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and must pay the difference, or receive the thing back and rescind the bargain, if it is offered him." 1

238. This Fundamental Distinction discarded by a Few Courts. -The distinction between these two classes of cases, in one of which the seller's engagement as to quality is a condition precedent to the vesting of title in the purchaser, while in the other it is a stipulation collateral to an executed sale, was clearly stated in Street v. Blay, and is recognized by most courts as fundamental. It has been deliberately discarded, however, in a few jurisdictions.1

In Louisiana the buyer is entitled to return the goods and regain the price, whether the article is warranted or not, and even though the seller was ignorant of the defects, provided they are such that had they been made known to the buyer he would not have purchased. If he decides to retain the property, knowing it is defective, he is entitled to a reduction in price commensurate with the defect."

239. Rejected Goods must be returned. We have seen that the buyer who exercises his right to reject goods pursuant to a condition in his favor, is not bound to return them to the seller. But the courts which accord him the right to reject an article upon a breach of warranty require him to return it. "There must be actual restoration or its equivalent."7 Such is the rule laid down in the Uniform Sales Act.8

240. Alternative Rights under Special Agreements. If the seller warrants the article and also agrees that it may be re

1 Bradford v. Manly, 13 Mass. 131, 145 (1816); Burdick's Cases on Sales, 315.

22 B. & Ad. at p. 463 (1831); Burdick's Cases on Sales, 435.

Houghton v. Carpenter, 40 Vt. 588, 595, 596 (1868); S. F. Bowson & Co. v. Kilgore, Ark.; 139 S. W. 541 (1911); distinguishing Gay Oil Co. v. Roach, 93 Ark. 454; 125 S. W. 122; 27 L. R. A. N. s. 914; 137 Am. St. R. 122 (1910). See notes to ¶¶ 233, 234.

4 Rogers v. Hanson, 35 Ia. 283, 287 (1872); Thompson v. Harvey, 86 Ala. 519, 521 (1888).

Melancon v. Robichaux, 17 La. o. s. 97 (1841).

• Templeman Bros. L. Co. v. Fairbanks, M. & Co., 129 La. 983; 57 So. 309 (1912).

Tyler v. Augusta, 88 Me. 504; 34 At. 406 (1896); Burdick's Cases on Sales, 439; Mundt v. Simpkins, 81 Neb. 1; 115 N. W. 325 (1908). 8 Mass. L., ch. 237, § 69 (1), (d).

turned if it does not possess the warranted qualities, the buyer has the option of returning it, or of keeping it and recovering damages.1 The special agreement may be so framed as to limit the buyer to a return of the property; 2 or to impose upon him some act as a condition of recovering damages. Again, it may limit him to the right of requiring the property to be made to conform to the warranty, upon giving notice of defects.*

§ 7. Seller's Duty to deliver Possession.

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241. Thus far in this chapter we have been concerned mainly with the duties of the seller which are incident to his engagement "to pass the property in the thing sold" to the buyer, and with the correlative rights of the latter. We proceed now to consider the seller's duties growing out of his other principal engagement, "to deliver possession of the article." It will be remembered that the delivery of the goods, at a designated place, may be à condition of title passing; a topic that is considered in detail elsewhere.7

242. Nature of this Engagement. It is not necessary that the engagement to deliver possession be expressly stated in the contract. "The obligation to deliver, if not expressed, is implied,' ," although, in the absence of agreement to the contrary, it is conditioned upon payment by the purchaser; or in

1 Eyers v. Haddem, 70 Fed. 648 (1895); Burdick's Cases on Sales, 440; Lewis v. Pope Motor Car Co., 202 N. Y. 402; 95 N. E. 815 (1911); Obenchain & Boyer v. Incorp. Town of Roff, 29 Okla. 211; 116 Pac. 782 (1911). 2 Himes v. Kiehl, 154 Pa. St. 190; 25 At. 632 (1893); Highsmith Bros. v. Hammond, - Ark. 138 S. W. 635 (1911); Feight v. Thisler, 84 Kan. 185; 114 Pac. 249 (1911), (seller waived the limitation by inducing the buyer to keep and doctor the animal); J. I. Case Harvesting Mach. Co. v. Patterson, 137 Ky. 180, 186; 125 S. W. 287 (1911).

