and the buyer is required immediately and concurrently to pay the price in cash. The buyer consequently cannot obtain the goods until he has paid or tendered the price, or the seller waives' his right to its present payment; neither can the seller recover the price unless he has delivered or was ready to deliver the goods.2

§ 1408. Same rule applies to executory contracts.— The same rule must also apply where the contract was executory, or where the seller was bound to do something to or with the goods to put them in a deliverable condition; whenever they are ready for delivery and no term of credit is agreed upon, payment and delivery, as in the case of the present sale, must be deemed to be concurrent acts.3

§ 1409. Where seller is to do something before payment. The parties may of course agree that the seller shall do some

1 As to waiver, see post, § 549.

2 Johnson-Brinkman Co. v. Central Bank, 116 Mo. 558, 38 Am. St. R. 615, 22 S. W.R. 813; Southwestern Freight Co. v. Stanard, 44 Mo. 71, 100 Am. Dec. 255; Chapman v. Lathrop, 6 Cow. (N. Y.) 110, 16 Am. Dec. 433; Clark v. Dales, 20 Wend. (N. Y.) 61; Cole v. Swanston, 1 Cal. 51, 52 Am. Dec. 288; Cleveland v. Pearl, 63 Vt. 127, 21 Atl. R. 261, 25 Am. St. R. 748; Whitmarsh v. Walker, 1 Metc. (Mass.) 313; Palmer v. Hand, 13 Johns. (N. Y.) 434; La Mont v. La Fevre, 96 Mich. 175, 55 N. W. R. 687; Walter v. Reed, 34 Neb. 544, 52 N. W. R. 682; Hall v. Brown, 82 Tex. 469, 17 S. W. R. 715; Sanborn v. Shipherd, 59 Minn. 144, 60 N. W. R. 1089; Neal v. Boggan, 97 Ala. 611, 11 S. R. 809; Whitman Agricultural Ass'n v. National Ass'n, 45 Mo. App. 90; Wabash Elevator Co. v. First National Bank, 23 Ohio St. 311; Merrill Furniture Co. v. Hill (1894), 87 Me. 17, 32 Atl. R. 712.

3 Behrends v. Beyschlag (1897), 50 Neb. 304, 69 N. W. R. 835; Smack v. Cathedral (1898), 31 N. Y. App. Div. 559.

Where the goods are to be delivered in instalments and paid for as delivered, it is not necessary that the vendee on any day shall have money in re..diness to pay for all of the goods; if he is ready to pay for those then to be delivered, it is enough. Behrends v. Beyschlag, supra.

Where an executory contract of sale is evidenced by two contemporaneous writings, one signed by the seller declaring the "terms of sale cash," and the other signed by the buyer reciting, "I shall pay bills daily," these are to be construed together and to mean that bills are to be presented and paid each day for the goods delivered during that day. Anglo-American Provision Co. v. Prentiss (1895), 157 IIL 506, 42 N. E R. 157.

other act than merely to be in readiness to deliver, as to deliver a bill of lading, produce inspectors' certificates, insure the goods and supply the policy, and the like, and the performance of such additional act, unless waived, will be a condition precedent to the right to receive payment.

§ 1410. Where term of credit is agreed upon.- Where a term of credit has been agreed upon, payment is not due until that term of credit has expired. An express agreement as to credit is not indispensable: it may be implied from the custom of the trade or the previous course of dealing of the parties.2

§ 1411. Where credit procured by fraud.-The fact that the goods were by fraud procured to be sold upon a term of credit will not, by the weight of authority, permit a recovery of the price before the expiration of the credit given: by suing for the price the seller affirms the contract, and he must affirm it as an entirety. The seller may, as has been seen, rescind the sale and recover his goods, or he may recover their value in an action for their conversion if they are not returned. He may also, where the buyer has disposed of the goods for money or its equivalent, waive the tort and recover in assumpsit the amount so recovered as money had and received for his benefit. But he may not recover the price on the express contract, because the term of credit has not expired; neither can he recover the price on an implied contract, for where there is an express contract the law will not imply another. The rule

1 Miller v. Godfrey, 1 Colo. App. 177, 27 Pac. R. 1016; Seattle Ry. Co. v. Brewing Co., 5 Wash. 462, 32 Pac. R. 102.

2 Where no credit is expressly agreed upon, but it is usual, the usual credit may be relied upon. Brooks v. Paper Co., 94 Tenn. 701, 31 S. W. R. 160. 3 See ante, § 907.

