CHAPTER XI

SALES: PERFORMANCE OF THE CONTRACT

175. Delivery of the goods.-The seller is under obligation to deliver to the vendee the goods sold according to the terms of the contract. And the vendee is under obligation to receive and pay for them according to those terms. In the absence of an agreement to the contrary these obligations are concurrent. The seller must tender delivery before he may sue for the price, and the vendee must tender the price before he may sue for non-delivery.

Goods are delivered when they are placed under the buyer's control so that he may remove them immediately. The test is the intention of the parties. As a rule, by delivery of the goods is meant a transfer of possession of them. This does not apply, however, where the goods sold are in the buyer's possession at the time of the sale. In such case delivery is effected merely by the seller's expression of assent to the transfer of title. Ordinarily, delivery, as applied to a change of possession in pursuance of a sale, includes both the act of the vendor in transferring the property and that of the vendee in receiving it.

When the buyer is under obligation to perform one or more conditions precedent before delivery these conditions must be complied with before the obligation to deliver arises. (See section 169.)

176. Place of delivery.—As a rule, the seller is under no implied obligation to carry the goods to the vendee,

but merely to place them at his disposal. Ordinarily, the place of delivery is the place where the goods are at the time of the sale, which usually is the buyer's place of business or his residence. There are, however, exceptions to this rule. Surrounding circumstances may justify the inference that delivery is to be made at some other place. Thus, the nature of the goods, previous dealings between the parties, or general usage may justify such inference.

177. Delivery to a carrier.-Where the seller is under obligation to send the goods to the buyer, delivery to a common carrier is, as a rule, delivery to the buyer. Especially is this the case where delivery is made to a carrier named by the buyer. The carrier in such case is ordinarily the agent of the buyer, and has been held to be such even where the seller pays the freight.1 On the other hand, it has been held that where the contract expressly provides that the goods are to be shipped to the place of business of the buyer at the expense of the seller, the place of delivery is the place of business of the buyer. Thus, it has been held that where a contract for the sale and delivery of milk expressly provides that it is to be shipped by the seller to the place of business of the buyer at the expense of the seller, the place of delivery is the business place of the buyer, and therefore, that any loss on the way must fall upon the seller.2

Where the contract contains a stipulation for delivery F. O. B. the seller is under obligation to deliver the goods to the carrier at his own expense. In such case the carrier is the agent of the buyer who assumes the risk during transit. But where the goods are sent C. O. D. a presumption arises that the carrier acts as the

1 Dannemiller v. Kirkpatrick, 201 Pa. St. 218.

2 Devine v. Edwards, 101 Ill. 138.

seller's agent. Some courts hold that the presumption is conclusive,1 while others hold the contrary.2

178. Time of delivery.-When the contract imposes upon the seller the duty of delivering the goods to a carrier or of taking them to the buyer, and the time of such delivery is not stated, the seller must make the delivery within a reasonable time. What constitutes a reasonable time depends upon the circumstances of the particular case and is a question of fact for the jury to determine. If the contract fixes the time of delivery, this, of course, controls. It may provide that the time be subsequently designated either by the seller or the buyer, and in this case the other party is not in default until notice is given him. When the seller offers to deliver the goods either before or after the time agreed upon the buyer may refuse to accept them. He may, of course, waive this right. As a rule, when the contract provides for delivery of the goods "immediately," "forthwith," "as soon as possible," etc., the seller is allowed a reasonable time in which to deliver them. When the contract provides for delivery between certain designated dates, it is optional with the buyer to fix the time within those dates. Failure on his part to do so gives the seller the right to tender delivery on the last day of the period, but not afterward.

Where the contract is silent as to the hour of the day at which delivery is to be made it must be made at a reasonable hour. What constitutes a reasonable hour depends upon the circumstances of the particular case. If the delivery is to be made at a designated place, and the buyer or his representative must be on hand to 1 State v. O'Neil, 58 Vt. 140, 56 Am. Rep. 557.

2 Pilgreen v. State, 71 Ala. 368; State v. Carl, 43 Ark. 359, 51 Am. Rep. 565.

receive them, ordinarily it must be made before sunset. There are exceptions, however, to this rule. Thus, where the goods are of such a nature that an efficient examination of them can be made before midnight and the buyer happens to be at the designated place when tender of delivery is made the delivery is sufficient. When no place of delivery is designated tender may be made at any convenient time before midnight.

179. Quantity specified must be delivered. The seller must tender delivery of the exact quantity agreed upon. The buyer is not bound to accept either less or more than that. He may reject installments unless he has agreed to accept them, nor is he bound to accept the goods where they are mixed with others and the separation of them imposes upon him trouble and inconvenience. It should be observed, however, that where the contract is separable, and tender is made of the exact quantity designated in a severable part, it is sufficient pro tanto. In any case where the buyer accepts part of the goods tendered he is liable for that part, but his acceptance of part does not constitute a waiver of his right of action for breach of the contract.

Whether a particular contract is severable or not depends upon the intention of the parties rather than upon the divisibility of the subject-matter or the mode of measuring the price.

When the contract is severable, failure of the seller to fulfill the requirements of one part will not justify the buyer in repudiating the other parts. Thus, where the contract provides for the shipment of cattle at different times, and for payment when delivery is made, the shipment of certain cattle which do not meet the requirements will not justify the buyer in refusing sub

sequent shipments which comply with the terms of the contract.1

180. Quality specified must be delivered. The seller must deliver to the buyer the quality of goods specified in the contract. In order that the buyer may determine whether the quality conforms to the contract he must be given a reasonable opportunity to inspect the goods. Ordinarily, the place of inspection is the place of delivery. Merely taking the goods for the purpose of inspection does not constitute an acceptance of them. If they do not meet the requirements of the contract, the buyer may reject them; and should he rightfully do so, he must allow the seller to retake them, but he is under no obligation to return them to him. A refusal on the part of the buyer to inspect the goods, where the seller has afforded him a reasonable opportunity to do so, ordinarily constitutes a breach of the contract. In the absence of a designated mode of inspection, the usual and customary one will be implied.

181. Symbolic or constructive delivery.-A manual or corporeal transfer of the thing sold is not essential in all cases to pass title to it. A delivery which is consistent with the nature and situation of the thing sold is sufficient. Hence when an actual delivery is impracticable, a symbolic or constructive delivery may be substituted for it. A symbolic delivery consists in transferring one thing as evidence of transferring ownership in another thing. Thus, where the goods sold are stored in a warehouse a transfer by the seller to the buyer of the warehouse receipt is a symbolic delivery of the goods. It is essential, however, that the symbol be delivered with the intention of transferring ownership in the property. Moreover, it must be of such a

1 Morris v. Wibaux, 159 Ill. 627.