count, at the rate of five per cent. per annum for the unexpired time, upon handing shipping documents."

In the early part of the homeward voyage, the cargo became so heated that the vessel was obliged to put into Tunis, where, after a survey and other proceedings, regularly and bona fide taken, the cargo was, on the 22d April, unloaded and sold. It did not appear that either party knew of these circumstances at the time of the sale. The contract having been made on the 15th of May, Mr. Callander, on the 23d of May, wrote to Hastie & Hutchinson: "I repudiate the contract of the cargo of Indian corn, per the Kezia Page, on the ground that the cargo did not exist at the date of the contract, it appearing that the news of the condemnation and sale of this cargo at Tunis, on the 22d April, was published at Lloyd's, and other papers, on the 12th instant, being three to four days prior to its being offered for sale to me."

The plaintiffs afterwards brought this action. The declaration was in the usual form. The defendants pleaded several pleas, of which the first four are not now material to be considered. The fifth plea was that before the sale to Callander, and whilst the vessel was on the voyage, the plaintiffs sold and delivered the corn to other persons, and that since such sale the plaintiffs never had any property in the corn or any right to sell or dispose thereof, and that Callander on that account repudiated the sale, and refused to perform his contract, or to pay the price of the corn. Sixthly, that before the defendants were employed by the plaintiffs, the corn had become heated and greatly damaged in the vessel, and had been unloaded by reason thereof, and sold and disposed of by the captain of the said vessel on account of the plaintiffs at Tunis, and that Callander, for that reason, repudiated the sale, etc.

The cause was tried before Mr. Baron Martin, when his Lordship ruled that the contract imported that at the time of the sale, the corn was in existence as such, and capable of delivery, and that as it had been sold and delivered by the captain before this contract was made, the plaintiffs could not recover in the action. He therefore directed a verdict for the defendants. The case was afterwards argued in the Court of Exchequer before the Lord Chief Baron, Mr. Baron Parke, and Mr. Baron Alderson, when the learned Judges differed in opinion, and a rule was drawn up directing that the verdict found for the defendants should be set aside on all the pleas, except the sixth, and that on that plea judgment should be entered for the plaintiffs, non obstante veredicto; that the defendants should be at liberty to treat the decision of the Court as the ruling at nisi prius, and to put it on the record and bring a bill of exceptions. 8 Exch. 40. This was done, and the Lord Chief Baron sealed the bill of exceptions, adding, however, a memorandum to the effect that he did so

as the ruling of the Court, but that his own opinion was in opposition to such ruling.

The case was argued on the bill of exceptions in the Exchequer Chamber, before Justices Coleridge, Maule, Cresswell, Wightman, Williams, Talfourd, and Crompton, who were unanimously of opinion that the judgment of the Court of Exchequer ought to be reversed. 9 Exch. 102. The present writ of error was then brought.

The Judges were summoned, and Mr. Baron Alderson, Mr. Justice Wightman, Mr. Justice Cresswell, Mr. Justice Erle, Mr. Justice Williams, Mr. Baron Martin, Mr. Justice Crompton, Mr. Justice Willes, and Mr. Baron Bramwell attended.1

COLERIDGE, J. The case was originally tried before Martin, B., who, in directing the jury ruled that the contract imported that, at the time of the sale, the corn was in existence as such, and capable of delivery, and a verdict was found for the defendants, the plaintiffs having leave to move to enter a verdict in their favour on all the issues except those on the fifth and sixth pleas, and on those pleas for judgment non obstante veredicto. The case was argued before the Lord Chief Baron and Barons Parke and Alderson. The lord chief baron agreed in the opinion expressed by Martin, B., at nisi prius; but the other learned barons differed from him, and made the rule absolute; whereupon it was agreed that the question should be brought before this court on a bill of exceptions, as if the lord chief baron had directed the jury in conformity with the opinion of Barons Parke and Alderson. The case therefore comes before us without any great preponderance of authority in favour of the defendants in error. Nor do we find in the arguments of counsel, or in the judgment of the court below, any case referred to upon which that judgment was founded. It turned entirely on the meaning of the contract made between the parties, which was in these terms: "Bought of Hastie & Hutchinson a cargo of about 1180 quarters of Salonica Indian corn of fair average quality when shipped per the 'Kezia Page,' Captain Page, from Salonica, bill of lading dated the 22d of February, at 27s. per quarter, free on board, and including freight and insurance to a safe port in the United Kingdom, the vessel calling at Cork or Falmouth for orders, measure to be calculated as customary, payment at two months from this date, or in cash, less discount at the rate of £5 per cent. per annum for the unexpired time upon handing shipping documents." An attempt was made to explain this document by evidence, but failed. There is, indeed, an expression in the bill of exceptions, "that the meaning of free on board is, that the goods. are on board," which, taken literally, may import that they are on

