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sidered hereafter.(i) At present, the question is, What the seller *is [*82] bound to do, or to shew he has done in fulfilment of his part of the contract, either when seeking his right under the contract, or when called on by the buyer in an action for implement.

The first distinction to be marked is between a certain specific commodity sold; and a thing, or quantity, or number of commodity sold indefinitely.

When a certain specific commodity is sold, the question of delivery can occasion little doubt, if the bargain be not clogged with conditions. As soon as the thing is clearly separated and distinguished as bought and sold, it is, in the seller's hand, according to the law of England, as the property of the buyer, transmuted by the completion of the contract. By the law of Scotland, although the property is not yet passed, but remains in possession of the seller for delivery, he is bound to deliver it when the buyer offers payment of the price, or has actually paid or complied with the terms of credit agreed upon; and it lies at the buyer's risk till he takes it away. If the seller demand his price, he must, according to the law both of England and of Scotland, shew that the thing lies thus ready for the buyer, and that the buyer is in fault in not taking delivery.

If a commodity is sold indefinitely, as a horse, or a pipe of wine, or 100 quarters of wheat, the seller is bound to separate and identify the particular thing or quantity sold, to which the obligation of the seller and the right of the buyer is to attach. Till this be done, it cannot be said that the seller has done his part, that the property or risk is changed, or that the seller is entitled to the price, or to his action for payment. Where the sale is of a quantity or of several articles at the same time, the seller is not discharged of his obligation to deliver by giving a part; [ *83] nor is he entitled on doing so, to insist for the price of the part so delivered, his obligation being for the whole. Thus, if I buy 300 quarters of wheat, to be delivered on a certain day, and the seller has no more to deliver than 150, I am not bound to take part, nor is he entitled to the price of what is so delivered, unless I choose to keep it at that price. For, in trade, I may have in contemplation what is utterly defeated by a partial failure, and I may not only reject the imperfect performance, but claim for damages in consequence of disappointment.

In England, where, in a bargain for flour, some sacks had been kept back by the seller, he was held not entitled to claim the price of what was tendered for delivery.(k)

In Scotland the same doctrine is recognised, as where a person ordered a quantity of seal oil, and one half only was tendered for delivery, it was held that the buyer was not bound to take the half.(1)

But although the presumption in the general case is, that all the articles ordered at the same time form an entire contract, yet the rule is different where either the nature of the contract contemplates the possible delivery of a part only, or where the buyer acquiesces in the delivery of a part, as fulfilment of the contract to that extent. So in England, where the commodity was referred to a particular test, the buyer was held bound to take so much of it as answered the test. (m) In like manner, where the buyer having given

(i) See below, p. 113. (k) Walker v. Dixon, 1817; 2 Starkie, 281. (1) Richardson v. Roscoe and Rigg, May 18, 1837; 15 S. 952; 3 Bell's Illus. p. 105. (m) Graham v. Jackson, 1811; 14 East, 498.

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an order for *several articles, took one article and rejected others,
it was held, that although this might at first have been dealt with as
a joint order, so that the seller's obligation would not have been discharged
by delivery of one article, the buyer had, by receiving one, severed the con-
tract, so as to entitle the seller to payment of the thing delivered.(n)

The question, whether the seller has fulfilled his obligation to deliver, may depend on some special stipulation as to mode, or time, or place. Thus,

By special bargain, or by an order acquiesced in, the seller may undertake the duty of making the delivery, instead of leaving it incumbent on the buyer to send for it. In such a case, until the act of delivery be performed by the seller, the goods are at his risk, and his obligation unfulfilled.

The seller may expressly or tacitly undertake to give the goods into the hands of a third party; to a wharfinger, or agent, or carrier, or shipmaster. He will, in that case, be bound to perform such an act of delivery as shall fix the goods effectually on the proper person, so as to confer on the buyer the benefit of his purchase, or enable him to insist for his goods against a proper party. When the seller has done this, he is discharged of his duty; till it is done he can have no action for the price, and the risk is still his.

Thus, in England, goods bought were ordered to be sent by land carriage, and were accordingly put in charge of the Birmingham carrier, to be sent to Carmarthen, which was the only mode of land carriage to Carmarthen. They were lost on the road; and the *question was, Whether the seller did

his duty in the delivery so as to alter the risk. Lord Mansfield, in [ *85] pronouncing the judgment of the Court, said, "The case is as if the defendant had mentioned the Birmingham carrier particularly by name, for there being but one carrier the plaintiff had no choice by whom to send them. If a vender take upon himself actually to deliver the goods to the vendee, he stands to all risk; but if the vendee order a particular mode of conveyance, the vender is excused." (o)

In another English case where goods were ordered to be sent by the carrier, they were delivered accordingly, but by some neglect were so long delayed as to be liable to seizure by expiration of the permit. Lord Kenyon at the trial, and the Court of King's Bench afterwards, held the delivery to be complete, by fixing the goods on the carrier, and so the legal right and the risk were transferred to the buyer.(p)

Again, where goods were delivered to a carrier for the buyer, the seller having agreed to pay the carriage, Lawrence, J. said, "The mode in which the carrier was to be paid makes no difference. The moment the spirits were delivered to him the property vested in the defendant. The plaintiff by paying the carrier did not become insurer of the spirits while in his hands."(g)

The same point was held settled in a case in Common Pleas, where Lord Alvenley said, "It is a proposition as well settled as any in law, that if a tradesman order goods to be sent by a carrier, though he does *not name any particular carrier, the moment the goods are delivered to the carrier [*86] it operates as a delivery to the purchaser, the whole property immediately

(n) Champion v. Short, 1807; 1 Camp. 53; 1 Bell's Illus. p. 83.

