Sect. 29.

RULES AS TO
DELIVERY.

29.-(1.) Whether it is for the buyer to take possession (a) 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: Provided that, 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.

(2.) 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.

(9)

(3.) Where the goods at the time of sale are in the possession of a third person, there is no delivery by seller to buyer unless and until such third person acknowledges to the buyer that he holds the goods on his behalf; provided that nothing in this section shall affect the operation of the issue or transfer of any document of title to goods.

(4.) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour.

is a reasonable hour is a question of fact.

What

(5.) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller.

(a) "Possession." Defined in Factors Act 1889, Sect. 1 (2). See Appendix I. post, p. 297.

(b)"Seller," "buyer." Defined Sect. 62 (1).

(c) "Express or implied." See Sect. 55. As to the interpretation of an express contract regarding delivery, see Haig v. Napier 1 (1813). An express contract as to time is often so worded as to involve questions of difficulty. The following words (among many others) have been legally interpreted: "directly," 2 "forthwith," 3 "as required," "as soon as possible."5 A list of such words will be found in Chalmers' Sale of Goods Act, Notes, p. 176.

(d) "Delivery," "specific goods." Defined Sect. 62 (1). See Sects. 1 and 62 (1).

(e) "Contract of sale.'

(f)"A reasonable time is a question of fact." Sect. 56. See Coм. infra, p. 261.

(g) Such as a carrier or warehouse-keeper.

(h) Acknowledgment by third party. This alters the law of Scotland. See COM., Sect. 18 ante, p. 92.

(i) "Document of title to goods" has the same meaning as it has in the Factors Acts [Sect. 62 (1)]. For text of the Factors Acts, see Appendix I. post, pp. 296, 302. The general effect of documents of title is referred to COM., Sect. 25 ante, p. 125. (j) "Deliverable state." See Sect. 62 (4).

COMMENTARY.

The word " delivery" in this section is not used in the Meaning of sense sometimes attributed to it, as where the property has "delivery.” passed and the seller holds as bailee or custodier for the buyer. In English law the seller may maintain an action against the buyer for the price of "goods sold and delivered," although the goods have never left the actual custody of the seller. This Act does not adopt the technical and

11 Dow 255.

2 Duncan v. Topham (1849), 8 C. B. 225.

3 Staunton v. Wood (1851), 16 Q.B. 638; Roberts v. Brett (1865), 11 H. L. 337.

Jones v. Gibbons (1853), 8 Ex. 920.

5 Hydraulic Engineering Co. v. M'Haffie (1878), 4 Q.B.D. 670.

6 As to the different meanings of "delivery,' see Benjamin, pp. 677 and 768.

Sect. 29.

Sub-sect. (1).

Sub-sect. (2).

customary title of such an action, but merely calls it an "action for the price " [Sect. 49 (1)]. See note, Sect. 62 (1) post, p. 284.

Sub-sect. (1). This sub-section was several times altered in committee. It deals with the mode and place of delivery, but, in regard to the mode, it lays down no rule apart from contract. The rule as to place is that of the German Commercial Code,' which, however, does not materially differ from that of other countries.2 It is substantially the rule previously assumed as the law of England.3 But, previous to the Act, there does not appear to have been any definite rule in regard to goods which, in the knowledge of the parties, are in “some other place." This case is now regulated by the proviso attached to the sub-section.

6

Sub-sect. (2)."Where no time is specified for the execution of a commission, a reasonable discretion is allowed." 4 What is a reasonable time will depend on the circumstances.5 Thus in Philips v. Blair and Martin (1801) the House of Lords (reversing the Court of Session) held that where no time was fixed for delivery, three months. was unreasonable, and in Robb v. Cruikshank (1840) ten days was deemed unreasonable in a cash transaction.8 On the other hand, in Forbes v. Campbell (1885) the purchaser of a vessel was not permitted to resile from the contract merely because the seller was unable to tender a valid title as executor of his father until a month had elapsed, and in Taylors v. Maclellans 10 (1891) a contract

1 Art. 342.

9

2 Pothier, Vente, No. 52; French Civil Code, Art. 1609; Benjamin, p. 684; Kent's Com., 12th ed. ii. 505; Indian Contract Act 1872, Sect. 94; Bell on Sale, p. 94; M. P. Brown on Sale, p. 209.

3In the absence of a contrary agreement, the seller is not bound to send or convey the goods to the buyer. He does all that he is bound to do by leaving or placing the goods at the buyer's disposal, so that the latter may remove them without lawful obstruction."-Benjamin, p. 682.

