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S. 7.

"Fault" as affecting transfer of risk.

at the time of the contract, and afterwards the disease had come and destroyed them, according to the authorities (x) it is clear that the performance would have been excused; and I cannot think it makes any difference that the potatoes were not then in existence. This is not the case of a contract to deliver so many goods of a particular kind, where no specific goods are to be sold. Here there was an agreement to sell and buy 200 tons out of a crop to be grown on specific land, so that it is an agreement to sell what will be and may be called specific things" (y).

....

Without any fault . . . . perish before the risk passes to the buyer. "Fault" is defined in s. 62 (1) as "wrongful act or default," and is also found in ss. 9 (2) and 20. It was defined as equivalent to culpable negligence in The Famenoth (z).

It follows that, when either party is in fault, he is not excused from performing his part, and cannot recover damages against the other for non-delivery or non-acceptance, as the case may be.

This section should be read with s. 20, which shows that risk of any loss" which might not have occurred but for" the fault of either party in delaying delivery, attaches to that party. These are very wide words, and it would seem that where the buyer delays delivery, and the loss might not otherwise have occurred, the "risk" spoken of in this section would pass to him, and, consequently, the seller would be excused from delivering. Similarly, if the delay was caused by the seller. The liability of either party, it will be observed, is heavier under s. 20 than under the present section. Under the latter, the fault must apparently be the direct cause of the destruction of the goods. Under s. 20, the fault need only be the possible cause; see notes to s. 20, post, p. 145.

If the goods perish after the risk passes to the buyer, either by virtue of the passing of the property, or by the buyer's having agreed to or being compelled to take the risk, the buyer is liable for the price under s. 49 without delivery (a).

ILLUSTRATIONS.

1. A. agrees to sell B. 200 tons of potatoes, of which the greater part is not then sown, from certain lands, at 31. 10s. a ton. The potatoes are afterwards sown, and are amply sufficient in ordinary seasons to produce 200 tons. Before maturity, disease, without the fault of A., attacks the crop, and A. is only able to deliver eighty tons. A. is not liable to B. for the non-delivery of the 120 tons, as he only agreed to sell 200 tons out of a crop to be grown on specific land. Howell v. Coupland (1876), 1 Q. B. D. 258.

(x) Taylor v. Caldwell (1863), 3 B. & S. 826; Appleby v. Myers (1867), L. R. 2 C. P. 651.

(y) Per Mellish, L.J., in Howell v. Coupland (1876), 1 Q. B. D. 258.

(*) (1882), 7 P. D. 207.

(a) See Martineau V. Kitching (1872), L. R. 7 Q. B. 436; Castle v. Playford (1870), L. R. 7 Ex. 98.

2. A. agrees to sell to B. a specific horse on the terms that B. should try the horse and pay for him at the end of eight days, if satisfactory. The horse dies, without B.'s fault, within the time. B. is not liable for the price of the horse, as the property, i.e., risk, did not pass to him unless at the end of eight days he kept the horse. Elphick v. Barnes (1880), 5 C. P. D. 321 (b).

3. A. agrees to sell to B. certain specific titlers of sugar at so much a hundredweight, to remain at A.'s risk for two months, and to be weighed when delivered to the purchaser. After the two months the titlers are consumed by fire, without fault of A. or B. B. is liable to pay for the sugar, the risk having passed to him (1) [Probably] by reason of the passing of the property; (2) At any rate, because he took the risk after two months. Martineau v. Kitching (1872), L. R. 7 Q. B. 436 (c).

S. 7.

The Price.

ment of price.

8.-(1.) The price in a contract of sale may be Ascertainfixed by the contract, or may be left to be fixed in manner thereby agreed, or may be determined by the course of dealing between the parties.

(2.) Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case.

Price is defined in S. 1 (1).

Fixed in manner thereby agreed.-e.g., by valuation under s. 9. But the fixing of the price must not involve a wager, otherwise the contract is void (d). For the ascertainment of the price when at the option of the seller, see notes to s. 27, post, p. 175.

When the price is to be determined by the course of dealing between the parties, it would be determined according to their implied contract, as they presumably contract with reference to their previous course of dealing.

As to interest on the price, see notes to s. 54. The price of goods sold, duty-paid, may, when the duties have been changed since the contract, be increased or decreased, in the interest of the seller or buyer, as the case may be, by virtue of the 39 & 40 Vict. c. 36, s. 20 (Customs Consolidation Act, 1876).

(b) Cf. Chapman v. Withers (1888), 20 Q. B. D. 824.

(c) See also Castle v. Playford (1870), L. R. 7 Ex. 98.

(d) Brogden v. Marriott (1836), 3 B. N. C. 88; Rourke v. Short (1856), 5 E. & B. 904.

S. 8 (1).

S. 8 (1).

S. 8 (2).

Agreement to sell at valuation.

S. 9 (1).

The above rules, &c. would be preserved by s. 61 (2), (3) of the Act.

For the effect of payment to the true owner of goods sold without title, see notes to s. 27, post, p. 175.

A reasonable price. This sub-section is based upon the rule originally laid down, with regard to executed contracts, by Acebal v. Levy (d), and, with regard to executory contracts, by Hoadley v. McLaine (e).

The current price of goods at the port of shipment is not necessarily a reasonable one, as it may depend on exceptional circumstances (d).

Where the rate of price has been fixed, but the exact calculation is impossible by reason of the perishing of the goods, the jury must make such estimate as they reasonably can (ƒ).

9.-(1.) Where there is an agreement to sell goods on the terms that the price is to be fixed by the valuation of a third party, and such third party cannot or does not make such valuation, the agreement is avoided; provided that if the goods or any part thereof have been delivered to and appropriated by the buyer he must pay a reasonable price therefor.

