title, and has no right of possession, if the goods be not paid for, and no credit were agreed upon. Therefore he cannot take them, or sue for the non-delivery, until the price be paid, or tendered by him (i).

However, in an action for not delivering goods, which the defendant had sold and undertaken to deliver to the plaintiff, on request, at a certain price, it is sufficient for the plaintiff, in his declaration, to aver such request, and that he was ready and willing to receive the goods, and pay for them according to the terms of the sale, but that the defendant refused to deliver them; without averring an actual tender of the price (k).

If the contract be to deliver goods generally, or upon request, a special or actual request to deliver must be made, either personally or by letter, before the vendor can be sued for nondelivery (1); unless he has incapacitated himself from completing the agreement, by re-selling, &c. (m).

In the case of a sale of goods, (expected by a particular ship), "on arrival;" if no goods arrive, in the ordinary course of trade and navigation (n), the vendor is not in general liable; the contract being conditional (o). But where the contract was "for goods to be sent to the vendee, on an insurance being effected," terms, three months' credit from the time of arrival; and which insurance was effected in the name of the vendee; it was held, that the property in the goods vested in him immediately they were forwarded, and in the course of transit, and were then at

right of possession; Bloxam v. Sanders, 4 B. & C. 941, 949, 952; 7 D. & R. 396, S. C. His remedy if the vendor re-take the goods, ante, 341, 342. If neither party be ready to perform the contract at the time stipulated, money had and received may, it seems, be brought by the vendee to recover a deposit he had paid; see Clarke v. King, R. & M. 394; 2 C. & P. 286, S.C.

(i) Id. Couper v. Andrews, Hob. 41; 2 Bla. C. 448; Bloxam v. Sanders, 4 B. & C. 941; 7 D. & R. 396, S. C.; Parker v. Rawlings, 4 Bing. 280; 12 Moore, 529, S. C.

(k) Rawson v. Johnson, 1 East, 203; Waterhouse v. Skinner, 2 B. & P. 447; Porda je v. Cole, 1 Saund. 320, e, note

5; Martin v. Smith, 6 East, 560.

(1) Bach v. Owen, 5 T. R. 409.

(m) Bowdell v. Parsons, 10 East, 359; Amory v. Brodrick, 5 B. & Ald. 712; 1 D. & R. 361, S. C. Demand by servant, &c.; Squier v. Hunt, 3 Price, 68.

(n) So where the contract is "for the delivery of the goods on arrival, to be delivered with all convenient speed,. but not to exceed a named day," the vendee is not bound to accept after the day; Alewyn v. Pryor, 1 R. & M. 406; see Busk v. Spence, 4 Camp 329.

(0) Boyd v. Siffkin, 2 Camp. 326; Hawes v. Humble, id., 327, note. See Idle v. Thornton, 3 id., 274, as to the duty of the vendees on a wreck of the goods.

his risk (p). Bayley, J., observed; "it has been urged, that the form of the order throws the risk upon the vendor, until the arrival of the goods, for they were not to be paid for, until three months from that period, and consequently, that the arrival was a condition precedent to the vendor's right to sue for the price. If, however, the goods were not to be paid for unless they arrived, why should the plaintiff insure them? That shows that the arrival was not considered as a condition precedent to the payment. If the goods arrived, three months from the arrival was to be the period of credit; if they did not arrive, still the purchaser would be bound to pay in a reasonable time after the arrival became impossible (q)."

Where A. sold to B. all the hemp that might be shipped in certain vessels at Rigu, not exceeding 300 tons, by C., the agent of the concern; and C. shipped on board of these vessels, only 71 tons of hemp on account of A., but upwards of 300 tons on account of other persons; Lord Ellenborough held, that the contract must be confined to such hemp as C. should ship as agent to A., and that A. was not answerable to B. for more than the 71 tons (r).

Where, however, the engagement to deliver is absolute, it is no defence that the vendor was prevented from completing the bargain by the blockade of a port, or an inevitable accident (s).

