§ 1399. On the other hand, the fact that the first instalments which have been accepted did not comply with the contract will not justify the buyer in refusing to accept subsequent instalments which do conform to it. Thus, in a case cited in the preceding section,' where there was a contract for the delivery of glass in instalments, and the first which had been received did not correspond with the contract, and the buyers thereupon refused to receive any more under the contract, the court said: "The fact that the glass delivered and received upon the contract was inferior did not give them the right to repudiate the contract altogether. They could demand better glass, and when the plaintiff offered to deliver the balance, if it was inferior, they could refuse to accept it. But if plaintiff was ready and willing to deliver for the balance such glass as the contract called for, they were bound to receive it." § 1400.. And so, still further, if the buyer has accepted part even under an entire contract, he must pay for that so accepted, notwithstanding the subsequent default of the seller, subject, however, unless he has waived it, to his right to recoup for the non-delivery of the residue.2 § 1401. —. Moreover, if the contract is severable, the refusal of the buyer, though wrongful, to accept part of the goods will not justify the seller in regarding the entire contract as repudiated, or release him from his obligation to deliver or tender the residue of the articles in accordance with the contract.3 § 1402. Rejection — Method and effect. Where the goods are not such as the buyer is bound to accept, he is, of course, 1 Cahen v. Platt (1877), 69 N. Y. 348, 25 Am. R. 203. So, where the buyer, without reserving the right to reject later deliveries, has accepted, paid for and retained certain instalments which did not comply with the contract, he cannot on that account refuse to receive later instalments which do conform. Guernsey v. West Coast Lumber Co. (1890), 87 Cal. 249, 25 Pac. R. 414. 2 Avery v. Wilson (1880), 81 N. Y. 341, 37 Am. R. 503. But see Nightin gale v. Eiseman (1890), 121 N. Y. 288. 3 Herzog v. Purdy (1897), 119 Cal. 99, 51 Pac. R. 27 [citing Morgan v. McKee, 77 Pa. St. 228; Young, etc. Mfg. Co. v. Wakefield, 121 Mass. 91]. justified in rejecting them. The law prescribes no particular method of rejection, and, in the absence of an agreement as to the method, any means which unequivocally indicates that the buyer refuses to accept the goods will suffice. The parties may agree that in case of rejection the buyer shall return the goods to the seller, but in the absence of such an agreement the buyer is under no obligation to return them: notice to the seller that they are rejected is all that the law requires.? $ 1403. The effect of an authorized rejection is to put the seller in default, and ordinarily to release the buyer from further obligation to accept. The parties by their agreement may and often do stipulate that, in case of the rejection of the goods first offered, the seller shall have the right to remedy the defects or substitute other goods in their place; but in the absence of such an agreement the law does not require the buyer to give the seller repeated opportunities for performance, or to accept a second tender after a first one has been rejected and after the time first agreed upon has expired.3 1 Notice of the buyer's refusal to accept is not invalid because it does not come from the hand or mouth of the buyer himself, but from a third person by the buyer's direction. Jones v. Mechanics' Bank, 29 Md. 287, 96 Am. Dec. 533. 2 McCormick Harvester Co. v. Chesrown, 33 Minn. 32, 21 N. W. R. 846; Exhaust Ventilator Co. v. Chicago, etc. Ry. Co., 69 Wis. 454, 34 N. W. R. 509; McCormick Harvester Co. v. Cochran, 64 Mich. 636, 31 N. W. R. 561; Gibson v. Vail, 53 Vt. 476; Starr v. Torrey, 22 N. J. L. 190; Smalley v. Hendrickson, 29 N. J. L. 371; Doane v. Dunham, 65 Ill. 512; Hunt v. Wyman, 100 Mass. 198; Gray v. Con- The statement in the letter of purchasers of patterns to the seller, “We fear we cannot use them at all. We must either be paid for the extra cost or will return the patterns. Please advise us what to do in the matter," is not an absolute refusal to accept. Bascom v. Danville Stove Co. (1897), 182 Pa. St. 427, 38 Atl. R. 510. 1218 3 See McCormick Harvester Co. v. Russell, 86 Iowa, 556, 53 N. W. R. 310. § 1446. Agent having possession or 2. Construction of the Authority. other indicia of ownership § 1455. Can receive nothing but may receive payment. 1447. Agent to sell merely or to solicit orders, without possession of goods, not authorized to receive payment. 1448. When traveling salesmen may receive payment. money. 1456. No authority to release or compromise the debt. 1457. May receive part payment. 1460. No authority to take checks. 1463. No authority to deal with MADE. 1465. By purchaser or his agent. 1466, 1467. By stranger. § 1404. In general.— The last duty of the buyer in the line of performance, remaining to be considered, is that of payment for the goods. It is the duty of the buyer to pay the price agreed upon at the time, in the manner and at the place which the contract requires. It is not deemed necessary to go at large into the question of payment in general, as that belongs more appropriately to other treatises, but so much of the general subject as is germane to the subject of sales of personal property requires consideration, and will be dealt with as follows: I. When payment is due. V. To whom payment to be made. 1220 I. WHEN PAYMENT IS DUE. § 1405. Considerations controlling. It has been seen in earlier sections that the title to goods may be transferred in our law merely by force of the contract and intention of the parties. Where the goods are specific, an unconditional agreement for their sale and purchase presumptively operates a present transfer of the title, even though the goods are not presently delivered or paid for. Where conditions expressly or impliedly intervene, or the goods are not yet ascertained, the title, as has been seen, will still pass by operation of the contract when the condition has been performed or the goods have been appropriated. § 1406. - On the transfer of the title, a corresponding obligation to pay the price must immediately arise. But though the title may have passed, the buyer may not be impliedly entitled to possession; and so, though an obligation to pay the price may have arisen, the performance of that obligation may not be due until some future time. Before the transfer of the title, moreover, by express stipulation an obligation to pay the price may arise. Assuming that such an obligation may thus arise, it becomes important to determine when its performance is due; and to the consideration of that question this first subdivision will be devoted. 1407. When no term of credit, payment and delivery presumptively contemporaneous.— As has been already seen,' where the contract is silent as to the time of payment and no term of credit is agreed upon, the law presumes that the sale is for cash and that payment and the delivery are to be immediate and concurrent acts. In the ordinary case of present sale, therefore, silent as to the time of payment or delivery, the seller is under obligation to make an immediate delivery 1 See ante, § 538 et seq. |