lading, with all the chances of excess or deficiency in the quantity that might be on board. Result of the deci sions in sales "to arrive." § 586. It appears from this review of the decisions that contracts of this character may be classified as follows: First. Where the language is that goods are sold "on arrival per ship A. or ex ship A.," or "to arrive per ship A. or ex ship A." (for these two expressions mean precisely the same thing), (y) it imports a double condition precedent, viz. that the ship named shall arrive, and that the goods sold shall be on board on her arrival. Secondly. Where the language asserts the goods to be on board of the vessel named, as "1,170 bales now on passage, and expected to arrive per ship A.," or other terms of like import, there is a warranty that the goods are on board, and a single condition precedent, to wit, the arrival of the vessel. Thirdly. The condition precedent that the goods shall arrive by the vessel will not be fulfilled by the arrival of goods answering the description of those sold, but not consigned to the vendor, and with which he did not affect to deal; but semble, the condition will be fulfilled if the goods which arrive are the same that the vendor intended to sell, in the expectation, which turns out to be unfounded, that they would be consigned to him. Fourthly. Where the sale describes the expected cargo to be of a particular description, as "400 tons Aracan Necrensie rice," and the cargo turns out on arrival to be rice of a different description, (2) the condition precedent is not fulfilled, and neither party is bound by the bargain. Whit Neill v. A sale worth. and a clause was quay; customary § 587. In a recent case (a) an attempt was made to convert a stipulation introduced in the vendor's favor into a condition precedent which he was bound to fulfil. was made of cotton, "to arrive in Liverpool," inserted: "The cotton to be taken from the allowance of tare and draft, and the invoice to be dated from date of delivery of last bale." This was construed to be a stipulation against the buyer, not a condition in his favor; the purpose being probably to save warehouse charges, as it was shown that by the dock regulations in Liverpool goods must be removed (y) Per Parke B. in Johnson v. M'Don- for the effect of a description of the thing ald, 9 M. & W. 600-604. sold. (z) See post, part II. ch. i. Warranty, (a) Neill v. Whitworth, 18 C. B. N. S. 435; 34 L. J. C. P. 155. from the quay within twenty-four hours, in default whereof they are removed and warehoused by the dock authorities. Vendor to in sales" to § 588. In sales of goods "to arrive," it is quite a usual condition that the vendor shall give notice of the name of give notice the ship on which the goods are expected, as soon as it arrive." becomes known to him, and a strict compliance with this promise is a condition precedent to his right to enforce the Busk v. contract. In Busk v. Spence, (b) decided in 1815, the Spence. seller agreed to sell certain flax, to be shipped from St. Petersburg, "and as soon as he knows the name of the vessel in which the flax will be shipped, he is to mention it to the buyer.' The vendor received the advice on the 12th September, in London, and did not communicate it to the defendant, who resided at Hull, till the 20th. The vessel arrived in October, and the defendant refused to accept the flax. Held by Gibbs C. J. that this was a condition precedent; that it had not been complied with; and that the question whether or not the communication made eight days after receiving the information was a compliance with the condition was one of law, not of fact. The plaintiff was therefore nonsuited. This point seems not to have occurred Graves v. again till 1854, when it was carefully considered as a Legg. new question, and determined in the same way, in the exchequer, in Graves v. Legg, (c) the decision of Gibbs C. J. in Busk v. Spence having escaped the notice of the counsel and the court, as no reference is made to it in the report. In this case, after the decision on the demurrer to the above effect, there was a trial on the merits, in which it was proven that the vessel was named to the buyer's broker, who had made the contract, in Liverpool; and that by the usage of that market such notice to the broker was equivalent to notice to his principal, and the court of exchequer, as well as the exchequer chamber, held that this was a compliance with the condition. (d) What is meant by § 589. There is not an entire concordance in the authorities as to the true construction of a contract for the sale of "a "a cargo." cargo." In Kreuger v. Blanck (e) the defendants, in Kreuger v. Liverpool, sent an order to the plaintiffs, at Mauritius, on the 25th July, for "a small cargo (of lathwood) of Blanck. (b) 4 Camp. 329. (c) 9 Ex. 709; 23 L. J. Ex. 228. (d) 11 Ex. 642; 26 L. J. Ex. 316. See, also, Gilkes v. Leonino, 4 C. B. N. S. 485. (e) L. R. 5 Ex. 179. about the following lengths, &c. &c., in all about sixty cubic fathoms, which you will please to effect on opportunity for my account, at 67. 158. c. f. and i. (ƒ) per cubic fathom, discharged to the Bristol Channel." The plaintiffs being unable to get a vessel of the exact size for such a cargo, chartered a ship and loaded her with eighty-three fathoms, and on the arrival of the vessel the plaintiff's agent unloaded the cargo and measured and set apart the amount of the defendant's order and tendered him a bill of lading for that quantity, but the defendant declined to accept on the ground that "the cargo" was in excess of the order. Held by Kelly C. B. and Cleasby B. (Martin B. diss.), that 66 cargo meant a whole cargo, and that plaintiffs had not complied with the order and could not maintain the action. (ƒ1) Living § 590. But this case was referred to with marked doubt by Blackburn J., in the opinion given by him in Ireland v. Ireland v. Livingston, (g) in the House of Lords. The contract ston. in that case was in a letter in the following words: "My opinion is that should the beet crop prove less than usual there may be a good chance of something being made by importing cane sugar at about the limit I am going to give you as a maximum, say 268. 