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If the buyer unreasonably refuses to accept of the article sold, the seller is not obliged to let it perish on his hands, and run the risk of the solvency of the buyer. The usage, on the neglect or refusal of the buyer to come in a reasonable time, after notice, and pay for and take the goods, is for the vendor to sell the same at auction, and to hold the buyer responsible for the deficiency in the amount of sales.a
*(7.) The place of delivery is frequently a point *505 of consequence in the construction of the contract of sale.
If no place be designated by the contract, the general rule is, that the articles sold are to be delivered at the place where they are at the time of the sale. The store of the merchant, the shop of the manufacturer or mechanic, and the farm or granary of the farmer, at which the commodities sold are deposited or kept, must be the place where the demand and delivery are to be made,
ple, and said that the general and prior rule of law was, that under a contract for building a vessel, or any thing not existing in specie at the time of the contract, no property vested in the purchaser during the progress of the work, even though the precise mode and time of payment were fixed, nor until the thing was delivered, or ready for delivery, and approved of by the purchaser, and that the purchaser was not bound to deliver the identical article, if another answered the specification in the contract The court nevertheless followed the authority of Wood v. Russell. In Lunn v. Thornton, 1 Man. Gv. & Sc. 379, it was adjudged that personal property not belonging to the grantor or vendor at the time of the grant or bill of sale, would not pass by it, as if a bill of sale be executed of goods in a shop, and other goods be afterwards added to them by the vendor to give effect to the grant, the grantor must ratify it by some act done by him after he has acquired the property. The 14th rule in Lord Bacon's maxims is to the same effect.
■ Sands & Crump v. Taylor & Lovett, 5 Johns. Rep. 395. Adams v. Minick, cited in 5 Serg. & Rawle, 32. Girard v. Taggard, 5 Ibid. 19. M'Combs v. M'Kennan, 2 Watts & Serg. 216. Where the purchaser refused to pay for a thing sold by the sheriff at his public sale, and the sheriff re-sells the article at a lower price, the rule of damages against the purchaser is the difference between the first bid and the second sale, for that is the loss actually sustained. Lamkin v. Crawford, Alabama Rep. N. S.
when the contract is to pay upon demand, and is silent as to the place. This appears to be the general doctrine on the subject. Pothier *distinguishes between *506 contracts for a thing certain, as for all the wine of the vintage of the vendor, and a contract for any thing indeterminate, as a pair of gloves, a certain quantity of corn, wine, &c. In the former case, the delivery is to be at the repository where the wine was at the time of the contract; and this is reasonably supposed to be the understanding of the parties, as the purchaser would then be able to see that he had the whole quantity
a Pothier, Traite des. Oblig. No. 512. Traite du Contrat de Vente, No. 45, 46, 51, 52. Code Napoleon, n. 1609. Toullier, Droit Civil Français, tom. vii. n. 90. Civil Code of Louisiana, art. 2469. Adams v. Minick, cited in Wharton's Dig. of Penn. Cases, tit. Vendor, n. 76. Lobdell v. Hopkins, 5 Cowen's Rep. 516. Chipman's Essay on the Law of Contracts, 29, 30. Goodwin v. Holbrook, 4 Wendell's Rep. 380.
The Code Napoleon, in respect to the contract of sale, and in respect to all other contracts, seems to be, in a great degree, a concise abridgment or summary of the writings of Pothier. M. Dupin, in a dissertation prefixed to the edition of the works of Pothier, published in Paris in 1827, says, that three-fourths of the Code Civil have been literally extracted from Pothier's treatises. The utility of the latter, and their great merit, in learning, perspicuity, and accuracy of illustration, are far from being superseded or eclipsed by the simplicity, precision and brevity of the code. The aid of the French civilians of the former school has been found as indispensable as ever. The Code Napoleon and Code du Commerce, deal only in general rules and regulations. They are not sufficiently minute and provisional to solve, without judicial discussion, the endless questions that constantly arise in the business of life. The citation of adjudged cases, M. Dupin says, is so very common in the French courts, that there seems to be an emulation who shall cite the most. (Jurisprudence des Arrets Pref.) Between the years 1800 and 1827, there were upwards of two hundred original treatises and compendiums, upon different titles of the law, published in France. M. Toullier has undertaken a commentary upon the French Civil Law, according to the order of the Code, which has already extended to twelve volumes, and in 1839 his Droit Civil, the 5th edition, was published at Paris in 15 volumes, and, as far as I may be permitted to judge, from a very imperfect knowledge of the French law, he seems to rival even Pothier himself, in the comprehensiveness of his plan, and in the felicity of its execution. In 1844, the Cours de Droit Français suivant le Code Civil, by M. Duranton, was published at Paris in 22 volumes.
agreeably to the contract. In the latter case, the property is to be delivered at the debtor's place of residence, unless the parties lived near each other, and the thing be portable; in which case the place of payment would be the creditor's residence, a The common law on the subject of the delivery of specific articles which are portable, makes a distinction between the contract of sale, and the contract to pay a debt at another time in such articles. We have seen, that in the contract of sale the delivery is to be at the place where the vendor has the article; but in the other case, the weight of authority would seem to be in favour of the rule, that the property was to be delivered at the creditor's place of residence, though the cases on the subject are not easily reconcilable with each other.
