Action against Vendor for not accepting Delivery.

1.The plaintiff has suffered damage by breach of the defendant's contract to purchase and accept from the plaintiff 50,000 lbs. of black yarn, second quality, at 2s. 5d. per lb., to be delivered and accepted by five monthly instalments, each of 10,000 lbs., the first instalment to be delivered on January 1, 1883, at Hull.

vendor has failed to

deliver.

When the price has been paid, the measure of damages is the market Measure of price without deducting the contract price; and the same is the rule damages where the payment is by bills which are outstanding. (Ibid.) If where the buyer, at the request of the seller, forbears to enforce the contract at the time the goods ought to be delivered, but afterwards does so, the measure of damages is the difference between the contract price and the market price when the buyer so enforces the contract, i. e., by buying the goods in the market. (Ogle v. Vane, L. R. 2 Q. B. 275; aff. L. R. 3 Q. B. 272. See also Tyne v, Rosedale, &c. Iron Co., L. R. 8 Ex. 305.) If a ship is ordered to be made, or is left for repair, and not delivered at the agreed time, the measure of damage is primâ facie the sum which would have been earned by the ship in the ordinary course of trade since the period when it should have been delivered. (Fletcher v. Tayleur, 17 C. B. 21 ; L. J. 25 C. P. 65: Cory v. Thames Ironworks Co., L. R. 3 Q. B. 181.) See generally on the question as to the measure of damages, Elbinger, &c. v. Armstrong, L. R. 9 Q. B. 473; Vicars v. Willcocks, 2 Sm. Lead. Cas., 7th ed., 534, and notes; Mayne on Damages, 4th edition.

Duty of the vendee to accept delivery.]-If the purchaser refuse to Purchaser accept delivery of the goods when made according to the terms of the bound to contract, he is liable in an action for damages. In order to charge the accept purchaser where a tender of the goods is necessary, it must be made delivery. at a reasonable time and place, and be such as to afford him opportunity of examining and receiving the goods. Thus, a tender of articles in What a closed cask so as to prevent inspection, or at the defendant's ware- tender of house at a late hour after it is shut up, will not be good, though in the the goods is latter case, if the defendant happens to be there, and is able to examine sufficient. and receive them, it will not be bad merely on account of the lateness of the hour. (Isherwood 7. Whitmere, 10 M. & W. 757; Startup v. Macdonald, 6 M. & Gr. 593.) The tender must not be of a larger quantity If tender of than was bought. Thus, if the buyer give a limited order for certain a larger specified goods, and the seller sends these and others from a distant quantity place in one package charged at a lump sum, the consignee may refuse purchaser the whole. (Levy v. Green, 8 E. & B. 575; L. J. 27 Q. B. 111; aff. Ex. Ch. 1 E. & E. 969; L. J. 28 Q. B. 319). Equally where a joint order is the lot. given for several articles the contract is entire, and the purchaser may refuse to accept one unless the others are delivered. (Champion v. Short, 1 Camp. 53.) Where the defendant instructed the plaintiff So where a to buy for him 500 tons of sugar, " 50 tons more or less of no moment if less quanyou are enabled to get a suitable vessel," and the plaintiff bought 400 tity tentons, it was held that the defendant was not bound to accept the 400 dered. tons. (Ireland v. Livingston, L. R. 5 Q. B. 516, Ex. Ch.) Where goods are sold at "about" a cert in quantity. "more or less," the latter words are intended to provide for only a small excess. (Cross v. Eglin, 2 B. & Ad. 106; Macdonald v. Longbottom, 1 E. & E. 977; L. J. 28 Q. B. 293, and also 29 Q. B. 256.) Where the contract limits the time for

may refuse

Partial breach of

contract to deliver does not generally justify a refusal to receive.

When it is the purchaser's

duty to

take away the goods.

Effect of a sale 66

arrival" or

"to ar

rive."

Warranty on sales.

2. On the first of May, 1883, the plaintiff tendered, but the defendant refused to accept, the fifth instalment of 10,000 lbs. Particulars of damage :

Loss of profit, at 2d. per lb. on 10,000 lbs. £83 6s. 8d. The plaintiff claims £83 6s. 8d.

delivery the buyer cannot refuse a good tender of the goods made within the proper time because a tender of goods inferior to sample had been previously made.

