PERFORMANCE OF THE CONTRACT.

the latter may recover the value of the goods which he has so delivered "(c).

The general rule of law (now adopted by the Act) was that a contract for the sale of several things at the same time, or otherwise, as one transaction, is, prima facie, an entire contract for the whole of the goods, though separate prices may be fixed (d), and though some of the goods are future goods (e). And the making by the parties of a single memorandum embodying all the sales is a relevant fact to prove entirety (ƒ).

Unless otherwise agreed. A different intention may be proved, as, e. g., when, from the nature of the case, the whole quantity cannot be delivered at or about the same time, and when the quantities first delivered are actually consumed before the expiration of the period limited for complete delivery (g).

In auction sales the presumption is reversed (h); but there, too, the purchase of several lots may be proved to be entire (i).

and

or

ILLUSTRATIONS.

1. A. agrees to sell to B. twenty-five tons of pepper, more or less, of October November shipment, per sailing vessel or vessels, the name of the vessel or vessels, marks and particulars, to be delivered within sixty days of the bill of lading. A. declares, within the sixty days, twenty-five tons of pepper shipped in the B., of which five tons were shipped in December. B. is not bound to take the twenty tons shipped in time, as the provision, that shipment could be made "by vessel or vessels," merely allowed A. to ship twenty-five tons by different vessels, if he pleased, and did not also render the contract divisible as regards performance. Reuter v. Sala (1879), 4 C. P. D. 239 (k).

2. A. agrees to sell B. one hundred bags of hops, deliverable by a certain date. A. delivers an instalment of twelve bags, and then demands the price of them. B. is not bound to accept the twelve bags, nor pay for them, unless he retains them after the appointed date. If he so retains them (7), he must pay their value. Waddington v. Oliver (1805), 2 B. & P. N. R. 61.

To be delivered by stated instalments.-This sub-section is based upon the law laid down in Mersey Steel and Iron Co. v. Naylor (m), and says, in effect, that it is a question of fact whether

(e) Quoted in Col. Ins. Co. of New Zealand v. Adelaide Mar. Ins. Co. (1886), 12 Ap. Ca. at pp. 138, 139. (d) Baldey v. Parker (1823), 2 B. & C. 37.

(e) Scott v. Eastern Counties Ry. Co. (1843), 12 M. & W. 33.

(f) Bigg v. Whisking (1853), 14 C. B. 195.

(g) Per Cur. in Col. Ins. Co. of New Zealand v. Adelaide Mar. Ins.

Co. supra, at p. 138.

(h) See s. 58 (1).

(i) Dykes v. Blake (1838), 4 B. N. C. 463.

(k) Cf. with this case Brandt v. Laurence (1876), 1 Q. B. D. 344, a case very difficult to understand.

(1) Oxendale v. Wetherell (1829), 9 B. & C. 386.

(m) (1884), 9 Ap. Ca. 434.

S. 31 (1).

S. 31 (2).

S. 31 (2).

a partial breach of a divisible contract is a discharge to the other party if he chooses to accept it, or whether he is bound to seek compensation only under ss. 49 and 50.

66

The neglect or refusal" may be looked upon in two aspects, viz., as the non-fulfilment of a condition (n), under ss. 1 (2) or 10 (1), which can only be when, as Lord Blackburn says in the above case(o), "the whole [quantity], and no less, is of the essence of it," as in Honck v. Muller (p); or as evidence of an intention no longer to be bound by the contract, whether or not the particular breach is of an essential stipulation or condition. In both cases, the other party may treat the neglect or refusal as a wrongful repudiation; but otherwise, these two aspects are distinct (9).

