S. 28.

tiffs and defendants are altogether contemporaneous. The money is not required to be paid down by the plaintiffs until [the defendants perform their part].”

An averment that the plaintiff was "ready and willing" means "that the non-completion of the contract was not the fault of the plaintiff, and that [he] was disposed and able to complete it" (y). Thus, a demand to the other party to perform his part is evidence of readiness and willingness in the plaintiff (z); and the insolvency of the buyer is also evidence that he is not "ready and willing" to pay (a).

Unless otherwise agreed.-Such being the general rule applicable, "where nothing is said as to the time of the delivery or the time of payment " (b), the parties may modify it by agreement, under s. 55; as when the dates of the respective performances are fixed by the contract, according to the principles laid down in Pordage v. Cole (c). Thus the buyer may agree to pay on a fixed date, irrespective of delivery (d); or the seller may agree to deliver irrespective of payment, as in the ordinary case of a sale on credit (e).

ILLUSTRATIONS.

1. A. agrees to sell to B. 100 quarters of malt, and to deliver on request. B. requests A. to deliver the malt at a particular place, and is then ready to accept and pay for it. B. may recover against A. for non-delivery of the malt, and need not prove a tender. Rawson v. Johnson (1801), 1 East, 203.

2. A. agrees to sell goods to B. for 6607., no time being fixed for delivery or payment. A. afterwards requests B. to accept and pay for them, which B. refuses. A. cannot recover against B. for nonacceptance, unless he can also prove that he was ready and willing to deliver the goods. Hannuic v. Goldner (1843), 11 M. & W. 849.

3. A. agrees to sell to B. fifty tons of bars at 97. a ton, deliverable by A. within fourteen days, and to be paid for by B. in cash at the end of that time. A. must prove an actual delivery within fourteen days before he can recover the price, and B. need not then pay till the expiration of that time, as delivery and payment are not made concurrent conditions. Staunton v. Wood (1851), 16 Q. B. 638.

4. A. agrees to sell to B. 1,000 tons of iron to be delivered before the end of April, if required by B., but if not so required to be paid for then. A. may recover the price of the goods, although he has not tendered them, it being so agreed. Dunlop v. Grote (1845), 2 C. & K. 153.

(3) Per Cur. in Cort v. Ambergate Ry. Co. (1851), 17 Q. B. 127.

(2) Wilks v. Atkinson (1815), 1 Marsh. 412.

(a) Lawrence v. Knowles (1839), 5 B. N. C. 399.

(b) Per Cur. in Bloxam v. Sanders (1825), 4 B. & C. 941.

(e) 1 Wm. Saund. 548, see notes to Cutter v. Powell (1793), 2 Sm. L. C. (9th ed.) 1.

(d) Dunlop v. Grote (1845), 2 C. & K. 153; s. 49 (2), post, p. 272.

(e) Staunton v. Wood (1851), 16 Q. B. 638.

pos

S. 29.

delivery.

29.—(1.) Whether it is for the buyer to take session of the goods or for the seller to send them Rules as to to the buyer is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, the place of delivery is the seller's place of business, if he have one, and if not, his residence: Provided that, if the contract be for the sale of specific goods, which to the knowledge of the parties when the contract is made are in some other place, then that place is the place of delivery.

The general rule previous to the Act was that, "in the absence of a contrary agreement, the seller is not bound to send or convey the goods to the buyer. He does all that he is bound to do by leaving or placing the goods at the buyer's disposal, so that the latter may remove them without lawful obstruction" (J

The effect of this sub-section is that, when the seller is not to send the goods, the buyer must take delivery at the seller's place of business or residence, unless the goods are specific and known to be elsewhere.

There is no provision as to the place of delivery when the seller is to send "to the buyer"; but as, according to s. 27, delivery must be made "in accordance with the contract," the contract would itself, expressly or impliedly, show this.

S. 29 (1).

With regard to the place of delivery, concerning which there The place of was no authority, Mr. Benjamin says (g): "When nothing is delivery. said about it in the bargain, it seems to be taken for granted almost universally that the goods are to be at the buyer's disposal at the place where they are when sold." To the same effect is the French Civil Code, s. 1609, and the Indian Contract Act, s. 94. See also, in America, Hatch v. Oil Co. (h). This subsection substantially reproduces the previous assumed rule, with the addition thereto in the proviso of the necessity of knowledge of the locality of specific goods.

When the place of delivery is uncertain, and within the option of the seller, he must give notice of the place. This is a condition (i).

(f) Benj. p. 682.

(g) p. 684.

(h) 10 Otto, 134.

(i) Davies v. MacLean (1873), 21 W. R. 264.

S. 29 (2).

(2.) Where under the contract of 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.

Within a reasonable time.-"Reasonable time" is, under s. 56, a question of fact. For "reasonable hour," see sub-s. 4, post, p. 186.

"When the contract imposes on the seller the obligation of sending the goods. . . if nothing is said as to time, he must send within a reasonable time; and when the sale is in writing, if nothing is said as to time, parol evidence is admissible of the facts and circumstances attending the sale, in order to determine what is a reasonable time. . . . But when the contract expresses the time, the question is one of construction, and therefore one of law for the Court, not of fact for the jury" (1).

"The correct mode of ascertaining what reasonable time is in such a case as this, is by placing the Court and jury in the same situation as the contracting parties themselves were in at the time they made the contract-that is to say, by placing before the jury all those circumstances which were known to the parties at the time the contract was made, and under which the contract itself took place" (m).