1 This statement of the facts and pleadings is taken from the report of the case in the House of Lords (5 H. L. C. *673), where the judgment of the Exchequer Chamber was affirmed.

2 In the Exchequer Chamber.

board at the time when the words are used; but it was not contended for the plaintiffs in error that such is the true meaning. The case, therefore, is not affected by that statement, and the question depends upon the words of the contract, unexplained by any evidence.

For the plaintiffs in error it was contended, that the parties plainly contracted for the sale and purchase of goods, that the price to be paid was for goods, and that for the price the purchaser was to have the benefit of a contract to carry them and a policy of insurance; that a vendor of goods undertakes that they exist, and that they are capable of being transferred, although he may not stipulate for their condition; and that as the goods in questión had been sold and delivered to other parties before the contract in question was made, there was nothing on which it could operate; and Barr v. Gibson, 3 M. & W. 390, and Strickland v. Turner, 7 Exch. 208, were cited.

On the other hand it was argued, that this was not a mere contract for the sale of an ascertained cargo, but that the purchaser bought the adventure, and took upon himself all risks from the shipment of the cargo. It was said that the mention of the condition of the cargo at the time of shipment was a proof of the intention of the parties that the buyer should take all risks from that time; that its condition at the time of sale, or the fact of its existence, could not then be ascertained, and therefore the purchaser must be supposed to have taken the risks; that if it had existed, however much deteriorated, the purchaser must have taken it, although the loss had been all but total, and therefore there was no reason for excluding total loss from the risks that he was to bear; that if it had ceased to exist the consideration would not fail, for the purchaser would have the shipping documents. It was further argued that the stipulation for payment, which would probably have to be made before the arrival of the cargo, indicated an intention that the purchaser was in all events to pay for it, on account of the inconvenience that would ensue if he might have to reclaim the money back. It was not disputed that the cases of Barr v. Gibson and Strickland v. Turner were well decided.

It appears to us that the contract in question was for the sale of a cargo supposed to exist, and to be capable of transfer, and that, inasmuch as it had been sold and delivered to others by the captain before the contract in question was made, the plaintiffs cannot recover in this action. With regard to the description of the cargo as "of fair average quality when shipped," we think that, if those words had not been introduced, it must have been held that the purchaser of a cargo on a voyage would take upon himself the chance of what its condition at the time of purchase might be, and that this clause was introduced for his benefit, by enabling him to object, if the fact were so, that the cargo was bad when shipped. If, in Barr v. Gibson, there had been a

stipulation that the ship, when she sailed on the voyage during which she was sold, was seaworthy, that would not have made the purchaser liable, if a total loss had occurred before the contract was entered into. It has been said, that if the loss had been all but total, if the cargo, had become all but worthless, yet, if it existed in specie, the purchaser must unquestionably have been bound, and therefore there is no reason for holding that he was not also to take the risk of a total loss. The same argument would have applied in Strickland v. Turner. If the annuitant, at the time of the sale of the annuity, had been in extremis, and had died the next hour, the purchaser would have been bound and could not have recovered the purchase money, but was held to be so entitled, the annuitant having died before the sale. Again, it has been supposed that there is an inconsistency in saying that, if the cargo had sustained sea damage, constituting an average loss covered by the policy, it would pass to the purchaser so as to secure to him an indemnity, but would not pass in the event of a total loss. This seems to depend upon the same point, and not to be attended with any real difficulty.