(0) Vale v. Bayle, 1775; Cowp. 294; 1 Bell's Illus. p. 109.

(p) Dawes v. Peck, 1799; 8 Term Rep. 330.

(q) King v. Meredith, 1811; 2 Camp. 639.

DECEMBER, 1845.-40

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vests in him; he alone can bring an action for any injury done to the goods; it is at his risk. The only exception to the purchaser's right over the goods, is, that the vendor, in case of the former becoming insolvent, may stop them in transitu. On this part of the case the Court never entertained a doubt.”(r) Finally, in a case tried before Lord Ellenborough, he laid it down, " That when nothing is said as to any carrier, according to common sense it is to be understood that the goods are to be delivered in the most usual or common way."(s)

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In Scotland the same doctrine is established. In a case where a merchant in Leith bought a cask of oil in London, but said nothing as to the mode of sending, it was delivered to the wharfinger of the London and Leith Shipping Company, and put on board one of their vessels, but on arrival at Leith was found to have all leaked out. The Court held the delivery by the sellers to have been sufficient for a verdict, and that the question, therefore, lay with the Shipping Company on their contract as carriers.(t)

But it is not sufficient merely to deliver the goods to the carrier or another person. They must be legitimately fixed with him.

*Thus, where chairs had been ordered from a chair-maker, and

[*87] had been carried to the wharf and left there, addressed to the defendant, and no receipt was taken, and no entry made, and the servant saw a man at the wharf, whom he supposed to be a servant, but did not know his name, and could not recognise him, Lord Ellenborough held, that a delivery of goods to a carrier or wharfinger with due care and diligence, is sufficient to charge the purchaser; but he has a right to require that, in making this delivery, due care and diligence shall be used by the seller. Before the defendant can be charged in the present case, he must be put in a situation to resort to the wharfinger for his indemnity. But no receipt was taken for the chairs, they were not booked, and no person belonging to the wharf is fixed with a privity of their being left there. The plaintiff was bound to procure them to be booked, or to deliver them to the wharfinger himself, or to some person who can be proved to be his agent for the purpose of receiving them. The person upon the wharf, when the chairs were left, might have been a thief watching for an opportunity to purloin them. The defendant, therefore, is not furnished with a remedy against the wharfinger, and is not himself liable as purchaser.(u)

It has been doubted how far it is the duty of the seller undertaking to send goods, not only to fix the goods with a carrier, but to enter them so as to secure responsibility for their full value. The rule seems to be, that the delivery must be made according to the usual practice; and that, although one is not bound to insure goods sent by sea; yet, if it be the practice to *pay according to the value in land carriage, the delivery is not com[*88] plete unless so made. This seems to have been doubted by Lord Ellenborough, when the question was first moved, but afterwards the Court of King's Bench settled the question according to the above rule. The first case was a special one, Lord Ellenborough holding that it depended on the usage of the parties in former transactions; but he said, "upon the general

(r) Dutton v. Solomonson, 1803; 3 Bos. & Pul. 582.

(s) Copland v. Lewis, 1817; 2 Starkie, 33, N. P.; 1 Bell's Illus. p. 108.

(1) Jones and Co. v. Ross, 12th February 1830; 8 S. 495; 1 Bell's Illus. p. 138. (u) Buckman v. Levi, 1813; 3 Camp. 414; 1 Bell's Illus. 109.

question, it is a practice so unusual, under these notices, to enter and insure goods as above the limited value, that I should be inclined to hold that the vender is not bound to do so without express instructions for the purpose. Were he to insure of his own accord with the carrier, how far would the purchaser be liable for the heavy expense thus incurred ?"(v)

But in the next case, (w) where goods of the value of £50 were sent to the receiving house of a ship in the carrying trade, but were not entered and paid for, as for that value, although the carrier had advertised against responsibility above £5, unless with such entry, Lord Ellenborough (the rest of the Court assenting) held that the plaintiff could not be said to have deposited the goods in the usual and ordinary way, for the purpose of forwarding them to the defendant, not having taken that mode which the notoriety of the carrier's general undertaking required, to insure them a safe conveyance, viz. by making a special entry of them. Under his implied authority, it was his duty to do whatever was necessary to secure the responsibility of the carrier for the safe delivery of the goods, so that the defendant might have his indemnity. The true ground on which this judgment seems [*89] securely to rest is, that an entry with notice is the common and uniform practice of all consigners; and it may be added, that, since the statute 1st Will. IV., c. 68, the rule is still more imperative, requiring the entry of the goods, with notice of the value, and payment of the additional consideration. In delivering goods on shipboard, the seller is bound not only to charge the shipmaster or shipping company with them effectually, but, though not bound to insure, he must give such notice as to enable the buyer to insure. There are some good illustrations of this rule in several Scottish cases.(x) When the question first arose, it was not held necessary to send a bill of lading or letter of advice.(y)

In the subsequent cases, two questions were raised as to the information to be communicated by the seller, in order to complete his duty, viz. As to the time of sailing; and, As to the name of the ship.

