU the goods after notice to 
 the pledgor (a). A pledge differs from a mortgage— (1) because the mortgagor 
 may retain possession, while a pledge must be delivered to the pledgee; (2) 
 because the mortgagee obtains the general property in the goods, while the 
 pledgee only obtains a special property necessary to secure his rights (a). Note a 
 wider definition of pledge given by sect. 1 (5) of the Factors Act, 1889, for the 
 purposes of that Act, post, p. 150. 
 
 Sub-sect. 3. — Sale and agreement to sell distinguished. — The term contract of 
 sale includes both actual sales and agreements for sale. It is important to 
 distingfuish clearly between the two classes of contracts. An agreement to sell, 
 or, as it is often called, an executory contract of sale, is a contract pure and 
 simple ; whereas a sale, or, as it is called for distinction, an executed contract of 
 sale, is a contract plus a conveyance (5) . By an agreement to sell a jits in personam 
 is created, by a sale a jus in rem is transferred. Where goods have been sold, 
 and the buyer makes default, the seller may sue for the contract price, but 
 where an agreement to buy is broken, the seller's remedy is an action for un- 
 liquidated damages. If an agreement to sell be broken by the seller, the buyer 
 has only a personal remedy against the seller. The goods are still the property 
 of the seller, and he can dispose of them as he Hkes ; they may be taken in 
 execution for his debts, and, if he becomes bankrupt, they pass to his trustee, 
 who may disclaim the contract. But if there has been a sale, and the seller 
 breaks his engagement to deliver the goods, the buyer has not only a personal 
 remedy against the seller, but also the usual proprietary remedies in respect of 
 the goods themselves, such as the actions for conversion and detinue. In majiy 
 cases, too, he can follow the goods into the hands of third parties. Again, 
 if there be an agreement for sale, and the goods are destroyed, the loss, as a 
 rule, falls on the seller, while, if there has been a sale, the loss, as a rule, falls 
 upon the buyer, though the goods have never come into his possession. 
 
 Sub-sect. 4. — rAgreement to sell passing into sale. — By sect. 62,post, p. 139, the 
 
 (2/) Story on Bailments, §§ 7, 286, citing Dig. 13, 7, 2. Propria pignus dicimus, 
 guod ad creditor em transit; hypothecam, cum non transit neepossessio ad creditorem. 
 
 (z) Story on Bailments, { 308, and see generally the notes to Ooggs v. Bernard, 
 1 Smith Lead. Gas., and p. 139, post. The power of a pledgee to sell without the 
 intervention of any court ia peculiar to English law, see The Odessa, [1916] A. 0. 
 145, at p, 162, P. 0. As to Scotland, see Green's EncyclopcBdia of Scots Law, 
 tit. " Pledge." 
 
 (a) HallidayY. Holgate (1868), L. B. 8 Ex. 299, Ex. Ch. ; see per Willes, J. ; Exp. 
 Hubbard (1886), 17 Q. B. D. at p. 698 ; Re Morrit (1886), 18 Q. B. D. at p. 232 ; see 
 a mere lien distinguished from a pledge, Donald v. Suckling (1866), L. B. 1 Q, B. at 
 p. 612 ; c/. Howes v. Ball (1827), 7 B. & C. 481 (hypothecation) ; and see pledge and 
 sale contrasted, Burdick v. Sewell (1884), IS Q. B. D. at p. 175, o'. A., and 10 
 App. Gas. at p. 98. 
 
 (6) By sect. 62, post, " sale " includes a bargain and sale as well as a sale and 
 delivery. 
 
QUASI-CONTRACTS OF SALE (SECT. 1). 9 
 
 term " sale " includes a bargain and sale, as well as a sale and delivery (e). 
 According to the Civil Law which, with some statutory modifications, prevailed 
 in Scotland before the Act, the property in the goods sold did not pass to the 
 buyer until delivery (d). But English law has rejected the objective test of 
 delivery, and has adopted the rule that the property in the goods may be trans- 
 ferred by the contract itseH if the parties so intend (e). The parties may make 
 whatever bargain they please, and the law will give effect to it. When the 
 parties express their intention clearly no difficulty arises. The contract may 
 pass the property at once, or at a future time, or contingently on the performance 
 of some condition (/). But in many cases the parties either form no intention 
 on the point, or fail to express it. To meet such cases the Courts worked out a 
 series of more or less artificial rules for determining when the property is to be 
 deemed to pass, according to the imputed intention of the parties. These rules 
 are now reproduced in sect. 18 of the Act, post. 
 
 M. YioUet, in an interesting chapter in his " History of French Law," 
 traces the steps by which French lawyers gradually discarded delivery as the 
 means of passing the property, and arrived at a rule similar to our own (g). 
 
 Quasi- Contracts of Sale. 
 
 The Act deals only with contracts of sale, properly so called. But there are 
 certain quasi-contracts of sale which require to be noted. By a quasi-contract 
 of sale is meant a ti-ansaction to which, independently of the will of the parties, 
 the law annexes consequences similar to those which result from a sale (h). For 
 example : — ■ 
 
 (1) Satisfied judgment in trover, trespass, or detinue. — Wherein an action for 
 trespass to, or the conversion or wrongful detention of goods, the plaintiff 
 recovers the fuU value of the goods as damages, and the defendant satisfies the 
 judgment, the transaction operates as a sale of the goods from the plaintiff to 
 the defendant as from the time when the judgment is satisfied (i). 
 
 (c) As to the old distinction between the action for goods bargained and sold and 
 the action for goods sold and delivered, see BuUen and Leake, Free, of Plead,, 
 3rd ed., pp. 8, 9, and see now ed. 6, pp. 273, 275. 
 
 (d) See McBaAn v. Wallace (1881), 6 App. Cas. at pp. 605, 608 ; and Moyle's Sale 
 m the Civil haw, p. 110. - 
 
 (e) See Blackburn on Sale, pp. 187-197, who finds traces of the rule as far back as 
 -the time of Edward i. The history of the question is treated exhaustively in the 
 
 judgment in Cochrane v. Moore (1890), 25 Q. B. D. 57, C. A (gift of a horse). 
 
 (/) Johnson v. Macdonald (1842), 9 M. & W. 600 (sale of goods to arrive) ; McEntire 
 V. Crossley (1895), A. C, at p. 463 (hire-purchase). 
 
 (g) VioUet, Histoire du Droit Eranqais, pp. 515-523. See now French Civil Code, 
 art. 1583. 
 
 (A) As to quasi-contracts, see Anson on Contracts, ed. 13, pp. 9, 416. 
 
 (i) Jenkins' ith Centj Cos., No. 88, as to trespass, citing the maxim, " Solutio 
 pretii emptionis loco habetur " ; Cooper v. Shepherd (1846), 3 0. B. 226, 15 L. J. C. P. 
 237 ; Brinsmead v. Harrison (1871), L. E. 6 C. P. 584, at p. 588, as to trover or 
 conversion; Ex p. Drake (1877), 5 Ch. D. 866, 0. A., as to detinue; c/. Eberle v. 
 Jonas (1887), 18 Q. B. D., at p. 468. 
 
10 THE SALE OF GOODS ACT, 1893. 
 
 "The theory of the judgment in Hn action of detinue," says Jessel, M.R., 
 " is that it is a kind of involuntary sale of the plaintiff 'i3 goods to the defendant. 
 The plaintiff wants to get his goods hack, and the Court gives him the next 
 best thing, that is the value of the goods. If he does not get that value then 
 he does not lose his property in the goods " (fc). It has been suggested that 
 ■when the judgment is satisfied the defendant's title relates back to his wrongful 
 act (Z) : but the doctrine of relation is not in accordance with the general 
 principles of English law. An unsatisfied judgment does not transfer the 
 property. 
 
 (2) Sale induced by fraud. — It has been held that where a plaintiff has been 
 induced, by the fraud of a third person, to sell goods to an insolvent buyer, and 
 such third person has afterwards obtained the goods himself, the plaintiff may 
 waive the tort, and treat the transaction as a sale to such third person (m). 
 
 (3) Waiver of tort. — Again, there are many cases where, when one person has 
 wrongfully obtained possession of the goods of another, the owner of the goods 
 may waive the tort, and treat the transaction as a sale by himself to the person 
 who has got the goods (n). So, too, when goods have been sold by a person who 
 has no right to seU them, " the owner may waive the tort and recover the 
 proceeds in an action for money had and received " (o). 
 
 (4) Sale by estappel. — So, too, there may be a sale by estoppel. Suppose a 
 defendant sells specific goods to one person, and the documents of title to the 
 goods to another person, he would be liable to both, though a doubt might arise 
 as to which person would be entitled to the goods themselves. So, too, a person 
 holding himself out as the buyer may be liable as such (p). Conversely a person 
 who stands by and lets his goods be sold is bound by the sale (q). For further 
 instances of quasi-contract, see notes to next section (persons incompetent to 
 contract). 
 
 (&) Ex p. Drake (1877), 5 Ch. D. 866, at p. 871, C. A. ; but cf. Bradley v. Ramsay 
 d Co. (1912), 106 L. T. 771, C. A. (goods on appro., efEeot of unsatisfied judgment 
 by consent). 
 
 (1) Addison on Torts, ed. 17, p. 550. 
 
 (m) Bill V. Perroit (1810), 3 Taunt. 274. 
 
 (n) Rice v. Reed, [1900] 1 Q. B. 54, C. A. (wrongful sale by servant, evidence 
 of election to waive torfcji. 
 
 (o) Arnoldv. Cheque Bank (1876), 1 C. P. D. at p. 585; cf. Dickinson v. Naul 
 ^1833), 4 B. & Ad. 688 ; AlUn v. Hopkins (1844), 13 M, & W. 94, 102. 
 
 (p) Cornish v. AUngton (1859), 28 L. J. Ex. 262. As to property by estoppel, see 
 Oillett V. Hill (1834), 2 Or. & M. 530 (wharfinger accepting delivery order estopped 
 from denying he had the goods) ; Coventry v. Great Eastern Railway Co. (1883), 11 
 Q. B. D. 776 (two delivery orders for same goods) ; cf. Henderson v. Williams (1895), 
 1 Q. B. 521 (person getting delivery order by pretending to be an old customer) ; 
 Farguharson Brothers v. King& Co., [1901] 2 K. B. 697, C.-A. reversed, A. 0. (1902), 
 325 H. L. (fraudulent clerk giving delivery order in fictitious name and then selling 
 to plaintifi) ; Law Quarterly Review, vol. xviii., p. 159. 
 
 (2) Waller v. Drakeford (1853), 1 E. & B. 749; Cohen v. Mitchell (1890), 25 
 Q. B. D. 262, C. A. (sale by bankrupt, trustee not intervening). 
 
CONFLICT OF LAWS (SECT. 1). 11 
 
 Liquor sold in clubs. — Where intoxicating' liquor, which is hond fide the 
 property of a club, is supplied to a member of the club, who pays for it, the 
 transaction, though resembling a sale, is not a sale within the meaniag of the 
 Licensuig Acts. In substance the member is consuming his own property, and 
 the mode of payment is a matter of internal arrangement regulated by the rules 
 of the club (r). 
 
 Assignment of contract of sale. — The assignability of contracts of sale has not 
 been much discussed, but presumably the rights and obligations under a contract 
 of sale may be assigned under the like conditions and qualifications as in the case 
 of other contracts (s). If any question of personal skill, confidence or com- 
 petency is involved, the contract is not assignable (t) ; and a contract cannot be 
 assigned when the result of the assignment would be to make the contract more 
 onerous («). Thus where A, a provision merchant, undertakes to supply B, a 
 cake manufacturer, with all the eggs he may require in his business for a year, 
 B undertaking not to buy eggs from any one else, this is a personal contract, 
 and if B assigns his business to a limited eompanyj A is discharged from his 
 obligation («). 
 
 As the price when payable constitutes a debt, the obligation to pay it may be 
 assigned like any other book debt [y). 
 
 Three cognate transactions must be distinguished, namely, (1) the assignment 
 of a contract with its reciprocal rights and obligations, (2) the delegation of the 
 performance of a contract, as where a manufacturer supplies articles manuf acured 
 wholly or in part by some one else {z), and (3) novation, as for instance where 
 there is a contract between A and B, and by a tripartite agreement C is 
 substituted for either A or B (a). 
 
 Conflict of laws. — Sales iu foreign countries are in general regulated by the 
 law of the country where the sale takes place. Subject to certaia qualifica- 
 tions, the rule is that if personal property be disposed of in a manner binding 
 according to the law of the country where it is, that disposition is binding 
 
 (r) Graff v. Evans (1882), 8 Q. B. D. 373, 378 ; Davies v. Burnett, [1902] 1 K. B. 
 666 ; cf. Newman v. Jones (1886), 17 Q. B. D. 182 (unauthorised sale by steward to 
 person not a member of club) ; as to status of member of proprietary club, see Baird 
 v. Wells (1890), 44 Ch. D. 661 ; and see further Paterson'a Licensing Acts, ed. 24, 
 p. 667. 
 
 (s) Cf. Bidden Brothers v. S. Clemens, Horst & Co. (1911), 16 Com. Gas. 8, 12; 1 
 K. B., [1911] 214, 219 ; and A. C, [1912] 18 (assignment by seller) ; Whiteley v. Hilt, 
 [1918] 2 K. B. 808, at pp. 820, 822, C. A. (hire-purchase agreement). 
 
 (t) British Wagon Co. v. Lea (1880), 5 Q. B. D. 149, 153. 
 
 (u) Tolhurst V. Portland Cement Manufacturers, [1901] 2 K. B. 811 ; reversed on 
 an inference of fact, ibid., [1902] 2 K. B. 660, 0. A., see at p. 668 for principles 
 (contract for supply of chalk for SO years), and A. C, [1903] 414, H. L. 
 
 (x) Kemp V. Baerselman, [1906] 2 K. B. 604, 0. A. ; cf Cooper v. MicklefleU (1912), 
 107 L. T. 457 (coal supplied on special terms). 
 
 (y) Cf. Tailhy v. Official Receiver (1888), 13 App. Oas. 523, H. L. ; Bullen and 
 Leake, Free, of Pleading, ed. 6, pp. 88, 586. 
 
 (2) Cf Johnson y. Bailton (1881), 7 Q. B. D. at p. 447. 
 
 (a) Cf Jager v. Tohne and Bimge, [1916] 1 K. B. 939, 955, 0, A. 
 
12 THE SALE Oi' GOODS ACT, 1893. 
 
 everywhere (6). Thus where the master of a ship wrongfully sold the cargo hy 
 auction in Norway, but under such circumstances as to give a good title in 
 Norway, the sale was held vaM, although the cargo subsequently came to 
 England (c) ; and the title to a stolen horse bought in market overt in Ireland, 
 would be recognised in Scotland (d) ; and the validity of a pledge is determined 
 by the law of the country where the goods were pledged (e). Locus regit actum 
 is a rule of wide application. But questions of evidence, e.g. whether the 
 provisions of sect. 4 have been satisfied, belong to the lex fori (/). Stipulations 
 and terms in a contract of sale must be construed according to the lex loci con- 
 tractus which prima facie, but only prima facie, is the law of the place where 
 the contract was entered into (g). 
 
 In the absence of evidence to the contrary, foreign law is presumed to be the 
 same as English law. If it differs, and the difference is relied on, it must be 
 proved as a question of fact (/i). 
 
 Capacity of Parties. 
 
 2. Capacity to buy and selL — Capacity to buy and sell is regulated 
 by the general law concerning capacity to contract, and to transfer 
 and acquire property. 
 
 Provided that v?here necessaries are sold and delivered to an 
 infant [or minor] or to a person who by reason of mental incapacity 
 or drunkenness is incompetent to contract, he must pay a reasonable 
 price therefor (i). 
 
 "Necessaries" in this section mean goods suitable to the 
 condition of life of such infant [or minor] or other person (k), and to 
 his actual requirements at the time of the sale and delivery (I). 
 
 (6) Embi/ricos v. Anglo-Austrian Bank, [1905] 1 K. B., at p. 683, C. A. ; Dioey's 
 Conflict of Laws, 2nd ed., pp. 519-522. British ships constitute an exception to 
 this rule. 
 
 (c) Gammel v. Sewell (1860), 29 L. J. Ex. 350, Ex. Oh. ; cf. Alcock v. Smith, 
 [1892] 1 Ch. 238, C. A. (bill of exchange taken in execution abroad). 
 
 (d) Todd V. Armom (1882), 9 B. 902, Court of Session. 
 
 (e) City Bank v. Barrow (1880), 5 App. Oas., at p. 677, H. L. 
 (/) Dicey's Conflict of Laws, 2nd ed., 710-712. 
 
 (g) Be Missouri Steamship Co. (1889), 42 Ch. D. at p. 328, C. A. Cf. Doulton * 
 Co. v. Corporation of Madras, [1920] W. N., p. 221 (goods to be made in England 
 and delivered in India). 
 
 {h) The Parchim, [1918] A. C. 157, H. L. As to expert evidence to prove the 
 foreign law, see Taylor on Evidence, §§ 1280, 1281. 
 
 (i) Byder v. Wombwell (1868), L. E. 4 Ex. 32, at p. 38, Ex. Ch. (jewellery). 
 
 (/c) Ibid.; Peters v. Fleming (1840), 6 M. & W. 42, at p. 46, per Parke, B., and 
 p. 48, per Alderson, B. 
 
 (I) Barnes v. Toye (1884), 13 Q. B. D. 410 (clothes) ; Johnstone v. Marks (1887), 
 19 Q. B. D. 509, C. A. (clothes). 
 
CAPACITY OF PARTIES (SECT. 2). 13 
 
 lUiistraUons. 
 
 1. Clothes to the value of £145, including eleven fancy waistcoats, are 
 supplied by a tailor to an infant undergraduate at Cambridge. They are not 
 necessaries, and it is for the plaintifE to show affirmatively that the goods 
 supplied were suitable for the particular infant, and that he was in want of 
 goods of that character at the time of supply (m). 
 
 2. A quantity of clover is ordered from an infant trader, and is paid for. If 
 the clover is not delivered, the infant cannot be sued for damages or for money 
 had and received («•). 
 
 3. Groods are sold and delivered to an infant who fraudently represents 
 himself to be of age. Some of the goods are necessaries, some not, but the 
 contract is entire. The infant is not liable on the contract or for the conversion 
 of the goods (o). 
 
 The words " and delivery " at the end of the section were added in Committee, 
 probably to point the distinction between a "bargain and sale " and a " sale and 
 delivery.'' The term " minor " is the Scotch equivalent of our term " infant." 
 
 Capacity to contract must be distinguished from authority to contract. 
 Capacity means power to bind oneseM ; authority means power to bind another. 
 Capacity is part of the law of status ; authority is part of the law of principal 
 and agent. Capacity is usually a question of law ; authority is usually a 
 question of fact. This section deals only with the question of capacity to buy 
 and sell. As regards authority to buy or sell on behalf of another there appears 
 to be nothing peculiar to the contract of sale, except the provisions of the 
 Factors Acts, post, p. 146. On this subject, therefore, the reader is referred to 
 general works on the law of Agency and Partnership. Sect. 61 (2), post, 
 contains an express saving for the law of principal and agent. 
 
 The section is probably declaratory. As Cotton, L.J., has pointed out, 
 when necessaries are supplied to a person who is incompetent to contract, the 
 obligations to pay for them arises really quasi ex contractu {p). He cannot bind 
 himseH to pay for them, but it is for his benefit that he shotdd have them, and 
 the law therefore wUl see that a fair price is paid therefor. The obligation to 
 pay arises re and not consensu (q). 
 
 Lunatic. — As a rule a contract made with an insane person, known to be 
 
 (to) Nash V. Inman, [1908] 2 K. B. 1, 0. A. 
 
 (n) Cowern v. Nield, [1912] 2 K. B. 419, as explained in Leslie v. Shiel, [1914] 
 3 K. B. 607, 0. A. 
 
 (o) Stocks V. Wilson, [1913] 2 K. B. 235, as explained in Leslie v. Shiel, [1914] 
 3 K. B. 607, C. A. Qu. as to the power of a court of equity to order restitution if 
 the infant has property ? ibid. 
 
 (p) Be Bhodes (1890), 44 Ch. D. 94, at pp. 103-107, G. A. (lunatic). 
 
 (g) The language of this note is approved by Moulton, L.J., in Nash v, Inman, 
 [J.908] 2 K. B., at p. 8, 0. A. 
 
14 THE SALE OF GOODS AGT, X893. 
 
 insane, cannot be enforced against him ; but his estate is held liable for necessaries 
 supplied to him (r). 
 
 Drunken man. — A contract made by a drunken man known to be drunk, is, as 
 a rule, voidable ; but as PoUock, C.B., says, a drunkard is liable " when sober, 
 for necessaries supplied to him when drunk " (s). 
 
 Infant or minor.— By sect. 1 of the Infants Belief Act, 1874 (37 & 38 Vict, 
 c. 62), " all contracts . . . for goods supplied, or to be supplied, other than 
 contracts for necessaries, and all accounts stated with infants shall be absolutely 
 void " (i). The language of that Act is consistent with the view that an infant 
 might be liable on an executory contract to supply him with necessaries, but an 
 infant has never yet been held liable for breach of contract to accept necessaries, 
 or for necessaries bargained and sold, but not delivered. In a case where an 
 infant contracted to go on a billiard tour which involved the supply of necessaries 
 to him, Hamilton, L.J., says he cannot see " why a contract which is in itself 
 binding, because it is a contract for necessaries not qualified by unreasonable- 
 ness, can cease to be binding merely because it is executory " (u). As the law 
 makes the contract for the infant, and for his benefit, he is only liable to pay a 
 reasonable price, and not any price he may have been led to agree to. An infant 
 may marry, so he may make himself liable for necessaries supplied to his family (v). 
 
 Harried woman. — Under the Married "Women's Property Act, 1882 (45 & 46 
 Vict. c. 75), as amended by the Married Women's Property Act, 1893 (66 & 57 
 Vict. c. 63), a married woman has fuU capacity to acquire and dispose of 
 property and to contract. As promisee under a contract she has the same 
 rights as a ma.n, but her liability as promisor is peculiar. She is not personally 
 liable. Her contracts are only enforceable against her in so far as she has 
 separate estate frSe from restraint on anticipation; and if "at the time, of 
 entering into the contract or at any time thereafter she has separate property 
 which she is restrained from anticipating, that property cannot be made avail- 
 able to satisfy any liability arising out of such contract " (w). 
 
 (r) Be Rhodes (1890), 44 Oh. D. 94, C. A. (necessaries) ; Imp. Loan Co, v. Stone, 
 [1892] 1 Q. B. 599, 0. A. (oontraot). As to determination of agency by lunacy, see 
 ■ Drew v. Nunn^XBI^), i Q. B. D. 661, C. A. As to contracts by lunatics generally, see 
 LoAV Quarterly Beview, 1901, p. 147. 
 
 (s) Gore v. Gibscm (1845), 13 M. & W., at p. 625 ; cf. West Sam Gua/rdians v. 
 Peerson (1890), 62 L. T. 638 (supply of necessaries to man suflering from delirium 
 tremens). 
 
 (t) The term " absolutely void " is inapt, because a person of full age is bound by 
 his oontraot with an infant. The effect of the Act is to make an agreement by an 
 infant irrevocably voidable at the option of the infant, even after he attains majority. 
 If an infant buys, uses, and pays for goods, which are not necessaries, he cannot 
 recover the money he has paid, Hamilton v. Vaughan, [1894] 3 Ch., at p. 594. 
 
 (m) Boberts v. Gray, [1918] 1 K. B. 520, at p. 530, C. A. But note the terms of 
 sect. 2 defining " necessaries." 
 
 (v) Chappie v. Cooper (1844), 13 M. & W. 252, at p. 259, per Alderson, B. (infant 
 widow liable for husband's funeral expenses). 
 
 {w) Wood V. Lewis, [1914] 8 K. B. 78, 82, 0. A ; as to the operation and objects of 
 the Act of 1893, see Paqmn, Ltd. v. Beauclerk, [1906] A. C. 148, at p. 163, H. h. As 
 
CAPACITY OF PABTIES (SECT. 2). 15 
 
 DiTOioed woman. — A woman who is divorced, or who is judicially separated 
 from her husband, is on the same footing as a single woman («). 
 
 Power of wife to bind. husband. — In certain cases a husband may be liable 
 for necessaries supplied on the order of his wife. When husband and wife are 
 living together the power of the wife to bind her husband is somewhat indefinite. 
 " A married woman," say Mr. Leake, " is presumptively invested with a certain 
 authority to contract as agent for her husband. It is a delegated, not an 
 inherent authority ; the wife can bind her husband only as agent, and a party 
 seeking to charge him with a contract of the wife, 7nust prove the authority. 
 The authority may be referred to two sources : cohabitation, during which the 
 wife is presumptively authorised to manage the domestic affairs of the husband ; 
 and necessity, caused by the husband refusing or failing to maintain his 
 wife " (y). The italicised propositions seem somewhat inconsistent, and there is 
 authority in support of both. The fact that necessaries are supplied on the 
 order of a wife living with her husband does not show joint liability, and proof 
 that a, suitable allowance is made to a wife for household expenses may negative 
 the presumption that she has authority to pledge her husband's credit (z). 
 
 When a wife is separated from her husband, through his misconduct, and he 
 does not make proper provision for her maintenance, she has, by implication of 
 law, authority to bind him for necessaries (a). The wife of a lunatic has 
 no greater authority to pledge his credit than the wife of a sane man (6). 
 
 Parent and child. — A father is not liable for necessaries supplied to his infant 
 child without his authority, nor is the mother, though she have separate 
 estate (c). But authority or ratification is inferred on slight evidence (d). 
 
 Master of ship. — The master of a ship has an impKed authority to bind the 
 owner for the price of necessaries supplied for the ship (e). 
 
 to debts contracted before marriage, see Jay v. Bobinson (1890), 25 Q. B. D. 467 ; 
 Bobinson v. Lynes, [1894] 2 Q. B. 577. As to continuation of credit to a widow 
 who remarries and gives no notice to the creditor, see Lea Bridge Gas Go. v. 
 Malvem, [1917] 1 K. B. 803. As to a kept mistress, see Byan v. Sams (1848), 17 
 L. J. Q. B. 271. And see generally Seton on Decrees, ed. 7, pp. 853, 875, and Bullen 
 and Leake, Free, of Pleadings, ed. 6, pp. 185, 193. 
 
 (x) Matrimonial Causes Act, 1857 (20 & 21 "Vict. a. 85), ss. 21-26 ; Leake on 
 Contracts, ed. 6, p. 405. 
 
 ■ {y) Leake on Contracts, ed. 6, p. 407 ; cf. Debenham v. Mellon (1880), 6 App. Cas, 
 24, 35. 
 
 (z) Morel Brothers v. Westmm-eland, [1903] 1 K. B. 64, C. A. ; affirmed A. C. (1904), 
 11 H. L. ; French v. Hotoie, [1906] 2 K. B. 674, C. A. (goods ordered by wife, election 
 to proceed against her final) ; Moore v. Flanagan, [1920] 1 K. B. 919, C. A. (election). 
 
 (a) Bazeley v. Forder (1868), L. B. 3 Q. B. 559 ; Wilson v. Olossop (1888), 20 Q. B. D. 
 354, C. A. (husband conniving at wife's adultery and then turning her out of doors). 
 
 (6) Bichardson v. Dubois (1869), L. R. 5 Q. B. 51. 
 
 (c) Mortimore v. Wright (1846), 6 M. & W. 482, 486 (father) ; Bodgens v. Sodgens 
 (1837), 4 01. & F. 323, 375, H. L. (mother with separate estate). 
 
 {d) Baker v. Keen (1818), 2 Stark, 501 ; Bazeley v. Forder (1868), L. E. 3 Q. B. 559. 
 
 (e) Mackintosh v. MitchAson (1849), 4 Exoh. 175. As to the nature of the master's 
 contract when he draws a bill for the price, see The Bipon City, [1897] P. 226, at 
 p: 231. 
 
16 TEE SALE OF GOODS AOT, 1893. 
 
 Meaning of necessaries. — A somewhat artificial definition of necessaries has 
 been gradually evolved by the cases, and is now embodied in the concluding 
 paragraph of the section. It is for the judge to explain to the jury the legal 
 meaning of necessaries, and for the jury to say whether in' any particular case 
 the goods supplied are necessaries. But it is a question of law for the judge to 
 determine in the first instance whether there is any evidence to go to the 
 jury(/). The law has gradually narrowed the liability of iiafants and other 
 incapacitated persons, so the older cases must be looked at critically in so far as 
 they recognise particular supplies of good as necessaries {g). 
 
 Since the Act a racing bicycle has been allowed as a necessary for an infant 
 getting 21 shillings a week (?;,), but cartridges, and jewellery for a girl he was 
 courting were held not to be necessaries for an infant with an income of £7 a 
 week (i). As was said long ago, " articles of mere luxury are always excluded, 
 though luxurious articles of utility are sometimes allowed " (Je). 
 
 Alien enemy. — At common law an alien enemy is a person who carries on 
 business or voluntarily resides in hostile territory. Locality, and not nationality, 
 furnishes the test (I). But by statute enemy status may be imposed on enemy 
 nationals and other persons having hostile associations outside enemy territory, 
 see, e.g. The Trading with the Enemy Act, 1915 (5 & 6 Geo. 5, o. 98). 
 
 An enemy may be sued, and, as- he may be sued, he may defend and appeal, 
 but as a general rule (except by licence from the Crown) an enemy cannot .suo 
 in a British court or be the acfor in any legal proceeding (m). 
 
 If an enemy has a right of action which accrued before war, the right 
 is suspended during war, but revives when peace is declared (n). For example, 
 if goods are sold and delivered by a German firm to an English firm before war, 
 no action for the price can be maintained during the war (o). As soon as war is 
 declared aU commerical intercourse with the enemy is prohibited, and if and in 
 so far as any contract is executory, and its due fulfilment would involve inter- 
 course with the enemy, the contract is dissolved. See note to sect. 7, post. 
 
 (/) Nash V. Inman, [1908] 2 K. B. 1, 0. A. ; cf. Stocks v. Wilson (1913), 2 K. B., 
 at p. 241. 
 
 (g) See cases collected Laws of England, tit. " Infant," vol. xvii., p. 68. 
 
 (fe) CVyde Cycle Co. v. Hargreaves (1898), 78 L. T. 296. 
 
 (i) HewUngs v. Graham (1901), 70 L. J. Ch. 568. 
 
 (k) Chappie v. Cooper (1844), 13 M. & W., at p. 258. 
 
 (I) Driefontein Consolidated Mines v. Janson, [1902] A. 0., at p. 405, H. L. ; Porter 
 V. Freudenherg, [1915] 1 K. B. 857, C. A. As to a British registered company under 
 enemy control, whioli gives it enemy status, see The Daimler Co. v. The Continental 
 Tyre Co., [1916] 2 A. G. 387, H. L. 
 
 (m) Porter v. Freudenherg, [1915] 1 K. B. 857, 0. A. ; Exp. Marum, [1915] 84 
 L. J. K. B. 1898. But an aliMi enemy may be joined -pro formd as a plaintiff in a 
 partnership action, Rodriguez v. Speyer Brothers, [1919] A. G. 59, H. L. ; and an 
 interned enemy may sue, Sheffenius v. Goldberg, [1916] 1 K. B. 284, C. A. 
 
 {n) Driefontein Consolidated Mines v. Janson, [1902] A. G., at p. 499 ; Porter v. 
 Freudenherg, [1915] 1 K. B., at p. 873, 0. A. Under the old form of pleading, the 
 plea of " alien enemy " was a plea in abatement and not a plea in bar. 
 
 (o) Wolf & Sons V. Carr Parke d Co. (1915), 31 T. L, R. 407, G. A. 
 
Formalities of the gum tract (sect. 3). 17 
 
 Clubs and messes. — A member of a club is not Uable for goods supplied to the 
 club unless lie has expressly or impliedly authorised the supply, and in determin- 
 ing that question the rules of the club are relevant {p). A commanding officer, 
 as such, is not liable for goods ordered by the Mess Committee (j). 
 
 Registration of business names. — Speaking generally, a person or firm may 
 trade in any name that person or firm likes to adopt. But under the Registra- 
 tion of Business Names Act, 1916 (6 & 7 Geo. 5, c. 58), an individual who 
 carries on business in any name other than his own, and a firm whose firm name 
 does not disclose the names of all the partners, must register the name in which 
 the business is carried on and give the particulars required by the Act. By 
 sect. 8 of the Act, if default is made in complying with the provisions of the 
 Act, the defaulter cannot maintain any action to enforce any contract made or 
 entered into in relation to the business unless the court, for cause shown, grants 
 him relief (r). 
 
 Formalities of the ■Contract. 
 
 3. Contract of sale, how made. — Subject to the provisions of this 
 Act and of any statute in that behalf (s), a contract of sale may be 
 made in writing (either with or without seal), or by word of mouth, 
 or partly in writing and partly by word of mouth {t), or n^ay be 
 implied from the conduct of the parties (m). 
 
 Provided that nothing in this section shall affect the law relating 
 
 to corporations. 
 
 See " writing " defined by sect. 20, of the Interpretation Act, 1889 (52 & 
 53 Vict. c. 63). A written offer to sell goods may be verbally accepted, and 
 vice versa (x). Where a man goes into a restaurant, orders a dinner and eats it, 
 obrionsly there is a sale though no mention be made of buying, or selling, or 
 
 (p) Leake on Contracts, ed. 6, p. 380 ; Wertheimer on Clubs, ed. 3, chap. 3. 
 
 (2) LascelUs v. Bathbun (1919), 35 T. L. B. 347, C. A. ; c/. Cross v. Williams 
 (1842), 31 L. J. Ex. 145 (goods supplied to Volunteer Corps where there was 
 authority). 
 
 (r) As to the scope of this enactment, see Daniel v. Rogers, [1918] 2 K. B. 
 225, 0. A. 
 
 (s) See next section reproducing s. 17 o£ the Statute of Frauds, and see the 
 Merchant Shipping Act, 1894 (57 & 58 Vict. 0. 60, ss. 24, 26, 65, and Sched. I. (A)), 
 transfer of British ships and shares therein by biU of sale only. Cf. Manchester Ship 
 Canal Co. v. Eorloch, [1914] 2 Ch. 179, 0. A. (ship sunk in fairway, sold by harbour 
 authority). 
 
 (t) Lockett V. Nicklin (1848), 2 Exoh. 93 ; 19 L. J. Ex. 403. 
 
 {u) Brogden v. Metropolitan By. Co. (1877), 2 App. Cas. 666, H. L. ; cf. Beverley 
 V. Lincoln Gas Co. (1837), 6 A. & B. 829 ; Cornishy. Abington (1859), 28 L. J. Ex. 262. 
 
 {x) Taylor v. Jmes (1875), 1 C. P. D. 87 (goods ordered by letter and then 
 delivered). As to the construction of such contracts, see Watkins v. Bymill (1878), 
 XO Q. B. D. 178, 188 (sale at horse repository). 
 
 C.S.G. ^ 
 
18 THE! SALli 01? GOODS AGt, 1893. 
 
 price. If, however, the parties hare put a contract of sale into writing, the 
 ordinary rules of evidence apply. Parol or oral evidence is inadmissible 
 to contradict the terms of the written instrument; but such evidence is 
 admissible to explain it, and, in explaining it, to annex incidents thereto {y). 
 
 Oral evidence is of course admissible to avoid a contract, whether in writing 
 or not, as for instance to show that it was induced by fraud, or founded, on such 
 mistake as to prevent what appears to be a contract from ever having been a 
 contract at aU (z), as, for instance, where a purchase is founded on the exhibition 
 by mistake of a wrong sample (a), or where an animal, sold as a heifer, 
 eventually turns out to be an hermaphrodite (6) ; or where, owing to a mislead- 
 ing catalogue, a man purchases Russian tow at an auction believing it to be 
 Russian hemp (c) ; but where a man orders goods, and receives a sold note with- 
 out objection, he is bound by its terms although he has not read them, and the 
 seller did not call his attention to them {d). A written contract may be orally 
 rescinded (e). 
 
 In some cases by common law, and in others by statute, a corporation can 
 only contract by instrument under seal (/ ). The proviso saves this rule. 
 
 4. — (1.) Contract of sale for £10 and upwards. — A contract for the 
 sale of any goods of the value of ten pounds or upwards shall not 
 be enforceable by action unless the buyer shall accept part of the 
 goods so sold, and actually receive the same, or give something in 
 
 (y) Taylor on Evidence, \\ 1058, 1067 ; Stephen's Law of Evidence, art. 90 ; 
 Bristol Tramways Co. v. Fiat Motor, LW., [1910] 2 K. B., at p. 838, per Farwell, L.J. 
 (extracting contract from long correspondence). As to incidents annexed by 
 usage, see Syers v. Jonas (1848), 2 Exoh. Ill (usage to sell by sample) ; Brown v. 
 Byriie (1854), 8 E. & B. 703 (usage to deduct discount) ; Field v. Lelean (1861), 30 
 L. J. Ex. 168, Ex. Ch. (usage not to deliver till time of payment arrives) ; Produce 
 Brokers Co. v. Olympia Oil and Cake Co., [1917] 2 K. B. 848, C. A. (appropriation by 
 original seller passed on to second buyer after loss). See further notes to Wigglesworth 
 V. DalUson, 1 Smith, L.C., 11th ed., p. 545. 
 
 (s) As to fraud, see Chanter v. Hopkins (1838), 4 M. & W., at p. 406 ; Kennedy v. 
 Panama Co. (1867), L. B. 2 Q. B. 580. As to mistake, see Boulton v. Jones (1858), 
 27 L. J. Ex. 117 (mistake as to person contracted with) ; Baffles v. Wichelhaus (1864), 
 33 L. J. Ex. 160 (one ship mistaken for another) ; Smith v. Hughes (1871), L. B. 6 
 Q. B. 597 {old oats asked for, sample of new oats shown). As to mutual assent in 
 general, see Benjamin on Sale, ed. 5, chap, iii, 
 
 (a) Megaw v. Molloy (1878), 2 Irish L. B. 530, 0. A. (action for non-acoeptance). 
 
 (6) Gill V. McDowell, [1902] 2 Irish Eep. 463. 
 
 (c) Scriven Brothers v. Hi/ndley & Co., [1913] 3 K. B. 564. 
 
 (d) Boe V. Naylor, Ltd., [1917] 1 K. B. 712 ; but see the appeal on the new trial 
 where it appeared that the sold note was obscurely printed and the buyer had defective 
 vision, Boe v. Naylor, Ltd. (1918), 87 L. J. K. B. 958, 0. A. 
 
 (e) Morris v. Baron & Co., [1918] A. C. 1 H. L. 
 
 (/) Leake on Contracts, 6th ed., p. 423. But where goods have been supplied to 
 and used by a corporation which can only contract under seal, the goods must be 
 paid for : Nicholsm\. Bradford Union (1866;,.L. E. 1 Q. B. 620 (coals); cf. Lawford 
 V. Billericay District Council, [1903] 1 K. B. 772, 0. A, (work done). 
 
FORMALITIES OF THE CONTRACT (SECT. 4). 19 
 
 earnest to bind the contract, or in part payment, or unless some note 
 or memorandum in writing {g) of the contract be made and signed 
 by the party to be charged or his agent in that behalf. 
 
 (2.) The provisions of this sectioii apply to every such contract, 
 • notwithstanding that 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 making or completing thereof, or 
 rendering the same fit for delivery. 
 
 I (3.) There is an acceptance of goods within the meaning of this 
 section when the buyer does any act in relation to the goods which 
 recognises a pre-existing contract of sale whether there be an 
 acceptance in performance of the contract or not Qi). 
 
 (4.) The provisions of this section do not apply to Scotland (i). 
 
 Illustrations. 
 
 (1) B verbally agrees to bay certain cabinets, and arranges that a pound, 
 •which, had been overpaid by him on a previous transaction, shall go on 
 account of the cabinets. This is not a part payment within the meaning of 
 sub-sect. (1) (fc). 
 
 (2) B verbally agrees to buy by sample 20 tons of hay. The hay is delivered 
 at B's wharf, where he inspects and samples it. He rejects it^ saying it is 
 not equal to the original sample. That is a sufficient acceptance under sub- 
 sect. (3)®. 
 
 (3) B sells to S certain barley lying at a railway station, and directs the 
 railway company to deliver the barley to S. S tries to sell the barley, using a 
 sample given him by B. This is an acceptance by S, and if he subsequently 
 becomes bankrupt, and B, as an unpaid vendor, claims and gets tfie barley back 
 from the railway company, the company is liable in an action for conversion 
 brought by S's trustee (m). 
 
 (4) Goods ordered by telephone, and cheque for £10 sent by post. In 
 answer to a telephone message a cheque for the balance of £16 is also posted. 
 
 (g) See " writing " defined by s. 20 of the Interpretation Act, 1889 (52 & 53 
 Vict. c. 63). 
 
 (h) Page v. Morgan (1885), 15 Q. B. D. 228, 0. A. ; Allot v, Wolsey, [1895] 2 Q. B. 
 97, C. A. (taking sample after delivery suffioient). 
 
 (i) Cf. Bermie v. Moss, [1902] W. N., p. 122, H. L. 
 
 (fc) Norton v. Davison, [1899] 1 Q. B. 401, C. A. 
 
 (I) Abbot & Co. V. WoUey, [1895] 2 Q. B. 97, 0. A. 
 
 (to) Taylor v. O. E. Railway, [1901] 1 K. B. 774. If the statute is not satisfied 
 the contract is " good " but unenforceable, see the consequences worked out at p. 779. 
 
20 THE SALE OF GOODS ACT, 1893. 
 
 Both cheques are received by the same post, and are at once returned. Thei?e 
 is no part payment, and the buyer cannot enforce the contract (n). 
 
 (5) A by verbal contract seUs B 3000 bales of jute. A afterwards makes 
 out the contract in the name of S, as seller, signing himself as agent. B 
 returns the conti-act defaced, refusing to buy from S. This is not a sufBcient 
 note to bind A (o). 
 
 (6) Verbal contract for the sale of goods. The contract extends over more 
 than a year. Part of the goods are delivered and accepted. This is not 
 sufficient, there must be a memorandum in writing which satisfies the 4th 
 section of the Statute of Frauds (29 Car. 2, c. 3) (p). 
 
 This section reproduces the provisions of the 17th section of the Statute 
 of Frauds (29 Car. 2, c. 3) in relation to the sale of goods. That Act never 
 applied to Scotland, and Scotchmen never appear to have felt the want of it. 
 Its policy has frequently been severely criticised in England (q). It is merely 
 " a weapon of defence, not offence " (r) ; and the defence must be specially 
 pleaded both in the High Court and in the County Court (s). As the section 
 deals with remedies, not rights, it must be regarded as part of the lesefcrri (f) ; 
 and as the note or memorandum is only required to be signed by the party to 
 be charged, it follows that one party may be bound while the other is not (u). 
 The section, it seems, applies to arbitrations («). It does not supersede the 4th 
 section of the Statute of Frauds, which deals with contracts not to be performed 
 within a year, see illustration 6. 
 
 Statute of Frauds.— Sw6-seci.(l)- reproduces the 17th sect, of the Statute of 
 Frauds (y) in somewhat altered language. The alterations in its language 
 were made (1) to make it harmonise with the language of the rest of the Act ; 
 (2) to give effect to its construction with sect. 7 of the Statute of Frauds Amend- 
 ment Act, 1828 (9 Geo. 4, c. 14), commonly called Lord Tenterden's Act; (3) 
 
 («) Davis V. Phillips (1908), 24 T. L. B. 4 ; distinguished Parker v. Ci'isp £ Co., 
 [1919] 1 K. B. «1 (cheque retained). 
 
 (o) Cox V. Hoare (1906), 95 L. T. (N.S.) 121, affirmed (1907), 96 L. T. (N.S.) 
 719. C. A. 
 
 Ip) Prested Miners Co. v. Gardner, Ltd., [1910] 2 K. B, 776, affirmed 1 K. B., 
 [1911] 425, C. A. 
 
 (2) See Law Quarterly Beview, vol, i., p. 1, by Mr. Justice Stephen and 
 Sir P. PoUook. 
 
 (r) Htissey v. Home Payne (1879), 4 App. Cas. 311. 
 
 (s) As to High Court, see B. iS. 0., Or. XIX., rule 15 ; Boe v. B. A. Naylor, Ltd. 
 (1918), 87 L. J. K. B. 958, 0. A. (oraJ contract supported, as statute not pleaded) ; 
 as to County Court, see Brutton v. Branson, [1898] 2 Q. B. 219. 
 
 (t) Lermix v. Brown (1852), 12 0. B. 801 ; Dicey's Conflict of Laws, ed. 2, 
 pp. 710-712 ; Westlake's Private International Law, § 208. , 
 
 (tt) Cf. Beuss V. Fixley (1866), L. E. 1 Ex. 842, Ex> Ch. 
 
 {x) Cox V. Hoare (1906), 95 L. T. (N.S.) 121. 
 
 {y) Printed aa sect. 16 in the Statutes Bevised, and repealed as sect. 16, post, 
 p. 145, 
 
FORMALITJES OF THE CONTRACT (SECT. 4). 21 
 
 to give efEect to oertain decisions whioh have placed an unexpected interpretation 
 upon some of its terms. The repealed 17th sect, is as follows : — 
 
 Sect. 17. — "And from and after the said four and twentieth day of June 
 " [1677] no contract for the sale of any goods, wares, and merchandises, for the 
 "price of ten pounds sterling or upwards, shall be allowed to he good, except 
 " the buyer shall accept part of the goods 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 authorised." 
 
 As regards alterations in language, " value " is substituted for " price " to 
 give efEect to cases which held such was the operation of the construction of 
 Lord Tenterden's Act with the 17th sect. (z). The words " enforceable by 
 action " are substituted for " allowed to be good " to give effect to cases which 
 held that the words in question were the equivalent of "no action shall be 
 brought " in the 4th sect, of the Statute of Frauds, and that they did not make 
 the contract void, but merely unenforceable (a). The word " contract " in 
 line 7 is substituted for the word " bargain " because it is clear since Lord 
 Tenterden's Act that the term " bargain " was equivalent ^o the term " contract " 
 used in the earlier part of the section. The words " party to be charged " are 
 substituted for "parties to be charged" because it had been held that they 
 must be so construed to make the enactment \miform with the 4th sect. (6). 
 The substitution of "his agent" for "their agents" is consequential (c). The 
 word " goods " is substituted for the expression " goods, wares and merchandises," 
 and a definition of goods is given by sect. 62, post, p. 136, and by the same section 
 " action " includes counter-claim and set-off, see post, p. 133, 
 
 Sub-sect. (2) reproduces the repealed sect. 7 of Lord Tenterden's Act (9 Geo. 
 4, e. 14) ; the object of which was to make it clear that the Statute of Frauds 
 applied to executory as well as to executed contracts of sale. That section, 
 after reciting the 17th section, and the corresponding Irish provision (which 
 ought to have been repealed), is as follows : — 
 
 Sect. 7. — " Be it enacted, That the said enactments shall extend to all 
 " contracts for the sale of goods of the value of ten pounds sterling and upwards, 
 " notwithstanding the goods may be intended to be deKvered 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 making or 
 " completing thereof or rendering the same fit for delivery." 
 
 Sub-sect. (3) is necessary to preserve the effect of the decisions reproduced by 
 it, because for other purposes a definition of " acceptance " is given by sect. 35 
 
 (2) Harmon v. Beeve (1856), 25 L. J. C. P. 257. 
 
 (a) Maddison v. Alderson (1883), 8 App. Cas. 467, at p. 488 ; Hugill v. Masker 
 (1889), 22 Q. B. D. 364, at p. 371, 0. A. ; Taylor v. G. E. BaMway, [1901] 2 K. B,, at 
 p. 779. This amendment was made in the Commons Committee. 
 
 (6) Beuss V. Picksley (1866), L. R. 1 Ex. 342, Ex. Oh. 
 
 (c) Cf. Graham V. Musson (1839), 5 Bing. N. C. 603, 
 
22 THE SALE OF GOODS ACT, 1893. 
 
 of the Act, post, p. 90. The sub-sectiou adopts the language of Lord Bowen in 
 Page v. Morgan {d), and seems to dispose of the doubt expressed by Lord 
 Herschell in Taylor v. Smith (e), where he observes that " acceptance is not used 
 in the statute in its common acceptation, and in what precise sense it is used 
 has never been determined." The following points decided on the repealed 17th 
 section would, lit is submitted, hold good on the wording of the present 
 section : — 
 
 Several articles. — The enactment applies to a single contract for several 
 articles, each of which is priced under £10, if the total value of the articles is 
 £10 or more (/). 
 
 Acceptance. — The acceptance need not be contemporaneous with the actual 
 receipt. It may precede or follow it {g). 
 
 The statute requires that the goods or part of them shall be both accepted 
 and actually received. The two questions, though distinct, are frequently 
 confused in the cases. 
 
 Actual receipt. — Where acceptance is shown a very liberal construction has 
 been put upon the term " actual receipt." If the seller attorns to the buyer and 
 holds the goods as his bailee (Ji), or if the goods are in the possession of a third 
 person who attorns to the buyer, the statute is satisfied (i). A carrier is prima 
 fade the buyer's agent to actually receive the goods though he is not his agent 
 to accept them (Je). 
 
 Part of the goods. — The acceptance and receipt of a bulk sample may satisfy 
 the statute Q), and so may the acceptance and receipt of a portion of the goods 
 while the rest are still unmade (m). Where growing timber is sold under a 
 verbal" contract, and the buyer fells some of the trees, that is a sufficient 
 aoceptaJice and receipt to satisfy the statute (»). 
 
 {d) Page v. Morgan (1885), 15 Q. B. D. 228, at p. 233, C. A. 
 
 (e) Taylor v. Smith, [1893] 2 Q. B. 6S, at p. 71, 0. A. See per Lord Esher, Abbot 
 v. Wolsey, [1895] 2 Q. B., at p. 100. 
 
 (/) Baldey v. Parker (1823), 2 B. & 0. 37. 
 
 (g) As to acceptance before receipt, see Gusack v. BoHnson (1861), 80 L. J. Q. B. 
 261 ; as to acceptance inferred from conduct after receipt, see Chaplin v. Bogers 
 (1800), 1 East, 192 ; Edan v. DudfielA (1841), 1 Q. B. 302 ; Beaumont v. Brengeri 
 (1847), 5 C. B. 301; Parker v. WalUs (1855), 5 E. & B. 21; cf. Meredith v. Meigh 
 (1853), 22 L. J. Q. B. 401 ; Smith v. Hudson (1865), 34 L. J. Q. B. 145. See, too, 
 Law Quarterly Beview, vol. i., pp. 15, 16. 
 
 (h) Elmore v. Stone (1809), 1 Taunt. 458 ; Marvin v. Wallace (1856), 25 L. J. Q. B. 
 369 ; Castle v. Sworder (1861), 80 L. J. Ex. 310, Ex. Oh. 
 
 (i) LaiU Qua/rterly Beview, vol. i., p. 12; cf. Godts v. Bose (1855), 17 C. B. 229, at 
 p. 235. 
 
 (k) Hanson v. Arndtage (1822), 5 B. & Aid. 557 ; Norman v. Phillips (1845), 14 
 M. & W. 277 ; cf. Smith v. Hudson (1865), 34 L. J. Q. B. 145. 
 
 (I) Hinde v. Whitehouse (1866), 7 East, 558; Gardner v. Grout (1857), 2 C. B. 
 (N.S.) 340. 
 
 (m) Scott V. Eastern Counties Bailway (1843), 12 M. & W. 33. 
 
 (n) Marshall v. Green (1&15), 1 0. P. D. 35. 
 
FOBMALITIES OF THE CONTRACT (SECT. 4). 23 
 
 Earnest, — Earnest consists of any coin or thing of value given ia token of the 
 bargain, but which is not, as a rule, part of the price (o). 
 
 Part payment. — An agreement to set-ofO a claim of the buyer against part of 
 the price inay amount to part payment (p). 
 
 Note or memorandum. — The note or memorandum must designate the parties 
 by name or description (3), the goods sold (r), the price if agreed on (s), and 
 must show directly or by implication the nature of the promise of the party to be 
 ohai'ged {t). Oral evidence is not usually admissible to connect documents together 
 to make up a memorandum {u). But an envelope may be read with the letter 
 contained in it, and an agreement referred to in a document may be iden4;ified by 
 parol evidenc6-(a;). 
 
 The note or memorandum need not be contemporaneous with the contract ; 
 but it must be in existence before action brought {y). It may be addressed to 
 a third party (z), or may be contained ia the minutes of a meeting (a). It may 
 consist of a written proposal which is verbaUy accepted (6), or of a letter 
 recognising the contract, but repudiating liability under it (c). 
 
 Signature. — Signature is the writing of a person's name on a document for 
 the purpose of authenticating it. If the name appears in an unusual place 
 it is a question of fact whether it was intended as a signatui-e (d). Signature 
 by mark, initials, or stamp is sufficient (e). The signature to a telegram form 
 suffices (/) ; so too does the signature of an agent in his own name, for then 
 
 (o) As to earnest and its history, see Howe v. Smith (188i), 27 Oh. D., at pp. 101, 
 102, per Fry, L.J. 
 
 (^) Walker v. Nussey (1847), 16 M. & W. 302, at p. 305 ; Benjamin on- Sale, 
 5th ed., p. 226. 
 
 (g) Blackburn on Sale, p. 55 ; Vandenbergh v. Sjpooner (1866), L. E. 1 Ex. 316 ; 
 Newell v. Badford (1867), L. E. 3 C. P. 52 ; and see illustrations 1 and 4, ante, p. 19. 
 
 (r) Thornton v. Kempster (1814), 5 Taunt. 786; Shardlow v. Cotterell (1881), 20 
 Ch. D. 20, at p. 97, per Lush, L.J. 
 
 (s) Elmore v. Kingscote (1826), 5 B. & C. 583 ; aliter, if the contract be for an 
 implied reasonable price, Hoadly v. M'Laine (1834), 10 Bing. 482. 
 
 («) Egerton v. Matthews (1805), 6 East, 307 ; Peirce v. Corf (1874), L. E. 9 Q. B. 
 210 ; Law Quarterly Review, vol. i., p. 20. 
 
 («) Taylor Y. Smith, [1893] 2 Q. B. 65, 0. A. (invoice, advice note, and letter). 
 
 (x) Pearce v. Gardner, [1897] 1 Q. B. 688, 691, 0. A. Cf. Last v. Euchlesby, 
 [1914] W. N., p. 157 (secondary evidence of lost envelope). 
 
 (y) Lucas v. Dixon (1889), 22 Q. B. D. 357, 0. A. 
 
 (z) Gibson v. Holland (1865), L. E. 1 0. P. 1. 
 
 (a) Jones v. Victoria Dock Co. (1877), 2 Q. B. D. 314 (on sect. 4). 
 
 (6) Beuss V. Picksley (1866), L. E. 1 Ex. 842, Ex. Oh. 
 
 (c) Bailey v. Sweeting (1861), 30 L. J. 0. P. 150; Wilkinson v. Evans (1866), 
 L. E. 1 0. P., at p. 411 ; TUrkell v. CamU, [1919] 2 K. B. 590, 0. A. 
 
 (d) Johnson v. Dodgson (1837), 2 M. & W. 653, at p. 659 ; Caton v. Caton (1867), 
 L. E. 2 H. L. 127. 
 
 (e) Benjamin on Sale, 5th ed., p. 270. 
 
 (/) Godwin V. Francis (1870), L, E, 5 0. P, 295, 
 
24 THE SALE OF GOODS ACT, 1S98. 
 
 evidence is admissible to charge the 'principal though not to discharge the 
 agent {g). 
 
 Agents to Bign. — The authority of the agent is to be determined according to 
 the ordinary rules of agency; but it seems that one party cannot be' the agent 
 of the other to sign for him {h). 
 
 A letter written by an agent which refers to and recognises an unsigned 
 document containing the terms of the contract, may satisfy the statute (i). 
 
 It is obvious that a person may be an agent to sign, though he may not have 
 authority to settle the terms of the contract between the parties. The two 
 questioijs are distinct. 
 
 Auctioneer. — An auctioneer though employed by the seller is an agent to sign 
 for the buyer, as well as the seller, at an auction (h) ; but his clerk, unless 
 specially authorised, it seems, is not (I). When an auctioneer sells by private 
 contract he is agent for the seller only (m). 
 
 Broker — A broker is an agent to sign for both seller and buyer. If he duly 
 enters- the contract in his book and signs it, the statute is satisfied (to). So 
 again, if bought and sold notes, which correspond, are signed by the broker and 
 delivered to the parties, that is siifS^oient (o), and it seems that either the bought 
 or sold note is sufBcient to charge either party, for buying implies a sale, and 
 selling implies a purchase, but if only one note is produced evidence would be 
 admissible to prove a variance (p). This point, however, is not clear. 
 
 Bescission or variation. — ^A contract of sale in writing, or of which there is a 
 memorandum in writing, may be oraUy rescinded (q), but any subsequent 
 variation of the contract, so as to ci'eate in contemplation of law a new contract, 
 must be in writing (r) ; for example, a parol agreement to extend the time for 
 
 {g) White v. Proctor (1811), 4 Taunt. 209 ; ef. Newell v. Badford (1867), L. R. 
 3 C. P. 52. 
 
 (h) Sharman v. Brandt (1871), L. R. 6 Q. B. 720, Ex. Gh. ; ef. Farebrother v. 
 Simmms (1822), 5 B. & Aid. 333 ; cf. Laws of England, vol. xxv., p. 138. 
 
 (i) John Griffiths Cycle Go. v. Humber & Go., [1899] 2 Q. B. ili, 0. A. (reversed 
 on another point, [1901] W. N., p. 110, H. L.), decided on s. 4. But cf. Thirkell v. 
 Cambi, [1919] 2 K. B. 590, 0. A. (solicitor's letter). 
 
 {k) White V. Proctor (1811), 4 Taunt. 209. As to his duty to make a written 
 memorandum, see McManus v. Fortescue, [1907] 2 K. B. at p. 4, C. A. 
 
 (I) Peirce v. Corf (1874), L. R. 9 Q. B. 210 ; but see contra, Sims v. Landray, 
 [1894] 2 Oh. 318. 
 
 (m) Mews v. Ca/rr (1856), 26 L. J. Ex. 89. 
 
 (n) Thompson v. Gardiner (1876), 1 0. P. D. 777 ; Laws of England, vol. xxv., 
 p. 138. 
 
 (o) Sievewright v. Archibald (1851), 17 Q. B. 103 ; 20 L. J. Q. B. 529, where the 
 notes varied, and the variance was held fatal, there being no signed contract. 
 
 (p) Pa/rton v. Grofts (1864), 33 L. J. C. P. 189 ; Thompson v. Gardiner (1876), 
 1 C. P. D. 777. 
 
 (g) Qoss v. Lord Nugent (1833), 5 B. & Ad. 58, at pp. 65, 66 ; Morris v. Baron & Co., 
 [1918] A. 0. 1 H. L. ; cf Morgan v. Bain (1874), L. R. 10 G. P. 15. 
 
 (r) Plevins v. Dovming (1876), 1 C. P. D. 220 ; but cf. Morrell v. Studd, [1913] 
 § Qh. §48 ; an4 Hartley v. Hymans, [1920] W. N, P- 274, 
 
SUBJMQT-MATTER OF CONTRACT (SECT, 5). 25 
 
 performing a contract in writing- does not effect the contract, and cannot be , 
 substituted for it (s). The acceptance of a substituted mode of performance (f) 
 or a mere forbeai'ance to make op require delivery at the request of the other 
 party does not constitute a variation of the contract (u). 
 
 Oaarantee. — A guarantee for the price of goods sold falls within sect. 4 of 
 the Statute of Frauds, and not within this section (a;). 
 
 Subject-matter of Contract. 
 
 5. — (1.) Existing or future goods. — The goods which form the 
 subject of a contract of sale may be either existing goods, owned or 
 possessed by the seller, or goods to be manufactured or acquired by 
 the seller after tbe making of the contract of sale, in this Act called 
 " future goods " {y). 
 
 (2.) There may be a contract for the sale of goods, the acquisition 
 of which by the seller depends upon a contingency which may or may 
 not happen (2) . 
 
 (3.) Where by a contract of sale the seller purports to effect a 
 present sale of future goods, the contract operates as an agreement 
 to sell the goods {a). 
 
 See the terms " contract of sale," " future goods," " goods," and " specific 
 goods " defined by sect. 62. 
 
 Sub-sect. (1). The Koman lawyers doubted whether an agreement to sell 
 "future goods " constituted a contract of sale, but it is long since any such 
 question has been raised in English law (&). The term " future goods " is not 
 
 (s) Noble V. Ward (1867), L. B. 2 Ex. 135, Ex. Oh. ; distinguished Morris v. 
 Baron S Co., [1918] A'. C. 1 H. L. 
 
 (t) Leather Cloth Co. v. Hieronimus (1875), L. R. 10 Q. B. 140 (change of route). 
 
 (u) Ogle V. Earl Vane (1868), L. R. 3 Q. B. 272, Ex. Oh. ; Sickman v. Haynes 
 (1875), L. B. 10 0. P. 598, reviewing the previous cases ; cf. Tyers v. Bosedale Co, 
 (1875), L. B. 10 Ex. 195, Ex. Oh. 
 
 (x) Davys v. Buswell, [1913] 2 K. B. 47. 
 
 (y) Watts V. Friend (1830), 10 B. & 0. 446 (crop not yet sown) ; Hibbleiohite v. 
 M'Morine (1889), 5 M. & W. 452 (goods which seller can only acquire by purchase) ; 
 Ajello V. Worsley, [1898] 1 Oh. 274 (piano of a rival maker not yet purchased) ; 
 Pothier, Contrat de Vente, No. 5. 
 
 (z) Pothier, Contrat de Vente, Nos. 6-9; cf. Watts v. Friend (1830), 10 B. & 0.446 
 (crop not yet sown) ; Male v. Bawson (1858), 27 L. J. 0. P. 189 (goods to arrive by 
 ship) ; Langton v. Eiggins (1859), 28 L. J. Ex. 252 (proceeds of future crop), 
 
 (a) Lunn v. Thornton (1845), 1 0. B. 379 ; 14 L, J. 0. P, 161 (trover for furniture) ; 
 cf. Heseltme v, Siggers (1848), 1 Exoh. 856 ("bought and sold " in relation to stock 
 may mean agreed to be bought or sold). 
 
 (6) Moyle's Sale m the Civil Law, p. 29; Hibblewhite v. M-Morine (1839), 
 5 M. & W. at 466. Sect. 7 of Lord T^nterdep's Act (9 Geo, 4, 0, 14), at any rat^, 
 concluded th@ questiop in iSngland. 
 
26 THE SALE OF GOODS ACT, 1893, 
 
 a very happy one, but the alternative " after-to-be-aequired goods" was 
 impossible. 
 
 Sub-sect. (2), " Une simple esperance," say Pothier, " pent memo etre I'objet 
 d'un oontrat de vente ; e'est pourquoi, si on vend' h, quelqu'un son coup de filet 
 pour un certain prist, o'est un vrai oontrat de vente " (c). There is very little 
 English authority on the point. " No doubt," says Martin, B,, " a man may buy 
 the chance of obtaining goods," but he then goes on to say that in the case he 
 was dealing with the plaintiff bought the goods themselves {d). Perhaps the 
 doubtful case of Bagueley v. Sawley may be explained on the ground that the 
 plaintifE there bought another man's bargain at an auction for what it was worth, 
 and not the goods themselves (e). 
 
 Emptio gpei. — The purchase of a chance was known in the Civil Law as emptio 
 spei. " If the intention of the parties is that the purchase-money shaU be paid 
 in any case, whether the hoped-for equivalent comes to anything or not, it is 
 commonly called, for the sake of distinction, emptio spei simplids. If it is, that 
 it shall not be paid unless something at any rate is forthcoming, or shall only 
 be paid in proportion to what the purchaser actually gets, it is termed emptio 
 rei speratx '' (/). 
 
 Sub-seet. (3). — Agsignment of after-acquired property, — The conditions under 
 which an ordinary agreement to sell becomes a sale are dealt with in sect. 1, and 
 sects. 16-20, pod. But sometimes a contract purports presently to assign 
 goods to be acquired in the future (g). In such case the legal property in the 
 goods does not pass to the buyer unless and until the seller does some act 
 irrevocably appropriating them to the contract (h), or the buyer takes 
 possession of them under a licence to seize, which is equivalent to a delivery 
 by the seller (i). But if the goods be sufficiently described to be identified on 
 acquisition by the seller, the equitable iuterest in them passes to the buyer as 
 soon as they are acquired (h) : " A man cannot in equity, any more than at law, 
 assign what has no existence. A man can contract to assign property which 
 is to come into existence in the future, and when it has come into existence 
 equity, treating as done that which ought to be done, fastens upon that property, 
 and the contract to assign thus becomes a complete assignment " (Z). It is only 
 
 (c) Pothier, Contrat de Vente, No. 6. 
 
 (d) Buddie v. Green (18S7), 27 L. J. Ex. at p. Si (goods in hands of wharfinger). 
 Cf. Hitchcock V. Oiddings (1817), Daniell 1, at p. Y ; Hanks v. Palling (1856), 
 6 E. & B. at p. 669. 
 
 (e) Bagueley v. Hawley (1867), L. B. 2 0. P. 625 (second-hand boiler) ; see, too, 
 Chapman v. Speller (1850), 14 Q. B. 621 (sale by sherifi and sub-sale), 
 
 (/) Moyle'a Sale in the Civil Law, p. 80. 
 
 (g) See such a contract distinguished from an agreement to sell plus a licence to 
 seize, Reeves v. Whitmore (1864), 88 L. 3. Ch. 63. 
 
 (h) Langton v. Higgins (1859), 28 L. J. Ex. 252 (sale of future crop). 
 
 (i) Congreve v. Evetts (1854), 10 Exch. 298 ; 23 L. J. Ex. 273 ; Hope v. Hayley 
 (1856), 25 L. J. Q. B. 155. 
 
 (k) Sohoyd v. Marshall (1862), 10 H. of L. Caa. 191 ; 83 L. 7. Ch. 193 ; cf. Tailby 
 V. Official Receiver (1888), 13 App. Cag. p.-546. 
 
 (Z) Collyer v. Isaacs (1881), 19 Ch. T>. 342 ; see at pp. 351, 354, 0. A. 
 
SUBJEGT-MATTEJt OF CON TRAGI (SECT. 6), 27 
 
 the equitable interest whicli passes to the buyer by the contract, hence his 
 rights are liable to be defeated, if, before he gets the legal property in the 
 goods, the seller disposes of them to a second purchaser without notice, who 
 thus first obtains the legal estate (m). 
 
 There was one case in which it was supposed at common law that future 
 goods oould be assigned. It was said that a man might seU future goods which 
 had a " potential existence," and that then the legal property in them would 
 pass to the buyer as soon as they came into actual existence. Goods were 
 supposed to have a potential existence if they would naturally grow out of any- 
 thing already owned by the seller. For instance, it was said a man might seU the 
 wool to be grown on sheep which he then had, but not the wool on sheep which he 
 was going to buy in). But there seems to be no rational distinction between 
 one class of future goods and another, and the sub-section may therefore be 
 regarded as declaratory (o). 
 
 6. Goods which have perished. — Where there is a contract for the 
 sale of specific goods, and the goods without the knowledge of the 
 seller have perished at the time when the contract was made, the 
 contract is void (jj). 
 
 By sect. 62, ^ost, p. 140, unless the context or subject-matter otherwise 
 requires, '• specflc goods," means goods identified and agreed upon at the time a 
 . contract of sale is made ; and " contract of sale " includes an agreement to sell 
 as weU as a sale. Note sect. 55, ;poit, as to express agreement or usage. 
 
 The rule in this section may be based either on the ground of mutual 
 mistake, or on the ground of impossibility of performance. It is confined to the 
 case of specific goods. Generic goods, that is to say, goods defined by descrip- 
 tion only, come within the maxim genus numquam perit. 
 
 As, in the case contemplated by this section, the contract is void, the price, 
 if paid, can be recovered back (5). 
 
 (to) Joseph V. Lyons (188i), 15 Q. B. D. 280, C. A. ; Hallas v. Robinson (1885), 15 
 Q. B. D. 288, C. A. (bill of sale cases). 
 
 {n) Grantham v. Hawley (1603), Hobart Eep. 132, 2 EoU. 48, pi. 20. This was 
 the emptio rei speratce of the Eoman lawyers. 
 
 (0) See, however. Laws of England, vol. xxv., p. 171. It might possibly be con- 
 tended that goods having a potential existence do not come within the definition 
 of " future goods," inasmuch as they accrue to the seller, and are not " acquired 
 by " him. 
 
 (p) Couturier v. Hastie (1856), 5 H. of L. Cas. 673 ; 25 L. 3. Ex. 253 (cargo of 
 corn) ; cf. Clifford v. Watts (1870), L. E. 5 C. P. 577 (covenant in mining lease) ; 
 Smith V. Myers (1870), L. E. 5 Q. B. 429, in Ex. Ch. L. E. 7 Q. B. 139 (cargo 
 " expected to arrive " by particular ship) ; Pothier, Contrat de Yente, No. 4 ; French 
 Civil Code, art. 1601 ; Moyle's Sale in the Civil Law, p. 21 ; Story on Sale, J 149. Cf. 
 Scott V. Coulson, [1908] 2 Oh. 249, C. A. (sale of life policy after death of assured). 
 
 (2) Strickland v. Turner (1852), 7 Exch. 208 (annuity). 
 
28 THE SALE OF QOODS ACT, 1893. 
 
 Art. 1601 of the French Civil Code provides that, in case of partial loss, the 
 buyer may either rescind the contract or have the price reduced by valuation. 
 English law recognises no such rule. The only question is whether the article 
 has been so far destroyed as no longer to answer to the description of it given 
 by the contract (r). 
 
 Thus where a specific cargo of corn was sold at sea, and it turned out after- 
 wards that before the sale the ship had stranded and the corn had been so 
 damaged as not to answer to its description under the contract, the sale was held 
 •to be void (s). But if a man contracts to sell five dozen of a particular brand of 
 champagne, it would be immaterial if unknown to him his whole stock of wine 
 had been destroyed by fire. He must procure five dozen of that champagne 
 elsewhere or pay damages. A mixed case might arise which is not covered by 
 the section. Suppose a man contracts to sell to B " five dozen of the '74 
 champagne now in my cellar," not knowing that all but three dozen had been 
 destroyed by fire. The question has not been decided, but probably the 
 contract tvould be void. The provisions of this section, like any other implica- 
 tion of law, may be negatived or varied by express-agreement, or by the usage of 
 a particular trade, see sect. 55 post. For example, the section does not apply 
 to a c.i.f . contract, which is a contract for the sale of insured goods, lost or not 
 lost(<). 
 
 7. Goods perishing before sale but after agreement to sell. — Where 
 there is an agreement to sell specific goods, and subsequently the. 
 goods, without any fault on the part of the seller or buyer, perish 
 before the risk passes to the buyer, the agreement is thereby 
 avoided (m). 
 
 • See " specific goods " defined by sect. 62, post, p. 140. The definition is only 
 a prima facie definition. See " fault " defined, post, p. 136, and see sect. 55, 
 post, as to express agreement or usage. 
 
 It is to be noted that the rule applies to specificaUy described goods, whether 
 in existence at the time the contract was made or not. In a case where there 
 was a contract to supply 200 tons of potatoes to be grown on a particular farm, 
 
 (r) Barr v. Oibson (1838), 3 M. & W. 390 (stranded ship). Of. the definition of 
 actual total loss given by sect. 57 of the Marine Insurance Act, 1906 (6 Edw. 7, o. 41). 
 
 (s) Couturier v. Hasti^ (1856), 5 H. of L. Oas. 673 ; 25 L. J. Ex. 253. 
 
 {t) Cf. Mtmbre Saccharine Co. v. Corn Prodiicts Co., [1919] 1 K. B. 198. As to trade 
 usage, or agreement, see Produce Brokers Co. v. Olympia Oil and Cake Co. (1915), 21 
 Com. Oas. 820, C. A. and H. L. ; 1 A. C, [1916] 314 (re-sale of goods at sea, the buyer 
 agreeing to accept the appropriation made by the original seller) ; and Produce 
 Brokers Co. v. Olynipia Oil and Cake Co., [1917] 1 K. B. 320, 330, 0. A. (6th case). 
 
 (m) Eouielt V. Couplamd (1874), L. R. 9 Q. B. 462, at p. 465, per Blackburn, J., and 
 in C. A. (1876), 1 Q. B. D. 258, at p. 262, per Hellish, L.J. ; cf. Taylor^v. Caldwell 
 (1863), 3 B, & S. at p. 834 ; Appleby v. Myers (1867), L. R. 2 C. P. 651 ; ElpUck v, 
 Barnes (1880), 5 Q. V. D. 321 (death o£ a horse delivered, on " sal§ or return"). 
 
SVBJEOT-MATTEB OF OONTBAOT (SECT. 7). 29 
 
 and the crops failed, Mellish, L.J., said : " This is not like the case of a contract 
 to deliver so many goods of a particular kind, where not specific goods are to be 
 sold. Here there was an agreement to seU and buy 200 tons out of a crop to be 
 grown on specific land, so that it is an agreement to sell what will be, and may 
 be called specific things ; therefore neither party is liable if the performance 
 becomes impossible " (sb). 
 
 By special agreement goods may be at the buyer's risk before he acquires 
 the property in them. See sect. 20, post, as to incidence of risk. 
 
 Impossibility or supervening illegality. — Sections 6 and 7 deal with two cases 
 of impossibility peculiar to the law of sale. There are other cases, common 
 to the whole field of contract, where performance is excused on the ground of 
 impossibility {y). As a general rule, if a man makes a contract he must fulfil its 
 conditions or pay damages. It is no excuse that he cannot get the goods he has 
 contracted to deliver, or that he can only obtain them at a prohibitive price («). 
 If he wishes to be safe he must protect himself by express stipulation (a). 
 
 But there are cases of vis major independent of any particular contract, 
 which excuse performance. For example, if the goods which a man has con- 
 tracted to sell are requisitioned by the G-overnment before delivery he is absolved 
 from his obligation to deliver them (fc). 
 
 Again, if a contract, legal in its inception, is prohibited by or under an Act 
 of Parliament before its fulfilment, the obligation is dissolved (c). A declaration 
 of war by this country operates as an Act of Parliament prohibiting aU inter- 
 course with the enemy. If a contract made before war involves intercourse 
 
 (x) Bowell V. Goupland (1874), L. R. 9 Q. B. 462, at p. 465, per Blackburn, J., and 
 in C. A. (1876), 1 Q. B. D. 258, at p. 262, per Mellish, L.J. ; Jackson v. Union Marine 
 Insurance Co. (1874), L. E. 10 0. P., at p. 145 ; see, too, NickoU v. Ashton, [1900] 2 
 Q. B. 298, as to implied condition in case of impossibility of performance, and for 
 general canon, see- Chandler v. Webster, [1904] 1 K. B. 493, 0. A. (seat to see 
 Coronation). 
 
 (y) See Pollock on Contracts, chap. viii. (impossibility). . 
 
 {z) Sale V. Bawson (1858), 27 L. J. 0. P. 189, 191 ; Re Weis <& Co., [1916] 1 K. B. 
 346 ; Blackburn Bobbin Co. v. Allen S Sons, Ltd., [1918] 2 K. B. 467, G. A. ; 
 Pro'dicce Brokers Co. v. Weis d Co. (1918), 87 L. J. K. B. 472. 
 
 (a) New Zealand Shipping Co. v. Societe des Ateliers de France, [1919] A. 0. 1 
 H. Ij. ; cf. Matsoukis v. Priestman, [1915] 1 K. B. 681 (strike clause in contract for 
 ship) ; Tenants (Lancashire), Ltd. v. Wilson £ Co., [1917] A. 0. 496, at p. 510, per 
 Lord Loreburn ; Peter Dixon & Sons v. Henderson d Co. (1918), 23 Com. Cas. 294, 
 C. A. (suspension of delivery if " hindered " by war, etc.) ; Clarh v. Cox, McEwen & 
 Co. (1919), 25 Com. Cas. 94, C. A. (contract to be cancelled if vessel lost before 
 declaration of shipment) ; Be Comtoir Commercial Anversois, [1920] 1 K. B. 868, 
 C. A. (sale of exchange prevented by war). 
 
 (6) Be Shipton Anderson & Co., [1915] 3 K. B. 676; Bale Steamship Co. v. 
 Northern Steamship Co. (1918), 62 S. J. 328, C. A.; cf. Bank Line v. CapeldCo., 
 [1919] A. C. 435 (requisition of ship, frustration of charterparty). But as to a 
 temporary embargo on export, see Millar & Co. v. Taylor & Co., [1916] 1 K. B. 402, 
 
 C. A. 
 
 (c) Metropolitan Water Board v. Dick Kerr& Co., [1918] A. C. 119 H. L. (building 
 
 contract). 
 
30 THE SALE OF GOODS ACT, 1893. 
 
 with the enemy for its due performance, the' contract is dissolvedj and a 
 clause purporting to suspend its operation during war is null and void (d). 
 
