S. 32 (1).

S. 32 (2).

So also there is no delivery to the buyer "if the seller should sell goods undertaking to make delivery himself at a distant place (ie., the place other than that where they are when sold' under s. 33), thus assuming the risks of carriage." In that case "the carrier is the seller's agent" (j), and there is no delivery to the buyer.

In the same way, delivery to a carrier may be sufficient, so far as the seller's obligation to deliver is concerned, and yet, by agreement, the latter may, with respect to payment of the price, take the risk of the goods arriving, either at all (k) or in a merchantable condition (7).

ILLUSTRATIONS.

1. B. orders goods of A. to be dispatched to him in London. A. delivers the goods at a common wagon office. A. then requests payment of the goods. B. refuses to pay until the goods arrive in London. B. is liable for the price of the goods on their dispatch. Per Cur. in Dutton v. Solomonson (1803), 3 B. & P. p. 582.

2. A., in Staffordshire, agrees to sell iron to B. and deliver it at Liverpool. A. has delivered the iron when it arrives at Liverpool, and not when he consigns it to a carrier. See Bull v. Robison (1854), 10 Ex. 342.

The seller must make such contract with the carrier, &c.— This sub-section is based upon Clarke v. Hutchins (m), Cothay v. Tute (n), and Buckman v. Levi (o).

Unless otherwise authorized. See s. 55. The seller must duly follow any instructions of the buyer as to the mode of dispatch, otherwise the delivery will be ineffectual, and the seller not have performed his contract (p).

In the absence of such "other authorization," the rule is that "the seller is bound, when delivering to a carrier, to take the usual precautions for ensuring the safe delivery to the buyer" (q). In such a case the seller "has an implied authority, and it is his duty to do whatever is necessary to secure the responsibility of the carriers for the safe delivery of the goods, and to put them in

(j) Benj. p. 702, quoting Dunlop v. Lambert (1839), 6 C. & F. 600. See also Calcutta Co. v. De Mattos (1863), 32 L. J. Q. B. 322, and a late American case of M'Neal v. Braun, 26 American St. R. 441.

(k) Calcutta, &c. Co. v. De Mattos (1863), supra.

(1) Beer v. Walker (1877), 25 W. R. 880, which, however, may also be explained as a case where, on

consignment, the goods did not answer
the contract under s. 14 (2), supra,
i.e., were not "the goods" under
this section.

(m) (1811), 14 East, 475.
(n) (1811), 3 Camp. 129.
(0) (1813), 3 Camp. 414.

(p) Ullock v. Reddelein (1828), Dans. & Ll. 6; Hills v. Lynch, 26 N. Y. (Sup. Ct.) 42.

(2) Benj. p. 703.

such a course of conveyance as that, in case of a loss, the defendant might have his indemnity against the carriers" (r).

This sub-section in fact deals with the implied authority and duty of the seller, in the absence of any express authority.

If the seller omit. In that case the buyer may "decline to treat the delivery as a delivery to himself," or may waive the informality of the delivery, and treat the seller's breach as a breach of contract, under s. 51 (1). He may also by negligence be precluded, on the ground of estoppel or waiver (preserved by s. 61 (2)), from saying that the delivery was bad (s).

ILLUSTRATIONS.

1. B. orders a machine of A., to be sent by any conveyance which would reach Bristol, A. to inform B. when it was sent off. A. delivers the machine to a carrier, who gives A. a receipt showing that the machine would go by the C. ship. A. duly informs B. of this. The carrier, however (the C. being full), according to custom, sends the machine by the D., and it arrives and remains at Bristol. B. for eighteen months never informs A. that the machine never arrived by the C. A. (having duly followed B.'s instructions) has made a good delivery; and, even if he were negligent in saying the goods went by the C., yet B., because of his negligent delay, cannot treat the delivery as bad. Cooke v. Ludlow (1806), 2 B. & P. N. R. 119.

2. B. orders goods of A. to be sent by sea. A. delivers the goods, of the value of 51., to C., a carrier, who had notoriously published a notice that he would not be liable for the loss of goods above the value of 5., unless entered and paid for as such. A. does not enter or pay for them accordingly. The goods are lost. B. is not bound to pay for them. Clarke v. Hutchins (1811), 14 East, 475.