In the determination of the above question, no distinction is to be made between contracts wholly unperformed and partly performed (r). In every case you must look at the circumstances of the case in order to see whether the one party to the contract is relieved from its future performance by the conduct of the other; you must examine what that conduct is, so as to see whether it amounts to a renunciation, to an absolute refusal to perform the contract, such as would amount to a rescission if he had the power to rescind, and whether the other party may accept it as a reason for not performing his part" (s). And the other party may or may not accept the renunciation: the refusal, in fact, "must be treated and acted upon as such by the party to whom the promise was made; for if he afterwards continues to urge or demand compliance with the contract, it is plain that he does not understand it to be at an end" (t).

If the party entitled to do so accept the repudiation, he may recover the value of the goods actually delivered, as by an implied contract under s. 3, supra (u).

Defective deliveries.-These words should not, it is conceived, be limited only to short deliveries; but should also include default in delivery.

Terms of the contract. Thus, e. g., a certain delay may be provided for by the contract in specified contingencies (x).

be

Circumstances of the case-e. g., long delay, or notice of S. 31 (2). insolvency, and omission by the buyer to tender cash (y), may evidence of an intention to repudiate the contract. A notice of insolvency was defined in In re Phanix Bessemer Steel Co. (≈), as a notice "of inability to pay, avowed either in act or word."

ILLUSTRATIONS.

1. A. & Co. agree to sell to B. & Co. 5,000 tons of steel, deliverable 1,000 tons monthly, payment within three days of receipt of shipping documents. A. & Co. in the first month make a short delivery, and another in the early part of the second month. A petition is then presented to wind up A. & Co. B. & Co. then, on the erroneous advice of their solicitor that A. & Co. could not give B. & Co. a discharge, decline, pending the petition, to pay A. & Co. for instalments already delivered except under sanction of the Court. The price of steel was then higher than the contract price. A. & Co. then repudiate the contract. A. & Co. are liable for damages for non-delivery of the remaining instalments, as B. & Co.'s refusal was, under the circumstances, no refusal to be bound by the contract, but only a declaration of their embarrassment. Mersey Steel and Iron Co. v. Naylor (1884), 9 Ap. Ca. 434.

2. A. agrees to sell to B., by specified instalments during certain months, a quantity of straw, payment to be made on each delivery. After several instalments have been delivered and paid for, B. expressly refuses to pay for the next instalment, and insists upon keeping the price of an instalment in hand. A. may repudiate the contract, as B.'s refusal showed an intention no longer to be bound thereby. Withers V. Reynolds (1831), 2 B. & Ad. 882.

3. A. agrees to sell to B. 250 tons of iron in two instalments, payment to be made in cash fourteen days after each delivery. The first instalment is much delayed, but is ultimately delivered, but B. refuses to pay for it, claiming to set off his loss on A.'s breach of contract, but at the same time demands delivery of the remaining 125 tons. The market is rising. B.'s refusal to pay for the first 125 tons is, under the circumstances, no refusal to be bound by the contract, and A. is liable to deliver the remaining 125 tons. Freeth v. Burr (1874), L. R. 9 C. P. 208.

4. A. & Co. agree to sell to B. & Co. a quantity of iron by monthly instalments, to be paid for by bills for each instalment. Several instalments are delivered, and then B. & Co., being short of working capital, but not insolvent, call their creditors together and ask for an extension of credit, which is refused by the creditors. A. & Co. then refuse to make any more deliveries except for cash, and B. & Co. then repudiate the contract. B. & Co. are entitled to repudiate the contract on A. & Co.'s express refusal to abide by its terms, as B. & Co., under the circumstances, had not made a declaration of insolvency justifying A. & Co. in demanding cash. In re Phoenix Bessemer Co. (1876), 4 Ch. D. 108.

5. A. agrees to sell B. as many colliery screenings as he may require, and B. agrees to manufacture thereout "duff coal" and "nuts," and to resell the same to A., the agreement to continue six years. Disputes arise as to the performance of the contract on both sides, and B. stops his works, saying he will not go on until A.

(y) Ex parte Stapleton (1879), 10 Ch. D. 586; Ex parte Chalmers (1873),

8 Ch. 289.

(z) (1876), 4 Ch. D. 108, per Bramwell, L.J., at p. 122.

