A. cannot recover the value of the hats from B., or damages for nonacceptance, as his own tender was defective. Isherwood v. Whitmore (1843), 11 M. & W. 347.

6. A. sells to B. by auction by the yard a quantity of goods to be paid for before delivery. The goods are open to inspection before the sale. B. claims to inspect and measure the goods before payment, and, this not being allowed, refuses to accept and pay for them. B. is liable for non-acceptance of the goods, as by the contract A. was not bound to allow inspection to B. before payment. Pettitt v. Mitchell (1842), 4 M. & G. 819.

S. 31 (2).

35. The buyer is deemed to have accepted the Acceptance. goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.

Acceptance within this section takes place by (1.) Intimation of acceptance:

(2.) Acts of ownership:

(3.) Undue detention without notice of rejection.

It will be seen that many of the cases which show that a buyer has accepted the goods tendered to him in performance of the contract, and thus become owner, are also authorities to show that the buyer has accepted the goods within the meaning of s. 4 (3). But the distinction pointed out in the notes to that section must be borne in mind, viz., that some acts may constitute an acceptance within the meaning of s. 4 (3), without at the same time being an acceptance under this section.

"When goods are sent to the buyer in performance of the vendor's contract, the buyer is not precluded from objecting to them by merely receiving them, for receipt is one thing, and acceptance another. But receipt will become acceptance if the right of rejection is not exercised within a reasonable time; or if any act be done by the buyer which he would have no right to do unless he were owner of the goods" (g).

And so the parties may agree upon a certain test as conclusive, and this would modify the buyer's rights under this section (h). See s. 55.

(g) Benj. p. 711.

(h) Bradley & Co. v. Dollar (1886),

23 Sc. L. R. 626; Mackay v. Dick
(1881), 6 Ap. Ca. 251.

S. 35.

S. 35.

When goods are sent on sale or return, or on approval (see s. 18 (4)), the same acts that show an assent to a sale also show an acceptance, i. e., an "adoption of the transaction" within that section (i).

Act inconsistent.-Breaking bulk is not necessarily such an act (k).

A reasonable time. This is a question of fact under s. 56. The time may also be expressly laid down in the contract, as in Sharp v. Great Western Railway Co. (1), where a certain time of trial was provided for; and this even though the defect was latent (1) or it may be implied by custom under s. 55 (m).

In determining what is a reasonable time for the rejection of goods, or whether any act done is inconsistent with the seller's ownership, regard shall be had to the seller's conduct in allowing a further trial or otherwise (n).

ILLUSTRATIONS.

1. B. selects from A.'s flock forty-five couples of ewes and lambs, and directs A. to send them to a field of his at W. B., before seeing them, orders his servant to take them to M., where B. counts them, and says "all right." Whether or not B. had accepted the sheep prior to delivery, there is evidence (as he had previously selected them) that B.'s saying "all right" meant an express intimation of acceptance. Saunders v. Topp (1849), 4 Ex. 390.

2. A. agrees to sell to B. by sample some rice. On delivery B. draws fresh samples which prove inferior to the sample by which he bought, and then attempts to sell the lot by auction. B. has done an act inconsistent with A.'s ownership after knowing his right of rejection, and has consequently accepted, and must pay for, the rice. Parker v. Palmer (1821), 4 B. & A. 387 (0).

3. A. agrees to sell to B. a quantity of seed to be harvested and thrashed by A., and delivered to B. A. delivers the seed, which B. says is out of condition, and refuses to take it. B. then spreads out the seed, claiming to be doing so by authority of A., which A. denies. B. has accepted the seed, if he spread it out as an owner dealing with his own, but not if he be acting under A.'s authority, or merely to preserve it on A.'s behalf, if perishable. Parker v. Wallis (1855), 5 E. & B. 21.

4. A. agrees to sell B. twenty-five sacks of flour. On delivery he uses half a sack, and then says that the flour was not according to contract; nevertheless, he uses two more sacks, and sells one. B.'s acts are inconsistent with A.'s ownership, and he has accepted all the flour. Harnor v. Groves (1855), 15 C. B. 667 (p).

(i) Benj. p. 67.

(k) Wallace v. Robinson & Co. (1885),

22 Sc. L. R. 830.

(7) (1841), 9 M. & W. 7.

(m) Sanders v. Jameson (1848), 2 C. & K. 557.

(n) Per Bovill, C.J., in Heilbutt v. Hickson (1872), L. R. 7 C. P. 438,

quoting Adam v. Richards (1795), 2 H. Bl. 573. See also Lucy v. Moufflet in Illustrations.

(0) See also Chapman v. Morton (1843), 11 M. & W. 534.

(p) See also Hopkins v. Appleby (1816), 1 Stark. 477.

5. B. orders of A. a hogshead of cyder according to sample, and taps it on delivery, and finding it bad writes to say that he would have to return it if his customers continued to complain. A. does not reply, and B. a month after complains again, and then returns the cyder, having consumed about twenty gallons. B. has not accepted the cyder, as A.'s silence amounted to an acquiescence on his part to B.'s making a further trial. Lucy v. Moufflet (1860), 5 H. & N. 229.

6. A. agrees to sell to B. by sample certain corn. There is a custom of the market that the buyer should be allowed only one day for objecting to the quality. B. lets the day pass without objection. B. has accepted the corn. Sanders v. Jameson (1848), 2 C. & K. 557.

