267 implied where the parties have expressed in words the warranty by which they mean to be bound; but the rule does not extend to the exclusion of warranties implied by law, where they are not excluded by the terms of the contract." 183 And it was said in an English case: "The doctrine that an express provision excludes implication * does not affect cases * to have been in which the express provision appears superadded for the benefit of the buyer." 184 Thus a warranty that troop stores should pass inspection of the East India Company's officers was held not to exclude an implied warranty that the stores should be reasonably fit for consumption by the troops.185 183 Blackmore v. Fairbanks, Morse & Co., 79 Iowa, 282, 44 N. W. 548. See, also, Alpha Check Rower Co. v. Bradley, 105 Iowa, 537, 75 N. W. 369; Timken Carriage Co. v. C. S. Smith & Co., 123 Iowa, 554, 99 N. W. 183. Where plaintiff had no opportunity to inspect the machinery sold, and defendant knew the purposes for which it was required, there is an implied warranty that it shall be fit for such purposes; such implied warranty not being inconsistent with, or excluded by, the express agreement in the contract that the machinery should be of a certain power and in good order, except from exposure to the weather. Blackmore v. Fairbanks, Morse & Co., supra. Where a contract of sale provided that the machine sold must be paid for before delivery in order that an express warranty contained in the contract should become effective, and delivery was made by the seller before payment was demanded, and the buyer refused to settle until after a trial of the machine, the seller acquiescing, there was a waiver of the express warranty, and the buyer could rely upon the warranty, implied by law, that the machine was adapted to the use intended. Parsons Band-Cutter & SelfFeeder Co. v. Mallinger, 122 Iowa, 703, 98 N. W. 580. 184 Mody v. Gregson, L. R. 4 Exch., at page 53, per Willes, J. See Drummond v. Van Ingen, 12 App. Cas. 284; Merriam v. Field, 24 Wis. 640; Boothby v. Scales, 27 Wis. 626; Wilcox v. Owens, 64 Ga. 601; Austin v. Cox, 60 Ga. 521. 185 Bigge v. Parkinson, 7 Hurl. & N. 955, 31 Law J. Exch. 301. 80-81. CHAPTER VIII. PERFORMANCE OF CONTRACT. In General. Delivery. 83-85. Place, Time, and Manner of Delivery. 86-88. Delivery of Wrong Quantity. 89. Delivery by Installments. 90-91. Delivery to Carrier. 80. 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.1 81. PAYMENT AND DELIVERY CONCURRENT CONDITIONS. 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.2 As we have seen, where specific goods are sold, and nothing is said as to the time of payment, the presumption is that the sale is for cash, and not on credit. The property passes, but subject to the seller's lien; and neither is the seller bound to deliver possession of the goods, nor is the buyer bound to pay the price, except upon performance by the other party. 1 Sales Act, § 41; Sale of Goods Act, § 26. 2 Sales Act, § 42; Sale of Goods Act, § 27. 3 Ante, p. 121. In 4 Bloxam v. Sanders, 4 Barn. & C. 941, 948, per Bayley, J.; Leonard v. Davis, 1 Black (U. S.) 476, 17 L. Ed. 222; Tipton v. Feitner, 20 N. Y. 423; Allen v. Hartfield, 76 Ill. 358; Davis v. Gilliam, 14 Wash. 206, 44 Pac. 119. executory contracts of sale, where the parties have not otherwise agreed, the rule as to the concurrent duty of delivery and payment is the same. Neither party can enforce the contract against the other without showing readiness and willingness to perform. It is not necessary, in order to maintain an action on the contract, to show actual tender; readiness and willingness is enough. While the presumption is in favor of a cash sale, and hence that delivery and payment are concurrent conditions, the parties may, of course, make whatever bargain they please; and, if the bargain is that the sale is on credit, the buyer is entitled to the immediate delivery of the goods; though, as we shall see, if he fails to take the goods, and afterwards becomes insolvent, or if the term of credit expires before he exercises his right to take the goods, the seller's lien revives. DELIVERY. 82. MEANING. "Delivery" means voluntary transfer of possession, actual or constructive, from the seller to the buyer. 