Secondly, the fact of ownership. S. 20. Generally speaking, where a bargain is made for the pur- The fact of chase of goods, and nothing is said about payment or delivery, ownership. the property passes immediately, so as to cast upon the purchaser all future risk, if nothing further remains to be done to the goods. If anything remains to be done on the part of the seller, until that is done the property is not changed" (g). ... "Where a bargain and sale is completed with respect to goods, any accident happening to the things subsequently, unless it is caused by the fault of the vendor-any calamity befalling them after the sale is completed-must be borne by the purchaser, and by parity of reasoning any benefit to them is his benefit, and not that of the vendor" (h). For the case where the goods, being specific, perish before the risk has passed to the buyer, see s. 7, supra. Thirdly, wrongful delay in delivery: With regard to the risk Wrongful where the delivery is insufficient, see s. 32 (2), (3), and for cases of necessary deterioration in transit, see s. 33. The first proviso appears to be founded upon the judgment of Blackburn, J., in Martineau v. Kitching (i), where he says: "By the civil law it always was considered that if there was any weighing, or anything of the sort which prevented the contract being perfecta emptio, whenever that was occasioned by one of the parties being in mord, and it was his default, though the emptio is not perfecta, yet if it is clearly shown that the party was in mord, he shall have the risk, just as if the emptio were perfecta. When the weighing is delayed in consequence of the interference of the buyer, so that the property did not pass because the non-completion of the bargain and sale owing to the delay of the purchaser, the purchaser should bear the risk, just as if the property had passed" (k). ... yet was It will be seen from the above extract, as compared with the terms of the first proviso to this section, that the Act seems to extend the proposition of law laid down by Blackburn, J. That proposition was that, if the passing of the property is prevented by the delay of either party, that party must bear the risk. The Act says that if the "delivery" (which is defined in s. 62 (1) as "voluntary transfer of possession from one person to another") is delayed by the "fault" (defined in s. 62 (1) as "wrongful act (g) Per Bayley, J., in Simmons v. Swift (1826), 5 B. & C. 857, 862. (h) Per Blackburn, J., in Sweeting v. Turner (1871), L. R. 7 Q. B. 310, 313. (i) (1872), L. R. 7 Q. B. 436, 456. G. (k) MeConihe v. N. Y. & Erie Ry. Co., 20 N. Y. 495, was another such case, but there the Court found that the loss was not caused by the buyer's delay. L delay in delivery. S. 20. Express or implied bailment. or default") of either party, the goods are at the risk of the party in fault as regards any loss "which might not have occurred but for such fault." Generally, the same act which shows a delivery, will also serve to pass the property, and the two propositions would be identical; but cases may be imagined where the property has not passed, and yet delivery has been delayed. Suppose a contract for the sale of a piano, to be paid for by instalments, the property not to pass till all the instalments are paid, and the buyer to take or receive delivery by a certain date. He makes default, and the piano is burnt by an accidental fire on the seller's premises. Here the buyer would have delayed the delivery, but not the passing of the property. This section, apparently, throws upon the party in default (and irrespective of the transfer of the property) the risk of any loss of which the delay was the possible cause. This liability being a serious one, probably a strict interpretation of the words "wrongful act or default" would be adopted. The same words have been construed, in a shipping case, as equivalent to culpable negligence (1). Fourthly, express or implied bailment. After the sale is complete, the seller is the buyer's bailee until the time appointed for delivery of the goods (m). And the seller would appear to be a bailee for reward, on the ground that part of the consideration for the price is the custody of the goods by the seller until