3. B. orders a number of chairs of A. to be sent by sea. A. delivers the chairs at a wharf to a person who is not known to be the carrier's agent, nor does he book the chairs or take a receipt therefor. The chairs are lost. B. may treat the delivery as defective, and is not liable to A. for the price of the chairs. Buckman v. Levi (1813), 3 Camp. 414.

4. B. gives an order to A. for "more goods" to be sent by coach. A. delivers, without paying a special insurance on excess value, as required by the carrier. It is unusual to insure. A. can recover the price of the goods, unless B. shows that A. was in the habit of insuring in similar cases. Cothay v. Tute (1811), 3 Camp. 129.

...

Goods are sent . . . by a route involving sea transit. This rule is adopted from the Scotch law. The authorities are set out in the note (t).

33. Where the seller of goods agrees to deliver them at his own risk at a place other than that

(r) Per Lord Ellenborough, in Clarkev. Hutchins (1811), 14 East, 475. (8) Cooke v. Ludlow (1806), 2 B. & P. N. R. 119.

(t) Bell on Sale, p. 89; Brown on Sale, s. 526; 1 Bell, Prin. s. 118. Cases are stated in 1 Bell, Illustr. pp. 110 et seq.

S. 32 (2).

S. 32 (3).

Risk where delivered at

goods are

distant place.

S. 33.

Buyer's right

where they are when sold, the buyer must, nevertheless, unless otherwise agreed, take any risk of deterioration in the goods necessarily incident to the course of transit.

This section adopts the rule stated in Bull v. Robison (u), where, however, it was applied to goods ordered from a distant place. The same principle is now applied to all cases where a transit is necessary.

The "risk" which the buyer is to undertake is that of necessary "deterioration." Other risks, such as loss or unusual deterioration (r), &c., would be regulated by express agreement, or according to the ownership of the goods, under ss. 20 and 32 (1). This section is also expressly limited to cases where the risk would otherwise be the seller's, as in Bull v. Robison, where he agreed to deliver the goods at their destination. If he performed his contract by delivery to a carrier, this being primâ facie an appropriation of the goods under s. 18, Rule 5 (2), the further risk, whether of necessary deterioration or not, would fall on the buyer, unless the facts show, as in Beer v. Walker (y), that the seller did not perform the condition of his contract, unless the goods were able to stand the contemplated journey, i. e., if they were unable to arrive in a merchantable condition. Such a case falls under s. 14 (2), where it is quoted in illustration, ante, p. 97, but may also be an instance of a contract subject to an implied condition subsequent under s. 1 (2), enabling the buyer to revest the property in the seller, the latter having otherwise performed his contract by delivery to a carrier under s. 32 (1).

ILLUSTRATION.

A., a manufacturer in Staffordshire, agrees to sell to B. a quantity of hoop iron and to deliver it at Liverpool in the winter. A. delivers good merchantable iron to the carrier, but the iron was necessarily rusted and unmerchantable on arrival. A. has made a good delivery, as the deterioration of the goods was the necessary result of the transit to B., and B. must accept and pay for the goods. Bull v. Robison (1854), 10 Ex. 342.

34. (1.) Where goods are delivered to the of examining buyer, which he has not previously examined, he is not deemed to have accepted them unless and

the goods.

(u) (1854), 10 Ex. 342.

(x) Per Alderson, B., in Bull v. Robison, supra; Walker v. Langdale's

Chemical Manure Co. (1873), 11 C. of

S. Cas. (3rd ser.) 906.

(y) (1877), 25 W. R. 880.

until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.

(2.) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.

Which he has not previously examined. The effect of examination is stated in s. 14 (2). The buyer may, of course, waive examination, under s. 11 (1) (a), as where he deals with the goods (z). But examination would not defeat his rights if the defect is latent: see ss. 14 (2), 15 (2) (c).

"The buyer is entitled before acceptance to a fair opportunity of examining the goods, so as to see if they correspond with the contract. . . . . In a word, as delivery and acceptance are concurrent conditions, it is enough to say that the vendee's duty of acceptance depends altogether upon the sufficiency or insufficiency of the delivery offered by the vendor" (a).