In an action of assumpsit, for not delivering goods upon a given day, the measure of damages is the difference between the contract price, and that which goods of a similar quality and description, bore in the market at the time the goods ought to have been delivered (t); although the vendor, in the interim, had resold and refused to complete; if the vendee did not assent to rescind the contract (u).

Where there is an entire contract for a specific quantity of goods, or for several articles (x), the vendee is not bound to receive

(p) Fragano v. Long, 4 B. & C. 219; 6 D. & R. 283, S. C.

(q) Fragano v. Long, 4 B. & C. 222; 6 D. & R. 286, S. C.

(r) Hayward v. Scougall, 2 Camp. 56. (s) Atkinson v. Ritchie, 10 East, 530; Hayward v. Scougall, 2 Camp. 57 n; De Medeiros v. Hill, 5 C. & P.

182; see ante, 48, 49.

(t) Gainsford v. Carroll, 2 B. & C. 621; 4 D. & R. 161, S. C.; Boorman v. Nash, 9 B. & C. 145.

(u) Leigh v. Paterson, 8 Taunt. 540; 2 Moore, 588, S. C.

(x) As to this, see ante, 303, 313, 341.

part; and if part only be delivered, he may return it. But if he retain the part delivered, after the time for the completion of the contract has elapsed, he is liable upon a quantum meruit, for the value of such portion of the goods. By retaining and taking to the part delivered, there is impliedly created a new contract to pay for that part (y). And the buyer of goods by sample, has a right to inspect the whole in bulk, at any proper and convenient time, and may rescind the contract, if the buyer refuse to shew it (z). The right to rescind the contract on a breach of warranty, will be hereafter considered (a).

2ndly. OF A WARRANTY UPON THE SALE OF GOODS.

Warranty of Title.-By the Civil Law (b), and the French Code (c), a warranty by the vendor of goods (d), as to his title thereto, is implied. But it seems that by the English law, there is no implied warranty, as such, annexed to a sale of goods, that the vendor has a title. The authorities in the books are not, however, very satisfactory upon the subject, but they lead to the conclusion, that the seller of goods is not responsible to the purchaser, if the latter be afterwards disturbed in the possession by a third person, the true owner, except in the following cases: —1st, if there be an express warranty; or, 2ndly, if there be a fraudulent misrepresentation or concealment by the vendor upon the subject (e).

In regard to an express warranty it need only be observed, that, if broken, an action of assumpsit, or an action on the case, is maintainable, although no knowledge on the part of the vendor of the want of title can be shown:-nor if such scienter be charged in the declaration, need it be proved (ƒ).

The case of Cross v. Gardner (g), proves that if the vendor be

(y) Oxendale v. Wetherell, 9 B. & C. 386; Mavor v. Pyne, 3 Bing. 285; Shipton v. Casson, 5 B. & C. 382, per Abbott, C. J.; 8 D. & R. 130, S. C.; see Champion v. Short, 1 Camp. 53; Bragg v. Cole, 6 Moor, 114; Waddington v. Oliver, 2 New R. 61; Walker v. Dixon, 2 Stark. R. 281; Hungerford v. Haviland, 3 Bulst. 325.

(z) Lorymer v. Smith, 1 B. & C. 1; 2 D. & R. 23, S. C.

(a) Post, 364,365, 369.

(b) Ff. 21, 2, 1; 2 Bla. C. 451. (c) Code Civil, bk. 3, tit. 6, sec. 3; or rather there is, by the French law,

an implied indemnity against actual eviction and its consequences; see id.

(d) As to warranty of title, on the sale of a freehold or leasehold interest, see ante, 247, 248; Early v. Garrett, 9 B. & C. 928.

(e) See Peto v. Blades, 5 Taunt. 657; Jones v. Bowden, 4 Taunt. 847.

(f) See Williamson v. Allison, 2 East, 446; Gresham v. Postam, 2 C. & P. 540.

(g) Carth. 90, 3 Mod. 261, 1 Show. 68, S. C., 1 Rol. Ab. 91, 1. 5; cited by Buller, J., in Pasley v. Freeman, 3 T. R. 57.

