highly unreasonable from accidental circumstances." Per Tindal, C.J., in Acebal v. Levy1 (1,000 barrels of nuts in Spain).

In Joyce v. Swann (100 tons of guano, insured) Willes, J., said that the Lord Chief Justice (Erle) in his summing-up meant "that though the price was not mentioned, the law would infer from the circumstances that the price should be a reasonable price, and that the property in the goods might equally pass as if the price had been fixed in moneys numbered by the contract itself. That is perfectly good law. The price not being named it must be assumed that the parties intended a reasonable price. That being so, the contract does in effect provide for a price."

Example.-A. wrote to B. ordering him to build a carriage no reference was made to price. During the work A. suggested alterations and additions, but when it was finished refused to accept or pay for it, and pleaded the Statute of Frauds, § 17. He was held liable to pay what the jury considered a reasonable price (Hoadly v. McLaine 3).

See also Martineau v. Kitching' (sugar burnt after sale before weighing).

sell at valua

9.--(1.) Where there is an agreement to sell Agreement to goods on the terms that the price is to be fixed tion. 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.

110 Bing. 376, 383; 4 M. & Scott, 217. [1834.]

2 17 C. B. N. S. 84, 102. [1864.]

3 10 Bing. 482; 4 M. & Scott, 340. [1834.]

4 L. R. 7 Q. B. 436, 450 41 L. J. Q. B. 227; 26 L. T. 836; 20 W. R. 769. [1872.]

Stipulations

as to time.

(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.

The words "cannot or does not" remove most of the difficulties arising in the cases on this point. No distinction between executory and executed contracts of sale is made by the section, which is principally the expression. of the result of Clarke v. Westropel (straw on farm). The presumption is that the sale is for a reasonable price, which is to be computed by the third party, who may possess some special knowledge or skill, or may be specially trusted by the buyer. It was settled in Ess v. Truscott 2 (furniture and fixtures) that if the third party does not make the valuation, and nothing further is done under the contract it is not binding; but previous to the present Act it seems probable from Thurnell v. Balbirnie (fixtures in dwelling-house) that even in an executory contract, if the buyer refused to permit the valuer to act, the agreement was not thereby avoided, but he remained liable. In the case of Vickers v. Vickers (distillery— partner's retirement), however, which was decided on the authority of Milnes v. Gery' and Wilkes v. Davis,6 Page Wood, V.-C., said that where there is no existing contract until the valuation takes place, and the seller refuses to allow his valuer to proceed, there can be no specific performance enforced in equity. The buyer now has this statutory remedy by action at law.

Conditions and Warranties.

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10.-(1.) Unless a different intention appears from the terms of the contract, stipulations as to

18 C. B. 765; 25 L. J. C. P. 287. [1856.]

2 2 M. & W. 385. [1837.]

32 M. & W. 786; 2 C. B. 786; M & H. 235; 1 Jur. 847. [1837.] + L. R. 4 Eq. 529. [1867.]

5 14 Ves. 400.

6 3 Mer. 507.

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time of payment are not deemed to be of the essence of a contract of sale. Whether Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract.

"In a sale of chattels, time is not of the essence of the contract unless it is made so by express agreement.' Lord Denman, C.J., in Martindale v. Smith 1 (trover: 6 stacks of oats).

There is a legal presumption that payment and delivery are intended to be concurrent acts (Lockett v. Nicklin 2) (2 casks railway grease), but non-payment on delivery, or at the expiration of allowed time of credit, does not revest the property in the seller, or entitle him to rescind the contract, or take back, or keep the goods (Martindale v. Smith 1).

Lord Blackburn said, in Mersey, &c.. Co. v. Naylor 3 (5,000 tons steel, monthly deliveries), that delay in payment "did not go to the root or essence of the contract, nor do I think that there is any sound principle upon which it could do so." But see Withers v. Reynolds (non-delivery of straw to stablekeeper), and Lord Blackburn's exposition of it in Mersey, &c., Co. v. Naylor, loc. cit. p. 442.

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In a mercantile contract time, not being time of payment, is of the essence of the contract: see Reuter v. Sala (25 tons Penang pepper), where Cotton, L.J., says, "To apply this [the rule of equity] to mercantile contracts would be dangerous and unreasonable. We must therefore hold that the time within which the pepper was to be declared was an essential condition of the contract, and in such a case the decisions in equity, on which reliance is placed, do not apply."