"[A buyer] cannot be said to accept that he knows nothing of, otherwise it would make him the acceptor of whatever the vendor chose to send him; whereas he has a right to see whether in his judgment the goods sent correspond with the order" (b).

S. 34.

S. 34 (1).

Sub-ss. 1 and 2 state the law as applying to substantially the S. 34 (1), (2). same state of facts, but sub-s. 1 states the rule from the point of view of the buyer's liability, and sub-s. 2 from that of the seller's on the buyer's request. In sub-s. 1 the act of delivery has been completed by the seller, and the question is whether the buyer also is to be bound thereby; in sub-s. 2 the act of delivery is incomplete, and amounts only to a tender, and the question is whether that tender is good.

The rules contained in this section are enunciated in a different way in s. 15 (2) (b), in cases of sales by sample.

A reasonable opportunity.-The seller is bound to afford the buyer "a reasonable" opportunity of inspection. But the request

(z) Per Cockburn, C.J., in 'Castle v. Sworder (1861), 30 L. J. Ex. 310. (a) Benj. pp. 709, 710.

(¿) Per Alderson, B., in Hunt v. Hecht (1853), 8 Ex. 814.

S. 34 (1).

S. 34 (2).

therefor must be made "at a proper and convenient time" (c). And the opportunity afforded must be at the place, expressly or by implication, appointed for inspection (d). And this place is prima facie the place of delivery (d). But when the goods contain a latent defect not discernible by an ordinary inspection at the place of delivery, the buyer may reject at the first place and time that he is enabled to make a real inspection (e).

Brett, J., says, in Heilbutt v. Hickson (e): "If the time of inspection, as agreed on, be subsequent to the time agreed for the delivery of the goods, or if the place of inspection, as agreed upon, be different from the place of delivery, the purchaser may, upon inspection at such time and place, if the goods be not equal to the sample, return them then and there on the hands of the seller." The judgment of the same learned judge in Grimoldby v. Wells (f) is to the same effect.

ILLUSTRATIONS.

1. A. agrees to sell B. two parcels of wheat. B. calls at A.'s premises to examine the bulk, and sees the bulk of one parcel, but is refused inspection of the other. B. has not accepted the wheat, and may repudiate the contract as to both parcels. Lorymer v. Smith (1822), i B. & C. 1.

2. A. agrees to sell to B. by sample twenty-five quarters of barley, deliverable at T. station where inspection is possible. B. resells the barley to C. at S. B.'s opportunity of inspection arises at T. station, and not on delivery at S., as delivery was not contemplated there. Perkins v. Bell (1892), 62 L. J. Q. B. 91.

3. A. agrees to sell B. by sample four quarters of tares, deliverable into B.'s carts, to be taken to B.'s barn. B.'s opportunity of inspection is here not the place of delivery, the place of inspection contemplated being B.'s barn. Grimoldby v. Wells (1875), L. R. 10 C. P. 391.

4. A. agrees to sell to B. by sample 30,000 pairs of shoes for the use of the French army, deliverable at a wharf in London, to be inspected and quality approved before shipment. B. inspects and approves, and pays for the shoes, which are then forwarded to L. in France. The shoes and also the sample contain a latent defect of manufacture not discoverable except by cutting them open, which is done at L. B. has no reasonable opportunity of inspecting the shoes in London, as that inspection was nugatory by the acts of A., and his real opportunity does not arise except at L., which place was impliedly substituted as the place of inspection. Heilbutt v. Hickson (1872), L. R. 7 C. P.

438.

5. A. agrees to sell to B. a quantity of hats which B. has not previously seen. A. sends the hats in closed casks to a wharf, giving notice to B. that the hats are in the casks, and that they would be delivered on payment. A.'s agent refuses to allow B. to examine the casks.

(c) Lorymer v. Smith (1822), 1 B. & C. 1.

(d) Perkins v. Bell (1892), 62 L. J. Q. B. 91.

(e) Heilbutt v. Hickson (1872), L. R. 7 C. P. 438.

(ƒ) (1875), L. R. 10 C. P. 391.