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the indorsement and delivery of the bill of lading operates as a symbolical delivery of the cargo. . . . It is a key which, in the hands of the rightful owner, is intended to unlock the door of the warehouse, floating or fixed, in which the goods may chance to be" (d). By the transfer, therefore, of the bill of lading, the only delivery of the goods possible, under the circumstances, has been made.

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Other documents of title stand on a different footing; and have been treated by the Courts as "mere tokens of authority to receive possession; as mere offers' by the warehouseman to hold the goods for an indorsee of the warrant, inchoate and incomplete, till the buyer has obtained the warehouseman's assent to attorn to him" (e). "A delivery order is not a representation, but a mere promise to deliver goods. By [its] mere delivery there is no change made in the custody of the goods" (f). This is the law with regard to actual receipt under s. 4(g); and the divesting of the seller's lien under s. 39 (h); and also with regard to the seller's duty to deliver the goods (i). The seller is, in the last case, responsible if the bailee wrongfully refuses to attorn to the buyer; if he were not, the buyer would be buying, in the words of Martin, B., above quoted, law-suit." But the seller is not responsible for a refusal of the bailee by reason of the buyer's non-performance of a condition precedent to delivery, as, e. g., the handing over the warrant or order, when the goods are made thereby deliverable "on presentation" (k).

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a

On this question Mr. Benjamin makes the following remarks (1) :—" The indorsement and transfer to the buyer of bills of lading, dock and wharf warrants, delivery orders, and other like instruments, which among merchants are known as representing the goods, would form a good delivery in performance of the contract, so as to defeat any action by the buyer against the seller for non-delivery of the goods, according to the principles of Salter v. Woollams and Wood v. Manley (m). The transfer of such documents would, of course, not be a sufficient

(d) Per Bowen, L.J., in Sanders

v. MacLean (1883), 11 Q. B. D. at p. 341.

(e) Benj. p. 829.

(f) Per Lord Esher, M.R., in Gillman v. Carbutt (1889), 37 W. R. 437 at p. 439.

(g) Farina v. Home (1846), 16 M. & W. 119.

(h) McEwan v. Smith (1849), 2 H.
L. C. 309.

(i) Buddle v. Green (1857), 27 L. J.
Ex. 33. See also per Cur. in Wood
v. Baxter (1883), 49 L. T. N. S. 45.
(k) Bartlett v. Holmes (1853), 22
L. J. C. P. 182.

(2) pp. 704, 705.
(m) See next page.

S. 29 (3).

(2) Other documents of title.

8. 29 (3) delivery by the seller, if the goods represented by the documents were subject to liens or charges in favour of the bailees"().

S. 29 (4).

The effect of the transfer of documents of title on the title to the goods, when the seller is in possession, is discussed in the notes to s. 25 (1), ante, p. 160; and on the seller's lien and right of stoppage in those to ss. 25 (2), ante, p. 166, and to 47, post, p. 257.

ILLUSTRATIONS.

1. A. sells to B. by auction a rick of hay then standing on C.'s land, who had given a licence for its removal, which licence is read at the auction. A. gives B. a letter to C. requesting him to allow removal by B. C. refuses. A. is not liable to B. for non-delivery, as he has delivered, C. having agreed to become bailee to the buyer, and his previous licence being after the sale irrevocable. Salter v. Woollams (1841), 2 M. & G. 650 (m).

2. A., the outgoing tenant of a farm, who is bound, for every load of hay he removes, to bring on the farm two loads of manure, sells a rick of hay to B. C., the incoming tenant, consents to the removal of the hay if A. brings the manure, which A. does not do, and C. prevents B. removing the hay. A month elapses, and C. afterwards agrees to the removal; but the hay having been damaged, B. refuses it. A. cannot recover the price of the hay, as he has never delivered, C.'s acknowledgment being only conditional. Smith v. Chance (1819), 2 B. & A. 753 (n).