A A

in possession of the goods, and affirm that they are his property, an action lies against him, if the purchaser be evicted by a better title. The declaration was in case, and it charged that there was a colloquium between the parties concerning certain oxen then in the defendant's possession, and the sale of them; that the defendant then and there falsely and maliciously affirmed that the oxen were his proper goods, to which the plaintiff giving credit, bought them of defendant; whereas they were not his. property, and the plaintiff was compelled to give them up to the true owner, who recovered them by action, &c. It was moved in arrest of judgment, that the declaration was ill, because no warranty was laid, nor was it averred that the defendant knew that his assertion was false. But the Court decided, that the action was maintainable, according to Carthew's report. They said that the bare affirmation was enough; and that the plaintiff had no means to know to whom the property of these goods did belong, but only by the possession. This case seems to be maintainable, either upon the ground that the defendant's affirmation, under such circumstances, amounted to a warranty (h); or upon the ground that the assertion of such a fact not known to be true, s under such circumstances, as much a fraud or deceit in law, as an untrue affirmation of a fact known to be false (i).

In Medina v. Stoughton (k), Lord Holt is reported to have said, that where one having the possession of any personal chattel sells it, the bare affirming it to be his, amounts to a warranty, and an action lies on the affirmation; for his having possession is a colour of title, and perhaps no other title could be made out;

(h) And see post 358, 359.

(i) And see Adamson v. Jarvis, 4 Bing. 66, 73; 12 Moore, 241, 253, S. C., per Best, C. J. In Humphreys v. Pratt, House of Lords, 1831, MS., upon error from Ireland, it was decided that if a judgment creditor, who had issued a fieri facias, affirm to the sheriff, that certain goods belong to the defendant, and thereby induce the sheriff to take them in execution, and a third person, the real owner, thereupon recover the value from the sheriff, the latter may support an action on the case against the judgment creditor for his false affirmation; although it were not made fraudulently, or with know

ledge of its falsity. Lord Wynford referred to Adamson v. Jarvis; and said that a false assertion made by a party for his own benefit, of a fact not known to be true, gave a ground of action, if it induced another party to take a step to his prejudice. The same principle was acted upon in Polhill v. Walter, 3 B. & Ad. 114, which was an action on the case against a person, who, without fraud, had accepted a bill as agent for the drawee, but without the authority of the latter; per quod the plaintiff sued the drawee, and failed in his action.

(k) 1 Salk, 210; Lord Raym. 593, S. C.

aliter where the seller is out of possession, for there may be room to question the seller's title; and caveat emptor in such case to have either an express warranty, or a good title." This distinction seems, however, unfounded, and was disapproved of by Mr. Justice Buller, in Pasley v. Freeman (l), who observed it was not mentioned by Lord Raymond, in his report of the same case. So that the mere assertion of title, though the vendor be not at the time in possession, will, it seems, afford a right of action, if the vendor be not the owner.

There are express decisions that if there be no warranty or affirmation of title, or fraud, the vendee of goods has no remedy against the seller (m). And in Early v. Garrett (n), Mr. Justice Littledale said "It has been held that where a man sells a horse as his own, when in truth it is the horse of another, the purchaser cannot maintain an action against the seller, unless he can shew that the seller knew it to be the horse of the other at the time of the sale; the scienter or fraud being the gist of the action, where there is no warranty; for there the party takes upon himself the knowledge of the title to the horse, and of his qualities.'

Upon the subject of a warranty of title on the sale of goods, Mr. Justice Blackstone, observes (o), "In our law a purchaser of goods may have a satisfaction from the seller, if he sell them as his own; and the title prove deficient, without any express warranty for that purpose:"-and again (p), "In contracts for sales it is constantly understood, that the seller undertakes that the commodity he sells is his own; and if it prove otherwise an action on the case lies against him to recover damages for this deceit." It is difficult to perceive, that the learned commentator intended to advance the doctrine, that there was a liability, although no express warranty, or affirmation, or any deceit could be proved (g).