And subsequent events will also be taken into consideration, as appears from the following judgments:

"When the language of a contract does not, expressly, or by necessary implication, fix any time for the performance of a contractual obligation, the law implies that it shall be performed within a reasonable time. The rule is of general application. . . . Reasonable time . . . has invariably been held to mean that the party upon whom it is incumbent duly fulfils his obligation, notwithstanding protracted delay, so long as such delay is attributable to causes beyond his control, and he has neither acted negligently nor unreasonably " (n). "Reasonable time should be ascertained by a consideration of all circumstances which eventually happen, and which are outside the control of [the party]" (o).

No time for sending them is fixed. The parties may, however, in the contract specify the time of delivery. In this con

S. 29 (2).

"within " Я

certain time

nection (the question being one of construction, as above stated) various rules have been laid down in the cases. Thus, when Delivery delivery is to take place "within" a certain time, the date of the contract is excluded (p). And, in the computation of the time, "days" and "running" days mean, in the absence of a contrary agreement, or trade custom (q), "consecutive" days, including Sundays (r). Thus, "a promise to deliver goods in two months from the 5th of October is fulfilled by delivery at any time on the whole day of the 5th of December, so that an action against the seller would be premature, if brought before the 6th "(s).

Stipulations as to time are, or are not, of the essence of the contract according to the intention (t).

"Month": See s. 10 (2), ante, p. 67. The 29th of February must be counted as a separate day (u).

The following meanings have been respectively attributed to Meaning of the various terms hereinafter mentioned, that is to say: "directly" has been interpreted to mean a shorter time than a (1)“Directly.” reasonable time (v); "forthwith," when employed in connection (2) Forthwith a fixed time for payment, as meaning some time within with." the time fixed for payment (x); and “ as soon as possible" in a (3) "As soon manufacturer's contract, as meaning "within a reasonable time, as possible." with an undertaking to do it in the shortest practicable time," or "as quickly as it could be made in the largest establishment with the best appliances" (and not "as soon as possible for the seller ") (y), subject, however, to delay caused by any event which the parties might reasonably be held to have contemplated, as, e.g., other orders on hand at the time (z).

When the time fixed for delivery has been postponed at the request of the other party, the postponement, unless amounting to a contract (subject in that case to the provisions of s. 4, q. v.), is a mere voluntary forbearance, not binding on the other party (a).

(p) Webb v. Fairmaner (1838), 3 M. & W. 473.

(4) Cochran v. Retberg (1800), 3 Esp. 121.

(r) Brown v. Johnson (1842), 10 M. & W. 331.

(s) Benj. p. 687. See also S. Staff. Tramways v. Sickness, &c. Ass. Co. (1890), 60 L. J. Q. B. 47.

(t) See s. 10 (1), ante, p. 64. (u) 42 & 43 Vict. c. 59, repealing 40 Hen. 3.

(v) Duncan v. Topham (1849), 8 C. B. 225.

(x) Staunton v. Wood (1851), 16 Q. B. 638. See also Roberts v. Brett (1865), 11 H. L. 337.

(y) Hydraulic Engineering Co. v. McHaffie (1878), 4 Q. B. D. 670.

(2) Attwood v. Emery (1856), 1 C. B. N. S. 110.

(a) The cases are collected in Benj. pp. 692-696; and see p. 47, ante.

S. 29 (2).

S. 29 (3)

Delivery of (1) Bill of lading.

ILLUSTRATIONS.

1. A. agrees to sell B. 200 tons of lead of a particular mine, deliverable in the Thames. B., at the time of the contract, is told by the broker that the lead is ready for shipment. The usual ports of shipment are G. or L., but to get to G. the lead has to be brought by barges down a river. During this part of the transit the lead is delayed by the lowness of the water; and is consequently delayed in arriving in the Thames. B. is not bound to accept the lead, as a reasonable time in this contract meant such a time as would be required for transit to the Thames from the more distant of either G. or L., had the goods at the time of the contract been ready for shipment at those places. Ellis v. Thompson (1838), 3 M. & W. 445.

2. A. agrees to sell to B. 2,000 tons of rails, to be shipped to P., and payment to be made in exchange for the bill of lading. A. must use every reasonable exertion, under the circumstances of the case, to forward the bill of lading as soon as possible after shipment, not necessarily in time to meet the arrival of the ship. Per Brett, M.R., in Sanders v. MacLean (1883), 11 Q. B. D. at p. 337 (b).

(3.) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf; provided that nothing in this section shall affect the operation of the issue or transfer of any document of title to goods.

By this sub-section the attornment of the bailee in possession of goods is necessary to complete delivery, but the operation of documents of title is left as it was before the Act. Documents of title are defined in s. 62 (1), incorporating s. 1 (4) of the Factors Act, 1889. (Appendix of Statutes, post, p. 325.)

With regard to the general rule, Martin, B., says, arguendo, in Buddle v. Green (c), "If one buys goods of another in possession of a third party, the vendor undertakes that they shall be delivered in a reasonable time. . . . If I buy a horse of you in another man's field, it is part of the contract that if I go for the horse I shall have it. . . A man does not buy a law-suit."

With regard to bills of lading, the law is clear. "During this period of transit and voyage, the bill of lading by the law merchant is universally recognized as [a] symbol [of the cargo], and

(b) See also Barber v. Taylor (1839), 5 M. & W. 527.

(c) (1857), 27 L. J. Ex. 33, 34.