 Continental lawyers recognise force 'majeure as excusing the performance 
 of a contract on the principle of act of state. But English judges for the 
 most part rest the defence of vis major on the fiction of an implied condition 
 forming the basis of the conteact between the parties (e). 
 
 As to who is an alien enemy, see ante, p. 16. 
 
 The Price. 
 
 8. — (1.) Ascertainment of price. — The price in a contract of sale 
 may be fixed by the contract, or may be left to be fixed in manner 
 thereby agreed, or may be determined by the course of dealing 
 between the parties (/). 
 
 (2.) Where the price is not determined in accordance with the 
 foregoing provisions the buyer must pay a reasonable price (gr). 
 What is a reasonable price is a question of fact dependent on the 
 circumstances of each particular case (h). 
 
 ' This section and the next deal with the question fixing the price. As to 
 payment or tenders of the price, and actions therefore in case of non-payment, 
 see sect. 49 and notes, poet. 
 
 The " price " of a thing is its agreed or estimated value expressed in terms 
 of the currency of the country. " The technical term which has been invariably 
 adopted for the numerical expression of the values of commodities, in terms of 
 the standard, is ' price ' " («'). 
 
 An alternative price, if in the nature of a wager, avoids the contract (Jc). 
 
 (d) Mtcl Bieber & Co. v. Rio Tinto Co., [1918] A. 0. 260 H. L. ; Naylor Benson 
 £ Co. V. Kreiniache Industrie Oesellschaft, [1918] 2 K. B. 486, 0. A. As to c.i.f. 
 contracts, see Karhurg (Arnhold) v. Oreen Blythe <& Co., [1916] 1 K. B. 495 ; 21 
 Com. Gas. 174, C. A. ; Krupp v. Orconera Iron Ore Co., [1919] W. N. 50, H. L. 
 
 (e) See the authorities collected in Blackburn Bobbin Co. v. Allm, and Sons, 
 [1918] 1 K. B. 540. 
 
 (/) As to usage to deduct discount, see Browne v. Byrne (1854), 3 E. & B. 703. 
 See note, 'post, p. 31, as to maximum prices. 
 
 (g) Acebal v. Levy (1834), 10 Bing. 376 ; Soadly v. M'Laine (1834), 10 Bing. 482 ; 
 ralpy V. Gibson (1847), 4 G. B. 837, 864. 
 
 (h) Acebal v. Levy (1834), 10 Bing. 376, at p. 383, per Tindal, C.J. Such price may 
 or may not be the market price, acoording'to circumstances. 
 
 (i) Scott's Money and Banking, p. 34. As to legal tender, see post, p. 112. 
 
 (k) Bourke v. Short (1856), 25 L. J. Q. B. 196; cf. Brogden v. Marriott (1846), 8 
 Bing. N. G. 88 ; and cases cited in Carlill v. Carbolic Co., [1892] 2 Q. B. at p. 486. 
 As to speculative contracts in " futures " seeForgetY. Osligny, [1895] A. C. at p. 323 ; 
 and Be Giebe, [1899] 1 Q. B. 794, C. A. (wagering contract plus contract for sale of 
 stock). 
 
THE PBlGE (SECT. 8). 31 
 
 " Groods may be sold," says Wilde, C.J., "and frequently are sold, when it 
 IS the intention of the parties to bind themselves by h contract which does not 
 specify the price or mode of payment, leaving them to be settled by some future 
 agreement, or to be determined by what is. reasonable under the ciroum- 
 stajices " (I). The clause originally provided that the price might " be left to 
 be fixed by subsequent arrangement"; but these words were struck out in 
 Committee. Presumably if the price was subsequently fixed by the parties, 
 the Court would hold that it was a resonable price. Marine policies are 
 often affected " at a premium to be ariranged " (to). The same question arises 
 there. 
 
 A case that is not expressly covered by the above rules is put by Blackburn, 
 J., who says : " When the price is not ascertained, and it could not be ascertained 
 with precision in consequence of the thing perishing, nevertheless the seller 
 may recover the price, if the risk is clearly thrown on the purchaser by 
 ascertaining the amount as nearly as you can " {n). Perhaps, however, the case 
 falls within the rule of reasonable price. 
 
 The doctrine of implied or reasonable price seems to be an original develop- 
 ment of English law. The rule of Roman law was that the price, or the mode 
 of fixing it, must be expressed in the contract itself. Pretium, auteiin, constitui 
 opoHet, nam nulla emptio sine pretio esse protest ; sed et certum pretiwm esse 
 debet (o). If the price was not fixed, the contract was classed as innominate. 
 
 Deposit. — Sometimes part of the price is prepaid by way of security, when 
 the contract is entered into. The money so prepaid is called a deposit. The 
 return of the deposit in case the sale goes off is usually a matter of agreement, 
 but in the absence of a different agreement the deposit is forfeited if the sale 
 goes off through the buyer's fault (p). " The deposit," says Lord Macnaghten, 
 " serves two purposes, if the purchase is carried out it goes against the purchase- 
 money ; but its primary purpose is this, it is a guarantee that the purchaser 
 means business " (g). 
 
 Under-Belling. — A man may, of course, sell at any price he likes (r), and to 
 undersell trade rivals he may offer certain goods at a loss (s) ; so too, a man may 
 
 (0 Valpy v. Gibson (1847), 4 C. B., at p. 864 ; Joyce v. Swan (1864), 17 C. B. (N.S.), 
 at p. 93. 
 
 (m) See Marine Insurance Act, 1906 (6 Edw. 7, c. 41), s. 31. 
 
 (n) Ma/rtineau v. KitcMng (1872), L. R. 7 Q. B. at pp. 455, 456 (sugar shipped at 
 owner's risk at so much per cwt. and destroyed before it could be weighed). Cf. 
 Castle V. PUyford (1872), L. E. 7 Ex. at pp. 99, 100. 
 
 (o) Inst, lib. iii. tit. 23 ; Moyle's Sale in the Civil Law, pp. 68, 69. To like efieet, 
 Ppthier, Contrat de Vente, No, '23 ; French Civil Code, arts. 1592, 1593. 
 
 (p) Howe V. Smith (1884), 27 Oh. D. 87, 0. A. See the history of the law of 
 earnest and deposit traced by Fry, L. J., at p. 94. 
 
 (q) Soper V. Arnold (1887), 14 App. Oas., at p. 435. 
 
 (r) A temporary abrogation of freedom of contract in fixing prices is furnished by 
 the Profiteering Act, 1919 (9 & 10 Geo. 5, c. 66), and the action of the Food 
 Controller, under his statutory powers, in fixing prices. 
 
 (s) Ajello V. WorsUy, [1898] 1 Oh. 274, 280. For a hybrid contract between sale 
 and agency, see The Kronprincessin Cecilie (1917), 33 T. L. B, 292, P. C. 
 
32 tHE SALE OF GOODS ACT, 1893. 
 
 sell goods to a retailer with a condition that they shall not be retailed tinder 
 certain specifled prices (<). But that condition is not binding on subsequent buyers, 
 even with notice (u), except perhaps in the case of patented goods sold under a 
 restrictive licence (a). 
 
 Alteration of customs or excise duties. — Unless otherwise agreed, where, after 
 the making of the contract and before the delivery of the goods, a new or 
 increased customs or excise duty is imposed, the amount may be added to the 
 price, and, conversely, where the duty is repealed or lowered, the amount may 
 be deducted from the price. In case of disagreement as to the amount it may 
 be fixed by the Commissioners and Excise, see post, p. 170. 
 
 Del credere agent. — A del credere agent guarantees his principal's ability to pay 
 the price, but he does not undertake that his principal shall be ready to pay 
 without raising objection to the seller's performance of the contract {y). 
 
 9. — (1.) Agreement to sell at valuation. — Where there is an 
 agreement to sell goods on the terms that the price is to be fixed 
 by the valuation of a third party, and such third party cannot or 
 does not make such valuation, the agreement is avoided {z) ; provided 
 that if the goods or any part thereof have been delivered to 
 and appropriated by the buyer he must pay a reasonable price 
 therefor (a). 
 
 (2.) Where such third party is prevented from making the 
 valuation by the fault of the seller or buyer, the party not in 
 fault may maintain an action for damages against the party in 
 fault (b). 
 
 In a case where one of the parties prevented the valuer from acting. Page 
 Wood, V.C., refused specific performance, apparently on the ground that there 
 was no complete contract, saying that the Court had adopted this principle 
 from the Civil Law (c). See Inst., lib. iii. tit. 23, where it is said : " Sin autem 
 
 (t) Ellman v. Garrvngton, [1901] 2 Ch. 275 (embrocation). 
 
 \u) Taddy & Co. v. Sterious & Co., [1904] 1 Ch. 35i (tobacco) ; McGrutherv. 
 Pitcher, [1904] 2 Ch. 306, C. A. (rubber heel pads) ; Dunlop Pneumatic Tyre Co. V. 
 Selfridge & Co., [1915] A. C. 847, H. L., where at p. 852, Haldane, L.C., says, "our 
 law knows nothing of a. jus gumsitum tertio arising by way of contract." 
 
 {x) National Phonograph Co. of Australia v. Menck, [1911] A. 0. 336, 347, P. C. ; 
 Colwnbia Phonograph Co. v. Regent Fittings Co. (1913), 30 B. P. C. 
 
 {y) Gabriel {Thomas) and Sons v. Churchill, [1914] 3 K. B. 1272, 0. A. 
 
 {z} Thurnell v. Balbirnie (1897), 2 M. & W. 786 (damages) ; Vickers v. Viokers 
 (1867), L. R. 4 Ec[. 529 (specific performance) ; Benjamin on Sale, 4th ed., p. 90. 
 
 (a) Clarke v. Westrope (1856), 25 L. J. 0. P. 287. i 
 
 (6) Cf. Thmnas v. Fredericks (1847), 10 Q. B. 775, and Smith v. Peters (18t5), 
 L. B. 20 Eq. 511 (mandatory order). See " fault " defined by sect 62. 
 
 (c) Vickere v. Vickers (1867), L. B. 4 Eq. 529, at p. 535. 
 
CONDITIONS AND WARkANTlES (SECT. 10), 33 
 
 ille qui nominatus est vel non potwerit vel noluerit pretium definire, tunc pro 
 nihilo esse venditionem quasi nulla pretio statuto." 
 
 In some cases the party in fault might be restrained from preventing' 
 the valuer from acting (d). See " fault " defined by sect. 62, post, p. 136. 
 
 Conditions and Warranties. 
 
 10. — (1.) Stipulations as to time. — Unless a different intention 
 appears from the terms of the contract, stipulations as to time of 
 payment are not deemed -to be of the essence of a contract of 
 sale (e). 
 
 Whether any other stipulation as to time is of the essence of the 
 contract or not depends on the terms of the contract. 
 
 (2.) In a contract of sale "month" means pn'md/acie calendar 
 month (/). 
 
 Illustration. 
 
 Sale of beans, goods to be shipped, and bUl of lading to be dated, in 
 December and for January, and bill of lading to he prima facie evidence of date 
 of shipment. The buyer may refuse to accept the goods if the bUl of lading is 
 dated 2nd February, even though the goods were shipped on 30th January (g). 
 
 As regards stipulations other than those relating to the time of payment, 
 time is usually of the essence of the contract, at any rate in mercantile trans- 
 actions (7i). Thus, where there was a contract for the sale of twenty-flve tons 
 of pepper, " name of vessel or vessels, marks and particulars to be declared 
 within sixty days of date of biU of lading," Cotton, L.J., says, " It was argued 
 that the rules of Courts of equity are to be regarded in all Courts, and that 
 equity enforced all contracts though the time fixed therein for completion had 
 
 (d) See Fry on Specific Performance, 4th ed., p. 523. 
 
 (e) Martindale v. Smith (1841), 1 Q. B. 389, see at p. 395, non-payment on 
 appointed day : cf. sect. 31, post, p. 82 ; and Mersey iSteel and Iron Co. v. Naylor 
 (1884), 9 App. Cas. 434, at p. 444. As to time of pajrment being essential, see 
 Bishop V. ShilUto (1829), 2 B. & Aid. 329 ; Byan v. Ridley (1902), 8 Com. Cas. 105 
 (perishable cargo, payment cash in exchange for shipping documents). 
 
 (/) Webb V. Pairmaner (1838), 3 M. & W. 473 ; cf. 45 & 46 Yict. c. 61, s. 14 (4). 
 In ordinary legal documents " month " primarily means lunar month, Bru^ner v. 
 Moore, [1903] 1 Ch. 305. In a particular trade it may by usage have a special trade 
 meaning, Bissell v. Beard (1873), 28 L. T. 740 (iron trade). 
 
 (g) Be General Trading Co. (1911), 16 Com. Cas. 95. Cf. Landaner v. Craven 
 (1912), 17 Com. Cas. 193, 202. 
 
 (h) Bowes v. Shand (1877), 2 App. Cas. 455, at p. 463, per, Ld. Cairns ; Beuter v. 
 Sola (1879), 4 C. P. D., at pp. 246, 249, C. A. ; c/. Baton v. Payne (1897), 35 Sc. L. E. 
 112, H. L. (delivery of printing machine, time not essential) ; Hartley v, Hymans, 
 [1920] W. N. p. 274 (time essential); Brook Tool Manufacturing Co. v. Hydraulit 
 Gears Co. (1920), 89 L. J. K. B. 263 (delay caused by Government action). 
 
 C.S.G. D 
 
34 THE BALE OF GOODS ACT, 1893. . 
 
 passed. This was in the case of contracts, such as purchases and sales of land 
 where, unless a contrary intention could be coUeoted from the contract, the 
 Court presumed that time was not an essential condition. To apply this to mercan- 
 tile contracts would be dangerous and unreasonable. We must therefore hold that 
 the time within which the pepper was to be declared was an essential condition 
 of the contract" (»'). 
 
 Conditions and warranties in general. — The present subdivision of the Act 
 deals with conditions and warranties pectdiar to the law of sale. But the Act 
 must be regarded as a single chapter in the general law of contract, and it 
 therefore does not attempt to deal with the law of representations, conditions, 
 and warranties, in so far as they are governed by considerations common to the 
 whole field of contract. In so far as sale is regulated by the general law of 
 contract, the rules which apply are saved by sect. 61 (2), pogt, p. 131. No defini- 
 tion of condition precedent is given, but the matter is discussed in Note A, post, 
 p. 175. "Warranty," however, is defined by sect. 62, and it is contrasted with "con- 
 dition " in sect. 11. This was req^uisite, because its proper meaning in the law of 
 sale was much disputed ; see Note A, post, p. 177. It must be borne in mind that 
 many stipulations, which are commonly spoken of as warranties, are really 
 conditions precedent, and have always been given effect to as such. But whether 
 a given stipulation is a condition or a warranty as defined by the Act, is not a 
 question of name, but of the true construction of the contract, see sect. 11 (1), 
 (6), post, p. 36. For a list of express stipulations judicially construed, see 
 post, p. 187. 
 
 By sect. 65, post, p. 126, any implied condition or warranty maybe negatived 
 or varied by express agreement, course of dealing, or usage. 
 
 Express stipulations. — As regards express stipulations, the following points 
 may be noted : — • 
 
 A warranty may be either included in the contract of sale (k), or may be 
 given after the contract of sale is completed (I). Where a warranty is given 
 after the contract of sale is completed it must be supported by fresh considera- 
 tion (to). The warranty in such case is a supplemental contract. In Scotland 
 consideration is not necessary to support a simple contract, so there, it seems, a 
 warranty might be added without fresh consideration. 
 
 Any affirmation made at the time of sale may amount to a warranty 
 provided it is intended as such — that is to say, if it is intended to form part of 
 the contract (n). If, however, the contract be reduced into writing, evidence 
 
 (i) Beuter v. Sala (1879), 4 C. P. D,, at pp. 246, 249, 0. A. 
 
 {k)Sopkms V. Tangueray (1854), 18 C. B. 180 (horse) ; 23 L, J. C, P. 162; cf. 
 Bannerman v. White (1861), 31 L. J. 0. P. 28 (hops sold by sample) ; Stucleyy. Saily 
 (1862), 31 L. J. Ex. 483 (yacht). 
 
 {I) Boscorla v. Thomas (1842), 3 Q. B. 234 (warranty of horse) ; cf. Hdlbutt v. 
 Hickson (1872), L. B. 7 C. P. 438 (army boots). 
 
 (m) Boscorla v. Thomas (1842), 3 Q. B. 234. As to an alleged warranty previous 
 to the contract of sale, see Malcolm v. Cross (1898), 35 So. L. E. 794. 
 
 (n) PasUy v. Freeman (1789), 3 T, E, 51, 56, per Buller, J. ; 
 (1862), 31 L. 3. Ex. at p. 489. 
 
CONDITIONS AND WARRANTIES (SECT. 10). 35 
 
 6t a contemporaneous verbal warranty would not be admissible (o). A repre- 
 sentation, anterior to the contract, does not constitute a warranty (p), though it 
 may give rise to an action for deceit if made fraudulently. 
 
 Eropresentations made during a contract of sale may be of five kinds : — 
 Bepresentations classified. — (1) The representation may be a mere expression 
 of opinion or mere commendation by the seller of his wares. It is then 
 inoperative, for simplex commendatio non obligat (q). 
 
 (2) The representation may amount to a warranty (r). 
 
 (3) The representation may constitute part of the description of the thing 
 sold, or be an essential term of the contract. It is then a condition going to the 
 root of the contract (s). 
 
 (4) The representation may be false and fraudulent. In that case even if it 
 only goes to part of the consideration, the contract may be avoided according to 
 the rule Fraiis omnia viiiat (t), and the person who makes it may be liable to 
 exemplary damages — in some oases even when the party damnified was not a 
 party to the contract (u). 
 
 (5) The representation may create an estoppel (a)). 
 
 A person who obtains money by knowingly giving a false warranty may be 
 liable criminally (y). 
 
 (o) Sarnor v. Groves (1855), 16 0. B. 667 ; aliter if the writing be a mere 
 memorandum of the contract ; Allen v. Pink (1839), 4 M. & W. 140 (horae). 
 
 (p) Bopkvns V. Tanqueray (1854), 15 0. B. 130 (horse) ; 23 L. J. 0. P. 162 ; but 
 see Bannerman v. White (1861), 81 L. J. 0. P. 28 (hops sold by sample), where the 
 antecedent representation constituted the hasis on which the parties subsequently 
 entered into the contract. In such case the untruth of the representation may avoid 
 the contract altogether. 
 
 (g) Power v. Barham (1836), 4 A. & E. 473 (pictures) ; cf. Chandelor v. Lopus 
 (1603), 2 Croke, 2 ; 1 Smith, Lead. Gas. 9th ed., p. 186 ; Budd v. Fairmaner (1831), 
 8 Bing. 52 ; Bannerman v. White (1861), 31 L. J. C. P. 28. 
 
 (r) Schawel v. Beade, [1913] 2 Ir, B. 64 H. L. (representation as to soundness of 
 horse). As to the test for distinguishing expression of opinion from warranty, see 
 De Juossalle v. Guildford, [1901] 2 K. B. at p. 221, 0. A. 
 
 Is) See sects. 11 to 15, post. An executed contract of sale will not be set aside on 
 the ground of innocent misrepresentation, Seddon v. North Eastern Salt Co., [1905] 
 1 Ch. 326. Innocent misrepresentation (not being a warranty or condition) may be 
 ground for rescission, but does not found a claim for damages, Harrison v. Knowles 
 and Foster, [1918] 1 K. B. 608, C. A., affirming on a difierent ground ibid., [1917] 2 
 K. B. 606. Cf. a. Scotch case as to making a railway, where it was held that the 
 contract could not be rescinded as restitutio in integrum was impossible, Glasgow 
 S. W. Baihaay v. Forrest, [1915] A. 0. 526, H. L. 
 
 (i) Cf. Kennedy v. Panama Mail Co. (1867), L. R. 2 Q. B., at p. 587. 
 
 (tt) Levy V. Langridge (1838), 4 M. & W. 337, Ex. Ch. (gun) ; and see the notes to 
 Pasley v. Freeman, 2 Smith, L. 0., ed. 11, p. 66. 
 
 (a;) Maddison v. Alderson (1883), 8 App. Gas. at p. 473 j sea representations 
 classified by Stephen, J., in Gourt below, 5 Ex. D., at p. 596. 
 
 {y) B. V. Sandars, [1919] 1 K. B. 550 (horse warranty). 
 
36 TEE SALE OE GOODS ACT, 1893. 
 
 11. — (1.) When oondition to be treated as warranty. — In England 
 or Ireland — 
 
 (a.) Where a contract of sale is subject to any condition to be 
 fulfilled by the seller, the buyer may waive the condition, or 
 may elect to treat the breach of such condition as a breach of 
 warranty, and not as a ground for treating the contract as 
 repudiated {z). 
 
 {b.) Whether a stipulation in a contract of sale is a condition, the 
 breach of which may give rise to a right to treat the contract 
 as repudiated, or a warranty, the breach of which may give rise 
 to a claim for damages, but not to a right to reject the goods 
 and treat the contract as repudiated, depends in each case 
 on the construction of the contract (a). A stipulation may be 
 a condition, though called a warranty in the contract (b). 
 
 (c.) Where a contract of sale is not severable (c), and the buyer 
 has accepted the goods, or part thereof, or where the contract 
 is for specific goods, the property in which has passed to the 
 buyer, the breach of any condition to be fulfilled by the seller 
 can only be treated as a breach of warranty, and not as a 
 ground for rejecting the goods and treating the contract as 
 repudiated (d), unless there bo a term of the contract, express or 
 implied, to that effect (e). 
 
 (2.) In Scotland, failure by the seller to perform any material 
 part of a contract of sale is a breach of contract, which entitles the 
 buyer either within a reasonable time after delivery to reject the 
 
 {z) Ellen y. Topp (1851), 6 Exch. 424, at p. 431; Behn v. Burness (1863), 32 
 L. J. Q. B. 204, Ex. Ch. ; WalUs v. Pratt, [1911] A. C. 394, and judgment of Moulton, 
 L.J., in the court below, 2 K. B., [1910] 1008, 1012, C. A. ; and sect. 53, post p. 121. 
 
 (a) Graves v. Legg (1854), 9 Exoh. 709 ; 28 L. J. Ex. 228 ; Behn v. Burness (1863), 
 32 L. J. Q. B. 204, at p. 205, Ex. Ch. ; Woolfe v. Borne (1877),' 2 Q. B. D., at pp. 360, 
 361. For suggested tests for distinguishing a oondition from a warranty, see Bentsen 
 V. Taylor, [1893] 2 Q. B., at p. 281, per Bowen, L.J. ; Harrison v. Knowles and Foster, 
 [1917] 2 K. B., at p. 510, per Bailhaohe, J. 
 
 (6) Cf. Wallis V. Pratt, [1911] A. 0., at p. 397. 
 
 (c) As to several contracts, see Simpson v. Crippen (1872), L. R. 8 Q. B. 14 ; 
 Brandt v. Lawrence (1876), 1 Q. B. D. 344 ; Jackson v. Botax Motor and Cycle Co ', 
 [1910] 2 K. B. 937, 947, 0. A., and sect. 31, ^osi. 
 
 {d) Graves v. Legg (1854), 9 Exoh. 709, at p. 717 ; 23 L. J. Ex. 228, at p. 231 ; 
 Behn v. Burness (1863), 32 L. J. Q. B. 204, Ex. Ch. ; Heilbutt v. Hiekson (1872), 
 L. B. 7 C. P., at p. 450; Wallis v. Pratt, [1911] A. C. 394, and 2 K.B., [19101 at 
 pp. 1013, 1015, 0. A. ■' 
 
 («) Bannerman v. White (1861), 31 L. 3. C. P. 28. 
 
CONDITIONS AND WABBANTIES (SECT. 11), 37 
 
 ■goods and treat the contract as repudiated (/), or to retain the goods 
 and treat the failure to perform such material part as a breach 
 which may give rise to a claim for compensation or damages. 
 
 (3.) Nothing in this section shall affect the case of any condition 
 or warranty, fulfilment of which is excused by law by reason of 
 impossibility or otherwise (<7). 
 
 See " warranty " defined in accordance with, this section by sect. 62, post, 
 p. 140, and note ante, p. 34. 
 
 The Act throughout, so far as it relates to England, draws a distinction 
 between the terms " condition " and " warranty." This distinction has often 
 been insisted on, but seldom observed by judges and text- writers. As used in 
 the Act, " condition " is the equivalent to the old term " dependent covenant," 
 while " warranty " is equivalent to the old term " independent covenant." See 
 the question discussed in Note A, post, p. 175. 
 
 In Scotland, no distinction was drawn between conditions and warranties, 
 and the right of rejection was much larger than in England. This right is 
 preserved by the Act. On the other hand, the actio quanti minoris was much 
 restricted in Scotland, and when the buyer could return the goods he was not 
 allowed to keep them and sue for damages. Now he has this right, but it is 
 safeguarded by sect. 59 (consignation into Court), post, p. 131. 
 
 Waiver. — A party may always waive a stipulation which is for his own 
 benefit. The rule is Cuilibit licet renunciare juri pro se introducto. If a 
 stipulation operates for the benefit of both parties, it can only be waived by 
 mutual consent (h) ; and if a condition be waived temporarily, notice should be 
 given before its fulfilment is again insisted on (i). Where the fulfilment of a 
 condition by one party is prevented by the other the condition is waived (k) ; 
 and the wrongful repudiation of a contract by one party may operate as a 
 waiver of conditions precedent to be performed by the other (Z). 
 
 (/) Couston v. Chapman (1872), L. E. 2 So. App. 254 (wine) ; Aird v. Pullan 
 (1904), 7 F. 258 (printing machine) ; Nelson v. WilUam Chalmers dk Co. (1913), 
 Ct. of Sess. Gas. 441 (yacht). 
 
 {g) Hale v. Bawson (1858), 27 L. J. 0. P. 189, at p. 191 ; and see sects. 6 and 7, 
 ante, pp. 27, 28 ; cf. Baily v. De Crespigmy (1869), L. B. 4 Q. B., at p. 185. As to 
 dissolution of contracts by war, see Esposito v. Bowden (1857), 7 E. & B. 763 Ex. Oh. 
 (affreightment), and oases cited, ante, p. 29. 
 
 (h) Maine Spinning Co. v. SutcUffe & Co. (1917), 23 Com. Gas. 216, 219 (" delivery 
 f.o.b. Liverpool"). 
 
 (i) Panoutsos v. Raymond Hadley Corporation, [1917] 2 K. B. 473, 0. A. As to 
 waiver in contract generally, see Bentsen v. Taylor (1893), 2 Q. B. 274, at p. 283, 0. A. 
 
 (k) Mackay v. Dick (1881), 6 App. Gas. 251, H. L. (digging machine, condition to 
 be fulfilled by seller prevented by buyer), followed Kleinert v. Abosso Mining Co- 
 (1913), 58 S. J. 48, P. 0. (defective crusher supplied). 
 
 (I) Cort V. Ambergate BaiVwoAj Co. (1851), 17 Q. B. 127 (chairs) ; Braithwaite v. 
 Foreign Hardwood Co., [1905] 2 K. B. 548, C. A. (saje of timber by instalpaents), and 
 sg§ sggt. 31, post, and Rotes theye^g, 
 
38 TEE SALE OF OOODS ACT, 1893. 
 
 Bescission or abandonment. — A contraot of sale, whether in ■writing or not, may 
 be orally rescinded by mutual consent (m), and if, after the lapse of a reasonable 
 time, neither party seeks to enforce the obligations of the contract, an intention 
 to abandon the contract may be inferred (w). 
 
 12. Implied undertaking as to title, etc. — In a contract of sale, 
 unless the circumstances of the contraot are such as to show a 
 different intention, there is — 
 
 (1.) An implied condition on the part of the seller that, in the 
 
 case of a sale, he has a right to sell the goods, and that, in the 
 
 case of an agreement to sell, he will* have a right to sell the 
 
 goods at the time when the property is to pass (o) : 
 
 (2.) An implied warranty that the buyer shall have and enjoy 
 
 quiet possession of the goods (p) : 
 (3.) An implied warranty that the goods shall be free from any 
 charge or encumbrance in favour of any third party, not 
 declared or known to the buyer before or at the time when the 
 contract is made. 
 
 Illustrations. 
 
 (1) Sale of horses by auction after a selling race. The auctioneer by 
 mistake sells a horse which was not intended by the owner to be included in. the 
 sale. The auctioneer is liable to the buyer in damages (j). 
 
 (2) An auctioneer sells by auction a piano seized under a distress warrant. 
 The buyer knows that the piano is sold under a distress. If the warrant turns 
 out to be invalid, the auctioneer is not liable (»•). 
 
 (3) A manufactures and sells to B a patent machine. It turns out after- 
 wards that the patent is invalid, and is an infringement of another patent. A 
 is not liable under sect. 12 (s). 
 
 See " warranty " and " contract of sale " defined by sect. 62 ; and as to the 
 distinction between a condition arid warranty, see sect. 11, and note thereto, and 
 
 (to) Morris v. Baron & Co., [1918] A. 0. 1, H. L. 
 
 (n) Pearl Mill Co. v. Ivy Tannery Co., [1919] 1 K. B. 78 ; 24 Com. Gas. 169. 
 
 (o) McJiholz V. Bannister (1864), 34 L. J. 0. P. 105 (goods sold by job-warehouae- 
 man) ; c/. French Civil Code, arts. 1603, 1625, 1626 ; Pothier, Contrat de Vente, 
 No. 81 ; Indian Contract Act, 1872, § 109. 
 
 (p) Ibid. Ab to the distinction between the condition as to title and the 
 warranty of quiet possession, see Howell v. Biehards (1809), 11 East, at p. 642. 
 
 (2) Anderson v. Croall (1903), 6 P. 153, Court of Session, See further, sect. 
 54, iJost. 
 
 (r) Payne v. Elsden (1900), 17 T. L. E. 161. 
 
 (s) Montforts v. Ma/rsden (1895), 12 Patent Cases 266, 
 
CONDITIONS AND WARRANTIES (SECT. 12). 39 
 
 post, p. 46. As to negativing implied terms, see sect. 55, post, p. 126. Sect. 12 
 foUows generally the lines of sect. 7 (1) of the Conveyancing Act, 1881 (45 & 
 46 Vict c. 41) as to realty. 
 
 Title. — Formerly the rule was stated to be that on a sale of specific goods there 
 was no impUed warranty of title, and that, in the absence of frand, the seller 
 was " not liable for a bad title unless there was an express warranty, or an 
 equivalent to it by declaration or conduct " (<). But as Lord Campbell said, in 
 1851, " the exceptions have well-nigh eaten up the rule " (m) ; and sub-sect. (1) 
 may be regarded as declaratory. 
 
 The cases in which an impKed undertaking as to title has been negatived 
 appear to have arisen out of sales by sheriffs or forced sales by public auction, 
 where the circumstances were such as to indicate that the seller was only seUing 
 such right as he might have in the goods. A sherifE selling an execution 
 debtor's goods gives no implied undertaking as to title (x). He is only 
 responsible if he hnows that he has no title to sell (y). 
 
 " According to the Eoman law," says Parke, B., " and in France and 
 Scotland, and partially in America, there is always an implied contract that the 
 vendor has the right to dispose of the subject which he sells (z). But, strictly 
 speaking, the implied engagement of the seller in French and Civil Law is not 
 a warranty of title. It consists of (a) an obligation to deliver and (6) a 
 guarantee against eviction. It is the equivalent of a covenant for quiet 
 possession rather than the equivalent of a covenant for title (a). 
 
 Mr. Benjamin suggested that in the case of breach of warranty of title, the 
 buyer might sue for unliquidated damages, and not merely recover the price, if 
 paid, as on a failure of consideration (6) : The Act adopts this suggestion. 
 
 Freedom from charges. — Before the Act there was probably an implied 
 warranty on the part of the seller that the goods were free from any charge or 
 lien thereon at the time of sale, but there appears to be no English 
 decision in point (c). 
 
 In Scotland, France, and Italy, the implied warranty of freedom from 
 encumbrance is clearly recognised (d). " C'est une suite de I'obKgation de Uvrer 
 
 («) Per Parke, B., in Morley v. Attenborough (1849), 3 Exoh. 500, at p. 512; 18 
 L. J. Ex. 148, at p. 152 (auction sale of forfeited pledges). 
 
 (m) Sims V. Marryat (1851), 17 Q. B. 281, at p. 291 (sale of copyright). 
 
 (a;) Exp. Villars (1874), L. R. 9 Oh. App. 434, at p. 487. 
 
 (y) Peto y. Blaydes (1814), 5 Taunt. 657 (sale by sheriff's auctioneer) ; cf, Doral 
 Ally V. Abdool Azeez (1878), L. R. 5, Ind. App. 116 (sherifE). 
 
 (0) Morley v. Attenborough (1849), 3 Exoh., at p. 510, citing Domat, bk. i. tit. 2, 
 s. 2, the French Civil Code, art. 1625 ; and as to Scotland, Bell on Sale, p. 94.i 
 
 (a) See Pothier, Contrat de Vente, Nos. 48, 82. 
 
 (6) Benjamin on Sale, 5th ed., p. 598. 
 
 (c) Ibid., p. 705 ; cf. Conveyancing Act, 1881, s. 7, and see passim, Playford v. 
 Mercer (1870), 22 L. T. (N.S.) 41 (goods to be taken " from the deck" ). The 
 stipulation, if implied, was a warranty, not a condition; see per Lord Esher in 
 Sanders v. Maclean (1883), 11 .Q. B. D. at p. 337. 
 
 {d) Bell's Law of Sale, pp. 79, 95 ; French Civil Code, arts. 1608, 1626, and Italian 
 CivU Code, arts. 1467, 1482. 
 
40 THE SALE OF GOODS ACT, 1893. 
 
 la chose vendue," say Pothier, " que le vendeur doit faire £i ses frais ce qui est 
 necessaire pour satisfaire k oette obligation. C'est pourquoi si la'ohose vendue 
 se trouvait engagde a quelque oreanoier du vendeur qui I'eut en sa possession le 
 vendeur serait oblige de la degager a ses frais pour la livrer." He then 
 proceeds to quote the Civil Law, and to give various other illustrations (e). 
 
 13. Sale by description. — Where there is a contract for the sale 
 of goods by description, there is an implied condition that the goods 
 shall correspond with the description (/) ; and if the sale be by 
 sample, as well as by description, it is not sufficient that the bulk of 
 the goods corresponds with the sample if the goods do not also 
 correspond with the description {g). 
 
 Illustrations. 
 
 (1) A agrees to buy a second-hand reaping machine, which he has never 
 seen, but which the seller assures him to have been new the previous year, and 
 to have been used only to cut about fifty acres. The machine is delivered to A. 
 This is a sale by description, and if the machine does not correspond with 
 the description A may reject it (i^). 
 
 (2) Contract for sale of parcels of laths " about the specification mentioned," 
 property to pass on shipment, and any dispute to be settled by arbitration. If 
 the laths do not substantially accord with the specification the buyer may reject 
 them when delivered to him {i). 
 
 (3) A sells seed to B as " English sanfoin " on the terms that " seller gives 
 no warranty express or implied as to growth, description, or any other matters." 
 B re-seUs to C. The seed is sown and turns out to be giant sanfoin. The seed 
 does not correspond with the description, and B may recover damages from A 
 as in a case of breach of warranty (K). 
 
 (e) Contrat de Venie, No. 42. 
 
 (/) Josling v. Eingsford (1863), 32 L. J. C. P. 64 (sale of oxalic acid after 
 inspection and without warranty) ; approved, M)dj/ v. Gregson (1868), L. E. 4 Ex., 
 at p. 56; Borrowman v. Drayton (1876), 2 Ex. D. 15, 0. A. (cargo of i petroleum) ; 
 Bamdall v. Newson (1877), 2 Q. B. D., at p. 109, C. A. (carriage pole) ; Bowes v. Shand 
 (1877), 2 App. Gas. 455 (rice) ; Manbre Saccharine Co. v. Corn Products Co., [1919] 
 1 K. B. 198, at p. 207 (size of bags). 
 
 (g) Nichol v. Godts (1854), 10 Exoh. 191 (foreign refined rape oil) ; 23 L. Z. Ex. 
 314 ; Azimar v. Casella (1867), L. R. 2 C. P. 677, Ex. Oh. ; see at p. 678 (long staple 
 Salem cotton) ; Wallis v. Pratt, [1911] A. C. 394, H. L. (seed sold as English sanfoin, 
 without warranty). 
 
 (h) Varley v. WTivpp, [1900] 1 Q. B. 513. 
 
 (i) Vigers v. Sanderson, [1901] 1 K. B. 608. 
 
 (ft) Wallis V. Pratt, [1911] A. 0. 394, H. L., approving the dissenting judgment of 
 Moulton, L.J., in court below, 2 K. B., [1910] 1003, 1012, C. A. 
 
CONDITIONS AND WARRANTIES (SECT. 13). 41 
 
 Where goods are described by the contract, and the buyer contracts in 
 reliance on that description, there is a sale by description. " The term sale of 
 goods by description," says Channell, J., " must apply to all cases where the 
 purchaser has not seen the goods, but is relying on the description alone " (Z). 
 And it may apply even where he has seen the goods, if the deviation of the 
 goods from the description is not apparent. 
 
 The principle is a universal one. Si ms pro aura veneai non valet (m). Thus, 
 where there was a contract to purchase rice to be shipped at Madras in March 
 and April, it was held that the buyer was not bound to accept a cargo of rice, 
 part of which was shipped in February, and Lord Blackburn said, " If you 
 contract to sell peas, you cannot oblige a party to take beans. If the description 
 of the article tendered is different in any respect, it is not the article bargained 
 for, and the other party is not bound to take it " (n). " Suppose," says Montague 
 Smith, J., " a contract were made for the sale of ' ten casks of spirits ' guaranteed 
 to be equal to a sample produced, with a stipulation for an allowance should the 
 quality prove inferior to the guarantee, and the sample being brandy, the bulk 
 tendered were to consist of rum, could the allowance clause be applied ? " ; and 
 he proceeds to show that the same rule must apply to cotton of a different hind 
 (not quality) from the sample (o). 
 
 Where, however, the article tendered answers to the description, the buyer 
 must, apart from the warranty, express or implied, take the risk as to its quality 
 and condition (p). Where there was a contract for the sale of Calcutta linseed, 
 Willes, J., said, "The purchaser had a right to expect, not a perfect article, but 
 an article which would be saleable in the market as Calcutta linseed. If he got 
 an article so adulterated as not reasonably to answer that description, he did not 
 get what he bargained for. As if a man buys an article as gold, which every 
 one knows requires a certain amount of alloy, he cannot be said to get ' gold ' if 
 he gets an article so depreciated in quality as to consist of gold only to the 
 extent of one carat " (5). 
 
 Where the parties are really agreed on the thing sold, a misdescription of it 
 in the contract may be immaterial, ior falsa demonstratio non nocet (r). 
 
 Sometimes, though rather inconveniently, the implied conditions of mer- 
 chantableness and fitness for a particular purpose |are treated as part of the 
 description ; but the Act treats them as distinct, see sect. 14, post. 
 
 (1) Varley v. WMpp, [1900] 2 Q. B. at p. 516 ; cf. Thornett v. Beers <ii Sons [1919] 
 1 K. B. 486, at p. 488. 
 
 (to) Cited from Digest, in Kennedy y. Panama Co. (1867), L. K. 2 Q. B., at p. 588 
 (shares). 
 
 (n) Bowes v. Shand (1877), 2 App. Gas. 455, at p. 480 (rice). 
 
 (0) Azimar v. Casella (1867), L. R. 2 C. P., at 447 (long-staple cotton). 
 
 (p) Barr'y. Gibscm (1838), 3 M. & W. 390 (stranded ship) ; cf. Ward v. ^0668 
 (1878), 4 App. Cas. 13 (pigs sold with all faults). 
 
 (2) WieUr v. ScUlizzi (1856), 17 0. B. 619; 25 L. J. C. P. 89 (Calcutta Unseed), 
 (r) Budd V. VaArmaner (1831), 8 Bing. 48 (four-year-old colt) ; Hopkins v. 
 
 HitchcocJc (1863), 32 L. J. C. P. 154 (iron with trade-mark) ; see too Benjamin on 
 Sale, 5th ed., p. 92, citing Bacon's maxim Prmsentia corporis tollit errorem nominis, 
 As to invalidating mistake, see ante, p. 18, 
 
42 THE SALE OF GOODS ACT, 1893. 
 
 TTaage, — Where the contract is in writing evidence of any usage, not incon- 
 sistent with the written terms, is admissible to explain or supplement those 
 terms (s) ; and it seems that the usage of a particular trade to treat a condition 
 as to quality as a mere warranty may be supported (t). 
 
 See sect. 18 (5), post, as to the passing of the property in goods sold by 
 description, 
 
 14. Implied conditions as to quality or fitness. — Subject to the 
 provisions of this Act and of any statute in that behalf (tt), there 
 is no implied warranty or condition as to the quality or fitness for 
 any particular purpose of goods supplied under a contract of sale, 
 except as follows : — (as) 
 
 (1.) Where the buyer, expressly or by implication, makes known 
 to the seller the particular purpose for which the goods are 
 required, so as to show that the buyer relies on the seller's skill 
 or judgment, and the goods are of a description which it is in 
 the course of the seller's business to supply (whether he be the 
 manufacturer or not), there is an implied condition that the 
 goods shall be reasonably fit for such purpose (y) ; 
 
 Provided that in the case of a contract for the sale of a 
 specified article under its patent or other trade name, there 
 
 (s) Produce Brokers, Ltd. v. Olympia Oil Cake Co., [1916] 1 A. C. 314, H. L., and 
 ibid. 1 K. B., [1917] 320, C. A. (6th case). 
 
 (i) Ibid., over-ruling Ee North-Western Rubber Co., [1908] 2 K. B. 907, C. A. 
 (Teiong rubber, " fair usual quality "). 
 
 {u) See, for example, sect. 15 (sale by sample) and the Anchors and Chain Cables 
 Act, 1899 (62 & 63 Vict. o. 23), s. 2 ; the Merchandise Marks Act, 1887 (80 & 51 Vict, 
 c. 28), s. 17 ; the Flax and Hempseed (Ireland) Act, 1810 (50 Geo. 3, o. 82) ; cf. the 
 Sale of Pood and Drugs Act, 1875 (38 & 39 Vict. c. 63), and the Acts amending it, 
 and the Hop (Prevention of Frauds) Act, 1866 (29 & 30 Vict. c. 37), s. 18. 
 
 (a) Barr v. Qibson (1838), 3 M. & W. 390 (ship sold at sea) ; Chanter v. Sopkins 
 (1838), 4 M. & W. 399 (smoke-consuming furnace); Ormrod v. Huth (1845), 14 M. & 
 W. 651, 663, Ex. Ch. (cotton); HorsfallY. Thomas (1862), 81 L. J. Ex. 322 (defective 
 gun) ; Jones v. Just (1868), L. E. 3 Q. B., 197, at pp. 202-204 ; WardY. Eobbs (1878), 
 4 App. Caa. 13, at p. 26 (pigs " with all faults "). As to words " supplied under a 
 contract of sale," see Oeddling v. Marsh, [1920] 1 K. B. 688. » 
 
 (y) Jones v. Bright (1829), 5 Bing. 533 (copper sheathing for vessel) ; Jones v. Just 
 (1868), L. B. 3 Q. B., at p. 203 (manilla hemp) ; Bandall v. Newson (1877), 2 Q. B. D. 
 102, C. A., reviewing all the previous cases (carriage-pole specially ordered for 
 plaintifi's carriage). Cf. Drummondy. Van Ingen (1887), 12 App. Cas. 284, at p. 290, 
 per Lord Herschell (worsted coatings) ; Jacobs v. Scott (1899), 2 P. 70, at p. 78, H. L. 
 (Canadian hay). The sub-section is declaratory, Frost v. Aylesbury Dairy Co., [1905] 
 1 K. B. at p. 608, 0. A. 
 
CONDITIONS AND WARRANTIES (SECT. 14). 43 
 
 is no implied condition as to its fitness for any particular 
 
 purpose {z) : 
 (2.) Where goods are bought by description from a seller who 
 
 deals in goods of that description (whether he be the manu- 
 facturer or not), there is an implied condition that the goods 
 
 shall be of merchantable quality {a) ; 
 
 Provided that if the buyer has examined the goods, there 
 
 shall be no implied condition as regards defects which such 
 
 examination ought to have revealed (b). 
 (3.) An implied warranty or condition as to quality or fitness 
 
 for a particulaV purpose may be annexed by the usage of 
 
 trade (c). 
 (4.) An express warranty or condition does not negative a 
 
 warranty or condition implied by this Act unless inconsistent 
 
 therewith (d). 
 
 Illustrations. 
 
 Sub-sect. (1). — (1) B buys a cargo of 6yfarth Merthyr coal under a written 
 contract. Before the contract is made he informs the seller that the coal is wanted 
 for bunkering steamers. This is not a purchase 'of a " specified article under its 
 
 (2) Chanter v. Hopkins (1838), 4 M. & W. 399 (patent smoke-ooDsuming furnace) 
 foUowed ; OlUvant \, Bagley (1843) 5 Q. B. 288 ; 13 L. 3. Q. B. 34 (patent printing 
 machine) ; Oillespie Brothers v. Cheney & Co., [1896] 2 Q. B. 59, at p. 64; Paul v. 
 Qlasgow Corporation {iaOO),A F. 119 (patent smoke-consuming apparatus) ; cf. Indian 
 Contract Act, 1872, s. 115. A trade name is acquired by user, and though there is 
 no implied warranty of fitness for a particular purpose, the article must nevertheless 
 be merchantable, Bristol Tramways Co. v. Fiat Motors, Ltd., [1910] 2 K. B. 831, at 
 J)p. 839, 840, C. A. 
 
 (a) Jones v. Just (1868), L. B. 3 Q. B. 197 (contract for manilla hemp), reviewing 
 all the previous oases; Beer v. Walker (1877), 46 L. J.'fi. P. 677 (rabbits); cf. 
 Drummond v. Van Ingen (1887), 12 App. Gas. 284, at p. 290, per Lord HerscheU ; 
 Jones v. Padgett (1890), 24 Q. B. D. 650 (blue cloth). 
 
 (6) Drummond v. Van Ingen (1887), 12 App. Gas. 284, 290 ; Wallis v. Bussell, 
 [1902] 2 Irish Rep. 585, at p. 596 ; Thornett v. Beers & Sons, [1919] 1 K. B. 486 
 (inspection and an opportunity for examining = examination. In eflect the condition 
 was waived). 
 
 (c) Jones V. Bowden (1813), 4 Taunt. 847 (sea-damaged drugs) ; cf, Syers v. Jonas 
 (1848), 2 Exch, 111 (tobacco) ; Indian Contract Act, 1872, § 110. Conversely an 
 implied condition or warranty may be negatived by usage, see sect. 55, •post. 
 
 (d) Bigge v. Pa/rkinson (1862), 81 L. J. Ex. 301 (provisions) ; cf. Mody v. Qregson 
 (1868), L. B. 4 Ex., at p. 53 (grey shirtings). 
 
44 THE SALE OF GOODS ACT, 1893. 
 
 patent or trade name," and there is an implied warranty that the coal is lit for 
 this purpose (e). 
 
 (2) PlaintifE asks defendant for a " hot- water bottle," and inquires whether 
 it will stand boiling water. Defendant sells him an American rubber bottle, 
 saying it will stand hot but not boiling water. The bottle, which was got for 
 plaintiff's wife, bursts and injures her. The jury find that the bottle was 
 not fit for use as a hot- water bottle. There is a breach of warranty, and the 
 seller is liable in damages (/). 
 
 (3) PlaintifE buys milk from a milk dealer for family use. The milk account 
 book supplied to plaintifE contains a statement of the precautions taken to keep 
 the milk pure. The milk contains the germs of typhoid fever, and plaintiff's wife 
 becomes infected and dies. This is a breach of warranty, and the mUk dealer is 
 liable in damages (g). 
 
 (4) A tells B that he can supply him with bunkering coal to suit his 
 steamers. B says he will give an order, but that the order must come through 
 L, the coal merchant with whom he deals. This conversation is repeated to L, 
 who gives the order. If coal unfit for bunkering is suppKed and rejected, A 
 cannot sue L for the price Qi). 
 
 (5) B goes to a fishmonger and asks for two nice fresh crabs for tea. The 
 fishmonger says he has no live crabs, but he has boiled crabs. He selects two 
 and sells them to B. They are not fresh, and B becomes seriously iU through 
 eating them. The fishmonger is liable for damages (i). 
 
 (6) B buys a bath bun at a baker and confectioner's shop. The bun contains 
 a stone on which B breaks one of his teeth. The seller (it seems) is liable for a 
 breach of warranty under sub-sect. (1), and also to an action for negligence (h). 
 
 Sub-seot. (2). — (7) PlaintifE goes into a beer-house which he knows is tied to 
 Holdern & Co., and asks for beer. Beer contaminated with arsenic is supplied 
 to him, and he is injured in consequence. This is a breach of warranty, and the 
 seller is liable in damages (l). 
 
 (8) B by a written contract buys from Fiat Motors, Ltd., a Fiat motor 
 omnibus, which he has inspected, and orders the chassis of six more. He 
 explains verbally that they are required for heavy traffic on hilly roads. When 
 the cars are delivered they break down and are unfit for the traffic required. 
 The seller is liable in damages because (1) the oars are not fit for the particular 
 
 (e) Gillespie Brothers v. Cheney & Go., [1896] 2 Q. B. 59 (action for damages, the 
 coal having been accepted). 
 
 (/) Priest V. Last, [1903] 2 K. B. 148, 0. A. Cf. Geddling v. Marsh, [1920] 1 
 K. B. 688 (mineral water bottle). 
 
 (g) Frost v. Aylesbury Dairy Co., [1905] 1 K. B. 608, C. A. Cf. Jackson v. Watson 
 & Sons, [1909] 2 K. B. 193, C. A. (tinned salmon, injury to plaintifi's wife). 
 
 (fe) Crichton v. Love (1908), 9 P. 818, Court of Session. 
 
 (i) Wallis v. Bussell, [1902] 2 Ir. Bep. 585, 0. A. 
 
 (k) Ghaproniire v. Mason (1905), 21 Times L. E. 633, 0. A. (verdict for defendant 
 set aside and new trial ordered). 
 
 (I) Wren v. Holt, [1903] 1 K. B. 610, 0. A. As to measure of damages, see BgstocTc 
 V. Nicholson, [1904] 1 K. B, 725, C. A., and sect, 53, post, 
 
CONDlTiOifB ANb W Ann AN TIES (SECl'. 1-1). 43 
 
 pvLrjposfe required, and (2) tHs is not a sale of cars under a patent or trade name, 
 and even i£ it were tte cars must be " merchantable," which they are not (m). 
 
 (9) Contract for the sale of 600 motor horns as required. The buyer accepts 
 the first lot delivered. He rejects the rest as they are nearly all dinted and 
 scratched owing to bad packing. The motor horns could be repaired at a small 
 expense. The contract is severable, and the buyer may reject the subsequent 
 deliveries as the horns are unmerchantable (n). 
 
 See the terms "buyer," "contract of sale," "quality," "seller," and 
 "warranty," defined by sect 62, post; and see sect. 11, ante, contrasting 
 " condition " and " warranty," and defining the cases in which a condition 
 becomes contracted into a warranty. As to negativing a condition or 
 warranty implied by law, by express terms, usage, or course of dealing, see 
 sect. 65, jiost, p. 126. 
 
 History of section. — This section was again and again considered and amended 
 in Committee, and finally settled by the Law Lords in its present form. The 
 proviso to sub-sect. (2) was originally confined to cases wtere the buyer " had 
 no opportunity of examining the goods." The present narrower proviso 
 was inserted in the Commons, and agreed to by the Lords with a verbal 
 amendment. 
 
 The clause originally provided in addition that where there was a contract 
 for the sale of goods by a manufacturer, as such, there was an implied warranty 
 that the goods were of the seller's own manufacture. This was the law in 
 England, but not ta Scotland (o). This provision was cut out by the Lords 
 Select Committee, possibly on the ground that the Merchandise Marks Act, 
 1887 (50 & 51 Vict. c. 28), gave sufficient protection to purchasers. 
 
 Caveat emptor. — The dicta in the decisions before the Act must be carefully 
 considered with reference to the language of the section, which probably 
 narrows somewhat the already restricted rule of caveat emptor. The rule of 
 caveat emptor probably owes its origin to the fact that in early times nearly all 
 sales of goods took place in market overt (p). Its policy has been defended on 
 the ground that it tends to diminish litigation (g), but the distinct tendency of 
 modern cases it to limit its scope. In a case in 1838 where a ship was bought 
 while on a voyage, and had stranded, though she was not a total wreck. Lord 
 Wensleydale^says : "In the bargain and sale of an existing chattel, by which 
 the property passes, the law does not, in the absence of fraud, imply any 
 
 (m) Bristol Tramway Co, v. Fiat Motors, Ltd., [1910] 2 K. B. 831, C. A. (a trade 
 name must be acquired by user). 
 
 (n) Jackson v. Botax Motor and Cycle Co., [1910] 2 K. B. 937, 0. A. 
 
 (o) Johnson v. Baylton (1881), 7 Q. B. D. 438, 0. A., Lord Bramwell dissenting 
 (iron sKip-plates) ; cf. Starey v. CMlworth (1889), 24 Q, B. D. 90 (trade mark), and 
 see Laws of England, vol. xxv., p. 162. 
 
 (p) Morley v. Attenborotigh (1849), 3 Exch., at p. 511, per Parke, B. 
 
 (g) Mercantile Law Commission, 1855, 2nd Beport, p, 10. 
 
46 THE SALE OF GOODS ACT, 1893, 
 
 warranty of the good quality or condition of the chattel so sold " (r). And in 
 a subsequent case in 1867 Lord Blackburn gives the following' illustration : 
 " Where a horse is bought under the belief that it is sound, if the purchaser 
 was induced to buy by a fraudulent representation as to the horse's soundness, 
 the contract may be rescinded. If it was induced by an honest misrepresentation 
 as to its soundness, though it may be clear that both vendor and purchaser 
 thought that they were dealing about a sound horse, and were in error, yet the 
 purchaser must pay the whole price unless there was a warranty ; and even if 
 there was a warranty he cannot return the horse and claim back the whole price 
 unless there was a condition to that effect in the contract " («). In a case in 
 the Irish Coxtrt of Appeal in 1902, where sect. 14 was elaborately discussed, 
 ritz Gibbon, L.J., says : " Caveat emptor does not mean in law or Latin that the 
 buyer must ' take chance ' ; it means that he must ' take care.' In applies to the 
 purchase of specific things, e.g. to a horse or a picture, upon which the buyer 
 can, and usually does, exercise his own judgment. It applies also whenever the 
 buyer voluntarily chooses what he buys. It applies also where by usage or 
 otherwise it is a term of the contract, express or implied, that the buyer shall 
 not rely on the skill or judgment of the seller. But it has no application to 
 any case in which the seller has undertaken, and the buyer has left it to the 
 seller, to supply goods to be used for a purpose known to both parties at the 
 time of the sale " (f). 
 
 Exceptions to caveat emptor. — The most important exceptions to the rule are 
 the implied conditions of fitness for a particular purpose and merohantableness. 
 In the first case which in implied conditions or warranties were distinguished from 
 false representations, Best, J.C., says : " It is the duty of the Colirt in administer- 
 ing the law to lay down rules calculated to prevent fraud, to protect persons 
 necessarily ignorant of the qualities of a commodity they purchase, and to make 
 it the interest of manufacturers and those who sell, to furnish the best article 
 that can be supplied." . . . ' I wish to put the case on a broad principle. If a 
 man sells an article he thereby warrants that it is merchantable— that is, fit for 
 some purpose. If he sells it for some particular purpose he thereby warrants it 
 fit for that purpose " (m). The implied terms of merchantableness and fitness 
 for a particular purpose are nearly always spoken of as warranties, but in a case 
 in the Court of Appeal, in 1877, where it was held that the maker of a carriage- 
 pole for the plaintiff's carriage was liable for a latent defect in it, they were 
 clearly regarded as conditions forming part of the essential undertaking in the 
 contract. Lord Esher, in giving the judgment of the Court, says : " The funda- 
 mental undertaking is that the article offered or delivered shall answer the 
 description of it contained in the contract. ... If the subject-matter be merely 
 
 (r) Barr v. Gibson (1838),. 3 M. & W. 390, at p. 399 ; but now the implied condition 
 of fitness for a particular purpose may apply to specific goods. 
 
 (s) Kennedy v. Panama Co. (1867), L, R. 2 Q. B., at p. 587 (shares). 
 
 (t) Wallis V. Russell, [1902] 2 Ir. Eep. 585, at p. 615, 0. A. (fiBh). 
 
 {u) Jones V. Bright (1829), 5 Bing. 538, at p. 542 (action for deceit, but fraud 
 negatived and warranty implied). 
 
CONDITIONS AND WARRANTIES (SECT. 14). 47 
 
 the commercial article or commodity, the undertaking is that the thing offered 
 or delivered shall answer that desoriptian — that is to say, shall be that article, 
 saleable or merchantable. If the subject-matter be an article or commodity to 
 be used for a particular purpose, the thing ofEered or delivered must answer that 
 description — ^that is to say, it must be that article or commodity, and reason- 
 ably fit for the particular purpose. ... If the article or commodity does not 
 in fact answer the description of it in the contract, it does not do so more 
 or less because the defect in it is patent, or latent or discoverable " («). 
 
 It was formerly thought that where provisions were sold by a dealer ia 
 provisions there was always ah implied condition or warranty that they were 
 fit for food (y), but it was afterwards held that there was no distraction between 
 provisions and any other goods. For instance, if a man selected and bought 
 a carcase in the market he took it at his own risk (z) . The real question is whose 
 judgment was relied on in making the purchase. 
 
 The implied undertakings as to.fltness for a particular purposeiandmerchant- 
 ableness must be construed reasonably, regard being had to the maxim, De 
 miniinis non curat lex {a). 
 
 In Scotland, formerly, as in France now, it was held that the seller 
 guaranteed the buyer against all latent defects (6). But by sect. 6 of the 
 Mercantile Law Amendment (Scotland) Act, 1856, it was provided that if the 
 seller did not know the goods to be defective or of bad quality, the goods, with 
 all faults, should be at the risk of the purchaser unless there was an express 
 warranty or unless the goods were expressly sold for a particular and specified 
 -purpose. This enactment was intended to assimilate Scottish to English law, 
 but it laid down a narrower rule for the former country. Now a uniform rule 
 is laid down for both countries. 
 
 Dangerous goods. — Apart from any question of warranty or contract, a person 
 who sells goods which he knows to be dangerous, without giving fair warning 
 to the buyer, is liable for the consequences. For example, the seller of a tin of 
 disinfecting powder knows that it is dangerous to open without special 
 precautions. It is his duty to warn the buyer, and if he omits to do so and the 
 buyer is injured the seller is liable in damages (c). 
 
 (a;) Randall v. Neioson (1877), 2 Q. B. D. 102, at p. 109, 0. A. (carriage-pole). 
 
 (y) Wallis v. Russell, [1902] 2 Ir. Eep. 585, at p. 611, 0. A. 
 
 (z) Emmerton v. Matthews (1862), 81 L. J. Ex. 139; Smith v. Baker (1878), 40 
 L. T. (N.S.) 261. But as to provisions bought by description, see Bigger, Parkinson 
 (1862), 31 L. J.'Ex. 301. See the whole question discussed in Wallis v. Russell, supra. 
 
 (a) Bristol Tramways Co. v. Fiat Motors, Ltd., [1916] 2 K. B. 831, at p. 841, 
 C. A. 
 
 (6) Bell's Princ. Law of Scotland, 9th ed., p. 78; French Civil Code, arts. 
 1641-1844. 
 
 (c) Clarke v. Army and Navy C. S., Ltd., [1903] 1 K. B. 155, 0. A. ; cf. George 
 V. Skivington (1869), L. B. 5 Ex. 1 (dangerous hairwash sold to husband for use of 
 wife), discussed Cavalier v. Pope, [1905] 2 K. B., at p. 761, C. A. ; Bates v. 
 Batey & Co., [1913] 3 K. B. 351 (defective ginger-beer bottle, seller not knowing it 
 was defective). 
 
48 TtiE SALE OE GOODS ACT, 1893. 
 
 Sale by Sample. 
 15, — (1.) A contract of sale is a contract for sale by sample 
 where there is a term in the contract, express or implied, to that 
 effect, 
 
 (2.) In the case of a contract for sale by sample — 
 
 (a.) There is an implied condition that the bulk shall correspond 
 
 with the sample in quality {A) : 
 (b.) There is an implied condition that the buyer shall have a 
 reasonable opportunity of comparing the bulk with the 
 sample (e) : 
 (c) There is an implied condition that the goods shall be free 
 from any defect, rendering them unmerchantable (/), which 
 would not be apparent on reasonable examination of the 
 sample {g). 
 
 Illvstrations. 
 
 (1) Sale by sample, goods to be paid for in cast on arrival in ezcHaug'e for 
 shipping documents. An opportunity to inspect is not a condition precedent 
 to payment, and payment does not prejudice the right of rejection if the bulk 
 does not correspond with the sample Qi). 
 
 (2) Sale by sample of a quantity of maroon twiU. A part of the twiU 
 supplied is inferior to sample. The buyer may reject the whole, or may retain 
 the whole, claiming damages for the portion inferior to sample, but he cannot 
 keep the part equal to the sample and reject the other part (i). 
 
 {d) Parker v. Palmer (1821), 4 B. & Aid. 387, at p. 391 (Bast Indian rice) ; Syers 
 V. Jonas (1848), 2 Bxoh., at p. 117 (tobacco) ; Ga/rter v. Crick (1859), 28 L. J. Ex. 238 
 (seed barley); Walker \. Shaw, [1904] 2 K. B. 152 (barley " about as per sample," 
 custom of London Corn Exchange). 
 
 (e) Lorymer v. Smith (1822), 1 B. & 0. 1 (wheat) ; Seilbutt v. Hickson (1872), 
 L. E, 7 0. P., at p. 456 (shoes for French Army); but see Hey worth v. Hutchinson 
 (1867), L. B. 2 Q. B. 447 (wool) ; Polinghi v. Dried Milk Co. (1904), 10 Com. Gas. 42 
 (examination not necessarily condition precedent to payment). 
 
 (/) As to the term "merchantable " see notes to last section, and Bristol Tramways 
 Co. V. Fiat Motors, Ltd., [1910] 2 K. B. at p. 840, C. A. 
 
 (g) Heilbutt v. HicksorC (1872), L. E. 7 0. P. 438, at p. 456 ; Mody v. Qregson 
 (1868), L. E. 4 Ex. 49 ; Drummxmd v. Van Ingen (1887), 12 App. Gas. 284 (worsted 
 coatings) ; and see a Scotch case, Macfarlane v. Taylor (1868), L. E. 1 Sc. App. 245 
 (whisky) ; and cf. proviso to sect. 14 (2), ante. 
 
 (h) Polenghi v. Dried Milk Go. (1904), 10 Gom. Gas. 42 ; cf. Biddell Brothers v. 
 E. Clemens Horst <& Co., [1911] 1 K. B. 952, per Kennedy, L. J., approved A. C., [1912] 
 18, H. L. (o.i.f. contract). 
 
 (i) Aitken v. Boullen (1908), 10 P. 490, Court of Session. AUter if the contract be 
 severable, Jackson\. Botax Motor arid Cycle Co., [1910] 2 K. B. 937, G. A. 
 
SALE BY SAMPLE (SECT. 15). 49 
 
 Sub-sect. (1). — Evidence of usage is admissible to show that a sale was by 
 sample, though the written contract may be silent on the point {It). On the 
 other hand, the exhibition of a sample during the making of the contract does 
 not necessarily make it a contract for sale by sample (Z). 
 
 " The office of a sample," says Lord Macnaghten, " is to present to the 
 eye the real meaning and intention of the parties with regard to the subject- 
 matter of the contract which, owing to the imperfection of language, it may be 
 difficult or impossible to express in words. The sample speaks for itself. But it 
 cannot be treated as saying more than such a sample would tell a merchant of the 
 class to which the buyer belongs, using due care and diligence, and appealing to 
 it in the ordinary way, and with the knowledge possessed by merchants of that 
 class at that time " (to). 
 
 Sub-sect. (2). — Implied condition on sale by sample. — By sect. 62, post, p. 139, 
 " quality of goods " includes their state or condition. As to negativing implied 
 terms by express terms, course of dealing, or usage, see sect. 55, post, p. 126. In 
 Parkinson v. Lee («), it was held that the seller, who was a merchant and 
 not the manufacturer, was not responsible for a latent defect which examination 
 of the sample failed to disclose. But Lord Esher expressed an opinion that that 
 case was no longer law (o), and the act now draws no distinction between a 
 manufacturer and anybody else. Take the case suggested by WiUes, J., namely, 
 " brandy sold by sample, coloured with some new stufE which turned out to be 
 a violent purgative, but the effect of which could not be discovered by tasting 
 in the usual way " (p). Should it be any answer to say the seller was a wine 
 merchant and not the manufacturer ? It seems not {q). 
 
 Text writers and the older cases always speak of the term that the bulk shall 
 agree with the sample as a warranty, collateral to the contract (r). But 
 Blackburn, J., in a case where goods were guaranteed " about equal to sample," 
 said : " Generally speaking, when the contract is as 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" (s). Mr. Benjamin, 
 after reviewing the cases, argued that the buyer might always reject the goods 
 
 {k) Syers v. Jonas (1848), 2 Exoh. Ill (tobacco), approved, Harnor v. Groves 
 (1855), 24 L. J. C. P., at p. 56. 
 
 (1) Sill V. Smith (1812), 4 Taunt. 520 ; see at p. 532, Ex. Oh. ; Meyer v. Everth 
 (1814), 4 Camp. 22 (sugar described in bought note); Gardiner v. Grey (1815), 
 i Camp. 144 (waste silk sold under written contract). 
 
 (m) Drummond v. Van Ingen (1887), 12 App. Oas., at p. 297 (latent defect in 
 sample) ; cf. Mody v. Qregson (1868), L. E. 4 Ex., at p. 53, per Willes, J. 
 (w) Parkinson v. Lee (1802), 2 East, 314 (hops)., 
 (o) Bandall v. Newson (1877), 2 Q; B. D., at p. 106 (carriage-pole). 
 (p) Mody V. Qregson (1868), L. K. 4 Ex., at p. 54 (grey shirtings). 
 
 (2) Cf. Wren v. Holt, [1903] 1 K. B. 610, 0. A. 
 
 (r) Parker v. Palmer (1821), 4 B. & Aid., at p. 891, per Lord Tenterden (East 
 India rice). 
 
 (s) Heyworth v. Hutchinson (1867), L. R. 2 Q, B, 447, at p. 451 ; cf. Syers v. Jonas 
 (1848), 2 Exch. Ill, at p. 117, per Parke, B, 
 
 C.S.G. K 
 
50 THE SALE OF GOODS ACT, 1893. 
 
 if the bulk did not correspond with the sample, unless (1) he had finally 
 accepted them, or (2) the contract related to specific goods the property in 
 which had passed to him (<). The Act adopts this view by describing the term 
 as a condition and not a warranty. See sect. 11 (1) (c), ante, p. 36. 
 
 Primi facie the place of delivery is the place for comparing the bulk with 
 the sample (u). But this presumption may be rebutted, and Lord Esher has 
 expressed the opinion that " such a contract always contains an implied term 
 that the goods may under certain circumstances be returned, that such term 
 necessarily contains certain varying or alternative applications, and amongst 
 others the following, that if the time of inspection as agreed upon be subsequent 
 to the time agreed for the delivery of the goods, or if the place of inspection as 
 agreed upon be different from the place of delivery, the purchaser may, upon 
 inspection at such time and place, if the goods be not equal to sample, return 
 them then and there on the hands of the Seller " (a:). This certainly seems to 
 be the law in Scotland (y), but the question perhaps requires further considera- 
 tion in England. 
 
 This section is supplemented by sect. 13, ante, which provides that when goods 
 are sold by description as well as by sample, the goods must correspond with the 
 description as well as with the sample. 
 
 As to exhibition by mistake of wrong sample, see ante, p. 18. 
 
 (i) Benjamin on Sale, 4th ed., p. 936. 
 
 (u) Perkins v. Bell, [1893] 1 Q. B. 193, C. A. (barley delivered at T. station). 
 
 (a;) Seilbutt v. Hickson (1872), L. B. 7 C. P. 438, at p. 456 ; cf. Grimoldby v. Welh 
 (1875), L. B. 10 C. P. 391, at p. 395, per Brett, J. (tarea). 
 
 <j/) Couston V. Chapman (1872), L. E. 2 So. App. 250, at p. 254, per Lord 
 Chelmsford (wine sold by auction). 
 
( 51 ) 
 
 PAET II. 
 
 Effects op the Contract. 
 
 Transfer of Property as hetween Seller and Buyer. 
 16. Goods must be ascertained. — Where there is a contract for the 
 sale of unascertained goods no property in the goods is transferred 
 to the buyer unless and until the goods are ascertained (a) . 
 
 Illustration. 
 A, having 200 sacks of flour in a warehouse, sells 50 to B, receives the 
 price and gives B a delivery order. B presents the delivery order at the 
 warehouse and gets a storage warrant in exchange. Nothing is done to 
 appropriate any particular 50 sacks to the contract. No property in any of 
 the sacks passes to B, and if A becomes bankrupt his trustee can claim the 
 whole of the flour (6). 
 
 " In the case of executory contracts," says Bovill, C.J., " where the goods 
 are not ascertained or may not exist at the time of the contract, from the 
 nature of the transaction, no property in the goods can pass to the purchaser 
 by virtue of the contract itseK; but where certain goods have been selected 
 and appropriated by the seller, and have been approved and assented to by the 
 buyer, then the case stands as to the vesting of the property very much in 
 the same position as upon a contract for the sale of goods which are ascertained 
 at the time of the bargain " (c). " A contract to seU unascertained goods," says 
 Lord Loreburn, " is not a complete sale, but a promise to sell " (d). 
 
 Generic goods. — Unascertained or generic goods, that is to say, goods defined 
 by description only, must be distinguished from specific goods, that is to say, 
 goods identified and agreed upon at a time when the contract is made. Suppose 
 
 (a) For statement of rule, see IHxoji v. Tates (1833), 5 B. & Ad., at p. 340; 
 Aldridge v. Johnson (1857), 26 L. J. Q. B. 296, at p. 299, per Lord Campbell ; 
 Mirabita v. Imp. Ottoman Bank (1878), 8 Ex. D., at p. 172. For examples, see 
 Bohde V. Thwaites (1827), 6 B. & C. 388, 393 (sugar) ; Campbell v. Mersey Docks 
 (1863), 14 0. B. (N. S.) 412 ; Jenner v. Smith (1869), L. K. 4 G. P. 270 (hops sold at a 
 fair) ; Farmiloe v. Bain (1876) 1 C. P. D. 445 (100 tons of zinc). As to c.i.f . contracts, 
 see Groom v. Barber (1915), 1 K. B. 316 ; cf. French Civil Code, art. 1585 ; Pothier, 
 Contrat de Vente, No. 308. 
 
 (6) Hayman v. M'Lintock (1907), 9 F. 936, Court of Session ; see note next page. 
 
 (c) Heilbutt v. Hickson (1872), L. E. 7 C. P. 488, at p. 449, per Bovill, 0,J., and 
 Byles, J. (contract for army boots). 
 
 (d) Badische Anilin Fabrik v, Hickson, [1906] A. 0. 419, at p. 421, 
 
52 TEE SALE OF GOODS ACT, 1893. 
 
 A agrees to ^sell to B "fifty Southdovm sheep," no property in any sheep can 
 pass to B; till the, sheep are appropriated to the contract. A fulfils his contract 
 by d,eiivering at the appointed time any fifty Southdown sheep. But if he 
 agreed to selj " the fifty Southdown sheep now in the field " he could not keep 
 his 'contract by delivering any others, and the property might pass at once if 
 the p^ies s? intended. 
 
 An agreement for the sale of unascertained goods was known in B>oman law 
 as emptio generis. See Moyle's Sale in the Civil Law, p. 28, where the effects 
 of this contract are discussed. 
 
 Part of specific whole. — The sale of an unascertained portion of a larger 
 ascertained quantity of goods passes no property to the buyer till that portion 
 is identified and appropriated to the contract. " If," says Bayley, J., " I agree 
 to deliver a certain quantity of oil, as 10 out of 18 tons, no one can say which 
 part of the whole quantity I have agreed to deliver until a selection is made. 
 There is no individuality until it has been divided "(e). But suppose A, 
 having 18 tons of oil, sells 10 tons to B, and 8 tons to C, he has divested 
 himself of all interest in the whole. Possibly in such case the property in 
 the whole might pass to B and C as tenants in common, but the point is 
 uncertain (/). 
 
 Qoods mixed. — If the goods sold have been ascertained, and the property has 
 passed to the buyer, his rights cannot be afEected by the fact that the seller has 
 afterwards mixed up the goods sold with other goods (g). 
 
 17. — (1.) Property passes when intended to pass. — Where there is 
 a contract for the sale of specific or ascertained goods the property 
 in them is transferred to the buyer at such time as the parties to 
 the contract intend it to be transferred {h). 
 
 (2.) For the purpose of ascertaining the intention of the parties 
 regard shall be had to the terms of the contract, the conduct of the 
 parties, and the circumstances of the case (i). 
 
 (e) Gillett v. Hill (1834), 2 Or. & M. 530, at p. 535 ; Boswell v. Kilhurn (1862), 15 
 Moore P. 0. 809 (hops not separated from larger bulk) ; Hayman \.'M'Lintock (1907), 
 9 F. 936 ; Benjamin on Sale, 5th ed., p. 834. 
 
 (/) Cf. IngUsY. Slock (1885), 10 App. Oas. 263, where the case turned on insurable 
 interest. 
 
 ig) Sayman v. M'Lintock (1907), 9 P. 936 ; but cf. Spence v. Union Mar. Ins. Co. 
 (1868), L. B. 3 0. P. 427, as to goods of difierent owners mixed during carriage, where 
 a tenancy in common was held to arise. 
 
 {h) Seath v. Moore (1886), 11 App. Gas. 350, at p. 370, per Lord Blackburn, and at 
 p. 380, per Lord Watson (ship engines) ; Beid v. Macbeth, [1904] A. C. 223, H. L. 
 (ship in course of building, and materials for her oonstruotion) ; cf. Shepherd v. 
 Harrison (1871), L. E. 5 H. L., at p. 127 ; McEntire v. Grossley, [1895] A. C, at p. 463 
 (if the contract contains inconsistent terms the general tenour of it must govern). 
 
 , (i) Ogg V. Skuter (1875), L. R. 10 0. P., at p. 162 (bill of lading) ; c/. Young v. 
 Matthews (1866), L. B. 2 0. P. 127 (bricks) ; The Pa/rchmi, [1918] A. G. 157, at pp. 161, 
 162, P, C., cited post, p. 14^. 
 
TRANSFER OF PROPERTY (SECT. 17). 53 
 
 Illustrations. 
 
 (1) Contract to build a ship to be classed Al at Lloyds, to be paid for after 
 completion. The Tossel as she is constructed, and the materials from time to 
 time intended for her, whether in the building yard or elsewhere, to be the 
 property of the purchasers. This is a contract for a complete ship.. The 
 buyer obtains no property in iron plates at the railway station marked for the 
 ship, and creditors of the buyer cannot attach them (_/). 
 
 (2) Contract to build a ship, instalments- of price to be paid as work proceeds, 
 and buyer to have the right to inspect and superintend construction, 
 delivery to be considered complete after satisfactory official trial. This is a 
 contract for a complete ship, and no property passes to the buyer before the 
 official trial (h). 
 
 (3) A in England agrees with B in England to sell him a quantity of 
 patented dye stuffs, delivery to be made at Basle in Switzerland. A procures 
 the goods abroad, and has them forwarded to Basle, where his agent holds 
 them at B's disposal. If B assents to this the property in the goods thereupon 
 passes to B (Z). 
 
 (4) B offers to buy a parcel of diamonds from a foreign firm. The diamonds 
 are sent by post with a bill drawn on the buyer and an invoice marked " settled 
 by acceptance.'' If the bill of exchange is not accepted the ownership of the 
 diamonds remains in the seller (m). 
 
 By English law the property may pass by the contract itself, if such be the 
 intention of the parties. In other words, the contract may include a convey- 
 ance. " Where, by the contract itself," says Lord Wensleydale, "the vendor 
 appropriates to the vendee a specific chattel, and the latter thereby agrees to 
 take that specific chattel and to pay the stipulated price, the parties are then in 
 the same situation as they would be after a delivery of goods in pursuance of a 
 general contract. The very appropriation of the chattel is eqtiivalent to 
 delivery by the vendor, and the assent of the vendee to take the specific chattel 
 and to pay the price is equvialent to his accepting possession. The effect of 
 this contract, therefore, is to vest the property in the bargainee " (n). Whether 
 this be a satisfactory explanation or not, the rule is undoubted, and is as old as 
 the year books (o). 
 
