Sect. 32.

Effect of

carrier.

(2.) Unless otherwise authorised 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,1 or may hold the seller responsible in damages.

(3.) Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit, under circumstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their sea transit, and, if the seller fails to do so, the goods shall be deemed to be at his risk during such sea transit.

Sub-sect. (1.) The rule that delivery of goods to a carrier is primâ delivery to facie delivery to the buyer, passing to him the property and the risk, if they have not passed before, is the natural complement of the rule that primâ facie the proper place for delivery is the seller's abode, or the place where the goods are at the time of sale, ante, p. 64.

Seller's duty.

It is to be noted that, though the carrier is ordinarily the agent cf the buyer to receive the goods, he is not his agent to accept them; 2 and this is reasonable, for he cannot judge whether the goods are in conformity with the contract or not; so, too, while the goods are in the hands of a carrier, as such they are liable to be stopped in transitu, post, p. 86; and of course they may be delivered to the carrier on such terms as to make him the seller's agent, ante, p. 48. When goods are sent "carriage forward" it is strong evidence that the delivery to the carrier was intended as a delivery to the buyer.

Sub-sect. (2.) "Delivery of goods to a carrier or wharfinger," says Lord Ellenborough, "with due care and diligence is sufficient to

1 Bing N. C. 671 (ship); Ex p. Pearson (1868), L. R. 3 Ch. App. 443 (railway); Bell on Sale (Scotland), p. 86.

1 Clarke v. Hutchins (1811), 14 East, 475; Buckman v. Levi (1813), 3 Camp. 414; Indian Contract Act, 1872, § 91; Story on Sale, § 305.

2 Hanson v. Armitage (1822), 5 B. & Ald. 557; Norman v. Phillips (1845), 14 M. & W. 277; Meredith v. Meigh (1853), 2 E. & B. 364.

Sect. 32.

charge the purchaser, but he has a right to require that in making this delivery due care and diligence shall be exercised by the seller." 1 Sub-sect. (3.) As regards goods sent by sea, Mr. Bell, summing up Sea transit. the Scotch cases, says: "In delivering goods on ship-board, the seller is bound not only to charge the ship-master or shipping company with them effectually, but, though not bound to insure, he must give such notice as to enable the buyer to insure." 2 There appears to be no English decision in point, but the Scotch rule is good sense and has been adopted by the Act. Where goods are forwarded by sea by an agent to his principal, it seems to be the duty of the agent to insure, in the absence of any different agreement or course of dealing.3

33. Where the seller of goods agrees to deliver them, at his own risk, at a place other than that where they are when sold, the buyer must, nevertheless, unless otherwise agreed, take any risk of deterioration in the goods necessarily incident to the course of transit.4

"A manufacturer," says Alderson, B., "who contracts to deliver a manufactured article at a distant place, must indeed stand the risk of any extraordinary or unusual deterioration; but the vendee is bound to accept the article if only deteriorated to the extent that it is necessarily subject to in its course of transit from the one place to the other." There appeared to be no reason for confining the rule to the case of a manufacturer, nor is it inconsistent with the case of Beer v. Walker, where the buyer was held entitled to reject rabbits which arrived in Brighton in an unsaleable condition, though they were saleable when sent off from London. In the case of goods such as rabbits, they are not really merchantable when sent off by the seller unless they are in such condition as to continue saleable for a reasonable time. As to negativing implied terms, see sect. 55.

Risk where delivered goods are

at distant

place.

34-(1.) Where goods are delivered to the buyer, Buyer's which he has not previously examined, he is not deemed right of to have accepted them unless and until he has had a the goods.

1 Buckman v. Levi (1813), 3 Camp. 414.

2 Law of Sale, p. 89.

3 Smith v. Lascelles (1788), 1 R. R. 457. As to general duty of agent to insure, see Arnould, Mar. Ins., 6th ed., p. 168.

4 Bull v. Robinson (1854), 10 Exch. 342; 24 L. J. Ex. 165; Benjamin on Sale, 4th ed., p. 656.

5 Bull v. Robinson (1854), 10 Exch., at p. 316 (hoop-iron sent by canal). 6 Beer v. Walker (1877), 46 L. J. C. P. 677.

examining

Sect. 34.

Accept

ance.

reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.1

(2.) Unless otherwise agreed,2 when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.

3

"Suppose," says Lord Bramwell, "I order a certain quantity of lime to be taken to a farm, and I am not there to object, and nobody else is there to object to it, I shall not be at liberty afterwards to say: 'Those goods have not been accepted and received by me;' they have been, as much as it was possible, unless I had chosen to be there to make objection. So, on the other hand, if I go to a shop for an article I have previously ordered, and it is delivered to me, wrapped up, though I cannot see what it is, there cannot be the slighest question that I have received and accepted the goods, if they turn out to be in conformity with the order; yet nobody can say that I shall not have a right to object to them afterwards, if they are not in conformity with the contract." 4 As to negativing implied terms, see sect. 55, post, p. 108.

