his behalf;1 provided that nothing in this section shall affect the operation of the issue or transfer of any document of title to goods.2 (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. (5.) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller. See "delivery" defined by sect. 62, post, p. 114, and "specific goods," post, p. 119, and "deliverable state," post, p. 122. As to negativing implied terms, see sect. 55, post, p. 108. Sect. 29. The delivery of the key of the place where the goods are may, by Key. agreement, operate as a delivery of the goods.4 Sub-sect. (1.) This sub-section was much considered and several Place of times altered in Committee. The first part deals incidentally with delivery. the mode of delivery, and the second part with the place of delivery. As regards mode of delivery there was very little authority, but the assumed rule was, that it was for the buyer to take delivery, and that in the absence of any different agreement, the duty of the seller to deliver was satisfied by his affording to the buyer reasonable facilities for taking possession of the goods at the agreed place of delivery. It seems a pity that a more definite primâ facie rule has not been laid down by the Act. As regards place of delivery, there was no authority in point, and 1 Farina v. Home (1846), 16 M. & W. 119 (see at p. 123); Godts v. Rose (1855), 17 C. B. 229; 25 L. J. C. P. 61; Buddle v. Green (1857), 27 L. J. Ex. 33; Pollock on Possession, p. 73. 2 See the Bills of Lading Act, 1855 (18 & 19 Vict. c. 111), post, p. 156; and the Factors Act, 1889, post, p. 124; and sects. 25 and 47. 3 Startup v. Macdonald (1843), 6 M. & Gr. 593 Ex. Ch. Ellis v. Hunt (1789), 3 T. R. 464; Chaplin v. Rogers (1800), 1 East, 192; Elmore v. Stone (1809), 1 Taunt. 458; cf. Ancona v. Rogers (1876), 1 Ex. D. 285, at p. 290, C. A. See Milgate v. Kebble (1841), 3 M. & Gr. 100 (delivery of key not delivery of goods); and see the whole question of so-called symbolic delivery discussed in Pollock on Possession, pp. 61– 70; cf. French Civil Code, art. 1606; and see post, p. 115. 5 Cf. Wood v. Tassell (1844), 6 Q. B. 234; Smith v. Chance (1822), 2 B. & Ald., at p. 755; Salter v. Woollams (1841), 2 M. & Gr. 650, as explained, Benjamin on Sale, 4th ed., p. 683. F Sect. 29. text writers seem to have followed Pothier, who says, "S'il n'y a point de lieu exprimé, la livraison doit se faire au lieu où est la chose; c'est à l'acheteur de l'envoyer chercher." 1 The Act adopts a rule which is more in accordance with ordinary practice, and which in substance is the rule laid down by Art. 342 of the German Commercial Code. Delivery as required. Goods in possession of third person. Hours for delivery. Sub-sect. (2.) In a contract for goods to be delivered "as required," the buyer must require delivery within a reasonable time, but the seller cannot rescind the contract on the ground of delay without giving the buyer notice. "No doubt," says Pollock, C.B., "where a contract is silent as to time, the law implies that it is to be performed within a reasonable time; but there is another maxim of law, viz., that every reasonable condition is also implied, and it seems to me reasonable that the party who seeks to put an end to a contract, because the other party has not, within a reasonable time, required him to deliver the goods, should in the first instance inquire of the latter whether he means to have them." 2 Sub-sect. (3.) As regards documents of title, the common law drew a hard and fast distinction between bills of lading and other documents. The lawful transfer of a bill of lading was always held to operate as a delivery of the goods themselves, because, while goods were at sea they could not be otherwise dealt with.3 But the transfer of a delivery order or dock warrant operated only as a token of authority to take possession, and not as a transfer of possession; 4 and, as between immediate parties, there is nothing to modify the common law rule. If, however, a buyer or mercantile agent, who is lawfully in possession of any document of title to goods, transfers it for value to a third person, the original seller's rights of lien and stoppage in transitu are thereby defeated (see Factors Act, 1889, post, p. 124, and sects. 25 and 47 of this Act). Sub-sect. (4.) This sub-section alters the law in so far as it makes the question what is a reasonable hour a question of fact. It was formerly a question of law, and some highly technical rules for determining it were laid down by Lord Wensleydale.5 1 Contrat de Vente, No. 52; and see French Civil Code, art. 1609. 2 Jones v. Gibbons (1853), 8 Exch. 920, at p. 922. As to when law will imply a condition not expressed, see The Moorcock (1899), 14 P. D., at p. 68, per Bowen, L.J. 3 Sanders v. Maclean (1883), 11 Q. B. D., at p. 341, per Bowen, L.J., and notes to Lickbarrow v. Mason, 1 Smith Lead. Cas., 9th ed., p. 737. Blackburn on Sale, p. 302; M'Ewan v. Smith (1849), 2 H. L. Cas. 309. 5 Startup v. Macdonald (1843), 6 M. & Gr. 593 Ex. Ch. Sub-sect. (5.) This is declaratory. "There is no implied contract," says Story, "that the vendee shall pay the vendor for any services in relation to the property rendered previous to the completion of the sale by delivery." 