S. 30 (1), (2). rule is that the bill of lading must on its face purport to represent goods in accordance with the contract, and the goods must also, in fact, be in accordance therewith (d). Words of The rights The use of words of estimate, as "about," "more or less," &c., shows "that the quantity is not restricted to the exact number or amount specified, but that the seller is to be allowed a certain moderate and reasonable latitude in the performance" (e). And the case in favour of a mere estimate is stronger when the word "say" is added to "about" (f). The question in all these cases is this, Are the words words of contract, or mere words of estimate? The following rules were propounded in the American case of Brawley v. United States (g), which was approved in The Steel Co. of Scotland v. Tancred & Co. (h) :— (1) The goods sold may be identified by surrounding circum stances, as, e.g., all goods deposited in a certain ware- (2) In default of such means of identification, the quantity The above principles are exemplified in the illustrations to sub-s. 4, post, p. 193. It may here be mentioned that when the seller contracts to supply such goods as he may make within a specified time, at current prices for each delivery, he does not prima facie contract to carry on his business for that time, but only to supply such goods, if he makes them (7). Secondly, with regard to the rights and liability of the buyer. and liabilities He may reject the goods, if less or more, or may accept them, i.e., of the buyer. (d) Tamvaco v. Lucas (1859), 1 E. & E. 581, 592. (e) Benj. p. 699, and see per Thesiger, L.J., in Reuter v. Sala (1879), 4 C. P. D. at p. 244. (f) Gwillim v. Daniell (1835), 2 C. M. & R. 61; M'Connell v. Murphy (1873), L. R. 5 P. C. 203. (g) 6 Otto. 168. (h) (1889), 26 Sc. L. R. 305. See in H. L. (1890), 15 Ap. Ca. 125. (i) See also Steel Co. of Scotland v. Tancred, supra. (k) Gwillim v. Daniell, supra. (1) Hamlyn & Co. v. Wood & Co., [1891] 2 Q.B.488; 60 L.J. Q. B. 734. retain them under circumstances showing a new implied contract S. 30 (1), (2). (within the meaning of s. 3) "to pay for them their value," not the stipulated price, as such, as the old contract has gone (m). "When some of the goods have been delivered, and the vendee does not return them upon the failure of the vendor to perform his part of the contract, the latter may bring an action for the value (not the stipulated price) of those goods" (n). Similarly, when the seller delivers in excess of the contract, his conduct amounts to a proposal of a new contract which the buyer may accept (o). The value to be paid is, of course, best determined by the contract rate. When the buyer, under sub-s. 2, accepts the part contracted for out of an excessive delivery, he would be bound to pay for them also under s. 27. Sub-s. 2 further defines his rights under the offer of a new contract. When the buyer, having accepted the part delivered, has already paid for the full quantity of the goods, and the seller makes default in delivering the remainder, "the buyer may rescind the contract for the deficiency, and recover the price paid for the quantity deficient; for the parties in this case have, by their conduct, given an implied assent to a severance of the contract by the delivery . . . and acceptance of a portion only of the goods sold. This is in its nature a total failure of consideration for part of the price paid" (p), under s. 54, infra. .... ILLUSTRATIONS [Delivery of short quantity]. 1. A. agrees to sell to B. 100 bags of hops deliverable on or before January 1st. A., before that day, delivers twelve bags, and next day demands payment. B. is not liable for the price of the twelve bags, as he has the option to return them by January 1st, A. not having completed his delivery. Waddington v. Oliver (1805), 2 B. & P. N. R. 61. 2. A. agrees to sell B. 250 bushels of wheat by a certain date. A. delivers 130, which B. keeps after that date. B. must pay for them, as he has lost his option of return by acceptance. Oxendale v. Wetherell (1829), 9 B. & C. 386. ILLUSTRATIONS [Delivery of excessive quantity]. 1. B. orders of A. two dozen of port and two dozen of sherry. A. sends four dozen of each. B. returns three dozen of sherry, and all the port except one bottle. B. is liable to pay for only one dozen of sherry and one bottle of port. Hart v. Mills (1846), 15 M. & W. 85. B. 2. B. orders of A. ten hogsheads of claret. A. sends fifteen. tests the wine, and rejects the whole. He is not liable to pay for it. Cunliffe v. Harrison (1851), 6 Ex. 903. (m) See also Benj. p. 57. (n) Per Bayley J., in Shipton v. Casson (1826), 5 B. & C. at p. 383. (0) Per Parke, B., in Cunliffe v. S. 30 (1). S. 30 (2). S. 30 (3). S. 30 (4). Mixed with goods of a different description.-The rule laid down in the cases prior to the Act (g) was that, if there were risk, trouble, or expense in the severing of the goods contracted for from the other goods, the buyer might reject the whole. And "risk" included the risk of an implied acceptance of all. The rule is now stated in the Act without limitation. In Imperial Bank v. Cowan (r) the bill of lading including other goods was specially indorsed so as to allow the buyer to take delivery without trouble or expense, and it was held a good delivery. In such a case the goods are presumably not "mixed" with others. ILLUSTRATIONS. 1. B. orders of A. a quantity of crockery. A. sends the crockery packed in a crate with other china of a different pattern not ordered, though distinguishable therefrom, and includes the whole in one invoice, with prices attached. B. may refuse to accept any of the china. Levy v. Green (1857), 1 E. & E. 969. 