S. 27.

and s. 30 (3); and of the right quantity, under ss. 30, 31; and the seller must be the owner, or entitled to deal with them, under s. 12 (1). If the tender be irregular, it may be, within the time limited for delivery, withdrawn, and a good tender substituted (s). To accept and pay.—“ Acceptance" is defined in ss. 34 to 36, Acceptance. and depends, as above stated, upon the regularity of the seller's delivery; and upon the seller's performance of any condition precedent to delivery, as, e.g., notice (where essential) of the place of delivery (t). The buyer may, however, be bound to accept goods at a place other than that fixed if the latter were fixed only in the interest of the seller (u).

As to the ascertainment of the price, see ss. 8, 9, ante, pp. 61 Payment. -64. The liability for the price primâ facie arises only when the property has passed (see ss. 1 and 49) (v); or when the buyer took the risk under ss. 20 and 33; or (even though the property has not passed or the goods been delivered) if the buyer agreed (x) (under s. 49 (2)), or is bound (under s. 20) to pay, irrespective of these facts. The buyer's liability to pay may sometimes be dependent upon notice by the seller of the amount, as where the ascertainment of the price is in the option of the seller (y). And when the time of payment is fixed with reference to the arrival of the goods, and the goods perish, the buyer (if liable) must "within a reasonable time after the arrival becomes impossible" (z).

pay

Payment to the true owner is a good payment as against a seller without title under s. 21 (a).

Where the goods are to be paid for by a bill or note, which is not in fact given, the buyer is entitled to credit till the time when the bill, &c., would have matured (b), unless credit was made conditional on such bill being given (c). As to the dis

(s) Borrowman v. Free (1878), 4 Q. B. D. 500.

(t) Davies v. MacLean (1873), 21 W. R. 264.

(u) Neill v. Whitworth (1865), L. R. 1 C. P. 684.

(t) And per Parke, B., in Laird v. Pim (1841), 7 M. & W. 478.

(x) Dunlop v. Grote (1845), 2 C. & K. 153.

(y) Haule v. Hemyng (1617), Cro. Jac. 432 (cited by Parke, B., in Vyse v. Wakefield (1840), 6 M. & W. 442, 454); Holmes v. Twist (1614), Hob. 51, cited by Bramwell, B., in Makin v.

Watkinson (1870), L. R. 6 Ex. 25, 29.

(z) Per Bayley, J., in Fragano v. Long (1825), 4 B. & C. at p. 222. See also Alexander v. Gardner (1835), 1 B. N. C. 671.

(a) Dickenson v. Naul (1833), 4 B. & Ad. 638; Allen v. Hopkins (1844), 13 M. & W. 94.

(b) Mussen v. Price (1803), 4 East, 147; Day v. Picton (1829), 10 B. & C. 120.

(c) Nickson v. Jepson (1817), 2 Stark. 227; Rugg v. Weir (1864), 16 C. B. N. S. 471.

S. 27.

Payment in a negotiable security.

tinction in this connection between "bill with option of cash" and "cash with option of bill," see per Cockburn, C.J., in Anderson v. Carlisle Horse Clothing Co. (d).

Mr. Benjamin thus states the law generally with regard to payment (e) :

"The chief duty of the buyer in a contract of sale is to pay the price in the manner agreed on. The terms of the sale may require-first, an absolute payment in cash, and this is always implied when nothing is said; or, secondly, a conditional payment in promissory notes or acceptances; or, thirdly, it may be agreed that credit is given for a stipulated time, without payment either absolute or conditional. In the first two cases the buyer is bound to pay, if the vendor is ready to deliver the goods, as soon as the contract is made; but in the last case he has a right to demand possession of the goods without payment. . In cases where the property has passed, the buyer must pay the price according to the terms agreed on, even if the goods are destroyed in the vendor's possession (see s. 20). . . . The goods are at the buyer's risk; they are his goods from the moment that the property passes, and the price is due to the vendor, who simply holds the goods as bailee for the buyer in such a case (ƒ). And even where the property has not passed, and the price is to be payable only on delivery, yet if the buyer has assented to assume the risk of delivery, he must pay the price if the goods are destroyed before delivery" (g). (See s. 20).

