"the margin." Brett, L. J., differed, being of opinion that the plaintiffs were entitled to recover in respect of the 20 tons, leaving the defendants to a cross-action in respect of the 5 tons (a).

In the case of Englehart v. Bosanquet (b) it was held that, on a sale of 2,000 tons of sugar to come in two ships, when the sugar by the first ship was not equal to contract, the buyer was not bound to take the other.

In Kreuger v. Blanck (c), in 1870, the order was for a "small cargo," "in all about 60 cubic fathoms," of lathwood. The plaintiffs shipped 83 fathoms on board the Scandia for Gloucester, where their agent unloaded her and set apart 60 cubic fathoms for the defendant, who declined to accept them, on the ground that he had contracted for a cargo and not for a portion of one. Kelly, C. B., and Cleasby, B., delivered judgment for the defendant; but Martin, B., was of opinion that the defendant was not more entitled to refuse the timber tendered because other timber came with it than he would have been if the cargo had consisted in part of sugar or cotton. Blackburn, J., while delivering judgment in Ireland v. Livingstone (d), cast some doubt on this case.

Borrowman v. Drayton (e), in 1876, was an action for not accepting, very similar to Kreuger v. Blanck (f). The plaintiffs contracted to sell to the defendant a cargo of from 2,500 to 3,000 barrels of petroleum. They shipped 3,000 barrels, but as this was not a full cargo, they put 300 more barrels on board, marking them so that they could be distinguished from the 3,000, and made out separate bills of lading for the two quantities. The Exchequer Court, consisting of Kelly, C. B., Cleasby and Amphlett, BB., decided that the defendant

(a) Cf. section 31 (1) of the Sale of Goods Act: "Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalments."

(b) Englehart v. Bosanquet, not reported, but mentioned by Bramwell, L. J., in Honck v. Muller, 50 L. J. Q. B. 529; 7 Q. B. D. 100.

(c) Kreuger v. Blanck, 39 L. J. Ex. 160; L. R. 5 Ex. 179.

(d) Ireland v. Livingstone, 41 L. J. Q. B. 206; 5 E. & I. App. 410.

(e) Borrowman v. Drayton, 47 L. J. Ex. 273; 2 Ex. D. 15.

(f) Kreuger v. Blanck, ante.

was not bound to accept, and their judgment was affirmed in the Court of Appeal by Cockburn, C. J., James and Mellish, L.JJ., and Baggallay, J. Mellish, L. J., said, “We "think that effect must be given to the term 'cargo' as distinguished from the specified quantity, as, if the parties "had intended otherwise, it would have been enough to "specify the quantity without introducing the term 'cargo' "at all" (a).

The following are instances where goods were delivered mixed with goods of a different description not included in the contract. Levy v. Green (b), in 1857, was a case where the defendant gave an order for crockery of certain descriptions to the plaintiff's traveller, which the plaintiff packed in a crate larger than was necessary, and he then filled it up with crockery not ordered, apparently on sale or return. The defendant refused to accept any of the articles. Lord Campbell, C. J., and Wightman, J., were of opinion that the defendant would be put to trouble, risk, and expense beyond what by the contract he was to incur, and was therefore not bound to accept. Coleridge and Erle, JJ., were of the opposite opinion, Coleridge, J., being of opinion that where goods came mixed they could not be rejected if they were distinguishable. But neither of these Judges appears to have refuted Lord Campbell's view, which was subsequently held by the Exchequer Chamber (c) to be the correct one.

It will be noticed that, while in Levy v. Green the decision that the buyer was not bound to accept was rested on the ground that he would be put to trouble, risk, and expense beyond what by the contract he was to incur, section 30, sub-section (3) of the Sale of Goods Act gives the buyer an absolute right to reject, irrespective of whether he could or could not, without trouble, separate the goods.

An instance of a case in which (as under section 30,

(a) See also Cuthbert v. Cumming, in 1855, 24 L. J. Ex. 198; 24 L. J. Ex. 310; 10 Ex. 809; 11 Ex. 405.

(b) Levy v. Green, 28 L. J. Q. B. 319; 1 E. & E. 969.

(c) See also Nicholson v. Bradford Union, 35 L. J. Q. B. 176; L. R. 1 Q. B. 620; 7 B. & S. 747; and Rylands v. Kreitman, 19 C. B. N. S. 351.

sub-section (4) of the Sale of Goods Act) the buyer may be bound by special agreement to accept less than the amount of the goods specified in the contract will be found in Graham v. Jackson (a), in 1811, and in McLay v. Perry (b), in 1881.

As to Time.

In mercantile contracts, stipulations as to time (except as regards time of payment (c)) are usually are usually of the essence of the

contract.

or

Thus in Reuter v. Sala (d), in 1879, the contract was to deliver 25 tons of pepper of October and November shipment, name of vessel and full particulars to be declared to buyer within 60 days of the bill of lading. Only 20 tons were declared within the 60 days, but subsequently 5 more tons were declared. In holding that the buyer was not bound to accept, Cotton, L. J., said: "It was argued that the rules of "Courts of Equity are to be regarded in all Courts, and that "equity enforced all contracts though the time fixed therein "for completion had passed. This was in the case of contracts, "such as purchases and sales of land, where, unless a contrary "intention could be collected from the contract, the Court "presumed that time was not an essential condition. To apply "this to mercantile contracts would be dangerous and un66 reasonable. We must therefore hold that the time within "which the pepper was to be declared was an essential con"dition of the contract."

