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Against vendee

for not accepting delivery.

What signature to the note is sufficient.

Signature

by an agent.

the agent of both parties at a sale.

28. 5d. per lb., and deliveries were to be made of the same at a certain rate then agreed upon.

3. The plaintiffs made deliveries under and in pursuance of

is placed in the document, provided it is so introduced as to govern and authenticate every material part. (Hubert v. Turner, 4 Scott, N. R. 486; Caton v. Caton, L. R. 2 H. L. 127.) Durrell v. Evans, 1 H. & C. 174; L. J. 31 Ex. 337, is a strong case. There the only signature of the defendant was his name written by the plaintiff's agent on the top of a sale note, the contents of which were known to the defendant at the time, and subsequently altered at his request, and it was held that this was a good signature within the statute. Where a person is in the habit of printing instead of writing his name, that will be a sufficient signature. (Saunderson v. Jackson, 2 B. & P. 238; Schneider v. Norris, 2 M. & S. 286.)

A signature by a duly authorised agent is by the express words of the section enough. It is not necessary that the agent should have the authority of his principal by a written instrument (Graham v. Musson, 5 N. C. 603; 7 Scott, 769); but an agent, to bind the defendant by his signature, must be some third person, and not the other contracting party. (Farbrother v. Simmons, 5 B. & A. 333; Sharman v. Brandt, L. R. 6 Q. B. 720, Ex. Ch.) In the case of a sale by auction. Auctioneer which is within the section, the auctioneer becomes the vendee's agent after his bid is accepted; and if he then, as will usually be the case, writes down the vendee's name in the catalogue opposite the lot, together with the price bid, it is a good memorandum. (Emmerson v. Heelis, 2 Taunt. 38; Kenworthy v. Schofield, 2 B. & C. 945.) But where the conditions of sale are not annexed or referred to in the catalogue, signing the buyer's name in the catalogue is not a compliance with the statute. (Hinde v. Whitehouse, 7 East, 558; Peirce v. Corf, L. R. 9 Q. B. 210.) Where the broker is the agent of both parties, as he generally is, he may bind them by signing the same contract on behalf of the buyer and seller, and his signature to the bought or sold note will constitute a sufficient memorandum within the statute. (Parton v. Crofts, 13 C. B. N. S. 11; L. J. 33 C. P. 189.) There has been some controversy as to whether the real contract is contained in the bought and sold notes signed by the broker, and sent to the buyer and seller respectively, or in the entry which he makes in his book. (See Heyman v. Neal, 2 Camp. 337; Thornton v. Meux, M. & M. 43; Sievewright v. Archibald, 17 Q. B. 124; L. J. 20 Q. B. 538.) Where there is a material variance between the bought and sold notes, and the broker has not signed the contract in his book, there is no binding contract (Grant v. Fletcher, 5 B. & C. 436 : Gregson v. Ruck, 4 Q. B. 737); and if the two principals agree in the broker's presence, and the broker's note does not correspond with the terms agreed upon, then there is no written contract by an agent lawfully authorised, and a party who did not assent to the alteration is not bound. (Pitts v. Beckett, 13 M. & W. 743.)

How far a

broker can

bind buyer

and seller.

Acceptance and actual receipt required.

Acceptance and receipt within the statute.]—In the case of goods above the value of £10, failing a note in writing evidencing the contract, there must be part payment or a delivery of the goods by the vendor with the intention of vesting the right of possession in the vendee, and an actual receipt by the latter with the intention of taking to the possession as owner. (Phillips v. Bistolli, 2 B. & C. 513.) Acceptance without delivery or something tantamount to delivery of the goods, as delivery of the key of the warehouse where they are at the time (Chaplin v. Rogers, 1 East, 192, 195) is insufficient; but the acceptance may be prior to the actual receipt, and need not be contemporaneous with or subsequent to it. (Cusack v. Robinson, 1 B. & S. 299 ; L. J. 30 Q. B. 261 ; Kershaw v. Ogden,

the said sale on various dates, according to the defendant's in- Against structions, amounting in all to 33,8014lbs., and the same were duly accepted and paid for by the defendant.

vendee for not accepting delivery.

