Page images

Exira-judi- After the bargain of sale has been completed,

dies of Dut before the price has been paid, or the possession of the goods has been parted with, the vendor

Lien. possesses the extrajudicial right of Lien, i. e. the right of retaining the goods as a security for the price (/). Even after the possession is lost by the vendor, while the property, not being absolutely vested in the purchaser, remains in transitu, a species of contingent lien continues. The vendor is entitled to exercise this right (technically termed

stoppage in Stoppage in transitu), and to resume possession of the goods, in cases where the intermediate bankruptcy or insolvency of the purchaser deprives him of the reasonable chance of obtaining payment (g).

Judicial re- When the contract of sale between the parties

vendor. is concluded, if the purchaser departs from his engagement, and refuses to accept the goods, the

Assumpsit vendor may maintain an action of Assumpsit (h)

for not ac- . • *■» «

cepting. on the special contract for not accepting. Or, if

the property has been transferred to the purchaser,

and the price has not been paid, the vendor may

Assumpsit bring assumpsit (or debt) for goods bargained and

fcKgoods so\fit or for goods sold and delivered.

Rights of On the other hand, where default is made on vendee. ^e ^^ of vencjor, the vendee has certain

(/) Of Lien, see Book II. Part 1. Chap. i.

(g) Of Stoppage in transitu, see Book II. Part 1. Chap. ii.

(A) Of Assumpsit by vendor, see Book II. Part 1. Chap. iii.

remedies to compel performance of the agreement.

When the contract has been legally entered into,

and the price duly paid or tendered, if the vendor

refuses to deliver the goods, the purchaser may

sue in Assumpsit on the special contract for not Assumpsit

for not dedelivering (i). Or if the property and right of Hvering.

possession have vested in the purchaser, although the actual possession may remain in the seller, an action of Trover (A) for the goods may be supported. Trover.

Further, after the contract is finally concluded, by the delivery on one side and payment on the other, a cause of action may arise against the vendor, on the ground of a breach of Warranty (/) Action of

It • i warranty.

of the goods. In general this action must be founded on express warranty. The Civil law, in this respect, was much more favourable to purchasers than the English law; their rule being that the vendor was bound to warrant the subjectmatter of the sale against all defects, whether he were cognizant of them or not (m); and moral writers have urged, that the seller is bound inforo conscienticB to make known to^'the purchaser the defects with which he is himself acquainted (»).

(i) Of Assumpsit by vendee, see Book II. Part 2. Chap. i.

(It) Of Trover by vendee, see Book II. Part 2. Chap. ii.

(I) Of action on Warranty, see Book II. Part 2. Chap. iii.

(m) "Certiores faciant emptores quid morbi vitiive cuique sit." D. lib. xxi. t. 1. 1. i. §. 1.

(n) See 1 Poth. Obi. p. 7. Paley Mor. Phil. vol. i. b. 3 c. vii. Grotius, 1. ii. c. xii. s. 9. Cic. de Off. lib. iii. 13.

Maxim caveat emptor.

With us, nevertheless, the maxim "caveat emptor" is more generally applicable. If the purchaser act so improvidently,as to neglect taking the necessary precautions for ascertaining the quality of the goods which he bargains for, he must pay the penalty of his negligence; for the ancient maxim of law is "vigilantibus, non dormientibus leges subveniunt." And mere vague expressions which are usual to sellers, who praise at random the goods which they are desirous to dispose of, will not amount to a warranty (o). If the vendor, however, expressly undertakes, at the time of the sale, that the quality of the goods shall accord with the description given, or with a sample exhibited, he will be bound by his undertaking. Yet if the purchaser himself was aware of the defects, he cannot afterwards take advantage of them; on the principle of the maxim "scientia utrinque par pares facit contrahentes" (p). It must be observed that the maxim "caveat emptor" is never to be understood as applying to cases of actual fraud; for even where a commodity is expressly sold with all faults, this will not protect the vendor, if it can be proved that there were any latent defects which he used artifice and contrivance to conceal (q).

Collateral The collateral rights and liabilities of vendor and purchaser are scarcely less important than ''abilities of

rights and

(o) Sugd. Vend. p. 3. "Simplex commendatio non obligat."

(p) Sugd. Vend. p. 1.

(q) Baglehole v. Walters, 3 Campb. 154.

*' * * the parties.

their mutual obligations.

Partners (r) are liable in general for all engage- Partners. ments entered into by their co-partners; or, as Lord Kenyan has broadly expressed it, "one partner may pledge the credit of the firm to any extent." The rule holds equally in the case of general trading partnerships, as in cases where the parties have held themselves out as partners in a particular transaction. No private understanding, or express arrangement, among the partners themselves, limiting or qualifying the extent of their liability, can avail them in respect of third persons without notice (*). Therefore, partners in name (although not really interested), and partners in interest (although dormant or secret), are involved in a common liability.

The rights of vendor against Sureties (t), or third Sureties. persons entering into a collateral undertaking to guarantee payment of the price by the purchaser, forms an important subject of consideration. The claim "against a surety is said to be strictissimi juris (u) ; and accordingly, to establish his liability on the vendee's default, the plaintiff must prove a

(r) Of Vendee's Partners, see Book II. Part 3. Chap. i. Of Vendor's Partners, see Book II. Part 4. Chap. i.

(*) Waugh v. Career, 2 H. Bl. 235.

(0 Of Sureties, see Book II. Part 3. Chap. ii.

(«) Per Lord Ellenborough, C. J., Bacon v. Chesney, 1 Stark. N. P. C. 193.

strict compliance with the terms of the guaranty. By the statute of frauds, every "special promise to answer for the debt, default or miscarriage, of another person," must be in writing and signed by the party to be charged, or his authorized agent (.r).

Bailees. The rights and liabilities of Bailees (y) require a

certain degree of consideration. In general, as soon as goods sold have been delivered into the custody of a carrier, wharfinger, or other bailee, on the account of the consignee, the vendor's interest in the property (except indeed his contingent right of stopping in transitu) is wholly determined; the property vests in the purchaser, and remains thenceforward at his risk (z). Accordingly, the action against the bailee ought to be brought in the name and on the behalf of the purchaser («). Yet, it must be observed that, under certain circumstances, either the vendor or the purchaser indiscriminately may be made plaintiff against the bailee, and in one or two special cases, where the consignee has acquired no interest in the property, the vendor is the only party who can maintain the action (b).

Agents. Lastly, the law of Principal and Agent is involved

(*) 29 Car. II. c. 3. s. 4.

(y) Of Bailees, see Book II. Part 4. Chap. ii.

(z) Greaves v. Hepke, 2 B. & A. 131 ; Bull. N. P. 36.

(a) Fragano v. Long, 4 B. & C. 219,

(6) See 1 Chit. PI. p. 2.—Post.

« PreviousContinue »