§ 1126. Where the place is fixed but not the time.Where the place is fixed but not the time, neither party, as will be seen,1 can ordinarily put the other in default until, in some way, the other has had reasonable notice of the time when delivery would be offered or demanded. § 1127. Where place at option of one party.- Where expressly or by implication the place of delivery is at the option of either party, that fact throws upon him the burden of taking the initiative, and it is his duty to give notice of the place at which the goods will be offered or demanded. tract fixes the kind or time of the notice, the contract must prevail; if it does not, reasonable notice would be required. Until such notice is given, the other party, if ready and willing to perform, is not in default.' If the con § 1128. Agreement as to place must be complied with.— If the parties by their agreement have fixed the place of delivery, delivery at the place so specified is, unless it be waived, sounder and more sensible rule and 2 Dwight v. Eckert, 117 Pa. St. 490, 12 Atl. R. 32; Brooklyn Oil Refinery v. Brown, 38 How. Pr. (N. Y.) 444; Posey v. Scales, 55 Ind. 282; Armitage v. Insole (1850), 14 Q. B. 728; Walton v. Black (1876), 5 Houst. 149; Rogers v. Van Hoesen (1815), 12 Johns. 221; Hunter v. Wetsell (1881), 84 N. Y. 549. 3" Where a contract names several places, at any one of which personal property may be delivered, at the buyer's option, the buyer must within a reasonable time make his selection of the place." Boyd v. Gunnison, 14 W. Va. 1. 4 Lockhart v. Bonsall, 77 Pa. St. 53; Hunter v. Wetsell, 84 N. Y. 549. "Where the vendee, is by the terms of the contract, to designate a place of delivery, the vendor is bound to be ready to make delivery at the place designated. If the vendee omits to designate the place, the vendor is guilty of no breach of contract if the articles are ready for delivery at the time fixed by the contract." Lucas v. Nichols, 5 Gray (Mass.), 309. an indispensable requisite to the seller's recovery;1 and, on the other hand, delivery or a readiness to deliver at that place is a sufficient performance on his part to entitle him to recover, even though the buyer was not there to receive the goods. 3. The Time of Delivery. § 1129. Time of delivery when no time agreed upon - Reasonable time. The time for the delivery of the goods may be fixed by the agreement of the parties, but if they do not fix it the law itself will determine it. If the contract of sale has reference to a specific article in the immediate possession of the seller and capable of a present delivery, the law, in the absence of a stipulation to the contrary, would imply an agreement to complete the contract at once by an immediate concurrent delivery and payment; though if neither party offered or demanded performance there must still be deemed to be a sale, of which either party may require performance, if he does so within a reasonable time. If, however, the goods are known not to be in the immediate possession of the seller, or not to be ready for delivery, or not to be in such a position or situation that an immediate delivery is feasible, then, if the parties make no 1 Van Valkenburgh v. Gregg (1895), 45 Neb. 654, 63 N. W. R. 949; Miller v. Somerset Co. (Ky., 1899), 51 S. W. R. 615; Savage Mfg. Co. v. Armstrong, 19 Me. 147. 2 See post, § 1189; Phelps v. Hubbard (1879), 51 Vt. 489; Barton v. McKelway, 22 N. J. L. 165; Wisecarver v. Adamson, 118 Pa. St. 53, 12 Atl. R. 358; Sedgwick v. Cottingham (1880), 54 Iowa, 512; Washburn Iron Co. v. Russell (1880), 130 Mass. 543. 3 See ante, § 484. As has been seen in the section here referred to, where the parties bargain in respect of a specific chattel, "the effect of the contract," to use the language of Mr. Justice Parke, "is to vest the prop erty in the bargainee." Dixon v. Yates (1833), 5 Barn. & Ad. 313, 27 Eng. Com. L. 86; Bloxam v. Sanders (1825), 4 Barn. & Cr. 941, 10 Eng. C. L. 868; Simmons v. Swift (1826), 5 Barn. & Cr. 857, 11 Eng. Com. L. 712; Mowry v. Kirk (1869), 19 Ohio St. 375. 