1 1 Q. B. 389, 395; 5 Jur. 932; 1 G. & D. 1. [1841.]

2 2 Ex. 93, 99, 100; 19 L. J. Ex. 403. [1848.]

9 App. Ca. 434, 444. [1884.]

4 2 B. & Ad. 882. [1831.]

54 C. P. D. 239, 249; 48 L. J. C. P. 492; 40 L. T. 476; 27 W. R. 631. [1879.]

When condition to be treated as warranty.

(2.) In a contract of sale "month means prima facie calendar month.

This follows the Bills of Exchange Act, 1882, s. 14 (4), and is in accordance with the decision in Webb v. Fairmaner1 (so "fourteen days," in the Companies Act, 1862, s. 51, means fourteen clear days exclusive of the days of meeting: In re Sleepers Supply Co. But see Simpson v. Margitson, where it was held that, in the absence of evidence to the contrary, month means lunar month : the question is one of construction. It was settled by Lord Brougham's Act, 13 & 14 Vict. c. 21, s. 4, that in all Acts, except when the contrary is specified, the meaning is that given here.

11.—(1.) In England or Ireland

(a.) Where a contract of sale is subject to any condition to be fulfilled by the seller, the buyer may waive the condition, or may elect to treat the breach of such condition as a breach of warranty, and not as a ground for treating the contract as repudiated.

(b.) Whether a stipulation in a contract of sale is a condition, the breach of which may give rise to a right to treat the contract as repudiated, or a warranty, the breach of which may give rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated, depends in each case on the construction of the A stipulation may be a condition though called a warranty in the contract:

contract.

1 6 D. P. C. 549; 3 M. & W. 473. [1838.]

2 29 Ch. D. 205. [1885.]

3 11 Q. B. 23; 17 L. J. Q. B. 81. [1847.]

፡፡

3

Compare Behn v. Burness,1 where a charterparty was made on the understanding that the ship was then "in the port of Amsterdam." The Court held that this statement was intended to be a substantive part of the contract, and therefore, upon its turning out to be untrue, the contract might be repudiated in toto. See Borrowman v. Drayton (2,500 to 3,000 barrels American petroleum), where a cargo was construed to mean an entire load of the vessel which carried it, and a stipulation. for "a cargo" was considered to be of the essence of the contract; failure in this point was therefore failure of a condition. So in Bowes v. Shand (600 tons Madras rice), the date of shipment of goods sold was held to be a condition, so that a breach of it entitled the buyer to rescind the contract. And in Simpson v. Crippin the defendants, who had promised to supply 6,000 to 8,000 tons of coal monthly to the plaintiffs, were not entitled to cease delivery altogether when the plaintiffs took only 158 tons in the first month, because, as the Court held, sending sufficient waggons was not a condition precedent. But see Hoare v. Rennie (hammered Swede bar-iron) (approved in Bradford v. Williams), and Colonial Insurance Co. v. Adelaide Marine Insurance Co. (wheat delivered on board), and section 30 (1), infra.

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Evidence.-A buyer may give parol evidence of a warranty, although a memorandum of the sale and receipt for the price paid given by the seller to him after the conclusion of a parol contract contained no notice of any warranty (Allen v. Pink) (horse, a quiet worker).

1 3 B. & S. 751; 32 L. J. Q. B. 204; 9 Jur. N. S. 620; 8 L. T. 207. [1863.]

2 2 Ex. D. 15; 46 L, J. Ex. 273; 35 L. T. 727; 25 W. R. 194. [1876.] 3 2 App. Ca. 455; 46 L. J. Q. B. 561; 36 L. T. 857; 25 W. R. 730. [1877.]

+ L. R. 8 Q. B. 14; 42 L. J. Q. B. 28; 27 L. T. 546; 21 W. R. 141. [1872.]

55 H. & N. 19; 29 L. J. Ex. 73. [1859.]

6 L. R. 7 Ex. 259, 261; 41 L. J. Ex. 164; 26 L. T. 641; 21 W. R. 782. [1872.]

7 12 App. Ca. 138; 56 L. J. P. C. 19; 56 L. T. 173; 35 W. R. 636. [1886.]

84 M. & W. 140. [1838.]