A Commentary on the Sale of Goods Act, 1893

S. 25 (2).

himself, it has been expressly decided that the goods need not be merchandise (v). Furthermore, it may be a question whether ss. 4 and 5 of the Factors Act, 1889, apply to deliveries, &c. by mercantile agents under this sub-section. See on this the notes to sub-s. 1, ante, p. 164.

S. 25 (3). Meaning of the term "mercantile agent."

ILLUSTRATIONS.

1. A. agrees to let to B. certain furniture on hire at a certain rent, B. to become owner of the furniture on paying the rent in full, and performing all the stipulations of the contract, one of them being that the furniture shall not, without A.'s consent in writing, be removed from B.'s premises. B., before all the rent is paid, sells the furniture to C., who buys in good faith and without notice of A.'s rights. The property in the furniture is in C. Lee v. Butler, [1893] 2 Q. B. 318.

2. A. agrees to sell to B. for 821. certain machines then in the possession of C., and gives B. a delivery order on C. B. then by word of mouth sells the machines for 50l. to D., who acts in good faith, &c., and gives him the delivery order. D. has a good title against A., though his contract was verbal, and though D. has not fully paid B. for the goods, and A. cannot retain them against D. until he pays the remaining 251. Hugill v. Masker (1889), 22 Q. B. D. 364. 3. A. agrees to let to B. on hire a piano, to be paid for by instalments, when the piano is to become B.'s property. A. has a right to repudiate the contract if B. does not perform all the agreement, and B. has a right to return the piano if he pleases. B. resells (not having paid all the instalments) to C., who acts without notice and in good faith. A. cannot recover the piano from C. Helby v. Matthews, [1894] 2 Q. B. 262.

The term "mercantile agent."-A mercantile agent is defined in s. 1 (1) of the Factors Act, 1889 (Appendix of Statutes, post, p. 325). The following kinds of agents were, owing to the effect of judicial decisions, excluded from the operation of the Factors Acts previous to that of 1889, and under the statutory definition contained in that Act will now be also excluded from the latter, viz. :

(1.) Agents having the control or management of goods only, as, e. g., clerks or servants, cashiers, caretakers, and the like (x):

(2.) Agents for safe custody, as, e. g., bailees, wharfingers, and warehousemen (y):

(3.) (Probably) Agents employed in the carriage of goods, as, e.g., carriers or forwarding agents (*):

(v) Lee v. Butler, [1893] 2 Q. B.

318.

(x) Lamb v. Attenborough (1862), 1 B. & S. 831.

(y) Monk v. Whittenbury (1831), 2 B. & Ad. 484.

(z) Hellings v. Russell (1875), 33 L.

T. N. S. 380; and see City Bank v. Barrow (1880), 5 Ap. Ca. 664, 674. The definition in s. 1 (1) includes a mercantile agent having authority "to consign goods for the purpose of sale." Qy., are these decisions thereby affected?

And, under the Factors Act of 1889, an agent to sell goods retail at private houses is not a mercantile agent (a).

S. 25 (3).

writs of

26.-(1.) A writ of fieri facias or other writ of exe- Effect of cution against goods shall bind the property in the execution. goods of the execution debtor as from the time. when the writ is delivered to the sheriff to be executed; and, for the better manifestation of such time, it shall be the duty of the sheriff, without fee, upon the receipt of any such writ to endorse upon the back thereof the hour, day, month, and year when he received the same.

Provided that no such writ shall prejudice the title to such goods acquired by any person in good faith and for valuable consideration, unless such person had at the time when he acquired his title notice that such writ or any other writ by virtue of which the goods of the execution debtor might be seized or attached had been delivered to and remained unexecuted in the hands of the sheriff.

(2.) In this section the term "sheriff" includes any officer charged with the enforcement of a writ of execution.

(3.) The provisions of this section do not apply to Scotland.

The rule at common law was that the goods of the execution debtor were bound from the teste of the writ, and that even a bona fide sale to a third person did not defeat it. And such would appear to be still the law in favour of the Crown, which was not bound by the 29 Car. 2, c. 3(b). To amend this state of the law the Act, 29 Car. 2, c. 3 (Statute of Frauds), was passed, which enacted, in s. 15 (commonly cited as s. 16), that the goods should be bound from the date of the delivery of the writ to the sheriff. The "binding" of the goods meant that, though the property in the goods remained still in the debtor, and could be dealt with, he could only sell subject to the rights (b) Maxw. on St. (1st ed.), p. 115.

(a) Hastings v. Pearson, [1893] 1 Q. B. 62.

S. 26 (1).

of the execution creditor, unless he sold in market overt, in which case the rights of the sheriff were gone altogether (c).

To further protect bond fide buyers, s. 1 of the 19 & 20 Vict. c. 97 (Mercantile Law Amendment Act), provided that bond fide titles acquired before actual seizure by a person, not having at the time notice of any writ remaining unexecuted in the hands of the sheriff, &c., should be good.

The present section reproduces the provisions of these two Acts (which are both included in the schedule of repealed enactments, post), with these modifications, viz., that in sub-s. 1 the word "hour" is added before "day of the month and year" in the Act of Chas. II.; and in sub-s. 2 the words "no such writ" (i.e., "writ of fi. fa. or other writ of execution," in sub-s. 1) are substituted for "no writ of fi. fa., or other writ of execution, and no writ of attachment" in the Act of Victoria; and the words in the latter Act, "before the actual seizure or attachment thereof," in connection with the "title acquired," are omitted. The addition of the word "hour" is a real addition to the previous law; the other alterations create no substantial change, the omission of the words "before the actual seizure" being immaterial, as the "notice" which the buyer is to have to invalidate his title is notice of a writ "remaining unexecuted," i. e., notice before seizure.

