precedent. Conditions and remained at the Bank as long as the transfer books continued open (h). Where the declaration stated, that, in consideration of the payment of a sum of money, defendant promised to deliver fifteen tod of wool out of seventeen tod, to be chosen by the plaintiff, and averred, that the plaintiff was ready to pay the money at the day, yet defendant did not deliver the wool, judgment for the plaintiff was arrested, because it was not stated that the plaintiff had chosen fifteen tod out of the seventeen, such selection being an implied condition precedent to the delivery (i). If a condition precedent has been neglected to be performed, it seems to be immaterial whether the defendant has been prejudiced or not by the non-performance (k), or whether he objected to fulfil the contract on that particular ground (). But, if the defendant has once actually waived his objection to the nonperformance, he cannot afterwards take advantage of it (m). Sale by sample. Where the goods are sold by sample, the vendor must show that the bulk of the commodity corresponds with the sample; and it will not be sufficient to prove a custom of making an allowance (h) Bordenare v. Gregory, 5 East, 107; Lancashire v. Killingworth, 1 Ld. Raym. 686; S. C. Com. Rep. 116. (i) Raynay v. Alexander, Yelv. 76; Selw. N. P. 113, (8th Ed.). precedent. for the inferior quality (n). The purchaser is at Conditions 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 (p) ; though a cross action might lie for the deceit. warranty. So, where the goods are sold with a warranty, Sale with 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). particular Where the vendor agrees to deliver the goods at Delivery at a particular place, he cannot recover without proof place. 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. (0) 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. Conditions to put the goods on board a foreign ship named by precedent. the purchaser(t). particular time. Delivery at So it is, where a particular time is specified. If 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 (u). 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 (x). Delivery of particular quantity. So it is, where a particular quantity is specified. If the contract expresses, that a certain quantity of goods shall be delivered, the purchaser is not bound to accept part only; and unless the whole (t) 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, (Jocelyn 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 precedent. cover (y). Thus, where a party, contracting for 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 (2). 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 (b). 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, 66 (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. Haviland, 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); Mavor v. Pyne, 3 Bingh. 285; Bragg v. Cole, 6 B. Moore, 114. See below, Assumpsit for goods sold. (b) Shipton v. Casson, 5 B. & C. 378. precedent. 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" (d). Tender of the goods. pendent 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 (f), and it will be sufficient to aver a readiness to deliver(g). Mutual de- Again, it is laid down,-although there be mutual promises. 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. (d) Per Lord Tenterden, C. J., ib. 387. (e) Bordenave v. Gregory, 5 East, 107.-Supra. (f) 2 Stark. Ev. 871, n. (2d Ed.). (g) Ibid. Rawson v. Johnson, 1 East, 203. (h) Callonell v. Briggs, 1 Salk. 112; Morton v. Lamb, 7 T. R. |