liable for freight. The defendants sold the umber. It was found, as a fact, that the intention was to pass the property on shipment to the plaintiff subject to a lien for the price. And although there was no contract between the plaintiff and the defendants, yet the Court held that the plaintiff could recover, as the bills of lading should have been handed to Mirabita Brothers on tender of payment of the bill of exchange. In The Mersey Steel and Iron Co. v. Naylor (a), in the House of Lords, in 1884, Naylor and Co. contracted to purchase 5,000 tons of steel from the Mersey Co., delivery 1,000 tons monthly, payment within three days after receipt of shipping documents. The Mersey Co. in the first month delivered only 332 tons, and delivered 260 tons in the early part of the next month. Before payment became due, a petition to wind up the Mersey Company was presented, and Naylor and Co. being advised (although wrongly) that under the Companies Acts they could not safely make any payments until the petition had been disposed of, declined to pay. The Mersey Co. then refused to make any further deliveries, and it was argued for them that the payment for each delivery was a condition precedent to the right to the next delivery, but both the Court of Appeal and the House of Lords held that it was not so. By section 10 of the Sale of Goods Act it is provided that unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale (b). But it is to be noted that the section goes on to provide that it is a question. depending on the terms of the contract whether any other stipulation as to time is of the essence of the contract. In mercantile transactions, it will be found, time is usually of the essence of the contract. In Ryan v. Ridley (c), in 1902, where the defendant had contracted to buy certain perishable articles, (a) Mersey Steel and Iron Co. v. Naylor, 51 L. J. Q. B. 576; 53 L. J. Q. B. 497; 9 Q. B. D. 648; 9 App. Ca. 434. (b) Martindale v. Smith (1841), 1 Q. B. 389 at p. 395; Bishop v. Shillito (1829), 2 B. & Ald. 329. (c) Ryan v. Ridley, 8 Com. Cas. 105. payment to be made "by cash . . . in exchange for shipping documents," it was held that he was under an obligation to pay within a reasonable time after the shipping documents were tendered to him, and if he did not do so, the seller was entitled to sell the goods against him and to recover the loss he had thereby suffered. The general rule of law in regard to the relative obligations of the seller to deliver and of the buyer to pay the price is now laid down by section 28 of the Act, which provides that, unless otherwise agreed, delivery and payment are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods. As to Quality and Condition. Examples of conditions precedent as to quality have already been referred to (a) when speaking of sales on approval and by sample. In Lorymer v. Smith (b), in 1882, the defendant, the buyer, had contracted to buy two parcels of wheat by sample, one parcel being 700 bushels, the other 1,400. The buyer called to inspect the wheat in bulk, and had the right to demand immediate delivery if he wished it; but the plaintiff would not allow him to see the larger parcel, although he allowed him to inspect the smaller. The defendant then declined to take any of the wheat. Some days afterwards, the plaintiff told the defendant he might inspect it, but the defendant declined, and obtained a verdict. The Court refused a new trial, Abbott, C. J., saying: "By the usage of the place, the "buyer had a right to inspect the wheat in bulk; which is "so reasonable, that without any such usage, the law would give him that right." 66 (a) Ante, p. 209. (b) Lorymer v. Smith, 1 B. & C. 1. See also Howe v. Palmer, in 1820, 3 B. & Ald. 321; ante, p. 30. 66 66 And in Isherwood v. Whitmore (a), in 1843, where the buyer refused to accept goods tendered to him in closed casks, which he was not allowed to open, Parke, B., said: "A tender "of goods does not mean a delivery or offer of packages containing them, but an offer of those packages under such circumstances that the person who is to pay for the goods shall have an opportunity afforded him, before he is called on to part "with his money, of seeing that those presented for his acceptance are in reality those for which he has bargained " (b). In Hutchinson v. Bowker (c), in 1839, the defendants offered to sell good barley; the plaintiffs accepted the offer, but for fine barley; the defendants declined to deliver fine barley. The jury found good and fine meant different qualities in the trade, and it was held that there was no contract. There can be no doubt that if there had been a contract for fine barley, and good barley had been tendered, the buyer could not have been called on to accept it. In Pettitt v. Mitchell (d), in 1842, the plaintiff, an auctioneer, sold by auction to the defendant a quantity of goods, to be paid for before delivery. The biddings were at so much per yard. The defendant refused to pay for the goods unless before doing so he was allowed to inspect and