trains was supreme. The whole power of the corporation whose duty it was to move them safely was delegated to him. He was the agent through whom the corporation attempted to perform its duty. He acted in its name, by its authority, and its stead. The engineer was bound to obey his order. Disobedience or deviation would have been subversive of order and discipline, destructive in its consequences, and just cause for immediate dismissal. He received an order to go west from Waterbury on a single track road at a time when another train was approaching Waterbury from the west. The order was imperative, and it required of him implicit obedience. He obeyed. He did not then know the consequences, but the company did, or should have known. He conformed to the order, as he was bound to; and while so conforming, and as the direct consequence thereof he was injured. Reason, justice and law require that the company should be held responsible." See Mathews v. Case, 61 Wis. 491; S. C., 50 Am. Rep. 151; Chic., etc., Ry. Co. v. Swanson, 16 Neb. 254; S. C., 49 Am. Rep. 718; Moon's Adm'r v. Richmond, etc., R. Co., 78 Va. 745; S. C., 49 Am. Rep. 401; Railroad v. Ross, 112 U. S. 377. He receives no consignments, has no custody of the goods, no property in them, no lien upon them, and as a general rule, never sees them. The appellant's business is altogether a different business from this. He is what is called in common parlance a produce commission merchant. That is, he is a factor employed to sell products which are sent to him for sale, with which he deals as if he were the owner, in which he has a special property, and for which he may maintain replevin or trover, or if sold, an action for the price." In Manton v. Tabois, 53 L. T. Rep. (N. S.) 289, it was held by Bacon, V. C., that a provision that furniture, goods and chattels " at a house provided for a wife's residence should not be sold during her life, did not embrace jewelry, plate, money, coins, guns, scientific instruments, etc. The court said: "The will in question is the will of a gentleman of considerable wealth, and who was engaged in scientific and literary pursuits, as appears by the will itself. Now, the testator begins by directing the payment of a variety of legacies, and the release of a debt which was due to him, and then he directs that these legacies, amounting to more than £5001, are to be paid from 'such part of my personal estate as shall consist of money at my bankers or in three per cent consols' a circumstance that is to be taken into consideration in construing his will. And in another part of his will, to which attention was particularly called, there is this: that having provided that the whole of his income should be devoted to his wife, and that her residence should be at the house at Shepherd's Bush, which he mentions, 'so long as the lease thereof shall last, and the safety and fitness of the house be agreed upon by my executors. I desire that the furniture, goods and chattels be not sold during my wife's life-time, but at her decease be divided among the executors.' That raises the first question that was argued before me. The question is whether those words 'furni In Hunter's Appeal, Pennsylvania Common Pleas, September, 1885, it was held that a produce commission merchant is not taxable as a "merchandise broker." The court said: "The admitted facts of the case are that the business of the appellant for which he has been thus assessed is of the following nature: He receives fruits, butter, eggs, poultry, and various other kinds of country produce, which are consigned to him from distant points for sale, takes the same into his exclusive possession, has the exclusive care, custody and control thereof, holding himself responsible therefor to his consignor, disposes of the same by sale and delivery in his own name, and upon accounting with his consignor receives for his compensation a certain percentage of the proceeds. It is apparent from this state-ture, goods and chattels,' which the testator directs ment of the character of the business carried on by the appellant that he is not a broker but a factor, the difference between which pursuits is well defined by the law as well as in the common understanding of the people. A factor and a broker are both agents. A factor is employed either by a foreign or home merchant, or other person, and is intrusted with the possession and apparent ownership of the goods to be sold by him for his principal. A broker has not the custody of the goods of his principal. He is merely empowered to effect the contract of sale, and when he has effected such sale he is functus officio. A factor is distinguished from a broker by being intrusted by others with the possession and disposal of goods. A broker is employed merely in the negotiation of mercantile contracts. He is not intrusted with the possession of goods, and does not act in his own name. A merchandise broker is a commercial agent who makes sales or purchases for others. His business is to make contracts to be executed by other people. are not