known as representing the goods, would form a good delivery in performance of the contract, so as to defeat any action by the buyer against the vendor for non-delivery of the goods, according to the principles settled in Salter v. Woollams (d) and Wood v. Manley; (e) but the effect of transferring such documents of title upon custody by a third party claiming it. First National Bank of Cairo v. Crocker, 111 Mass. 169, 170; ante, § 6, note (a); McKee v. Judd, 2 Kern. 622. A contract of sale including many different articles may be completed by a delivery of part in the name of the whole; and such delivery applies to all the goods embraced in the contract of sale, although they happen to be scattered in different places. Phelps v. Cutler, 4 Gray, 137; Boynton v. Veazie, 24 Me. 286; Chappel v. Marvin, 2 Aikens, 79; Shurtleff v. Willard, 19 Pick. 202; Legg v. Willard, 17 Ib. 140. Whether a delivery of part was for the whole is a fact to be determined by the jury. Pratt v. Chase, 40 Me. 269. It has been decided in Vermont, that there must be a substantial and visible change of possession, in order to perfect a sale of chattels as against the creditors of the vendor; Hutchins v. Marshall, 10 L. Rep. (N. S.) 55; and that notice to the creditors of a sale without such change of possession is of no avail, as it is but notice of an imperfect sale. Hutchins v. Marshall, supra. But see Ludwig v. Fuller, 17 Me. 162, in which it was held that if a party claiming title under the vendor of personal property, either as a subsequent purchaser or as attaching creditor, have notice of the prior sale before his rights accrued, he cannot allege any defects in the sale for want of a delivery. See Young v. Blaisdell, 60 Me. 272.] (d) 2 M. & G. 650. (e) 11 Ad. & E. 34. [See Van Blunt v. Pike, 4 Gill, 270; Adams v. Foley, 4 Iowa, 44; Tuxworth v. Moore, 9 Pick. 347, 349; Horr v. Barker, 8 Cal. 609; Pratt v. Parkman, 24 Pick. 46, 47; Hollingsworth v. Napier, 3 Caines, 182; Pleasants v. Pendleton, 6 Rand. 473; Glasgow v. Nicholson, 25 Mo. 29; Warren v. Milliken, 57 Me. 97; Cushing v. Breed, 14 Effect of transfer of carrier's receipt. Newcomb v. Lowell R. R. Allen, 376; First National Bank of Cairo v. Crocker, 111 Mass. 163, 167; post, § 864, note (1). It was decided in First National Bank of Green Bay v. Dearborn, 115 Mass. 219, that the delivery, by an owner of goods, of a common carrier's receipt for them, not negotiable in its nature, as security for an advance of money, with the intention to transfer the property in the goods, is a symbolical delivery of them, and vests in the person making the advance a special property in the goods sufficient to maintain replevin against an officer who afterwards attaches them upon a writ against the general owner. See National Bank of Cairo v. Crocker, 111 Mass. 163, and cases cited. So in Newcomb v. Boston & Lowell R. R. Corp. 115 Mass. 230, it ap- Boston & peared that B. sent goods by railroad from Detroit, Michigan, to Salem, Massachusetts, taking therefor a railroad receipt in which he was named as consignor and consignee; that B. indorsed on the receipt an order to deliver to C.; drew a draft on C. for the price; attached the draft to the receipt, and sent both to a bank in Massachusetts for collection; and forwarded an invoice of the goods to C., who went to the bank, accepted the draft, and afterwards sold the goods to D. A., at the request of C., and on an agreement with him that A. should sell the goods, and after deducting the draft and his commission, account to C. for the balance, paid and took up the draft with the receipt attached; and C. indorsed on the receipt an order to deliver the goods to A.; and it was thereupon held that A. had a special property in the goods; that C., until he paid the draft, had no title in the goods, and could pass none to D.; and that the carrier, on delivering them to D., was liable to an action by A. See Seymour v. entitled to the rights of the unpaid vendor is discussed hereafter in the chapters on Lien and Stoppage in Transitu, §§ 809 et seq. and §§ 862 et seq. The transfer of such documents would of course not be a sufficient delivery by the vendor, if the goods represented by the documents were subject to liens or charges in favor of the bailees. § 698. In a case in the state of Vermont, (ƒ) where wool lying Vendor not in bulk on the vendor's premises was sold, payable on delivery by weight, the vendor was not allowed, in the absence of an express agreement, to recover the cost of goods sold labor, &c. in putting the wool into sacks furnished by by weight the purchaser, the wool not having been weighed till after being put into the sacks. And in Robinson v. The United States (13 Wallace, 363), the supreme court of the United States held parol evidence admissible to prove, in a sale of 100,000 bushels of barley, a usage to deliver in sacks, not in bulk. costs of labor in putting and lying in bulk, into pack ages furnished by buyer. Robinson v. The United Newton, 105 Mass. 272; National Bank of 809 et seq. as to transfer of bills of lading and warehouse receipts.] (f) Cole v. Kew, 20 Vt. 21. must § 699. THE vendor having done or tendered all that his contract requires, it becomes the buyer's duty to comply in his turn with the obligations assumed. In the absence of express stipulations imposing other conditions, the buyer's duties are performed when he ACCEPTS, and PAYS the price. As to ACCEPTANCE, Buyer little need be said. When the vendor has tendered de- fetch goods livery, if there be no stipulated place, and no special bought. agreement that the vendor is to send the goods, the buyer must fetch them; for it is settled law that the vendor need not aver nor prove in an action against the buyer anything more than his readiness and willingness to deliver on payment of the price. (a) (a) Jackson