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MISTAKE,

rules as to, preserved by Act, 304.

effect of a mutual, as to existence of goods on assent, 2, 6, 58.
as to identity of the other party, 2.

effect of, in exhibiting a wrong sample, 104.

money paid on a, of fact, recoverable as on failure of consideration,

294.

a, of fact, to justify repudiation, must, at law, amount to a total failure
of consideration, 306.

equitable rule as to, 306.

MONEY,

consideration in, in part, necessary to a sale, 2, 5.

other contracts distinguished on this ground, 5.

excluded from the definition of "goods," 23, 312.

MONEY HAD AND RECEIVED, money paid on a failed consideration re-
coverable as, 294.

MONTH,

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prima facie means a calendar, 64, 67.

the 29th of February separately counted, 183.

'MORE OR LESS," meaning of, when added to quantity of goods, 190.

MORTGAGE, contracts by way of, excluded from Act, 3, 309.

MORTGAGOR may pass a good title to the goods, when, 148, 149, 150
(Ill. 1).

NECESSARIES,

defined, 9, 15-17.

liability of person under disability to pay for. See Capacity.
wife, the husband's agent of necessity to buy, 20.

NEGOTIABLE INSTRUMENT. See Bill or Note.

NOTE OR MEMORANDUM,

signed, of contract, when necessary under sect. 4...21, 42.
dispensed with by acceptance and actual receipt, 21, 32.

or by earnest or part payment, 41, 42.

common law rule as to contracts in writing, 42.

not changed by sect. 4...42.

any signed writing embodying terms sufficient, 43.

character of, required, 43.

signed paper must refer to unsigned, or have been originally at-
tached, 43.

identification, in writing, of another document unnecessary, 44.

separate papers constituting a, must be mutually consistent, 44.
sufficiency of a, 44, 45.

evidence of terms of contract only required, 44, 45.

necessary contents of a, detailed, 45, 46.

semble, no distinction between sect. 4 and sect. 4 of the Statute of
Frauds with regard to the statement in the, of the consideration,
45, 46.

substituted contract must be evidenced by a, 47.

substituted mode of performance distinguished from substituted con-
tract, 47, 48.

semble, a contract in writing, under sect. 4, may be wholly rescinded
by parol, 48.

memorandum may be subject to a contingency, 48.

NOTE OR MEMORANDUM-continued.

admissibility generally of parol evidence with regard to. See Parol
Evidence.

illustrations of note or memorandum, 49, 50.

signature to. See Signature.

agent to sign. See Signature.

NOTICE,

by buyer of insolvency, when it amounts to an invitation to rescind,
66, 197.

of limitation of time of warranty, how proved, 109.

by seller of acts to put goods in deliverable state, or to ascertain
price, 119, 122, 124.

want of, of rejection of goods sent on approval, &c., 125, 126.

buyer in market overt must not have, of defect of title, 150, 153.
nor buyer from seller with voidable title, 153, 154.

effect on title of second buyer, &c., from seller or buyer in possession
of, 160, 165, 169.

sect. 48 (2) compared with sect. 25 (1) on this point, 161, 266.

sect. 47 compared with sect. 25 (2) on question of, 168, 261. See Title.
effect of, on title acquired from judgment debtor, 171.

delivery or acceptance may be conditional on, by buyer or seller,
174, 175, 181.

payment may be conditional on, by seller of amount, 175.

buyer's, of rejection of goods, 207.

by seller by way of stoppage in transit, 252, 253. See Stoppage in
Transit.

by unpaid seller of intention to re-sell, necessary, when, 267.
See Knowledge.

NOTOUR BANKRUPT, 315.

"ON REQUEST," goods deliverable, effect of, 277, 278.

OPINION, statement of, as distinguished from warranty, 109, 110.
ORDER,

sale under, of Court, good, 148, 150.

for restitution of goods, semble preserved, 159.