' Walker & Rogers v. Malsby Co., 134 Ga. 398; 67 S. E. 1039 (1910); Nutting v. Watson, etc. Co., 84 Neb. 464; 121 N. W. 582 (1909); Colean Mnfg. Co. v. Feckler, 20 N. Dak. 188; 126 N. W. 1019 (1910).

Buchanan v. Minn. Mach. Co., 17 N. D. 343; 116 N. W. 335 (1908).

5 Martineau v. Kitching, L. R. 7 Q. B. 436, 449 (1872); Burdick's Cases on Sales, 132.

• Mears v. Daniels, 84 Vt. 91, 102; 78 At. 737 (1911).

7 See ¶¶ 101, 102, 282.

Gray v. Walton, 107 N. Y. 254; 14 N. E. 191 (1877); Burdick's Cases on Sales, 633.

other words, "the law presumes that the parties intended to make the payment of the price and the delivery of possession concurrent conditions." " Hence, in case of a contract to sell, if the seller, after receiving the price, refuses to deliver the goods, the buyer may rescind the contract and recover what he has paid. In case of a bargain and sale, if the seller refuses to allow the buyer to take possession of the purchased article, for which he has paid or offered to pay, the latter may force his way upon the seller's premises and take the property, without committing trespass; 3 or upon offering performance on his part, may recover the value of the goods. Nor is this engagement of the seller altered by the fact that the goods are on the premises or in the possession of a third party. It is still a part of his sale contract that possession shall be delivered,5 free from liens."

While the seller does

243. Formal Tender not necessary. engage to give possession of the goods to the buyer, he is under no duty to send them to him, unless he specially agrees to do so. He performs his obligation by having the goods in readiness for the buyer at the proper time and place, and by giving the latter notice thereof. Even if he is bound to send the goods to a stipulated place, he need not make a formal tender of them there. "Readiness and willingness to perform the contract,

1 Benjamin on Sales (Bennett's ed., 1899), § 677. Sale of Goods Act, §§ 27, 28; Uniform Sales Act, §§ 41, 42.

444.

2 Somers v. Sturre, 106 Minn. 221; 118 N. W. 682 (1908).

Wood v. Manly, 11 Ad. & E. 34 (1839); Burdick's Cases on Sales,

Gray v. Walton, 107 N. Y. 254; 14 N. E. 191 (1877); Burdick's Cases on Sales, 633.

Buddle v. Green, 27 L. J. Exch. 33 (1857). "Here the plaintiff bought the slates, and although they were in the possession of third persons, it was a portion of the contract that they should be delivered within a reasonable time." Martin, B., p. 34.

Davis v. Gilliam, 14 Wash. 206; 44 Pac. 119 (1896); Burdick's Cases on Sales, 445.

7 Robbins v. Luce, 4 Mass. 474 (1808); Hillestad v. Hostetter, 46 Minn. 393; 49 N. W. 192 (1891); Burdick's Cases on Sales, 448; Bliss Co. v. U. S. Co., 149 N. Y. 300; 43 N. E. 859 (1896). In the last-cited case the action was for the contract price of the goods; Catlin v. Jones, 52 Ore. 337; 97 Pac. 546 (1908). In this case the readiness was on the part of the buyer.

with notice to the" buyer, are the measure of his duty.1 Espe cially is this true when the buyer has notified the seller that he will not receive the goods. Where the place of delivery is to be designated by the purchaser, the seller discharges his whole duty by notifying the former of his readiness to perform.3

In jurisdictions which enforce the doctrine of Bement v. Smith, a formal tender of the goods by the seller may be necessary in order to pass title to the buyer and put them at his risk. This seems to be required by the Uniform Sales Act."