There may

3 H. & C. 717; L. J.34 Ex. 159.) Where a joint order for several classes When acof goods is given, the acceptance of one class is a part acceptance of the ceptance of whole under this section (Elliot v. Thomas, 3 M. & W. 170); and accept- part is ance of part is sufficient, although the rest are not even made. (Scott sufficient. v. Eastern Counties Rail. Co., 12 M. & W. 33.) The delivery of a sample if considered to be part of the thing sold is a sufficient acceptance (Hinde v. Whitehouse, 7 East, 588); but it is otherwise where it is a sample merely, and forms no part of the bulk. (Cooper v. Elston, 7 T. R. 14.) After some discussion it seems to be finally settled that there may be an acceptance and delivery of goods within the statute, although the be an buyer still has a right to object to the quantity or quality of the goods. acceptance (Kibble v. Gough, 38 L. T. N. S. 704; following Morton v. Tibbett, 15 though Q. B. 429; L. J. 19 Q. B. 382.) There may be an acceptance, although the buyer can vendee has had no opportunity of examining all the goods; and equally still object there may be an acceptance, although it is open to the purchaser to dis- to the qualipute the terms of the contract as alleged by the vendor. (Tomkinson v. ty, &c. Straight, 17 C. B. 697; L. J. 25 C. P. 85.) There may also be a con- Construcstructive acceptance by acquiescence. Thus, where goods were sent by a tive acceptnamed carrier, and a letter of advice was forwarded to the vendee, ance by acstating that the credit was three months, and the goods after arrival quiescence. were seen by him in the warehouse of the carrier, when he told the carrier that he refused to take them, but made no communication whatever to the vendor till after five months, it was held that this was evidence of acceptance and actual receipt (Bushel v. Wheeler, 15 Q. B. 442); so dealing with a bill of lading as if the person were owner of the property is evidence of the same thing. (Meredith v. Meigh, 2 E. & B. 364; L. J. 22 Q. B. 401.) As to what constitutes a good acceptance, see also Rotide v. Thwaites, 6 B. & C. 388; Rayner v. Grote, 15 M. & W. 359; Marvin v. Wallis, 6 E. & B. 726; L. J. 25 Q. B. 369; Elmore v. Stone, 1 Taunt. 458.) But there can be no acceptance and receipt by the purchaser No acceptwhile the vendor's lien remains, for the vendor's lien necessarily sup- ance while poses that he retains possession of the goods (Morton v. Tibbett, ante; vendor's Carter v. Toussaint, 5 B. & A. 855); and delivery of goods to a whar- lien finger or agent who has been accustomed to forward goods from the plaintiff to defendant, and a delivery by him to the carrier, is not an acceptance, the carrier having no authority (though named by the vendee) to accept the goods for him, but only to receive them for the purpose of being carried. (Hanson v. Armitage, 5 B. & A. 557; Meredith v. Meigh, ante.) So where goods bought abroad were delivered at a foreign port on board a ship chartered by the purchaser, this was held to be no acceptance. (Acebal v. Lery, 10 Bing. 376; see also Baldey v. Parker, 2 B. & C. 37; Bentall v. Burn, 3 B. & C. 423; Mabberley v. Shepherd, 10 Bing. 99.)

remains.

Earnest or part payment.]-Where there is no note in writing of the To consticontract, or no acceptance and receipt of the goods, there must be an tute a part actual payment of some amount or other, or some pledge given to make payment the bargain of sale binding. Customary forms of concluding bargains, as money when the purchaser draws the edge of a shilling across the hand of the must acvendor and returns the money into his own pocket, are not equivalent to tually pass. earnest or part payment within the statute (Blenkinsopp v. Clayton, 7 Taunt. 597); and a bargain that the vendor shall take in part payment a debt due from him to the vendee is not in itself a sufficient part payment to dispense with writing, no money having in fact passed nor receipt for the debt been given by the vendec. (Walker v. Nussey, 16 M. & W. 302.)

Against

vendee

for not accepting delivery.

4. On the 17th September, 1875, the plaintiffs through the same agents sold to the defendants other 50,000lbs. of yarn of a certain quality and description at 3s. 1d. per lb., and

Vendor

not generally bound to deliver.

But may be by agreement.

The time of delivery is not generally of the essence of

the con

tract.

When

delivery by the vendor dispensed with.

Measure of damages where

vendor has failed to deliver.

Where the contract of sale is one within the Statute of Frauds, and the statute has not been complied with, the defendant must specially raise the defence of the statute in his statement of defence. See Order XIX. r. 23; Clark v. Callow (46 L. J. 53), and ante, p. 66.

