SALE OF GOODS. dence. It is hardly necessary to say that evidence of the circumstances Chap. III. of the parties to the contract is admissible for the purpose of Parol eviascertaining in what meanings they used the words in the note. This is part of the general law as to the interpretation of documents (n). the contract. Bearing in mind that, at common law, it is competent to the Variation of parties to a written contract, not under seal, to alter, vary, or revoke it by parol, it might be supposed that a similar rule applied to a contract evidenced by a note in writing under this section. But this is not the case; for, though the parties may revoke the contract by parol (o), they cannot vary it by parol (p); the reason apparently being that the only contract made enforceable by the note in writing is the contract of which that writing is a note, so that if the contract is varied by parol, the writing is no longer a note of the contract as varied, and therefore the written note does not show the contract as varied. tained in The note of the contract may be contained in several documents, Note conand one only of such documents need be signed (q). The several several docudocuments must be annexed to each other, or the connection ments. between them must appear upon the face of the documents (q). Parol evidence is not admissible for the purpose of connecting the documents (q); but it is admissible to identify a document referred to, or to show that a reference, which may be to a document, is in fact such a reference (r). It will be observed that the signature required is that of "the Signature. party to be charged or his agent in that behalf." The signature of the party seeking to enforce the contract is not necessary (s). The effect of this is somewhat curious. The contract can be enforced only against the person who has signed the note or memorandum, so that in effect the contract is or is not enforceable at the election of the party who does not sign (t). The signature need not be at the end of the note or Place and mode of signature. (n) See Elph. N. & C. Interp., chap. 4. (0) Goss v. Nugent, 5 B. & Ad. 58; Morgan v. Bain, L. R. 10 C. P. 15. (p) Plevins v. Downing, 1 C. P. D. 220; Noble v. Ward, L. R. 2 Ex. 135. (a) Boydell v. Drummond, 11 East, 142; 10 R. R. 450; Cave v. Hastings, 7 Q. B. D. 125; Studds v. Watson, 28 Ch. D. 305; Taylor v. Smith, [1893] 2 Q. B. 65; Pearce v. Gardner, [1897] 1 Q. B. 688; Lever v. Koffler, [1901] 1 Ch. 543; (s) Laythoarp v. Bryant, 2 B. N. C. (t) Reuss v. Picksley, L. R. 1 Ex. 342; Smith v. Neale, 2 C. B. N. S. 67. Chap. III. memorandum; it is sufficient if it is so introduced as to govern and authenticate every material or operative part of it (u). If the name appears in an unusual position, it is a question of fact in each case whether it was intended as a signature (x). Signature may be by print, mark, initials, or stamp (y). When it must be made. Immaterial to whom addressed, or for what purpose made. By agent. The note or memorandum need not be contemporaneous with the contract, but may be signed either before or after the contract is concluded. For instance, it may be contained in a written proposal which is afterwards verbally accepted (z), or in the minutes of a meeting (a), or in a subsequent letter repudiating liability under the contract (b). It must, however, be in existence when an action upon the contract is commenced (c). It is immaterial for what purpose the note is made, or to whom it is addressed; any writing embodying the terms of a contract and signed by the person to be charged is sufficient (d). Thus, a recital in a will (e) or deed (f), a letter referring to an unsigned document (g), an affidavit made in other proceedings (h), or a letter written to a third person (i), may be sufficient. The authority of an agent to sign must be determined according to the ordinary rules of agency (k), but one party cannot be the agent of the other to sign for him (7). An auctioneer is the agent of both buyer and seller, and a memorandum signed by him, at the time of the sale (m), will bind both parties (n); an auctioneer's clerk also may be, and very often is, the agent of the purchaser to sign his name (o). (u) Caton v. Caton, L. R. 2 H. L. 127; Evans v. Hoare, [1892] 1 Q. B. 593; Re Hoyle, [1893] 1 Ch. 84. (x) Johnson v. Dodgson, 2 M. & W. 653; Durrell v. Evans, 1 H. & C. 174; Sims v. Landray, [1894] 2 Ch. 318. (y) See notes to Wain v. Warlters, 1 (z) Reuss v. Picksley, L. R. 1 Ex. 342; 314. (b) Bailey v. Sweeting, 9 C. B. N. S. (e) Lucas v. Dixon, 22 Q. B. D. 357; (d) Re Hoyle, [1893] 1 Ch. 84, 98, 99. (f) Re Holland, [1902] 2 Ch. 360. (g) John Griffiths Corp. v. Humber, [1899] 2 Q. B. 414. (h) Barkworth v. Young, 4 Drew. 1; see Lucas v. Dixon, 22 Q. B. D. 357. (i) Gibson v. Holland, L. R. 1 C. P. 1. (k) See notes to Wain v. Warlters, 1 Sm. L. C. 334; post, Chap. v. (1) Sharman v. Brandt, L. R. 6 Q. B. 720; John Griffiths Corp. v. Humber, sup. (m) Mews v. Carr, 1 H. & N. 484; Bell v. Balls, [1897] Ch. 663 post, P. 76. (n) Simon v. Metivier, 1 W. Bl. 599; Beer v. London, 20 Eq. 412, 426; White v. Proctor, 4 Taunt. 