When time is of the essence of the contract, which, in the absence of special agreement to that effect, is seldom the case, the defendant need not accept delivery of goods tendered after the time. (See Hoare v. Rennie, 5 H. & N. 19; L. J. 29 Ex. 73: Coddington v. Paleologo, L. R. 2 Ex. 193; Brandt v. Lawrence, 1 Q. B. Div. 344.) The general rule. however, is that a partial breach by the plaintiff of his contract to deliver does not justify the defendant in afterwards refusing to accept (Jonassohn v. Young, 4 B. & S. 296; L. J. 32 Q. B. 385; Simpson v. Crippin, L. R. 8 Q. B. 14); but where the sale is by sample, and the bulk tendered does not correspond with the sample, the purchaser need not accept (Heilbutt v. Hickson, L. R. 7 C. P. 438, 451); and so where the sale is an executory one of something not in existence at the time. and to be made, the purchaser may refuse to receive, or even afterwards return it if it does not correspond with the description of article ordered. Frequently a tender is not necessary, as where nothing was said on the subject in the contract. It is then the purchaser's duty to take away the goods, and it is enough that the vendor is ready and willing to deliver to him when required. Again, if the defendant notifies his intention to refuse, and forbids the plaintiff to deliver goods ordered to be made, then the plaintiff need not proceed to complete the contract on his part, and may show this under an alleged refusal to accept, although the goods are not ready for delivery, and could not be delivered, for the plaintiff is thereby discharged from proceeding further. (Cort v. Ambergate Rail. Co., 17 Q. B. 127, 144; L. J. 20 Q. B. 460.) A sale of goods "on arrival," or "to arrive," in a particular ship is a contract for a sale of goods at a future period, subject to the double condition of the arrival of the ship and the goods being on board; but it is not a warranty by the seller that the goods will arrive (Boyd v. Siffkin, 2 Camp. 326 Smith v. Myers, L. R. 5 Q. B. 429 ; aff. L. R. 7 Q. B. 139) ; but where the contract is for the sale of goods "now on passage and expected to arrive by," or "to be delivered on the safe arrival of," a certain ship, it is conditional on the arrival of the ship only. (Gorissen v. Perrin, 2 C. B. N. S. 681; L. J. 27 C. P. 29: Hale v. Rawson, 4 C. B. N. S. 85; L. J. 27 C. P. 189.)

There is implied in the contract of sale a warranty by the vendor that at the time of the sale he does not know that he has no title to the thing sold, and if he sells, as owner, he thereby warrants his ownership. But if the vendor be selling as a sheriff. trustee, pawnbroker, or the like, and not as owner, caveat emptor as to his title.

If the purchaser has an opportunity of inspecting the goods before sale, no warranty on the part of the vendor, fraud apart, is implied as to their genuineness or quality. But the maxim caveat emptor has no application when the purchaser has no opportunity of inspecting. Under a contract to supply goods of a specified description which the buyer has no opportunity of inspecting, the goods must not only in fact answer the specific description, but must be saleable or merchantable under that description. (Jones v. Just, L. R. 3 Q. B. 197) and on the sale of an article for a specific purpose there is an implied warranty by

1. On the 1st of February it was in writing agreed between the plaintiff and the defendant that the delivery of the fifth and last instalment of the yarn should be made on the 5th of April, 1883, and not on the 1st of May, 1883, as previously agreed.

2. The plaintiff did not deliver the said instalment, or any part thereof, on the 5th of April, 1883, or at all until the 1st of May, 1883, when he tendered the said instalment.

Counter-claim.

The defendant says that :

1. He repeats the allegations in paragraphs 1 and 2 of the statement of defence.

2. Before and on the 1st of February, 1883, the plaintiff had notice that the delivery of the fifth instalment on the 5th

the vendor that it is reasonably fit for the purpose, and there is no exception as to latent undiscoverable defects. (Randall v. Newson, 2 Q. B. Div. 102; Nusseuvaujee v. Gregson, L. R. 4 Ex. 49.)

But where the contract was for the sale and purchase of "oats" by Mistake. sample, and the purchaser agreed to give what would have been a very high price unless they were old "oats," they being in fact new "oats,' it was held that the passive acquiescence of the seller in the selfdeception of the buyer did not entitle the latter to avoid the contract. (Smith v. Hughes, L. R. 6 Q. B. 597.)

property.