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244. The Place of giving Possession. — In the absence of an agreement upon this point, possession of specific goods, which are bargained and sold, is to be given "at the place where they are at the time of the sale; "7 while possession of goods, which are to be appropriated to the contract after it is made, is to be given at the seller's place of residence or of business. If the goods are to be produced by the seller, his manufactory or farm is the place where possession is to be given; if they are goods which he is to procure, they are deliverable at the place

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1 Jackson v. Allaway, 6 M. & G. 942 (1844), (here the action was for damages for non-acceptance); Smith v. Wheeler, 7 Ore. 49 (1879), (action for purchase price, following in this respect the New York rule in Bement v. Smith, 15 Wend. 493); cf. Smith v. Lewis, 26 Conn. 110, 119 (1857). Ala.; 58 So. 989 (1912); Krebs Hop Co.

2 Terrell v. Nelson,

v. Livesley, 55 Ore. 227, 234-35; 104 Pac. 3 (1904).

Hunter v. Wetsell, 84 N. Y. 549, 555 (1881); Majestic Melting Co.

v. Copeland, 93 Ark. 195; 124 S. W. 521 (1910).

15 Wend. 493; Burdick's Cases on Sales, 164.

Roush v. Emerick, 80 Ind. 551 (1881).

• Mass. L. 1908, ch. 237, § 63 (3), adopting a modified form of the Bement v. Smith doctrine.

Burdick's Cases on "Apart from any

7 Gray v. Walton, 107 N. Y. 254, 258; 14 N. E. 191; Sales, 633. The language of the English statute is: 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." Judge Chalmers notes that this rule was based, not on judicial authority, for there was none, but on ordinary practice and on Art. 342 of the German Commercial Code. Sale of Goods Act (2d ed.), 60, 61; Uniform Sales Act, § 43 (1); Gruen v. Ohl & Co., 81 N. J. L. 626; 80 At. 547 (1911).

Bliss Co. v. U. S. Incandescent Co., 149 N. Y. 300, 305; 43 N. E. 859 (1896).

• Lobdell v. Hopkins, 5 Cow. (N. Y.) 516 (1826).

of business where he deals in such articles; 1 and if there is no such place of business, then at his residence.2 "The law judges of the place according to the nature and subject-matter of the things to be performed. In other words, the law supposes the implied understanding of the parties, and it is its province to advance their will in a fair and honest contract." 2

245. Cumbrous Articles and Portable Goods. In some jurisdictions it is held that if the time of giving possession is fixed by the parties, but the place is not designated, the duty of the seller varies with the nature of the goods. If they are portable he must offer possession of them at the vendee's residence; 3 but if they are cumbersome, he "is not bound to carry them to the vendee, but must seek him a reasonable time before the day of delivery, to ask him to appoint a place of delivery." This obligation to tender the goods or to seek for the designation of a place of delivery is rested upon the fact that the seller, in this class of cases, "must become the first actor, in order to fulfil his contract," while if neither time nor place is stipulated, the buyer is to be the first "actor, by going to demand the articles."

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246. When the Parties name a Definite Place. If the parties agree on a particular spot as the place where possession is to be given, the seller is bound to have the goods there, unless he can show a legal excuse for non-performance. A change in the condition of the specified place is not necessarily an excuse. Their agreement upon a particular place of delivery need not be expressly stated in the contract; it may be disclosed by

1 Janney v. Sleeper, 30 Minn. 473, 475; 16 N. W. 365 (1883); Mobile Fruit Co. v. McGuire (Minn.), 83 N. W. 833 (1900).

2 Wilmouth v. Patton, 2 Bibb. (Ky.) 280, 282 (1811).

Goodwin v. Holbrook, 4 Wend. 377 (1830), (salt to the value of $1,000, packed in barrels, was deemed portable); Barr v. Myers, 3 W. & S. (Pa.) 295 (1842), (two thousand mulberry-trees were treated as portable goods).

Allen v. Woods, 24 Pa. St. 76 (1854), (fifty thousand bricks were deemed cumbersome articles).

Hatch v. Oil Co., 100 U. S. 124, 135 (1879); Safe Co. v. Bank, 25 S. D. 119; 125 N. W. 572 (1910); cf. United States v. Peck, 102 U. S. 64 (1880), (seller's failure to perform was due to buyer's acts).

Howard v. Miner, 20 Me. 325, 330 (1841).

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