Lord Ellenborough, C. J., in Ritchie v. Atkinson (a), in 1808, where the question was, whether the delivery of a complete cargo was a condition precedent to the right to recover freight, a short cargo having been delivered, said: "that depends, not on any formal arrangement of the words, "but on the reason and sense of the thing, as it is to be col"lected from the whole contract: . . . The rule was well "laid down by Lord Mansfield in Boone v. Eyre (b), that "where mutual covenants go to the whole of the considera"tion on both sides, they are mutual conditions, the one pre"cedent to the other; but where the covenants go only to a “part, there a remedy lies on the covenant to recover "damages for the breach of it; but it is not a condition. "precedent."

Bramwell, B., in Roberts v. Brett (c), in 1859, said: "Wherever the obvious good sense of the thing makes the "performance of an act a condition precedent, it ought to be "so construed. . . . The rules laid down in the notes to "Pordage v. Cole (d) are very excellent guides, but not arbi"trary tests." And Jervis, C. J., in the same case, said (e): "Where, on the whole, it is apparent that the intention is, "that that which is to be done first is not to depend upon "the performance of the thing that is to be done afterwards, "the parties are relying on their remedy, and not on the per"formance of the condition; but, where you plainly see "that it is their intention to rely on the condition, and not on the remedy, the performance of the thing is a condition "precedent."

Where there is a condition precedent to the duty of either party to do some act, it is a good defence to an action for not doing that act to say that the condition precedent has not happened or been performed. But that defence is no longer available if the party wishing to set it up has waived his

(a) Ritchie v. Atkinson, 10 East, 306.

(b) Boone v. Eyre, 6 T. R. 573.
(c) Roberts v. Brett, 6 C. B. N. S. 633.
(d) Pordage v. Cole, 1 Will. Saunders, 548.
(e) 18 C. B. 573.

right to insist upon the performance of it, as, for example, where, after the time when the condition ought to have been performed, he accepts any benefit under the contract. As where goods on sale or return are kept an unreasonable time. In cases where there was a condition precedent, it may often happen that, although the unperformed condition cannot be made available as a defence to the action, yet it it may be treated as a warranty, for the breach of which a cross-action or counterclaim for damages might lie; but this is not invariably the case. To take Mr. Justice Blackburn's example in The Calcutta Co. v. De Mattos (a), the parties may agree that the price shall be payable only on the contingency of the goods arriving, or should not be payable unless a particular tree fall, but without any contract on the seller's part to procure the goods to arrive, or to cause the tree to fall. This branch of the subject will be treated at greater length in the chapter on the remedies of the parties (b).

Among the following cases will be found examples of conditions precedent, such as frequently occur, or are to be implied by law, in contracts of sale.

The cases will be considered in the following order :1st. As to payment; 2nd. As to quality and condition; 3rd. As to quantity; 4th. As to time; 5th. As to arrival and delivery; 6th. As to insurance and other conditions.

As to Payment (c).

In Key v. Cotesworth (d), in 1852, goods had been consigned by the plaintiffs to the defendants, and the bill of lading sent direct to them. At the same time a draft had been sent by the plaintiffs to their agents to be presented to the defendants for acceptance. The defendants obtained possession, but refused to accept, and the Court held that the passing of the property was not conditional on the acceptance.

(a) Calcutta Co. v. De Mattos, 32 L. J. Q. B. 322; 33 L. J. Q. B. 214.
(b) Post, p. 481.

(c) See post, p. 485.

(d) Key v. Cotesworth, 22 L. J. Ex. 4; 7 Ex. 595.

In Godts v. Rose (a), in 1855, the sale was of five tons of oil to be free delivered and paid for in fourteen days." The sale was not of any specific oil, but the seller, who had oil answering the description lying at a wharf, gave authority to the wharfinger to transfer certain casks into the defendant's, the buyer's, name; and then sent a clerk with a transfer order to the defendant, and instructed the clerk to exchange it for a cheque. The defendant, having got possession of the transfer order, refused to give a cheque. The clerk then returned to the wharfinger and ordered him not to deliver the oil; but, notwithstanding this, the wharfinger did deliver it to the defendant, and the plaintiff brought trover. The Court held that the property had not passed. Willes, J., said: "The buyer takes the transfer order, but declines to give "the cheque: he does not assent to the appropriation of the particular casks of oil as a fulfilment of the contract, upon "the terms upon which alone the seller was content to make "it" (b).