2. B. orders of A. a quantity of Ruabon coals. A. delivers one lot of Ruabon coals, and subsequently another lot of another coal, which he shoots in one heap with the rest. A. has made a bad delivery of the whole. Nicholson v. Bradfield Union (1866), L. R. 1 Q. B. 620. Subject to any usage of trade, &c.-S. 55, infra, provides, in addition to this sub-section, that any right, duty, or liability may be negatived or varied by express agreement, course of dealing, or usage of trade, "if the usage of trade be such as to bind both parties." Usage of trade.-The incorporation of trade usages is made in contracts "upon the principle of presumption that . . . the parties did not mean to express the whole of the contract by which they intended to be bound, but a contract with reference to those known usages "(s). But the presumption would, of course, be rebutted if the usage were inconsistent with the terms of the contract (t). Moore v. Campbell (u) is an instance of a trade usage controlling the quantity of the goods delivered. Special agreement.-By agreement the buyer may be bound to accept less than the amount of the goods mentioned in the contract (x), or an instalment of the goods ordered (y). The (a) Levy v. Green (1859), 1 E. & (r) (1873), 29 L. T. N. S. 52. (t) Steph. on Ev., s. 90 (5) (3rd ed.). See also notes to Wigglesworth v. Dallison, 1 Sm. L. C. (9th ed.) p. 569. (u) (1854), 10 Ex. 323. (x) Graham v. Jackson (1811), 14 East, 498. (y) s. 31 (1), post, p. 194, and Brandt v. Lawrence (1876), 1 Q. B. D. 344. contract, in fact, may, by agreement, be divisible in performance. So also he may be bound by agreement to accept a quantity of goods within certain limits, as where "more or less" of goods are ordered. See on this, notes to sub-s. 1, ante, p. 190. Course of dealing.-This, when not varied by the terms of the contract, would be evidence of the fact of agreement. ILLUSTRATIONS. 1. A. agrees to sell and deliver to B. from a particular warehouse fifty tons of hemp. A. tenders to B. two delivery orders for "about" thirty and twenty tons respectively. There is a usage of trade for warehousemen to accept delivery orders only in this form, as freeing them from responsibility for the exact quantity. A. has made a good tender. Per Cur. in Moore v. Campbell (1854), 10 Ex. 323. 2. A. agrees by two contracts to sell to B. two amounts of 4,500 quarters of oats, more or less, shipment to be by steamer or steamers during February, and payment to be made in cash in exchange for shipping documents. A. ships in the W. in time 4,511 quarters to answer the first contract, and 1,139 quarters to answer the second. He also ships in the O., but out of time, the balance of the second contract. B. must accept the 1,139 quarters of the second contract, although the balance was out of time, the contract being divisible by reason of the words "steamer or steamers." Brandt v. Lawrence (1876), 1 Q. B. D. 344 (z). 3. A. agrees to sell to B. 300 tons of Campeachy logwood of real merchantable quality, such as may be determined to be otherwise, to be rejected. Sixteen tons of the delivery are not Campeachy logwood. B. must accept and pay for the balance of 284 tons, the contract being by express agreement divisible. Graham v. Jackson (1811), 14 East, 498. 4. A. agrees to sell to B. about 300 quarters, more or less, of foreign rye. B. pays for 300 quarters. A. ships 345 quarters, and insists upon B. accepting that amount. B. may repudiate the contract and recover the price paid, as A.'s tender was (though some latitude was allowed by agreement) excessive. Cross v. Eglin (1831), 2 B. & Ad. 106. 5. A. agrees to sell to B. all the naphtha he may make during two years" say, from 1,000 to 1,200 gallons a month." During ten months, A. delivers only 3,000 gallons, being all that he actually made. A. is not liable to B. for non-delivery of the excess of 7,000 gallons, as A. never undertook to sell more than he produced. Gwillim v. Daniell (1835), 2 C. M. & R. 61 (a). 66 6. A. agrees to sell B. all the combing skin which he may pull within a certain period, say not less than 100 packs." A. must deliver to B. not less than 100 packs, as a minimum quantity was expressly provided for. Leeming v. Snaith (1851), 16 Q. B. 275. 7. A. agrees to sell to B. a specific heap of iron then lying in A.'s yard, and erroneously estimated by both to contain about 150 tons. It in fact contains forty-four. A. delivers all the iron. A. has performed his contract, having delivered the specific heap contracted for. McLay v. Perry (1881), 44 L. T. N. S. 152. (2) As explained in Reuter v. Sala (1879), 4 C. P. D. at p. 250. The case, however, is a difficult one to under G. stand on the facts. (a) Followed in M'Connell v. Murphy (1873), L. R. 5 P. C. 203. S. 30 (4). S. 30 (4). Instalment deliveries. S. 31 (1). 8. A. agrees to sell to B. the cargo of the P. consisting of about 1,300 quarters of corn, "the quantity to be taken from the bill of lading." A. sends B. the bill of lading showing 1,667 quarters with an invoice stating the price as calculated from the quantity stated in the bill, and B. pays therefor. The quantity actually delivered was 1,614 quarters. B. cannot recover the price paid by him for the deficit, as both parties agreed to take the quantity from the bill of lading. Covas v. Bingham (1853), 2 E. & B. 836. 31.-(1.) Unless otherwise agreed, the buyer of 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. This sub-section, in effect, declares that a contract of sale is, primâ facie, an entire contract, i. e., not divisible in performance. It is really a re-statement of s. 30 (1), as modified by s. 30 (4), ante, p. 188. If the buyer accepts an instalment, an implied contract to pay its value arises under ss. 30 (1) and (3), ante, p. 191. Parke, J., gives the following statement of the rule (b): "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, (b) Oxendale v. Wetherell (1829), 9 B. & C. at p. 387; Champion v. Short (1807), 1 Camp. 53. |