Walters. where an article, a ship for instance, is sold with all 3 Campb. 154, faults, although there be a fault known to the seller, this Baglehole v. declaration will save his responsibility, unless some 2 Starkie, 561, deception be practised, as a false representation of her Fletcher v. age, taking the ship from the ways on which she lay Bowsher. 3 Campb. 506, worm-eaten, with her keel broken, and keeping her afloat Schneider v. in the water, so that her defects were concealed. Heath. A copper-fastened vessel, as she now lies, to be taken "with all faults:" the ship turned out to be partially copper-fastened, and not that which was in the trade. called a copper-fastened vessel. The person selling with this advertisement was held liable, for the meaning was, that he, the seller, would not be liable for any faults which v. Kain. a copper-fastened ship might have: it was not such a vessel. The warranty of cattle has given rise to very considerable litigation, particularly regarding the soundness of horses; it is plain, however, that we need not enter more into this discussion as the practical law of merchants is peculiarly the subject we have in view: a reference is made to the books where the law in this particular may be found. Delivery. As soon as the seller has completed every thing to be done on his part, as between him and the buyer, the property may be said to have passed. But if the contract be entire, the seller will not be entitled to payment if he have only delivered part of the goods purchased, unless there be a refusal on the part of the vendee to accept the remainder. One hundred sacks of flour were sold, ten to be on trial, to be returned in two days if objected to the defendant kept four, and sent back two. Ten more sacks were subsequently delivered, of which the defendant took two, and left the remainder at the wharf; but the plaintiff removed these, and refused 240, Shepherd 5 Barn. & Ald. See Comyn, 123-129, and the Law of Horses. 2 Starkie. 281, to complete his engagement. The defendant demanded the completion of the contract, tendered the amount, Walkerv.Dixon, and gave notice that he should buy his flour elsewhere, and charge the plaintiff with the difference. It was held, that the plaintiff could not recover, for it would be to substitute a contract for that which had been agreed upon. "If," said Lord Ellenborough, "the "defendant had insisted upon an abatement being made See 2 New Rep. " in respect of the first four, I might have thought differently." Where the contract was for the delivery 61, Wadding ton v. Oliver. 7 Dowling & Ryland, 131, Cox v. Todd. Sce Comyn, p. 137. 66 of barley "in all April or sooner," and part was delivered, but the residue was brought into dock as late as the 29th of April; and it was found, that it could not be unloaded in less than three days; the Court held, that the contract had not been complied with, and that the defendants were not bound to accept the barley. It is sufficient if the goods are delivered to the vendee, or his agent; and as soon as the carrier, wharfinger, or other such person, receives the consignment into his charge, with the vendee's assent, the risk of conveyance is not the seller's. Thus a direction by the vendee that goods may be sent to him by a carrier, not naming any one in particular, will be satisfied by a delivery of them to a known carrier, and upon such delivery the property will be absolutely vested in the purchaser. A party in London was desired by a resident at Bristol to send him an agricultural machine by any conveyance; it was sent from a wharf whence Bristol vessels usually sailed. The seller sent word that it was to come by the ship Commerce; it was not, however, sent by that ship, for want of room there, but by another, and did not come to hand. No further inquiry was made by the 2 New Rep.119, vendee when he found that the Commerce had not brought his order; and he was, nevertheless, held liable to pay for these goods. The wharfinger was his agent; and by Mr. Justice Heath, "Nothing is more common Cooke v. Lud low. Id. p. 124. "than in the case of waggons, where one is full, to send "the goods by the next." The mode of delivering heavy goods is by giving the key of the warehouse where they are kept, but if it be part of the contract that they shall not be carried away till paid for, although they may be packed in the vendee's cloths, there is no delivery; and so it was where the seller said of some wool, that "it should not go off his premises till he had the money for it." 2 Henry Blackstone, 316, Goodall v. Skelton. An engraver was directed by, the seller, a silversmith, to get some arms engraved on certain articles of plate, and to bring the plate back to him. The purchaser agreed to this, but never received his purchase by reason of the failure of a banking-house, the notes of which he had given to the silversmith after it had stopped payment. It was held, that there was no sufficient delivery of