of the purchaser and seller. of the goods, so long as the buyer does not delay in receiving them. If the buyer delays the reception of the goods, the seller may deposit them in a public warehouse, or with a third person, at the buyer's risk and expense. The seller is also entitled, after notice given, to have the goods sold by public auction or even by private sale, at the current price, through a broker or Mutual duties auctioneer. If the goods are likely to be spoiled, and there is danger in delaying the sale, no previous notice would be requisite. The seller must send notice of the sale to the buyer without delay; if he omits to do so, he would have to pay damages. If the goods are to be sent to the buyer from another place, and the buyer has given no instruction about the mode of transport, the seller is authorised to make the arrangement. After the delivery of the goods to the forwarding agent or carrier, the goods remain at the risk of the buyer. If, however, the buyer has given orders about the mode of transport, and the seller, without any urgent reason, transgresses them, he will be responsible for the neglect. Where the goods are sold at a price including the delivery at the buyer's place, the risk of transport to that place rests with the seller. But the simple fact that the seller is to pay the expenses of carriage is not sufficient to prove that the delivery was to be made at the place of the buyer, and that the seller was to undertake the risk. The buyer is bound to receive the goods if they are according to the contract; and must receive them at once, unless otherwise agreed. If the goods are forwarded from another place, the buyer must examine them immediately, or as soon after the delivery as possible, and if the goods are not according to contract, he must at once give notice of the same to the seller. If he omit to do so, the goods are considered as accepted, unless there are faults which could not be found by an examination on the spot. As soon as such faults are discovered, immediate notice must be given of them. If the buyer objects to the goods, he must take care of them in the. meantime. When faults are discovered on the delivery, or afterwards, the buyer should show the goods to experienced persons, who are to give their written opinion on it. The buyer cannot object that the quality of the goods is not according to contract, if he cause six months to elapse after the delivery. Unless otherwise agreed on by special custom, the seller bears the expenses of the delivery, especially when the goods are to VOL. I. be measured, or weighed, and the buyer those of the receipt. If the market price has been stipulated as the purchase price, the same is understood to be that which is fixed by the authorities at the time and place when the contract was made; or if no price was fixed, or the same is found incorrect, the average price of the sale contracts will be taken as the price. If the buyer delays the payment, and the goods have not been delivered, the seller may either demand the execution of the contract, or sell the goods on account of the buyer, and ask damages, or rescind the contract altogether. If the seller delays the delivery, the buyer may either demand the fulfilment of the contract, or seek damages, or rescind the contract. If the buyer, instead of demanding the fulfilment of the contract, seek for damages, the amount of damages will be the difference between the purchase price and the market price at the time and place where delivery was to have been made (a). Italy. The Sardinian code has provisions equal to those of the French code (b). Portugal.-A sale is a contract by which the vendor binds himself to deliver certain articles, and the purchaser to pay for them at a price agreed upon. The sale may be pure and simple, or upon certain conditions. When the price is not mentioned, the contract is to be considered concluded at the current price on the day and at the place of delivery, as declared by practical men. A sale made by correspondence is considered as concluded at the time when a mutual consent has been obtained. Commercial contracts may be concluded by parol, whatever the amount of the goods or their value may be; but oral evidence is not admitted until after a commencement of proof in writing has been given, or unless it be allowed by the courts. The general law on contracts is the same as the French (c). (a) German Code, §§ 337 to 359. (b) Sardinian Code, 1605 to 1635. (c) Portuguese Code, §§ 458 to 478. What is the market price. The delivery must be at the time and place specified. Delivery must be of the whole and not of part. SECTION IV. DUTIES OF THE SELLER. BRITISH LAW. § 1. Delivery. The first duty of the seller is to deliver the thing sold. He must deliver the goods by the time and at the place specified in the contract. Where he contracts to deliver the goods on a certain day, he has the whole of the day, and if in one of several days, the whole of the days, for the performance of his part of the contract; but he must do all he can to complete the delivery at a convenient hour before midnight, and in sufficient time for examination and receipt, and until the whole day, or the whole of the last day has expired, no action will lie against him for the breach of such contract (a). So if the delivery is to be performed at a certain place on a specific day, the tender must be to the other party at that place, and as the attendance of the other is necessary at that place to complete the act there, it is not necessary for the other party to be present through the whole day, provided he be at the place on a part of the day, and at a convenient time before sunset, so that the act may be completed; and if the party tender goods before