In good faith. This is defined in s. 62 (2) as "honestly, whether . . . . negligently or not."

Notice. On the analogy of the Bankruptcy Act, s. 49, "notice" here would mean "knowledge," not "means of knowledge" (d).

Or any other writ.-The third party, in fact, must not have notice of the general position of the debtor, nor necessarily of his position with regard to any particular writ.

Had been delivered.-Notice that it was probable that the writ would be delivered is, it would seem, insufficient. "A notice of something certain and inevitable-as of the rising of the tidethough given beforehand, might perhaps, after the event, be treated as notice of the fact; but this cannot be said with respect to what is merely probable" (e).

And remained unexecuted. the requirement that the third

These words practically lay down. person's title should be acquired

plained by Parke, B., in Hope v. Meek (1855), 10 Ex. 829.

(e) Per Bramwell, B., in Gladstone v. Padwick (1871), L. R. 6 Ex. at

(d) See Bird v. Bass (1843), 6 M.
& G. 143. See the principle ex- P. 211.

before seizure, as under s. 1 of the 19 & 20 Vict. c. 97. See remarks above.

Sheriff.-Defined in sub-s. 2, and will include an under-sheriff, bailiff, or sheriff's officer. Such an officer would be, for example, a high bailiff under the County Courts Act of 1888, 8. 146.

S. 26 (2).

breach of

Under s. 29 of the Sheriffs Act, 1887 (50 & 51 Vict. c. 55), a Sheriff's sheriff who wrongfully neglects (inter alia) to give a receipt for liability for a writ of execution, stating the day of its delivery (s. 10 (1)), is duty. punishable as therein mentioned. Quare, whether this remedy is affected by the provisions of s. 57 of this Act, which declares that "any right, duty or liability" under the Act may "be enforced by action."

See for the Scotch law, Bell's Prin., Bk. 5, ch. 2.

S. 26 (3). Law of

Scotland.

PART III.

PERFORMANCE OF THE CONTRACT.

seller and

27. It is the duty of the seller to deliver the Duties of goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale.

Delivery, acceptance, and payment must be (1) of the goods; (2) in accordance with the contract of sale.

"After the contract of sale has been completed, the chief and immediate duty of the seller, in the absence of any contrary stipulations, is to deliver the goods to the buyer, as soon as the latter has complied with the conditions precedent, if any, incumbent on him "(ƒ).

"The seller having done or tendered all that the contract requires, it becomes the buyer's duty to comply in his turn with the obligations assumed. In the absence of express stipulations imposing other conditions, the buyer's duties are performed when he accepts and pays the price" (g). "The buyer's obligation to accept depends on the compliance by the seller with his obligation to deliver" (h).

The parties may, under s. 57, make what bargain they please. Accordingly they may agree that delivery may be made to a carrier, as under s. 32; or at the destination of the goods only,

buyer.

S. 27.

Delivery.

Delivery of a key.

Delivery by bill of lading.

as (by implication) under s. 33; or they may agree that delivery to a carrier may be good, and yet that the price should not be payable unless the goods arrive (i).

To deliver the goods.-" Delivery" is defined in s. 62 (1), and the general rules with respect thereto are stated in s. 29. It is a reciprocally concurrent condition with payment (s. 28); and is also, as above stated, conditional on the buyer's performance of any other condition precedent, as, e. g., notice (where essential) of the place of acceptance (k). "There may be a symbolical delivery of goods, divesting the seller's possession and lien." Lord Kenyon, C. J., said, in Chaplin v. Rogers (1), that "where goods are ponderous and incapable of being handed over from one to another, there need not be an actual delivery; but it may be done by that which is tantamount, such as the delivery of the key of the warehouse in which the goods are lodged, or by the delivery of other indicia of property." And there was another dictum of Lord Kenyon in Ellis v. Hunt (m). On this principle, the delivery of the grand bill of sale of a vessel at sea has always been held to be a delivery of the vessel” (n).

The delivery of a key is not, however, really symbolical, but an actual transfer of the means of control (o). In Wilton v. Tucker (p), Kekewich, J., says: "The delivering of the key giving exclusive control is regarded as delivery of possession itself."

When the goods are deliverable by a bill of lading, the seller makes a good delivery if he forward to the buyer, as soon as he reasonably can after the shipment, a bill of lading duly indorsed and effectual to pass the ownership of the goods (q), and purporting to represent goods in accordance with the contract, and which are in fact in accordance therewith (r).

Furthermore, the delivery must be "of the goods," i. e., of the goods contracted for. Thus, the goods must answer their description under s. 13; must be of proper quality and fitness, &c., under ss. 12-15; must be in a deliverable state, under s. 62 (4),

(i) See per Cur. in Calcutta S. N. Co. v. De Mattos (1863), 32 L. J. Q. B. 322.

(k) Armitage v. Insole (1850), 14 Q. B. 728; Sutherland v. Allhusen (1866), 14 L. T. N. S. 666.

(7) (1800), 1 East, 192.

(m) (1789), 3 T. R. 464, 468.

(n) Atkinson v. Maling (1788), 2

T. R. 462; Benj. p. 704.

(0) See Pollock & Wright on Poss. pp. 60 et seq.

(p) (1888), 39 Ch. D. at p. 676. Secus, if the control is not exclusive: Milgate v. Kebble (1841), 3 M. & G. 100.

(g) Sanders v. McLean (1883), 11 Q. B. D. 327.

(r) Tamvaco v. Lucas (1859), 1 E. & E. 581, 592.

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A Commentary on the Sale of Goods Act, 1893: With Illustrative Cases and ...