special agreement, or course of dealing between the parties, is in accordance with the rule that, "where any right, duty, or liability would arise under a contract to sell or a sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by custom, if the custom be such as to bind both parties to the contract or sale” (10). A custom, to bind the parties to a contract, must not be inconsistent with the terms of the contract and must be consistent with the general rules of law. It must be known to both the contracting parties or be so well established in the locality or in the line of trade that the parties may be taken to have contracted with reference thereto (11).

§ 86. Delivery by instalments. "1. Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalments. 2. Where there is a contract to sell goods to be delivered by stated instalments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it depends in each case on the terms of the contract and the circumstances of the case whether the breach of contract is so material as to justify the injured party in refusing to proceed further and suing for damages for breach of the entire contract, or whether the breach is severable, giving rise

to a claim for compensation, but not to a right to treat the whole contract as broken❞ (12).

Sometimes an agreement to accept delivery of the goods by instalments is implied from the nature of the goods or other circumstances, as in a purchase of a large amount of hay or coal or lumber; but if such goods are to be delivered at a stated time, there must be a delivery of the last instalment by the stated time. Sometimes one party to a contract claims to be discharged from performance on his part by the fact that the other party has failed to perform, either wholly or to such an extent as to defeat the object for which the contract was made. Where there is a contract to sell goods to be delivered and paid for by instalments, whether a default, either in making delivery or making a payment, discharges the contract, or merely gives rise to an action for damages, is a question of fact depending upon the circumstances of each case. It is the generally accepted doctrine that such contracts are entire; that the provisions as to delivery of the goods by stated instalments, which are to be separately paid for, do not render the contract divisible, and that where the seller fails to deliver one instalment, the buyer has the right to rescind the contract (13). A different conclusion was reached in Gerli v. Poidebard Silk Mfg. Co. (14). The court there held that a failure to deliver the

(12) Sales Act, sec. 45.

(13) Hoare v. Rennie, 5 H. & N., 19; Norrington v. Wright, 115 U. S., 188 (in which there is a full review of the English and American cases).

(14) 57 N. J. Law, 432.

first instalment stood on the same footing as a failure to deliver any subsequent instalment.

Where the payments are to be made by instalments, a default in a payment excuses further performance by the other party (15). The party not in default may refuse to deliver any more goods and recover for those already delivered. He may not recover for loss of profits on the balance of the contract, which he elects not to perform (16). If the instalments are numerous and extend over a considerable period of time, a default either of delivery or payment would not appear to discharge the contract, although it would give rise to an action for damages. In Honck v. Muller (17) 2,000 tons of iron were to be delivered in three monthly instalments. It was held that upon a failure of the buyer to accept any during the first month the seller was discharged from the contract.

§ 87. Delivery to a carrier on behalf of the buyer. "1. Where, in pursuance of a contract to sell or a sale, the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, is deemed to be a delivery of the goods to the buyer, except in the cases provided for in section nineteen, Rule 5 (18), or unless a contrary intent appears.

(15) Rugg v. Moore, 110 Pa. St., 236.

(17) 7 Q. B. D., 92. See also Simpson v. Crippin, L. R. 8 Q. B., 14; Freeth v. Burr, L. R. 9 C. P. 208.

(18) By which it is provided: "If a contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon."

2. Unless otherwise authorized by the buyer, the seller must make such contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself, or may hold the seller responsible in damages. 3. Unless otherwise agreed, where goods are sent by the seller to the buyer under circumstances in which the seller knows or ought to know that it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such transit" (19).

The carrier is ordinarily the agent of the buyer, for the transmission of the goods to the buyer. If, by the contract, the seller is to deliver the goods at a particular place, as at the buyer's residence or place of business, the carrier is in that case the agent of the seller, and delivery to the carrier is no delivery by the seller. It is the duty of the seller to use due care in packing and shipping the goods. In Diebold Safe and Lock Co. v. Holt (20), according to the agreement the seller was to deliver the safe on board the cars at the place of shipment. The safe was crated and fastened near a bolt or bolts which protruded from the side of the car, and by rubbing against this bolt or bolts, holes were produced during the transit

(19) Sales Act, sec. 46. (20) 4 Okla., 479.

of the safe. It was held that the seller was responsible for the damage occasioned thereby, and that the seller had not discharged its whole duty by placing the safe on board the cars.

§ 88. Right to examine the goods. "1. Where goods which he has not previously examined are delivered to the buyer, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract. 2. Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract. 3. Where goods are delivered to a carrier by the seller, in accordance with an order from or agreement with the buyer, upon the terms that the goods shall not be delivered by the carrier to the buyer until he has paid the price, whether such terms are indicated by marking the goods with the words 'collect on delivery', or otherwise, the buyer is not entitled to examine the goods before payment of the price in the absence of an agreement permitting such examination" (21).

There is not a valid tender of goods by a delivery or offer to deliver closed casks said to contain them; but they should be tendered in such a way that the buyer may have a reasonable opportunity of inspecting them, and of ascertaining whether what he has bargained for

(21) Sales Act, sec. 47.