In Shepherd v. Harrison (c), in the House of Lords, in 1871, the plaintiff, who was a merchant in Manchester, instructed Paton, Nash and Co., of Pernambuco, to purchase for him cotton not exceeding 1,000 bales. For the purpose of carrying out the contract, Paton, Nash and Co. purchased 747 bales and consigned 547 of them to Liverpool, sending the bills of lading for the 547 bales, together with two bills drawn on the plaintiff, to their Liverpool correspondents, G. Paton and Co., by whom they were handed to the plaintiff, who accepted the bills and paid them at maturity. Paton, Nash and Co. subsequently shipped the remaining 200 bales in respect of which this case arose on board the defendants' ship, the Olinda, taking the bill of lading to order or assigns, and wrote to the plaintiff saying, "Enclosed "please find invoice and bill of lading of 200 bales of cotton."

(a) Godts v. Rose, 25 L. J. C. P. 61; 17 C. B. 229.

(b) See also Sheridan v. New Quay Co., ante, p. 166, 28 L. J. C. P. 58; 4 C. B.

N. S. 618.

(c) Shepherd v. Harrison, 38 L. J. Q. B. 105 and 177; 40 L. J. Q. B. 148; L. R. 4 Q. B. 197 and 493; 5 E. & I. Ap. 116.

The invoice stated the cotton to be at the risk of the plaintiff. Paton, Nash and Co. did not, however, in fact, enclose the bill of lading to the plaintiff, but having endorsed it “ Paton, "Nash and Co.," sent it to G. Paton and Co., together with a draft for the plaintiff's acceptance. When G. Paton & Co. received the bill of lading and the draft they wrote to the plaintiff, "We beg to enclose bill of lading for 200 bales "cotton shipped by Messrs. Paton, Nash and Co., per "Olinda, s.s., on your account. We hand also their draft "on your good selves for cost of the cotton, to which we "beg your protection." The plaintiff retained the bill of lading, and returned the draft unaccepted. The defendants, the shipowners, on being indemnified by G. Paton and Co., refused to deliver up the cotton. The Court gave judgment for the defendants (a). Cockburn, C. J., said: "The cases are certainly very strong indeed, and conclusive to show, "supposing the consignor of goods sends them to this country accompanied by bills of lading and bills of exchange which are to be accepted by the consignee of "the goods as the consideration for the consignment, that "where the consignor sends those documents direct to the "consignee that ought to lead to the inference, and only "properly lead to the inference, that he intended the

consignee should have at once the disposal of the property "and possession of the goods consigned; leaving to him, as a "matter simply of obligation under the contract, to return "the bills of exchange accepted, not as a condition precedent "to the property vesting, but simply as a matter of contract. But, on the other hand, the authorities are equally good, to "my mind, to show, where the consignor sends the bill of lading to an agent in this country to be by him handed "over to the consignee, and accompanies that with bills of "exchange to be accepted by the consignee, that that "indicates a different intention, viz., that the handing over "the bill of lading and the acceptance of the bill or bills of

(a) And this judgment was affirmed in the Exchequer Chamber, 38 L. J. Q. B. 177; L. R. 4 Q. B. 493; and in the House of Lords, 40 L. J. Q. B. 148; 5 E. & I. App. 116.

"exchange should be concurrent parts of one and the same "transaction."

It was contended for the plaintiff that he had been drawn. on for a larger sum than was due for the price of the goods; but, said Kelly, C. B., "Possibly he was not bound to accept "the bill. But, at all events, he had no right to repudiate the contract in part: if he did not accept the bill, "he could have no right to the goods."

In the case of Mirabita v. The Imperial Ottoman Bank (a) in 1878, the plaintiff, a merchant carrying on business at Malta and Constantinople, agreed to purchase umber from Phatsea and Pappa, a firm of merchants at Larnaca. When Phatsea and Pappa had 600 tons ready for shipment they chartered a ship to carry the umber to London, taking the bills of lading "to order or assigns." They then drew a bill on the plaintiff, which was discounted with the defendants' agents at Larnaca, with the bill of lading attached. By a subsequent arrangement the defendants' agents returned this bill of exchange, and a second was drawn by Phatsea and Pappa, on Mirabita Brothers, of London, in favour of Corkji, from whom they had purchased the umber. Corkji handed it to the defendants' agents in substitution of the first one, with instructions to them to send it and the bills of lading to London, and there to deliver the bills of lading to Mirabita Brothers on payment of the bill of exchange at maturity. The defendants left the bill of exchange at the office of Mirabita Brothers attached to the following note: "Bill of lading . . . to be given up against the payment "of attached draft." F. Mirabita returned the bill of exchange without having accepted it, but stated that he would pay at maturity. The ship having arrived, the defendants had the cargo entered in their names; and on the same day, F. Mirabita called on the defendants and offered to pay the bill and receive the bills of lading, but the defendants refused to give them up, on the ground that they had taken possession of the cargo, and so made themselves

(a) Mirabita v. The Imperial Ottoman Bank, 47 L. J. Ex. 418; 3 Ex. D. 164. See also Sale of Goods Act, section 19 (1).