to be sold during his wife's life-time, are confined to what would be the popular meaning of them; that is to say, to the furniture, goods and chattels, which are in the house and used in the house, the quiet possession of which he provides for his wife. Upon that I cannot doubt that the rule as to things ejusdem generis (for it is a rule here) applies to this particular case, and that nothing passes by this bequest beneficially to the executors but the things which were actually in the house, and useful and agreeable to the comfort of his wife, and for the life interest which the testator gave her, and that it does not pass guns, nor revolvers, nor coins, nor any of the other things which are mentioned at such length in the schedule, but is literally confined to those things, which if the house had been put up to be let to a tenant as a furnished house, would have been passed over to the tenant, to be used in the occupation of the house." See Sumner v. Blakslee, 59 N. H. 242; S. C., 47 Am. Rep. 196; and note, 197. In State v. Schwartz, Wisconsin Supreme Court, Nov. 3, 1885, 25 N. W. Rep. 417, it was held that the fraudulent alteration of a promissory note of five dollars, by erasing the dollar-mark and substituting the figure 2, was forgery. The court said: "On principle and authority we think the question should be answered affirmatively. Booth v. Wallace, 2 Root, 247, was an action on a promissory note for 'thirty-two, twelve shillings and five pence.' The court said: 'The word 'pounds' after the words thirty-two' is necessarily implied, and the omission, it is clear, was owing to the mistake of the scribe who drew the note, and the implication is so clear and strong that it is not necessary it should be averred in the declaration more fully than it is.' In Northrop v. Sanborn, 22 Vt. 433, the question arose on an order requesting the drawee to pay the bearer 37.89,' without any thing else on אן ning February, 1880, but whole contract to be shipped before August 1, 1880, at $45 per ton of 2,240 pounds, custom-house weight, ex ship Philadelphia; settlement, cash, on presentation of bills accompanied by custom-house certificate of weight; sellers not to be compelled to replace any parcel lost after shipment "-the sellers are bound to ship 1,000 tons in each month, from February to June inclusive, except that slight and unimportant deficiencies may be made up in July; and if only 400 tons are shipped in February, and 885 tons in March, and the buyer accepts and pays for the February shipment on its arrival in March, at the stipulated price, and above its market value, and in ignorance that no more has been shipped in February, and is first informed of that fact after the arrival of the March shipments, and before accepting or paying for either of them, he may rescind the contract by reason of the failure to ship about 1,000 tons in each of the months of February and March. error to the Circuit Court of the United States for the Eastern District of Pennsylvania. The opinion states the facts. Samuel Dickson and J. C. Bullitt, for plaintiffs in error. R. C. McMurtrie, for defendants in error. Sous, upon the following contract: "PHILADELPHIA, January 19, 1880. "Sold to Messrs. Peter Wright & Sons, for account of A. Norrington & Co., London: Five thousand the face of the order to denote that dollars and cents were intended. The court said, Judge Redfield delivering the opinion: We think it not necessary to say that the order expressed for 37.89 is GRAY, J. This was an action of assumpsit, brought so far unintelligible that it is void. The law of by Arthur Norrington, a citizen of Great Britain, the United States Congress establishing our national trading under the name of A. Norrington & Co., currency having declared that it shall consist of the against James A. Wright and others, citizens of Penndollar as a unit, and the decimal parts of the dol-sylvania, trading under the name of Peter Wright & lar as dimes and cents, it would seem the necessary legal intendment that a contract expressed in figures should be in the currency of the country. If prefixed by the usual sign ($) no one could entertain doubt; and that is nothing but a mark to signify that the national currency is intended. Without that we think the legal intendment is the same.' Murrill v. Handy, 17 Mo. 406, was an action on a promissory note wherein the makers promised to pay the payee 'the sum of fifty-two 25-100, for value received.' The word 'dollars,' as well as the '$' mark, was entirely omitted. It was held that the note on its face was for $52.25. Some stress was laid upon the words 'the sum' in the instrument, but we think the word 'pay' is equally significant. Other cases to the same effect are cited by the attorney-general, although perhaps they are not so directly in point as are those above referred to." This holding finds support in Rex v. Elliott, 2 East P. C. 951; Beardsley v. Hill, 61 Ill. 354; Harmon v. Howe, 27 Gratt. 676. CONTRACT-WARRANTY - REPUDIATION. NORRINGTON V. WRIGHT.