4 Thus where there was an order for a soda fountain to be sent by freight "as soon as possible," but it appeared from the order that it was "to be finished" according to certain specifications, it was held that a reasonable time in which to so finish it must be allowed. Tufts v. McClure, 40 Iowa, 317. And so where cattle roaming on a range were to be "rounded up" and branded. Wal other agreement, the law must imply an undertaking by the seller to deliver within a reasonable time. But if these facts, though known by the seller, are not known by the buyer and are not disclosed to him, a presumption of immediate delivery otherwise arising would not be dispelled.2 Under the rule thus laid down, if the seller is to send or carry the goods to the buyer, and no time is limited, he must do so within a reasonable time; if the buyer is to come or send 3 den v. Murdock (1863), 23 Cal. 440, 83 Am. Dec. 135. Where a contract is made for delivery of saw logs the next spring, but, if not practicable then, the spring following, a delivery the second spring satisfies the contract if it is shown that delivery was not practicable the first spring; and no damages are recoverable for delay or depreciation in value during the year. Irish v. Pauley (1897), 116 Cal. xvi, 48 Pac. R. 321. 1 Sale of Goods Act (post, Appendix), 29 (2); Ellis v. Thompson (1838), 3 Mees. & Wels. 445; Greenbrier Lumber Co. v. Ward (1892), 36 W. Va. 573, 15 S. E. R. 89; Boyd v. Gunnison (1878), 14 W. Va. 1; Bolton v. Riddle (1876), 35 Mich. 13; Stange v. Wilson (1868), 17 Mich. 342; American Oak Extract Co. v. Ryan (1894), 104 Ala. 267, 15 S. R. 807; Dennis v. Stoughton (1883), 55 Vt. 371; Pope v. Terre Haute Car & Mfg. Co. (1887), 107 N. Y. 61; and other cases cited in following notes. In Umfrid v. Brookes (1896), 14 Wash. 675, 45 Pac. R. 310, plaintiff contracted to sell defendant certain shares of stock, at a stated price, on or before three years from date, the shares to be placed in escrow subject to defendant's order upon payment of the amount due thereon, defendant to pay interest from the date of the contract. The stock was not deposited for sixteen months. Held, that, there being no time stated, a reasonable time was presumed for the deposit, and that sixteen months was not a reasonable time within which to deposit; wherefore defendant is relieved from liability for specific performance. In Fisher v. Boynton (1895), 87 Me. 395, 82 Atl. R. 995, defendant gave an order for cigars. Having waited nineteen days without hearing anything from his order, he countermanded it and bought elsewhere. Held, that the delay was unreasonable, and no action for the price was maintainable. 2 Thus, where the contract was to deliver "immediately," the fact that, unknown to the buyer, the seller did not have the goods and would need eight days to collect them, is no excuse for the delayed delivery. Woods v. Miller, 55 Iowa, 168, 39 Am. R. 170, 7 N. W. R. 484. Where the order for goods to be sent stipulates that they are to be sent as "soon as possible," the seller has a reasonable time to prepare and ship them. Tufts v. McClure, 40 Iowa, 317. To do a thing "as soon as possible" means to do it within a reasonable time, with an undertaking to do it in the shortest practicable to get the goods, and no time is specified, he must do so within a reasonable time.1 $1130. When notice required.—If, though no time or place is specified, it is the fair interpretation of the contract that the goods are to be delivered when the seller has gotten them in readiness for delivery-as where the goods are known to require making, finishing, importing, and the like,- the buyer is entitled to reasonable notice when and where they will be ready for delivery, in order that he may be ready to receive them, before he can be deemed in default; if the place is specified but not the time, neither party can ordinarily put the other in default by tendering or demanding delivery at that place, unless reasonable notice of such act has been given to the other, or unless the place or circumstances are such as to fairly make the act appropriate without previous notice; * time. Hydraulic Eng. Co. v. McHaffie, 4 Q. B. Div. 670, distinguishing if not reconciling Attwood v. Emery, 1 Com. B. (N. S.) 110; American Extract Co. v. Ryan (1894), 104 Ala. 267, 15 S. R. 807; Henkle v. Smith (1859), 21 Ill. 238; Dennis v. Stoughton (1883), 55 Vt. 371; Kribs v. Jones, 44 Md. 396; Cocker v. Manufacturing Co. (1839), 3 Sumn. 530. 1 Cameron v. Wells (1858), 30 Vt. 633; Blydenburgh v. Welsh (1831), Bald. 331, 3 Fed. Cas. 771; Bolton v. Riddle (1876), 35 Mich. 13; Mowry v. Kirk (1869), 19 Ohio St. 375. See also Simmons v. Green (1878), 35 Ohio St. 104; Zuck v. McClure (1881), 98 Pa. St. 541. 