209; 13 R. R. 580. (0) Bird v. Boulter, 4 B. & Ad. 443; Sims v. Landray, [1894] 2 Ch. 318; Bell v. Balls, sup. Since executory contracts of sale are included within sect. 4 of Chap. III. the Sale of Goods Act, 1893, the operation of the following section Contracts not of the Statute of Frauds must be very limited in regard to the to be persale of goods: formed within one year. No action shall be brought. (5) upon any agreement that Statute of is not to be performed within the space of one year from the making Frauds, s. 4. thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged there with or some other person thereunto by him lawfully authorized" (p); but it will apply to a contract for the sale of goods not to be performed within a year, although there has been an acceptance and actual receipt of part of the goods (q). "Where the agreement distinctly shows upon the face of it that the parties contemplated its performance to extend over a greater space of time than one year, the case is within the statute; but where the contract is such that the whole may be performed within a year, and there is no express stipulation to the contrary, the statute does not apply" (r). It has, however, been decided that where the whole of what has to be done by one party is intended to be performed within a year, the case is not within the statute (s). It remains to be added that where in an action it is intended Pleading. by either party to rely upon sect. 4 of the Sale of Goods Act, 1893, or on the Statute of Frauds, in answer to a claim, he must raise such matter by his pleading in the High Court (t), or by notice in the County Court (u); and a party will be estopped. from raising this defence if he might have raised it in a previous action but neglected to do so (x). (p) 29 Car. 2, c. 3, s. 4. See notes to Peter v. Compton, 1 Sm. L. C. 316. (q) Prested Co. v. Garner, [1910] 2 K. B. 776; [1911] 1 K. B. 425. (r) Souch v. Strawbridge, 2 C. B. 815, per Tindal, C.J.; see McGregor v. McGregor, 21 Q. B. D. 424; Smith v. Gold Coast Co., [1903] 1 K. B. 285, 538; Hanau v. Ehrlich, [1912] A. C. 39. (s) Donelian v. Read, 3 B. & Ad. 899; Cherry v. Heming, 4 Ex. 631; Miles v. New Zealand Co., 32 Ch. D. 266; Milsom (t) R. S. C. Ord. XIX., r. 15. See 219. (x) Humphries v. Humphries, [1910] 1 K. B. 796; 2 Id. 531. Chap. IV. Delivery. Duties of seller and buyer. Place of delivery. Time of delivery. CHAPTER IV. SALE OF GOODS (continued). Delivery-Seller's Lien-Stoppage in Transitu-Representation- As we have already said, although goods be not delivered the buyer may become the owner of the goods; but, where they have not been paid for, the property in them may pass to the buyer subject to the lien of the seller for the unpaid purchase-money. The buyer, having the property in the goods, has primâ facie the right to possess them; but this right may be made conditional by the terms of the agreement. It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract (a). Unless otherwise agreed, delivery of the goods and payment 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 (b). It depends upon the contract between the parties in each case, whether the buyer must take possession of the goods or the seller send them to the buyer (c). But apart from any contract, the place of delivery is the seller's place of business, if he have one, and, if not, his residence (c). If, however, the contract is in respect of specific goods, which are, to the knowledge of the parties, in some other place at the time of the contract, then that place is the place of delivery (c). If the seller is bound to send the goods to the buyer, and no (a) Sale of Goods Act, 1893, s. 27. Delivery is defined, s. 62 (1). See Pollock and Wright on Possession, 43. (b) Ib. s. 28. See notes to Cutter v. Powell, 2 Sm. L. C. 11. See Forrestt v. time is fixed, he must send them within a reasonable time (d). A Chap. IV. demand or tender of delivery may be treated as ineffectual if made at an unreasonable hour (e). Goods which are, at the time of sale, in the possession of a third Goods in possession of person, are not delivered by the seller to the buyer until such third person. person acknowledges to the buyer that he holds for him (f). carrier. If the seller is authorized or required to send the goods to the Delivery to buyer, delivery to any carrier for the purpose of transmission to the seller is primâ facie a delivery to the buyer (g). If the seller delivers the goods to the buyer without receiving payment, he has no further rights over the goods, and his only remedy is to bring an action for the price. Notwithstanding that the property in the goods may have passed Unpaid to the buyer, an unpaid seller (h), who is in possession of the seller's lien. goods, has a lien on the goods, or a right to retain them for the price while he is in possession of them until payment or tender of the price, in the following cases: -(1) where there is no stipula- In what tion as to credit; (2) where the goods are sold on credit, but the cases. term of credit has expired; (3) where the buyer becomes insolvent (i). agent or The seller may exercise this right of lien notwithstanding Where seller that he is in possession of the goods as agent or bailee for the bailee for buyer (k). buyer. If part of the goods has been delivered, the unpaid seller may Where part delivery. exercise his right of lien or retention on the remainder, unless the part delivery has been so made as to show an intention to waive the lien or right of retention (l). of lien. The unpaid seller loses his lien, or right of retention, (1) when Termination he delivers the goods to a carrier or other bailee for the purpose of transmission to the buyer without reserving the right of disposal (m) of the goods; (2) when the buyer or his agent lawfully obtains possession of the goods; (3) by waiver thereof (n). This lien or right of retention is not lost by reason only that the seller has obtained judgment for the price of the goods (0). (d) Sale of Goods Act, 1893, s. 29 (2). (g) Ib. s. 32 (1). (h) As to the meaning of " unpaid seller" and "seller," see s. 38. (i) Ib. ss. 39 (1), 41 (1). See Blackburn on Sale, 339; Ex p. Chalmers, 8 Ch. 289. As to insolvency, see s. 62 (3), (k) Ib. s. 41 (2). See Grice v. Richard- (1) Ib. s. 42. See post, p. 65. (m) As to reservation of right of dis- (0) Ib. s. 43 (2). |