(1879), 93 Ill. 265, 34 Am. R. 163; Fuller v. Duren (1860), 36 Ala. 73, 76 Am. Dec. 318; Fiquet v. Allison (1864), 12 Mich. 328; Watson v. Stever (1872), 25 Mich. 386; Woods v. Ayres (1878), 39 Mich. 345; Coe v. Wagar (1879), 42 Mich. 49; Nelson v. Kilbride (1897), 113 Mich. 637, 71 N. W. R. 1089.

5 Kellogg v. Turpie (1879), 93 Ill. 265, 34 Am. R. 163; Allen v. Ford (1837), 19 Pick. (Mass.) 217; Dellone v. Hull (1877), 47 Md. 112; England v. Adams (1892), 157 Mass. 449, 32 N.

4 See Jones v. Hoar (1827), 5 Pick. (Mass.) 285; Berkshire Glass Co. v. Wolcott (1861), 2 Allen (Mass.), 227, 79 Am. Dec. 781; Kellogg v. Turpie

would be different, however, if the credit alone were the only part of the contract resting on the fraud and that could be severed from the other elements of the contract.1

§ 1412. Delivery of the goods not necessary. As has been already seen, the seller, in the absence of an agreement to the contrary, is not bound to send or carry the goods to the buyer as a prerequisite to his right to receive the price. Readiness and willingness to deliver are all that he needs to prove in order to recover.3

§ 1413. —. Where the property in the goods has passed, as in the ordinary case of present sale, the buyer must pay the price, notwithstanding that the goods are destroyed while still in the seller's possession. The risk passes with the title, while the right to the price inures at once to the seller, who holds thenceforth merely as the bailee of the buyer.

E. R. 665; Jones v. Brown, 167 Pa. St. 395, 31 Atl. R. 647; Bulkley v. Morgan (1878), 46 Conn. 393; Stewart v. Emerson (1872), 52 N. H. 301; Emerson v. Steel Co. (1894), 100 Mich. 127, 58 N. W. R. 659; Ferguson v. Carrington, 9 B. & C. 59; Strutt v. Smith, 1 C., M. & R. 311; Selway v. Fogg, 5 M. & W. 83; Read v. Hutchinson, 3 Camp. 351.

The New York cases permit the credit alone to be avoided. Thus, in Heilbronn v. Herzog (1900), 165 N. Y. 98, 58 N. E. R. 759, the court says: “There is a well-recognized distinction in such cases as these between a disaffirmance of the sale with all its incidents, and a mere rescission of the credit upon which the sale was made." Citing Wigand v. Sichel, 3 Keyes, 120; Crossman v. Universal Rubber Co., 127 N. Y. 34, 27 N. E. R. 400, 13 L. R. A. 91; Wilson v. Foree, 6 Johns. 110. See also McGoldrick v. Willits, 52 N. Y. 612; Roth v. Palmer, 27 Barb. 652; Muser v. Lissner, 67

How. Pr. 509; Kingman v. Hotaling, 25 Wend. 423; Masson v. Bovet, 1 Denio, 69, 43 Am. Dec. 651. The New York rule was applied in Jaffray v. Wolf (1896), 4 Okla. 303, 47 Pac. R. 496. Dietz v. Sutcliffe (1883), 80 Ky. 650, also adopts the same rule in effect. 1 Kellogg v. Turpie, 2 Ill. App. 55; approved in 93 Ill. 265, 34 Am. R. 163. 2 See ante, § 1189.

3 Middlesex Co. v. Osgood (1855), 4 Gray (Mass.), 447; Smith v. Gillett (1869), 50 Ill. 290; Phelps v. Hubbard (1879), 51 Vt. 489; Dakota Stock Co. v. Price (1887), 22 Neb. 96, 34 N. W. R. 97; Schneider v. Oregon Co. (1890), 20 Oreg. 172, 25 Pac. R. 391. See also Wood v. Tassell (1844), 6 Q. B. 234, 51 Eng. Com. L. 234; Smith v. Chance (1819), 2 B. & Ald. 753.

4 Rugg v. Minett, 11 East, 210; Smith v. Nevitt (1830), Walk. (Miss.) 370, 12 Am. Dec. 571; Waldron v. Chase (1854), 37 Me. 414, 59 Am. Dec. 56; Newhall v. Langdon (1883), 39 Ohio St. 87, 48 Am. R. 426.

