Sect 30. Sub-sect. (3) Extension of previous law. case of North British Oil Co. v. Swann1 (1868) a contract to supply as much cannel coal (within certain limits) as the pursuers (a manufacturing company) might "require," was interpreted, not to mean as much as the pursuers should demand, but as much as they should require for the purpose of their manufacture.2 Further cases illustrative of Sub-sects. (1) and (2) are noted below. 3 The rule of Sub-sect. (3) as to mixed goods probably goes a step further than the common law of England. It is clear that, prior to the Act, a buyer was not bound to keep goods where there was risk, trouble, or expense in separating the contract goods from those with which they were mixed. The Act empowers the buyer to reject in every case. deficiencies in number, measure, or weight. If, however, the qualifying 2 Another application of "required" will be found in Tancred, Arrol, and Co. v. Steel Co. of Scotland (1890), 17 Ret. H.L. 31. See also the opinion of Mr. Justice Bradley quoted supra. 3 Sub-sect. (1).-Reuter v. Sala (1879), 4 C. P.D. 239, where the contract was for 25 tons Penang pepper, only 20 tons of which complied with the terms of the contract as to shipment. The buyer was held entitled to reject the 20 tons; Richardson v. Dunn (1866), 2 Q. B. 222, where 152 tons of coal were delivered and retained on an order for 200 or 300 tons; Oxendale v. Wetherell (1829), 9 B. & C. 386, where the buyer kept 130 bushels wheat delivered under a contract for 250. These cases illustrate the latter part of the sub-section. The case of Oxendale v. Wetherell was approved by the Privy Council in The Colonial Insurance Co. of New Zealand v. Adelaide Marine Insurance Co. (1886), 12 App. Ca. 128. Sub-sect. (2).-In Cross v. Eglin (1831), 2 B. & Ad. 106, an order was given for "about 300 quarters, more or less, of foreign rye,” and “50 quarters foreign red wheat." The buyers were held entitled to reject a delivery of 345 quarters of the one, and 91 quarters of the other. In Hart v. Mills (1846), 15 M. & W. 85, the order was for four dozen wine, and eight dozen were sent; it was held that the whole might be returned. In Cunliffe v. Harrison (1851), 6 Ex. 903, fifteen hogsheads of claret were delivered instead of ten. Parke, B., said "the delivery is no performance of the contract, for the person to whom the hogsheads are sent cannot tell which are the ten that are to be his; and it is no answer to the objection to say that he may choose which ten he likes, for that would be to force a new contract upon him" (6 Ex. at p. 906). 4 Levy v. Green (1857), 8 E. & B. 575 (crockery ware in a crate containing articles in excess of the order and of a different pattern); Nicholson v. Bradfield Union (1866), L.R. 1 Q. B. 620 (coal partially delivered in terms of livery." The use of the word "mixed" implies that the goods are Sect. 30. mingled in one covering or package, or are delivered in "Mixed desuch a manner as of necessity to involve trouble in the separation. The delivery of goods additional to the contract quantity, but in separate lots, cannot be properly called a mixed delivery. 31.-(1.) Unless otherwise agreed, the buyer of Sect. 31. goods is not bound to accept delivery thereof by instalments.") (2.) Where there is a contract for the sale of goods to be delivered by stated instalments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more instalments, or () the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is a question in each case depending on the terms of the contract and the circumstances of the case, whether the breach of contract is a repudiation of the whole contract or whether it is a severable breach giving rise to a claim for compensation but not to a right to treat the whole contract as repudiated. (e) NOTES. (a) "Delivery." Defined Sect. 62 (1). (b) This sub-section leads to the same result as Sub-sect. (1) of Sect. 30. A buyer is not bound to accept a less quantity than that contracted for. The rule may, however, be varied by "usage of trade, special agreement, or course of dealing" [Sect. 30 (4)]. If the buyer accepts and retains an instalment he will contract, but seller afterwards "shoots in" a lot of a kind not contracted for, which gets mixed with the first delivery). See also Rylands v. Kreitman (1865), 19 Č. B. N.S. 651. 1 See Whitson v. Neilson and Co. (1828), 6 Sh. 579. In many cases the weight or bulk of the goods precludes delivery in one lot. On the other hand, a buyer is not (apart from agreement) entitled to call for a portion of the goods without being prepared to receive the whole—Kingdom v. Cox (1848), 5 C. B. 522, per Wilde, J., at p. 526. See Coм., Sect. 30 ante, p. 144. INSTALMENT Sect. 31. Difficulties as to continuing contracts. be liable for the price at the contract rate, even if there should afterwards be a breach on the part of the seller in regard to the remaining instalments.1 (c) "Separately paid for." In Scotland, in the absence of express or implied agreement, the strict rule is that payment is due for each instalment as delivered.2 The rule in England prior to the Act seems to have been different: "Where there is an entire contract to deliver a large quantity of goods consisting of distinct parcels within a specified time, and the seller delivers part, he cannot, before the expiration of that time, bring an action to recover the price of that part delivered because the purchaser may, if the vendor fail to complete his contract, return the part delivered. But if he retain the part delivered after the seller has failed in performing his contract, the latter may recover the value of the goods which he has so delivered." 