a payment may operate as a purchase and assignment of the price by the seller to the stranger;" or the stranger may be subrogated to the rights of the seller.98 Payment or tender by one of several joint debtors is valid.99 Section 42. 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, and the buyer must be ready and willing to pay the price in exchange for possession of the goods. Where the contract is silent as to the time of payment and delivery, the law presumes that they are to be immediate and concurrent acts. Neither party is in default or can maintain an 10 Exch. 607; Jones v. Broadhurst, 9 C. B. 173; Belshaw v. Bush, 11 C. B. 191; James v. Isaacs, 12 C. B. 791; Benjamin on Sales, § 756. 97. Webster v. Wyser, 1 Stew. (Ala.) 184; Harrison v. Hicks, 1 Port. (Ala.) 423; Martin v. Quinn, 37 Cal. 55; Harvey v. Tama Co., 53 Iowa, 228; Lavitt v. Morrow, 6 Ohio St. 71; Cain v. Bryant, 59 Tenn. (12 Heisk.) 45; Crumlish v. Central Imp. Co., 38 W. Va. 390, 23 L. R. A. 120; Gray v. Herman, 75 Wis. 453, 6 L. R. A. 691. 98. Crumlish v. Central Imp. Co., 38 W. Va. 390, 23 L. R. A. 120. 99. Benjamin on Sales, § 725. 1. Leonard v. Davis, 66 U. S. (1 Black) 476; Hatch v. Standard Oil Co., 100 U. S. 124; Drake v. Scott, 136 Ala. 261; Harmon v. Goetter, 87 Ala. 325; Beauchamp v. Archer, 58 Cal. 431; Osgood v. Skinner, 211 Ill. 229; Bainbridge V. Caldwell, 34 Ky. (4 Dana) 213; Morse v. Sherman, 106 Mass. 430; Goodwin v. B. & L. R. R. Co., 111 Mass. 487, 489; Haskins V. Warren, 115 Mass. 514; Townsend v. Hargraves, 118 Mass. 325; Safford V. McDonough, 120 Mass. 290; Watson v. Naugle Tie Co. 148 Mich. 675; Lamb v. Utley, 146 Mich. 654; South Western Freight Co. v. Stanard, 44 Mo. 71; Coleman v. Reynold, 207 Mo. 463; Canton v. McDaniel, 188 Mo. 207; Ferguson v. Clifford, 37 N. H. 86; Outwater v. Dodge, 7 Cow. (N. Y.) 85; Leven v. Smith, 1 Denio (N. Y.), 571; Palmer v. Hand, 13 Johns. (N. Y.) 434; Lester v. Jewett, 11 N. Y. 453; Morris v. Rexford, 18 N. Y. 552; Osborn v. Gantz, 60 N. Y. 540; Hunter v. Wetsell, 84 N. Y. 549; Hughes v. Knott, 138 N. C. 105; Longfellow v. Huffman, 49 Ore. 486; Catlin v. Jones, 48 Ore. 158; Woods v. Magee, 7 Ohio, part 2, 128; Harris v. Smith, 3 S. & R. (Pa.) 20; Morton V. (1797), 7 T. R. 125; Rawson V. Johnson (1801), 1 East, 201, 203; Wilks v. Atkinson (1815), 1 Marshall, 412; Pickford v. Grand Junc. Ry. (1841), 8 M. & W. 378; Bussey v. Barnett (1842), 9 M. & W. 312; Bankart v. Bowers (1866), L. R. 1 C. P. 484; Paynter v. James (1867), L. R. 2 C. P. 348; Bloxam v. Sanders (1825), 4 B. & C. 941, 948; Chinery v. Viall (1860), 28 L. J. Ex. 180, 183; Queen v. Jones (1898), 1 Q. B. 119; Pratt v. Freeman Mfg. Co., 115 Lamb action against the other, unless he is ready or willing to perform his part.2 The same rule applies to executory contracts.3 Wis. 648; 1 Mechem on Sales, §§ 538, 542; Benjamin on Sales, § 562. Where nothing has been said as to payment, the law presumes that the parties intended to make the payment of the price and the delivery of the possession concurrent conditions." Benjamin on Sales, § 677. Vendor sold trees at his nursery on a certain day, the trees to remain, if the vendee desired it, in the ground a month longer, at the vendee's risk, who agreed to pay for them on their actual delivery. Payment and delivery are concurrent acts. Hammond v. Gilmore's Admr., 14 Conn. 479, 485. Where personal property other than commercial paper is by contract sold for cash to be paid on delivery, the payment and delivery are to be concurrent acts; and, in such case, if the goods are put into the possession of the buyer in expectation that he will immediately pay the price, and, if he does not do it, the seller will be at liberty to treat the delivery as conditional, and he may at once reclaim the goods. Canadian Bank of Commerce v. McCrea, 106 Ill. 281, 298. Citing Paul v. Reed, 52 N. H. 136. This presumption is rebuttable. King v. Reedman, 49 L. T. (N. S.) 473. 