§ 1414.. And even though the title has not passed, and the price is to be paid only upon delivery, still if the buyer has expressly assumed the risk of the delivery -as where the goods are to be sent by water and the buyer assumes the risks of navigation, he must pay the price though the goods are lost or destroyed before delivery.1

§ 1415. By contract payment may be due before title passes.-There is, moreover, no reason why the parties may not stipulate that payment shall be made even before the title passes. As is said in a recent case: "If a man is willing to contract that he shall be liable for the whole value of a chattel before the title passes, there is nothing to prevent his doing so, and thereby binding himself to pay the whole sum."2

3

§ 1416. Demand for payment not necessary.- Unless there is a stipulation to the contrary, the buyer is not entitled to demand for payment, but must pay as soon as payment is due, under penalty of being sued. The contract may, of course, provide for payment only after demand or notice, and in such cases the demand or notice, and a reasonable time and opportunity to comply with it, are essential to put the buyer in default.

II.

PLACE OF PAYMENT.

§ 1417. When no place of payment specified, debtor must seek creditor. The parties may by the contract determine the place at which payment shall be made, and such a stipulation must control unless its terms are waived.

1 As in Castle v. Playford (1870), L. payment in ten years or at such earR. 5 Ex. 165, 7 Ex. 98.

2 White v. Solomon (1895), 164 Mass. 516, 42 N. E. R. 104, 30 L. R. A. 537. 3 Benjamin on Sale (6th Am. ed.),

§ 707.

4 Thus in Brighty v. Norton, 3 B. & S. 305, the bill of sale provided for

lier day or time as the defendant should appoint by notice in writing sent by post, or delivered to the plaintiff or left at his house or last place of abode. It was held that a notice served at noon to make pay. ment in half an hour was not a rea

Where, however, no place is fixed, the debtor must seek the creditor if he be within the State and make payment to him in person;1 but he is not bound to follow him beyond the confines of the State, and readiness to pay within the State will be sufficient.2

III.

THE AMOUNT TO BE PAID.

§ 1418. Amount is price agreed upon.-The amount to be paid is, of course, the price agreed upon, if any; and if not, then the reasonable or market value of the goods. What this price is, and how it is ascertained and determined, are matters which have already been considered in a previous chapter.3

§ 1419. Payment of part does not discharge the whole.The price agreed upon must not only be the amount to be paid, but it must ordinarily be the whole price. For it is well settled that payment of part of a fixed and ascertained debt at the time and place agreed upon is not a discharge of the whole, even though the creditor expressly agreed to receive it as such. The agreement to release the residue is, in such a case, without consideration, and therefore without effect."

sonable one. In Toms v. Wilson, 4 B. & S. 442, a provision for payment "immediately on demand was held to entitle the payor to a reasonable opportunity to get the money. And in Massey v. Sladen, L. R. 4 Ex. 13, where notice was provided to be given at the debtor's place of business and he was to pay "instantly on demand, and without delay on any pretense whatever," the same ruling in effect was made.

1 Gale v. Corey (1887), 112 Ind. 39; King v. Finch (1878), 60 Ind. 420; Smith v. Smith (1842), 2 Hill (N. Y.), 351, 25 Wend. 405; Hoys v. Tuttle (1847), 8 Ark. 124, 46 Am. Dec. 309; Sanders v. Norton (1827), 4 T. B. Mon.

(Ky.) 464: McKinder v. Littlejohn (1843), 4 Ired. (N. C.) L. 198.

2 Hale v. Patton, 60 N. Y. 233, 19 Am. R. 168; Smith v. Smith, 25 Wend. (N. Y.) 405; Allshouse v. Ramsay, 6 Whart. (Pa.) 331, 37 Am. Dec. 417; Southworth v. Smith, 7 Cush. (Mass.) 391; Tasker v. Bartlett, 5 Cush. 359; Jones v. Perkins, 29 Miss. 139, 64 Am. Dec. 136; Gill v. Bradley. 21 Minn. 15.

See ante, § 204, et seq.

4 Bailey v. Day, 26 Me. 88; Lee v. Openheimer, 32 Me. 253; Harriman v. Harriman, 12 Gray (Mass.), 341; Warren v. Hodge. 121 Mass. 106; Lathrop v. Page, 129 Mass. 19; Potter v. Green, 6 Allen (Mass.), 442; Grinnell v. Spike,