Sale on credit.

Sale of fixtures.

he had sustained from the default of the purchaser in not giving a bill in payment according to his undertaking (2). Where a bill or note has been given for goods, and is subsequently dishonoured, the vendor may sue for the price of the goods immediately (a), provided that the bill is not in the hands of third parties who may call upon the defendant for payment (b), and provided that the instrument has not, by laches on the part of the vendor, become his own and operated in discharge of the original cause of action (c). If the bill is on a wrong stamp, the vendor may sue for goods sold, without proof of its being dishonoured (d).

An action for goods sold and delivered will not lie for fixtures (e); because, before they are se-. vered from the freehold, they can be considered goods and chattels for special purposes only (f).

(z) Seé per Littledale, J., 2 B. & Adol. 435.

(a) Owenson v. Morse, 7 T. R. 64 ; Hickling v. Hardey, 7 Taunt. 312; see Payment, post.

(b) Burden v. Halton, 4 Bingh. 455; Champion v. Terry, 3 B.

& B. 295.

(c) Camidge v. Allenby, 6 B. & C. 373.-Post.

(d) Cundy v. Marriott, 1 B. & Ad. 696; Wilson v. Vysar, 4 Taunt. 288.

(e) Lee v. Risdon, 7 Taunt. 188; S. C. 2 Marsh. 495; Nutt v. Butler, 5 Esp. 176; Amos. & Fer. Fixtures, p. 251; 2 Wms'. Saund. 259 b, note (e).

(f) Per Parke, B., 1 Cr. Mees. & R. 275; Glover v. Coles, 1 Bingh. 6; Poole's case, 1 Salk. 368; Pitt v. Adams, cited 2 Stark. Ev. 877; Pitt v. Shew, 4 B. & A. 206.

tures, &c.

Nor does the action lie to recover the value of Sale of fixgrowing crops (g), or of standing trees (h), which relate to an interest in land. Nor for the value of

materials which the plaintiff building defendant's house (i).

has employed in
But if the fixtures

are severed from the freehold (k), the action may be maintained: so, if the trees are felled (1), or the crops have arrived at maturity (m).

II. PROOF OF DELIVERY.

In order to support an action for goods sold Delivery. and delivered, the vendor must give evidence of a delivery of the goods, or, what is equivalent to delivery, that he has done every thing to enable the purchaser to remove the goods (n); therefore, where the omission on the part of the plaintiff of some act, although not a condition precedent, prevented the defendant from taking possession of the goods, it was held that the plaintiff could not recover (o). If the delivery of the goods, however,

(g) Waddington v. Bristow, 2 B. & P. 452.
(h) See Knowles v. Michel, 13 East, 249.
(i) Cotterell v. Apsey, 6 Taunt 322.

Supra, p. 54.
Supra, p. 56.

(k) Pitt v. Shew, 4 B. & A. 206; Hallen v. Runder, 1 Cr, Mees. & R. 274, et seq.; see judgment of Purke, B.

(1) Smith v. Surman, 9 B. & C. 561, 568; Bragg v. Cole, 6 B. Moore, 114.

(m) Parker v. Staniland, 11 East, 362; Warwick v. Bruce, 2 M. & S. 205. Supra.

(n) Smith v. Chance, 2 B. & A. 753.

(0) Id.

Delivery. has

When suffi

cient.

has actually taken place, and the property has
vested in the vendee, it is no defence to an action
for the price that the vendor has been guilty of
trespass in forcibly retaking the goods; for, al-
though he may be liable to an action for the tort,
it will not work a rescission of the contract (p).
It seems that, to support this action, there must
be a more complete delivery and acceptance than
is necessary to satisfy the Statute of Frauds (g);
thus it was decided, that the payment of a sum of
money by the buyer by way of earnest, while the
goods still remain on the premises of the seller,
and the latter declares that they shall not be re-
moved until paid for, does not pass the property
to the buyer so as to enable the seller to sue for
goods sold (r). This decision was confirmed in a
Goods were sold on ready money

recent case.

terms, and were left packed up in boxes in plaintiff's house, to be paid for and removed by defendant; in an action for goods sold and delivered, the plaintiff was nonsuited on the ground that no sufficient delivery had been proved (s). The ground of the decision in both cases is the same, namely, that something remained to be done by the purchaser before he was at liberty to remove

(p) Stephen v. Wilkinson, 2 B. & Ad. 320; Groning v. Mendham, 2 Stark, N. P. C. 299, 302.