9d. for Nos. 10 and 12, and you may ship me 500 tons to cover cost, freight, and insurance, fifty tons more or less of no moment if it enables you to get a suitable vessel. You will please to provide insurance and draw on me for the cost thereof as customary, attaching documents, and I engage to give the same due protection on presentation. I should prefer the option of sending vessel to London, Liverpool, or the Clyde, but if that is not compassable you may ship to either Liverpool or London." And a telegram was sent the next day to say that "the insurance is to be done with average, and if possible, the ship to call for orders for a good port in the United Kingdom." The plaintiff answered on the 6th September: "We are in receipt of your esteemed favor of 25th July, and take due note that you authorize us to purchase and ship on your account a cargo of about 500 tons, provided we can obtain Nos. 10 to 12 D S, at a cost not exceeding 268. 9d. per cwt. free on board, including cost, freight, and insurance; and dee was not bound to accept anything less.] (f) The initials mean, "cost, freight, and insurance." (g) L. R. Q. B. 99; 5 Q. B. 516; 5 Eng. App. 395–410. your remarks regarding the destination of the vessel have also our attention. . . . . If prices come within your limits, and we can lay in a good cargo, we shall not fail to operate for you." At the date of this letter, the market at the Mauritius was too high to enable the plaintiffs to make the purchase at the defendants' limit, freight ranging from 27. 158. to 31. per ton. In the course of September the plaintiff received an offer from a partly loaded vessel, to take 7,000 or 8,000 bags of sugar at a freight of 21. 108. per ton for a voyage direct to London, and ascertained that at this rate of freight the sugar could be purchased so as to bring the cost, freight, and insurance within the limit. It was impossible to purchase the sugar in one lot from the same person, and the plaintiffs purchased from several brokers fourteen distinct parcels of the specified quality. The plaintiffs used due diligence, but could not obtain more than 5,778 bags, weighing about 392 tons, within the limits, and reduced their own commissions by a sum of 1637. 198. 4 d., in order not to exceed the limit. They shipped this quantity to the defendants, and being unable to fill up the vessel with any further quantity on the defendant's account, they shipped on their own account about 150 tons of inferior quality, and the ship sailed on the 29th September with the cargo above described. The plaintiffs continued to watch the market for the purpose of completing the defendants' order for "about 500 tons," without success, till the 26th October, when they received from the defendants a countermand of the order. The defendants refused to accept the 392 tons shipped to them as aforesaid, and the plaintiffs brought their action. In the queen's bench, it was held (by Cockburn C. J., Mellor and Shee JJ.) that the true construction of the order was to buy sugar for the defendants, according to the usage of the market at the Mauritius, where the sugar could only be bought in several parcels from different persons, and that as fast as the plaintiffs bought each lot, in pursuance of the order, the lot so bought was appropriated to the order, and that the defendants were bound to accept what was so bought, and had, themselves, by countermanding the order, prevented its execution for the entire quantity ordered. The question as to the shipment being part of a cargo and not a cargo was not mooted. In the exchequer chamber, the judgment of the queen's bench was reversed, by Kelly C. B., Martin and Channel BB., and Keating J. (Montague Smith J. and Cleasby B. diss.), on the Order for goods at price to cover cost, freight, and insur ground that the order was for a single shipment of one cargo by a single vessel. The dissenting judges did not consider that the fulfilment of the order was made conditional upon its being so executed as to send the whole order as one cargo. In the House of Lords, Martin and Cleasby BB. adhered to their opinions expressed in the exchequer chamber, and Blackburn, Hannen, and Byles JJ. were all of opinion that the case was one of principal and agent, not of vendor and vendee (as held by Martin B.), and that the true construction of the order did not impose the condition of shipment as one cargo in one vessel. Although the case, as decided by the lords, did not involve all the considerations upon which the judgment of Blackburn J. (in behalf of himself and Hannen J.) was based, the exposition by that eminent judge of the principles which distinguish different contracts with commission merchants or agents, and of their rights and duties, is so instructive as to justify a very full extract from his opinion. "The terms, at a price to cover cost, freight, and insurance, payment by acceptance on receiving shipping documents,' are very usual and are perfectly well understood in practice. The invoice is made out debiting the consignee with the agreed price (or the actual cost and commis- ance. sion, with the premium of insurance and the freight, as the case may be), and giving him credit for the amount of the freight which he will have to pay the ship-owner on actual delivery, and for the balance a draft is drawn on the consignee, which he is bound to accept, if the shipment be in conformity with his contract, on having handed to him the charter-party, bill of lading, and policy of insurance. Should the ship arrive with the goods on board he will have to pay the freight, which will make up the amount he has engaged to pay. Should the goods not be delivered, in consequence of the perils of the sea, he is not called on to pay the freight, and he will recover the amount of his interest in the goods under the policy. If the non-delivery is in consequence of some misconduct on the part of the master or mariners not covered by the policy, he will recover it from the ship-owner. In substance, therefore, the consignee pays, though in a different manner, the same price as if the goods had been bought and shipped to him in the ordinary way. If the consignor Vendor's is a person who has contracted to supply the goods at an agreed price, to cover cost, freight, and insurance, the order. obligations on such |