* In a mercantile contract a statement descriptive of the subject-matter, or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty or condition precedent, upon the failure or non-performance of which the party aggrieved may repudiate the whole contract. Under a contract made in Philadelphia for the sale of "5,000 tons iron rails, for shipment from a European port or ports, at the rate of about 1,000 tons per month, begin*S. C., 6 Sup. Ct. Rep. 12. (5,000) tons old T iron rails, for shipment from a European port or ports, at the rate of about one thousand (1,000) tons per month, beginning February, 1880, but whole contract to be shipped before August 1, 1880, at forty-five dollars ($45.00) per ton of 2240 lbs., customhouse weight, ex ship Philadelphia. Settlement, cash, on presentation of bills, accompanied by custom-house certificate of weight. Sellers to notify buyers of shipments with vessels' names as soon as known by them. Sellers not to be compelled to replace any parcel lost after shipment. Sellers, when possible, to secure to buyers right to name discharging berth of vessels at Philadelphia. "EDWARD J. ETTING, Metal Broker." The declaration contained three counts. The first count alleged the contract to have been for the sale of about 5,000 tons of T iron rails, to be shipped at the rate of about 1,000 tons a month, beginning in February and ending in July, 1880. The second count set forth the contract verbatim. Each of these two counts alleged that the plaintiff in February, March, April, May, June and July shipped the goods at the rate of about 1,000 tons a month, and notified the shipments to the defendants; and further alleged the due arrival of the goods at Philadelphia, the plaintiff's readiness to deliver the goods and bills thereof, with custom-house certificates of weight, according to the contract, and the defendants refused to accept them. The third count differed from the second only in averring that 400 tons were shipped by the plaintiff in February and accepted by the defendants, and that the rest was shipped by the plaintiff at the rate of about 1,000 tons a month, in March, April, May, June and July. The defendants pleaded non assumpsit. The material facts proved at the trial were as follows: The plaintiff shipped from various European ports 400 tons by one vessel in the last part of February, 885 tons by two vessels in March, 1,571 tons by five vessels in April, 850 tons by three vessels in May, 1,000 tons by two vessels in June, and 300 tons by one vessel in July, and notified to the defendants each shipment. The defendants received and paid for the February shipment upon its arrival in March, and in April gave directions at what wharves the March shipments should be discharged on their arrival; but on May 14, about the time of the arrival of the March shipments, and having been then for the first time informed of the amounts shipped in February, March and April, they gave Etting written notice that they should decline to accept the shipments made in March and April, because none of them were in accordance with the contract; and in answer to a letter from him of May 16, wrote him on May 17, as follows: "We are advised that what has occurred does not amount to an acceptance of the iron under the circumstances, and the terms of the contract. You had a right to deliver in parcels, and we had a right to expect the stipulated quantity would be delivered until the time was up in which that was possible. Both delivering and receiving were thus far conditional on there being thereafter a complete delivery in due time and of the stipulated article. On the assumption that this time had arrived, and that you had ascertained that you did not intend to, or could not, make any further deliveries for the February and March shipments, we gave you the notice that we declined accepting those deliveries. As to April, it is too plain, we suppose, to require any remark. If we are mistaken as to our obligation for the February and March shipments, of course we must abide the consequences; but if we are right, you have not performed your contract, as you certainly have not for the April shipments. There is then the very serious and much debated question, as we are advised, whether the failure to make the stipulated shipments in February or March has absolved us from the contract. If it does, we of course will avail ourselves of this advantage." On May 18 Etting wrote to the defendants, insisting on their liability for both past and future shipments, and saying, among other things: "In respect to the objection that there had not been a complete delivery in due time of the stipulated article, I beg to call your attention to the fact that while the contract is for 5,000 tons, it expressly stipulates that deliveries may be made during six months, and that they are only to be at the rate of about 1,000 tons per month." "As to April, while it seems to me too plain to require any remark,' I do not see how it can seem so to you, unless you intend to accept the rails. If you object to taking all three shipments made in that month, I shall feel