 Eoreigrn rules. — By the Civil Law, the property in goods did not pass by 
 virtue of a contract of sale until delivery, the rule being Traditionibus et 
 
 (j) Beid V. Macbeth, [1904] A. 0. 223, H. L. ; see at p. 230 for the principle. 
 
 {k) Sir J. Lamg v. Barclay & Co., [1908] A. 0. 35, H. L. 
 
 (I) Badische AniUn Fabrik v. Hickson, [1906] A. C. 419 (there is no " vending " 
 in England within the meaning of the Patent Acts). 
 
 (m) Saks v. Tilley (1915), 82 T. L. E. 148, C. A. ; cf, sect. 19 (3), post. 
 
 (n) Dixon v. Tates (1833), 5 B. & Ad. 313, at p. 340, per Parke, J. (puncheons of 
 rum). 
 
 (o) For a discussion of its policy, see 2nd Report of Mercantile Law Commission, 
 1855, pp. 9, 42 ; Blackburn on Sale, pp. 187-197 ; and for its history, see Cochrane V. 
 Moore (1890), 25 Q. B. D. 57, C. A. (attempted gift of third share of a borse). 
 
54 TEE SALE OF GOODS ACT, 1893. 
 
 v^ucapionibus, dominia rer.um, non nudispractis, transferunter (p). But thougk 
 the prepay did not pass, as soon as the parties were agreed on the subject- 
 matter and the price, there was an emptio perfeeta, the result of which was that 
 the risk pasii^ed^to the buyer, and he acquired ajus ad rem, though not a, jus in 
 re. I The^ Scotch common law followed this rule, but by the 19 & 20 Vict. c. 60, 
 s. 1 (pow repealed), when goods had been sold but not delivered, the seller's 
 creditors cbuld not attach them, and a sub-vendee was entitled to demand the 
 goods subject to satisfying the seller's lien for the price. The efEect was, that 
 when in England the property in goods would pass to the buyer, the same 
 results followed in Scotland, though those results were arrived at in a different 
 manner (q). Now, under the Act, the same rule applies to both countries. 
 
 France and Italy have also departed from the principle of the Civil Law, and 
 have adopted a rule substantially the same as that of English law (r). See further 
 note ante, p. 11, as to conflict of laws. 
 
 18. Rules for ascertaining intention. — Unless a different intention 
 appears (s), the following are rules for ascertaining the intention of 
 the parties as to the time at which the property in the goods is to 
 pass to the buyer. 
 
 Bule 1. — Where there is an unconditional (t) contract for the sale 
 of specific goods, in a deliverable state (u), the property in the 
 goods passes to the buyer when the contract is made, and it is 
 immaterial whether the time of payment or the time of 
 delivery, or both, be postponed (x). 
 
 (p) Moyle's Justinian, p. 200, citing Cod. 2, 3, 30. 
 
 (g) M'Bain v. Wallace (1881), 6 App. Cas. 588, at p. 618 ; Seath v. Moore (1886), 
 11 App. Cas., at pp. 370, 380. See, too, Blackburn on Sale, pp. 187-197. 
 
 (r) French Civil Code, art. 1583 ; Italian Civil Code, art. 1448. For the history 
 of this departure, see VioUet, Histoire du Droit Franfaise, pp. 187-197. 
 
 (s) Calcutta Co. v. De Mattes (1863), 32 L. J. Q. B., at p. 329 ; FurUy v. Bates 
 (1863), 33 L. J. Ex. 43 (fire-clay); Young v. Matthews (1866), L. E. 2 C. P. 127 
 (bricks) ; and note, post, p. 190. 
 
 (t) As to contracts which are in terms conditional, see ante, pp. 1 and 6. 
 
 (u) Deliverable state = state in which buyer is bound to accept, see sect. 62j 
 post, p. 141. 
 
 (x) Tarling v. BaxUr (1827), 6 B. & C. 360; Tudor's Merc. Cases, 3rd ed., 
 p. 308, and notes ; Dixon v. Yates (1833), 5 B. & Ad., at p. 340 ; Barry. Oibson (1838), 
 M. & W. 390 ; MarUndale v. .Smith (1841), 1 Q. B., at p. 395 ; Gilmour v. Supple 
 (1858), 11 Moore, P. C, at p. 556 ; Joyce v. Swann (1864), 17 0. B. (N.S.), at p. 102 
 (price not fixed) ; Sweeting v. Turner (1871), L. B. 7 Q. B. 310, at p. 313 ; Heilbutt v. 
 Hickson (1872), L. B. 7 0. P., at p. 449. See the rule stated and contrasted with 
 the Civil Law and Scotch common law; Seath v. Moore (1886), 11 App. Cas., at 
 p. 370. 
 
TRANSFER OF PROPERTY (SECT. 18). 55 
 
 Bule 2. — Where there is a contract for the sale of specific goods 
 and the seller is bound to do something to the goods, for the 
 purpose of putting them into a deliverable state, the property 
 does not pass until such thing be done (y), and the buyer has 
 notice thereof. 
 
 Bule 3. — Where there is a contract for the sale of specific goods 
 in a deliverable state {z), but the seller is bound to weigh, 
 measure, test, or do some other act or thing with reference to 
 the goods for the purpose of ascertaining the price, the 
 property does not pass until such act or thing be done(«), 
 and the buyer has notice thereof. 
 
 Bule 4. — When goods are delivered to the buyer on approval or 
 " on sale or return " or other similar terms, the property 
 therein passes to the buyer : — 
 
 (a.) When he signifies his approval or acceptance to the seller, 
 or does any other act adopting the transaction (b) : 
 
 (b.) If he does not signify his approval or acceptance to the seller 
 but retains the goods without giving notice of rejection, then, 
 if a time has been fixed for the return of the goods, on the 
 expiration of such time, and, if no time has been fixed, on 
 the expiration of a reasonable time. What is a reasonable 
 time is a question of fact (c). 
 
 [y) Bugg v. 'Minett (1809), 11 East, 210 ; TcmsUy v. Twrner (1835), 2 Bing, N. C. 
 151 ; LcMler v. BurUnson (1887), 2 M. & W. 602 ; Acraman v. Morrice (1849), 8 C. B, 
 449 ; 18 L. J. 0. P. 57 ; Boswell v. Eilborn (1862), 15 Moore, P. 0. 309 ; 8 Jur. 448 ; 
 Young v. Matthews (1866), L. E. 2 0. P. 127 (bricks) ; Pothier, Oontrat de Vente, 
 Nos. 308, 309 ; Anderson v. Morice (1875), L. K. 10 C. P. 609, at p. 618, Ex. Ch. 
 afarmed, 1 App. Cas. 713 ; Seath v. Moore (1886), 11 App. Cas., at p. 370. 
 
 (z) Deliverable state = state in which buyer is bound to accept, see sect. 62, post. 
 
 (a) Furley v. Bates (1863), 33 L. J. Ex. 43 (fire-clay), criticising Blackburn on 
 Sale, p. 162 ; Hanson v. Meyer (1805), 6 East, 614 ; Zagury v. Furnell (1809) 2 
 Camp. 239 ; Simmons v. Swift (1826), 5 B. & C. 857 (unweighed portion of a stack of 
 bark) ; Pothier, Contrat de Vente, Nos. 808, 309. 
 
 (6) Swam v. Shepherd (1832), 1 M. & Rob. 223 ; Bell's Law of Sale (Scotland), 
 p. 111. 
 
 (c) Moss V. Sweet (1861), 16 Q. B. 493 ; 20 L. J. Q. B. 167 ; cf. Beverley v. Lincoln 
 Gas Co. (1887), 6 A. & E. 829; Ex p. White (1870), L. B. 6 Ch. App. 397 ; Bay v. 
 Barker (1879), 4 Ex. D. 279, C. A. ; EVphick v. Barnes (1880), 6 C. P. D. 321 (death 
 of horse delivered on sale or return). As to delay in return caused by V7ar, cf, 
 Moore v. Evans, [1918] A. 0. 185, H. L. (claim for total loss on policy). 
 
56 THE BALM OP GOODS ACT, 1803, 
 
 Bule 5. — (1.) Where there is a contract for the sale of un- 
 ascertained or future goods by description, and goods of that 
 description and in a deliverable state are unconditionally 
 appropriated to the contract, either by the seller with the assent 
 of the buyer, or by the buyer with the assent of the seller, the 
 property in the goods thereupon passes to the buyer (d). Such 
 assent may be express or implied, and may be given either 
 before or after the appropriation is made (e) : 
 (2.) Where, in pursuance of the contract, the seller delivers the 
 goods to the buyer or to a carrier or other bailee [or custodier] 
 (whether named by the buyer or not) for the purpose of trans- 
 mission to the buyer, and does not reserve the right of disposal, 
 he is deemed to have unconditionally appropriated the goods 
 to the contract (/). 
 
 Illustrations. 
 
 Eule 4. — ( 1) A delivers goods to B on sale or return. B pledges the goods. 
 This adopts the sale, and the property passes to the buyer. A therefore cannot 
 recover the goods from the pawnbroker (ji). 
 
 (2) A delivers goods to B on sale for cash or return, the goods to remain the 
 property of A tiU settled for or charged. C tells B he can find a customer for 
 them, but, instead of doing so, he pawns them with D. A can recover , the goods 
 from D, the pawnbroker (h). 
 
 (d) For statement of principle, see JSeilbutt v. Hickson (1872), L. R. 7 0. P., at 
 p. i49. See, in illustration, Busk v. Davis (1814), 2 M. & S. 397 ; Bohde v. Thwaites 
 (1827), 6 B. & 0. 388, see at p. 393 ; Aldridge v. Johnson (1857), 26 L. J. Q. B. 296 
 (barley) ; Langton v. Higgins (1859), 28 L. J. Ex. 252 (crops of oil of peppermint); 
 Boswell V. Kilbom (1862), 15 Moore, P. 0. 308 ; 8 Jur. 443. 
 
 (e) Campbell v. Mersey Docks (1863), 14 C. B. (N. S.) 412, at p. 415, per Willes, J. ; 
 cf. Oodts V. Bose (1855), 17 C. B. 229, at p. 237 ; Aldridge v. Johnson (1857), 26 L. J. 
 Q. B. 296 ; Jenner v. Smith (1869), L. E. 4 C. P. 270 (hops at a warehouse). 
 
 (/) For statement of principle, see Wait v. Baker (1848), 2 Exoh., at p. 7, per 
 Parke, B. ; Calcutta Co. v. De Matlos (1863), 32 L. J. Q. B., at p. 328, per Blackburn, 
 J. ; Joyce v. Swann (1864), 17 C. B. (N. S.) 84, at p. 102, per Willes, J. As to 
 delivery to buyer, Greaves v. Eepke (1818), 2 B. & Aid. 131 ; Ogle v. Atkinson (1814), 
 5 Taunt. 759. Delivery to carrier' by land, Dutton v. Solomonson (1803) 8 B. & P. 
 582; to canal-boat, Fragamo v. Long (1825), 4 B. & 0. 219; Bryams v. Nix (1839), 
 4 M. & W. 775 ; on board ship, AUoMnder v. Gardner (1835), 1 Bing. N. 0. 671 ; 
 Tregelles v. Sewell (1862), 7 H. & N. 574, Ex. Oh. ; Mirabita v. Imperial Ottoman Bank 
 (1878), 3 Ex. D. 164, C. A. See further note to sect. 32 (3) as to f.o.b. contracts, c.i.f. 
 contracts, and ex ship contracts. 
 
 (g) Ei/rkham v. Attenborough, [1897] 1 Q. B. 201, C. A. 
 
 {h) Werner v. Gill, [1905] 2 K. B. 172, afarmed, [1906] 2 K. B. 574, 0. A. ; 
 cf. Edwards v. Vaughan (1910), 26 T. L. R. 545, C. 'A. The terms of the special contract 
 take the case out of rule 4. 
 
TRANSFEE OF PROPERTY (SECT, 18). 57 
 
 (3) A delivers diamonds to B on sale or return, and B delivers them to C 
 on tie like terms. C delivers them to D, and while they are in D's custody 
 they are lost. As B cannot return the diamonds to A, he has hy his dealing 
 with them adopted the transaction and is liable for the price (i), 
 
 (4) A has jewellery belonging to X which he may seU for £750. He delivers 
 it on approval to B, who offers £300 for it. Before B's offer is referred to X 
 and refused, B seUs the jewellery to C for £300. A thereupon sues B and 
 judgment by consent is entered for £750. This affirms the transaction 
 between A and B, even though the judgment is not satisfied through B 
 becoming bankrupt, and A cannot maintain an action against C (/). 
 
 Eule 5. — (5) A in England writes to B at Basle in Switzerland for a packet of 
 patent dye, to be sent by parcel post. B posts the packet to A. The property 
 passes to A as soon as the packet is posted in Basle (fc). 
 
 (6) B orders 140 bags of rice from A, pays for them and asks for delivery. 
 A sends him a delivery order for 125, and asks him to send for the remaining 15 
 at A's place of business. B waits a month before sending for them, and in the 
 meantime they are stolen. The property in the 15 bags has passed to B, and he 
 must bear the loss (I). 
 
 The term " custodier " is the Scotch equivalent of " bailee." See " specific 
 goods," " future goods," " deliverable state," and " delivery," defined by sect. 62, 
 post. As to generic goods, see ante, p. 51. 
 
 As the EngUsh Courts have rejected the objective test of delivery for 
 marking the time when the property is to pass, they have been forced to lay 
 down more or less arbitrary rules for fixing the moment when the property is to 
 be held to pass in cases where the parties have either formed no intention on the 
 point, or failed to express it. 
 
 Rule 1. — See note to section 17, ante, p. 53. The first four rules deal only 
 with specific goods. 
 
 IMe 2. — Specific goods. — Boles for ascertaining intention. — The final words, 
 " and the buyer has notice thereof," were added in Committee on a suggestion 
 from Scotland that it was unfair that the risk should be transferred to the 
 buyer without notice. It is to be noted that this rule is negative. The case 
 of an article which the seller is to manufacture for the buyer is sometimes 
 treated as coming under this rule, but it generally comes under Bule 5. If a 
 man orders a watch to be specially made for him, it is clear that the watchmaker 
 may, if he likes, make two such watches, and that he keeps his contract by 
 delivering either of them (m). Lord Wensleydale has pointed out that there 
 
 (i) Genu v. Wmkel (1912), 17 Com. Gas. 323, 0. A. 
 (j) Bradley v. Ramsay & Go. (1912), 106 L. T. 771, 0. A. 
 
 (h) Badische AniUn Fabrik v. Basle Chemical Works, [1898] A. C, at pp. 203, 204. 
 {I) Pignataro v. Qilroy & Son [1919], 1 K. B. 459, 24 Com. Gas. 174. For converse 
 case, see Healey v. Hewlett & Sons, [1917] 1 K. B. 337 (delay in making delivery). 
 
 (m) Cf. Atkinson v. Bell (1828), 8 B. & G. 277 ; and Xenos v. Wickham (1867), 
 L. E. 2 H. L., at p. 316, per Wllles, J. 
 
58 THE SALE OF GOODS ACT, 1893, 
 
 may be an intermediate state of things. Aji article may be in course of manu- 
 facture, and the parties may hare so far agreed upon it that there arises what the 
 Roman lawyers call ohligatio certi corporis. The seller would break his contract 
 if he delivered any other article, but there maybe no intention that the property 
 in it should pass before its completion («.). Unless a difEerent intention be 
 clearly shown, the rule is that the property in an article, which the seller is to 
 make or complete for the buyer, does not pass until the article is delivered in a 
 finished state, or until it is ready for delivery and is approved by the buyer in 
 that state (o). 
 
 At one time the Courts seemed inclined to reverse the presumption in the 
 case of shipbuilding contracts, where the ship was to be paid for by stated 
 instalments as the work progressed (^p) ; but in a subsequent case in the House 
 of Lords it was held that there was no sound distinction between the case of a 
 ship and any other corpus tnanufactum (j). 
 
 Bute 3. —As to the concluding words, " and the buyer has notice thereof," 
 see note to last rule. Lord Blackburn, in his work on Sale, states this rule 
 without confining its operation to acts to be done by the seller, and regards it 
 as a rule arbitrarily adopted from the Soman law, where it was 'a logical 
 deduction from the principle that there could be no sale until the price was fixed. 
 But the Court of Exchequer in 1863 reviewed the cases, and came to the 
 conclusion that the rule should be qualified, as in the text, by confining it to 
 acts to be done by the seller (r). This construction brings the rule into line 
 with Kule 2. 
 
 Rule 4. — Sale or return, etc. — This rule, like the others, is merely a primd 
 facie rule. In some trades the usage is that when goods are delivered on 
 fourteen days' approval, the property does not pass to the buyer on the 
 expiration of that time, but the seller at any time after the fourteen days can 
 call on the buyer either to take or to return the goods at once. When goods 
 are sent on trial, or on approval, or on sale or return, the clear general rule is 
 that the property remains in the seller tiU the buyer adopts the transaction (e), 
 but it is quite competent to the parties to agree that the property shall pass to 
 
 {») Laidler v. Burlinson (1837), 2 M. & W., at p. 610 (ship In course of building) ; 
 Wait v. Baker (1848), 2 Exoh., at pp. 8, 9. 
 
 (o) Clarke v. Spence (1836), 4 A. & E,, at p. 466 (ship in course of building), 
 reviewing the previous cases ; Seath v. Moore, infra. As to an article commenced 
 by one person and finished by another, see Oldfield v. iMwe (1829), 9 B. & 0. 73 
 (machinery) ; and cf. Beaumont v. Brengeri (1847), 5 C. B. 301 (carriage requiring 
 slight alteration) ; Laws of England^ vol. xxv., p. 172. 
 
 . (p) Woods V. Russell (1822), 5 B. & Aid. 942; Exp. Lambton (1875), L. E. 10 Oh, 
 App. at p. 414. 
 
 (2) Seath v. Moore (1886), 11 App. Gas., at pp. 370, 380 (ship and its fittings) ; 
 Story on Sale, § 316a, and notes to sect. 17, ante. 
 
 (r) IPurley v. Bates (1863), 33 L. J. Ex. 43, commenting on Blackburn on Sale, 
 p. 152. 
 
 (s) Swain v. Shepherd (1832), 1 M. & Bob. 223 ; cf. Be Jones (1889), 6 Morrell, at 
 p. 197 ; cf. B^darride, Des Achats ct Ventes, § 156. 
 
TRANSFER OF PROPERTY (SECT. 18). 59 
 
 the buyer on delivery, but that, if he does not approve the goods, the property 
 shall then revest in the seller (t). To use the language of continental lawyers, 
 the condition on which the goods are deKvered may be either suspensive or 
 resolutive. 
 
 Rule 5. — Qenetic goods. — The term " future goods " includes goods to be 
 acquired and goods to be made by the seller after the formation of the Contract 
 of sale. As to a special article to be made for the buyer, see note to Exde 2. 
 As to a present sale of future goods, see sect. 5, ante, p. 25. 
 
 When there is a contract for the sale of unascertained goods, and the goods 
 
 are afterwards selected by the buyer, or if selected by the seller are approved by 
 
 the buyer, no difficulty arises. The difficulty arises when the seller makes the 
 
 selection pursuant to an authority derived from the buyer ; and it is often a nice 
 
 question of law whether the acts done by the seller merely express a revocable 
 
 intention to appropriate certain goods to the contract, or whether they show an 
 
 irrevocable determination of a right of election. " The general rule seems to be 
 
 that when, from the nature of an agreement, an election is to be made, the party 
 
 who is by the agreement to do the first act, which from its nature cannot be done 
 
 tUl the election is determined, has authority to make the choice in order that he 
 
 may perform his part of the agreement : when once he has performed the act the 
 
 choice has been made and the election irrevocably determined; tiU then he may 
 
 change his mind as to what the choice shall be, for the agreement gives him till 
 
 that time to make his choice " («). The expression that the property in the 
 
 goods passess by their " appropriation to the contract," though consistently 
 
 used in the modern cases, is not a fortunate one. In the first place, as Lord 
 
 Wensleydale has pointed out, the term is used in two senses. It may mean that 
 
 the goods are so far appropriated that the seller would break his contract by 
 
 delivering any other goods, though they stiU remain his property, or it may, 
 
 and usually does, mean that the goods are finally appropriated to the contract so 
 
 as to pass the property in them to the buyer (to). In the second place, if the 
 
 decisions be carefully examined, it will be found that in every case where the 
 
 property has been held to pass, there has been an actual or constructive delivery 
 
 of the goods to the buyer. If the term " delivery " had been substituted for 
 
 '■ appropriation," probably less difficulty would have arisen ; and itseems a pity 
 
 that this was not done by the Act. The commonest form of appropriating 
 
 goods to the contract is by delivering them to a carrier, and then, if there be 
 
 authority to so deliver them, and the seller does not reserve the right of disposal, 
 
 " the moment the goods which have been selected in pursuance of the contract 
 
 are delivered to the carrier, the carrier becomes the agent of the vendee, and such 
 
 a delivery amounts to a delivery to the vendee ; and if there is a binding 
 
 contract between the vendor and the vendee, either by note in writing, or part 
 
 (t) Cf. Head v. Tattersall (1871), L. B. 7 Ex. 7. The Roman law was similar ; 
 see Moyle's Justinian, vol. i., p. 423. 
 
 (m) Blackburn on Sale, p. 128, citing Heywood's Case, 2 Coke, 36, where it is said 
 " the certainty and thereby the property begins by election." Cf. Bankin v. Potter 
 (1873), L. K. 6 H. L., at p. 119, as to election. 
 
 (w) Wait v. Baker (1848), 2 Bxch., at p. 8, per Parke, B. 
 
60 THE SALE OF GOODS ACT, 1893. 
 
 payment, or subsequently by part acceptance, then ttere is no doubt that the 
 property passes by such delivery to the carrier. It is necessary, of course, that 
 the goods should agree with the contract " (»). The qualifying reference to the 
 Statute of Frauds (now reproduced ia sect 4, ante, p. 18) only applies where the 
 value of the goods is £10"or upwards. 
 
 19. — (1.) Eeservation of right of disposal. — Where there is a 
 contract for the sale of specific goods or where goods are subsequently 
 appropriated to the contract, the seller may, by the terms of the 
 contract or appropriation, reserve the right of disposal of the goods 
 until certain conditions are fulfilled. In such case, notwithstanding 
 the delivery of the goods to the buyer, or to a carrier or other bailee [or 
 custodier] for the purpose of transmission to the buyer, the property 
 in the goods does not pass to the buyer until the conditions imposed 
 by the seller are fulfilled (y), 
 
 (2.) Where goods are shipped, and by the bill of lading the 
 goods are deliverable to the order of the seller or his agent, the 
 seller is primd facie deemed to reserve the right of disposal (z). 
 
 (3.) Where the seller of goods draws on the buyer for the price, 
 and transmits the bill of exchange and bill of lading to the buyer 
 together, to secure acceptance or payment of the bill of exchange, 
 the buyer is bound to return the bill of lading if he does not honour 
 the bill of exchange, and if he wrongfully retains the bill of lading 
 the property in the goods does not pass to him (a). 
 
 (x) Wait V. Baker (1848), 2 Exoh., at p. 8 (unindorsed bill of lading). 
 
 (y) For statement of principle, see Mirabita v. Imperial Ottoman Banh (1878), 
 3 Ex. D. 164. In illustration, see as to delivery to buyer, Brandt v. Bowlhy (1831), 
 2 B. & Ad. 932; Godts v. Bose (1855), 17 C. B. 229; 25 L. J. 0. P. 61. As to 
 delivery on board ship. Wait v. Baker (1848), 2 Exoh. 1 ; Van Gasteel v. Booker 
 (1848), 2 Exoh. 691, 18 L. J. Ex. 9 ; Turner v. Liverpool Docks (1851), 6 Exch. 543, 
 Ex. Oh. ; 20 L. J. Ex. 293 ; Moakes v. Nicholson (1865), 34 L. J. G. P. 273 ; Gabarron 
 V. Kreeft (1875), L. B. 10 Ex. 274. 
 
 {z) Ogg V. Shuter (1875), 1 C. P. D. 47, C. A. ; Mirabita v. Imperial Ottoman Bank 
 (1878), 3 Ex. D., at p. 172, 0. A. ; Biddell Brothers v. .E. Clement Horst £ Co., [1911] 
 1 K. B. at p. 956, per Kennedy, L.J. ; The Parchim, [1918] A. C. 159 (prize case). See 
 Joyce V. Swann (1864), 17 C. B. (N. S.) 84, where inference was negatived. 
 
 (a) Shepherd v. Harrison (1871), L. R. 5 H. L. 116, see at p. 133, per Lord Cairns ; 
 Cahn V. Pockett, [1899] 1 Q. B., at p. 656, C. A. ; Barton Thomson & Go. v. Vigers 
 Brothers (1906), 19 Com. Cas. 175 ; distinguished on the special facts, Jordeson <& Co. v. 
 London Hardwood Go. (1813), 19 Com. Cas. 161 (agent authorised to draw for price, 
 not party to contract). Gf. Saks v. Tilley (1915), 32 T. L. R. 148, C. A. (goods and 
 bill sent together). 
 
TRANSFER OF PROPERTY (SECT. 19). 61 
 
 Illustration. 
 
 A consigns goods to B by ship, and draws on him for the price. He dis- 
 counts the bill with a bank, indorses the bill of lading in blank, and authorises 
 the bank to hand the bill of lading to B when he accepts the bill of exchange. 
 Apart from any special terms in the contract, the property in the goods is 
 transferred to B as soon as he accepts the bill of exchange (6). 
 
 This section, like the preceding sections, deals only with the transfer of the 
 property in goods as between seller and buyer, and does not affect the protection 
 afforded to innocent third parties by sect. 25 and the Factors Acts (c). 
 
 ^In a case iuthe Court of Appeal, where the previous decisions were reviewed, 
 Lord Bramwell seems to think that the seller may retain a jus disponendi, even 
 when the property has passed to the buyer ; but Cotton, L .J., sums up the law 
 as follows : " In the case of such a contract (i.e. a contract for the sale of 
 unascertained goods), the delivery by the vendor to a common carrier, or, unless 
 the effect of the shipment is restricted by the terms of the bill of lading, 
 shipment on board a ship of, or chartered for, the purchaser is an appropriation 
 sufficient to pass the property. If, however, the vendor, when shipping the 
 articles which he intends to deliver under the contract, takes the biU of lading 
 to hi^ own order, and does so not as agent, or on behalf of the purchaser, but on 
 his own behaK, it is held that he thereby reserves to himself a power of disposing 
 of the property, and that consequently there is no final appropriation, and the 
 property does not on shipment pass to the purchaser. ... If the vendor deals 
 with, or claims to retain the bill of lading, in order to secure the contract price, 
 as when he sends forward the bill of ladiug with a bUl of exchange attached, 
 with directions that the bill of lading is not to be delivered to the purchaser tiU 
 acceptance or payment of the biU of exchange, the appropriation is not absolute, 
 but until acceptance of the draft, or payment or tender of the price, is conditional 
 only, and until such acceptance or payment or tender, the property in the goods 
 does not pass to the purchaser " (d). Referring to this passage and sect. 19 (1) 
 and. (3), Sir S. Evans says, "It is well known that these portions of the Act 
 " were founded on the judgment of Cotton, L.J. " (e). 
 
 With reference to Lord Bramwell's doubt, it seems that, though the property 
 in goods may be intended to pass to the buyer, they may be delivered to his 
 agent on such terms as to prolong the right of stoppage in transitu, and in that 
 sense a limited right of disposal may be said to be reserved (/). 
 
 (6) The Prinz Adelbert, [1917] A. 0. 586, P. 0. ; of. The Derflinger No. 2, [1918] 
 118 L. T. (N. S.) 521, where the bill was not accepted till after the goods had been 
 seized as prize, and the property was held not to have been transferred ; and The 
 MiramicM (1915), 84 L. J. P. 105, 108, S. P. 
 
 (c) Oahn v. Pockett's Bristol Channel Co., [1889] 1 Q. 6. 643, 0., A. 
 
 (d) MiraWta v. Imp. Ottoman Bank (1878), 3 Ex. D., at p. 172, see at p. 170, per 
 Lord Bramwell. Gf. Exp. Banner (1876), 2 Oh. D. 278 ; Laws of England, vol. xxy., 
 p. 182. 
 
 (e) The Annie Johnson, [1918] P., at p. 163. 
 
 (/) Of. SchotsmMns v, Lancashire Bailwwy (1867), L. K. 2 Ch. App., at p. 335. 
 
62 THE SALE OF GOODS ACT, 1893. 
 
 20. Risk prima facie passes with property. — Unless otherwise 
 agreed (g), the goods remain at the seller's risk until the property 
 therein is transferred to the buyer, but when the property therein 
 is transferred to the buyer, the goods are at the buyer's risk whether 
 delivery has been made or not (h). 
 
 Provided that where delivery has been delayed through the 
 fault of either buyer or seller the goods are at the risk of the party 
 in fault as regards any loss which might not have occurred but for 
 such fault (i). 
 
 Provided also that nothing in this section shall affect the duties 
 or liabilities of either seller or buyer as a bailee [or custodier] of 
 the goods of the other party {k). 
 
 Illustration. 
 
 Furs are delivered " on approval " with invoice. They are stolen by burglars. 
 By the custom of the fur trade the goods are at the risk of the person ordering 
 them on approval. The sender can recover the invoice price from the person 
 to whom he delivered them (I). 
 
 "Custodier" is the Scotch equivalent of "bailee"; see "delivery" and 
 " fault," defined by sect. 62. The expression " might not have occurred " was 
 substituted for " would not have occurred " in the first proviso at the instance 
 of Lord Watson. It shifts the onus on to the party in fault. 
 
 Transfer of risk — " As a general rule," says Blackburn, J., " res perit domino, 
 the old Civil law maxim, is a maxim of our law, and, when you can show that the 
 
 {g) Martineau v. Kitchmg (1872), L. B. 7 Q. B. 436 ; Castle v. Flayford (1872), 
 L. B. 7 Ex. 98, at p. 100, Ex. Ch. ; Anderson v. Morice (1875), L. B. 10 C. P. 609, at 
 p. 616 ; affirmed 1 App. Gas. 713 (cargo) ; cf. Stock v. Inglis (1882), 10 App. Cas. 283 
 (f.o.b. contract) ; Groom w. Barber, [1915] 1 K. B. 316 (o.i.f. contract). 
 
 (h) Eor examples of seller's risk, see Simmons v. Swift (1826), 5 B. & C. 857 
 (stack of bark); Head v. Tattersall (1871), L. B. 7 Ex. 7, see at p. 14 (horse); 
 ElpMclc V. Barnes (1880), 5 C. P. D. 321, see at p. 326 (death of horse delivered on 
 sale or return). For example of buyer's risk, see Bugg v. Minett (1809), 11 East, 210 
 (turpentine sold by auction) ; Pragano v. Long (1825), 4 B. & C. 219 (hardware) ; 
 Tarling v. Baxter (1827), 6 B. & C. 360 (stack of hay) ; Sweeting v. Turner (1871), 
 L. B. 7 Q. B. 310 (sale of goods by auction) ; Tudor's Merc. Cases, 3rd ed., p. 308, and 
 notes ; The Parchim, [1918] A. C. 157, P. C. ; Laws of England, vol. xxv., p. 188. 
 
 (i) Martineau v. Kitching (1872), L. E. 7 Q. B. 436, at p 456; per Blackburn, J. 
 (sugar). 
 
 (fc) Cf Bead v. Tattersall and Elphich v. Barnes (cited above,' and see WieU v. 
 Dennis Brothers (1913), 29 T. L. B. 250 (pony left in possession of seller for a few 
 days— gratuitous bailee) ; Shaw v. Simmons d Sons, [1817] 1 K. B. 799 (delay in 
 delivery, good's destroyed by fire) ; Laws of England, vol.. xxv., p. 191. 
 
 {I) Bevi/ngton v. Dale (1902), 7 Com. Oas. 112. 
 
TBANSFER OF PROPERTY (SECT. 20). 63 
 
 property passed, the risk of the loss is prima facie in the person in whom 
 the property is. If, on the other hand, you go beyond that and show that 
 the risk attached to 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. . . . By the Civil law it was always considered that if there was 
 any weighing, or anything of the sort which prevented the contract from being 
 perfecta eviptio, whenever that was occasioned by one of the parties being in 
 mora, and it was his default, he shall bear the risk just as if there was emptio 
 perfecta. That is good sense and justice, though not necessary to the decison 
 of the present case " (m). 
 
 The rule of the Civil law was Mora dehiioris non debet esse creditori damnosa. 
 Pothier, in discussing it, says : " If I sell you a horse, and make default in 
 delivery, and it is struck by lightning in my stables, the loss falls on me, 
 because the accident would not have happened if I had duly delivered the 
 horse. But if the horse dies from a disease, which would have killed him in 
 any case, I am not liable " (n). The distinction drawn by Pothier has been 
 adopted by arts. 1302, 1303 of the French Civil Code. 
 
 When the seller remains in the possesssion of the goods after the property in 
 them has passed to the buyer, or when the buyer gets possession of the goods, 
 before the property passes, as in the case of goods on trial, it seems clear the 
 party in possession is in each case a bailee. But there appears to be no decision 
 defining the nature of such bailment. Pothier has discussed the position of 
 the seller at some length (o). Until the time for delivery has arrived, he must 
 use ordinary diligence in taking care of the thing sold. In contractibus in 
 quibus utriusque eontrahentis utilitas versatur, levis culpa, non etiam levissima, 
 prsestatur. But, if the buyer makes default in taking delivery, the seller is only 
 liable for dolus, which includes culpa lata or gross negligence. See, too, French 
 Civil Code, arts. 1136-1138. 
 
 Lord Blackburn's citation of the maxim Res peril domino is a Kttle mis- 
 leading as to the Roman law, because the law of sale formed an exception to the 
 general rule. By Boman law the property in goods did not pass untU delivery, 
 but as soon as the parties were agreed on the specific article, and the price, 
 there was an emptio perfecta. The risk, unless otherwise agreed, passed to the 
 buyer though the property did not. Gum autem emptio et venditio contracta sit 
 periculum, rei venditx statim, ad emptorem pertinet tametsi adhuc ea res 
 emptori tradita non sit (p). The rule of Roman law was followed in Scotland, 
 and it may be stated broadly that when the facts would show a bargain and sale 
 in England passing the property and risk, in Scotland the buyer acquired a jus 
 ad rem specificam, though not the property, and the risk would be in him. 
 Thus by different routes English and Scotch law arrived at practically the same 
 results (?). The Act now lays down a uniform rule for both countries. 
 
 (to) Martineau v. Kitching (1872), L. B. 7 Q. B., at pp. 454, 456 (sugar) ; discussed 
 and approved. The Parchim, [1918] A. C. 159, at p. 168, P. C. 
 
 (n) Contrat de Vente, No. 58 ; c/. Moyle's Sale in the Civil Law, p. 90. 
 (o) Contrat de Vente, Nos. 53-55 ; cf. Moyle's Sale in the Civil Law, p. 87. 
 (jp) Moyle's Justinian, p. 420 ; Pothier, Contrat de Vente, Nos. 307-309. 
 (2) Bell's Prin. Law of Scotland, §§ 87,88. 
 
64 THE SALE OF OOODS ACT, 1893. 
 
 This section is supplemented by the special provisions of sects. 32 (2), (3), and 
 33, post, pp. 85, 88, which deal with particular cases ; namely, goods ^ent by 
 carriers by land or sea, and inevitable deterioration due to transit. As property 
 and risk are separable, it follows that property and insurable interest may be 
 separable (r). 
 
 Accessories or accretion. — The converse of the rule resperit domino also holds 
 good, and any fruits or increase of the thing sold belong prima facie to the 
 party who has the property in it. " Any calamity befalling the goods after the 
 sale is completed must be borne by the purchaser, and, by parity of reasoning, 
 any benefit to them is his benefit, and not that of the vendor " (s). 
 
 Transfer of Title. 
 
 21. — (1.) Sale by person not the owner. — Subject to the provisions 
 of this Act (t), where goods are sold by a person who is not the 
 owner thereof, and who does not sell them under the authority or 
 with the consent of the owner, the buyer acquires no better title to 
 the goods than the seller had (u), unless the owner of the goods 
 is by his conduct precluded from denying the seller's authority to 
 sell (x). 
 
 (2.) Provided also that nothing in this Act shall affect — 
 
 (a.) The Provisions of the Factors Acts, or any enactment 
 
 (r) As to the insurable interest of seller and buyer respectively, see Anderson v. 
 Morice (1876), 1 App. Cas. 713 ; Colonial Ins. Go. v. Adelaide Mar. Ins. Co. (1886), 12 
 App. Cas., at p. 135; Chalmers' Marine Insurance Act, 1906, notes to §§ 5 and 6. 
 
 (s) Sweeting v. Turner (1871), L. R. 7 Q. B. 310, at p. 313, per Blackburn, J. (sale 
 by auctiop) ; French Civil Code, arts. 1614, 1615 ; Dig. 19, 1, 18 ; cf. The Vindohala 
 (1887), 13 P. D., at p. 47,:and cf. Laws of England, vol. xxv., pp. 171, 172, as to goods 
 having a potential existence. 
 
 (t) See sects. 22 to '2,5, 'post, pp. 67-72. 
 
 (u) For principle see City Bank v. Barrow (1880), 5 App. Cas., at p. 677, H. L. ; 
 Colcmial Bank v. WMnney (1886), 11 App. Cas. 426, at pp. 435, 436, per Lord Blackburn. 
 For iUustrations, see Cooper v. Willomatt (1845), 1 C. B. 672 ; 14 L. J. C' P. 219 
 (fraudulent sale by bailee) ; Lee v. Bayes (1856), 18 C. B. 599 ; 25 L. J. C. P. 249 
 (stolen goods sold by auction) ; Consolidated Co. v. Curtis d Son (1892), 1 Q. B. 495, 
 498 (goods included in bill of sale sold by auction) ; the TeUgrapho (1871), Ii. K. 3 
 P. C, at p. 685 (goods taken piratically) ; Hollins v. Fowler (1875), L. B. 7 H. L. 757 
 (sale by broker) ; Gundy v. Liiidsay (1878), 3 App. Cas. 459 (goods obtained by fraud 
 and resold) ; Helby v. Matthews, [1895] A. C. 471 (wrongful disposition by hirer under 
 hire purchase agreement) ; cf. Indian Contract Act, 1872, s. 108. 
 
 (s) Pickard v. Sears (1837), 6 A. & E. 469 ; Gregg v. Wells (1839), 10 A. & E. 90 ; 
 Freeman v. Cooke (1848), 2 Exch. 654 ; 18 L. J. Ex. 114 ; Knights v. Wiffen (1870), 
 L. R. 5 Q. B. 660 ; cf. Seton v. Lafone (1887), 19 Q. B. D. 68, C. A. ; Weiner v. Gill, 
 [1905] 2 K. B. at p. 181, and [1906] 2 K. B., at p. 582, C, A. ; and note, ante, p. 10, 
 
TRANSFER OF TITLE (SECT. 21). 65 
 
 enabling the apparent owner of goods to dispose of them as if 
 he were the true owner thereof iy) ; 
 (6.) The Yadidity of any contract of sale under any special 
 common law or statutory power of sale, or under the order of 
 a court of competent jurisdiction (a). 
 
 Illustrations. 
 
 (1) A, a timber merohant, instructs the dock company with whom his 
 timber is warehoused to accept delivery orders signed by his clerk. The clerk 
 has a limited authority to sell to known customers. The clerk in an assumed 
 name sells some of the timber to B, who knows nothing of A, or of the clerk 
 under his real name. The clerk carries out the fraud by giving the dock 
 company delivery orders into his assumed name, and then in that name giving 
 delivery orders to B. A can recover the value of the timber from B (6). 
 
 (2) The high bailiff of a County Court seizes certain goods under a warrant 
 of execution. X, who is the true owner, claims them, but does not make the 
 required deposit. The high bailiff sells them, and the price is duly paid into 
 court. The purchaser acquires a good title under sect. 156 of the County 
 Courts Act, 1888 (c). 
 
 (3) A cotton broker innocently buys certain bales of cotton from a person 
 who has fraudulently obtained them, thinking they may suit an old customer. 
 He afterwards seUs and delivers the cotton to that customer. He is liable to 
 the true owner for the conversion of that cotton {d). 
 
 (y) See the Factors Act, 1889, post, 146 ; and the Paotora (Scotland) Act, post, 
 p. 162 ; and see the Bills of Lading Act (18 & 19 Vict. c. Ill) ; the Bankruptcy Act, 
 1914 (4 & 5 Geo. 5, c. 59), s. 38 (reputed ownership), and for certain purposes the Bills 
 of Sale Act, 1878 ; cf. Indian Contract Act, 1872, s. 108. 
 
 (a) As to pawnee, see Martin v. Beid (1862), 31 L. 0. J. P. 126, at p. 128, per 
 Willes, J.; Pigot v. Cubley (1864), 83 L. J. C. P. 184. As to carrier, see Oreat 
 Northern Railway v. SwiffieU (1874), L. R. 9 Ex. 152 (goods not claimed) ; 
 Sims & Co. V. Midla/nd Railway (1912), 18 Com. Gas. 44 (perishable goods). As to 
 distrainor, see Woodfall's Landlord and Tenant, ed. 19, p. 570. As to sheriff, see 
 Doe V. Donston (1818), 1 B. & Aid. 230 (sale after expiration of ofB.ce) ; cf. Batchelor v- 
 Vyse (1884), 4 M. & So. 552 (excessive sale) ; Manders v. Williams (1849), 4 Exch. 889 ; 
 18 L. J. Ex. 437 (goods on sale or return). As to master of ship, Page v. Cowasjee 
 (1866), L. R. 1 P. C, at p. 144; and Kaltenbach v. Mackenzie (1878), 3 0. P. D., at 
 p. 473. As to order of Court, see R. S. C, Or. L. rule 2. As to goods left with inn- 
 keeper, see the Innkeepers Act, 1878 (40 & 41 Vict. u. 38) and Chesham v. Beresford 
 Hotel (1913), 29 T. L. R. 584. As to executor or administrator, see Williams on 
 Executors, tit. " Sale," and Attenborough v. Solomon, [1914] A. C. 76, 63, H. L. As 
 to trustee in bankruptcy, see as. 55, 56 of the Bankruptcy Act, 1914 (4 & 5 Geo. 5, 
 o. 69). 
 
 (6) Fa/rguharson- Brothers v. King & Co., [1902] A. C. 325, H. L. 
 
 (c) Goodlock V. Cousins, [1897] 1 Q. B. 558, 0. A. 
 
 (d) Holms V. Fowler (1875), L. B. 7 H. L. 157, but note sect. 28 post, as to 
 voidable titles, 
 
 C.S.G. F 
 
66 THE SALE OF GOODS AGT, 1893. 
 
 Sub-sect. (1). — " The general rule of |law," says Willes, J., " is undoubted, that 
 no one can transfer a better title than he himself possesses. Nemo dat quod nan 
 habet " (e). As to seller's warranty of title, etc., see sect. 12, ante. 
 
 In a case under the Factors Act, 1842, Blackburn, J., says : " At common 
 law a person in possession of goods could not confer on another, either by sale 
 or by pledge, any better title to the goods than he himseM had. To this 
 general rule there was an exception of sales in market overt (sect. 22), and an 
 apparent exception where the person in possession had a title defeasible on 
 account of fraud (sect. 23, post, p. 69). But the general rule was that, to make 
 either a sale or a pledge valid against the owner of the goods sold or pledged, it 
 must be shown that the seller or pledger had authority from the owner to^ell or 
 pledge, as the case may be. If the owner of the goods had so acted as to clothe 
 the seller or pledger with apparent authority to sell or pledge, he was at 
 common law precluded as against those who were induced bond fide to act on the 
 faith of that apparent authority, from denying that he had given such an 
 authority, and the result' as to them was the same as if he had really given it. 
 But there was no such preclusion as against those who. had notice that the real 
 authority was limited " (/). 
 
 The rule of the civil law seems to have been in accord with the common law. 
 Nemo plus juris in alium, transferre potest quam ipse habet ; or as Ulpian puts 
 it, with special reference to the law of sale, Bern, alienam, distrahere quern, posse 
 nulla dubitatio est nam emptio est et venditio ; sed res emptori auferri potest. 
 See Pothier, Contrat de Vente, No. 7. By art. 1599 of the French Civil Code, 
 " La vente de la chose d'autrui est nuUe " ; but this provision must be read 
 subject to art. 2279, which provides that, " En fait de meubles possession vaut 
 titre." There are special provisions about lost or stolen goods, but, with these 
 exceptions, it seems that an innocent purchaser of goods is protected. 
 
 No title by finding. — The finder of lost goods acc[uires no title as against the 
 true owner, and can give none except by sale in market overt. " If a person 
 leaves a watch or a ring on a seat in the park or on a table at a cafe, and it 
 ultimately gets into the hands of a bond fide purchaser, it is no answer to the 
 true owner to say that it was his carelessness, and nothing else, that enabled the 
 finder to pass it off as his own " (g). The saying that " findings are keepings '' 
 is not a maxim of the law. A person who finds goods and converts them to his 
 own use, having reason to believe that the owner can be discovered, may be 
 guilty of larceny (h). 
 
 Sub-sect. (2). — Special power. — One person is sometimes invested by law with a 
 
 (e) Whistler v. Forster (1863), 32 L. J. C. P. 161, at p. 164 (cheque). 
 
 ( / ) Cole v. North Western Bank (1875), L. B. 10 C. P. 354, at p. 862 ; approved 
 Colonial Bank v. Whinney (1886), 11 App. Oas. 426, at pp. 435, 436 (reputed owner- 
 ship) ; cf.iCity Bank v. Barrow (1880), 5 App. Cas., at p. 677, as to Roman and Old 
 Prenoh law, and Canadian law. 
 
 (g) Farquharson Brothers v. King & Co., [1902] A. C, at p. 336. But a finder may 
 mamtain trover against a third person, Boscoe, N. P., ed. 17, p. 958. 
 
 {h) B. V. Thurborn (1849), 1 Den. C. C. 387 ; as to what amounts to conversion 
 by finder, see Hollins v. Fotoler (1875), L. II. 7 H. L. at p. 766. 
 
TRANSFER OF TITLE (SECT. 22). 67 
 
 special power to dispose of another person's property. For instance, a pawn- 
 brokerlmay sell unredeemed pledges ; and a landlord, who has duly distrained for 
 rent, may sell the goods so distrained. So, too, the master of a ship may, in case 
 of necessity, dispose of the ship and cargo. See the authorities collected in the 
 footnote to (2) (6), ante, p. 65. 
 
 Co-owners.— The law relating to co-owners, who are not partners, is rather 
 obscure. Probably, a co-owner, in the absence of estoppel or authority from the 
 other co-owners, could only transfer his own share (i). If one co-owner sells 
 and retains the whole price, the remedy of the others at law against him is 
 doubtful, unless the sale confers a good title to the whole. If co-owners cannot 
 agree as to the possession or use of the goods owned in common the only remedy 
 is to apply in equity for an injunction or for a receiver and sale (fe). In a recent 
 case A sold a half -share in a gold snufl-box to B, on the terms that A was to 
 retain possession till sale on joint account, and afterwards handed the box to B 
 to sell it at Christie's. B, instead of selling, deposited the box with H, to 
 whom he owed money. Held that A could recover the box from H (I). 
 
 It seems that if two or more persons agree to purchase goods on joint 
 account, notice to the one who effects the purchase of any defect in title of 
 the seller, affects the others also (m). " A partner, co-adventurer, agent, or any 
 other person in any position of trust must make no profit out of his position 
 without the knowledge of his principals, and in particular cannot sell his own 
 goods to his principals without fully disclosing his own personal interest in the 
 matter " (»). As to co-adventurers in Scotland, see Green's Encyclopsedia of 
 Scots Law, tit. " Co-adventurers." 
 
 22. — (1.) Market overt. — Where goods are sold in market overt, 
 according to tlie usage of the market, the buyer acquires a . good 
 title to the goods, provided he buys them in good faith and with- 
 out notice of any defect or want of title on the part of the 
 seller (o). 
 
 (i) Cf. Ex p. Barnett, Re Tamplin (1890), 7 Morrell, 70. As to partners, who 
 primd facie are agents for each other, see the Partnership Act, 1890 (S3 & 54 Vict, 
 e. 39) ss. 5 and 6. Note the provisions as to joint owners in sect. 108 of the Indian 
 Contract Act, 1872. 
 
 {k) Lindley on PartnersMp, 7th ed., pp. 86-38. There are very special conditions 
 as to ships. 
 
 (Z) Nyberg v. Handelaar, [1902] 2 Q. B. 202, C. A. 
 
 (to) Oppenheimer v. Frazer, [1907] 2 K. B. 60, 76, C. A. 
 
 (n) Kuhlivz v. Lambert Bros., Ltd. (1913), 18 Com. Cas. 217, at p. 226 (oo- 
 adventure in sale of coal to Austrian Government). 
 
 (o) The Case of Market Overt (1596), 5 Coke R. 83 b ; Tudor's Merc. Oases, 3rd ed., 
 p. 274, and notes ; Crane v. London Dock Co. (1864), 33 L. J. Q. B. 224 ; see pet 
 Blackburn, J., at p. 229, as to the usage of the market ; cf. Vilmont v. Bentley (1886), 
 18 Q. B. D. 322, at p. 331. Cf. Law Quarterly Review, 1915, p. 270 as to the City o£ 
 London. 
 
68 THE SALE OF GOODS ACT, 1893, 
 
 (2.) Nothing in this section shall affect the law relating to the 
 sale of horses (p). 
 
 (3.) The provisions of this section do not apply to Scotland {cj). 
 
 SiA-sed. (1). —See " good faith " defined by sect. 62. The rules of market overt 
 do not apply in Soothmd or Wales (r), or the United States, and in England 
 they only apply to a limited class of retail transactions. All shops in the city 
 of London are market overt, for the purposes of their own trade, but a wharf in 
 the city is not market overt (s), and a sale by sample is not within the custom, 
 because the whole transaction must take place in the open market, and not 
 merely the formation of the contract (t). So, too, a sale of jewellery to a 
 tradesman in his showroom is not within the custom (u). Nor is the sale of a 
 stolen watch in a first floor auction room where unredeemed pledges are sold 
 periodically (x). Outside the city of London markets with the custom of market 
 overt may exist either by grant or prescription, but it seems that the custom 
 does not apply to a market established by a local Act (y). 
 
 Sect. 24 is not in the nature of an exception or proviso to this section. 
 When stolen goods are sold in market overt, the property passes to the buyer, 
 though on the conviction of the thief the property revests in the original owner by 
 force of the statute («). Hence an intermediate purchaser incurs no liability (a) ; 
 so, again, the buyer who is dispossessed cannot charge for the keep of the 
 goods, for they were his own till the statute revested them in the original 
 owner (6). 
 
 Suh-sect. (2). — The 2 & 3 Phil, and Mar. o. 7 (an Act against the buying of 
 stolen horses) and the 31 Eliz. c. 12 (an Act to avoid horse stealing) lay down 
 complicated regulations for the sale of horses in fairs or markets. These 
 regulations are never observed in practice, the effect therefore of the statutes is 
 
 (p) See the 2 & 3 Phil. & Mar. o. 7, and 31 Eliz. c. 12 ; also Moran v. Pitt (1873), 
 42 L. J. Q. B. 47. The practical effect of these Acts is to take horses cut of the rule 
 as to market overt. 
 
 (2) See Todd v. Armour (1882), 9 E. 902, as to conflict of laws. For Scottish 
 cases as to horses, see Green's Encyclopcedia of Scots Lmv, tit. " Horses." 
 
 (r) See 34 & 35 Hen. 8, c. 26, sect. 47. 
 
 (s) Wilki/nson v. King (1809), 2 Camp. 335. 
 
 (t) Crane v. London Dock Co. (1864), 83 L. J. Q. B. 224 (drugs sold by sample). 
 
 (w) Sa/rgreave v. Spimk, [1892] 1 Q. B. 25. 
 
 (x) Clayton v. Leroy (1911), 104 L. T. 419, reversed on another ground 2KB' 
 [1911] 1031, C. A. ' ■ •> 
 
 {y) Cf. Moyce v. Newington (1878), 4 Q. B. .T)., at p. 34, per Ooekburn, O.J. ; and 
 see Lee v. Bayes (1856), 18 C. B. 599; 25 L. J. C. P. 249 (sale by auction at horse 
 repository). 
 
 (0) The Larceny Act, 1916 (6 & 7 Geo. 5, c. 50), s. 45. Cf. York Street Flax 
 Spinnmg Co. v. Harbison, [1911] 45 Irish L. T. B. 248 ; and see note, post, p. 71. 
 
 (a) Horwoodiv. Smith (1788), 2 T.R. 750 ; cf. Vilmont v. Bentley (1886), 18 Q B B 
 322, at p. 331. - ' ■ • v 
 
 (6) Walker v, Matthews (1881), 8 Q. B. D. 109. 
 
TBANSFER OF TITLE (SECT. 23). 69 
 
 to remove horses out of the category of things which can he sold ia market 
 overt. When the Sale of Goods Bill left the House of Lordslit was proposed to 
 -repeal these Acts, reproducing their provisions in simpler form in a Schedule- 
 In the Select Committee in the Commons it was decided to abolish the anomalous 
 rule of sale in market overt. It seemed absurd that the right to a stolen watch 
 should depend on whether it had been sold in the Strand or in Fleet Street. 
 In Committee of the whole House the rule as to sales in market overt was 
 restored, but the schedule was not re-instated. Consequently the Acts as to 
 the sale of horses had to be omitted from the repeals. 
 
 23. Sale under voidable title. — When the seller of goods has a 
 voidable title thereto, but his title has not been avoided at the time 
 of the sale, the buyer acquires a good title to the goods, provided he 
 buys them in good faith and without notice of the seller's defect of 
 title (e). 
 
 Illustration. 
 
 B induces A to send him jewellery on appro, by falsely representing that he 
 has a good customer for it. He then pledges the goods with C. B then 
 induces A to invoice the goods to him, representing that G req[uires credit. — A 
 cannot avoid the sale to B and recover the goods from C unless he can affect 
 C with notice of the fraud (d). 
 
 See " good faith " defined by sect. 62, post, p. 141. Many of the cases 
 covered by this section would also fall within sect. 25, post, p. 72. 
 
 Where goods have been obtained by means amounting to larceny, the thief 
 has no title, and can give none, except by selling in market overt ; but where 
 goods have been obtained by fraud the person who has so obtained them may 
 either have no title at all, or a voidable title, according to the nature of the 
 transaction. If the nature of the fraud be such that there never was a contract 
 between the parties, as, for instance, if A obtains goods from B by falsely 
 pretending to be X., then the person who so obtains the goods has no title at 
 all, and can give none (e). 
 
 (c) White V. Garden (1851), 10 C. B. 919 ; 20 L. J. 0. P. 166 ; Kingsford v. Merry 
 (1856), 26 L. J. Ex. 166, reversed on another ground, 26 L. J. Ex. 33; Peasey. 
 Gloahec (1866), L. R. 1 P. C. 219, at pp. 229, 230 ; Cundy v. Lindsay (1878), 3 App. 
 Cas. 459, at p. 464, per Lord Cairns ; Pollock on Possession, pp. 203, 204. 
 
 (d) Whitehorn Brothers v. Davison, [1911] 1 K. B. 463, 0. A. As to seller's right 
 to avoid a fraudulent purchase as against the buyer's trustee in bankruptcy, see 
 Tilleyv. Bowman, Ltd., [1910] 1 K. B. 745. 
 
 \e) Siggons v. Burton (1857), 26 L. J. Ex. 342 ; Hardmann v. Booth (1863), 
 32 L. J. Ex. 105 ; Cundy v. Lindsay (1878), 3 App. Oas. 459; Pollock on Possession, 
 p. Ill ; Ex p. Barnett (1876), 3 Oh. D. 123 ; c/. Ex p. Ward, [1905] 2 K. B. 465 (repudia- 
 tion by seller of fraudulent contract after notice of act of bankruptcy by buyer). 
 But in Wool/ Phillips v. Brooks (1919), 24 Com. Cas. 263, Horridge, J., refining on 
 
70 THE BALE OF GOODS ACT, 1893. 
 
 But if the person defrauded really intended to part with the property in 
 and possession of the goods, although induced to do so by fraud, there is a 
 contract which he may affirm or disaffirm at his election (/). Hence, the person 
 who obtains the goods has a voidable title, and can give a good title to an 
 iitnocent purchaser while the matter is in suspense (g). " If," says Lord Cairns, 
 " the chattel has come into the hands of the person who professed to sell it, by a 
 de facto contract, that is to say, a contract which has purported to pass the 
 property to him from the owner of the property, then the purchaser will obtain 
 a good title, even although afterwards it should appear that there were circum- 
 stances connected with that contract which would enable the original owner of 
 the goods to reduce it, and set it aside " (h). As to the distinction between 
 larceny by trick and false pretences, see note to next section. 
 
 24. — (1.) Revesting of property in stolen, &c., goods, on conviction 
 of offender. — Where goods have been stolen and the offender is 
 prosecuted to conviction, the property in the goods so stolen revests 
 in the person who was the owner of the goods, or his personal 
 representative notwithstanding any intermediate dealing with them, 
 whether by sale in market overt or otherwise (i). 
 
 (2.) Notwithstanding any enactment to the contrary, where goods 
 have been obtained by fraud or other wrongful means not amounting 
 to larceny (k), the property in such goods shall not revest in the 
 person who was the owner of the goods, or his personal representa- 
 tive, by reason only of the conviction of the offender. 
 
 (3.) The provisions of this section do not apply to Scotland. 
 
 The rule, that on the conviction of the thief the property in stolen goods 
 revested in the original owner, is as old as the 21 Hen. 8, c. 11, which was 
 
 the general rule, held that there is a de facto contract if A, pretending to be X, gets 
 goods from B in a personal interview, for the person contracted with is then " identified 
 by sight and hearing" — aliter it seems if A had represented himself as X's partner, 
 or had communicated with B by writing or telephone. The real question is whether the 
 parties to the contract were ad idem, and the point may perhaps be further considered, 
 
 (/) Clough v. Land, and N. W. Bailtoay (1871), L.'B. 7 Ex. 26; cf, Morrison v. 
 Univ. Ins. Co. (1873), L. K. 8 Ex., at pp 203, 204. 
 
 (9) Croft V. Lumley (1856), 6 H. of L. Gas., at p. 705, Bramwell, B. 
 
 (h) Gundy v. Lindsay (1878), 3 App. Gas., at p. 464. 
 
 (i) Horwood v. Smith (1788), 2 T. E. 750 ; Scattergood v. Sylvester (1850), 15 Q. B. 
 506; 19 L. J. Q. B. 447. 
 
 (h) It is not easy to distinguish larceny by trick from obtaining goods by false 
 pretences ; see per Moulton, L. J., and Kennedy, L.J., in OppmTieimer v. Frazer, [1907J 
 2 K, B. 50, C. A., at pp. 72, 77. 
 
TRANSFER OF TITLE (SECT. 24). 71 
 
 perhaps declaratory. The effect of sect. 100 of the Larceny Act, 1861 (24 & 25 
 Vict. c. 96), was to extend the rule to all ofEences under that Act. The operation 
 of the extended rule to cases where goods had been obtained by false pretences, 
 but under a de facto contract, was anomalous, and was regretted by the Lords 
 in Bently v. Vilmont (I). Sub-sect. (2) was accordingly introduced as an amend- 
 ment in Committee. Its effect was to restore the old state of the law and to 
 override sect. 100 of the Larceny Act, 1861 (and sect. 27 (3) of the Summary 
 Jurisdiction Act, 1879), so far as it related to offences other than offences 
 amounting to larceny. 
 
 Sect. 100 of the Act of 1861 is now repealed by the Larceny Act, 1916 (6 fe 7 
 Geo. 5, 0. 50) and re-enacted in different terms by sect. 45 of the latter Act. 
 The provisions of the Sale of Goods Act are expressly saved, and it is enacted 
 that where goods have been obtained by fraud or other wrongful means not 
 amounting to stealing, the property in the goods shall not revest in the person 
 who was the owner by reason only of the conviction of the offender, see 
 post, p. 172. 
 
 When goods are obtained by a fraudulent trick, it is not always easy to 
 distinguish false pretences from larceny by trick. The test seems to be this : 
 If, as the result of the trick, the person defrauded intends to part with both the 
 possession and the property in the goods, the offence is false pretences ; but if 
 he is induced merely to part with the possession of the goods, and does not 
 intend to part with his property therein, the offence is larceny by trick (m). 
 
 By sect. 6 of the Criminal Appeal Act, 1907 (7 Edw. 7, c. 23), in the case of 
 convictions on indictment, the operation of this section (unless the Judge 
 otherwise orders) is suspended for ten days or pending the determination of the 
 appeal, if an appeal is brought. If the conviction is quashed the section does 
 not take effect, see post, p. 171. 
 
 By sect. 62 of this Act, jpos^, p. 136, the expression " goods " does not include 
 money. But a rare current coin, e.g. a five-pound gold piece, bought as a 
 curiosity, may be treated as goods and not as money (n). 
 
 ~It is to be noted that the rule laid down in this section is not strictly an 
 exception to the rule laid down in sect. 22 {ante, p. 67). By a sale in market 
 overt, the property in the goods reaUy vests in the buyer, though on conviction 
 of the offender it revests in the original owner by force of the statute. Hence, 
 if the goods pass through several hands, intermediate parties ai"e not guilty of a 
 conversion. As a general rule, no one can give a better title to goods than he 
 has got, see sect. 21, ante. This section is only required in the exceptional 
 
 {I) Vilmont v. Bentley (1886), 18 Q. B. D. 322, 0. A. (merchandise); affirmed 
 Bentley v. Vilmont (1887), 12 App. Gas. d71, overruling Moyce v. Newington (1878), 
 i Q. B. D. 32 (sheep obtained by false pretences). 
 
 (to) Whitehom Brothers v. Damson, [1911] 1 K. B. 468, 0. A., see at pp. 479 and 
 485 ; as to the proper direction to the jury when larceny by trick is charged, see 
 
 B. V. miliard (1918), 9 C. 0. A. Rep. 171 ; cf. Mehta v. Sutton (1918), 30 T. L. B. 17, 
 
 C. A. (larceny by trick in France, subsequent pledge in England) ; and see generally 
 Archbold, Cri/m. Plead, and Evidence, ed. 25, p. 499. 
 
 (n) Moss V. Hancock, [1899] 2 Q. B. 111. 
 
72 THE SALE OF QOOI)S ACT, 1893. 
 
 cases where a good title to stolen goods is obtained by purchase in market overt 
 " or otherwise," e.g. by a purchase abroad, valid according to the lex lod. In 
 Payne V. Wilson it was held under sect. 2 of the Factors Act, 1889, that a title 
 to stolen goods was paramount to the right of restitution under this section, 
 but on appeal the judgment was abandoned on the ground that the facts did 
 not bring the case under the Factors Act (o). 
 
 Sect. 45 of the Larceny Act, 1916 (post, p. 172), enables the convicting 
 Court to make an order for restitution ; but, as the effect of the statute is to 
 revest the property, the original owner has his ordinary legal remedies without 
 resorting to this special one. 
 
 By art. 2279 of the French CivU Code, lost or stolen goods may be recovered 
 by the true owner at any time within three years, but by art. 2280, if the actual 
 possessor obtained them at a public auction or by a sale in the ordinary way of 
 business, the original owner can only get them back on paying the possessor 
 the sum he gave for them. 
 
 25. — (1.) Seller in possession after sale. — Where a person, having 
 sold goods, continues or is in possession of the goods, or of the 
 documents of title to the goods the delivery or transfer by that - 
 person, or by a mercantile agent acting for him, of the goods oii 
 documents of title under any sale, pledge, or other disposition 
 thereof, to any person receiving the same in good faith and without 
 notice of the previous sale, shall have the same effect as if the 
 person making the delivery or transfer were expressly authorised 
 by the owner of the goods to make the same. 
 
 (2.) Buyer in possession, — Where a person, having bought or 
 agreed to buy goods, obtains, with the consent of the seller, 
 possession of the goods or the documents of title to the goods, the 
 delivery or transfer by that person, or by a mercantile agent acting 
 for him, of the goods or documents of title, under any sale, pledge, 
 or other disposition thereof, to any person receiving the same in 
 good faith and without notice of any lien or other right of the 
 original seller in respect of the goods, shall have the same effect as 
 if the person making the delivery or transfer were a mercantile 
 agent in possession of the goods or documents of title with the 
 consent of the owner (p). 
 
 (o) Payne v. Wilson, [1895] 1 Q. B. 653, reversed, [1895] 2 Q. B. 537, 0. A. (goods 
 under hire-puiphase agreement). 
 
 (p) Cf. Bradley v. Bcmsay & Co. (1912), 106 L. T. 771, 0. A. (goods on appro., 
 efiects of consent judgment), and note that a person who has an option, to buy is not 
 a person who has agreed to buy ; Belsize Motor Supply Co. v. Cox, [1914] 1 K. B. 244. 
 
TRANSFER OF TITLE (SECT. 25). 73 
 
 (3.) In this section the term " mercantile agent " has the same 
 meaning as in the Factors Acts. 
 
 Ill^ls^ra^ions. 
 
 (1) A sells certain copper to B, forwarding' biU of lading indorsed in blank, 
 and bill of exchange for acceptance. B, who is insolvent, does not accept the 
 bill of exchange, but transfers the biU of lading to X in fufilment of a contract 
 to supply him with copper. X in good faith pays the price. A cannot stop the 
 copper in transitu (q). 
 
 (2) A delivers a motor cab to B under a hire-purchase agreement. The 
 hire amounts to £374 payable by 24 monthly instalments, and B may purchase 
 the cab at any time within the two years by paying a further sum of £100. B 
 pledges the cab with C, being at the time £58 in arrears with his instalments. 
 A can sue C for the conversion of the cab, for B is not a person who has " agreed 
 to buy " the cab, he has mex-ely an option to purchase (r). 
 
 (3) B agrees to buy a plot of land from A, and also a motor car if his 
 solicitor approves the title to the land. B gets the motor car, does not pay for 
 it, but sells it to a bonafide purchaser. Subsequently B's solicitor disapproves 
 the conditions of sale of the land. The purchaser of the motor car gets a good 
 title thereto, for B " agreed to buy it " (s). 
 
 By sect. 62, post, p. 135, " Factors Acts " means the Factors Act, 1889, and 
 the Factors (Scotland) Act, 1890, which are set out, post, pp. 146-162, and 
 " document of title " has the same meaning as in those Acts: For definitions 
 of " documents of title " and " mercantile agent " by the Factors Acts, see post, 
 p. 147. As to resale by " unpaid seller " see sect. 48 (2), post. Though an 
 option to buy does not come within sub-sect. (2), a conditional agreement to buy 
 does come within it (t) . 
 
 This section reproduces, with a modification (w), sects. 8 and 9 of the 
 Factors Act, 1889. See post, pp. 156, 157, where the effect of these provisions 
 is considered. 
 
 In a case where wine stored in a warehouse was sold, and the seller after- 
 wards pledged the wine to the warehouseman, who had no notice of the sale, 
 North, J., held that the warehouseman acquired no title under sub-sect. (1), 
 
 (g) Cdhn\. Pockett's Bristol Channel Co., [1899] 1 Q. B. 6i3, C. A. 
 
 (r) Belsize Motor Supply Co. v. Cox, [1914] 1 K. B. 244. As C has an interest in 
 the cab the measure of damage is not the fuU value, but only the arrears and purchase 
 money. Distinguish WMteley v. Bill, [1918] 2 K. B. 808, 0. A., where a hire-purchase 
 agreement, before default, was held to be assignable. 
 
 (s) Ma/rten v. Whale, [1917] 2 K. B. 480, C. A. 
 
 (t) lUd. 
 
 (u) i.e. after " sale, pledge, or other disposition thereof," in sub-sects. (1) and (2) 
 the further words, " or under any agreement for sale, pledge, or other disposition 
 thereof," are omitted. The change was made in the Lords Committee. 
 
74 TEE SALE OF GOODS ACT, 1893. 
 
 for as between the particular parties, the seller was not in possession when he 
 efBected the pledge (a;). 
 
 It was originally intended to repeal the sections which are here reproduced, 
 but they were omitted from the repeals at a late stage for future consultation. 
 
 26.— (1.) Effect of writs of execution.— A writ of fieri facias or 
 other writ of execution against goods shall bind the property in 
 the goods of the execution debtor as from the time when the writ 
 is delivered to the sheriff to be executed ; and, for the better 
 manifestation of such time, it shall be the duty of the sheriff, 
 without fee, upon the receipt of any such writ to endorse upon 
 the back thereof the hour, day, month, and year when he received 
 the same. 
 
 Provided that nonsuch writ shall prejudice the title to such 
 goods acquired by any person in good faith and for valuable con- 
 sideration, unless such person had at the time when he acquired his 
 title notice that such writ or any other writ by virtue of which th^ 
 goods of the execution debtor might be seized or attached had been 
 delivered to and remained unexecuted in the hands of the 
 sheriff (y). 
 
 (2.) In this section the term "sheriff" includes any officer 
 charged with the enforcement of a writ of execution (z). 
 
 (3.) The provisions of this section do not apply to Scotland. 
 
 The first paragraph of this section reproduces sect. 15 (a) of the Statute of 
 Frauds (29 Car. 2, c. 3), with the addition that the sheriff is required to in- 
 dorse the hour on the writ, but this accords with the practice. The second 
 paragraph reproduces sect. 1 of the Mercantile Law Amendment Act, 1856 
 (19 & 20 Vict. c. 97). Both these enactments are repealed, see post, p. 145. 
 
 It has been held that the words, " shall bind the property iu the goods," do 
 not prevent the property from passing by the sale, but constitute the execution 
 a charge upon the goods (6). 
 
 The registration of a Us pendens does not affect goods (c). 
 
 (aj) Nicholson v. Harper, [1895] 2 Ch. 415. 
 
 (y) As to the origin of this provision, see 2nd Beport of the Mercantile Law 
 Commission, 1855, p. §. 
 
 (z) Of. the definition of " sheriff " in s. 167 of the Bankruptcy Act, 1914 (4 & 5 
 Geo. 5, c. 59). 
 
 (a) Sect. 15 of the Eevised Edition is commonly cited as sect. 16. 
 
 (6) Woodland v. Fuller (1840), 11 A. & E. 849 ; see at p. 867. 
 
 (c) Wigram v. Buckley, [1894], 3 Oh., at p. 492, C. A. 
 
TRANSFER OF TITLE (SECT. 26). 75 
 
 As to practice, see E. S. C, Ord. XLIII. and notes in Annual Practice. 
 
 County CouTts. — In the application of this section to County Courts, where 
 the high bailifE corresponds with the sheriff, "the time when the writ is 
 delivered to the sheriff " must be construed as meaning the time when, applica- 
 tion is made to the registrar for the writ, if the registrar and high bailifE (as 
 is usually the case) be the same person (d). 
 
 (d) Murgatroyd v. Wright, [1907] 2 K. B. 333. As to execution issued from one 
 County Court to another, see Birstall Candle Co. v. Daniells, [1908] 2 K. B. 254. 
 
( 76 ) 
 
 PART III. 
 
 Perfoemance of the Contract. 
 
 27. Duties^ of seller and buyer. — It is the duty of the seller to 
 deliver the goods, and of the buyer to accept and pay for them, in 
 accordance with the terms of the contract of sale (a). 
 
 See " delivery " defined, post, p. 134. " In every contract of sale," says 
 Watson, B., " there is involved a contract on the one side to accept, and on the 
 other to deliver.'' " If," says Martin, B., in the same case, " one buys goods of 
 another in the possession of a third party, the vendor undertakes that they shall 
 be delivered in a reasonable time. ... If I buy a horse of you in another man's 
 field, it is part of the contract that if I go for the horse I shall have it " (6). 
 The general obligation to deliver may, however, be modified by the terms of the 
 contract. As Lord Blackburn says, there is no rule of law to prevent the 
 parties from making whatever bargain they please (c). Thus, where the seller 
 gives the buyer a delivery order for the goods it may be a condition that the 
 order should be given up to the warehouseman before the buyer can get the 
 goods (d). Again, a man with his eyes open may buy the chance of obtaining 
 goods and not the goods themselves ; see sect. 5 (2), ante, p. 25 (sale of expectancy), 
 and sect. 12, ante, p. 38 (warranty of title). French law, like Civil Law, puts 
 a stricter ipterpretation on the general obligation of the seller to deliver than 
 English law does (e). Whether the seller be the owner of the goods or not. 
 
 (a) Buddie v. Green (1857), 27 L. J. Ex. 33 (slates at a wharf) ; Woolfe v. Home 
 (1877), 2 Q. B. D. 355 (sale by auction) ; French Civil Code, arts. 1603, 1650. 
 
 (6) Buddie v. Green, supra ; cf. Wood v. Baxter (1883), 49 L. T. (N. S.) 45. 
 "Whichever party," says Lord Halsbury, "was the actor, and is complaining ol 
 a breach of contract, is bound to show as a matter of law that he has performed all 
 that was mcident to his part of the concurrent obligations," Forrest v, Avamayo 
 (1900), 9 Asp. Mar. Cas. 134, C. A. 
 
 (c) Calcutta Go. v. Be Mattos (1863), 32 L. J. Q. B., at p. 328. See the passage 
 cited at length, post, p. 189 ; and see per Lord Esher in Honck v. Muller (1881), 7 
 Q. B. D., at p. 103, C. A. 
 
 {d) Bartlett v. Holmes (1853), 22 L. J. C. P. 182 ; see, too, Salter v. Woollams 
 (1841), 2 M. & Gr. 650, as explained in Benjamin on Sale, 5th ed., p. 693; Bagueley 
 V. Hawley (1867), L. R. 2 C. P. 625, which is of doubtful authority (boiler set in 
 brickwork). 
 
 (e) Pothier, Contrat de Vente, Nos. 42-48 ; French Civil Code, arts. 1603 et seq. 
 
PERFORMANCE OF THE CONTRACT (SECT. 28). 11 
 
 he is bound to deliver. Haotenus tenetur id rem em/ptori habere liceat non etiam 
 ut ejus faciat. 
 
 As sale is a consensual contract, the parties may by agreement make the 
 price payable how, when, and where they please ; and when the time of payment 
 arrives, the parties may agree that the debt shall be discharged by any means 
 which amount to an accord and satisfaction. See further note to sect. 49. 
 
 28. Payment and delivery are concurrent conditions. — Unless 
 otherwise agreed (/), delivery of the goods and payment of the 
 price are concurrent conditions, that is to say, the seller "must be 
 ready and willing to give possession of the goods to the buyer in 
 exchange for the price, and the buyer must be ready and willing to 
 pay the price in exchange for possession of the goods ((/). 
 
 Illustration. 
 
 Sale of hops under c.i.f . contract to be shipped to Hull, " terms net cash." 
 The seller tenders the shipping documents to the buyei', while the goods are at 
 sea. The buyer must pay the price, without waiting for the arrival and 
 examination of the goods {h). 
 
 "Where goods are sold," says Bayley, J., "and nothing is said as to the 
 time of delivery or time of payment . . . the seller is liable to deliver them 
 whenever they are demanded upon payment of the price, but the buyer has no 
 right to have possession of the goods till he pays the price. ... If goods are 
 sold on credit, and nothing is agreed upon as to the time of delivering the goods, 
 the vendee is immediately entitled to the possession, and the right of possession 
 and the right of property at once vest in him. But the right of possession is 
 not absolute ; it is Kable to be defeated if he becomes insolvent before he obtains 
 possession " (i). The language of Bayley, J., might be taken to imply that in 
 cash sales payment was a condition precedent to delivery, but a reference to the 
 cases cited in the footnote to the section shows that payment and delivery have 
 always been considered concurrent conditions. 
 
 (/) As, for instance, by a c.i.f. contract, see E. Clemens Horst & Co. v. Biddell 
 Brothers, [1912] A. 0. 18, 22 H. L. ; Orient Co. v. Brehhe, [1913] 1 K. B. 513. See 
 further notes to sect. 32 (3.). 
 
 (g) Morton v. Lamh (1797), 7 T. R. 125 ; Bawson v. Johnson (1801), 1 East, 201 ; 
 Wilhs V. AtMnson (1815), 1 Marshall, 412 ; Pickford v. Grand Junction Railway 
 (1841), 8 M. & W., at p. 378 ; of. Busseyy. Barnett (1842), 9 M. & W. 312 ; Bankart v. 
 Bowers (1866), L. K. 1 0. P. 484 ; PoAjnter v. James (1867), L. B. 2 C. P. 348. 
 
 (h) E. Clemens Horst & Co. v. Biddell Brothers, [1912] A. C. 18, H. L., approving 
 the judgment of Kennedy, L.J., 1 K. B. [1911] 934, 0. A. (action by assignee of 
 contract, but nothing turned on this). 
 
 (i) Bloxam v. Sanders (1825), 4 B. & C. 941, at p. 948 ; cf. Chinery v. Viall (1860), 
 29 L. J. Ex., at p. 183, as to credit sales. 
 
78 . THE SALE OF GOVDS ACT, 1893. 
 