S. 31 (2).

Delivery to carrier.

S. 32 (1).

properly performs his contract, and the dispute is settled. B. has not refused to be bound by the contract, but merely requires the ascertainment of his and A.'s mutual rights. Gueret v. Audouy (1893), 62 L. J. Q. B. 633.

6. A. agrees to sell B. 200 tons of iron deliverable by April 1st. Before that date B. becomes insolvent, and informs A. of the fact, but does not tender cash for the goods. In May, iron having risen in price, B. demands delivery. A. may repudiate the contract, as B.'s default was, under the circumstances, an offer to rescind which A. may accept. Morgan v. Bain (1874), L. R. 10 C. P. 15.

32.-(1.) Where, in pursuance of a contract of sale, the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is primâ facie deemed to be a delivery of the goods to the buyer.

(2.) Unless otherwise authorized by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself, or may hold the seller responsible in damages.

(3.) Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, under circumstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their sea transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such sea transit.

The delivery to a carrier is also prima facie an appropriation of the goods under s. 18, rule 5 (2), ante, p. 129; but does not constitute an "acceptance" under s. 4 (3), see ante, pp. 30, 35. The goods. The goods contracted for, i.e., answering to the contract (a).

(a) Per Parke, B., in Wait v. Baker (1848), 2 Ex. 1.

Seller is authorized. . . . to send the goods.-Under this sub-section the seller may be either "authorized," i.e., apparently independently of the terms of the contract, or "required," i.e., by such terms, under s. 29 (1), to deliver the goods to a carrier. The rule on the subject is thus stated by Mr. Benjamin (b):"When the seller is bound to send the goods to the buyer, the rule is well established. . . . that delivery to a common carrier, à fortiori, to one specially designated by the buyer ['whether named by the buyer or not'] is a delivery to the buyer himself; the carrier being, in contemplation of law in such cases, the bailee of the person to whom, not by whom, the goods are sent; the latter when employing the carrier being regarded as the agent of the former for that purpose."

It has never been directly decided whether a delivery to a carrier abroad on behalf of a buyer in this country is a good delivery. The point was touched upon in argument, but not decided, in Brown v. Hodgson (c), and Grove, J., in Pointin v. Porrier (d), expressed a doubt whether such was a good delivery. The question would appear to depend upon whether the buyer, expressly or impliedly, assumed the risk, or whether from the facts of the case the seller must be taken to have agreed to take it upon himself (e).

The rule in this sub-section applies although the carrier afterwards tortiously refuse delivery to the buyer (f).

In pursuance of a contract of sale.-i.e., in performance of the seller's duty to deliver. Thus, delivery to a carrier under a contract of "sale or return," or similar terms, would be no delivery to the consignee (g).

Prima facie. But the seller may, under s. 19, ante, p. 136, control the effect of the delivery to the carrier, as, e.g., by taking the bill of lading to his own, or some third person's order (h). "The delivery of goods contracted for on board a ship, when a bill of lading is taken, is not a delivery to the buyer, but to the captain as bailee to deliver to the person indicated by the bill of lading, and this may apply equally when the ship is the ship of the vendee " (i).

(b) pp. 164, 702, quoting Dawes v. Peck (1799), 8 T. R. 330; Dunlop v. Lambert (1839), 6 C. & F. 600; and other cases.

(e) (1809), 2 Camp. 36.
(d) (1885), 49 J. P. 199.

(e) See on this per Cur. in Calcutta, &c. Co. v. De Mattos (1863), 32 L. J.

Q. B. 322.

(f) Groning v. Mendham (1816), 5 M. & S. 189.

(g) Swain v. Shepherd (1832), 1 M. & R. 223. See s. 18, Rule 4.

(h) See Benj. p. 369, and cases cited. (i) Per Cleasby, B., in Gabarron v. Kreeft (1875), L. R. 10 Ex. at p. 285.

S. 32 (1).