measure them. It was not denied that if it should turn out on measurement after payment that the defendant had been called upon to pay too much, he would be entitled to a return of part of the purchase-money, but his right to inspect before payment was contested, and the Court held that he had no such right. There were conditions of sale inconsistent with this supposed right, but Tindal, C. J., put his judgment on the broad ground of the inconvenience of implying such a condition. The case of Toulmin v. Hedley (e), in 1845, was an action for the price of a cargo of guano which the defendant, the buyer, refused to accept, on the ground that it did not (a) Isherwood v. Whitmore, 12 L. J. Ex. 318; 11 M. & W. 347. (b) See Sale of Goods Act, s. 34 (2). (c) Hutchinson v. Bowker, 5 M. & W. 535. (d) Pettitt v. Mitchell, 12 L. J. C. P. 9; 4 M. & Gr. 819. (e) Toulmin v. Hedley, 2 Car. & Kir. 157. correspond with the warranty. The contract was for a cargo expected by the ship Sarah "quality warranted equal to "average imports from Ichaboe, and in sound and merchant"able condition." Cresswell, J., directing the jury, said: "It is true that this was a contract for a specific cargo; but "it had not been seen by the defendant; and I think, therefore, that before accepting it, he was entitled to look at it, "in order to see whether it corresponded with the terms of "the warranty or not; and that, if it did not, he was entitled "to reject it" (a). In Bull v. Robinson (b), in 1854, the defendant refused to accept iron which was perfectly good when despatched from Staffordshire, on the ground that it was not in a merchantable condition. It had suffered a certain amount of deterioration by rusting on its way to Liverpool. The Court, on the motion for a new trial, was of opinion that if the deterioration was necessary and unavoidable, the defendant must accept. In Nichol v. Godts (c), in 1854, the plaintiff had sold to the defendant "the five under-mentioned parcels of foreign "refined rape oil oil .. warranted only equal to samples." The defendant accepted part of the oil, but refused to take the residue, on the ground that it was not foreign refined rape oil, but a mixture of hemp and rape oil. The samples consisted of rape oil adulterated with hemp oil, and the oil tendered corresponded with the samples, and on this ground the plaintiffs contended that the defendants were bound to accept the oil, although they admitted it was not foreign refined rape oil. The jury found that there was no usage the trade that rape oil meant a mixture of rape and hemp oil, and found a verdict for the defendant, which the Court refused to disturb, on the ground that the thing tendered must answer the description of it in the contract as to its character. Parke, B., said, "The warranty affects only the quality, but not the nature of the article itself." 66 in (a) See Sale of Goods Act, s. 34 (1). (b) Bull v. Robinson, 24 L. J. Ex. 165; 10 Ex. 342. In Wieler v. Schilizzi (a), in 1856, the plaintiff had contracted to purchase from the defendant, and had accepted, a large quantity of Calcutta linseed, tale quale, at the date of the contract on board certain ships, and now brought this action for breach of an alleged warranty that the seed was Calcutta linseed whereas in fact it contained a large admixture of rape and mustard seed. The defendant denied any warranty. There was evidence that all linseed sent to this country contains about two or three per cent. of other seeds. But according to the plaintiff's evidence, the seed in question contained about fifteen per cent. The plaintiff had, however, sold it as linseed, and the buyers had used it as such. The question left to the jury was, whether there was such an admixture of foreign substances as to alter the distinctive character of the article and prevent it from answering the description of it in the contract-more, in truth, than might reasonably be expected. The jury returned a verdict for the plaintiff, and on the motion for a new trial the Court held that this was no misdirection. Willes, J., said, "The purchaser had a right to expect, not a perfect article, but an "article which would be saleable in the market as Calcutta "linseed. If he got an article so adulterated as not reasonably to answer that description, he did not get what he bargained for." Although the plaintiff chose to accept the seed, it seems clear that he might have refused to accept it had he chosen to do so. 66 66 Vernede v. Weber (b), in 1856, was an action by the buyer for non-delivery. The contract was for a cargo of 400 tons of Aracan Necrensie rice, with a proviso that the cargo might partly consist of Larong rice, but not to a greater extent than 50 tons. The defendant refused to deliver a cargo which consisted of 285 tons of Larong and 159 of Latourie, and no Aracan Necrensie, on the ground that it was not a cargo of Aracan Necrensie, and the Court said: "Unless the cargo was what would substantially satisfy the description 66 (a) Wieler v. Schilizzi, 25 L. J. C. P. 89; 17 C. B. 619. |