 Where a man went into a restaurant and ordered dinner, and, after dining, 
 said he coiild not pay for it, having only a halfpenny upon him, it was held 
 that he could be convicted of obtaining credit by fraud, but not of obtaining 
 goods by false pretences (1c). It seems therefore that under such circumstances 
 there is an implied agreement for credit until the dinner is finished. 
 
 Evidence. — In an action for non-delivery, it seems the buyer need not give 
 avidence that he was ready and willing to pay, till the seller shows he was ready 
 to deliver (I). Conversely, in an action for non-acceptance, the seller need not 
 prove any tender of delivery. ,Jt_is enough to show that he was ready and 
 willing to deliver (m). 
 
 Where shares were sold, under a written contract, to be paid for at a future 
 day, it was held that evidence might be received of a trade usage not to deliver 
 tUl payment (n). On the other hand, where there was a contract in writing for 
 the sale of hops at so much per owt., evidence of a course of dealing between the 
 parties to allow six months' credit was rejected (o). It is easier to draw imaginary 
 distinctions between these cases than to harmonise the principles on which they 
 rest. 
 
 As to payment by buyer, and tender of price, see further notes to sect. 49. 
 
 29.— (1.) Rules as to delivery. — Whether it is for the buyer to 
 take possession of the goods or for the seller to send them to the 
 buyer is a question depending in each case on the contract, express or 
 implied, between the parties (jp). Apart from any such contract, 
 express or implied, the place of delivery is the seller's place of 
 business, if he have one, and if not, his residence : Provided that, if 
 the contract be for the sale of specific goods, which to the knowledge 
 of the parties when the contract is made are in some other place, 
 then that place is the place of delivery. 
 
 (2.) Where under the contract of sale the seller is bound to send 
 
 (k) B. V. Jones (1898), 1 Q. B. 119. 
 
 {I) Wilks V. Atkinson (1815), 1 Marshall, 412. " The averment of the plaintiff's 
 readiness and willingness to perform his part of the contract will be proved by 
 showing that he called on the defendant to accomplish his part." Note's to Cutter v. 
 Powell, 2 Smith, L.C., ed. 11, p. 1. 
 
 (m) Jackson v. Allaway (1844), 6 M. & Gr. 942 ; Baker v. Firminger (1859), 28 
 L. J. Ex. 130. 
 
 {n) Field v. Lelean (1861), 30 L. J. Ex. 168, Ex. Ch. ; overruling as to usage, 
 Spartali v. Benecke (1850), 10 0. B. 212 ; 19 L. J. 0. P. 293. 
 
 (o) Ford V. Yates (1841), 2 M. & Gr. 549, as explained, Lockett v. Nicklin (1848), 
 2 Exch. 93 ; 19 L. J. Ex. 403. 
 
 (p) As to f.o.b. contract, see Wimble v. Bosenberg, [1913] 3 K. B., at. pp. 752, 757, 
 0. A. As to ex-ship contract, see Yangtze Ins. Association v. Lukmar.jee, [1918] 
 A. 0., at p. 589, P. C. 
 
PEBFORMANOE OF THE CONTBAGT (SEOT. 29). 79 
 
 the goods to the buyer, but no time for sending them is fixed, the 
 seller is bound to send them within a reasonable time (q). 
 
 (3.) Where the goods at the time of sale are in the possession of 
 a third person, there is no delivery by seller to buyer unless and 
 until such third person acknowledges to the buyer that he holds the 
 goods on his behalf (r) ; provided that nothing in this section shall 
 affect the operation of the issue or transfer of any document o'f title 
 to goods (s). 
 
 (4.) Demand or tender of delivery may be treated as ineffectual 
 unless made at a reasonable hour (t). What is a reasonable hour is 
 a question of fact. 
 
 (5.) Unless otherwise agreed, the expenses of and incidental to 
 putting the goods into a deliverable state must be borne by the 
 seller. 
 
 Illustration. 
 
 Sale of cotton seed to be shipped from Bombay in August or September. 
 The cotton is shipped in August, but the ship is stranded and cannot be got off 
 for 3 months, and then has to be repaired. Unless there is a total loss of the 
 commercial object of the contract, the buyer cannot reject the goods on the 
 ground that they have not been delivered within a reasonable time {u). 
 
 See "delivery" defined by sect. 62, post, p. 134, and " specific goods," posf 
 p. 140, and " deliverable state," post, p. 142. As to negativing impUed terms by 
 express terms, course of dealing, or usage, see sect. 55, post, p. 126. 
 
 The deKvery of the key of the place where the goods are may, by agreement, 
 operate as a delivery of the goods (x). 
 
 (g) Ellis v. Thompson (1838), 3 M. & W. 445, see p. 456, per Alderson, B. By 
 sect. 56, post, reasonable time is a question of fact. 
 
 (r) Farina v. Hoine (1846), 16 M. & W. 119 (see at p. 123) ; Oodts v. Bose (1855), 
 17 C. B. 229; 25 L. J. 0. P. 61 ; Buddie -v. Green (1857), 27 L. J. Ex. 33 ; Pollock on 
 Possession, p. 73. 
 
 (s) See the Bills of Lading Act, 1855 (18 & 19 Vict. c. Ill), post, p. 163 ; and the 
 Factors Act, 1889, post, p. 146 ; and sects. 25 and 47 ; of. Hayman v. M'Lintock 
 (1907), 9 F. 936. 
 
 («) Startup v. Maadonald (1843), 6 M. & Gr. 593, Ex. Oh. 
 
 (m) Be Carver & Co. (1911), 17 Com. Gas. 59, see at pp. 67, 70. 
 , (s) Ellis V. Hunt (1789), 3 T. B. 464; Chaplin v. Rogers (1800), 1 East, 192 ; 
 Elmore v. Stone (1809), 1 Taunt. 458 ; cf. Ancona v. Bogers (1876), 1 Ex. D. 285, at 
 p. 290, C. A. See Milgate v. Kebble (1841), 3 M. & Gr. 100 (delivery of key not 
 delivery of goods) ; and see the whole question of so-called symbolic delivery discussed 
 in Pollock on Possession, pp. 61-70 ; cf. French Civil Code, art. 1606. 
 
80 ■ THE BALE OF GOODS ACT, 1893. 
 
 Sub-sect. (1). — Place of delivery. — This sub-section was much considered and 
 several times altered in Committee. The first part deals incidentally with 
 the mode of delivery, and the second part with the place of delivery. As regards 
 mode of delivery there was very little authority, but the assumed rule was, that 
 it was for the buyer to take delivery, and that in the absence of any different 
 agreement, the duty of the seller to deliver was satisfied by his affording to the 
 buyer reasonable facilities for taking possession of the goods at the agreed place 
 of deKvery (y). It seems a pity that a more definite primi facie rule has not 
 been laid down by the Act. 
 
 As regards place of delivery, there was no authority in point, and text writers 
 seem to have followed Pothier, who says, " S'il n'y a point de lieu exprime, la 
 Uvraison doit se faire an lieu ou est la chose ; c'est a I'acheteur de I'envoyer 
 chercher" (2). The Act adopts a rule which is more in accordance with 
 ordinary practice. 
 
 Sub-sect. (2). — Delivery as required. — In a contract for goods to be delivered 
 " as xequired," the buyer must require delivery within a reasonable time, but the 
 seller cannot rescind the contract on the ground of delay without giving the 
 buyer notice. "No doubt," says Pollock, C.B., " where a contract is silent as to 
 time, the law implies that it is to be performed within a reasonable time ; but 
 therelis another maxim of law, viz. that every reasonable condition is also implied, 
 and it seems to me reasonable that the party who seeks to put an end to a 
 contract, because the other party has not, within a reasonable time, required him 
 to deliver the goods, should in the first instance inquire of the latter whether he 
 means to have them " (a). 
 
 Sub-sect. {3). — Goods in possession of third person. — As regards documents of 
 title, the common law drew a hard-and-fast distinction between biUs of lading 
 and other documents. The lawful transfer of a bill of lading was always held 
 to operate as a delivery of the goods themselves, because, while goods were at 
 sea they could not be otherwise dealt with (6). But the transfer of a delivery 
 order or dock warrant operated only as a token of authority or possession, and 
 not as a transfer of possession (c) ; and, as between immediate parties, there is 
 
 (2/) Of. Wood V. Tassell (1844), 6 Q. B. 234 ; Smith v. Chance (1822), 2 B. & Aid., 
 ^t p. 755 ; Salter v. WooUams (1841), 2 M. & Gr. 650, as explained, Benjamin on Sale, 
 4th ed., p. 683 ; but see the note in the 5tli ed., p. 691. 
 
 (2) Contrat de Vente, No. 52 ; and see French Civil Code, art. 1609. 
 
 (a) Jones v. Gibbons (1853), 8 Exch. 920, at p. 922. But this rule is not an 
 absolute rule — the facts may show a mutual intention to abandon the contract. Pearl 
 Mill Co. V. Ivy Tannery Co., [1919] 1 K. B. 78. As to when law will imply a 
 condition not expressed, see The Moorcock (1889), 14 P. D., at p. 68, per Bowen, L.J. ; 
 Nickoll V. Ashion, [1900] 2 Q. B. 298 (subsequent event making performance 
 impossible) ; Ogdens, Ltd. vj Nelson, [1905] A. C. 109, H.- L. (obligation to continue 
 to trade for a fixed period to carry out a contract). 
 
 (6) Sanders v. Maclean (1883), 18 Q. B. D., at p. 341, per Bowen, L.J., and 
 Siddell BrothersY. E. Clemens JBorst & Co., [1911] 1 K. B. at p. 956, per Kennedy, L.J. 
 
 (c) Blackburn mi Sale, p. 302 ; M'Ewan v. Smith (1849), 2 H. L. Cas. 309, 
 
I'ERPOBMANCE OP THE CONTRACT (SECT. 30). 81 
 
 nothing to modify tlie common law rule. If, however, a buyer or mercantile 
 agent, who is lawfully in possession of any document of title to goods, transfers 
 it for value to a third person, the original seller's rights of lien and stoppage 
 in transitu are thereby defeated (see Factors Act, 1889, pogt, p. 146, and sects. 
 2.5 and 47 of this Act). 
 
 Sub-gect. (4.)— Hours for delivery. — This subsection alters the law in so far 
 as it makes the question what is a reasonable hour a question of fact. It was 
 formerly a question of law, and some highly technical rules for determining 
 it were laid down by Lord Wensleydale (d). 
 
 Sub-sect. (5.) — Expenses of delivery. — This is declaratory. " There is no 
 implied contract," says Story, " that the vendee shall pay the vendor for any 
 services in relation to the property rendered previous to the completion of the 
 sale by delivery " (e). The rule seems a general one. By art. 1608 of the 
 French Civil Code, " Les frais de la delivrance sent a la charge du vendetir, 
 et ceux de I'enl^vement i la charge de I'acheteur, s'il n'y a eu stipulation 
 contraire." For list of express terms dealing with time of delivery and 
 judicially construed, see post, p. 183. 
 
 30. — (1.) Delivery of wrong quantity.— Where the seller delivers 
 to the buyer a quantity of goods less than he contracted to sell, 
 the buyer may reject them, but if the buyer accepts the goods so 
 delivered he must pay for them at the contract rate (/). 
 
 (2.) Where the seller delivers to the buyer a quantity of goods 
 larger than he contracted to sell, the buyer may accept the goods 
 included in the contract and reject the rest, or he may reject the 
 whole. If the buyer accepts the whole of the goods so delivered he 
 must pay for them at the contract rate (g). 
 
 (3.) Where the seller delivers to the buyer the goods he con- 
 tracted to sell mixed with goods of a different description not in- 
 cluded in the contract, the buyer may accept the goods which are 
 
 {d) Startup v. Macdonald (1843), 6 M. & Gr. 593, Ex. Ch. 
 
 («) Story on Sale, § 291a. 
 
 (/) SUpton V. Casson (1826), 5 B. & C, 378, at p. 382 (bark) ; Oxendale v. 
 Wetherell (1829), 4 Man. & Ey. 429 (250 bushels of wheat), approved, Colonial Ins. Co. 
 V. Adelaide Ins. Co. (1886), 12 App. Gas. at p. 138 ; Tamvaco v. Lucas (1859), 1 E. & 
 E. 581, 592 (limits of variation fixed by contract) ; Morgan v. Oath (1865), 34 L. J. Ex. 
 165 (500 pioulff China cotton) ; Earland and Wolff v. Burstall (1901), 6 Com. Gas, 
 113 (470 loads of timber out of 500) ; Behrend <& Co. v. ProduM. Brokers Co., Ltd., 
 [1920] 25 Com. Gas. 286 (partial delivery). 
 
 (g) Hart v. Mills (1846), 15 M, & W. 85 (two dozen of port) ; Cunliffe v. Harrison 
 (1851), 6 Exch. 903 ; 20 L. J. Ex. 325 (claret) ; cf. Dixon\. Fletcher (1837), 3 M. & M. 
 146 (cotton), and cases in next note. 
 
 C.S.G. G 
 
82 TBE SALM Of GOODS ACT, 1893. 
 
 in accordance with the contract and reject the rest, or he may reject 
 the whole (h). 
 
 (4.) The provisions of this section are subject to any usage of 
 trade, special agreement, or course of dealing between the parties. 
 
 Illusiration. 
 Sale of a cargo of wheat, which, with a limit of variation allowed by the 
 contract, may amount to 4950 tons. The actual amount tendered is 4950 
 tons and 55 lbs., but the seller does not-iusist on payment for the extra 55 lbs. 
 This is a good tender, and the buyer cannot reject it (i). 
 
 As the seller does not fulfil his contract by delivering a less quantity than 
 he contracted to sell, so, conversely, " if a man contracts to buy 150 quarters 
 of wheat, he is not at Kberty to call for a small portion without being prepared 
 to receive the whole quantity " (k), unless, of course, he has stipulated for so 
 doing. 
 
 When the seller delivers a larger quantity of goods than was ordered, such 
 delivery operates as a proposal for a new contract (I). This, presumably, is 
 the effect of any tender of goods which are not in conformity with the contract. 
 
 "When the seller is uncertain as to the exact amount he can deliver, he may 
 protect himself by using such terms as " about " so many tons, or so many 
 tons " more or less," and he is then allowed a reasonable margin (to). 
 
 Sub-sect. (3) was amended in Committee. It seems not to apply to a case 
 where goods are of the kind or description ordered, but a portion of them 
 are of inferior quality (n), unless the contract is severable (o). 
 
 31. — (1.) Instalment deliveries. — Unless otherwise agreed, the 
 buyer of goods is not bound to accept delivery thereof by instal- 
 ments (p). 
 
 (2.) Where there is a contract for the sale of goods to be 
 
 (h) Of. Levy v. Green (1859), 28 L. J. Q. B. 319, Ex. Oh. ; cf. Nicholson v. 
 Bradfield Union, (1866), L. E. 1 Q. B., at pp. 624, 625, per Lord Blackburn. 
 
 (i) Shypton Anderson & Co. v. Weil Brothers, [1912] 1 K. B. 574, 577 ; 17 Com. 
 Cas. 153, 163. De minimis nan curat lex. Cf. Payne v. Lillico dh Sons (1920), 30 
 T. L. B. 569 (2 per cent, more or less). 
 
 (fc) Kingdoms. Cox (1848), 5 0. B. 522, at p. 526, per Wilde, C.J. (iron girders). 
 
 (l) Cunliffe v. Harrison (1851), 6 Exoh., at p. 906, per Parke, B. (10 hogsheads of 
 claret). 
 
 (m) Cockerell v. Aucompte (1857), 26 L. J. C. P. 194 ; McOormell v, Mmphy (1873), 
 L. B. 5 P. C. 203 (pine spars). As to importing such a term by usage, see Moore v. 
 Camvphell (1854), 10 Exoh., 323 ; 23 L. J. Ex. 310 (100 tons of hemp). 
 
 (n) Aitken & Co. v. Boullen (1908), 10 P. 490, Court of Session. 
 
 (o) Of. Jackson v. Botax Motor and Cycle Co., Ltd., [1911] 2 K. B. 937, C. A. 
 
 \p) Beuter v. Sola (1879), 4 C. P. D. 239, C. A. (25 tons- of pepper). Nor can ha 
 demand it; cce note to last section; Laws of England, vol. xxv,, p. 215. 
 
PERFOBMANCE OF THE CONTMAOT (SECT. 31). 83 
 
 delivered by stated 'instalments, which are to be separately paid 
 for, and the seller makes defective deliveries in respect of one or 
 more instalments, or the buyer neglects or refuses to take delivery 
 of or pay for one or more instalments, it is a question in each case 
 depending on the terms of the contract, and the circumstances of 
 the case, whether the breach of contract is a repudiation of the 
 whole contract, or whether it is a severable breach giving rise to a 
 claim for compensation, but not to a right to treat the whole 
 contract as repudiated {g). 
 
 Illustrations. 
 
 (1) Contract for sale of steel bars to be delivered over a period of three 
 moutlis, in about equal monthly quantities, payment cash in fourteen days 
 after delivery, " aU payments to be made on due date as a condition precedent 
 to future deliveries." If the buyer does not pay according to contract, the 
 seller may refuse unconditionally to make any further delivery (r). 
 
 (2) Contract for rosewood to be delivered by instalments during the year. 
 The buyer, on what afterwards turns out to be erroneous grounds, refuses 
 the first instalment, and repudiates the contract. The second instalment is 
 tendered and refused. The buyer cannot afterwards set up in mitigation of 
 damages, that part of the first instalment was of inferior character (s). 
 
 (3) Sale of 1100 pieces of blue gumwood to be delivered in two instalments. 
 The first instalment of 750 pieces is of very inferior quality, and the buyer 
 refuses to accept it. If an arbitrator finds that the quality of the instalment 
 is of such a character as to amount to a repudiation of the contract, the Court 
 will not disturb his finding (t). 
 
 Sub-sect. (1) — " Suppose,'-' says Lord Bramwellj " a man orders a suit of 
 clothes, the price being £7 — £4 for the coat, £2 for the trousers, and £1 for the 
 waistcoat; can he be made to take the coat only, whether they were aU to 
 be delivered together, or the trousers and waistcoat first ? " and he then 
 proceeds to show that this cannot be (w). On the other hand, the circumstances 
 of a contract may be such that an agreement for delivery by instalments will 
 
 (g) Mersey Steel <& Iron Co. v. Naylor & Co. (ISSi), 9 App. Gas. 434 (steel rails) ; 
 Dominion Coal Co. v. Dominion Iron and Steel Co., [1909] A. 0. 293, P. 0. (appeal 
 from Nova Scotia) ; Steinberger v. Atkinson <Ss Co. (1915), 31 T. L. R. 110 (refusal to 
 pay not a repudiation) ; Payzu, Ltd. v. Saunders, [1919] 2 K. B. 581, C. A. (failure 
 to pay). 
 
 (r) Ebbw Vale Steel Co. v. Blaima Iron Co. (1901), 6 Com. Cas. 33, C. A. 
 
 (s) Braithwaite v. Foreign Hardwood Co., [1905] 2 K. B. 543, C, A, 
 
 («) Millars Karri cfc Co. v. Weddell dh Co. (1908), 14 Com. Cas. 25. 
 
 {u) HoncJc v. Muller (1881), 7 Q. B. D. 92, at p. 99, C. A. 
 
84 THE SALE OF GOODS ACT, 1893. 
 
 be implied. " In many cases of contracts to supply a quantity of goods to be 
 delivered within a fixed period the whole quantity cannot, from the very nature 
 of the case, be delivered at one time," as, for instance, in the case of contracts 
 for the supply of provisions for the army and navy (x). 
 
 Sub-sect. (2). It is very difB.oult to reconcile the older decisions in which 
 it has been held that the refusal to deliver, accept, or pay for a particular 
 instalment, is a breach going to the root of the contract {y) with those in which 
 the contrary has been held (a). But the true principle is that each case must 
 be judged on its own merits. " The rule of law," says Lord Blackburn, " is 
 that where there is a contract in which there are two parties, each side having 
 to do something, if you see that the failure to perform one part of it goes to 
 the root of the contract, it is a good defence to say, ' I am not going to perform 
 my part of it when that which is at the root of the whole and the substantial 
 consideration for my performance is defeated by your misconduct ' " (a). The 
 section in terms deals only with " stated instalments," but a similar principle 
 applies where the instalments are not specified (5). 
 
 32. — (1.) Delivery to carrier. — Where, in pursuance of a contract 
 of sale, the seller is authorised or required to send the goods to the 
 buyer, delivery of the goods to a carrier, whether named by the 
 buyer or not, for the purpose of transmission to the buyer, is prima 
 facie deemed to be a delivery of the goods to the buyer (e). 
 
 (2.) Unless otherwise authorised by the buyer, the seller must 
 make such contract with the carrier on behalf of the buyer as may 
 
 (x) Colonial Ins. Co. of New Zealand v. Adelaide Ins. Co. (1886), 12 App. Cas. at 
 pp. 138, 139, P. C. 
 
 {y) See Withers v. Reynolds (1831), 2 B. & Ad. 882 ; Hoare v. Bennie (1859), 29 
 L. J. Ex. 73 ; Honck v. M^dler (1881), 7 Q. B. D. 92, G. A. 
 
 {z) See Jonassohnv. Young (1863), 32 L. J. Q. B. 385 ; Simjason v. Crippin (1872), 
 L. K. 8 Q. B. 14 ; Freeth v. Burr (1874), L. B. 9 0. P, 208. 
 
 (a) Mersey Steel Co. v. Naylor ds Co. (1884), 9 App. Cas. at p. 443 ; and see per 
 Jessel, M.B., in court below, 9 Q. B. D., at p. 657 (5000 tons of steel to be delivered 
 by instalments, non-payment of one instalment, under mistaken advice, held no 
 repudiation). 
 
 (6) Coddington v. Paleologo (1867), L. R. 2 Ex. 193, 197 ; Beuter v. Sala (1879), 
 4 0. P. D. 239, 0. A. ;■ Jackson v. Botax Motor and Cycle Co., [1910] 2 K. B 937, 
 0. A. ; Laws of England, vol. xxv., p. 218. 
 
 (c) For statement of principle, see Wait v. Baker (1848), 2 Exoh. 1, at p. 7, per 
 Parke, B. ; Dunlop v. Lambert (1839), 6 01. & F. 600, at p. 620, per. Ld. Cottenham ; 
 Calcutta Co. v. De Mattos (1863), 32 L. J, Q. B., at p. 328, per Blackburn, J., cited 
 post, p. 213. Badische Anilin Fabrik v. Basle Clumical Works, [1898] A. 0., at 
 pp. 203, 204, H. L. For illustrations, see Button v. Solomonson (1803), B. & P. 582 
 (carrier by land) ; Bryans v. Nix (1839), 4 M. & W. 775 (canal-boat) ; Alexander v. 
 Gardner (1835), 1 Bing. N. C. 671 (ship) ; Ex p. Pearson (1868), L. E. 3 Oh. App. 
 443 (railway) ; Bell on Sale (Scotland), p. 86 ; and see notes, post, p. 189. 
 
FERFORMANCE OF THE CONTRACT (SECT. 32). 85 
 
 be reasonable, having regard to the nature of the goods and the 
 other circumstances of the case. If the seller omit so to do, and the 
 goods are lost or damaged in course of transit, the buyer may 
 decline to treat the delivery to the carrier as a delivery to himself (d), 
 or may hold the seller responsible in damages. 
 
 (3.) Unless otherwise agreed, where goods are sent by the seller 
 to the buyer by a route involving sea transit, under circumstances 
 in which it is usual to insure, the seller must give such notice to the 
 buyer as may enable him to insure them during their sea transit, 
 and, if the seller fails to do so, the goods shall be deemed to be at 
 his risk during such sea transit. 
 
 Illustration. 
 
 Goods sold f .o.b. Antwerp, to be shipped as required, payment cash against 
 bill of lading. Buyer directs seller to ship the goods to Odessa, leaving him to 
 select the ship. Ship sails on 25th August, and is lost on the 26th. Buyer 
 receives no notice of shipment tiU 29th August. He must pay for the goods, 
 even though he has not insured, for he had sufficient information to enable him 
 to do so (e). 
 
 Sub-sect. (1). — Effect of delivery to carrier. — The rule that delivery of goods to 
 a carrier is prima facie delivery to the buyer, passing to him the property and 
 the risk, if they have not passed before, is the natural complement of the rule 
 that prima facie the proper place for delivery is the seller's abode, or the place 
 where the goods are at the time of sale, ante, p. 78. 
 
 It is to be noted that, though the carrier is ordinarily the agent of the 
 buyer to receive the goods, he is not his agent to accept them (/) ; and this is 
 reasonable, for he cannot judge whether the goods are in conformity with the 
 contract or not ; so, too, while the goods are in the hands of a carrier as such, 
 they are liable to be stopped in transitu, post, p. 100 ; and of course they maybe 
 delivered to the carrier on such terms as to make him the seller's agent, ante, 
 p. 84. When goods are sent " carriage forward " it is strong evidence that the 
 delivery to the carrier was intended as a delivery to the buyer. 
 
 Suh-sect. (2).— Seller's duty. — " Delivery of goods to a carrier or wharfinger,'' 
 says Lord EUenborough, " with due care and diligence is sufficient to charge the 
 
 (d) Gla/rJce v. Eutchins (1811), 14 East, 475; Buckman v. Levi (1813), 3 Camp. 
 414 ; Indian Contract Act, 1872, § 91 ; Story on Sale, § 305. 
 
 (e) Wimble-v. Bosenberg cfc Sons, [1913] 3 K. B.743, 0. A., affirming Bailhache, J., 
 on varying grounds. 
 
 (/) Hanson v. Armitage (1822), 5 B. & Aid. 557; Nm-man v. PMUips (1845), 14 
 M, & W 277 ; Meredith v. Meigh (1858), 2 E. & B. 364. 
 
86 TEE SALE OF GaODS ACT, 1893. 
 
 purchaser, but lie has a right to require that in making this delivery due care 
 and diligence shall be exercised by the seller " (g). 
 
 Svh-sect. (3). — Sea transit. — As regards goods sent by sea, Mr. BeU, summrng 
 up the Scotch cases, says : " In delivering goods on ship-board, the seller is 
 bound not only to charge the ship-master or shipping company -with them 
 efEectuaUy, but though not bound to insure, he must give such notice as to 
 enable the buyer to insure " Qi). There appears to have been no English 
 decision in poini, but the Scottish rule has been adopted by the Act. Where 
 goods are forwarded by sea by an agent to his principal, it seems to be the duty 
 of the agent to insure, in the absence of any different agreement or course of 
 deaUng (i). 
 
 Fio.b. contract. — As regards goods sent overseas there are three common 
 forms of contract, namely, f .o.b. (free on board), c.i.f . (at a price to cover cost, 
 insurance, and freight), and ex-ship. Sub-sect. (3) has no application to c.i.f. 
 and ex-ship contracts, but it applies to f.o.b. contracts unless the buyer waives 
 notice or from other sources has sufficient information to enable him to 
 insure (fc). 
 
 Under an ordinary f.o.b. contract the seller must deliver the goods on board 
 ship at his own expense. Thereafter the goods are at the buyer's risk, and he 
 is responsible for the freight and any subsequent charges (I). 
 
 The seller, says Hamilton, L.J., having paid the charges of shipment, gives 
 up possession of the goods to the ship "upon the terms of a reasonable and 
 ordinary bill of lading or other contract of carriage. There his contractual 
 liability as seller ceases, and delivery to the buyer is complete so far as he is 
 concerned " (m). The buyer under a f.o.b. contract cannot claim delivery of 
 the goods before shipment (n) ; and if a licence to export is required the buyer 
 must apply for it (o). 
 
 C.i.f. contract. — Under an ordinary c.i.f. contract the seller has " firstly to 
 ship at the port of shipment goods of the description contained in the contract ; 
 
 (g) Btickman v. Levi (1813), 3 Camp. 414. 
 
 (h) Law of Sale, p. 89. 
 
 (i) Smith V. Lascelles (1788), 1 E. B. 457. As to general duty of agent to insure, 
 see Arnould, Mar. Ins., §§ 146-148. 
 
 (k) Northern Steel and Hardware Co. v. Batt & Co. (1917), 38 T. L. E. 516, 0. A. ; 
 following the majority of the court in Wimble v. Rosenberg, [1913] 3 K. B. 743, 0. A., 
 but note the dissenting judgment of Hamilton, L.J., and his review of the Scottish 
 oases on which the sub-sect, was founded. 
 
 . (I) Stock V. Inglis (1884), 12 Q. B. D. at p. 573, affirmed Inglis v. Stock (1885), 
 10 App. Oas. 263, 271, H. L. ; as to transfer of property, see Brown v. Hare (1858), 
 27 L. J. Ex. 372, affirmed 29 L. J. Ex., 6 Ex. Ch. ; as to stoppage in transitu, see 
 Cowasjee v. Thomson (1845), 5 Moore P. C. 16$ ; Ex p. Goldmg Davis & Co. (1880), 
 13 Ch. D. 628, C. A. 
 
 (m) WimbU v. Rosenberg, [1918] 3 K. B. 743, at p. 757. Cf. Be Sutro, [1917] 2 
 K. B. 348, C, A. (printed contract, alleged usage as to alternative route). 
 
 (n) Maine Spinning Co. v SutcUffe & Co. (1917), 34 T. L. E. 154. . 
 
 (o) Brandt & Co. v. Morris & Co., [1917] 2 K. B, 784, C. A. 
 
PERFOBMANCE OF TEE CONTRACT (SECT. 32). 87 
 
 secondly, to procure a contract of affreightment tmder which, the goods will be 
 delivered at the destination contemplated by the contract ; thirdly, to arrange 
 for an insurance upon the terms current in the trade which will be available 
 to the buyer ; fourthly, to make out an invoice as described by Blackburn, J., in 
 Ireland v. Livingstone (p), or in some similar form ; and finally to tender these 
 documents to the buyer, so that he may know what freight he has to pay, and 
 obtain delivery of the goods if they arrive, or recover for their loss if they are 
 lost on the voyage " (q). If the goods shipped do not correspond with the 
 contract description, there is a breach of the contract when the goods were 
 shipped (;•). If the contract provides for payment " net cash," that means cash 
 against tender of the shipping documents, and payment must be made without 
 waiting for the arrival and examination of the goods (s). The shipping 
 documents must contain a contract of affreightment covering the whole transit, 
 and the goods must be shipped within the time stipulated for by the contract, 
 if a time be specified (*). The goods must be covered by an effective policy (u), 
 and even if the goods arrive safely this condition is not dispensed with (x). On 
 the other hand, there is a valid tender under the contract if the proper documents 
 be tendered after knowledge that the goods have been lost, but the goods must 
 be covered by a policy which can be assigned to the buyer. An open cover taken 
 out by the seller protecting all goods shipped by him is not sufficient (y). In 
 case of non-delivery the contract is broken at the time when the documents 
 ought to have been tendered, and damages must be estimated accordingly (z). 
 The buyer may refuse to accept an enemy bill of lading though the contract was 
 entered into before war (a). It is sometimes said that a c.i.f. contract is a 
 contract for the sale of documents rather than a sale of goods ; but the cases 
 
 {p) Ireland v. Livingstone (1872), L. R. 5 H. L., at p. 406. 
 
 (2) Bidden Brothers v. E. Clemens Horst & Co., [1911] 1 K. B. at p.-'220, per 
 Hamilton, J., and see ibid., 1 K. B. [1911], at p. 952, per Kennedy, L..T. ; approved 
 A. 0., [1912] 18. Cf. Landauer v. Craven (1912), 17 Com. Gas. 193, at p. 202, and 
 Gromn v. Ba/rber, [1915] 1 K. B, 316; Karberg v. Green Blythedb Co., [1915] 1 K. B., 
 at p. 513, 0. A. ; Johnson v. Taylor Bros. (1920), A. 0., at p. 156, H. L. 
 
 (r) Parker v. Schuller (1901), 17 Times L. E. 299, 0. A. ; Crozi£r & Co. v. 
 Auerbach, [1908] 2 K. B. 161, C. A. If the claim is for non-delivery the breach is 
 at the place where the documents ought to have been tendered, Biddell Brothers v. 
 E. Clemens Horst & Co., [1911] 1 K. B., at p. 961, C. A. 
 
 (s) E. Clemens Horst & Co. v. Biddell Brothers, [1912] A. 0. 18, H. L. (" net 
 oash"=" cash against documents "). 
 
 (<) Landauer v. Craven (1912), 17 Com. Cas. 193. 
 • (u) Cantiire Meccanico Brindisino v. Constant (1912), 17 Com. Cas. 182, 192. 
 
 (x) Orient Co., Ltd. v. Brehke, [1913] 1 K. B. S31. 
 
 (y) Manbre Saceharine Co. v. Corn Products Co., [1919] 1 K. B. 198. Cf. Wilson 
 Holgate dh Co. v. Belgian Oradn Co., [1920] 2 K. B. 1, as to. an alleged usage. 
 
 («) Sharje dh Co. v. Nosawa & Co., [1917] 2 K. B. 814; distinguished on the 
 special facts, Produce Brokers Co. v. Weis & Co. (1918), 87 L. /. K. B. 472. 
 
 (a) Ka/rberg v. Green Blythe dh Co., [1916] 1 K. B. 495, 0. A. ; cf. Jhmoan Fox cfr 
 Co, v. Schrempt dh Co., [1915] 3 K. B. 355, C. A. 
 
88 THE SALE OF GOODS ACT, 1893 
 
 V 
 
 show that it is a contract for the sale of insured goods lost or not lost, to be 
 implemented by the transfer of proper docxunents (aa). 
 
 Ez-ship contract. — In the case of a sale " ex-ship,'' says Lord Sumner, " the 
 seller has to cause delivery to be made to the buyer from a ship which has 
 arrived at the port of delivery, and has reached a place therein which is usual 
 for dftlivery of goods of the kind in question. The seller therefore has to pay 
 the freight or otherwise to release the shipowner's Hen, and to furnish the 
 buyer with an efEectual direction to the ship to deliver. TiU this is done the 
 buyer is not bound to pay for the goods. TiU this is done he may have an 
 insurable interest in profits, but none that can be correctly described as an 
 interest ' upon goods,' nor any interest which the seller, as seller, is bound to 
 insure for him " (&). 
 
 The parties may, of course, by express terms vary the conditions of the above- 
 mentioned contracts, in any way they please, see, for example, the contract in 
 The Parchim, which was a cross between a c.i.f. and a f.o.b. contract (c). 
 
 A contract by the seller to insure cattle sent abroad against " all risks " is 
 not satisfied by taking out a Lloyds' " all risks " policy if the policy contains 
 the " free of capture and seizure " clause (d). 
 
 If the seller has effected a proper insurance under a c.i.f. policy, he may 
 retain for his own benefit " increased value " policies which he has subsequently 
 taken out (e). 
 
 33. Risk where goods are delivered at distant places. — Where 
 the seller of goods agrees to deliver them, at his own risk, at a 
 place other than that where they are when sold, the buyer must, 
 
 (aa) Cf. Johnson v. Taylor Bros. (1920), A. C. 144, H. L. (service out of juris- 
 diction). 
 
 (6) Yangtze Ins. Association v. Lukmamjee (1908), 23 Com. Oas. 299, at p. 304, 
 P. C. ; A. C. [1918], 585, at p. 589, P. 0. 
 
 (c) The Parchim, [1918] A. C. 157, at p. 164, per Lord Parker ; cf. The Mi/rarrmhi, 
 [1915] P. 71 (c.i.f. contract, transfer of property) ; Groom v. Barber, [1915] 1 K. B. 
 316 (c.i.f. appropriation of goods to contract) ; Stein Forbes & Co. ■\. County 
 Tailoring Co. (1916), 115 L. T. 215 (c.i.f. contract, transfer of property) ; Jager v. 
 Tolme & Bunge, [1916] 1 K. B. 939, C. A. (f.o.b. contract, novation) ; Sappe v. 
 Manasseh (1915), 82 T. L. B. 112, C. A. (c.i.f., alleged waiver of tenderof documents) ; 
 American Commerce Co. v. Bochin, Ltd. (1919), 35 T. L. B. 224 (c.i.f. "duty paid," 
 increase of customs duty). 
 
 (d) Touill V. Scott Robson & Co., [1908] 1 K. B. 270, C. A. (cattle sent from 
 Buenos Aires and seized by Natal Government on account of disease). But 
 distinguish VvncentelU v. Bowlatt (1911), 16 Com. Cas. 310 (" all risks " policy not 
 covering improper stowage for which ship is liable). 
 
 (e) Strass v. Spillers & Baker, [1911] 2 K. B. 759 ; but distinguish Landauer v. 
 Asser, [1905] 2 K. B. 184. As to war risks, see Oroom v. Barber, [1915] 1 K. B. 316, 
 when the contract ran " war risk for buyer's account " ; Law and Bonfir v. American, 
 Tobacco Co., [1916] 2 K. B. 605 (c.i.f,, contract made before war), 
 
PEEFORMANGE OF THE CONTRACT (SECT. 34). 89 
 
 nevertheless, unless otherwise agreed, take any risk of deterioration 
 in the goods necessarily incident to the course of transit (/). 
 
 " A manufacturer," says ■ Alderson, B., " who contracts to deliver a manu- 
 factured article at a distant place, must indeed stand the risk of any extra- 
 ordinary or unusual deterioration ; but the vendee is bound to accept the article 
 if only deteriorated to the extent that it is necessarily subject to in its course of 
 transit from one place to the other " (g). There appeared to be no reason for 
 confining the rule to the case of a manufacturer, nor is it inconsistent with the 
 case of Beer v. Wallcer (K), where the buyer was held entitled to reject rabbits 
 which arrived in Brighton in an unsaleable condition, though they were saleable 
 when sent off from London. In the case of perishable goods such as rabbits, 
 they are not really merchantable when sent off by the seller unless they are in 
 such condition as to continue saleable for a reasonable time. As to negativing 
 implied terms, see sect. 55, post, p. 126. 
 
 34. — (1.) Buyer's right of examining the goods. — Where goods 
 are delivered to the buyer, which he has not previously examined, 
 he is not deemed to have accepted them unless and until he has 
 had a reasonable opportunity of examining them for the purpose of 
 ascertaining whether they are in conformity with the contract (t). 
 
 (2.) Unless otherwise agreed {j), when the seller tenders delivery 
 of goods to the buyer, he is bound, on request, to afford the buyer a 
 reasonable opportunity of examining the goods for the purpose of 
 ascertaining whether they are in conformity with the contract (k). 
 
 " Suppose," says Lord Bramwell, " I order a certaiu quantity of lime to be 
 taken to a farm, and I am not there to object, and nobody else is there to object 
 
 (/) Bull v. Bobmson (1854), 10 Exch. 342 ; 24 L. J. Ex. 165. Compare the non- 
 liability of the insurer in insurance law for vice propre, or inherent vice, Chalmers' 
 Ma/ri7ie Insurance Act, 1906, § 55, and notes. 
 
 (g) Bull V. Robinson (1854), 10 Exch., at p. 346 (hoop-iron sent by canal). 
 
 {h) Beer v. Wallcer (1877), 46 L. J. C. P. 677. 
 
 (i) Lorymer v. Smith (1822), 1 B. & C. 1 ; Toulmin v. Hedley (1845), 2 C. & K. 
 157, see p. 160 ; cf. Burnt v. Hecht (1853), 8 Exch. 814, at p. 817 ; HeilbuttY. Hickson 
 (1872), L. B. 7 C. P. 438, at p. 456, per Brett, J. As to waiver of inspection, see 
 Castle V. Sworder (1861), 30 L. J. Ex., at p. 312; Khan v. Duch^ {1906), 10 Com. 
 Cas. 87 ; cf. Van den Hurh v. Martens d Co., [1920] 1 K. B. 850 (ultimate destina- 
 tion) ; Thornett v. Beers d Son, [1919] 1 K. B. 486 (waiver). 
 
 {j) PetUtt V. Mitchell (1842), 4 M. & Gr. 819; Polenghi Brothers v. Dried Milk Co. 
 (1905), 10 Com. Cas. 42 ; E. Clemens Horst & Co. v. Biddell Brothers, [1912] A. C. 
 18, H. L. 
 
 (k) Isherwood v. Whitmore (1848), 11 M. & W. 347, see at p. 350, and S. C. on 
 demurrer, 10 M. & W. 757 (goods in closed ca^ka). Cf, Startups. T^aedonnU (1845), 
 6 M. <% Gr„ ^t p. 610, per Bolfe, B, 
 
90 THE SALE OF GOODS ACJ, 1893. 
 
 to it, I shall not be at liberty afterwards to say : ' Those goods have not been 
 accepted and received by me ' ; they have been, as much as it was possible, 
 unless I had chosen to be there to make objection. So, on the. other hand, if I 
 go to a shop for an article I have previously ordered, and it is delivered to me, 
 wrapped up, though I cannot see what it is, there cannot be the slightest 
 question that I have received and accepted the goods, if they turn out to be in 
 conformity with the order ; yet nobody can say that I shall not have a right to 
 object to them afterwards, if they are not in conformity with the contract " (Z). 
 As to negativing implied terms, see sect. 55, post. 
 
 Where goods are bought by sample, the place of delivery is primA facie the 
 place of examination (m). 
 
 35. Acceptance. — The buyer is deemed to have accepted the 
 goods when he intimates to the seller that he has accepted them (n), 
 or when the goods have been delivered to him, and he does any act 
 in relation to them which is inconsistent with the ownership of the 
 seller (o), or when, after the lapse of a reasonable time, he retains 
 the goods without intimating to the seller that he has rejected 
 them(p). 
 
 The question of acceptance is only material where there is a right to reject. 
 Most of the numerous decisions relating to acceptance have arisen on the 
 construction of the Statute of Frauds. They must be looked at critically, 
 because there may be an acceptance within the meaning of that statute (now 
 reproduced in sect. 4 of the Act, ante, p. 18), which is not an acceptance in per- 
 formance of the contract. For the purpose of the statute, any dealing with the 
 goods which recognises a pre-existing contract of sale is an acceptance ; but 
 such an acceptance may not be finally binding on the buyer, precluding him 
 from rejecting the goods (g). For example, " the purchaser has [may have] a 
 right to object that the bulk does not correspond with the sample after 
 
 (I) Castle v. Sworder (1860), 29 L. J. Ex. 235, at p. 238. See S. C. 30 L. J. Ex., 
 at p. 312, Ex. Ch. 
 
 (to) Perkins v. Bell, [1893] 1 Q. B. 193, 0. A. (barley bought by sample). 
 
 (n) Saunders v. Topp (1849), 4 Exch. 390, 18 L. 3. Ex. 374 (sheep). 
 
 (0) Parker v. Palmer (1821), 4 B. & Aid. 387 ; Chapman v. Morton (1843), 11 M. 
 & W. 534; Harnor v. Groves (185S), 15 0. B. 667; cf. Taylor v. G. E. Bailway, 
 [1901] 1 K. B. 774; Meehan v. Bow McLachlan ib Co. (1910), S. 0. 758, Court o£ 
 Sessions (feed tanks fitted into tug before it passed the agreed Admiralty test), 
 
 (p) Sanders v. Jameson (1848), 2 0. & K. 557 (corn sold by sample) : Heilbuit v. 
 Hickson (1872), L. R. 7 0. P., at pp. 451, 452, reviewing the oases. See, too, the 
 cases on "sale or return," ante, p. 55. By sect. 56, post, reasonable time is a 
 question of fact. 
 
 (q) Page v. Morgan (1885), 15 Q. B. D. 228, C. A. The rule finally arrived at by 
 this case is now embodied in sect. 4 j(3) of the Act ; cf. Taylor v. G. E. Bailway, 
 [1901] 2 K. B. 774. 
 
PERFORMANCE OF TEE CONTRACT (SECT. 36). 91 
 
 acceptance within the Statute of Frauds " (r). By sect 11, (1) (c), ante, where 
 goods have been accepted, the buyer, subject to certain qualifications, can only 
 treat the breach of a condition as a breach of warranty (s). 
 
 The right of rejectiag goods as not being in conformity with the contract 
 is larger in Scotland than in England. In Scotland a buyer may reject goods 
 which he has accepted if he do so " timeously," whereas in England he could 
 only do so if the contract contained what the continental lawyers oaU a 
 " resolutive condition " {t). 
 
 Conditional acceptance. — Goods may, t)f course, by arrangement, be accepted 
 conditionally and the acceptance may in such case be withdrawn on failure of 
 the condition (m). A re-sale, or attempted re-sale, by the buyer is strong 
 evidence of acceptance, but may not be conclusive (w). 
 
 36. Buyer not bound to return rejected goods. — Unless otherwise 
 agreed, where goods are delivered to the buyer, and he refuses to 
 accept them, having the right so to do, he is not bound to return 
 them to the seller, but it is sufficient if he intimates to the seller 
 that he refuses to accept them (a). 
 
 The buyer, says Lord Esher, may return the goods, or offer to retm-n them, 
 if not according to contract ; but it is suflB.cient to signify his rejection of them 
 by stating that they are not according to contract, and that they are at the 
 vendor's risk. No particular form is essential. It is sufficient if he does any 
 unequivocal act showing that he rejects them (y). 
 
 This section presupposes the relation of seller and buyer. It does not 
 appear to touch the case of goods delivered to a man on the chance that he may 
 buy them. 
 
 37. Liability of buyer for neglecting or refusing delivery of goods. 
 — When the seller is ready and willing to deliver the goods, and 
 requests the buyer to take delivery, and the buyer does not within a 
 reasonable time after such request take delivery of the goods, he is 
 
 (r) Morton v. Tibhett (1850), 15 Q. B., at p. 431. 
 
 (s) Cf. Wallis V. Pratt, [BIO] 2 K. B., at p. 1017, per Moulton, L.J. 
 
 (t) See sect. 11 (2), ante, and Couston v. Chapman (1872), L. B. 2 So. App., at 
 p. 254. For resolutive conditions in England, see Lamond v. Davall (1847), 2 Q. B. 
 1030 ; Head v. Tattersall (1871), L. R. 7 Ex. 7. 
 
 (u) Lucy V. Mmflet (1860), 29 L. J. Ex. 110; Seilbutt v. Sickson (1872), L. E. 7 
 C. P. 438. Cf. Behrend & Co. v. Produce Brokers Co., Ltd. (1920), 25 Com. Cas. 286, 
 287. 
 
 (v) Cf. Morton v. Tibbits (1850), 15 Q. B. 428, at p. 439 ; but as to goods delivered 
 on sale or return, see Oenn v. Winkel (1912), 17 Com. Cas. 323. 
 
 (a;) Qrimoldy v. Wells (1875), L. B. 10 C. P. 891 ; as to the place of rejection, see 
 Heilbutt V. Sickson (1872), L. B. 7 0. P. 438, at p. 456, per Brett, J. 
 
 (y) GrimoUby v. Wells (1875), L. E. 10 C. P., at p. 395, per Brett, J. 
 
92 TEE SALE OF GOODS ACT, 1893. 
 
 liable to the seller for any loss occasioned by his neglect or refusal 
 to take delivery, and also for a reasonable charge for the care and 
 custody of the goods (^z). 
 
 Provided that nothing in this section shall affect the rights of 
 the seller where the neglect or refusal of the buyer to take 
 delivery amounts to a repudiation of the contract {a). 
 
 Ulusfration. 
 
 A contracts to build a steam launch for B by a fixed date, delivery to be made 
 on a vessel found by B. A does not complete the launch by the contract time, 
 but B does not notify A of a ship to receive the launch till A is ready to deliver. 
 Neither party has any remedy against the other (6). 
 
 Conversely, if the seller is in default in making' delivery, and the buyer, not- 
 withstanding the delay, accepts the goods, he may recover damages for any loss 
 occasioned by the delay, see note to sect. 51, pogt, p. 118. As to the shifting of 
 the risk in case of wrongful delay, see sect. 20, ante. 
 
 When the seller holds the goods in the exercise of his right of lien, he 
 cannot charge for expenses of keeping them. See note to sect. 41, post, p. 97. 
 
 {«) Greaves v. AshUn (1813), 3 Camp. 425; c/. Bloxham v. Sanders (1825), 4 B. & 
 C. 941, at p. 950. As to the converse case, where the buyer properly rejects goods 
 and the seller refuses to take them back, see Caswell v. Coa/re (1809), 1 Taunt. 666 ; 
 Chesterman v. Lamb (1834), 2 A. & E. 129. 
 
 (a) Cf. Mersey Steel Co. v. Naylor & Co. (1884), 9 App. Gas., at p. 443 ; Braithwaife 
 V. Foreign Ha/rdwood Co., [1905] 2 K. B. 643, C. A., and sect. 31, ante. 
 
 (6) Forest v. Aramayo (1900), 9 Asp. Mar. Gas. 134, G. A. 
 
( 93 ) 
 
 PAET IV. 
 
 Eights of Unpaid Seller against the Goods. 
 
 38. — (1.) Unpaid seller defined. — The seller of goods is deemed 
 to be an " unpaid seller " within the meaning of this Act — 
 
 (a) When the whole of the price has not been paid or 
 
 tendered (a) ; 
 (6.) When a bill of exchange or other negotiable instrument has 
 been received as conditional payment, and the condition on 
 which it was received has not been fulfilled by reason of the 
 dishonour of the instrument or otherwise (h): 
 (2.) In this part of this Act the term " seller " includes any 
 person who is in the position of a seller, as, for instance, an agent of 
 the seller to whom the bill of lading has been indorsed (e), or a 
 consignor or agent who has himself paid, or is directly responsible 
 for, the price (d). 
 
 Sub-sect. (1). — In a case where the seller had discounted the buyer's accept- 
 ances, but the latter failed before the bills matured, it was held that the seller 
 
 - (a) Hodgson v. Loy (1797), 7 T. E. 440; Feise v. Wray (1802), 3 East, 93, at 
 p. 102; Van Casteel v. Boofcer (1848), 2 Exoh. 691, at pp. 702, 709; Ex p. Chalmers 
 (1873), L. E. 8 Ch. App. 289 (severable contract). As to tender after the appointed 
 day, see Martindale v. Smith (1841), 1 Q. B. 389. 
 
 (6) Feise v. Wray (1802), 3 East, 93; Griffiths v. Perry (1859), 28 L. J. Q. B. 204; 
 Ex p. Lambton (1875), L. E. 10 Ch. App., at p. 415; Ounn v. Bolekow, Vanghan 
 A: Co. (1875), L. E. 10 Oh. App. 491, at p. 501 ; cf. Ex p. Stapleton (1879), 10 Ch. D. 
 586, C. A. Whether a bill is given in absolute or conditional payment is a question 
 of fact, Goldshede v. Cottrell (1836), 2 M. & W. 20. But the presumption is in favour 
 of conditional payment. 
 
 (c) Morison v. Gray (1824), 2 Bing. 260. See, too, the Bills of Lading Act, 1855, 
 post, p. 163. 
 
 (d) Feise v. Wray (1802), 3 East, 93 ; Tucker v. Hvmphrey (1828), 4 Bing. 516 ; 
 cf. Ireland v. Livingstone (1872), L. E. 5 H. L., at pp. 408, 409, per Blackburn, J. 
 As to factors, see notes to Kruger v. Wilcox, Tudor's Merc. Cases, 3rd ed., p. 370. 
 
94 THE SALE OF GOODS ACT, 1893. 
 
 was unpaid, and Mellisli, L.J., says, " If the bill is dishonoured before delivery 
 of the goods has been made, then the vendor's lien revives, (w, if the purchaser 
 becomes openly insolvent before the delivery actually takes place, then the law 
 does not compel the vendor to deliver to an insolvent purchaser " (e). 
 
 Sub-sect. (2). — The Courts show a strong incUaation to give the rights of an 
 unpaid seller against the goods to any one whose position can be shown to be 
 substantially analogous to that of an ordinary seller ( /). 
 
 39. — (1.) Unpaid seller's rights. — Subject to the provisions of this 
 Act, and of any statute in that behalf (g), notwithstanding that the 
 property in the goods may have passed to the buyer, the unpaid 
 seller of goods, as such, has by implication of law — 
 
 (a.) A lien on the goods [or right to retain them] for the price 
 while he is in possession of them ; 
 
 (6.) In case of the insolvency (h) of the buyer, a right of stopping 
 the goods in transitu after he has parted with the possession of 
 them ; 
 
 (c.) A right of re-sale as limited by this Act. 
 
 (2.) Where the property in goods has not passed to the buyer, 
 the unpaid seller has, in addition to his other remedies, a right of 
 withholding delivery similar to and co-extensive with his rights of 
 lien and stoppage in transitu where the property has passed to the 
 buyer. 
 
 By sect. 62, post, " lien " in Scotland includes right of retention. The words 
 " or right to retain them " were inserted when the bill was extended to Scotland. 
 As to negativing implied terms, see sect. 55. 
 
 Sub-sect. (1).— The origin of the seller's lien in English law is doubtful. 
 It is probably founded on the custom of merchants (i). The term " lien" is 
 unfortunate, because the seller's rights, arising out of his original ownership, 
 in aU cases exceed a mere lien. They " perhaps come nearer to the rights of a 
 pawnee with a power of sale than to any other common law rights " (j). 
 
 (e) Qunn v. Bolckow, Vaughan tSs Co. (1875), L. B. 10 Ch. App., p. 501, overruling 
 on this point, it seems, Bunney v. Poyntz (1833), 4 B. & Ad. 568. 
 
 (/) Cf. Cassaboglou v. Gibb (1883), 11 Q. B. D., at p. 804, per Lord Esher; and, 
 for example, see jcnkyns v. Usborne (1814), 7 M. & Gr. C78, at p. 698 (re-sale by 
 party who had contracted to buy goods) ; Imperial Bank v. Lond. <fc St. KathervM 
 Dock Co. (1877), 5 Ch. D. 195 (surety who has paid the price). 
 
 (g) See sect. 47, post, p. 107, and the Factors Act, post, p. 146. 
 
 (h) See "insolvency," defined by sect. 62 (3), post. 
 
 (i) Blackburn on Sale, p. 318. 
 
 [j) Ibid., p. 325; cf. Bloxam v. Sanders (1825), 4 B <fe C. 941, at f. 013; 
 Schotsmans v. Lancashire Railway (1867), L. R. 2 Ch. App., at p. 310. 
 
RIGHTS AGAINST THE GOODS (SECT. 39). 95 
 
 Many of the cases fail to distinguish, the seller's right of lien from his right 
 of stoppage in transitu. But it is important to keep them distinct, because, 
 though the rights are analogous, they are in certain respects governed by 
 different considerations {¥). The seller's lien attaches when the buyer is in 
 default, whether he be solvent or insolvent. The right of stoppage in transitu 
 only arises when the buyer is insolvent. Moreover, it does not arise until the 
 seller's Hen is gone, for it presupJ)oses that the seller has parted with the 
 possession as well as with the property in the goods. " The right of stoppage 
 in transitu,'' says Bowen, L.J., "is founded upon mercantile rules, and is 
 borrowed from the custom of merchants ; from their custom it has been 
 engrafted upon the law of England. The doctrine was at variance with the 
 Civil Law, which laid down that, although the goods had been sold upon credit, 
 and although the goods were in the possession of the vendee, there might be 
 recaption by the vendor if the vendee became insolvent, But, according to the 
 rules as to stoppage in transitu, the goods can be stopped only whilst they are 
 passing through channels of communication for the purpose of reaching the 
 hands of the vendee. This doctrine was adopted by the Court of Chancery, and 
 afterwards by the Courts of Common Law " {],). 
 
 Unpaid seller's rights. — The Courts look with great favour on the right of 
 stoppage in transitu on account of its intrinsic justice (m). The decisions on 
 the subject are very numerous, but as Jessel, M.E., observes, " As to several of 
 them there is great difficulty in reconciling them with principle ; as to others 
 there is great difficulty in reconciling them with one another : and as to the 
 whole, the law on this subject is in a very unsatisfactory state " (m). The 
 decisions now must be read subject to the Act. 
 
 The seller's "right of retention" in Scotland was more extensive than the 
 seller's Hen in England. Apart from statute the seller had the right to retain 
 the goods not only for the price, but also for any other debt due from the 
 buyer even if there had been a sub-sale (o). But the Merchantile Law 
 Amendment (Scotland) Act, 1856, sect. 2 (now repealed), altered the law in the 
 case of sub-sales, and the Sale of Goods Act appears to apply a uniform rule to 
 both countries. 
 
 The Scottish Law as to stoppage in transitu appears to be similar to 
 
 (k) Blackburn on Sale, p. 308 ; c/. Bolton v. Lanes, d; Yorks. Railway (1866), 
 L. B. 1 0. P., at p. 439, per WiUes, J. 
 
 (I) Kendal v. Marshall, Stevens & Co. (1888), 11 Q. B. D., at p. 368, C. A.; see 
 Gibson v. Carruthers (1841), 8 M. & W. 321, at p. 326, per Lord Abinger; Booth 
 Steamship Go. v. Cargo Fleet Iron Co., [1916] 2 K. B. 270, at pp. 582, 597-, 0. A. ; 
 Blackburn on Sale, pp. 204-209. See Lord Bowen's statement as to the Civil Law 
 criticised in Moyle's Sale in the Civil Law, p. 155. 
 
 (m) Cf. Cassaboglou v. Gibb (1883), 11 Q. B. D., at p. 804; Kemp v. Falk (1882), 
 7 App. Cas., at p. 590; Tucker v, Humphrey (1828), 4 Bing., at p. 519. 
 
 («) Merchant Banking Co. v. Phcenix Co. (1877), 5 Oh. D., at p. 220 (case of 
 seller's lien). 
 
 (o) Mercantile Law Commission, 1855, 2nd Eep., pp. 8, 9, 44; Melrose v. Haslie 
 (1851), 13 Seas. Cas. 880. 
 
96 THE SALE OF GOODS ACT, 1893. 
 
 English law. The doctrine " was first applied to Scottish bargains of movables 
 by a decision of the House of Lords in 1790, in place of a rule of presumed fraud 
 intra triduum, which had formerly been held to entitle a seller to restitution of 
 his goods even after delivery " (p). 
 
 As to France, see Art. 1654 of the Civil Code, which is modified in 
 commercial matters by Arts. 674 — 576 of the Code de Commerce, and Bravard 
 Bemangeat, Droit Commercial, 7th ed., p. 621. As to India, see sects. 95-106 
 of the Indian Contract Act, 1872. 
 
 Sub-sect. (2) was necessary because it would be a contradiction in terms to 
 speak of a man having a lien upon his own - goods. The enactment is 
 declaratory (q). 
 
 40. Attachment by seller in Scotland. — In Scotland a seller of 
 goods may attach the same while in his own hands or possession by 
 arrestment or poinding; and such arrestment or poinding shall 
 have the same operation and effect in a competition or otherwise 
 as an arrestment or poinding by a third party. 
 
 This section is taken from sect. 3 of the Mercantile Law Amendment 
 (Scotland) Act, 1856. It is probably restrained by the provisions of sect. 47, 
 post, p. 106. 
 
 Unpaid Seller's Lien. 
 
 41. — (1.) Seller's lien. — Subject to the provisions of this Act, 
 the unpaid seller of goods who is in possession of them is entitled 
 to retain possession of them until payment or tender of the price 
 in the following cases, namely : — 
 
 (a.) Where the goods have been sold without any stipulation as 
 
 to credit (r) ; 
 (b.) Where the goods have been sold on credit, but the term of 
 credit has expired (s) ; 
 
 (p) Bell's Principles, 9th ed., § 1307 ; Allen v. Stein (1790), M. 4949. 
 
 (2) Griffiths v. Perry (1859), 28 L. J. Q. B. 204, at p. 208 ; Ex p. Chalmers (1873), 
 L. B. 8 Ch. App., at p. 292. But see Law Quarterly Review, April, 1903, p. 113, per 
 A. Cohen, K.C. 
 
 (r) Bloxam v. Sanders (1825), 4 B. & C. 941, at p. 948 ; Miles v. Oorton (1834), 2 
 Cr. & M. 504, at p. 511. 
 
 (s) New V. Swain (1828), 1 Dan. & Lloyd, 193, per Bayley, J. ; Bunney v. Poyntz 
 (1833), 4 B & Ad. 568, at p. 569, per Littledale, J. ; see, too, dicta in Martindale v. 
 Smith (1841), 8 Q. B., at p. 395; Valpy v. Oakeley (1851), 16 Q. B., at p. 951, and 
 sects. 95, 96 of the Indian Contract Act, 1872. 
 
UNPAID SELLjEBS' limn (SECT. 41). 97 
 
 (c.) Where the buyer becomes insolvent (t). 
 
 (2.) The seller may exercise his right of lien notwithstanding 
 that he is in possession of the goods as agent or bailee [or custodier] 
 for the buyer (u). 
 
 As to the teiin " unpaid seller," see sect. 38, ante, p. 93 ; and as to the term 
 "insolvent," see sect.' 62, (3) post, p. 142. By sect.- 62, post, "bailee" in 
 Scotland includes custodier, and " lien " includes right of retention. 
 
 Sub-sect. (2) was originally confined to the case where the buyer was insolvent. 
 It was altered to its present form in Committee. 
 
 The Hen is a lien for the price only, and not for charges for keeping the 
 goods, for they are kept against the buyer's will {x). 
 
 A sale on credit excludes the lien during the currency of the credit (y), 
 unless there be a trade usage to the contrary (z). 
 
 As regards instalment contracts, Mellish, L.J., says, " The seller, notwith- 
 standing he may have agreed to allow credit for the goods, is not bound to 
 deliver any more goods under the contract untU the price of the goods not yet 
 delivered is tendered to him ; and if a debt is due to him for goods already 
 delivered, he is entitled to refuse to deliver any more till he is paid the debt 
 due for those already delivered, as well as the price of those still to be delivered . . . 
 It would be strange if the right of a vendor who had agreed to deliver goods 
 ■by instalments were less than that of a vendor who had sold specific goods " (a). 
 
 Even if the seller has broken his contract to deliver while the buyer is 
 solvent, his Hen revives on the buyer becoming insolvent, and the buyer's 
 trustee is only entitled at most to nominal damages for the breach, unless the 
 value of the goods at the time of breach was above the contract price (b). 
 
 When the seller exercises his right of Men, the buyer's trustee may aiBrm 
 the contract and obtain the goods by tendering the price within a reasonable 
 time (c), for it is clear law that the mere insolvency or bankruptcy of a party 
 
 {«) Bloxam v. Sanders (1825), 4 B. & 0. 941 ; Bloxam v. Morley (1825), 4 B. & C. 
 951 ; Griffiths v. Perry (1859), 28 L. 3. Q. B. 204; Ex p. Lambton (1875), L. B. 10 
 Ch. App., at p. 415, Ounn v. Bolehow Vatigfian & Co. (1875), L. E. 10 Oh. App. 491, 
 at p. 501. 
 
 {u) Townley\. Crump (1835), 4A. &B. 58; Orice v. Richardson (1877), 3 App. 
 Gas. 319 P. 0. Aliter before the Act if the buyer was solvent, Cusack v. Robinson 
 (1861), 30 L.-J. Q. B., at p. 264, per Blackburn, J. 
 
 (x) Somes v. British Empire Shipping Co. (1859), 28 L. J. Q. B. 220, Ex. Ch. 
 afBrmed by H. L., 30 L. J. Q. B. 229 (shipwright's lien, but the rule was stated to 
 apply to the seller's lien). 
 
 (y) Spartali v. Benecke (1850), 10 0. B. 212, at p. 228. 
 
 (s) Field V. Lelean (1861), 80 L. J. Ex. 168, Ex. Oh. 
 
 (a) Ex p. Chalmers (1873), L. K. 8 Ch. App. 289, at p. 293 ; cf. Ex p. Stapleton 
 (1879), 10 Oh. D. 586, 0. A. 
 
 (6) Valpy V. OakUy (1861), 16 Q. B. 941; 20 L J. Q. B. 380; Griffiths v. Perry 
 (1859), 28 L. J. Q. B. 204. 
 
 (o) Exp. StapUton (1879), 10 Oh. D. 586, 0. A. 
 
 c.s.G. n 
 
98 THE SALE OF GOODS ACT, 1893. 
 
 to a contract does not rescind it (d). But it seems that, in the case of insolvency, 
 an agreement to rescind Trill be presumed on slight grounds (e). 
 
 A siib-purohaser also is probably entitled to obtain the goods by tendering 
 the price to the original seller within a reasonable time (/). 
 
 42. Part delivery. — Where an unpaid seller has made part 
 delivery of the goods, he may exercise his right of lien [or reten- 
 tion] on the remainder, unless such part delivery has been made 
 under such circumstances as to show an agreement to waive the 
 lien {g) [or right of retention]. 
 
 By sect. 62, post, p. 138, " Hen " in Scotland includes right of retention. 
 See " unpaid seller " defined by sect. 38, cmte. 
 
 In a case where it was unsuccessfully contended that the delivery of part of 
 a cargo to a sub-purchaser was a constructive delivery of the whole. Lord 
 Blackburn says : " It is said that delivery of a part is delivery of the whole. 
 It may be a delivery of the whole. In agreeing for the delivery of goods with 
 a person, you are not bound to take an actual corporeal delivery of the whole 
 in order to constitute such a delivery, and it may very well be that a delivery 
 of part of the goods is sufficient to afford strong evidence that it is intended as 
 a deUvery of the whole. If both parties intend it as a delivery of the whole, 
 then it is a delivery of the whole ; but if either of the parties does not intend 
 it as a delivery of the whole, if either of them dissents, then it is not a delivery 
 of the whole " Qi). 
 
 Severable contract. — As regards severable contracts, if, for instance, delivery 
 is to be made by three instalments, and the first instalment has been delivered 
 and paid for, and the second has been delivered but not paid for, the seller 
 cannot withhold delivery of the third instalment till he has been paid for both 
 the second and third instalments, unless (1) the non-payment involves a repudia- 
 tion of the contract under sect. 31, ante (i), or (2) the buyer is insolvent (/). 
 But any instalment which has been paid for must be delivered, even though the 
 buyer be bankrupt (k). 
 
 {d) Mess V. Duffus (1901), 6 Com. Gas. 165 (action for damages for non-acceptance), 
 
 (e) Morgan v. Bain (1874), i L. E. 10 C. P. 15. As to trustee's right to disclaim 
 onerous contracts, see sect. 54 of the Bankruptcy Act, 1914 (4 & 5 Geo. 5, c. 59). 
 
 (/) Exp. Stapleton, supra; and cf. Kemp v. Walk (1882), 7 App. Oas., at p. 678, 
 per Lord Selborne. 
 
 {g) Dixon v. Yates (1833), 5 B. & Ad. 313, see at p. 841; Miles v. Gorton (1834), 
 2 Or. & M. 503; cf. Exp. Cooper (1879), 11 Gh. D. 68, C. A. (stoppage in transitu). 
 
 {h) Kemp v. Falk (1882), 7 App. Gas. 573, at p. 586, citing for the position, Dixon 
 V. Yates, supra, which was a case of seller's lien. 
 
 (i) Steinberger v. Atkinson & Co. (1914), 31 T. L. E. 110 (no repudiation). 
 
 (j ) Ex p. Chalmers (1873), L. E. 8 Oh. App. 289. 
 
 (fc) Merchant Banking Go, v. Phoenix Bessemer Steel Co. (1877), 5 Oh. D. 205. 
 
UNPAID SELLER'S LIEN (SECT. 43). 99 
 
 43. — (1.) Termination of lien. — The unpaid seller of goods loses 
 his lien [or right of retention] thereon — 
 
 (a.) When he delivers the goods to a carrier or other bailee [or 
 custodier] for the purpose of transmission to the buyer (I) 
 without reserving the right of disposal of the goods (m) ; 
 {b.) When the buyer or his agent lawfully obtains possession of 
 
 the goods (n) ; 
 (c.) By waiver thereof. 
 
 (2.) The unpaid seller of goods, having a lien [or right of reten- 
 tion] thereon, does not lose his lien [or right of retention] by reason 
 only that he has obtained judgment [or decree] for the price of the 
 goods (o). 
 
 As to the term " unpaid seller,'' see sect. 38, ante, p. 93 ; and as to reservation 
 of tie right of disposal, see sect. 19, ante, p. 60. The words in brackets are 
 Scottish terms. 
 
 When goods are delivered to a carrier for transmission to the buyer, the 
 right of lien becomes changed into a right of stoppage in transitu should the 
 buyer become insolvent. As iu the case of the buyer's insolvency the two rights 
 are similar in their effects, they are sometimes confused in the cases. 
 
 For the most part, the cases on what constitutes an actual receipt within the 
 meaning of the Statute of Frauds appear to furnish the test for determining 
 whether the seller's lien is gone or not. " The principle," says Blackburn, J., 
 " is that there cannot be an actual receipt by the vendee so long as the goods 
 continue in the possession of the seller so as to preserve his lien. But though 
 the goods remain in the personal possession of the vendor, yet if it is agreed 
 between the vendor and the vendee that the possession shall thenceforth be kept, 
 not as vendor, but as bailee for the purchaser, the right of lien is gone, and then 
 there is sufficient receipt to satisfy the statute " (p). But this proposition must 
 now be taken subject to the provisions of sect. 41 (2), ante, p. 97. The sub- 
 
 (l) Bolton V. Lane. S Torks. Bailway Co. (1866), L. B. 1 0. P., at p. 439, per 
 Willes, J. ; Pollock on Possession, pp. 71, 72; c/, Griffiths v. Perry (1859), 23 L. J. 
 Q. B., at pp. 207, 258 ; and see the oases cited for sect. 32, ante, p. 84. 
 
 (m) As to reserving right o£ disposal, see sect. 19, ante, p. 60. 
 
 \n) Hawes v. Watson (1824), 2 B. & C. 543 ; Cooper v. Bill (1865), 34 L. J. Ex. 
 161; Dodsley y. Varley (1840), 12 A. & E. 632; cf. Schotsmans v. Lane, d; YorTcs. 
 Bailway (1867), L. E. 2 Oh. App., at p. 335, as to stoppage in transitu. The 
 sub-section was amended in Committee. 
 
 (o) Houlditch V. Desanges (1818), 2 Stark. 337; Scrivener v. Great Northern 
 Bailway (1871), 19 W. R. 388. (Qu. if lien extends only to price or also to costs on 
 the judgment ?) 
 
 (_p) Cusack V. Bobinson (1861), 30 L. J. Q. B., at p. 264; cf. Baldey v. Parker 
 (1823), 2 B. & 0., at p. 44, per Holroyd, J. 
 
100 THE SALE OF GOODS AOT, 18&3. 
 
 section was altered in Committee into its present form. As the Bill was 
 drafted it was confined to oases where the buyer was insolvent. 
 
 Subject to sect. 47, when goods, at the time of sale, are in the possession of 
 a thifd person there is no delivery to the buyer, and the seller's lien therefore is 
 not divested till such third person attorns to the buyer (g). 
 
 Again, the seller may deliver the goods to the buyer on such terms as that 
 the buyer holds them as bailee for the seller ; but in that case the seller 
 has rather a special property in the goods arising out of the special agreement, 
 than a lien properly so called (r). 
 
 ■Waiver of lien. — The right of Hen is given to the seller by iniplication of law, 
 see sect. 39. It follows that it may be waived expressly. But it may also be 
 waived by implication. The seller may reserve an express lien which excludes 
 the implied one (s), or he may take a biU for the price which ordinarily would 
 exclude his lien during its currency, though the lien would revive on its 
 dishonour (f) ; or the seller may assent to a sub -sale (u) ; or part with the 
 documents of title so as to exclude his lien under the provisions of the Factors 
 Act, if the documents get into the hands of a holder for value. See, too, sect, 
 55 as to negativing implied terms. 
 
 Stoppage in transitu. 
 
 44. Right of stoppage in transitu. — Subject to the provisions 
 of this Act {x), when the buyer of goods becomes insolvent (y), the 
 unpaid seller who has parted with the possession of the goods has 
 the right of stopping them in transitu, that is to say, he may 
 resume possession of the goods as long as they are in the course of 
 transit, and may retain them until payment or tender of the 
 price (z). 
 
 Nature of stoppage in transitu. — "The vendors being unpaid," says Lord 
 Esher, "and the purchasers having become insolvent, according to the law 
 
 (2) McEwan v. Smith (1849), 2 H. of L. Cas. 309, and ante, p. 80. 
 
 \r) Cf. Dodsley v. Va/rley (1840), 12 A. & E. 632, at p. 634, per Lord Denman. 
 
 (s) Be Ldth's Estate (1866), L. E. 1 0. P. at p. 305. As to efieot of taking 
 subsequent security, see Angus v. McLachlan (1883), 23 Gh. D. 330. 
 
 (t) Valpy V. Oakeley (1851), 16 Q. B. 941, at p. 951; Griffiths v. Perry (1859), 28 
 L. J. Q. B., at p. 207. 
 
 («) Knights V. Wiffen (1870), L. E. 5 Q. B. 660; and see, too, sect. 4:7,post,v. 106. 
 
 {x) See sects. 45 to 47, post. 
 
 (y) For definition of insolvenoyj see sect. 62 (3), post, p. 142. 
 
 (2) Lickbarrow v. Mason (1793), 6 East, 21 H. L. ; 1 Smith, L. C, 11th ed., 
 p. 693, and notes; Gibson v. Carruthers (1841), 8 M. & W. 321; Bolton v. Lane, d 
 Yorks. Bailway (1866), L. E. 1 C. P 431, at p. 439; Bethell v. Clarke (1887) 19 
 Q. B. D. 553, at p. 561, affirmed, 20 Q. B. D. 615, 0. A. ; Pollook on Possession, 
 pp. 72, 74, 214 ; Laws of England, vol. xxv., p. 247. 
 
STOPPAGE IN TRANSITU (SECT. 44). ' 101 
 
 merchant the vendors had a right to stop the g-oods in transitu, although the 
 property in such goods might have passed to the purchasers. The doctrine of 
 stoppage in transitu has always been construed favourably to the vendor " (a). 
 
 The right of stoppage in transitu is a right against the goods themselves. 
 "If they arrive injured and damaged in bulk or quality the right to stop 
 in transitu is so far impaired, there is no contract or agreement which entitles 
 the vendor to go beyond those goods in the state in which they arrive, and to 
 claim moneys which have been paid by the underwriters to the purchasers of the 
 goods in respect of their loss by the non-arrival of their property " (6). 
 
 The term " stoppage in transitu " only applies in strictness to cases where the 
 property in the goods has passed to the buyer (c). If the property has not 
 passed, the seller's rights depend upon his so-called right of Hen or upon a 
 reservation of the jus disponendi (d). But it was clear before the Act that the 
 seller's right of withholding or countermanding delivery extended to executory, 
 as well as executed, contracts, when the buyer was insolvent (e). 
 
 In order to form a clear notion of the' meaning of the term " transitus," two 
 points should be noted : — (1) The goods may be in transitu although they have 
 left the hands of the person to whom the seller intrusted them for transmission. 
 It is immaterial how many agents' hands they have passed through if they have 
 not reached their destination (/). (2) The term does not necessarily imply 
 that the goods are in motion, for, " If the goods are deposited with one who holds 
 . them merely as an agent to forward and has the custody as such, they are as much 
 in transitu as if they were actually moving " (g). 
 
 " The essence of stoppage in transitu," says Lord Cairns, " is that the goods 
 should be in the possession of a middleman " (h). 
 
 Lord Esher, to a great extent adopting Lord Tenterden's definition of the 
 term transitu^, suggests the following proposition : — " Goods are deemed to be 
 in transitu not only while they remaiu in the possession of the carrier, whether 
 by water or land, and although such carrier may have been named and appointed 
 by the consignee ; but also when they are in any place of deposit connected 
 with the transmission and delivery of them, having been there deposited by the 
 person who is carrying them for the purposes of transmission and delivery until 
 they arrive at the actual possession of the consignee or at the possession of his 
 agent, who is to hold them at his disposal and deal with them accordingly " (i). 
 
 (a) Bethell v. Clarke (1888), 20 Q. B. D., at 617, 0. A. 
 
 (6) Berndtson v. Strang (1868), L. B. 3 Ch. App. 588, at p. 591, per Lord Cairns ; 
 cf. Phelps v. Comber (1885), 29 Ch. D. 813, C. M. 
 
 (c) Gibson v. Ca/rruthers (1841), 8 M. & W. 321. 
 
 (d) Bolton V. Lane. & Yorks. Bailway (1866), L. B. 1 C. P.. at p. 439, per Willes, J. 
 
 (e) See sect. 39 (2), and Griffiths v. Perry (1859), 28 L. J. Q. B., at p. 208; Exp. 
 Chalmers (1873), L. B. 8 Ch. App., at p. 292. 
 
 (/) Bethell v. Clarke (1888), 20 Q. B. D., at p. 619, per Pry, L.J., approved, 
 Lyons v. Hoffming (1890), 15 App. Cas. 391, P. 0. 
 
 (g) Blackburn on Sale, p. 244. 
 
 {h) Schotsman v. Lane, and Yorks. Bailway (1867), L. B. 2 Ch. App., at p. 838. 
 
 (i) Kendall v. Marshall, Stevens & Co. (1883), 11 Q. B. D. 356, at p. 364, C. A. ; 
 e/. Abbot an Shipping, 12th ed., p. 409. 
 