2 Hunter v. Wetsell, 84 N. Y. 549; Lockhart v. Bonsall, 77 Pa. St. 53; Bliss v. U. S. Incandes. Gas L. Co. (1896), 149 N. Y. 300, 43 N. E. R. 859. 3 In an action for breach of contract to deliver barrels upon a boat in a certain creek, when they were to be paid for, it was held to be the duty of the seller, when prepared to deliver them, to notify the buyer of his readiness; and if, without such notice, he took them away and sold them elsewhere, he would be liable for a breach of his contract. Cullom v. Wagstaff (1864), 48 Pa. St. 300. Where, under the contract, the buyer is to have thirty days' time in which to remove the goods after notice that they are in readiness for delivery, he cannot be in default before the expiration of that time. Empire State Phosphate Co. v. Heller (1894), 61 Fed. R. 280, 20 U. S. App. 589, 9 C. C. A. 504; Henkle v. Smith (1859), 21 IIL 238. 4 It is obvious that the circumstances of each case must largely affect this question. If goods are to be delivered at the buyer's place of business and are such as he could reasonably be expected to receive and pay for on any day during busi if the time or place of delivery is expressly or impliedly at the option of either party, he cannot tender or demand delivery until he has given reasonable notice of the time or place at which such delivery is to be made.1 ness hours, previous notice could scarcely be required; neither could it be if they were to be delivered at the seller's place of business when demanded, and were such as he ordinarily carried in stock and could deliver on a moment's notice. If in either case, however, the goods were unusual in quantity or kind, or such as the party could not reasonably be expected to deliver or to receive and pay for without notice, notice must be given. 1 Dwight v. Eckert, 117 Pa. St. 490, 12 Atl. R. 32; Rogers v. Van Hoesen, 12 Johns. (N. Y.) 221: Dingley v. Oler, 117 U. S. 490, 29 L. ed. 984, 6 Sup. Ct. 850. Thus in Harrow Spring Co. v. Whipple Harrow Co. (1892), 90 Mich. 147, 30 Am. St. R. 421, 51 N. W. R. 197, it was held to be the fair construction of a contract to supply castings from patterns agreed upon, that the seller should have a reasonable time, after being informed of the number wanted, in which to manufacture and ship them. And clearly if the goods are to be supplied “at the option of " the buyer "at any time" during a specified period, the seller is not in default until the buyer has notified him of the time and place when the goods will be required; until such notice, it is enough that the seller is in readiness to deliver the goods when demanded. Posey v. Scales (1876), 55 Ind. 282. Where plaintiff sold to defendant some cars of lead, which were to be shipped to East St. Louis or Chicago at defendant's option, and plaintiff sent for shipping instructions, but defendant did not send them, it was held that this was a rejection of the goods, and plaintiff could at once bring action. Weill v. American Metal Co. (1899), 182 Ill. 128, 54 N. E. R. 1050. In Lockhart v. Bonsall, 77 Pa. St. 53, where oil was to be delivered at such place as the buyer should designate, it was said: "It was his duty to give reasonable and timely notice of the place of delivery and to be there ready to receive and pay for it at the stipulated price per gallon." In Hunter v. Wetsell, 84 N. Y. 549, where hops were to be delivered at a place designated by the buyer and examined by him, but he made no such designation, after being notified that the hops were ready for deliv ery, it was held that the seller might recover the price. Where cattle sold are to be delivered "at the option " of the buyer "at any time" between certain dates, the seller, being ready and willing to deliver, is not in default until the buyer has notified him of the time and place of delivery. Colvin v. Weedman (1869), 50 Ill. 311. Where plaintiff sued for non-delivery of lumber for which he was to furnish cars, but had not, the court said: "The plaintiff, seeking to recover damages for the non-delivery, must show that he had done all that was required of him by the contract. The plaintiff neither paid nor offered to pay, nor did he provide cars nor offer to provide cars, nor express his willingness and readiness to do so, nor |