defendants, and were their property, and that they are liable to repay to the plaintiffs the whole of the price paid for those shoes."

66

See also the judgment of Brett, J. In Grimoldby v. Wells the latter judge referred to the former case and explained his judgment, "it was as if the inspection were by the contract to take place at Lille." He also said 3: He may in fact return them, or offer to return them; but it is sufficient, I think, and the more usual course is, to signify his rejection of them by stating that the goods are not according to contract, and they are at the vendor's risk. No particular form is essential; it is sufficient if he does any unequivocal act showing that he rejects them." Lord Chelmsford's judgment in Couston v. Chapman * (wine sold by auction by sample) which seemed to indicate that the goods ought to be returned or placed in neutral custody, was explained. The words of this section are taken from Grimoldby v. Wells.5 See also Lucy v. Mouflet.5

buyer for

refusing de

37. When the seller is ready and willing to Liability of deliver the goods, and requests the buyer to take neglecting or delivery, and the buyer does not within a reason- livery of goods. able time after such 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

1 L. R. 10 C. P. 391; 44 L. J. C. P. 203; 32 L. T. 490; 23 W. R. 524.

where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.

"If the buyer does not carry away the goods bought within a reasonable time, the seller may charge him warehouse room; or he may bring an action for not removing them, should he be prejudiced by the delay. But the buyer's neglect does not put an end to the contract:" Lord Ellenborough in Greaves v. Ashlin1 (50 quarters oats, resold by vendor).

13 Camp. 426. [1813.]

99

PART IV.

RIGHTS OF UNPAID SELLER AGAINST THE GOODS.

defined.

38. (1.) The seller of goods is deemed to be Unpaid seller an "unpaid seller" within the meaning of this Act

(a.) When the whole of the price has not been paid or tendered;

Note." The sale of a specific chattel on credit, though that credit may be limited to a definite period, transfers the property in the goods to the vendee, giving the vendor a right of action for the price, and a lien upon the goods, if they remain in his possession till that price be paid : Lord Denman, C.J., in Martindale v. Smith1 (6 stacks of oats). See section 18, rule 1.

the whole of the price.-Mellish, L.J., in giving the judgment of the Court of Appeal, in Ex parte Chalmers,2 said, . . when the purchaser becomes insolvent . the seller, notwithstanding he may have agreed to allow credit for the goods, is not bound to deliver any more goods under the contract until the price of the goods not yet delivered is tendered to him; and if a debt is due to him for goods already delivered, he is entitled to refuse to deliver any more till he is paid the debt due for those already delivered, as well as the price of those still to be delivered."

1 1 Q. B. 389, 395; 1 G. & D. 1; 1 Q. B. 389; 5 Jur. 932. [1841.] 2 L. R. 8 Ch. 289, 291; 42 L. J. Bk. 37; 28 L. T. 325; 21 W. R. 349. [1873.]

(b.) When a bill of exchange or other negoti able instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise.

(2.) In this part of this Act the term "seller includes any person who is in the position of a seller, as, for instance, an agent of the seller to whom the bill of lading has been indorsed, or a consignor or agent who has himself paid, or is directly responsible for, the price.

(b.) bill of exchange. The giving of acceptances in pursuance of a contract is not an absolute payment, but conditional on the acceptance being met; upon the insolvency of the acceptors the vendor's lien on the goods revives the fact that the vendors have negotiated the bill makes no difference: Gunn v. Bolckow1 (iron rails: payment by acceptances). See also Dixon v. Yates 2 (46 puncheons rum), section 42, post, &c.

(2.) "seller."-In Cassaboglou v. Gibbs (wrong kind of opium), which seems to be now so far overridden, it was held that the relation between principal and agent was not changed to that between buyer and seller, merely because the latter had himself paid or made himself responsible for the price. See Blackburn on Sale, p. 214, and Ireland v. Livingstone.

In that case Lord Black

effect of the transaction

L. R. 10 Ch. 491; 44 L. J. Ch. 732; 32 L. T. 781; 23 W. R.

739. [1875.]

2 5 B. & Ad. 313; 2 N. & M. 177. [1833.]

3 11 Q. B. D. 797; 52 L. J. Q. B. 538; 48 L. T. 850; 32 W. R. 138.

[1883.]

+ L. R. 5 H. L. 395; 41 L. J. Q. B. 201; 27 L. T. 79. [1872.]

5 L. R. 5 H. L. at p. 409.

between the commission merchant, and the consignee, who has given him the order, is a contract of sale passing the property from the one to the other; and consequently the commission merchant is a vendor, and has the right of one as to stoppage in transitu." See also the Bills of Lading Act, 1855.1 (Appendix, p. 161.)

See Feise v. Wray, and a long list of subsequent decisions given in Benjamin on Sale, 4th ed., p. 844.

rights.

39.-(1.) Subject to the provisions of this Act, Unpaid seller". and of any statute in that behalf, notwithstanding

that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such, has by implication of law

(a.) A lien on the goods or right to retain them for the price while he is in possession of them;

Note.-lien. "The buyer's right in respect of the price is not a mere lien which he will forfeit if he parts with the possession, but grows out of his original ownership and dominion, and payment or a tender of the price is a condition precedent on the buyer's part, and until he makes such payment or tender he has no right to the possession : Bayley, J., in Bloxam v. Saunders (hops resold by vendor). See section 41, (1) (a.), post.

3

in possession.—The lien remains, even if the goods have been sold by the purchaser to a sub-purchaser, unless the character of his possession has changed by his doing some act to show he holds as warehouseman for a sub-vendee: Blackburn on Sale, 1845 edition, p. 224. In Dixon v. Yates (46 puncheons of rum), Parke, B., said, "... every vendor has a lien until he is paid. It is

4