a reasonable time elapses for the buyer to take delivery: see the analogous case of a carrier, and the reasoning of the Court (n). After the expiration of that time the consideration, so far as custody for reward is concerned, is exhausted, and the seller would seem to be a gratuitous bailee, and may then charge for the custody, and recover compensation for the buyer's delay in taking delivery. See s. 37. Similarly, when the buyer is in possession of the seller's goods, he will also be a bailee, e.g., in the case of goods sent on sale or return, on trial, &c. (o). Here the bailment being beneficial to both parties, the buyer would also appear liable for ordinary negligence. But after a rightful rejection of the goods under s. 36, the buyer is, it is submitted, in the position of a gratuitous bailee. The editors are aware of no English case laying down the rights and liabilities of the buyer and seller as bailee for the (1) The Famenoth (1882), 7 P. D. 207; under s. 242 of the Merchant Shipping Act, 1854.. (m) Benj. p. 716. (n) Cairns v. Robins (1841), 8 M. & W. 258; see also Fr. Civ. Code, ss. 1136-1138. (0) Benj. p. 67. other, and particularly as to the character of the bailment. See, however, the American case of Koon v. Binkerhoff (p), and Story on Sales, ss. 300a, 300b, 393; Id. on Bailm. (9th ed.) s. 448. ILLUSTRATIONS. 1. A. agrees to sell to B., at so much a cwt., a number of sugarloaves, to be weighed when delivered, to be paid for in one month, and to be at A.'s risk for two months. B. makes delay in taking delivery after the two months, and the loaves are then destroyed by fire on A.'s premises. Whether or not the property has passed to B., B. must pay for the loaves (1) as the risk was to be his after two months; (2) [perhaps] because the delay in delivery was his fault (q). Martineau v. Kitching (1872), L. R. 7 Q. B. 436. 2. A. agrees to sell B. a cargo of ice, B. upon receipt of bill of lading to take upon himself all risks of the seas, &c., and to pay for it in cash on delivery at 20s. a ton, weighed on board on delivery. The cargo is lost. B., whether owner or not, must pay for it, as he assumed the risk of delivery being prevented by dangers of the sea. Castle v. Playford (1870), L. R. 7 Ex. 98. 3. A. agrees to sell and ship to B. a cargo of coal, payment to be made in cash, one half on A.'s handing over to B. the bill of lading and policy of insurance, the other half on delivery at the destination. B. receives the bill of lading and policy, and pays half the price. The cargo is lost in transit. A. cannot recover the balance of the price from B., as he took the risk (so far as regards half the price) of the goods arriving; nor can B. recover the half price paid, as they were the owners of the goods from the time of shipment, and took the risk to the extent of the half price paid. Calcutta, &c. Steam Navigation Co. v. De Mattos (1863), 32 L. J. Q. B. 322; affirmed 33 L. J. Q. B. 214. 4. B. orders goods of A., to be dispatched on insurance being effected, and to be paid for three months after arrival. The goods are dispatched, and B. insures. The goods are lost in transit. B. must bear the risk, as the goods vested in him on their being sent off, and (with respect to the three months' credit after arrival) B.'s action in insuring shows that it was also intended that he should bear the risk of non-arrival. Fragano v. Long (1825), 4 B. & C. 219 (r). 5. A. sells B. a specific stack of hay, the stack to remain where it was for a specified time, and not to be cut till paid for. B. pays for the hay. Within the period the stack is consumed by fire. B. cannot recover the price paid from A., as the stack was his by the contract, and he must bear the risk. Tarling v. Baxter (1827), 6 B. & C. 360. 6. A. agrees to make for and sell to B. a number of cars by a particular date, B. to furnish part of the materials which could not be procured elsewhere. B. makes great delay, though repeatedly requested, in providing this part. The incomplete goods are accidentally burnt without A.'s fault. If B.'s delay amounts to a fault," B. is responsible, if the fire might not otherwise have happened. McConihe v. N. Y. and Erie Ry. Co., 20 N. Y. 495. 