102 THE SALE OF GOODS ACT, 1893." 
 
 Mr. Justice E. S. Wright defines the term transitus, by stating' that goods are 
 in transitu " at any time before the goods have reached the possession of the 
 vendee or the vendee's servant, and whilst they are still in the possession of a 
 carrier or other person, as an intermediary, who has not yet by attornment, 
 usage, or otherwise, agreed to hold them exclusively for the vendee " (k). 
 
 When goods, which have been sold, are in the actual possesssion of a carrier 
 or other bailee, three states of fact may exist with regard to them : — First, the 
 carrier or other bailee may hold them as agent for the seller ; in that case the 
 seller preserves his Hen, and the right of stoppage in transitu does not arise. 
 Secondly, the goods may be in medio. The carrier or other bailee may hold 
 them in his character as such, and not exclusively as the agent of either the 
 seller or buyer. In that case the right of stoppage in transitu exists. Thirdly 
 the carrier or other bailee may hold the goods either originally or by subsequent 
 attornment, solely as agent for the buyer. In that case there either has been 
 no right of stoppage or it is determined. The difficulties that arise are rather 
 difficulties of fact than of law. 
 
 As to the carrier's lien and rights when goods are stopped in transit, see 
 sect. 46 (2) post. 
 
 45. — (1.) Duration of transit. — Goods are deemed to be in course of 
 transit from the time when they are delivered to a carrier by land 
 or water, or other bailee [or custodier], for the purpose of trans- • 
 mission to the buyer, until the buyer, or his agent in that behalf, 
 takes delivery of them from such carrier or other bailee [or 
 custodier] (l). 
 
 (k) Pollock and Wright on Possession, p. 214. 
 
 (I) For principle, see Bolton v. Lane. '& Yorks. Baihuay (1866), L. R. 1 C. P., at 
 p. 439, per WiUes, J. For illustrations see Whitehead v. Anderson (1842), 9 M. & W. 
 518 (promise by captain to deliver when satisfied as to freight, transit not ended) ; 
 Dodson V. Wentworth (1842), 4 M. & Gr. 1080 (goods delivered by carrier to warehouse 
 to await orders, transit ended) ; Valpy v. Gibson (1847), 4 C. B. 837 (goods delivered 
 to shipping agent of buyer, transit ended) ; Schotsman v. Lane. <t Yorks. Railway 
 (1867), L. B. 2 Ch. App. 332 (goods delivered to general ship owned by buyer, transit 
 ended) ; Coventry v. Gladstone (1868), L. R. 6 Eq. 44 (overside orders given by mate 
 to holder of bill of lading, transit not ended ; Ex p. Gibbes (1875), 1 Oh. D. 101 
 (goods shipped to Liverpool and then put on railway for buyer, transit ended) ; Ex 
 p. Watson (1877), 5 Ch. D. 35 (inefieotual interruption of transit) ; Ex p. Barrow 
 (1877), 6 Ch. D. 783 (goods warehoused by carrier as forwarding agent, transit not 
 ended) (?) ; Ex p. Bosevear China Clay Co. (1879), 11 Ch. D. 560 (goods shipped on 
 ship hired by buyer, destination not stated, transit not ended) ; Kemp v. Falk (1882), 
 7 App. Gas. 573, see at p. 584 (goods on ship, cash receipts instead of delivery orders 
 given to buyer, transit not ended); Ex p. Francis (1887), 4 Morrell 146 (goods 
 shipped in vessel of buyer's agent, transit ended) ; Bethell v. Clarke (1888), 20 
 Q. B. D. 615, 0. A. (goods ordered to be delivered to the "Darling Downs" to 
 Melbourne, transit not ended by shipment) ; followed Lyons v. Hoffnung (1890), 15 
 App, Gas. 391, P. G. ; Ex p. JSughes (1892), 4 Morrell, 294 (break in transit) ; Kemp 
 
STOPPAGE IN TBANSITU (SECT. 45). 103 
 
 (2.) If the buyer or his agent in that behalf obtains delivery of 
 the goods before their arrival at the appointed destination, the 
 transit is at an end (m). 
 
 (3.) If, after the arrival of the goods at the appointed destination, 
 the carrier or other bailee [or custodier] acknowledges to the buyer 
 or his agent, that he holds the goods on his behalf, and continues in 
 possession of them as bailee [or custodier] for the buyer, or his 
 agent, the transit is at an end, and it is immaterial that a further 
 destination for the goods may have been indicated by the buyer {n). 
 
 (4.) If the goods are rejected by the buyer, and the carrier or 
 other bailee [or custodier] continues in possession of them, the 
 transit is not deemed to be at an end, even if the seller has refused 
 to receive them back (o). 
 
 (5.) When goods are delivered to a ship, chartered by the buyer 
 it is a question depending on the circumstances of the particular 
 case, whether they are in the possession of the master as a carrier, or 
 as agent to the buyer (^). 
 
 (6.) Where the carrier or other bailee [or custodier] wrongfully 
 refuses to deliver the goods to the buyer, or his agent in that 
 behalf, the transit is deemed to be at an end (q). 
 
 V. Ismay (1909), 14 Com. Cas. 202 (goods bought by agent in his own name for 
 transmission abroad). 
 
 (m) Whiteliead v. Anderson (1842), 9 M. & W. 518, at p. 534 ; Blackburn on Sale, 
 p. 249 ; cf. Land, dt N. W. Railway v. Bartleit (1861), 31 L. J. Ex. 92 (alteration of 
 journey by agreement between carrier and consignee) ; see, too, dictum of Bowen, 
 L.J., in Kendal v. Marshall, Stevens & Co. (1883), 11 Q. B. D., at p. 369. 
 
 (n) For principle, see Kendal v. MarsJuill, Stevens & Co. (1883), 11 Q. B. D. 356, 
 0. A., where the carrier attorned to buyer's agent. In illustration, see Dixon v. 
 Baldwen (1804), 5 East, 175 ; Valpy v. Qibson (1847), 4 G, B. 865, where a re-delivery 
 to seller for special purpose did not revive right of stoppage ; Ex p. Miles (1885), 15 
 Q. B. D. 39, C. A. 
 
 (o) Bolton V. Lane. & Xorhs. Bailway (1866), L. R. 1 C. P. 431 ; cf. James v. 
 Grijffin (1837), 2 M. & W. 623. 
 
 (p) Bemdtson v. Strantj (1867), L. R. 4 Eq. 481, at p. 489 ; on appeal L. B. 
 3 Ch. App., at p. 590, per Lord Cairns (the test is whether the master is the servant 
 of the owner or the chatterer) ; Ex p. Bosevcar China Clay Co. (1879), 11 Ch. D 
 560, C. A. (ship hired verbally) ; cf. Schotsmans v. LaTic. and Yorks. Bailway (1867),' 
 2 Ch. App. 332 (general ship owned by buyer, transit ended). 
 
 (q) Bird v. Brown (1850), 3 Exch. 786, at p. 790 (where carrier refused to deliver 
 in consequence of an invalid notice to stop). 
 
104 THE SALE OF GOODS ACT, 1893. 
 
 (7.) Where part delivery of the goods has been made to the 
 buyer, or his agent in that behalf, the remainder of the goods may 
 be stopped in transitu, unless such part delivery has been made 
 under such circumstances as to show an agreement to give up 
 possession of the whole of the goods (r). 
 
 The term " custodier " is the Scotch equivalent of " bailee." See delivery 
 defined by sect. 62, post. As the right of stoppage in transitu arises by 
 implication of law (sect. 39), it follows that it may be waived by the seller under 
 the provisions of sect. 55, post, p. 126. 
 
 Destination. — As regards the term " destination," Lord Esher says that it 
 means sending the goods to a particular place to a particular person who is to 
 receive them, and not sending them to a particular place without saying tg 
 whom " (s) ; and Lord Fitzgerald says, " Transit embraces not only the carriage 
 of the goods to the place where delivery is to be made, but also delivery of the 
 goods there according to the terms of the contract of conveyance " (<). 
 
 Termination of transit. — Where the attornment of the carrier is relied on, that 
 attornment must be founded on mutual assent. If the carrier do not assent to 
 hold the goods for the buyer, or if the buyer do not assent to his so holding them, 
 there is no attornment (it). 
 
 The fact that the freight is unpaid is strong, though not conclusive, evidence 
 that the carrier is in possession of the goods, as such, and not as the buyer's 
 agent (x). 
 
 A neat summary of the law as to the termination of the transit is given by 
 Cave, J., who says, " When the goods have arrived at their destination, and have 
 been delivered to the purchaser or his agent, or where the carrier holds them as 
 warehouseman for the purchaser, and no longer as carrier only, the transitus is 
 at an end- The destination may be fixed by the contract of sale, or by directions 
 given by the purchaser to the vendor. But, however fixed, the goods have 
 arrived at their destination, and the transit is at an end when they have got into 
 the hands of some one who holds them for the purchaser and for some other 
 purpose than that of merely' carrying them to the destination fixed by the 
 contract or by the directions given by the purchaser to the vendor. The 
 difficulty in each case lies in applying these principles " {y). 
 
 {r) Bolton v. Lane, and Yorks. BmVway (1866), L. B. 1 0. P., at p. 440, per 
 WUles, J. ; Ex p. Cooper (1879), 11 Ch. D. 68-, 0. A. ; Kemp v. Palk (1882), 7 App. 
 Cas., at p. 586, per Lord Blackburn ; cf. sect. 42, ante, p. 98, as to seller's lien. 
 
 (s) Exp. Miles (1885), 15 Q. B. D. 39, at p. 43, C. A. 
 
 {t) Kemp V. Falk (1882), 7 App. Gas., at p. 588. 
 
 {u) See James v. Griffin (1887), 2 M. & W. 623 (offer to attorn not accepted by 
 buyer ; Kemp v. Falk (1882), 7 App. Cas., at pp. 584, 586 (carrier not agreeing to , 
 change his character). See also Blackburn on Sale, p. 248. 
 
 (x) Kenip v. Falk (1882), 7 App. Cas., at p. 584. 
 
 (y) Bethell v. OUrhe (1887), 19 Q. B. D. 558, at p. 561 ; affirmed by 0. A., 20 
 Q. B. D, 615, 
 
STOPPAQE IN TRANSITU (SECT. 46). 105 
 
 In a case where goods were consigned to South Africa, but were stopped by 
 the buyer at Southampton, BaUhache, J., held that the transitus was at an end, 
 saying, " Where the original transitus is interrupted by the buyers, I think the 
 test is whether the goods wUl be set in motion again without further orders 
 from the buyers ; if not, the transit is ended, aoad the right to stop lost " (a). 
 
 46, — (1.) How stoppage in transitu is eflfected. — The unpaid seller 
 may exercise his right of stoppage in transitu either by taking 
 actual possession of the goods (6), or by giving notice of bis claim 
 to the carrier or other bailee [or custodier] in whose possession the 
 goods are (c). Such notice may be given either to the person in 
 actual possession of the goods or to his principal. In the latter case 
 the notice, to be eflPectual, must be given at such time and under 
 such circumstances that the principal, by the exercise of reasonable 
 diligence, may communicate it to his servant or agent in time to 
 prevent a delivery to the buyer {d). 
 
 (2.) When notice of stoppage in transitu is given by the seller 
 to the carrier, or other bailee [or custodier] in possession of the goods, 
 he must re-deliver the goods to, or according to the directions of, 
 the seller (e). The expenses of such re-delivery must be borne by 
 the seller. 
 
 Illustrations. 
 
 1. Goods are stopped in transit while in the hands of a railway company. 
 The company have a lien for the charge of carrying those particular goods, but 
 no general lien for other moneys due from the consignee, even though the 
 consignment note purports to create such a Hen (/). 
 
 2, Goods sent by sea are stopped in transit at a port short of the destination. 
 The unpaid seller declines to take any action with regard to the goods. He is 
 liable for freight to destination and any landing charges that may have been 
 incurred (g). 
 
 (a) Beddall v. Union Castle Steamship Co. (1914), 20 Com. Cas, 86, 90. 
 (6) Snee v. Prescot (1743), 1 Atk. 245, at p. 250, per Lord Hardwioke ; Whitehead 
 V. Anderson (1842), 9 M. & W., at p. 534, per Parke, B. 
 
 (c) Litt v. Cowley (1816), 7 Taunt. 169, at p. 170, per Gibbs, C.J. 
 
 (d) Whitehead v. Anderson (1842), 9 M. & W. 518 ; Exp. Watson (1877), 5 Ch. D. 
 35, C. A. ; Kemp v. Falk (1882), 7 App. Cas., at p. 585 ; cf. Phelps v. Comber (1885), 
 29 Ch. D. 813, C. A. (notice to consignee to hold proceeds ineffectual). 
 
 (e) The Tigress (1863), 32 L. J. Adm. 97, at p. 102. 
 
 if) United States Steel Prodmts Co. v. a. W BaMway, [1916] A. C, 189, 195, 196. 
 {g) Booth Steamship Co. v. Cargo Fleet Iron Co., [1916] 2 K. B. 570, C. A. ; 22 
 Com. Cas. 9. 
 
106 THE SALE OF GOODS ACT, 1893. 
 
 " The law is clearly settled," says Parke, B., " that the unpaid vendor has a 
 right to retake the goods hefore they have arrived at the destination originally 
 contemplated by the purchaser, unless in the mean time they have come into the 
 actual or constructive possession of the vendee. If the vendee take them out of 
 the possession of the carriers into his own before their arrival, with or without 
 the consent of the carrier, there seems to be no doubt that the transit would be 
 at an end, though, in the case of the absence of the carrier's consent, it may be 
 a wrong to him for which he would have a right of action " (h). 
 
 As to the " unpaid seller," see sect. 38 ; " retention '' is the Scottish 
 equivalent of " Hen." 
 
 " The seller," says Dr. Lushington, " OTOrcises his right of stoppage in 
 transitu at his own peril, and it is incumbent upon the master to give effect to 
 a claim, as soon as ho is satisfied it is made by the vendor, unless he is aware of 
 a legal defeasance of the claim " (i). If after notice, lawfully given, the 
 carrier delivers to the consignee or refuses to deliver to the seller, he is guilty 
 of a conversion of the goods. In case of real doubt he should resort to an 
 interpleader (fc). For if the transit has ended and he wrongfully restores the 
 goods to the seller, he is liable to the buyer in an action for conversion (I). The 
 seller has also a remedy by injunction (m), or, if the goods be in the hands of 
 the master of a ship, by arrest of the ship (n). 
 
 In a case in the Court of Appeal, Lord Bram.well doubted whether there was any 
 obligation on the part of the principal to send on a notice of stoppage to his 
 agent (o) : but, when the case went to the House of Lords, Lord Blackburn 
 expressly repudiated this doubt (p). Though, as between seller and carrier, 
 the expenses of stoppage and re-delivery fall on the seller, it may be that the 
 seller would be able to prove for them against the buyer's estate.- 
 
 Re-sale hy Buyer and Seller. 
 
 47. Effect of sub-sale or pledge by buyer. — Subject to the pro- 
 visions of this Act (q), the unpaid seller's right of lien [or retention] 
 
 {h) Whitehead v. Anderson (1842), 2 M. & W., at p. 534. 
 
 (i) The Tigress (1863), 32 L. J. Adm. 97, at p. 101. 
 
 (k) The Tigress (1868), 32 L. 3. Adm. 97, at p. 102 ; cf. Litt v. Cowley (1816), 7 
 Taunt., at p. 170; Fontifexv. Midland By. (1877), 3 Q. B. D. 23; discussed Boof^s 
 SteamsUp Co. v. Cargo Fleet Iron Co., [1916] 2 K. B. 570, C. A. 
 
 (1) Taylor v. G. E. BaiVmay, [1901] 1 K. B. 774. 
 
 (to) Schotsmans v. Lancashire BaiVivay (1867), L. E. 2 Ch, App., at p. 340. 
 {n) The Tigress (1863), 32 L. J. Adm. 97. 
 (0) Exp. Falk (1880), 14 Ch. D. 446, C. A. 
 (p) Kemp V. Falh (1882), 7 App. Cas., at p. 585. 
 
 (2) See sect, 25 (2), ante, p. 72, buyer in possession of document of title, and 
 Cahn V. Pockett's Bristol Channel Co. (1899), 1 Q. B., at p. 664, 0. A., and see notes 
 to sects. 9 and 10 of the Factors Act, 1889, post, pp. 157, 158. 
 
RE- SALE BY BUYEB AND SELLER (SECT. 47). 107 
 
 or stoppage in transitu is not affected by any' sale, or other dis- 
 position of the goods which the buyer may have made (r), unless the 
 seller has assented thereto (s). 
 
 Provided that where a document of title to goods has been 
 lawfully transferred to any person as buyer or owner of the goods, 
 and that person transfers the document to a person who takes the 
 document in good faith and for valuable consideration, then, if 
 such last-mentioned transfer was by way of sale, the unpaid seller's 
 right of lien [or retention] or stoppage in transitu is defeated, and 
 if such last-mentioned transfer was by way of pledge or other 
 disposition for value, the unpaid seller's right of lien [or retention] 
 or stoppage in transitu can only be exercised subject to the rights 
 of the transferee. 
 
 Illustrations. 
 
 (1) A, an oil merchant, sells oil to B without appropriating any particular 
 oil to the contract. B sells 2 tons of the oil to C, and gives him a delivery 
 order. C lodges the delivery order with A, indorsing it " please wait our 
 orders." B falls into arrears with his payments, and A refuses to deliver the 2 
 tons to C. He has not lost his seller's lien, and is entitled to refuse ((). 
 
 (2) A having 6000 bags of mowra seed sells 2600 to B, which B pays for by 
 ,chec[ue. A gives B delivery orders for the 2600 bags, and B sells the seed to C, 
 and indorses the delivery orders to him. If B's cheque is dishonoured, A has 
 lost his right of lien and must deliver the seed to C (tt). 
 
 The proviso reproduces and develops sect. 10 of the Factors Act, 1889, 
 ipost, p. 158, which, for the purposes of the Act, puts aU documents of title on 
 the same footing as a biU of lading. See " documents of title " and " Hen," 
 defined by sect. 62, 'post, pp. 135, 138. 
 
 (r) As to seller's lien, see Dixon v. Yates (1833), 5 B. & Ad. 313, at p. 339; 
 Farmeloe v. Bain (1876), 1 C. P. T>. 445. As to stoppage in transitu, Craven v. 
 Byder (1816), 6 Taunt. 433 ; Ex p. Oolding Davis & Co. (1880), 13 Oh. D. 628 ; Kemp 
 V. Valii (1882), 7 App. Gas. 573. As to delivery orders before the Factors, 1877, see 
 McEiuan v. Smith (1849), 2 H. of L. Oas. 309 ; Blackburn on Sale, p. 302, which 
 shows the common law efieots of these documents. 
 
 (s) Blackburn on Sale, p. 224 ; Sioveld v. Hughes (1811), 14 East, 808 ; Pearson 
 v. Dawson (1858), 27 L. J. Q. B. 248 ; Woodley v. Coventry (1863), 32 L. J. Ex. 185 ; 
 Knights v. Wiffen (1870), L. B. 5 Q. B. 660 ; Merchant Banking Co. v. Phoenix 
 Bessemer Co. (1877), 5 Oh. D. 205. 
 
 (t) Mordaunt Brothers v. British Oil and Cake Mills, [1910] 2 K. B. 502. 
 
 {u) Ant. Urgens Margarine fabrieken v. Louis Dreyfus d Co., [1914] 3 K. B. 41 
 {issue of delivery order by k— transfer of document of title). 
 
108 THE SALE OF GOODS ACT, 1893. 
 
 The effect of this enactment appears to be (i) to affirm the common law 
 effect of the transfer of a bill of lading, and (ii) to put all the documents of 
 title mentioned in sect. 1 of the Factors Act, 1889, on the same footing as bills 
 of lading for the purposes of that Act. As regards biUs of lading the law 
 appears to be as follows : — 
 
 Transfer of hill of lading.— (1) That as between buyer and seller, that is to 
 say, the immediate parties to the contract, the indorsement of the bill of lading 
 does not affect the right of stoppage, nor does a further indorsement by the 
 buyer affect the right unless the indorsement be for value (x), but an antecedent 
 debt may constitute such value (y). 
 
 (2) That if the holder of the bill of lading re-sells the goods or otherwise 
 disposes of them for value to a third person, who pays the money, such third 
 person acquires his interests in the goods, subject to the original seller's right 
 of stoppage in transitu, unless he gets a transfer of the bill of lading (z). 
 
 (3) That since the BiQs of Lading Act, 1865, as well as before, a bill of 
 lading may be indorsed by way of mortgage, pledge, or other security, and 
 not by way of absolute sale (a). Where a biU of lading is so transferred, the 
 original seller retains his right of stoppage subject to rights of the incumbrancer, 
 and, further, he may compel the incumbrancer to resort to other goods pledged 
 with him by his debtor, if such there be, before resorting to the goods covered 
 by the bill of lading (6). 
 
 (4) That the right of stoppage in transitu is wholly defeated when the 
 bill of lading is assigned absolutely for a consideration which is wholly paid(c). 
 
 (5) That when the bill of lading is transferred to a sub-purchaser absolutely 
 and for value, but that value is wholly or in part unpaid, there is probably no 
 longer any right to stop to the extent of the money which is unpaid. In Exp. 
 Golding Davis & Co., the buyer re-sold the goods and became insolvent; the 
 biU of lading was made out in the name of the sub -purchaser but not delivered to 
 him, and when the goods were stopped he had not paid the price. It was held, 
 that the original seller was entitled to stop the goods for the original purchase- 
 money. Cotton, L.J., said that the case must be decided " as if the biU of 
 lading had been made out in the name of the original purchasers and had then 
 been assigned by them to their sub-purchasers " (d). The decision was followed 
 a few months afterwards in Ex p. Folk, and Lord BramweU, referring to the 
 
 (x) Lickbarrow v. Mason (1793), 6 East 21, H. L. ; 1 Smith, L. C, 11th ed.,p. 693. 
 
 ly) Leask v. Scott (1877), 2 Q. B. D. 376, C. A., dissenting from Rodger v. 
 Comptoir d'Escompte (1869), L. R. 2 P. C. 393. 
 
 (a) Kemp v. Falk (1882), 7 App. Cas. 573, see at p. 582, per Lord Blackburn. 
 
 (a) Sewell v. Burdick (1884), 10 App. Cas. 74. But as to Scotland, see Hayman 
 V. McIAntock (1907), 9 F. at p. 949. 
 
 (6) Be Westzinthus (1833), 5 B. & Ad, 817 ; Spalding v. Buding (1843), 12 
 L. 3. Oh. 503 ; 6 Beav. 376 : approved Kemp v. Falk, 7 App. Oas. 585 ; cf. Coventry \. 
 Gladstone (1868), L. E. 6 Eq. 44. 
 
 (o) Lickbarrow v. Mason (1793), 1 Smith, Lead. Cas., 11th ed., p. 693 ; Leask v. 
 Scott (1877), 2 Q. B. D. 376, C. A. 
 
 {d) Ex p. Golding Davis (6 Co. (1880), 13 Oh. D. 628, at p. 637, C. A, 
 
kE-SALE BY BVYBR AND 8ELLEB (SECT. 48). 109 
 
 cases where bills of lading liad been pledged, said, " What difference is there 
 in principle between the case of a man selling goods on credit for £500 and 
 their being re-sold for £600, and the case of the purchaser pledging the goods 
 for £600 with the right of sale bjr the pledgee P " (e). But when Ex p. Folk 
 was taken to the House of Lords it was found to turn on wholly different con- 
 siderations. Lord Selborne seemed to doubt the rule laid down vnExp. Golding 
 Bavies & Co., saying he assented to " the proposition that where the sub- 
 purchasers get a good title as against the right of stoppage in transitu, 
 there can be no stoppage in transitu as against the purchase-money payable by 
 them to their vendor." The other lords declined to give any opinion on the 
 point (/). 
 
 As to biUs of lading, see further the Bills of Lading Act, 1855 (18 & 19 
 Vict. c. Ill), and notes thereto, post, p. 163. 
 
 48. — (1.) Sale not generally rescinded by lien or stoppage in transitu. 
 — Subject to the provisions of this section, a contract of sale 
 is not rescinded by the mere exercise by an unpaid seller of his 
 right of lien [or retention] or stoppage in transitu {g). 
 
 (2.) Where an unpaid seller who has exercised his right of lien 
 [or retention] or stoppage in transitu re-sells the goods, the buyer 
 acquires a good title thereto as against the original buyer (h), 
 
 (3.) Where the goods are of a perishable nature (i), or where 
 the unpaid seller gives notice to the buyer of his intention to re- 
 sell, and the buyer does not within a reasonable time pay or tender 
 the price, the unpaid seller may re-sell the goods and recover from 
 the original buyer damages for any loss occasioned by his breach of 
 contract (h). 
 
 (e) Ex p. Walk (1880), 14 Ch. D. 446, at p. 457, C. A. ; Phelps v. Comber (1885), 
 29 Ch. D., at p. 821. 
 
 (/) Kemp V. Falk (1882), 7 App. Cas. 573, at p. 577. 
 
 (g) Greaves v. Ashlin (1813), 8 Camp. 425 ; Martindale v. Smith (1841), 1 Q B. 
 389 ; Wentworth v. OuthwaAle (1842), 10 M. & W. 436 (Lord Abinger dissenting) ; 
 Page v. Oowasjee (1866), L. E. 1 P. C. at p. 145 ; Schotsmans v. Lanes, and Yorks, 
 Railway (1867), L. E. 2 Ch. App., at p. 340, per Lord Cairns ; Kemp v. Falk (1882), 7 
 App. Cas., at p. 581, per Lord Blackburn. 
 
 {h) Milgate y. Kebble (1841), 3 M. & Qr. 100; ef. Lord v. Price (1874), L. B. 9 Ex. 
 54 ; cf. sect. 25 (1), ante, and Laws of England, vol. xxv., p. 263. 
 
 (i) Cf. Maclean v. Dunn (1828), 4 Bing. 722, at p. 728, where there had been a 
 refusal to accept ; Laws of England, vol. xxv., p. 264. 
 
 (k) -Page v. Cowasjee (1866), L. E. 1 P. C, at p. 145; Lord v. Price (1874), L. E. 
 9 Ex., at p. 55 ; Ex p. Stapleton (1879), 10 Ch. D. 586, C. A. ; Indian Contract Act, 
 1872, § 107. Qu. if the re-sale results in a profit, whether the seller is entitled to 
 retain it ? Probably he is, see Latus of England, vol. xxv., p. 264. 
 
110 TBE BALE OF GOODS ACT, 1893. 
 
 (4) Where the seller expressly reserves a right of re-sale in 
 case the buyer should make default, and, on the buyer making 
 default, re-sells the goods, the original contract of sale is thereby 
 rescinded, but without prejudice to any claim the seller may have 
 for damages (Z). 
 
 By sect. 62, post, p. 138, " lien " in Scotland includes right of retention. 
 By sect. 56, post, p. 128, reasonable time is a question of fact. I 
 
 As long as the buyer is in default he is not entitled^to the immediate possession 
 of the goods, and therefore cannot maintain an action for conversion even 
 against a wrong-doer in possession (m). 
 
 Be-sale by seller. — In Ex p. Stapleton, it was said that when the buyer was 
 insolvent the seller might re-sell unless the trustee or a sub-purchaser tendered 
 the price within a reasonable time, and nothing was said about notice. But as 
 a fact the seller in that case gave fair notice of his intention to re-sell (n). 
 
 Before the Factors Act, 1877, if the seller wrongfully re-sold goods left in 
 his possession, the original buyer codM follow them into the hands of an 
 innocent purchaser (o), but that Act protected the purchaser where the seller 
 was left in possession of the documents of title, and sect. 8 of the Factors Act, 
 1889, now reproduced in sect. 25 (1) of this Act, protects the second purchaser 
 if either the goods themselves or the documents of titie to them are left in the 
 seller's hands. 
 
 See " unpaid seller," defined by sect. 38, ante, p. 93. Sub-sect. (3) appears ' 
 to be governed by sub-sect. (1), and only to apply to an unpaid seller who has 
 exercised his right of lien or stoppage. As to sale of i>erishable goods by 
 order of the court, see K.. S. C, Order L., r. 2. 
 
 (1) Lanumd v. Davall (18i7), 9 Q. B. 1030, 16 L. J. Q. B. 136. 
 (m) Lord v. Price (1874), L. B. 9 Ex. 54. 
 (to) Exp. Stapleton (1879), 10 Ch. D. 586, C. A. 
 
 (o) Langton v. Biggins (1859), 28 L. J. Ex. 252 ; Johnson Oridit I/yonnais (1877), 
 a C.P.D. 32. 
 
( 111 ) 
 
 PART Y. 
 
 Actions for Breach op the Contract. 
 
 Remedies of the Seller. 
 
 49. — (1.) Action for price. — Where, under a contract of sale, the 
 property in the goods has passed to the buyer, and the buyer 
 wrongfully neglects or refuses to pay for the goods according to the 
 terms of the contract, the seller may maintain an action against him 
 for the price of the goods (a). 
 
 (2.) Where, under a contract of sale, the price is payable on a 
 day certain irrespective of delivery, and the buyer wrongfully 
 neglects or refuses to pay such price, the seller may maintain an 
 action for the price, although the property in the goods has not 
 passed, and the goods have not been appropriated to the contract [h). 
 
 (3.) Nothing in this section shall prejudice the right of the seller 
 in Scotland to recover interest on the price from the date of tender 
 of the goods, or from the date on which the price was payable, as the 
 case may be(c). 
 
 Illustration. 
 
 Contract for sale of goods to be paid for " net cash against documents on 
 arrival of the steamer." If the buyer refuses the tender of the documents, the 
 claim is for damages, and not for the price, for the price is not " payable on a 
 day certain irrespective of delivery " (d). 
 
 (a) Scott V. England (1844), 2 D. & L. 520 (re-sale of goods bought at auction, 
 but not yet paid for) ; cf.Eymery. Suwercropp (1807), 1 Camp. 109 (goods stopped 
 in transitu) ; Alexander v. Gardner (1835), 1 Bing. N. G. 671 (goods lost at sea). 
 
 (6) Dunlop V. Grote (1845), 2 0. & K. 153. 
 
 (c) See note, post, p. 113. 
 
 (d) Stem Forbes d Co. v. County Tailoring Co. (1916), 115 L. T. 215, citing the 
 notes to Pordage v. Cole, 1 Williams Saunders, ed. 5, p. 320. 
 
112 IHE SALE OF QOODS ACT, 1893. 
 
 See " action,'' " contract of sale," and " delivery,'' defined by sect. 62, post, 
 and as to fixuigthe price, see sects. 8 and 9, ante. 
 
 The general rule of English law is that, in the absence of any different 
 agreement, when a debt becomes due, it is the duty of the debtor to go and 
 tender the amount to his creditor, if iu England, without waiting for any 
 demand (e). 
 
 The price must be tendered in lawful money (/). Gold is legal tender up to 
 any amount, sUver up to forty shillings, and bronze up to one shilling (jf). 
 Bank of England notes are legal tender in England except by the Bank itself Qi). 
 Treasury £1 and 10s. notes are legal tender throughout the United Kingdom (i). 
 When tender is pleaded as a defence, the sum tendered must be brought into 
 
 Court 0'). 
 
 Indebitatus connts. — The term " sale " includes both a bargain and sale and 
 a sale and delivery, see sect. 62, post, p. 139. Before the Judicature Acts the 
 price of goods sold could be recovered under the common indebitatus counts. 
 The count for goods sold and delivered was applicable where the property had 
 passed and the goods had been delivered to the buyer, and the price was payable 
 at the time of action brought. The count for goods bargained and sold was 
 applicable when the property had passed to the buyer and the contract had been 
 completed in all respects except delivery, and the delivery was not a condition 
 precedent to the payment of the price (Je). Now it is sufB.cient to show facts 
 disclosing either cause of action, but the old counts are still used (Z). 
 
 The neglect or refusal to pay must be wrongful. It does not necessarily 
 follow that because the property -has passed the price is forthwith payable. 
 The sale may have been on credit, or payment may be made to depend on some 
 specific condition or contingency (m). 
 
 Payment by bill. — Where there is an agreement for payment of the price by 
 a biU payable at a future day, and the bill is not given, the seller cannot sue for 
 the price till the bill would have matured. His remedy before that time is by 
 action for damages for breach of the agreement («.). Where a bill is given for 
 
 (e) Cf. Walton v. Mascall (1844), 13 M. & W., at p. 458; Fessa/rd v. Mugnier 
 (1865), 34 L. J. G. P. 126; Startup v. Macdonald (1844), 6 M. & Gr. 593, at pp. 623, 
 624, and oases cited in Charles Duval v. Gone (1904), 2 K. B. 685, 0. A. (service out 
 of jurisdiction). 
 
 (/) A debtor has no right to demand change, Betterbee v. Davis (1811), 8 Camp. 
 70. Bosooe, Nisi Prius, ed. 17, p. 709. As to cheque, see International Sponge Co. 
 v. Andrew Watts <fc Sons, [1911] A. C. 279, H. L. So. 
 
 (g) Coinage Act, 1870 (33 & 34 Viot. o. 10), s. 4. 
 
 {h) The Bank of England Act, 1833 (3 & 4 Will. 4, o. 98), a. 6. 
 
 (i) 4 & 5 Geo. 5, o. 14. 
 
 {j) Bullen & Leake's Prec. of Pleading, ed. 6, p. 799. 
 
 (ft) Bullen & Leake's Prec. of Pleading, Srd ed., pp. 38, 39 ; Forbes v. Smith 
 (1868), 11 W. R. 574. 
 
 (Z) Bullen & Leake's Prec. of Pleading, ed. 6, pp. 278, 275. 
 
 (m) Cf. Calcutta Co. v. De Mattos (1863), 32 L. J. Q, B., at p. 328. 
 
 (n) Paul V. Dod (1846), 2 0. B. 800 ; distmguished Waynes Merthyr Steam Coal 
 Co, V. Morewood (1877), 46 L. J. Q. B. 746 ; but see Bartholomew v. Markwick (1863), 
 
REMEDIES OF TEE SELLER (SECT. 49). 113 
 
 the price, the general rule is that it operates as conditional payment. If the 
 bill be dishonoured, the debt revives, and the buyer may be sued either on the 
 bni or on the consideration (o). When the seller agrees to take the buyer's 
 acceptance for the price, it is his duty to tender a bill to the buyer to get his 
 acceptance {p). 
 
 Interest.— The general rule of English law is that damages for the detention 
 of a debt are merely nominal, and that in an action for the price of goods sold 
 interest is not recoverable (y). Interest is only recoverable when there was an 
 agreement for payment of interest, or where the debt was to be paid by a 
 negotiable instrument, or under the special circumstances which give the jury 
 or other tribunal a discretion under the Civil Procedure Act, 1833 (3 & 4 Will. 
 '4, c. 42), s. 28, to award interest by way of damages (r). The special circum- 
 stances are : (1) when the debt is payable at a time cei-tain under a written 
 instrument, or (2) in any other case, where the debt has been demanded in 
 writing with a claim for interest, from the date of demand. An agreement to 
 pay interest may be implied from the course of dealing between a ti'adesman 
 and his customer (s). See sect. 54, post, saving rules to interest. 
 
 In Scotland it seems " the seller may sue the purchaser for the price and 
 interest, whether the goods sold are specific or not, provided goods according to 
 the contract have been tendered to the purchaser " (i). The Act preserves this 
 rule. 
 
 Evidence and pleading. — As to evidence required in action for goods sold, see 
 Boscoe's Nisi Prius, 17th ed., p. 549. Subject to admissions, the plaintifE must 
 be prepared to prove the contract, the delivery according to contract, or facts 
 showing that the property passed without delivery, and the price or value. As 
 to pleadings see BuUen & Leake, Free, of Plead., 6th ed., pp. 273, 758. 
 
 Beer and Spirits. — No action is maintainable for the price of beer, porter, 
 cider, or perry consumed on licensed premises (u), nor for the price of spirits 
 sold by retail for consumption on the premises (a). 
 
 33 L J. C. P. 145 where there was a repudiation of the contract. As to measure of 
 damages, see Gordon v. Whitehouse (1856), 18 C. B. 747. 
 
 (o) Chalmers on Bills of Exchange, 7th ed., p. 338, as to bill taken in absolute 
 payment, ibid., p. 442. If plaintifE sues on the consideration he inust be the holder 
 of the bill at the time of action brought, Davis v. Beilly (1898), 1 Q. B. 1; cf. Be a 
 Debtor, [1908] 1 K. B. 344, 0. A. 
 
 {p) Beed v. Mestaer (1802), 2 Comyn on Contract, 229 ; BuUen & Leake's Free, of 
 
 Pleading, ed. 6, p. 759. 
 
 (2) Gordon v. Swan (1810), 2 Camp. 429 ; Beaumont v. Greathed (1846), 2 0. B. 494. 
 
 (r) Geafeev. Boss (1875), 44 L. J. C. P. 315 ; L.C.& D. Railway y. S. E. Bailway, 
 [1893] A. 0. 429, see at pp. 440, 441. 
 
 Is) Be Marguis of Anglesey, [1901] 2 Oh. 548, 0. A. 
 
 {t) Mercantile Law Commission, 1855, Second Eeport, p. 47. Cf. Green's 
 EncyclopcBdia of Scots Law, tit. " Interest." 
 
 (M) County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 182. 
 
 {x) See Paterson's Licensing Acts, ed. 24, p. 266 ; 24 Geo. 2, c. 40, read with 
 25 & 26 Viet. c. 38, 
 
 C.S.G. ^ 
 
114 THE SALE OF GOODS ACT, 1893, 
 
 50. — (1.) Damages for non-acceptance. — Where the buyer wrong- 
 fully neglects or refuses to accept and pay for the goods, the seller 
 may maintain an action against him for damages for non- 
 acceptance (y). 
 
 (2.) The measure of damages is the estimated loss directly and 
 naturally resulting, in the ordinary course of events, from the 
 buyer's breach of contract (z). 
 
 (3.) Where there is an available market for the goods in 
 question (a) the measure of damages is primd facie to be ascertained 
 by tbe difference between tbe contract price and the market or 
 current price at the time or times (6) when the goods ought to have 
 been accepted, or, if no time was fixed for acceptance, tlien at the 
 time of the refusal to accept (e). 
 
 See note to sect. 51 as to non-deliTery, aud sect. 54 as to special damage. 
 This section deals only with general damages. For definition of " action," see 
 sect. 62, post. 
 
 Subject to the special case mentioned in sect. 49 (2), where the property in 
 the goods has not passed to the buyer, the seller's only remedy is an action for 
 non-acceptance (d). Where the property has passed he may sue, either for the 
 price (e) or for damages for non-acceptance. If the parties so choose, they can 
 fix the damages by the contract itself (/). 
 
 As to damages for buyer's delay in taking delivery after request, see sect. 37, 
 ante, p. 91.. 
 
 The market price rule in sub-sect. (3) is an obvious deduction from sub-sect. 
 (2), applicable to the ordinary goods of commerce for which there is a more or 
 
 {y) Graves v. Legg (1854), 9 Exoh. 709. 
 
 (z) Cort V. Ambergate Railway (1851), 17 Q. B. 127 (chairs) ; Wayne's Merthyr Coal 
 Co. V. Morewood (1877), 46 L. J. Q. B. 746 ; Be Vic. Mills, Ltd., [1913] 1 Ch. 465, 
 C. A. (mill machinery, part not made, estimated profits allowed as damages). 
 
 (a) As to what is a market, see per James, L.J., Dunkirk Colliery v. Lever {1878), 
 9 Ch.D., at p. 25, G. A. Cf. Wertheim \. Chicoutimi Pulp Co., [1911] A. C. 301, at 
 p. 316, P. C. (market price at ultimate destination). 
 
 (6) Cf. Brown v. Muller (1872), L. R. 7 Ex. 319 ; Boper v. Johnson (1873), L. B. 
 8 0. P. 167, as to non-delivery in instalment contracts. 
 
 (c) Phillpotts V. Evatis (1839), 5 M. & W. 475 ; Barrow v. Arnaud (1846), 8 Q. B. 
 595, at p. 609, Ex. Ch. ; cf. Ex p. Stapleton (1879), 10 Ch. D., at p. 590, C. A. As to. 
 extension of time at buyer's request, see Hickman v. Haynes (1895), L. K. 10 
 C. P. 598. 
 
 (i) Cf Laird v. Pirn (1841), 7 M. & W. 478 ; Boswell v. Kilborn (1862), 15 Moore 
 P. C. 309. 
 
 (e) Unless he has re-sold, in which case he must sue for damages, Lamond v, 
 Davall (1847), 9 Q. B. 1030. 
 
 (/) Diestal v. Stevenson <& Co , [1906] 2 K. B. 845, 12 Com. Gas, 1. 
 
REMEDIES OF THE BUYER (SECT. 51). 115 
 
 less ready sale. The rule is so convenient, that the Coiirts apply it whenever 
 and so far as practicable. But it is only a primd, faoie rule depending- on its 
 conformity with the general principle. For example, if a contract be repudiated 
 before the time fixed for delivery, the seller may not be justified in holding back 
 the goods on a falling market, and thus enhancing the damages. He must act 
 reasonably (jr). 
 
 In some cases where the seller has resold, the re-sale price has been assum.ed 
 to furnish the correct measure of damages (K). 
 
 As to evidence rec[uir6d in action for non-acceptance, see Roscoe's Nisi 
 Prius, 17th ed., p. 533, and as to pleadings, see Bullen & Leake, 6th ed., 
 p. 275. 
 
 Remedies of the Buyer. 
 
 51. — (1.) Damages for non-delivery. — Where the seller wrongfully 
 neglects or refuses to deliver the goods to the buyer, the buyer 
 may maintain an action against the seller for damages for non- 
 delivery (i). 
 
 (2.) The measure of damages is the estimated loss directly and 
 naturally resulting, in the ordinary course of events, from the 
 seller's breach of contract Qc). 
 
 (3.) Where there is an available market for the goods in 
 question (l) the measure of damages is primd facie to be ascertained 
 by the difference between the contract price and the market or 
 
 (u) Bothr. Tayson (1896), 1 Com. Gas. 306, C. A., and see note to sect. 5i,post, 
 p. 123, and for general principle, see British Westinghouse Co. v. Underground 
 Electric Railway, A. C, [1912] 673, at p. 689, H. L. 
 
 {h) Maclean v. Dimn (1828), i Bing. 722 ; Ex p. StapUfon (1879), 10 Oh. D. 586, 
 C. A. ; Byan v. Ridley (1902), 8 Com. Cas. 105. But where a horse was sold with a 
 warranty, and re-sold, on non-payment, without a warranty, only nominal damages 
 were allowed, no evidence of special damage being given, Macklin v. Newberry 
 Sanitary Laundry (1919), 63 S. J. 387. 
 
 (i) Bamsden v. Qray (18i9), 7 C. B. 961 ; cf. Jones v. Gibbons (1853), 8 Exoh. 920 , 
 (not delivering goods agreed to be delivered " aa required") ; Lems v. Clifton (1854), 
 14C.'B. 245 (refusal to permit growing timber, which had been sold by auction, to be 
 carried away). 
 
 (k) Smeed v. Foord (1859), 28 L. J. Q. B. 178 (non-delivery of machine) ; 'Gribert- 
 Borgnis v. Nugent (1885), 15 Q. B. D. 85, 0. A. (specially manufactured goods); cf. 
 Hammond v. Bussey (1887), 20 Q. B. D,, at p. 93, 0. A. ; and see note to sect. 54, 
 
 post. 
 
 (I) As to what constitutes an available market, see Dunkirk Colliery v. Leve 
 (1878) 9 Ch. D., at p. 25, C. A., and cf. Wertheim v. Chicoutimi Pulp Co., [1911] 
 A. C. 301, at p. 816, P. C. 
 
116 THE SALE OF GOODS ACT, 1893. 
 
 current price of the goods at the time (m) or times (w) when they 
 ought to have been delivered, or, if no time was fixed, then at the 
 time of the refusal to deliver (o). 
 
 Illustration. ■ 
 
 Sale of 10,000 tons of coal to be delivered at Lubeck, " penalty for non- 
 execution of this contract, one shiUing per ton." This is not penalty, but 
 liquidated damages ; and, if default is made in delivery, this measure must be 
 applied to the instalments undelivered (jp). 
 
 See " action " and " delivery " defined by sect. 62, post, and for rules as to 
 delivery see sects. 27-31, ante. As to evidence in action for non-delivery, see 
 Boseoe's Nisi Prius, 17th ed., p. 540. As to pleadings, see Bullen & Leake, ed. 
 6, p. 278. 
 
 This section, in terms, deals only with general damages. Rules as to 
 special damages are saved by sect. 54. The section is declaratory and is 
 founded on Sadley v. Baxendale (q). 
 
 "When the seller breaks his contract to deliver, three remedies may be open 
 to the buyer, namely, (1) in all cases he may sue for damages for non-deKvery ; 
 (2) if the goods be specific or ascertained he may sue for specific performance ; 
 and (3) if the property in the goods has passed, and the buyer is entitled to 
 immediate possession, he has the ordinary remedies of an owner deprived of 
 his goods, i.e. conversion or detinue as the case may be. The action for non- 
 delivery lies when the goods are not delivered, or when goods which are not in 
 conformity with the contract are tendered and rejected. 
 
 Section 51 does not in terms apply to actions for delay in delivery when the 
 goods are ultimately accepted ; and necessarily damages there are assessed on 
 different lines from damages for non- delivery, in order to give effect to the 
 guiding principle stated in sub-sect. (2), which applies throughout the law of 
 contract, see note, post, p. 124. 
 
 Damages for non-delivery. — The rule as to market price is clearly a deduction 
 from the more general rule in sub-sect. (2). "When a contract to deliver 
 goods is broken," says Tindal, C. J., " the proper measure of damages in general 
 
 (m) Leigh v. Paterson (1818), 8 Taunt. 540 ; Hinde v. Liddell (1875), L. E. 10 
 Q. B. 265 (grey shirtings). As to o.i.f. contract, see Sharps <& Co. v. Nosawa, [1917] 
 2 K. B. 814 (time when documents, not the goods, should have been tendered). 
 
 {n) As to instalment deliveries, see Brown v. Muller (1872), L. E. 7 Ex. 319 (iron) ;" 
 Bopear v. Johnson (1873), L. E. 8 C. P. 167 (coal) ; c/. Bergheim v. Blaenavon Co. 
 (1875), L. E. 10 Q. B. 319 (iron rails). 
 
 (o) Show V. Holland (1846), 15 M. & W. 186, 146 ; JosUng v. Irvine (1861), 30 
 L. J. Ex. 78 ; Ashmore v. Cox, [1899] 1 Q. B. 486, 448 (date of repudiation of contract), 
 
 (p) Diestal v. Stevenson dk Co., [1906] 2 K. B. 345. 
 
 (g) Hadley v, Bavendale (1854), 9 Exoh. 341, 354; 2 Smith, Lead. Oas., 11th ed., 
 p. 539, 
 
REMEDIES OF THE BUYER (SECT. 51). 117 
 
 IS the difPerence between the contract price and the market price of such goods 
 at the time when the contract is broken, because the purchaser having the 
 money in his hands may go into the market and buy. So, if a contract to 
 accept and pay for goods is broken, the same rule may be properly applied, for 
 the seller may take his goods into the market and obtain the current price 
 for them " (r). Hence, if in an action for non-delivery no difference between 
 the contract price an.d the market price is shown, the plaintiff in general is only 
 entitled to nominal damages (s). 
 
 The rule is so convenient and obvious that the English Courts apply it 
 whenever possible, even where it produces hardship in individual cases (t). In 
 Scotland the rule is not nearly so strictly applied {u). 
 
 But there are many cases in which the rule of market price is inapplicable. 
 If it is partially applicable it wiU be applied with the necessary modifications, 
 thus — 
 
 (1) The buyer may have prepaid the price. In that case he is probably 
 entitled to recover the full market price of the goods on the day when they 
 ought to have been delivered, together with interest on the money he has been 
 kept out of (a). 
 
 (2) The exact sort of goods the buyer has contracted for may not be obtain- 
 able, but if it is reasonable for him to buy in similar goods he may charge the 
 seller with the difference in price (^). 
 
 (3) The seller may have repudiated his contract before the time for delivery 
 arrives. In such case the buyer may either hold him to his contract and wait 
 till the appointed time, or he may treat the contract as rescinded and sue at 
 once. In the latter case regard is stiU to be had to the market price at the 
 agreed time, but the seller may give evidence in mitigation of damage if the 
 buyer's conduct has been unreasonable (2). If, for example, a buyer has 
 contracted for delivery in February, and he is notified in January that the 
 seller cannot fulfil his contract, he has no right to wait on a rising market. 
 
 (r) Barrow v. Arnaud (1846), 8 Q. B., at p. 609, Ex. Ch. 
 
 (s) Valpy V. Oaheley (1851), 16 Q. B. 941 ; Erie Natural Gas Co. v. Carroll, [1911] 
 A. 0. 105, P. C. (substituted performance). 
 
 (t) Brady v. Oastler (1864), 33 L. J. Ex. 300 (special price for early delivery) ; 
 Williams v. Reynolds (1865), 34 L. J. Q, B. 221 (profit on re-sale excluded) ; Tfiol v. 
 Henderson (1881), 8 Q. B. D. 457 (sub-contract by buyer) ; Williams v. Agius, [1914] 
 A. C. 510 H. L. (sub-contract disregarded), 
 
 (m) Dtmlop V. Higgvns (1848), 1 H. of L. Cas. 381 ; see at p. 403. 
 
 (x) Startup V. Cortazzi (1835), 2 C. M. & E. 165; cf. Barrow v. Arnaud (1846), 8 
 Q. B., at p. 610. 
 
 (y) Einde v. Liddell (1875), L. E. 10 Q. B. 265 (grey shirtings) ; cf. Erie Natural 
 Gas Co. V. Carroll, [1911] A. C. 105, at p. 117, " the measure of damage is the cost of 
 procuring the substituted article." This assumes that the article is a satisfactory 
 and not an inferior substitute. 
 
 (z) Roper v. Johnson (1873), L. E. 8 0. P. 167, see at p. 181 (coal). As to evidence 
 generaEy in mitigation of damage, see Hill & Sons v. Showell & Sons (1918), 87 
 li. J. K. B. 1106, H. ili. ; Melachrino v. Nicholl & Knight, [1920] 1 K. B. 693 
 (anticipatory breach). 
 
118 TEE SALE OF GOODS ACT, 1893. 
 
 and claim damages for the increased price in February, if he could have bought 
 in against the contract at a lower price in January (a). This is an application 
 of the rule of causa proxima to damages. 
 
 (4) The time for delivery may have been extended at the seller's request. 
 In that case the extended time will be taken as the contract time (&). 
 
 (5) There may be no available market at the place of delivery, but regard 
 may be had to the market price at the place contemplated by the parties as the 
 ultimate destination of the goods (c). 
 
 (6) The parties in their contract may have provided that in case of breach 
 certain agi-eed damages should be paid by the party in default {d). 
 
 Again the market price test may be whoUy inapplicable, and then recourse 
 must be had to the wider general principle of sub-sect. (2). This is the case 
 where there is no available market for the goods in question (e), as, for 
 example, where the buyer has ordered some special article or articles to be 
 expressly manufactured for him. Each case then turns on its particular 
 circumstances, and is usually complicated by questions of special damage (/). 
 
 Delay in delivery. — A similar rule applies to damages for delay, when goods 
 of a particular description are ordered, and are tiltimately accepted after the 
 delay (g), there being a ;prim& fade rule that the damage is the difEerenoe 
 between " the value of the article contracted for at the time when it ought to 
 have been and the time when it actually was delivered " Qi). Accordingly in the 
 case of ordinary goods of commerce the^nmit/aoie measure of damages is the 
 difference between the market price at the time when the goods ought to have 
 been delivered, and the time when they actually were delivered. But assuming 
 that the price has fallen, and the seller has on delivery sold at a price above the 
 
 (a) NickoU v. Ashton, [1900] 2 Q. B. 298, at p. 305, following Both v. Taysen 
 (1896), 1 Com. Gas. 306, C. A.; but see Tredegar Iron Co. v. Hawthorn, Times, 
 July 7, 1902, 0. A. 
 
 (6) Ogle V. Earl Vane (1868), L. E. 3 Q. B. 272 (non-delivery), Ex. Ch. ; Sickman 
 V. Haynes (1875), L. B. 10 0. P. 598 (non-aooeptanoe) ; cf. Tyers v. Bosedale Go. 
 (1876), L. R. 10 Ex. 195, Ex. Ch. (1000 tons of iron). 
 
 (c) Of. Werthevm v. CUcontimi Pulp Co., [1911] A. C. 301, P. C. ; cf. Sharpe & Co, 
 V. Nosama d; Co., [1917] 2 K. B. 814, as to c.i.f. contract. 
 
 {d) Dunlop Pneumatic Tyre Co. v. New Oa/rage db Motor Co., [1915] A. C. 79, H. L. 
 
 (e) Elbmger Acticn Oesellschaft v. Armstrong (1874), L. B. 9 Q. B., at p. 476 
 (carriage wheels). 
 
 (/) Hydraulic Co. v. McHaffie (1878), 4 Q. B. D. 670, C. A. (machine ordered "as 
 soon as possible ") ; Or&bert-Borgnis v. Nugent (1885), 15 Q. B. D. 85, 0. A. (goods 
 made to order). 
 
 ig) FUtchery. Taylewr (1855), 17 0. B. 21 (ship to be built); Smeed v. Foord 
 (1859), 28 L. J. Q. B. 178 (steam threshing-machines) ; Cory v. Thames Iron Works 
 Co. (1868), L. B. 3 Q. B. (steam derrick) ; Ex p. Carver (1911), 17 Com. Gas. 59 
 (delay in delivery of goods owing to stranding of ship). As to damages against a 
 carrier for delay in delivering ordinary goods of commerce, see The Parana (1877), 
 2 P. D. 118, at p. 122, G. A. 
 
 {h) Elbmger Actien Oesellschaft v. Armstrong (1874), L. E. 9 Q. B., at p. 477, per 
 Blackburn, J". 
 
REMEDIES OF TEE BUYER (SECT. 51). 119 
 
 maxket price, the re-sale must be taken into account in fixing the damages (i). 
 In this respect the action for delay differs fi'om the action for non-delivery 
 where it is held that (special damages apart) circumstances " personal " or 
 " accidental " to the buyer cannot be taken into account Qc). 
 
 Trover or detinue. — Subject to the provisions of sects. 8 to 10 of the Factors 
 Act, 1889 (I) (now reproduced in sects. 25 and 47 of this Act), where, under a 
 contract of sale, the property of the goods has passed to the buyer, and the 
 seller wrongfully neglects or refuses to deliver the goods, the buyer may 
 maintain an action for damages for detention of the goods against the seller or 
 any other person in possession of the goods, or an action for the conversion 
 of the goods against the seller or. any other person who has dealt with the 
 goods under such circumstances as to amount to a conversion thereof (m). 
 
 As between seller and buyer the buyer cannot recover larger damages by 
 suing in tort instead of in contract. Thus if he has not paid the price he can only 
 recover the difference between the contract price and the value of the goods (n). 
 
 As regards third parties the prima facie measure of damages for conversion 
 is the value of the goods at the time of the wrongful act (o). 
 
 When a man has sold goods to one person, a mere contract to sell them to 
 another is not a conversion (p), biit a delivery of them in pursuance of that 
 contract is a conversion (j), unless at the time of re-sale the original buyer was 
 in default as regards paying the price (r). Ordinarily a person who buys and 
 receives goods (otherwise than in market overt) which the seller had no right 
 to sell is guilty of a conversion, however innocently he may have acted (s), but 
 from the 1st January, 1890, tis liability has been much restricted by sects. 8 
 and 9 of the Factors Act, 1889, post, p. 156 (reproduced in sect. 25 of this Act), 
 and note also sect. 23, ante (sales under voidable title). 
 
 (i) Wertheimv. CMcoutimi Pulp Co., [1911] A. C. 105, P. C. ; diBtlnguished Slater 
 V. Boyle & Smith, [1920] 2 K. B. 11, C. A. 
 
 (A;) Williams v.'Agius, [1914] A. C. 510, H. L., approving Rodocanachi v. Milburn 
 (1886), 18 Q. B. D. 67, 77, 0. A. 
 
 (Z) See Ft. IV., ante, pp. 93 to 109, as to seller's Hen and stoppage in transitu, 
 and note on p. 109 as to re-sale, and the Factors Act, post, p. 146. 
 
 {m) As to detinue, see Bullen & Leake's Free, of Pleading, 6th ed., pp. 370, 846 ; 
 La/ngton v. Siggins (1859), 28 L. J. Ex. 252. As to conveision or trover, Bullen £ 
 Leake, pp. 344, 822 ; also Hollins v. FowUr (1875), L. E. 7 H. L. 757. 
 
 (n) Chinery v. Viall (1860), 29 L. J. Ex. 180 ; cf. Johnson v. Stear (1863), 33 
 L. J. C. P. 130; Hiort v. L. S N. W. Railway (1879), 4 Ex. D. 188, 0. A. Aliter 
 perhaps if the seller wrongfully retake the goods after delivery, Oillard v. Brittan 
 (1841), 8 M. & W. 575 ; but see Johnson v. Lancashire Railway (1878), 3 0. P. D., 
 at p. 507. 
 
 (o) Ibid., and France v. Oaudet (1871), L. B. 6 Q. B. 199; but cf. Belsise Motor 
 Supply Co. V. Cox, [1914] 1 K. B. 244, for a qualification of rule. 
 
 (p) Lancashire Wagon Co. v. Fitzhugh (1861), 30 L. J. Ex. 231. 
 
 (j) lUd. ; cf. Cooper v. Willomatt (1845), 1 C. B. 672. 
 
 (r) Milgate v. KebbU (1841), 3 M. & Gr. 100. 
 
 (s) Cooper v. Willomatt (1845), 1 C. B. 672; Hilbery v. Hatton (1864), 33 
 L. J. Ex. 190. 
 
120 TSE SALS OP GOODS ACT, 1893, 
 
 52. Specific performance. — In any action for breach of contract 
 to deliver specific or ascertained goods the Court may, if it thinks 
 fit, on the application of the plaintiff, by its judgment [or decree] 
 direct that the contract shall be performed specifically, without 
 giving the defendant the option of retaining the goods on payment 
 of damages. The judgment [or decree] may be unconditional, or 
 upon such terms and conditions as to damages, payment of the 
 price, and otherwise, as to the Court may seem just, and the 
 application by the plaintiff may be made at any time before judg- 
 ment [or decree]. 
 
 The provisions of this section shall be deemed to be supple- 
 mentary to, and not in derogation of, the right of specific imple- 
 ment in Scotland. 
 
 See " specific goods " and " plaiutifE " and " defendant " and " action " 
 defined by sect. 62, post. " Decree " is the Soots term for " judgment." 
 
 This section reproduces sect. 2 of the Mercajitile Law Amendment Act, 
 1856 (19 & 20 Vict. c. 97) {t), as modified by the Judicature Acts and Rules, 
 which enable a Judge to try a case without a jury and give a defendant the 
 right to cla,im any relief by counter-claim which he could have sought if he had 
 brought an independent action, and enable all Courts to administer aU remedies. 
 The section applies to all cases where the goods are . specific as ascertained 
 whether the property therein has passed to the buyer or not (m). Qu. whether 
 an arbitrator can award specific performance (x) ? 
 
 In Scotland specific performance, or, as it is called, specific implement, is an 
 ordinary and not an extraordinary remedy, and it can be demanded as of right 
 wherever it is practicable (j/). 
 
 As to writ of delivery, see R. S. C, Ord. XL VIII., and County Court 
 Rules, Ord. XXV., rr. 69, 70. In an action for detinue the practice is thus 
 stated : " The power to order the delivery up of a particular chattel is dis- 
 cretionary and ought not to be exercised where the chattel is an ordinary 
 article of commerce, and of no special value or interest, and not alleged to be 
 of any special value to the plaintifE, and damages are full compensation " (z). 
 
 53. — (1.) Eemedy for breach of warranty. — Where there is a 
 
 (i) See Mercantile Law Commission (1855), Second Beport, p. 10, as to origin of 
 this enactment. 
 
 (u) Jones V. Tcmkerville, [1909] 2 Ch. 440, at p. 445. 
 
 (a;) Thames Sack and Bag Co. v. Enowles db Co., [1918] W. N., p. 176 ; also 
 meaning o£ " ascertained " goods discussed. 
 
 {y) Stewart v. Kennedy (1890), 15 App. Gas., at pp. 102, 105, H.iL. 
 
 («) Whiteley v. Hilt, [1908] 2 K. B. 808, at p. 819, C. A. 
 
REMEDIES OF THE BUYER (SECT. 53). 121 
 
 breach of warranty by the seller (a), or where the buyer elects, or 
 is compelled, to treat any breach of a condition on the part of the 
 seller as a breach of warranty (&), "the buyer is not by reason only (c) 
 of such breach of warranty entitled to reject the goods; but 
 he may 
 
 {a) set up against the seller the breach of warranty in diminu- 
 tion or extinction of the price {d) ; or 
 
 (&) maintain an action against the seller for damages for the 
 breach of warranty (e). 
 
 (2.) The measure of damages for breach of warranty is the 
 estimated loss directly and naturally resulting in the ordinary 
 course of events, from the breach of warranty (/). 
 
 (3.) In the case of breach 'of warranty of quality such loss is 
 •prima facie the difference between the value of the goods at the 
 time of delivery to the buyer and the value they would have had 
 if they answered to the warranty {g). 
 
 (4.) The fact that the buyer has set up the breach of warranty 
 in diminution or extinction of the price does not prevent him from 
 
 (a) Syers v. Jonas (1848), 2 Exch., at p. 117; Dawson v. Collis (1851), 10 0. B. 
 523, at 523 ; Behn v, Burness (1868), 32 L. J. Q. B., at p. 206, Ex. Ch. ; Heilbutt v. 
 Sickson (1872), L. R. 7 C. P. 438, at p. 451 (army shoes). • 
 
 (6) See sect. 11 (1), ante, and Street v. Blay (1831), 2 B. & Ad. 456, at p. 463 ; 
 Gompertz v. Denton (1832), 1 Cr. & M. 207 ; Parsms v. Sexton (1847), 4 C. B. 899 ; 
 Couston V. Chapman (1872), L. B. 2 So. App., at p. 254 (Wine). Aliter, of course i£ 
 the warranty be fraudulent, Murray v. Mann (1848), 2 Exch. 538. 
 
 (c) See Bannerman v. White (1861), 31 L. J. C. P. 28 ; cf. Behn v. Burness (1863), 
 32 L. J. Q. B., at p. 206, Ex. Ch. ; Heilbutt v. Hickson (1872), L, R. 7 C. P. 438, 
 as to condition for rejection (army shoes). 
 
 (d) As to reduction, see Street v. Blay (1831), 2 B. & Ad. 456 ; Allen v. Cameron 
 (1833), 1 Cr. & M., at p. 840; Mondel v. Steel (1841), 8 M. & W. 858, at p. 870. As to 
 extinction, see Poulton v. Lattimore (1829), 9 B. & C. 259. 
 
 (e) The buyer, if sued for the price, is not bound to set up the breach of warranty. 
 He may pay in full, and then sue, Davis v. Hedges (1871), L.' R. 6 Q. B. 687. 
 
 (/) Bandall v. Boper (1858), 27 L. J. Q. B. 266 (seed barley of inferior quality) ; 
 Smith V. Qreen (1875), 1 C. P. D. 92 (cow with foot and mouth disease) ; Bandall v. 
 Newson (1877), 2 Q. B. D. 102, C. A., at p. Ill (defective carriage-pole specially made 
 for carriage); Wilson v. Dunville (1879), 6 L. R. Ir. 210 (brewers' grains which 
 poisoned cattle) ; Hammond v. Bussey (1887), 20 Q. B. D. 79, C. A. (ship coal of 
 particular quality — special, damage). 
 
 {g) Loder v. KekuU (1857), 27 L. J. C. P. 27; Jones v. Just (1868), L. B. 3 Q. B. 
 197 ; cf. Heilbutt v. Hickson (1872), L. R. 7 0. P., at p. 453 (shoes for army) ; Slatm- 
 V. Hoyle & Smith, [1920] 2K. B. 11, C. A. (sub-contract disregarded). 
 
122 THE SALE OF GOODS ACT, 1893. 
 
 maintaining an action for the same breach of warrranty if he has 
 suffered further damage Qi). 
 
 (5.) Nothing in this section shall prejudice or affect the buyer's 
 right of rejection in Scotland as declared by this Act {i). 
 
 Illustrations. 
 
 (1) A sells sulphuric acid to B as commercially free from arsenic. B uses 
 it for making glucose, whicli he sells to brewers, and the persons who drink the 
 beer made by the brewers are poisoned. A does not know the purpose for 
 which the acid is required. In an action for breach of warranty, B can recover 
 the price of the acid and the value of the beer spoiled, but not the damages he 
 has had to pay to the brewers or damages for injury to the goodwill of his 
 business (Je). 
 
 (2) An orchid, warranted a Cattelaya Alba, is bought at a sale for £20. 
 Two years afterwards it flowers, and produces purple flowers. The purple 
 flower variety is worth a few shillings, the white is worth £50. The buyer is 
 entitled to £50 damages for breach of warranty (Z). 
 
 (3) A, a grocer, sells tinned salmon to B which is unfit for food. B's wife 
 is poisoned and dies. B may recover the reasonable expenses of medical 
 attendance and the funeral, and also a reasonable sum for loss of his wife's 
 services (m). 
 
 See " quality " and " warranty " defined by sect. 62, post. This section is 
 the complement to sect. 11, ante, p. 36. Sect. 11 shows when goods may be 
 rejected or when the buyer must resort to his remedy for breach of warranty 
 under this section. Although the buyer may not be able to reject the goods 
 for simple breach of warranty, he may be entitled to reject them for fraud or 
 some other invalidating cause. This conclusion is pointed to by the words " by 
 reason only of such breach of warranty " in sub-sect. (1), and see sect. 61 (2)^ 
 as to savings of common law. 
 
 "When the buyer is entitled to reject the goods, and does so, he can recover 
 the price if he has paid it, for the consideration for its payment has wholly 
 failed. Then arises the question what further compensation, if any, is he 
 entitled to ? When he rejects the goods the position seems to be this. He 
 has contracted for the supply of certain goods, and those goods have never 
 been supplied to him. The seller, therefore, has failed in his obligation to 
 
 (h) Mondel v. Steel (1841), 8 M. & W. 858 ; cf. Bigge v. Burbridge (1846), 15 
 M. & W. 598. 
 
 (i) See sect. 11 (2), ante, and sect. 59, post. 
 
 (&) Bostock V. Nicholson, [1904] 1 K. B. 725, C. A. ; cf. Holden v, Bostock (1902), 
 50 W. R. 323, 0. A. ; and see illustrations to sect. 14. 
 
 {I) Ashmorth v. Wells (1898), 78 L. T. (n.s.) 186, C. A. 
 
 (m) Jackson v. Watson & Sons, [1909] 2 K. B. 193, C. A. (mad. attendance £4; 
 funeral £29 ; loss of services £200). 
 
REMEDIES OF THE BUYER (SECT. 54). 123 
 
 deliver, and whatever damages woxdd be recoverable in an action for non- 
 delivery slionld on principle be recoverable in this case (n). Again, the buyer 
 may have accepted and paid for the goods, but the return of the price may 
 have no relation to the injury he has suffered. A shiUing tin of badly pre- 
 served fish may destroy a whole family by ptomaine poisoning. 
 
 In a case, where a horse, sold with a warranty and condition for return, was 
 IdUed, by no fault of the buyer, before the time for return had elapsed, it was 
 held that the buyer could sue for breach of warranty, though he could not 
 return the horse (o). But if the buyer repudiates the contract, he cannot set 
 up in mitigBtion of damage the inferior quality of the goods tendered after 
 repudiation (p). 
 
 Where an affirmation, which might be treated as a warranty, is made 
 fraudulently, the buyer's powers are larger. In the first place he may retain 
 the goods and sue for damages ; and secondly, if he can restore the goods 
 unaltered, he may rescind the contract (5). 
 
 In Scotland before the Act no distinction was drawn between warranties 
 and conditions. Every material term was a condition, and the rule was that 
 where the buyer could reject the goods but had not done so, he could not sue 
 for damages. The actio quanti minoris only applied to cases where the goods 
 could not be returned ; but now the buyer has a double remedy, guarded, how- 
 ever, by sect. 59 (consignation into Court). 
 
 54. Interest and special damages. — Nothing in this Act shall 
 affect the right of the buyer or the seller to recover interest or 
 special damages in any case where by law interest or special 
 damages may be recoverable, or to recover money paid where the 
 consideration for the payment of it has failed. 
 
 As to interest, see note to sect. 49, ante, p. 113. 
 
 Object of damages. — In assessing damages for breach of contract the object 
 aimed at is to put the injured party, so far as money can do it, in the same 
 position as if the contract had not been broken, for this is the measure of the 
 loss directly and naturally resulting from the breach (r). 
 
 (n) See Bridge v. Wain (1816), 1 Stark. 504, as commented on in Elbinger Actien 
 Gesellschafit v. Armstrong (1874), L. B. 9 Q. B., at p. 476, where this position 
 seems to be assumed. 
 
 (o) Chapman v. Withers (1888), 20 Q. B. D. 824. Qu. whether this was not in 
 effect an action to recover price already paid? Cf. Caswell v. Coare (1809), 1 
 Taimt. 566. 
 
 (p) Braithwaite v. Foreign Hardwood Co., [1905] 2 K. B. 543, C. A. (contract for 
 rosewood, part of it of inferior quality). 
 
 (2) Holdsworth v. Qlasgow Bank (1880), 5 App. Cas. 817, at pp. 323, 338 (dis- 
 tinguishing goods from shares). Cf. Waddell v. Blockey (1879), 4 Q. B. D. 678 
 (Bupee paper). 
 
 (r) Wertheim v. Chicoutimi Pulp Co., [1911] A. C. 801, P. C. ; British Westinghouse 
 
124 THE SALE OF aOODS ACT, 1893. 
 
 Mitigation of damage. — But the injured party must act reasonably ; and if it 
 be open to him to take steps to mitigate the loss, he must do so. If he fails to 
 take such steps, the defendant may set up the failure in mitigation of damages (s). 
 This, in effect, is an application of the general rule of causa proodma to 
 damages. If a man does not take reasonable steps to mitigate the loss arising 
 from the other party's breach of contract, the resulting loss is proximately 
 caused by his own conduct and not by the breach of contract. 
 
 Special damages. — Damages are either general or special. " Special damage, 
 when contrasted with general damage, means the particular damages beyond 
 the general damage which results from the particular circumstances of the 
 case, and of the injured party's claim to be compensated, and of which he otight 
 to give notice in his pleadings, so that there may be no surprise at the trial " (t). 
 The Act deals only with general damages, and merely saves the law relating 
 to special damages. Many of the cases fail to distinguish special from general 
 damages, the reason being that both are governed by the same guiding rule. 
 Given a particular contract, the measure of damages is the loss which naturally 
 results from breach of a contract of the kind in question. Given a contract 
 made under special circumstances to the knowledge of both parties, e.g. a 
 contract to fulfil a sub-contract, the measure of special damage is the loss which 
 naturally results from the breach of a contract made under those particular 
 circumstances. The underlying principle on which special damages are allowed 
 appears to be this. 
 
 When a contract is entered into by the parties with knowledge that there 
 are special circumstances attaching to it, which, in the ordinary course of 
 things, would produce special loss if the contract were broken, the law implies 
 a liability to pay damages for such special loss. " We must foUow out the 
 rule," says Cotton, L.J., in an action for non-delivery of a gun, "that the 
 plaintiffs are only to have the damages which are the ordinary and natural 
 consequences of the breach ; but this ride is subject to the limitation, that 
 where the breach has occasioned a special loss which was actually in con- 
 templation of the parties at the time of entering into the contract, that special 
 loss, happening subsequently to the breach, must be taken into account " (it). 
 In a later case, where the action was brought for breach of warranty, Try, L.J., 
 suggests four tests for determining whether the damages claimed are recover- 
 able. (1) What are the damages which actually resulted from the breach of 
 contract ? (2) Was the contract made under any special circumstances, and, 
 
 Electric Co. x. Underground Bailway, [1912] A. 0. 673, at p. 689, H. L. Qu. how far 
 this principle applies to breach of warranty in respect of dangerous articles, where 
 the cause of action is very like tort ? 
 
 (s) Ibid., and see Both v. Tayson (1896), 1 Com. Cas. 306, 0. A. ; NickoH v. Ashton, 
 [1900] 2 Q. B. 298; Paym, Ltd. v. Saunders, [1919] 2 K. B. 581, C. A. 
 
 {«) Batcliffe v. Evans, [1892] 2 Q. B., at p. 528, per Bowen, L.J. 
 
 {u) Hydraulic Engineering Co. v. McHaffie (1878), 4 Q. B. D., at p. 677, C. A. 
 (gun ordered to fulfil sub-contract) ; cf. Qrebert v. Nugent (1885), 15 Q. B. D. 85, 
 C. A. (goods ordered for French 3ub-contract). 
 
SPECIAL DAMAGES, ETC. (SECT. 54). 125 
 
 if so, what were those circumstances P (3) "What, at the time of making- the 
 contract, was the common knowledge of both parties P (4) What may the 
 Court reasonably suppose to have been in the contemplation of the parties as 
 a probable result of the breach of the contract, assuming the parties to have 
 applied their minds to the contingency of there being such a breach (a) p 
 
 The objection has been raised that when parties make a contract they 
 contemplate its performance aad not its breach (y). But the answer is this. 
 The HabiHty to pay damages for breach of contract is an obligation annexed 
 by law independently of the volition of the parties, and the criterion is 
 necessarily an objective one. What the parties themselves may have contem- 
 plated is immaterial. The question is what a reasonable man with their 
 common knowledge would contemplate as a probable consequence of the breach 
 if he applied his mind to it. The same result will be arrived at if the supposed 
 contemplation of the parties be wholly eliminated. Given a contract made 
 without any special circumstances, then the measure of ordinary damages is 
 the loss which naturally arises from the breach of such a contract. Given a 
 contract made under special circumstances to the knowledge of both parties 
 then the special damages are those which naturally arise from a breach of such 
 a contract under the particular circumstances. 
 
 Failure of oonBideration.— As to failure of consideration also, there is nothing 
 peculiar to the contract of sale. Money paid on a consideration which has 
 failed can usually be recovered as money had and received (z). Where the 
 plainti:^ bought and paid for 175 tons of terra japonica, and only 155 tons 
 were delivered, he was held entitled to recover a proportionate amount ^f the 
 price under the common money counts (a). 
 
 Eate of exchange. — Where a contract of sale is broken and the price is pay- 
 
 . able in a foreign currency, damages must be calculated according to the rate of 
 
 exchange at the time of breach (6). 
 
 (x) Hammond v. Bussey (1887), 20 Q. B. D., at p. 100, 0. A. (breach of warranty 
 and sub-sale; with similar warranty, costs of action reasonably defended), followed 
 Agius V. Great Western Colliery Co. (1899), 1 Q. B. 413, C. A. 
 
 (y) Harmlton v. Majill (1883), 12 Ir. L. B. 186, 202. But' that is not always so, 
 a contract sometimes assesses damages in case of breach. 
 
 (z) See Bullen & Leake's Free, of Pleadings, 6th ed., pp. 261, 600, and oases there 
 collected. As to set-oif of failure of consideration, see Biggirstaff v. Bowett's Wharf 
 (1896), 2 Ch. 93, C. A. 
 
 (a) DevoMX v. Conolly (1849), 8 0. B. 640 (acceptances of short delivery) ; but of. 
 Covas V. Bingham (1853), 2 E. & B. 836, where by the contract the bill of lading was 
 made conclusive as to quantity. 
 
 (6) Barry v. Van den Hurk, [1920] 2 K. B. 709 Be Hodgson & Co., [1920] W. N. 
 p. 198 ; Le Beaupin v. Crispin £ Co., [1920] 2 K. B. 714. 
 
( 126 ) 
 
 PART VI. 
 
 Supplement ABT. 
 
 55. Exclusion of implied terms and conditions. — Where any right, 
 duty, or liability would arise under a contract of sale, by implication 
 of law, it may be negatived or varied by express agreement (a) or by 
 the course of dealing between the parties, or by usage, if the usage 
 be such as to bind both parties to the contract (b). 
 
 Illustration. 
 A retail butcher buys the carcase of a pig from a meat salesman in Smithfield 
 Market. The meat is seized in the butcher's shop and condemned as unfit for 
 human food. If the butcher sues the meat salesman, evidence is admissible to 
 show that by the usage of the market no warranty of fitness for food is 
 implied (c). 
 
 Section 55 is merely an application of the general maxims, Expresswni facit 
 cessa/re taciturn, and Modus et conventio vincunt legem. As Pothier has pointed 
 out, sale is a consensual contract, and the parties may alter at will the obligations 
 which the law implies from the general nature of the contract (d). Lord Black* 
 burn, discussing the correlative obligations of payment and delivery, says, 
 " There is no rule of law to prevent the parties from making any bargain they 
 please " (e) ; and Lord Esher says, " Merchants are not bound to make their 
 contracts according to any rule of law " (/). Bedarride accurately expresses the 
 similar rule in France : " C'est surtout de la vente commerciale qu'on pent dire 
 qu'elle pent se plier k toutes les modalites, salis autres exceptions que celles qui 
 
 (a) See e.g., Ward v. Hobbs (1887), 4 App. Cas. 13 (diseased pigs sold "with all 
 faults "). 
 