4 Cooper v. Green and Chatto (1791), Mor. 10100.

It is a question of fact and not of law (see Sect. 56).

6 4 Pat. App. 256.

7 2 D. 988.

8 "The word 'cash' is very important. It subjected the buyer to prompt and instant payment, and it implied that he was entitled to immediate delivery."-Per Lord Gillies, 2 D. at p. 992.

9 12 Ret. 1065.

10 19 Ret. 10.

to furnish ironwork as required for a building, was held not Sect. 29. rescinded by delay resulting from strikes and other exceptional causes. The principles regulating such cases “are as old as the law of contract. When a contract does not expressly, or by necessary implication, fix any time for the performance of a contractual obligation, the law implies that it shall be performed within a reasonable time. The rule is of universal application . . . and has invariably been held to mean that the party upon whom it is incumbent duly fulfils his obligation, notwithstanding protracted delay, so long as that delay is attributable to causes beyond his control." 1 The seller must also be reasonable in regard to the relative duties of the buyer. Thus, where under a contract, goods are to be delivered "as required," the seller cannot rescind because of the buyer's delay in requiring

delivery, without first giving him reasonable notice.2

Sub-sect. (3). The law of Scotland seems to have Sub-sect. (3). been satisfied with intimation to the custodier, without

acknowledgment by him. The subject has been already referred to in another connection.3

Sub-sect. (4).-What is a reasonable hour was formerly Sub-sect. (4). matter of law; now it is a question of fact.

4

Sub-sect. (5).—"The vendor is bound at his own Sub-sect. (5).

1 Per Lord Watson in Hick v. Raymond and Reid [1893], A. C. 22 at Sp. 32. 2 Jones v. Gibbons (1853), 8 Ex. 920, per Pollock, C. B. at p. 922.

3 COм., Sect. 18 ante, p. 92. "In the ordinary case where goods in the hands of a storekeeper are sold by the owner, and a delivery order is given by him to the buyer, the intimation of the delivery order by the buyer to the storekeeper operates constructive delivery, and from that moment constitutes the storekeeper custodier, or holder for the buyer, just as before, he was custodier or holder for the seller."-Per Lord President Inglis in Black v. Incorporation of Bakers (1867), 6 Macp. 136 at p. 141. "I have no doubt that the delivery order, with due notice to the custodier, is good constructive delivery."-Per Lord Ardmillan, 6 Macp. at p. 144. See also Eadie v. Mac

kinlay (7th February 1815), F.C.; Laurie v. Black (1831), 10 Sh. 1; Connal and Co. v. Loder (1868), 6 Macp. 1095; Bell's Com. i. 195, and M'Laren's note. As to the law of England see Wood v. Manley (1834), 11 A. & E. 34 ; Salter v. Woolams (1841), 2 M. & G. 650; Wood v. Tassell (1844), 6 Q. B. 234; Buddle v. Green (1857), 27 L.J. Ex. 33.

4 Startup v. Macdonald (1843), 6 M. & Gr. 593. In this case the jury had found as a matter of fact that a tender of a quantity of oil at half-past eight o'clock on a Saturday night was unreasonable. The Court held that such a question should not have been left to the jury, but was a matter of law to be determined by the Court, and that in law the hour was reasonable. The sub-section alters this rule.

Sect. 29.

expense to take the steps necessary for implementing his obligation to deliver." Strange to say, there is no direct authority on this subject in the common law of England, and an American case is cited by Benjamin.2 Where the goods are to be shipped "free on board" the seller must bear the expenses of shipment.3 Where a document of title is given or tendered as delivery, it must be free from lien or charges in favour of the custodier of the goods, and in any case, in the absence of contrary agreement, the seller is bound to free the goods from such charges and encumbrances.+

Sect. 30.

DELIVERY OF

WRONG
QUANTITY.

30.-(1.) Where the seller delivers to the buyer a 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.

(c)

(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 (c) 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. (a)

(e)

(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 goods which are in accord

the buyer may accept

1 M. P. Brown on Sale, p. 200. See also Bell on Sale, p. 79; Story on Sale, Sect. 297a; French Civil Code, Art. 1608. The illustrations of the law of Scotland, cited by M. P. Brown, relate exclusively to heritage.

2 Cole v. Kew (1848), 20 Verm. 21.-Benjamin, p. 707. But see Playford v. Mercer (1870), 22 L.T. N.S. 41.

3 Stock v. Inglis (1884), 12 Q.B.D. 564, per Brett, M.R., at p. 573; Affd. (1885), 10 App. Ca. 263.

Sect. 12 (3). See Playford v. Mercer (1870), 22 L.T. N.S. 41.