extrinsic facts, such as the business usages of the parties,1 or their acts under the contract; 2 in short, by the circumstances of the case.

247. When they designate a Locality, leaving Exact Spot to be fixed. Oftentimes the contract designates a locality as the place of delivery, leaving the specification of the exact spot to one of the parties. It then becomes his duty to notify the other of the selected place, before that other can be treated as in default. When the buyer has the right of selection and fails to exercise it, the seller may appoint the spot; and, by delivering the goods there with notice to the buyer, may put them at his risk, if the transaction is one of bargain and sale.

The same result would follow, though the transaction were a contract to sell, provided it were within a jurisdiction where the doctrine of Bement v. Smith 5 obtains. This doctrine in a modified form has been adopted by the Uniform Sales Act. The elements of an action under this statutory provision have been judicially described as follows: "(1) A breach of the

1 Bronson v. Gleason, 7 Barb. (N. Y.) 472, 475, 476 (1849). "We also know... that the plaintiffs were dealers in the article of salt; and had, previous to the date of the contract in question, purchased salt of the defendant, which he had transported in boats, and by himself and hands delivered the same to the plaintiffs upon their dock at Oswego."

2 Field v. Runk, 22 N. J. L. 525, 529 (1850). "A part of the grain bargained for was actually delivered there by one of the defendants; and the other defendant, when he had resolved to violate the contract, declared he would not take it. Take it where? Why, by fair inference, where he had already taken the 98 bushels, to the plaintiff's mills. There can be no doubt as to the place of delivery contemplated by the parties to this contract."

Davies v. McLean, 28 L. T. N. s. 113; 21 W. R. 264 (1873), (one hundred tons lard ex quay or warehouse in Liverpool; the seller was bound to give the buyer notice of the particular quay or warehouse from which delivery was to take place); Kunkle v. Mitchell, 56 Pa. 100 ("on the cars at Indiana station 75,000 feet of lumber;" the buyer was bound to notify the seller that cars were at the station).

Lincoln v. Gallagher, 79 Me. 189 (1887); 8 At. 883; Burdick's Cases on Sales, 380 (bargain and sale of a ship to be delivered in Portland Harbor). 15 Wend. 493 (1836); Burdick's Cases on Sales, 164; Krebs Hop Co.

v. Livesley, 59 Ore. 574; 118 Pac. 165 (1911).

Conn. L. 1907, ch. 212, § 63 (3).

7 Illustrated Postal Card & Nov. Co. v. Holt, 85 Conn. 140, 145; 81 At. 1061 (1912).

contract to sell goods; (2) that the property in the goods at the time of the breach has not passed; (3) that they cannot be sold for a reasonable price; (4) that the seller has offered to deliver them to the buyer; (5) that the buyer has refused to receive them; (6) that the seller has notified the buyer that he thereafter holds the goods as bailee for the buyer."

248. Time of giving Possession. If this is not fixed by the express terms of the contract, or is not fairly inferable from the facts of the case, possession is to be given or taken within a reasonable time. What is a reasonable time is a question of fact depending upon all the circumstances of the case. "There is, of course, no such thing as a reasonable time in the abstract. It must always depend upon circumstances," and "the only sound principle is that the reasonable time should depend on the circumstances which actually exist," provided that "those circumstances, in so far as they involve delay, have not been caused or contributed to by the" party charged with undue delay.2

Accordingly, it

249. Delay due to Extraordinary Causes. has been held that if no time of delivery is agreed upon, the seller is not responsible for a delay of several weeks beyond the usual time of making delivery of such goods as the contract calls for, in case this delay is due to strikes or other extraordinary causes beyond his control.3 "The principles which must govern" the decision of such a case are as old as the law of contract. . . . The condition of reasonable time has invariably been held to mean that the party upon whom it is incumbent duly fulfils his obligation, notwithstanding protracted delay, so long as such delay is attributable to causes beyond his control,

66

1 Bagby v. Walker, 78 Md. 239, 247; 27 At. 1033 (1893); Burdick's Cases on Sales, 29. If facts are undisputed and but one inference possible, the question may be disposed of by the court. Pinney v. Railroad, 19 Minn. 251 (1872). Under a contract for 2,500 cigars "to be shipped at once," the seller cannot wait nineteen days before shipping. Fisher v. Boynton, 87 Me. 395; 32 At. 995 (1895); Rhoades v. Cotton, 90 Me. 453; 38 At. 367 (1897); Sale of Goods Act, § 29 (2); Uniform Sales Act, § 43 (2); Pearson v. McKinney, 160 Cal. 649; 117 Pac. 919 (1911); Hoffman v. Tribune Pub. Co., 65 Wash. 467; 118 Pac. 306 (1911).