 (6) See e.g., Produce Brokers Co, v. Olympia Oil <& Cake Co., [1916] 1 A. 0. 314; 
 and the cases cited ante, p. 86, as to o.i.f. contracts. 
 
 (c) Cointat v. Myham (1914), 30 T. Jj. E. 282, C. A. 
 
 {d) Gontrat de Vente, Nos. 1, 181, 306. 
 
 (e) Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B., at p. 329 ; see the passage cited 
 at length, post, pp. 213, 214. 
 
 (/) Eonch V. Muller (1881), 7 Q. B. D., at p. 103, 0. A. 
 
" USAGE (SECT. 55). 127 
 
 r^sulteraient d'une disposition de la loi prohibitive, ou des exigeances de I'ordre 
 de la morale ou des bonnes moenis " (3). 
 
 In estimating the efEeot of an express stipulation, it must be borne in mind, 
 as "Willes, J., remarks, that " the doctrine that an express provision excludes 
 implication does not affect cases in which the express provision appears on the 
 true construction of the contract to have been superadded for the benefit of the 
 buyer " (7i), and this principle is confirmed by sect. 14 (4), ante, which provides 
 that " an express warranty or condition does not negative a warranty or condition 
 implied by this Act, unless inconsistent therewith." French law goes further, 
 and art. 1602 of the CivU Code provides that, where a stipulation in a contract 
 of sale is ambiguous, it is to be construed in favour of the buyer. And this was 
 the Homau rule. In contrahendd venditione ambigwum pactum contra vendi- 
 torum interpretandum est (i). 
 
 Referring to a consignee's lien for advances, Lord Westbury says : " Lien is 
 not the result of an express contract ; it is given by implication of law. If, 
 therefore, a mercantile transaction which might involve a lien is created by a 
 written contract, and security given for the result of the dealings in that 
 relation, the express stipulation and agi-eement of the parties for security 
 exclude Uen, and limit their rights by the extent of the express contract they 
 have made " (^)- 
 
 As regards trade usage, it is to be noted that when one party relies on and 
 gives evidence of usage, the opposite party is at liberty to prove — " first, the 
 non-existence of the usage ; or, secondly, its illegality or unreasonableness ; or, 
 thirdly, that, in fact, it formed no part of the agreement between the 
 parties," (I). 
 
 As regards explaining contracts by usage. Lord Wensleydale says : " In 
 commercial transactions extrinsic evidence of custom and usage is admissible to 
 annex incidents to written contracts in matters with respect to which they are 
 silent . . . and this has been done upon the principle of presumption that, in 
 such transactions, the parties did not mean to express in writing the whole of 
 
 {g) Des Achats et Ventes, § 226. 
 
 (h) Modyy. Gre^son ( 1868), L.K. 4Ex., at p. 53, Ex. Ch.; approved, Dn<TO?reon(f v. 
 Van Ingen {1887), 12App. Gas., at p. 294, per Lord Hersohell. Gf. Biggev. Parkinson 
 (1862), 31 L. J. Ex. 301, Ex. Ch. (sale of provisions for troopship with warranty that 
 they should pass inspection). 
 
 (i) In English law occasional effectds given to the maxim, Verba fortius accipiuntur 
 contra proferentem; see notes to Boe v. Tranmar, 2 Smith, Lead. Gas., 11th ed., p. 
 518, and Foivlces v. Manchester Life Ass. Association (1862), 32 L. J. Q. B., at p. 159, 
 per Blackburn, J. 
 
 (k) Be Leith's Estate (1866), L. B. 1 P. G. 296, at p. 305. As to carriers' lien and 
 sellers' right of stoppage in transitu, see United States Steel Products Co. v. G.W, 
 Railway, [1916] A. C. 189, 195, H. L. 
 
 (Z) Taylor on Evidence, § 1077. See all the authorities on usage collected and 
 reviewed in notes to Wigglesworth v. Dallison, 2 Smith, Lead. Gas., 11th ed., p. 545 ; 
 and as to usage to bind both parties, i.e. that it must be known or taken to be known 
 to both, see Robinson v, MolUt (1875), L. B. 7 H. L. 802. 
 
128 lEE SALE OF GOODS ACT, 1893. 
 
 the contract by ■whioh they intended to be bound, but to contract with reference 
 to those known usages " (m) ; and Blackburn, J., says : " This is in conformity 
 with the maxim, In contractibus tacite insunt ea quse sunt moris et consuetudinis. 
 Pothier, in his TraiU des OhUgations, § 95, expresses the same rule thus : ' On 
 sousentend dans un contrat les clauses qui y sont d'usage quoiqu'eUes ne soient 
 pas exprimees.' And this tacit variation of the terms from those which would 
 otherwise be implied by law, has the same effect as if it was express " (n). But 
 this must be taken with the quaUfloation, that as regards a person who does not 
 know and assent to a usage, "a custom of trade may control the mode of 
 performance of a contract, but cannot change its intrinsic character " (o). If 
 and in so far as a contract of sale is in writing, evidence of any usage 
 inconsistent with the writing is inadmissible (p). 
 
 For a list of terms and expressions which have been the subject of judicial 
 construction, see note B, post, p. 182 ; and for a list of usages which have been 
 proved in relation to contracts of sale, see Wood's Mercantile Agreements, 
 pp, 368-371. 
 
 56. Reasonable time a question of fact. — Where, by this Act, any 
 reference is made to a reasonable time, the question what is a 
 reasonable time is a question of fact. 
 
 It is often difficult to say whether reasonable time is a questicin of law or a 
 question of fact, or a mixed question of law and fact (q). The Act resolves the 
 doubt as regards sale, by making it in all cases a question of fact. Compare 
 sect. 29 (4), ante, p. 79, as to reasonable hours. Tor references to reasonable 
 times, see sect. 18 (4), sect. 29 (2), sect. 35, sect. 37, and sect. 48 (3). 
 
 57. Rights enforceable by action. — Where any right, duty, or 
 liability is declared by this Act, it may, unless otherwise by this Act 
 provided, be enforced by action. 
 
 This section is perhaps required in order to negative the rule of the common 
 law, that when a statute provides no express penalty for disobedience to its 
 provisions, any contravention of its provisions is punishable as a mis- 
 demeanour (r). See " action " defined by sect. 62, post, p. 133. 
 
 (m) Sutton V. Warren (1836), 1 M. & W., at p. 475. 
 
 {«) MolUtt V. Robinson (1872), L. R. 7 C. P., at p. 103. Cf. Produce Brokers Co, 
 V. Olympia Oil <Ss Cake Co., [1916] A. C, at. p. 381, per Lord|Sumner, and ibid. (6th 
 case), 1 K. B. (1917), at p. 330, per Sorutton, L.J. 
 
 (o) Ibid. (1870), L. B. 5 C. P., at p. 656, per WlUes, J., and in H. L. L. R. 7 H. L. 
 802. 
 
 (p) See e.g.. Miller, Gibb cfc Co. v. Smith & Tyrer, [1917] 2 K. B. HI, C. A. 
 (liability of agent for foreign principal); Be Sutro & Co., [1917] 2 K. B, 848, Q, A, 
 (alternative sea route). 
 
 (q) Taylor on Evidence, § 30. 
 
 (r) Stephen's Digest of Criminal Lav), Srd ed,, p, 87, 
 
AUCTION SALES (SECT. 58). 129 
 
 58. Auction sales. — In the case of a sale by auction — 
 
 (1.) Where goods are put up for sale by auction in lots, each lot 
 is prima facie deemed to be the subject of a separate contract 
 of sale (s) : 
 
 (2.) A sale by auction is complete when the auctioneer announces 
 its completion by the fall of the hammer, or in other customary 
 manner. Until such announcement is made any bidder may 
 retract his bid (t) : 
 
 (3.) Where a sale by auction is not notified to be subject to a 
 right to bid on behalf of the seller, it shall not be lawful for 
 the seller to bid himself or to employ any person to bid at 
 such sale, or for the auctioneer knowingly (u) to take any 
 bid from the seller or any such person : Any sale contravening 
 this rule may be treated as fraudulent by the buyer (a;) : 
 
 (4.) A sale by auction may be notified to be subject to a 
 reserved [or upset] price, and a right to bid may also be 
 reserved expressly by or on behalf of the seller («/). 
 
 Where a right to bid is expressly reserved, but not otherwise, 
 the seller, or any one person on his behalf, may bid at the 
 auction (z). 
 
 Illustration. 
 
 Sale by auction subject to a reserve price. The auctioneer by mistake 
 knocks down a lot for less than the reserve. On finding this out he refuses to 
 complete the sale or sign the necessary memorandum. The buyer has no 
 
 (s) Emmerson v. Hellis (1809), 2 Taunt. 38 ; Boots v. Lord Dormer (1832), 4 B. & 
 Ad. 77 ; cf. Couston v. Chapman (1872), L. R. 2 So. App. 250 (a Scotch case). 
 
 (t) Payne v. Cave (1789), 3 T. B. 148 ; Warlow v. Harrison (1858), 28 L. J. Q. B., 
 at p. 21, per Lord Campbell. And bo m.ay the seller retract his ofier, Fenwick v. 
 Macdonald (1904), 6 F. 850, Court of Session. As to mistake, see ante, p. 18. 
 
 (m) Mainprice v. Westley (1865), 34 L. J. Q. B. 229 ; cf. 80 & 31 Vict. o. 48, s. 5. 
 
 (x) Bexwell v. Christie (1776), Cowp. 395, per Lord Mansfield ; Thornett v. Haines 
 (1846), 15 M. & W. 367 ; Green v. Baverstock (1863), 32 L. J. C. P. 181 ; cf. Mortimer 
 V. Bell (1865), L. B. 1 Ch. App., at p. 13. As to fictitious bids by person interested 
 in the sale, but not the seller, see Union Bank v. Munster (1887), 37 Ch. D. 51, and 
 the maxim of Boman Law, Alterius circwmventio alio nonprmhet actionem. 
 
 (y) Ibid., and see Howard v. Castle (1796), 6 T. E., at p. 645, per Grose, J. 
 
 {z) Thornett v. Haines (1846), 15 M. & W., at p. 372 ; Mortimer v. Bell (1865), L. R, 
 1 Ch. App. 10 (where anptioneer and pufief both bid s^nd sale was Ijeld void). 
 
 C. S.G, K 
 
130 THE SALE OF GOODS ACT, 1893. 
 
 remedy against the auctioneer, and it is immaterial that he did not know what 
 the aetaal reserve was (a). 
 
 " Upset price " is the Scottish equivalent of " reserved price." As regards 
 Scotland, the section appears to he declaratory (6). 
 
 Sub-sect. (2). The nature of the contract involved in a sale by auction was 
 much discussed by the EiOman lawyers (c). In England, if the contract be 
 resolved into offer and acceptance, it seems clear that the bid constitutes the 
 offer. As the offer may be retracted before acceptance, so, conversely, it has 
 been held that if a sale be advertised, but the lots are afterwards withdrawn, an 
 intending bidder has no right of action {d). An auctioneer who sells goods 
 which he has no right to sell may or may not be guilty of conversion, according 
 to the circumstances (e). 
 
 Bids at auction, — Sub-sect. (3). Formerly it seems to have been the rule in 
 equity that, when a sale by auction was not expressly stated to be without 
 reserve, the seller might employ one person to bid, so as to prevent the property 
 going at an undervalue. The Sales of Land by Auction Act, 1867 (30 & 31 
 Vict. c. 48), commonly called the Puffer's Act, was passed to abolish this rule. 
 It first declares that any sale which would be invalid at common law by reason 
 of the employment of a puffer, shall be invalid in equity, and then proceeds to 
 regulate sales at which a price is reserved or a right to Md is reserved, and in 
 this it appears to go slightly further than the common law rule (/). The Act 
 does not apply to the sale of goods by auction, but this section is in substantial 
 accordance with the Act {g). The common law rule is an ancient one, Tollendum 
 est igitur ex rebus contrahendis omne mendaciwm non licitatorem vendator, nee 
 qui contra se Uceatur envptor apponet Qi). 
 
 An agreement for a " knock-out " may perhaps be a conspiracy at common 
 law, as well as a groimd for avoiding the contract (i). 
 
 As to auctioneer's duty to put up his name, etc., during sale, see the 
 Auctioneers Act, 1845 (8 & 9 Vict. c. 15), s. 7. 
 
 (a) McManus v. Fcn-tescue, [1907] 2 K. B. 1 0. A. But it seems an auctioneer 
 warrants that he has his principal's authority to sell, Anderson v. Croall (1903), 6 
 F. 153, Court of Session. As to mistake see note to sect. 3 ante. 
 
 (6) See Bell's Princ., §§ 130-132. 
 
 (c) See Moyle's Sale in the Civil Law. 
 
 (d) Harris v. Nickerson (1878), L. R. 8 Q. B. 286. 
 
 (e) Consolidated Co. v. Curtis S Son, [1892] 1 Q. B. 495, 498 ; Barker v. Furlong, 
 [1891] 2 Oh. 172 ; see, too, Sol. Journal, vol. 36, p. 480. It seems he is liable unless 
 he acts as " a mere conduit pipe." 
 
 {if) Parfitt V. Jepsm (1877), 46 L. J. C. P., at p. 533. 
 
 (g) See its provisions carefully discussed in Dart's Vendors and Purchasers, and 
 Fry's Specific Performance. 
 
 (h) Cicero, De OffieUs, lib. 3, cited in Warlow v. Harrison (1858), 28 L.J. Q.B. 19. 
 
 (i) Levi v. Levi (1883), 6 C. & P. 239 ; but see Doolubduss v. Bam Loll (1850), 5 
 Moore Ind. App. 109, at p. 133, P. C. (agreement to enhance) ; and Russell on Crimes, 
 7th ed., p. 168; Bawlings v, General Trading Co., [1920] 3 K. B. 30 (auction of 
 Government stores), 
 
SUPPLEMENTAMY (SECTS. 59-61). 131 
 
 59. Payment into Court in Scotland. — In Scotland where a buyer 
 has elected to accept goods which he might have rejected, and to 
 treat a breach of contract as only giving rise to a claim for damages, 
 he may, in an action by the seller for the price, be required, in the 
 discretion of the Court before which the action depends, to consign 
 or pay into Court the price of the goods, or part thereof, or to give 
 .other reasonable security for the due payment thereof. 
 
 In Scotland the aetio quanii minoris was extremely limited in its scope. 
 It was only competent when the buyer oonld not return the goods. Now that 
 the English rule is extended to Scotland, by sects. 11 and 53, it was thought 
 well to safeguard it by this provision. It is to be regretted that the section 
 was not extended to England, where it is a common fraud to keep the goods 
 and then set up against the price an alleged breach of warranty. 
 
 60. Repeals. — [The enactments mentioned in the schedule to 
 this Act are hereby repealed as from the commencement of this 
 Act to the extent in that schedule mentioned. 
 
 Provided that such repeal shall not affect anything done or 
 suffered, or any right, title, or interest acquired or accrued before 
 the commencement of this Act, or any legal proceeding or remedy- 
 in respect of any such thing, right, title, or interest.] 
 
 See schedule of repeals, post, p. 145. This section and the schedule, having 
 done their work, are repealed by the Statute Law Eevision Act, 1908 (8 Edw. 
 7, c. 49). 
 
 61. — (1.) Savings. — The rules in bankruptcy relating to contracts 
 of sale shall continue to apply thereto, notwithstanding anything 
 in this Act contained. 
 
 (2.) The rules of the common law, including the law merchant, 
 save in so far as they are inconsistent with the express provisions of 
 this Act, and in particular the rules relating to the law of principal 
 and agent {¥) and the effect of fraud, misrepresentation, duress or 
 coercion, mistake, or other invalidating cause, shall continue to 
 apply to contracts for the sale of goods (l). 
 
 (k) See e.g. Keighley v. Durant, [1901] A. C. 240 (contract made by one person in 
 his name on behalf of another, but without the authority of the latter, cannot be ■ 
 ratified). 
 
 {I) Cf. Clarke v. Arvitj and Navy C. S., Ltd., [1903] 1 K. B. 153, C. A. ; Wren v. 
 Holt, [1908] 1 K. B. 610, at p. 616, liability for dangerous goodp. 
 
L32 THE SALE OF' GOODS ACT, 1893. 
 
 (3.) Nothing in this Act or in any repeal effected thereby shall 
 affect the enactments relating to bills of sale, or any enactment 
 relating to the sale of goods which is not expressly repealed by 
 this Act. 
 
 (4.) The provisions of this Act relating to contracts of sale do 
 not apply to any transaction in the form of a contract of sale which 
 is intended to operate by way of mortgage, pledge, charge, or other 
 security (m). 
 
 (5.) Nothing in this Act shall prejudice or affect the landlord's 
 right of hypothec or sequestration for rent in Scotland {n). 
 
 Suh-seei. (1). The Act now in force in England is the Bankruptcy Act, 
 1914 (4 & 5 Geo. 6, c. 59). See in particular sect. 34 (2), reputed ownership ; 
 sect. 44, fraudulent preferences ; sect. 45, protected bona fide transactions ; 
 sects. 55, 56, power of trustee to sell ; and sect. 54, power of trustee to disclaim 
 onerous contracts. As to Scotland, see the Bankruptcy (Scotland) Act, 1913 
 (3 & 4 Geo. 5, c. 20), 
 
 Sub-sect. (2). The word " coercion" was added when the Bill was extended 
 to Scotland as " duress " is not an indigenous term in Scotch law. When 
 illegality is apparent on the face of the transaction the court must take 
 cognizance of it, though the defence of illegality is not set up (o). As to in- 
 validating mistake, see note to sect. 3, ante, as to trading with the enemy, 
 and as to illegality by subseq[uent legislation, see ante, p. 29. 
 
 The object of this saving is (1) to fill up any lacunse in the Act itself (p), 
 and (2) to emphasise the fact that the law of sale is merely a chapter in the 
 general law of contract. Rules of law common to the whole field of contract 
 apply to contracts of sale unless they contradict some express provisidn of the 
 Act embodying some special rule peculiar to sale. 
 
 Sub-sect. (3). The Bills of Sale Acts at present in force are the Acts of 
 1878, 1882, 1890, and 1891. The Act of 1878 alone affects sales as defined and 
 dealt with by this Act. As to the Act of 1878, see App. I., post, p. 166. The 
 biU of sale by which a British ship is transferred has nothing to do with bills 
 of sale under the BUls of Sale Acts. 
 
 For examples of other Acts relating to sales, see the Conveyancing and Law 
 
 (to) Cf. Maas v. Fepper, [1905] A. C. 102, H. L. ; The Otheric, [1920] A. C. 724, 
 733 P. C. ; and cases cited ante, p. i. As to mortgages and pledges, see ante, p. 7. 
 In view of this express provision some of the decisions before the Act must be looked 
 at critically, e.g. McBain v. Wallace (1881), 6 App. Gas. 588 (motive immaterial). 
 
 (n) As to hypothec see Green's Encyclopcedia of Scots Lam (1911), tit. " Hypothec." 
 
 (o) Be North West Salt Co., [1913] 3 K. B. 422, C. A. As to iUegality generally as 
 affecting contract, see per Willes, J., in Seymour v. London <£ Prov. Mar. Ins. Co. 
 (1872), 41 L. J. 0. P., at p. 198. 
 
 {p) See e.g„ Booth Steamship Co. v. Car^o Meet Iron Co., [1916] 2 K. B. 570, 0. A. 
 
DEFINITIONS (SECT. 62). 133 
 
 of Property Act, 1881, so far as it relates to conveyauoes of personalty ; the 
 Acts regulating tke Sale of Food and Drags ; the Acts regulating the sale of 
 Poisons ; and the Weights and Measures Acts ; also the Acts relating to the 
 sale of Horses, ante, p. 68, and the Act relating to the sale of Marine Stores 
 and old metals. 
 
 Sunday. — As to sales on Sunday, see Encyclojtxdia of Laws of England, tit. 
 " Sunday," and Benjamin on Sale, ed. 5, pp. 545-555. 
 
 62. — (1.) Interpretation of terms. — In this Act, unless the context 
 or subject-matter otherwise requires — 
 
 Action. — " Action " includes counterclaim and set-off, and in 
 Scotland condescendence and claim and compensation. 
 
 See sect. 4 and sects. 49 to 53 and sect. 57, which require this definition. 
 The definition is inclusive, not exhaustive. Por the purposes of the Judicature 
 Acts, " action " is defined as meaning a civil proceeding, commenced by writ 
 or in such other manner as may he prescribed by rules of court ; and does not 
 include a criminal proceeding by the Crown (j). 
 
 Bailee. — " Bailee " in Scotland includes custodier. 
 
 As to bailments, see Story on Bailments, and notes to Coggs v. Bernard, 
 Smith, Lead. Cas., 11th ed., p. 173. See sect. 18, rule 6 (2), and proviso to sect. 
 20, and sects. 41 and 43, for references to bailees. As to pledge in Scotland, see 
 Green's Eneyclopsedia of Scots Law, tit. " Pledge." 
 
 Buyer. — "Buyer" means a person who buys or agrees to buy 
 goods. 
 
 As to a person buying his own goods, see ante, p. 3. An option to buy 
 must be distinguished from an agreement to buy (r). 
 
 Contract of sale. — " Contract of sale " includes an agreement to 
 sell as well as a sale. 
 
 See " sale " and " seller " defined, post, p. 140 ; and note the substantive 
 definition of " contract of sale " in sect. 1, ante. The term " contract of sale " 
 is used to. include both executory and executed contracts of sale. Probably a 
 similar object is aimed at by the obscure art. 1589 of the French Civil Code : 
 " La promesse de vente vaut vente.'' 
 
 (2) Judicature Act, 1873 (36 & 37 Vict. o. 66), s. 100 : cf. Cox v. Hoare (1906), 95 
 L. T. N. S. 121. 
 
 (r) Helby v. Matthews, [1895] A. C. 471, 475 ; Belsize Motor Supply Co. v. Cox, 
 [1914] 1 K. B. 244. As to a conditional agreement to buy, see Marten v. Whale, 
 [1917] 2 K. B. 480, C. A. 
 
134 THE SALE OF GOODS ACT, 1893. 
 
 Defendant. — "Defendant" includes in Scotland defender, re- 
 spondent, and claimant in a multiple-poinding. 
 
 Multiple-poinding in Scotland corresponds with, interpleader in England. 
 
 Delivery. — "Delivery" means voluntary transfer of possession 
 from one person to another. 
 
 For rules as to delivery in contracts of sale see sects. 27 to 32, ante. Mr. 
 Benjamin observes that the term " delivery " is used in different senses in the 
 cases (s). It would perhaps be more correct to say that a delivery which is 
 efEectual for one purpose is ineffectual for other purposes. For instance, 
 delivery to a carrier generally passes the property to the buyer, but does not 
 defeat the right of stoppage in transitu, while delivery by the carrier to the 
 consignee does defeat that right. 
 
 Sir F. PoUock defines delivery as " voluntary dispossession in favour of 
 another," and proceeds to say that, " in all cases the essence of delivery is that 
 the deliverer by some apt and manifest act puts the deliveree in the same 
 position of control over the thing, either directly or through a custodian, which 
 he himseK held immediately before that act " {t). 
 
 Delivery may be actual or constructive. Delivery is constructive when it is 
 effected without any change in the actual possession of the thing delivered, as 
 in the case of delivery by attornment or symbolic delivery. Delivery by 
 attornment may take place in three classes of cases (u). First, the seller may 
 be in possession of the goods, but after sale' he may attorn to the buyer, and 
 continue to hold the goods as his bailee {x). Secondly, the goods may be in the 
 possession of the buyer before sale, but after sale he may hold them on his own 
 account (i/). Thirdly, the goods may be in the possession of a third person, as 
 bailee for the seller. After sale such third person may attorn to the buyer and 
 continue to hold them as his bailee (z). 
 
 Sir F. Pollock has carefully discussed the so-called " symbolic delivery " by 
 giving the buyer the key of the place where the goods are' stored. He shows 
 that the key is not the symbol of the goods, but that the transaction " consists 
 of such a transfer of control in fact as the nature of the case admits, and as will 
 practically suffice for pausing the new possessor to be recognised as such " (a). 
 
 But the transfer of a bill of lading appears to afford a genuine instance of 
 
 .{«) Benjamin on Sale, 5th ed., p. 677. 
 
 (f) Pollock on Possession, pp. 43, 46. 
 
 (u) Dublin City Distillery Co. v. Doherty, [1914] A. C. 823, at p. 852, per Lord 
 Parker ; and see oases reviewed by Lord Atkinson, at p. 843. 
 
 {x) Ibid. ; Elmore v. Stone (1808), 1 Taunt. 458 ; Marvin v. Wallcux (1856), 25 L. J- 
 Q. B. 369. 
 
 {y) Story on Sale, § 312a. Cf. Cain v. Moor, [1896] 2 Q. B. 283, 289. 
 
 {z) Pollock m Possession, p. 72 ; Farina v. Horne (1846), 16 M. & W. 119, 128. 
 
 {a) Pollock on Possession, p. 61. 
 
DEFINITIONS (SECT. 62). 135 
 
 symbolic delivery (6). While goods are at sea, they can only he dealt with on 
 land through the instrumentality of the bill of lading which represents them. 
 The transfer of the bill of lading has the same effect as a delivery of the goods 
 themselves. 
 
 Where goods are taken possession of by the buyer under a license to seize, 
 the transaction is equivalent to a delivery by the seller (c), and should perhaps 
 be regarded as a case of actual delivery. 
 
 A delivery by mistake may be inoperative (d). For certain purposes, e.g. 
 the termination of the seller's lien, part delivery may operate as a delivery of 
 the whole, see sect. 42, ante. 
 
 It is to be noted that the Act makes no attempt to define "possession." 
 The term is too elusive. Its meaning is ^ways relative. For instance, when 
 goods are under the control of an agent or servant, they are for some purposes 
 in the possession of the principal or master, while for other purposes they are 
 in the possession of the agent or servant. But a definition of possession for 
 the purposes of the Factors Acts is given by sect. 1 (2) of the Factors Act, 
 1889, post, p. 148. The subject is exhaustively treated in Pollock and Wright, 
 Possession in the Common Law (e). 
 
 Docioment of title. — " Document of title to goods " has the same 
 meaning as it has in the Factors Acts. 
 
 By sect. 1 (4) of the Factors ^ct, 1889, post, p. 149, " The expression 
 ' document of title ' shall include any biU of lading, dock warrant, warehouse- 
 keeper's certificate, and warrant or order for the delivery of goods, and any 
 other document used in the ordinary course of business as proof of the 
 possession or control of goods, or authorising or purporting to authorise either 
 by endorsement or delivery, the possessor of the document to transfer or receive 
 goods thereby represented." This definition is required by sects. 25 and 47. 
 
 Factors Acts. — "Factors Acts" mean the Factors Act, 1889; 
 the Factors (Scotland) Act, 1890, and any enactment amending or 
 substituted for the same. 
 
 See these Acts set out and noted, post, pp. 146, 162. 
 
 (6) Sanders v. Maclean (1883), 11 Q. B. D. 327, at p. 341 ; Biddell Bros. v. E. 
 Clemens Horst & Co., [1911] 1 K. B., at p. 957, per Kennedy, L.J. ; The Prim Adelhert, 
 [1917] A. C, at p. 589, per Lord Sumner. 
 
 (c) Congreve v. Evetts (1854), 10 Bxch. 298, at p. 808, per Parke, B. 
 
 (d) Oodts V. Base (1855), 17 0. B. 229 ; Pullock on, Possession, pp. 100-114. Cf. 
 Bishop v. ShilUto (1819), 2 B. & Aid. 329 n., per Bayley, J". As to delivery by mistake 
 as between two buyers, one lot of goods being lost, see Denny v. Skelton (1916), 115 
 L. T. 305. 
 
 (b) Professor Maitland, in an interesting article on the Seisin of Chattels, 
 establishes that in early times the term " seisin " was applied to chattels, as freely as 
 the term " possession '' and as its equivalent (Law Quarterly Review, vol. 1). 
 
136 TEE SALE OF GOODS ACT, 1893. 
 
 Fault. — " Fault" means wrongful act or default (/). 
 
 This definition was inserted at the instance of Lord Watson. See sects. 7, 
 9, and 20, which require it. " The rule of law applicable to contracts is that 
 neither of the parties can by his own act or default defeat the obligations he 
 has undertaken to fulfil " {g). 
 
 FutuJ:e goods. — "Future goods" means goods to be manufactured 
 or acquired by the seller after the making of the contract of sale. 
 
 See sect. 5, ante, p. 26, and note thereto, and sect. 18 (5) and note, ante, p. 
 59. The expression "future goods" has been criticised as awkward, but 
 Stirling, J., refers to it as " convenient "(fe). 
 
 Goods. — " Groods " include all chattels personal other than things 
 in action and money, and in Scotland all corporeal moveables 
 except money. The term includes emblements [industrial growing 
 crops], and things attached to or forming part of the land which 
 are agreed to be severed before sale or under the contract of sale. 
 
 Compare the definition of " goods " given by sect. 167 of the Bankruptcy 
 Act, 1914 (4 & 5 Geo. 5, c. 69), and contrast the definition of "personal 
 chattels " given by sect. 4 of the Bills of Sale Act, 1878, post, p. 166. It is to 
 be noted (1) that this definition is inclusive, not exhaustive, and (2) that it is 
 guarded by the opening words of the section, "unless the subject matter or 
 context otherwise requires." Tor instance, it is a question of construction 
 whether a contract authorising a person to take slack and cinders from land in 
 the possession of a third party is a sale of goods or a grant of an interest in 
 land (i). 
 
 Chattels personal include aU tangible moveable property, except money. 
 They are "properly and strictly speaking things moveable which may be 
 annexed to or attendant on the person of the owner, and carried about with him 
 from one part of the world to another ; " and they are commonly classified as 
 chattels animate, chattels vegetable, and chattels inanimate (fe). The property 
 in, or right to, chattels personal is either in possession or in action. Property 
 in possession is " where a man has the enjoyment, either actual or constructive 
 of the thing or chattel " (Z). 
 
 Things in Action. — Property in action is where a man has not the enjoyment 
 of the thing in question, but merely a right to recover it by legal process, from 
 
 (/) Of. Asiatic Petroleum Co. v. Lennards Carrying Co. (1913), 18 Com. Cas., at 
 p. 342, per Hamilton, L.J. ; 1 K. B. (1914), 419. 
 
 (g) Sailing Ship Blairmore v. Macredie, [1898] A. 0. at p. 607 ; and see note to 
 BBot. 11, ante, p. 37. 
 
 (h) Ajello V. Worsley, [1898] 1 Oh., at p. 280. 
 
 (i) Morgan v. Russell and Son, [1909] 1 K. B. 357. 
 
 {k) Williams on Executors, 10th ed., p. 531. 
 
 (l) Dicey on Parties to an Action, p. 66. 
 
DEFINITIONS (SECT. 62), 137 
 
 ■whence the thing so recoverable is called a thing (or chose) in action. A " thing 
 in action " is then a personal right, not reduced into possession, but recoverable 
 by law (m). Scrip and shares are things in action, and so of course are bills, 
 notes, and cheques («.). 
 
 Money, that is to say current money, is necessarily excluded, because in sale 
 the goods and the price are contrasted, and wholly different considerations apply 
 to them. But a Jubilee five-pound gold piece, bought as a curiosity, may be 
 treated as goods and not as money (o). 
 
 Emblements are " such vegetable products as are the annual result of 
 agricultural labour " (jp). 
 
 The term Industrial growing crops was added when the BiU was extended 
 to Scotland. It is probably a wider term than emblements or the Scotch 
 equivalent "way-gowing crops." Its possible effect may be to include in 
 '■ goods " such crops as grass, or clover, which did not come within the term of 
 " emblements " (g). 
 
 The concluding words of the definition appear intended to give a rule for 
 determining whether trees, fixtures and other things attached to the soil are to 
 be treated as goods or not. 
 
 Most of the decisions before, the Act arose on the construction of the Statute 
 of Frauds (29 Car. 2, c. 3), which uses the expression " goods, wares, and 
 merchandises," and this expression was somewhat artificially extended in order 
 to bring contracts of sale withiu the 17th rather than the 4th sect, of that Actj 
 which does not recognise part performance. Obviously decisions on those words 
 must be applied with caution to the present definition, which applies not only 
 to sect. 4 (reproducing the 17th section of the Statute of Frauds) but to the 
 whole Act. 
 
 Tenant's fixtures, unsevered, fell neither within the 4th nor the 17th sects, (r), 
 though the price of fixtures could be recovered on a count for fixtures sold and 
 delivered. 
 
 Emblements, or fructus industriales, were treated as goods, even though they 
 were to derive benefit from the land after sale (s). 
 
 As regards fructus naturales, the question seemed to turn on how they 
 were treated by the contract. If they were to be delivered by the seller 
 who was to sever them himself and deliver them, they were goods within the 
 meaning of the 17th sect. If the buyer was to take them away, " the question 
 
 (m) Dicey on Parties to an Auction, p. 66, citing 2 Kent. Com., § 351. 
 
 (n) Humble v. Mitchell (1839), 11 A. &E. 205; Colonial Bank v. Whinney (1886), 
 11 App. Gas. 426 (shares) ; Lang v. Smith (1881), 7 Bing. 284 (foreign bonds) : Free- 
 man v. Appleyard (1862), 32 Li. J. Ex. 175 (certificate of railway stock). 
 
 (o) Moss v. Hancock (1899), 2 Q. B. 111. As to price, see ante, pp. 30-32. 
 
 {p) Williams on Personal Property, 16th ed., p. 138, cf. Williams on Executors, 
 10th ed., p. 586. 
 
 (g) Cf. Kingsbury v. Collins, (1827), 4 Bing. 202 (teazles) ; Graves v. Weld (1838), 
 5 B. & Ad. 105 (clover). , 
 
 (r) Lee v. Oaskell (1876), 1 Q. B. D. 700. 
 
 (s) Marshall v. Green (1875), 1 C. P. D. 35, at p. 42. 
 
138 THE SALE OF GOODS ACT, 1893. 
 
 seems to be whether it can be gathered from the contract that they are intended 
 to remain ia the land for the advantage of the purchaser, and are to derive 
 benefit from so remaining." If so, they came within the 4th sect. If not, and 
 they were to be delivered immediately, even though the buyer was to enter and 
 take them, they came within the 17th sect. (i). 
 
 A ship is clearly a chattel personal, but it is governed by so many special 
 rules that it is doubtful how far it comes under the denomination of " goods " 
 for the purposes of the Act. The provisions of the Act at any rate cam only be 
 applied in an eclectic manner. " A ship," says Turner, L. J., " is not like an 
 ordinary chattel. It does not pass by delivery, nor does the possession of it 
 prove the title to it. There is no market overt for ships. In the case of 
 AmerioEin ships the laws of the United States provide the means of evidencing 
 the title to them " (u) ; as the Merchant Shipping Act, 1894, does for British 
 ships (ic). 
 
 Gas, water, and electricity may be the subjects of larceny (y), but it is doubt- 
 ful to what extent they are " goods " for the purposes of this Act (z). 
 
 Lien. — " Lien " in Scotland includes right of retention. 
 
 Cf. Factors (Scotland) Act, post, p. 162. ,The common law extent of the 
 right of retention is cut down by the provisions of the Act. As to " seller's 
 lien," see ante, p. 96. 
 
 Plaintiff. — "Plaintiff" includes [pursuer, complainer, claimant 
 in a multiple-poinding], and defendant [or defender] counter 
 claiming. 
 
 The terms in brackets are Scottish terms. 
 
 Property. — "Property" means the general property in goods, 
 and not merely a special property. 
 
 The essence of sale is the transfer of the ownership or general property in 
 goods from seller to buyer for a price. See " the " property, that is, the general 
 
 (t) Marshall v. Green (1875), 1 C. P. D., at p. 42, per Brett, J. (growing timber), 
 discussed by Parker, J., in Jones v. Tankerville, [1909] 2 Ch., at p. 448 (trees, with 
 authority to enter and cut). But see Lavery v. Pursell (1888), 39 Ch. D. 508, per 
 Ohitty, J., where there was a sale of the building materials of a house which were to 
 be cleared away in two months. This was held to be an agreement within the 4th 
 section. Sed guare now ? 
 
 (u) Hooper v. Oumm (1867), 2 Ch. App. 282, at p. 290; cf. Lindley on Partnership, 
 7th ed., p. 35. 
 
 (s) Cf. Manchester Ship Canal v. Eorlock, [1914] 2 Ch. 179 C. A. (sale of 
 abandoned ship sunk in fairway). 
 
 {y) Bussell on Crimes, 7th ed., p. 1280 ; Ferens v. Obrien (1883), 11 Q. B. D. 21. 
 As to electricity, see s. 10 of the Larceny Act, 1916. 
 
 («) Cf. County of Durham Electrical Power Go. v. Inland Revenue, [1909] 2 K. B. 
 at p. 608, C. A., as to electricity (stamp question) ; Erie County Fuel Co. v. Carroll, 
 [1911] A. 0. 116, P. 0. (natural gas, measure of damages). 
 
DEFINITIONS (SECT. 62). 139 
 
 property, distinguished from " a " property, that is, merely a special property, 
 by Lord Bowen(a). The use of the term "special property" is inveterate in 
 English law. But it would have conduced to clearness if the term " special 
 interest " had been used instead, while " property " was confined to its primary 
 meaning as ownership or dominium (6). 
 
 The general property in certain goods may be in one person, while a special 
 property in them is in another person, as in the case of a pledge where the 
 pledgee has only a special property or interest, the general property remaining 
 in the pledgor (c). The general property in goods may be transferred to one 
 person subject to a special property in another (d). 
 
 Again, the right of property in goods must be distinguished from the right 
 to their present possession. The entire right of property may be in one person, 
 while the right to possession may be in another, as in the case of a lien (e). So, 
 too, property may be divided between owners, but the right to possession may 
 be in one alone (/) ; and where there is a sale of specific goods for cash, the 
 property passes by the contract, but the seller may (unless otherwise agreed) 
 retain the goods tiU the price is paid. Again, goods may be sold which are in 
 the possession of a third person, such as a carrier or warehouseman, who has no 
 property in the goods, but has a right to retain them till his charges are paid. 
 
 Quality. — " Quality of goods " includes their- state or condi- 
 tion (g). 
 
 See sects. 14 and 15 and 53 (3), which require this definition. Flour or wine 
 may be of excellent kind, but if it is sea-damaged it may not be merchantable. 
 
 Sale. — " Sale " includes a bargain and sale as well as a sale and 
 delivery. 
 
 This definition f oUows from the definition of sale given by sect. 1. See notes 
 to that section and to sect. 49, ante, p. 111. Also headings " sale " and " seller " 
 in Stroud's Judicial Dictionary, and Laws of England, vol. xxv., p. 121. 
 
 (a) Burdick v. Sewell (1884), 13 Q. B. D., at p. 175, G. A., and 10 App. Oas., at p. 
 93. This distinction is not recognised in Scotland, Sayman v. M'Lintoclc, [1907] 9 
 F. at p. 949 ; and see the term " special property " discussed, Attenborough v. Solomon, 
 [1913] A. C. 76, at pp. 83, 84, H. L. (pledge). 
 
 (6) The Odessa, [1916] A. C. 145, at p. 159, P. C, where ^J was held that the Prize 
 Court was concerned only with ownership, and took no cognizance of pledge, lien, or 
 other special interest. 
 
 (c) Halliday v. Eolgate (1868), L. B. 3 Ex. 299, Ex. Oh. 
 
 (d) Franklin v. Neate (1844), 13 M. & W. 481 ; Jenkyns v. Brovm (1849), 14 Q. B. 
 496. See a Uen distinguished from a pledge, Donald v. Suckling (1866), L. E. 1 Q. B., 
 at p. 612; cf. Howes v. Ball (1827), 7 B. & C. 481 (hypothecation) ; as to " pledge " 
 see ante, p. 7. 
 
 (e) Mulliner v. Florence (1878), 3 Q. B. D. 484, 0. A. ; Blackburn on Sale, pp. 198, 
 816; Milgate v. Kebble (1841), 3 M. & Gr. 100; Pollock on Possession, p. 120. 
 
 (/) Nyberg v.Handelaa/r, [1902] 2 Q. B. 202, 0. A. 
 
 (g) Of. Beer v. Walker (1877), 40 L. J. 0. P. 677 (rabbits sent by rail). 
 
140 THE -SALE OF GOODS ACT, 1893. 
 
 Seller. — "iSeller" means a person who sells or agrees to sell 
 
 goods. 
 
 As to seller seUing to Mmself , see ante, p. 3, and note the definition of '' un- 
 paid seller " in sect. 38, ante. In other Acts the expression " seller "-.must, of 
 course, be construed according' to its context, and the subject-matter dealt 
 with Qi). 
 
 Specific goods. — " Specific goods " means goods identified and 
 agreed upon at the time a contract of sale is made. 
 
 Specific or individualised goods must be distinguished from generic or un'- 
 ascertained goods. Where there is a contract for specific goods, the seller would 
 not fulfil his contract by delivering any other goods than those agreed upon. 
 When there is a contract for generic goods the seller fulfils his contract by 
 delivering at the appointed time any goods which answer to the description in 
 the contract. It is clear that future goods, even though particularly described, 
 do not come within the definition of specific goods, but for most purposes would 
 be subject to the same considerations as unascertained goods, see notes to sects. 
 17 and 18, ante. 
 
 The definition is only a primA facie one, because there may be a mixed case, 
 namely, when there is a contract for the sale of an unascertained portion of a 
 larger ascertained quantity of goods. Suppose a man having a hundred dozen 
 of a particular brand of champagne in his cellar, agrees to sell twenty dozen of 
 the champagne of that brand " now in my cellar.'' For some purposes this 
 would be regarded as a contract for specific goods, while for other pxirposes it 
 would be regarded as a contract for the sale of unascertained goods. The 
 property in the wine would not pass till the twenty dozen had been appropriated 
 to. the contract {ante, p. 51), but if the whole of the wine were destroyed the 
 seller might be discharged from his obligation {ante., pp. 27, 28). 
 
 Warranty, — " Warranty," as regards England and Ireland, means 
 an agreement with reference to goods which are the subject of a 
 contract of sale, but collateral to the main purpose of such contract, 
 the breach of which gives rise to a claim for damages, but not to a 
 right to reject the goods and treat the contract as repudiated (i). 
 
 As regards Scotland, a breach of warranty shall be deemed to be 
 a failure to perform a material part of the contract (h). 
 
 (h) See e.g.. Pharmaceutical Society v. WUte, [1901] 1 K. B. 601, C. A. As to 
 who is a " hawker," see O'Dea v. Craaoford (1899), 68 L. J. Q. B. 655. As to " seller " 
 or " sale" in the licensing Acts, see Titmua v. Littlewood, [1916] 1 K. B. 732, and 
 the cases as to clubs, ante, p. 11. 
 
 (i) As to the test whether a given term is a condition or a warranty, see Bentsen 
 V. TayUn- (1893), 2 Q. B., at p. 281, per Bowen, L.J. 
 
 (k) Cf. Sects. 11 (2), and 58 (5), ante. 
 
DEFINITIONS (8 EOT. 62). 141 
 
 oil- W. Anson, in his work on contracts, has collected six different senses in 
 which the word warranty is used in. the cases (Z), but it is submitted that the 
 definition selected by the Act is the most convenient. See Note A, post, p. 17V, 
 where the subject is discussed at length. Lord Abinger, protesting against a 
 warranty being confused with a condition, says, " a warranty is an express or 
 implied statement of some things which the party undertakes shall be part of 
 the contract, and though part of the contract yet collateral to the express object 
 of it " (m). 
 
 The Act, in accordance with this view, draws throughout ja distinction 
 between the terms " condition precedent " and " warranty," and defines the 
 circumstances under which a condition may be treated as a warranty. See 
 sect. 11 (1), and sects. 12 to 15, and sect. 53, and as to Scotland, see sect. 11 (2). 
 No express definition of " condition " is given by the Act, but it is defined by 
 inference as a term in the contract the breach of which gives rise to a right to 
 repudiate the contract. Whether a given stipulation is a condition or a 
 warranty is a question of construction and intention, and not of terminology, 
 see sect. 11 (1), ante, and see the notes on the terms "condition" and 
 " warranty," post, pp. 175, 177. 
 
 It is often difficult to determine whether a statement made by the seller 
 during the making of a contract of sale amounts to a warranty or is a mere 
 expression of opinion. It has been suggested that the test is " whether the 
 vendor assumes to assert a fact of which the buyer is ignorant, or merely states 
 an opinion or judgment upon a matter of which the vendor has no special 
 knowledge, and on which the buyer may be expected also to have an opinion and 
 exercise his judgment (n). 
 
 (2.) Good faith. — A thing is deemed to be done " in good faith " 
 within the meaning of this Act when it is in fact done honestly 
 whether it be done negligently or not(o). 
 
 See sects. 22 (1), 23, 25, 26, and 47, which require this definition. 
 
 What constitutes fraud. — The House of Lords in Berry v. Peek(p) has 
 exploded the notion of " legal fraud," and has established the principle that 
 there is no tertiuni qvid between good faith on the one hand, and bad faith or 
 fraud on the other. " First," says Lord HerscheU, " in order to sustain an 
 action of deceit, there must be proof of fraud, and nothing short of that will 
 
 {I) Anson on Contracts, ed. 13, p. 368. 
 
 (to) Chanter v. Hopkins (1838), 4 M. & W. 399, at p. 404. See, too, Behn v. 
 Burness (1863), 32 L. J. Q. B. 204, at p. 207 ; Seyworth v. Hutchinson (1867), L. B. 
 2 Q. B. 447: cf. Kennedy v. Panama Mail Co. (1867), L. E. 2 Q. B., at p. 587, and 
 notes to Cutter v. Powell, 2 Smith, Lead. Cas., ed. 11, p. 1 ; Wallis v. Pratt, [1910] 
 2 K. B. 1003, 1012, per Moulton, L.J. 
 
 (to) De Lassalle v. Guildford, [1901] 2 K. B. 215, at p. 221, 0. A. 
 
 (c) Taken from the 45 & 46 Vict. o. 61 (Bills of Exchange Act, 1882, s, 90) ; cf. 
 Jones v. Gordon (1877), 2 App. Cas. 616. 
 
 {p) Berry y. Peek (J889), 14 App. Cas, 837. 
 
142 THE SALE OF GOODS ACT, 1893. 
 
 suffice. Secondly, fraud is proved when it is shewn that a false representation 
 has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, 
 careless whether it be true or false. Although I have treated the second and 
 third as distinct cases, I think the third is but an instance of the second ; for 
 one who makes a statement under such circumstances can have no real belief in 
 the truth of what he states. To prevent a false statement being fraudulent, 
 there must, I think, always be an honest belief in its truth. And this probably 
 covers the whole ground ; for one who knowingly alleges that which is false, 
 has obviously no such honest belief. Thirdly, if fraud be proved, the motive of 
 the person guilty of it is immaterial. It matters not that there was no 
 intention to cheat or injure the person to whom the statement was made " (5). 
 
 The maxim of the Civil Law culpa lata dolo equiparatur is not quite 
 English law. Gross negligence may be evidence of bad faith, but it is not the 
 same thing, and does not entail the same consequences (r). 
 
 (3.) Insolvent. — A person is deemed to be insolvent within the 
 meaning of this Act who either has ceased to pay his debts in the 
 ordinary course of business, or cannot pay his debts as they become 
 due, whether he has committed an act of bankruptcy or not [and 
 whether he has become a notour bankrupt or not] (s). 
 
 The words in brackets refer to Scotland. See sects. 39, 41, and 44, which 
 require this definition. ' 
 
 (4.) Deliverable state. — Goods are in a "deliverable state" 
 within the meaning of this Act when they are in such a state that 
 the buyer would under the contract be bound to take delivery of 
 them {t). 
 
 See sect. 18, rules 1, 2, 3, and 5, and sect.- 29 (5), which require this 
 definition. 
 
 63. Commencement.^ — [This Act shall come into operation on 
 the First day of January, One Thousand Eight Hundred and 
 
 Ninety-four.] 
 
 (2) Derry v. Peek (1889), 14 App. Oas. p. 374,- H. L. 
 
 (r) Cf. Jones v. Gordon (1877), 2 App. Cas., at p. 629, Lord Blackburn. 
 
 (s) Biddlecomhe v. Bond (1835), 4 A. & E. 332 (a general inability to pay debts) ; 
 Ex p. Carnforth Co. (1876), 3 Ch. D. 108, 0. A. ; see at p. 122 (an inability to pay 
 avowed either in act or word, and a consequent intention on the part of the indebted 
 company not to pay their debts) ; see The Feliciana (1915), 59 S. J. 546, as to an alien 
 enemy dishonouring Ms acceptance in war time. Cf. sect. 96 of the Indian Contract 
 Act, 1872. 
 
 (t) See Blackburn on Sale, p. 152 ; Pritchett ct Gold v. Gurrie, [1916] 2 Ch. 515, 
 C. A. (parts of an electrical battery). 
 
SnOBT TITLE (SECT. 64). 143 
 
 This section is repealed as spent by the Statute Law Revision Act, 1908 
 (8 Edw. V, c. 49). 
 
 64. Short title. — This Act may be cited as the Sale of Goods 
 Act, 1893. 
 
 Canon of construction. — The canon for construing a codifying Act was dis- 
 cussed by the House of Lords in a case on the BiUs of Exchange Act, 1882. 
 " I think," says Lord Hersohell, " the proper course is in the iirst instance to 
 examine the language of the statute, and to see what is its natural meaning, 
 uninfluenced by any considerations derived from the previous state of the law ; 
 and not to start with inquiring how the law previously stood, and then, 
 assuming that it was probably intended to leave it unaltered, to see if it will 
 bear an interpretation in conformity with this view." But, of course, as he 
 proceeds to point out, if any provision be of doubtful import resort to the 
 previous state of the law would be perfectly legitimate (u). 
 
 The provisions of this Act must be read with and subject to the provisions of 
 the Interpretation Act, 1889 (52 & 53 Vict. c. 63), which apply to aU later Acts 
 of Parliament, unless expressly excluded. By sect. 19 of that Act, unless the 
 contrary intention appears, " person " includes any body of persons, whether 
 corporate or unincorporate, and by sect. 20 references to " writing " include 
 printing, lithography, photography, and other modes of representing or 
 reproducing words in a visible form. 
 
 Although the Sale of G-oods Act reduces the common law rules into 
 statutory form the defence of breach of warranty is not a " statutory defence " 
 for pleading purposes («). But a defence arising under sect. 4, which reproduces 
 the 17th section of the Statute of Frauds, is a statutory defence (y). 
 
 The Act is divided into Parts, and those Parts are again sub-divided by 
 various headings. Regard must be had to these divisions in construLag the 
 
 Act (2). 
 
 General operation. — " The Sale of Goods Act, 1893," says Lord Parker, " is in 
 fact merely a codification, and, as is generally admitted, a very successful and 
 correct codification of this branch of English mercantile law. It embodies the 
 principle that the question whether a contract for the sale of goods does or does 
 not pass the property in the goods contracted to be sold must in all cases be 
 determined by the intention of the parties to the contract. The Act codifies 
 the rules by which that intention is to be ascertained, but the inference based 
 on the rules may always be displaced by the terms of the contract itself, or the 
 
 (M) Vagliano v. Bank of England (1891), A. 0., at p. 145. Cf. Bristol Tramways 
 Co. v. Fiat Motors Co., Ltd., [1910] 2 K. B., at p. 306, 0. A. ; Wimble v. Rosenberg 
 & Sans, [1913] 3 K. B., at p. 757, C. A. But note the criticism of Palles, C.B., in 
 Wallis V. Bussell, [1902] 2 Ir. Bep. at p. 590. 
 
 {x) Bright V. Rogers, [1917] 1 K. B. 917. 
 
 {y) Cf. Roe v. Nai/lor, Ltd. (1918), 87 L. J. K. B. 958, G. A. 
 
 {z) Inglis v. Robertson, [1898] A. 0., at p. 630. 
 
1-44 THE HALE OF GOODS ACT, 1893. 
 
 sxuToimding circumstances, including the conduct of the parties. No douht 
 the municipal law with reference to which the parties enter into the particular 
 transaction is material in considering their intention as to the passing of the 
 property ; and if it appears that they contracted with reference to a municipal 
 law other than English and it be further proved that that municipal law is 
 different in any material respect from the English law, this will of course be 
 taken into account in determining their intention. But having regai'd to the 
 presumption that, unless the contrary be proved, the general law of a foreign ' 
 country is the same as the English law the mere factHhat the contract was 
 entered into with reference to the law of another country wiU be immaterial " (a). 
 
 Adoption of Act in Colonies. — Incidentally the codification in the United 
 Kingdom of the law relating to the sale of goods has produced a somewhat un- 
 expected benefit. It has to a great extent produced uniformity in this branch 
 of the law throughout the dominions of the Crown. Most of the colonies have 
 adopted and re-enacted the Act, with, of course, small variations to adapt it to 
 local circumstances. See, for example — 
 
 Canada. -(1) Alberta, C. O. N. T., 1898, c. 39 ; (2) British Columbia, 
 E. S. B. C, 1911, c. 203; (3) Manitoba, E. S. M., 1913, o. 174; (4) Nova 
 Scotia, 1910, c. 1 ; (5) Saskatchewan, E. S. S., 1909, c. 147 ; (6) Yukon Terri- 
 tory, C. O., 1914, c. 78 ; (7) Newfoundland, 1899, c. 2 ; (8) New Brunswick, 
 Ontario, and Prince Edward's Island have recently adopted the Act. 
 . Australasia. — (1) Queensland, 1896 (60 Vict. No. 6) ; (2) South Australia, 
 1895, No. 630; (3) Tasmania, 1896 (60 Yict. c. 14); (4) "Victoria, The Goods 
 Act, 1915. Part I. corresponds with the English Act, but the Act then goes 
 op to deal with bills of lading, merchandise marks, factors, etc. ; (5) Western 
 Australia, 1895 (59 Vict. c. 41) ; (6) New Zealand, 1908, No. 168. 
 
 British Ouiana, 1913, Ord. No. 26 ; British Honduras, 1899, No. 14 ; Gib- 
 raltar, 1895, No. 20 ; Bong Kong, 1896, No. 7 ; Isle of Man, Sale of Goods 
 Act, 1895. 
 
 West Indies.— (i) Trinidad and Tobago, 1895, No. 37 ; (2) Jamaica, 1895, 
 No. 12 ; (3) Bahamas, 1904, c. 37 ; (4) Barbados, 1895, No. 91. 
 
 India. — In India the law relating to the sale of goods was codified, in 1872, 
 by sects. 76-123 of the Indian Contract Act (Act IX. of 1872). The Indian 
 Law resembles, but does not exactly reproduce, the English Law on the subject. 
 See Menfrey's Sale of Goods in British India. 
 
 TTnited States. — The Sale of Goods Act has been followed in the United 
 States in the Uniform Sales Law, 1906, which has been adopted in nineteen 
 out of fifty-three American states or territories, namely : — Alaska, 1913 ; 
 Arizona, 1913; Connecticut, 1907; Illinois, 1915; Maryland, 1910; Massa- 
 chusetts, 1908 ; Michigan, 1913 ; Minnesota, 191" ; Mississippi, 1908 ; Nevada, 
 1915 ; New Jersey, 1907 ; New York, 1911 ; North Dakota, 1917 ; Ohio, 1908 ; 
 Pennsylvania, 1915; Ehode Island, 1908; Utah, 1917; Wisconsin, 1911; 
 Wyoming, 1917. 
 
 (») The Pa/rcUm, [1918] A, C, 157, at pp. 160, 161, f, Q, 
 
MNAGTMENta. bjepeaLeu (scIhSd.). 
 
 146 
 
 SCHEDULE. 
 
 This schedule is to be read as referring to the revised edition of 
 the statutes prepared under the direction of the Statute Law Com- 
 mittee (a). 
 
 Enactments Eepealed. 
 
 Session and Chapter. 
 
 Title of Act and Extent of Repeal. 
 
 1 Jac. 1, c. 21 
 29Chas. 2,0.3 
 
 9Geo.4, c. 14 
 
 18 & 20 Vict. 0. 60 .. 
 19&20Viot. c. 97 .. 
 
 An Act against brokers. 
 
 The whole Act. 
 
 An Act for the prevention of frauds and perjuries. 
 
 In part ; that is to say, sections fifteen and 
 sixteen (6). 
 
 An Act for rendering a written memorandnni necessary 
 to the validity of certain promises and 
 engagements. 
 In part ; that is to say, section seven. 
 
 The Mercantile Law Amendment (Scotland) Act, 1856. 
 In part; that is to say, sections one, two, 
 three, four, and five. 
 
 The Mercantile Law Amendment Act, 1856. 
 
 In part ; that is to say, sections one and two. 
 
 (a) This Schedule is now repealed by the Statute Law Revision Act, 8 Edw. 7, 
 c. 49. 
 
 (6) Commonly cited as sections sixteen and seventeen. 
 
 c.s.a. 
 
( 146 ) 
 
 THE FAOTOES ACT, 1889. 
 
 (52 & 53 ViOT. c. 45.) 
 
 An Act to amend and consolidate the Factors Acts. 
 
 [26th August, 1889. 
 
 [The Factors Act, 1889, which, repeals the previous enactments dealing 
 with similar suhject-matter, is a partial application to English law of the 
 French maxim, "En fait de meubles possession vaut titre." The present Act 
 is the result of a long struggle between the mercantile community on the one 
 hand and the principles of common law on the other. The general rule of the 
 common law was, Nemo dat quod nan hdbet (c), and it was held that the mere 
 fact that a person was in possession of goods or documents of title to goods did 
 not enable him to dispose of those goods in contravention of his instructions 
 with respect to them. The merchants and bankers contended that, in the 
 interests of commerce, if a person was put or left in the possession of goods or 
 documents of title, he ought, as regards innocent third parties, to be treated as 
 the owner of the goods. As Bowen, L.J., has pointed out, the object of the 
 Courts is to prevent fraud, " the object of mercantile usages is to prevent the 
 risk of insolvency, not of fraud, and any one who attempts to follow and under- 
 stand the law merchant will soon find himself lost if he begins by assuming 
 that merchants conduct their business on the basis of attempting to insure 
 themselves against fraudulent dealing. The contrary is the case — credit, not 
 distrust, is the basis of commercial dealings ; and mercantile g«nius consists 
 principally in knowing whom to trust " (d). To express the principle in other 
 words, lawyers see only the pathology of commerce, and not its healthy 
 physiological action, and their views are therefore apt to be warped and 
 one-sided. 
 
 The first Factors Act was passed in 1823, the second in 1825, and the third 
 in 1842. These enactments were a model o'f the art of saying few things in 
 many words. They dealt with the powers of factors or other mercantile agents 
 intrusted with the possession of goods or documents of title to goods, and their 
 conjoint efEect is carefully summed up by Blackburn, J., in Cole v. North 
 
 (c) See sect. 21, ante, p. 84, and Fuentes v. Montis (1868), L. E. 3 0. P. 268, at p. 
 277, per Willes, J. 
 
 {d) Sanders v. Maclean, [1883] 11 Q. B. D., at p. 843, C. A. ; cf. Speight v. Garint 
 (1883), 9 App. O^s., at p. 20, per Lord Blackburn. 
 
THE FACTORS ACT, 1889 (SECT. 1). 147 
 
 Western Bank (e). After reviewing the history and policy of the Acts, he 
 proceeds to say : " We do not think that the legislature wished to give to all 
 sales and pledges in the ordinary course of business the efiect which the 
 common law gives to sales iu market overt . . . The general rule of law is, 
 that where a person is deceived by another into believing he may safely deal 
 with property 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 intrusted goods or the documents of title 
 of goods to an agent who, iu the case of such agency, sells or pledges the goods, 
 he should be deemed by that act to have misled any one who bond fide deals 
 with the agent, and makes a purchase from or advance to him without notice 
 that he was not authorised to seU or to procure the advance." 
 
 The Factors Act, 1877, dealt with a new subject-matter. After providing 
 that a secret revocation of agency should be inoperative, it proceeded to deal 
 with the case, not of agents, but of buyers or sellers left in possession of the 
 documents of title to goods. The present Act reproduces and somewhat 
 extends the effect of the four above-mentioned Acts. 
 
 " The Act," says Lord Hersohell, " is divided into parts. The first part 
 headed ' Preliminary ' consists of a definition clause. The last part headed 
 ' Supplemental ' contains provisions as to the mode of transfer for the purposes 
 of the Act and certain savings. The other two parts are headed respectively 
 ' Disposition by Mercantile Agents,' and ' Dispositions by Buyers and Sellers 
 of Goods.' These headings are not, in my opinion, mere marginal notes, but 
 the sections in the group to which they belong must be read in connection 
 with them, and interpreted by the light of them. It appears to me that the 
 Legislature has clearly indicated the intention that the provisions of section 3 
 should not be treated as an enactment relating to all pledges of documents of 
 title, but only to those effected by mercantile agents " (/)j. 
 
 Preliminary, 
 
 1. — (1.) Definitions. — Mercantile agent. — For the purposes of 
 this Act — The expression "Mercantile agent" shall mean a 
 mercantile agent having in the customary course of his business as 
 such agent authority either to sell goods, or to consign goods for 
 the purpose of sale, or to buy goods, or to raise money on the 
 security of goods : 
 
 This defijaition is new, but is maioly declaratory. It extends the con- 
 struction put on the repealed Acts in so far as it applies to agents " to buy 
 
 (e) Cole v. North Western Bank (1875), L. E. 10 C. P. 354, at p. 372, Ex. Oh. ; cf. 
 Weiner v. Harris (1909), 15 Com. Caa. 39, at p. d8, per FarweU, L.J. 
 (/) Inglis V. Robertson, [1898] A. 0., 616, at p. 630, Sc. 
 
148 THE FACTOBS ACT, 1889. 
 
 goods," and perhaps also in so far as it applies to forwarding agents (g). 
 Under the repealed Acts, the terms used were simply "person" or "agent' 
 intrusted with the possession of goods, but it was held that the Acts only- 
 applied to mercantile transactions, and that the term " person " or " agent " 
 did not include a mere servant or caretaker, or one who had possession of goods 
 for carriage, safe custody, or otherwise as an independent contracting party ; 
 but only persons whose employment corresponded to that of some known kind 
 of commercial agent like that class (factors) from which the Acts took their 
 name (h). Thus, a person entrusted with furniture to keep in her own house 
 for the plaintiff was held not to be an " agent " within the meaning of the 
 Acts (i) ; and a wine merchant's clerk who, as such, was possessed of delivery 
 orders, was held not to be an agent within the meaning of the Acts, so as to be 
 able to make a valid pledge in fraud of his master. In the latter case, 
 Blackburn, J., remarks that the clerk " was not a mercantile agent " (Jc). It 
 was further held, that if a mercantile agent received goods in some other 
 capacity, the Act did not apply ; for instance, where goods were warehoused 
 with a warehouseman who was also a broker, it was decided that he could not 
 pledge them in his capacity of broker (Z). Under the present Act it was held 
 that a person employed to sell jewellery for a firm of jewellers at a small com- 
 mission was not a mercantile agent (to). But that case has been dis- 
 approved (n.). 
 
 On the other hand, it was held that the repealed Acts applied to an isolated 
 instance of employment, if the employment was such that persons who ordinarily 
 carried on that kind of business would come within the Acts (o). 
 
 See the chief classes of mercantile agents enumerated (i.e. factors, brokers, 
 auctioneers, etc.), and their functions defined in Story on Sale, §§ 78-118. 
 
 (2.) Possession.— A person shall be deemed to be in possession 
 of goods or of the documents of title to goods, where the goods or 
 
 (g) Qu. how far HelUngs v. Bussell (1875), 33 L. T. (N. S.), 380, and Citij Bank v. 
 Barrow (1880), 5 App. Cas. 664, are affected ? 
 
 (h) Cole V. North Western Bank (1875), L. E. 10 C. P., at pp. 372, P73, per 
 Blackburn, J. ; cf. City Bank v. Barrow (1880), 5 App. Cas., at p. 678. 
 
 (i) Wood V. BowcUffe (1846), 6 Hare, 183. 
 
 (fc) Lamb v. Attenborough (1862), 31 L. J. Q. B. 41 ; cf. Oppenheimer v. Atten- 
 borough, [1908] 1 K. B. 221, at p. 226, 0. A. 
 
 (I) Cole v. North Western Bank (1875), L. R. 10 0. P. 354, Ex. Oh. ; cf. City Bank 
 V. Barrow (1880), 5 App. Gas., at p. 678. 
 
 (m) Hasti/ngs v. Pearson (1893), 1 Q. B. 62 ; see also Tremoille v. Christie, Sol. 
 Journ., 1893, vol. xxxvii. p. 650. 
 * [n) Werner v. Harris (1909), 15 Com. Cas. 39, 0. A. 
 
 (o) Hayman v. Flewker (1863), 32 L. J. C. P. 132 (pictures entrusted to insurance 
 agent to sell on commission). See Biggs v. Evams (1894), 1 Q. B. 88, decided on the 
 repealed Acta, where it was held that an opal matrix table-top entrusted to a jewellet 
 but which was not to be sold without further instructions, was not within the Act. 
 
THE FACTORS ACT, 1880 (SECT. 1). 149 
 
 documents are in his actual custody or are held by any other 
 person subject to his control or for him or on his behalf : 
 
 This definition is taken from words used in sect. 4 of the Act of 1842 
 (5 & 6 Yict. c. 39), but it is generalised by the substitution of the word 
 "person" for the word "agent." The probable object of this change is to 
 make it apply to sects. 8 to 10, Tpost, as well as to the agency sections. 
 
 (3.) Goods. — The expression "goods" shall include wares and 
 merchandise : 
 
 The term used in the 17th sect, of the Statute of Frauds is " goods, wares, 
 and merchandise." This definition, therefore, probably incorporates the 
 numerous decisions . on the meaning of those words in that Act. A new 
 definition of " goods " is given by sect. 62 of the Sale of Goods Act for the 
 purposes of that Act. 
 
 (4.) Document of title. — The expression " document of title " 
 shall include any bill of lading, dock warrant, warehouse-keeper's 
 certificate, and warrant or order for the delivery of goods {p), and 
 any other document used in the ordinary course of business as proof 
 of the possession or control of goods, or authorising or purporting 
 to authorise, either by endorsement or by delivery, the possessor 
 of the document to transfer or receive goods thereby represented : 
 
 This definition is taken from sect. 4 of the Factors Act, 1842 (5 & 6 Vict. 
 c. 39), with the addition of the " warehouse-keeper's certificate." It is in- 
 corporated by sect. 62 of the Sale of Goods Act, ante, p. 135. The Act of 1825 
 (6 Geo. 4, c. 94, s. 2) included warehouse-keepers' certificates, but the Act of 
 1842 omitted them, and in a case in 1878 the Lords Justices held that these 
 documents were not documents of title (q). 
 
 Cash receipts given in place of delivery orders are not documents of 
 title (r). 
 
 Ordinarily, when the title to goods depends upon a written instrument, the 
 document requires to be registered as a biU of sale, for the purposes of the 
 Bills of Sale Acts ; but by sect. 4 of the Bills of Sale Act, 1878, post, p. 166, it 
 
 {p) As to delivery orde];p, see Morgan v. Oath (1865), 3 H. & C. 748, at p. 760 
 (definition) ; Ex p. Close, Be Hall (1885), 54 L. J. Q. B. 43 ; Be Cunningham <fc Co. 
 (1885), 54 L. J. Ch. 448 (distinguished from bill of sale) ; Union Credit Bank v. 
 Mersey Docks, [1899] 2 Q. B. 205 (conversion, order fraudulently altered, and blank 
 fraudulently flUed up). 
 
 (g) Gurm v. Bolokow, Vaughan <& Co. (1878), L. E. 10 Ch. App. 491. 
 
 (r) Kemp v, Falk (1882), 7 App. Gas. 573, at p. 585, per Lord Blackburn. As to 
 mate's receipts, see Cowasjee v. Thompson (1845), 5 Moore, P. C. 165 ; Bathering v. 
 Laing (1873), L. E. 17 Eq. 92. As- to railway receipts in India, see Bam Das v, 
 AmrshamI, <b Go. (1916), 85 L. J, P. 0, 214, 
 
150 THE FACTORS ACT, 1889. 
 
 is provided that the term bill of sale shall not include " transfers of goods, in 
 the ordinary course of business of any trade or calling, bills of sale of goods in 
 foreign parts or at sea, bills of lading, India warrants, warehouse-keepers' 
 certificates, warrants or orders for the delivery of goods, or any other documents 
 used in the ordinary course of business as proof of the possession or control of 
 goods, or authorising or purporting to authorise, either by endorsement or 
 delivery, the possessor of such document to transfer or receive goods thereby 
 represented." Ajid by the BiUs of Sale Act, 1890 (53 & 54 Yict. c. 53), as 
 amended by the BiUs of Sale Act, 1891 (54 & 55 Yict. c. 35) certain mercantile 
 letters of hypothecation are exempted from the provisions of the BiUs of 
 Sale Acts. 
 
 As to the mode of transferring documents of title, see sect. 11, post, p. 158. 
 
 (5.) Pledge. — The expression " pledge " shall include any con- 
 tract pledging, or giving a lien or security on, goods, whether in 
 consideration of an original advance or of any further or continuing 
 advance or of any pecuniary liability : 
 
 This definition is new. Its terms seem wide enough to include a mortgage, 
 that is, a contract transferring conditionally the general property in goods in 
 consideration of a loan, and also perhaps a letter of hypothecation without 
 possession. As to the common law definition of " pledge " see ante, p. 7. 
 
 The words " any pecuniary liability " are very wide, and are probably in- 
 tended to meet cases such as the granting of a letter of credit to be operated on 
 by bills of exchange in consideration of the pledge of goods or documents. 
 
 The language of this definition should be compared with the language used 
 in sect. 4 of the Act of 1842 (5 & 6 Yict. c. 89). 
 
 (6.) Person. — The expression " person " shall include any body 
 of persons corporate or unincorporate. 
 
 Dispositions hy Mercantile Agents. 
 
 2. — (1.) Powers of mercantile agent with respect to disposition of 
 goods. — Where a mercantile agent is, with the consent (s) of the 
 owner, in possession of goods or of the documents of title to goods, 
 any sale, pledge, or other disposition of the goods, made by him 
 when acting in the ordinary course of business of a mercantile 
 agent (t), shall, subject to the provisions of this Act, be as valid as 
 
 (s) As to " consent " see per Kennedy, L.J., in Oppenheimer v. Frazer and Wyatt, 
 [1907] 2 K. B. 50, C. A. 
 
 (<) See per Lord Alverstone, Oppenheimer v. Attenhorough (1907), 13 Com. Cas at 
 pp. 130, 131 ; cf. Mehta v. S^l.tton (1913), 30 T. L. K. 17, C. A.' (larceny by triok in 
 France, subsequent pledge in England). 
 
THE FACT0B8 ACT, 1889 (SECT. 2). 151 
 
 if he were expressly authorised by the owner of the goods to make 
 the same ; provided that the person taking under the disposition 
 acts in good faith, and has not at the time of the disposition notice 
 that the person making the disposition has not authority to make 
 the same. 
 
 Illustrations. 
 
 (1) A diamond broker obtains a large parcel of diamonds from a diamond 
 merchant on the pretence that he has a prospective customer in K. Instead of 
 taking them to- K, he pledges them with a pawnbroker. It is against the 
 custom of the diamond trade for brokers to have authority to pledge, but the 
 pawnbroker, who has had previous dealings with the diamond broker, believes 
 him to be a principal. The pledge stands good (it). 
 
 (2) A diamond broker obtains a large parcel of diamonds from a diamond 
 merchant on the pretence that he has a prospective customer in K. Instead of 
 taking them to K, he hands them to B, requesting him to sell them. B arranges 
 with two other persons to purchase the diamonds on joint account, and the price 
 is paid to the broker. B, who shares an office with the broker, does not act in 
 good faith. The purchase is not protected, and B and the two other joint 
 purchasers are liable in an action for conversion («). 
 
 See the terms " mercantile agent," " document of title," and " pledge " 
 defined by sect. 1, ante. 
 
 This sub-section supersedes and reproduces, in altered language, sects. 2 and 
 4 of the Act of 1825 (6 Geo. 4, c. 94), and sect. 4 of the Act of 1842 (5 & 6 Vict. 
 o. 39). It no longer recLuires the goods or documents to be " intrusted " to the 
 agent, but it suffices that they are in his possession with the owner's consent. 
 How far this alteration of language extends the operation of the new Act is not 
 very clear ; but if it was intended to alter the rule that where a mercantile 
 agent was intrusted with goods in some other capacity, he could not seU or 
 pledge them contrary to instructions, it is a pity that so important a change in 
 the law has not been more clearly enunciated. Suppose a house were let furnished 
 to a man who happened to be an auctioneer. Coxild he sell the furniture by 
 auction and give a good title to the buyers P Surely not (y). 
 
 It was held under the repealed Acts that the mercantile agent's powers were 
 not exhausted by a single transaction. Thus, where the consignee of cotton 
 pledged the biU of lading with a broker, authorising him to seU the cotton, and 
 
 (u) Oppenheimer v. Attenborough, [1908] 1 K. B. 221, C. A., distinguishing 
 Hastings v. Pearson, [1893] 1 Q. B. 62. 
 
 (a;) Oppenheimer v. Frazer and Wyatt, [1907] 2 K. B. 50, C. A. 
 
 {y) As to former rule, see Monk v. Whittenbury (1831), 2 B. & Ad. 484 (flour factor 
 and wharfinger) ; Cole v. North Western Bank (1875), L. B. 10 C. P. 354 (warehouse- 
 keeper and broker); Biggs v. Evans, [1894] 1 Q. B. 88 (jeweller entrusted with 
 t^ble-top to be sold on certain conditions only). 
 
152 THE FACTORS ACT, 1889. 
 
 then with the broker's consent pledged the net proceeds to D, it was held that 
 the latter transaction was valid as weU as the former one (s). It was also held 
 that the Acts extended to cases where the agent had by fraud induced his 
 principal to intrust him with the goods or the documents of title to them (a). 
 These cases, no doubt, are still good law. 
 
 As to the consideration necessary to support a sale, pledge, or other dis- 
 position, see sect. 5, ;post ; and as to pledges for antecedent debts or liabilities, 
 see sect. 4, post. 
 
 Notice. — The term "notice" in this section probably means actual, though 
 not formal, notice ; that is to say, either knowledge of the facts, or a suspicion 
 of something wrong, combined with a wilful disregard of the means of know- 
 ledge. The same construction would probably be put on it as upon the term 
 " notice " in sect. 29 of the BUls of Exchange Act, 1882, or in sects. 30 and 45 of 
 the Bankruptcy Act, 1914 (6). 
 
 (2.) Where a mercantile agent has, with the consent of the 
 owner, been in possession of goods or of the documents of title 
 to goods, any sale, pledge, or other disposition, which would have 
 been valid if the consent had continued, shall be valid notwith- 
 standing the determination of the consent : provided that the 
 person taking under the disposition has not at the time thereof 
 notice that the consent had been determined. 
 
 Illustration. 
 
 A picture dealer in Paris sends pictures to an agent in London, some for 
 sale others for exhibition only. After revocation of his authority the agent 
 pledges both lots of pictures with B, who takes them without notice of the 
 revocation. B gets a good title (c). 
 
 See last note. This sub-section reproduces in altered language the provisions 
 of sect. 2 of the Factors Act, 1877 (40 & 41 Vict. c. 39), which was passed to 
 override the decision in Fuentes v. Montis, where it was held that a mercantile 
 
 (0) PortaUs V. Tetley (1867), L. R. 5 Eq. 140. 
 
 (a) Cole v. NoHh Western Bank (1875), L. R. 10 C. P., at p. 373, citing Baines v. 
 Swainson (1863), 32 L. J. Q. B. 281, and Vickers v. Bertz (1871), L. R. 2 So. 
 App. Oas. 113. 
 
 (6) See the term discussed, Navulshaw \..Brownrigg (1852), 21 L. 3. Ch. 908 
 (Factors Act) ; Raphael v. Bank of England (1855), 17 0. B., at p. 174, per WUles J. 
 (bill of exchange) ; Ex p. Snowball (1872), L. R, 7 Oh. App., at p. 549 (act' qf 
 bankruptcy). 
 
 (c) Moody V, Pall Mall Deposit Co. (1917), 33 T- L. R, 306, 
 
77//'; L'AaroHH act, jh8i» (hwjts. -J, :i, '1). 15:5 
 
 aguui waH not iiiiruMtod with i^ooSM or dooumentH within the meaning' of the 
 oarli(ti' A<'-tH if' lain authority had Iiddii revokod (</). 
 