this plate; and at the most, that while in 7 Term Rep. 64, the engraver's hands, it was in transitu, and capable of Morse. being retained by the vendor. The subject of delivery, as we have just now considered it, independent of the statute of frauds, is so nearly allied to stoppage in transitu, that it may be desirable to remind the reader that the cases upon that head have been already mentioned at some length in the chapter on Shipping. Owenson v. Knatchbull, The principle is, that the seller is not bound to deliver 5 Term Rep. goods contracted for, in case of the insolvency of the 218, Reader v. buyer: therefore, before they have arrived at their place cited. of final destination, that is, before they have reached the vendee, or his agent, it is in the seller's power to send after and stop them. And although a very considerable portion of the decisions are connected with shipping, it should be remembered, that there exists equally a power to arrest goods sent upon land from one place to another; the reason that there have been a less number of disputes on that head probably being, that Loeschman v. there is not so great length of time between the sale and delivery as to admit of many insolvencies in the interim (i). The transitus, as it is called, is commonly at an end when the property reaches the agent of the purchaser; but where a piano-forte was sent to the defendant's packer, with an understanding that it was to be paid for 4 Campb. 181, in ready money, whereupon it was left, here was only a conditional delivery, and the packer was but a trustee for the seller, who was entitled to stop in transitu. The vendee may interfere, however, and determine the transitus sooner than in the ordinary course. Three hogsheads of raw sugar, and some lump sugar, had been sent by the defendants, grocers in London, to the bankrupt; they went by a carrier, who gave notice of their arrival to the purchaser; as soon as he heard of it, he took away the lump sugar, took samples from the raw sugar, and desired the carrier to keep the rest in his warehouse until further directions. By this act the transitus was ended. 6 Barn. &Cress well, 117, Foster v. Frampton. Vesting of goods The loss in case of accident is governed by the delivery, and the mere possession of goods by the vendor will not alter the liability of the vendee, if he give his assent to such possession. Turpentine in casks was sold by auction to the plaintiffs; they were to be filled up before delivery, and the two last lots were to be sold in uncertain quantities, as the preceding lots would be filled from them; the defendants' warehouseman, acting as agent for the plaintiffs, ordered the cooper to fill up all except eight or ten, which was done, the bungs being left out for the custom-house officer to make his gauge; a fire then broke out before the gauging, and before the two last casks had been weighed-in order to ascertain the quantity taken out for filling the rest; and (i) See ante. 11 East, 210, Rugg v. Minett. the plaintiff contended that the loss must fall on the vendors. The Court held, that the sellers having done all in their power towards the delivery of all the casks which were filled up, and the gauging being the buyer's business, they must bear the loss of those casks; but that the seller must abide the risk of the casks which had not been filled up, because something clearly remained to be performed by him before these casks were in a fit state for delivery. Some goat-skins were disposed of to the defendant, but the seller was to count them over before he delivered them; a fire in the interim consumed 2 Campb. 240, Zagury v. Furthe goods, and Lord Ellenborough considered that there nell. had been no complete transfer to the purchaser. So again, upon a contract for the sale of a stock of bark, where it became necessary to weigh and deliver before the contract was completed, and a part was accordingly weighed, it was held, that the residue did not vest in the purchaser until the weighing, and that even had it vested, it could not be said to be delivered, so as to enable the seller to bring his action for goods sold and delivered. But where goods, having been sold to a purchaser, and a delivery order given, were distrained for warehouse rent, which, in order to redeem the goods, was paid by the vendor's agent, it being the custom at the same time for the vendor to pay two months' warehouse rent, it was held, that the property had become vested in the purchaser, and that as he was liable for all accidents, the person who paid the money, without any necessity for so doing, was not competent to recover it back from the vendors. Where a part of stock is sold, it must, it seems (k), be separated from that stock in order to constitute a valid transfer. As where a merchant had oil in several (k) Whitehouse v. Frost, 12 East, 614, is shaken by these cases. 6 Barn. &Cresswell, 857, Sim v. Swift. mons v. 2 Barn. & Ald. 131, Greaves v. Hepke. |