5 Morton v. Lamb, 7 Term R. 125; Rawson v. Johnson, 1 East, 203; Porter v. Rose, 12 Johns. (N. Y.) 209, 7 Am. Dec. 306; Cook v. Ferral's Adm'rs, 13 Wend. (N. Y.) 285; Robison v. Tyson, 46 Pa. 286; Hapgood v. Shaw, 105 Mass. 276; Phelps v. Hubbard, 51 Vt. 489; Hough v. Rawson, 17 Ill. 588; Stoolfire v. Royse, 71 Ill. 223; Posey v. Scales, 55 Ind. 282; Simmons v. Green, 35 Ohio St. 104; Sousely v. Burns' Adm'r, 10 Bush (Ky.) 87; Walter v. Reed, 34 Neb. 544, 52 N. W. 682; Sanborn v. Shipherd, 59 Minn. 144, 60 N. W. 1089; Campbell v. Moran Bros. Co., 97 Fed. 477, 38 C. C. A. 293; Catlin v. Jones (Or.) 85 Pac. 515. • Rawson v. Johnson, 1 East, 203; Waterhouse v. Skinner, 2 Bos. & P. 447; Jackson v. Allaway, 6 Man. & G. 942; Mitchell v. Le Clair, 165 Mass. 308, 43 N. E. 117; Catlin v. Jones (Or.) 85 Pac. 515. Bloxam v. Sanders, 4 Barn. & C. 941, 948, per Bayley, J.; ante, p. 122; post, p. 314. 8 Post, p. 315. PLACE, TIME, AND MANNER OF DELIVERY. 83. PLACE. 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 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; but, 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.9 84. TIME. 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.10 85. MANNER. As a rule, 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 the transfer of a bill of lading, and in some jurisdictions the transfer of a warehouse receipt, operates as a delivery of the goods.11 Meaning of Delivery. "Delivery," in general, may be defined as the voluntary transfer of possession from one person to another.12 Benjamin points out 13 that the word "delivery" is unfortunately Following Sale of Goods Act, § 29 (1); Sales Act, § 43 (1). Referring to the above subsection, Judge Chalmers says that as regards the place of delivery there was no authority in point, but it seems substantially to express the American law. Post, p. 275. 10 Sale of Goods Act, § 29 (2); Sales Act, § 43 (2). 11 Sale of Goods Act, § 29 (3). See, also, Sales Act, § 43 (3), which adds: "But as against all others than the seller the buyer shall be regarded as having received delivery from the time when such person first has notice of the sale." Cf. section 25; ante, p. 206. In jurisdictions where delivery is essential to transfer the property against third persons, it has been held sufficient to constitute delivery if notice of the sale be given to the person in possession and he does not dissent. Ante, p. 207. See, also, Freiberg v. Steenbock, 54 Minn. 509, 56 N. W. 175. But see Hallgarten v. Oldham, 135 Mass. 1, 46 Am. Rep. 433. 12 See Sale of Goods Act, § 62; Sales Act, § 76; Pol. Poss. 43, 46. 18 Benj. Sales, § 674 et seq. used in very different senses: (1) In the sense of transfer of title or property; (2) in the sense of delivery of possession, as the correlative of the "actual receipt" required by the statute of frauds; (3) in the sense of delivery of possession in performance of the contract; and (4) in the sense of delivery of possession sufficient to destroy the seller's lien, or even his right of stoppage in transitu. Much confusion is caused by the varying senses in which this term is employed. "But," as Judge Chalmers remarks,1 “it would perhaps be more correct to say that a delivery which is effective for one purpose is ineffectual for other purposes. For instance, delivery to a carrier generally passes the property to the buyer, but does not defeat the right of stoppage in transitu, while delivery by the carrier to the consignee does defeat that right." As we have seen, mere delivery does not of itself ever effect a transfer of the title or property; whether the property passes depends solely upon the intention of the parties.15 Delivery under the statute of frauds has already been considered.16 Delivery as affecting the seller's lien 17 and the right of stoppage in transitu 18 will be considered later. The question with which we are here concerned is what delivery is effectual in performance of the contract, so as to enable the seller to defend an action ⚫ for nondelivery. Constructive Delivery. Delivery by agreement or attornment has already been discussed in considering what delivery is necessary to constitute "actual receipt" under the statute of frauds.1o As we have seen, such delivery may take place in three classes of cases: (1) Where the seller is in possession of the goods, and after the sale attorns to the buyer, and continues to hold the goods as his bailee; (2) when the buyer is in possession of the goods as bailee, and after the sale, with the seller's assent, continues to hold on his own account; (3) where a third person is in pos 14 Sale of Goods Act (6th Ed.) p. 122. 15 Ante, p. 119. But in some jurisdictions delivery is essential to transfer the property, under some circumstances, as against third persons. Ante, p. 204. 16 Ante, p. 93 et seq. 17 Post, p. 317. 18 Post, p. 329 et seq. |