 (3.) Where a mercantile agent, has obtained possewsion of any 
 document of title to goods by reason of his being or having been, 
 with the consent of the owner, in possession of the goods repre- 
 sented thereby, or of any other documents of title to the goods, his 
 possession of the first-mentioned documents shall, for the purposes 
 of this Act, be deemed to be with the consent of the owner, 
 
 This Hub-Hriotion reproduces in Homewhat different languag'e a provision in 
 Beot. 4 of tho Factors Act, 1 Mfl {5 & <; Vict, c. 39), which was intended to alter 
 the law an laid down in PhilUpH v, Huth, and Hatfield v. PJdlUpg (e). In the 
 latter ottHe it was held that a person intrusted with a bill of lading for the 
 purpoHo of sellinff tljo goods mentioned in it, was not, in consequence of being 
 HO intruHtdd, to be considered as intrusted with the dock warrant, notwith- 
 standing that his possession of the bill of lading enabled him to obtain the dock 
 warrant. 
 
 (4.) For the purposes of this Act the consent of the owner shall 
 be presumiid in the absence of evidence to the contrary. 
 
 , This sub-section reproduces in somewhat ditfurdnt language the concluding 
 paragraph of sect, 4 of the Factors Act, 1842. 
 
 3. Effect of pledges of documents of title, — A pledge of the 
 documents of title to goods shall be deemed to be a pledge of the 
 goods. 
 
 This section is taken from a paragraph in sect. 4 of the Factors Act, 1 842 
 (f, & (i Vict. c. ;t9). See '• pledge," defined by sect, I , ante, p, 1.50, and compare 
 the common law deflnition of pledge, ante, p. 7. 
 
 The section, though general in its terms, \h controlled by the heading 
 (Dispositions by Mercantile Agents) of the part in which it occurs. It applies 
 only to pledges by " mercantile agents " as defined by sect, 1 (/). 
 
 4. Pledge for antecedent debt. — Wliere a mercantile agent pledges 
 goods as security lor a debt or liability due from the pledgor to the 
 
 (d) l<^itentes v. MonUa (1868), L, H. 8 0, P. 268 (revocation of agency unknown to 
 plodgeo), offlrmed, li. K. 4 0. P. <M, Ex. Oh. 
 
 (c) See Cole v. North Western Bank (1876), h. E. 10 0. P., at p. 870, commenting 
 oil IViMUpa v, Hitth (1840), 6 M. & W, 672 ; llatflM v, Phillips {\M2), 9 M, & W, Gil ; 
 mr>), l'1 M. .It, W. 606. 
 
 (/) liKjlis v. llohi'Hsoii, [IH'JHJ A, 0, OIG, Sr, 
 
154 TEE FACTORS ACT, 1889. 
 
 pledgee before the time of the pledge, the pledgee shall acquire no 
 further right to the goods than could have been enforced by the 
 pledgor at the time of the pledge. 
 
 This section reproduces ia altered language the clumsily worded sect. 3 of 
 the Factors Act, 1825 (6 Geo. 4, o. 94), as read with the proviso contained in 
 sect. 3 of the Factors Act, 1842 (6 & 6 Vict. c. 39). The substitution of the 
 words " debt OT liability" for " antecedent debt " is material (jr). The use of 
 the word " due," though appropriate to the term " debt,'' seems inappropriate to 
 the term " liability." The section should perhaps be read as if it ran " debt due 
 from or liability incurred by," etc. 
 
 The object of this section seems to be to draw a marked distinction between 
 past considerations and present or future considerations. In terms it applies 
 only to pledges of goods, but, having regard to the language of sect. 3, it may 
 be intended to apply also to pledges of documents. 
 
 5. Rights acquired by exchange of goods or documents. — The con- 
 sideration necessary for the validity of a sale, pledge, or other 
 disposition, of goods, in pursuance of this Act, may be either a pay- 
 ment in cash, or the delivery or transfer of other goods, or of a 
 document of title to goods, or of a negotiable security, or any other 
 valuable consideration ; but where goods are pledged by a mercantile 
 agent in consideration of the delivery or transfer of other goods, or 
 of a document of title to goods, or of a. negotiable security, the 
 pledgee shall acquire no right or interest in the goods so pledged in 
 excess of the value of the goods, documents, or security when so 
 delivered or transferred in exchange. 
 
 By sect. 4 of the Factors Act, 1842 (5 & 6 Vict. o. 39), it was provided, inter 
 alia, that " any payment made, whether by money or bills of exchange, or other 
 negotiable security, shall be deemed and taken to be an advance within the 
 meaning of this Act." The first paragraph of the present section considerably 
 extends the scope of the old enactment, by substituting " valuable con- 
 sideration " for an " advance," as above defined. See the definition of " pledge " 
 in sect. 1, ante, p. 150. 
 
 The second paragraph of the section reproduces in somewhat different 
 language the provisions of sect. 2 of the Factors Act, 1842, which was intended 
 to protect exchange of goods and securities made in good faith, and to alter the 
 law as laid down in Taylor v. Kymer and Bonzi v. Stewart (h). 
 
 (g) For oases on the repealed sections, see Jewan v. WhUworth (1866), L. E. 2 Eq. 
 692 ; Macnee v. Gorst (1867), L. E. i Eq. 315 ; Kaltenbach v. Lewis (1885), 10 
 App. Gas. 617. 
 
 {h) See Cole v. North Western Bank (187S), L. R. 10 C. P., at p. 370, commenting 
 on Taylor v. Kymer (1832'), 3 B. & Ad. 320 ; Bon^i v, Stewart (1842), 4 M. & Gx. 295, 
 
• THE FACTORS ACT, 1889 (SECTS. 6, 7). 155 
 
 As regards the application of this section to Scotland see sect. 1 (2) of the 
 Factors (Scotland) Act, 1890, post, p. 162. 
 
 6. Agreements through clerks, &c. — For the purposes of this Act 
 an agreement made with a mercantile agent through a clerk or 
 other person authorised in the ordinary course of business to make 
 contracts of sale or pledge on his behalf shall be deemed to be an 
 agreement with the agent. 
 
 This section is taken from, and generalises, a paragraph in sect. 4 of the 
 Factors Act, 1842 (5 & 6 Vict. o. 39). 
 
 7. — (1.) Provisions as to consignors and consignees. — Where the 
 owner of goods has given possession of the goods to another person 
 for the purpose of consignment or sale, or has shipped the goods in 
 the name of another person, and the consignee of the goods has not 
 had notice that such person is not the owner of the goods, the con- 
 signee shall, in respect of advances made to or for the use of such 
 person, have the same lien on the goods as if such person were the 
 owner of the goods, and may transfer any such lien to another 
 person. 
 
 (2.) Nothing in this section shall limit or affect the validity of 
 any sale, pledge, or disposition, by a mercantile agent. 
 
 The first snb-section reproduces in different language the provisions of 
 sect. 1 of the Factors Act, 1825 (i). It is to be noted that the section applies 
 only to goods and not to documents of title, and to cases where the consignee 
 has not had notice that the consignor is not the owner. Lord Blackburn raised 
 a doubt on the repealed enactment whether " notice " was co-extensive with 
 knowledge (fe). The term " advance " must probably be interpreted by the light 
 of sect. 5, ante. 
 
 The second sub-section shows that the present section is to be construed as 
 amplifying, and not as derogating from, the powers of mercantile agents under 
 sect. 2, ante, p. 150. 
 
 Sect. 13, post, p. 160, further saves the common law powers of factors and 
 agents of that class. 
 
 As to a factor's or consignee's lien, see Story on Sale, § 97. 
 
 (i) S that enactment discussed In Cole v. North Western Bank (1875), L. B.. 10 
 C. P., pp. 361-367; and Johnson v. Cridit Lyonnais (1877), 3 C. P. D., at pp. 44, 45. 
 {Jc) Mildred v. Maspons (1883), 8 App. Gas., at p. 885. 
 
156 THE FA0T0B8 ACT, 1889. 
 
 Dispositions ly Sellers and BtM/ers of Goods (I). 
 
 8. Disposition by seller remaining in possession. — Where a person, 
 having sold goods, continues, or is, in possession of the goods or of 
 the documents of title to the goods, the delivery or transfer by that 
 person, or by a mercantile agent acting for him, of the goods or 
 documents of title under any sale, pledge, or other disposition 
 thereof, or under any agreement for sale, pledge, or other disposition 
 thereof, to any person receiving the same in good faith and without 
 notice of the previous sale, shall have the same effect as if the 
 person making the delivery or transfer were expressly authorised by 
 the owner of the goods to make the same. 
 
 This section, whioli is now reproduced by sect. 26 (1) of the Sale of Goods 
 Act, was substituted for sect. 3 of the Factors Act, 1877 (40 & 41 Vict. c. 39), 
 which altered the law as laid down in Johnson v. Credit Lyonnais (to). It was 
 there held that if the buyer, for his own convenience, left the goods and 
 documents of title in the hands of the seller, who fraudulently resold or pledged 
 them, he could nevertheless recover the goods from the innocent purchaser or 
 pledgee. The Act of 1877 only applied to documents of title. The present 
 section extends the principle of that enactment by applying to goods as well as 
 to documents of title. 
 
 The provisions of sect. 5, ante, p. 154, as to consideration, clearly apply to 
 this section ; but the provisions of sect. 4 (pledge for antecedent debt) appear 
 only to apply when the pledge is effected through a mercantile agent. 
 
 Kon-repeal. — The Sale of Goods Bill originally proposed to repeal this and the 
 two following sections ; but the repeal was afterwards omitted, as the provision 
 of the Sale of Goods Act is slightly narrower. It omits the words " or under 
 any agreement for sale, pledge, or other disposition thereof." 
 
 As to resale by an " unpaid seller," see sect. 48 of the Sale of Goods Act, 
 ante, p. 109. 
 
 9. Disposition by buyer obtaining possession.— Where a person, 
 having bought or agreed to buy goods, obtains with the consent of 
 the seller (n) possession of the goods or the documents of title to 
 the goods, the delivery or transfer, by that person or by a mercantile 
 agent acting for him, of the goods or documents of title, under any 
 
 {I) See the general scope of the sections under this heading discussed by Lords 
 Watson and Herschell in Inglis v. Robertson, [1898] A. C, at pp. 628, 630. 
 
 (m) Johnson v. Gridit Lyonnais (1877), 3 C. P. D. 32, 40, C. A. 
 
 \n) See these words discussed by Collins, L.J., in Cahn v, Pockett's Bristol 
 ChannH Co,, [1899] 1 Q. B., at p. 661. 
 
THE FACTORS ACT, 1889 (SECT. 9). 15? 
 
 sale, pledge, or other disposition thereof, or under any agreement 
 for sale, pledge, or other disposition thereof, to any person receiving 
 the same in good faith and without notice of any lien or other right 
 of the original seller in respect of the goods, shall have the same 
 effect as if the person making the delivery or transfer were a 
 mercantile agent in possession of the goods or documents of title 
 with the consent of the owner. 
 
 This section, which is now reproduced by sect. 25 (2) of the Sale of Goods 
 Act, was substituted for sect. 4 of the Factors Act, 1877 (40 & 41 Vict. c. 39). 
 The latter enactment applied only to documents of title. The present section 
 applies to the goods themselves as well as to documents of title. As to the 
 reason for its non-repeal by the Sale of Goods Act, see note to last section. 
 
 The common law rules which preceded these enactments are thus stated by 
 Blackburn, J. : " It has been repeatedly decided that a sale or pledge of a 
 delivery order or other document of title (not being a bill of lading) by the 
 vendee does not defeat the unpaid vendor's rights, because the vendee is not 
 intrusted as an agent (o). And it may be observed that in many of such cases 
 in which money has been advanced to the buyer on the faith of the documents 
 of title, the buyer must have been a person who carried on business as a com^ 
 mission merchant : yet it never seems to have occurred to any one that that fact 
 made any difference. So it has been repeatedly held that when either the goods 
 or documents of title are obtained from the owner (not on a contract of sale 
 good tUl defeated, though defeasible on the ground of fraud, but by some trick), 
 a purchaser or pledgee acquires no title, for the trickster is not an 'agent 
 intrusted ' with the possession " {p). 
 
 It is submitted that the last proposition is not affected by the section ; for 
 the foundation of the rule is that there is no real consent (j). The section, 
 however, would clearly apply to cases where there is a de facto contract, though 
 defeasible on the ground of fraud : see ante, p. 69. So, too, it applies where 
 there is a de facto contract of sale between the original seller and buyer, though 
 that contract might be inefEectual for non-compliance with sect. 17 of the 
 Statute of Frauds (r), now reproduced in sect. 4 of the Sale of Goods Act. 
 
 Hire-purchase agreements. — The hirer under a hire-purchase agreement is not 
 a person who has " agreed to buy goods " within the meaning of this section, 
 unless he is under a binding agreement to buy them. An option to purchase is 
 
 (o) Cf. Jenhyns v. XJsborm (1844), 7 M. & Gr. 668 ; McEwan v. Smith (1849), 2 
 H. L. 0. 309. 
 
 {p) Cole V. North Western Bank (1875), L. R. 40 0. P., at p. 373, citing for last 
 proposition, Kmgsford v. Merry, 1 H. & N. 503, and Hardman v. Booth, 1 H. & C. 
 803. See those cases disouBsed, ante, p. 69. 
 
 (q) Cf. Cahn v. Pockett's Bristol Channel Co., [1899] 1 Q. B,, at pp. 658-660, 0. A., 
 B9 to larceny by a trick. 
 
 (r) Hugill v. Masker (1889), 22 Q. B. D. 364, 0. A. 
 
158 THE FAGT0B8 ACT, 1889. 
 
 not sufficient (s). But a conditional agreement to buy is sufficient (t). Before 
 default in payment of instalments a Mre-purchase agreement, may be 
 assigned, and the assignee then succeeds to the rights and duties of the 
 assignor (u), and if the hire-purchaser of a car sends it to be repaired, but makes 
 default in paying the instalments, the repairer has a lien on the car for the cost 
 of the repairs (x). Whether a hire-puyohase agreement requires to be registered 
 as a bill of sale depends on the true construction of the documents (y). 
 
 10. Effect of transfer of documents on seller's lien or right of 
 stoppage in transitu. — ^Where a document of title to goods has been 
 lawfully transferred to a person as a buyer or owner of tlie goods, 
 and that person transfers the document to a person who takes the 
 document in good faith and for valuable consideration, the last- 
 mentioned transfer shall have the same effect for defeating any 
 vendor's lien or right of stoppage in transitu as the transfer of a bill 
 of lading has for defeating the right of stoppage in transitu. 
 
 This section, which is now reproduced and developed by sect. 47 of the Sale 
 of Goods Act, was substituted for sect. 5 of the Factors Act, 1877 (40 & 41 Vict. 
 o. 39). It applies to all the documents of title mentioned in sect. 1, ante, 
 p. 149, the common law rules relating to the effect of the transfer of a bill of 
 lading on the seller's right of lien or stoppage in transitu, as to which see 
 ante, pp. 94, 107. 
 
 To some extent this section covers the same ground as the preceding section. 
 But sect. 9 requires that the transferee shall have no notice of the seller's lien 
 or other rights, because it applies to cases where the buyer has obtained the 
 goods or docxmients under a contract voidable on the ground of fraud. The 
 present section omits the reqtiirement as to absence of notice. The mere fact 
 that the j>rioe is unpaid does not make it a fraud to transfer the goods or 
 dooum.ents so as to defeat the seUer'a lien or right of stoppage in transitu. 
 
 As to the reason for not repealing this section by the Sale of Goods Act, see 
 note to section 8, ante, p. 156. 
 
 Supplemental. 
 
 11. Mode of transferring documents.— For the purposes of this 
 
 (s) Belsize Motor Supply Co. v. Cox, [1914] 1 K. B. 244; Helby v. Matthews, 
 
 [1895] A. C. 471, reversing C. A. ; distinguishing Lee v. Butler, [1893] 2 Q. B. 318 ; 
 
 and on this point inferentially overruling Shenstone v. Hilton, [1894] 2 Q. B. 452 
 
 ' (auctioneer selling for hirer) ; see Hull v. Adams (1896), 65 L. J. Q. B. 114, following 
 
 Lee V. Butler, and Brooks v. Biernstein, [1909] 1 K. B. 98. 
 
 (t) Marten v. Whale, [1917] 2 K. B. 480, G. A. (agreement to buy a motor car if 
 purchaser's solicitor should approve the conditions of a lease). 
 
 (u) Whiteley v. Hilt, [1918] 2 K. B. 808, 0. A. 
 
 (as) Oreen v. All Motors, Ltd., [1917] 1 K. B. 625, 0. A. 
 
 (y) Reed on Bills of Sale, ed. 13, pp. 54-61. 
 
THE FACTORS ACT, 1889 (SECTS. 11, 12). 159 
 
 Act, the transfer of a document may be by endorsement, or, where 
 the document is by custom or by its express terms transferable by 
 delivery, or makes the goods deliverable to the bearer, then by 
 delivery. 
 
 See " documeut of title " defined, ante, p. 149. This section is taken from 
 words used in sect. 5 of the Factors Act, 1877 (40 & 41 Vict. c. 39), which are 
 now generalised by being put into a separate section. 
 
 12. — (1.) Saving for rights of true owner. — Nothing in this Act 
 shall authorise an agent to exceed or depart from his authority as 
 between himself and his principal, or exempt him from any liability, 
 civil or criminal, for so doing. 
 
 As to the criminal UabUity of factors or agents misappropriating goods or 
 documents of title, see the Larceny Act, 1916 (6 & 7 Groo. 5, c. 50), s. 22, and 
 Stephen's Digest of the Criminal Law, arts. 347, 348. 
 
 (2.) Nothing in this Act shall prevent the owner of goods from 
 recovering the goods from an agent or his trustee in bankruptcy at 
 any time before the sale or pledge thereof, or shall prevent the 
 owner of goods pledged by an agent from having the right to redeem 
 the goods at any time before the sale thereof, on satisfying the 
 claim for which the goods were pledged, and paying to the agent, 
 if by him required, any money in respect of which the agent would 
 by law be entitled to retain the goods or the documents of title 
 thereto, or any of them, by way of lien as against the owner, or from 
 recovering from any person with whom the goods have been pledged 
 any balance of money remaining in his hands as the product of the 
 sale of the goods after deducting the amount of his lien. 
 
 As a general rule, goods or documents of title, held by an agent for his 
 principal, are considered as trust property, and do not pass to the agent's trustee 
 in bankruptcy, though in some cases the reputed ownership provisions might 
 apply : see Bankruptcy Act, 1914, s. 38. 
 
 (3.) Nothing in this Act shall prevent the owner of goods sold 
 by an agent from recovering from the buyer the price agreed to be 
 paid for the same, or any part of that price, subject to any right of 
 set-off on the part of the buyer against the agent. 
 
 As to the buyer's right of set-off against an agent with whom he dealt, under 
 
160 TtiE FACTOkS ACT, 1889. 
 
 the belief that he was a principal, see Kaltenbach v. Lewis (1885), lO App. GaM. 
 617; Coohe V. Eshelby (1887), 12 App. Cas. 271. 
 
 13. Saving for common law powers of agent. — ^The provisions of 
 this Act shall be construed in amplification and not in derogation of 
 the powers exerciseable by an agent independently of this Act. 
 
 This section is new. It recognises, what the judges have frequently pointed 
 out, that the Factors Acts are partly declaratory and partly enacting (z). In 
 dealing with the exceptions to the general rule, Nemo dat quod nan habet (ante, 
 p. 64), Willes, J., observes : " A third case where a man may convey a better 
 title to goods than he himself had is where an agent, who carries on a public 
 business, deals with the goods in the ordinary course of it, though he has 
 received secret instructions from his principal to deal with them contrary to the 
 ordinary course of that trade. In tl^at case he has an ostensible authority to 
 deal in such a way with the goods as agents ordinarily deal with them, and if he 
 deals with them in the ordinary way of the trade he binds his principal " (a). 
 
 [14. Repeals. — Repealed.] 
 
 This section and the schedule, having done their work, are repealed by the 
 Statute Law Revision Act, 1908 (8 Edw. 7, c. 49). The Acts repealed by sect. 
 14 were The Tactors Act, 1823 (4 Geo. 4, c. 83) ; The Factors Act, 1825 
 (6 Geo. 4, c. 94) ; The Factors Act, 1842 (5 & 6 Vict. c. 39) ; The Factors Act, 
 1877 (40 & 41 Vict. c. 39). 
 
 [15. Commencement. — Repealed.^ 
 [16. Extent. — Bejoealed.j 
 
 Sections 15 and 16 are repealed by the Statute Law Revision Act, 1908 
 (8 Edw. 7, c. 49). Section 16 excluded Scotland, but the Factors Act, 1889, was 
 applied to Scotland the next year by the Factors (Scotland) Act, 1890 (53 & 54 
 Vict. c. 40), post, p. 162. It may be noted the provisions of the Factors Acts 
 are more nearly declaratory of Scotch common law than they were of English 
 common law (6). See the subject discussed, Bell's Principles, 9th ed., p, 824 
 et seq. 
 
 17. Short title.— This Act maybe cited as the Factors Act, 1889, 
 Though the Act is called ih.e Factors Act, the word " factor " does not occur 
 
 (2) See Cole v. North Western Bank (1875), L. E. 10 0. P., at p. 360, et seq. 
 (a) Fmntes v. Montis (1868), L. R. 3 0. P. 268, at p. 277 ; ef. Johnson v." Cridit 
 Lyonnais (1877), 3 C. P. D., at pp. 37-40. 
 
 (6) Vickers v. Hertz (1871), L. R. 2 So. App. 113, at p. 119. 
 
TEE FAGTOBS ACT, 1889 (SECT. 17). 161 
 
 in it. It applies to any mercantile agent within the meaning of sect. 1. It 
 might have been more appropriate to call it the " Mercantile Agents Act," as 
 has been done in some colonies which have adopted it, but there was convenience 
 in retaining the familiar name (c). 
 
 (c) For definition of " factor," see Story on Agency, § 33, and Exp. Dixon (1876), 
 4 Oh. D. at p. 187. 
 
 C.S.G. M 
 
( 162 ) 
 
 THE FACTOES (SCOTLAND) ACT, 1890. 
 (53 & 54 Vict. c. 40.) 
 
 [14th August, 1890.] 
 1. Application of 52 & 53 Vict. c. 45 to Scotland.— Subject to the 
 following provisions, the Factors Act, 1889, shall apply to Scotland. 
 (1.) The expression "lien" shall mean and include right of 
 retention; the expression "vendor's lien" shall mean and 
 include any right of retention competent to the original owner 
 or vendor ; and the expression " set-off" shall mean and include 
 compensation. 
 (2.) In the application of section five of the recited Act, a sale, 
 pledge, or other disposition of goods shall not be valid unless 
 made for valuable consideration. 
 
 See sect. 6 of the Factors Act, 1889, ante, p. 154, and Green's Encydopxdia 
 of Scots Law, tit. " Factors Acts." 
 
 2, Short title. — This Act may be cited as the Factors (Scotland) 
 
 Act, 1890. 
 
( 163 ) 
 
 APPENDIX I.— STATUTES. 
 
 THE BILLS OF LADING ACT, 1855. 
 (18 & 19 Vict. c. 111.) 
 
 An Act to amend the Law relating to Bills of Lading. 
 
 [4tli August, 1855.] 
 Whereas by the custom of merchants a bill of lading of goods being trans- 
 ferable by endorsement, the property in the goods may thereby pass to the 
 endorsee, but nevertheless all rights in respect of the contract contained in the 
 bin of lading continue in the original'shipper or owner, and it is expedient that 
 such rights should pass with the property ; and whereas it frequently happens 
 that the goods in respect of which bills of lading purport to be signed, have 
 not been laden on board, and it is proper that such bills of lading in the hands 
 of a hand fide holder for value, should not be questioned by the master or other 
 person signing the same on the ground of the goods not having been laden as 
 aforesaid : Be it therefore enacted, etc. 
 
 Sect. 1. — Bights under bills of lading to vest in consignee or endorsee. — Every 
 consignee of goods named in a bill of lading, and every endorsee of a bill of 
 lading to whom the property in the goods therein mentioned shall pass, upon or 
 by reason of such consignment or endorsement, 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 biU of lading had been made 
 with himself. 
 
 Sect. 2. — Not to affect right of stoppage in transitu or claims for freight. — 
 Nothing herein contained shall prejudice or affect any right of stoppage in 
 transitu, or any right to claim freight against the original shipper or owner, or 
 amy liabiKty of the consignee or endorsee, by reason or in consequence of his 
 being such consignee or endorsee, or of his receipt of the goods by reason or in 
 consequence of such consignment or endorsement. 
 
 Note. — As to non-liability of pledgee of bill of lading for freight, see Sewell 
 V. Burdick (1884;, 10 App. Cas. 74. As to pledge of bill of lading and con- 
 version before plaintiff's title accrued, see Bristol Bank v. Midland Railway, 
 [1891] 9 Q. B. 653, C. A. 
 
 Sect. 3. — Bill o{ lading in hands of consignee, Ao., conolnsive evidence of the 
 Bhipment as against master, etc. — Every bill of lading in the hands of a consignee 
 
164 APPENDIX I. 
 
 or endorsee for valuable consideration respecting goods to have been shipped oil 
 board a vessel, shall be conclusive evidence of such shipment as against the 
 master or other person signing the same, notwithstanding that such goods or 
 some part thereof may not have been so shipped, unless such holder of the bill 
 of lading shall have had actual notice at the time of receiving the same that the 
 goods had not been in fact laden on board (as) ; provided, that the master or 
 other person so signing may exonerate himself in respect of such misrepresenta- 
 tion by showing that it was caused without any default on his part, and whoUy 
 by the fraud of the shipper, or of the holder, or some person under whom the 
 holder claims. 
 
 Note. — A bin of lading, says Lord Blackburn, " is a writing signed on 
 behalf of the owner of the ship in which goods are embarked, acknowledging 
 the receipt of the goods, and ttndertaking to deliver them at the end of the 
 voyage, subject to such conditions as may be mentioned in the bill of lading " (6). 
 
 A " through bill of lading " is a bill of lading " made for the carriage of 
 goods from one place to another by several shipowners or railway com- 
 panies "(c). It seems doubtful how far the Act applies to these documents, 
 which are of modern origin (d). 
 
 At common law the property in the goods could be transferred by the 
 endorsement of the bill of lading, but the contract created by the bill of lading 
 could not, therefore the endorsee could not sue on the contract in his own 
 name (e). The Act of 1855 confers this right while confirming the conuuon 
 law rights. "A cargo at sea," says Bowen, L.J., "while in the hands of the 
 carrier, is necessarily incapable of physical delivery. During this period of 
 transit and voyage, the bill of lading by the law merchant is universally 
 recognised as its symbol, and the endorsement and delivery of the biU of lading 
 operates as a symbolical delivery of the cargo. Property in the goods passes 
 by such endorsement and delivery of the bill of lading whenever it is the 
 intention of the parties that the property should pass, just as under similar 
 circumstances the property would pass by an actual delivery of the goods " (/). 
 He then goes on to say that by the inveterate practice of merchants, bills of 
 lading are made out in three or more parts, one part being usually retained by 
 
 (a) But the shipowner is not liable If the master signs a bill of lading for goods 
 not received on board, George Whitechwch, Ltd. v. Cavanagh, [1902] A. C, at p. 125. 
 As to correcting a mistake, see Parsons v. New Zealand Shipping. Co., [1901] 1 Q. B. 
 548, 0. A. 
 
 (b) Blackburn on Sale, p. 275 ; Sewell v. Burdick (1884); 10 App. Gas 74 at p 
 105, H. L. 
 
 (c) Scrutton on Charter Parties and Sills of Lading, 8th ed., p. 69. 
 
 (d) See Scrutton, supra, and Law Quarterly Eeview, vol. v. p. 424, and vol. vi. p. 
 289, and Oaryer's Carriage by Sea, §§ 107, 108, where the effect of these instruments 
 is fully discussed. 
 
 (e) Thompson v. Dominy (1845), 14 M. & W. 403. 
 
 (/) Sanders v. Maclean, (1883), 11 Q. B. D. 327, at p. 341 ; cf. The Prinz Melbert 
 (1917), A. 0. 587, at p. 589, per Lord Sumner. 
 
STATUTES. 165 
 
 the captain, the others being handed to the shipper. This practice has often 
 given rise to frauds. The decisions on bills of lading, which are very numerous, 
 are collected in the notes to Liclebarrow v. Mason, 1 Smith, Lead. Cas. ; and 
 the subject is fully dealt with in ScruMon on Charter Parties and Bills of 
 Lading ; but the following salient points may be noted. 
 
 (1) The voyage is deemed to continue, and the biU of lading to be alive as 
 long as the goods are held on behalf of the master under a lien for freight, even 
 though they have been landed (g). 
 
 (2) "When two or more parts of a bill of lading are transferred to two or 
 more different bona fide transferees for value, the property in the goods passes 
 to the transferee who is first in point of time (7i). 
 
 (3) But, nevertheless, the person who has the custody of the goods may 
 safely deliver them to the person who first presents the bill of lading (or a part 
 thereof) to him, provided he acts in good faith and without notice of any prior 
 claim (t). 
 
 (4) A contract to deliver a bill of lading is complied with by delivering one 
 part, though the others are not accounted for (k). 
 
 (5) Except for the purpose of the Factors Act and of defeating the right of 
 stoppage in transitu, the transferee of a bill of lading acquires no better title 
 to the goods represented thereby than the transferor had. In this respect a 
 bill of lading differs from a bill of exchange, or rather it resembles an overdue 
 bill of exchange, which can only be negotiated subject to all equities attaching 
 toit(i). As to the effect of the transfer of a bill of lading on the right of 
 stoppage in transitu, see ante, p. 107. As to the Factors Act, see ante, 
 pp. 146-160. 
 
 (6): Where laws conflict, stipulations in a bill of lading must be construed 
 according to the lex loci contractus, which prima facie only is the law of the 
 place where the contract was entered into (m). 
 
 (7) When a bill of exchange, with bUl of lading attached, is presented for 
 acceptance or payment, the person, who in good faith presents it, is not re- 
 sponsible for the authenticity of the biU of lading (w). 
 
 {g) Barber v. Meyerstein (1870), L. E. 4 H. L. 317. 
 {h) Barber v. Meyerstein (1870), L. E. 4 H. L. 317. 
 
 (i) aiyn. Mills dt Co. v. East & West India Docks (1882), 7 App. Cas. 591. 
 {k) Sanders v. MacUan (1883), 11 Q. B. D. 327, 0. A. 
 
 (t) Gurney. v. Behrend (1864), 3 E. & B. 622. As to fraud, however, see The 
 Argentina (1867), L. E. 1 Adm. 370. 
 
 (m) Be Missouri Steamship Co. (1889), 42 Oh. D. 321, at p. 328, C. A. 
 
 (7i) Guarantee Trust Co. of New York v. Hannay & Co., [1918] 2 K. B, 623, 0. A. 
 
166 APPENDIX I. 
 
 BILLS OF SALE ACT, 1878. 
 (41 & 42 Vict. c. 31.) 
 
 An Act to consolidate and amend the Law fw Preventing Frauds upon 
 Creditors by Secret Bills of Sale for Personal Chattels. 
 
 Seot. 4.— Interpretation of terms.— In this Act the foUowing words and 
 expressions shall have the meanings in this section assigned to them respectively, 
 unless there be something in the subject or context repugnant to such con- 
 struction (that is to say) : 
 
 Bill of Sale defined. — Excepted documents. — The expression " bill of sale " shall 
 include bills of sale, assignments, transfers, declarations of trust without 
 transfer, inventories of goods with receipt thereto attached, or receipts for 
 purchase-moneys of goods, and other assurances of personal chattels, and also 
 powers of attorney, authorities, or licences to take possession of personal 
 chattels as security for any debt, and also any agreement, whether intended or 
 not to be followed by the execution of any other instrument, by which a right 
 in equity to any personal chattels, or to any charge or security thereon, shall 
 be conferred, but shall not include the following documents ; that is to say, 
 assignments for the benefit of the creditors of the person making or giving the 
 same, marriage settlements, transfers or assignments of any ship or vessel or 
 any shares thereof, transfers of goods in ordinary course of business of any 
 trade or calling, bills of sale of goods in foreign parts or at sea, biUs of lading, 
 India warrants, warehouse-keeper's certificates, warrants or orders for the 
 delivery of goods, or any other documents used in the ordinary course of 
 business as proof of the possession or control of goods, or authorising or 
 purporting to authorise, either by endorsement or by delivery, the possessor of 
 such document to transfer or receive goods thereby represented : 
 
 Personal chattels. — The expression "personal chattels" shall mean goods, 
 furniture, and other articles capable of complete transfer by delivery, and 
 (when separately assigned or charged) fixtures and growing crops, but shall 
 not include chattel interests in real estate nor fixtures (except trade machinery, 
 as hereinafter defined), when assigned together with a freehold or leasehold 
 interest in any land or building to which they are affixed, nor growing crops 
 when assigned together with any interest in the land on which they grow, nor 
 shares or interest in the stock, funds or securities of any Government, or in 
 the capital or property of incorporate or joint-stock companies, nor choses in 
 action, nor any stock or produce upon any farm or lands which by virtue of any 
 covenant or agreement or of the custom of the country ought not to be removed 
 from any farm where the same are at the time of making or giving of such bill 
 of sale : 
 
 Apparent possession. — Personal chattels shall be deemed to be in the 
 " apparent possession " of the person making or giving a bill of salcj so long as 
 they remain or are in or upon any house, mill, warehouse, building, works, 
 yard, land, or other premises occupied by him, or are uged or enjoyed by hijB 
 
STATUTES, 167 
 
 in any place whatever, notwitlistanding that formal possession thereof may- 
 have been taken by or given to any other person (o) : 
 
 Note.—Ths Act of 1878 has been amended by the Bills of Sale Act, 1882, 
 but the Act of 1882 only relates to biUs of sale by way of security, and does not 
 affect sales within the meaning of the Sale of Goods Act. The Bills of Sale 
 Acts, 1890 and 1891, merely exempt certain mercantile letters of hypothecation 
 from the definition of bill of sale. 
 
 The Bills of Sale Acts strike at documents, and not at the transactions 
 themselves (jj). When the seUer of goods remains in possession of them, and 
 the buyer has to base his title or right to possession on some document which 
 comes within the definition of a bill of sale, the document must be registered, 
 in accordance with the Act of 1878. If it be not so registered, the contract, 
 though valid as between the parties, is void as against the seller's execution 
 creditors, trustee in bankruptcy, or assignee for the benefit of creditors. See 
 Reed on Bills of Sale, where all the authorities are exhaustively reviewed. It 
 may be noted that where the seller remains in possession, an entry of the sale 
 by the auctioneer, or a note of the contract drawn up by the sheriff who has 
 sold privately, constitutes a bill of sale (g). A delivery order for furniture is 
 not a biU of sale (r), nor is an unregistered transfer of a ship or vessel (s), nor a 
 letter of Ken to bankers (t). 
 
 THE MERCHANDISE MARKS ACT, 1887. 
 
 (SO & 51. Vict. c. 28.) 
 
 An Act to consolidate and amend the Law relating to Fraudulent Marks on 
 Merchandise. [23rd August, 1887.] 
 
 Sect. 17. — Implied warranty on sale of marked goods. — On the sale or in the 
 contract for the sale of any goods to which a trademark, or mark, or trade 
 description has been applied, the vendor shall be deemed to warrant that the 
 mark is a genuine trademark and not forged or falsely applied, or that the 
 trade description is not a false trade description within the meaning of this 
 Act, unless the contrary is expressed in some writing signed by or on behalf of 
 the vendor, and delivered at the time of the sale or contract to and accepted by 
 the vendee. 
 
 Note. — See sect. 14 (1), ante, p. 42, which saves the section. 
 
 (o) As to distinction between apparent possession and " possession, order, and 
 disposition " in the reputed ownership provision in bankruptcy, see Ancona v. Rogers 
 (1876), 1 Ex. D., at p. 291, 0. A. 
 
 ( p) North Central Waggon Co. v. Manchester By. (188T), 35 Oh. D., at p. 207. 
 
 (g) Be Boberts (1887), 36 Oh. D. 196 (auctioneer) ; Ex p. Blandford (1893), 10 
 Morrell, 231 (sheriff). 
 
 (r) Origg v. National Guardian Assur. Co. (1891), 3 Oh. 206. 
 
 (s) Oapp V, Bond (1887), 19 Q. B. D. 200 (dumb-barge which did not require 
 registration under Merchant Shipping Act). 
 
 (t) Ex p. Carter, [1905] 2 K. B. 881. 
 
168 APPENDIX I. 
 
 THE STAMP ACT, 1891. 
 (54 & 55 Vict. c. 39.) 
 
 An Act to consolidate the Enactments granting and relating to the Stamp 
 Duties' wpon Instruments, and certain other Enactments relating to Stamp 
 Duties. ■ [21st July, 1891.] 
 
 Agreements. 
 Sect. 22.— Duty may be denoted by adhesive stamp. — The duty of sixpence 
 upon, an agreement may be denoted by an adhesive stamp, which is to be 
 cancelled by the person by whom the agreement is first executed. 
 
 Bills of Lading. 
 
 Sect. 40. — (1.) Bills of lading — A bill of lading is not to be stamped after the 
 execution thereof. 
 
 (2.) Every person who makes or executes any bill of lading not duly stamped 
 shall incur a fine of fifty pounds. 
 
 Receipts. 
 Sect. 101. — (1.) Provisions as to duty upon receipts.-^For the purpose of this 
 Act the expression "receipt" includes any not«, memorandum, or writing 
 whereby any money amounting to two pounds or upwards, or any bill of 
 exchange or promissory note for money amounting to two pounds or upwards, 
 is acknowledges or expressed to have been received or deposited or paid, or 
 whereby any debt or demand, or any part of a debt or demand, of the amount of 
 two pounds or upwards, is acknowledged to have been settled, satisfied, or dis- 
 charged, or which signifies or imports any such acknowledgment, and whether 
 the same is or is not signed with the name of any person. 
 
 (2.) The duty upon a receipt may be denoted by an adhesive stamp, which is 
 to be cancelled by the person by whom the receipt is given before he delivers it 
 out of his hands. 
 
 Sect. 102. — Terms upon which receipts may be stamped after execution. — A 
 receipt given without being stamped may be stamped with an impressed stamp 
 upon the terms following ; that is to say, 
 
 (1.) Within fourteen days after it has been given, on payment of the duty 
 
 and a penalty of five pounds ; 
 (2.) After fourteen days, but within one month after it has been given, on 
 payment of the duty and a penalty of ten pounds ; 
 and shall not in any other case be stamped with an impressed stamp. ■ 
 
 Sect. 103. — Penalty for offences in reference to receipts. — If any person 
 
 (1.) Gives a receipt liable to duty and not duly stamped ; or 
 
 (2.) In any case where a receipt would be liable to duty refuses to give a 
 
 receipt duly stamped ; or 
 (3.) Upon a payment to the amount of two pounds or upwards gives a receipt 
 for a sum not amounting to two pounds, or separates or divides the 
 amount paid with intent to evade the duty ; 
 he shall incur a fine of ten pounds. 
 
STATUTES. 169 
 
 Warrant fw Goods. 
 
 Sect. 111. — (1.) Provisions as to warrant for goods.— For the purpose of this 
 Act the expression" warrant for goods " means any document or writing, being 
 evidence of the title of any person therein named, or his assigns, or the holder 
 thereof, to the property in any goods, wares, or merchandise lying in any ware- 
 house or dock, or upon any wharf, and signed or certified by or on behalf of the 
 person having the custody of the goods, wares, or merchandise. 
 
 (2.) The duty upon a warrant for goods may be denoted by an adliesive 
 stamp, which is to be canceUed by the person to whom the instrument is made, 
 executed, or issued. 
 
 (3.) Every person who makes, executes, or issues, or receives or takes by way 
 of security or indemnity, any warrant for goods not being duly stamped, shall 
 incur a fine of twenty pounds. 
 
 SCHEDULE 
 
 £ s. d. 
 Ageeement, or any Memorandum of an Agreement, made in 
 England or Ireland under hand only, or made in Scotland with- 
 out any clause of registration, and not otherwise specifically 
 charged with any duty, whether the same be only evidence of 
 a contract, or obligatory upon the parties from its being a 
 
 written instrument 006 
 
 Exemptions. 
 (1.) Agreement of memorandum the matter whereof is not of 
 the value of £5. 
 
 (3.) Agreement, letter, or memorandum made for or relating to 
 the sale of any goods, wares, or merchandise (u). 
 Bill of Lading of or for any goods, merchandise, or effects to be 
 
 exported or carried coastwise 6 
 
 And see sect. 40. 
 
 (u) The exception includes a guarantee for the price of goods sold {Warrington v. 
 Furbor (1807), 8 East, 242; Chanter v. Dickinson (1843), 5 M. & Gr. 253, discussing 
 previous cases ; cf. Bein v. Lane (1867), L. R. 2 Q. B. 144, at p. 150, Blackburn, J.). 
 It includes an indemnity against the claim of a third person to goods sold {Heron v. 
 Orainger (1803), 5 Esp. 269) ; and an agreement for the sale of an undivided moiety 
 of a horse {Ma^son v. Short (1835), 2 Bing. N. C. 118). The exception .does not ex- 
 tend to a contract under seal {Clayton v. Burtenshaw (1826), 5 B. & C. 41, at p. 46, 
 per Bayley, B.) ; nor does it apply to any agreement which comes specifically under 
 any other heading in the Schedule charged with duty, County of Durham Electrical 
 Co. V. Inland Bevenm, [1909J 1 K. B. 737, affirmed 2 K. 0., [1909] 604, C. A. By s. 7 
 of the Einanoe Act, 1907 (7 Edw. 7, c. 13), hire-purchase agreements are excluded 
 from this exemption, and, if not under seal, are to be stamped as agreements, and, if 
 under seal, as deeds. See further Alpe's Stamip Laws, ed, 12, pp. 56-59, 
 
170 APPENDIX I. 
 
 & s. d. 
 Dock "Warrant. See Warrant for Goods. 
 Eeceipt given for, or upon the payment of, money amonnting to 
 £2 or upwards 002 
 
 lExempiions. 
 ****** 
 
 (9.) Receipt given upon any bUl or note of the Bank of 
 
 England or the Bank of Ireland. 
 (11.) Receipt endorsed or otherwise written upon or contained 
 in any instrument liable to stamp duty, and duly stamped, 
 acknowledging the receipt of the consideration money 
 therein expressed, or the receipt of any principal 
 money, interest, or annuity thereby secured or therein 
 mentioned. 
 "Warrant tor Goods 003 
 
 Exemptions. 
 (1.) Any document or writing given by an inland carrier 
 acknowledging the receipt of goods conveyed by such 
 carrier. 
 (2.) A weight note issued together with a duly stamped 
 warrant, and relating solely to the same goods, wares, 
 or merchandise. 
 And see sect. 111. 
 
 Note. — The duty on receipts is increased from Id. to 2d. by sect. 34 of the 
 Finance Act, 1920 (10 & 11 Geo. 5, c. 18), 
 
 THE riNANCE ACT, 1901. 
 (1 Edw. 7, c. 7.) 
 
 Sect. 10. — (1.) Addition or deduction of new or altered duties in the ease of con- 
 tract. — "Where any new customs import duty or new excise duty is imposed, or 
 where any customs .import duty or excise duty is increased, and any goods in 
 respect of which the duty is payable are delivered after the day on which the 
 new or increased duty takes effect in pursuance of a contract made before that 
 day, the seller of the goods may, in the absence of agreement to the contrary, 
 recover, as an addition to the contract price, a sum ec[ual to any amount paid by 
 him in respect of the goods on account of the new duty or the increase of duty, 
 as the case may be. 
 
 (2.) Where any customs import duty or excise duty is repealed or decreased, 
 and any goods affected by the duty are delivered after the day on which the duty" 
 ceases or the decrease in the duty takes efEect in pursuance of a contract made 
 before that day, the purchaser of the goods, in the absence of agreement to the 
 contrary, may, if the seller of the goods has had in respect of those goods the 
 benefit of the repeal or decrease of the duty, deduct from the contract price a 
 sum equal to the amount of the duty or decrease of duty, as the case may be. 
 
STATUTES. 171 
 
 (3.) Wliere any addition to or deduction from the contract price may be 
 made under this section on account of any new or repealed duty, such, sum as 
 may be agreed upon or in default of agreement determined by the Commissioners 
 of Customs in the case of a customs duty, and by the Commissioners of Inland 
 Eievenue in the case of an excise duty, as representing in the case of a new duty 
 any new expenses incurred, and in the case of a repealed duty any expenses 
 saved, may be included in the addition to or deduction from the contract price, 
 and may be recovered or deducted accordingly. 
 
 (4.) This section shall be deemed to have had efEect as from the nineteenth 
 day of April nineteen hvindred and one, and section twenty of the Customs 
 Consolidation Act, 1876, and section eight of the Finance Act, 1900, are hereby 
 repealed. 
 
 Note. — Sect. 10 of the Finance Act, 1901, is amended by sect. 7 of the 
 Finance Act, 1902 (2 Edw. 7, c. 7), which is as foUows : — 
 
 " Section ten of the Finance Act, 1901, applies although the goods have 
 undergone a process of manufacture or preparation, or have become a part or 
 ingredient of other goods." 
 
 Under sect. 4 of the Finance Act, 1908 (8 Edw. 7, o. 16), excise has been 
 transferred from the Inland Revenue to the Customs, and the Commissioners 
 are now known as the Commissioners of Customs and Excise. 
 
 As to the construction of sect. 10 of the Act of 1901, see Cm-n Products Co. 
 V. Fry, [1917] W. N. p. 224; AmeHcan Produce Go. v. Boehm, Ltd. (1919), 
 35 T. L. R. 924. 
 
 THE FINANCE ACT, 1905. 
 
 (5 Edw. 7, c. 4.) 
 
 Sect. 5. — (2.) Abolition of stamp duty on delivery orders. — The stamp duty 
 charged by the Stamp Act, 1891, under the heading " Delivery Order " in the 
 First Schedule to that Act shall cease to be chargeable. 
 
 Note. — Consequential on this provision the Act of 1905 repeals sects. 69-71 
 of the Stamp Act of 1891. 
 
 THE CRIMINAL APPEAL ACT, 1907. 
 (7 Edw. 7, c. 23.) 
 
 Sect. 6. — Be-vesting and restitution of property on conviction. 56 & 57 Vict. 
 c. 71. — The operation of any order for the restitution of any property to any 
 person made on a conviction on indictment, and the operation in case of any such 
 conviction, of the provisions of sub-section (1) of section twenty -four of the Sale 
 of Goods Act, 1893, as to the re-vesting of the property in stolen goods on 
 conviction shall (unless the Court before whom the conviction takes place direct 
 to the contrary in any case in which, in their opinion, the title to the property 
 is ^ot in dispute) be suspended— 
 
172 APPENDIX I. 
 
 (a) in any case vintil the expiration of ten days after the date of the 
 conviction; and 
 
 (6) in oases where notice of appeal or leave to appeal is given within ten 
 days after the date of conviction, until the determination of the 
 appeal ; 
 and in oases where the operation of any such order, or the operation of the said 
 provisions, is suspended until the determination of the appeal, the order or 
 provision, as the case maybe, shall not take effect as to the property in question 
 if the conviction is quashed on appeal. Provision may be made by rules of 
 court for securing the safe custody of any property, pending the suspension of 
 the operation of any such order or of the said provisions. 
 
 (2.) The Court of Criminal Appeal may by order annul or vary any order 
 made on a trial for the restitution of any property to any person, although the 
 conviction is not quashed ; and the order if annulled, shall not take effect, and, 
 if varied, shall take effect as so varied. 
 
 Note. — See sect. 24 of the Sale of Goods Act, ante, p. 70, and J2. v. Elliott, 
 [1908] 2 K. B. 452. 
 
 THE LARCENY ACT, 1916. 
 (6 & 7 Geo. 5, c. 50.) 
 
 Sect. 45. — (1.) Bestitntion. — If any person guilty of any such felony or 
 misdemeanor as is mentioned in this Act in stealing, taking, obtaining, extorting, 
 embezzling, converting, or disposing of, or in knowingly receiving, any property, 
 is prosecuted to conviction by or on behalf of the owner of such property, the 
 property shall be restored to the owner or his representative. 
 
 (2.) In every case in this section referred to the court before whom such 
 offender is convicted shall have power to award from time to time writs of 
 restitution for the said property or to order the restitution thereof, in a 
 summary manner : 
 
 Provided that where goods as defined in the Sale of Goods Act, 1893, have 
 been obtained by fraud or other wrongful means not amounting to stealing, 
 the property in such goods shall not revest in the person who was the owner of 
 the goods or his personal representative, by reason only of the conviction of the 
 offender. 
 
 And provided that nothing in this section shall apply to the case of — 
 (a) Any valuable security which has been in good faith paid or discharged by 
 some person or body corporate liable to the payment thereof, or, being 
 a negotiable instrument, has been in good faith taken or received by 
 transfer or delivery by some person or body corporate for a just and 
 valuable consideration without any notice or without any reasonable 
 cause to suspect that the same had been stolen ; 
 (6) Any offence against sections twenty, twenty-one, and twenty -two of this 
 
 Act. 
 (3,) On the rpstitution of ■any stolen property, if it appears to the court by 
 
STATUTES. 173 
 
 tte evidence that the offender has sold the stolen property to any person, and 
 that such person has had no knowledge that the same was stolen, and that any 
 moneys have heen taken from the offender on his apprehension, the court may, 
 on the application of such purchaser, order that out of such moneys a sum not 
 exceeding the a4lount of the proceeds of such gale be delivered to the said 
 purchaser. 
 
 Note. — Sects. 20, 21, and 22, mentioned above, relate to directors, trustees, 
 and factors. For definition of " stealing," see sect. 1 of the Lareny Act, 1916. 
 
 See B. V. Justices of Cent. Criminal Cowrt (1886), 18 Q. B- D. 314, C. A., as 
 to proceeds of stolen goods, and see sect. 24 of the Sale of Goods Act, ante, p. 
 70, and notes thereto, and Arohbold's Crim. Plead, and Evidence, ed. 25, p. 284. 
 
 As to summary proceedings before justices, see sect. 27 (3) of the Summary 
 Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), as supplemented by sect. 9 of the 
 Criminal Law Amendment Act, 1867 (30 & 31 Vict. c. 35). 
 
( 174 ) 
 
 APPENDIX II.— NOTES. 
 
 Note A. — On the Use of the Teums Contract, 
 Condition, and Warkanty. 
 
 I. — Contkact. 
 
 Contract. — The disposition of the best modem writers appears to be to define 
 " contract " as an agreement enforceable by law. It cannot be questioned that 
 contract is a species of which agreement is the genus. But having regard to 
 the ordinary language of English oases, the definition seems rather too narrow, 
 for it excludes the case of agreements of impierf ect obligation — as, for instance, 
 a verbal agreement to sell goods above the value of £10, which is unenforceable 
 till part performance, or an agreement against which the Statute of Limitations 
 may be pleaded. In ordinary legal language all these agreements would be 
 described as contracts (see e.g. the language of the 17th sect, of the Statute of 
 Frauds). They all have certain legal consequences. They are cognisable, 
 though not enforceable, by law. But to define a contract as an agreement 
 intended to be enforceable, and, in fact, cognisable by law, though correct 
 according to ordinary language, appears to be too vague for a scientific defini- 
 tion. Having regard to the existing use of the term, any precise definition 
 must be more or less arbitrary. 
 
 The so-called " contracts of record " are not contracts within any legitimate 
 meaning of the term. 
 
 Citodioni. 
 1. — " A contract is a speeeh betwixt parties that a thing which is not done 
 be done."— Tfee Mirror, ch. ii., s. 27. 
 
 2. — " In every contract there must be a quid pro quo, for contractus est quasi 
 actus contra actum."— Co. Litt., 47 b. 
 
 3. "An agreement upon sufficient consideration to do or not to do a. 
 
 particular thing." — Blackstone's Com., bk. ii. ch. 30, § 9, adopted by Kindersley, 
 V.C, in Saynes v. Eaynes (1861), 1 Dr. and Sm., p. 433. See Fry on Specific 
 Performance, 3rd ed., p. 1. _ _ 
 
 4. '• A contract or agreement is when a promise is made on one side, and 
 
 assented to on the other, or when two or more persons enter into engagement 
 with each other by a promise on either side." — Stephen's Com., bk. ii. ch. 5. 
 
N0TJS8. 175 
 
 5- — "^Contract" is a term of uncertain extention. Used loosely, it is 
 equivalent to ' convention ' or ' agreement.' Taken in the largest signification 
 wMcli can be given to it correctly, it denotes a convention or agreement wMch 
 the courts of justice wiU enforce. That is to say, it bears the meaning which 
 was attached to it originally by the Roman jurisconsults." — Austin's Jurispru- 
 dence, vol. ii. p. 1015. 
 
 6. — "Un contrai est une esp^ce de convention . . . une convention par 
 laquelle les deux parties, reciproquement, ou seulement I'une des deux, promettent 
 et s'engagent envers I'autre a lui donner quelque chose, ou a faire ou ne pas h 
 faire quelque chose." — Pothier, Traite des Obligations, § 3, adopted ui Addison 
 an Contracts. 
 
 7. — " A ' contract ' is an agreement enforceable at law, made between two or 
 more persons, by which rights are acquired by one or more to acts or forbear- 
 ances on the part of the other or others." — Anson on Contracts, 6th ed., p. 9. 
 
 8. — " Every agreement and promise enforceable by law is a contract." — 
 PollocJe on Contracts, 4th ed., p. 1. 
 
 9. — " An agreement enforceable by law is a contract." — Indian Contract 
 Act, s'. 2. 
 
 10. — " A contract is an agreement to do or not to do a certain thing. It is 
 essential to the existence of a contract that there should be (1) parties capable of 
 contracting ; (2) their consent ; (3) a lawful object ; and (4) a sufficient cause 
 or consideration." — New York Draft Civil Code, §§ 744, 745. 
 
 11. — " Le contrat est une convention par laquelle une ou plusieurs personnes 
 s'obligent, envers une autre a donner, a faire, ou ne pas a faire quelque chose." — 
 French Civil Code, art. 1101 ; see Rogrons' Code Civil Explique. 
 
 12.-^" Le contrat est I'accord de deux on plusieurs personnes pour former 
 regler ou delier entre ellus un lien juridique." — Italian Civil Code, art. 1098, 
 translated by Ifuc. 
 
 13. — " 'When both parties wUl the same thing, and each communicates his 
 will to the other, with a mutual engagement to carry it into effect, then, and 
 not tin then, an agreement or contract T)etween the two is constituted." — Per 
 Kindersley, V.C, in Eaynes v. Eaynes (1861), 1 Dr. & Sm. 426, p. 433 ; cf 
 Morrison v. Universal Mar. Ins. Co. (1872), L. R. 8 Ex., at p. 60, per Cleasby, B. 
 
 14. — " I understand by a contract an agreement which the law wiU enforce, 
 and I apprehend that, speaking generally, the law wiU enforce all agreements 
 made upon good consideration or with certain solemnities which dispense with 
 consideration. Agreement and consideration are thus elements which constitute 
 a contract not under seal." — Per Stephen, J., ia Alderson v. Maddison (1880), 5 
 Ex. Div. 293, at p. 297. 
 
 II. — Condition. 
 Conditions. — The term "condition" as applied to contracts appears to mean 
 indifferently (a) an uncertain event on the happening of which the obligation 
 
176 APPENDIX It. 
 
 of the contract is to depend, and (b) the stipulation in the contract making its 
 obligation depend on the happening of the event. Though the Act uses the 
 term condition, it does not define it. The definition belongs to the general law 
 of contract. 
 
 The term seems to have been imported into the law of contract from the law of 
 conveyancing. In conveyancing a distinction was drawn between " conditions " 
 and " covenants " {Bacm's Ahr., 7th ed., vol. ii. p. 116), which, in contracts, has 
 now become obliterated. 
 
 The classification of conditions in English law is imperfect and unsatis- 
 factory. 
 
 The division of conditions, into positive and negative (e.g. if my horse wins 
 the Derby — if my horse does not win the Derby), is obvious, and requires no 
 comment. 
 
 Lord Justice James divides conditions into conditions precedent, subsequent, 
 and inherent, a classification which seems to involve a cross-division (a). 
 Ordinarily they are divided into conditions precedent and conditions subsequent, 
 that is to say, conditions which must be fulfilled before the obUgatibn of the 
 contract arises, and conditions on the happening of which an existent obligation 
 is dissolved. This division corresponds generally, in sale at any rate, with the 
 distinction drawn by Scotch law and the Continental codes, between suspensive 
 and resolutive conditions (6). 
 
 Conditions precedent are again divided into conditions precedent strictly so 
 called and concurrent conditions. A condition is concurrent where the parties 
 to a contract have reciprocally to perform certain acts at the same time. In the 
 case of the failure of one party to perform his part of th^ contract it is sufficient 
 if the other party shows that Ee was ready and willing to perform his part, 
 although he did not actually perform it. 
 
 Pothier's further division of conditions precedent into potestative, casual, 
 and mixed conditions, though followed in Scotland and by the Continental codes, 
 is not recognised in England. But for accuracy some such subdivision is 
 required. There is an important distinction between what may be called 
 promissory conditions, and contingent or casual conditions. In the latter case 
 the obligations of both parties are suspended till the event takes place. In the 
 former case the non-performance of the condition by the promisor (unless 
 excused by law) gives a right to the promisee to treat the contract as repudiated, 
 that is to say, he is discharged from his part of the contract, and, further, he 
 has a claim for damages. In the one case the obligations of the contract do not 
 attach. In the other case the contract is broken. If A. says to B., " I will 
 hire your horse and trap to-morrow if the day be fine," and B. assents to this, 
 the obligations of both parties depend on the agreed conditions being fulfilled : 
 
 (o) Exp. Collins, Be Lees (1875), L. E. 10 Ch. App. 867, at p. 372 (bill of sale 
 case). 
 
 (6) PotUer's OhUgatims, by Evans, p. 112; French Code Civil, Arts. 1186-1171; 
 Italian Civil Code, Arts. 1157-1169 ; Bell's Principles of the Law of Scotland ed 9 
 pp. 47-50. ' ' ' 
 
NOTES. 177 
 
 but if A. agrees with B. to sell him a ton of hay and deliver it " on Monday for 
 certain," there is a breach of contract by A. if the hay be not so delivered. In 
 the older cases promissory conditions were referred to as "dependent covenants 
 or promises " and were contrasted with- independent covenants or promises, 
 namely, stipulations the breach of which gives rise to a claim for damages, but 
 not to a right to treat the coiitract as repudiated. Now the term " dependent 
 promise " appears to be merged in the wider term " condition precedent." 
 
 The Indian Contract Act discards the term " condition," but seeks to 
 preserve the distinction referred to above by dealing separately with " contingent 
 contracts " and " reciprocal promises." The same result is arrived at by the 
 distinction which is sometimes drawn between conditions of the contract, and 
 conditions in the contract, 
 
 III. — Wakeanty. 
 
 Warranty. — The term " warranty " seems to have beem imported into the law 
 of contract from the old law of conveyancing, where it signified an express or 
 implied covenant by the grantor of real estate, to indemnify the grantee if he 
 should be evicted. 
 
 Its meaning has been considerably widened in the law of contract, and it is 
 now a term of very uncertain signification. 
 
 It is sometimes used as strictly equivalent to condition precedent, though it 
 is sometimes sought to contrast it with condition precedent, or rather with a 
 certain kind of condition precedent, namely, a promissory condition precedent. 
 When used in the latter sense the distinction between " condition " and 
 " warranty " corresponds with the distinction drawn by the older cases between 
 what were known as "dependent" and "independent" covenants or promises. 
 
 In insurance law its use is curious. When it relates to any undertaking by 
 the assured it is used to denote a condition precedent of the strictest kind, the 
 breach of which destroys the contract, as in the case of a sailing warranty. 
 But the term is also used as a mere term of exclusion or limitation, as where 
 "•oods are insured, warranted free from particular average under 3 per cent. 
 
 The chief controversy over the proper meaning of the term " warranty " has 
 arisen in the law of sale, and the ambiguity of its use appears to result from the 
 want of clear distinction in English law between sale— i.e. the transfer of 
 property in a thing — and the contract by which that transfer is effected. The 
 term is used in two different senses, and judges and text writers continually 
 oscillate between them. 
 
 First, the term " warranty " is opposed to the term " condition precedent," 
 and denotes a stipulation in a contract of sale, the breach of which gives rise to 
 a claim for damages, but not to a right to reject the goods ai^d treat the contract 
 as repudiated. This is the meaning which, after much consideration, has been 
 adopted by the Act as regards England and Ireland (see sects. 11 and 62) (c). 
 The objection to this use of the term appears to be that it does not cover the 
 whole field of independent stipulations. For instance, where there is a contract 
 
 (c) But note the s^vipg for Scotland }n t}iose sections. 
 
178 APPENDIX II. ' 
 
 for instalment deliveries the obligation to pay for a partieiQar instalment may 
 be an independent promise, but it would not ordinarily be called a warranty. 
 
 Secondly, the term " warranty " is used to denote any auxiliary stipulation 
 in a contract of sale, and in particular a stiptilation relating to the title to, or 
 the quality, condition, or fitness of, goods contracted to be sold. In this sense 
 of the term a breach of warranty may give rise either to a mere claim for 
 damages, or to a right to reject the goods, and treat the contract as repudiated 
 according as the goods may have been accepted or not. 
 
 The weight of judicial authority is in favour of the first meaning,- though 
 etymologicaUy and historically the second meaaing appears more correct. 
 [Warranty = Guarantee]. The objection to this use of the term is that it 
 does not mark the distinction between a condition precedent and a collateral 
 promise or undertaking. Using the term in the first sense, it is to be noted 
 that many stipulations which in their inception are conditions {i.e. thei implied 
 undertakings as to merohantableness and fitness for a particular purpose) may 
 become contracted into warranties by virtue of subsequent events, and this fact 
 doubtless explains much of the confusion of language which the term has given 
 rise to. 
 
 Citatiam. 
 
 1. — " A warranty (concerning freeholds and inheritances) is a covenant real 
 annexed to lands or tenements whereby a man and his heirs are bound to 
 warrant the same, and either by voucher or by judgment in a writ of warrantia 
 chartse to yield other lands and tenements to the value of those that shall be 
 evicted by a former .title, else it may be used by way of rebutter." — Bacon's 
 abridgement, 7th ed., pp. 356, 359, 361 ; and see Williams's Beal Property, 16th 
 ed., p. 513. 
 
 2. — " A warranty is an engagement by which a seller assures to a buyer the 
 existence of some fact affecting the transaction, whether past, present, or 
 future."— New York Draft Code, § 877. 
 
 3. — "A warranty, properly so called, can only exist where the subject- 
 matter of the sale 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 possesses certain qualities, but the property passing by 
 the contract of sale of a breach of the warranty cannot entitle the vendor to 
 rescind the contract, and re-vest the property in the vendor without his 
 consent. . . . But when the subject-matter of the sale is not in existence, or 
 not ascertained at the time of the contract, an engagement that it shaU, when 
 existing or ascertained, possess certain qualities, is not a mere warranty, but a 
 condition, the performance of which is precedent to any. obligation on the 
 vendee under the contract, because the eisistence of those qualities, being part 
 of the description of the thing sold, becomes essential to its identity, and the 
 vendee cannot be compelled to receive and pay for a thing different from that 
 for what he contracted." — Notes to Cutter v. Powell, 2 Smith, Lead. Cas, 7th 
 ed., p. 30. 
 
NOTES. 179 
 
 4. — " An express warranty is a stipulation inserted in writing on the face of 
 the policy, upon the literal truth or fulfilment of which the validity of the entire 
 contract is dependent. These written stipulations either allege the existence 
 of some fact or state of things at the time, or previous to the time, of making 
 the policy, or they undertake for the happening of future events, or the 
 performance of future acts. In the'former case Mr. Marshall terms the stipula- 
 tion an affirmative, and in the latter a promissory warranty." — Arnould's Marine 
 Insurance, 6th ed., p. 599 ; Cranston v. Marshall (1850), 5 Exch. 395, at p. 402 ; 
 and see Barnard v. Faber (1893), 1 Q. B., at p. 343, per Ld. Bowen, as to fire 
 insurance. 
 
 5. — "When it appears that the consideration has been executed in part, 
 that which before was a warranty or condition precedent, loses the character of 
 a condition, or, to speak more properly, ceases to be available as a condition and 
 becomes a warranty in a narrower sense of the word, viz. a stipulation by way 
 of agreement for the breach of which a compensation must be sought in 
 damages."— Notes to Williams' Saunders, vol. i. p. 554, cited and approved; 
 Eeilbutt V. Hickson (1872), L.B. 7 C.P. 438, at p. 450; ef. Stanton y.Bichardson 
 (1872), L. R. 7 C. P., at p. 436. 
 
 6.—" If upon a treaty about the buying of certain goods, the buyer should 
 ask the seller if he would warrant them to be of such a value and his own goods, 
 and the seller should warrant them, and then the buyer should demand the price 
 and the seller should set the price, and then the buyer should take time for two 
 or three days to consider, and then should come and give the seller his price, 
 though the warranty here was before the sale yet this wiU be well, because the 
 warranty is the ground of the treaty, and this is warrantizando venditit." — 
 Lysney v. Selby (1703), 2 Ld. Raym. 1118, 
 
 7. « It was rightly held by Holt, C.J., and has been uniformly adopted ever 
 
 since, that an affirmation at the time of a sale is a warranty, provided it appear 
 on evidence to have been so intended."— Per Buller, J., in Pasley v. Freeman 
 (1789), 3 T. E., c. 1, p. 57. 
 
 8. " Here, when F., a mutual acquaintance of the parties, introduced them 
 
 to each other, he said, ' Mr. J. is ia want of copper sheathing for a vessel,' and 
 one of the defendants answered, ' We will supply him weU.' As there was no 
 subsequent communication, that, substituted a contract and amounted to a 
 warranty. I wish to put the case upon a broad principle. If a man sells an 
 article he thereby warrants that it is merchantable —that is, fit for some purpose. 
 If he sells it for a particular purpose he thereby warrants it fit for that 
 purpose. ... In every contract to furnish manufactured goods, however low 
 the price, it is an implied term that the goods shall be merchantable."— Per 
 Best, C.J., Jones v. Bright (1829), 5 Bing. 533, at p. 543. 
 
 9._" Although the vendee of a specific chattel, delivered with a warranty, 
 may not have a right to return it, the same reason does not apply to cases of 
 executory contracts, when an article, for instance, is ordered from a manufac- 
 turer, who contracts that it shaU be of a certain quaHty, or fit for a certain 
 
180 APPENDIX II. 
 
 purpose, and the article sent is such as is never completely accepted by the party 
 ordering it."— Per Lord Tenterden, Street v. Blay (1831), 2 B. & Ad. 456, at 
 p. 463 (horse case). 
 
 10. — "A good deal of confusion has arisen in many of the cases on this 
 subject from the unfortunate use made of the word 'warranty.' Two things 
 have been confounded together. A warranty is an express or implied state- 
 ment of something which the party undertakes shall be part of a contract ; and 
 though part of the contract, yet collateral to the express object of it. But in 
 many of the cases, some of which have been referred to, the circumstances of a 
 party selling a particular thing by its proper description has been called a 
 warranty, and the breach of such contract a oreaoh of warranty ; but it would 
 be better to distinguish such cases as a non-compliance with a contract which a 
 party has engaged to fulfil, as if a man offers to buy peas of another, and he 
 sends him beans, he does not perform his contract ; but that is not a warranty ; 
 there is no warranty that he should sell him peas ; the contract is to sell peas, 
 and if he sends him anjrthing else in their stead, it is a non-performance of it." 
 —Per Lord Abinger, in Chanter v. Hopkins (1838), 4 M. & W. 399, at p. 404. 
 
 11. — "We avoid the term ' warranty,' because it is used in two senses, and the 
 term ' condition,' because the question is whether that term is applicable. Then 
 the effect is that the defendants" required and the plaintiff gave his undertaking 
 that no sulphur had been used. This tindertaking was a preliminary stipulation ; 
 and if it had not been given, the defendants would not have gone on with the 
 treaty which resulted in the sale. In this sense it was the condition upon which 
 the defendants contracted, and it would be contrary to the intention expressed 
 by this stipulation that the contract should remain valid if sulphur had been 
 used. The intention of the parties governs in the making and in the construc- 
 tion of all contracts. If the parties so intend, the sale may be absolute, with a 
 warranty superadded, or the sale may be conditional to be null if the warranty 
 is broken ; and upon this statement of facts we think the intention appears to 
 have been that the contract should be null if sulphur had been used." — Per ' 
 Brie, C.J., Bannerman v. White (1861), 31 L. J. C. P. 28, at p. 32. 
 
 12.— " I agree with what Maule, J., and Crowder, J., say in Hopkins v. 
 Tanqueray. Crowder, J., says, in the plainest terms, in that case, that conversa- 
 tion ' was a mere representation, and was evidently not made with an intention 
 to warrant the horse. A representation to constitute a warranty, must be 
 shown to have been intended to form part of the contract.' It seems to me that 
 that is perfectly correct." — Per Martin, B., in Stueley v. Bailey (1862). 31 
 L. J., Ex. 483, at p. 489. 
 
 13. — " But with respect to statements in a contract descriptive of the subject- 
 matter of it, or of some material incident thereof, the true doctrine established 
 by principle, as well as authority, appears to be, generally speaking, that if such 
 descriptive statement was intended to be a substantive part of the contract, it 
 is to be regarded as a warranty, that is to say, a condition on the failure or non- 
 perfonnance of which the other party may; if he be so minded, repudiate the 
 
NOTES. 181 
 
 contract in ioto, and be so relieved from performing his part of it, provided it 
 has not been partially executed in his favour. If, indeed, he has received the 
 whole, or any substantial part, of the consideration for the promise on his part, 
 the warranty loses the character of a condition, or, to speak more properly, 
 perhaps, ceases to be available as a condition, and becomes a warranty in the 
 narrow sense of the word, namely, a stipulation by way of agreement for the 
 breach of which a compensation must be sought in damages." — Per Williams, 
 J., in Behn v. Bnrness (1863), 32 L. J. Q. B. 204, at p. 206. 
 
 14. — " 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 as 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. Here there is, I think, 
 merely a warranty as distinguished from a condition." — Per Blackburn, J., 
 Seyworth v. Hutchinson, (1867), L. E. 2 Q. B. 447, at p. 451. 
 
 Note B. — Constktjction op Terms and Conditions. 
 
 Construction of contracts of sale. — There is no canon of construction peculiar 
 to contracts of sale. In a case arising on a contract of sale where the material 
 words were "delivering on April 17th ; complete 8th May," Kelly, C.B., says : 
 " The rule of construction applicable in general to aU written contracts is, that 
 they are to be construed according to the real intention of the parties, to be 
 collected from the language they have used; that effect is to be given, if 
 possible, to every word used, and that every word is to be interpreted according 
 to its natural and ordinary meaning, unless such construction would be contrary 
 to the manifest intention of the parties, or would necessarily lead to some 
 contradiction or absurdity. But this rule, though applicable to contracts in 
 general, must be received with some qualification, when the contract or a 
 portion of the contract in question consists of an incomplete sentence, ambiguous 
 in its terms, and upon which a literal construction of every word would either 
 be impracticable or would leave the contract indeterminable and uncertain. 
 And such is the case with the contract in question, which I think is to be con- 
 strued according to what we can collect to have been the substantial intention 
 of the parties, applying our common sense, and such knowledge as we may 
 'possess, to the language in which they have expressed themselves" (d). The 
 inference in mercantile contracts, says Kennedy, L. J., " is that each party will 
 do what is mercantilely reasonable " (e). 
 
 The rule for construing conditions as to delivery and payment is thus given 
 
 (d) Coddmgton v. PaUologo (1867), L. R. 2 Ex. 193, at p. 200 ; cf.Honckv. Mullet 
 (1881), 7 Q. B. D. 92, at p. 103, per Lord Esher. And see notes to sect. 55, ante, 
 p. 126. 
 
 (e) Biddle Bros. v. E. Clemens Horst & Co., [1911] 1 K. B. at p. 958, referring to 
 The Moorcock (1889), 14 P. D. 64, 67 0. A. 
 
182 APPENDIX II. 
 
 by Williams, J.; "Where there is an agreement to deliver to a yendee on a 
 certain condition and the condition (without any fault on the part of the 
 vendor) never comes to pass, it is plain that he will not be liable for a non- 
 delivery. But where the agreement is absolute or conditional on an event 
 which happens, the vendor wDl be liable for a breach, although he could not 
 help the non-performance ; for it is his own heedlessness if he runs the risk of 
 undertaking to perform an impossibility, when he might have provided against 
 it by his contract " (/). And see note C, post. p. 189. 
 
 Some useful rules are given by Stephen, J., for the construction of conditions 
 incorporated by reference into contracts of sale in Watkins v. B/ymill (1879), 
 10 Q. B. D. 178, at p. 188. 
 
 The following terms and stipulations, among others, have been judicially 
 construed, namely — 
 
 Terms as to shipment, i.e. 
 
 Stipulations judicially construed. — " The names of the vessels to be declared as 
 soon as the wools are shipped." {g). 
 
 " Shipped per Biletta as per bill of lading dated September or October " (h). 
 
 " Tor shipment in June and [or] July " (i). 
 
 " Shipment by steamer or steamers during February " (Ic). 
 
 "■ To be shipped during the months of March ^^ AprU " Q). 
 
 "To be shipped by sailer or sailers from the Philippine Islands between 
 May 1st and July 31st " (m). 
 ^" Clearance not later than 31st May " (■»). 
 
 " To be shipped [from Egypt] during January, 1900, per steamship Orlando, 
 and to be delivered in United Kingdom " (o). 
 
 As to arrival of ship or cargo, i.e. 
 
 " On arrival " {p). 
 
 " 150 tons of soda to arrive ex Daniel Grant " (q). 
 
 (/) Hale v. Bawson (1858), 27 L. J. C. P. 189, at p. 191 (sale of cargo to arrive by 
 ship) ; cf. Nickoll v. Ashton, [1900] 2 Q. B. 298 (sale of goods to be shipped by a 
 particular ship, which strands before shipment). And see note to sect. 7 as to im- 
 possibility and supervening illegality. 
 
 {g) Graves v. Legg (1854), 9 Exoh. 709. 
 
 (h) Gatiomo v. Adams (1862), 12 C. B. (N.S.) 560. 
 
 (i) Alexander v. Vanderzee (1872), L. E. 7 C. P. 530, Ex. Ch. 
 
 .(&) Brandt v. Lawrence (1876), 1 Q. B. D. 344, 0. A. ; but see Beuter v. Sala 
 (1879), 4 C. P. D. 239, C. A. 
 
 {I) Bowes V. Shand (1877), 2 App. Gas. 455. 
 
 (m) Ashmore v. Cox, [1899] 1 Q. B. 436. 
 
 (TO) TheVman Frires v. Texas Flour Mill Co. (1900), 5 Com. Gas. 321, C. A. 
 
 (o) Nickoll v. Ashton, [1900] 2 Q. B. 298. 
 
 (p) Alewyn v. Pryor. (1S26), E. & M. 406; Boyd v. Siffkin (1809), 2 Gamp. 326. 
 
 (2) Johnson v. Macdonald (1842), 9 M. & W. 600. 
 
NOTES. 183 
 
 "100 hogsheads of oil expected to arrive by the ship Besoluie from 
 Madras " (r)., 
 
 " 100 bales of cotton now on passage from Singapore and expected to arrive 
 at London per the Bavenscraig " (s). 
 
 "50 cases ofitallow to be delivered on the safe arrival of the ship Elgin" (<). 
 
 " The cotton to be taken from the q^uay " (m). 
 
 " 600 tons of nitrate of soda expected to arrive at port of call per 
 Precursor " (x). 
 
 " To discharge at a safe port in United Kingdom, Manchester excepted "(y). 
 
 Cargo expected to arrive by sailer from Bentos, " in case of non-arrival this 
 contract to be void " (z). 
 
 " Subject to safe arrival " (a). 
 
 " Should the goods or any portion thereof be lost, this contract to be 
 cancelled for the whole or each portion " (5). 
 
 " Subject to ' force majeure ' " (66). 
 
 As to pfiority of delivery and payment. 
 "Payment, biU at two months from date of landing " (c). 
 " To be paid for by cash in one month " (d). 
 
 " Delivery forthwith ; payment, cash in 14 days from the making of the 
 • contract " (e). 
 
 Delivery order running, " we engage to deliver on presentation of this 
 document " (/). 
 
 " To be free delivered and paid for in 14 days in cash " (g). 
 "Payment, cash in London in exchange for shipping documents " {h). 
 " The balance in cash on right delivery at Rangoon " (i). 
 
 (r) Fischel v. Scott (1854), 15 0. B. 69. 
 (s) Oorrissen v. Perrin (1857), 27 L. J. C. P. 29. 
 
 (i) Hale V. Bawson (1858), 27 L. J. C. P. 189; cf. Simond v. Braddon (1857), 2 
 
 C. B.N. S. 324. ^ ^ 
 
 (u) NeillY. Whitworth (1865), 84 L. J. 0. P. 155, affirmed by Ex. Oh. (1866), L. R. 
 
 1 C. P. 684. 
 
 (x) Smith V. Myers (1871), L. B. 7 Q. B. 139, Ex. Oh. 
 
