Page images

for the inferior quality (n). The purchaser is at Conditions

... . i i ii i • i precedent.

liberty to inspect the bulk, and to compare it and the sample together, and if they are not found to correspond, or if the vendor refuses to allow the inspection, the purchaser may rescind the contract (o). But if there is a sale-note which does not refer to any sample, it is no defence that they do not correspond with a sample exhibited (pj; though a cross action might lie for the deceit.

So, where the goods are sold with a warranty, Sale with

n i .. n warranty.

or an express representation of their quality, the plaintiff must show that they are conformable thereto(q); and it will not be sufficient to prove that they correspond with a sample exhibited at the time of the sale(r). But where the contract was, that such quantity as might be deemed unmerchantable should be rejected, the vendee was held bound to accept so much as should be proved to be of merchantable quality (s).

Where the vendor agrees to deliver the goods at Delivery at a particular place, he cannot recover without proof {£,<*."" of delivery there. If the agreement was, to deliver "free on board a foreign ship," the seller is bound

(n) Hibbert v. Shee, 1 Campb. 113. (o) Lorymer v. Smith, 1 B. & C. 1. (p) Meyer v. Everth, 4 Campb. 22.

(q) Lewis v. Cosgrave, 2 Taunt. 2. Per Lord Tenterden, C. J., 2 B. & Adol. 463.

(r) Tye v. Fynmore, 3 Campb. 462. (s) Graham v. Jackson, 14 East, 498.

condition, to put the goods on board a foreign ship named by

preceen. ^ purchaser(t*).

Delivery at So it is, where a particular time is specified. If

particular .

time. the contract agreed upon is, that the goods shall be delivered "with convenient speed, but not to exceed a given day," the arrival, in time for delivery on that day, is a condition precedent to the vendor's right of action; and if he makes default in the time, the purchaser is not bound to receive the goods(w). However, where it was stipulated, that the goods should be despatched from a certain place by a particular day, it was held sufficient that the goods were shipped by that day, though the vessel did not sail until afterwards Gr).

Delivery of So it is, where a particular quantity is specified.

particular T- -

quantity. It the contract expresses, that a certain quantity ol goods shall be delivered, the purchaser is not bound to accept part only; and unless the whole

(0 Wackerbath v. Masson, 3 Campb. 270; Wetherell v. Coape, 3 Campb. 272, n,

(u) Cox v. Todd, 7 D. & R. 131; Alewyn v. Pryor, 1 Ry. & Moo. 406. See Maryon v. Carter, 4 C. & P. 295. If the delivery is to take place, or other condition is to be performed within a month, this will in general be taken to mean a lunar and not a calendar month, (Joce/yn v. Hawkins, 1 Str. 446; Barksdale v. Morgan, 4 Mod. 185); unless it be understood otherwise, (Titus v. Lady Preston, 1 Str. 652. See Cochran v. Retberg, 3 Esp. 121).

(x) Busk v. Spence, 4 Campb. 329. It seems that the delay of a day or two would not be considered material, unless notice has been given of an intention to insist on the punctual performance of the agreement on the very day specified; see Carpenter v. Blandford, Dan. & Lloyd, Merc. Ca. 175.

quantity has been tendered, the vendor cannot re- Conditions cover (_y). Thus, where a party, contracting for pree the purchase of land, agreed to take the crops at a valuation, it was held, that the vendor, having failed to make out a good title to the land, could not maintain assumpsit for the crops (z). But if the vendee has accepted part, the contract is severed, and, as the delivery of the residue is no longer a condition precedent to the right of action by the vendor for the part supplied, he may recover in an action for that portion (a), or he may set off the value, in an action for any other claim brought against him by the purchaser (d). "If, indeed, the entire contract was, to deliver a large quantity of goods, consisting of distinct parcels, within a specified time, and the seller delivers part,

(y) Champion v. Short, 1 Campb. 53; Baldey v. Parker, 2 B. & C. 37; Symonds v. Carr, 1 Campb. 361; Chambers v. Griffiths, 1 Esp. 150; Hort v. Dixon, Selw. N. P. 109. Nor is the purchaser bound to accept a greater quantity; and where the contract was that the defendant should purchase "about 300 quarters, more or less," this was held not to contemplate so large an excess as 50, over 300, quarters; Cross v. Eglin, 2 B. & Adol. 106.

(2) Neal v. Viney, 1 Campb. 471. See Hungerford v. Haxsiland, 3 Bulstr. 325, 326. Otherwise, if the contracts were distinct and separate; Poole v. Shergold, 2 Bro. C. C. 118; Drewe v. Hanson, 6 Ves. Jun. 676.

(a) Oxendale v. Wetherell, 9 B. & C. 386 (overruling Walker v. Dixon, 2 Stark. N. P. C. 281); Mavorv. Pyne, 3 Bingh. 285; Bragg v. Cole, 6 B. Moore, 114. See below, Assumpsit for goods sold.

(6) Shipton v. Casson, 5 B. & C. 378.

Conditions he cannot before the expiration of that time bring an action to recover the price of that part delivered, because the purchaser may, if the vendor fail to complete the contract, return the part delivered "(c). But if the purchaser does not so rescind the contract, it would be most unjust to say that the seller should not recover at all; for, "it would follow that, where there had been a contract for 250 bushels of wheat, and 249 had been delivered to, and retained by, the defendant, the seller could not recover for the 249, because he had not delivered the whole" (cf).

Where the vendor ought to have tendered the goods, he cannot recover without proof of such tender; as in the sale of stock (e). But, where nothing is stipulated about delivery, it seems that the purchaser ought to fetch them: in such case a tender is unnecessary (/), and it will be sufficient to aver a readiness to deliver (g).

Tender of the goods.

Mutual dependent promises.

Again, it is laid down,—although there be mutual promises, yet if one thing be the consideration of the other, there a performance is necessary to be averred and proved (h). "If two men agree, one

(c) Per Parke, J., Oxendale v. Wetherell, 9 B. & C. 388.
(cf) Per Lord Tenterden, C. J., ib. 387.
(e) Bordenave v. Gregory, 5 East, 107.—Supra.
(/) 2 Stark. Ev. 871, n. (2d Ed.).
(g) Ibid. Rawson v. Johnson, 1 East, 203.
(h) Callonellv. Briggs, 1 Salk. 112; Morton v. Lamb, 7T. R.

that the other should have his horse, the other Conditions

« , ... „ i precedent.

that he will pay ten pounds lor it, an action does not lie for the money until the horse be delivered " (i). Where the contract was, that the defendant should supply certain goods at intervals, to be paid for on delivery, he is not bound to sell on credit, and, if the purchaser refuses to pay on delivery, the vendor is not liable for non-performance (k), even though he may have waived the condition in part by delivering some of the goods on credit (/). On the same principle, where the plaintiff had agreed with the defendant to barter a quantity of yellow ochre for a quantity of sponge of equivalent value, and it was contended that, the respective undertakings being mutual promises, performance on the part of the plaintiff was not necessary to support his right of action, the Court nevertheless held, that one undertaking was the consideration of the other, and that the plaintiff, therefore, could not recover for the non-delivery of the sponge, without proof of the delivery of the ochre (m). However, after verdict, the averment is sufficient, that plaintiff has always been ready and willing to perform his part of the contract («);

[ocr errors]
« PreviousContinue »