7. A., in London, contracts to supply B., at Brighton, with a quantity of rabbits. A. has, by agreement implied from the circumstances, to bear the risk of the rabbits arriving within a reasonable time in an unmerchantable condition at Brighton, though they may be sound when dispatched. Beer v. Walker (1877), 25 W. R. 880. (p) 39 Hun. (N. Y.) 130. (9) See particularly the judgment of Blackburn, J. (r) See also Alexander v. Gardner (1835), 1 B. N. C. 671. S. 20. S. 20. Sale by person not the owner. S. 21 (1). 8. A. agrees to sell and deliver to B., at a distance, merchantable iron. The iron necessarily, to the knowledge of both, deteriorates by the transit. B. has agreed to bear the risk of necessary depreciation during transit, though A. agreed to deliver the iron at its destination. Bull v. Robison (1854), 10 Ex. 342. Transfer of Title. 21.-(1.) Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell. (2.) Provided also that nothing in this Act shall affect (a) The provisions of the Factors Acts, or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof; (b) The validity of any contract of sale under any special common law or statutory power of sale, or under the order of a court of competent jurisdiction. Subject to the provisions of this Act-i. e., ss. 22-26, 48 (2). Non-disclosure by the seller of absence of title of which he is aware, is a fraud on the buyer (s). Under the authority, or with the consent of owner. That is, as agent or licensee, or otherwise, by virtue of a right under agreement, e. g., a pledgee selling under a power of sale; or a mortgagor allowed by the mortgagee to deal with the goods in the ordinary way of trade (t). (8) Per Cur., in Morley v. Attenborough (1849), 3 Ex. 500, quoting Littledale, J., in Early v. Garrett (1829), 9 B. & C. 928, 932; and Springwell v. Allen (1649), Aleyn, 91; cited in 2 East, 448 (a); per Brett, L.J., in Ward v. Hobbs (1877), 3 Q. B. D. at p. 161. (t) Gough v. Wood & Co., [1894] 1 Q. B. 713. Acquires no better title.-The maxim of the law is nemo dat quod non habet (u). In Cole v. North Western Bank (x), Blackburn, J., said: "At common law, a person in possession of goods could not confer on another, either by sale or by pledge, any better title to the goods than he himself had. To this general rule there was an exception of sales in market overt [s. 22], and an apparent exception where the person in possession had a title defeasible on account of fraud [s. 23]. But the general rule was that, to make either a sale or a pledge valid against the owner of the goods sold or pledged, it must be shown that the seller or pledgee had authority from the owner to sell or pledge, as the case might be. If the owner of the goods had so acted as to clothe the seller or pledgee with apparent authority to sell or pledge, he was at common law precluded, as against those who were induced bond fide to act on the faith of that apparent authority, from denying that he had given such an authority, and the result as to them was the same as if he had really given it" [s. 21 (1)]. S. 21 (1). precluded-i. e., is Rules as to The rules relating estoppels in to such estoppels are laid down in Carr v. L. & N. W. Ry. Co. (y), and may be shortly summarized as : (1.) Wilful misrepresentation by words or conduct of a fact: (2.) Representation of a fact intended to be acted on: (3.) Representation by conduct of a fact, from which an invitation to act thereon would be inferred: (4.) Representation by culpable negligence of a fact, leading proximately to action thereon. pais. The provisions of the Factors Acts.-Defined by s. 62 (1) to S. 21 (2) (a). mean the Factors Act, 1889 (which repealed all the previous Acts), the Factors (Scotland) Act, 1890, and any enactment amending or substituted for the same. Or any enactment-e. g., the Bill of Lading Act, 1855; the Bills of Sale Act, 1878; the Bankruptcy Act, 1883, s. 44 (reputed ownership): see s. 61 (1) of this Act. pledgees (z), masters of ships acting in cases of necessity (a), sheriffs (b), &c. (u) Per Willes, J., in Whistler v. Forster (1863), 14 C. B. N. S. 248, 257. (x) (1875), L. R. 10 C. P. at p. 362. Holt, 383. (a) The Gratitudine (1801), 3 Rob. Adm. 240, 259. (b) Anon. (1579), Dyer, 363 (a); and cases cited in Benj. p. 16, note (a). |