v. Allaway, 6 M. & G. 942; Boyd v. Lett, 1 C. B. 222; Lawrence v. Knowles, Bing. N. C. 399; De Medina v. Norman 9 M. & W. 820; Spotswood v. Barrow, 1 Ex. 804; Cort v. Ambergate Railway Company, 17 Q. B. 127; 20 L. J. Q. B. 460; Baker v. Firminger, 28 L. J. Ex. 130; Cutter v. Powell, 2 Sm. L. C. 1, and notes. [If in an action for goods sold and delivered, the plaintiff proves a delivery at the place agreed, and that there remained nothing further for him to do, he need not show an acceptance by the defendant. Nichols v. Morse, 100 Mass. 523. See Pacific Iron Works v. Long Island R. R. Co. 62 N. Y. 272; Wright ble for default in fetching goods in time. time to be determined by jury. $700. And if the vendee make default in fetching away goods. And is lia- within a reasonable time after the sale, upon request made by the vendor, the vendee will be liable for warehouse rent and other expenses growing out of the custody reasonable of the goods, or in an action for damages if the vendor Reasonable be prejudiced by the delay. (b) The question of what is a reasonable time is one of fact for a jury under all the circumstances of the case. (c) In Jones v. GibContract to bons (d) it was held no defence to an action by the required." buyer for non-delivery "as required" that he had not requested delivery within a reasonable time. If the vendor wanted to get rid of his obligation because of unreasonable delay in taking the goods, or in requiring delivery, it was for him to offer delivery or to inquire of the buyer whether he would take the goods, and he had no right to treat the contract as rescinded by mere delay. deliver " as Jones v. Buyer has spect be fore acceptance. § 701. It has already been seen, in the chapter on Delivery, that the buyer is entitled before acceptance to a fair opright to in- portunity of inspecting the goods, so as to see if they correspond with the contract. (d) He is not bound to accept goods in a closed cask which the vendor refuses to open; (e) nor to comply with the contract at all, but may rescind it, if the seller refuse to let him compare the bulk with the sample by which it was sold, when the demand is made at a proper and convenient time; (f) nor to remain at his place of business after sunset on the day fixed for delivery, nor even if he happens to be there after sunset, to accept unless there be time before midnight for inspecting and receiving the goods; (g) nor to select the goods v. Weed, 6 U. C. Q. B. 140; Supple v. Gilmour, 5 U. C. C. P. 318.] (b) Per Lord Ellenborough, in Greaves v. Ashlin, 3 Camp. 426; also per Bayley J. in Bloxam v. Sanders, ante, § 678; [Denman v. The Cherokee Iron Co. 56 Ga. 319.] (c) Buddle v. Green, 3 H. & N. 906; 27 L. J. Ex. 33. [See Howe v. Huntington, 15 Me. 350; ante, § 684, note (e).] (d) 8 Ex. 920. (d1) [Pew v. Lawrence, 27 U. C. C. P. 402; Croninger v. Crocker, 62 N. Y. 151; Corrigan v. Sheffield, 10 Hun, 227. In Pease v. Copp, 67 Barb. 132, the court Duty of vendee to exam ine goods delivered. said that where merchandise (e) Isherwood v. Whitmore, 10 M. & W. 757; 11 M. & W. 347. (f) Lorymer v. Smith, 1 B. & C. 1; Toulmin v. Headley, 2 C. & K. 157. (g) Startup v. McDonald, 6 M. & G. 593. London Rice Mills measure goods sold by the yard. Pettitt v. bought out of a larger quantity, or a mixed lot that the vendor has sent him. (h) In a word, as delivery and acceptance are concurrent conditions, it is enough to say that the vendee's duty of acceptance depends altogether upon the sufficiency or insufficiency of the delivery offered by the vendor. Thus, in a sale of rice in "double bags," the purchaser was held not bound to Makin v. accept the goods in single bags, in Makin v. London Rice Mills Co. (20 L. T. N. S. 705). In this case there was Co. proof that this mode of packing rice made a difference in the sale. § 702. But in Pettitt v. Mitchell (i) it was held that the buyer had not the right to measure goods sold by the yard Right to under the special circumstances of the case. The sale was at auction, and the conditions were that the purchasers were to pay an immediate deposit of 58. in the pound in part payment; that the lots must be taken Mitchell. away, with all “faults, imperfections, or errors of description," by the following Saturday; that the remainder of the purchasemoney was to be paid before delivery: and the catalogue also announced that "the stock comprised in this catalogue has been measured to the yard's end, and will be delivered with all faults and errors of description. All the small remnants must be cleared at the measure stated in the catalogue." The goods remained open for public inspection two days before the sale. The defendant bought several lots, and went on the proper day to take the goods, but claimed a right to inspect and measure them before paying, which was refused. The action was for damages in special assumpsit, and the defendant pleaded a breach by plaintiff of conditions precedent, to wit, that the purchaser should be entitled "to inspect and examine the lot purchased by him, for the purpose of ascertaining whether the same was of the proper quantity, quality, and description," &c. &c.; and in another plea, breach of a condition that the purchaser "should be entitled to measure the lot." Held that the law did not imply the conditions stated in the pleas; and that under the contract as made the buyer was bound to pay before delivery, but that he had the right after delivery, and before taking away the goods, to measure them and claim an allowance for deficient measure, if any. (h) Dixon v. Fletcher, 3 M. & W. 146; Hart v. Mills, 15 M. & W. 85; Nicholson v. Bradfield Union, L. R. 1 Q. B. 620; 35 L. J. Q. B. 176; Levy v. Green, 8 E. & B. 575; 1 E. & E. 969; 27 L. J. Q. B. 111; 28 L. J. Q. B. 319. (i) 4 M. & G. 819; [Rimmer v. Ruston, 14 Low. Can. Jur. 325.] |