upon receipt thereof the said purchaser takes upon himself "all risks and dangers of the seas, rivers, and navigation "of whatever nature or kind soever; and the said H. H. 'Playford agrees to buy and receive the said ice on its arrival "at ordered port . . . and to pay for the same in cash on "delivery, at and after the rate of 20s. sterling per ton of "20 cwt. weighed on board during delivery." The plaintiffs shipped a cargo, and forwarded the bill of lading to the defendant, by whom it was received.

The ice was lost during the voyage and the defendant refused to pay for it. It was held on appeal by Cockburn, C. J., Willes, Blackburn, Mellor, Brett, and Grove, JJ., that he was bound to pay for it: Blackburn, J., saying: “The parties in this case have agreed, whether the property 'passed or not, that the purchaser should, from the time he "received the bills of lading, take upon himself all risks and dangers of the seas; and . . I do not see what risk he "took upon himself at all, unless it was this, that he said: "If the property perishes by the dangers of the seas, I shall "take the risk of having lost the property, whether it be "mine or not.'" (a).

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It may be that although the condition precedent which has not been performed was something to be performed by one of the parties to the contract, yet if it was merely a condition, and not accompanied by a promise by that party to perform it, that party will not be liable to the other for the non-performance. The question is simply, has that person promised to perform it, or promised or undertaken that it shall be performed; if he has, he is liable in damages if he does not perform it or it is not performed. If the contract was merely that if he performs it or if it happens then certain results are to follow, he is not liable.

The Sale of Goods Act, by section 5 (2), provides that:— "There may be a contract for the sale of goods, the acquisition of which by the seller depends upon a contingency which may or may not happen."

(a) See also Martineau v. Kitching, 41 L. J. Q. B. 227; L. R. 7 Q. B. 436, ante, p. 192; and Tregelles v. Sewell, 7 H. & N. 574, ante, p. 255.

In Boyd v. Siffkin (a), in 1809, the buyer sued the seller for not delivering hemp which by the contract was to be delivered when it should arrive by a certain vessel. The vessel arrived but with no hemp on board, and the plaintiff was nonsuited (b).

Vernede v. Weber (e), in 1856, was an action for not delivering. The contract was in these terms, "Bought for "account of Messrs. Vernede and Company, of Mr. C. F. "Weber, the cargo of 400 tons (provided the same be shipped "for sellers' account), more or less, Aracan Necrensie rice ". . . at 11s. 6d. for Necrensie, or at 11s. for Larong, the "latter quantity not to exceed 50 tons." The cargo was found on arrival to consist of 285 tons of Larong and 159 tons of Latourie; and the plaintiffs alleged as the defendants' breach of contract, that the cargo was not Aracan Necrensie ; but the Court of Exchequer was of opinion, that there was no absolute warranty that the rice which was shipped should be Aracan Necrensie, but was subject to the proviso that such a cargo should be shipped (d).

These cases may be contrasted with Hale v. Rawson (e), in 1858, which was an absolute contract to deliver, provided the ship should arrive, whether the goods were on board or not. The ship arrived, but with no goods on board, and the buyer brought this action for damages for not delivering goods according to contract. The sale was of 50 cases of East India tallow, to be delivered on the safe arrival of the Countess of Elgin. The defendants pleaded that the ship had arrived without any tallow on board without any negligence on their part. The plaintiffs demurred, on the ground that the defendants had contracted to deliver unconditionally.

(a) Boyd v. Siffkin, 2 Camp. 326.

(b) See ante, p. 252; and Hawes v. Humble, 2 Camp. 327, n.; Idle v. Thornton, 3 Camp. 274; Johnson v. Macdonald, 12 L. J. Ex. 99; 9 M. & W. 601; Lovatt v. Hamilton, 5 M. & W. 639.

(c) Vernede v. Weber, 25 L. J. Ex. 326; 1 H. & N. 311.

() See also Smith v. Myers, 39 L. J. Q. B. 210; 41 L. J. Q. B. 91; L. R. 5 Q. B. 429; L. R. 7 Q. B. 139, ante, p. 259 and other cases on conditions precedent.

(e) Hale v. Rawson, 27 L. J. C. P. 189; 4 C. B. N. S. 85

The Court gave judgment for the plaintiffs, saying that "where the agreement is absolute, or conditional on an event "which happens, the vendor will be liable for a breach, "although he could not help the non-performance (a)."

And it is for the person who wishes to avail himself of his rights which are dependent on the happening of a condition precedent to show that the condition has happened, or that the happening of it has been prevented by the opposite party. Sect. 28 of the Sale of Goods Act provides that:-

"Unless otherwise agreed, delivery of the goods and pay"ment of the price are concurrent conditions, that is to say, "the seller must be ready and willing to give possession of "the goods to the buyer in exchange for the price; and the "buyer must be ready and willing to pay the price in exchange "for possession of the goods."