"The payment for goods may, by the contract, be agreed to take effect in a negotiable security, as in a promissory note or bill of exchange, and the agreement may be that payment thus made is absolute or conditional. In the absence of any agreement, express or implied, to the contrary, a payment of this kind is always understood to be conditional, the vendor's right to the price reviving on non-payment of the security. But if a dispute arise as to the intention of the parties, the question is one of fact for the jury (h). The intention to take a bill in absolute payment for goods sold must be clearly shown, and not deduced from ambiguous expressions, such as that the bill was taken in payment' for the goods (i), or 'in discharge' of the price (k). . . . (d) (1870), 21 L. T. N. S. 760. See also Schneider v. Foster (1857), 2 H. & N. 4.

(e) pp. 715-717, 732.

(f) Rugg v. Minett (1809), 11 East, 210.

(9) Castle v. Playford (1872), L. R. 7 Ex. 98.

(h) Goldshede v. Cottrell (1836), 2 M. & W. 20.

(i) Stedman v. Gooch (1793), 1 Esp. 4; Maillard v. Duke of Argyle (1843), 6 M. & G. 40.

(k) Kemp v. Watt (1846), 15 M. & W. 672.

The payment is absolute on delivery of the bill, and takes effect from that date, but is defeated on the happening of the condition, i.e., non-payment at maturity (1). Whenever it can be shown to be the intention of the parties that a bill or note should operate as immediate payment, then the buyer will no longer be indebted for the price of the goods, although he may be responsible on the security; and the bill or note given in such case may be that of the buyer himself (m), or that of a third person (n), on which the buyer has indorsed his name. And if the buyer offer to pay in cash, and the seller takes a negotiable security in preference, the security is deemed to be taken as an absolute, not a conditional, payment " (o).

As to the modes of payment or tender, see Benj. pp. 718-732; the duty of the seller with regard to the security, pp. 734-739; the character of the security, pp. 739, 740; payment to agents, pp. 740-746; appropriation of payments, pp. 746-750.

ILLUSTRATIONS.

1. A. agrees to sell and ship to B. 2,000 tons of rails, payment to be made in exchange for the bill of lading. A. tenders to B. a bill of lading (which had been drawn in three parts) duly indorsed, and effectual to pass the property, but does not tender the other two. B. is bound to accept and pay for the goods, as A. has performed his contract. Sanders v. Maclean (1883), 11 Q. B. D. 327.

2. A. agrees to sell to B. 1,000 tons of coal deliverable at R., payment to be made half in cash on handing over the bill of lading, and policy of insurance, and half on delivery at R. A. ships the coal, and transfers the bill of lading and policy to B. B. then pays the half price. The coal never arrives. A. cannot recover the balance of the price, as he never delivered the coal at R., nor can B. recover the other half paid, as with respect to so much of the price A. had performed his contract by delivery to the carrier. Calcutta Steam Navigation Co. v. De Mattos (1863), 32 L. J. Q. B. 322.

3. A. agrees to sell B. 1,000 tons of iron, deliverable by a certain date, but if B. does not then require delivery, B. to pay for the iron at that date. B. must pay on that date, although the property has not passed, and there has been no delivery, as he expressly contracted to do so. Dunlop v. Grote (1845), 2 C. & K. 153 (p).

4. A. agrees to sell goods to B. as required by B. A.'s liability is to deliver when thereto required by B. If B. makes unreasonable delay, A. must offer delivery, or inquire of B. when he would take delivery of the goods. Jones v. Gibbons (1853), 8 Ex. 920.

5. A. agrees to sell to B. during the space of three years twenty tons of coal yearly, to be put on board ship at C. A.'s liability is to deliver

(1) Belshaw v. Bush (1851), 11 C. B. 191; Turney v. Dodwell (1854), 3 E. & B. 136; Benj. pp. 732-734. (m) Sibree v. Tripp (1846), 15 M. & W. 23.

G.

(n) Sarl v. Rhodes (1836), 1 M. & W. 153.

(0) Benj. p. 734, quoting Cowasjee v. Thompson (1845), 5 Moo. P. C. 165.

(p) See s. 49 (2), post, p. 272.

N

S. 27.

S. 27.

Payment and delivery are concurrent conditions.

S. 28.

the coal when B. names a ship, and states the port of discharge. Armitage v. Insole (1850), 14 Q. B. 728 (q).

6. A. agrees to sell B. goods "ex quay or warehouse." B.'s liability is to accept when A. gives notice of the place of storage. Davies v. McLean (1873), 21 W. R. 264.