authorized to deliver only two of the cargoes, or for that matter, to make the delivery of precisely 1,000 tous. But I think I am entitled to know definitely from you whether you intend to reject the April shipments, and if so, upon what ground, and also whether you are decided to reject the remaining shipments under the contract. You say in your last paragraph that you shall avail yourselves of the advantage, if you are absolved from the contract; but as you seem to be in doubt whether you can set up that claim or not, I should' like to know definitely what is your intention." On May 19 the defendants replied: "We do not read the contract as you do. We read it as stipulating for monthly shipments of about 1.000 tons, beginning in February, and that the six months' clause is to secure the completion of whatever had fallen short in the five months. As to the meaning of about,' it is settled as well as such a thing can be; and certainly neither the February, March nor April shipments are within the limits. As to the proposal to vary the notices for April shipments, we do not think you can do this. The notice of the shipments, as soon as known, you were bound to give, and cannot afterward vary it if they do not conform to the contract. Our right to be notified immediately that the shipments were known is as material a provision as any other, nor can it be changed now in order to make that a performance which was no performance within the time required." "You ask us to determine whether we will or will not object to receive further shipments because of past defaults. We tell you we will if we are entitled to do so, and will not if we are not entitled to do so. We do not think you have the right to compel us to decide a disputed question of law to relieve you from the risk of deciding it yourself. You know quite as well as we do what is the rule, and its uncertainty of application." On June 10 Etting offered to the defendants the alternative of delivering to them 1,000 tons strict measure on account of the shipments in April. This offer they immediately declined. On June 15 Etting wrote to the defendants that two cargoes, amounting to 221 tons, of the April shipments, and two cargoes, amounting to 650 tons, of the May shipments (designated by the names of the vessels), had been erroneously notified to them, and that about 900 tons had been shipped by a certain other vessel on account of the May shipments. On the same day the defendants replied that the notification as to April shipments could not be corrected at this late date, and after the terms of the contract had long since been broken. From the date of the contract to the time of its rescission by the defendants, the market price of such iron was lower than that stipulated in the contract, and was constantly falling. After the arrival of the cargoes, and their tender and refusal, they were sold by Etting, with the consent of the defendants, for the benefit of whom it might concern. At the trial the plaintiff contended (1) that under the contract he had six months in which to ship the 5,000 tons, and any deficiency in the earlier months could be made up subsequently, provided that the defendants could not be required to take more than 1,000 tons in any one month; (2) that if this was not so, the contract was a divisible contract, and the remedy of the defendants for a default in any month was not by rescission of the whole contract, but only by deduction of the damages caused by the delays in the shipments on the part of the plaintiff. But the court instructed the jury that if the defendants, at the time accepting the delivery of the cargo paid for, had no notice of the failure of the plaintiff to ship about 1,000 tons in the month of February, and immediately upon learning that fact gave notice of their intention to rescind, the verdict should be for them. The plaintiff excepted to this instruction, and after verdict and judgment for the defendants, sued out this writ of error. In the contracts of merchants time is of the essence. The time of shipment is the usual and convenient means of fixing the probable time of arrival, with a view of providing funds to pay for the goods, or of fulfilling contracts with third persons. A statement descriptive of the subject-matter, or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty in the sense in which that term is used in insurance and maritime law, that is to say, a condition precedent upon the failure or non-performance of which the party aggrieved may repudiate the whole contract. Behn v. Burness, 3 Best & S. 751; Bowes v. Shand, 2 App. Cas. 455; Lowber v. Bangs, 2 Wall. 728; Davison v. Von Lingen, 113 U. S. 40. The contract sued on is a single contract for the sale and purchase of 5,000 tons of iron rails, shipped from a European port or ports for Philadelphia. The subsidiary provisions as to shipping in different months, and as to paying for each shipment upon its - delivery, do not split up the contract into as many contracts as there shall be shipments, or deliveries of so many distinct