(2.) Where such third party is prevented from making the valuation by the fault of the seller or buyer, the party not in fault may maintain an action for damages against the party in fault.

This sub-section is based upon Thurnell v. Balbirnie (g), and the proviso upon Clarke v. Westrope (h).

On the terms.- "It is not uncommon for the parties to agree that the price of the goods sold shall be fixed by valuers appointed by them. In such cases, they are, of course, bound by their bargain, and the price when so fixed is as much part of the bargain as if fixed by themselves. But it is essential to the formation of the contract that the price should be fixed in accordance with this agreement; and if the persons appointed as valuers fail, or refuse to act, there is no contract in the case of an executory agreement, even though one of the parties should

(d) (1834), 10 Bing. 376.

(e) Ibid. 482. See in Am. Shealy v. Edmunds, 49 Am. R. 43.

(f) Per Blackburn, J., in Martineau

v. Kitching (1872), L. R. 7 Q. B. at p. 456.

(9) (1837), 2 M. & W. 786.

(h) (1856), 18 C. B. 765.

himself be the cause of preventing the valuation (i). But if the agreement has been executed by the delivery of the goods, the seller will be entitled to recover the value estimated by the jury, if the buyer should do any act to obstruct or render impossible the valuation, as in Clarke v. Westrope" (j).

An agreement for a valuation is not a submission to arbitration under the Common Law Procedure Act (17 & 18 Vict. c. 125, s. 12) (k).

Cannot or does not make such valuation.-The Act in this sub-section does not expressly refer to the case where one party has been the cause of the valuer not acting. In such a case, however, he would be in "fault," under sub-s. 2, and liable to an action for damages.

If the valuer accepts the employment and makes default, he also is liable in damages (1); and collusion by the buyer with the valuer, would be a fraud (m).

The valuation, being a personal act, cannot be delegated. Accordingly, the buyer will prima facie not be liable on the valuation of the valuer's agent (n). In such a case the appointed valuer "does not" act.

Provided. This proviso is based upon Clarke v. Westrope (o). It is an illustration of the general principle of law, thus stated in a leading work (p), as applying to "cases in which the special contract, being unperformed, a new contract has been implied from the conduct of the parties to pay a remuneration commensurate with the benefit derived from the partial performance." The buyer will be liable to pay a reasonable price for the goods which he has accepted under a new implied contract under s. 3, ante, p. 19.

Appropriated. It is apprehended that the "appropriation," though not a technical term like "acceptance," is equivalent thereto, and that "appropriation " means a taking to the goods by the buyer as owner under s. 35, whether or not he has consumed them. "Appropriate" is defined in Metropolitan Ry. Co. V. Fowler (9) as "to take and keep a thing by exclusive right."

(i) Cooper v. Shuttleworth (1855), 25 L. J. Ex. 114; Vickers v. Vickers (1867), L. R. 4 Eq. 529.

(j) Benj. p. 90.

(k) Bos v. Helsham (1866), L. R. 2 Ex. 72; Re Dawdy (1885), 15 Q. B. D. 426.

(1) Jenkins v. Beetham (1854), 15 C. B. at p. 187; Turner v. Goulden

(1873), L. R. 9 C. P. 57.

(m) Batterbury v. Vyse (1863), 2 H. & C. 42.

(n) Ess v. Truscott (1837), 2 M. & W. 385.

(o) (1856), 18 C. B. 765.

(p) 2 Sm. L. C. (9th ed.) at p. 34,

notes to Cutter v. Powell.

(1) (1893), 62 L. J. Q. B. at p. 557.

S. 9 (1).

S. 9 (1).

S. 9 (2).

Stipulations as to time.

S. 10 (1).

ILLUSTRATIONS.

1. A. agrees to sell to B. certain goods on the valuation of C. on behalf of A., and D. on behalf of B. C. is ready and willing to value, but D. neglects to do so, though he is not hindered by B. C., after notice to B., values the goods at 5007. B. is not liable to A. for nonacceptance or non-payment. Thurnell v. Balbirnie (1837), 2 M. & W. 786.

2. A., an outgoing tenant, agrees to sell to B., the incoming, the hay and straw on the premises on the valuation of C. and D. Before the valuation B. consumes the goods. B. must pay the price as reasonably estimated. Clarke v. Westrope (1856), 18 C. B. 765.

Fault is defined in s. 62 (1), infra, as "wrongful act or default." For possible definition, see under ss. 7 (ante, p. 60) and 20 (post, p. 146).

An action for damages. It is not quite clear whether an "action for damages means an action for preventing the valuation, but the phraseology of the sub-section seems to mean this. See on this, Thomas v. Fredericks (r). This is according to the principle that "Where parties have agreed that something shall be done, which cannot effectually be done, unless both concur in doing it . . . each agrees to do all that is necessary to be done on his part for the carrying out of that thing "(s).

Conditions and Warranties.

10.-(1.) Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale. Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract.

(2.) In a contract of sale "month" means primâ

facie calendar month.

Unless a different intention.-One case is provided for by the Act in s. 48 (4), infra, where, by virtue of an express condition subsequent, the seller may repudiate the contract. So, also, under s. 55, the parties may expressly agree, e. g., upon a ready money bargain, i. e., that the property shall not pass except on payment or delivery (t); or that otherwise punctual payment shall be a condition precedent to the transfer of the property.

() (1847), 10 Q. B. 775.

(8) Per Lord Blackburn, in Mackay v. Dick (1881), 6 Ap. Ca. at p. 263, quoting Y. B. 9 Edw. 4; Easter Term, 4A.

(t) Per Bayley, J., in Bishop v. Shillito (1819), 2 B. & A. 329, n.; Loeschman V. Williams (1815), 4 Camp. 181.

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