(g) See the observations of Bayley, B., 3 Tyrwh. 268, 269.
(r) Goodall v. Skelton, 1 H, Bl. 316.

(s) Boulter v. Arnott, 3 Tyrwh. 267 ; S. C. 1 Cr. & Mees. 333.

the goods for, in the former case, by the express Delivery. terms, they were not to be taken away until paid for; and in the latter case this condition was implied from plaintiff's refusal to sell on credit. It seems, therefore, to be a general rule, that, unless the vendee has either the actual or constructive possession, or an unconditional power of obtaining possession immediately, the action for goods sold and delivered cannot be supported (t).

plete where

to be done.

On the same principle, where anything was to Not combe done on the part of the vendor before the goods something were to be delivered, until that is done this action cannot be supported (u). Thus, where the defendant contracted for the purchase of several

(t) The action in such case ought to be for goods bargained and sold; (see per Lord Lyndhurst, C. B., 3 Tyrwh. 269. Supra, p. 241). The distinction is of greater importance since the new Rules of Pleading (Rules Hil. T. 4 Will. IV.); because formerly, in all cases of doubt, both counts might be inserted, and usually were, but now clearly one would be struck out upon application. See above, p. 210.

(u) Nor even an action for goods bargained and sold; see above, p. 242. It appears, then, that this general rule may be collected:-Assumpsit for goods sold and delivered cannot be maintained as long as anything, on the part either of the vendor or of the purchaser, remains to be done prior to actual delivery. And the circumstances, that would support this action by the vendor, would support trover by the vendee, (see TROVER BY VENDEE, Part 2, Chap. ii.) that is, both the right of property and the right of possession vested in the latter. But assumpsit for goods bargained and sold may be supported, as soon as the vendor has done everything which he ought to do; because he cannot help the vendee's omission, and although such omission may be sufficient to prevent such a delivery as is necessary to support an action for goods sold and delivered, it is not sufficient to prevent

Delivery. bales of skins, and it was the duty of the seller to count the number in each bale, it was held, that the property was not changed before such enumeration had taken place, and that the goods remained at the seller's risk (r). So, where a quantity of bark was sold at a certain price per ton, and part was weighed and delivered, it was held that, even if the residue had vested in the purchaser, an action for goods sold could not be maintained for the latter portion until the weighing was completed (y). So, where the goods are in the custody of a warehouseman or other bailee, although in general the sale is complete by the vendor giving a delivery-order to the purchaser (2), yet if any act is previously to be done, the property does not pass until performance thereof, so as to enable the vendor to sue for goods sold; as, where the quantity to be delivered is yet to be ascertained by measuring or weighing (a).

such a change of property as will support an action for goods bargained and sold.

It may be observed, that the question does not turn upon the act, which remains to be done, being a condition precedent to the plaintiff's right of action: the question merely is, whether the act be necessary to be done, before a constructive delivery, or a change of property, can be inferred.

(x) Zagury v. Furnell, 2 Campb. 240.

(y) Simmons v. Swift, 5 B. & C. 857; Rugg v. Minett, 11 East, 210.

(z) See next page.

(a) Busk v. Davis, 2 M. & S. 397; S. C. 1 Marsh. 258, n. ; Hanson v. Meyer, 6 East, 614. See Ogle v. Atkinson, 1 Marsh. 323; S. C. 5 Taunt. 759; Wallace v. Breeds, 15 East, 522.