In Alweyn v. Prior (e), at Nisi Prius in 1826, the contract was for the sale of "all the Gallipoli oil on board "the Thomas . . . on arrival in Great Britain: to be "delivered with all convenient speed, but not to exceed the "30th day of June next, &c." The vessel did not arrive till the 4th of July. The oil was tendered, but the buyer

(a) Graham v. Jackson, 14 East, 498.
(b) McLay v. Perry, 44 L. T. N. S. 152.

(c) See Sale of Goods Act, section 10 (1).

(d) Reuter v. Sala, 48 L. J. C. P. 492; 4 C. P. D. 239.

(e) Alweyn v. Prior, Ry. & M. 406.

refused to accept it; and Abbott, C. J., held that he was justified.

In Busk v. Spence (a), at Nisi Prius in 1815, the contract for the sale of flax stated that "the flax shall be despatched "from St. Petersburgh not later than the 31st July "and as soon as he (the seller) knows the name of the vessel "in which the flax will be shipped, he is to mention it to "the buyer." The flax was brought from St. Petersburgh in lighters and put on board before the end of July, but the ship did not sail until the 4th of September. The seller received the advice on the 12th of September in London, but did not communicate it to the defendant at Hull until the 20th. The defendant declined to accept the flax. Gibbs, C. J., was of opinion that the flax had been despatched in due time, but that the stipulation as to mentioning the name was a condition precedent, and that it had not been complied with (b).

In Barber v. Taylor (c), in 1839, the contract was for 150 bales of cotton, payment being provided for in these terms: Upon forwarding a bill of lading, I will accept your "draft at sixty days' sight after the receipt of the bill of "lading." The cotton was put on board the Romulus, and the bill of lading was sent by the same ship, which arrived on the 21st of April. On the 24th the plaintiff told the defendant that Messrs. Wilson had the bill of lading in their possession, and would not give it up unless the defendant got a banker's guarantee of his acceptance, or paid cash, or pledged the cotton with a broker to secure payment. The defendant declined these terms, and on the 25th he offered to accept the draft if the bill of lading were handed to him. It was not handed to him, and he declared the contract was at an end. On the 3rd of May the plaintiff tendered the bill of lading with the draft, but the defendant refused to receive it or to accept the draft, on the ground that it had not been

(a) Busk v. Spence, 4 Camp. 329.

(b) See Graves v. Legg, post, p. 247, 26 L. J. Ex. 316; 9 Ex. 709; 2 H. & N. 210; and Reuter v. Sala, ante, pp. 241 and 244, 48 L. J. C. P. 492; 4 C. P. D. 239. (c) Barber v. Taylor, 5 M. & W. 527.

tendered within a reasonable time after delivery. Parke, B., pointed out that it might be material to the buyer to have it delivered as soon as possible after its arrival, so that he might go into the market and sell, and the Court held that he was not obliged to receive it after the delay (a).

In Startup v. Macdonald (b), in 1843, the contract was to sell and deliver 10 tons of oil "within the last 14 days of "March"; the plaintiff tendered it at half-past eight on the evening of the last day of March. It was found that the tender had been made in time to give the defendant full opportunity to weigh, examine, and receive the oil, but the defendant, who was present, declined to receive it on the ground that the tender was made at an unreasonable time, and it was held by Rolfe, Gurney, Alderson, and Parke, BB., and Williams and Patteson, JJ., that the tender had been made in time, Lord Denman, C. J., dissenting. All the authorities were considered in this case, Parke, B., in his judgment (c) saying, "Where a thing is to be done anywhere, "a tender a convenient time before midnight is sufficient; "where the thing is to be done at a particular place, and "where the law implies a duty on the party to whom the "thing is to be done to attend, that attendance is to be by "daylight, and a convenient time before sunset" (d).

In Duncan v. Topham (e), in 1849, the defendant had on the 19th of February offered to take certain linseed cakes if put on board "directly." The plaintiff accepted the offer on the 22nd, saying he would ship them "to-morrow," and shipped them on the 26th. The defendant declined to accept. The plaintiff, in his declaration, set out the contract wrongly, but Cresswell, J., intimated that if he had stated it correctly the verdict would have been against him (ƒ).

(a) Parol evidence may be given to show what is a reasonable time: Ellis v. Thompson, in 1838, 3 M. & W. 445; and see Sale of Goods Act, s. 29 (c). (b) Startup v. Macdonald, 12 L. J. Ex. 477; 6 M. & G. 593.

(c) 12 L. J. Ex. 483; 6 M. & G. 625.

(d) See Sale of Goods Act, section 29 (4).

(e) Duncan v. Topham, 18 L. J. C. P. 310; 8 C. B. 225.

(f) For the meaning of the words "immediately" and "forthwith," see Toms v. Wilson, in 1862, 32 L. J. Q. B. 382; 4 B. & S. 442; and Roberts v. Brett, in 1865, 34 L. J. C. P. 337; 11 H. L. R. 337.