Bb in the goods has not passed, and the goods have not been appropriated to the contract." These two sub-sections deal with the seller's remedy where the buyer refuses to pay for the goods according to the terms of the contract. The following two sub-sections indicate the remedy where the buyer refuses to accept and pay for the goods: "50.-(1.) Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for nonacceptance. "51.—(1.) Where the seller wrongfully neglects or refuses to deliver the goods to the buyer, the buyer may maintain an action against the seller for damages for non-delivery." It is usual to speak of the failure of either party to do what he has promised to do as "a breach of the contract." Correctly speaking, it is the promise to do so something which has been broken; the contract with all its liabilities remains binding. In the first place, it will be desirable to refer to the effect which a condition precedent has upon the position of the parties. In the case of a simple sale the buyer cannot be called upon to pay the price of the goods until the two implied conditions precedent, viz., that the property in the goods shall have been passed to him, and that the seller shall have delivered or tendered them, shall have been performed. If there are no special terms in the contract the property passes to the buyer as soon as the bargain is concluded, and the goods are then at the buyer's risk and he must pay for them; but it may be that the parties to the contract have agreed that the property shall not pass until some event has happened. In such a case the happening of that event is a condition precedent to the passing of the property, and to the buyer's obligation to pay. When the property has passed, the buyer is not liable to pay for the goods until the seller delivers or tenders them. But if the seller is unable to tender them, in consequence of the goods having perished, he is in law released from his 66 obligation to tender, and the buyer must pay for the undelivered goods if the property had passed to him, on the principle laid down in Taylor v. Caldwell (a), in 1863, “The 'principle seems to us to be that in contracts in which the 'performance depends on the continued existence of a given person or thing, a condition is implied, that the impossibility "arising from the perishing of the person or thing shall "excuse the performance (b)." If the party who has the right to avail himself of a condition precedent has waived it, or prevented it from happening or being performed (c), he cannot afterwards avail himself of it. If the buyer refuses before the seller tenders the goods to accept them when tendered, the seller may at once. elect to consider the buyer's refusal as a breach of contract, and bring his action for damages for the breach before the time for performance has arrived, or the seller may decline to consider the refusal as a breach, and in that case the contract cannot be considered as broken, and each party is bound to do all that he has undertaken to do (d). If the seller or the buyer refuse to perform his part, the other party need not actually tender the goods or the price. He shows a good cause of action if he can prove that he was ready and willing to do so. In the case of Ripley v. M'Clure (e), in 1849, the contract was, that the plaintiff, to whom a cargo of tea was to be consigned from China, was to sell and deliver one-third of it to the defendant in Belfast as soon as it should arrive there. Before the arrival of the cargo the defendant became dissatisfied with the contract, and a correspondence ensued, from which the plaintiff concluded that the defendant did not intend to fulfil his contract, and sold the tea on its arrival without tendering, and brought this action against him for breach of contract. In delivering the judgment of the (a) Taylor v. Caldwell, 32 L. J. Q. B. 164; 3 B. & S. 826. (b) See the cases mentioned in the note, ante, p. 251. (c) Mackay v. Dick, 6 App. Ca. 251. (d) Post, p. 525. (e) Ripley v. M'Clure, 18 L. J. Ex. 419; 4 Ex. 345, Court on the motion for a new trial, Parke, B., said that the question left to the jury was, Whether there was a refusal "at any time, and whether that refusal had been subsequently "retracted; and the jury having found, as we think they "were warranted by the evidence to do, that it had not, "there was certainly evidence of a continual refusal down to "and inclusive of the time when the defendant was bound to "receive, which would render the defendant liable, if all the "conditions precedent had been performed or waived (a)." And when Lord Campbell, C. J., was delivering judgment in Cort v. Ambergate Railway Co. (b), he said that it was decided in Ripley y. M'Clure (e), "that a refusal by the defendant "before the arrival of the cargo to perform the contract was "not of itself necessarily a breach of it, but that such refusal, "unretracted down to and inclusive of the time when the "defendant was bound to receive the cargo, was evidence of "a continuing refusal and a waiver of the condition precedent "of delivery, so as to render the defendant liable for the "breach of contract." Next came the leading case of Cort v. Ambergate Railway Co. (b), in 1851, where the plaintiffs had