Buyer is not bound to return goods wrongly delivered. Risk of loss-under the Sales Act. Risk generally attends title..... Risk may by agreement be separated from title. 958 959 960 961 962 963 Risk is on the buyer where the seller retains a security title only. 964 The sample not always a representation as to the bulk. 1004 § 955. Duty of delivery and payment. The following sections of the Uniform Sales Act1 state the fundamental duties of buyer and seller of goods. "It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract to sell or sale." 2 "Unless otherwise agreed, delivery of the goods and payment of the price 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." 3 § 956. Place, time, and manner of delivery. The Sales Act continues: 4 "(1) Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer, is a question 1See supra, § 506, n. 2, for a statement of the jurisdiction, where the statute has been enacted. * Sec. 41. Sec. 42. This section was cited and applied in: Bridgeport Hardware Mfg. Corp. v. Bouniol, 89 Conn. 254, 93 Atl. 674; Gruen v. Ohl, 81 N. J. L. 626, 80 Atl. 547; Bernzweig v. Hyman Levin 4 Sec. 43. depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, or usage of trade to the contrary, the place of delivery is the seller's place of business, if he have one, and if not, his residence, but in case of a contract to sell or a sale of specific goods, which to the knowledge of the parties when the contract or the sale was made were in some other place, then that place is the place of delivery." '(2) Where by a contract to sell or a sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time.8 (3) Where the goods at the time of sale are in the possession of a third person, the seller has not fulfilled his obligation to deliver to the buyer unless and until such third person acknowledges to the buyer that he holds the goods on the buyer's behalf; but as against all others than the seller the buyer shall be regarded as having received delivery from the time when such third person first has notice of the sale. Nothing in this section, however, shall affect the operation of the issue or transfer of any document of title to goods.10 "(4) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact.11 (5) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller." 12 Bridgeport Hardware Mfg. Co. v. Bouniol, 89 Conn. 254, 93 Atl. 674; Leuders v. Fahlberg Works (N. Y. Misc.), 150 N. Y. S. 635; Schiff v. Winton Motor Car Co., 90 N. Y. Misc. 590, 153 N. Y. S. 961, 964; Dressler Beard Mfg. Co. v. Winter Garden Co. (N. Y. Misc.), 158 N. Y. S. 875. • Dordoni v. Hughes, 83 N. J. L. 355, 85 Atl. 353. 7 See supra, § 836. 8 Rochester Distilling Co. v. Geloso, 92 Conn. 43, 101 Atl. 500; Gruen v. Ohl, 81 N. J. L. 626, 80 Atl. 547; Stephens-Adamson Mfg. Co. v. Bigelow, 86 N. J. L. 707, 92 Atl. 398. See also supra, § 38. 'See Hallgarten v. Oldham, 135 Mass. 1, 46 Am. Rep. 433; Greenfield v. Herrman, 130 N. Y. S. 132, 72 N. Y. Misc. 406, Williston, Sales, § 454. 10 See Williston, Sales, §§ 366, 371, 374. 11 See supra, § 856. 12 This necessarily follows from the duty of the seller to deliver the goods. Williston, Sales, § 456. § 957. Delivery to a carrier on behalf of the buyer. The Sales Act provides 13 in regard to delivery by the seller to a carrier: (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,11 except in the cases provided for in section 19, Rule 5 15 or unless a contrary intent appears.15 (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." 16 (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." 17 13 Sec. 46. 14 Alderman Bros. Co. v. Westinghouse &c. Co., 92 Conn. 419, 103 Atl. 267; Schanz v. Bramwell (N. Y. Misc.), 143 N. Y. S. 1057; Hauptman v. Miller, 94 N. Y. Misc. 266, 157 N. Y. S. 1104; Woodland Lumber & Mfg. Co. v. Barnett, 185 N. Y. App. D. 572, 173 N. Y. S. 4; Stzte v. Bayer, 93 Ohio, 72, 112 N. E. 197. 15 Rule 5. "If the 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." 15a Delivery to a carrier with directions to deliver on the seller's order is not a delivery to the buyer. Lyman v. Woldert Grocery Co., 133 Ill. App. 362. 16 Miller v. Harvey, 221 N. Y. 54, 116 N. E. 781; Southern Nursery Co. v. Winfield Nursery Co., 89 Kan. 522, 132 Pac. 149. 17 See Williston, Sales, § 469; Wimble v. Rosenberg, [1913] 1 K. B. 279, 3 K. B. 743; Law & Bonar Ltd., v. British Am. Tobacco Co., [1916] 2 K. B. 605. § 958. Delivery of wrong quantity. The Sales Act provides 18 as to error in quantity: (1) Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, 19 but if the buyer accepts or retains the goods so delivered, knowing that the seller is not going to perform the contract in full, he must pay for them at the contract rate. 20 If, however, the buyer has used or disposed of the goods delivered before he knows that the seller is not going to perform his contract in full,21 the buyer shall not be liable for more than the fair value to him of the goods so received. (2) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered he must pay for them at the contract rate. (3) Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole. "(4) The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties." 22 § 959. Right to examine the goods. The Sales Act provides 23 as to the buyer's right of examina-" tion: "(1) Where goods are delivered to the buyer, which he 18 Sec. 44. 19 Boyd v. Second Hand Supply Co., 14 Ariz. 36, 123 Pac. 619. 20 Doxey v. Coates, 181 N. Y. App. D. 207, 168 N. Y. S. 76; Bloom v. Arthur Walker & Co., Inc., (App. Term, Supr. Ct.) 175 N. Y. S. 150. 21 Kirshman v. Crawford-Plummer Co., 165 N. Y. App. D. 259, 150 N. Y. S. 886. 22 As to the right of the buyer to reject an offer of a wrong quantity, see Cunliff v. Harrison, 6 Ex. 903; Reuter v. Sala, 4 C. P. D. 239; Norrington v. Wright, 115 U. S. 188, 205, 6 Sup. Ct. 12, 29 L. Ed. 366; Rock Glen Salt Co. v. Segal, 229 Mass. 115, 118 N. E. 239; Downer v. Thompson, 6 Hill, 208; List v. Chase, 80 Ohio, 42, 88 N. E. 120; Williston, Sales, §§ 460-463. Cf. Shipton v. Weil, [1912] 1 K. B. 574; Cox v. Early, (Tex. Civ. App.) 143 S. W. 345. See also supra, § 703. 23 Sec. 47. |