As to the extent and limits of the right of an unpaid vendor to stop Stoppage the goods in transit when the purchaser becomes insolvent, see Exp. in tranGibbes, 1 Ch. Div. 101; Bollor v. L. & Y. Rail. Co., L. R. 1 C. P. 431; situ. Exp. Watson, re Love, 5 Ch. D. 35; Merchant Bank v. Phænix Bessemer Steel Co., 5 Ch. Div. 205; Exp. Barron, 6 Ch. Div. 783; Grice v. Richardson, 3 App. Cas. 319; and Kemp v. Falk, 7 App. Cas. 573. Although the purchaser of a chattel takes it as a general rule subject Passing of to what may turn out to be informalities in the title, by a purchase in market overt, the title obtained is good against the whole world except the true owner claiming after he has prosecuted the thief to conviction. And where the original owner parts with the chattel to A. upon a de facto contract, though there may be circumstances which enable that owner to set aside the contract, a bonâ fide purchaser from A. will obtain an indefeasible title. (Cundy v. Lindsay, 3 App. Cas. 459.) As goods bona fide bought from a thief become the property of the purchaser until the original owner prosecutes the thief to conviction, on restitution to the original owner, the purchaser cannot claim the cost of keeping or feeding the chattels. (Walker v. Matthews, 8 Q. B. Div. 731.)

K K

of April, 1883, was necessary to enable the defendant to complete a contract for the sale of yarn, which he had entered into with X. Y., and that the defendant had agreed to pay X. Y. £100 as liquidated damages if he should fail to perform his contract with him.

3. By reason of the plaintiff's failure to deliver on April 5, 1883, the defendant was unable to perform his contract with X. Y., and was compelled to pay X. Y. £100 as and for liquidated damages.

As to the defence :

1. The plaintiff joins issue.

As to the counter-claim, the plaintiff says that :

1. He did not agree to deliver the fifth instalment on the 5th of April, or at all before May 1, 1883.

2. If he did so agree, the defendant, on the 4th of April, 1883, requested him to postpone delivery until further orders. The defendant gave no further orders, and the plaintiff accordingly delivered the instalment on May 1, 1883.

3. The plaintiff had no notice at all before action of the alleged contract with X. Y.

4. The plaintiff does not admit the alleged contract with X. Y., or that the defendant paid or was compelled to pay X. Y. £100, or any other sum for damages for breach of contract.

Action against Purchaser for not accepting Delivery of Part, and for Price of Part accepted.

1. On January 1, 1883, the defendant purchased of the plaintiff's 50 tons of sperm-oil, at £30 each, half to be deli

vered on January 15, 1883, and the other half on February 1, 1883.

2. On January 15, 1883, the plaintiffs delivered 25 tons of the oil to the defendant, and he accepted it.

3. On January 20, 1883, the defendant in writing informed the plaintiffs that he would not accept the remaining 25 tons of oil if it should be tendered.

4. On February 1, 1883, the plaintiffs sold the 25 tons of oil (which the defendant refused to accept) for £625, the then market price.

The plaintiffs claim £750, price of the oil delivered, and £125 damages for loss upon the resale of the oil refused by defendant, making in all £875.

Defence.

The defendant says that :

1. The fifty tons of oil were warranted equal to a sample. 2. On delivery of 25 tons delivered on January 15, 1883, they were inferior to sample, and the defendant refused to accept the same, and gave notice to the plaintiffs that they remained on the defendant's premises at the plaintiffs' risk.

3. The plaintiffs refused to deliver oil according to sample on February 1, 1883, but insisted that they would deliver oil of the same quality as that sent on January 15, 1883. It was such oil only which the defendant refused to accept.

4. The defendant does not admit the alleged sale for £625, or any other sum.

Action for not Accepting Goods and for Demurrage, &c., incurred in their Delivery.

1. The plaintiff has sustained damage by the defendant's breach of contract in not accepting delivery of 300 tons of old double-headed iron rails, which by a contract of sale made on the 6th of May, 1883, the defendant agreed to purchase from the plaintiff at £4 118. a ton, on the terms that they should be delivered at the Steel Rail Mill Co.'s wharf at in the month of June, 1883, the defendant repaying to the plaintiff the cost of freight from X. where the rails were to the wharf. 2. On June 15th, 1883, the plaintiff duly tendered to the