contracted to supply the defendants with a large quantity of railway chairs. They delivered some of them, and then the defendants declined to receive any more. For the purpose of enabling themselves to carry out their contract, the plaintiffs had gone to considerable expense in buildings. The plaintiffs sued the defendants for damages for not accepting, and the defendants pleaded by way of defence that the plaintiffs had never tendered the chairs, and that they had not been prevented from doing so by them. Lord Campbell, C. J., on the motion for a new trial, said it was not denied that if the defendants would have accepted and paid for the chairs the plaintiffs would have supplied them, and continued: "We are of "opinion, however, that the jury were fully justified upon 'the evidence in finding that the plaintiffs were ready and (a) See also Planché v. Colburn, 8 Bing. 14. (b) Cort v. Ambergate Ry. Co., 20 L. J. Q. B. 460; 17 Q. B. 127. 66 'willing to perform the contract, although they never made "and tendered the residue of the chairs." 66 In Frost v. Knight (a), in 1872, Cockburn, C. J., delivering a judgment in which Keating and Lush, JJ., concurred, said (b): "The law with reference to a contract to be performed at a future time where the party bound to performance announces prior to the time his intention not to 'perform it, as established by the cases of Hochster v. De "la Tour (c), and the Danube and Black Sea Company v. "Zenos (d), on the one hand, and Avery v. Bowden (e), Reid "v. Hoskins (f), and Barwick v. Buba (g), on the other, may "be thus stated. The promisee, if he pleases, may treat the "notice of intention as inoperative, and await the time when "the contract is to be executed and then hold the other party "responsible for all the consequences of non-performance. "But in that case he keeps the contract alive for the benefit "of the other party as well as his own; he remains subject "to all his own obligations and liabilities under it, and "enables the other party not only to complete the contract if so advised, notwithstanding his previous repudiation of it, "but also to take advantage of any supervening circumstance "which would justify him in declining to complete it. 66 66 "On the other hand, the promisee may, if he thinks proper, treat the repudiation of the other party as a "wrongful putting an end to the contract, and may at once. 'bring his action as on a breach of it; and in such an "action he will be entitled to such damages as would have "arisen from the non-performance of the contract at the "appointed time, subject, however, to abatement in respect "of any circumstances which may have afforded him the (a) Frost v. Knight, 39 L. J. Ex. 277; 41 L. J. Ex. 78; L. R. 5 Ex. 322; L. R. 7 Ex. 111. (b) 41 L. J. Ex. 79; L. R. 7 Ex. 112. (c) Hochster v. De la Tour, 22 L. J. Q. B. 455; 2 E. & B. 678. (d) Danube and Black Sea Co, v. Zenos, 31 L. J. C. P. 84 ; 31 L. J. C. P. 284 11 C. B. N. S. 152; 13 C. B. N. S. 825. (e) Avery v. Bowden, 26 L. J. Q. B. 3; 6 E. & B. 953. (f) Reid v. Hoskins, 26 L. J. Q. B. 5; 6 E. & B. 953. (g) Barwick v. Buba, 26 L. J. C. P. 280; 2 C. B. N. S. 563. "means of mitigating his loss." The words "a wrongful "putting an end to the contract" were probably used only in the sense of breaking the contract and not as rescinding it. But there is nothing to prevent the parties from introducing into their agreement any stipulations or conditions they may think desirable: and these stipulations may make the obligation of either party to be independent of what would otherwise have been an implied condition precedent (@). Thus, if the parties think well to agree to it, they may agree that the buyer shall pay the price at once, and this quite independently of where the property is, and of whether the goods have been tendered or not. And on the other hand, they may agree that the buyer shall not be called upon to pay the price, although the property has passed to him and the goods have been delivered, until the happening of some event, as in the case of a sale on credit. The extent to which the obligations of the parties are within their own control may be seen from the judgment of Blackburn, J., in the case of the Calcutta Co. v. De Mattos (b), cited on page 256. In Dunlop v. Grote (c), in 1845, the defendants had, in March, contracted to buy from the plaintiffs 1,000 tons of iron to be delivered before the end of April, "and if the delivery "of the said iron should not be required by the defendants on or before the 30th day of April then next ensuing, the "said iron was to be paid for by the defendants on the day "and year last aforesaid." The defendants paid a portion of the price and refused to pay the balance. Cresswell, J., held that the plaintiffs were entitled to recover the whole sum (). And in Castle v. Playford (e), in 1870, the defendant agreed to purchase from the plaintiffs a quantity of ice, the sellers "forwarding bills of lading to the purchaser; and (a) Sale of Goods Act, s. 27. (b) The Calcutta Co. v. De Mattos, 32 L. J. Q. B. 321. (c) Dunlop v. Grote, 2 Car. & Kir. 153. (d) Section 49 (2) of the Sale of Goods Act (ante, p. 521). (e) Castle v. Playford, 39 L. J. Ex. 150; L. R. 5 Ex. 165: 41 L. J. Ex. 44; L. R. 7 Ex. 98. |