ORDER AND DISPOSITION, goods sent on approval in the, of bailee, 128.
"OTHER DISPOSITION," meaning of, 163, 257, 262.

OWNER,

of goods, may adopt tortious sale by third person, 19, 20.
when person not an, may sell, 148. See Title.

PAROL EVIDENCE,

admissible at common law to prove oral terms of contract partly in
writing, 18.

may determine the issue, although acceptance by buyer under s. 4...31.
in proof of earnest or part-payment, 41.

to connect writings as a memorandum, inadmissible, 44.

to identify document, admissible, 44.

to prove acceptance of written proposal used as memorandum, 45.

to show respective characters of parties under sect. 4...45.

of agreement as to price admissible to invalidate memorandum silent
on that point, 46.

inadmissible to prove

substituted contract under sect. 4...47.

but admissible to prove assent to substituted performance, 47, 48.
or to prove voluntary forbearance as to mode of performance, 47,
rules as regards the latter, 48.

[48.

PAROL EVIDENCE-continued.

admissible to show when a writing becomes a, 48.

or that a writing is not a complete memorandum of the contract,
46, 48.

to explain a latent ambiguity, 44, 46, 48.

to show that contract dependent on a contingency, 48.

to charge the principal instead of the agent, 48.

admissible to wholly rescind contract under sect. 4...48.

other cases in which, admissible in contracts under sect. 4...48.
assent to signature of memorandum proveable by, 51.

appointment of agent to sign memorandum proveable by, 51.
inadmissible to increase damages under written contract, 280.

PARTIES,

to contract of sale, may be partners or part-owners, 1, 5, 6.
competent, necessary to contract of sale, 2.

capacity of. See Capacity.

parol evidence admissible under sect. 4 to show respective situation
of, 48.

PARTNERS-PART-OWNERS. See Parties.

PART-PAYMENT, under sect. 4. See Earnest or Part-payment.

PARTY TO BE CHARGED, signature by, under sect. 4. See Signature; Note
or Memorandum.

PATENT, no condition of fitness on sale of a specified article under its,
name, 90, 94.

PAWNBROKER,

ordinarily no condition of title on sale by, 80.

selling under power of sale can pass a good title, 149.

title under 1 Jac. 1, c. 21, s. 5 (repealed), 151.

PAYMENT,

part, under sect. 4. See Earnest or Part-payment.

in performance. See Contract of Sale; Price; Performance.
stipulations as to time of, prima facie not conditions, 64.

seller cannot repudiate contract ordinarily on buyer's default in, 65.
when buyer's default justifies repudiation, 66, 67, 68.

by buyer in default necessary when seller gives notice of resale, 267.
by buyer, relying on breach of warranty, into Court in Scotland on
seller's action for price, 303.

PENALTIES, in sub-contract, not as such recoverable by buyer as special
damages, 293.

PERFORMANCE,

assent to substituted mode of, under sect. 4...47.

rules as to voluntary forbearance as to time of, under sect. 4...47, 48.
how affected by causes invalidating contract, 304–308.

excused when specific goods perish, when, 59, 77.

when valuation of goods fails, 62.

by reason of impossibility, illegality, or excepted risks or waiver, 76,
77.

when implied waiver takes place, 77-79.

Delivery and Acceptance,

duties of parties as to delivery, acceptance, and payment, 173 et
seq.

terms of contract must be duly followed, 173, 174.

PERFORMANCE-continued.

Delivery and Acceptance-continued.

delivery and acceptance subject to conditions, 173-175.
delivery defined, 310.

symbolical delivery, 174.

by bill of lading, 174.

goods must be of right quantity and description, 85, 86, 174.
irregular tender, when revocable, 175.

acceptance defined, 175.

depends on regularity of seller's delivery, 175.

when buyer's duty to accept at substituted place, 175.

non-liability of buyer under incapacity to accept necessaries, 13,

14.

part, under an entire contract, turns a breach of a condition into
a warranty, 73.

time for, not extended by warranty limited in time, 109, 110.
Payment,

when the liability to pay arises, 175, 176.

payment to true owner good as against seller without title, 62,
175.

when buyer entitled to credit for goods payable by bill or note,
175, 176.