If the contract for sale of the cargo was valid, the shipping documents would pass as accessories to it; but if, in consequence of the previous sale of the cargo, the contract failed as to the principal subject-matter of it, the shipping documents would not pass. Although we cannot find any decision in point, there is a case of Sutherland v. Pratt, 11 M. & W. 296, where this subject was mentioned. In that case, the plaintiff had bought goods on a voyage, and effected an insurance, lost or not lost. They had sustained sea damage before the sale, and the purchaser sued on the policy. The underwriters pleaded that the goods were damaged before the plaintiff had acquired any interest in them. On demurrer, it was held that the plea was bad; but the very learned counsel who argued for the plaintiff admitted, in answer to a question put by Parke, B., that if the goods had been totally lost before his contract of purchase was made, there would not have been an insurable interest, as a person cannot buy a thing that has been totally lost.

For these reasons, it appears to us that the basis of the contract in this case was the sale and purchase of goods, and that all the other terms in the bought note were dependent upon that, and that we cannot give to it the effect of a contract for goods lost or not lost. The consequence is, that the judgment of the court below must be reversed, and entered for the plaintiffs in error according to arrangement between the parties.

Judgment reversed.3

3 See Sales Act, § 7(1); Sale of Goods Act, § 6. For a definition of "specific goods," see Sales Act, § 76; Sale of Goods Act, § 62.

What if the goods, without the knowledge of the seller, have perished in part or have deteriorated in quality? See Sales Act, § 7(2).

What if the goods, cedar ties, for example, are at the time of the sale in

GRANTHAM v. HAWLEY.

(Court of Common Pleas, 1616. Hob. 132.)

Robert Grantham brought an action of debt upon an obligation of forty pounds against Edward Hawley, the condition whereof was, that if a certain crop of corn growing upon a certain piece of ground, late in the occupation of Richard Sankee, did of right belong to the plaintiff, then the defendant should pay him for it twenty pounds. Now the case upon the pleading and demurrer fell out thus; that one Sutton was seised of the land, and 30 Eliz. in April, made a lease of it to Richard Sankee for twenty-one years by indenture, and did thereby covenant, grant to and with Sankee, his executors and assigns, that it shall be lawful for him to take and carry away, to his own use, such corn as should be growing upon the ground at the end of the term. Then Sutton conveyed the reversion to the plaintiff; and John Sankee, executor to Richard, having sowed the corn, and that being growing upon the ground at the end of the term, sold it to the defendant. And it was argued by Hutton for the plaintiff, that it was merely contingent whether there should be corn growing upon the ground at the end of the term, or not. Also, the lessor never had property in the corn; and therefore could not give nor grant it, but it sounded properly in covenant; for the right of the corn standing in the end of the term being certain, accrues with the land to the lessor; and it was said to be adjudged. And it was agreed by the court that if A., seised of land, sow it with corn, and then convey it away to B. for life, remainder to C. for life, and then B. die before the corn reapt; now C. shall have it, and not the executors of B., though his estate was uncertain. Note, the reason of industry and charge in B. fails; yet judgment in this case was given against the plaintiff, that is, that the property and very right of the corn, when it happened, was past away; for it was both a covenant and a grant. And therefore if it had been of natural fruits, as of grass or hay, which run merely with the land, the like grant would have carried them in property after the term. Now though corn be fructus industrialis, so that he that sows it may seem to have a kind of property, ipso facto, in it, divided from the land; and therefore the executor shall have it, and not the heirs; yet in this case, all the colour that the plaintiff hath to it, is by the land which he claims from the lessor which gave the corn. And though the lessor had it not actually in him, nor certain, yet he had it potentially; for

such imminent danger of destruction by fire that they are likely to be destroyed before the buyer can remove them? See Richardson Lumber Co. v. Hoey, 219 Mich. 643, 189 N. W. 923 (1922), and note, 32 Yale Law J. 408.

The destruction or deterioration of the goods subsequent to the sale or contract to sell is dealt with in Chapter III, post, p. 298.

4 Industrial growing crops are "goods," within the meaning of the term as used in the Sales Act (see section 76) and the Sale of Goods Act (see section 62).