sunset, that is sufficient (b). A tender of goods purchased at the warehouse, at an hour which leaves him time enough for completing the delivery before twelve o'clock at night, is sufficient. If the contract makes no mention of the time of delivery, the seller undertakes to put the buyer in possession of the goods sold without delay, or in a reasonable time. Where the contract is silent as to the place of delivery, the seller must deliver at the place where the thing sold was at the time, except the delivery was intended to take place elsewhere. When the contract is not divisible, and for an entire quantity, the seller is not bound to comply with the request of the vendee to deliver a part only, and should he refuse to accept the whole the vendor may abandon the contract (c). (a) Startup v. Macdonald, 6 M. & G. 600. (b) Startup v. Macdonald, 6 M. & G. 600. (c) Kingdom v. Cox, 2 C. B. 661. When the subject matter of the contract consists of a given quantity of an article, and not of any specific ascertained parcel of goods, the vendor is at liberty to give such goods as will answer the description given by him, but when the article is a certain and specified one, then the vendor must deliver the identical article so fixed, and not anything else of a corresponding nature. So where an order is given by the purchaser for certain specific articles to suit a certain market, the vendor would impliedly undertake to furnish the particular article specified (a). When the goods have not been delivered on the day agreed on, the true measure of damages is the difference between the contract price and that which goods of a similar quality and description bore on or about the day when the goods ought to have been delivered (b). When, in an agreement subject to the Statute of Frauds, the time has been fixed for the delivery of the goods, an agreement to substitute another day for that purpose must, in order to be valid, be in writing (c). When the delivery has been fixed to be made forthwith, and the price to be paid in a month, or at any other time, the delivery must be made without delay (d). So when the words, "term cash" are inserted in a contract, payment on delivery is not a condition precedent to the delivery of the goods (e). When the right of property in the specific chattel has passed by the bargain, the buyer has no right to refuse to accept it by reason of a difference in the quantity or quality. quality. Where, however, the right of property has not passed, then the buyer has a right to refuse the goods, wherever they do not correspond in quantity or in quality with the goods bargained or ordered (ƒ). § 2. Warranty of Title. The owner of goods may dispose of them to whomsoever he pleases at any time, and in any manner, unless judgment has (a) Gardiner v. Gray, 4 Camp. 144; Powell v. Horton, 2 Bing. N. S. 668; Fisher v. Samuda, 1 Camp. 190. (b) Gainsford v. Carroll, 2 B. & C. 624. (c) Marshall v. Lynne, 6 M. & W. 109. (d) Staunton v. Wood, 16 Q. B. 638; Spartali v. Benecke, 10 C. B. 212. (f) Street v. Blay, 2 B. & Ad. 462; Measure of damage in case of non-deli very. Alteration as regards time must be in writing. How long does the right to refuse extend. Rights of owner to dis- Sale after the issue of a writ of execution and before actual seizure. Sale in market overt. Sales of stolen goods. Mere possession not sufficient to give been obtained against him for a debt or damage (a). And although the goods of a debtor are bound from the delivery of a writ of execution to the sheriff, yet the property in them is not changed by it, and is still in the debtor, and therefore he may confer a good title on them to any person purchasing them bona fide, and for a valuable consideration, before the actual seizure or attachment, and without notice that such writ or any other writ has been issued by which the goods of such owner might be seized or attached had been delivered to, and remained unexecuted in the hands of the sheriff (b). Possession is the criterion of title to a personal chattel, therefore the finder of goods, or any person in possession, is able to give an indefeasible title by sale in market overt (c). Every shop in London is a market overt, and sales in such shops of goods usually sold there are sales in market overt (d). A sale at a wharf is not a sale in market overt to change the property, and goods sold there by a wrongful owner may be recovered at the suit of the true owner against the purchaser (e). So the sale of any goods wrongfully taken at any pawnbroker in London, or within two miles thereof, does not alter the property. The owner of goods stolen, who prosecutes the thief to conviction, is entitled to recover the value of them in trover from a person who had purchased them from a thief not in market overt. If such purchaser had notice of the felony, he would be liable to restore the goods to the true owner, even if he had resold them in market overt (f). But if the goods were purchased bona fide, without any notice, or any reasonable cause to suspect that the same had been stolen, no restitution would be awarded (g). The mere possession of the goods, with no further indicia of title than a delivery order, is not sufficient to give an indean indefeasible feasible title, and the pawner or assign of such delivery order from the fraudulent holder could not resist the claim of the true owner in an action of trover (h). In Scotland, no pur title. (a) Blac. Comm. 446. (b) 19 & 20 Vict. c. 97. (c) Hiern v. Mill, 13 Ves. 122. (d) Lyons v. De Pass, 11 Ad. & E. 326. The case of market overt, 5 Rep. 836. (e) Wilkinson v. King, 2 Camp. 335. (f) 8 Geo. 4, c. 29, s. 57; Peer v. Humphrey, 4 N. & M. 430. (g) 8 Geo. 4, c. 29, § 57. (h) Kingsford v. Merry, 5 Weekly Rep. 151. |