"bill with option of cash," and "cash with option of bill," 176.
Mr. Benjamin's statement of law with regard to payment, 176,
177, 210, 211.

payment in a negotiable security may be absolute or conditional,
176.

a question for the jury, 176.

rights of parties in such cases, 176, 177.

illustrations of delivery, acceptance, and payment, 177, 178.
delivery and payment primâ facie concurrent conditions, 178.
contrary agreement, 179, 180.

meaning of "ready and willing," 180.

illustrations of concurrent conditions, 180.

Place of Delivery,

whether seller to send, or buyer take, goods depends on contract,

181.

prima facie seller need not send, 181.

place of delivery, 181.

in case of specific goods whose situation is known, 181.

notice by seller of uncertain place of delivery, 181.

Time of Delivery,

seller bound to send, must send within reasonable time, 182, 184.
such time a question of fact, 182, 298.

explanation of various terms used in the computation of time,

183.

postponement of time, 183.

Goods in Possession of Third Party,

no delivery in such cases without attornment, 184, 186.
documents of title excepted, 184, 186.

delivery, how made by bill of lading, 184, 185.

with other documents of title, attornment necessary, 185.

Hour of Delivery,

demand and tender of delivery at reasonable hour, 186, 187.
a question of fact now, 186, 298.

Expenses,

of putting goods in deliverable state, how borne, 187.

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PERFORMANCE-continued.
Quantity, &c. of Delivery,

rights, &c., of buyer, when delivery of less or more, 188–191.
or of the goods mixed with others, 188, 192.

may be modified by usage, agreement, or course of dealing, 188,
192, 193.

contract of sale prima facie entire, 194, 195.

66

"" 66
cargo," cargo as it stands," 189.

words of estimate as distinguished from words of contract, 189,
190.

99.66

"about," more or less," " say about," 190.

general rule as to quantity judicially stated, 190.

payment for deficient or excessive quantity, if accepted, 188, 191,
194.

recovery of price prepaid, 191.

illustrations of the quantity of delivery, 191, 192.

illustrations of mixed quantities, 192.

illustrations of special agreements, trade usages, with regard to
quantity, 193, 194.

Instalments,

buyer prima facie not bound to accept goods by, 194, 195.

rule as to partial breaches of instalment contracts, whether vital
or not, 194, 196, 197.

question depends on contract and circumstances, 194, 196, 197.
no distinction between partly performed and unperformed con-
tracts, 196.

breach must be accepted by other party, 196.

true value of goods already delivered recoverable, 196.

a certain delay may be provided for, 196.

illustrations of breaches of instalment contracts, 197, 198.

Delivery to Carrier,

if authorized, primâ facie a good delivery to buyer, 198, 199, 200.
when delivery to carrier not one to buyer, 199, 200.

delivery good, and yet price not payable, when, 200.

seller must make reasonable contract with carrier, 198, 200, 201.
rights of buyer on seller's default, 198, 201.

buyer may be estopped, 201.

seller must follow express instructions, 201.

notice by seller to buyer with a view to insurance, when, 198,

201.

buyer takes risk of necessary deterioration in transit, 201, 202.
Acceptance,

none, unless buyer has reasonable opportunity of examination,
202, 203.

place of delivery prima facie the place of examination, 204.
what acts amount to acceptance, 205, 206.

buyer rightfully rejecting, prima facie not bound to return goods,
207.

rightful rejection, how exercised, and effect thereof, 207.

liability of buyer for not taking delivery after request, 208, 298.
default may amount to repudiation of contract, 208.

Liability for Non-performance. See Action.

'PERISH,"

not defined in Act, 58, 267.

suggested meaning of, 58.

PERISHABLE, sale of, goods by order of Court, 267. See Perish.

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