§ 1153. Resume of cases.-The learned English editors of Benjamin on Sale summarize the results of the English cases, with which the American cases substantially agree, as follows: "Where, in contracts for the delivery of goods by instalments, there have been applications for postponement, and a subsequent request for delivery by the buyer: "(A) Where the request is within the contract time. "(1) The seller is bound to deliver, although there has been postponement at the buyer's request.1 "(2) It has not yet been decided whether the seller is bound to deliver all the quantities within the contract time, or only withheld the delivery of the twentyfive tons in consequence of a request by the vendee before the expiration of the agreed time, viz., in July, the action was not maintainable upon the original contract; and that the subsequent conversation with the vendors' manager could not be relied upon either as a new contract or as an arrangement for an altered time of delivery. quence of a request to him to do so, Brett, J., in delivering the opinion of the court, said: "It is true that a distinction has been pointed out and recognized between an alteration of the original contract in such cases, and an arrangement as to the mode of performing it. If the parties have attempted to do the first by words only, the court cannot give effect in favor of either to such attempt; if the parties make an arrangement as to the second, though such arrangement be only made by words, it can be enforced. The question is, what is the test, in such an action as the present, whether the case is within the one rule or the other. Where the vendor, being ready to deliver within the agreed time, is shown to have withheld his offer to deliver till after the agreed time, in conse- supra. 1 Citing Tyers v. Rosedale Iron Co., within some reasonable time afterwards, though the latter appears to be the better opinion.1 "(B) Where the request is after the contract time. 66 (1) If the postponement has taken place at the buyer's request he is estopped from denying that the seller was ready and willing to deliver within the contract time.2 "(2) If the postponement has taken place at the seller's request, he cannot maintain an action on the original contract, because he cannot prove he was ready and willing to deliver pursuant to the contract." 4. The Thing to be Delivered. § 1154. Article delivered must be the article agreed upon. The article delivered or demanded under the contract must be the article which the parties respectively agreed to buy and sell. If they contracted in respect of a definite, ascertained and existing article, nothing but that identical article will satisfy the contract: the seller cannot deliver anything in its stead, nor can the buyer demand something else in place of it. The tender of something else, though equally valuable or useful, will not satisfy the seller's duty. Neither can the buyer be compelled to take something else at a reduced price. This is too obvious to require extended discussion." 1 Citing Tyers v. Rosedale Iron Co., duced price. National Water Pur. supra. Co. v. New Orleans Water Works Co. 2 Citing Ogle v. Earl Vane and (1896), 48 La. Ann. 773, 19 S. R. 861. Hickman v. Haynes, supra. An excellent illustration of this is found in the late case of WebsterGruber Marble Co. v. Dryden (1894), 90 Iowa, 37, 57 N. W. R. 637. In this case a contract was made for the sale of a particular monument, selected and in stock, though the buyers at the time had not seen it. Upon examination they refused to receive it because of a flaw in one of the stones. The seller admitted the flaw, but proposed to get a new and perfect stone in its place. The buyers 3 Citing Plevins v. Downing, supra. 4" When a person buys a particular thing, he cannot be compelled to take some other thing, even if like the thing he bought" (Columbian Iron Works v. Douglas (1896), 84 Md. 44, 34 Atl. R. 1118, 57 Am. St. R. 362), even though the thing tendered is of equal value or usefulness (King v. Rochester (1892), 67 N. H. 310, 39 Atl. R. 256); nor can he be compelled to take something else even at a re § 1155. So, though the article is not definitely ascertained or is not in existence at the time of the contract, if the undertaking is that the thing sold, when ascertained or in existence, shall be of a certain kind, or possess certain qualities or characteristics, then it is equally obvious that nothing but still refused to accept it. The seller sent for a perfect stone, lettered it, and offered to erect the whole monument as agreed upon, except for the substitution of this stone. The buyers refused to permit its erection, having bought another monument. Held, that the seller could not recover. Said the court: "A particular monument was purchased, of which complaint was afterwards made, and there was a refusal to accept it as it was, or with other stones, that would remove the flaws which were the grounds of objection. Plaintiff, with a view to enforce performance on the part of defendants, did the work and incurred the expense necessary to comply on its part. It, however, used other stones for the part of the monument above the base, and we are to say whether such a compliance will authorize recovery for the contract price. It is a case in which the parties are especially relying on their legal rights. We are satisfied that, before seeing the monument, defendants did not intend to take it if they could avoid it. We are also satisfied that plaintiff, while willing to make changes that would be of no detriment to it, would not do more, and insisted on every advantage the contract gave. Did the contract authorize the change made? We think not. It was not a purchase of a monument of a particular kind, but a purchase of a particular monument of a particular kind one in stock, selected. If the stones were imperfect there was no sale, for it is agreed that the intention was to sell a perfect monument. The sale of an imperfect monument for a perfect one would not be a sale of one that was perfect of the same kind. It was the sale of a particular article. If the monument was not imperfect, the plaintiff had the right to perform its contract and recover, but it must perform by delivering the particular thing purchased. If it was imperfect, then the order was obtained by