2. Neal v. Boggan, 97 Ala. 611; Cole v. Swanston, Cal. 51; Hanson v. Slaven, 98 Cal. 377; Litchfield Saving Soc. v. Dibble, 80 Conn. 128, 133; Stoolfire v. Royse, 71 Ill. 223; Summers v. Sleeth, 45 Ind. 598; Howe v. Huntington, 15 Me. 350; Merrill Furn. Co. v. Hill, 87 Me. 17; Dana v. King, 19 Mass. (2 Pick.) 155; Swan v. Drury, 39 Mass. (22 Pick.) 485; Whitmarsh v. Walker, 42 Mass. (1 Met.) 313; Hapgood v. Shaw, 105 Mass. 276; Lamont v. LeFevre, 96 Mich. 175; Sanborn v. Shepherd, 59 Minn. 144; So. Western Freight Co. v. Standard, 44 Mo. 71; Whitman Agr. Ass'n v. Nat. Ass'n, 45 Mo. App. 90; Johnson-Brinkman Co. v. Central Bank, 116 Mo. 558; Walter v. Reed, 34 Neb. 544; Chapman v. Lathrop, 6 Cow. (N. Y.) 110; Palmer v. Hand, 13 Johns. (N. Y.) 434; Gazley v. Price, 16 Johns. (N. Y.) 267; Clark v. Dales, 20 Wend. (N. Y.) 61; Phelps v. Hubbard, 51 Vt. 489; Campbell v. Gittings, 19 Ohio, 347; Diem v. Koblitz, 49 Ohio St. 41; Wabash El. Co. v. First Nat. Bank, 23 Ohio St. 311; Simmons v. Green, 35 Ohio St. 104; Robison v. Tyson, 46 Pa. St. 286; Hall v. Brown, 82 Tex. 469; Wilks v. Atkinson (1815), 1 Marshall, 412; Jackson v. Allaway (1844), 6 M. & Gr. 942; Baker v. Firminger (1859), 28 L. J. Ex. 130; Jones v. Marsh, 22 Vt. 144; Cleveland v. Pearl, 63 Vt. 127; 2 Mechem on Sales, §§ 1119, 1407. "The vendor cannot insist on payment of the price without alleging that he is ready and willing to deliver the goods; the buyer cannot demand delivery of the goods without alleging that he is ready and willing to pay the price." Benjamin on Sales, § 677. "Although there has been some looseness of expression in the books, and perhaps some confusion of opinion on the subject, entertained; yet we suppose that the principle now clearly recognized is that where there are mutual acts to be performed by the contracting parties, at the same time, neither party is bound to do the first act, but each is bound to be able and ready to perform his own; and he who is thus able and ready, may sustain an action against him who is not." Hammond v. Gilmore's Admr., 14 Conn. 479, 485. Citing Kingston v. Preston, cited in Jones v. Barkley, Doug. 695; Morton v. Lamb, 7 T. R. 125; Rawson v. Johnson (1801), 1 East, 203; Bordenave v. Gregory, 5 East, 107; Pordage v. Cole, 1 Saund. 319, n. 4; Bean v. Atwater, 4 Conn. 3. A sold B goods in a bonded ware Demand or tender of performance is unnecessary; readiness and willingness to perform and notice thereof is sufficient.* house, to be delivered on or before June 1st, upon payment of price. Neither party performed nor requested nor demanded the other to perform before June 1st. After June 1st, upon B's refusal to take the goods, A sold them. Held, that neither could maintain an action against the other, because neither had put the other in default by demanding performance. Hapgood v. Shaw, 105 Mass. 276, 279. Readiness to deliver gives right to payment. Smith v. Gillett, 50 Ill. 290; Middlesex Co. v. Osgood, 70 Mass. (4 Gray) 447; Dakota Stock Co. v. Price, 22 Neb. 96; Schneider v. Oregon Co., 20 Ore. 172; Phelps v. Hubbard, 51 Vt. 489; Wood v. Tassell (1844), 6 Q. B. 234; Smith v. Chance, 2 B. & Ald. 753. 