S. 35.

bound to re

goods.

36. Unless otherwise agreed, where goods are Buyer not delivered to the buyer, and he refuses to accept turn rejected them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them.

This section embodies the law laid down in Grimoldby v. Wells (q).

Unless otherwise agreed.-See s. 55.

Having the right so to do." The buyer's duty of acceptance depends altogether upon the sufficiency or insufficiency of the delivery offered by the seller" (r); on a wrongful rejection the seller's remedy is under s. 50 (1).

The effect of a rightful rejection is that the "parties are in the same position as if the seller had done nothing under the contract. There is no specific appropriation, and no transfer of property, and the seller, if delivery under the contract is due, is liable to an action for non-delivery" (s) under s. 51 (1).

Not bound to return them.-The buyer may exercise his right of rejection of the goods by giving prompt notice thereof to the seller, or by doing any unequivocal act signifying his rejection, and is not bound to return them to the seller, or to place them in any neutral custody (t). But the buyer, after the rejection of the goods delivered, must act in relation thereto in a reasonable manner. Subject thereto, the goods, after a rejection duly made, are at the risk of the seller (u).

The buyer, after a rejection duly made, would thus appear to be in the position of an involuntary bailee of the goods, as in

(9) (1875), L. R. 10 C. P. 391. (r) Benj. p. 710.

(8) Campbell on Sale (1st ed.) p. 387. (t) Per Bayley, J., in Okell v. Smith (1815), 1 Stark. 107; Grimoldby

v. Wells, supra, explaining the head
note in Couston v. Chapman (1872),
L. R. 2 Sc. App. 250.

(u) Okell v. Smith, supra.

S. 36.

S. 36.

Liability of

buyer for

refusing delivery of

goods.

the analogous case of a carrier after a refusal of the consignee to receive(r), and, if he have tendered the goods back to the seller, he is entitled to his reasonable charges for their keep (y).

But the act of refusal must be unequivocal, and the buyer cannot annex conditions (z).

37. When the seller is ready and willing to deliver neglecting or the goods, and requests the buyer to take delivery, and the buyer does not within a reasonable time after such request take delivery of the goods, he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the goods. Provided that nothing in this section shall affect the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.

S. 37.

This section is based upon the opinion of Lord Ellenborough in Greaves v. Ashlin (a), and of Bayley, J., in Bloxam v. Sanders (b); in the former of which cases the learned judge says:-"If the buyer does not carry away the goods bought within a reasonable time, the seller may charge him warehouse room; or he may bring an action for not removing them if he be prejudiced by the delay." Both of the rights, which are rights in personam, would be enforceable under s. 57, and not seemingly under s. 50 (1).

The seller, however, will not be entitled to add any expenses incurred by reason of his retention of a lien under s. 39, as these charges are for his own benefit, and therefore no contract by the buyer to pay them would be presumed (c). See notes to s. 39, (1) (a), post, p. 217.

N. Y. (Sup. Ct.) 89.

(a) (1813), 3 Camp. 426. See also, in America, Dibble v. Corbett, 5 Bosw. 202.

(b) (1825), 4 B. & C. p. 950. See also per Lord Cranworth in Somes v. British Empire Shipping Co. (1858), E. B. & E. 353.

(c) Somes v. British Empire Shipping Co., supra; Crommelin v. New York, &c. Ry. Co., 4 Keyes, 90.

The seller, in fact, is, under this section, like the buyer, after a rightful refusal to accept under s. 36, in the position of an involuntary bailee of the goods, but presumably would be bound to only slight diligence in the care and custody, the valuable consideration in the sale being exhausted by the lapse of a reasonable time for delivery: according to the principle of the Roman law "" cum moram emptor adhibere cæpit, jam non culpam sed dolum tantum præstandum a venditore" (d). See the notes to s. 20, ante, p. 146. That section also shows that if the buyer's delay amounts to a "fault," as defined in s. 62 (1), he will also be liable to take the risk of any loss which might not otherwise have happened.

Provided that, &c.-The "rights of the seller" are, in this instance, to treat the contract as at an end, thus freeing himself from further liability, and to look to the buyer for compensation (e). See on this, s. 31 (2).

PART IV.

RIGHTS OF UNPAID SELLER AGAINST THE GOODS.

S. 37.

38.-(1.) The seller of goods is deemed to be an Unpaid seller "unpaid seller" within the meaning of this Act

(a) When the whole of the price has not been

paid or tendered;

(b) When a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise.

defined.

The seller of goods. In this part of the Act (ss. 38 to 48 in- S. 38 (1) (a). clusive) the definition of a seller given in s. 62 (1) is extended.

See sub-s. 2, post, p. 212.

The whole of the price. The unpaid seller may exercise his rights, notwithstanding a partial payment of the price (ƒ). But

(d) Poth. Contr. de Vente, 55.

(e) Per Lord Blackburn in Mersey Steel and Iron Co. v. Naylor (1884), 9 Ap. Ca. at pp. 442, 443.

G.

(f) Hodgson v. Loy (1797), 7 T. R. 440; Feise v. Wray (1802), 3 East, 93; Edwards v. Brewer (1837), 2 M. & W. 375; Van Casteel v. Booker (1848), 2 Ex. 691; Benj. p. 848.

P