CHAPTER VI.

PERFORMANCE OF THE CONTRACT.

§ 82. Seller must deliver and buyer accept goods. "It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract to sell or sale" (1).

The delivery may be actual, a manual or physical handing over of the goods themselves, or constructive, which is the legal equivalent of actual delivery, by some act which clearly indicates the intention of the parties to transfer the right of possession. A delivery to an agent of the buyer is a delivery to the buyer, e. g., delivery to a carrier for transportation to the buyer, the carrier being the agent of the buyer, for that purpose. Where goods are in the possession of a bailee, a notice of the sale, given to the bailee, is a constructive delivery. The delivery may be symbolical, as by the transfer of something which is intended to represent the goods, e. g., bills of lading, warehouse receipts, and so forth.

§ 83. Delivery and payment are concurrent conditions. "Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions; that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price,

(1) Sales Act, sec. 41.

and the buyer must be ready and willing to pay the price in exchange for possession of the goods" (2).

The parties may agree upon the time of delivery and the time of payment. Where credit is given, the buyer is entitled to possession of the goods and the seller is entitled to the purchase money, either on demand or at the time stated in the agreement for credit. In the case of a contract of sale for cash on delivery, "if the goods are put into the possession of the buyer in the expectation that he will immediately pay the price, and he does not do it, the seller is at liberty to regard the delivery as conditional, and may at once reclaim the goods" (3). Where goods, sold for cash or notes on delivery, are delivered without the cash or notes being given or demanded, the presumption is that the condition has been waived and that the property in the goods has passed to the purchaser; but this presumption may be rebutted by evidence of the declarations or acts of the parties and the surrounding circumstances, which show the intention that the delivery should not be considered complete until performance of the condition (4).

§ 84. Place, time, and manner of delivery. "1. Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, or usage of trade to the

(2) Sales Act, sec. 42.

(3)

Bellows, C. J., in Paul v. Reed, 52 N. H., 136. (4) Parker v. Baxter, 86 N. Y., 586.

contrary, the place of delivery is the seller's place of business, if he have one, and if not, his residence; but in case of a contract to sell or a sale of specific goods, which to the knowledge of the parties when the contract or the sale was made were in some other place, then that place is the place of delivery. 2. Where by a contract to sell or a sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. 3. Where the goods at the time of sale are in the possession of a third person, the seller has not fulfilled his obligation to deliver to the buyer unless and until such third person acknowledges to the buyer that he holds the goods on the buyer's behalf; but as against all others than the seller the buyer shall be regarded as having received delivery from the time when such third person first has notice of the sale. Nothing in this section, however, shall effect the operation of the issue or transfer of any document of title to goods. 4. Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact. 5. Unless otherwise agreed, the expenses of and incident to putting the goods into a deliverable state must be borne by the seller" (5).

These provisions of the Sales Act are well established rules of law. If no place of delivery is specified in the contract, the articles sold must, in general, be delivered at the place where they are at the time of the sale, unless some other place is required by the nature of the article,

(5) Sales Act, sec. 43.

or by the usage of the trade, or the previous course of dealing between the parties, or is to be inferred from the circumstances of the case (6). Where the goods are manufactured for the buyer, the place of manufacture is the place of delivery (7). The store of a merchant, or other place where the goods are usually kept, is the place of delivery. The parties may agree upon any manner of delivery, such as by delivering the key to a trunk or warehouse. Where the goods at the time of the sale are in the possession of a third person, he becomes a bailee for the buyer from the time he receives notice of the sale. He may, of course, terminate the bailment at any time by refusing to keep possession for the buyer, but he can not prevent the sale from taking effect, and, as long as the goods are in his possession, he is a bailee for the real owner, whoever he may be.

§ 85. Delivery of wrong quantity. "1. Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts or retains the goods so delivered, knowing that the seller is not going to perform the contract in full, he must pay for them at the contract rate. If, however, the buyer has used or disposed of the goods delivered before he knows that the seller is not going to perform his contract in full, the buyer shall not be liable for more than the fair value to him of the goods so received. 2. Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the

(6) Hatch v. Oil Co., 100 U. S., 124.
(7) Goddard v. Binney, 115 Mass., 450.

buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate. 3. Where the seller delivers to the buyer the goods which he contracted to sell, mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole. 4. The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties" (8).

It is the duty of the seller to deliver the exact quantity sold. The condition is broken by the delivery of a larger quantity as well as by a delivery of a quantity less than that sold. "The delivery of fifteen hogsheads, under a contract to deliver ten, is no performance of that contract, for the person to whom they are sent cannot tell which are the ten that are to be his; and it is no answer to the objection to say that he may choose which ten he likes, for that would be to force a new contract upon him. The delivery of more than ten is a proposal for a new contract" (9). The buyer may accept the amount tendered, in which case he assents to the substituted performance for that required by the terms of the contract. The same principles apply when the seller delivers goods mixed with goods of a different description not included in the contract.

That these principles are subject to any usage of trade,

(8) Sales Act, sec. 44.

(9) Parke, B., in Cunliffe v. Harrison, 6 Ex., 903, 906.