7. A. sells goods to B. on three months' credit, and also on the terms that if B. wants further credit he must then give a bill at two months. B. does not give the bill. B.'s liability, under these circumstances, is to pay for the goods at the end of three months, as further credit was made conditional on the giving of a bill. Nickson v. Jepson (1817), 2 Stark. 227.

8. A. agrees to sell to B., on the arrival of the ship C., fifty cases of tallow. A.'s liability is to deliver the tallow if and when the ship arrives, whether or not she arrives with tallow on board, as he so expressly contracted. Hale v. Rawson (1858), 4 C. B. N. S. 85.

9. A. sells to B. the cargo of the P. "as it stands" at 30s. a quarter, the quantity to be taken from the bill of lading. B. pays according to the quantity so stated. The actual quantity proves less. A. is not bound to refund the excess price, as the parties agreed that the quantity should be considered so much, and the price paid accordingly. Covas v. Bingham (1853), 2 E. & B. 836.

10. A. agrees to sell B. 500 bales of cotton, to arrive by ship, and to be taken from the quay. By a delivery from the quay A. would be saved expense. A. offers to deliver the cotton after landing either from the warehouse at quay weights, and free of warehouse charges, or to take it back to the quay and there deliver. B. is bound to accept, as the place of delivery originally fixed was so fixed in the interests of A. only, and there was no condition of delivery immediately on arrival from the quay. Neill v. Whitworth (1865), 18 ̊C. B. N. S. 435.

28. Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods.

"Generally the buyer, in a bargain and sale of goods, where the property has passed, is entitled to take possession of them, and it is the seller's duty to deliver this possession. But this right is only primâ facie, and it may well be bargained that the possession shall remain with the seller until the fulfilment of certain conditions precedent by the buyer. When nothing has been said as to payment, the law presumes that the parties intended to make the payment of the price and the delivery of the possession concurrent conditions, as is explained in Book IV., Part. I. on Conditions.' " The seller cannot insist on pay

(2) Cf. Wackerbarth v. Masson (1812), 3 Camp. 270.

ment of the price without alleging that he is ready and willing to deliver the goods; the buyer cannot demand delivery of the goods without alleging that he is ready and willing to pay the price. But it constantly happens that there is a stipulation to the contrary of this, and that the parties agree that the buyer is to take possession of the goods before paying for them, or in the usual phrase, that the goods are sold on credit. The legal effect, then, is that there has been an actual transfer of title, and an actual transfer of the right of possession by the bargain, so that in pleading, and for all purposes, save that for the seller's lien for the price (r), the buyer is considered as being in possession, by virtue of the general rule of law that the "property of personal chattels draws to it the possession" (s).

"Where goods are sold, and nothing is said as to the time of the delivery, or the time of payment, and everything the seller has to do with them is complete, the property vests in the buyer, so as to subject him to the risk of any accident which may happen to the goods, and the seller is liable to deliver them whenever they are demanded upon payment of the price. But the buyer has no right to have possession of the goods till he pays the price.

If goods are sold upon credit, and nothing is agreed upon as to the time of delivering the goods, the vendee is immediately entitled to the possession "().

The rule stated in this section as applicable to a contract of sale is only a special instance of the general rule that, when two parties bind themselves to do acts at the same time, neither is bound to do his own part before the other does his;-all that is necessary is that he should be ready and willing to do it, and he need not prove performance, or what is tantamount thereto, i. e., tender (u). On this point Parke, B., makes the following pertinent remarks in Pickford v. Grand Junction Ry. Co. (x):—“ A strictly legal tender. . . . is only applicable where an absolute duty, such as the payment of an antecedent debt, is imposed on the party making it, in which case the tender stands in the place of payment, and is, in fact, a payment, so far as it is in the power of the party tendering to make it one, but which remains incomplete only because the party to whom the money is offered refuses to accept it. . . . Here the acts to be done by the plain

...

(r) As to this, see ss. 41-43. (8) Benj. pp. 678, 679.

(t) Per Cur. in Bloxam v. Sanders (1825), 4 B. & C. at p. 948.

(u) See per Le Blanc, J., in Rawson v. Johnson (1801), 1 East, 203, and notes to Cutter v. Powell (1793), 2 Sm. L. C. (9th ed.), 1.

(x) (1841), 8 M. & W. 372, 377.

S. 28.