quantities of iron. Mersey S. & I. Co. v. Naylor, 9 App. Cas. 434, 439. The further provision that the sellers shall not be compelled to replace any parcel lost after shipment, simply reduces, in the event of such a loss, the quantity to be delivered and paid for. The times of shipment, as designated in the contract, are "at the rate of about 1,000 tons per month, beginning February, 1880, but the whole coutract to be shipped before August 1, 1880." These words are not satisfied by shipping one-sixth part of the 5,000 tons, or about 833 tons, in each of the six months which begin with February and end with July. But they require about 1,000 tons to be shipped in each of the five months from February to June inclusive, and allow no more than slight and unimportant deficiencies in the shipments during those months to be made up in the month of July. The contract is not one for the sale of a specific lot of goods, identified by independent circumstances such as all those deposited in a certain warehouse, or to be shipped in a particular vessel, or that may be manufactured by the seller, or may be required for use by the buyer, in a certain mill-in which case the mention of the quantity, accompanied by the qualification of “about," or 66 more or less," is regarded as a mere estimate of the probable amount, as to which good faith is all that is required of the party making it. But the contract before us comes within the general rule: "When no such independent circumstances are referred to, and the engagement is to furnish goods of a certain quality or character to a certain amount, the quantity specified is material, and governs the contract. The addition of the qualifying words 'about,' 'more or less,' and the like, in such cases, is only for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies in number, measure or weight." Brawley v. United States, 96 U. S. 168, 171, 172. The seller is bound to deliver the quantity stipulated, and has no right either to compel the buyer to accept a less quantity or to require him to select part out of a greater quantity; and when the goods are to be shipped in certain proportions monthly, the seller's failure to ship the required quantity in the first month gives the buyer the same right to rescind the whole contract that he would have had if it had been agreed that all the goods should be delivered at once. The plaintiff, instead of shipping about 1,000 tons in February and about 1,000 tons in March, as stipulated in the contract, shipped only 400 tons in February and 885 tons in March. His failure to fulfill the contract on his part in respect to these two first installments justified the defendants in rescinding the whole contract, provided they distinctly and seasonably asserted the right of rescissiou. The defendants, immediately after the arrival of the March shipments, and as soon as they knew that the quantities which had been shipped in February and in March were less than the contract called for, clearly and positively asserted the right to rescind if the law entitled them to do so. Their previous acceptance of the single cargo of 400 tons shipped in February was no waiver of this right, because it took place without notice or means of knowledge that the stipulated quantity had not been shipped in February. The price paid by them for that cargo being above the market value, the plaintiff suffered no injury by the omission of the defendants to return the iron; and no reliance is placed on that omission in the correspondence between the parties. The case wholly differs from that of Lyon v. Bertram, 20 How. 149, in which the buyer of a specific lot of goods accepted and used part of them with full means of previously ascertaining whether they conformed to the contract. The plaintiff, denying the defendants' right to rescind, and asserting that the contract was still in force, was bound to show such performance on his part as entitled him to demand performance on their part, and having failed to do so, cannot maintain this action. For these reasons we are of opinion that the judgment below should be affirmed. But as much of the argument at the bar was devoted to a discussion of the recent English cases, and as a diversity in the law, as administered on the two sides of the Atlantic, concerning the interpretation and effect of commercial contracts of this kind, is greatly to be deprecated, it is proper to add that upon a careful examination of the cases referred to they do not appear to us to establish any rule inconsistent with our conclusion. In the leading case of Hoare v. Rennie, 5 Hurl. & N. 19, which was an action upon a contract of sale of 667 tons of bar iron, to be shipped from Sweden in June, July, August and September, and in about equal portions each month, at a certain price payable on delivery, the declaration alleged that the plaintiffs performed all things necessary to entitle them to have the contract performed by the defendants, and were ready and willing to perform the contract on their part, and in June shipped a certain portion of the