Vendor's duty.]-In all contracts of sale it is the vendor's duty to hold the goods in readiness for delivery, but unless the contract itself provides that the vendor shall deliver, the buyer is bound to fetch the goods. (2 Kent Com. 505.) Where the contract provides that the vendor has to deliver, he is bound to do so on pain of being sued for breach of contract. Where the contract fixes the place of delivery, the vendor is not bound to deliver elsewhere, nor indeed is the vendee bound to accept elsewhere; but if the vendor is to deliver and the contract does not specify where the delivery is to take place, he is not bound to deliver or offer to deliver till the place of delivery is notified by the vendee. (Armitage v. Insole, 14 Q. B. 728.) As to the time within which delivery must be made, the rule is that time is not generally of the essence of a contract for the sale of goods, unless expressly made so by the contract (Martindale v. Smith, 1 Q. B. 839; Coddington v. Paleologo, L. R. 2 Ex. 193); but in several cases it has been held to be. (See Parker v. Rawlings, 4 Bing. 280; Wimshurst v. Deeley, 2 C. B. 253.)

Sometimes the necessity of delivery or further delivery by the vendor is dispensed with by reason of the vendee's refusal to accept, or declaration that he will not accept. In such a case it is said that the true question is whether the act or conduct of the party evinces an intention no longer to be bound by the contract. (Freeth v. Burr, L. R. 9 C. P. 208.) It has been held, however, that where goods are to be delivered by the defendant to the plaintiff in twelve equal monthly parcels, the refusal of the plaintiff to accept the first parcel does not exonerate the defendant from delivering the remaining parcels (Simpson v. Crippin, L. R. 8 Q. B. 14); so when the delivery was to be by two equal parcels, the defendant was held not to be released from the delivery of the second parcel by reason that the plaintiff had refused to pay for the first in accordance with the contract. (Freeth v. Burr, ante.) Where goods are to be delivered at a future day, the damages for breach of contract are the difference between the contract price and the market price of the goods on the day when they ought to have been delivered. (Gainsford v. Carroll, 2 B. & C. 624; Valpy v. Oakley, 16 Q. B. 941: L. J. 20 Q. B. 380.) If no difference is proved between the contract and market prices, the damages must be nominal. (Valpy v. Oakley, supra) When the price has been paid, the measure of damages is the market price without deducting the contract price; and the same is the rule where the payment is by bills which are outstanding. (Ibid.) If the buyer, at the request of the seller, forbears to enforce the contract at the time the goods ought to be delivered, but afterwards does so, the measure of damages is the difference between the contract price and the market price when the buyer so enforces the contract, i. e., by buying the goods in the market. (Ogle v. Vane, L. R. 2 Q. B. 275; aff. L. R. 3 Q. B. 272. See also Tyne v. Rosedale, &c., Iron Co., L. R. 8 Ex. 305.) If a ship is ordered to be made, or is left for repair, and not delivered at the agreed time, the measure of damage is primâ facie the sum which would have been earned by the ship in the ordinary course of trade since the period when it should have been delivered. (Fletcher v. Tayleur, 17 C. B. 21; L. J. 25 C. P. 65; Cory v. Thames Ironworks

deliveries were to be made of the same at a certain rate then agreed upon.

5. The plaintiffs made deliveries under and in pursuance of

Co., L. R. 3 Q. B. 181.) See generally on the question as to the measure of damages, Elbinger, &c. v. Armstrong, L. R. 9 Q. B. 473; Vicars v. Willcocks, 2 Sm. Lead. Cas., 7th ed., 534, and notes; Mayne on Damages, 4th edition.

Against vendee for not

accepting delivery.

What tender of the goods is sufficient.

Duty of the rendee to accept delivery.]—If the purchaser refuse to Purchaser accept delivery of the goods when made according to the terms of the bound to contract, he is liable in an action for damages. In order to charge the accept purchaser where a tender of the goods is necessary, it must be made delivery. at a reasonable time and place, and be such as to afford him opportunity of examining and receiving the goods. Thus, a tender of articles in a closed cask so as to prevent inspection, or at the defendant's warehouse at a late hour after it is shut up, will not be good, though in the latter case, if the defendant happens to be there, and is able to examine and receive them, it will not be bad merely on account of the lateness of the hour. (Isherwood v. Whitmere, 10 M. & W. 757; Startup v. Macdonald, 6 M. & Gr. 593.) The tender must not be of a larger quantity than was If tender of bought. Thus, if the buyer give a limited order for certain specified a larger goods, and the seller sends these and others from a distant place in quantity one package charged at a lump sum, the consignee may refuse the purchaser whole. (Levy v. Green, 8 E. & B. 575; L. J. 27 Q. B. 111; aff. Ex. Ch. 1 E. & E. 969; L. J. 28 Q. B. 319.) Equally where a joint order is given for several articles the contract is entire, and the purchaser may refuse to accept one unless the others are delivered. (Champion v. Short, 1 Camp. 53.) Where the defendant instructed the plaintiff to buy for him 500 tons of sugar, "50 tons more or less of no moment if So where a you are enabled to get a suitable vessel," and the plaintiff bought 400 tons, it was held that the defendant was not bound to accept the 400 tons. (Ireland v. Livingston, L. R. 5 Q. B. 516, Ex. Ch.) Where goods are sold at "about" a certain quantity, "more or less," the latter words are intended to provide for only a small excess. (Cross v. Eglin, 2 B. & Ad. 106; Macdonald v. Longbottom, 1 E. & E. 977; L. J. 28 Q. B. 293, and also 29 Q. B. 256.)