misrepresentation, and conferred no rights upon plaintiff. So that, in either event, whether the change was made to avoid an unfounded complaint as to flaws or to remedy an actual defect, the result is the same. In the case of an actual defect it was the plaintiff's duty to treat the contract as of no force. In the other case it was its duty to disregard complaints and deliver the article sold, if it designed a legal enforcement of its rights. The contract provides that the defendants will not countermand the order. Appellant places much reliance on that particular provision, and refers to the case of McAlister v. Safley, 65 Iowa, 719, 23 N. W. R. 139. With our disposition of this case that one has no applicability. The holding there is that an unconditional contract for the delivery of a monument gives no right of rescission. Plaintiff's right of recovery is not denied on the ground of a rescission of the contract by defendants, but on the an article of the kind or with the qualities or characteristics agreed upon can satisfy the contract; and again, the seller cannot be required to deliver something else, nor can the buyer be required to accept and pay for a thing different from that which he contracted to receive.1 § 1156. This requirement of conformity to description or sample is usually considered in American cases under the ground of non-performance on its part." A contract of sale provided that a tender of a bunch of cattle of a certain age should be made at a specified time. An offer of cattle older than those contracted for was made, and it appeared that they were probably more valuable. Held, that it did not satisfy the terms of the contract. Vassau v. Campbell (1900), 79 Minn. 167, 81 N. W. R. 829. In American Hoist & Derrick Co. v. Johnson (1897), 114 Mich. 172, 72 N. W. R. 154, defendant ordered from plaintiff an engine mounted on a truck as illustrated in a certain cut in plaintiff's catalogue. The truck sent was higher than the one shown in the cut, and the wheels were different as to size, number of spokes and width of tires. Held, that a finding by the jury that the machinery sent was not substantially the same as that ordered would not be disturbed. This is the rule laid down in the case of Pope v. Allis (1885), 115 U. S. 363, 20 L. ed. 393, 6 Sup. Ct. R. 69, where Woods, J., says: "When the subject-matter of a sale is not in existence, or not ascertained at the time of the contract, an undertaking that it shall, when existing or ascer tained, possess certain qualities, is not a mere warranty, but a condi tion, the performance of which is precedent to any obligation upon the vendee under the contract; because the existence of those qualities, being part of the description of the thing sold, becomes essential to its identity, and the vendee cannot be obliged to receive and pay for a thing different from that for which he contracted," citing Chanter v. Hopkins, 4 M. & W. 399; Barr v. Gibson, 3 M. & W. 390; Gompertz v. Bartlett, 2 EL & Bl. 849; Okell v. Smith, 1 Stark. N. P. 107; Woodle v. Whitney, 23 Wis 55, 99 Am. Dec. 102; Boothby v. Scales, 27 Wis. 626; Fairfield v. Madison Mfg. Co., 38 Wis. 346. See also Filley v. Pope, 115 U. S. 213, 29 L ed. 372, 6 Sup. Ct. R. 19; Norrington v. Wright, 115 U. S. 188, 29 L. ed. 366, 6 Sup. Ct. R. 12; Cleveland Rolling Mills v. Rhodes, 121 U. S. 255, 30 L. ed. 920, 7 Sup. Ct. R. 882; Johnson v. Hibbard (1896), 29 Oreg. 184, 44 Pac. R. 287: Brewer v. Housatonic R. R. Co., 104 Mass. 593; Bowes v. Shand, 2 App. Cas. 455 (where Lord Cairns says that the plaintiff, who sues upon the contract, "has not launched his case until he has shown that he has tendered the thing which has been contracted for, and, if he is unable to show that, he cannot claim any damages for the non-fulfillment of the contract"); Walker v. Davis (1889), 65 N. H. 170, 18 Atl. R. 196; Gregson v. Coal Co. (1899), Tenn. Ch. App. (aff'd) 54 S. W. R. 113. 1 head of warranty, and in conformity to that practice will be treated under that head; but it is obvious that, in many cases at least, it is something more than a warranty-something more than a collateral incident to the main contract — it is the contract, or, if a warranty at all, it is "a warranty in the sense in which that term is used in insurance and maritime law; that is to say, a condition precedent upon the failure or non-performance of which the party aggrieved may repudiate the whole contract." 2 § 1157. Amount delivered must be the amount agreed upon.- Not only must the article delivered correspond in kind with that agreed upon, but it must also correspond in amount. Where a specific quantity or number is agreed upon, to be delivered at one time, that quantity or number must be delivered, and the seller will not perform his undertaking if he delivers either more or less. The buyer may, indeed, waive the discrepancy and agree to take the larger or the smaller quantity and thus become liable therefor, but he cannot be compelled to do so. Thus, going into detail — 3 § 1158. Tender of too much - Rejection - Selection. Where the seller delivers or tenders delivery of a greater quantity than was agreed upon, the buyer may refuse to receive it and reject the whole. He is not ordinarily obliged to select 1 See post, §§ 1320, 1333. 2 See per Gray, J., in Norrington v. Wright, supra. So in Aultman v. Clifford, 55 Minn. 159, 56 N. W. R. 593, it is said: “A delivery of property so as to pass the title to it, and make the transaction an executed contract, should be a delivery of property corresponding with the order or contract, which is a condition precedent to the vesting of the title in the vendee." See also the full discussion in Morse v. Moore, 83 Me. 473, 23 Am. St. R. 783, 13 L. R. A. 224, 22 Atl. R. 362; Jones v. George, 61 Tex. 345, 48 Am. R. 280; Bagley v. Cleveland Rolling Mill Co., 21 Fed. R. 159; Haase v. Nonnemacher, 21 Minn. 486; American Bronze Co. v. Gillette, 88 Mich. 231, 26 Am. St. R. 286, 50 N. W. R. 136. 3 See following sections. 4 Dixon v. Fletcher, 3 Mees. & Wels. 146; Hart v. Mills, 15 Mees. & Wels. 85; Cunliffe v. Harrison, 6 Exch. 903; Cleveland Rolling Mills Co. v. Rhodes, 121 U. S. 255, 30 L. ed. 920, 7 Sup. Ct. R. 882; Norrington v. Wright, 115 U. S. 188, 29 L. ed. 366, 6 Sup. Ct. R. 12; Stevenson v. Burgin, 49 Pa. St. 36; Rommel v. Wingate, |