 (y) Be Goodhody (1900), 5 Com, Gas. 59, 0. A. 
 
 (J) Wyllie V. Povah (1907), 12 Com. Oas. 317, 321. 
 
 (a) Bamett v. Taveri & Co., [1916] 2 K. B. 390. 
 
 (6) Clark v. Cox, McEwen & Co. (1919), 25 Com. Caa., 94 0. A. 
 
 (bb) Be Comtoir Commerciel Anversois, [1920] 1 K. B. 868, 0. A. ; Le Beaupin v. 
 Crispin & Co., [1920] 2 K. B. 714. 
 
 (c) Alexander v. Oardner (1835), 1 Bing. N. 0. 671. 
 
 {d) SpartaUv. Beneche (1850), 10 0. B. 212; but see Field v. LeleaM (1861), 30 
 L. J. Ex. 168, Ex. Oh., as to usage. 
 
 (e) Staunton v. Wood (1851), 16 Q. B. 638. 
 
 (/) Bartlett v. Holmes (1853). 22 L. J. 0. P. 182. 
 
 {g) Godts V. Base (1855), 17 0. B. 229. 
 
 (h) Tamvaco v. Lucas (1861), 30 L. J. Q. B. 234. 
 
 (i) Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B. 322. 
 
184 APPENDIX 11. 
 
 " Freight to be payable on right delivery of the cargo " (k). 
 
 " Payment to be made in net cash in London in exhange for bills of lading- 
 of each cargo or shipment " (I). 
 
 Payment " by cash in exchange for shipping documents " (m). 
 
 Payment "in cash on arrival in exchange for shippiag or railway docu- 
 ments " (n). 
 
 Payment net cash after inspection (o). 
 
 " Terms net cash " in c.i.f . contracts (p). 
 
 " Net cash against documents on arrival of the steamer " (g). 
 
 As to time of delivery, i.e. 
 
 ' ' Delivery at buyer's option in all April or sooner " (r). 
 
 " 10 tons of oil to be delivered within the last 14 days of March " (s). 
 
 " 5 tons of oilcake to be put on board directly " (t). 
 
 " DeUvery forthwith " {u). 
 
 Delivery " as required " {x). 
 
 "Delivery on AprU 17th, complete 8th May " {y). 
 
 " The lots to be cleared away within three days after the sale at the 
 purchaser's expense " (z). 
 
 " To be finished as soon as possible '\{a). 
 
 One thousand tons of iron "direct port specification to be given in the- 
 beginning of May " (6). 
 
 As to cost of delivery. 
 " Free on board a foreign ship " (c). 
 " Free on board," or, " F. O. B." (d). 
 
 {k) Paynter v. James (1867), L. B. 2 0. P. 348. • 
 
 (1) Sanders v. Maclean (1883), 11 Q. B. D. 327, C. A. 
 
 (m) Byam v. Ridley (1902), 8 Com. Oas. 105 (cargo of oodflsh). 
 (re) PolmgU v. Dried Milk Co. (1904), 10 Com. Gas. 42. 
 (o) Khan v. DucM (1905), 10 Com. Caa. 87. 
 
 (p) E. Clemens Borst & Co. v. Biidle BrotTiers, [1912] A. C. 18 H. L. (" net 
 cash " = net cash against documents, and see note to sect. 32 (3), ante, p. 86). 
 
 (2) Stein Forbes & Co. v. Cminty Tailoring Co. (1916), 115 L. T. 215.. 
 (r) Cox V. Todd (1825), 7 D. & B. 131. 
 
 (s) Startup V. Macdonald (1843), 6 M. & G. 598, Ex. Ch. (tender at 8.30 on 
 Saturday night). 
 
 (t) Duncan v. Topham (1849), 8 C. B. 225. 
 
 lu) Staunton v. Wood (1851), Q. B. 638. 
 
 {x) Jones V. Gibbons (1853), 8 Exch. 920; Jackson v. Botax Motor Cycle Co., 
 [1910] 2 K. B. 937, C. A. ; Boss Brotliers v. Shaw d) Co. (1917), 2 Ir. Bep. .367 ; Pearl 
 Mill Co. V. Ivy Tarmery Co., [1919] 1 K. B. 78. 
 
 (y) Coddington v. Paleologo (1867), L. E. 2 Ex. 193. 
 
 (z) Woolfe V. Home (1877), 2 Q. B. D. 355, 0. A., distinguishing Attwood v. Emery 
 (1856); 26 L. J. C. P. 73. > 
 
 {a) HydrauUc Co. v. McEaffie (1878), 4 Q. B. D. 670, C. A. 
 
 (fc) Kidston v. Monceau Iron Works (1902), 7 Com. Cas. 82. 
 
 (c) WackerbaHh v. Masson (1812), 3 Camp. 270 ; and p. 86, ante. 
 
 (d) Cowasjee v. Thompson (1845), 5 Moore, P. C. C, 165, see at p. 173 ; Brown v. 
 
NOTES. 185 
 
 " The cotton to be taken from the quay " (e). 
 " Goods to be taken from the deck " (/). 
 
 C. I. F. = at a price to cover " cost, freight, and insurance " {g). 
 Deliyery on payment of freight '• and other conditions as per charter- 
 party "W. 
 
 " C. I. r. to buyer's wharf, Victoria Docks, London " {i). 
 
 " Cost of stevedoring to be paid by the Government " (buyer) (k). 
 
 " Free of customs formalities " {I). 
 
 " War risk for buyer's account " (7r\). 
 
 " Ex store " (mm). 
 
 As to price. 
 
 " 2^ per cent, discount for cash, the duty to be deducted " (n). 
 
 " Market value " (o). 
 
 " Terms — net cash, to be paid within six to eight weeks from date hereof " (p). 
 
 " Without reserve '' (g). 
 
 " The highest bidder to be the purchaser " (r). 
 
 " Cash, or approved banker's bUls " (s). 
 
 " Cash in a month less discount, or 4 months' bill at buyer's option " (t). 
 
 " Approved acceptance to buyer's draft " (u) 
 
 C. I, F. = at a price to cover " cost, freight, and insurance " («). 
 
 Hare (1858), 27 L. J. Ex., at p. 377 ; Stock v. Inglis (1884), 12 Q. B. D. 564, at p. 
 573 ; affirmed (1885), 10 App. Oas. 268. 
 
 (e) Neill v. Whitworth (1865), 34 L. J. C. P. 155; affirmed (1886), L. R. 1 C. P. 
 684, Ex. Ch. 
 
 (/) Play ford v. Mercer (1870), 22 L. T. (N.S.) 41. 
 
 (g) Ireland v. Livingston (1872), L. B. 5 H. L., at p. 406 ; c/. Youill v. Scott Rohson, 
 [1908] 1 K. B. 270 (seller to insure against " all risks "). 
 
 Qi) Steamship " County of Lancaster " v. Sharp (1889), 24 Q. B. D. 158. 
 
 (i) AcmS Wood Co. v. Sutherland, Irmes <fc' Co. (1904), 9 Com. Cas, 170 (expenses 
 under London clause). 
 
 (k) WUte v. Williams, [1912] A. 0. 814, P. C. 
 
 (I) Tager v. Tolme cfc Bunge, [1916] 1 K. B. 939, 0. A. 
 
 (m) Oroom v. Barber, [1915] 1 K. B. 316. 
 
 (mm) Fisher Beeves (& Co', v. Armour <& Co., [1920] 2 K. B. 329 ; appeal not yet" 
 reported. 
 
 (n) Smith v. Blandy (1825), E. & M., at p. 260. 
 
 (0) Orchard v. Simpson (1857), 2 C. B. (N.S.) 299. 
 
 (p) Ashforth v. Bedford (1873), L. R. 9 0. P. 20. 
 
 (g) Thornett v. Haines (1846), 15 M. &. W. 367. 
 ■ (r) Green v. Ba/verstock (1863), 32 L. J. 0. P. 181. 
 
 (s) Smith V. Mercer (1867), L. R. 3 Ex. 51, 
 
 (t) Wayhes Merthyr Steam Coal Co. v. Morewood (1877), 46 L. 3. Q. B. 746. 
 
 (u) McDowell V. J. B. Snowball (1904), 7 F. 35 Court of Session. 
 
 (x) Ireland v. Livingston (1872), L. R. 5 H. L., at p. 406 ; and p. 87, ante. 
 
186 APPENDIX II. 
 
 C. I. F. " insurance for 5 per cent, over net, invoic.e to be effected by sellers 
 for aoooiint of buyers " {y). 
 
 C. I. F. contract, " duty paid " (z). 
 
 As to qnantity. 
 
 " 18 pockets Kent Lops " (a). 
 
 " 1000 hales of gambier " (6). 
 
 " Cargo " (c). 
 
 " A full and complete cargo of sugar and molasses " (d). 
 
 " A small cargo of lath-wood (specifying lengfths), in all about 60 cubic 
 fathoms " (e). 
 
 "A cargo of from 2500 to 3000 barrels (seller's option) American 
 petroleum " (/). 
 
 " About 300 quarters more or less of foreign rye shipped at Hamburg " {g). 
 
 " Say from 1000 to 1200 gallons per month " Qi). 
 
 " Saynotless than 100 packs of combing skin at Id. per lb." (i). 
 
 " The quantity to be taken from the bill of lading " (It). 
 
 " We hold to your order about 30 tons Saint Petersburg hemp " (I). 
 
 " 100 tons of Wallsend coals, more or less " (m). 
 
 " Say about 600 red pine spars averaging 16 inches " («,). 
 
 " 25 tons, more or less, Penang pepper ; name of vessel or vessels to be declared 
 within 60 days from date of bill of lading " (o). 
 
 " About 150 tons of scrap iron " (p). 
 
 (y) Landauer v. Asser, [1905] 2 K. B. 184 (over insurance, right of buyer to 
 surplus) ; but as to increased value policies, see Strass v. Spillers & Baker, [1911] 2 
 K. B. 759. 
 
 (z) American Commerce Co. v. Boehm, LW. (1919), 35 T. L. E. 224. 
 
 (a) Spicer v. Cooper (1841), 1 Q. B. 424. 
 
 (6) Gorrissen v. Perrin (1857), 27 L. J. 0. P. 29. 
 
 (c) Anderson v. Morice (1876), 1 App. Cas. 713 ; Colonial Ins. Co. v. AdelaMe Ins. 
 Co. (1886), 12 App. Caa., at pp. 129, 130; Miller v. Bomer, [1900] 1 Q. B., at 692; 
 and see Laws of England, vol. 25, p. 173. 
 
 (d) Cuthbert v. Cumming (1855), 11 Exch. 405, Ex. Ch. 
 
 (e) Kreuger v. Blamck (1870), L. E. 5 Ex. 179 ; but see Ireland v. Livingston 
 (1872), L. E. 5 H. L., at pp. 405, 410. 
 
 (/) Borrowman v. Drayton (1876), 2 Ex. D. 15, 0. A. ; Be Harrison db Micks, 
 [1917] 1 K. B. 755 (remainder of cargo). 
 
 '{g) Cross v. EgUn (1831), 2 B. & Ad. 106. 
 
 (h) Gwillim v. Daniell (1885), 2 C. M. & E. 61; Morris v. Levison (1876), 1 
 C. P. D., at p. 159. 
 
 (i) Leermng v. Snaith (1851), 16 Q. B. 275. 
 
 (k) Covas V. Bingham (1853), 2 E, & B. 836. 
 
 (I) Moore v. Campbell (1854), 10 Exoh. 328. 
 
 {m) Cockerell v. Aucompte (1857), 26 L. J. C. P. 194 ; cf. Bourne v. Seymour 
 (1855), 24 L. J. C. P. 207. 
 
 (to) McGonnell v. Murphy (1873), L. E. 5 P. C. 208. 
 
 (0) BeuUr v. Sola (1879), 4 C. P. D. 239, C. A. 
 
 ( p) McLay v. Perry (1881), 44 L. T. 152. 
 
NOTES. 187 
 
 " The whole of the steel req[tiired for the Forth Bridge. The estimated 
 quantity we understand to be 30,000 tons, more or less " (5). 
 
 " About 500 loads of timber " (r). 
 
 Nitric acid. " All our requirements during 12 months " (s). 
 
 " About 10,000 tons Newcastle coal " in monthly shipments " {t). 
 
 "Quantity 1750/2500 tons" (coal contract) (m). 
 
 " Estimated 8/10 tons " (Australian sheep skins) (x). 
 
 " Eemainder of the cargo, more or less about 5400 quarters of wheat " ( y). 
 
 Ship "dead weight capacity 450 tons— not accountable for errors "in 
 description " (2). 
 
 Eggs and butter "if and to the extent the same shall be required " (a). 
 
 4000 tons of meal " 2 per cent, more or less " (aa). 
 
 As to quality, &c., i.e. 
 
 "With aU faults" (6). 
 
 Carriage to be built "to meet my convenience and taste " (c). 
 
 " Scott and Co.'s mess pork " (d). 
 
 " Tour wool at 16s. a stone " (e). 
 
 " Prime singed bacon " (/). 
 
 " Pine barley " and " good barley " (g). 
 
 " Ware potatoes" (h). 
 
 " 50 tons best palm oil ; wet and inferior oil, if any, at a fair allowance " (i). 
 
 " Seed barley " {k). 
 
 (q) Tanered v. Steel Co. of Scotland (1890), 15 App. Gas. 125, H. L. 
 
 (r) Harland v. Burstall (1901), 6 Com. Cas. 113. 
 
 (s) Berk v. International Explosives Co. (1901), 7 Com. Cas. 20. 
 
 (t) Societi Anonyme v. Scholefield (1902), 7 Com. Oas. 114 (custom of trade as to 
 5 per cent, margin). 
 
 (w) Doe V. Bowaier, Ltd., [1916] W. N. 185. 
 
 (a) Tebbit Bros. v. Smith (1917), 33 T. L. R. 508, C. A. 
 
 [y) Be Harrison & Micks, [1917] 1 K. B. 755. 
 
 (z) Harrison v. Knowles & Foster, [1918] 1 K. B. 608, C. A. 
 
 (a) Percivals, Ltd. v. L. C. C. Asylums Committee (1918), 87 L. J. K. B. 677. 
 
 (aa) Payne v. Lillico & Sons (1920), 36 T. L. B. 569. 
 
 (6) Shepherd v. Kain (1821), 5 B. & Aid. 240 (ship) ; Taylor v. Bullen (1850), 5 
 Exoh, 779 (ship) ; Ward v. Hobbs (1878), i App. Cas. 13 (diseased pigs). 
 
 (c) Andrews v. Belfield (1857), 2 C. B. (N.S.) 779. 
 
 {d) Powell V. Horton (1836), 2 Bing. N. C. 668 ; cf. Johnson v. Baylton (1881), 7 
 Q. B. D. 438, C. A. 
 
 (e) Macdonald v. Longbottom (1860), 29 L. J. Q. B. 256, Ex. Ch. ; cf. McCollin v. 
 Gilpin (1881), 6 Q. B. D. 516, C. A. 
 
 (/) rates V. Pym (1816), 6 Taunt. 446. 
 
 {g) Hutchinson v. Bowker (1839), 5 M. & W. 535. 
 (h) Smith V. Jefryes (1846), 15 M. & W. 561. 
 
 (i) JDMcas V. Bristow (1858), 27 L. J. Q. B. 364 ; cf. Warde v. Stewart, 1 0. B. (N.S.) 
 88. 
 
 (k) Carter v. Crick (1859), 28 L. J. Ex. 238. 
 
188 APPENDIX II. 
 
 Barley " about as per sample " (I). 
 
 " Englishsanfoin " seller giving no warranty as to growth or description (jfi). 
 
 Parcels of wood laths "about the specification mentioned below " (w). 
 
 " 413 bales of wool guaranteed about similar to samples in selling broker's 
 possession" (o). 
 
 " The cotton guaranteed equal to sample ; should the quality prove inferior 
 to guarantee, a fair allowance to be made " (^). 
 
 Coal " reasonably free from stone and shale " (j). 
 ' " 300 tons fair usual quality Jelutong rubber " (r). 
 
 '< Horses not answering the description must be returned before 5 o'clock on 
 Wednesday" («). 
 
 "Horses warranted good workers, not answering such warranty, to be re- 
 turned before 5 o'clock of the day after the sale, and shall then be tried by a 
 person to be appointed by the auctioneer " (f). 
 
 " Warranted sound " (m). 
 
 " I believe the mare to be sound, but I will not warrant her " (a). 
 
 " Received £10 for a grey 4-year-old colt, warranted sound " {y). 
 
 " You need not look for anything, the horse is perfectly sound " (z). 
 
 " Four pictures, views in Venice. Canaletti " (a). 
 
 As to sale or return. 
 
 " On sale or return " (6). 
 
 " On memorandum," i.e. on approval (c). 
 
 (Z) Walker v. Shaw, [1904] 2 K. B. 152 (custom of London Corn Exchange). 
 
 (m) Wallis v. Pratt, [1911] A. C. 394, H. L. 
 
 (m) Vigers v. Sanderson (1901), 6 Com. Gas. 99. 
 
 (o) Heyworth v. Hutchinson (1867), L. E. 2 Q. B. 447. 
 
 {p) Az&mar v. Casella (1867), L. K. 2 C. P. 677, Ex. Ch. 
 
 (2) Dominion Coal Co. v. Dominion Iron and Steel Co., [1909] 293, P. C, 
 
 (r) Be North Western Rubber Co., [1908] 2 K. B. 907 (usage) ; disapproved. Produce 
 Brokers Co. v. Olympia Oil & Cake Co., [1916] A. C. 814, H. L. 
 
 (s) Head v. Tattersall (1871), L. B. 7 Ex. 7 ; of. Chapman v. Withers (1888), 20 
 Q. B. D. 824. 
 
 (t) Hinchcliffe v. Barwick (1880), 5 Ex. D. 177, C. A. 
 
 (m) Kiddell v. Burna/rd (1842), 9 M. & W. 668 ; Holyday v. Morgan (1858), 28 
 L. 3. Q. B. 9. For lists of defects constituting unsoundness, see BenjamiiM on Sale, 
 ith ed., p. 616. 
 
 (x) Wood V. Smith (1829), 5 M. & E. 124. 
 
 (y) Budd V. Fairmamer (1831), 8 Bing. 48 ; Anthony v. Halstead (1877), 37 L. T. 
 (N.S.) 433. 
 
 (2) Schawel v. Eeade, [1913] 2 Ir. Eep. 64, H. L. 
 
 (a) Power v. Barham (1836), 4 A. & E. 473 ; cf. Hyslop v. Shirland (1905), 7 P. 
 875, Court of Session (artist's name specified in receipt). 
 
 (b) Kirkham v. Attenborough, [1897] 1 Q. B. 201, C, A. 
 
 (c) Bevinglon v. Dale (1902), 7 Com. Cas, 112. 
 
NOTES. 189 
 
 " On approbation, or sale for net oash or return " (d). 
 
 " If steamer not approved of, deposit to be returned immediately " (e). 
 
 Note C. — Deuveky to Cauriee. 
 
 Delivery to carrier. — Frequent reference bas been made to the rule that 
 delivery of goods to a carrier is prima facie a delivery to the buyer, a perfor- 
 mance of the seller's contract which passes both the property and the risk to the 
 buyer. It follows that as a rule if the goods are lost or destj^oyed, the buyer or 
 consignee is the proper person to sue the carrier. The most authoritative state- 
 ment of the principle is in the judgment of the House of Lords in Dxmlop v. 
 Lambert, where it was held that if there was a special contract the consignor 
 might sue the carrier though the goods might be the property of the consignee. 
 Lord Cottenham there says : "It is no doubt true as a general rule that the 
 delivery by the consignor to the carrier is a delivery to the consignee, and that 
 the risk is after such delivery the risk of the consignee. That is so if, without 
 designating the particular carrier, the consignee directs that«the goods shall be 
 sent by the ordinary conveyance : the delivery to the ordinary carrier is then a 
 deKvery to the consignee, and the consignee incurs all the risk of the carriage. 
 And it is stUl more strongly so if the goods are sent by a catrier specially pointed 
 out by the consignee himself, for such carrier then becomes his special agent. 
 
 "But, though the authorities all establish the general inference I have 
 stated, yet that general inference is capable of being varied by the circum- 
 stances of any special arrangement between the parties, or of any particular 
 mode of dealing between them. If a particular contract be proved between the 
 consignor and the consignee, and the circumstance of the payment of the freight 
 and insurance is not alone a conclusive evidence of ownership — as where the 
 party undertaking to consign undertakes to deliver at a particular place — the 
 property, tiQ it reaches that place and is delivered according to the terms of 
 the contract, is at the risk of the consignor. And again, though in general 
 the following the directions of the consignee, and delivering the goods to a 
 particular carrier, will relieve the consignor from the risk, he may make such a 
 special contract that, though delivering the goods to the carrier specially 
 intimated by the consignee, the risk may remain with him ; and the consignor 
 may, by a contract with the carrier, make the carrier liable to himself. In an 
 infinite variety of circumstances, the ordinary rule may turn out not to be that 
 which regulates the liabilities of the parties " (/). 
 
 Delivery to carrier to pass property. — This passage is discussed by Blackburn, 
 J., in an instructive judgment in The Calcutta Co. v. Be Mattos, which has 
 often been referred to in the text, but which was too long for insertion there. 
 He says : " What was the effect of the contract as regards the property in the 
 
 (d) Weiner v. Gill, [1905] 2 K. B. 172 ; affirmed, 2 K. B., [1906] 574, C. A. ; dis- 
 tinguished, Weiner v. Ha/rris (1909), 15 Com. Cas. 39, 0. A. 
 
 («) Haegerstrand v. Annie Thomas Steamship Co. (1905), 10 Com. Qas. 67, 
 (/) Duiilop V. La,mbert (1839), 6 CI. & Pin, 603, at pp, 620, 631, 
 
190 APPENDIX II. 
 
 goods aaid the right to the price, from the time of the handing over the shipping 
 documents and paying half of the invoice value ? There is no rule of law to 
 prevent the parties, in cases like the present, from making whatever bargain 
 they please. If they use words in the contract 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 common case where 
 goods are ordered to be sent by a carrier to a port of destination. The vendor's 
 duty is, in such cases, at an end when he has delivered the goods to the carrier, 
 and, if the goods perish in the carrier's hands, the vendor is discharged and 
 the purchaser is bound to pay him the price. If the parties intend that the 
 vendor shall not merely deliver the goods to the carrier, but also undertake that 
 they shall actually be delivered at their destination, and express such 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 «iay have been sustained by the purchaser in consequence of 
 the breach of the vendor's contract to deliver at the place of destination. But 
 the parties may intend an intermediate state of things ; they may intend that 
 the vendor shall deliver the goods to the carrier, and that, when he has done so, 
 he shall have fulfilled his undertaking, so that he shall not be liable in damages 
 for a breach of contract if the goods do not reach their destination ; and yet 
 they may intend that the whole or part of the price shall not be payable unless 
 the goods do arrive. They may bargain that the property shall vest in the 
 purchaser, as owner, as soon as the goods are shipped, that they shall then be 
 both sold and delivered, and yet that the price (in whole or in part) shall be 
 payable only on the contingency of the goods arriving, just as they might, if ' 
 they pleased, contract that the price shoxdd not be payable unless a particular 
 tree fall; but without any contract on the vendor's part in the one case to 
 procure the goods to arrive, or in the other to cause the tree to fall. Where 
 the contract is of this kind, the position of the vendor and purchaser, in case 
 the goods do not arrive, is analogous to that of freighter and shipowner, in the 
 ordinary contract of carriage on board a ship, in case the goods are prevented 
 from arriving by one of the excepted perils. The shipowner is not bound to 
 carry and deliver at all events ; but, though he is excused if prevented by the 
 excepted perils, yet no freight is earned or payable unless the goods are 
 delivered. In the case of freight, also, the question often arises, whether a 
 payment made at the port of shipment is an advance of part of the freight, 
 returnable if the goods are not delivered and freight earned, or is an absolute 
 payment, leaving only the balance contingent on the safe delivery of the goods 
 —a question very analogous to the one that arises on the present contract " [g). 
 •' Carriage forward."— The effect of the ordinary " carriage forward " contract 
 is thus expressed by Mellor, J. . " There is evidence in the present case that 
 
 (g) Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B. 322, at p. 828. See the oases 
 as to pre-payment of freight collected in M'Lachlan on Shipping, p. 443. 
 
NOTES. 191 
 
 these goods were, with the consent or by the authority of the purchaser, 
 consigned, by the vendors, as consignors, to be carried by the defendants as 
 common carriers, to be delivered to the purchaser as consignee, and that the 
 name of the consignee was made known to the defendants at the time of the 
 delivery. Under such circumstances the ordinary inference is that the contract 
 of carriage is between the carrier and the consignee, the consignor being the 
 agent for the consignee to make it. It appears to us that there is evidence also 
 that at the time of the delivery there was a specific mention that the freight 
 was to be paid by the consignee. Under such circumstances the inference is 
 almost irresistible that the contract for carriage in the present case was 
 the ordinary contract for carriage at the risk and under the control of the 
 consignee "(.A). 
 
 (h) Cork Distilleries Co. v. O. S. Bailtuay (1874), L. R. 7 H. L., at p. 277. 
 
INDEX 
 
 "ABOUT," 
 
 as affecting quantity of goods, 82, 186 
 
 ACCEPTANCE, 
 
 under Statute of Frauds (s. 4), 18, 22 
 in performance of contract, 90, 91 
 when wrong quantity delivered, 81, 82 
 after breach of condition, 36, 121 
 after breach of warranty, 121 
 delivery and acceptance as concurrent duties, 76 
 See also Action ; Buyeb, ; Rejection. 
 
 ACCESSOEIES OE ACCRETIONS, 62 
 
 ACT. See Sale op Goods Act. 
 
 ACTION, 
 
 defined, 133 
 
 provisions of Act eiiforceable by, 128 
 breach of warranty of title, 38, 121 
 to recover stolen goods when thief convicted, 70, 71 
 to enforce stoppage in transitu, 106 
 to recover price. 111 
 for non-acceptance, 114 
 for non-delivery, 115 
 for delayed delivery, 91, 118 
 to enforce specific performance 120 
 for conversion or detinue, 9, 106, 119 
 breach of warranty generally, 121 
 breach, of warranty of quality, 121 
 for damages on loss by re-sale, 110 
 effect of judgment in conversion or detinue, 9 
 for not giving bill for price, 109, 110 
 by assignee of bill of lading, 163 
 qwMiti minoris in Scotland, 36, 37, 123 
 option as to tort or contract, 10, 119 
 goods bargained and sold, 112 
 failure of consideration, 125 
 price of beer, &c., consumed on premises, 113 
 See also Damages. 
 
 C.S.G. [ 1 ] 
 
INDEX. 
 
 ACTUAL EECEIPT, 18,22 
 
 AFTEE-ACQUIEED PROPERTY, 
 transfer of, 26, 59, 136 
 
 AGENCY, 
 
 application of general law, 13, 131 
 
 agents to sign under Statute of Frauds (s. 4), 
 
 " Mercantile agent " defined, 147 
 
 of wife, 14, Is 
 
 of master of ship, 15 
 
 agent to sell must not buy MmseH, 3 
 
 effect of, under Factors Act, 150 
 
 del credere agent, 32 
 
 AGREEMENT TO SELL, 
 defined, 2, 8 
 
 distinguished, from sale, 8, 51 
 distinguished from option to sell, 1 n., 157 
 concerning future goods, 25, 26 
 is within Statute of Frauds (s. 4), 19, 21 
 when converted into a sale, 2, 6, 8, 51 
 See Contract op Sale ; Sale. 
 
 ALIEN ENEMY, 16 
 
 "ALL FAULTS," 
 sale with, 187 
 
 "ALL RISKS," 
 
 efiect of insurance against, 88 
 
 ANTECEDENT DEBT, 
 
 transfer of biU of lading for, 107 
 pledge of document of title for, 158 
 
 APPARENT OWNERSHIP, 
 
 does not give title to sell, 64, 67, 146 
 
 APPARENT POSSESSION, 166 
 
 APPROPRIATION, 
 
 of goods to contract, 66, 58-60 
 
 APPROVAL, 
 
 sale on, 55, 58, 188 
 
 ARRESTMENT OR POINDING (Scotland), 96 
 
 ARRIVAL, 
 
 sale of goods " to arrive," 182 
 
 ASSENT, 
 
 to appropriation of goods to contract, 55, 59 
 of seUer to sub-sale, 107, 109 
 
 [ 2 ] 
 
INDEX. 
 
 ASSENT— cowimMed. 
 
 induced by fraud, 3, 10, 69, 70 
 
 wten presumed from delay, 90 
 ASSIGNMENT, 
 
 of future goods, 25, 26, 57, 58 
 
 of document of title, 150, 156 
 
 of contract of sale, 11 
 
 ATTACHMENT IN SCOTLAND, 96 
 ATTORNMENT, 
 
 delivery effected by, 79, 80, 134 
 
 of carrier, to end stoppage in transitu, 103, 104 
 AUCTION, 
 
 rules as to sales by, 129 
 
 auctioneer agent to sign, 24 
 
 BAILEE, 
 
 includes custodier in Scotland, 133 
 
 delivery by attornment of, 134 
 
 buyer or seller as bailee for the other, 22, 60, 97 
 
 seller's lien, when he holds for buyer, 97 
 See Caekieii. 
 BAILMENT, 
 
 distinguished from sale, 4, 7, See also Plebge. 
 BANKEITPTCY. See Insolvency. 
 
 saving for laws of, 131 
 
 BARGAIN, 
 
 sale of, distinguished from sale of goods, 26 
 
 BAEGAIN AND SALE, 
 
 distinguished from sale and delivery, 8, 9, 112 
 
 BARTER, 
 
 distingfuished from sale, 5, 6 
 BEER OR SPIRITS, 113 
 
 BILL OP EXCHANGE, 
 
 as conditional payment, 93, 112 
 
 bill of lading to be exchanged for, 60, 165 
 
 refusal to give for price, 112 
 
 BILL OF LADING, 
 
 the Act of 1855.. 163 
 
 general note on, 108, 164 
 
 distinguished from other documents of title, 80, 108 
 
 effect of transfer on stoppage in transitu, 107, 158 
 
 reservation of jvs disjaonendi by, 60, 61 
 
 symbolic delivery by, 134 
 
 ci.f. contracts, 87 
 
 C 3 ] 
 
INDEX. 
 
 BILL OF SALE, 
 defined, 166 
 
 sMp or share in ship must be transferred by, 17 n. 
 mercantile dooiuuents of title do not constitute, 149, 165 
 saving for law as to, 132 
 
 BREACH OF CONTRACT. See Action ; Damages. 
 BROKER, 
 
 agent to sign, 24 
 
 is within Factors Act, 148 
 
 BUSINESS NAMES, 
 
 where registration required, 17 
 BUYER, 
 
 what the term includes, 1, 133 
 
 when same person as seller, 3 
 
 duty to accept and pay, 76. 77 
 
 duty to tender price, 112 
 
 when bound to fetch goods away, 78 
 
 carrier is agent of, to receive, 22, 84 
 
 right of examination on delivery, 43, 89 
 
 what is an acceptance by, 90 
 
 mode of rejecting goods, 91 
 
 neglecting to take delivery after notice, 91, 92 
 
 actions against, 111 
 
 actions by, 115. And see Action. 
 
 effect of sub-sale by, 106 
 
 obtaining goods or documents before sale, 72, 156 
 
 may be bailee for seller, 60 
 
 when risk passes to, 62 
 
 risk of, if delivery at distant place, 88 
 
 'C.I.F., 
 
 " cost, freight, and insurance," contracts, 86-88 
 CANADA, 144 
 CAPACITY, 
 
 to buy and sell, 12 
 
 distinguished from authority, 13 
 
 CARGO, 
 
 sale of, 87 
 
 " CARRIAGE FORWARD," 190 
 
 CARRIER, 
 
 agent to receive, but not to accept, 22 
 delivery to, to pass property and risk, 56, 59-61 
 reservation of jus disponendi on delivery to, 60 
 
 C 4 ] 
 
INDEX. 
 
 CARRIEKi — continued. 
 
 delivery to, as performance of seller's contract, 84 
 
 necessary risks of transit through, 88 
 
 delivery to, ends seller's lien, 99 
 
 ^PPajre in transitu of goods in possession of, 99-103 
 
 duties of, when seller stops goods, 105, 106 
 
 who is the person to sue, 189 
 
 Lord Cottenham's summary of the law, 189 
 
 goods sent "carriage forward," 190 
 
 CAVEAT EMPTOR, 42, 45, 88 
 
 CHAHGES ON GOODS, 
 
 implied warranty of freedom from, 38, 81. See also Expenses. 
 for warehousing, &c., when buyer delays taking delivery, 91, 92 
 Ust of stipulations judicially construed, 185 
 See oho Mortgage ; Pledge. 
 
 CHAETEEPAETT, - 
 
 effect on stoppage in transitu, 103 
 
 CHATTELS PERSONAL, 136 
 
 CHOSE IN ACTION, 11, 136 
 
 CIVIL LAW. See Eomax Law. 
 
 CLUB, 
 
 supply of liquor to member in, 13 
 liability of members, 17 
 
 CODE NAPOLEON, 
 
 object of citing, Introd., p. x., and numerous citations. 
 
 COERCION, 131 
 
 COGNATE CONTRACTS, 4 
 
 COLONIES, 
 
 adoption of Act by, 144 
 
 COMMiXTION, 
 
 goods mixed after sale, 52 
 
 goods mixed with others not ordered, 81 
 
 COMMON LAW (SAVING FOR), 131 
 
 CONCURRENT CONDITIONS, 77, 176 
 
 CONDITION OF GOODS, 
 defined, 139 
 
 caveat emptor, and its exceptions, 42 
 on sale by sample, 48 
 
 [ 5 ] 
 
INDEX. 
 
 CONDITIONS (IN CONTEACTS OF SALE), 
 general note on, 175, 176 
 sale may be subject to, 1, 2, 6, 7 
 suspensive or resolutive, 6, 59, 176 
 implied by law, how negatived, 126 
 fulfilment of, prevented by opposite party, 37 
 waiver of, 36, 37, 38 
 when to be treated as warranty, 36 
 contrasted with warranty, 34, 37, 177 
 construction of express, 34, 181 
 list of express, judicially construed, 182-189 
 implied, on sale by description, 40 
 implied, as to quality or fitness, 42-47 
 implied, on sale by sample, 48 
 implied, as to title, 38 
 
 payment and delivery usually concurrent, 77 
 stipulations as to time, 33, 184 
 conditional acceptance, 91 
 
 goods on approval, or on sale or return, &o., 55, 56, 58 
 conditional delivery, 60 
 impossibility of performance, 29 
 all reasonable, are implied, 80 
 cdnditional payment, 93, 112 
 when called warranties, 34, 36 
 waiver of, 37, 38, 126 
 
 See also PEEroKMANCE ; Wabeanty. 
 
 CONDUCT, 
 
 sale implied from, 10, 17, 126. See Estoppel. 
 
 CONFLICT OF LAWS, 
 
 as to title or property, 11, 12, 143, 144 
 as to evidence, 12, 20 
 construction of biU of lading, 165 
 
 CONSIGNATION INTO COURT, 131 
 
 CONSTRUCTION OF ACT, 143 
 
 CONSTRUCTION OF CONTRACT, 
 as sale or cognate contract, 4 
 with Tef erence to usage, 43, 126, 127 
 rule, when in writing, 181 
 express terms may negative implied, 43, 127 
 e&ct of representations, 34, 35 
 rule of caveat emptor, 4Si 
 presumption against credit, 77 
 as to Statute of Frauds, 18-25 
 effect of sample on, 22, 40, 48 
 
 [ 6 ] 
 
INDEX. 
 
 CONSTRUCTION OP GO-^T^KQI— continued. 
 intention to pass property, 52, 143 
 reasonable price, 30, 31 
 reasonable time, 128 
 reasonable hours, 79, 81 
 
 list of stipulations judicially construed, 182-189 
 See also Maxims ; Conditions ; Warranties. 
 
 CONSTRUCTIVE POSSESSION OR DELIVERY, 79, 80, 134 
 
 CONTRACT, 
 
 note on definition of, 174 
 saving for general law of, 2, 131 
 
 CONTRACT OF SALE, 
 defined, 1, 2, 133 
 
 includes sale and agreements to sell, 1, 2, 8 
 distingnisbed from barter, work and materials, &c., 5, 6 
 otter cognate contracts, 4-8 
 is consensual and b'Uateral, 2, 3, 76 
 how created, 17 
 
 may be implied from conduct, 17, 126 
 for £10 and upwards, 18-24 
 for more than one year, 20 
 subject-matter of, 25-30 
 the consideration for, or price, 30-33, 112 
 
 conditions and warranties, 33-50. And see Conditions ; Warranties. 
 transfer of property by, 50-61 
 incidence of risk, 62. And see Rise. 
 transfer of title by, 64-75 
 performance by seller and buyer, 76-92 
 rights of unpaid seller agaiast goods, 93-109 
 resale by seller or buyer, 106-109 
 seller's remedies by action, 111-115, 123 
 buyer's remedies by action, 115-125 
 auction sales, 129 
 
 exemption from stamp duty, 187, 188 
 assignment of, 11 
 quasi-contracts of sale, 9, 10 
 conflict of laws, 11. See Conflict op Lavs. 
 
 /See Construction; Maxims; Statute op Frauds. 
 
 CONVERSION OP GOODS, 9, 12, 106, 119 
 
 CONVEYANCE, 
 
 included ia sale, 1, 8 
 
 satisfied judgment in trover or detinue operates as, 9 
 
 [ 7 ] 
 
INDEX. 
 
 CO-OWNERS, 
 
 sale by one to another, 3, 5 
 
 rights inter se, 67 
 COKPOBATIONS, 
 
 saving for law as to, 17, 18 
 "COST, INSUEANCE, AND PEEIGHT," 8 
 
 COUNTY COURT, 
 
 Statute of Frauds (s. 4) to be pleaded, 20 
 when writ of execution binds goods, 75 
 
 COURSE OF DEALING, 126 
 
 CREDIT (SALE ON), 
 
 presumption against, 77, 78 
 
 effect of, on seller's lien, 96 
 
 how if buyer become insolvent, 97 
 
 does not effect stoppage in transitu, 100 
 
 action for price, 111, 112 
 
 effect of agreement to give bill of exchange, 112 
 
 list of stipulations judicially construed, 183 
 
 CRIMINAL APPEAL ACT, 
 
 re-vesting of stolen goods, 71, 171 
 
 CUSTODIER, 133 
 
 CUSTOM OF TRADE, 126. See Usage. 
 
 CUSTOMS DUTIES, 
 
 effect of alteration of, on price, 32, 170 
 
 DAMAGES (MEASURE OF), 
 
 action for price and interest, 111-113, 123 
 action for non-acceptance, 114 
 action for non-delivery or delay, 115, 118 
 action for conversion or detinue, 119 
 action for breach of warranty of title, 38, 121 
 action for breach of warranty of quality, 121 
 rule as to special damage and interest, 123 
 general and special damages compared, 124 
 evidence in mitigation of, 124 
 agreed or liquidated damages, 116, 118 
 seller not making proper contract with carrier, 85 
 delay by buyer in taking delivery, 91, 92 
 in case of re-sale, 109, 110 
 rate of exchange; 125 
 See Action. 
 
 DANGEROUS GOODS, 
 
 seller's duty as to, 44, 47, 123 
 
 C 8 ] 
 
INDEX. 
 
 DECLARATION OF TRUST, 
 
 distin^shed from gift, 5 
 DEFENDANT, 
 defined, 134 
 BEL GBEBEBE AGENT, 32 
 DELAY, 
 
 in taking deKvery, 91, 92, 118 
 in making delivery, 118 
 at opposite pariy's request, 24, 25 
 DELIVERABLE STATE, 
 meaning of, 142 
 
 expenses of putting goods into, 79 
 DELIVERY, 
 definition, 134 
 actual or constructive, 134 
 symbolic, 134 
 
 goods in possession of third person, 79, 84, 134. See Cabriee ; Bailee. 
 by delivery of key, 79, 134 
 by mistake, 135 
 
 property may pass without, 8, 9, 53 
 reservation oijus disponendi, 60 
 duty of seller as to, 76-78 
 how effected, 78, 79 
 time, place, and hour, 79-81 
 wrong quantity of -goods, 81 
 goods mixed with others not ordered, 81 
 instalment deliveries, 82 
 
 risk when at distant place, 88. See also Risk. 
 right of buyer to examine on, 89 
 damages for delay in taking, 91, 92, 118 
 damages for non-delivery, 115-118 
 partial delivery, 81, 98, 104. See Pam Delivery. 
 construction of stipulations as to, 181, 182 
 list of stipulations judicially construed, 182-185 
 anticipation of, 103 
 as required, 80, 184 
 to carrier, 84, 189 
 expenses of delivery, 79, 81, 184 
 
 seller's right to withhold, 98, 99. See also Seller's Lien. 
 c.i.f . or f.o.b. or ex-ship, 86-88 
 DELIVERY ORDER, 
 
 is a docoment of title, 107, 149 
 stamp on abolished, 171 
 common law effect of, 80 
 under Factors Act, 149. See Factors Act. 
 
 [ 9 ] 
 
INDEX. 
 
 DEPOSIT, 
 
 nature and efEect of, 31. See also Babnest. 
 
 DESCRIPTION, 
 
 sale of goods by, 40, 49 
 errors in, 18, 41 
 
 DESTINATION, 
 
 meaning of, 104 
 
 DESTRUCTION OF THING SOLD, 
 before sale, 27 
 
 after agpreement to sell, but before property passes, 28, 87 
 in other cases, 62. See also Risk. 
 in hands of carrier, 84, 85 
 
 DETINUE, 
 
 effect of satisfied judgment in, 9 
 
 when buyer may maintain action for, 119 
 
 DISPOSAL, 
 
 reservation of right of, 60 
 
 DISPOSITIONS, 
 
 by seller or buyer in possession of goods or documents, 72, 107, 156 
 by mercantile agents, 150 
 
 DISTRAINOR, 
 
 buying goods distrained, 3 n. 
 
 DIVISIBLE CONTRACT, 
 
 warranties, or conditions, 36, 45, 82 
 instalment deKveries, 82, 98, 116 
 seller's lien, 97, 98 
 lots at an auction, 129 
 
 DIVORCED WOMAN, 15 
 
 DOCK WARRANT, 
 
 definition of, and stamp, 187, 188 
 
 common law efEect, 80 ' 
 
 is a document of title, 135, 149 
 
 effect of Factors Act, 150-156. See Factors Act. 
 
 DOCUMENT OF TITLE, 
 defined, 135, 149 
 common law efEect, 80, 108 
 
 efEect of Factors Act, 150-156. See Factors Act. 
 provisions of Stamp Act, 169, 170, 171 
 • outside Bills of Sale Act, 150 
 efEect on seller's lien on stoppage in transitu, 107, 158 
 derivative documents, 153 
 
 I 10 3 
 
INDEX. 
 
 DRUNKEN MAN, 
 sale by or to, 14 
 DURESS, 131 
 
 EARNEST, 17, 23 
 ELECTION, 
 
 to appropriate goods to contract, 66, 59 
 EMBLEMENTS, 
 
 treated as goods, 136, 137 
 EMPTIO 8PEI, 26 
 
 EQUITABLE ASSIGNMENT, 26. See also Assignment. 
 ESTOPPEL, 
 
 against owner wtere goods sold by another, 64 
 
 seller assenting to snb-sale, 107 
 
 sale constituted by, 10, 17, 35 
 EVIDENCE, 
 
 to explain or annex incidents to sale, 18, 126, 127 
 
 to avoid contract, 18, 24 
 
 in mitigation of damages, 124 
 
 of readiness to deliver or pay, 78 
 
 to connect documents, inadmissible, 23 
 
 to support action, 113, 115. See also Conflict op Laws ; Fkauds (Statute 
 or). 
 
 EX-SHIP, 88 
 
 EXAMINATION (BUYER'S RIGHT OF), 
 
 in general, 89 
 
 on sale by sample, 48 
 
 efEect on rule of caveat emptor, 43, 47 
 EXCHANGE, 
 
 rate of, in damages, 125 
 EXCHANGE OF GOODS, 
 
 distinguislied from sale, 7, 8 
 
 efEect of, under Factors Act, 154 , " 
 
 EXCISE' DUTIES, 
 
 efEect of alteration of, on price, 32, 170 
 
 EXECUTED AND EXECUTORY CONTRACTS, 4, 10, 11, 133 
 
 EXECUTION CREDITOR, 
 
 title as against purchaser, 74 ^ 
 
 rights against bill of sale holder, 166 
 
 EXECUTOR, 
 
 power to sell assets, 65 n. 
 buying testator's goods, 5 
 
 [ 11 ] 
 
INDEX. 
 
 EXPECTANCY, 
 sale of, 25, 26 
 
 EXPENSES, 
 
 of delivery, 79, 81. See also Chakges. 
 of stoppage in transitu, 105, 106 
 
 F. O. B. ( = " free on board "), 
 nature of contract, 86, 88, 184 
 
 FACTORS ACT, 1889, 
 history of legislation, 146 
 mercantile agents, 147 
 possession and goods defined, 148, 149 
 documents of title, and mode of transfer, 149, 158 
 derivative documents, 153 
 definition of pledge, 150 
 sale or pledge by mercantile agent, 150 
 revocation of agenf s authority, 152 
 pledge of document deemed pledge of goods, 153 
 pledge, for antecedent debt, 153 
 consideration for sale or pledge, 154 
 exchange of goods or documents, 154 
 agreements through clerks, 155 
 consignee's Hen, 155 
 
 seller remaining in possession of goods or documents, 156 
 buyer getting possession of goods or documents, 156 
 ti-ansfer of document as affecting Uen or right of stoppage, 158 
 rights between principal and agent, 159 
 savings as between owner and his agent, 159 
 set-ofE against agent, 159 
 common law powers of agent saved, 160 
 repeal of previous Acts, 160 
 application and commencement, 160 
 
 FACTORS (SCOTLAND) ACT, 1890.. 162 
 
 FAILURE OF CONSIDERATION, 125 
 
 FALSEi PRETENCES, 
 
 goods obtained by, 12, 69-71 
 
 FATHER, 
 
 necessaries supplied to child, 15 
 
 FAULT, 
 
 defined, 136 
 
 FI. FA., 
 
 effect of writ on buyer's right, 74 
 
 [ 12 ] 
 
INDKX. 
 
 piNmjv(i, 
 
 no title by, W> 
 
 FITNESS FOR PARTICULAR PURPOSE, 
 
 implied condition, 42, 122 
 FIXTURES, 
 
 how far treated as gooda, 126, 137 
 FRANCE (LAW OP). He« Code Napoleon. 
 FRAUD, 
 
 what con«titute8, 141 
 
 Having for law aft to, 1.31 
 
 doctrine of " legal fraud " exploded, 141 
 
 effect of fraudulent representation, 35, 128 
 
 seller knowinf; he has no title, 38, 69 
 
 Hale under voidable title, 69 
 
 r<)-ve«ting, on conviction, for larceny, 70 
 
 in auction saleg, 129 
 
 parole evidence to pr/jve, 18 
 
 fraud by third party, 10 
 
 FRAUDS (STATUTE OF), 
 repealofs. 17..20, 145 
 provinionH substituted for, 18, 20, 21 
 general effect (s, 17), 20 
 amended by Lord Tenterden'a Act, 21 
 the Acts set out, 20, 21 
 
 compared with «. 4 of Sale of Goods Act, 20, 2 J 
 contracts for more than a year, 20 
 " contract of sale," 21 
 " goods, wares, and merchandise," 21, 137 
 price or value, 20, 21 
 several articles making up £10 . . 22 
 " allowed to be good," 21 
 acceptance, 18, 21, 22 
 actual receipt, 18, 22 
 part of goods, 18, 22 
 earnest, 23 
 
 part pjiyment, 18, 19, 23 
 note or memorandum, 18, 23 
 signature, 23 
 agents to sign, 21, 24 
 parties to be charged, 21 
 auctioneers, 24 
 
 brokers, their notes and contracts, 24 
 rescission or variation of contract, 25 
 agreements relating to land, &o. (s. 4), 137, 138 
 effect of writs of execution (s. 16), 74 
 
 [ 13 J 
 
INDEX. 
 
 FRAUDS (STATUTE 0¥)— continued. 
 must be pleaded, 20 
 part of, lex fori, 20 
 does not apply to Scotland, 19, 20 
 
 FREE ON. BOARD, 86 
 
 FREIGHT, 
 
 effect of Ken for, 163 
 
 " cost, insurance and freight," 86 
 
 FUTURE GOODS, 
 definition of, 25, 136 
 contract for sale of, 25-27 
 when property in, passes, 56, 57, 59 
 
 GENERIC GOODS, 51, 56, 59, 140 
 GERMAN CODE, Introd., p. x. 
 GIFT, 7 
 
 GOOD FAITH, 
 
 meaning of, 141 -J 
 
 GOODS, 
 
 defined by the Act, 136 
 
 how far equivalent to " goods, wares, and merchandise," 137 
 
 specific and generic goods, 51, 59, 140 
 
 existing and future, or after-acquired goods, 25-27, 136 
 
 re-sale of perishable, 109 
 
 destruction of, before sale, 28, 29, 87 
 
 documents of title to, 135. See Documents of Title. 
 
 pledge of document deemed pledge of goods, 153 
 
 delivery of wrong quantity or mixed, 81 
 
 exchange of, 7, 154 
 
 See also Factors Act. 
 
 GROWING CROPS OR TIMBER, 137 
 
 GUARANTEE FOR PRICE, 25, 169 
 
 HIRE-PURCHASE AGREEMENTS, 157 
 
 HORSES, 
 
 Act relating to sale of, 68 
 representations as to, 35 
 warranties judicially construed, 188 
 
 HOURS FOR DELIVERY, 79, 81 
 
 HYPOTHEC, 
 
 saving for law of, in Scotland, 132 
 
 [ 14 ] 
 
INDEX. 
 
 HYPOTHECATION (LETTER OF), 
 distinguished from pledge, 7 
 outside Bills of Sale Act, 167 
 
 ILLEGALITY, 
 
 saving for rules as to, 131, 132 
 supervening after contract, 29 
 
 IMPLIED TERMS, 
 
 how negatived, 126, 127 
 as to title, 38 
 
 as to quality and fitness, 42, 47 
 on sale by sample, 48 
 implication of reasonable conditions, 80 
 See also Usage. 
 
 IMPOSSIBILITY, 
 
 an excusing performance of contract, 28, 29, 37 
 rule for test of, 181, 182 
 
 INDEPENDENT AGREEMENTS, 82-84, 177 
 See also Waeranty. 
 
 INDIA, 
 
 law of sale in, 144 
 
 INDUSTRIAL GROWING CROPS, 137 
 
 INFANT, 
 
 liability for necessaries, 12, 14, 16 
 liability of father or mother, 15 
 
 INNKEEPER, 
 
 power to seU goods left with, 65 n. 
 
 INSOLVENCY, 
 
 what constitutes, 142 
 seller's Ken when buyer insolvent, 94, 97 
 right of stoppage in transitu, 94, 100 
 re-sale when buyer insolvent, 106-110 
 saving for bankruptcy laws, 131 
 
 INSPECTION (RIGHT OF), 89. See Examination. 
 
 INSTALMENTS, 
 
 breach of contract for delivery by, 83, 98 
 buyer generally need not accept, 82, 83 
 measure of damages, 116 
 seller's Hen, 98 
 
 INSURANCE, 
 
 seller's duty as to, 85-88 
 
 [ 15 J 
 
INDEX. 
 
 INTENTION TO PASS PROPERTY 
 is effectual when clear, 52, 143 
 rules for ascertaining, 64 
 
 INTEREST, 
 
 when recoverable as damages, 113 
 saving for rules as to. 111, 123 
 rule in Scotland, 111, 113 
 
 INTERPRETATION ACT, 1889.. 143 
 
 JOINT OWNERS. See Co-ownehs. 
 
 JUDGMENT, 
 
 effect of satisfied, 9 
 
 JUS, 
 
 in ^personam, 2, 8 
 ad rem, 54, 58 
 in rem, 2, 8 
 
 JUS DISPONENDI. 
 reservation of, 60, 100 
 
 KEY, 
 
 delivery of goods by giving, 79, 134 
 
 KNOCK OUT, 
 
 at auction sale, 130 
 
 LAND, 
 
 sale of things attached to, 137, 138 
 
 LARCENY ACT, 1916, 
 
 re- vesting of goods in true owner, on conviction, 68, 70, 71 
 material provisions set out, 172 
 
 LAW MERCHANT, 131. See IJsage. 
 
 LEGAL TENDER, 112 
 
 LICENCE TO SEIZE, 
 
 taking under, is a delivery, 26, 135 
 as bill of sale, 166 
 
 LIEN, 
 
 arises by implication of law, 94, 127 
 distinguished from property in goods, 139 
 of consignee under Factors Act, 155 
 of unpaid seller, 94. See Seller's Lien. 
 of carrier, 105 
 
 .LIS PENDENS, 
 
 does not affect goods, 74 
 
 [ 16 ] 
 
INDEX. 
 
 LOSS OF GOODS, 
 
 on whom risk falls, 62-64. See Risk. 
 
 no title by finding, 66. See also Stolen Goods. 
 
 c.i.f. contract, 87 
 
 goods perishing before sale, 27-29 
 LUNATIC, 13 
 
 MAKER OR MANUFACTURER. See Manufactured Article. 
 MANUFACTURED ARTICLE, , 
 
 impKed warranty of fitness for purpose, 42 
 
 warranty of merchantable quality, 43 
 
 warranty that it is seller's own make, 45 
 
 warranty as to trade-mark, 45, 167 
 
 when property in, passes to buyer, 55, 57 
 
 risk when delivery at distant place, 88 
 See also Future Goods. 
 
 MARKET OVERT, 
 rules as to sales in, 67 
 recovery of goods sold in, when thief convicted, 68, 70 
 
 MARKET PRICE, 
 
 distinguished from reasonable price, 30 n. 
 measure of damage for non-acceptance, 114 
 measure of damage for non-delivery,"' 115 
 
 MARRIED WOMAN, 
 power to contract, 14 
 authority to bind husband, 15 
 liability for child; 15 
 sale to husband, 3 
 divorced woman; 15 
 
 MASTER OF SHIP, 
 
 power to bind owner for necessaries, 15 
 special power of sale by, 65 n. 
 duty as to stoppage in transitu, 105 
 when agent of buyer, 103 
 See Carrier. 
 
 MAXIMS, 
 
 AUerius circumventio alio nonprsebet actionem, 129 n. 
 
 Caveat em/ptor, 42, 45 
 
 every reasonable condition is implied, 80 
 
 Expressum, facit cessare taciturn, 126 
 
 Falsa demonstratio non nocet, 41 
 
 Fraus omnia vitiat, 35 
 
 C.S.G. f 17 ] P 
 
INDEX. 
 
 MAXIMS— conW«M«rf. 
 
 Genua rmnquam pent, 27 
 
 Locus regit actum, 12 
 
 Modus et conventio vincuni legem, 126 
 
 Nemo dat quod non habet, 66, 146 
 
 Possession vaut titre, 66, 146 
 
 Bes jperit domino, 62 
 
 Si ces pro aura veneat, non valet, 41 
 
 Simplex commendatio non obligat, 35 
 
 Solutio pretii emptionis loco hahetur, 9 n. 
 
 Verba fortius accipiuntur contra proferentem, 127 
 
 MEASURE OP DAMAGES. See Damages. 
 
 MEASUREMENT, 
 
 ■when property does not pass before, 55 
 
 MEMORANDUM IN WRITING, 
 Tinder Statute of Erauds (s. 4), 19, 23 
 effect on verbal warranty, 34, 35 
 parol evidenoe to explain, &o., 18, 25 
 
 MERCANTILE AGENT, 
 
 defined by Factors Act, 73, 147 
 effect of dispositions by, 72, 73, 150 
 acting in two capacities, 148 
 agreements with clerk of, 155 
 
 MERCHANDISE MARKS ACT, ' 
 warranty implied by, 167 
 
 MERCHANTABLENESS, 
 implied condition, 43-47, 121 
 
 MINOR, 
 
 liability for necessaries, 12, 14, 16 
 
 liability of parent, 15 
 MISREPRESENTATIONS, 35, 131, 141 
 
 MISTAKE, 
 
 delivery by, 135 
 
 contract induced by, 18, 131 
 
 MITIGATION or DAMAGES, 124 
 
 MIXED GOODS, 
 
 transfer of property not affected, 52 
 goods mixed with others not ordered, 81 
 
 MONEY, 
 
 not included in " goods," 136, 137. See Price. 
 
 MONTH, 
 
 means calendai- month, 33 
 
 [ 18 1 
 
INDEX. 
 
 "MORE OR LESS," 82,186 
 MORTGAGE, 
 
 defined, 7 
 
 Act does not extend to, 132 
 
 distingnislied from sale, 7 
 
 distingaislied from pledge, 8 
 
 NECESSARIES, 
 
 meaning' of term, 12, 16 
 
 supply of, to infant, 12, 14 
 
 supply of, to other incapable persons, 12, 13, 14 
 
 supply of, to married woman, 14, 15 
 
 supply of, to sMp, 15 
 
 parent and child, 15 
 NEGOTIABLE INSTRUMENT. 
 
 See BrLL of Exchajjge; Bill of Lading. 
 NON-ACCEPTANCE, NON-DELIVERT. See Action ; Damages. 
 NOTE IN WRITING, 
 
 under Statute'of Frauds, 18, 19, 23. See Memoeandtjm. 
 NOTICE, 
 
 of stoppage in transitu, 105 
 
 meaning of, in Factors Act, 152 
 
 of intention to re-sell, 110 
 
 OWNER (TRUE), 
 
 sale ipthout consent of, 64 
 
 recovery of stolen goods by, 70 
 
 saving of rights under Factors Act, 159 
 
 sale by estoppel, 10 
 OWNERSHIP, 
 
 transferred by sale, 2, 8, 8 
 
 distinguished from special property, 138 
 
 effect g^ven to apparent, by Factors Act, 64 
 See PaoPEBTT. 
 
 PARENT AND CaiLD, 15 
 PART ACCEPTANCE, 
 
 when wrong quantity delivered, 81 
 
 when right quantity tendered, 82 
 
 to satisfy Statute of Frauds, 18, 22, 23 
 PART DELIVERY, 
 
 instalment contracts, 82 
 
 tender of wrong quantity, 81 
 
 effect on seller's lien, 98 
 
 effect on stoppage in transitu, 104 
 
 [ 19 ] 
 
INDEX. 
 
 PAET DESTEUCTION, 28 
 
 PART OWNER,!, 3. See Co-owee. 
 
 PAET PAYMENT, 
 
 does not divest lien or right of stoppage, 97 
 to satisfy Statute of Frauds, 19, 23 
 
 "PAETIES TO BE CHAEGED," 19, 21 
 
 PATENT DEFECT, 44, 46 
 
 PATENT OE TEADE NAME, 42 
 
 PAWN. See Pledge. 
 
 PAYMENT, 
 
 duty of buyer, 76, 77, 111 
 
 usually concurrent condition with delivery, 77 
 
 action for non-payment, 111-113 
 
 refusal to accept and pay, 114 
 
 by negotiable instrument, 112, 165 
 
 stipulations as to time of, 33 
 
 instalment contracts, 83 
 
 part payment under Statute of Frauds, 19, 23 
 
 effect of deposit, 31 
 
 tender of, 112 
 
 evidence to prove, 113 
 See also Price. 
 PEEFOEMANCB OP THE CONTEACT, 
 
 duties of seller and buyer, 76, 112 
 
 payment and delivery as concurrent conditions, 77 
 
 rules as to- delivery, 78 
 
 delivery of wrong quantity or mixed goods, 81 
 
 instalment contracts, 82 
 
 delivery to carrier, 84, 103 
 
 risk of goods delivered at distant place, 88 
 
 buyer's right of examining the goods, 89 
 
 acceptance by buyer, 90 
 
 mode of rejecting goods, 91 
 
 default of buyer in taking delivery, 91 
 
 specific, may be decreed, 120 
 
 substituted performance, 25 
 
 effect of impossibility, 29 
 PEEISHABLE GOODS, 
 
 re-sale on buyer's default, 109 
 PEESONAL CHATTELS, 136 
 PLACE OP DELIVEEY, 78, 80 
 PLACE OF PAYMENT, 112 
 
 [ 20 ] 
 
INDEX. 
 
 PLAINTIFF, 
 
 defined, 138 
 PLEDGE, 
 
 common law definition,; 7, 8 \ 
 
 Act does not apply to, 132 
 
 distingTiisted from sale, mortgage and lien, 7, 8, 139 
 
 definition under Factors Act, 150 
 
 effect of pledge of documents, 150, 153 
 
 for antecedent debt, 153 
 
 powers of mercantile agent, 150 
 
 by seller in possession of goods or documents of title, 72, 156 
 
 by buyer in possession of goods or documents of title, 72, 166 
 
 of biU of lading, 107, 108 
 
 unpaid seller's lien compared with, 94, 95 
 
 effect on stoppage in transitu, 107, 108, 158 
 PLEDGEE, 
 
 of biU of lading not liable for freight, 163 
 POSSESSION, 
 
 actual or constructive, 134 See Deliveby. 
 
 possession vaut titre, 66, 146 
 
 defined by Factors Act, 148 
 POTHIER, 
 
 as an authority in England, Introd., p. x. 
 
 PRICE, 
 
 defined, 1, 30 
 
 rules for ascertaining, 30, 31 
 
 reasonable price, 30, 81 
 
 alternative in nature of wager, 30 
 
 agreement for valuation by third party, 32 
 
 £10 and upwards, 18-22 
 
 statement of, in note or memorandum, 23 
 
 deposit, 31 
 
 tender of, 112 
 
 action for, by seller, 111 
 
 rights of seller if whoUy or in part unpaid, 94 
 
 rights of sub-purchaser on paying, 98, 110 
 
 reserve or upset at auction sale, 129 
 
 list of stipulations judicially construed, 185 
 
 effect of alteration of customs or excise duties, 32, 170 
 
 And see Payment ; Seliek's Lien ; Stoppage in Tsansittj. 
 
 PRINCIPAL AND AGENT. See Agency. 
 
 PROPERTY, 
 defined, 138 
 
 distinguished from right to possession, 139 
 
 [ 21 ] 
 
INDEX. 
 
 VROFEWiY— continued. 
 sale is a transfer of, 1, 2, 8 
 when it passes to buyer, 51, 64. See Tkansfek. 
 •n^prim&fade goes with, 62 
 property by estoppel, 10 
 
 PUFFER, 
 
 at auction sales, 129, 130 
 
 QUALITY, 
 
 includes condition of goods, 139 
 
 caveat emptor, and its exceptions, 35, 42 
 
 damages for breach of warranty of, 121 
 
 sales by sample, 48 
 
 express warranties, 34, 43 
 
 list of stipulations judicially construed, 187 
 
 QUANTITY, 
 
 delivery of wrong quantity, 81 
 
 list of expressions judicially construed, 186 
 
 QUASI-CONTRACTS OF SALE, 9-11, 13 
 
 READINESS, 
 
 to pay or deliver, how proved, 78 
 
 READY MONEY, 
 
 presumption that sale is for, 77, 78 
 
 REASONABLE, 
 hours, 79, 81 
 time, 128 
 price, 30, 31 
 
 RECEIPT, 
 
 " actual receipt " in Statute of Frauds, 18, 22 
 for money paid, 168, 170 
 
 REJECTION, 
 
 right of, for breach of condition, 36 
 mode of rejecting goods, 91 
 when allowed for breach of warranty, 36, 121 
 saving for right in Scotland, 36 
 iSee Retubn. 
 
 REPEALS, 
 
 by Sale of Goods Act, 131, 145 
 by Factors Act, 160 
 
 REPRESENTATIONS, 
 
 different kinds and their effect, 35, 141 
 
 See also False Pretences ; Fbaud ; WAUUANiy, 
 [ 22 J 
 
INDEX. 
 
 REPUDIATION OF CONTRACT, 36, 81, 82, 92 
 
 BES PEBIT DOMINO, 62 
 
 RE-SALE, 
 
 by seUer, 72, 94, 109 
 
 by buyer, 72, 106 
 
 effect of sub-sale on damages, 124 
 RESCISSION OP CONTRACT, 
 
 by mutual consent, 24, 38 
 
 by consent when buyer insolvent, 98 
 
 if there be a resolutive condition, 7, 49, 110 
 
 on exercise of lien or right of stoppage, 109 
 
 non-performance of instalment-contract, 82, 83 
 
 in case of fraud, 35, 130, 141 
 RESOLUTIVE CONDITIONS, 7, 49, 58, 109 
 RETENTION (RIGHT OF), 
 
 corresponds with Hen in England, 138 
 
 former Scotch rule, 95 
 
 RETURN or GOODS, 
 
 not necessary on rejection, 91 
 
 goods on approval or' sale or return, 55, 58, 188 
 
 claim for breach of warranty without, 123 
 
 RISK, 
 
 general incidence of, 62-64 
 
 goods delivered to carrier, 84, 189 
 
 delivery at distant place, 88 
 
 destruction of goods before sale complete, 27-29 
 
 duty as to insurance, 85-88 
 
 c.i.f. contracts, 87 
 
 f.o.b. contracts, 86 
 
 ROMAN LAW, 
 
 weight of, in England, Introd., p. xi., and numerous citations. 
 
 SALE, 
 
 defined, 1, 2 
 
 general nature of, 3 
 
 relation to other contracts, 4-6 
 
 absolute or conditional, 1, 6 
 
 distinguished from agreement to sell, 2, 8 
 
 includes bargain and sale, and sale and delivery, 2, 9, 139 
 
 where agreement to sell becomes, 2, 8 
 
 destruction of goods before, 27-29 
 
 included in " contract of sale," 1, 2, 133 
 
 distinguished from exchange, 5 
 
 exemption from stamp duty, 169 
 
 C 23 J 
 
INDEX. 
 
 SALE — continued. 
 
 subject-matter of, 25 
 
 by sample, 48 
 
 by auction, 129 
 ^ on trial or approval, 55, 58, 188 
 
 ofhorses, 68, 188 
 
 See also Conteaot op Sale. 
 SALE OF GOODS ACT, 
 
 History of Act. See Introd., p. vii. 
 
 Short title, 143 
 
 Commencement, 142 
 
 savings, 131 
 
 definitions, 133-142 
 
 repeals, 131, 135 
 
 canon for construction of, 143 
 
 general operation of, 143 
 
 adoption in colonies, 144 
 
 SALE OR RETURN, 
 
 rules as to, 55, 58 
 
 stipidations as to, judicially construed, 188 
 SAMPLE, 
 
 nature and function of, 49 
 
 rules as to sale by, 48-50 
 
 goods must accord with description, 40, 50 
 
 bulk sample to satisfy Statute of Frauds, 22 
 
 wrong sample shown by mistake, 18 
 SAVINGS, 
 
 under Sale of Goods Act, 131 
 
 under Factors Act, 159, 160 
 SCOTCH LAW, 
 
 differs from English, Introd., p. ix. 
 
 property did not pass tUl delivery, 54 
 
 warranty of title, &c., 39 
 
 no warranty that goods are of seller's own make, 45 
 
 warranty of quality, 47 
 
 conditions and warranties, generally, 36, 122, 140 
 
 right of rejection, 36, 122, 131 
 
 consignation or payment into court, 131 
 
 no rule of market overt, 68 
 
 arrestment or poinding, 96 
 
 seller's right of retention, 94, 95, 138 
 
 stoppage in transitu, 95, 96 
 
 recovery of interest on price. 111, 113 
 
 specific implement, 120 
 
 damages for non-delivery, 117 
 
 [ 24 ] 
 
INDEX, 
 
 SCOTCH 1,A-W— continued. 
 
 Statute of Frauds does not apply, 19, 20 
 application of Factors Act, 162 
 applications of definitions, 133-142 
 
 SEA TRANSIT, 85-88 
 
 See also Shipment. 
 
 SEAL, 
 
 when required, 17, 18 
 
 stamp when contract under, 169 n. 
 
 SEXjXiESi, 
 
 defined, 140 
 
 same person as buyer, 3 
 duty to deliver, 76-90. See Dbliverv. 
 liability of, if he refuses to take back rejected ^oods, 91 
 when deemed to be unpaid, 93 
 rights of, when unpaid, against the goods, 94 
 re-sale by, when buyer in default, 109, 110 
 left in posse'Ssion of goods or documents, 72, 156 
 remedies by action, 111-115, 123 
 actions against, 115-124. See Action. 
 may be bailee for buyer, 100, 102, 134 
 warranties by, 33, 36, 42, 49. See Waeeanty. 
 duty as to dangerous goods, 44, 47, 123 
 See also Auction ; Price. 
 
 SELLER'S LIEN, 
 
 who is an unpaid seller, 93 
 
 origin and nature of Hen, 94, 95 
 
 distinguished from stoppagie in transitu, 95 
 
 when it arises, 96 
 
 how if contract is executory, 100 
 
 effect of part delivery on, 98 
 
 how terminated, 99 
 
 effect of sub-sale by buyer, 106 
 
 does not usually rescind the contract, 109 
 
 right of retention, Scotland, 95, 138 
 
 SEVERABLE CONTRACT. See Divisible Conteact. 
 
 SHARES, 
 
 are things in action, 137 
 
 SHERIFF, 
 
 power of sale by, 65 n. 
 
 effect of delivery of writ to, on subsequent sale, 74 
 
 does not warrant title, 38 
 
 [ 25 ] 
 
INDEX. 
 
 SHIP, 
 
 transferred by bill of sale, 17 n. 
 paid for by instalments as built, 53 
 outside Bills of Sale Acts, 167 
 how far included in " goods," 138 
 powers of master, 15, 65 n. 
 
 SHIPMENT, 
 
 as appropriation of goods to contract, 56, 60 
 duty of seller on making, 85-88 
 when right of stoppage ended by, 102-104 
 list of stipulations judicially construed, 182 
 bill of ladiag as evidence of, 163, 164 
 
 SPECIAL DAMAGES, 
 
 saving for, and note on, 123 
 See Damages. 
 
 SPECIFIC GOODS, 
 
 definition discussed, 140 
 
 perishing before sale complete, 27-29 
 
 property in, may pass by contract, without delivery, 62 
 
 rules to determine when property passes, 52, 54, 57 
 
 caveat emptor usually applies to sale of, 42, 45 
 
 contrasted with generic goods, 51, 57, 140 
 
 unascertained part of specific whole, 52 
 
 SPECIFIC PERFOEMANCE, 120 
 
 SPIRITS, 
 
 sold by retail, 113 
 
 STAMP DUTY. 
 
 exemption of contracts of sale, 169 
 
 bills of lading, 168, 169 
 
 abolition -of stamp on delivery orders, 171 
 
 warrants for goods, 169, 170 
 
 receipts for money, 168 
 
 hire-purchase agreements, 169 n. 
 
 STATUTE OF FRAUDS, 18-25. See Frauds. 
 
 STATUTES, IN APPENDIX, 163-173 
 
 STOLEN GOODS, 
 
 property usually remains in owner, 64 
 sale of, in market overt, 67 
 
 re-vesting of property on conviction of thief, 68, 70, 172 
 larceny and false pretences distinguished, 71 
 
 [ 26 ] 
 
INDEX. 
 
 STOPPAGE IN TRANSITU, 
 originofriglit, 94, 95 
 distingnished from seller's Uen, 95 
 nature of transit, 100 
 duration of transit, 102 
 tow stoppage effected, 105 
 stoppage wtere contract is executory, 101 
 contract not usually rescinded by, 109 
 
 SUB-SALE, 
 
 effect of, by buyer, 106, 124 
 
 SUNDAY, 133 
 
 SUSPENSIVE CONDITION, 6, 59, 176 
 
 TENDER, 
 
 of delivery, 78, 83 
 of price, 112 
 
 TEEMS AND STIPULATIONS, 
 list of, judicially construed, 182-189 
 
 THINGS IN ACTION, 136, 137 
 
 THROUGH BILL OE LADING, 164 
 
 TIME, 
 
 construction of stipulations as to, 33 
 
 reasonable, a question of fact, 128 
 
 list of stipulations judicially construed, 184 
 
 TITLE, 
 
 impKed undertakings as to, 38 
 
 transfer of, by sale, 64-72. See Tbansper ; Document of Title. 
 
 TRADE-MARK, 
 
 implied warranty as to, 45, 167 
 TRADING WITH ENEMY, 16, 29 
 TRANSFER, 
 
 of bill of lading, 108. See Bill of Lading. 
 
 of document of title, 107, 150. See Document op Title. 
 (a), of property as between seller and buyer — 
 
 goods must be ascertained, 51 
 
 property passes when intended to pass, 52, 190 
 
 conditional sale of specific goods, 6, 53 
 
 unconditional sale of specific deliverable goods, 54 
 
 goods not in deliverable state, 55 
 
 when price to be ascertained by seller's act, 55, 58 
 
 goods on approval or sale or return, 55, 58, 188 
 
 appropriation of goods to contract, 56, 59 
 
 [ 27 ] 
 
INDEX. 
 
 TRANSFER— cowiinMcd. 
 
 delivery to carrier, 60, 84, 189 
 article specially made for buyer, 57, 58 
 assignment of future goods, 25, 59 
 reservation of right of disposal, 60 
 risk usually passes with property, 62 
 
 See also Assignment ; Cakrier ; Delivery. 
 (b) of title- 
 sale by person not the owner, 64 
 
 provisions of Factors Act, 64, 146. See Factors Act. 
 spfecial common law or statutory powers, 65 
 market overt, 67 
 sale under voidable title, 69 
 revesting of stolen goods on conviction, 70, 172 
 seller or buyer remaining in possession, 72, 156 
 effect of writs of execution, 74 
 common law powers of mercantile agent, 160 
 sale by estoppel, 10. See also Quasi-Contract. 
 
 TRANSIT, 
 
 what constitutes, 102. See Stoppage in Transitu. 
 
 TROVER, 9, 119. See Conversion. 
 
 TRUSTEE (IN BANKRUPTCY), 
 may afSrm contract, 97, 132 
 may disclaim contract, 132 
 may sell to bankrupt, 3 
 
 UNASCERTAINED GOODS, 
 
 property passes by appropriation, 51, 56, 59 
 unascertained part of ascertained whole, 52 
 
 UNITED STATES, 144 
 
 UNPAID SELLER, 
 who deemed to be, 93 
 remedies of, against the goods, 94 
 See Seller's Lien ; Stoppage in Transitu. 
 
 UPSET PRICE, 129 
 
 USAGE OF TRADE, 
 
 to explain or annex incidents, 18, 126, 127 
 
 to import warranty or condition, 43 
 
 contrasted with rules of law, 146 
 
 to prove that sale was by sample, 49 
 
 to reduce written condition to mere warranty, 42 
 
 saving for law merchant, 131 
 
 [ 28 ] 
 
INDEX. 
 
 VALUATION, 
 
 agreememt to sell goods at, 32 
 VALUE, 
 
 of £10 and upwards under Statute of Frauds (sect. 4), 18-22 
 what constitutes, under Factors Act, 154, 162 
 as measure of damages, 114, 116-119 
 
 VARIATION OF CONTRACT, 24, 37 
 
 VENDOR'S LIEN, 94. See Seller's Lien. 
 
 WAGER, 
 
 when sale void as, 30 
 
 WAIVER, 
 
 of condition precedent, or warranty, 37, 126 
 
 of seller's lien, 100 
 
 of right of stoppage in transitu, 104 
 
 of tort, 10 / 
 
 WAR, V 
 
 status of alien enemy, 17 
 effect on contract of sale, 29, 30 
 
 WARRANT FOR GOODS, 149, 170. See Document of Title. 
 
 WARRANTY, 
 defined, 34, 140 
 discussion of definition, 177 
 how implied, may be negatived, 126 
 how annexed to contract of sale, 34, 35 
 what affirmations operate as, 34, 141 
 when condition is to be treated as, 36, 121 
 implied warranty of title, and freedom from Uen, 38 
 on sale by description, 40 
 annexed by usage of trade, 43 
 of fitness for particular purpose, 42, 46, 47, 126 
 of merchantable quality and condition, 43, 46, 47, 126 
 as to goods being of seller's own make, 47 
 on sale by sample, 49 
 special warranties by statute, 42 n., 167, 
 remedies for breach of warranty, 121, 122 
 measure of damages for breach, 121, 122 
 list of warranties judicially construed, 186 
 Scotch law as to, 36, 122, 140 
 
 payment into Court in Scotland when breach of, set up, 131 
 See Condition ; Repkesbntation. 
 
 WEIGHING GOODS, 
 
 when condition precedent to property passing, 55, 58 
 
 [ 29 ] 
 
INDEX. 
 
 "WITH ALL FAULTS," 187 
 
 "WITHOUT RESERVE," 129 
 
 WORDS AND PHRASES, 
 rules of construction, 181 
 list of, judicially construed, 182-189 
 
 WORK AND MATERIALS, 
 distinguislied from sale, 4 
 
 THE END. 
 
 PRINTBD BT WILLIAM OLOWBa ANP SONS, LIMITED, LONDON AND BKOOLES.