3. Anglo-American Provision Co. v. Prentiss, 157 Ill. 506; Behrends v. Beyschlag, 50 Neb. 304 (installment delivery); Smack v. Cathedral, 31 N. Y. App. Div. 559. 66 6 'Delivery to be made and price paid as soon as the quantities can be verified' shows that the parties contemplated and intended that the transfer of the title and the payment of the price should be simultaneous and that both should be postponed, until the quantities of the goods are verified and the amount of the purchase money thereby ascertained." Sherwin v. Mudge, 127 Mass. 547, 550. Citing Higgins v. Chessman, 26 Mass. (9 Pick.) 7, 10; Dresser Mfg. Co. v. Waterston, 44 Mass. (3 Met.) 9, 17; Macomber v. Parker, 30 Mass. (13 Pick.) 175; Mason v. Thompson, 35 Mass. (18 Pick.) 305; Riddle v. Varnum, 37 Mass. (20 Pick.) 280; Foster v. Ropes, 111 Mass. 10, 16. 4. Litchfield Saving Society v. Dibble, 80 Conn. 128, 133; Field v. Runk, 22 N. J. L. (2 Zab.) 525, 530; Hughes v. Knott, 138 N. C. 105; Blalock v. Clark, 133 N. C. 306; Catlin v. Jones, 48 Ore. 158. 'We think that the refusal of the defendant to perform the agreement on his part, when the plaintiff was ready and willing to perform it on his part, superseded the necessity of any further acts towards a performance by the latter, even if, under any circumstances, it would have been necessary to go further and allege a tender or offer by the plaintiff, and therefore that the declaration shows that the plaintiff did all that it was necessary for him to do in order to maintain this action. The refusal of the defendant to perform would render such an offer a futile act, which the law did not require. The objection of the defendant, that the declaration should have stated an offer or a tender by the plaintiff in addition to a refusal by himself, amounts to a claim that a performance by the plaintiff, or that which is equivalent, ought to have been alleged because such tender and refusal would, in law, be considered equivalent to a performance. But clearly such performance is not necessary, and therefore need not be alleged, because, as the agreement required only that the acts of both the parties should be done at the same time, neither was obliged to do the first act, or consequently to perform his part of the agreement without or before the other. The plaintiff, in order to sustain this action, need only show that he did what the law required of him; and all that it required was that he should be ready and willing to perform on his part if the defendant was also ready to perform on his. The plaintiff was clearly not bound to convey his land to the defendant and pay him the money for his utensils and furniture, unless the latter was ready to convey his land to the plaintiff according to the agreement. Consequently a readiness by the plaintiff to perform, provided the defendant was also ready, is equivalent Either party may expressly or impliedly waive the performance of the concurrent condition by the other party.5 Section 43. 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 contrary, the place of delivery is the seller's place of business, if he have such, 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 such 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 what the former was bound to do when the latter refused to perform on his part, and an averment of such readiness on the part of the plaintiff is sufficient. Some misapprehension or confusion appears to have arisen from the mode of expression used in the books in treating of the necessity of a tender or offer by the parties, as applicable to the case of mutual and