In Atkinson v. Smith (b), in 1845, the defendants had agreed to purchase from the plaintiffs 30 packs of Cheviot fleeces, and to accept a bill for 2501. and deliver to the plaintiffs some coarse woollen cloths called noils. The plaintiff's delivered a part only of the fleeces; and the Court held that the contracts were not independent, and that the plaintiff's could not sue the defendants for non-delivery of some of the noils, without proof of delivery or tender of the rest of the fleeces.

And in Bankart v. Bowers (c), in 1866, by agreement the plaintiff was to purchase certain lands and minerals from the defendant, and the defendant was to purchase from the plaintiff all the coal he might require from time to time at a fair market rate. The Court held that the acts were to be concurrent, and that the plaintiff could not sue the defendant for not taking the coals without performing his part of the agreement.

Having considered shortly the effect of express stipulations

(a) See also Gorrissen v. Perrin, 27 L. J. C. P. 29; 2 C. B. N. S. 681.

(b) Atkinson v. Smith, 15 L. J. Ex. 39; 14 M. & W. 695. See also Brogden v. Marriott, 2 Bing. N. C. 473, in 1836, 3 Bing. N. C. 88; Thurnell v. Balbirnie, 2 M. & W. 786, in 1837.

(c) Bankart v. Bowers, L. R. 1 C. P. 484.

M M

as to payment, delivery, &c., on the remedies of the parties, it is proposed now to consider in what way the parties may assert their rights, and it will be convenient in the first place to consider the position of the buyer where the seller does not tender the goods. The buyer may in some very exceptional cases compel the seller to perform his contract specifically, that is, to deliver those very goods; but generally speaking he cannot do so, the rule being that where damages will afford an adequate compensation for the breach, the buyer cannot get a decree for specific performance. Cases where specific performance has been decreed are so uncommon that it is sufficient here to refer to the case of Cuddee v. Rutter in White and Tudor's Leading Cases in Equity, Vol. I., where the learning on the subject will be found.

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By section 2 of the Mercantile Law Amendment Act of 1856 (a), it was enacted that, "In all actions and suits for "breach of contract to deliver specific goods for a price in money, on the application of the plaintiff, and by leave of "the Judge before whom the cause is tried, the jury shall, if they find the plaintiff entitled to recover, find by their “verdict what are the goods in respect of the non-delivery of "which the plaintiff is entitled to recover and which remain "undelivered; what (if any) is the sum the plaintiff would "have been liable to pay for the delivery thereof; what "damages (if any) the plaintiff would have sustained if the goods should be delivered under execution, as hereinafter "mentioned, and what damages if not so delivered; and thereupon, if judgment shall be given for the plaintiff, the "Court or any Judge thereof, at their or his discretion, on "the application of the plaintiff, shall have power to order "execution to issue for the delivery, on payment of such "sum (if any) as shall have been found to be payable by the

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plaintiff as aforesaid, of the said goods, without giving the "defendant the option of retaining the same upon paying the damages assessed; and such writ of execution may be for "the delivery of such goods; and if such goods so ordered to

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(a) 19 & 20 Vict, c. 97.

"be delivered, or any part thereof, cannot be found, and unless "the Court, or such Judge as aforesaid, shall otherwise order, "the sheriff, or other officer of such Court of Record, shall "distrain the defendant by all his lands and chattels in the "said sheriff's bailiwick, or within the jurisdiction of such "other Court of Record till the defendant deliver such goods; "or, at the option of the plaintiff, cause to be made of the "defendant's goods the assessed value or damages, or a due 'proportion thereof; provided that the plaintiff shall, either "by the same or a separate writ of execution, be entitled to "have made of the defendant's goods the damages, costs, and "interest in such action or suit."

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This section is reproduced in section 52 of the Sale of Goods Act, which provides that:

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"In any action for breach of contract to deliver specific or "ascertained goods the Court may, if it thinks fit, on the application of the plaintiff, by its judgment or decree direct "that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on "payment of damages. The judgment or decree may be "unconditional, or upon such terms and conditions as to "damages, payment of the price, and otherwise, as to the "Court may seem just, and the application by the plaintiff "may be made at any time before judgment or decree.

"The provisions of this section shall be deemed to be "supplementary to, and not in derogation of, the right of "specific implement in Scotland."

The buyer's usual remedy where the seller fails to deliver, is an action to recover damages from him for his failure to deliver according to contract: of this many examples will be found in the chapter on Conditions Precedent. By the third section of the Common Law Procedure Act of 1852 (a), it became unnecessary to mention any form of action in the writ. Prior to that Act the writ stated whether the action was in trover or assumpsit, &c., and in reading the cases it is important to bear in mind that the plaintiff sometimes failed

(a) 15 & 16 Vict. c. 76.