Where goods are bought by sample, the place of delivery is primâ facie the place of examination.5

35. The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him,

1 Lorymer v. Smith (1822), 1 B. & C. 1; Toulmin v. Hedley (1845), 2 C. & K. 157, see p. 160; cf. Hunt v. Hecht (1853), 8 Exch. 814, at p. 817; Heilbutt v. Hickson (1872), L. R. 7 C. P. 438, at p. 456, per Brett, J. As to waiver of inspection, see Castle v. Sworder (1861), 30 L. J. Ex., at p. 312.

2 Pettitt v. Mitchell (1842), 4 M. & Gr. 819.

3 Isherwood v. Whitmore (1843), 11 M. & W. 347, see at p. 350, and S.C. on demurrer, 10 M. & W. 757 (goods in closed casks). Cf. Startup

v. Macdonald (1845), 6 M. & Gr., at p. 610, per Rolfe, B.

4 Castle v. Suorder (1860), 29 L. J. Ex. 235, at p. 238. See S.C. 30 L. J. Ex., at p. 312, Ex. Ch.

5 Perkins v. Bell (1893), 1 Q. B. 193, C. A. (barley bought by sample). Saunders v. Topp (1849), 4 Exch. 390, 18 L. Ex. 374.

1

and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.2

The question of acceptance is only material where there is a right to reject. Most of the numerous decisions relating to acceptance have arisen on the construction of the Statute of Frauds.3 They must be looked at critically, because it is now well settled that there may be an acceptance within the meaning of that statute, which is not an acceptance in performance of the contract. For the purposes of the statute (now reproduced in sect. 4 of the Act, ante, p. 14), any dealing with the goods which recognises a pre-existing contract of sale is an acceptance; but such an acceptance may not be finally binding on the buyer, precluding him from rejecting the goods. For example, " the purchaser has [may have] a right to object that the bulk does not correspond with the sample after acceptance within the Statute of Frauds." 5

The right of rejecting goods as not being in conformity with the contract appears to be larger in Scotland than in England. It seems that in Scotland a buyer may reject goods which he has accepted if he do so "timeously," whereas in England he could only do so if the contract contained what the continental lawyers call a "resolutive condition." G

Sect. 35.

Goods may, of course, by arrangement, be accepted conditionally Conditional and the acceptance may in such case be withdrawn on failure of the acceptance. condition. A re-sale by the buyer is strong evidence of acceptance, but may not be conclusive.

1 Parker v. Palmer (1821), 4 B. & Ald. 387; Chapman v. Morton (1843), 11 M. & W. 534; Harnor v. Groves (1855), 15 C. B. 667.

2 Sanders v. Jameson (1848), 2 C. & K. 557; Heilbutt v. Hickson (1872),

L. R. 7 C. P., at pp. 451, 452, reviewing the cases. See, too, the cases on sale or return," ante, p. 41.

66

9 See Benjamin on Sale, 4th ed., pp. 134-169.

4 Page v. Morgan (1885), 15 Q. B. D. 228, C. A.; Benjamin on Sale, 4th ed., pp. 140-150.

5 Morton v. Tibbett (1850), 15 Q. B., at

p. 431.

6 Couston v. Chapman (1872), L. R. 2 Sc. App., at p. 254. For resolutive conditions, see Lamond v. Davall (1847), 9 Q. B. 1030; Head v. Tattersall (1871), L. R. 7 Ex. 7.

Lucy v. Mouflet (1860), 29 L. J. Ex. 110; Heilbutt v. Hickson (1872), L. R. 7 C. P. 438.

Sect. 36.

Buyer not

bound to return rejected goods.

36. Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them.1

The buyer, says Lord Esher, may return the goods, or offer to return them, if not according to contract; but it is sufficient to signify his rejection of them by stating that they are not according to contract, and that they are at the vendor's risk. No particular form is essential. It is sufficient if he does any unequivocal act shewing that he rejects them.2

Liability of 37. When the seller is ready and willing to deliver buyer for the goods, and requests the buyer to take delivery, and neglecting or refusing the buyer does not within a reasonable time after such delivery of goods. request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods. Provided that nothing in this section shall affect the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.*

Conversely, if the seller is in default in making delivery, and the buyer, notwithstanding the delay, accepts the goods, he may recover damages for any loss occasioned by the delay, post, p. 101.

When the seller holds the goods in the exercise of his right of lien, he cannot charge for expenses of keeping them, post, p. 80.

1 Grimoldby v. Wells (1875), L. R. 10 C. P. 391; Benjamin on Sale, 4th ed., p. 649; as to the place of rejection, see Heilbutt v. Hickson (1872), L. R. 7 C. P. 438, at p. 456, per Brett, J.

2

Grimoldby v. Wells (1875), L. R. 10 C. P., at p. 395, per Brett, J.

3 Greaves v. Ashlin (1813), 3 Camp. 425; cf. Bloxam v. Sanders (1825), 4 B. & C. 941, at p. 950; Mayne on Damages, 4th ed., p. 165. As to the converse case, where the buyer properly rejects goods and the seller refuses to take them back, see Caswell v. Coare (1809), 1 Taunt. 566; Chesterman v. Lamb (1834), 2 A. & E. 129.

4

Cf. Mersey Steel Co. v. Naylor & Co. (1884), 9 App. Cas., at p. 443.