3. A. sells to B. a quantity of hops then stored with C., and B., with A. and C.'s consent, takes away part, but before B. can remove the residue they are seized by a creditor of D., from whom A. bought. A. is not liable to B. for non-delivery, as he put the hops at B.'s disposal, and C. had acknowledged B.'s right thereto. Wood v. Tassell (1844), 6 Q. B. 234.

4. A. sells to B., subject to C.'s charges, a number of slates stated to be lying at C.'s wharf, and gives B. a delivery order on C. B. presents the order and is ready to pay the charges, but C. refuses to deliver, as D. (from whom A. bought) had (but unjustifiably) stopped the slates in transit. A. is liable to B. for non-delivery, C. having refused to attorn to B. Buddle v. Green (1857), 27 L. J. Ex. 33.

5. A. agrees to sell B. a quantity of iron, then lying at C.'s wharf. A. indorses to B. C.'s warrant, whereby C. engaged to deliver to A.'s order, the warrant being duly indorsed, and handed over. B. makes default in handing over the warrant, and C. refuses to deliver. A. has made a good delivery, as C.'s refusal was B.'s fault, and B. is liable for the price. Bartlett v. Holmes (1853), 13 C. B. 630; 22 L. J. C. P. 182.

(4.) Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact.

At a reasonable hour.-Elaborate rules as to the reasonableness of the hour of delivery were stated in Startup v. Macdonald (o), and distinctions were made according as the party

(1) On this latter point, see s. 12 (3), ante, pp. 79, 84.

(m) See also Wood v. Manley (1834), 11 A. & E. 34.

(n) See also Buddle v. Green (1857), 27 L. J. Ex. 33.

(0) (1844), 6 M. & G. 593.

bound to performance was to perform at a particular place or
not; and it was said that "it was not to be left to the jury to be
determined as a question of practical convenience or reasonable-
ness in such case, but the law appears to have fixed the rule." In
future, the "reasonableness in each case" is a question of fact
"is
under this sub-section, and the law is thus changed; the legisla-
ture evidently intending that one uniform rule should apply,
under sub-s. 2, to time, and under this sub-section to hour (p). In
the case in question, the jury had (erroneously) found as a fact
that a tender at half-past eight on Saturday night was an
unreasonable time for the tender of a quantity of oil.

ILLUSTRATION.

A. agrees to sell to B. ten tons of linseed oil, to be delivered within the last fourteen days of March, and to be then paid for in cash. A. tenders the oil to B. at half-past eight o'clock at night on Saturday, March 31st, in time to allow B. to examine the oil before twelve o'clock. [Submitted] that A.'s tender is bad, as made at an unreasonable hour, and that B. may reject the oil. See Startup v. Macdonald (1844), 6 M. & G. 593.

(5.) Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the seller.

"Deliverable state" is defined in s. 62 (4).

See also Story on Sale,
French Civil Code. In

There is no authority at common law for the rule here stated. The only case found is in America (q). ss. 297 (a), 394, and s. 1608 of the Playford v. Mercer (r), where the goods were to be taken by the buyer "from the deck," this phrase was held to mean that the seller would pay all that was necessary (in the case, harbour dues) to enable the buyer to remove from the deck.

When the goods are to be shipped "free on board," the expenses of shipment must be borne by the seller (s).

With regard to the risk in the latter case, see notes to s. 20,

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A. agrees to sell to B. a quantity of wool then lying unsacked in certain rooms, the quantity to be ascertained by weighing. A. sacks

(p) See also s. 56.

(g) Coles v. Kerr, 20 Verm. 21. (r) (1870), 22 L. T. N. S. 41.

(s) Per Brett, M.R., in Stock v.
Inglis (1884), 12 Q. B. D. at p. 573;
Cowasjee v. Thompson (1845), 5 Moo.
P. C. 165.

S. 29 (4).

S. 29 (5).

S. 29 (5).

Delivery of wrong quantity.