iron, and within a reasonable time afterward offered to deliver to the defendants the portion so shipped, but the defendants refused to receive it, and gave notice to the plaintiff that they would not accept the rest. The defendants pleaded that the shipment in June was of about twenty tons only, and that the plaintiffs failed to complete the shipment for that month according to the contract. Upon demurrer to the pleas it was argued for the plaintiffs that the shipment of about onefourth of the iron in each month was not a condition precedent, and that the defendants' only remedy for a failure to ship that quantity was by a cross-action. But judgment was given for the defendants, Chief Baron Pollock saying: "The defendants refused to accept the first shipment, because, as they say, it was not a performance, but a breach of the contract. Where parties have made an agreement for themselves, the courts ought not to make another for them. Here they say that in the events that have happened onefourth shall be shipped in each month, and we cannot say that they meant to accept any other quantity. At the outset the plaintiffs failed to tender the quantity according to the contract—they tendered a much less quantity. The defendants had a right to say that this was no performance of the contract, and they were no more bound to accept the short quantity than if a single delivery had been contracted for. Therefore the pleas are an answer to the action." 5 Hurl. & N. 28. So in Coddington v. Paleologo, L. R., 2 Exch. 193, while there was a division of opinion upon the question whether a contract to supply goods, delivering on April 17, complete 8th May," bound the seller to begin delivering on April 17, all the judges agreed that if it did, and the seller made no delivery on that day the buyer might rescind the contract. On the other hand, in Simpson v. Crippin, L. R., 8 Q. B. 14, under a contract to supply from 6,000 to 8,000 tons of coal, to be taken by the buyer's wagons from the seller's colliery in equal monthly quantities for twelve months, the buyer sent wagons for only 150 tons during the first month; and it was held that this did not entitle the seller to annul the contract and decline to deliver any more coal, but that his only remedy was by an action for damages. And in Brandt v. Laurence, 1 Q. B. Div. 344, in which the contract was for the purchase of 4,500 quarters, ten per cent, more or less, of Russian oats, "shipment by steamer or steamers during February," or in case of ice preventing shipment, then immediately upon the opening of navigation, and 1,139 quarters were shipped by one steamer in time, and 3,361 quarters were shipped too late, it was held that the buyer was bound to accept the 1,139 quarters, and was liable to an action by the seller for refusing to accept them. Such being the condition of the law of England as declared in the lower courts, the case of Bowes v. Shand, after conflicting decisions in the Queen's Bench Division and the Court of Appeal, was finally determined by the House of Lords. 1 Q. B. Div. 470; 2 id. 112; 2 App. Cas. 455. In that case two contracts were made in London, each for the sale of 300 tons of "Madras rice, to be shipped at Madras or coast for this port during the months of March and (or) April, 1874, per Rajah of Cochin." The 600 tons filled 8,200 bags, of which 7,120 bags were put on board, and bills of lading signed in February; and for the rest, consisting of 1,030 bags put on board in February, and fifty in March, the bill of lading was signed in March. At the trial of an action by the seller against the buyer for refusing to accept the cargo, evidence was given that rice shipped in February would be the spring crop, and quite as good as rice shipped in March or April. Yet the House of Lords held that the action could not be maintained, because the meaning of the contract as apparent upon its face, was that all the rice must be put on board in March and April, or in one of those months. In the opinions there delivered the general principles underlying this class of cases are most clearly and satisfactorily stated. It will be sufficient to quote a few passages from two of those opinions. Lord Chancellor Cairns said: "It does not appear to me to to be a question for your lordships, or for any court, to consider whether that is a contract which bears upon the face of it some reason, some explanation, why it was made in that form, and why the stipulation is made that the shipment should be during these particular months. It is a mercantile contract, and merchants are not in the habit of placing upon their contracts stipulations to which they do not attach some value and importance." 