3 (d) "Defective deliveries." These may be by way either of short quantity or total failure in delivery. (e) "Repudiation," "compensation." Compare with Sect. 11 (1) (b), and see definition of "warranty," Sect. 62 (1). COMMENTARY. Continuing contracts, which are now very common in connection with supplies of iron and coal, present difficulties which are not satisfactorily met by the present section. The conflicting views are embodied in the alternatives pre 1 Oxendale v. Wetherell (1829), 9 B. & C. 386, modifying or correcting Waddington v. Oliver (1805), 2 B. & P. N.R. 61. See COM., Sect. 30 ante, p. 144. 2 It has been laid down in Scotland that where the character of the goods or the terms of the contract justify a delivery in lots or instalments the strict rule is payment for each lot as delivered, though, apart from contract, payment is seldom required. See dicta of Lord Justice-Clerk Inglis in Hall and Sons v. Scott (1860), 22 D. at p. 420; and in Linn v. Shields (1863), 2 Macp. at . p. 93. If over-payments of certain instalments of the price are made through mutual error, these may be corrected in a subsequent accounting—Baird's Trustees v.. Baird (1877), 4 Ret. 1005. 3 Per Parke, J., in Oxendale v. Wetherell (1829), 9 B. & C. 386 at p. 387, quoted in Colonial Insurance Co. of New Zealand v. Adelaide Marine Insurance Co. (1886), 12 App. Ca. at p. 138. In the dictum quoted, there is apparently an attempt to reconcile Oxendale's Case with the earlier case of Waddington v. Oliver (1805), 2 B. & P. N.R. 61, but the latter case presents difficulties which are referred to elsewhere. See Coм., Sect. 30 ante, p. 144. The same difficulties suggest themselves in connection with the statement of Benjamin, that the buyer "may return the parcels first received if the later deliveries be not made" (Sale, p. 898). What, it may be asked, is the buyer's relation to the first parcels while in his possession? Are they only tentatively and conditionally accepted, or are they not accepted at all? The Act seems to support the Scottish rule. sented by the second sub-section, but we are not much Sect. 31. aided by the statement that it depends on the terms of the contract and the circumstances of the case which of the alternatives is to be adopted. Where there is a breach of an instalment delivery or of an instalment payment, is the seller or buyer not in fault entitled to declare himself relieved from all further obligations under the contract, or is he bound to treat the instalment as a separate contract and to continue to implement his obligations in respect of the remaining instalments? In the latter case, it is clearly his duty to ascertain and possibly minimise the loss arising from the particular breach, by going immediately into the market and selling or buying, as the case may be, against the party in fault. But the question is generally complicated by variations upon the terms of the original contract arising from mutual convenience or from forbearance on the part of seller or buyer. It may suit both parties to delay deliveries or to alter the quantities; or one of the parties, with the acquiescence of the other, may depart from the strict terms of the contract. The questions thence arising require for their Different legal solution the application of legal principles, which differ principles in considerably in England and Scotland. Thus, in England, Scotland. it is said that "a breach by the party suing is a breach of only a part of the consideration moving from him, and such a breach may be compensated in damages without any necessity for annulling the whole contract." This is an application of the doctrine of "Consideration," a doctrine which the law of Scotland does not recognise, and not only. so, but the principle enunciated in the dictum is incon-, sistent with the option given to the purchaser in Scotland under Sect. 11 (2). Again, where the terms of the contract have not been strictly adhered to, it is necessary in England to enquire whether the alteration was of mutual consent, or arose from the forbearance of one of the parties. If of mutual consent, or if the party benefiting by the forbearance is the plaintiff claiming full implement, it may be 1 Per Brett, L. J., in Reuter v. Sala (1879), 4 C.P.D. 239 at p. 257. 2 See Notes on the English doctrine of "Consideration," Appendix III. post, p. 341. England and : Sect. 31. Conflicting decisions in England. found that the original contract is rescinded, and that the alteration, being in law a new contract, is void under the Statute of Frauds or the corresponding provisions of this Act. No such question can arise in Scotland, neither the Statute of Frauds nor Sect. 4 of this Act having any application. A third principle having no counterpart in Scotland, is suggested by the wording of the present section, which seems founded on the English distinction between a condition and a warranty, or, in other words, between a contract and a "collateral agreement." 3 The English decisions are not easily reconciled with themselves, and therefore, even apart from the differences in principle above referred to, they are not to be relied on as illustrating the law of Scotland. In Hoare v. Rennie 4 8 (1859) the seller failed to give full delivery of the first 1 Sect. 4. 2 See Notes on the history of the Statute of Frauds, App. III. post, p. 343. 3 Compare this section with Sub-section 11 (1) (b), and contrast with Subsection 11 (2) embodying the Scottish rule. 45 H. & N. 19. 6 See also Reuter v. Sala (1879), 1 C.P.D. 239. 57 Q.B.D. 92. 8 In this case, as in the others previously mentioned, it was the first instal9 L.R. 9 C. P. 208. ment. 10 L.R. 9 C.P. at p. 213. See also Brandt v. Lawrence (1876), 1 Q. B. D. 344. |