S. 30.

the wool in B.'s sacks, and then weighs it and ships it to B. The expense of sacking the wool must be borne by A. Coles v. Kerr, 20 Verm. 21.

30. (1.) Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts the goods so delivered he must pay for them at the con

tract rate.

(2.) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the goods so delivered, he must pay for them at the contract

rate.

(3.) Where the seller delivers to the buyer the goods he contracted to sell mixed with goods of a different description not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or he may reject the whole.

(4.) The provisions of this section are subject to any usage of trade, special agreement, or course of dealing between the parties.

The law under this section is thus stated by Mr. Benjamin (t):"The seller does not comply with his contract by the tender or delivery of either more or less than the exact quantity contracted for, or by sending the goods sold mixed with other goods. As a general rule, the buyer is entitled to refuse the whole of the goods tendered if they exceed the quantity agreed, and the seller has no right to insist upon the buyer's acceptance of all, or upon the buyer's selecting out of a larger quantity delivered. . . . If, on the other hand, the delivery is of a quantity less than that sold, it may be refused by the buyer; and if the contract be for a specified quantity to be delivered in parcels from time to time, the buyer may return the parcels first received, if the later

(t) pp. 696, 697.

deliveries be not made, for the contract is not performed by the seller's delivery of less than the whole quantity sold (u). But the buyer is bound to pay for any part that he accepts; and after the time for delivery has elapsed, he must either return or pay for the part received, and cannot insist on retaining it without payment until the seller makes delivery of the rest."

S. 30, sub-ss. 1-3, must be read subject to sub-s. 4, and to

ss. 27 and 31 (1). See notes to sub-s. 4, post, p. 192.

S. 30.

A quantity of goods less... A quantity of goods larger... S. 30 (1), (2). The provisions of these two sub-sections may be considered under the following heads :

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(1) The quantity of the goods contracted for: (2) The rights and liabilities of the buyer.

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Firstly, the quantity of the goods contracted for will depend upon the terms of the contract. And the use of such terms as 'cargo,' "not less than,” more or less,' "about," or "say about," makes the question sometimes difficult to determine. With regard to the word " cargo as used in contracts of sale,

"there is not an entire concordance of the authorities as to the

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true construction of a contract for the sale of a cargo "(x). Kreuger v. Blanck (y), and Borrowman v. Drayton (z), are authorities to the effect that the word 66 cargo means the entire quantity of goods loaded on board a vessel as freight for a particular voyage, and that a buyer is not bound to accept a part only of the entire load. But the Privy Council (a) have declared that the phrase is susceptible of different meanings according to the context of the particular contract, and in the case in question, which dealt with a cargo of wheat, the word was interpreted as meaning "as many bags of wheat as would fill the vessel."

When words of estimate are added to "cargo," it has been held that the essential term is "cargo" (b). And a cargo may also be sold "as it stands," the quantity to be taken from the bill of lading. In such a case the parties mutually take the risk of the quantity being in excess or deficiency (c) of that stated in the bill of lading (c). The latter case must be distinguished from ordinary cases of sales of cargoes by bill of lading. There the

(u) Per Parke, J., in Oxendale v. Wetherell (1829), 9 B. & C. 386; approved in Col. Ins. Co. of New Zealand v. Adelaide Ins. Co. (1886), 12 Ap. Ca. 128. Other cases are quoted in Benj. p. 698, note (n).

(x) Benj. p. 571.

(y) (1869), L. R. 5 Ex. 179.

(z) (1876), 2 Ex. D. 15.

(a) In Col. Ins. Co. of New Zealand
v. Adelaide Mar. Ins. Co., supra.
(b) Levi v. Berk & Co. (1886), 2
Times L. R. 898.

(c) Covas v. Bingham (1853), 2 E.
& B. 836. See in America, Heller
v. Allentown Manufacturing Co., 39
Hun, 547.

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