2 App. Cas. 463. "If it be admitted that the literal meaning would imply that the whole quantity must be put on board during a specified time, it is no answer to that literal meaning it is no observation which can dispose of, or get rid of, or displace, that literal meaning to say that it puts an additional burden on the seller without a corresponding benefit to the purchaser; that is, a matter of which the seller and purchaser are the best judges. Nor is it any reason for saying that it would be a means by which purchasers, without any real cause, would frequently obtain an excuse for rejecting contracts when prices had dropped. The non-fulfillment of any term in any contract is a means by which a purchaser is able to get rid of the contract when prices have dropped; but that is no reason why a term which is found in a contract should not be fulfilled." Pages 465, 466. "It was suggested that even if the construction of the contract be as I have stated, still if the rice was not put on board in the particular months that would not be a reason which would justify the appellants in having rejected the rice altogether, but that it might afford a ground for a crossaction by them if they could show that any particular damage resulted to them from the rice not having been put on board in the months in question. My lords, I cannot think that there is any foundation whatever for that argument. If the construction of the contract be as I have said that it bears, that the rice is to be put on board in the months in question, that is part of the description of the subject-matter of what is sold. What is sold is not 300 tons of rice in gross or in general. It is 300 tons of Madras rice, to be put on board at Madras during the particular months." "The plaintiff, who sues upon that contract, has not launched his case until he has shown that he has tendered that thing which has been contracted for, aud f he is unable to show that, he cannot claim any damages for the non-fulfillment of the contract." Pages 467, 468. Lord Blackburn said: "If the description of the article tendered is different in any respect it is not the article bargained for, and the other party is not bound to take it. I think in this case what the parties bargained for was rice, shipped at Madras or the coast of Madras. Equally good rice might have been shipped a little to the north or a little to the south of the coast of Madras. I do not quite know what the boundary is, and probably equally good rice might have been shipped in February as was shipped in March, or equally good rice might have been shipped in May as was shipped in April, and I dare say equally good rice might have been put on board another ship as that which was put on board the Rajah of Cochin. But the parties have chosen, for reasons best known to themselves, to say: We bargain to take rice, shipped in this particular region, at that particular time, on board that particular ship; and before the defendants can be compelled to take any thing in fulfillment of that contract it must be shown not merely that it is equally good, but that it is the same article as they have bargained for, otherwise they are not bound to take it." 2 App. Cas. 480, 481. Soon after that decision of the House of Lords two cases were determined in the Court of Appeal. In Reuter v. Sala, 4 C. P. Div. 239, under a contract for the sale of "about twenty-five tons, more or less, black pepper, October and (or) November shipment, from Penang to London, the name of the vessel or vessels, marks, and full particulars to be declared to the buyer in writing within sixty days from date of bill of lading," the seller, within the sixty days, declared twenty-five tons by a particular vessel, of which only twenty tons were shipped in November and five tons in December; and it was held that the buyer had the right to refuse to receive any part of the pepper. In Honck v. Muller, 7 Q. B. Div. 92, under a contract for the sale of 2,000 tons of pig-iron, to be delivered to the buyer free on board the maker's wharf "in November, or equally over November, December and January next," the buyer failed to take any iron in November, but demanded delivery of one-third in December and one-third in January; and it was held that the seller was justified in refusing to deliver, and in giving notice to the buyer that he considered the contract as cancelled by the buyer's not taking any iron in November. The plaintiff in the case at bar greatly relied on the very recent decision of the House of Lords in Mersey Co. v. Naylor, 9 App. Cas. 434, affirming the judgment of the Court of Appeal in 9 Q. B. Div. 648, and following the decision of the Court of Common Pleas in Freeth v. Burr, L. R., 9 C. P. 208. But the point there decided was that the failure of the buyer to pay for the first installment of the goods upon delivery does not, unless the circumstances evince an intention on his part to be no longer bound by the contract, entitle the seller to rescind the contract, and to decline to make further deliveries under it. And the grounds of the decision, as stated by Lord Chancellor Selborne in moving judgment in the House of Lords, are applicable only to the case of a failure of the buyer to pay for, and not to that of a failure of the seller to deliver the first installment. The lord chancellor said: "The contract is for the purchase of 5,000 steel blooms of the company's manufacture; therefore it is one cou |