concurrent promises. The word 'tender,' as used in such connection, does not mean the same kind of offer as when it is used with reference to the payment or offer to pay an ordinary debt due in money, where the money is offered to a creditor who is entitled to receive it and nothing further remains to be done, but the transaction is completed and ended; but it only means a readiness and willingness, accompanied with an ability on the part of one of the parties to do the acts which the agreement requires him to perform, provided the other will concurrently do the things which he is required by it to do, and a notice by the former to the latter of such readiness. Such readiness, ability and notice are sufficient evidence of, and indeed constitute and imply, an offer or tender in the sense in which those terms are used in reference to the kind of agreements which we are now considering." Smith v. Lewis, 26 Conn. 109, 118. Citing Morton v. Lamb (1797), 7 T. R. 125; Rawson v. Johnson (1801), 1 East, 203; Waterhouse v. Skinner, 2 B. & P. 447; Ferry v. Williams, 8 Taunt. 62; Norwood v. Read, Plowd., 180. See Leslie v. Casey, 59 N. J. L. 6. The vendor must be ready at the time and place to deliver the goods. Robbins v. Luce, 4 Mass. 474; B. & L. Iron Works v. Montague, 135 Mass. 319. 5. Marston v. Baldwin, 17 Mass. 606; Whitwell v. Vincent, 21 Mass. (4 Pick.) 449; Goodwin v. B. & L. R. R. Co., 111 Mass. 487; Upton v. Sturbridge, etc., Co., 111 Mass. 446; Haskins v. Warren, 115 Mass. 514; Freeman v. Nichols, 116 Mass. 309, 310. See White v. Solomon, 164 Mass. 516, 518, 30 L. R. A. 537. In the absence of express provision to the contrary, as to time of payment, the presumption is that the sale is for cash and the seller is not obliged to deliver the goods unless the price is concurrently paid; but if he voluntarily delivers the goods, it is a waiver of the condition and the title passes to the purchaser. Scudder v. to send the goods to the buyer, but no time for such sending them is fixed, the seller is bound to send said goods 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 affect 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 incidental to putting the goods into a deliverable state must be borne by the seller. The provisions of this section declare the common law rules of interpretation. The parties may, by the express terms of the contract or a tacit understanding implied from usage of trade or previous course of dealing, agree that the seller shall send and transport goods, or that the buyer shall send for and transport them.' Bradbury, 106 Mass. 422, 427. Citing 1. Shelby Iron Co. v. Dupree, 147 Ala. 602; Bacon v. Cobb, 45 Ill. 47 (previous course of dealing); Warren v. Winne, 2 Lans. (N. Y.) 209; Croninger v. Crocker, 62 N. Y. 151; Stephens v. Gifford, 137 Pa. St. 219; Calcutta Co. v. De Mattos, 32 L. J. Q. B. 309, 322; 2 Mechem on Sales, § 1119. "There is, indeed, no direct proof that the corn was to be delivered there; but the facts, proved abundantly, show that such must have been, and in truth was, the understanding of the parties. The plaintiff was a miller; his business was to buy grain, and manufacture it at his mills; the bargain was made there; it was there that grain bought by the plaintiff was usually delivered, and weighed or measured; 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 reasonable doubt as to the place of delivery contemplated by the parties to this contract, and, therefore, no demand was necessary, after the expiration of the time fixed for the delivery and before suit |