2 Hick v. Raymond (1893), A. C. 22, Lord Ch. Herschell, at p. 29. Taylors v. Maclellans, 19 Sess. Cas. 4th ser. 10 (1891).

"1 Ac

and he has neither acted negligently nor unreasonably.' cordingly, if A contracts to sell coffee and ship it from Sumatra to New York, no time of delivery being specified, and, in the regular course of business, ships sail from Sumatra to New York, monthly, he will be excused from shipping promptly if a radical change in transportation facilities prevents prompt shipment. If, however, his failure to ship and deliver within a normally reasonable period is due to some personal disadvantage on his part, such as the influence of rivals or the unpopularity of his agent in Sumatra, inducing the shipowners to discriminate against him, his delay will not be excused.2

250. Reasonable Hour. If the contract fixes the day of delivery, but does not specify the hour, possession must be given at an hour which is reasonable, having regard to the circumstances of each case.3

250 (a). Question for Court or Jury. When the contract calls for "immediate" shipment or delivery, it is construed by most courts to negative any inference that the seller has a reasonable time for action. He must act at once. If the facts are undisputed, and warrant but one inference, it is for the court to say whether the seller has delivered within a reasonable time, or at a reasonable hour.5 In other cases, the question is for the jury.

6

251. Time of Delivery an Essential Term. A stipulation, in a contract of sale, for the delivery of the goods at a specified

1 Hick v. Raymond, supra (Lord Watson, at p. 32), affirming Hick v. Rodocanachi (1891), 2 Q. B. 626, which had been followed in Taylors v. Maclellans, supra.

Eppens, Smith, & Co. v. Littlejohn, 164 N. Y. 187; 58 N. E. 19 (1900). * Croninger v. Crocker, 62 N. Y. 151, 158 (1875); Sale of Goods Act, § 29 (4). This provision annuls the technical rules laid down in Startup v. Macdonald, 6 M. & G. 593 (1843); and is copied in the Uniform Sales Act, § 43 (4).

4 Clauss, Shear Co. v. Ala. Barber Supply Co., 1 Ala. App. 664; 56 So. 49 (1911), citing many cases. Cf. Jones & L. S. Co. v. Abner Doble Co., Cal.; 123 Pac. 290 (1911).

Jewelry Co. v. Pugh Bros., 168 Ala. 295; 53 So. 324 (1910); Bacon v. Green, 36 Fla. 325, 348; 18 So. 870 (1895); Morgan v. McKee, 77 Pa. 228, 231 (1874).

Loomis v. Norman Printers Supply Co., 81 Conn. 343; 71 At. 358 (1908).

time, is an essential1 and not a collateral term. If the parties bargain for "No. 1 Eglinton Scotch pig-iron for shipment by sail in December, 1879," their contract is not for iron of any kind, nor for No. 1 Eglinton Scotch pig-iron simply, but for such iron shipped at the stipulated time. If the seller delivers the described iron at any other time than that specified, the buyer has a right to say, The article you tender is not the article I agreed to buy. In Hick v. Raymond1 Cairns, L. Ch., said: "It is a mercantile contract, and merchants are not in the habit of placing upon their contracts stipulations to which they do not attach some value and importance, and that alone might be a sufficient answer" (to the question why time of shipment should be deemed an essential term). "But, if necessary, a further answer is obtained from two other considerations. It is quite obvious that merchants making contracts for the purchase of rice, contracts which oblige them to pay in a certain manner for the rice purchased, and to be ready with funds for making that payment, may well be desirous both that the rice should be forthcoming to them not later than a certain time, and also that the rice shall not be forthcoming to them at a time earlier than it suits them to be ready with funds for its payment. There is still another explanation, . . . that these contracts were made for the purpose of satisfying and fulfilling other contracts.' "3