As to the time of sailing, it is important, as the buyer must be able to determine whether he himself shall take the risk, or shall insure as on a missing ship; and must be able, if he do order insurance, to state to the underwriter the time of departure. In a Scottish case,(z) goods ordered were delivered to a shipping company, to be carried to the place of residence of the buyer. Three days afterthey had sailed in a smack belonging to that company, the seller sent an invoice to the buyer, saying the goods had been [*90] sent, but without saying that the smack had sailed some days before. The buyer not having insured, and the goods being lost, he refused to pay for them, on the ground that the seller was bound to give notice of the day of shipment, in order to transfer the risk, and that the buyer was misled as to time, the invoice fairly inferring the goods not to have sailed on the 27th, while they were at sea three days before. The Court of Session dismissed the seller's action, holding, that the buyer was entitled to be his own insurer, till he should see whether the ship was behind her time, and that the seller's

(v) Cothay v. Tute, 1811; 3 Camp. 129; 1 Bell's Illus. p. 109.

(w) Clark v. Hutchins, 1811; 4 East, 475; 1 Bell's Illus. p. 110.

(x) 1 Bell's Illus. p. 110, No. 10, et seq.

(y) Hoog v. Kennedy, 24th July 1754; Mor. 10096; 1 Bell's Illus. p. 110. (z) Arnot v. Stewart, 25th Nov. 1813; Fac. Coll.; 1 Bell's Illus. p. 111.

false information had deprived him of the power of judging on that question of risk.

In other Scottish cases, the same rule had been followed. (a)

As to the name of the ship, the general rule is, that if it be mentioned at all, it must be correctly given, but the name need not be mentioned, as the buyer may insure effectually by ship or ships. In the particular case, however, of sending goods by a shipping company, the usage of trade has introduced another rule. It is the practice of such companies, and well known in trade, that when goods come in which prove too much for one of their ships, they hand them over to another of their ships equally fit and ready for the voyage, and this even when the receipt bears the goods to be received for sailing by a particular ship; and as insurance can be made effect[ *91] ually for the voyage by ship or ships," the delivery is well made, though the ship should be changed.

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This was held in England in several cases. Thus, where a commodity was sent on a receipt,- The Commerce, C. Farquharson, for Bristol, 17th Decr. Received 13s. 6d. J. M. ;" and the same day notice was sent to the buyer that the Commerce was to sail in January for Bristol. The shipping company, according to their common practice when too many goods came for one vessel, sent the commodity by their next ship, the Nancy: when the price was demanded, the buyer refused to pay. The Court held the seller to have sufficiently fulfilled his duty of delivery.(b)

In Scotland the same rule has been followed. Thus, where three boxes of tea were ordered and delivered at the wharf of the Berwick Shipping Company, and a letter of advice was sent that they were to go by the Kelso packet, which afterwards was changed to notice of their being to sail by the Union packet, but after all they went by the Kelso, and two chests were lost, and the third damaged; the buyer refused to pay, in respect that the delivery is duly made only when the goods are fairly shipped and advice sent, but here false information was transmitted; but the Court held him liable, on the ground that the seller had reason to believe the information to be correct; that the buyer had it in his power, according to the custom in that trade, to insure on ship or ships; that the goods being collected in the warehouse for sending by the Shipping Company, they are distributed as most convenient ; that no reliance can be or is placed on any particular ship being that [*92] by which the goods shall go; and that the goods being fixed with the Shipping Company, the question thenceforward lay with them.(c)

If a special contract be made, or directions given by the buyer and acquiesced in by the seller as to shipping, carriage, or other accompaniments of delivery, they give the rule. In Scotland this was recognised in a case where sugars were ordered to be shipped "if the convoy was not sailed," with directions that "if the ships be all sailed, there is nothing for it but to wait the first convoy." The convoy had sailed, but the seller shipped the sugars in a vessel which was to overtake and join the convoy. This vessel made a run and escaped the enemy, but the sugars were damaged. It was

(a) Andrew v. Ross, 6th Dec. 1810; 1 Bell's Illus. p. 111. Johnson and Sharp v. Baillie, 2d June 1815; 1 Bell's Illus. p. 112.

(b) Cooke v. Ludlow, 1806; 2 Bos. and Pul. 119.

(c) Hesseltyne v. Arrol & Co., 15th Jan. 1802; Mor. 10,111; 1 Bell's Illus. p. 110. Confirmed in Elton, Hammond, & Co. v. Porteous, 13th Dec. 1808; 1 Bell's Illus. p. 111.

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