Lord Coke lays down the rule,b that if the contract be to deliver specific articles as wheat or timber, the obligor is not bound to carry the same abroad, and seek the obligee, (as in the case of payment of money,) but he must call upon the obligee before the day, to know where he would receive the articles, and they must be delivered, or the obligor must be ready and able to make the delivery, at the place designated by the obligee. This doctrine was admitted in the case of Aldrich v. Albee,
Pothier Traite des Oblig. No. 512, 513. Bradley v. Farrington, 4 Arkansas Rep. 532.
b Co. Litt. 210, b.
• In the case of the payment of money, the old law was declared as late as the case of Smith v. Smith, 2 Hill's N. Y. Rep. 351, that if no place of payment be agreed on, the party who is to pay must seek the other if within the state, and a tender at his residence in his absence is not good.
■ 1 Greenleaf's Rep. 120. In the subsequent case, in the same court, of Bixby v. Whitney, 5 Ibid. 192, it was declared to be well settled, that where no place is appointed for the delivery of specific articles, the obligor must go before the day of payment to the obligee, and know what place he will appoint to receive them. The first act is to be done by the debtor, and if he omits to do it, he is in default. See, also, Bean v. Simpson, 16 Maine Rep. 49. Howard v. Miner, 20 Id. 325, and Mingus v. Pritchet, 3 Dev. N. C. Rep. 78, S. P.
in which it was declared, that if no place be mentioned in the contract, to deliver specific articles, (and which in that case were hay, bark and shingles,) the creditor had the right to name the place. It is evident, however, that this rule must be received with considerable qualification, and it will depend, in some degree, upon the nature and use of the article to be delivered. The creditor cannot be permitted to appoint an unreasonable place, and one so remote from the debtor, that the expense of the transportation of the articles might exceed the price of them. If the place intended by the parties can be inferred, the creditor has no right to appoint a different place. But if no place of performance be designated, and none can be clearly inferred from collateral circumstances, it seems to have been again admitted, that the creditor may designate, a reasonable place for the delivery of the articles. Mr. Chipmanb states it as a rule of the common law, well understood and settled in Vermont, that if a note be given for cattle, grain, or other portable articles and no place of payment be designated in the note, the creditor's place of residence at the time the note is given, is the place of payment. The same rule is declared in New-York, when the time, but not the place of the payment of the portable article is fixed. If the article be not portable, but ponderous and bulky, then Lord Coke's rule prevails, and the debtor must seek the creditor, or get him to name a place; and if no place, or an unreasonable one, be named, the debtor may deliver the articles at a place which circumstances shall show to be suitable and convenient for the
a Currier v. Currier, 2 N. H. Rep. 75.
Essay on the Law of Contracts, for the Payment of Specific Articles, 25, 26.
• Goodwin v. Holbrook, 4 Wendell's Rep. 377. If the place of payment of specific articles be at the election of the payee, it is a privilege, which if not exercised in a reasonable time is waived, and the debtor may elect the place and there tender the articles and give notice to the payee. Adm. of Peck v. Hubbard, 11 Vermont Rep. 612.
purpose intended, and presumptively in the contemplation *of the parties when the contract was made. There is a material difference in the reason of the thing, between a tender of cumbersome goods, and those which are portable; and the same removal from one place to another is not equally required in the two cases. There is another class of cases, in which the position is assumed, that if the parties have not designated any particular place of delivery, it is to be at the debtor's residence, or where the property was at the time of the contract; as in the case of a note payable in farm produce without mentioning time or place, the place of demand and delivery is held to be at the debtor's farm.c It is likewise adjudged, that where a person in the character of bailee, promises to deliver specific goods on demand, though the demand may be made wherever he may be at the time, his offer to deliver at the place where the property is, or at his dwelling-house, or place of business will be sufficient.d
If the debtor be present in person or by his agent, and makes a tender of specific articles at the proper time and place, according to contract, and the creditor does not come to receive them, or refuses to accept them, the better opinion is, that if the article be properly designated
Chipman's Essay on the Law of Contracts for the Payment of Specific Articles, 27. Hower v. Miner, 20 Maine Rep. 325.
Stone v. Gilliam, 1 Show. Rep. 149.
• Lobdell v. Hopkins, 5 Cowen's Rep. 514. So, also, in Minor v. Michie, 1 Walker's Miss. Rep. 24, it was held, that if no time or place be specified in the contract for the delivery of specific articles, the debtor is not bound to seek the creditor, but the latter to entitle himself to sue, must allege and prove a special demand. This is more reasonable than Lord Coke's rule. The law relative to the practical execution of contracts for payment in goods or specific articles, is well expounded in Chipman on Contracts. See also, Roberts v. Beatty, 2 Penn. Rep. 65. Cowen, J., 20 Wendell, 199.
Barr v. Myers, 3 Watts & Serg. 295.
◄ Scott v. Crane, 1 Conn. Rep. 255. 5 Ibid. 76. Mason v. Briggs, 16. Mass. Rep. 453. Slingerland v. Morse, 8 Johns. Rep. 474.