1 The rule seems a general one. By art. 1608 of the French Civil Code, "Les frais de la délivrance sont à la charge du vendeur, et ceux de l'enlèvement à la charge de l'acheteur, s'il n'y a eu stipulation contraire." Sect. 29. Expenses of delivery. wrong quantity. 30.-(1.) Where the seller delivers to the buyer a Delivery of quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts the goods so delivered he must pay for them at the contract rate.2 (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.1 (4.) The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties. As the seller does not fulfil his contract by delivering a less quantity than he contracted to sell, so, conversely, "if a man contracts 1 Story on Sale, § 297a. 2 Shipton v. Casson (1826), 5 B. & C. 378, at p. 382 (bark); Oxendale v. Wetherell (1829), 4 Man & Ry. 429 (250 bushels of wheat), approved, Colonial Ins. Co. v. Adelaide Ins. Co. (1886), 12 App. Cas., at p. 138; Morgan v. Gath (1865), 34 L. J. Ex. 165 (500 piculs China cotton). 3 Hart v. Mills (1846), 15 M. & W. 85 (two dozen of port); Cunliffe v. Harrison (1851), 6 Exch. 903; 20 L. J. Ex. 325 (claret); cf. Dixon v. Fletcher (1837), 3 M. & W. 146 (cotton), and cases in next note. 4 Cf. Levy v. Green (1859), 28 L. J. Q. B. 319, Ex. Ch.; cf. Nicholson v. Bradfield Union (1866), L. R. 1 Q. B., at pp. 624, 625, per Ld. Blackburn. Sect. 30. Instalment deliveries. to buy 150 quarters of wheat, he is not at liberty to call for a small portion without being prepared to receive the whole quantity," 1 unless, of course, he has stipulated for so doing. When the seller delivers a larger quantity of goods than was ordered, such delivery operates as a proposal for a new contract.2 This, presumably, is the effect of any tender of goods which are not in conformity with the contract. When the seller is uncertain as to the exact amount he can deliver, he may protect himself by using such terms as "about" so many tons, or so many tons "more or less," and he is then allowed a reasonable margin.3 Sub-sect. (3) was amended in Committee. 31.-(1.) Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalments.1 (2.) Where there is a contract for the sale of goods to be delivered by stated instalments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is a question in each case depending on the terms of the contract, and the circumstances of the case, whether the breach of contract is a repudiation of the whole contract, or whether it is a severable breach giving rise to a claim for compensation, but not to a right to treat the whole contract as repudiated.5 Sub-sect. (1.) "Suppose," says Lord Bramwell, "a man orders a suit of clothes, the price being £7; £4 for the coat, £2 for the trousers, and £1 for the waistcoat, can he be made to take the coat only, whether 1 Kingdom v. Cox (1848), 5 C. B. 522, at p. 526, per Wilde, C.J. (iron girders). 2 Cunliffe v. Harrison (1851), 6 Exch., at p. 906, per Parke, B. (10 hogsheads of claret). 3 Cockerell v. Aucompte (1857), 26 L. J. C. P. 194; McConnell v. Murphy (1873). L.R. 5 P. C. 203 (pine spars). As to importing such a term by usage, see Moore v. Campbell (1854), 10 Exch. 323; 23 L. J. Ex. 310 (100 tons of hemp); and see p. 178. + Reuter v. Sala (1879), 4 C. P. D. 239, C. A. (25 tons of pepper). Nor can he demand it; see note to last section. 5 Mersey Steel & Iron Co. v. Naylor & Co. (1884), 9 App. Cas. 434. they were all to be delivered together, or the trousers and waistcoat Sect. 31. Sub-sect. (2.) It is very difficult to reconcile the decisions in which it has been held that the refusal to deliver, accept, or pay for a particular instalment, is a breach going to the root of the contract 3 with those in which the contrary has been held. But the true principle is that each case must be judged on its own merits. "The rule of law," says Lord Blackburn, "is that where there is a contract in which there are two parties, each side having to do something, if you see that the failure to perform one part of it goes to the root of the contract, it is a good defence to say, 'I am not going on to perform my part of it when that which is the root of the whole and the substantial consideration for my performance is defeated by your misconduct.'” 5 32.—(1.) Where, in pursuance of a contract of sale, Delivery to the seller is authorised 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 primâ facie deemed to be a delivery of the goods to the buyer. 1 Honck v. Muller (1881), 7 Q. B. D. 92, at p. 99, C. A. 2 Colonial Ins. Co. of New Zealand v. Adelaide Ins. Co. (1886), 12 App Cas., at pp. 138, 139, P. C. 3 See Withers v. Reynolds (1831), 2 B. & Ad. 882; Hoare v. Rennie (1859), 29 L. J. Ex. 73; Honck v. Muller (1881), 7 Q. B. D. 92, C. A. See Jonassohn v. Young (1863), 32 L. J. Q. B. 385; Simpson v. Crippin (1872), L. R. 8 Q. B. 14; Freeth v. Burr (1874), L. R. 9 C. P. 208. 5 Mersey Steel Co. v. Naylor & Co. (1854), 9 App. Cas., at p. 443; and see per Jessel, M.R., in court below, 9 Q. B. D., at p. 657 (5000 tons of steel). 6 For statement of principle, see Wait v. Baker (1848), 2 Exch. 1, at p. 7, per Parke, B.; Dunlop v. Lambert (1839), 6 Cl. & F. 600, at p. 620, per Ld. Cottenham; Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B., at p. 328, per Blackburn, J., cited post, p. 188. For illustrations, see Dutton v. Solomonson (1803), 3 B. & P. 582 (carrier by land); Bryans v. Nix (1839), 4 M. & W. 775 (canal-boat); Alexander v. Gardner (1835), carrier. |