252. Strict Performance may be waived. While the buyer has a right to insist upon having possession of the goods at the agreed time, and may reject them if offered at a different time, he can waive strict performance by the seller. Mere receipt of a part of the goods, without knowledge of the seller's inability

1 Ellinger v. Comstock, 13 Ind. App. 696; 41 N. E. 351 (1895); Clauss Shear Co. v. Alabama Barber Supply Co., 1 Ala. App. 664; 56 So. 49 (1911); Oshinsky v. Lorraine Mnfg. Co., 187 Fed. 120 (1911).

2 Hill v. Blake, 97 N. Y. 216, 220, 221 (1884); Bowes v. Shand, 2 App. Cas. 455, Blackburn, L. J., 480, 481 (1877).

The Georgia Code, § 3675 (8), declares that time is not generally of the essence of a contract. But in Augusta Factory v. Mente & Co., 132 Ga. 503; 64 S. E. 553 (1909), time was held to be of the essence, because of its importance to the buyer.

4 Supra, ch. v. § 7: General Elec. Co. v. Nat. Contracting Co., 178 N. Y. 369; 70 N. E. 928 (1904).

to supply all within the stipulated period, will not constitute a waiver, and if the remainder is offered after the expiration of such period, the buyer may reject the whole.2 Nor, in most jurisdictions, will the mere acceptance of the goods, after the time fixed in the contract, operate as a waiver of the seller's breach of this term. The buyer may accept the belated goods, transfer the condition precedent into a warranty ex post facto, and claim damages for the breach of what is now a collateral term of the contract.3

253. Instalment Deliveries; Entire not Divisible Contracts.— Oftentimes the sale contract provides for the delivery of goods by instalments, and for separate payments therefor. In such cases, the mere fact that the deliveries and payments are to be made at different dates, extending over a considerable period of time, does not split up the agreement into separate contracts for each instalment. It is true the parties may so frame their agreement as to resolve it into several distinct contracts.5 On

1 Nightingale v. Eiseman, 121 N. Y. 288, 292, 293; 24 N. E. 475 (1890); Burdick's Cases on Sales, 449; Pope v. King, 108 Md. 37; 69 At. 417; 16 L. R. A. N. s. 489 (1908).

2 But suppose the buyer has used or disposed of the goods delivered before learning that the seller will not perform the contract in full. Must he pay for those so used or disposed of? Under Catlin v. Tobias, 26 N. Y. 217; 84 Am. Dec. 183 (1863), and kindred cases, he was not liable. This may have been changed by the Uniform Sales Act, § 44 (1), (N. Y. L., § 125) which declares that in such case "the buyer shall not be liable for more than the fair value to him of the goods so received." This certainly would allow him to set off against the value of the goods used, damages sustained by him because of the seller's failure to supply the whole. Cf. Brady v. Cassidy, 145 N. Y. 171; 39 N. E. 814 (1895); and it does not in terms require a court to repudiate the doctrine of Catlin v. Tobias, supra.

Bagby v. Walker, 68 Md. 239, 244, 245; 27 At. 1033 (1893); Burdick's Cases on Sales, 29, and supra, ch. v. § 2; Redlands O. G. Assoc. v. Gorman, 161 Mo. 203; 61 S. W. 820; 54 L. R. A. 718 (1901).

Mersey Steel & Iron Co. v. Naylor, 9 App. Cas. 434, 439 (1884); Norrington v. Wright, 115 U. S. 188; 6 Sup. Ct. 12 (1885); Burdick's Cases on Sales, 451. In some jurisdictions a different view prevails. See Myer v. Wheeler, 65 Ia. 390, 396; 21 N. W. 692 (1884). This case was decided before the report of either of the foregoing cases appeared, and was founded in part on the authority of the note to Norrington v. Wright (at circuit), in 21 Am. L. R. N. s. 395.

Morgan v. McKee, 77 Pa. St. 228 (1874), (an agreement for the sale of four thousand barrels of oil was split up into eight separate written contracts for monthly deliveries of five hundred barrels each).