may refuse the lot.

less quantity ten

dered.

Partial breach of contract to deliver

justify a refusal to

When time is of the essence of the contract, which, in the absence of special agreement to that effect, is seldom the case, the defendant need not accept delivery of goods tendered after the time. (See Hoare v. Rennie, 5 Ĥ. & N. 19 ; L. J. 29 Ex. 73; Coddington v. Paleologo, L. R. 2 Ex. 193.) The general rule, however, is that a partial breach by the plaintiff of his contract to deliver does not justify the defendant in afterwards refusing to accept (Jonassohn v. Young, 4 B. & S. 296 ; L. J. 32 Q. B. 385; Simpson v. Crippin, L. R. 8 Q. B. 14); but where the sale is by sample, does not and the bulk tendered does not correspond with the sample, the purchaser generally need not accept (Heilbutt v. Hickson, L. R. 7 C. P. 438, 451); and so where the sale is an executory one of something not in existence at the time, and to be made, the purchaser may refuse to receive, or ever afterwards receive. return it if it does not correspond with the description of article ordered. Frequently a tender is not necessary, as where nothing was said on the subject in the contract. It is then the purchaser's duty to take away the goods, and it is enough that the vendor is ready and willing to deliver to him when required. Again, if the defendant notifies take away his intention to refuse, and forbids the plaintiff to deliver goods the goods. ordered to be made, then the plaintiff need not proceed to complete the contract on his part, and may show this under an alleged refusal to accept, although the goods are not ready for delivery, and could

When it is the purchaser's duty to

Against vendee for not

the said sale on various dates according to the defendant's instructions, amounting in all to 19,2964 lbs., and the same were accepting duly accepted and paid for by the defendant.

delivery.

6. On the 5th April, 1876, 16,1983 lbs. of the yarn sold on the 15th September, 1875, and 30,7054 lbs of the yarn sold on the 17th September, 1875, remained undelivered by the plaintiffs to the defendant.

7. On the same date, namely the 5th April, 1875, a fire occurred at the defendant's mill, and the defendant then requested the plaintiffs to delay for an unspecified time making deliveries of the residue of the yarn, and to hold the same on his account.

8. The plaintiffs accordingly waited for a considerable period, and held the residue of the yarn on account of the defendant, and then on the 22nd August, 1877, gave notice to the defendant that they required him to take delivery of such residue, and that they would sell the same against him if he did not do so.

9. The plaintiffs were then and at all times had been ready and willing to make deliveries of the residue of the yarn in accordance with the terms of the said sales, but the defendant neglected and refused to accept delivery of such residue as aforesaid.

10. The plaintiffs thereby lost the profits which they would have made upon the said yarn, and were for a long time compelled to store and insure the same at great expense, and also lost the price which they would have received from the defendant for the same, and also interest thereon, and were otherwise damnified.

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not be delivered, for the plaintiff is thereby discharged from proceeding further. (Cort v. Ambergate Rail. Co., 17 Q. B. 127, 144; L. J. 20 Q. B. 460.) A sale of goods "on arrival," or "to arrive," in a particular ship is a contract for a sale of goods at a future period, subject to the double condition of the arrival of the ship and the goods being on board; but it is not a warranty by the seller that the goods will arrive (Boyd v. Siffkin, 2 Camp. 326; Smith v. Myers, L. R. 5 Q. B. 429; aff. L. R. 7 Q. B. 139); but where the contract is for the sale of goods "now on passage and expected to arrive by," or "to be delivered on the safe arrival of," a certain ship, it is conditional on the arrival of the ship only. (Gorissen v. Perrin, 2 C. B. N. S. 681; L. J. 27 C. P. 29; Hale v. Rawson, 4 C. B. N. S. 85; L. J. 27 C. P. 189.)

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